                  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 18 5 − 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
       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.

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