            SUPREME COURT OF MISSOURI
                                       en banc

STATE ex rel. BRAD HALSEY,            ) Opinion issued June 25, 2019
                                      )
                           Relator,   )
                                      )
v.                                    ) No. SC97288
                                      )
THE HONORABLE JENNIFER M. PHILLIPS, )
                                      )
                          Respondent. )


                   ORIGINAL PROCEEDING IN PROHIBITION

       Brad Halsey (“Halsey”) petitions this Court for a writ of prohibition directing the

Honorable Jennifer M. Phillips (“Respondent”) to dismiss Jennifer Dachenhausen’s

(“Dachenhausen”) claims against him for assault, battery, intentional infliction of

emotional distress, and negligent infliction of emotional distress. Because

Dachenhausen’s Amended Petition demonstrates her assault and battery claims are time-

barred but her emotional distress counts properly allege claims independent from

traditional common law actions, the preliminary writ is made permanent in part and

quashed in part.
                                      BACKGROUND

       On May 9, 2018, Dachenhausen filed suit against Halsey in Jackson County

Circuit Court for assault, battery, intentional infliction of emotional distress, and

negligent 1 infliction of emotional distress. As alleged by Dachenhausen in her Amended

Petition, Dachenhausen worked as a Lead Analyst at the City of Independence Police

Department, and Halsey, the Deputy Chief of Police, was her supervisor. In 2012,

Halsey asked Dachenhausen to send him naked pictures of herself, and Halsey sent her

pictures of a naked woman he said was his wife. On May 17, 2013, Halsey placed his

hands on Dachenhausen’s buttocks and pulled her into his erect penis. Dachenhausen

fled Halsey’s presence immediately after this incident. Dachenhausen further alleges

Halsey placed his erect penis near her face while at work on an unspecified date. As a

result of Halsey’s conduct, Dachenhausen resigned from her position with the City of

Independence. While the conduct described in her Amended Petition was alleged to have

occurred in 2012 and 2013, Dachenhausen alleges she did not fully appreciate the

psychological impact of Halsey’s actions until the fall of 2017 when the Me Too

movement 2 became prominent.




1
   Dachenhausen originally pleaded only assault, battery, and intentional infliction of emotional
distress. Her count of negligent infliction of emotional distress was first included in her
Amended Petition, filed May 28, 2018. However, because this count alleges the same conduct as
her intentional infliction of emotional distress count, it relates back under Rule 55.33(c).
2
   For background about the Me Too movement, see Melissa Murray, Consequential Sex:
#MeToo, Masterpiece Cakeshop, and Private Sexual Regulation, 113 Nw. U. L. Rev. 825, 866-
68 (2019), and Elizabeth C. Tippett, The Legal Implications of the MeToo Movement, 103 Minn.
L. Rev. 229, 230-34 (2018).


                                               2
        In lieu of an answer, Halsey filed a motion to dismiss, arguing Dachenhausen’s

claims were time-barred. Respondent overruled Halsey’s motion to dismiss. Having

been denied relief in the court of appeals, Halsey petitioned this Court for a writ of

prohibition. This Court issued a preliminary writ of prohibition, which it now makes

permanent in part and quashes in part.

                                         DISCUSSION

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

Const. art. V, § 4.1. “Prohibition is a discretionary writ that only issues to prevent an

abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of

extrajurisdictional power.” State ex rel. Church & Dwight Co., Inc. v. Collins, 543

S.W.3d 22, 25 (Mo. banc 2018) (quotation omitted). “A writ of prohibition is the proper

remedy to prevent a lower court from proceeding on a claim barred by the statute of

limitations.” Id. at 26 (quotation and alteration omitted).

        Halsey argues a writ of prohibition is warranted on the grounds that:

(1) Dachenhausen’s suit is time-barred because, under section 516.140, 3 the statute of

limitations for assault and battery claims is two years and Dachenhausen filed suit almost

five years after the conduct was alleged to have occurred; and (2) the conduct

Dachenhausen alleged to support her claims for intentional and negligent infliction of

emotional distress is indistinguishable from traditional common law torts and, therefore,

her claims for emotional distress are time-barred because they are merely a repackaging



3
    All statutory references are to RSMo 2016, unless otherwise indicated.


                                                3
of her assault and battery claims. Accordingly, Halsey contends the circuit court had no

authority other than to sustain his motion to dismiss.

        “A motion to dismiss for failure to state a cause of action is solely a test of the

adequacy of the plaintiff’s petition.” City of Lake Saint Louis v. City of O’Fallon, 324

S.W.3d 756, 759 (Mo. banc 2010) (quotation and alteration omitted). “A court reviews

the petition in an almost academic manner, to determine if the facts alleged meet the

elements of a recognized cause of action ….” Id. (quotation omitted). “When an

affirmative defense is asserted, such as a statute of limitation, the petition may not be

dismissed unless it clearly establishes on its face and without exception that it is barred.”

Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995) (quotation omitted).

Accordingly, only in the rare case in which the face of a petition demonstrates a claim is

time-barred should a court sustain a motion to dismiss on the ground the statute of

limitations has run.

   I.   Assault and Battery Claims

        In response to Halsey’s argument that the circuit court had no authority other than

to dismiss her assault and battery claims as time-barred, Dachenhausen argues her

damages were not reasonably capable of ascertainment until the Me Too movement

became prominent in the fall of 2017. Only then, she claims, was she – or any reasonable

person – able to appreciate fully the psychological impact of Halsey’s alleged conduct.

Dachenhausen’s pleadings, however, wholly refute this argument. Damages resulting

from all the conduct Dachenhausen alleges were reasonably ascertainable at the time the




                                               4
conduct occurred. Accordingly, Dachenhausen’s assault and battery claims are time-

barred.

       Section 516.140 provides a two-year statute of limitations for assault and battery

claims. § 516.140. “A cause of action for battery or assault is deemed to accrue not

when the wrong is done, but when the damage resulting therefrom is sustained and is

capable of ascertainment.” Sheehan, 901 S.W.2d at 58 (quotation and alteration omitted).

“[T]he capable of ascertainment test is an objective one” determined at the point in time

“when a reasonable person would have been put on notice that an injury and substantial

damages may have occurred and would have undertaken to ascertain the extent of the

damages.” Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576, 584 (Mo. banc

2006). “At that point, the damages would be sustained and capable of ascertainment as

an objective matter.” Id. at 584-85.

       Dachenhausen’s Amended Petition alleges Halsey committed assault and battery

when he grabbed her buttocks and pulled her into his erect penis on May 17, 2013. When

this offensive touching occurred, a reasonable person would have been put on notice that

injury or damages may have occurred and undertaken to determine their extent.

Dachenhausen alleges she feared an offensive touching, fled Halsey’s presence, and

resigned due to Halsey’s conduct and fear it would continue. Again, these allegations

demonstrate a reasonable person would have been on notice that an injury and substantial

damages may have occurred and would have undertaken to determine their extent.

Though she argues the Me Too movement heightened awareness of such deplorable

conduct and its consequences, Dachenhausen’s Amended Petition alleges facts that


                                             5
demonstrate damages had been sustained and were objectively capable of ascertainment

when the threatened and actual offensive touching occurred in 2013. Accordingly, the

face of Dachenhausen’s Amended Petition demonstrates the statute of limitations has run

on her assault and battery claims. The writ of prohibition is made permanent with respect

to those claims. 4

    II. Negligent and Intentional Infliction of Emotional Distress

       Halsey argues Dachenhausen’s claims for negligent and intentional infliction of

emotional distress do not state a cause of action independent from a traditional tort.

       [W]here [a defendant’s] conduct amounts to the commission of one of the
       traditional torts, such as battery, and the conduct was not intended only to
       cause extreme emotional distress to the victim, the tort of intentional
       emotional distress will not lie, and recovery must be had under the
       appropriate traditional common-law action.

K.G., 918 S.W.2d at 799.

       The allegations of Dachenhausen’s Amended Petition, which are the same for both

emotional distress claims, have a factual and legal basis independent from that of her

assault and battery claims. Specifically, Dachenhausen alleges Halsey asked her to send

him naked photographs of herself, sent her naked photographs of a woman he said was

his wife, and placed his erect penis near her face while at work. Notably, Dachenhausen

does not allege that she was put in apprehension of an offensive touching or that Halsey

intended to complete an offense touching when he placed his erect penis near her face;



4
   Dachenhausen does not claim the statute of limitations was tolled or extended in her case.
See, e.g., K.G. v. R.T.R., 918 S.W.2d 795, 798 (Mo. banc 1996) (citing § 516.170) (construing
the statute of limitations for sexual battery involving a minor); Powel, 197 S.W.3d at 580-84

                                               6
therefore, these allegations are not merely repackaged assault or battery claims. Cf.

Devitre v. Orthopedic Ctr. of Saint Louis, LLC, 349 S.W.3d 327, 334-35 (Mo. banc

2011). 5 Rather, this action was intended “only to cause extreme emotional distress” to

Dachenhausen. K.G., 918 S.W.2d at 799.

       Moreover, a jury could reasonably find the facts Dachenhausen alleges are “so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.” Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo. banc 1997) (quotation

omitted). Accordingly, Dachenhausen’s Amended Petition states a claim of emotional

distress that is independent from traditional common law torts such as assault or battery.

