ST. JOHN’S CLINIC, INC., )

) Appellant, ) ) vs. ) No. SD32739 ) PULASKI COUNTY AMBULANCE DISTRICT, ) FILED: Janua ry 28, 2014 ) Respondent. )

APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY

Honorable David G. Warren, Judge

AFFIRMED We consider a narrow question. Did respondent Dist rict waive its sovereign immunity by submitting to the trial court’s jurisdi ction and litigating for 22 months before seeking summary judgment? 1 The trial court found no such waiver. We agree and affirm the summary judgment entered in favor of District based on sovereign immunity.

1 We refer to the parties as did the petition below, plaintiff/appellant as “St. John’s” and defendant/respondent as “District.” Public ent ities enjoy sovereign immunity except as waived, abrogated, or modified by statute

. Maune v. City of Rolla , 203 S.W.3d 802, 804 (Mo.App. 2006). It is admitted tha t District is a public entity and a political subdivision of the state.2 Background St. John’s settled a wrongful death case, then sue d District for contribution, alleging in part that “District had liability insur ance in place that provides coverage for the loss complained of herein, and thus, the Di strict has waived any sovereign immunity defense under § 537.610, RSMo.” 2 District moved, without success, to dismiss on grou nds unrelated to sovereign immunity. In answering the petition, District admi tted that it carried liability insurance but denied the other allegations quoted a bove. District sought summary judgment 22 months into th e case, claiming that its liability policy worked no waiver of sovereign immu nity. The trial court agreed. St. John’s does not challenge this finding on appeal. 3 Yet St. John’s still urges, as it did below, that District waived its sovereign immunity by voluntarily appearing, submitting to tr ial court jurisdiction, failing “to raise the defense of sovereign immunity or lack of personal jurisdiction” under Rule 55.27, and participating in litigation activities. Like the trial court, we find no merit

in these assertions.

2 Under the cited statute, District could purchase l iability insurance for tort claims and, thereby, waive sovereign immunity “only to the maximum amount of and only for the purposes covered by such policy of insuranc e ....”

3 “A public entity does not waive its sovereign immu nity by maintaining an insurance policy where that policy includes a provision stati ng that the policy is not meant to constitute a waiver of sovereign immunity.” Langley v. Curators of Univ. of Mo. , 73 S.W.3d 808, 811 (Mo.App. 2002). See also State ex rel. Bd of Trustees v. Russell , 843 S.W.2d 353, 360 (Mo. banc 1992); Brooks v. City of Sugar Creek , 340 S.W.3d 201, 208 (Mo.App. 2011). District’s p olicy was of this type.3 Legal Principles Our review of a grant of summary judgment is esse ntially de novo

. Maune , 203 S.W.3d at 804. “One way that a defendant can p rove a right to summary judgment is by showing that, after an adequate peri od of discovery, the plaintiff is and will remain unable to produce evidence sufficie nt to establish any one of the plaintiff’s required elements.” Id. (citing ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp ., 854 S.W.2d 371, 381 (Mo. banc 1993)).

Sovereign Immunity Not “Jurisdictional” St. John’s argues that sovereign immunity is a matt er of personal jurisdiction. Objections to the latter are waived unless raised u nder Rule 55.27 or by responsive pleading. In re Marriage of Berry , 155 S.W.3d 838, 841 (Mo.App. 2005). Because District never objected to personal jurisdi ction, but appeared generally and defended the case for months, St. John’s contends t hat District waived its sovereign immunity. Modern precedent is to the contrary.

“Prior to J.C.W. ex rel. Webb v. Wyciskalla , 275 S.W.3d 249 (Mo.2009), the limitation on a court's legal ability to act as con ferred by statute or rule was often referred to as a lack of jurisdiction.” Belfield v. State , 307 S.W.3d 680, 682 n.3 (Mo.App. 2010). This observation fits decades-old cases cited by St. John’s, 4 but we are now guided and bound by new post- J.C.W. jurisprudence. Our supreme court’s stated task in J.C.W. was “to bring down to earth and clarify the meaning of the magical word ‘jurisdicti on.’” 275 S.W.3d at 251. “The

4 Primarily State ex rel. Eagleton v. Hall , 389 S.W.2d 798 (Mo. banc 1965), and Kleban v. Morris , 247 S.W.2d 832 (Mo. 1952). Notably, no waiver of sovereign immunity was found in either of these cases.4

problem with a word with such magic is, sadly, that it will be over used, as it is in cases such as the present case.” Id. at 252. Personal jurisdiction, in modern terms, refers simply to a court’s power “to require a pers on to respond to a legal proceeding that may affect the person’s rights or interests.” Id . at 252-53. A circuit court able to render a judgment that binds the parties “has perso nal jurisdiction.” Id . at 254. St. John’s theory of personal jurisdiction thus run s afoul of J.C.W. – our supreme court’s latest controlling precedent – and its progeny. Simply put, St. John’s errs in portraying sovereign immunity as jur isdictional.

Sovereign Immunity Not a “Defense” Subject to Rule 55.27 Waiver “Sovereign immunity is not an affirmative defense b ut is part of the plaintiff’s prima facie case.” Shifflette v. Missouri Dept. of Nat. Resources , 308 S.W.3d 331, 334 (Mo.App. 2010). This is well settled. Maune , 203 S.W.3d at 804. 5 St. John’s burden as plaintiff was “to establish a sove reign immunity waiver as part and parcel of any pleaded theory against [District].” Id . The trial court properly entered summary judgment because St. John’s could not prove this element of its prima facie case.

