*1 tender, cess of the no cost shall be al-
lowed.
ex
STATE
rel. NORANDA
ALUMINUM,
Relator,
INC.,
special
statute is similar
the oft-
construed
“vexatious
refusal”
statute
governs
companies,9
insurance
but
RAINS,
Hearing
Elizabeth J.
Ex
Chief
there are differences. Because of the nov
aminer
Missouri
elty
point
of the
the lack of author
Rights, Respondent.
construction,
unwilling
itative
we are
say
payment
that the denial of
“with
was
No. 66872.
just
plaintiffs argue
out
cause.” The
Supreme
Court of
the defendant
should
liable for attor
En Banc.
because,
neys’
fees
when first
claims, gave
with the
deni
reason for
March
al, citing
Family
v. American
DeWitt
Mu
Company,
tual Insurance
quiry to Department the officials
Agriculture appropriate. was A mere
showing of vexatious conduct is not suffi impose liability
cient to for attorneys’ fees statute, particular
under this which was involved DeWitt. plaintiffs also raise the responsibility parties they repre-
sent to attorneys’ contribute toward their appropriate
fees. This issue is for determi- remand,
nation the trial court on
conformance equitable with traditional
principles. Hotel, Mayfair See Jesser
Inc., judgment is reversed and the ease is
remanded to the circuit court for further opinion. consistent with this
HIGGINS, C.J., BILLINGS, DON-
NELLY, RENDLEN, ROBERTSON and
JJ., concur.
WELLIVER, separate opin- concurs in
ion filed.
WELLIVER, Judge, concurring. instance,
I concur. In this con- I am legislature,
vinced that the rather than the will,
court, has created situation that end, grain cost make the warehouse prohibitive thereby accentuating
bonds
problem sought resolved. 375.296; 375.420, Sections
according principles to the of law.” § grant RSMo 1978. The constitutional expansive authority of is more than the statutory gives grant, and this Court issuing in discretionary power remedial contrast, statutory By provision writs. purports when a writ to direct shall issue. Situations where this Court has issued prohibition generally writs of fall within First, categories. one of three where there usurpation judicial power of because personal trial court lacks either or sub- ject jurisdiction, matter we have enter- Second, prohibition. tained writs of al- though frequently, we will entertain a less Laderman, Louis, rela- Louis N. St. for there prohibition writ of where exists a tor. or jurisdiction clear excess of abuse of dis- court cretion that the lower lacks the such Webster, Gen., Atty. L. Robert William contemplated. ;power act as Fisher, Swearingen, L. At- Jennifer Asst. Gen., tys. City, respondent. for Jefferson perhaps is The third situation this is most unsettled area. When Court WELLIVER, Judge. not an an action a discrimination action This case involves of abuse of or excess discretion Missouri Commission on Human before the in customary in the fashion which we have relator, Aluminum, Rights against Noranda interpreted concepts, occasionally we those Darryl by Inc. was filed E. if prohibition will issue a writ of Love, subsequently relator filed with satisfy can a number of conditions—often depose a hearing examiner notice adequate of no falling under the rubric examiner held Love. remedy category often by appeal. Love was not deciding impor acts as mechanism for Love not be status could absent routinely escapes legal tant question deposed subpoe- without issuance of litiga of this attention because Court’s challenged by na. Relator conclusion of process tion and the lack interest stay examiner and obtained a prosecute at a some instances to petition for proceedings, might be noted that expense. client’s prelimi- prohibition. writ of issued a appeals interlocutory in civil there are no nary April order jurisdic in other cases which Rule now make our 97.04. We situations might tions cover some order absolute. Thus, where there is category. this third escape this might otherwise outset, an issue At there is some some and which propriety deciding this Court’s attention concerning the admin being by decided in the power to meantime issue in a writ Our opin whose trial courts istrative issue derives from our Con- bodies remedial writs Const, inertia V, ions reason art. 4.1. stitution. Mo. and, the issue is percedent;1 cause become legislature provided has that writs also a mere wrongly and granted prevent decided prohibition “shall be law; and, ag where misapplication power, and all usurpation judicial considerable may suffer grieved party applicable same is cases where the now position. her the Mis- Respondent cites three decisions souri Commission hardship expense consequence employees as a white called from lunch their action, may period to entertain the writ for work. purposes judicial economy under our au potmen] D. of the white male has [One thority original to “issue determine utility- stated that was one the best V, remedial writs.” Mo. Const. art. men he worked with. has also [Another] stated the same. *3 adoption Since State ex rel. Mor probationary E. There were four other Kimberlin, asch v. me; employees hired with three whites 1983), questioned we often have employ- and one The other black. black following whether we were fact ee and I were the ones terminated. guidelines of Morasck. This case falls into complaint The was filed before the Missou- category three above and we believe that Rights ri Commission on Human on Decem- orderly and economical administration 29, reinstatement, sought ber 1981. Love justice justifies issuance of the inwrit pay, seniority back no loss of and such extent, a case. Modified to this relief just as the Commission deems goal that believe Morasch’s of a workable proper. and guideline is attainable. 