See R.M.A. v. Blue Springs R-IV Sch. Dist., 568 S.W.3d 420, 424 (Mo. banc 2019)

(“When considering whether a petition fails to state a claim upon which relief can be

granted, this Court must accept all properly pleaded facts as true, giving the pleadings

their broadest intendment, and construe all allegations favorably to the pleader …. [T]his

Court reviews the petition to determine if the facts alleged meet the elements of a

recognized cause of action ….” (quotations omitted)). Accordingly, the circuit court

properly refused to dismiss Dachenhausen’s negligent and intentional infliction of


(construing the statute of limitations for a sexual battery when the victim had repressed the
memory of the battery).
5
   “To recover damages for a battery, the plaintiff must plead and prove an intended, offensive
bodily contact with another person.” Devitre, 349 S.W.3d at 334 (quotation omitted). “To plead
an assault, the [plaintiff] must allege: (1) defendant’s intent to cause bodily harm or offensive
contact, or apprehension of either; (2) conduct of the defendant indicating such intent, and
(3) apprehension of bodily harm or offensive contact on the part of the plaintiff caused by
defendant’s conduct.” Id. at 335 (quotation omitted).


                                                 7
emotional distress claims on the ground they were indistinguishable from common law

torts such as her time-barred assault and battery claims. 6

       Finally, this Court cannot determine from the face of her Amended Petition that all

of Dachenhausen’s negligent or intentional infliction of emotional distress claims are

time-barred. The statute of limitations for emotional distress claims is five years.

§ 516.120(4). Halsey would only be entitled to relief by way of extraordinary writ in this

case if Dachenhausen’s Amended Petition affirmatively showed all of the conduct giving

rise to her negligent or intentional infliction of emotional distress claims occurred before

May 9, 2013. It does not.

       As with the injury and damages stemming from the alleged conduct forming the

basis for Dachenhausen’s assault and battery claims, Dachenhausen’s allegation Halsey

placed his erect penis near her face at work would have put a reasonable person on notice

at that time that a negligent or intentional infliction of emotional distress may have

occurred such that a reasonable person would have undertaken to ascertain the extent of

her damages. See Powel, 197 S.W.3d at 584. But Dachenhausen’s Amended Petition

does not state precisely when this conduct occurred. Because this alleged conduct may

well have occurred on or after May 9, 2013 (and, therefore, within five years of her filing


6
   Halsey also argues Respondent should have dismissed the negligent infliction of emotional
distress count for failure to state a claim because Dachenhausen failed to allege conduct that was
negligent rather than intentional or reckless. Dachenhausen’s allegations are sufficient, however,
because a jury could reasonably find either that Halsey engaged in conduct to intentionally or
recklessly cause her severe emotional distress or that Halsey should have realized his conduct
involved an unreasonable risk of causing her severe emotional distress. See Gibson, 952 S.W.2d
at 248-49. Accordingly, Dachenhausen has stated a claim for negligent infliction of emotional
distress sufficient to survive a motion to dismiss. Cf. R.M.A., 568 S.W.3d at 424.


                                                8
suit), the Court cannot say the Amended Petition “clearly establishes on its face and

without exception that it is barred.” Sheehan, 901 S.W.2d at 59 (quotation omitted);

accord City of Lake Saint Louis, 324 S.W.3d at 764. 7

                                      CONCLUSION

       For the reasons set forth above, the preliminary writ is made permanent in part and

quashed in part, and the circuit court is to proceed in a manner not inconsistent with this

opinion.


                                                         _____________________________
                                                         Paul C. Wilson, Judge


Fischer, C.J., Draper, Russell, Breckenridge, and Stith, JJ., and Scott, Sp.J., concur.
Powell, J., not participating.




7
   Clearly, some of Halsey’s alleged conduct occurred more than five years prior to the date on
which Dachenhausen filed her suit, e.g., the sending of sexually suggestive and offensive texts
was alleged to have occurred in 2012. Nevertheless, Dachenhausen’s negligent or intentional
infliction of emotional distress claims survive Halsey’s motion to dismiss because at least some
of the conduct alleged in support of those claims is undated and (if given the most favorable
reading, as required by R.M.A.) must be considered for purposes of Halsey’s motion to dismiss to
have occurred within the limitations period. Consequently, Halsey is not entitled to relief by
way of extraordinary writ. Nothing precludes him from filing a motion for a more definite
statement pursuant to Rule 55.27(d), however, or raising his statute of limitations arguments
again in a properly supported motion for summary judgment pursuant to Rule 74.04.


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