Zahorsky v. Barr, Glynn and Morris, P.C.

• Decision Date: 11 June 1985
• Docket Number: No. WD,WD
• Citation: 693 S.W.2d 839
• Parties: Carroll ZAHORSKY, M.D., Appellant, v. BARR, GLYNN AND MORRIS, P.C. and Kevin Glynn and Robert Jester, Respondents. 35934.
• Court: Missouri Court of Appeals

Page 839

693 S.W.2d 839

Carroll ZAHORSKY, M.D., Appellant, v. BARR, GLYNN AND MORRIS, P.C. and Kevin Glynn and Robert

Jester, Respondents.

No. WD 35934.

Missouri Court of Appeals,

Western District.

June 11, 1985.

Stephen G. Mirakian, Koenigsdorf, Kusnetzky & Wyrsch, Kansas City, for appellant.

William E. Quirk, Robert A. Henderson, Shughart, Thomson & Kilroy, Kansas City, for respondents.

Before NUGENT, P.J., and PRITCHARD and CLARK, JJ.

CLARK, Judge.

Appellant, a medical doctor, sued respondents, who are practicing attorneys, for malicious prosecution of a medical malpractice case against appellant and abuse of process. The trial court sustained respondents motion for summary judgment. Appellant contends the trial court thereby erred because genuine issues of material fact were raised by the pleadings and affidavits. For the reasons hereafter stated, we conclude summary judgment was properly ordered because under admitted facts, appellant fails to state a claim on which relief could be granted.

This dispute originated when one Kathy Lee Wright employed respondents as her attorneys to pursue a malpractice cause against appellant. Wright had submitted to cosmetic breast surgery by appellant on the expectation that her appearance would be improved. The result, according to the suit filed against appellant, was disfiguring scars and misalignment of the breasts.

The suit against appellant was filed May 27, 1976 and progressed in normal pre-trial preparation. At least two trial settings were passed on continuances requested by the parties. Before any trial was actually conducted, however, Kathy decided to abandon the case. She advised respondents that the prospective trial was having a disquieting effect on her recent marriage and she instructed respondents to dismiss the case. On October 24, 1978, respondents filed a voluntary dismissal without prejudice. This suit against respondents was filed two years later. ¹

THE MALICIOUS PROSECUTION CASE

On this appeal, appellant notes that the central issue in the claim against respondents is whether there was probable cause to instigate the malpractice action. He contends there was not, that respondents filed suit without making a diligent and good faith inquiry into the facts and that the true purpose of the suit was to coerce appellant regarding charges for Kathy Wright's treatment. Under the pleadings, affidavits and oral testimony taken on the motion, appellant says there were unresolved questions on these issues as a consequence of which, respondents could not demonstrate by unassailable proof their entitlement to summary judgment.

The rule is familiar that where there is even slight doubt as to facts which bear on material issues in a case, summary judgment is not to be awarded. Shepherd v. American States Insurance Co., 671 S.W.2d 777, 780 (Mo. banc 1984). The nature of the subject case is such that an irrefutable factual predicate of probable cause and salutary motives for instigation of suit on a medical malpractice claim are virtually unattainable. The complexity of the subject is enhanced when the malicious prosecution defendants are not the primary parties to the underlying litigation, but instead are the attorneys. If required to do so, we would be obliged to find here, as appellant urges, that there was at least slight doubt concerning the facts as to probable cause for the malpractice prosecution. ²

Despite the potential validity of appellant's points which he has briefed and argued and to which respondents have submitted counter arguments, our independent consideration of the prospect for appellant to make any case were the cause remanded for trial leads to the conclusion that no case can be shown. This poses the dilemma of whether the appeal may be properly resolved on a point not raised or briefed by either party. The initial discussion therefore undertakes to establish the propriety of that approach under the particular situation of this case.

The disposition which this appeal seeks is a reversal of the judgment below and a remand of the case for trial on the merits. Section 512.160, RSMo. 1978, paraphrased, cautions the appellate courts not to reverse any judgment except for error materially affecting the merits of the action and not to order a new trial as to issues where no error appears. If, for want of an essential element in the cause of action for malicious prosecution, appellant cannot state a claim regardless of how the fact issues mentioned above are resolved, it necessarily follows that this court may not reverse the summary judgment because the error is not material.

