Walkenhorst v. Lowell H. Listrom & Co., Inc.

• Decision Date: 05 April 1988
• Citation: 752 S.W.2d 825
• Parties: 6 UCC Rep.Serv.2d 1547 Arthur L. WALKENHORST, Appellant-Respondent, v. LOWELL H. LISTROM & COMPANY, INC., Respondent-Appellant. WD 39628.
• Court: Missouri Court of Appeals

Page 825

752 S.W.2d 825

6 UCC Rep.Serv.2d 1547

Arthur L. WALKENHORST, Appellant-Respondent, v. LOWELL H. LISTROM & COMPANY, INC., Respondent-Appellant.

WD 39628.

Missouri Court of Appeals Western District.

April 5, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 31, 1988.

Application to Transfer Denied July 26, 1988.

James D. Worthington, Lexington, for Arthur L. Walkenhorst.

Wesley B. Jennings, Kansas City, for Lowell H. Listrom & Co., Inc.

Before GAITAN, P.J., and TURNAGE and CLARK, JJ.

GAITAN, Presiding Judge.

This cause is an appeal and cross-appeal from a judgment, entered pursuant to a jury verdict, in favor of plaintiff, Arthur L. Walkenhorst (Walkenhorst), in a malicious prosecution case. The jury awarded Walkenhorst actual and punitive damages. Defendant, Lowell H. Listrom & Co., Inc. (Listrom), filed a motion for a new trial and a motion for a judgment n.o.v. Listrom's motion for a new trial was overruled, as was its motion for a judgment n.o.v. as to actual damages. The trial court, however, sustained Listrom's motion for a judgment n.o.v. as to punitive damages. Both parties appealed. Because we have concluded that critical factual determinations are unsupported by substantial evidence, we reverse the trial court's order overruling defendant's motion for a judgment n.o.v. as to actual damages and we affirm the trial court's order sustaining defendant's motion for a judgment n.o.v. as to punitive damages.

In late 1982, Bruce Robb, an account executive with Lowell H. Listrom & Co., a stock brokerage firm, telephoned Arthur Walkenhorst regarding certain stocks owned by Walkenhorst. Walkenhorst testified that thereafter Robb contacted him every day except Saturdays and Sundays to discuss the sale or purchase of various stocks owned by Walkenhorst. On April 8, 1983, Robb testified that he called Walkenhorst and asked if Walkenhorst would be interested in selling his Chrysler stock. Robb testified that he told Walkenhorst that "17 [dollars] looked like a pretty good price." Based on his conversation with Walkenhorst on that date, Robb entered an order to sell 121 shares of Chrysler common stock at $17 a share. Thereafter, on April 9th or 11th, 1983, Listrom mailed Walkenhorst a confirmation statement showing the sale of 121 shares of Chrysler at $17 a share by Listrom on Walkenhorst's behalf.

April 15, 1983 was the settlement date on which the Chrysler stock was due to be delivered to Listrom. Thereafter, Robb and/or other agents of Listrom made various attempts to contact Walkenhorst. Robb attempted to reach Walkenhorst by phone. Robb mailed two letters, one of which was certified, to Walkenhorst at his residence. Listrom, through its employee George Wombill, sent Walkenhorst a Western Union Mailgram advising Walkenhorst that, if he didn't deliver the Chrysler stock to Listrom by May 4, 1983, Listrom would be forced to buy 121 shares of Chrysler stock to cover the sale, and Walkenhorst would be liable for any losses.

When asked if he had received the confirmation of the stock sale, Walkenhorst answered, "I remember seeing this or a facsimile of it. I can't say whether this is the exact one. But I have seen one similar to that." Walkenhorst admitted refusing the certified letter, admitted receipt of the mailgram and admitted that he never personally contacted Listrom or any of its agents regarding the stock transaction. He also testified that, after April 8, 1983, he refused to talk to Robb and would hang up on him if he called. Walkenhorst further stated that he had never signed any writing granting Listrom the authority to conduct any business for him. He refused to respond to Listrom's demand for the stock. On May 5, 1983, pursuant to the regulations of the Securities and Exchange Commission, Listrom purchased 121 shares of Chrysler stock at $25.50 a share plus commission to cover the April 8, 1983 sales transaction.

On May 5, 1983, Wesley Jennings, Listrom's attorney, wrote Walkenhorst a letter informing him that if he did not turn over the 121 shares of Chrysler stock to Listrom, Jennings would take legal action. Walkenhorst asked a friend, Carl Perry, who is an attorney, to respond to Jennings' letter on Walkenhorst's behalf. In a letter dated May 16, 1983, Perry advised Jennings that Mr. Walkenhorst had never given Robb written authorization to sell any stocks for him. On June 24, 1983, Listrom filed its Petition For Damages against Arthur Walkenhorst.

Listrom presented its cause against Walkenhorst to a jury on October 10, 1985. At the close of Listrom's evidence, the court sustained Walkenhorst's motion for a directed verdict.

Thereafter, in December, 1985, Walkenhorst filed a petition for damages against Listrom for malicious prosecution. The case was tried before a jury in April, 1987. The jury found in favor of Walkenhorst and awarded him $5,000 actual damages and $25,000 punitive damages.

On appeal, Walkenhorst contends the trial court erred (1) in granting Listrom's motion for a judgment n.o.v. on his claim for punitive damages because sufficient evidence was presented to support the claim; and (2) in refusing to permit the introduction of a certain letter written by Listrom into evidence because the letter was relevant and material evidence which showed Listrom's motives for filing the underlying lawsuit.

Listrom appeals alleging the trial court erred (1) in overruling its motions for a new trial and a judgment n.o.v. as to actual damages because Listrom had reasonable grounds [probable cause] for bringing the underlying lawsuit; (2) in overruling its motion for a judgment n.o.v. as to actual damages because the jury's finding that Listrom acted with "malice in law" was not supported by the evidence; and (3) in overruling its motion for a judgment n.o.v. as to actual damages because the underlying lawsuit was not terminated in such a manner as to support Walkenhorst's claim of malicious prosecution.

The elements of an action for malicious prosecution are (1) the commencement of a prosecution against the present plaintiff; (2) its instigation by the present defendant; (3) its termination in favor of the present plaintiff; (4) the absence of probable cause for such a proceeding; (5) the presence of malice; and (6) damage to the plaintiff therefrom. Mullen v. Dayringer, 705 S.W.2d 531, 534 (Mo.App.1985). To make a submissible case for the jury, the burden is on plaintiff to produce substantial proof to support each and every element of such cause of action. Parthenopoulos v. Maddox, 629 S.W.2d 563, 571 (Mo.App.1981).

In the instant case, sufficient evidence was presented to establish the existence of elements (1), (2), (3), and (6): Listrom brought suit against Walkenhorst; the litigation terminated in favor of Walkenhorst; and Walkenhorst suffered damage by incurring attorney fees. Our concern on this appeal is whether sufficient proof was presented to establish the absence of probable cause and the presence of malice.

When an absence of probable cause exists, malice may be inferred from the facts which establish want of probable cause....