Shinn v. Bank of Crocker, 16549

• Decision Date: 31 December 1990
• Docket Number: No. 16549,16549
• Citation: 803 S.W.2d 621
• Parties: Ernest and Florene SHINN, Appellants, v. BANK OF CROCKER and Bollinger Enterprises, Inc., Respondents.
• Court: Missouri Court of Appeals

Page 621

803 S.W.2d 621

Ernest and Florene SHINN, Appellants, v. BANK OF CROCKER and Bollinger Enterprises, Inc., Respondents.

No. 16549.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 31, 1990.

Application for Transfer to Supreme

Court Denied Jan. 22, 1991.

Daniel J. Dodson, Keith W. Brunstrom, Roger G. Brown & Associates, Jefferson City, for appellants.

O.J. Taylor, Monte P. Clithero, Taylor, Stafford, Woody, Cowherd & Clithero, Springfield, for respondent Bollinger Enterprises, Inc.

Tyce S. Smith, Sr., Smith and Dunbar, Waynesville, for respondent Bank of Crocker.

CROW, Judge.

Ernest Shinn and Florene Shinn filed a two-count petition against Bank of Crocker ("Bank") and Bollinger Enterprises, Inc. ("Bollinger"). The Shinns characterize Count I as a cause of action for malicious prosecution and Count II as a cause of action for willful infliction of emotional distress.

Bank filed a motion to dismiss asserting both counts were barred by the two-year limitation of § 516.140, RSMo 1986. Bank's motion also stated both counts were barred by Rule 55.32(a) ¹ in that the Shinns failed to assert such claims in an earlier action against them by Bollinger arising out of the transaction or occurrence that was the subject matter of such claims.

Bollinger filed a motion to dismiss asserting both counts were barred by § 516.140, RSMo 1986.

In ruling on the motions to dismiss the trial court, by agreement of all parties, took judicial notice of court records in three cases. Those cases are identified infra. The trial court ultimately entered judgment dismissing the Shinns' petition with prejudice. The trial court found both counts were barred by § 516.140 and Count II was also barred by the compulsory counterclaim provision of Rule 55.32.

The Shinns appeal.

As the trial court considered matters outside the pleadings, we treat the motions to dismiss as motions for summary judgment. Black Leaf Products Co. v. Chemsico, Inc., 678 S.W.2d 827, 829 (Mo.App.1984); Bohrmann v. Schremp, 666 S.W.2d 30, 32 (Mo.App.1984). We gather the facts from (1) those asserted in the Shinns' brief and conceded to be true in the briefs of Bank and Bollinger, Tittsworth v. Chaffin, 741 S.W.2d 314, 315 (Mo.App.1987); Hempe v. Cape, 702 S.W.2d 152, 153 (Mo.App.1985), and (2) the court records judicially noticed by the trial court.

On June 12, 1985, the Shinns (husband and wife) signed a $2,320.21 promissory note and security agreement in favor of Bank. Security was a 1979 Dodge motor home. Bollinger was a guarantor on the note.

On May 1, 1986, a vice president of Bank signed and swore to two complaints in the Associate Circuit Judge Division of the Circuit Court of Camden County. One was against Ernest Shinn, the other against Florene Shinn. The averments of each were identical, i.e., that on or about December 6, 1985, at Camden County, the named accused, with purpose to defraud, removed property subject to a security interest, to wit: the 1979 Dodge motor home, on which the amount remaining to be paid on the secured debt, including interest, was at least $500.

On May 29, 1986, the Prosecuting Attorney of Camden County filed a complaint against Ernest Shinn in the Associate Circuit Judge Division of the Circuit Court of Camden County charging Ernest Shinn with the class D felony of defrauding secured creditors in violation of § 570.180, RSMo 1986. The complaint alleged that on or about December 6, 1985, in Camden County, Ernest Shinn, with purpose to defraud, removed property subject to a security interest, to wit: the motor home, on which the amount remaining to be paid on the secured debt, including interest, was at least $500. The complaint was assigned case number CR286-1048F.

Simultaneously with the filing of the complaint against Ernest Shinn the same prosecutor filed an identical complaint against Florene Shinn in the same court. It was assigned case number CR286-1047F.

The docket sheet in CR286-1048F bears two entries dated "11/18/86." The first is: "Dismissal filed." The second is: "Warrant Recalled." That same day the Prosecuting Attorney of Camden County filed a document styled "Dismissal" in CR286-1048F. It read:

"Comes now the Prosecuting Attorney for the County of Camden, State of Missouri, and dismisses the above captioned matter without prejudice."

The docket sheet in CR286-1047F bears entries dated "11/18/86" identical to the two in CR286-1048F. The case file in CR286-1047F likewise contains a "Dismissal" identical to the one in CR286-1048F.

