Fust v. Francois
| Decision Date | 10 October 1995 |
| Docket Number | No. 66740,66740 |
| Citation | 913 S.W.2d 38 |
| Parties | Carl FUST and Rita Fust, Plaintiffs/Respondents, v. David FRANCOIS, an individual, and Butler Hill Investment, Inc., a Missouri corporation, Defendants/Appellants. |
| Court | Missouri Court of Appeals |
Thomas C. Walsh, Mark B. Leadlove, Frank N. Gundlach, Thomas Blumeyer Weaver, St. Louis, for appellants.
Richard C. Witzel, David A. Dimmitt, Alan G. Kimbrell, St. Louis, for respondents.
Defendants David Francois and Butler Hill Investment, Inc. 1 appeal from a judgment in favor of Plaintiffs Carl and Rita Fust in the sum of $500,000 and $600,000, respectively, after remittitur. The Fusts sued Francois for malicious prosecution arising out of an earlier suit filed by Francois against the Fusts for trespass, defamation and harassment. On appeal, Francois asserts six points of error. We affirm.
This case involves a long-running dispute between two abutting property owners. A rendition of the facts pertinent to the issues on appeal follows. Carl and Rita Fust owned and occupied a parcel of land in South St. Louis County. They owned this property as tenants by the entirety since April 1979. David Francois, the president of Butler Hill Investment, Inc., owned a large portion of the property adjoining the Fusts' land. Francois was a real estate investor and Butler Hill Investment, Inc. was the company formed to complete the commercial tract.
The animosity started between the parties in 1980 when Francois sought permission to develop 29-30 acres of his property from the St. Louis County. Francois wished to build a $40 million commercial development and requested the rezoning of the property from residential to commercial use. The Fusts did not want the proposed development and actively campaigned against it by circulating petitions and speaking at council meetings. Francois' rezoning proposal was eventually rejected in 1981.
The portion of Francois' property at issue entails two lots, lots 7 and 8, which adjoin only at a point. In between the two lots lies the Fust property. The pictures admitted at trial show lots 7 and 8 as undeveloped land, strewn with garbage and containing piles of cement blocks and other debris.
In 1988, Francois offered to purchase a portion of the Fusts' back yard so he could then run equipment between lots 7 and 8. If Francois owned the back portion of the Fusts' property, he would then be able to remove dirt from lot 7 and deposit it to fill the sinkholes on lot 8 using a belly-scraper, which would save anywhere from $90,000 to $135,000. To negotiate the purchase Francois had a real estate agent talk with the Fusts. He offered the Fusts $25,000 for the parcel, which the Fusts refused.
The Fusts later received a letter signed by Beverly Luko, an accountant for Francois. The letter informed them of the plans to fix-up the property and warned of possible adverse affects of sinkholes on adjoining property. The letter further gave the Fusts warning of future legal problems and suggested they consider liability insurance. Taking the letter seriously, the Fusts wrote to the St. Louis County Department of Planning, attaching a copy of the letter and asking them to look into the matter.
Thereafter in January 1990, Francois had his property surveyed and the property marked with posts for the purpose of building a fence. The Fusts did not necessarily oppose the building of the fence, but did not like its location so close to the property lines and did not wish it to be painted white as Francois proposed. The Fusts voiced their concerns and displeasure in a letter dated January 31, 1990 and sent it to Francois. Copies of the letter were also sent to council members and neighboring property owners.
Concerned about the contents of the Fusts' letter, Francois sought advice from an attorney, J. Patrick Winning. Francois and Winning went out to the property on March 20, 1990 and observed two or more piles of yard waste, rocks and other debris. Winning testified that it was Francois who identified Carl Fust as the one who put the trash on the property. Winning also testified Francois noticed some survey stakes missing and that Francois thought Fust had removed the stakes from the property.
On April 2, 1990, Winning, on behalf of Francois, filed a three count petition against Carl Fust. Count I asserted Fust had, on or about January 1990, entered Francois' property without permission and deposited trash and other debris and removed surveying stakes, and prayed for damages in excess of $150,000. Count II alleged Fust had defamed Francois by writing a letter, dated January 31, 1990, to Francois and circulating it to others for the purpose of embarrassing Francois and forcing Francois to purchase the Fust property at an inflated price or prevent Francois and his company from developing the property. Count II prayed for compensatory damages in excess of $150,000 and punitive damages of $250,000. Lastly, in Count III, Francois claimed Fust harassed them by writing the aforementioned letter to Francois and by inciting other neighbors to make complaints against Francois and the proposed development. Count III requested $150,000 in compensatory damages, $50,000 for mental anguish, and $250,000 in punitive damages.
