Stegeman v. First Missouri Bank of Gasconade County, 50695

• Decision Date: 06 January 1987
• Docket Number: No. 50695,50695
• Citation: 722 S.W.2d 349
• Parties: Mary Rose STEGEMAN, Plaintiff-Appellant, v. FIRST MISSOURI BANK OF GASCONADE COUNTY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 349

722 S.W.2d 349

Mary Rose STEGEMAN, Plaintiff-Appellant, v. FIRST MISSOURI BANK OF GASCONADE COUNTY, Defendant-Respondent.

No. 50695.

Missouri Court of Appeals,

Eastern District,

Division Three.

Jan. 6, 1987.

Thomas H. Hearne, Salem, Mark Fausmussen, St. Louis, for plaintiff-appellant.

P. Dennis Barks, Hermann, for defendant-respondent.

PUDLOWSKI, Presiding Judge.

This appeal arises from a judgment non obstante veredicto entered in favor of respondent, First Missouri Bank of Gasconade County and against plaintiff/appellant Mary Rose Stegeman, after the jury had returned a verdict for appellant assessing $20,000 (Twenty Thousand Dollars) in actual damages.

Appellant's second amended petition named as defendants R.J. (Raymond J.) and Shirley Pribek, First Missouri Banks Incorporated and Gasc-Osage Realty Company Incorporated, as well as respondent. Count one of appellant's petition was against Gasc-Osage Realty alone and alleged a cause of action for conversion. Counts two through five were alternative counts against the Pribeks, First Missouri Banks Incorporated and respondent bank, which was allegedly owned and controlled by First Missouri Banks Incorporated. Count two alleged a cause of action for conversion against these defendants. Count three rested on count two and alleged a conspiracy to convert funds belonging to appellant. Count four alleged a cause of action for outrageous conduct and count five alleged the commission of a prima facie tort against appellant.

The Pribeks, First Missouri Banks Incorporated and respondent all made oral motions to have all four of the counts against them dismissed. The motion was sustained with regard to counts two, three and four and those counts were dismissed. First Missouri Banks Incorporated was also dismissed with regard to count five, the count alleging a prima facie tort action. Therefore, when the case reached trial, appellant was left with count one against Gasc-Osage Realty Company alleging conversion, and count five against the First Missouri Bank of Gasconade County and the Pribeks, alleging a prima facie tort. After appellant's opening statement, the trial court directed a verdict against appellant with regard to punitive damages on count five.

On count one, the jury found that Gasc-Osage had indeed converted funds belonging to the appellant. The jury returned a verdict for both $2,022.84 (Two Thousand Twenty-two Dollars and eighty-four cents) in actual damages and $10,000 (Ten Thousand Dollars) in punitive damages on count one. Prior to submitting her case to the jury, appellant dropped the Pribeks as defendants in count five and submitted on that count only against the respondent. As noted above, the jury returned a verdict for $20,000 (Twenty Thousand Dollars) against respondent, however, the latter verdict was overturned by the entry of the judgment n.o.v.

Gasc-Osage Realty has not appealed the judgment below and the only parties before this court are appellant and respondent bank.

On appeal, appellant alleges trial court error in declaring judgment notwithstanding the verdict, in directing a verdict on the issue of respondent's liability for punitive damages, and alternatively in dismissing her counts two, three, and four as they applied to respondent. We find no error.

The events that gave rise to this litigation began in July of 1979 when appellant purchased a small piece of property in Gasconade County, Missouri. Appellant paid $2,000 (Two Thousand Dollars) down and borrowed the remaining $1,600 (Sixteen Hundred Dollars) needed for the purchase from Gasc-Osage Realty, Inc., which took a deed of trust to secure the promissory note evidencing the loan. The loan was to be repaid with ten percent interest at the rate of forty dollars a week. If appellant prepaid the loan at any time, she was to receive a cash discount.

