Clark v. Ruark, WD 79308.

• Decision Date: 05 July 2017
• Docket Number: WD 79308.
• Citation: 529 S.W.3d 878
• Parties: Jimmy D. CLARK, Appellant, v. Kelly Rosine RUARK, Respondent.
• Court: Missouri Court of Appeals

529 S.W.3d 878

Jimmy D. CLARK, Appellant,

v.Kelly Rosine RUARK, Respondent.

WD 79308.

Missouri Court of Appeals, Western District.

Filed: July 5, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied August 1, 2017

Application for Transfer to Supreme Court Denied October 31, 2017

Kevin Baldwin and Eric E. Vernon, Liberty, MO, for respondent.

Jimmy D. Clark, Smithville, MO, appellant pro se.

Before Division Two: Cynthia L. Martin, Presiding Judge, Lisa White Hardwick and Alok Ahuja, Judges

Lisa White Hardwick, Judge

Jimmy Clark appeals from the circuit court's entry of summary judgment in favor of Kelly Rosine Ruark on his malicious prosecution claim against her. He argues that genuine issues of material fact remain as to whether Ruark acted with malice in filing and continuing a contempt action against him. Clark also appeals from the court's entry of judgment in favor of Ruark on her malicious prosecution counterclaim against him. He asserts that the court erred in not dismissing the counterclaim for failure to state a claim and in trying the counterclaim without a jury. For reasons explained herein, we affirm the summary judgment in favor of Ruark on Clark's malicious prosecution claim. We reverse the judgment in favor of Ruark on her malicious prosecution counterclaim and remand the case for a new trial on that claim.

FACTUAL AND PROCEDURAL HISTORY

Ruark served as Guardian ad Litem ("GAL") for Clark's minor children in Case Number 09CY-CV08638, a paternity action involving issues of child support and child custody. In May 2011, the court awarded Ruark a judgment against Clark for GAL fees in the amount of $3,568.13.

After Clark failed to satisfy the judgment, Ruark filed a motion for contempt in September 2014 to enforce payment of the judgment in Case Number 09CY-CV08638-01, a modification proceeding of the original action. Thereafter, the court issued a show cause order. In response to the motion for contempt, Clark filed a motion for sanctions against Ruark.

In December 2014, Ruark also filed for execution of Clark's assets pursuant to Section 513.020, RSMo 2016,¹ in Case Number 09CY-CV08638, in a further attempt to satisfy the judgment. When the sheriff arrived at Clark's home to execute on his assets, Clark paid the sheriff the outstanding balance of the GAL fees in cash. In January 2015, upon receipt of the GAL fees owed to her, Ruark simultaneously filed a satisfaction of judgment in Case Number 09CY-CV08638 and a voluntary dismissal of the motion for contempt in Case Number 09CY-CV08638-01. The court subsequently denied Clark's motion for sanctions and dismissed its show cause order against Clark in the contempt proceeding.

In May 2015, Clark filed a petition against Ruark for malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress based on the contempt proceeding. Along with his petition, Clark also filed a demand for jury trial. Thereafter, Ruark brought a counterclaim for malicious prosecution against Clark and moved for summary judgment on his petition. Clark filed a response opposing her motion for summary judgment. He later dismissed his emotional distress claims and proceeded solely on his malicious prosecution claim. Following a hearing, the court granted summary judgment in favor of Ruark on Clark's malicious prosecution claim.

During a docket call on October 1, 2015, the court scheduled Ruark's malicious prosecution counterclaim for trial. There is no record on appeal of any statements made during the docket call. The clerk's docket entry states only that a bench trial was scheduled for November 23, 2015. Following the docket call, Clark filed a motion to dismiss Ruark's counterclaim.

On November 23, 2015, both parties appeared for the bench trial on Ruark's malicious prosecution counterclaim. Clark's counsel objected to proceeding to trial without a jury. In overruling counsel's objection, the court stated that the record reflected that both parties agreed to a bench trial during the October 1, 2015 docket call. Upon conclusion of the bench trial, the court entered judgment against Clark for $20,000 in actual damages and $10,000 in punitive damages. Clark appeals.

ANALYSIS

Summary Judgment on Clark's Malicious Prosecution Claim

In his first three points on appeal, Clark challenges the entry of summary judgment against him on his malicious prosecution claim. Appellate review of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid – Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). We review the record in the light most favorable to the party against whom the judgment was entered. Wills v. Whitlock , 139 S.W.3d 643, 646 (Mo. App. 2004).

