Impey v. Clithero

• Decision Date: 24 April 2018
• Docket Number: WD 80991
• Citation: 553 S.W.3d 344
• Parties: John T. IMPEY, Appellant, v. Michael A. CLITHERO, and Timothy J. McFarlin, and Jason Smith, and Derek Ankrom, and Husch Blackwell, Respondents.
• Court: Missouri Court of Appeals

553 S.W.3d 344

John T. IMPEY, Appellant,

v.Michael A. CLITHERO, and Timothy J. McFarlin, and Jason Smith, and Derek Ankrom, and Husch Blackwell, Respondents.

WD 80991

Missouri Court of Appeals, Western District.

Opinion filed: April 24, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied May 29, 2018

Application for Transfer to Supreme Court Denied August 21, 2018

Robert T. Wilhelmus, for Appellant.

Rodney E. Loomer, Springfield, for Respondents.

Before Division Four: Mark D. Pfeiffer, Chief Judge, Anthony Rex Gabbert, Judge and Edward R. Ardini, Jr., Judge

EDWARD R. ARDINI, JR., JUDGE

John Impey filed an amended petition alleging malicious prosecution and abuse of process against Larry Joe Hart ("Hart") and L.J. Hart & Co. ("Hart Co.")(collectively "the Harts"), and Husch Blackwell, LLP ("Husch").¹ Husch moved for summary judgment. The motion was granted by the Circuit Court of Cole County, Missouri ("trial court") and Impey appeals. The judgment of the trial court is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND²

The record is viewed in the light most favorable to Impey as "the party against whom the summary judgment was entered[,]" and he is accorded "the benefit of all reasonable inferences from the record." Diehl v. Fred Weber, Inc. , 309 S.W.3d 309, 317-18 (Mo. App. E.D. 2010) (citations omitted). The school board of Houston R-1 School District desired to finance the building of a new high school through bonds and contracted with Hart Co. to underwrite the proposed bond sale. The bond issue was placed on the April 2009 ballot. At the time, Hart was the President, Secretary, and only member of the Board of Directors of Hart Co. and advised the school board on the financing aspects of the project.

Impey, a candidate for Houston’s school board at the same election, opposed the plan to finance the new high school through bonds. Although he was not in attendance at the meetings when Hart provided advice to the school board, Impey sent various letters, including one published in the Springfield News-Leader, regarding Hart and the project.

On February 13, 2009, Hart and Hart Co., represented by Husch, filed a Petition against Impey alleging defamation, tortious interference with business expectancy, and seeking a declaratory judgment, injunctive relief "prohibiting Impey from again making [defamatory and false] statements and accusations[,]" and damages. They also filed a motion for a temporary restraining order ("TRO") and preliminary injunction. The petition and motion narrowly focused on three specific statements by Impey regarding Hart Co. and Hart.

Prior to the trial court conducting a hearing on the requested injunction, Impey filed a special motion to dismiss and/or for summary judgment pursuant to section 537.528,³ Missouri’s anti-SLAPP statute,⁴ which was overruled by the trial court. The anti-SLAPP statute provides, in part, that "[i]f the court finds that a special motion to dismiss or motion for summary judgment is frivolous or solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney fees to the party prevailing on the motion." § 537.528.2. Pursuant to this section, Hart Co. and Hart requested that they be awarded their litigation costs and attorney’s fees related to the special motion. The request was granted, and the trial court ordered that an affidavit describing such fees and costs incurred be submitted. The order awarding the fees and costs was entered on August 12, 2011.

Meanwhile, the election was held on April 7, 2009. The school bond issue did not pass, and Impey also was not elected to office. A hearing on the Harts' request for a preliminary injunction was held on April 16, 2009. The trial court, finding that Hart and Hart Co. would "suffer irreparable harm to their reputations and business expectancies" if the accusations were republished during the litigation and that "good cause" had been shown, entered a preliminary injunction prohibiting Impey "from making the following accusations:"

1. Hart advised the school board to circulate rumors that the historic [Houston High School] building was "unsafe" and "structurally unsound." When a report by Pinnacle engineering failed to confirm this rumor, Hart advised the board to shift its tactic to calling it "unusable" [sic] to condition the public to consider their living history a "waste of space."

2. In Pierce City, when a report by Rosenbury Architect concluded its original high school was structurally sound, and should be renovated rather than destroyed, Hart influenced the board to hire a new architect to give them a report more in tune with his own self-interest.

On July 5, 2011, Impey filed a special motion for summary judgment pursuant to Rule 74.04 and section 537.528. On August 8, 2011, Hart Co. and Hart requested additional time to respond to the motion, and voluntarily dismissed the cause of action less than a week later.

