James S. Teefey and Agri-Lawn, Inc., Appellants v. Craig Cleaves and Nila Spencer-Cleaves, Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: James S. Teefey and Agri-Lawn, Inc., Appellants v. Craig Cleaves and Nila Spencer-Cleaves, Respondents. Case Number: WD59032 Handdown Date: 09/25/2001 Appeal From: Circuit Court of Jackson County, Hon. Jon R. Gray Counsel for Appellant: Louis Accurso Counsel for Respondent: Michael Dodig Opinion Summary: James S. Teefey, a property owner, and the business he operates, Agri-Lawn, Inc., allege the circuit court's grant of summary judgment in favor of Craig Cleaves and Nila Spencer-Cleaves was improper in that the Cleaves are liable for malicious prosecution and abuse of process. Teefey and Agri-Lawn claim the Cleaves did not investigate the accuracy of their claim before they complained to zoning authorities regarding activities occurring on Teefey's land. AFFIRMED. Division holds: Teefey and Agri-Lawn's claim for malicious prosecution must fail because there was no lawsuit commenced by the Cleaves against Teefey and Agri-Lawn. Rather, the codes administration issued a notice of violation to Teefey, which Teefey appealed to the Board of Zoning Adjustment. The codes administration's notice was merely a warning that failure to correct the violation could lead to another city ordinance violation. Therefore, the notice was not the first step in a prosecution tantamount to an information or an indictment. In addition, Teefey and Agri-Lawn's claim for abuse of process also fails because the Cleaves did nothing illegal. They merely made a report to the appropriate governmental agency. Citation: Opinion Author: Paul M. Spinden, Chief Judge Opinion Vote: AFFIRMED. Howard and Hardwick, J.J., concur.

Opinion: In this review of the circuit court's summary judgment for Craig Cleaves and his wife, Nila, we must decide whether the Cleaves(FN1) subjected themselves to liability for malicious prosecution(FN2) or abuse of process when they complained to Kansas City zoning authorities about activities on their neighbor's property. We find they did not. The Cleaves' neighbor, James Teefey, and the business he operated, Agri-Lawn, Inc., sued the Cleaves for malicious prosecution and abuse of process after a circuit court ruled partly for Teefey and Agri-Lawn concerning the city's claim that Teefey was violating zoning laws. Teefey's and Agri-Lawn's appeal of the summary judgment fails because no lawsuit existed for purposes of establishing the malicious prosecution claim and no illegality existed for purposes of establishing the abuse of process claim. The Cleaves complained to Kansas City zoning authorities that Agri-Lawn, a lawn service and landscaping business operating on their neighbor's property, was illegally dumping grass clippings and debris on the property. The Kansas City's Codes Administration Department investigated the Cleaves' complaint and issued two notices of violation to Teefey, the property owner. One notice charged that Agri-Lawn was operating a lawn care business in violation of zoning ordinances. The other charged Agri-Lawn with illegally operating a landfill on the property. Teefey and Agri-Lawn appealed the violation notice to the Board of Zoning Adjustment which conducted a hearing. An attorney for the Cleaves appeared at the hearing and actively participated in the proceedings. BZA affirmed the violation notice, and Teefey and Agri-Lawn appealed to circuit court. The Cleaves sought to intervene in the circuit court's proceedings and actively participated. The circuit court affirmed part of BZA's decision and reversed part of it. Teefey and Agri-Lawn then sued the Cleaves for malicious prosecution and for abuse of process on the ground that the Cleaves did not investigate the accuracy of their claim before they complained to zoning authorities. The circuit court granted the Cleaves' motion for summary judgment. We affirm. Because malicious prosecution suits countervail the public policy that the law should encourage citizens to aid in the uncovering of wrongdoing, the courts require strict compliance with the requisite elements. Sanders v. Daniel International Corporation, 682 S.W.2d 803, 806 (Mo. banc 1984). To establish a claim for malicious prosecution, six elements must be proven: (1) commencement of an earlier lawsuit against plaintiff, (2) instigated by defendant, (3) that terminated in plaintiff's favor, (4) that lacked probable cause, (5) that was motivated by defendant's malice; and (6) that resulted in damage to plaintiff. State ex rel. Police Retirement System of St. Louis v. Mummert, 875 S.W.2d 553, 555 (Mo. banc 1994).

Were we to pass favorably on Teefey's and Agri-Lawn's maintaining the cause of action, we would be the first Missouri court to apply a malicious prosecution claim to an administrative proceeding. No Missouri court has recognized the claim in this context. Davis v. Board of Education of the City of St. Louis, 963 S.W.2d 679, 685 (Mo. App. 1998).(FN3) We need not decide, however, whether the action does extend to administrative proceedings because we find nothing in the record that constitutes a lawsuit against Teefey and Agri-Lawn. We, therefore, need go no further than the first element in our consideration of Teefey's and Agri-Lawn's appeal because nothing supports the first element. After the Cleaves complained to the codes administration, the administration sent its investigator to Teefey's property to determine whether Agri-Lawn was violating the city's zoning laws. The investigator determined that zoning laws were being violated and issued a notice to that effect. No further action was in the offing. The investigator did warn Teefey and Agri-Lawn that failure to correct a zoning ordinance violation could be deemed a violation of another city ordinance and could lead to prosecution, but this was merely a warning. It was not the first step in a prosecution tantamount to an information or an indictment. Granted, the hearing before the BZA and the subsequent judicial review constituted a lawsuit. It was not, however, a lawsuit against Teefey and Agri-Lawn. It was their lawsuit--their challenge of the codes administration's notice to the BZA. Hence, even if we were to decide that a malicious prosecution action extended to quasi-judicial, administrative agency proceedings, the action would not have been available to Teefey and Agri-Lawn because their action could not satisfy the first element. The circuit court properly granted summary judgment on the malicious prosecution claim for the Cleaves. We turn then to Teefey's and Agri-Lawn's concomitant action for abuse of process. It fails for much the same reason. To establish a claim for abuse of process, Teefey and Agri-Lawn were obligated to prove (1) defendant made an illegal, improper, perverted use of process, a use neither warranted nor authorized by the process; (2) for an illegal purpose; and (3) damage resulted. Ritterbusch v. Holt, 789 S.W.2d 491, 493 (Mo. banc 1990). The Cleaves did nothing illegal. They merely made a report to the appropriate governmental agency. Hence, the circuit court properly issued summary judgment for the Cleaves on Teefey's and Agri-Lawn's claim for abuse of process. We, therefore, affirm the circuit court's judgment. Footnotes: FN1.For convenience, we refer to Craig Cleaves and Nila Spencer-Cleaves jointly as the Cleaves. FN2.Typically, malicious prosecution involves criminal matters. The common law does recognize an action for wrongful civil proceeding, but Missouri courts treat the actions the same. Young v. Jack Boring's, Inc., 540 S.W.2d 887,

895-96 (Mo. App. 1976). FN3.The Davis court expressed doubt, without deciding the issue, that the cause of action applies to administrative actions. The Davis court noted that the verdict-directing instruction for malicious prosecution, MAI 23.07 (5th ed. 1996), limits application to "a judicial proceeding," and, in Missouri cases, the underlying proceeding has always been a civil or criminal lawsuit. 963 S.W.2d at 685. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.