SUPREME COURT OF MISSOURI 

en banc 

STATE EX REL PATRICK 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, the plaintiff in the action below, seeks a writ of 

prohibition preventing the trial court from simultaneously trying to a jury both his own 

claims for breach of contract, quantum meruit and fraud, and the defendants’ 

counterclaim alleging he is maliciously prosecuting these three claims. This Court issued 

a preliminary writ of prohibition, which it now makes permanent. 

The trial court abused its discretion in determining 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 prosecution. This Court’s interpretation of Rule 

55.06(b) in State ex rel. General Motors Acceptance Corporation v. Standridge, 181 
S.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 the plaintiff’s claims have been disposed, it 

misinterprets Rule 55.06 and should not be followed. Like its federal counterpart and 

like the comparable joinder rules in other states, Rule 55.06 simply permits one party to 

join together all of its own claims 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 prosecution counterclaim to any of the first party’s 

claims. The trial court’s denial of Mr. O’Basuyi’s motion for separate trial, therefore, 

constituted an abuse of its discretion. 

I. STATEMENT OF FACTS 

Mr. O’Basuyi filed suit in the St. Louis County circuit court against Rodney 

Thomas, TriStar Property Associates and several other defendants (collectively “TriStar”) 

for breach of an oral contract, quantum meruit and fraudulent conveyance.1

 TriStar filed 

a two-count counterclaim for malicious prosecution, 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 for 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 element of a malicious prosecution 

 1

 Mr. Thomas and TriStar were named as defendants 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 terminated 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 separate 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 original remedial writs.” MO.

CONST. 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 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. Mo. Pub. Defender 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 separate trials for 

convenience, to avoid prejudice or to promote 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 motion 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 

3
only 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 DISCRETION 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 malicious prosecution, a party must plead and 

prove six elements: (1) commencement 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) malice 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 the 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 favor can occur at the same time as the jury 

considers the malicious prosecution claim, so long as the jury is instructed in the proper 

elements of the malicious prosecution claim. Mr. O’Basuyi argues that this is 

inconsistent with Missouri’s historical approach to trials of malicious prosecution actions 

and illogical. 

This Court agrees that it was error to order the two claims be tried together. 

“Actions for malicious prosecution have never been favorites of the law. ... Any ‘policy 

that discourages citizens from reporting crime or aiding in prosecution 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 counterclaims to be joined and 

tried with the underlying action has the potential to magnify this effect by increasing the 

4
risk that a party will be discouraged from bringing valid claims and also risks undue 

prejudice by allowing the opposing party to bring in evidence irrelevant to the first 

party’s claim. In contrast, requiring that the underlying suit terminate in favor of the 

opposing party before a malicious prosecution 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 required “strict compliance with the requisite 

elements” of a malicious prosecution claim, including the requirement that such a claim 

is not cognizable until the original underlying 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 the 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 prosecution 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 Corporation (GMAC) brought a 

collection action against a car buyer for whom GMAC had financed the purchase. 181 

5
S.W.3d at 77. The buyer filed a counterclaim for malicious prosecution and sought 

discovery. Id. GMAC dismissed its collection claim with prejudice, but the buyer 

proceeded with discovery on his counterclaim. Id. Rather than responding, GMAC 

sought a writ of prohibition, arguing that the trial court lacked jurisdiction to try the 

malicious prosecution counterclaim because it had been filed prior to the termination of 

the underlying collection action and, therefore, failed to state a claim. Id. 

This Court disagreed that the trial court was without jurisdiction to try the 

malicious prosecution counterclaim. The Court looked to the language of Rule 55.06(b), 

which provides: “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; 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 parties were determinable, once GMAC dismissed 

its claim against [him] with prejudice. 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 plaintiff’s claims. In so arguing, TriStar misreads both Standridge 

and Rule 55.06. While Standridge did allow the malicious prosecution claim to proceed, 

its reasoning does not assist TriStar. Far from approving joint trial of a plaintiff’s claim 

with a malicious prosecution counterclaim, Standridge requires denial of TriStar’s 

request for a joint trial.

6
In Standridge, by the time the writ of prohibition 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 missing prerequisite for bringing a malicious 

prosecution claim had been satisfied – plaintiff GMAC’s collection action already had 

been terminated in favor of the defendant car buyer. The Court found that no basis for 

prohibition was presented on these grounds.2

 In other words, Standridge premised its 

approval of the trial court’s refusal to dismiss the malicious prosecution counterclaim on 

the fact that the favorable termination element had been satisfied. Id. at 78 (“His claim 

became cognizable, whereby the substantive rights 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 for 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 claim was this Court’s interpretation of Rule 

 2

 The Court further held, however, that the buyer’s discovery requests were overbroad. 

Standridge, 181 S.W.3d at 78. 

7
55.06 to permit at least the filing of the malicious 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 jurisdiction and was presented to the 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 filing of a malicious prosecution 

counterclaim in the initial party’s suit, it is incorrect and no longer 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 the context of Rule 

55.06(a). Those two sections, taken together, are quite clear and do not permit the filing 

of a malicious prosecution claim as a counterclaim 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-claim, or third-party claim may join, 

either as independent or as alternate claims, as many claims, legal or 

equitable, as the party has against an opposing party. 

