Lambert v. Warner, ED 96445.

• Decision Date: 07 August 2012
• Docket Number: No. ED 96445.,ED 96445.
• Citation: 379 S.W.3d 849
• Parties: Klaus LAMBERT, and Constance Alt, Appellants, v. Mark WARNER and The City of Portage Des Sioux, Respondents.
• Court: Missouri Court of Appeals

379 S.W.3d 849

Klaus LAMBERT, and Constance Alt, Appellants,

v.Mark WARNER and The City of Portage Des Sioux, Respondents.

No. ED 96445.

Missouri Court of Appeals,

Eastern District,

Division Four.

July 3, 2012.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 7, 2012.

Application for Transfer Denied Oct. 30, 2012.

John C. Kress, The Kress Law Firm, LLC, St. Louis, MO, Jonathan E. Fortman, Law Office of Jonathan E. Fortman, LLC, Ellisville, MO, for Appellants.

Stephen A. Martin, The Law Office of Stephen A. Martin, Nathan A. Steimel, The Law Offices of Nathan A. Steimel, L.L.C., St. Charles, MO, for Respondents.

KURT S. ODENWALD, Chief Judge.

Introduction

Appellants Klaus Lambert (“Lambert”) and Constance Alt (“Alt”) (hereinafter collectively “Appellants”) appeal from the trial court's judgment after a jury found them liable to Respondents Mark Warner (“Warner”),¹ Russel Cissel (“Cissel”),² and the City of Portage des Sioux (collectively hereinafter “City”) for abuse of process in connection with the filing of certain lawsuits relating to a long standing dispute between Appellants and City over the condition of Appellants' property. Appellants assert multiple points of error. First, Appellants argue that the trial court erred in denying their motions for a directed verdict, judgment notwithstanding the verdict or for a new trial, and instructing the jury on damages because insufficient evidence existed to support a verdict for City. Second,Appellants contend that the trial court erred in submitting a punitive damages instruction because insufficient evidence existed that Appellants acted with the required evil motive or reckless indifference when commencing and prosecuting the underlying lawsuits. Third, Appellants aver that the trial court's verdict director constituted a roving commission. Lastly, Appellants claim the trial court improperly admitted evidence. Finding no error, we affirm the judgment of the trial court.

Factual and Procedural History

Appellants' property was damaged by a flood in 1993. After the flood waters receded, an independent disaster appraiser determined that several structures on Appellants' property were uninhabitable. In 1998, City sent formal notice to Appellants seeking the repair or demolition and removal of the affected structures. Appellants made no significant repairs, and did not remove the structures. In 2003, City filed a petition in the Circuit Court of St. Charles County alleging various violations of its municipal ordinances. In particular, City alleged Appellants' property contained multiple boats, that the property was overgrown creating a fire and driving hazard, and that the structures thereon were damaged and constituted a health and safety hazard. On March 31, 2004, the trial court entered an order finding a number of the buildings uninhabitable, and ordering one building torn down. On April 27, 2004, the Circuit Court of St. Charles County issued a judgment finding that Appellants continued to maintain the property in a condition that violated multiple City ordinances. The Circuit Court of St. Charles County made the specific factual finding that “[t]he red/rust colored building and the boat which had trees growing through it (both identified at trial) are found to be refuse, dangerous and injurious and must be removed.” The Circuit Court of St. Charles County further ordered that “[a]ll remaining (structures) are so damaged they are unfit for use of habitation and shall not be permitted” and therefore Appellants must either restore, elevate, or demolish those structures. On May 16, 2006, this Court issued a mandate affirming the trial court's April 2004 judgment as to the uninhabitable condition of the relevant structures and granting City injunctive relief. City of Portage Des Sioux v. Lambert, 196 S.W.3d 587, 592–93 (Mo.App. E.D.2006).

On October 19, 2006, City filed a motion in the Circuit Court of St. Charles County seeking to compel Appellants' compliance with the April 2004 order as affirmed by this Court. The Circuit Court of St. Charles County granted Appellants two extensions of time to comply with the April 2004 order. On October 19, 2006, the Circuit Court of St. Charles entered a judgment giving Appellants 60 additional days to comply with its previous abatement order, and 180 days to comply with its previous order to restore, elevate, or demolish the remaining structures on the property. On September 24, 2007, the Circuit Court of St. Charles County granted City's third motion to compel Appellants' compliance with the court's earlier orders. The Circuit Court of St. Charles County also entered judgment forfeiting Appellants' bond to City. In their notice of appeal to this Court from the September 24, 2007 order, Appellants stated that the court ordered that the forfeited bond money would be used to pay for City's expenses in demolishing the property at issue.

