Writ of Prohibition
Writ Division: Anthony Rex Gabbert, Presiding Judge, Victor
Carl Howard, Judge, Alok Ahuja, Judge.
ANTHONY REX GABBERT, JUDGE.
Kansas City, Missouri School District (Relator) filed a
petition for a writ of prohibition requesting that this Court
issue a writ directing Jackson County Circuit Judge, Patrick
Campbell (Respondent) to vacate the order allowing Anthony L.
Moore (Plaintiff) to file a second amended petition. Relator
offers two points in support of the writ. In its first point,
Relator argues that Plaintiff abandoned a contract claim for
liability by both failing to present any evidence on the
claim and failing to request a jury instruction on the claim
at trial. In Relator's second point, it contends that the
trial court improperly granted Plaintiff's second motion
for leave to amend because the trial court lacked
jurisdiction to grant the motion. Relator argues that the
trial court's final judgment on the jury-tried claim
operated as a final judgment on all claims, including the
claim which plaintiff asked for leave to amend and that the
trial court's final judgment cured any deficiencies
stemming from the lack of a written order memorializing the
court's prior oral dismissal of the count the trial court
later granted Plaintiff leave to amend.
Anthony L. Moore filed an action against Relator Kansas City,
Missouri School District (KCMSD) on February 1, 2013. On June
10, 2013, Plaintiff filed his first amended petition as a
matter of right before Relator answered. The first amended
petition included a claim for breach of the 2011 employment
contract Plaintiff entered into with Relator (Count II). The
Plaintiff's petition included four different claims, all
arising from and based on the same underlying
facts-Plaintiff's employment and subsequent termination
from his position with KCMSD. Prior to trial, Plaintiff
stipulated to the dismissal of Counts III and IV. On October
19, 2015, the court granted Relator's motion for summary
judgment on Count II. Despite orally granting the motion on
record, no official order or judgment was signed by the court
declaring the grant of summary judgment in Relator's
favor on Count II.
Count I proceeded to a jury trial on October 26, 2015 and a
verdict for Relator was entered by the jury. As to Count II,
Plaintiff did not attempt to introduce any evidence, request
any jury instructions, nor during the trial and before the
close of all evidence request the Court to reconsider its
earlier ruling as to Count II. The trial court entered
judgment for the Relator on November 23, 2015. On December
23, 2015, Plaintiff filed his motion for new trial and a
motion for leave to amend the petition in hopes of amending
the previously disposed of Count II, but based upon a 2010
employment contract (rather than a 2011 employment contract
which was the basis of the original claim). Relator filed its
response on January 14, 2016. At a hearing held on March 24,
2016, the trial court heard arguments on the motion from the
parties. During this hearing, the trial court noted,
"[w]ell, I did dispose of the contract claim, but you
are asking for leave to amend to add a new contract
claim." The trial court granted Plaintiff's motion
for leave to amend and denied Plaintiff's motion for a
new trial on April 21, 2016. More than ninety days passed
between the filing of Plaintiff's motion for leave to
amend and the trial court's granting of the same.
"A writ of prohibition is available: (1) to prevent a
usurpation of judicial power when the trial court lacks
authority or jurisdiction; (2) to remedy an excess of
authority, jurisdiction, or abuse of discretion where the
lower court lacks the power to act as intended; or (3) where
a party may suffer irreparable harm if relief is not
granted." State ex rel. Houska v. Dickhaner,
323 S.W.3d 29, 32 (Mo. banc 2010).
lack of a final appealable judgment precludes appeal, and
may, where appropriate justify the extraordinary remedy of a
writ. See Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 799
(Mo. banc 2012).
Abandonment of The Claim.
contends that because the trial court failed to properly
memorialize the motion for summary judgment granted in
Relator's favor, it was not included in the November 23,
2015 final judgment, and therefore the trial court maintains
jurisdiction over the contract claim. Relator counters that
despite the lack of a formal order granting the motion for
summary judgment, because Plaintiff failed to present any
evidence on the claim and failed to request jury instruction
on the claim at trial, Plaintiff abandoned Count II.
that was not submitted to the jury at the conclusion of the
evidence is considered abandoned. Benson Optical Co.,
Inc. v. Floerchinger, 810 S.W.2d 531, 536 (Mo. App.
1991). This court would deem a plaintiff to have abandoned
its claim against defendant, where plaintiff failed to submit
a verdict form pertaining to that defendant. Killion v.
Bank Midwest, N.A., 987 S.W.2d 801, 808 (Mo. App. 1998).
In Killion, this court declined considering the
plaintiff's tort claim on appeal because the plaintiff
failed to submit a verdict form or ask for instructions to
the jury on the claim, thereby abandoning it. This court