(b) Joinder of Remedies; Fraudulent 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. Wyciskalla, 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 refer to a trial court’s authority 

outside the context of personal or subject matter jurisdiction. 

8
but the court shall grant relief in that action only in accordance 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 sought. Rule 55.06(a) by its terms only affirms 

the right of a particular party to plead alternative, independent, legal and equitable claims 

at the same time. It says 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 party may think it will be able 

to bring in the future, such as claims for malicious prosecution. Indeed, Rule 55.06(a) 

does not so authorize. Nothing in this rule changes the traditional prohibition against 

joining a malicious prosecution claim with the underlying first party’s claim.4

Neither does Rule 55.06(b) permit joinder of malicious prosecution 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 opposing 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 claims. Titled “Joinder of Remedies: Fraudulent 

Conveyances,” it says a party can seek 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 element 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). 

9
fraudulent conveyances, may depend on first proving some other claim, such as the 

party’s right to the property conveyed. 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 prohibiting the bringing of a malicious prosecution 

action prior to the termination of the plaintiff’s suit. To the contrary, 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 consistent not only with its language and 

history but also with the interpretation given to the federal rule on which Rule 55.06 was 

based − Federal Rule of Civil Procedure 185 − which states: 

(a) In General. A party asserting a claim, counterclaim, crossclaim, 

or third-party claim may join, as independent or alternative claims, as many 

claims as it has against an opposing party. 

(b) Joinder of Contingent Claims. A party may join two claims even 

though one of them is contingent on the disposition of the other; but the 

court may grant relief only in accordance with the parties’ relative 

substantive rights. In particular, a plaintiff 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 Ins. Co., Inc. v. Murphy, 518 S.W.2d 655, 657 (Mo. banc 

1975). 6

 Prior to the 2007 amendments to Federal Rule 18(b), its language was virtually identical 

to Rule 55.06(b), Missouri’s rule having been adopted from the earlier language of the 

federal rule. See FED. R. CIV. P. 18(b) (2006) (amended 2007). The amendment notes 

indicate that the change from “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” to “A party may join two claims even though one of them is contingent on 

10
(Emphasis added). Federal Rule 18(b) was adopted simply to remove the barrier to a 

party jointly filing legal and equitable claims in a single action.7

 Advisory Committee’s 

Notes on 1937 Adoption of FED. R. CIV. P. 18(b) (“This rule is inserted to make it clear 

that in a single action a party 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 opposing 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 permissive counterclaim, since such a claim is 

premature prior to the determination 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 Notes on 2007 Amendment to FED. R. CIV. P. 

18(b). That the new language, which clearly contemplates joinder of claims by only a 

single party, did not substantively alter the rule provides further support for reading the 

Missouri rule in the same manner. 

7

 Allowing joinder of legal and equitable claims in federal courts served to eliminate 

serious inefficiencies created by this dichotomy. 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 Notes on 1937 Adoption of FED. R. CIV. P. 18(b). Missouri’s rule 

is explicit as to this purpose, 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. Supp. 2d 344, 351-52 (D. Md. 

2012) (dismissing malicious use of process counterclaim “[b]ecause the instant case has 

not terminated, much less terminated 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 

11
The vast majority of state courts that have 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, 368 So. 2d 10, 11 (Ala. 1979) 

(“any malicious prosecution claim necessarily would have to be pursued in a separate 

proceeding and not as a counterclaim 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. PAGE KEETON ET AL., PROSSER &

KEETON, THE LAW OF TORTS § 120, at 892 (5th ed. 1984) (“The termination requirement 

operates to preclude a defendant from filing a counterclaim for malicious prosecution; 

since the main claim has not terminated when the counterclaim 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 prosecution 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 cannot be maintained ‘as a counterclaim in the very suit that 

the defendant claims is vexatious’”) (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 alleged 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 that North Carolina’s Rule 18(b) 

analog permits malicious prosecution counterclaims but citing 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 was 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 counterclaim in the original proceeding”), 

12
13

 

This reasoning applies here. The trial court abused its discretion in requiring the 

trial of the TriStar’s malicious prosecution action with Mr. O’Basuyi’s claims. 

IV. CONCLUSION 

For the foregoing reasons, this Court holds that the trial court erred in permitting 

the joint trial of TriStar’s malicious prosecution counterclaim and Mr. O’Basuyi’s claims. 

Rule 55.06 does not permit either joinder or trial of a malicious prosecution counterclaim 

with the underlying claim. The writ of prohibition is made permanent.10

 ___________________________ 

 LAURA DENVIR STITH, JUDGE

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 jurisdictions identified by TriStar as permitting a malicious 

prosecution counterclaim to be filed and tried 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 (Wash. Ct. App. 2000) (legislature abrogated the termination element, 

thereby “permitting a defendant to assert a counterclaim for malicious prosecution”); see 

also WASH. REV. CODE §4.24.350(1) (West 2013); DeVaney v. Thriftway Mktg. Corp., 953 

P.2d 277, 286 (N.M. 1997), overruled 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 separate trial of the malicious prosecution 

claim, not its dismissal. That, therefore, is the extent of relief granted in this writ.