# SUPREME COURT OF MISSOURI en banc

STATE EX REL PATRIC K J. O’BASUYI, ) ) Relator, ) ) vs. ) No. SC93652 ) THE HONORABLE DAVID LEE ) VINCENT, III, ) ) Respondent. ) ORIGINAL PROCEEDING IN PROHIBITION Opinion issued June 24, 2014 Relator Patrick O’Basuyi, th e plaintiff in the action below, seeks a writ of prohibition preventing the tria l court from simultaneously tryi ng to a jury both his own claims for breach of contract, quantum meru it and fraud, and the defendants’ counterclaim alleging he is ma liciously prosecuting these thr ee claims. This Court issued a preliminary writ of prohibition, which it now makes permanent. The trial court abused its discretion in de termining that Rule 55.06, which governs joinder of claims, authorized its denial of Mr . O’Basuyi’s motion for separate trial of the malicious prosecution claim. Rule 55.06 did not change Missouri’s long-settled law that a party’s claim must be terminated in favor of the opposing party before the opposing party may try a claim for malicious prosecutio n. This Court’s interpretation of Rule 55.06(b) in State ex rel. General Motors Accept ance Corporation v. Standridge, 181S.W.3d 76 (Mo. banc 2006) , is not to the contrary. But, to the extent that Standridge appears to interpret Rule 55.06 to authorize the filing of a contingent malicious prosecution counterclaim to be tried after th e plaintiff’s claims have been disposed, it misinterprets Rule 55.06 and sh ould not be followed. Like its federal counterpart and like the comparable joinder rule s in other states, Rule 55.06 simply permits one party to join together all of its own cl aims against an opposing party, even if those claims are not related to each other. Nothing in the rule authorizes the opposing party to file, much less try in the same action, a malicious prosecuti on counterclaim to any of the first party’s claims. The trial court’s deni al of Mr. O’Basuyi’s motion fo r separate trial, therefore, constituted an abuse of its discretion.
I. STATEMENT OF FACTS Mr. O’Basuyi filed suit in the St. Loui s County circuit court against Rodney Thomas, TriStar Property Associates and severa l other defendants (collectively “TriStar”) for breach of an oral contract, quant um meruit and fraudulent conveyance. 1 TriStar filed a two-count counterclaim for malicious prosec ution, alleging that the underlying claims are meritless and that Mr. O’Basuyi filed his action in bad faith for the purpose of harassing the defendants and in retaliation fo r prior lawsuits in which the defendants obtained judgments against Mr. O’Basuyi. Mr. O’Basuyi filed a Rule 66.02 motion for separate trial of the defendants’ counterclaims. In support, he noted that an essential el ement of a malicious prosecution

1 Mr. Thomas and TriStar were named as de fendants to all three counts, while the additional defendants were named only in the third count alleging fraudulent transfer.claim is that the original plaintiff’s claim be term inated in favor of the defendant, which means that a malicious prosecution claim is not cognizable until after the determination of the underlying claim. Mr. O’Basuyi argued that trying the two claims together and simply instructing the jury as to the contingent nature of the malicious prosecution action would be confusing to the jury and unduly prejudicial to him. Accordingly, he requested

severance. The trial court overruled the motion for sepa rate trial. Mr. O’Basuyi seeks a writ of prohibition. This Court issued its preliminary writ.
II. STANDARD OF REVIEW This Court has the authority to “issue and determine or iginal remedial writs.” M O

. C ONST . art. V, § 4.1; see also Rule 97.01. The extraordinary remedy of a writ of prohibition is available: (1) to prevent the usurpation of judicial powe r when the trial c ourt lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks th e power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted. State ex rel. Mo. Pub. Defend er Comm’n v. Waters, 370 S.W.3d 592, 603 (Mo. banc 2012) (internal citation omitted)

. Rule 66.02 grants the trial court broad discretion to order se parate trials for convenience, to avoid prejudice or to promot e judicial economy. Rule 66.02; In re Competency of Parkus, 219 S.W.3d 250, 253 (Mo. banc 2007). The trial court’s decision to grant or deny a mo tion for separate trial will not be disturbed absent abuse of that discretion. Parkus, 219 S.W.3d at 253. “Judicial discretion will be found to be abused

