Greco v. Robinson

• Decision Date: 22 March 1988
• Docket Number: No. 52418,52418
• Citation: 747 S.W.2d 730
• Parties: Leonard GRECO and Karen Greco, his wife, Appellants, v. Charles ROBINSON, Steven C. Robinson, and R.E.P., Ltd., Respondents.
• Court: Missouri Court of Appeals

Page 730

747 S.W.2d 730

Leonard GRECO and Karen Greco, his wife, Appellants, v. Charles ROBINSON, Steven C. Robinson, and R.E.P., Ltd., Respondents.

No. 52418.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 22, 1988.

Joseph R. Dierkes, St. Louis, for appellants.

Heather S. Heidelbaugh, Dana A. Hockensmith, St. Louis, for respondents.

GRIMM, Judge.

Appellants Leonard and Karen Greco filed a three count petition alleging conversion, wrongful eviction, and "outrageous conduct-prima facie tort." Pre-trial, a motion for summary judgment on the "outrageous conduct-prima facie tort" count was sustained. In the trial before a jury, at the conclusion of the Grecos' evidence, a motion to dismiss filed by Steven Robinson and R.E.P., Ltd., was sustained. The jury returned verdicts in favor of respondent Charles Robinson.

On appeal, the Grecos allege that the trial court erred in (1) failing to grant a new trial based on after-trial affidavits relating to testimony given by a witness, (2) granting a motion for summary judgment on the "Outrageous Conduct-Prima Facie Tort" count, (3) excluding evidence of "mental or emotional distress" in the conversion and wrongful eviction counts, (4) failing to restrict cross examination, (5) sustaining a motion for directed verdict for two defendants, and (6) giving an incorrect converse instruction. Finding no reversible error, we affirm.

In August, 1981, the Grecos leased an apartment on Lonedell Road in Arnold, Missouri. The property was owned by Sandia Construction Company, whose sole stockholders are Charles and Sylvia Robinson. This property is managed by R.E.P Ltd., whose sole stockholder is Charles' son, Steven.

Throughout 1981 and 1982, the Grecos were habitually late in their payment of rent. R.E.P. often served or mailed Notices of Overdue Rent and Termination to the Grecos. As a result, the Grecos often had to pay a ten dollar late rent fee. Between August, 1981, and August, 1982, at least twice the utility companies turned off all utilities due to the non-payment of bills.

On July 20, 1982, the Grecos paid the rent due July 1, plus the ten dollar fee. The bank returned the check due to insufficient funds, but apparently cleared it the second time. At this time, Leonard told Steven that the August rent would also be late; "probably come in around the 15th or 16th."

On August 10, according to Rebecca Classe, Charles' part-time receptionist, Leonard called the Robinson office and stated he could not pay his rent; he was leaving town because his wife had left, and he was going to Indiana to look for her. Leonard, on the other hand, said that he and his wife left Arnold together around August 10 to go to Indianapolis; he denied making any phone calls from Indianapolis back to the Robinsons.

Classe further said that Leonard called on August 19 and wanted to talk to Charles. She put Charles on the line, but she stayed on and listened to the conversation. She heard Leonard tell Charles he couldn't pay the rent and he wanted to get out of the lease. He asked Charles if there was any way to do that; Leonard suggested that their "stuff" be moved out to stop the rent and the late rent charge. Charles agreed to store the "stuff" in the apartment basement and, according to Classe, Leonard "gave the okay to do so as soon as possible." Charles basically confirmed Classe's testimony, agreeing to store the items for a week or two. However, Leonard testified that he did not give anyone permission to move his property from the apartment.

Leonard testified that he, his wife, and his son returned to Arnold at 2:00 a.m. on August 20. When they arrived at their apartment, Leonard found that his key did not work and they could not get in. They saw that the apartment was empty. Leonard then called Steven who told him that he had been evicted, his property was in the basement at the office, and he was to meet Charles at his office the next morning.

Leonard went to Robinson's office the next morning. Testimony regarding who was present and what conversation took place is contradictory. Leonard said Charles, Steven, and Rebecca Classe were present; Charles said he and Classe were present; while Classe said she and Charles were present and that Steven walked in later. Karen Greco remained outside in the car.

