                                Missouri Court of Appeals
                                      Southern District
                                          Division Two

JOHN ALLEN and                                      )
MICHELLE ALLEN,                                     )
                                                    )
       Plaintiffs-Appellants,                       )
                                                    )
vs.                                                 )       No. SD33716
                                                    )
TITAN PROPANE, LLC, d/b/a Empire Gas of             )       Filed March 30, 2016
Fair Grove,                                         )
                                                    )
       Defendant-Respondent,                        )
                                                    )
CORNERSTONE PROPANE OPERATING,                      )
LLC, d/b/a Empire Gas of Fair Grove, and            )
WILMA COOK,                                         )
                                                    )
       Defendants.                                  )

                APPEAL FROM THE CIRCUIT COURT OF POLK COUNTY

                         Honorable Michael Hendrickson, Circuit Judge

REVERSED AND REMANDED

       John and Michelle Allen (referred to individually as John and Michelle and collectively

as “the Allens”) appeal from a judgment dismissing with prejudice their lawsuit against Titan

Propane, LLC (“Titan”). The Allens claim: (1) the trial court erred in dismissing their “petition

with prejudice on the ground that it alleged only ordinary negligence, not ‘gross negligence’ and

therefore the allegations were outside the exemption from immunity of § 323.060(5), because it




                                                1
stated a claim against Titan for at least gross negligence[,]” 1 and (2) the trial court erred in

dismissing Michelle’s derivative claim for consortium because the foundational claim was not

properly dismissed. 2 Because we conclude that the Allens’ petition stated a cause of action for

negligence and they were not required to plead anything further in their petition, the circuit

court’s judgment dismissing the petition with prejudice is reversed, and the case is remanded.

                                              Standard of Review

                 A motion to dismiss for failure to state a cause of action is solely a test of
         the adequacy of the plaintiff’s petition. It assumes that all of plaintiff’s averments
         are true, and liberally grants to plaintiff all reasonable inferences therefrom. No
         attempt is made to weigh any facts alleged as to whether they are credible or
         persuasive. Instead, the petition is reviewed in an almost academic manner, to
         determine if the facts alleged meet the elements of a recognized cause of action,
         or of a cause that might be adopted in that case.

Nazeri v. Missouri Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993) (internal citations

omitted). We review such a dismissal de novo. Hess v. Chase Manhattan Bank, USA, N.A.,

220 S.W.3d 758, 768 (Mo. banc 2007).

                                   Factual and Procedural Background

         Following this court’s decision in Allen v. Titan Propane, LLC, 404 S.W.3d 914 (Mo.

App. 2013), the circuit court granted the Allens leave to file a second amended petition

(“petition”). Count 1 of the petition, John’s claim against Titan, alleged that Titan’s predecessor

installed a propane tank, gas line, and heater at Wilma Cook’s home in 1984 without an inside

shut-off valve; Titan and its predecessors delivered propane gas to Cook; over time, the outside

shut-off valve corroded and no longer functioned; Titan had a duty to maintain Cook’s propane

system in accord with Missouri law and the National Fire Protection Association’s Code; Titan


1
  References to section 323.060 are to RSMo Cum.Supp. 2007.
2
  As conceded by Titan, our reversal of the dismissal of John’s claim necessarily requires reversal of the dismissal
of Michelle’s derivative claim. Therefore, Michelle’s derivative claim will not be separately addressed any further
in this opinion.

                                                          2
failed to maintain the propane system when, among other shortcomings, it failed to do periodic

inspections; such an inspection would have revealed that the propane system was not in accord

with industry standards; and, as a direct result, John was injured when he attempted to replace

Cook’s furnace in March of 2008. 3

        Titan moved to dismiss the petition for failing “to state a claim for gross negligence.”

See Rule 55.27(a)(6). 4 While conceding that the allegations in the petition “were that of ordinary

negligence,” Titan asserted that John’s claim did “not qualify for the exemption provided by

§ 323.060(5) RSMo., and suit against Titan is therefore barred by section 323.060(4) RSMo.” In

support of its motion, Titan argued it was “not liable for actual or punitive damages for injury to

a person or property that results from any occurrence caused by the installation, modification,

repair or servicing of equipment or appliances for use with liquefied petroleum gas by another

person, unless prior statutory notice is given and unless the damages arise directly from the gross

negligence or willful or wanton acts of such person[,]” citing to section 323.060.4. Titan argued

that the Allens “failed to plead and establish facts supporting their claim of gross negligence.”

