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State ex rel Cunningham v. Wiggins2/22/2005
Opinion Vote: PRELIMINARY ORDER IN PROHIBITION MADE ABSOLUTE.
Shrum and Barney, J.J., concur.
Opinion:
Linda Cunningham ("Relator") seeks a writ of prohibition to prevent the Honorable John D. Wiggins ("Respondent") from proceeding any further with respect to the first count of a two-count petition filed against Relator by Eugene Hollis ("Hollis"). Relator contends Respondent must dismiss Count I of the petition because Hollis lacks standing to pursue the cause of action alleged therein. Relator's petition in prohibition is based on the following facts.
On April 14, 2004, Hollis filed a two-count petition in the Circuit Court of Phelps County, Missouri. The caption of the petition listed two plaintiffs: "LUCILLE HOLLIS, A deceased person, By and through her Plaintiff Ad Litem, Eugene Hollis, and EUGENE HOLLIS, Individually and as Plaintiff Ad Litem For Lucille Hollis ...." Relator was named as the defendant in the petition. The introductory sentence of the petition stated: "COMES NOW Lucille Hollis, a deceased person, by and through her Plaintiff Ad Litem, Eugene Hollis, and Eugene Hollis, individually and for their cause of action against the Defendant, Linda M. Cunningham, states to the court as follows ...." In the first count of Hollis' petition, he sought to recover damages from Relator for allegedly causing personal injuries to Hollis' deceased wife, Lucille Hollis ("Decedent"), in a motor vehicle collision. In Count II, Hollis pled his own individual claim for loss of consortium based on the personal injuries allegedly inflicted upon his wife by Relator.
Along with the petition, Hollis also filed a motion requesting he be appointed plaintiff ad litem for Decedent. This motion contained the following statements pertinent to the issues presented by Relator's petition for a writ of prohibition:
1. Plaintiff Eugene Hollis is the lawful widower of Lucille Hollis, a deceased person, and wishes to bring an action for personal injury sustained by Lucille Hollis on or about April 24, 1999.
2. Upon the death of Lucille Hollis, there was no Estate opened for Lucille Hollis in Maries County, Missouri, the county of residence.
3. Therefore, there is no personal representative to bring a survival action on behalf of Lucille Hollis.
4. The widower of Lucille Hollis, Eugene Hollis, is the most appropriate person to bring this action on her behalf.
Based on the record presented to us, it appears the trial court has never ruled on the motion. Therefore, at present, Hollis is attempting to pursue Decedent's cause of action for personal injuries in Hollis' individual capacity only.
On May 13, 2004, Relator filed a motion to dismiss Count I of the petition. One ground for dismissal asserted in the motion was that Hollis did not have standing to pursue a cause of action for personal injuries to Decedent. On July 16, 2004, Respondent overruled Relator's motion to dismiss. Upon receipt of the ruling, Relator filed a motion for reconsideration which was denied on November 4, 2003. Shortly thereafter, Relator filed her petition in prohibition with this Court. See Rule 97.03. We issued a preliminary order in prohibition, which we make absolute.
"Prohibition lies to prevent a court from acting in excess of its jurisdiction." State ex rel. East Carter County R-II School Dist. v. Heller, 977 S.W.2d 958, 959 (Mo. App. 1998). Relator challenges Hollis' standing to assert the cause of action pled in Count I of his petition. Farmer v. Kinder, 89 S.W.3d 447 (Mo. banc 2002), contains a discussion of standing that is germane here:
Standing is a jurisdictional matte
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