Wessler v. Wessler

• Citation: 610 S.W.2d 650
• Decision Date: 15 July 1980
• Docket Number: No. 41659,41659
• Parties: Terrance J. WESSLER, Plaintiff-Appellant, v. Terrell A. WESSLER, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 650

610 S.W.2d 650

Terrance J. WESSLER, Plaintiff-Appellant, v. Terrell A. WESSLER, Defendant-Respondent.

No. 41659.

Missouri Court of Appeals, Eastern District, Division Three.

July 15, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 12, 1980.

Darrill S. Beebe, St. Charles, for plaintiff-appellant.

Stephen L. Kennedy, Claude C. Knight, St. Charles, for defendant-respondent.

DOWD, Presiding Judge.

This is an appeal by plaintiff from the trial court's judgment in favor of the defendant on her counterclaim.

The facts are as follows. Plaintiff and defendant were divorced on May 26, 1977. The parties' marital property was divided by a settlement agreement. At the time of the divorce, defendant lived in the family residence. Subsequently, she moved from the family home taking her share of the marital property. Plaintiff contends that in doing so defendant took items of property not specifically awarded her. Consequently, on October 27, 1977 plaintiff filed a petition claiming breach of the marital agreement. On November 15, 1977 defendant answered and counterclaimed alleging abuse of process and claiming damages. The damages claimed were in excess of the Magistrate Court's jurisdiction and the cause was certified to the Circuit Court of St. Charles County. Amended pleadings were filed by both parties.

The jury trial commenced on January 31, 1978 and resulted in a judgment for defendant on her amended counterclaim awarding her $2,000 in actual damages and $5,000 in punitive damages. The jury found against plaintiff on his cause of action. Plaintiff then filed a motion for judgment notwithstanding the verdict or for a new trial. That motion was never ruled upon due to the fatal illness of the presiding judge. Pursuant to Rule 78.06 the motion was deemed denied for all purposes ninety days after it was filed. Plaintiff then filed this appeal in which he alleges three points of error. We shall address plaintiff's second point only as that point is dispositive of this appeal.

Plaintiff claims in his second point, that the trial court should have directed a verdict in his favor on the defendant's counterclaim because the defendant failed to show any actions by the plaintiff which demonstrate perverted use of process subsequent to the filing of the suit. To determine whether the trial court should have granted a directed verdict in plaintiff's favor we review the evidence and inferences therefrom in the light most favorable to the defendant and determine from this point of view whether a submissible case has been made by the defendant. Green v. Crundun Martin Mfg. Co., 575 S.W.2d 930, 932 (Mo.App.1978).

The elements of abuse of process are set out in Barnard v. Barnard, 568 S.W.2d 567 (Mo.App.1978). To sustain a claim for abuse of process there must be an illegal and unauthorized use of process, an ulterior motive for the use of such process and resulting damages. Id. at 571. It must be shown that process has been used to accomplish an unlawful end or to compel the defendant to do something which he could not be legally compelled to do. Id. at 571. The essence of abuse of process is not commencement of an action without justification but is the misuse of process justified in itself for an end other than that which it was designed to accomplish. No liability is incurred where the defendant has done nothing more than pursue the lawsuit to its authorized conclusion regardless of how evil his motive may be. See Moffett v. Commerce Trust Co., 283 S.W.2d 591, 599 (Mo.1955). The improper purpose usually manifests itself as coercion to obtain some collateral advantage where the party seeking the advantage uses the process as a threat. Flynn v. Songer, 399 S.W.2d 491, 494 (Ky.1966). The use or rather the misuse of the process becomes a form of extortion wherein the defendant attempts to gain an advantage collateral to the subject matter of the suit. A classic example of abuse of process occurred in the oft-cited case of White v. Scarritt, 341 Mo. 1004, 111 S.W.2d 18 (1937) wherein the defendants utilized a taxpayers suit to extort payments of a fixed proportion of sales prices from the plaintiffs in the hopes of getting the suit dismissed before the options for a new court house site had expired. Id. 111 S.W.2d at 23-24. Clearly the taxpayers had the right to initiate such proceedings but abused the process by using the suit to extort...