        The trial court agreed with Titan, finding that the petition failed “to assert allegations

beyond those of ordinary negligence” and that “[the Allens’] claim is barred by Section

323.060(4)[.]” Accordingly, the trial court entered judgment dismissing the petition with

prejudice. The Allens timely appeal.

                                                   Discussion

        In moving to dismiss the petition, Titan framed the issue for the trial court as requiring a

determination of the definition of “gross negligence” as used in section 323.060.5. The Allens

responded to that issue, as framed by Titan, by contending that their petition alleged “gross

3
  Count 2 set out John’s claim against Cook. Count 3 set out Wife’s derivative claim for consortium against Titan
and Cook. The Allens do not appeal the dismissal of Count 2 or, as to Cook, the dismissal of Count 3.
4
  All rule references are to Missouri Court Rules (2015).

                                                         3
negligence” as used in that section. The trial court found that it did not, and its dismissal of the

petition on that basis is now before us with the parties’ arguments focused on the definition of

“gross negligence.”

        As a prerequisite to addressing that issue, however, we must first address whether the

procedural posture of the case supported the trial court’s consideration and resolution of that

legal issue as initially framed by Titan. We determine that it did not. See Warren v. Paragon

Techs. Group, Inc., 950 S.W.2d 844, 845 (Mo. banc 1997) (court can reach legal question only

after the parties comply with the applicable pleading and evidence requirements).

        Our analysis begins with section 323.060, which in relevant part provides:

        4. No person registered pursuant to this section and engaged in this state in the
        business of selling at retail of liquefied petroleum gas or in the business of
        handling or transportation of liquefied petroleum gas over the highways of this
        state shall be liable for actual or punitive civil damages for injury to persons or
        property that result from any occurrence caused by the installation, modification,
        repair, or servicing of equipment and appliances for use with liquefied petroleum
        gas by any other person unless such registered person had received written
        notification or had other actual knowledge of such installation, modification,
        repair, or servicing of equipment and appliances and failed to inspect such
        installation, modification, repair, or servicing of equipment and appliances within
        thirty days after receipt of such notice or actual knowledge.

        5. Nothing in this section is intended to limit the liability of any person for any
        damages that arise directly from the gross negligence or willful or wanton acts of
        such person.

        An “affirmative defense” is defined as “‘[a] defendant’s assertion of facts and arguments

that, if true, will defeat the plaintiff’s . . . claim, even if all the allegations in the complaint are

true.’” Varsalona v. Ortiz, 445 S.W.3d 137, 140 (Mo.App. 2014). Accordingly, the immunity

provided by section 323.060.4 is an affirmative defense that, if true, will defeat a negligence

claim that falls within its scope. See, e.g., Wilmes v. Consumers Oil Co. of Maryville, 473

S.W.3d 705, 714 (Mo.App. 2015). Here, Titan has the burden of proving this affirmative

defense. Id. at 717.

                                                    4
       “An avoidance is an affirmative defense to an affirmative defense.” Billings Mut. Ins.

Co. v. Cameron Mut. Ins. Co., 229 S.W.3d 138, 143 (Mo.App. 2007) (citing Warren, 950

S.W.2d at 845). As a corollary to this definition, any requirement to plead an affirmative

avoidance cannot not arise unless and until the affirmative defense sought to be avoided has been

properly pleaded. Accordingly, invocation of the section 323.060.5 exemption from immunity is

an affirmative avoidance of the section 323.060.4 immunity affirmative defense, and any

requirement to properly plead this affirmative avoidance does not arise unless and until the

section 323.060.4 immunity affirmative defense has been properly pleaded.

