Owen v. Owen

• Decision Date: 17 November 1982
• Docket Number: No. 12231,12231
• Citation: Owen v. Owen, 642 S.W.2d 410 (Mo. App. 1982)
• Parties: H.R. OWEN, Plaintiff-Appellant, v. Harley G. OWEN, and Mary Owen, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 410

642 S.W.2d 410

H.R. OWEN, Plaintiff-Appellant, v. Harley G. OWEN, and Mary Owen, Defendants-Respondents.

No. 12231.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 17, 1982.

David L. Smith, Cantwell, Allman & Smith, Branson, for plaintiff-appellant.

Jerry L. Redfern, Paul G. White, Neale, Newman, Bradshaw & Freeman, Springfield, for defendant-respondent Mary Owen.

No appearance for defendant-respondent Harley G. Owen.

TITUS, Judge.

H.R. and Harley Owen are brothers. Harley was married to Mary but on September 13, 1979, Harley sued for dissolution. The marriage was dissolved before the appeal herein was perfected. Following the filing of the dissolution petition or on January 10, 1980, H.R. filed a two-count petition against Harley and Mary each of whom was represented by different counsel. In Count I, an equitable action, H.R. alleged that he had purchased shares of bank stock in the names of Harley and Mary as an accommodation to them in which they agreed to assign it to him upon request. H.R. averred he had demanded the agreed-to assignment be made to him but such demand had been refused. The count prayed the court to declare that a constructive trust of the stock existed in his favor and for the court to order Harley and Mary to transfer the stock to him. Count II alleged that H.R. had agreed to permit Harley and Mary, from October 1976 through August 1979, to collect rent from property belonging to H.R. under an agreement that the rent collected would constitute a loan from H.R. to Harley and Mary payable on demand. Although, the petition averred, demand for the payment of the $33,057.40 rent thus collected had been made, payment had been refused. H.R. prayed for a $33,057.40 judgment against Harley and Mary.

Through their respective attorneys, Harley and Mary filed separate answers to H.R.'s petition. In addition, Mary counterclaimed for actual and punitive damages for abuse of process. Mary asseverated in the counterclaim that after Harley instituted the dissolution action she filed therein a motion seeking temporary orders declaring that Harley had converted $20,000 in marital assets into the joint names of H.R. and Harley and that H.R., in an attempt to defraud her of rightful marital property, filed the petition in this action "for the wrongful, unlawful and malicious purpose and ulterior object of extorting money from [Mary] and seeking to assist [Harley] in his [dissolution] action ... and to deprive [Mary] of her right and lawful marital property." By reason thereof and the mental anguish resulting therefrom, Mary prayed for $25,000 actual and $100,000 punitive damages from H.R.

Following a jury trial, verdicts were rendered for Harley and Mary on both counts of H.R.'s petition and for Mary on her counterclaim in the sums of $15,000 actual and $40,000 punitive damages. H.R. appealed. Only H.R. and Mary have filed briefs and appeared in this court.

H.R.'s first point relied on is that the trial court erred in accepting the jury's verdict on Count II of the petition and in refusing to grant him a new trial thereon because, as a matter of law, the verdict was not supported by substantial evidence in that both H.R. and Harley testified that H.R. was owed the money claimed per the alleged agreement set forth in Count II, supra.

Jurors, as finders of the facts, are the sole judges of the credibility of witnesses and the weight to be afforded their testimony. Also, jurors have leave to believe or disbelieve all, part or none of any witness' testimony even though it goes uncontradicted or undenied. Green v. Hastings, 621 S.W.2d 549, 550 (Mo.App.1981). As Mary's answer to Count II of H.R.'s petition denied its allegations, Mary was entitled to have the jury pass upon the credibility of the testimony of H.R. and Harley even though she offered no contradictory evidence herself. Davis v. Fiske, 578 S.W.2d 328, 331 (Mo.App.1979). The principal difficulty with H.R.'s point and the argument thereto, is that he wholly ignores the foregoing principles of law and that while his testimony and that of his brother's (probably suspect to the jury under the circumstances) was favorable to the averments made in Count II of the petition, both point and argument completely ignore the fact that Mary testified exactly contrary to the assertions of her then husband and brother-in-law and that the jury had the right, as they obviously did, to accept her testimony and disbelieve that contrary thereto. Point I is denied.