Leonard testified that he asked to see his property and asked to resume living in the premises. According to Leonard, he was told that he could not because the apartment was already rented out. Leonard was then given a document, and was told that he had to sign it before he could get his property back. Leonard signed, and then went outside and talked to his wife; she refused to sign. He then went back inside and laid it on Charles' desk, and left. The next day, the Grecos went to Robinson's office; he let them look at their property for five minutes, but told them they couldn't take anything until Karen signed the release, which she did not do. They went back two days later, without any success, and then contacted a lawyer. On August 25, they went to Indianapolis, returning to Arnold on September 1. At that time, they went to Robinson's, Karen signed the "release," and obtained their property.

Charles, on the other hand, testified that he did not remove the Grecos' belongings until after lunch on August 20, and he did not see Leonard until the morning of August 21. At that time, Leonard asked "[I]f I got everything out of the apartment." Charles told him yes, and Leonard then went to the basement to look at his belongings. Steven handed Leonard a Notice to Terminate Tenancy. Charles gave Leonard an "affidavit" to "hold harmless the lessor" from claims arising from the initial lease; Leonard signed immediately and then took it out to his wife for her to sign. She refused to sign. Leonard said that he would come back later; that he didn't have any way to haul things.

The first issue we consider is whether the trial court erred in denying the Grecos' motion for new trial based on after-trial affidavits relative to Classe's testimony at trial. The affidavits indicate that Classe worked at her regular job in Maplewood from 7:30 a.m. to 4:00 p.m. on August 10, 19, 20, and 23, as well as September 1. They assert that this information is inconsistent with her trial testimony; that these inconsistencies did not come to their attention until after the trial; and that the trial court erroneously failed to grant them a new trial based on this newly discovered evidence. We disagree.

First, and foremost, this point was not raised in the motion for new trial, and therefore is not before us on appeal. Although the motion for new trial was timely filed on August 12, 1986, the only reference in the motion to Classe's testimony was on a complaint that the verdict was against the weight of the evidence. The affidavits were filed with the trial court on November 6, 1986, as attachments to "Plaintiff's Suggestions in Support of Motion for New Trial." A party may not add a new point to a motion for new trial under the guise of making "Suggestions." A motion for new trial may not be amended to add a new point after the expiration of the time provided by court rule. Morgan v. Wartenbee, 569 S.W.2d 391, 396 (Mo.App.W.D.1978). As such, any amendment filed out of time is a nullity. Lloyd v. Garren, 366 S.W.2d 341 (Mo.Div.1 1963). Thus, this complaint of the Grecos is not before us.

Even if the Grecos' complaints about Classe's testimony were timely filed in a motion for new trial, the trial court's ruling would not be disturbed. Motions for new trial on the basis of newly discovered evidence are addressed to the sound discretion of the trial judge, are viewed with disfavor, and are granted only in exceptional circumstances. City of Eureka v. Hall, 687 S.W.2d 917, 920 (Mo.App.E.D.1985); Morgan, Id. at 399. We have carefully compared the affidavits with the trial testimony, and we find no abuse of discretion by the trial court in denying a new trial on this basis. We also note that Classe's name (although possibly misspelled) was known to the Grecos some 3 1/2 months before trial, as well as the fact that she was a witness to certain events on August 10, 19, and 21, and on September 1. As a result, the information contained in the affidavits could have been determined before trial. Point denied.

Grecos' next point is that the trial court erred in granting Robinson's motion for a summary judgment on Count III, which they titled "Outrageous Conduct--Prima Facie Tort." These issues are raised in the context of Robinson's alleged refusal to return Grecos' property before a release from liability was signed. We find no error in the granting of this summary judgment.

A trial court may grant a summary judgment only when there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Supreme Court Rule 74.04(c). When reviewing a trial court's ruling on a motion for summary judgment, this court should scrutinize the record in the light most favorable to the party against whom the motion for summary judgment was filed and against whom judgment was rendered. Hill v. Air Shields, Inc., 721 S.W.2d 112, 115 (Mo.App.E.D.1986).

Here, we look at both theories in the light most favorable to the Grecos to determine if there is a genuine issue of material fact. The doctrine of prima facie tort has been recognized in Missouri as a remedy for intentional malicious acts. Porter v. Crawford and Company, 611 S.W.2d 265, 272 (Mo.App.W.D.1981). The elements of a prima facie tort are: (1) an intentional lawful act by the defendant; (2) an intent to cause injury to the plaintiff; (3) injury to the plaintiff; (4) an absence of any justification, or an insufficient justification, for the defendant's act. Porter at 268; See generally, Restatement (Second) of Torts § 870, (1979).

Here, the Grecos have not met the first element of a prima facie tort,...