Bugg v. Vanhooser Holsen & Eftink P.C.

• Court: Missouri Court of Appeals
• Writing for the Court: Per Curiam
• Citation: Bugg v. Vanhooser Holsen & Eftink P.C., 152 S.W.3d 373 (Mo. App. 2004)
• Decision Date: 07 December 2004
• Docket Number: No. WD 63569.,WD 63569.
• Parties: Eldon BUGG, Appellant, v. VANHOOSER HOLSEN & EFTINK PC, et. al., Respondent.

152 S.W.3d 373

Eldon BUGG, Appellant, v. VANHOOSER HOLSEN & EFTINK PC, et. al., Respondent.

No. WD 63569.

Missouri Court of Appeals, Western District.

December 7, 2004.

Rehearing Denied February 1, 2005.

Eldon Bugg, Columbia, MO, pro se.

Kevin E. Glynn, Kansas City, for Respondent.

Before HAROLD L. LOWENSTEIN, PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, JR., JJ.

PER CURIAM.

Eldon K. Bugg appeals the trial court's ruling granting summary judgment to Gerald D. Eftink and his Cass County law firm, VanHooser, Holsen and Eftink, P.C. Mr. Bugg's petition against the defendants purported to plead claims of abuse of process, defamation, and prima facie tort. All claims were related to a letter authored by Mr. Eftink in November 1998 and mailed to the Chief Disciplinary Counsel, who is appointed by the Supreme Court and authorized to conduct investigations into lawyer misconduct and the unauthorized practice of law. Because we determine that the defendants were entitled to judgment as a matter of law, we affirm.

Background

The following facts are undisputed. Eldon K. Bugg, a non-lawyer, is the general manager of Caldwell Computing Technology, Inc., a business located in Boone County. Caldwell supplies computer-related products and services to the livestock auction industry. Mr. Eftink and his law firm are retained counsel for the Livestock Marketing Association, Inc. The Association has members that have purchased or leased equipment and software from Caldwell. Because of litigation matters that arose out of Caldwell's contracts with members of the Association, Eftink and other lawyers in his firm became acquainted with Bugg.

In several different cases, Bugg brought an action in his own name as an assignee of Caldwell's contract claims in an effort to recover amounts allegedly due to Caldwell under lease contracts. Bugg paid a nominal amount, ranging up to $10, for each assignment from Caldwell. The agreements with Caldwell provided that Bugg could keep whatever he recovered. One case involved a lessee of Caldwell, Tri-States Livestock, Inc. In that case, Bugg took from Tri-States, the lessee, an assignment of a claim against an insurance company. The claim was for electrical damage to a computer caused by lightning. In Bugg's complaint, he alleged that the cause of action assigned to him included damages for loss of property. He also purported, as assignee, to seek recovery of damages for "stress and humiliation."

In his November 1998 letter to the Office of the Chief Disciplinary Counsel, Eftink set forth factual assertions related to the above matters. Eftink also included the following statements:

I think this is an improper attempt to practice law without a license.

It appears to us that Mr. Bugg is a salaried employee and officer of the corporation and that he has simply been employing a strategy to get around the requirement that the corporation appear in court by counsel.

I suspect that the corporation is compensating Mr. Bugg for his efforts and that if he ever collects on any of these cases, he will "assign" the money back to the corporation.

I would appreciate it if your office would check into the matter of Mr. Eldon K. Bugg.

In February 1999, the Office of the Chief Disciplinary Counsel wrote to Bugg, stating that it was investigating reports concerning his activities to determine whether he was engaged in the unauthorized practice of law. The letter also stated, in pertinent part:

While a natural person may represent himself in court, a corporation may not. Our Missouri courts have stated that those who are officers, directors and in management positions in corporations may not bring suit on their own behalf as assignees of that entity. It will be considered the unauthorized practice of law. Property Exchange and Sales, Inc. v. Bozarth, 778 S.W.2d 1 (Mo.App.1989). Please advise us what position you have with Caldwell Computing Technology, Inc. for if you do not think that the Property Exchange and Sales, Inc. v. Bozarth case applies in your situation, please explain to us why not.

The letter also suggested that he seek legal advice as to his responsibilities and requested that he respond within two weeks.

Several days later, Bugg responded, stating that he was merely an employee of the corporation. Any claim he might acquire from the corporation, he said, was for good and valuable consideration. Any legal remedy he sought through the courts was as a natural person and as the rightful owner of the claim. He suggested this distinguished his actions from those in Bozarth.