5 See also Richardson v. City of St. Louis , 293 S.W.3d 133, 137 (Mo.App. 2009) (“Missouri courts have routinely held that sovereig n immunity is not an affirmative defense”); Townsend v. Eastern Chemical Waste Systems , 234 S.W.3d 452, 470 (Mo.App. 2007) (“it is well settled in Missouri tha t sovereign immunity is not an affirmative defense”). Not surprisingly, sovereign immunity is not among 23 affirmative defenses listed in Rule 55.08, as St. John’s concede s. Rule 55.27, which St. John’s repeatedly cites, addresses the requirement to time ly assert defenses (or objections) by pleading or motion.5 Sovereign Immunity Not Waived by Discovery or Case Participation Finally, we reject St. John’s claim that District waived sovereign immunity by engaging in discovery and other litigation activity . To quote the trial court:

The Supreme Court of Missouri has unambiguously sta ted that “a ‘defending party’ may establish a right to judgment by showing . . . that the non-movant, after an adequate period of discovery , has not been able to produce, and will not be able to produ ce, evidence sufficient to allow the trier of fact to find the e xistence of any one of the claimant’s elements . . . .” ITT Comm Fin. Corp. , 854 S.W.2d at 381 (emphasis added in part, original in part). Th e Court will not hold [District]’s participation in this case agains t it. St. John’s cites no cases that would compel a diffe rent result. 6 Conclusion St. John’s sole point fails. Summary judgment w as proper because St. John’s did not show that it could offer proof that Distric t waived its sovereign immunity, a required element of St. John’s prima facie case. Judgment affirmed.

DANIEL E. SCOTT, J. – OPINION AUTHOR NANCY STEFFEN RAHMEYER, P.J. – DISSENTS IN SEPARATE OPINION WILLIAM W. FRANCIS, JR., C. J. – CONCURS

6 St. John’s also proffers a theory of waiver/estopp el based on District’s allegedly inaccurate or incomplete discovery response as to i ts insurance coverage. We do not find this claim persuasive in light of established law and St. John’s inability to cite a supporting case. In any event, this argument lies outside of St. John’s stated point on appeal and fails on that basis alone. See J.L.M. v. R.L.C., Jr. , 132 S.W.3d 279, 290 n.8 (Mo.App. 2004).1

ST. JOHN’S CLINIC, INC., ) ) Appellant, ) ) vs. ) No. SD32739 ) PULASKI COUNTY AMBULANCE DISTRICT, ) FILED: January 28, 2014 ) Respondent. )

APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY

Honorable David G. Warren, Judge

DISSENT I respectfully dissent. The majority opinion finds that the District cannot procedurally waive its sovereign immunity because it is not “per sonal jurisdiction” as discussed in J.C.W. ex rel. Webb v. Wyciskalla , 275 S.W.3d 249 (Mo. banc 2009). As this is a case of first impression, 1 the facts of this case demonstrate why Rule 55.27(g )(1)(A) 2 should a pply with the result that the District waived any defense it had based on lack of personal jurisdiction and sovereign

1 I say first impression because, as the majority poi nts out, sovereign immunity has been called an element of plaintiff’s case in chief, but it has also been called “personal jurisdiction,” which at least implies that it is a defense.

2 All rule references are to Missouri Court Rules (20 13). All references to statutes are to RSMo 2000, unless otherwise indicated.2

immunity. As noted in the majority opinion, the Di strict could purchase liability insurance for tort claims and waive sovereign immunity pursuant t o section 537.610. In this case, during discovery, St. John’s requested information concern ing the District’s purchase of liability insurance. The District produced an insurance poli cy declarations page which indicated that it had purchased a liability policy that did not inclu de a provision stating the policy is not meant to constitute a waiver of sovereign immunity. At no t ime during the nearly two years of litigation and the filing of answers and motions to dismiss, d id the District ever indicate it had provided the wrong declarations page and that St. John’s had bee n misled, up until the time the summary judgment motion was filed. While there is no evidence of any intent to deceiv e, or an explanation for the production of the inaccurate declarations page, the District a rgues that even if the case had been tried to its conclusion, the judgment could be attacked as void. The District contends that it could produce the policy at any time because while it is not subj ect matter jurisdiction or personal jurisdiction

per J.C.W. , it is its own unique type of jurisdiction. I bel ieve that does not comport with the holding of J.C.W. , and that sovereign immunity is included in person al jurisdiction. The rationale behind personal jurisdiction is that the court may not require a person to respond to a legal proceeding without personal jurisdiction unle ss the person consents to the court’s jurisdiction and consent may come about in many way s. Most importantly to this case, the person may consent to the jurisdiction of the court and the consent may come about procedurally, as well as substantively. Rule 55.27 provides some of those methods. Whether the District purchased a liability policy and the terms of the p olicy were exclusively within the District’s knowledge, just as the knowledge whether the proper person had been served under Rule 55.27(g)(1)(B) and (C), is within the exclusive kno wledge of the defendant. It seems to be that3

the better-reasoned policy is that sovereign immuni ty is a defense and must be raised as a defense at the earliest opportunity.

I would reverse the trial court because the Distri ct waived any claim it had to sovereign immunity, and allow the case to proceed.

Nancy Steffen Rahmeyer, P.J. - Dissenting Opinion A uthor