Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF SCOTT COUNTY Honorable Michael E.
W. LYNCH, P.J.
Phillip Hobbs appeals the trial court's judgment
dismissing his petition against Consolidated Grain &
Barge Co. ("Consolidated") for failure to state a
claim upon which relief could be granted. Finding no error in
that ruling, we affirm.
and Procedural Background
filed a petition seeking damages against Consolidated for the
malicious prosecution of an earlier lawsuit that Consolidated
had brought against Hobbs. The petition alleges that in that
underlying lawsuit "the trial court entered judgment in
favor of Consolidated on its claims against Mark Hobbs for
(a) an implied contract based on fraud or unjust enrichment,
and (b) fraudulent misrepresentations[.]" Then, the
petition alleges that the trial court's judgment in favor
of Consolidated was reversed by this court "on all
moved to dismiss Hobbs's petition on the ground that it
"fail[ed] to state a claim upon which relief can be
granted because the ruling in favor of [Consolidated] at the
trial court level in the original suit precludes a later
malicious prosecution claim." Specifically, it was
Consolidated's position that "[o]ne of the essential
elements in a malicious prosecution claim is that the
plaintiff in the original suit . . . must have lacked
probable cause for initiating the suit" and the trial
court's judgment in favor of Consolidated "is
conclusive evidence of probable cause, " citing
Joseph H. Held & Assocs., Inc. v. Wolff, 39
S.W.3d 59, 62-63 (Mo.App. 2001).
trial court entered a judgment dismissing Hobbs's
petition without prejudice for failure to state a claim upon which
relief could be granted, and Hobbs timely appeals.
[A] motion to dismiss for failure to state a cause of action
is solely a test of the adequacy of the plaintiff's
petition. A court reviews the petition in an almost academic
manner, to determine if the facts alleged meet the elements
of a recognized cause of action, or of a cause that might be
adopted in that case. In so doing, a court takes a
plaintiff's averments as true and liberally grants
plaintiff all reasonable inferences. It will not weigh the
credibility or persuasiveness of facts alleged.
An appellate court reviews a trial court's grant of a
motion to dismiss de novo. It will consider only the
grounds raised in the motion to dismiss in reviewing the
propriety of the trial court's dismissal of a petition,
and, in so doing, it will not consider matters outside the
City of Lake St. Louis v. City of O'Fallon, 324
S.W.3d 756, 759 (Mo. banc 2010) (internal citations and
To prevail on a malicious prosecution claim, a party must
prove six elements: (1) commencement of an earlier suit
against the party; (2) instigation of that suit by the
adverse party; (3) termination of the suit in the party's
favor; (4) lack of probable cause for filing the suit; (5)
malice by the adverse party in initiating the suit; and (6)
damage sustained by the party as a result of the suit.
Copeland v. Wicks, 468 S.W.3d 886, 889 (Mo. banc
2015). "Missouri law does not favor suits in malicious
prosecution." Zahorsky v. Griffin, Dysart, Taylor,
Penner & Lay, P.C., 690 S.W.2d 144, 151 (Mo.App.
1985). "As such, courts require strict compliance with
the requisite elements. Copeland, 468 S.W.3d at 889.
As to the fourth element, probable cause "consists of a
belief in the charge or facts alleged, based on sufficient
circumstances to reasonably induce such belief in a person of
ordinary prudence in the same situation." Wilcox v.