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Hobbs v. Consolidated Grain & Barge Co.

Court of Appeals of Missouri, Southern District, Second Division

September 27, 2016

MARK PHILLIP HOBBS, Plaintiff-Appellant,
v.
CONSOLIDATED GRAIN & BARGE CO., Defendant-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY Honorable Michael E. Gardner.

          OPINION AUTHOR

          GARY W. LYNCH, P.J.

         Mark 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.

         Factual and Procedural Background

         Hobbs 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 issues[.]"[1]

         Consolidated 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).

         The trial court entered a judgment dismissing Hobbs's petition without prejudice[2] for failure to state a claim upon which relief could be granted, and Hobbs timely appeals.

         Standard of Review

[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 pleadings.

City of Lake St. Louis v. City of O'Fallon, 324 S.W.3d 756, 759 (Mo. banc 2010) (internal citations and quotations omitted).

         Discussion

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. ...


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