H.R.'s second and seventh points relied on will be considered in combination. These two points concern themselves with Count I of the petition. As acknowledged in H.R.'s brief, Count I was an equitable action seeking judicial declaration of a constructive trust of the bank stock in favor of H.R. and a decree ordering Harley and Mary to transfer the stock to him. The second point, in substance, is a contention that the jury's verdict on the count was not supported by substantial evidence. H.R.'s seventh point complains of an instruction given concerning Count I. What H.R. ignores in both points relied on is that there is no right to a trial by jury in a case of equity [State ex rel. Willman v. Sloan, 574 S.W.2d 421, 422 (Mo.banc 1978) ] but when the equity issue is submitted to a jury its verdict is advisory only and if the court accepts the verdict, it is considered to be the court's own finding on the fact issue rather than that of the jury. In review of equity cases submitted to a jury, appellate courts consider the issues therein as having been determined only by the trial court. Edwards v. Maples, 388 S.W.2d 850, 852[2-4] (Mo.1965). In the instant cause the decree on Count I expressly stated it had been "submitted to the jury in an advisory capacity." Since a decree in equity is not dependent upon the correctness vel non of jury instructions, any errors made in the giving or refusing of instructions in an equity case will not be considered on appeal. Conrad v. Diehl, 344 Mo. 811, 816, 129 S.W.2d 870, 873 (1939). The second and seventh points are denied.

We next consider H.R.'s third and tenth points together. By these, in effect, H.R. claims the jury's verdict in favor of Mary on her counterclaim for abuse of process was improper because the only evidence concerning abuse of process involved matters transpiring before H.R.'s suit was filed with the exception of conversations between H.R. and Mary regarding offers of settlement which were improperly admitted by the trial court.

To sustain an action for abuse of process, the facts must demonstrate an illegal and improper use of such process that is not warranted or authorized, an ulterior motive in exercising such process and damages. Wessler v. Wessler, 610 S.W.2d 650, 651 (Mo.App.1980). The test employed is whether the process had been used to accomplish some unlawful end or to compel the opposite party to do some collateral thing which he could not be compelled to do legally. Barnard v. Barnard, 568 S.W.2d 567, 571 (Mo.App.1978). Or stated somewhat differently, the privilege of process may not be used for an unlawful purpose such as using the litigation to extort money or anything of value from another. White v. Scarritt, 341 Mo. 1004, 1012, 111 S.W.2d 18, 22 (1937).

We do not comprehend H.R.'s assertion that things and matters occurring and arising between and affecting the parties prior to the filing of the action giving rise to an abuse of process claim may not be properly shown to the fact trier when the abuse of process cause is tried. Obviously things must occur and situations must develop before a litigant compels process to issue to accomplish some unlawful end or to compel his opponent to do a collateral thing which the opponent could not be compelled to do legally. Things and situations which occur and arise prior to the filing of formal action and issuance of the process clearly, at least to us, may well evidence the ulterior motive as to why the process has been exercised and abused.

Mary's trial evidence was that at and near the time Harley's petition for dissolution was filed on September 13, 1979, he gave his brother, H.R., some $73,956 in cash and merchandise. She also testified that when she asked H.R. about some of the money which Harley had given him, H.R. told her that if she didn't leave him alone about the matter he would sue her for "money, things, land, the income that we had." The dissolution proceeding was still pending with apparently no settlement thereof in sight when H.R. filed the instant action on January 10, 1980. The testimony further revealed that several times after H.R. instituted the present action, including once within a week of trial hereof, H.R. told Mary that if she would accept $50,000 to terminate the dissolution proceedings "like they wanted me to," H.R. would "drop his lawsuit."

If believed by the jury, which it evidently was, Mary's evidence illustrates that H.R. wanted Mary to settle the dissolution action upon his or Harley's terms or upon both of their terms. In exchange for Mary's capitulation, H.R. would dismiss his action. This surely demonstrated the true and basic purpose of H.R.'s lawsuit, i.e., to coerce Mary into settling the dissolution action in a manner which she could not be legally forced to do. We believe that if the jury accepted this evidence, it showed an ulterior motive on H.R.'s part in bringing his action to do something collateral to the lawsuit which she could not be legally forced to do, i.e., capitulate in the dissolution action upon the terms dictated by H.R.

As a general rule, because the law favors settlements, evidence anent settlement negotiations is to be excluded at trial because such efforts should be encouraged and a party making an offer of settlement should not be penalized by revealing the offer to the jury if the negotiations fail to materialize. Tripp v. Harryman, 613 S.W.2d 943, 949 (Mo.App.1981). However, that general...