3onl y when the ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice.” Id.
III. THE TRIAL COURT ABUSED ITS DISC RETION UNDER RULE 66.02 IN DENYING MR. O’BASUYI’S MOTION FOR SEPARATE TRIAL OF THE MALICIOUS PROSECTION COUNTERCLAIM To establish a prima facie claim for malic ious prosecution, a party must plead and prove six elements: (1) commencem ent of an earlier suit against the party; (2) instigation of that suit by the adverse party; (3) termination of the suit in the party’s favor ; (4) lack of probable cause for filing the suit; (5) mali ce by the adverse party in initiating the suit; and (6) damage sustained by the party as a result of the suit. Edwards v. Gerstein, 237 S.W.3d 580, 582-83 (Mo. banc 2007). In contention here is th e third element, requiring “termination of the suit in the party’s favor.” TriStar effectively argues that termination of the plaintiff’s suit in the defendant’s fa vor can occur at the sa me time as the jury considers the malicious prosecution claim, so lo ng as the jury is instructed in the proper elements of the malicious prosecution clai m. Mr. O’Basuyi argues that this is inconsistent with Missouri’s historical approach to trials of malici ous prosecution actions and illogical. This Court agrees that it wa s error to order the two cl aims be tried together. “Actions for malicious prosecut ion have never been favorites of the law. ... Any ‘policy that discourages citizens from reporting crim e or aiding in pr osecution would be undesirable and detrimental to society in general.’” Sanders v. Daniel Int’l Corp., 682 S.W.2d 803, 806 (Mo. banc 1984). Permitting malicious counterc laims to be joined and tried with the underlying actio n has the potential to magnify this effect by increasing the

4risk that a party will be discouraged from br inging valid claims and also risks undue prejudice by allowing the oppo s ing party to bring in eviden ce irrelevant to the first party’s claim. In contrast, requiring that th e underlying suit terminate in favor of the opposing party before a malicious prosecuti on claim can be brought avoids the needless filing of suit by an opposing party who is not successful in the initial action. See Babb v. Superior Court, 479 P.2d 379, 382-83 (Cal. 1971) (discussing the purpose of the favorable termination element). For these reasons, Missouri long has require d “strict compliance with the requisite elements” of a malicious prosec ution claim, including the re quirement that such a claim is not cognizable until the original underlyi ng suit has been prosecuted to a conclusion favorable to the party raising the malicious prosecution claim, because until that time the requirement that there be a termination of th e prior suit in the party’s favor cannot be satisfied. See Edwards, 237 S.W.3d at 582-83 (so stating); Sanders, 682 S.W.2d at 807 (identifying favorable termination as a required element); Stafford v. Muster, 582 S.W.2d 670, 675 (Mo. banc 1979) (same). Here, TriStar contends that the adoption of the current version of Rule 55.06 in
1973 changed this traditional rule and expressly permits the joint trial of a plaintiff’s claim with a defendant’s malicious prosecutio n counterclaim. In support, it cites this Court’s decision in Standridge, 181 S.W.3d at 77-78 . Nothing in the language of Rule
55.06 or Standridge , however, authorizes such a joint trial.
In Standridge , General Motors Acceptance Co rporation (GMAC) brought a collection action against a ca r buyer for whom GMAC had financed the purchase. 181

5S.W. 3d at 77. The buyer filed a counterclaim for malicious prosecu tion and sought discovery. Id. GMAC dismissed its collection claim with prejudice, but the buyer proceeded with discover y on his counterclaim. Id. Rather than responding, GMAC sought a writ of prohibition, arguing that th e trial court lacked ju risdiction to try the malicious prosecution countercla im because it had been filed prior to the termination of the underlying collection action and, th erefore, failed to state a claim. Id. This Court disagreed that the trial cour t was without jurisd iction to try the malicious prosecution counterclaim. The Cour t looked to the language of Rule 55.06(b), which provides: “Whenever a claim is one he retofore cognizable only after another claim has been prosecuted to a conclusion, the two cl aims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties.” The Court held that the defendant’s “claim became cognizable, whereby the substantive rights of the partie s were determinable, once GMAC dismissed its claim against [him] with pr ejudice. The circuit court had jurisdiction to rule on the disputed discovery requests ....” Standridge, 181 S.W.3d at 78 . The Court, therefore, allowed the malicious prosecution counterclaim to proceed. Id. TriStar argues that the reasoning in Standridge similarly permits its claims to be jointly tried with the plain tiff’s claims. In so argu ing, TriStar misreads both Standridge and Rule 55.06

. While Standridge did allow the malicious pros ecution claim to proceed, its reasoning does not assist TriStar. Far fro m approving joint trial of a plaintiff’s claim with a malicious prosecution counterclaim, Standridge requires denial of TriStar’s request for a joint trial.

