Community Title Co. of St. Louis v. Lieberman Management Co.

• Decision Date: 20 August 1991
• Docket Number: No. 58494,58494
• Citation: Community Title Co. of St. Louis v. Lieberman Management Co., 817 S.W.2d 255 (Mo. App. 1991)
• Parties: COMMUNITY TITLE COMPANY OF ST. LOUIS, Respondent, v. LIEBERMAN MANAGEMENT COMPANY, et al, Appellant.
• Court: Missouri Court of Appeals

Page 255

817 S.W.2d 255

COMMUNITY TITLE COMPANY OF ST. LOUIS, Respondent, v.LIEBERMAN MANAGEMENT COMPANY, et al, Appellant.

No. 58494.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 20, 1991.

David G. Dempsey, Thomas Michael Blumenthal, Eileen J. Markey, St. Louis, for appellant.

Richard A. Wunderlich, John Michael Hessel, Duane Coleman, St. Louis, for respondent.

CARL R. GAERTNER, Chief Judge.

Lieberman Management Company, et al., (Lieberman) appeal from an order of summary judgment on their abuse of process counterclaim and denial of attorney's fees arising from an interpleader action filed by Community Title Company of St. Louis, Inc., (Community) to determine the proper disbursement of funds from a sale of property.We affirm.

The appeal is complicated by reason of the multiplicity of parties and the complexity of the underlying financial transactions.As garnered from the numerous depositions before the trial court, the facts material to the single issue presented by this appeal are not in dispute.

Alan and Harold Lieberman are general partners of two limited partnerships, Clarkson Square Associates, L.P.(CSA) and Clarkson Square II, Ltd., L.P.(CS II) and the sole limited partners of CS II.CSA had, in addition, fifteen investor limited partners.The two limited partnerships owned and operated adjacent tracts which together are known as Clarkson Square Shopping Center.

On May 24, 1989, Community agreed to act as intermediary in the sale of Clarkson Square Shopping Center by the owners, CSA and CS II, to the buyers, Caplaco Four, Inc., and Caparco One, Inc., (Caplaco/Caparco).The sale was structured as a "like-kind" exchange for tax purposes.Caplaco/Caparco agreed to pay $3,829,262.11 to Community as an intermediary buyer-seller and Community would then pay the funds by wire transfer to CSA and CS II as provided by the sale contract.

Community had issued a commitment for title insurance underwritten by Stewart Title Guaranty Company(Stewart).Stewart's insured closing letter assured Caplaco/Caparco that the payment to Community would be properly disbursed to CSA and CS II.However, Stewart required verification that all limited partners of CSA consented to the sale of the shopping center.The attorney for the general partners informed Community that they did not want to go to the limited partners to get their consent but would provide an opinion letter stating that the general partners had authority to make the conveyance without the consent of the limited partners.

The contracts between Community and CSA and CS II provided that Community would deliver Federal Reserve Wire Transfers in the amounts of the purchase price to the respective limited partnerships.At the closing on July 13, 1989, the contracts were modified by crossing out the wire transfer provision and writing in "St. Louis Bank Cashier's checks," as requested by Harold Lieberman and his attorney.However, it was too late to obtain a cashier's check, and Mr. Kenney, Community's president, suggested that the escrowed funds be wire transferred as originally provided by the contract the next day.At this point, Harold Lieberman instructed Community to wire transfer the $3,334,411.33 due to CSA to a Lieberman Management Company account and the $511,072.46 due to CS II to his attorney for deposit in an account in H. Lieberman's name as escrowee for CS II.By the time negotiations concluded, the Federal Reserve Wire was closed and Harold Lieberman instructed Community to invest the proceeds overnight.

The directions to pay the purchase money to entities other than the selling partnerships concerned Community's officers.They consulted Community's attorneys regarding the conflict between the directions received from Harold Lieberman and the provisions of the partnership agreements relating to the handling of partnership funds.They were also aware of the fact that Stewart had potential claims against the Lieberman corporations because of mechanics liens filed by subcontractors in Lieberman developments other than Clarkson Square.Accordingly, they also consulted with officers of Stewart.

The next day Community filed an interpleader action and deposited the purchase money in the registry of the court.In addition to the partnerships and the individual members thereof, the interpleader petition named as defendants having a claim against the funds Lieberman Management Company, by reason of the direction of Harold Lieberman to pay a portion of the purchase price to that corporation, and Stewart, by reason of its claims against Lieberman Management Company and the Lieberman brothers.

On July 15, 1989, the day after the interpleader action was filed, Harold Lieberman sent a letter to all the CSA limited partners requesting that they consent to the transfer of the funds to the Lieberman Management Company.None of the limited partners consented.On December 11, 1989, the partners of CSA entered into a settlement agreement which specified the manner in which the funds were to be disbursed.In January, 1990, appellants filed a motion for summary judgment supported by affidavits of all the CSA limited partners, praying that the funds be paid from the registry of the court to CSA and CS II.The motion also requested that Community be required to pay appellant's attorneys fees.On January 26, 1990, Community filed its motion for summary judgment on the counterclaim.These motions were taken under submission after a hearing on February 5, 1990.¹

The trial court entered a nunc pro tunc order on May 18, 1990 which modified the amended order of March 9, 1990 entered after the court vacated its original order of February 13, 1990.As to the Lieberman defendant's motion, the May 17, 1990 order directed: (a) $3,318,189.65 plus interest be paid to CSA; (b) $511,072.46 plus interest be paid to CS II; (c)"the filing of the interpleader by Community was justified and proper.Community is relieved and discharged from any and all liability with respect to the funds that have been interpleaded in this action."The court granted Community's motion for summary judgment against the Lieberman counterclaim for abuse of process, determining that Community was within its rights in filing the interpleader.It denied Community's motion for summary judgment on counterclaim Counts II-IV because issues may remain concerning material facts.The court denied with prejudice both Community's and Lieberman's request for attorneys' fees.The court found no just reason for delay and designated the order as final judgment.Rule 74.01(b).

Lieberman appeals the trial court's summary judgment of the abuse of process counterclaim and denial of attorneys' fees.

Summary judgment is appropriate when "no theory within the scope of the pleadings, depositions, admissions, and affidavits filed would permit recovery and the moving party is entitled to recovery as a matter of law."Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244(Mo. banc 1984)."Summary judgment is not precluded if the 'facts' alleged to be in dispute are actually differing opinions of the parties of the legal effect of documents or actions which determine their respective rights."Hayes v. Hatfield, 758 S.W.2d 470, 472(Mo.App.1988)quotingRoberts Fertilizer, Inc. v. Steinmeier, 748 S.W.2d 883, 887(Mo.App.1988).

A pleading alleging abuse of process must set...