"Summary judgment shall be granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Smith v. The Callaway Bank , 359 S.W.3d 545, 546 (Mo. App. 2012) ; Rule 74.04(c)(6). A movant establishes the right to judgment as a matter of law by demonstrating one of the following:

(1) facts negating any one of the claimant's elements necessary for judgment; (2) that the claimant, after an adequate period of discovery, has not been able to—and will not be able to—produce evidence sufficient to allow the trier of fact to find the existence of one of the claimant's elements; or (3) facts necessary to support his properly pleaded affirmative defense.

Roberts v. BJC Health Sys. , 391 S.W.3d 433, 437 (Mo. banc 2013). In response, the non-movant "must show the existence of some genuine dispute as to a material fact necessary to [his] right to recover." Smith , 359 S.W.3d at 546.

Here, the summary judgment does not specify the basis upon which it was entered. " ‘Where a trial court has granted summary judgment without specifying the basis upon which the motion was granted, this court will affirm the grant of summary judgment under any appropriate theory.’ " Imler v. First Bank of Mo. , 451 S.W.3d 282, 288 (Mo. App. 2014) (citation omitted).

In Points I and II, Clark asserts that the court erred in granting summary judgment against him on his malicious prosecution claim because genuine issues of fact remain and Ruark failed to demonstrate the right to judgment as a matter of law. To prevail on a claim of malicious prosecution, Clark had to prove the following elements: " ‘(1) the commencement of a judicial proceeding against the plaintiff; (2) the instigation of the suit by the defendant; (3) the termination of the proceeding in [the] plaintiff's favor; (4) the absence of probable cause for the suit; (5) malice by the defendant in instituting the suit; and (6) resulting damage to the plaintiff.’ " Heberlie v. Harriman Oil Co., LLC , 497 S.W.3d 886, 890 (Mo. App. 2016) (citations omitted). Because actions for malicious prosecution are disfavored under Missouri law, Clark had to provide " ‘strict and clear proof’ " of all five elements. Id. (citation omitted).

Clark first contends that a genuine issue of material fact remains as to whether Ruark acted with malice in initiating and continuing a contempt proceeding against him. There are two malice standards in civil malicious prosecution actions: legal malice and malice in law. King v. Young , 304 S.W.3d 224, 227 (Mo. App. 2009). The standard of legal malice applies to malicious prosecution claims where the underlying action was filed by an attorney on behalf of a client. Id. To show legal malice, a plaintiff must prove that the "primary purpose of initiating or continuing the proceedings was one other than that of securing the proper adjudication of the claim." Id. The standard of malice in law applies to malicious prosecution actions against a non-attorney. Id. To show malice in law, a plaintiff must prove only that the underlying action was "intentionally initiated or continued ‘without the honest belief that it was lawful when done.’ " Id. (citation omitted). Unlike legal malice, malice in law can be inferred from facts that establish the lack of probable cause for filing the underlying action. Id.

The parties disagree as to which of these standards of malice is applicable here. Ruark contends that Clark was required to prove the higher standard of legal malice, while Clark contends that he was required to prove only the lower standard of malice in law. Because Clark was unable to prove even malice in law, however, we need not determine whether he should have been held to proving the higher standard of legal malice.

Clark could not prove malice in law because he could not establish that Ruark initiated a contempt proceeding "without the honest belief that it was lawful when done." This is because the contempt action was lawful. " ‘Civil contempt is intended to benefit a party from whom an order, judgment, or decree was entered. Its purpose is to coerce compliance with the relief granted.’ " Halamicek v. Halamicek , 254 S.W.3d 260, 262 (Mo. App. 2008) (citation omitted). Ruark instituted a contempt proceeding against Clark after he failed to satisfy a judgment owed to her. Upon Clark's satisfaction of the outstanding judgment, she voluntarily dismissed her contempt motion. Ruark's withdrawal of the contempt motion after Clark satisfied the judgment established that her purpose in filing the motion was to coerce Clark to comply with the judgment—the result a contempt proceeding is intended to produce. Once the judgment was satisfied, the record shows that Ruark no longer sought contempt against Clark. Thus, her use of a civil contempt proceeding in this case was lawful, and Clark could not establish that Ruark acted with malice in initiating the contempt proceeding against him.

"A summary judgment ... can be affirmed on appeal by any appropriate theory supported by the record." Roberts , 391 S.W.3d at 437. Clark failed to establish a genuine issue of material fact as to whether Ruark acted with malice in initiating the contempt proceeding against him. Because a defendant in a...