On November 21, 1986, Ernest Shinn paid $29 costs in CR286-1048F. That same day Florene Shinn paid $29 costs in CR286-1047F.

On December 1, 1986, Bollinger filed a petition against the Shinns in the Circuit Court of Camden County. The suit was assigned case number CV186-561CC. No copy of the petition has been supplied us.

The docket sheet in CR286-1048F bears an entry dated "12/2/86" stating: "Case dismissed by State." The docket sheet in CR286-1047F bears an identical entry.

On September 22, 1988, with leave of court, Bollinger filed a first amended petition against the Shinns in CV186-561CC. The first amended petition contained three counts. Count I was based on the $2,320.21 note of June 12, 1985, to Bank, signed by the Shinns and guaranteed by Bollinger. Count I averred the Shinns defaulted on the note, that Bollinger had paid the note plus interest and "late charges," and that Bollinger was now the holder of the note. Count I prayed for judgment against the Shinns for the amount paid on the note by Bollinger, together with a reasonable attorney fee. Count II was based on another promissory note allegedly executed by the Shinns to Bank and guaranteed by Bollinger. Count III was a claim against Florene Shinn alone, based on an alleged fraudulent misrepresentation regarding a tract of real estate.

On October 31, 1988, Bollinger filed a motion for summary judgment on all three counts of its first amended petition in CV186-561CC.

On December 13, 1988, the trial court made a docket entry in CV186-561CC sustaining Bollinger's motion for summary judgment on all three counts of its first amended petition.

On March 1, 1989, the trial court signed and filed a formal "Summary Judgment" in favor of Bollinger on all three counts of its first amended petition in CV186-561CC. The docket sheet does not show any notice of appeal from that judgment.

The Shinns commenced the instant action April 10, 1989. As reported in the first paragraph of this opinion, Count I of their two-count petition is a claim for malicious prosecution. That count avers, inter alia, that (a) agents of Bank and Bollinger made representations to the Prosecuting Attorney of Camden County which resulted in the filing of cases CR286-1047F and CR286-1048F, (b) said representations were false and omitted material facts, (c) in making said representations the agents of Bank and Bollinger acted willfully, maliciously and without reasonable grounds and (d) both criminal cases were dismissed and the statute of limitations on the criminal actions had run. Count I seeks actual and punitive damages.

Count II of the Shinns' petition incorporates the allegations of Count I and adds that the natural and probable consequence of the acts of Bank and Bollinger was the infliction of emotional distress and mental suffering on the Shinns, that the Shinns have undergone such anguish, that such condition is medically diagnosable and medically significant, that the Shinns have obtained medical services for such condition, and that they will be required to do so in the future. Count II, like Count I, seeks actual and punitive damages.

The Shinns' brief presents four points relied on. The first is:

"The trial court erred in dismissing Count I of plaintiffs' petition on the grounds that it was barred by the statute of limitations established by § 516.140, because a dismissal without prejudice does not constitute a final favorable termination in favor of plaintiffs for purposes of commencing the statute of limitations period."

Section 516.140, RSMo 1986, referred to in the above point, provides:

"What actions within two years.--Within two years: An action for ... malicious prosecution...."

The Shinns direct us to Sanders v. Daniel International Corp., 682 S.W.2d 803 (Mo. banc 1984), which sets forth the elements of a cause of action for malicious prosecution:

"A person suing on a theory of malicious prosecution must plead and prove six elements: (1) the commencement of a prosecution against the plaintiff; (2) the instigation by the defendant; (3) the termination of the proceeding in favor of the plaintiff; (4) the want of probable cause for the prosecution; (5) the defendant's conduct was actuated by malice; and (6) the plaintiff was damaged." Id. at 807.

The Shinns assert the key issue regarding dismissal of Count I of their petition is whether the dismissal of cases CR286-1047F and CR286-1048F constituted a termination of those proceedings in their favor within the meaning of element "3" above, so as to trigger the running of the two year limitation of § 516.140.

As reported earlier, the prosecutor's "Dismissal" was filed in each of those cases November 18, 1986. An entry in each case dated December 2, 1986, stated: "Case dismissed by State." The Shinns' petition in the instant case was not filed until April 10, 1989. That date was more than two years after each of the first two dates in this paragraph.

The Shinns maintain, however, that inasmuch as the felony charges against them were dismissed without prejudice, the prosecutor could have refiled the charges anytime prior to expiration of the period of limitation for such prosecutions. That period, say the Shinns, was three years. § 556.036.2(1), RSMo 1986. Therefore, argue the Shinns, as the criminal charges against them were based on conduct that allegedly occurred December 6, 1985, the charges could have been refiled anytime up to December 6, 1988...