23, 1984, January On the Missouri Com- Love, complainant, Darryl E. filed a prob- mission found that complaint of discrimination under complain- cause existed to able believe that 040.1, relator, against RSMo 1978 No- race, “discharged ant was because of his apparently randa Aluminum. Relator had attempt black” and ordered that relator Love, male, hired black and another black conference, by the matter resolve concilia- male and three white males to work as persuasion, proved tion and unsuc- utilitymen for Complainant alleg- relator. hearing cessful. The case was set for on they employed probation- es were as 1984, 25, July with a confer- 7, ary employees, beginning November 26, May ence scheduled for June 1984. On ending thirty-nine days 1981 and later on 1984, 3, respondent issued an order direct- 17, Complainant December further ing, alia, possible, inter dis- “[w]here alleges reprimands that he received three completed pri- initiated and covery shall be safety during days on his first fifteen prehearing or to the conference. This employment and at the end of the first informally by be done between counsel or evaluation; days fifteen received a “fair” requesting deposition from thirty-day and at his evaluation on Decem- hearing examiner.” Relator contacted 24, given ber 1981 he was a “half-fair” and 8, Attorney General’s office on June “half-poor” appraisal performance.2 of his requested complainant 1984 and that he He claims was terminated on De- produced deposition July 27, 1981. cember Five reasons were stated later, days Attorney A General’s few charge: of the discrimination replied as follows: office stayed A. Other whites hired in with me Darryl yet Love has not filed a Since section, in one while I was con- intervene, motion to and has informed changed stantly to different sections and so, he is me that he does not intend to do job potmen my different which made dif- Although Mr. party not a to this action. grasp. ficult to filed a with the Missouri Love scrutiny B. I was under close and ob- Rights, the action Commission on Human by the foreman while the white servation by initiated is instituted and Commis- probationary employees were not. result, I believe sion. As a provided in Rule during may only deposed as my I was called back to work C. period lunch work. never saw length might dates and of time. be noted that on the face of com- plaint ambiguity surrounding there is some time, complainant meaning
At this Love was no has not “intervened” within the following liv- statute. longer a resident of Missouri and was ing in Texas. Relator filed a notice of respondent may file a written veri- respondent.3 fied ap- Because com- answer to the pear person at such or plainant resided outside of other- Love wise, counsel, with without and sub- respondent noted that the crucial testimony. mit At the discretion of the was whether panel, examiner or com- 296.040.5, Relying upon case. plainant may be allowed intervene by respondent not inter- ruled testimony present person vening under that section was counsel. commission or not a plainant power reasonably shall have The issue before this Court any complaint, fairly to amend whether to these *4 power respondent the shall have like to proceedings may compelled to at and be testimony amend his answer. The taken deposition here in tend a Missouri. Section at oath the shall be under and be 296.040.1, provides 1978 that a “veri RSMo transcribed. may complaint” fied be with the Com filed 296.040.5, added). (emphasis RSMo 1978 § complainant’s mission either “[t]he Intervention under 296.040.5 is not § attorney general.” agent attorney the synonymous party with status. Section Contrary suggestion the above of only right defines the the com- 296.040.5 quoted attorney general, letter of the the Commission, plainant appear before the may complaint itself not file a Commission purport it does alter cus- not to define or thereby proceedings against and initiate tomary practice determining party sta- for 296.030(7), employer under RSMo 1978. § Rather, inquiry the is whether tus. crucial 113, Pool-Leffler, Brooks v. 636 S.W.2d 116 rights being person’s a or liabilities are (Mo.App.1982). undisputed It is that com adjudicated. A. Parties 3 See 67 C.J.S. § plainant attorney general not Love and the (1978). Where, judice, in the case sub as complaint filed the under 296.040.1.4 § complaint the and complainant the files provides that: The statute further against his or her personal seeks relief complaint The case in of pay, employer, such as back reinstatement before the shall seniority, should no and no loss of there panel by the office of examiner or a doubt that general of Mis- attorney state purpose of secur- proceedings these for ... souri rights and ing deposition. Complainant’s a 296.040.4, the com- RSMo 1978. When adjudicated § in these are liabilities attorney general plainant not the files and against re- any judgment proceedings, and complaint, attorney general acts as judgment personal (employer) lator complainant, re- on counsel behalf If the Commis- complainant. favor of the complainant, gardless attorney general findings whether the adverse to sion’s appeal. may See represent also the State. Rule See then the however, 296.040.11, also 296.- argues 1978. See Respondent, § 52.02. RSMo § 050.3, also be noted should he RSMo 1978. complainant Love is not a because under § it was filed posits subpoena document states that that it obtain a 3. Relator cannot 296.040.6, filing authority for this deposition RSMo 1978 no because 040.5. There was § according proceed general attorney did not file the directs document. provides Chapter only complaint, autho- § 296.040.5 initial deposition the state. can be served within “complainant” to Commission or rizes the 536.077, 296.030(8), 1978. RSMo § § complaint.” "reasonably fairly amend Cf. as new is treated if this document And even 296.040.1, beyond then § under argues attorney general filed an that it 296.040.10. jurisdictional § limit under Complaint” June In on "Amended paragraph complaint, eight of the amended in the statutes elsewhere as in accordance regardless our party, is treated as a of inter- Rules. 296.040.5, purpose
vention under for the receiving notice and the of all HIGGINS, C.J., service DONNELLY and 296.040.7, 9; Any SNYDER, orders. RENDLEN, JJ., Special 296.050.1. §§ judgment upheld appeal or reversed on Judge, concur. judicata res binding has a effect on BLACKMAR, J., in separate concurs employer. both the opinion filed.
