Faulty Record Quashes Preliminary Writ

(Posted June 22, 2017)

Cornerstone National Insurance Co. v. Ligons, SD34866 (Mo. Ct. App. S.D. June 13, 2017) is a simple two-page opinion, but it raises an important issue about claim preservation in the writ process. The lawsuit was brought against Cornerstone by a man injured in a car crash. He alleged that the insurer wrongfully refused to pay the limit of underinsured motorist coverage. During discovery, Cornerstone had some objections overruled and was ordered to respond to the plaintiff’s requests subject to a protective order. The Opinion is silent on what the disputed discovery sought, but it was serious enough to Cornerstone for it to seek a writ of prohibition to halt the trial court’s order.

Writ practice is a murky area for many, so lets say a quick word or two about it for context. A party aggrieved by an interlocutory ruling of the trial court can submit a petition for a writ of prohibition (or mandamus, depending on the circumstances) to ask the Court of Appeals for relief. Because appellate courts usually only review errors in final judgments, getting it to step in mid-litigation is extraordinary and hard. The question often boils down to this: if the claimed error can be addressed later on direct appeal after final judgment has been entered, the court of appeals will not issue a writ.

The problem for Court of Appeals in Cornerstone was procedural. Getting a writ in Missouri is a two-step process governed by Mo. R. Civ. P. 97 and 84.24. In short, the aggrieved party petitions the court of appeals to hear its claim. If the court agrees, it will issue a preliminary writ to stay the proceedings below while the parties brief and argue the issues just as they would a normal appeal. Even getting the preliminary writ issued is rare, so it said something about Cornerstone’s argument that the Southern District granted the preliminary writ in the first place.

But after full briefing and argument, the court quashed its preliminary writ and denied Cornerstone’s petition. In the end, the court held that it didn’t have all the documents necessary to decide the issues. The trial court had ordered Cornerstone to comply with the discovery requests in accordance with a protective order, but none of the parties had included that order in the record. Because the Court could not determine what exactly Cornerstone had been ordered to produce without reviewing the protective order, it was forced to deny Cornerstone’s relief.

Practice Tip: Appellate courts are exceedingly cautious about granting extraordinary writs and any of number of open questions may lead to denial. Think expansively about what concerns the court may have about both the merits of the points raised and whether a writ is appropriate at all. Include all the documents and exhibits in the record that touch on those issues. And err on the side of over-inclusion.