Kelley v. Kelly Residential Group, Inc.

• Decision Date: 01 April 1997
• Docket Number: 69818,Nos. 69756,s. 69756
• Citation: 945 S.W.2d 544
• Parties: John KELLEY and Denise Kelley, Plaintiffs/Respondents, v. KELLY RESIDENTIAL GROUP, INC., Defendant/Appellant. John KELLEY and Denise Kelley, Plaintiffs/Appellants, v. KELLY RESIDENTIAL GROUP, INC., Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 544

945 S.W.2d 544

John KELLEY and Denise Kelley, Plaintiffs/Respondents, v. KELLY RESIDENTIAL GROUP, INC., Defendant/Appellant.

John KELLEY and Denise Kelley, Plaintiffs/Appellants, v. KELLY RESIDENTIAL GROUP, INC., Defendant/Respondent.

Nos. 69756, 69818.

Missouri Court of Appeals,

Eastern District,

Division Two.

April 1, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 14, 1997.

Application to Transfer Denied

June 17, 1997.

Gary R. Sarachan, Kenneth J. Rothman, Rothman, Sokol, Adler, Barry & Sarachan, St. Louis, for defendant/appellant.

Steven W. Garrett, Curtis, Oetting, Heinz, Garrett & Soule, P.C., St. Louis, for plaintiffs/respondents.

CRANE, Presiding Judge.

Plaintiff homeowners filed an action against their home builder to recover damages for malicious prosecution, arising out of a dismissed lawsuit the builder had filed against them, and trespass, arising out of home builder's construction of a retaining wall on their property. The jury returned verdicts in favor of the homeowners. However, the trial court entered judgment notwithstanding the verdict (JNOV) in builder's favor on the homeowners' trespass claim. Both parties appeal. We affirm the judgment in homeowners' favor on the malicious prosecution count. We reverse the JNOV in builder's favor on the trespass count and remand for entry of judgment in homeowners' favor in the amount of $1.00 as nominal damages.

FACTUAL BACKGROUND

We recite the facts in the light most favorable to the verdict. In March, 1993 plaintiffs John and Denise Kelley and their four children moved into a house purchased from and built by defendant Kelly Residential Group on Lot 59C in the Nantucket Subdivision. The lot is adjacent to the Cherry Hills Golf Course. One week after they moved in a golf ball shattered a bay window in the back of plaintiffs' house. Over the next six weeks the bay window was broken again and an upstairs window was broken by golf balls. In addition, they experienced a continuing problem of golf balls being hit into their yard at a high rate of speed, several of which hit the house. Plaintiffs informed both the golf course and defendant of these incidents. Defendant's president, Mark Kelly, asked John Kelley if he wanted defendant to buy plaintiffs out. John Kelley told him he liked the house but would like defendant's help in working something out with the golf course. Mark Kelly agreed.

When the golf ball problems continued, plaintiff John Kelley sent letters to defendant and Cherry Hills advising them that he considered the golf ball problem a serious safety hazard and requested defendant and Cherry Hills to remedy the problem. Defendant's attorney sent John Kelley a reply letter advising him that his problem was with Cherry Hills not defendant. He wrote: "In the future, please keep your communications between the parties involved, namely, individual property owners (i.e., yourself), individual golfers, and Cherry Hills golf club." John Kelley never told defendant that plaintiffs believed defendant was responsible for the golf ball problem. After he received that letter, John Kelley discussed with Mark Kelly the possibilities of moving dirt or planting trees. Mark Kelly said he would only resod. John Kelley was satisfied and made no demands on Mark Kelly to resolve the problem.

In the summer of 1993, defendant began construction of a house for John and Roberta Riemer on Lot 58C, adjacent to plaintiffs' lot. At the beginning of September, 1993, John Kelley saw Roberta Riemer in the Kelleys' backyard and introduced himself. In the conversation Kelley told her that a lot of golf balls were hit on the property some of which had hit the house and broken three windows. Roberta Riemer asked Kelley to tell this to her husband, John Riemer, who was in the front yard of Lot 58C, which Kelley did. The Riemers asked Kelley about the quality of defendant's work on plaintiffs' house. Kelley told them that defendant had done a good job and that plaintiffs were happy with the materials and the house.