6In Standri dge , by the time the writ of prohi bition was sought, GMAC had dismissed its collection action with prejudice. 181 S.W.3d at 77. This meant that when the case came before this Court, the miss ing prerequisite for bringing a malicious prosecution claim had been satisfied – plai ntiff GMAC’s collection action already had been terminated in favor of the defendant car buyer. The C ourt found that no basis for prohibition was presented on these grounds. 2 In other words, Standridge premised its approval of the trial court’s re fusal to dismiss the malicious prosecution counterclaim on the fact that the favorable termin ation element had been satisfied. Id. at 78 (“His claim became cognizable, whereby the substantive right s of the parties were determinable, once GMAC dismissed its claim against [the defendant] with prejudice.”). Accordingly, nothing in Rule 55.06 or Standridge can be taken to abrogate the longstanding rule that a malicious prosecution claim cannot be tried with the plaintiff’s underlying claim. See, e.g., John Deere Co. of St. Louis v. Short, 378 S.W.2d 496, 502 (Mo. 1964) (“No claim for malicious prosecution fo r the filing of this action could accrue to [defendant] until this suit terminated in his favor ....”) ; Zickel v. Knell, 210 S.W.2d 59, 60 (Mo. 1948) (“[N]o cause of action for malicious prosecution for the filing of this action by plaintiff then existed, or does now exist, or could ever accrue to defendants until this suit terminated in their favor.”). TriStar nonetheless argues that implicit in Standridge ’s authorization of the continuation of the malicious prosecution clai m was this Court’s interpretation of Rule

2 The Court further held, howe ver, that the buyer’s discovery requests were overbroad. Standridge, 181 S.W.3d at 78.
755.06 to permit at least the filing of the m alicious prosecution action as a counterclaim even while the plaintiff’s claim was still pending. Otherwise, it argues, the Standridge Court simply would have dismissed the whole action. This precise question never was raised in Standridge , however, as the issue before it was cast in terms of jurisd iction and was presented to th e Court only after the prior claim had terminated in the defendant’s favor. 3 But, to the extent that Standridge can be read to hold that Rule 55.06 authorizes the provisional f iling of a malicious prosecution counterclaim in the initial party’ s suit, it is incorrect and no lo nger should be followed. Any misinterpretation of Rule 55.06 in Standridge may have resulted from trying to understand the language of Rule 55.06(b) without considering it in th e context of Rule 55.06(a). Those two sections, taken together, are quite clea r and do not permit the filing of a malicious prosecution claim as a countercla im in a party’s original action, much less allow a trial of these claims together. Rule 55.06(a) and (b) state: (a) Joinder of Claims. A party asserting a claim to relief as an original claim, counterclaim, cross-cl aim, or third-party claim may join, either as independent or as altern ate claims, as many claims, legal or equitable, as the party has agai nst an opposing party

. (b) Joinder of Remedies; Fraudu lent Conveyances. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action;

3 This Court held in J.C.W. ex rel. Webb v. Wycisk alla, 275 S.W.3d 249, 253-54 (Mo. banc 2009) , that the jurisdiction of the trial courts (i.e., personal and subject matter jurisdiction) is established by the Missouri Constitution, and so it cannot be altered based on changing civil procedure rules. Webb governs to the extent that prior cases, including Standridge , inconsistently used the term “jurisdiction” to refe r to a trial court’s authority outside the context of personal or subject matter jurisdiction. 8but the court shall grant relief in that action only in ac cordance with the relative substantive rights of the parties

.... (Emphasis added). As is self-evident, Rule 55.06(a) sets out claims that can be joined, while Rule 55.06(b) addresses remedies that can be sou ght. Rule 55.06(a) by its terms only affirms the right of a particular party to plead altern ative, independent, legal and equitable claims at the same time. It sa ys that “a party” may join all the claims of any such type that “the party has against an opposing party.” It nowhere says that this authorizes the opposing party also to join any contingent claims that the opposing pa rty may think it will be able to bring in the future , such as claims for malicious pr osecution. Indeed, Rule 55.06(a) does not so authorize. Noth ing in this rule changes th e traditional prohi bition against joining a malicious prosecution claim with the underlying first party’s claim. 4 Neither does Rule 55.06(b) permit joinder of malicious prosecu tion counterclaims. It does not expand the types of claims that may be joined beyond those set out in Rule 55.06(a), and it does not state that an opposi ng party’s contingent claims can be joined with the first party’s claims. Rather, Rule 55.06(b) clarifies the remedies that may be available to the party bringing multiple clai ms. Titled “Joinder of Remedies: Fraudulent Conveyances,” it says a party can se ek all of the remedies to which that party may be entitled in one action, even though the right to some remedies, such as those for

