Dillard Dept. Stores, Inc. v. Muegler

• Decision Date: 13 June 1989
• Docket Number: No. 55962,55962
• Parties: DILLARD DEPARTMENT STORES, INC., Plaintiff-Respondent, v. Arthur G. MUEGLER, Jr., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 179

775 S.W.2d 179

DILLARD DEPARTMENT STORES, INC., Plaintiff-Respondent, v. Arthur G. MUEGLER, Jr., Defendant-Appellant.

No. 55962.

Missouri Court of Appeals,

Eastern District,

Division Five.

June 13, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied July 11, 1989.

Application to Transfer Denied Sept. 12, 1989.

Arthur G. Muegler, Jr., St. Louis, pro se.

Larry D. Valentine, St. Louis, for plaintiff-respondent.

SIMEONE, Senior Judge.

I.

This is an appeal by appellant, Arthur G. Muegler, Jr., an attorney, pro se, from two final orders of an associate circuit judge of St. Louis County entered on February 23, 1988 and October 14, 1988. The February 23, 1988 order denied appellant's motion for leave to file a first amended counterclaim and granted plaintiff, Dillard Department Stores, Inc.'s motion for summary judgment on appellant's counterclaim for "abuse of legal process." The October 14, 1988 order sustained the plaintiff-Dillard's motion to dismiss Count III of a purported counterclaim against Dillard filed September 16, 1988 seeking actual and punitive damages for defamation. We affirm.

Appellant makes three points on appeal for reversal. He contends the trial court erred in (1) denying him leave to file a first amended counterclaim for abuse of process on February 23, 1988, because the trial court "clearly abused its discretion, and violated Rule 55.33" which provides that leave of court shall be "freely given" and because his counterclaim pleaded the ultimate facts for an action of abuse of process, (2) sustaining the plaintiff-Dillard's motion for summary judgment on his counterclaim for abuse of process for the reason that Dillard was not entitled to judgment as a matter of law because the counterclaim alleged the necessary elements of an abuse of process claim and showed that he was directly damaged, and (3) dismissing Count III of his amended counterclaim for defamation on October 14, 1988 because Dillard, in writing and on computer tapes and printouts, falsely published slanderous and libelous statements against him which disparaged his character and his conduct in his profession as an attorney.

II.

On August 11, 1986, the marriage of the appellant and his wife, Gail Aylward Muegler, was dissolved pursuant to a decree of dissolution entered in the circuit court of St. Louis County. A "Stipulation and Property Settlement Agreement" was incorporated in the decree. The decree ordered that the parties "perform the terms of their separation agreement ... incorporated herein, and made a part of this decree." Paragraph 8 of the Agreement provided that certain marital debts, including a debt to Dillard were to be assumed by appellant as "his sole obligation" and further provided that "[i]f one party is caused or required to pay and discharge the assumed debts of the other party herein, ... the payor party is entitled to full indemnification from the non-paying party ..." ¹

Dillard filed a petition for "goods, wares and merchandise" on February 4, 1987 against appellant and his former wife. Appellant then filed a 10 page answer and counterclaim. The answer denied the allegations of two of the three paragraph petition, asserted twelve affirmative defenses and counterclaimed against Dillard for an "Intentional tort--Abuse of Legal Process," and sought $500,000 actual damages and $1,000,000 in punitive damages. This counterclaim alleged that appellant never authorized any person to open or establish any credit account with Dillard, that Gail was not his agent, servant or employee, and that any "goods, wares and merchandise" sold by Dillard to Gail on or prior to August 11, 1986 were sold to her in her individual capacity, and such sales were not authorized by appellant nor had he knowledge thereof. He alleged that Dillard "intentionally, willfully and maliciously" caused the petition to be filed and "willfully, recklessly, wantonly and maliciously" caused said process to issue to embarrass him, to coerce him to settle the account, to "extort" money not legally due or owing, and showed a "complete indifference to, or a conscious disregard for, the life, safety and reputation of Defendant." Attached to the answer and counterclaim were several letters addressed to Dillard, a portion of which "instructed" Dillard to "be careful to avoid slandering my name and credit for someone else's debt ..." One letter to Dillard dated August 19, 1986, after the decree of divorce, informed Dillard that "as a part of the dissolution, I contracted with Gail Muegler (not you) to assume $3,306.05 of her debt to you under the above account. Accordingly, enclosed please find a cashier's check ... in the amount of $900.00 in partial payment of this account ..." In another letter dated September 23, 1986, appellant informed Dillard that "in my August 19 letter I advised you I contracted with Gail Muegler to pay you $3,306.05 on her behalf when I got good and ready to pay it. Prior to our recent telephone conversation I had planned to pay off the remaining $2,406.05 balance of my obligation to Gail Muegler in September-November, 1986. Now, I don't plan to pay you anything until my claim against you is disposed of to my satisfaction...."

