JOHN T. IMPEY,                        )
                                      )
                  Appellant,          )
                                      )
      vs.                             )    No. SD33648
                                      )
LARRY JOE HART,                       )   FILED: September 21, 2015
L. J. HART and COMPANY,               )
MICHAEL A. CLITHERO,                  )
TIMOTHY JOHN McFARLIN,                )
DEREK A. ANKROM,                      )
JASON SMITH, and                      )
HUSCH BLACKWELL,                      )
                                      )
                  Respondents.        )

            APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY

                       Honorable David G. Warren, Judge

REVERSED AND REMANDED

      John Impey’s amended petition, alleging malicious prosecution and abuse of

process, was dismissed for failure to state a claim. He appeals. We reverse and

remand for further proceedings.
                                   Background 1

      As a candidate for Houston’s school board, Impey opposed a plan to finance a

new high school through a bond issue set for vote at the same election. He sent

various letters, including one published in the Springfield News-Leader, stating that

bond underwriter Hart had improperly influenced the school district to pursue the

project in order to promote Hart’s self-interest. Hart sued Impey, seeking injunctive

relief and damages for defamation and tortious interference with business

expectancy.

      Both Impey and the bond issue lost at the April 2009 election. Five weeks

later after a hearing, the court entered a preliminary injunction of some sort against

Impey. 2   The injunction continued more than two years until Hart voluntarily

dismissed its case in September 2011.

      Impey then sued Defendants, claiming their litigation and injunction against

him amounted to malicious prosecution and an abuse of process. Defendants moved

to dismiss for failure to state a claim. The court granted that motion, dismissed

without prejudice, and gave Impey thirty days to replead. Impey timely filed an

amended petition which, including exhibits, ran 197 pages (“petition”). Defendants

1 We summarize freely without further attribution from Hart v. Impey, 382
S.W.3d 918 (Mo.App. 2012). We refer to the Hart respondents collectively as “Hart,”
the other respondents collectively as “Attorneys,” and all respondents collectively as
“Defendants.” Rule references are to Missouri Court Rules (2014).
2 We have not been provided the injunction order and cannot glean its content from

anything in the record on appeal. We assume there was some injunction because all
parties’ briefs say so. “Where a statement of fact is asserted in one party’s brief and
conceded to be true in the adversary’s brief, we may consider it as though it appears
in the record.” Thornbury v. Morris Oil Co., 846 S.W.2d 238, 239 n.2 (Mo.App.
1993). That is all the parties say, so that is all we “know.”

                                          2
renewed their motions, and after a hearing, the court dismissed Impey’s case with

prejudice for failure to state a claim. Impey claims this was error. We agree.

                                  Standard of Review

         To determine whether Impey stated a claim, we proceed almost academically

to determine if his petition’s allegations meet the elements of a recognized cause of

action. Smith v. Missouri Local Gov’t Employees Ret. Sys., 235 S.W.3d 578,

580 (Mo.App. 2007). We ordinarily are confined to the face of the petition, which

we construe liberally in Impey’s favor without weighing the persuasiveness of factual

allegations. Id.

                     Malicious Prosecution (Impey’s Count I)

               The elements of an action for malicious prosecution are (1) the
            commencement or prosecution of the proceedings against the
            present plaintiff; (2) its legal causation or instigation by the present
            defendant; (3) its termination in favor of the present plaintiff; (4)
            the absence of probable cause for such proceeding; (5) the presence
            of malice therein; and (6) damage by reason thereof.

Stafford v. Muster, 582 S.W.2d 670, 675 (Mo. banc 1979). The fourth and fifth

elements are at issue in this case; we address them separately.