4 See, e.g., Edwards, 237 S.W. 3d at 582-83 (naming favorable termination of the underlying action as an essential elemen t of a malicious prosecution claim); Sanders, 682 S.W.2d at 807 (same); Stafford, 582 S.W.2d at 675 (same); Huffstutler v. Coates, 335 S.W.2d 70, 73 (Mo. 1960) (same); Higgins v. Knickmeyer-Fleer Realty & Inv. Co., 74 S.W.2d 805, 812 (Mo. 1934) (same). 9fraudulent conveya nces, may depend on firs t proving some other claim, such as the party’s right to the property co nveyed. Rule 55.06(b ) (“For example, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to him, without first having obtained a judgment establishing the claim for money.”). Rule 55.06(b) does not overrule prior cases prohib iting the bringing of a malicious prosecution action prior to the termination of the plainti ff’s suit. To the cont rary, it explicitly says that despite the liberalizing of the joinder rules, “ the court shall grant relief in that action only in accordance with the relative substantive rights of the parties .” Rule 55.06(b) (emphasis added). This understanding of Rule 55.06 is c onsistent not only with its language and history but also with the inte rpretation given to the federal rule on which Rule 55.06 was based

− Federal Rule of Civil Procedure 18 5

− which states: (a) In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as indepe ndent or alternative claims, as many claims as it has agains t an opposing party. (b) Joinder of Contingent Claims. A party may join two claims even though one of them is contingent on the dis position of the other; but the court may grant relief only in accordance with the parties’ relative substantive rights. In particular, a pl aintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money. 6

5 See State ex rel. Farmers In s. Co., Inc. v. Murphy, 5 18 S.W.2d 655, 657 (Mo. banc 1975). 6 Prior to the 2007 amendments to Federal Rule 18(b), its la nguage was virtually identical to Rule 55.06(b), Missouri’s rule having been adopted from the earlier language of the federal rule. See F ED

. R. C IV

. P. 18(b) (2006) (amended 2007). The amendment notes indicate that the change from “Whenever a clai m is one heretofore cognizable only after another claim has been prosecuted to a conclu sion, the two claims may be joined in a single action” to “A party may join two claims even though one of them is contingent on 10(Em phasis added). Federal Rule 18(b) was ad opted simply to rem ove the barrier to a party jointly filing lega l and equitable claims in a single action. 7 Advisory Committee’s
Notes on 1937 Adoption of F ED

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. P. 18(b) (“This rule is inserted to make it clear that in a single action a part y should be accorded all the relief to which he is entitled regardless of whether it is legal or equitable or both.”). The federal courts consistently have interpreted Federal Rule 18 to exclude malicious prosecution counterclaims brought by an op posing party. See, e.g., In re Solv-Ex Corp. Sec. Litig., 198 F. Supp. 2d 587, 597 (S.D.N .Y. 2002), quoting Harris v. Steinem, 571 F.2d 119, 124 (2d Cir. 1978) (“a claim in the nature of malicious prosecution, which arises out of the bringing of the main action, generally cannot be asserted either as a compulsory or a perm issive counterclaim, since such a claim is premature prior to the determ ination of the main action”). 8

the disposition of the other” was intended to be stylistic only and to avoid “any uncertainty whether Rule 18(b)’s meaning is fixed by retrospective inquiry from some particular date.” See Advisory Committee’s Note s on 2007 Amendment to F ED

. R. C IV

. P. 18(b). That the new language, which clearly cont emplates joinder of claims by only a single party, did not substantively alter the rule provides further su pport for reading the Missouri rule in the same manner. 7 Allowing joinder of legal and equitable clai ms in federal courts served to eliminate serious inefficiencies created by this dic hotomy. Prior to the rule’s adoption, for example, a mortgage lender was required to sue in law to foreclose on a property and then sue separately in equity to obtain a deficiency judgment for the balance owed. See Advisory Committee’s Note s on 1937 Adoption of F ED