       Affirmative defenses and avoidances must be set forth “[i]n a pleading to a preceding

pleading.” Rule 55.08; see rule 55.01 (requiring a petition, an answer, and the pleading of an

affirmative avoidance); see also Rule 55.27 (every defense must be asserted in the responsive

pleading except certain listed defenses may optionally be made by motion). In addition to setting

forth the affirmative defense or avoidance, that subsequent pleading “shall contain a short and

plain statement of the facts showing that the pleader is entitled to the defense or avoidance.”

Rule 55.08. The record here reflects that Titan has not filed an answer with a statement of facts

showing that it is entitled to claim the section 323.060.4 immunity affirmative defense.

       A very narrow and limited exception to the pleading requirement exists, however,

“whereby a defendant may properly file a motion to dismiss for failure to state a claim under

Rule 55.27(a)(6) when it appears from the face of the petition that an affirmative defense is

applicable.” Evans v. Empire Dist. Elec. Co., 346 S.W.3d 313, 317 (Mo.App. 2011). Our

inquiry, therefore, turns to whether Titan’s motion to dismiss falls within this exception. We

determine that it does not.




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       Titan does not dispute or contest that the Allens’ petition states a negligence claim

against Titan. Rather, Titan asserted in its motion to dismiss the petition that such a negligence

claim is “barred by section 323.060(4) RSMo.” and that the allegations in the petition did not rise

to the level of gross negligence so as to “qualify for the exemption provided by § 323.060(5)

RSMo.” Titan made no attempt in its motion or oral argument before the trial court to

demonstrate how Titan’s right to claim the section 323.060(4) immunity affirmative defense

appears from the face of the petition. Nevertheless, and also without reference to any allegations

in the petition supporting this affirmative defense, the trial court agreed with Titan and dismissed

the Allens’ petition with prejudice.

       Totally ignoring its burden to plead and prove an affirmative defense, Titan argues on

appeal that in order to state a claim under section 323.060.5, the Allens were required to plead

the absence of “the predicate facts that establish Titan’s immunity pursuant to section

323.060.4.” Then, without citation to the record or any supporting argument, Titan asserts that

“[g]iven the posture of this case, Titan’s statutory immunity pursuant to RSMo. § 323.060(4) is

established.” But Titan has failed to identify any factual allegations in the dismissed petition that

support the application of the section 323.060.4 immunity affirmative defense. “For an

affirmative defense to be sustained upon a bare motion to dismiss, the defense must be

irrefutably established by the plaintiff’s pleading. This is but the corollary of the accepted rule

that the burden of proof of an affirmative defense rests upon the one asserting the defense.”

McLeod v. Marion Labs., Inc., 600 S.W.2d 656, 657 (Mo.App. 1980) (internal citations

omitted).

       The factual allegations in the Allens’ petition do not mention, much less address, any of

the applicable statutory requirements for Titan to avail itself of the section 323.060.4 immunity



                                                  6
defense. For instance, the immunity applies only to persons “registered pursuant to this section.”

Section 323.060.4 (emphasis added). Yet, there are no factual allegations in the petition related

to the registered status of Titan or any of its predecessors during the relevant time periods when

the alleged negligent acts were alleged to have occurred. Nor was the petition required to

contain such allegations. It is Titan’s burden to plead and prove such facts in order to avail itself

of the immunity provided by section 323.060.4. See Wilmes, 473 S.W.3d at 717. The absence

of a pleaded factual basis in the petition for this element of Titan’s section 323.060(4) immunity

affirmative defense precluded the trial court from finding that the affirmative defense is

“irrefutably established by the plaintiff’s pleading.” McLeod, 600 S.W.2d at 657. We need not,

therefore, identify any other elements of this affirmative defense or address whether a factual

basis supporting those elements exists in the allegations in the Allen’s petition.

       Because ordinary negligence is all the Allens were required to allege in their petition to

state a claim against Titan, the trial court erroneously dismissed the petition for failing to state a

cause of action for gross negligence under section 323.060.5. Point One is meritorious and

therefore Point Two, directed toward Michelle’s derivative claim, is meritorious as well. Both

points are granted.

                                               Decision

       The trial court’s judgment is reversed, and the case is remanded for further proceedings

consistent with this opinion.



GARY W. LYNCH, J., Opinion Author

DON E. BURRELL, P.J., concurs

WILLIAM W. FRANCIS, JR., J., concurs



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