Heberlie v. Harriman Oil Co., ED 103702

• Decision Date: 06 September 2016
• Docket Number: ED 103702
• Citation: 497 S.W.3d 886
• Parties: Jeffrey Alan Heberlie, Appellant, v. Harriman Oil Company, LLC, Respondent.
• Court: Missouri Court of Appeals

497 S.W.3d 886

Jeffrey Alan Heberlie, Appellant,

v.Harriman Oil Company, LLC, Respondent.

ED 103702

Missouri Court of Appeals, Eastern District, DIVISION FOUR .

Filed: September 6, 2016

Clinton B. Roberts, Farmington, MO, for Appellant.

David T. Ahlheim, Craig D. Jobe, St. Louis, MO, for Respondent.

Gary M. Gaertner, Jr., Judge

Introduction

Appellant Jeffery Heberlie (Heberlie) appeals the trial court's summary judgment in favor of Respondent Harriman Oil Company, LLC (Harriman Oil), on Heberlie's claim of malicious prosecution. The underlying suit prompting Heberlie's claim was initiated by Harriman Oil against Heberlie for collection of a debt. Heberlie argued Harriman Oil knew such debt had been discharged by bankruptcy proceedings, thus Heberlie filed the present suit for malicious prosecution. Because the undisputed facts established Heberlie could not prevail on this claim, we affirm.

Background

Heberlie was a member of a corporation called Corner Market Operating Team, LLC (Corner Market LLC), with one other member, Thomas Baker (Baker). Corner Market LLC operated a gas station and market called the Corner Market (Corner Market). On October 26, 2007, Corner Market LLC entered into a Petroleum Product Sales Agreement (Sales Agreement) with Harriman Oil to purchase fuel. Heberlie and Baker both signed the Sales Agreement as personal guarantors for Corner Market LLC under the agreement.

Over the period of time during which Corner Market LLC purchased fuel from Harriman Oil, Harriman Oil would deliver the fuel and then electronically withdraw funds for the fuel from Corner Market LLC's bank account at First State Community Bank. Corner Market LLC maintained this bank account solely for the purpose of paying Harriman Oil for fuel. No other vendors withdrew funds from this account, and Corner Market LLC did not use this account to pay for other services. Corner Market LLC used a second bank account at Bank Star of the Leadbelt for daily deposits and to pay other vendors.

On Friday, May 16, 2008, Heberlie unilaterally decided to close the Corner Market upon advice from his attorney. Heberlie did not inform Baker of this decision because he believed Baker was planning to remove himself as a guarantor from the Sales Agreement on Monday, May 19, 2008, Heberlie contacted local police to let them know he would be closing the Corner Market permanently on Sunday, May 18, 2008. Heberlie decided to liquidate all of Corner Market's merchandise over the weekend.

Additionally, Harriman Oil delivered multiple loads of fuel to the Corner Market that weekend. Heberlie had ordered more fuel than usual for the weekend. Invoices from May 15 and 16, 2008, totaled $34,660.77. Harriman Oil made an additional delivery on May 17, 2008, and the invoice for that delivery was in the amount of $15,612.54. On Sunday, May 18, 2008, sometime between 5 p.m. and 8 p.m., Heberlie also lowered the price of gasoline at least 50 cents lower than other gas stations in town, in order to sell as much as possible. Heberlie knew that the gasoline had been provided via credit by Harriman Oil and that Corner Market LLC would owe Harriman Oil payment for the gasoline.

When Heberlie closed the Corner Market on Sunday, May 18, 2008, he took all of the money from sales over the weekend home with him. On Monday, May 19, 2008, Heberlie deposited all of the money in the bank account with Bank Star of the Leadbelt. In doing so, Heberlie knew there would not be sufficient funds in the First State Community Bank account to pay for the gasoline from the weekend. When Harriman Oil attempted to withdraw money from the bank account at First State Community Bank for these invoices, the requests were returned due to insufficient funds in the account.

Heberlie used the money from the weekend to pay other vendors besides Harriman Oil. He had considered the responsibilities he had regarding payment of vendors with the closing of the Corner Market and decided he would “just do the best that he could.” He did not pay any of the money owed to Harriman Oil. In October of 2008, Heberlie received a letter from Harriman Oil demanding payment regarding a check that was returned for insufficient funds in the amount of $ 19,831.48. Heberlie's attorney responded to the letter, stating that Heberlie had no individual liability for debts of the Corner Market. Heberlie did not send payment.