Raymond J. Pribek was an employee of Gasc-Osage Realty. He and his wife, Shirley Pribek, had their home loan, as well as other loans with respondent. The home loan as well as some of the other loans were under collateralized; meaning that the bank did not have enough collateral to sell in order to recover the amounts owed if the Pribeks were unable to meet their obligations. In 1979, at approximately the same time that Gasc-Osage made the loan to appellant, respondent demanded additional collateral to secure its loans to the Pribeks. Raymond Pribek requested help in securing the additional collateral needed from his employer George R. Hoesch who was the principal shareholder and president of Gasc-Osage Realty.

According to the testimony at trial, Hoesch had a policy of paying sales people such as Pribek a $5,000 (Five Thousand Dollar) bonus when they sold fifty lots and a $10,000 (Ten Thousand Dollar) bonus when they had sold a hundred. Raymond Pribek was not owed these bonuses at the time of respondent's demand. However, Hoesch agreed that he would probably eventually be entitled to the $15,000 (Fifteen Thousand Dollars) if he stayed with the company. Hoesch on behalf of Gasc-Osage thus agreed to assign approximately that amount in promissory notes, including appellant's note, to Pribek who then assigned the notes to respondent as collateral. Hoesch, again acting on behalf of Gasc-Osage agreed to replace any of the promissory notes that were defaulted on with substitute notes.

After the assignment of the notes, their makers, including appellant, were informed that the notes had been assigned to Pribek, and all future payments were to be made to him. When appellant received this notice, instead of proceeding to make her payments to Pribek, she contacted Gasc-Osage and asked if she could prepay the note. Gasc-Osage agreed and a cash discount amount of $1,343.43 (One Thousand Three Hundred and Forty-three Dollars and forty-three cents) was determined to be equal to payment in full. That amount was paid on October 30, 1979.

At that point, however, Gasc-Osage did not forward the money to respondent or attempt to have the note cancelled and returned to appellant. The money was instead simply spent by Hoesch and Gasc-Osage, and this was the basis for the verdict for appellant on count one of her petition, on which judgment was entered. However, Pribek knew about the payment and he notified respondent of it in 1979, requesting that respondent seek a replacement note from Hoesch and Gasc-Osage.

Respondent did not, however, release the note and request a replacement as per its agreement with Gasc-Osage. Instead respondent continued to hold the note.

On September 11, 1981, almost two years after the events described above, an attorney acting on behalf of both the Pribeks and respondent demanded payment of the note plus interest and attorney's fees. On November 13, 1981, a second such letter was sent. Both letters mentioned the possibility of foreclosure if appellant refused to pay. When appellant still failed to pay the money owed on the note, foreclosure proceedings were begun. Appellant was able to obtain a temporary restraining order to stop the first foreclosure sale. Thereafter, though, the restraining order was dissolved.

In July of 1982, appellant received a new notice of the fact that her deed of trust was to be the subject of a foreclosure. At that time, in order to prevent the sale, appellant paid $2,450 (Two Thousand Four Hundred and Fifty Dollars) to Pribek, who was then the holder of the note. That amount covered principal, interest and attorney's fees until the date of payment. The note and deed of trust were then released to appellant.

Appellant admitted at trial that respondent had never attempted to collect more from her than the balance due on the note plus interest and attorney's fees provided for by the note. She also admitted that the note was technically in default at the time when demand was made upon her.

The granting of a defendant's motion for judgment notwithstanding the verdict is proper only if this motion identifies one or more elements of plaintiff's case which are not supported by the evidence. See, Goodenough v. Deaconess Hospital, 637 S.W.2d 123, 125 (Mo.App.1982); and Stix Friedman & Company v. Fidelity & Deposit Company, 563 S.W.2d 517, 521 (Mo.App.1978).

The elements of a prima facie tort are: (1) an intentional lawful act by defendant; (2) an intent to cause injury to the plaintiff; (3) an injury to the plaintiff; and (4) the absence of sufficient justification for the act. The elements were originally set out fairly recently in Porter v. Crawford and Company, 611 S.W.2d 265 (Mo.App.1980), which first recognized the existence of the prima facie tort doctrine in Missouri. See also, Dowd v. General Motors Acceptance...