Wells v. Orthwein

• Decision Date: 10 April 1984
• Docket Number: No. 45463,45463
• Citation: 670 S.W.2d 529
• Parties: Thomas WELLS, et ux., Plaintiffs-Appellants, v. Adolphus Busch ORTHWEIN, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 529

670 S.W.2d 529

Thomas WELLS, et ux., Plaintiffs-Appellants, v. Adolphus Busch ORTHWEIN, et al., Defendants-Respondents.

No. 45463.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 10, 1984.

Gerald L. Birnbaum, O'Fallon, for plaintiffs-appellants.

Reginald P. Bodeux, St. Charles, for defendants-respondents.

KELLY, Judge.

Thomas and Mary Wells, husband and wife, prosecute this appeal from a judgment of the Circuit Court of St. Charles County, Missouri, taxing costs against them and awarding Nancy M. Orthwein $1,000.00 actual damages and $2,000.00 punitive damages on her counterclaim for abuse of process. We reverse and remand to the trial court to reconsider the taxing of costs.

The Wellses instituted this action against James Busch Orthwein, Adolphus Busch Orthwein and Nancy Orthwein, the wife of Adolphus Busch Orthwein, on March 9, 1979 by filing a two count petition; one for breach of contract and the other for quantum meruit. On June 15, 1979, the trial court dismissed Count I of appellants' petition and on July 16, 1979, the appellants filed their amended petition. The amended petition was in three counts alleging breach of contract, a quantum meruit claim, and a fraud count. On August 27, 1979, Mrs. Orthwein filed a counterclaim which she contends alleged the abuse of civil process by the Wellses. On November 6, 1979, Count I of the appellants' amended petition was dismissed by the trial court. On March 10, 1980, Adolphus B. Orthwein and James B. Orthwein filed a separate first amended counterclaim in five counts; breach of contract, quantum meruit, conversion, property damage and fraud. Trial was had to a jury and at the close of all of the evidence the appellants dismissed their claim against Mrs. Orthwein and submitted to the jury their claim for quantum meruit against Adolphus B. Orthwein and James B. Orthwein. Adolphus and James Orthwein submitted their claims for fraud and breach of contract and Mrs. Orthwein submitted her claim for abuse of process against the appellants.

The jury returned a verdict for the appellants on their quantum meruit claim against Adolphus B. and James B. Orthwein and awarded them the sum of $50.00 as the reasonable value of goods and services furnished to Adolphus B. and James B. Orthwein. The jury also found in favor of the appellants on the counterclaim of Adolphus B. and James B. Orthwein. On Nancy Orthwein's counterclaim for abuse of process, the jury found for Mrs. Orthwein and awarded her $1,000.00 actual and $2,000.00 punitive damages. All costs were taxed against appellants.

On December 28, 1981, appellants filed a motion to recover costs, but said motion was denied. They also filed alternative motions for judgment n.o.v. and/or for a new trial on Mrs. Orthwein's counterclaim, but this too was denied.

Appellants present to this Court four Points Relied On as grounds for setting aside the judgment of the trial court. They claim the trial court erred: (1) in failing to grant their Motion to Recover Costs against James B. and Adolphus B. Orthwein; (2) in failing to grant their Motion for New Trial on Nancy Orthwein's counterclaim because the evidence did not support a claim of abuse of process; (3) in overruling their Motion for Judgment in accordance with their Motion for Directed Verdict with respect to Nancy Orthwein's counterclaim because the evidence does not support a finding of any conduct of the appellants which constituted a perversion of process; and (4) in the giving of Instruction No. 10, Mrs. Orthwein's verdict-director on her counterclaim.

We initially consider appellants' third Point Relied On; whether the trial court erred in overruling their motion for judgment n.o.v., Rule 72.01 V.A.M.R.

A motion for judgment n.o.v. presents the same issues as a motion for a directed verdict at the close of all of the evidence; i.e., whether plaintiff made a submissible case. In reviewing a trial court's ruling on a motion for judgment n.o.v., and whether Mrs. Orthwein made a submissible case, we consider the evidence in a light most favorable to the respondent and accept such evidence as true, giving the respondent the benefit of all reasonable inferences reasonably drawn therefrom, and we disregard appellants' evidence except insofar as it aids respondent's case. Dockery v. Mannisi, 636 S.W.2d 372, 376[6, 7] (Mo.App.1982).

It has been said that some confusion exists as to the nature and essentials of actions for abuse of process; that much of the confusion has resulted from a want of consistency and accuracy in distinguishing between the act of maliciously procuring the issuance of process and the act of abusing process when issued. Where the matter complained of concerns the issuance of process, the action is either strictly or by analogy one for malicious prosecution. The gist of an action for abuse of process is the improper use of process after it has been issued. 80 A.L.R. 580-581.

The general rule is that no right of action exists for damages resulting from the initiation of a civil action, unless the action was prosecuted maliciously and without probable cause, or there was an abuse of process. If the action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint there is no abuse even if the plaintiff had an ulterior motive in bringing the action, or if he knowingly brought suit upon an unfounded claim. However, if the suit is brought for a collateral purpose, there is abuse of process. 1 Am.Jur.2nd Abuse of Process, § 13 Institution and Prosecution of Civil Actions, p. 260.

The law in Missouri is well settled. To sustain an action for abuse of process the facts must demonstrate an illegal and improper use of such process that is not warranted or authorized, an ulterior motive in exercising such process, and damages. Wessler v. Wessler, 610 S.W.2d 650, 651 (Mo.App.1980).

The test employed is whether the process has been used to accomplish some unlawful end or to compel the opposite party to do some collateral thing which he could not be compelled to do legally. Or, stated somewhat differently, the privilege of process may not be used for an unlawful purpose such as using the litigation to extract money or anything of value from another. National Motor Club of Missouri, Inc., v. Noe, et al., 475 S.W.2d 16, 23-25 (Mo.1972).

Mrs. Orthwein's counterclaim alleged that the appellants pleaded that she was an owner of the Hedgefield farm in Count I of their petition; that on August 16, 1979, they admitted under oath during the course of and taking of their depositions that they were told and knew that Adolphus and James Orthwein were the sole owners of the property and that they had full knowledge that she was not an owner of the property prior to the filing of the lawsuit; that at the time appellants filed their pleadings they had full knowledge that those portions of their pleadings were without any factual basis, were untrue and meritless. That, nevertheless, appellants allowed their pleadings to remain pending in court, not for the purpose of obtaining a judicial determination of a claim to relief requested in said petition, but rather "for the sole and primary" purpose of extracting from the defendants the sum of $14,000.00 which they demanded be paid to them prior to the filing of the lawsuit.

These allegations, that appellants knew that they had no justiciable claim against Mrs. Orthwein when they filed their lawsuit, do not allege a cause of action for abuse of process; they sound more as a pleading in malicious commencement of a civil suit. Moffett v. Commerce Trust Company, 283 S.W.2d 591, 602 (Mo.1955); Boyer v. Carondelet Savings & Loan Ass'n, 633 S.W.2d 98, 101 (Mo.App.1982).

To plead a claim for abuse of process the pleading must set forth ultimate facts establishing the...