See Hickman v. Electronic Keyboarding,
Inc.,
(8th Cir.1984).
The crux a discrimination case often Kimberlin, State ex rel. Morasch depends upon testimony of the com- *5 (Mo. 1983). I to S.W.2d 889 banc adhere plainant. unduly would seem harsh to expressed my Concurring the views in employer bind judgment by the to the Opinion courts, in case. over that Missouri employer Commission when the was unable years, the have exercised discretion in issu- adequate to regarding secure information writs, ing original per- remedial when alleged the prior discrimination the time to remedy suaded adequate. that is hearing. Even the examin- they In so in doing have acted accord recognized er’s order the need for dis- spirit the letter and of the Constitution. covery taking depositions prior ignored history precedent, Morasch hearing. to only deposition the of any conveniently and has been overlooked importance employer is that of the subsequent numerous decisions.1 The complainant. circumstances, Under these pretext prohi- has come to abandon the that the should be as a treated unless there true bition is not available proceedings. suggest to these To frankly issue of to state attorney general and not the com- pronouncements broad Morasch plainant is the party would mean that the are unauthoritative. employer could secure the I use of a initially questioned the writ attorney general’s office without a interrupt ongoing adminis- this ease to spending without a considera- proceeding. though we have trative Even traveling
ble sum outside this to lo- state so, to do authority never depose actively cate and not prop- a writ. have been pelled to issue We, participating in the there- erly interrupt reluctant cases. fore, believe that the should be the case be dis- One reason is party. treated as a way posed the issue posed of absolute, is need not be decided. request writ made writ delay But is the factor. examiner is directed to Another reason persuaded that the Human party subject majority treat as a is See, 1985); rel. e.g. S.W.2d State ex State ex rel. General Electric Co. v. 181 Gaertner, 1984) (Mo. banc Adolf, 706 443 v. S.W.2d Twiehaus (Blackmar, concurring); State Missou ex rel. Agriculture McHenry, Department ri 687 consistently has made Commission view Missouri: Abuse Judicial (1975). assumption legally is erroneous Writ? 40 Mo.L.Rev. assumption may its jeopardize and that justi-
pending cases. These circumstances
fy the rule. issuance of absolute Court does tell authority
how should exercise its over party. as a Nor do we requiring
hold forth on the alternative to appear pre-hearing the defendant for a REED, Plaintiff-Respondent, Robert L. deposition.2 Inasmuch as an absolute rule limited, so I concur. al., Lloyd BROWN, et BILLINGS, Judge, dissenting. Defendants-Appellants. believe that Because continue to No. 67581. extraordinary use and abuse writ of Supreme Court a case such as this violates En Banc. concerning Missouri Constitution right encourages appeal, and further March corruption of this ancient but limited ex- writ, traordinary I must dissent. right statutory specifically
state and this forbid- Court tamper right appeal by
den with the Const., V,
our Constitution. Mo. art. 5.§ we, guise
And when under the of the writ prohibition, permit an interloc- allow and case,
utory appeal in a legislative closing
treading grounds and eyes to mandate.
our the constitutional
Here, it is conceded that the lower tribu- parties jurisdiction
nal has matter, and, submit,
subject requisite I rulings. Any in its err subject course
errors are to review due
through statutory right appeal. delay, hardship pro-
alleged expense and
ceeding orderly legally in an autho- justify cannot
rized fashion does
the use of for an unauthorized
interlocutory appeal. quash order. would our Kimberlin, 654 ex rel. Morasch v.
State 1983); ex rel.
S.W.2d 889 State Seier,
Hannah v. 654 S.W.2d 1983) (Billings, concurring). See
Tuchler, Discretionary Interlocutory Re (Mo.App. Donegan, Kingsley Kingsley, N.A. v. (Mo.App. S.W.2d 919 1980); Springfield, rel. State ex Charterbank