Upon request for a more definite statement, Count I was amended to plead the specific dates of the supposed trespass. The amended pleading stated the occurrence dates as January 14, 1990 and January 21, 1990. Francois also specifically pled that Fust entered the property on March 17, 1990 and destroyed the survey stakes. Count III for harassment was dismissed upon motion for failing to state a cause of action.
In November 1990, Francois made a settlement offer to Fust asserting five preconditions. The preconditions included writing a letter of apology, refraining from actively campaigning against the development, and paying Francois $25,000. Fust rejected the offer.
On December 6, 1990, a second amended petition was filed by Francois to add Rita Fust as a party to Count I for trespass. It prayed for damages against both Carl and Rita Fust in excess of $150,000.
On March 16, 1992, the case was dismissed for Francois' failure to comply with discovery requests. Shortly after the case was dismissed, Francois sent a letter to the Fusts stating that he was aware they were again slandering his name and dumping items on his property. Francois demanded it stop and threatened them to "not make a second lawsuit necessary," which would "be much more costly" and have "a much different ending."
On July 20, 1992, the Fusts filed the instant action against David Francois and Butler Hill Investment for malicious prosecution. The matter was tried on April 11, 1994, with Francois not present. 2 At trial, the issues of liability and punitive damages were bifurcated. At the close of the liability phase, the jury returned a verdict in favor of Carl for $500,000 and Rita in the amount of $600,000 jointly and severally against Francois and Butler Hill Investment. The punitive damages phase similarly favored the Fusts. Carl was awarded $375,000 in punitive damages against each Defendant, and Rita was awarded $450,000 in punitive damages against each Defendant. Francois' after-trial motion for remittitur was granted, and the court reduced Carl Fust's compensatory damage award to $200,000 jointly and severally and punitive damage award to $150,000 against each Defendant. Rita Fust's judgment, on the other hand, was reduced to $240,000 jointly and severally for compensatory damages and to $180,000 against each Defendant in punitive damages. This appeal followed.
For the first point on appeal, Francois asserts the trial court erred in denying his motions for directed verdict and J.N.O.V. He argues the verdict should have been in his favor because the Fusts failed to make a submissible case of malicious prosecution. To succeed in an action for malicious prosecution, the plaintiff has the burden of showing the following: (1) commencement of an earlier suit against plaintiff; (2) instigation of the suit by defendant; (3) termination of the suit in plaintiff's favor; (4) lack of probable cause for the suit; (5) malice by defendant in instituting the suit; and (6) damage to plaintiff resulting from the suit. State ex rel. Police Ret. Sys. v. Mummert, 875 S.W.2d 553, 555 (Mo. banc 1994). Francois argues the Fusts failed to satisfy the fourth element.
Probable cause for initiating a civil suit means "a belief in the facts alleged, based on sufficient circumstances to reasonably induce such belief by a person of ordinary prudence in the same situation, plus a reasonable belief by such person that under such facts the claim may be valid under the applicable law." Haswell v. Liberty Mut. Ins. Co., 557 S.W.2d 628, 633 (Mo. banc 1977). Proving the want of probable cause involves proving a negative, therefore, the slightest of proof is all that is required to make a prima facie case. Id. If there is no dispute about the facts of a claim for malicious prosecution, the existence of probable cause is a question of law for the court, not a question of fact for the jury. Mummert, 875 S.W.2d at 555.
Here, although Francois argues otherwise, there were factual disputes which were for the jury to decide. The Fusts denied the allegations of entering the property in 1990, dumping materials on the property and taking out stakes. Also in dispute was the idea Francois sued to pressure the Fusts into selling the property or pressure them into accepting the commercial development. These were matters for the jury to determine.
Looking at the evidence as a whole in the light most favorable to the Fusts, there was sufficient evidence to support a lack of probable cause on the part of...
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