               SUPREME COURT OF MISSOURI
                                        en banc
STATE OF MISSOURI ex rel.                     )          Opinion issued July 28, 2020
WOODCO, INC.,                                 )
                                              )
               Relator,                       )
                                              )
v.                                            )          No. SC98227
                                              )
THE HONORABLE JENNIFER                        )
PHILLIPS,                                     )
                                              )
               Respondent.                    )


                     ORIGINAL PROCEEDING IN PROHIBITION

       Woodco Inc. seeks a writ of prohibition prohibiting the circuit court from ordering

certain defendants to be joined as “necessary” parties. Because Rule 52.04(a) does not

mandate the added defendants be joined, the circuit court’s action in sustaining motions

seeking their joinder constituted an abuse of discretion, and the circuit court did not have

the authority to require joinder. This Court makes permanent its preliminary writ of

prohibition.

                                        Background

       This case concerns contracts among multiple parties involved in the design and

construction of the Gardens at Jackson Creek (“Project”), an independent senior living
facility. The owner of the Project contracted with Williams Spurgeon Kuhl & Freshnock

Architects (“architect”). The architect entered into a contract with Bob D. Campbell &

Co. (“structural engineer”). The owner of the Project also entered into a contract with

Woodco to serve as the general contractor for construction of the Project. As the general

contractor, Woodco then entered into various contracts, including one with Haren &

Laughlin Construction Co. Inc. (“construction company”) to provide quality control for

the Project and another with RCC Framing, LLC (“framer”) to perform framing and to

install windows, which were provided by Associated Materials LLC d/b/a Alside Supply

Center (“supplier”). Woodco also contracted with BSP Masonry LLC (“masonry

company”) to perform brick masonry work.

       After deficiencies in the construction of the Project emerged, Woodco and the

owner of the Project entered into a settlement agreement in which the owner of the

Project assigned to Woodco any and all rights, claims, and interest against third parties

arising from or relating to the Project’s defects. Woodco filed a lawsuit, asserting

contract and tort claims, against the architect, the structural engineer, the construction

company, the framer, and the supplier. Although the suit involved allegations of

construction defects, the masonry company was not included as a defendant.

       The structural engineer, the construction company, and the architect (collectively,

“Movants”) filed motions to add the masonry company, as well as its managers, Moses

Davila and Elisa Judith Saenz (collectively, “masonry company”), arguing the masonry

company must be added pursuant to Rule 52.04. Woodco opposed these motions. Aside

from the general allegation that the masonry company was partially responsible for the
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construction defects, the Movants specifically argued the defendants, in particular the

construction company, were sued on claims derivative of the masonry company’s failure

to perform its contractual obligations to Woodco. The circuit court ordered the masonry

company be joined.

        Woodco filed a petition for a writ of prohibition or, in the alternative, a writ of

mandamus in the court of appeals, seeking to direct the circuit court to dismiss and

remove the masonry company. The court of appeals denied the petition. After a petition

for a writ of prohibition or, in the alternative, a writ of mandamus was filed with this

Court, a preliminary writ of prohibition was issued. Woodco now seeks a permanent

writ.

                           Jurisdiction and Standard of Review

        This Court has the authority to issue and determine original remedial writs. Mo.

Const. art. V, sec. 4.1. A writ of prohibition may issue to: (1) “prevent the usurpation of

judicial power when a lower court lacks authority or jurisdiction;” (2) “remedy an excess

of authority, jurisdiction or abuse of discretion where the lower court lacks the power to

act as intended;” or when (3) “a party may suffer irreparable harm if relief is not

granted.” State ex rel. Strauser v. Martinez, 416 S.W.3d 798, 801 (Mo. banc 2014).

                                           Analysis

        This case requires a determination of whether the circuit court improperly joined

the masonry company. Woodco argues the masonry company was improperly joined

under Rule 52.04(a) because (1) the masonry company was not a party to any of the

contracts upon which Woodco was suing and (2) the masonry company’s joinder was not
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required to resolve any of the tort claims in the action because the masonry company was,

at best, a joint tortfeasor. 1

        The parties agree the issue before this Court is whether the masonry company

must be joined if feasible; in other words, the analysis here is limited to Rule 52.04(a).

Rule 52.04 governs the joinder of persons needed for a just adjudication. Rule 52.04(a),

which outlines when persons are to be joined if feasible, is comprised of two prongs. The

first prong requires joinder on the basis that complete relief should result from the action.

Rule 52.04(a)(1). The second prong requires joinder in circumstances when either the

absent party’s interest would be prejudiced or when those before the court would be

subject to an inconsistent obligation due to the absent party’s claimed interest. Rule

52.04(a)(2). If either prong of Rule 52.04(a) has been satisfied, courts have traditionally

labeled such party “necessary.” See, e.g., State ex rel. Twenty-Second Jud. Cir. v. Jones,

823 S.W.2d 471, 475 (Mo. banc 1992).

          I.    The Masonry Company Is Not Required to Accord Complete Relief

        The construction company argues that, without the masonry company, it cannot be

accorded complete relief. This argument implicates Rule 52.04(a)(1). Rule 52.04(a)(1)

requires joinder when “in the person’s absence complete relief cannot be accorded among

those already parties.”




1If Woodco’s argument – that the criteria set forth in Rule 52.04(a) have not been met – is
correct, the order sustaining the motion to add the masonry company would constitute an abuse
of discretion, and the circuit court would lack the authority to order the masonry company be
made a party. A writ of prohibition is appropriate when a party joined pursuant to Rule 52.04 is
not needed for just adjudication.
                                               4
       Joinder of the masonry company is not required for the asserted contract claims.

