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State ex rel Kansas City v. Campbell

Court of Appeals of Missouri, Western District

December 13, 2016

STATE EX REL KANSAS CITY, MISSOURI SCHOOL DISTRICT, Relator,
v.
THE HONORABLE PATRICK WILLIAM CAMPBELL, Respondent.

         Original Writ of Prohibition

          Before Writ Division: Anthony Rex Gabbert, Presiding Judge, Victor Carl Howard, Judge, Alok Ahuja, Judge.

          ANTHONY REX GABBERT, JUDGE.

         The 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.

         Factual Background

         Plaintiff 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.

         Only 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.

         Standard of Review

"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).

         The 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).

         Legal Discussion

         (i) Abandonment of The Claim.

         Plaintiff 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.

         A claim 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 ...


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