The next day John Riemer met with Mark Kelly and told him that he had become aware of hundreds of golf balls in his neighbor's garage. Riemer reminded Mark Kelly that he had previously assured Riemer that a ball would only occasionally come on their property. Mark Kelly said he did not believe the problem was that bad, but because the Riemers did not want to live at Lot 58C, he was willing to offer them one or more of the following options: return their money, move them to a different lot, provide landscaping, escrow money for future problems, and reimburse them for expenses incurred as a result of a later closing. That evening, Roberta Riemer called the plaintiffs to further discuss the golf ball problem and asked Denise Kelley whether, if she had the chance, she would move. In response, Denise Kelley said she would "move in a minute" if she had the opportunity.

The next day, while the Riemers were investigating the golf ball problem with other lot purchasers, John Kelley told John Riemer that if defendant offered to buy him out he would accept. The Riemers decided to purchase Lot 34C instead of Lot 58C.

Approximately one week after Labor Day, 1993, John Kelley introduced himself to Kelly and Michael Binz, who told him they had purchased Lot 60C, which is adjacent to the Kelleys' property, and were building a house there. During the conversation John Kelley asked Michael Binz if he was aware of the golf ball problem. Michael Binz replied that he was not aware of any problem but that he was not concerned because he was a golfer. Michael Binz asked John Kelley about defendant and John Kelley told him that he was happy with his house and defendant did a good job. Michael Binz testified that John Kelley did not say anything to him that discouraged him from buying the property. Denise Kelley never met nor spoke with Kelly or Michael Binz before defendant filed its action against the plaintiffs.

Michael Binz testified he told defendant's sales manager, Carol Buckland, that John Kelley had told them about a golf ball problem and his concern for his children's safety. Carol Buckland told Binz that defendant was thinking about suing the plaintiffs. Binz then became concerned about living next door to someone involved in litigation, but completed purchase of the house on Lot 60C.

On September 17, 1993, a few days after the Binz conversation, defendant filed a four-count petition against plaintiffs. In Count I defendant sought damages for tortious interference with its contract with the Riemer trust to construct and sell a home on Lot 58C on September 5, 1993. In Count II defendant sought damages for defamation and slander arising out of statements made to Kelly and Michael Binz on September 14, 1993. In Count III defendant sought damages for prima facie tort, alleging that plaintiffs' acts were intentionally performed to cause injury to defendant. In Count IV defendant sought damages for trespass, alleging plaintiffs had wrongfully entered Lots 58C and 60C on approximately September 5, 1993 and September 14, 1993.

John Kelley hired an engineer who specializes in golf courses to meet with the golf course manager. On September 21, 1993, Cherry Hills moved one of the tees in accord with the engineer's suggestion. Thereafter, although golf balls occasionally came into plaintiffs' property, plaintiffs no longer had a problem with golf balls being hit at a high rate of speed at their house.

In June, 1994, defendant constructed part of a retaining wall for Lot 58C on plaintiffs' property. Defendant did not obtain permission to do so.

On July 6, 1994, defendant dismissed its cause of action against plaintiffs without prejudice. On September 19, 1994, plaintiffs filed a petition against defendant seeking damages for abuse of process and malicious prosecution and for trespass. On October 25, 1994, defendant filed a counterclaim reasserting three of the four counts in its previously dismissed petition: tortious interference with contract, prima facie tort, and trespass.

At the end of the trial, the court dismissed plaintiffs' claim for abuse of process and the prima facie tort and trespass counts of defendant's counterclaim. The jury returned a verdict in plaintiffs' favor on their claims for malicious prosecution and trespass and awarded damages of $15,000.00 to each plaintiff on the malicious prosecution counts and $2,500.00 on the trespass count. The jury returned verdicts in plaintiffs' favor on the tortious interference count of defendant's counterclaim. The trial court entered judgment in accordance with the jury verdict on the malicious prosecution counts and entered a JNOV in defendant's favor on the trespass verdict.

Defendant appeals the judgment of the trial court in plaintiffs' favor on the malicious prosecution counts. Plaintiffs appeal the JNOV in builder's favor on their trespass count.

DEFENDANT'S APPEAL

For its first point on appeal, defendant asserts that the trial court erred in denying its motions for directed verdict on plaintiffs' malicious prosecution counts because plaintiffs did not prove lack of probable cause on defendant's part to file its action. To succeed on a claim for malicious prosecution, a plaintiff must prove each of six elements: 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).

Probable cause for initiating a civil action "consists of 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...