In Bunting v. McDonnell Aircraft Corp., this Court reaffirmed the rule that, in a suit on a

contract by one of the parties to that contract, the only defendants required are (1) “the

other parties to the contract sued on” and (2) “those who have an interest in the dispute

which will be affected by the action.” 522 S.W.2d 161, 169 (Mo. banc 1975). That

“interest in the dispute” must be “such a direct claim upon the subject matter of the action

that the [absent party] will either gain or lose by direct operation of the judgment to be

rendered.” Id. The masonry company is not a party to any of the contracts upon which

Woodco is suing. Although resolution of the contractual disputes among Woodco and

the existing defendants may concern work performed by the masonry company and

reference to the contract between Woodco and the masonry company, the masonry

company will be left unaffected by the outcome, and the discrete contract claims among

Woodco and the existing defendants can be resolved.

       Joinder of the masonry company is also not required for the asserted tort claims.

Assuming the masonry company is a joint tortfeasor, its liability to Woodco is

insufficient to require its presence in the action. See, e.g., Temple v. Synthes Corp., 498

U.S. 5, 7 (1990) (“It has long been the rule that it is not necessary for all joint tortfeasors

to be named as defendants in a single lawsuit.”); Gramex Corp. v. Green Supply, Inc., 89

S.W.3d 432, 439-40 (Mo. banc 2002) (“Joint or concurrent tort-feasors are severally, as

well as jointly, answerable to the injured party for the full amount of the injuries. The

injured party may sue all or any of the joint or concurrent tort-feasors and obtain a

judgment against all or any of them.”). Woodco’s tort claims against particular
                                               5
defendants does not require the assertion of claims against the masonry company, even

though the masonry company may be responsible for some of the damages. Complete

relief can be accorded among the existing parties. Even assuming Woodco’s claims

against the construction company are derivative of work performed by the masonry

company, the masonry company is not required as a party to make a full determination of

Woodco’s asserted contract or tort claims.

              II.   The Masonry Company’s Absence Would Not Result in
                         Inconsistent Obligations to Existing Parties

       The construction company argues it would be exposed to inconsistent obligations

without the joinder of the masonry company. Rule 52.04(a)(2)(ii) requires joinder when

       the person claims an interest relating to the subject of the action and is so
       situated that the disposition of the action in the person’s absence may . . .
       leave any of the persons already parties subject to a substantial risk of
       incurring double, multiple, or otherwise inconsistent obligations by reason
       of the claimed interest.

The construction company proposes that a verdict that holds it responsible for the

masonry company’s alleged negligence would result in an inconsistent obligation,

reasoning a verdict against it would likely encompass damages attributable to the

masonry company. As related to the asserted contract claims, the construction company

does not put forth a colorable theory to support its notion that a nonparty to a contract

would be required to prevent an inconsistent obligation on a breach of contract claim

between two parties to a contract. As to the tort claims, if a successive action could occur

to allow a party to seek contribution against a nonparty in the first action, a court should

not consider the possibility of this subsequent action to require the presence of that


                                              6
nonparty in the initial lawsuit. A contrary position would violate the long-held rule that a

plaintiff need not sue all joint tortfeasors. See Gramex Corp., 89 S.W.3d at 439-40. 2

There is no risk of inconsistent obligations.

       Although third-party practice may not be a desired alternative for the existing

defendants, it is the option available if they desire the presence of the masonry company

in the current action because of alleged shared fault. 3 Rule 52.11(a), governing when a

defendant may bring in a third party, provides:

       At any time after commencement of the action a defending party, as a third-
       party plaintiff, may cause a summons and petition to be served upon a person
       not a party to the action who is or may be liable to the defending party for all
       or part of the plaintiff’s claim against the defending party.

The construction company posits that Woodco’s resistance to joinder of the masonry

company through Rule 52.04 results in Woodco being shielded from its own negligence

and puts forth argument grounded in equity requesting that the defendants not be required

to join the masonry company through third-party practice, especially given the likelihood

the masonry company is judgment-proof. Because the claims asserted by Woodco do not

require the masonry company be joined under Rule 52.04(a) and an equitable analysis is

not part of determining when a person is to be joined if feasible, 4 the construction



2 A potentially judgment-proof nonparty does not result in a different analysis.
3 And without joining the masonry company, the defendants have the option of arguing the
masonry company is the negligent party. See Oldaker v. Peters, 817 S.W.2d 245, 252 (Mo. banc
1991) (noting a defendant is free to introduce evidence that a nonparty is responsible instead of
the defendant).
4 Compare Rule 52.04(a) (containing the two prongs requiring joinder if feasible) with Rule

52.04(b) (requiring a court to “determine whether in equity and good conscience the action
should proceed among the parties before it or should be dismissed” if a party described in Rule
52.04(a) cannot be made a party).
                                                7
company’s argument fails.

                                        Conclusion

       Because Rule 52.04(a) does not mandate the masonry company be joined, the

circuit court’s action in sustaining motions seeking its joinder constituted an abuse of

discretion, and the circuit court did not have the authority to require joinder. This Court

makes permanent its preliminary writ of prohibition.



                                                  ______________________________
                                                  Mary R. Russell, Judge

Draper, C.J., Wilson, Breckenridge, Stith,
Fischer, JJ., and Francis, Sp.J., concur.

Powell, J., not participating.




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