Ritterbusch v. Holt, 71979

• Decision Date: 15 May 1990
• Docket Number: No. 71979,71979
• Citation: 789 S.W.2d 491
• Parties: Robert L. RITTERBUSCH, Appellant, v. Kent G. HOLT, et al., Respondents.
• Court: Missouri Supreme Court

Page 491

789 S.W.2d 491

Robert L. RITTERBUSCH, Appellant, v. Kent G. HOLT, et al., Respondents.

No. 71979.

Supreme Court of Missouri,

En Banc.

May 15, 1990.

Robert L. Ritterbusch, Maryville, pro se.

James O. Swaney, Jr., Mary Ann Drape, Kansas City, for respondents.

RENDLEN, Judge.

Appeal from judgment dismissing plaintiff's petition for failure to state a cause of action for abuse of process. Thus postured, allegations of the petition are taken as true and when we examine to determine whether vel non grounds for relief have been stated, the stricken pleading will be afforded its broadest intendment and all reasonable inferences favoring plaintiff are to be indulged. See Shapiro v. Columbia Union National Bank and Trust Co., 576 S.W.2d 310, 312 (Mo. banc 1978), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979); Concerned Parents v. Caruthersville School District 18, 548 S.W.2d 554, 558 (Mo. banc 1977).

Plaintiff Ritterbusch averred that in July 1980, defendant Holt, in the company of defendant Dwyer, caused Ritterbusch to be arrested by making a complaint in the Kansas City Municipal Court charging that he had maliciously damaged an automobile. During the ensuing month, Holt offered to withdraw his complaint if Ritterbusch would pay the alleged claim for damage to the car, and though Holt admitted to Ritterbusch he had filed the complaint against him to compel the payment of the claim, Ritterbusch rejected Holt's offer "and refused to be a party to that unlawful proposal." On the day for hearing in the municipal court, Ritterbusch appeared but of the defendants only Dwyer came, who produced a letter from Holt requesting that Ritterbusch be compelled by the court to make restitution for the purported damage to the motor vehicle. Understandably, no such order seems to have been entered, but the court indicated the cause would not proceed without Holt, whereupon Dwyer moved for continuance and the court postponed the proceeding until Holt could appear and testify. Eventually, Ritterbusch was brought to trial, found not guilty and discharged.

Plaintiff then filed his petition in three counts alleging conspiracy and abuse of process. Counts I and II charge that Holt and Dwyer conspired to and did institute the criminal complaint against plaintiff for a collateral and ulterior purpose and "to use that proceeding to compel plaintiff to pay for the purported damages to that automobile, a purpose and result not lawfully attainable thereby." Ritterbusch's alleged damages flowed from having been placed in jeopardy and deprived of his liberty and freedom and that he was caused shame, embarrassment, humiliation and mental distress as well as harm to his reputation, and that in all this Dwyer gave "substantial assistance and encouragement to" Holt. Count III of the petition alleges in the alternative ultimate facts constituting a claim of abuse of process against Holt alone.

As noted above, the trial court sustained the defendant's motion to dismiss the petition for its failure to state a cause of action. The Court of Appeals, Western District, mistakenly relying upon Zahorsky v. Barr, Glynn and Morris, P.C., 693 S.W.2d 839 (Mo.App.1985), affirmed the dismissal, holding that because Ritterbusch did not allege the wrongdoers had benefited from their actions, the petition failed to state a claim for abuse of process. We took the case on transfer and determine the issues as though on original appeal. Mo. Const. art. V, § 10.

A petition is sufficient to withstand a motion to dismiss for failure to state a claim if it invokes substantive principles of law entitling plaintiff to relief and alleges ultimate facts informing defendant of that which plaintiff will attempt to establish at trial. Fischer, Spuhl, Herzwurm & Associates, Inc. v. Forrest T. Jones & Co., 586 S.W.2d 310, 315 (Mo. banc 1979). It is not to be dismissed for mere lack of definiteness or certainty or because of informality in the statement of an essential fact. Merriman v. Caton, 395 S.W.2d 106, 109 (Mo.1965).

The scope of the common law tort of abuse of process and its components have been fixed in the case law for many years. In 1979, this Court had occasion to examine such an action in Stafford v. Muster, 582 S.W.2d 670 (Mo. banc 1979), and, finding that the plaintiffs' petition had been improperly dismissed for alleged failure to state a cognizable claim, we reiterated the settled law, enumerating the elements of the tort as follows:

A pleading alleging abuse of process must set forth ultimate facts establishing the following elements: (1) the present defendant made an illegal, improper, perverted use of process, a use neither warranted nor authorized by the process; (2) the defendant had an improper purpose in exercising such illegal, perverted or improper use of process; and (3) damage resulted. The petition sufficiently alleges that damages resulted; accordingly we need inquire only if it states facts satisfying the remaining elements of the action.

The phrase "use of process," appearing in element (1) above, refers to some wilful, definite act not authorized by the process or aimed at an objective not legitimate in the proper employment of such process.

Id. at 678 (citations omitted). ¹

The allegations in the instant case meet the requirements of Stafford. As to the first element, it is amply alleged and a submissible case will be made if plaintiff adduces evidence demonstrating that defendants made the complaint in municipal court charging plaintiff with a "criminal" act or a violation of the municipal ordinances which led to his prosecution and that defendants did so to force plaintiff to pay a collateral claim for alleged damage to a motor vehicle. Beyond cavil, this petition pleads an improper and perverted use of process sufficient to satisfy the first element of the cause of action. Next, ultimate facts demonstrating that defendants "had an improper purpose in exercising such illegal, perverted or improper use of process" (the second element) have been satisfactorily alleged. Nothing appears in the record or arguments which leads us to a contrary view. The final element, damages, is sufficiently stated and the causal relationship to the wrongful acts generally described.

The court of appeals, affirming the dismissal, drifted afield by adding a fourth element to the cause of action, altering its composition and constricting the established range of the tort. The court announced that "there must have been some benefit accrued to the guilty party and some collateral disadvantage to the other party," citing Zahorsky v. Barr, Glynn and Morris, P.C., 693 S.W.2d 839, 844 (Mo.App.1985). The Zahorsky court, searching to find authority for this proposition, turned to a decision of the district court, Gore v. Gorman's, Inc., 148 F.Supp. 241 (W.D.Mo.1956), appeal dismissed, 244 F.2d 716 (8th Cir.1957). However, the federal district court, which set the pattern of error, decided Gore under Kansas law, conceding that the point had "never been decided in Kansas, under which law the court is bound." Id. at 245. The court then held "that in order to maintain an action for abuse of process, there must have been some benefit accrued to the guilty party, and some collateral disadvantage to the other party," concluding that plaintiff, having failed to allege the aforegoing, did not state a claim for abuse of process. Id. Such is...