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. P. 18(b). Missouri’s rule is explicit as to this pur pose, stating that a party may join “as many claims, legal or equitable, ” as the party has against its opponent. Rule 55.06(a) (emphasis added). 8 See also Metro Media Entm’t, LLC v. Steinruck, 912 F. S upp. 2d 344, 351-52 (D. Md. 2012) (dismissing malicious use of process coun terclaim “[b]ecause the instant case has not terminated, much less termin ated in favor of Defendant, such a claim could not be viable here”); Sec. Serv. Fed. Credit Union v. First Am. Mortg. Funding, LLC, 2009 WL 11The vast m ajority of state courts that ha ve addressed this issue are in accord and require prior litigation to terminate in favor of defendant before a suit may be filed or tried for malicious prosecution. See, e.g., King v. Sikora, 36 8 So. 2d 10, 11 (Ala. 1979) (“any malicious prosecution claim necessarily would have to be pursued in a separate proceeding and not as a counterc laim in the instant case”); Anello v. Vinci, 458 A.2d 1117, 1120 (Vt. 1983) (reversing trial court’s judgment for defendant in malicious prosecution counterclaim “to ensure that such actions not be interposed in the original action on which such claims are based”); see also W. P AGE K EETON ET AL ., P ROSSER &
K

EETON , T HE L AW OF T ORTS § 120, at 892 (5th ed. 1984) (“The termination requirement operates to preclude a defendan t from filing a counterclaim for malicious prosecution; since the main claim has not te rminated when the c ounterclaim is filed, the counterclaim is premature and subject to dismissal ....”). 9

3158161, at *3 (D . Colo. 2009) (unreported) (holding that “Defendants’ invocation of Rule 18(b) to join their malicious prosec ution claim oversteps the rule’s intended purpose”); Kaltman-Glasel v. Dooley, 156 F. Supp. 2d 225, 226 (D. Conn. 2001) (“a claim for vexatious litigation cann ot be maintained ‘as a counte rclaim in the very suit that the defendant claims is vexati ous’”) (internal citation omitted); Merrill Lynch Futures, Inc. v. Miller, 686 F. Supp . 1033, 1044 (S.D.N.Y. 1988) (stating a malicious prosecution claim “cannot be asserted as a counterclaim in the very action allege d to be malicious”). But see Schwartz v. Coastal Physician Grp., Inc., 172 F.3d 63, 1999 WL 89037, at *4 (10th Cir. Feb. 23, 1999) (unpublished opinion asserting th at North Carolin a’s Rule 18(b) analog permits malicious pros ecution counterclaims but citi ng for that proposition a case permitting joinder of an indemnity claim and a case remanding for consideration of a malicious prosecution counterclaim after a directed verdict wa s entered in the defendant’s favor). 9 Accord Canal Ins. Co. v. Cambron, 242 S.E.2d 32, 38 (Ga. 1978) ; Pepperell Trust Co. v. Mountain Heir Fin. Corp., 708 A.2d 651, 656 (Me. 1998); First Bank (N.A.)-Billings v. Clark, 771 P.2d 84, 90 (Mont. 1989) (“an action for malicious prosecution may not be asserted by way of a cross complaint or co unterclaim in the or iginal proceeding”),
1213 This reasoning applies here. The trial c ourt abused its discretion in requiring the trial of the TriStar’s malicious prosecu tion action wit h Mr. O’Basuyi’s claims.
IV. CONCLUSION For the foregoing reasons, this Court holds that the tria l court erred in permitting the joint trial of TriStar’s malicious prosecu tion counterclaim and Mr. O’Basuyi’s claims. Rule 55.06 does not permit either joinder or trial of a malic ious prosecution counterclaim with the underlying claim. The writ of prohibition is made permanent. 10

____ _______________________ L AURA D ENVIR S TITH , J UDGE All concur.

overruled on other grounds by Jacobsen v. Allstate Ins. Co., 215 P.3d 649, 664 (Mont. 2009) ; Penwag Prop. Co., Inc., v. Landau, 388 A.2d 1265, 1266 (N.J. 1978)

. The only two jurisdicti ons identified by TriStar as permitting a malicious prosecution counterclaim to be filed and tr ied along with the underlying action are based on entirely distinct statutory or case law and are not on point. See, e.g., Hanson v. Estell, 997 P.2d 426, 430 (W ash. Ct. App. 2000) (legislature abrogated th e termination element, thereby “permitting a defendant to assert a counterclaim for malicious prosecution”); see also W ASH

. R EV

. C ODE §4.24.350(1) (West 2013) ; DeVaney v. Thriftway Mktg. Corp., 953 P.2d 277, 286 (N.M. 1997), o verruled on other grounds by Durham v. Guest, 204 P.3d 19, 26 (N.M. 2009) (eliminating the requirement that the prior suit terminate favorably to defendant by subsuming the tort of malicious prosecution into the more general tort of malicious abuse of process). 10 The relief sought in the writ petition is a se parate trial of the malicious prosecution claim, not its dismissal. That, therefore, is the extent of relief granted in this writ.