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State ex rel. Waller v. Tobben

Court of Appeals of Missouri, Eastern District, First Division

May 30, 2017

State of Missouri ex rel. John W. Waller and T. Scott Waller, Relators,
v.
The Honorable David B. Tobben, Respondent.

         Writ of Prohibition, Franklin County Circuit Court Cause No. 16AB-CC00203

          Colleen Dolan, Presiding Judge.

         I. Introduction

         John W. Waller (hereinafter "John") and T. Scott Waller (hereinafter "Scott")[1] (together "Relators") filed a petition for a writ of prohibition (1) ordering the Honorable David B. Tobben ("Respondent") to vacate the March 17, 2017, order appointing David Politte as a Guardian ad Litem (the "GAL") for John and (2) prohibiting Respondent from taking any action associated with the underlying claims unless the action is dismissing the claims. Respondent's order instructed the GAL to: (1) meet with John and evaluate his current mental competence, his mental ability to participate in the present case, and form a defense to this litigation, and (2) prepare a written evaluation for Respondent and the parties on John's present mental capacity. Our preliminary order in prohibition is made permanent, and we direct Respondent to vacate the order of March 17, 2017, and to dismiss the petition without prejudice.

         II. Factual and Procedural History

         On September 21, 2016, St. Clair Bancshares Inc. and Farmers & Merchants Bank of St. Clair (hereinafter "Plaintiffs") filed a petition for declaratory judgment in the Circuit Court of Franklin County. In their petition, Plaintiffs alleged that on September 20, 2016, at the Annual Stockholders meeting of St. Clair Bancshares Inc., Scott appeared and attempted to tender a proxy purportedly executed by John. P further alleged John was: "not competent to execute said proxy and/or may have been under the undue influence of Scott Waller at the time of the execution of said proxy and for a considerable time prior thereto, " "no longer mentally competent to serve as a director of Holding Company, " and "[a] dispute exists as to the competency of John Waller which is ripe for adjudication[.]"[2]

         Plaintiffs asked Respondent to enter a declaratory judgment declaring:

[T]he state of mental competency of John Waller and further determining whether John Waller was mentally competent to execute the proxy referenced above and/or was under the undue influence of Scott Waller at the time said proxy was executed; and further declaring whether the attempted actions of Scott Waller in attempting to vote the proxy were ineffectual and/or null and void[.]

         Plaintiffs also filed a motion for an appointment of a guardian ad litem under Rule 52.02(k)[3] stating: "For grounds of this motion, Plaintiffs state that, upon information and belief, John Waller is mentally incompetent and, therefore, the appointment of a Guardian ad Litem is mandatory under Rule 52.02(k)[.]"[4]

         On November 28, 2016, John filed a "Motion to Dismiss Petition for Declaratory Judgment and Response to Motion for Appointment of Guardian Ad Litem." In this motion, John asserted that Respondent did not have authority to declare him incompetent because this determination falls under the "exclusive jurisdiction" of the Probate Division. On December 5, 2016, Plaintiffs filed a notice of deposition, seeking to depose John. In response, John filed a motion to quash notice of deposition, alleging that permitting Plaintiffs to take his deposition would be prejudicial and violate his rights and re-asserting that Respondent lacked authority to declare his competency. Respondent sustained this motion to quash. On January 19, 2017, Plaintiffs asked Respondent for leave to file an amended petition. Respondent directed Plaintiffs to file their first amended petition and, anticipating Plaintiffs would in fact file an amended petition, held that John's motion to dismiss the petition for declaratory judgment was moot. Plaintiffs did not file this amended petition.[5]

         On March 17, 2017, Respondent heard the parties' competing motions.[6] Plaintiffs claimed they were not asking Respondent to declare John mentally incompetent under Chapter 475 RSMo.[7] Instead, Plaintiffs argued they were asking Respondent to determine whether John was mentally competent to execute the proxy for the September 20th Stockholders' meeting. John argued that (1) the trial court lacked authority to determine his mental competency because the Probate Division had exclusive jurisdiction over the issues raised in the petition; and (2) Rule 52.02(k), which Plaintiffs claim makes the appointment of a guardian ad litem "mandatory, " cannot be used to adjudicate a person's competency.

         After hearing oral arguments, in response to Plaintiffs' request for a guardian ad litem, Respondent requested John's appearance for an examination in court. John's attorney objected to the presence of Plaintiffs at the examination. The court did not grant or deny John's objection, instead, it attempted to schedule a time for the hearing that would work for all parties. When it became clear that there was not a time that would work for all the parties to have such a hearing, Respondent appointed the GAL, who would visit with John and evaluate his current mental competence and his mental ability to participate in this case and formulate a defense to this litigation. Respondent described this appointment as "kind of analogous to what the responsibilities of an attorney for [John] in a probate guardianship case" would be. Respondent further ordered the GAL to provide Respondent and the parties with a written evaluation of John's "present mental capacity" and ordered John to meet with the GAL in his law offices.[8]

         III. Standard of Review

         A writ of prohibition is an extraordinary remedy, and its issuance is only appropriate in one of three circumstances: "(1) to prevent the usurpation of judicial power when the trial court lacks jurisdiction; (2) to remedy an excess of jurisdiction or an 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 made available in response to the trial court's order." State ex rel. Dep't of Soc. Servs., Div. of Children Servs. v. Tucker, 413 S.W.3d 646, 647 (Mo. banc 2013). Here, we believe the trial court was without authority to enter the order in question. Since compelling a litigant to undergo a mental examination is an invasive act that cannot be remedied on appeal and would thus result in irreparable harm to the litigant, issuance of an extraordinary writ is appropriate. Although it is unusual to issue a writ of prohibition directing a court to dismiss a case, it is not unheard of." See Lee v. Jamison, 338 S.W.3d 844, 845 (Mo. App. E.D. 2011) (making permanent a writ of prohibition and ordering the trial court to dismiss a cause due to ...


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