                                  Lack of Probable Cause

         Defendants mainly argue an estoppel 3 defense they have not yet formally

pleaded. To quote Hart’s brief (legal file cite omitted, emphasis ours):

            Impey did not and cannot plead facts supporting the element of lack
            of probable cause because the trial court, after a full hearing, found
            that good cause existed for the imposition of a preliminary
            injunction against Impey. The preliminary injunction is conclusive
            proof that the Hart Respondents had probable cause to bring the
            Underlying Lawsuit; accordingly, as a matter of law, Impey cannot

3   Expressly so termed in Hart’s brief. Estoppel is an affirmative defense. Rule 55.08.

                                              3
          plead any ultimate facts necessary to support his claim for malicious
          prosecution.

The Attorneys argue similarly.

      Pretrial dismissal on an affirmative defense lies only by summary judgment,

subject to a narrow exception when the defense appears from the face of the petition.

Evans v. Empire District Electric Co., 346 S.W.3d 313, 317 (Mo.App. 2011).

Defendants urged this exception below with seeming success, 4 but we review de

novo. Smith, 235 S.W.3d at 580. Without knowing what the prior injunction said,

see note 2 supra, we cannot declare Impey’s petition self-barred for mentioning it.

      We likely would reach the same result even had Impey attached the injunction

order to his petition and we could read it:

          [A]lthough an attached exhibit is deemed part of a litigant’s
          pleading “for all purposes,” this does not mean that a plaintiff
          admits all factual statements contained in such an exhibit when it is
          clear from the petition itself that he is vigorously disputing certain
          of those statements, and when, as in this case, he has attached the
          exhibit merely to provide a more detailed factual account of the
          alleged denial of legal rights.

State ex rel. Hazelwood Yellow Ribbon Comm. v. Klos, 35 S.W.3d 457, 466

(Mo.App. 2000). To allege the injunction as a fact, or even attach it to the petition,

should not bar Impey’s complaint that Defendants wrongfully had him enjoined.




4Quoting defense counsel at the motion hearing in the trial court: “You know, Your
Honor, we could have just waited until a motion for summary judgment, but because
he basically pled himself out of court, we believe that this is the time to stop this
particular lawsuit.”


                                              4
        The narrow exception does not apply. Defendants may (or may not) prevail on

this defense later, but cannot do so at this early stage. Evans, 346 S.W.3d at 317. 5

        Defendants urge that even if we ignore their defense, the petition does not

plead ultimate facts to support a finding of no probable cause. We disagree.

Ordinarily in a malicious prosecution case, it is enough to allege lack of probable

cause as an ultimate fact. Ripley v. Bank of Skidmore, 198 S.W.2d 861, 865 (Mo.

1947); Ray v. Dunn, 753 S.W.2d 652, 654-55 (Mo.App. 1988). Impey did so, then

followed with 32 pages of alleged support. Lack of probable cause was sufficiently

pled.

                                        Malice

        Finally as to Count I, Defendants claim Impey did not plead ultimate facts as

to the element of malice. Yet in Stafford v. Muster, 582 S.W.2d 670 (Mo. banc

1979), also a malicious prosecution case:

           The fifth named element, malice, [was] adequately alleged by the
           statement, “All of the proceedings against plaintiff hereinabove set
           forth were procured by defendants maliciously, …” As Rule 55.15
           provides, “Malice … and any other condition of mind of a person
           may be averred generally.”

Id. at 675-76; see also Ray, 753 S.W.2d at 655. Impey met or exceeded this standard

by alleging that Defendants “acted with malice in filing and continuing the lawsuit

…,” followed by five subparagraphs of alleged support.

        For all these reasons, Impey’s petition, as we must view it, states a claim for

malicious prosecution. The trial court erred in dismissing Count I.


5Defendants’ theory that Impey’s petition fails to state a claim because of a different
motion ruling in the prior case fails for the same reason.

                                            5
                      Abuse of Process (Impey’s Count II)

      In brief, abuse of process is (1) an illegal, improper, perverted use of process,

(2) done for an improper purpose, (3) resulting in damage. Jenkins v. Revolution

Helicopter Corp., 925 S.W.2d 939, 945 (Mo.App. 1996). “The essence of a claim

for abuse of process is the use of process for some collateral purpose.” Id.