Several cases have considered this problem and have concluded that failure to state a claim is a jurisdictional defect which may be raised for the first time on appeal and may even be noted by the court sua sponte. Brown v. Greene County, Mo., 677 S.W.2d 432 (Mo.App.1984). In Stone v. Stone, 393 S.W.2d 201 (Mo.App.1965), a child custody dispute ancillary to a divorce suit was "certified" by the domestic relations division of the circuit court to the juvenile division of the same court which then proceeded to take up and rule a motion to modify custody. Appellant wife briefed only issues as to the sufficiency of the evidence, but the court considered sua sponte the question of whether any cause of action existed under § 211.051, RSMo. 1978 (repealed) to enable the juvenile court to determine custody. The court stated it was not required to confine itself to the allegations of error raised by appellant In Poteat v. Poteat, 632 S.W.2d 511 (Mo.App.1982), one of the disputed issues was the division of marital property. Hanover Insurance was permitted to intervene by the trial court on the theory that as a creditor of the husband, it had a protectable interest in advocating a division of property favorable to the husband. The trial court awarded the bulk of the property to the wife and Hanover appealed. Although the only questions briefed were directed to the property division, the court ruled the case based on the failure of Hanover to state a claim, saying: "Though no challenge to the sufficiency of intervenor's petition has been made by the wife, failure to state a claim upon which relief can be granted is a jurisdictional defect, see: Harding v. State Farm Mutual Automobile Ins. Co., 448 S.W.2d 5, 7-8 (Mo. banc 1969), and as such must be noticed by this court sua sponte when it appears. Stone v. Stone, 393 S.W.2d 201, 204 (Mo.App.1965)."

where the cause of action itself was flawed.

By analogy to the above cases, if it appears from the record here that an essential element of appellant's cause of action in malicious prosecution is lacking and cannot be supplied, then his case is jurisdictionally defective and no relief could be granted even were he to prevail on the issues raised and briefed on appeal. We find such a defect under sua sponte analysis which follows.

The elements of a malicious prosecution action were most recently described in Sanders v. Daniel International Corp., 682 S.W.2d 803, 807 (Mo. banc 1984). They are (1) the commencement of a prosecution against the plaintiff; (2) instigated by the defendant; (3) termination in favor of the plaintiff; (4) want of probable cause for the prosecution; (5) defendant's conduct was actuated by malice, and; (6) plaintiff was damaged. We focus here on the third element, termination of the prosecution in favor of the malicious prosecution plaintiff.

The facts as to termination of the medical malpractice suit filed on behalf of Kathy Wright against appellant are not in dispute. On the instruction of Wright, the client, respondents filed a voluntary dismissal of the case without prejudice. The merits of the case were never decided and never will be decided because the cause of action was not preserved by refiling and is now time barred. The issue is whether the third element of a malicious prosecution cause is satisfied in a suit against the attorneys when the underlying cause has been dismissed on the choice by the client to abandon the claim.

Reported Missouri cases address the effect of voluntary dismissals as a favorable termination where the malicious prosecution defendant was the claimant in the underlying case. The general rule is that a dismissal without prejudice does not terminate the case in favor of the defendant absent proof that the dismissal is coupled with the intent of the plaintiff to abandon the claim. This follows because a dismissal without prejudice does not alone conclude the cause with finality. Stix & Co. v. First Missouri Bank & Trust Co., 564 S.W.2d 67, 70 (Mo.App.1978). Two cases illustrate the necessity to weigh a dismissal in the perspective of surrounding circumstances.

In Ruzicka v. Universal Printing Co., 637 S.W.2d 834 (Mo.App.1982), the plaintiff asserted that Universal had maliciously prosecuted a suit against him for breach of a labor agreement. He relied on a prior dismissal of that case without prejudice to show termination of the suit in his favor. The fact was, however, that Universal had not abandoned the labor case but had refiled the petition subsequent to the dismissal. The trial court sustained a motion to dismiss the malicious prosecution action. That...