Because appellant's counterclaim exceeded the jurisdictional amount at that time of an associate circuit judge, the cause was transferred to the presiding circuit judge for further assignment. The cause was assigned to Hon. Joseph A. Goeke, sitting as a circuit judge. On April 14, 1987, Dillard filed a reply to the counterclaim contending that the counterclaim failed to state a claim.

Meanwhile, discovery took place between May, 1987 through early February, 1988. On February 9, 1988, Dillard filed a motion for summary judgment, pursuant to Rule 74.04, on the appellant's counterclaim for abuse of process, alleging that the counterclaim did not plead "ultimate facts" establishing the elements of an abuse of process claim, and that Dillard was "merely attempting to use the process to recover what it believed and believes to be a just debt." Dillard prayed for an order dismissing the counterclaim.

The next day, February 10, 1988, appellant sought leave to file a first amended answer and first amended counterclaims for abuse of process in Count I, and Count II for defamation. The motion for leave to file such amended counterclaims was not granted by any judge. Attached thereto were the same letters attached to the original answer and counterclaim.

Then on February 23, 1988, after argument on Dillard's motion for summary judgment and appellant's motion for leave to file the amended counterclaim, the trial judge granted leave to file an amended answer but denied appellant leave to file the First Amended Counterclaim and granted Dillard's motion for summary judgment on appellant's counterclaim. The order was made effective as of March 4, 1988 so as to allow appellant to seek a writ in this court. A petition for a writ was filed but denied.

Despite Judge Goeke's order of February 23, 1988, on or about April 19, 1988, appellant sought, and was granted, leave from a visiting substitute judge to file an amended answer and counterclaims to Dillard's petition. Although this motion and amended answer and counterclaims are not included in the file in this court, the minutes show that leave was sought and granted and a "First Amended Counterclaim" was filed on April 19, 1988. Subsequently, on May 4, 1988, Dillard filed a motion to dismiss the amended counterclaims and for sanctions and a protective order. On June 23, 1988, Dillard "called up" its motion to dismiss, and on August 9, 1988, Judge Goeke "rescinded" the order of April 19, 1988 granting leave to file a first amended counterclaim and "held for naught" the filing of the amended counterclaims. At the same time an alias summons was ordered to issue to Gail Muegler. She was served on August 26, 1988.

Gail then filed a separate answer to the petition and a cross-claim against the appellant. On September 16, 1988, appellant filed his answer to Gail's cross-claim denying certain allegations and setting forth affirmative defenses. Appellant also filed counterclaims against Gail and Dillard in three counts--Count I, fraudulent misrepresentation; Count II, breach of contract, and Count III, defamation which alleged similar allegations as those in the February 10, 1988 counterclaim.

On September 30, 1988, Dillard then filed its second motion to dismiss, for sanctions and a protective order seeking to dismiss the defamation count and seeking sanctions against appellant for attempting to interpose a claim for an improper purpose. Dillard alleged that despite the orders of Judge Goeke of February 23, 1988 dismissing the abuse of process and defamation counts, appellant has refiled the counterclaims. "This refiling," Dillard stated "constitutes frivolous, abusive, groundless, baseless, and vexatious litigation." It is "devoid of merit" and "there is no prospect of success."

On October 14, 1988, Judge Goeke ordered that Count III, the defamation count be dismissed, sustained Dillard's motion for sanctions and ordered appellant to pay the attorneys for Dillard, $256 for four hours attorneys' fees. The court also granted the motion for a protective order and set the cause for trial.

Subsequently, on October 19, 1988, Gail A. Muegler dismissed her cross-claim against appellant, and on November 17, 1988, Dillard dismissed its cause against Gail and appellant. On December 6, 1988, appellant dismissed all his claims against Gail leaving the orders of February 23, 1988 and October 14, 1988 regarding the counterclaims final for purposes of review.

III.

As to his first two points which may be considered together--that the court erred in declining to grant leave to file an amended counterclaim for abuse of process and defamation, and granting respondent's motion for summary judgment, appellant argues that under Rule 55.33, leave to amend...