Royster v. Baker
| Decision Date | 11 March 1963 |
| Docket Number | No. 49594,No. 2,49594,2 |
| Citation | 365 S.W.2d 496 |
| Parties | William R. ROYSTER, Appellant, v. Glen S. BAKER, Harold R. Dinges, Wallace G. McDowell, John T. Pierson, J. T. Edwards, Tom Van Hoozer, The Baltimore Bank, a corporation, and J. C. Dennis, Respondents |
| Court | Missouri Supreme Court |
Richard P. Sprinkel, Paul C. Sprinkle, Sprinkle, Carter, Sprinkle & Larson, Kansas City, for appellant.
Ilus W. Davis, James J. McGannon, Dietrich, Tyler, Davis, Burrell & Dicus, Kansas City, for respondents.
STOCKARD, Commissioner.
Plaintiff has appealed from a judgment dismissing his first amended petition wherein he sought damages in the amount of $200,000 for civil conspiracy.
We shall set out in considerable detail the allegations of the petition, and will quote those portions which have a particular bearing on the issue of whether the petition states a cause of action. 'Several years ago' plaintiff, his brother (not named), and J. C. Dennis (one of the defendants) secured a location in northwest Missouri for a hunting club. Plaintiff personally 'gave large amounts of his time and his own money and secured materials and services for the erection of a club house and other structures.' The hunting club was incorporated under 'the non-profit corporation statute of Missouri,' and plaintiff, his brother and J. C. Dennis were the 'permanent acting managing trustees of said hunting club which was then known as the Bigelow Hunting Club.' At their solicitation defendants Glen S. Baker, Harold R. Dinges, Wallace G. McDowell, John T. Pierson, J. T. Edwards, Tom Van Hoozer, the Baltimore Bank, and J. C. Dennis (the latter was already a member of the club), were 'permitted to join as members of the hunting club,' all of whom stated that 'they were perfectly satisfied with the hunting club as it was operated and joined as members unsolicited.' Shortly after the defendants were 'permitted to join * * * each of them individually and jointly and through their personal attorney (not named) began to recommend that the hunting club be reincorporated under the business statutes of Missouri.' All the defendants 'represented * * * that they were perfectly willing to place in trust one-half of their stock interest in said club under the control of the plaintiff, his brother and J. C. Dennis so that the management of the new corporation would remain as it had been in the past,' and defendants 'represented' to plaintiff 'that this arrangement would be a better business arrangement.' As soon as 'this was done' the defendants 'first denied any knowledge of an agreement to place their stock in the hands of trustees and denied any such arrangement, and stated that they intended to take over said hunting club and oust the plaintiff as managing trustee,' and 'to that end' J. C. Dennis 'entered into the conspiracy with the others' and 'the attorney representing the defendants joined with them.' 'Although the defendants had full knowledge of the interest the plaintiff had (not further defined) in said gun club, which greatly exceeded their interest (also not defined), yet they informed the plaintiff that they intended to take over the club without taking into consideration the superior right and interest of plaintiff,' and 'this conduct was a conspiracy on the part of all of the defendants to unlawfully deprive the plaintiff of his interest in said club and take over his interest to the benefit of the defendant.' 'As stockholders in said club,' the defendants 'conspired to deny any agreement by which the plaintiff and others were to control the club as it had been in the past;' the 'representations of the defendants with respect to the forming of a new corporation' were 'unlawful' and the conspiracies of the defendants were to remove and eliminate the plaintiff from his management and ownership and interest in said club and to acquire 'that valuable interest' for the defendants; and 'the representations to him for the purpose of forming the business corporation were false, unlawful and the result of conspiracy between the defendants and each of them.' Plaintiff also alleges that 'in operating the club he incurred expenses (the amount or circumstances not being alleged) which the defendants refuse to pay and which he was caused to pay personally;' that the defendants refused 'to improve the club, take care of the taxes, or to in any way finance the loan upon the club;' and that 'one of the defendant (not identified) conspired with the others, agreed to procure a loan upon the club and then declare the same a default and refused to permit the loan to be paid off,' and by that means 'sought' to gain control of the club and force the plaintiff out of the club and to eliminate his financial interest in the same.
Defendants filed a motion to dismiss the petition because (1) it failed to state a claim upon which relief can be granted, (2) plaintiff's claim, if any, should have been asserted as a compulsory counterclaim in a case pending in the same court at the time the petition was filed entitled Glen S. Baker et al. v. William R. Royster et al., No. 632,141, and (3) the 'orders' of the court in Case No. 632,141 constituted a determination of all the issues raised in plaintiff's petition and were res judicata as to the pending case. The pleadings and judgment of the court in Case No. 632,141 were attached as exhibits to the motion to dismiss. The trial court dismissed the petition 'for the reasons stated in the motion.' On this appeal plaintiff assigned as error the action of the trial court in dismissing the petition 'on the theory it was compulsory that the [plaintiff] file a counterclaim' in Case No. 632,141. No error was assigned as to the other two reasons relied on by the trial court for dismissing the petition. Defendants then filed a motion in this court to dismiss the appeal because 'it does not address itself to all the grounds * * * which * * * were the basis for the trial court's order of dismissal from which appellant here appeals.' This court ordered that the motion to dismiss be taken with the case. Thereafter, defendants filed their brief as respondents and briefed all three of the reasons advanced by the trial court in sustaining the motion to dismiss the petition. Plaintiff then filed a 'reply brief' in which he purports to reply to defendants' answer to his principal brief, and in which he also purports to assert that the other two reasons relied on by the trial court in dismissing his petition were erroneous. This presents the interesting situation where the judgment of the trial court is to be affirmed if it was correct as to any one of the three reasons assigned for dismissing the petition, but in his principal brief as appellant plaintiff challenged as erroneous only one of those reasons. The respondent in an appeal does not have the burden to establish the correctness of the judgment from which the appeal is taken, Lakin v. Postal Life & Casualty Insurance Company, Mo., 316 S.W.2d 542, 549, 70 A.L.R.2d 564, and assignments of error first set forth by an appellant in a reply brief do not present an issue for appellate review. Berghorn v. Reorganized School Dist. No. 8, Franklin County, 364 Mo. 121, 260 S.W.2d 573. However, the entire matter is now before us, although presented in an improper manner, and if the trial court was correct in dismissing the petition for any one of the three reasons advanced by it for its action it is not necessary to consider the other two. Our review establishes that the petition properly was dismissed because it failed to state a claim upon which relief can be granted. We shall now set forth the basis for that conclusion.
A civil conspiracy is an agreement or understanding between two or more persons to do an unlawful act, or to use unlawful means to do an act which otherwise would be lawful. Rosen v. Alside, Inc., Mo., 248 S.W.2d 638, 643; Byers Bros. Real Estate & Insurance Agency, Inc. v. Campbell, Mo.App., 353 S.W.2d 102, 105. ...
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