JOHN T. IMPEY, Appellant,
MICHAEL A. CLITHERO, AND TIMOTHY J. MCFARLIN, AND JASON SMITH, AND DEREK ANKROM, AND HUSCH BLACKWELL, Respondents.
FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI THE HONORABLE
DANIEL R. GREEN, JUDGE
Division Four: Mark D. Pfeiffer, Chief Judge, Anthony Rex
Gabbert, Judge and Edward R. Ardini, Jr., Judge
R. ARDINI, JR., JUDGE
Impey filed an amended petition alleging malicious
prosecution and abuse of process against Larry Joe Hart
("Hart") and L.J. Hart & Co. ("Hart
Co.")(collectively "the Harts"), and Husch
Blackwell, LLP ("Husch"). Husch moved for summary
judgment. The motion was granted by the Circuit Court of Cole
County, Missouri ("trial court") and Impey appeals.
The judgment of the trial court is affirmed.
AND PROCEDURAL BACKGROUND
record is viewed in the light most favorable to Impey as
"the party against whom the summary judgment was
entered[, ]" and he is accorded "the benefit of all
reasonable inferences from the record." Diehl v.
Fred Weber, Inc., 309 S.W.3d 309, 317-18 (Mo. App. E.D.
2010) (citations omitted). The school board of Houston R-1
School District desired to finance the building of a new high
school through bonds and contracted with Hart Co. to
underwrite the proposed bond sale. The bond issue was placed
on the April 2009 ballot. At the time, Hart was the
President, Secretary, and only member of the Board of
Directors of Hart Co. and advised the school board on the
financing aspects of the project.
a candidate for Houston's school board at the same
election, opposed the plan to finance the new high school
through bonds. Although he was not in attendance at the
meetings when Hart provided advice to the school board, Impey
sent various letters, including one published in the
Springfield News-Leader, regarding Hart and the project.
February 13, 2009, Hart and Hart Co., represented by Husch,
filed a Petition against Impey alleging defamation, tortious
interference with business expectancy, and seeking a
declaratory judgment, injunctive relief "prohibiting
Impey from again making [defamatory and false] statements and
accusations[, ]" and damages. They also filed a motion
for a temporary restraining order ("TRO") and
preliminary injunction. The petition and motion narrowly
focused on three specific statements by Impey regarding Hart
Co. and Hart.
to the trial court conducting a hearing on the requested
injunction, Impey filed a special motion to dismiss and/or
for summary judgment pursuant to section 537.528,
Missouri's anti-SLAPP statute,  which was overruled by the
trial court. The anti-SLAPP statute provides, in part, that
"[i]f the court finds that a special motion to dismiss
or motion for summary judgment is frivolous or solely
intended to cause unnecessary delay, the court shall award
costs and reasonable attorney fees to the party prevailing on
the motion." § 537.528.2. Pursuant to this section,
Hart Co. and Hart requested that they be awarded their
litigation costs and attorney's fees related to the
special motion. The request was granted, and the trial court
ordered that an affidavit describing such fees and costs
incurred be submitted. The order awarding the fees and costs
was entered on August 12, 2011.
the election was held on April 7, 2009. The school bond issue
did not pass, and Impey also was not elected to office. A
hearing on the Harts' request for a preliminary
injunction was held on April 16, 2009. The trial court,
finding that Hart and Hart Co. would "suffer irreparable
harm to their reputations and business expectancies" if
the accusations were republished during the litigation and
that "good cause" had been shown, entered a
preliminary injunction prohibiting Impey "from making
the following accusations:"
1. Hart advised the school board to circulate rumors that the
historic [Houston High School] building was
"unsafe" and "structurally unsound." When
a report by Pinnacle engineering failed to confirm this
rumor, Hart advised the board to shift its tactic to calling
it "unusable" [sic] to condition the public to
consider their living history a "waste of space."
2. In Pierce City, when a report by Rosenbury Architect
concluded its original high school was structurally sound,
and should be renovated rather than destroyed, Hart
influenced the board to hire a new architect to give them a
report more in tune with his own self-interest.
5, 2011, Impey filed a special motion for summary judgment
pursuant to Rule 74.04 and section 537.528. On August 8,
2011, Hart Co. and Hart requested additional time to respond
to the motion, and voluntarily dismissed the cause of action
less than a week later.
filed suit against the Harts and Husch nearly two years later
in August 2013, claiming that the original action between the
parties amounted to malicious prosecution and abuse of
process. Both defendant groups (Hart Co./Hart and Husch)
moved to dismiss Impey's suit for failure to state a
claim. The motions were considered together and granted, and
the suit was dismissed without prejudice. On August 5, 2014,
Impey filed an amended petition, and defendants renewed their
motions. After a hearing, the trial court again dismissed
Impey's suit for failure to state a claim, this time with
prejudice. The Missouri Court of Appeals, Southern District,
reversed, holding that the amended petition sufficiently
pleaded claims for malicious prosecution and abuse of
process. Impey, 471 S.W.3d 776.
being remanded, the case was transferred to Cole County.
Summary judgment was entered against Impey in a judgment that
did not specify the trial court's reasoning. Impey
appeal, Impey alleges that the trial court erred in granting
summary judgment because genuine issues of material fact
exist regarding (1) whether Husch made an improper use of
process in the first lawsuit, (2) whether Husch acted without
probable cause, and (3) whether Husch acted with malice.
review of the grant of summary judgment is de novo.
Williams v. HSBC Bank USA, N.A., 467 S.W.3d 836, 840
(Mo. App. S.D. 2015) (citation omitted). "Where the
trial court does not specify its reasoning for granting a
motion for summary judgment, we presume it acted according to
grounds set forth in the motion." Romeo v.
Jones, 86 S.W.3d 428, 431 (Mo. App. E.D. 2002) (citation
omitted). However, we can affirm the judgment "by any
appropriate theory supported by the record."
Williams, 467 S.W.3d at 840 (citation omitted);
Romeo, 86 S.W.3d at 431 (citation omitted).
judgment is appropriate when the moving party has
demonstrated, on the basis of facts as to which there is no
genuine dispute, a right to judgment as a matter of
law." Id. (citation omitted); see also
Rule 74.04(c)(6). A summary judgment movant who is the
defendant must demonstrate:
(1) facts negating any one of the claimant's elements
necessary for judgment; (2) that the claimant, after an
adequate period of discovery, has not been able to-and will
not be able to-produce evidence sufficient to allow the trier
of fact to find the existence of one of the claimant's
elements; or (3) facts necessary to support his properly
pleaded affirmative defense.
Clark v. Ruark, 529 S.W.3d 878, 881-82 (Mo. App.
W.D. 2017) (citation omitted). "Once the [movant] has
made such a showing, the burden shifts to the [non-moving
party], who must demonstrate by affidavit, depositions,
answers to interrogatories[, ] or admissions on file that one
or more of the material facts relied upon by the [moving]
party is genuinely disputed." Macke Laundry Serv.