Stix & Co., Inc. v. First Missouri Bank & Trust Co. of Creve Coeur

• Decision Date: 14 March 1978
• Docket Number: No. 38455,38455
• Citation: Stix & Co., Inc. v. First Missouri Bank & Trust Co. of Creve Coeur, 564 S.W.2d 67 (Mo. App. 1978)
• Court: Missouri Court of Appeals
• Parties: STIX & CO., INC., Respondent, v. FIRST MISSOURI BANK & TRUST COMPANY OF CREVE COEUR, Appellant. . Louis District, Division Two

Page 67

564 S.W.2d 67

STIX & CO., INC., Respondent, v.FIRST MISSOURI BANK & TRUST COMPANY OF CREVE COEUR, Appellant.

No. 38455.

Missouri Court of Appeals, St. Louis District, Division Two.

March 14, 1978.

Charles Alan Seigel, Gunn & Gunn, St. Louis, for defendant-appellant.

Theodore Ponfil, Richard S. Marx, Clayton, for plaintiff-respondent.

STEWART, Presiding Judge.

Plaintiff-respondent, Stix & Co.(Stix) is a securities brokerage company.Defendant-appellant, First Missouri Bank and Trust Company of Creve Coeur (Bank) is a banking corporation.Stix filed suit in the circuit court against Bank in two counts seeking damages arising out of a stock transaction.Bank filed a counterclaim in two counts for malicious prosecution of civil actions.Upon motion of Stix the court dismissed Bank's amended counterclaim as premature.The court's action was designated as an appealable order under Rule 81.06 and Bank has duly appealed.

Before we can define and discuss the issues in this cause we must first determine the standard of our review.Stix urges that the cause "(s)hould be and was no doubt treated by the court . . . as a motion for summary judgment" under the provisions of Rule 55.27(a).¹Bank contends that we must review the amended counterclaim as we would any pleading seeking relief and that we are confined solely to the allegations of the questioned pleading.

Plaintiff's motion to dismiss was in the usual form of such motions merely stating that the "(c)ounterclaim fails to state a cause of action and fails to state sufficient facts upon which relief can be granted."

The court's order reads:

"The question raised in this motion is whether the dismissal of the Federal Court actions in question constitute a 'termination in favor' of First Missouri Bank & Trust Co. of Creve Coeur to allow them to maintain a malicious prosecution action.It is the court's opinion that it does not.It is, therefore, the order of the court that plaintiff's Motion to DismissDefendant's Amended Counterclaim is sustained.This is designated as an appealable order pursuant to 81.06 Missouri Supreme Court rules."

Stix contends that there were matters other than the counterclaim before the court upon which the court sustained the motion to dismiss as a motion for summary judgment and that we should also consider these matters.Stix directs us to what is designated as an order of the United States District Court with a Memorandum of Law attached dated February 24, 1975, in a case styled Stix & Co. Inc. v. First Missouri Bank & Trust Co. of Creve Coeur, (Federal Suit) and an order and memorandum of the same court dated April 14, 1975, with respect to the same case.None of the documents is under the seal of the United States District Court.The first order purports to dismiss Count I of plaintiff's petition with prejudice.The second order dismisses Count II and Count III with prejudice.The latter memorandum states that the dismissal of Count III is because of lack of subject matter jurisdiction.The transcript before us contains no basis for the inclusion of the orders and memoranda of the Federal Suit in the transcript on this appeal.These documents were not made exhibits to the counterclaim, and the record does not show that they were offered in evidence in support of the motion to dismiss.Like the abandoned pleading which appears in a transcript, unless the record reveals that the documents were properly made part of the record we cannot say that they were before the trial court and they are not now before us.Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, 597(1-4)(1953).See alsoDugan v. Trout, 271 S.W.2d 593, 599(12)(Mo.App.1954).

We also note that the court did not give notice to the parties that he would consider the motion to dismiss as a motion for summary judgment and give Stix the opportunity to submit evidentiary matters in accordance with Rule 74.04.Laclede Gas Company v. Hampton Speedway Co., et al., 520 S.W.2d 625, 629(3)(Mo.App.1975).We may not treat the action of the court as a summary judgment.

Under the circumstance, the nature of our review is the same as that accorded pleadings seeking affirmative relief.We are limited to a review of the pleading that is attacked.McDonough v. Aylward, 500 S.W.2d 721, 722(1)(Mo.1973).We must assume as true all facts well pleaded and any inferences fairly deducible from the facts pleaded; we construe the pleading favorably to the pleader giving him the benefit of every reasonable and fair intendment in view of the facts pleaded.Jacobs v. Jacobs, 272 S.W.2d 185, 188(Mo.1954).

Frustrating as it may be, we must make our determination solely upon the amended counterclaim, which we will refer to as counterclaim.We may not look to the orders and memoranda of the United States District Court's Bank's abandoned motion to dismissplaintiff's petition and the exhibit attached (plaintiff's petition in the District Court) or to Bank's original counterclaim.

The elements of the cause of action for malicious prosecution, civil or criminal, are concisely stated in Hoene v. Associated Dry Goods Corp., 487 S.W.2d 479(Mo.1972) l.c. 483:

"(1) the commencement of a prosecution against plaintiff; (2) its legal causation by defendant; (3) its termination in favor of plaintiff; (4) the absence of probable cause therefor; (5) the presence of malice; and (6) damage to plaintiff therefrom."

The parties agree that the primary issue on this appeal is whether Bank's counterclaim pleads that the Federal Suit filed by Stix has been terminated in favor of Bank.

Termination in favor of the party bringing the action for malicious prosecution means the final disposition of the cause forming the basis of the action in favor of the party against whom the original action was brought and adversely to the party bringing the original action.Termination may be effected by final judgment on the merits, dismissal of a cause by the court with prejudice and by abandonment of the action.McFarland v. Union Finance Co., 471 S.W.2d 497, 499(3)(Mo.App.1971).Where an action has been dismissed but the party asserting the claim intends to continue to assert the claim the action has not been disposed of adversely to the party asserting the claim.This is particularly evident when the cause is in fact reasserted by the commencement of another suit.Hales v. Raines, 162 Mo.App. 46, 141 S.W. 917, 920(4)(1911).A dismissal for lack of subject matter jurisdiction is not res judicata as to the merits of the cause and we may look behind the judgment recital in order to determine the cause of the dismissal.Sheen v. DiBella, 395 S.W.2d 296, 303(7)(Mo.App.1965).See alsoRule 41 Fed.R.Civ.P.It follows that a cause dismissed for lack of subject matter jurisdiction has not been terminated in favor of the party bringing an action for malicious prosecution based upon that dismissal.

In determining whether there has been a termination of Stix's claim against Bank we consider the following guiding principles.A party can have but one recovery for one wrong.Haley v. Byers TransportCo., 394 S.W.2d 412, 416(5, 6)(Mo.1965).The essential ingredients of a single cause of action are plaintiff's primary right and defendant's wrongful violation of that right.Hales v. Raines, supra at page 920.A pleader may make two or more statements of a cause of action alternatively or hypothetically in one count or in...