On June 18, 2010, Heberlie filed for personal bankruptcy under Chapter 7 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Missouri. Heberlie did not list Harriman Oil as a creditor, and Heberlie did not apprise Harriman Oil of the bankruptcy filing at that time. The case was designated a “no asset” case. On September 28, 2010, the Bankruptcy Court entered its Order Discharging Debtor (Bankruptcy Order).

On August 3, 2011, Harriman Oil filed a complaint in the United States District Court for the Eastern District of Missouri against both Baker and Heberlie, alleging breaches of personal guaranty against each of them. The complaint alleged that Corner Market LLC had failed to pay Harriman Oil for gasoline under the Sales Agreement in the amount of $ 138,583.01. Shortly after Harriman Oil filed suit, Heberlie's attorney informed Harriman Oil of Heberlie's Bankruptcy Order and requested that Harriman Oil dismiss the count against Heberlie.

On March 3, 2012, Harriman Oil filed an amended complaint, adding a claim of fraud against Heberlie. Harriman Oil alleged that Heberlie purposely incurred debt with Harriman Oil, never intending to pay it, for the purpose of benefiting himself and deceiving and harming Harriman Oil. Heberlie subsequently moved to dismiss Harriman Oil's claims with prejudice. Harriman Oil failed to file a timely response, and the court granted Heberlie's motion, dismissing Harriman Oil's claims against Heberlie with prejudice.¹

On October 24, 2012, Heberlie filed the lawsuit that is the subject of this appeal. Heberlie's petition in the circuit court contained a single claim of malicious prosecution, alleging that Harriman Oil's action against Heberlie for breach of personal guaranty lacked probable cause because Harriman Oil failed to give Heberlie notice of the failure to perform under the Sales Agreement. Additionally, Heberlie alleged that Harriman Oil lacked probable cause to continue its prosecution of its claims against Heberlie after Heberlie informed Harriman Oil of his Bankruptcy Order.

Harriman Oil moved for summary judgment. The trial court found that there was no factual dispute, and that the undisputed facts established Harriman Oil had probable cause to bring its claim of fraud. Thus, the trial court granted summary judgment in favor of Harriman Oil. This appeal follows.

Standard of Review

Our review of summary judgment is essentially de novo . ITT Commercial Fin. Corp. v. Mid – Am. Marine Supply Co., 854 S.W.2d 371, 376 (Mo.Banc 1993). We review the record in the light most favorable to the party against whom judgment was entered. Id. We take all facts set forth by affidavit or otherwise in support of the motion as true unless contradicted by the non-moving party's response, and we accord the non-movant the benefit of all reasonable inferences from the record. Id. The propriety of summary judgment is purely an issue of law. Id.

Discussion

Heberlie raises four related points on appeal, all arguing the trial court's summary judgment was improper.² Because of the nature of our review of a claim for malicious prosecution in the context of summary judgment, we address them together as we review the propriety of the trial court's judgment here. We find the trial court's summary judgment was proper.

Under Rule 74.04(c),³ where a “defending party” moves for summary judgment, one of the ways he or she may establish a right to judgment is “by showing ... that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements.”

ITT Commercial Fin. Corp., 854 S.W.2d at 381. Where there is no genuine dispute as to the facts underlying this right to judgment, summary judgment is proper. Id.

Here, Heberlie's claim was for malicious prosecution. The elements of this claim are: “(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.” Joseph H. Held & Associates, Inc. v. Wolff, 39 S.W.3d 59, 62–63 (Mo.App.E.D.2001) (citing Stafford v. Muster, 582 S.W.2d 670, 675 (Mo.banc 1979) ). Because actions for malicious prosecution are not favored, a plaintiff must provide “strict and clear proof” of each of these elements. Holley v. Caulfield, 49 S.W.3d 747, 750–51 (Mo.App.E.D.2001).

Thus, as the defending party moving for summary judgment, Harriman Oil could establish a right to judgment as a matter of law by showing that Heberlie would be unable to produce evidence sufficient to allow the trier of fact to find the existence of any one of the elements of malicious prosecution by strict and clear proof. See id. at 62 (quoting ITT Commercial Fin. Corp., 854 S.W.2d at 381 ). The trial court focused on the fourth element, the absence of probable cause, finding that the undisputed facts established that Harriman Oil had probable cause to bring its claim of fraud, and therefore Heberlie would not be able to establish the absence of probable cause.⁴ See Wolff, 39 S.W.3d at 63–64 (undisputed facts demonstrated plaintiffs could not show lack of probable cause for entire proceeding). Thus, the trial court determined summary judgment in favor of Harriman Oil was proper. We agree.

First, the underlying proceeding may give rise to only one...