State Ex Rel. T.W. v. Ohmer, 133 S.W.3d 41

State Ex Rel. T.W. v. Ohmer

133 S.W.3d 41

Mo.

2004

Check Treatment

STATE ex rel. T.W., Relator, v. The Honorable Steven R. OHMER, Judge, Respondent.

No. SC 85631

Supreme Court of Missouri, En Banc.

March 30, 2004

Rehearing Denied May 25, 2004.

133 S.W.3d 41

prices: 1) to resist lowering its prices; or 2) to lower its prices. In my view, both choices injure the competitor. If a competitor resists lowering its prices, it will be injured by losing business to QuikTrip, which is a claim that falls under the clause “to unfairly divert trade.” On the other hand, if a competitor lowers its prices in response to QuikTrip, the competitor will lose profits and in that way is otherwise injured. In this case, it is undisputed that QuikTrip‘s competitors have routinely and immediately reduced their own fuel prices to correspond to QuikTrip‘s below cost pricing, and I would hold that each corresponding reduction is sufficient proof of injury.

As I understand the majority opinion, the clause “or otherwise injure a competitor” can only be invoked where a competitor is forced to lower its fuel price below its own costs so that “the competitor is in effect forced to operate its over-all business at a loss.” This interpretation is based not on the plain meaning of the word “injure,” but the majority‘s own policy determination that if “injure” were broadly interpreted, the statute could “greatly diminish or eliminate the competition in the sale of motor fuel and, thus, create a state-enforced cartel of motor fuel sellers.” If we are to consider policy, however, the real policy behind the Act, as this Court noted in Ports Petroleum Co. of Ohio v. Nixon, 37 S.W.3d 237, 241 (Mo. banc 2001), is to prevent predatory pricing, which otherwise would drive competitors from the market and allow the formation of monopolies, which results in higher prices in the long run. Conversely, the majority policy analysis would encourage price wars among competitors, which only result in lower prices in the short run.

In any event, I would base the opinion on the fact that the clause “or otherwise injure a competitor” is all-inclusive and necessarily addresses all injuries suffered, to whatever extent. As such, the clause covers not only those instances where a competitor is forced to lower its fuel prices below its own costs, but also those instances where a competitor is forced to lower its fuel prices to any degree. Even where a competitor lowers its prices to a level that does not fall below its own costs, there still is an injury due to a reduction in profits.

That said, I agree that not every below cost sale violates the Act. For example, if, as the majority asserts, prices were publicly posted only to the nearest one-tenth of a cent per gallon, then price reductions below one-tenth of a cent per gallon do not injure a competitor because there is no need for the competitor to make a corresponding reduction in price. In this case, however, the record does not clearly indicate which of the 23 below cost prices in question were posted to one-tenth of a cent per gallon or more. For that reason, I, too, would reverse the judgment, but only to remand for further fact-findings.

Kayla Vaughan, Chris E. Rollins, St. Louis, Mark H. Kruger, Clayton, for Relator.

Jeremiah W. (Jay) Nixon, Atty. Gen., Gary L. Gardner, Asst. Atty. Gen., Jefferson City, Thad Hollie, Jr., Rita M. Montgomery, Karen A. Dill, Donna L. Head, Susan C. Guerra, R. Jeff Childress, Division of Legal Services, Patricia A. Hageman, Edward J. Hanlon, St. Louis, Bernhardt W. Klippel, III, Clayton, for Respondent.

Bryan L. Hettenbach, Town & Country, for Guardian ad Litem.

RICHARD B. TEITELMAN, Judge.

Relator seeks a writ of prohibition barring respondent from taking any further action other than to set aside his “Order, Judgment and Decree of Adoption” concerning the minors K.A.W. and K.A.W.

Relator is the natural mother of K.A.W. and K.A.W. On December 11, 2002, respondent entered a judgment terminating relator‘s parental rights as to K.A.W. and K.A.W., and relator appealed.¹ While the appeal was pending, respondent proceeded with the adoption of K.A.W. and K.A.W. by their foster parents, entering his “Order, Judgment and Decree of Adoption” on April 18, 2003.

A parent whose rights as to a child have been terminated has the right to appeal. In the Interest of M.E.W., 729 S.W.2d 194 (Mo. banc 1987); see sec. 453.011.2.² Proceeding with adoption while the termination is reviewed on appeal compromises the parent‘s right to appellate review by requiring, as an effective precondition to reversal of the termination, that the appellate court be prepared to address a separate adoption proceeding. In re J.K., 468 Mich. 202, 661 N.W.2d 216, 225 (2003); see sec. 453.160.

“The extraordinary remedy of a writ of prohibition is appropriate in one of three circumstances: (1) to prevent the usurpation of judicial power when the trial court lacks jurisdiction; (2) to remedy a 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. Proctor v. Bryson, 100 S.W.3d 775, 776 (Mo. banc 2003). It is an abuse of discretion and a circuit court lacks the power to proceed with adoption of a child who has been the subject of a termination of parental rights while an appeal of the judgment terminating parental rights is pending.

The preliminary writ is made absolute. Respondent is ordered to set aside his “Order, Judgment and Decree of Adoption” concerning the minors K.A.W. and K.A.W.

WHITE, C.J., WOLFF and STITH, JJ., concur.

PRICE, J., concurs in separate opinion filed.

BENTON and LIMBAUGH, JJ., concur in opinion of PRICE, J.

WILLIAM RAY PRICE, JR., Judge, concurring.

Missouri statutes 211.447.8 and 453.040(8), RSMo 2000, provide that actions for termination of parental rights and adoption may be combined in one proceeding. Should a party appeal a judgment terminating parental rights, the judgment of adoption should be stayed pending the outcome of the appeal. See Rule 120.01(b).

Although I do not agree with the majority in its decision to reverse and remand the trial court‘s judgment terminating parental rights in In the Interest of K.A.W., K.A.W., No. SC85683, 2004 WL 616342, 133 S.W.3d 1 (Mo. banc Mar.30, 2004), the effect of that outcome must be to set aside the adoption action as well. For this reason, I concur in the result of the majority decision to issue the writ.

Notes

T.W.‘s direct appeal of the termination of her parental rights was argued before this Court concurrently with this writ. See In the Interest of K.A.W., K.A.W., 2004 WL 616342, (No. SC85683, decided March 30, 2004). A.W., the natural father, consented to termination of his parental rights and did not appeal.

All statutory references are to RSMo 2000.