Boyer v. Carondelet Sav. & Loan Ass'n
| Decision Date | 02 March 1982 |
| Docket Number | No. 43888,43888 |
| Court | Missouri Court of Appeals |
| Parties | Roy T. BOYER, Plaintiff-Appellant, v. CARONDELET SAVINGS & LOAN ASSOCIATION and John L. Davidson and Marvin Klamen, Defendants-Respondents. |
David M. Duree, St. Louis, for plaintiff-appellant.
Michael M. Flavin, St. Louis, for Davidson and Klamen.
John L. Davidson, Clayton, for Carondelet.
Appellant appeals from the judgment of the trial court dismissing his petition with prejudice. We affirm, as modified.
Carondelet Savings & Loan Association, by and through its attorney Marvin Klamen, filed suit against appellant and others. The original suit was in two counts seeking money damages for breach of alleged loan guaranties. Carondelet later amended its petition to add Counts III, IV and V. 1 Thereafter Carondelet dismissed Counts I and II of its petition without prejudice, leaving Counts III, IV and V pending. Appellant then filed this lawsuit alleging in Count I malicious commencement of a civil suit against plaintiff by respondents Carondelet and Klamen and in Count II alleging a malicious continuation of prosecution by all of the respondents. On motion by respondents, the trial court entered its judgment dismissing both counts of appellant's petition with prejudice. 2
For appellant to prevail on his suit for malicious prosecution, he must establish, among other elements, that the prior litigation terminated in his favor. Stafford v. Muster, 582 S.W.2d 670, 675 (Mo.banc 1979). Termination in favor of the party bringing the action for malicious prosecution means the final disposition of the cause forming the basis of the action in favor of the party against whom the original action was brought and adversely to the party bringing the original action. Stix & Co. v. First Missouri Bank & Trust Co., 564 S.W.2d 67, 70 (Mo.App.1978).
Appellant argues that the five-count petition filed by Carondelet alleges separate claims and therefore dismissal of Counts I and II would be a termination of prior litigation in his favor. We decline to draw that distinction. The petition pled alternative theories of recovery on two separate claims. Thus the prior litigation has not terminated in appellant's favor and therefore his suit for malicious prosecution is premature.
Appellant next attempts to "bootstrap" his petition by arguing that if he does not state a cause of action for malicious prosecution, then he states a cause of action for prima facie tort or abuse of process. Appellant's petition is an attempt to set out a cause of action for malicious prosecution. It was not intended to, and does not, set out a cause of action for prima facie tort or abuse of process.
The elements of the prima facie tort doctrine are: (1) intentional lawful act by the defendant; (2) an intent to cause injury to the plaintiff; (3) injury to the plaintiff; and (4) an absence of any justification or an insufficient justification for defendant's act. Porter v. Crawford & Co., 611 S.W.2d 265, 268 (Mo.App.1980). We have carefully reviewed appellant's petition and find that it fails to plead ultimate facts showing an actual intent to cause injury to himself by respondents.
Appellant next argues that he states a cause of action for abuse of process in Count II of his petition. A pleading alleging abuse of process must set forth ultimate facts establishing the following elements: (1) the present defendant made an illegal, improper, perverted use of process, a use neither warranted nor authorized by the process; (2) the defendant had an improper purpose in exercising such illegal, perverted or improper use of process; and (3) damage resulted. Stafford v. Muster, supra at 678. The phrase "use of process" as used in this context refers to some willful definite act not authorized by the process or aimed at an objective not legitimate in the proper employment of such process. ...
To continue reading
Request your trial
-
Pitts v. City of Cuba
...by the process or aimed at an objective not legitimate in the proper employment of such process.” Boyer v. Carondelet Sav. & Loan Ass'n, 633 S.W.2d 98, 101 n. 6 (Mo.App.E.D.1982). Assuming Plaintiffs, likewise, meant to bring an abuse of process claim against Defendant Crow under state law,......
-
Kiphart v. Community Federal Sav. & Loan Ass'n, 51267
...v. Crawford, 611 S.W.2d at 268, Dowd v. General Motors Acceptance Corp., 685 S.W.2d 868, 872 (Mo.App.1984) and Boyer v. Carondelet Sav. & Loan Ass'n, 633 S.W.2d 98 (Mo.App.1982). Since Porter, there have been a number of other refinements superimposed upon these elements. Bandag declared th......
-
City of Warrensburg, Mo. v. RCA Corp., 80-0993-CV-W-1.
...the elements of intent to cause injury or absence of justification, even if they could establish damages. See Boyer v. Carondelet Sav. & Loan Ass'n., 633 S.W.2d 98 (Mo.App.1982); Wilt v. Kansas City Area Transit Authority, 629 S.W.2d 669 (Mo. App.1982); Porter v. Crawford & Co., 611 S.W.2d ......
-
Pitts v. City of Cuba
...by the process or aimed at an objective not legitimate in the proper employment of such process." Boyer v. Carondelet Savings & Loan Ass'n, supra, 633 S.W.2d 98, 101[6] (Mo. App. E.D. 1982). "The test employed is whether the process has been used to accomplish some unlawful end or to compel......