Impey filed suit against the Harts and Husch nearly two years later in August 2013, claiming that the original action between the parties amounted to malicious prosecution and abuse of process. Both defendant groups (Hart Co./Hart and Husch) moved to dismiss Impey’s suit for failure to state a claim. The motions were considered together and granted, and the suit was dismissed without prejudice. On August 5, 2014, Impey filed an amended petition, and defendants renewed their motions. After a hearing, the trial court again dismissed Impey’s suit for failure to state a claim, this time with prejudice. The Missouri Court of Appeals, Southern District, reversed, holding that the amended petition sufficiently pleaded claims for malicious prosecution and abuse of process. Impey , 471 S.W.3d 776.

After being remanded, the case was transferred to Cole County. Summary judgment was entered against Impey in a judgment that did not specify the trial court’s reasoning. Impey appeals.

DISCUSSION

On appeal, Impey alleges that the trial court erred in granting summary judgment because genuine issues of material fact exist regarding (1) whether Husch made an improper use of process in the first lawsuit, (2) whether Husch acted without probable cause, and (3) whether Husch acted with malice.

Standard of Review

Our review of the grant of summary judgment is de novo. Williams v. HSBC Bank USA, N.A. , 467 S.W.3d 836, 840 (Mo. App. S.D. 2015) (citation omitted). "Where the trial court does not specify its reasoning for granting a motion for summary judgment, we presume it acted according to grounds set forth in the motion." Romeo v. Jones , 86 S.W.3d 428, 431 (Mo. App. E.D. 2002) (citation omitted). However, we can affirm the judgment "by any appropriate theory supported by the record." Williams, 467 S.W.3d at 840 (citation omitted); Romeo , 86 S.W.3d at 431 (citation omitted).

"Summary judgment is appropriate when the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law." Id. (citation omitted); see also Rule 74.04(c)(6). A summary judgment movant who is the defendant must demonstrate:

(1) facts negating any one of the claimant's elements necessary for judgment; (2) that the claimant, after an adequate period of discovery, has not been able to—and will not be able to—produce evidence sufficient to allow the trier of fact to find the existence of one of the claimant's elements; or (3) facts necessary to support his properly pleaded affirmative defense.

Clark v. Ruark , 529 S.W.3d 878, 881-82 (Mo. App. W.D. 2017) (citation omitted). "Once the [movant] has made such a showing, the burden shifts to the [non-moving party], who must demonstrate by affidavit, depositions, answers to interrogatories[,] or admissions on file that one or more of the material facts relied upon by the [moving] party is genuinely disputed." Macke Laundry Serv. Ltd. P'ship v. Jetz Serv. Co. , 931 S.W.2d 166, 178 (Mo. App. W.D. 1996) (citation omitted).

Point I: Abuse of Process

Impey argues that Husch abused the judicial process by using it to accomplish an unlawful purpose, i.e. , to "silence" Impey before the election. "The essence of a claim for abuse of process is the use of process for some collateral purpose." Impey , 471 S.W.3d at 780 (citation omitted). A plaintiff who brings an abuse of process claim must establish "(1) an illegal, improper, perverted use of process, (2) done for an improper purpose, (3) resulting in damage." Id. (citation omitted). "The test is whether the process was used to accomplish some unlawful end or to compel the opposing party to do some collateral thing that he could not be compelled to do legally[,]" such as to extract money from another. Lambert v. Warner , 379 S.W.3d 849, 856 (Mo. App. E.D. 2012) (citation omitted); Wells v. Orthwein , 670 S.W.2d 529, 532 (Mo. App. E.D. 1984) (citation omitted). However, "if the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint[,] there is no abuse even if the plaintiff had an ulterior motive in bringing the action[ ] or ... knowingly brought suit upon an unfounded claim." Williams , 467 S.W.3d at 843-44 (citations omitted).

In arguing that Husch used the judicial process to "silence" him before the election, Impey primarily relies on the following evidence and inferences therefrom:

(1) Husch’s argument that they "filed the action to prevent Mr. Impey from making false statements about our client prior to the election[;]"⁵

(2) Email correspondence between Husch and Hart Co. after Impey filed a special motion for summary judgment stating that "[t]he cheapest option may very well be to simply dismiss the case with prejudice[;]" and

(3) The failure to pursue the lawsuit to its authorized conclusion by voluntarily dismissing the lawsuit after the election was over and Impey again filed a special motion for summary judgment.

Impey further argues that Husch should have known that there allegedly was no legal basis for the claims...