On April 25, 2008, while Appellants' appeal of the September 2007 judgment of the Circuit Court of St. Charles County was still pending, Appellants filed a collateral action in the Circuit Court of St. Louis County seeking a temporary injunction to prevent City from demolishing the structureson Appellants' property and alleging other various actions in tort (hereinafter “2008 TRO”). Appellants later filed a petition for writ of prohibition in this Court asking that we order the St. Louis County Circuit Court not to transfer the case to St. Charles County. After this Court denied Appellants' petition for writ of prohibition, the Circuit Court of St. Louis County transferred the 2008 TRO to the Circuit Court of St. Charles County. Appellants subsequently dismissed the 2008 TRO in December 2008.

One month after dismissing their 2008 TRO, Appellants filed another action in the Circuit Court of St. Louis County, again seeking to enjoin City from demolishing the structures on Appellants' property (hereinafter “2009 TRO”). In this action, Appellants averred their property had a wide array of historical significances and should not be altered or demolished. Appellants also alleged claims in tort seeking damages for intentional infliction of emotional distress, negligent infliction of emotional distress, tortious interference with a business relationship, and civil conspiracy. In their pleadings, Appellants did not disclose either the April 2004 or the September 2007 judgments entered by the Circuit Court of St. Charles County. Appellants also affirmatively stated that venue for the 2009 TRO action was proper in St. Louis County. The Circuit Court of St. Louis County transferred the 2009 TRO back to the Circuit Court of St. Charles County, once again over Appellants' objection, and once again after this Court denied the petition for writ of prohibition filed by Appellants to prevent the transfer of the petition to St. Charles County. This Court's order denying Appellants' petition for writ of prohibition admonished that Appellants' failure to apprise this Court of related past proceedings was “troublesome” and a violation of Mo. R. Civ. P. 84.24(a)(1) and Supreme Court Form No. 16.

City filed its answer to the 2009 TRO after the litigation was transferred to the Circuit Court of St. Charles County. City presented multiple affirmative defenses including collateral estoppel and res judicata. City also filed an amended counterclaim alleging abuse of process on grounds that the 2008 and 2009 TRO actions filed by Appellants in St. Louis County Circuit Court constituted an illegal, improper, and/ or perverted use of process. City alleged that Appellants filed the 2008 and 2009 TRO actions with a wrongful, unlawful, malicious, and ulterior purpose in order to avoid the execution of the April 2004 and September 2007 judgments of the Circuit Court of St. Charles County authorizing City to demolish the relevant structures on Appellants' property. City sought both actual and punitive damages in its counterclaim.

On October 22, 2009, while City's counterclaims were pending, the Circuit Court of St. Charles County found Appellants in contempt of its April 2004 and September 2007 judgments for failing to remedy the condition of the subject property. That court further ordered that if Appellants “fail to demolish and remove the red/rust colored building and remaining buildings on the property by November 30, 2009, the City of Portage des Sioux is hereby authorized to demolish and remove the structures.” Approximately one year later, on October 28, 2010, City demolished the relevant structures. Following the demolition of the structures, Appellants continued discovery on their claims by taking the depositions of Warner and Cissel. Two months after the demolition, Appellants dismissed all of their claims asserted under the 2009 TRO. The case proceeded to trial on the only remaining claim, City's counterclaim for abuse of process.

At the close of City's evidence on its counterclaim, the trial court denied Appellants'motion for a directed verdict. A jury found Appellants liable to City for abuse of process and awarded City $56,000 in actual damages and $35,000 in punitive damages. Appellants filed, and the trial court denied, a motion for judgment notwithstanding the verdict and for a new trial. This appeal follows.

Points on Appeal

Appellants assert multiple points of error on appeal. In their first and fourth points on appeal, Appellants argue that the trial court erred in denying their motions for a directed verdict and for judgment notwithstanding the verdict or for a new trial because there was insufficient evidence that Appellants filed the underlying lawsuits for a collateral purpose. In their second point on appeal, Appellants contend that the trial court erred in submitting a punitive damages instruction because there was insufficient evidence that Appellants acted with evil motive or reckless indifference in commencing and prosecuting the underlying lawsuits. In their third point...