In March 1999, the Office of the Chief Disciplinary Counsel ("OCDC") replied to Mr. Bugg's letter, indicating that the OCDC would not take further action on the matter at that time. The OCDC indicated that litigants could raise the issue when Bugg appears in court. The letter stated that the OCDC was not deciding at that time whether Bugg's activities constituted the unauthorized practice of law.

In February 2001, Bugg filed his petition against Eftink and Eftink's law firm alleging abuse of process, defamation, and prima facie tort. Thereafter, defendants moved for summary judgment, claiming entitlement to judgment as a matter of law and asserting numerous legal defenses to plaintiff's claims. After considering the arguments of both sides, the trial court granted defendants' motion for summary judgment.

On appeal, Bugg contends that the trial court erred in granting judgment to defendants because defendants did not show entitlement to judgment.

Standard of Review

Pursuant to Rule 74.04, judgment may be granted when there is no dispute as to any material fact and a party is entitled to judgment as a matter of law. See ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo.App.1993). This court reviews the record in the light most favorable to the party against whom the judgment was entered. Id. at 376. Facts set forth in affidavits or otherwise in support of a party's motion for summary judgment are taken as true unless contradicted by the non-moving party's responses to the motion. Id. The non-movant is accorded all reasonable inferences from the record. Id. The court's review is essentially de novo, and the criteria for determining the propriety of a summary judgment on appeal are no different from that which the trial court would employ in deciding to sustain the motion initially. Id. The propriety of a summary judgment is purely an issue of law, and because the trial court's judgment is founded on the record submitted and the law, this court does not defer to the trial court's order granting the judgment. Id.

Analysis

The trial court in this case did not specify the basis of its ruling on the summary judgment motion. There were various defenses asserted by the defendants, including privilege, truth, justification, and lack of damage to plaintiff's reputation. We assume the trial court granted judgment on one or all of these theories. If the judgment was properly entered, we will sustain the judgment on any theory, even if not the theory relied upon by the trial court.

We need not delve into all the particulars of all the parties' positions if there is a complete legal defense that would entitle the defendants to judgment on all of the claims in question. Therefore, we start by discerning whether any of the defenses raised herein would constitute, as a matter of law, a complete bar to all claims. It appears at first blush that several different defenses are meritorious defenses, at least as to some claims, if not all. Because the defense of privilege would clearly be applicable to all claims if valid in this instance, we will first consider the defense of privilege.

Respondents argue that the letter in question is privileged because it was a good faith communication to the Chief Disciplinary Counsel concerning the unauthorized practice of law. Respondent lawyers rely upon the Missouri Supreme Court Rule 5.315, which provides:

Communications submitted to the ... chief disciplinary counsel... or the staffs ... relating to lawyer misconduct or disability are absolutely privileged if submitted in good faith. No lawsuit predicated on such communications may be instituted.

While the rule uses the term "lawyer misconduct" and makes no reference to non-lawyers engaged in the unauthorized practice of law, Respondents argue that the privilege applies here just as much as if it had been a complaint concerning a lawyer. That is because, pursuant to Rule 5.29, the OCDC is charged with the duty of investigating the unauthorized practice of law. Thus, such complaints, they say, should be viewed as falling under the protection of Rule 5.315.

Rule 5.315 appears to be a judicial codification by rule of the common law qualified privilege. Rule 5.315 provides a qualified privilege not only for purposes of defamation claims, but for other claims as well.

A communication is qualifiedly privileged when "it is made in good faith upon any subject matter in which the person making the communication has an interest or in reference to which he has a duty," and when it is made "to a person having a corresponding interest or duty." Rice v. Hodapp, 919 S.W.2d 240, 244 (Mo. banc 1996). A qualified privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty. See id.; 50 AM.JUR. 2d Libel and Slander, § 276 (1995). Whether the surrounding circumstances and relationships are such as to give rise to a qualified privilege is a question of law. Rice, 919 S.W.2d at 244. Here, Eftink clearly had at least a legitimate interest, if not a duty, to report his suspicions to the OCDC. Thus, we hold Eftink was entitled to the qualified privilege.

The plaintiff may overcome a qualified privilege by proving by clear and convincing evidence that the defendant made the defamatory statement with actual malice or that the statements exceeded the...