      Defendants principally claim Impey did not plead a collateral purpose when

he alleged, inter alia, that Defendants purposed to silence him on the school bond

issue in violation of his constitutional free speech rights. We find guidance in Diehl

v. Fred Weber, Inc., 309 S.W.3d 309 (Mo.App. 2010), which reversed a summary

judgment against a similar abuse of process claim.

      Diehl, in opposing a project by trash hauler Weber, distributed flyers calling

Weber a “trash terrorist.” Weber gave counsel “marching orders” to use “whatever

legal remedies possible” to stop dissemination of the flyer and use of the word

“terrorist.” Weber sued Diehl for defamation and sought to enjoin further flyer

circulation, but in State ex rel. Diehl v. Kintz, 162 S.W.3d 152 (Mo.App. 2005),

Diehl won a writ of prohibition on the ground that Weber had not stated a

defamation claim.

      Diehl then sued Weber for, inter alia, abuse of process. Weber won summary

judgment on that claim, but the Eastern District reversed, explaining that

          the record before us implies that the defamation lawsuit might have
          been an attempt to compel Mr. Diehl to stop exercising his First
          Amendment right to publicly oppose the proposed trash transfer
          station, a collateral purpose. Consequently, there are disputed
          issues of material fact regarding whether Weber filed its defamation
          lawsuit to protect its reputation from harm or rather to quash


                                           6
            distribution of the flyer and opposition to the trash transfer station
            ….

Diehl, 309 S.W.3d at 321 (our emphasis).

         Given Diehl, and our rejection of Defendants’ injunction-based defense for

reasons already stated, we cannot say Impey’s petition fails to state an abuse of

process claim. The trial court erred in dismissing Count II.

                                        Conclusion

         We need not reach Impey’s other arguments for reversal. We deny all motions

taken with the case, reverse the judgment of dismissal, and remand for further

proceedings. 6




DANIEL E. SCOTT, P.J. – OPINION AUTHOR

JEFFREY W. BATES, J. – Concurs

WILLIAM W. FRANCIS, JR., J. – Concurs in separate concurring opinion




6   That said, we acknowledge defense counsel’s complaint that
         in the 40 years that I’ve been doing this, I’ve never seen anything like
         [this petition], where there are literally hundreds and hundreds of legal
         conclusions, legal cites, et cetera. And it puts us at a difficult decision,
         in that the rule also requires us to respond to that under Rule 55.07,
         admit or deny the specific -- the specific averments and specify so much
         if the averment is true and deny the rest.
This petition’s text includes some 200 case citations and quotes, almost thumbing its
nose at Rule 55.05’s call for “a short and plain statement of the facts” showing a right
to relief, but the remedy for this lies in Defendants’ alternative motion to strike, not a
dismissal for failure to state a claim.

                                              7
JOHN T. IMPEY,                                                )
                                                              )
                             Appellant,                       )
                                                              )
           vs.                                                )   No. SD33648
                                                              )
LARRY JOE HART,                                               )   FILED: September 21, 2015
L.J. HART and COMPANY,                                        )
MICHAEL A. CLITHERO,                                          )
TIMOTHY JOHN McFARLIN,                                        )
DEREK A. ANKROM,                                              )
JASON SMITH,                                                  )
and HUSCH BLACKWELL,                                          )
                                                              )
                             Respondents.                     )

                                           CONCURRING OPINION

           I concur. I write separately simply to underscore the principal opinion’s observations
regarding Appellant’s petition. The petition is the antithesis of what is required by Rules 55.04
and 55.05. 1 The petition is not simple, concise, and direct per the requirements of Rule 55.04,
and is not a short and plain statement of facts per the requirements of Rule 55.05. The petition
contains long rambling expositions on the law mixed in with legal citations. It is understandable
how the trial court and opposing counsel would be frustrated in attempting to sort appropriate
pleading from the extraneous material.


WILLIAM W. FRANCIS, JR., J. – SEPARATE OPINION AUTHOR

1
    All rule references are to Missouri Court Rules (2015).
