Ott Law Firm Agent-Safe Plain Text Official source remains authoritative. Case: Mabel N. Killion, Mike E. Killion, Mika J. Killion, Richard Killion, Tresa Killion, Bill J. Killion & Mitzi Killion, Respondents, v. Bank Midwest, N.A. and Dickinson Financial Corporation and John Crist, Appellants. Court: Missouri Court of Appeals, Western District Decision Date: Unknown Outcome: affirmed Practice Area: personal-injury Canonical URL: https://ott.law/missouri-courts/opinions/mabel-n-killion-mike-e-killion-mika-j-killion-richard-killion-tresa-killi-18494 Official Source URL: https://www.courts.mo.gov/file.jsp?id=18494 Related Practice Areas: - Personal Injury: https://ott.law/practice-areas/personal-injury?ott_archive=missouri-courts&ott_archive_practice_area=personal-injury&ott_archive_query=Mabel+N.+Killion%2C+Mike+E.+Killion%2C+Mika+J.+Killion%2C+Richard+Killion%2C+Tresa+Killion%2C+Bill+J.+Killion+%26+Mitzi+Killion%2C+Respondents%2C+v.+Bank+Midwest%2C+N.A.+and+Dickinson+Financial+Corporation+and+John+Crist%2C+Appellants.&ott_archive_link_source=tag&ott_archive_link_score=26&ott_archive_link_evidence=tag%3A+personal-injury%3B+text%3A+tort+claim&ott_archive_location=opinion_plain_text_practice_area (slug: personal-injury; source: tag; score: 26; evidence: tag: personal-injury, text: tort claim) - Corporate Law: https://ott.law/practice-areas/corporate?ott_archive=missouri-courts&ott_archive_practice_area=corporate&ott_archive_query=Mabel+N.+Killion%2C+Mike+E.+Killion%2C+Mika+J.+Killion%2C+Richard+Killion%2C+Tresa+Killion%2C+Bill+J.+Killion+%26+Mitzi+Killion%2C+Respondents%2C+v.+Bank+Midwest%2C+N.A.+and+Dickinson+Financial+Corporation+and+John+Crist%2C+Appellants.&ott_archive_link_source=text&ott_archive_link_score=6&ott_archive_link_evidence=text%3A+corporation&ott_archive_location=opinion_plain_text_practice_area (slug: corporate; source: text; score: 6; evidence: text: corporation) - Employment Law: https://ott.law/practice-areas/employment?ott_archive=missouri-courts&ott_archive_practice_area=employment&ott_archive_query=Mabel+N.+Killion%2C+Mike+E.+Killion%2C+Mika+J.+Killion%2C+Richard+Killion%2C+Tresa+Killion%2C+Bill+J.+Killion+%26+Mitzi+Killion%2C+Respondents%2C+v.+Bank+Midwest%2C+N.A.+and+Dickinson+Financial+Corporation+and+John+Crist%2C+Appellants.&ott_archive_link_source=text&ott_archive_link_score=6&ott_archive_link_evidence=text%3A+employee%3B+text%3A+employment&ott_archive_location=opinion_plain_text_practice_area (slug: employment; source: text; score: 6; evidence: text: employee, text: employment) --- ## Syllabus 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: Mabel N. Killion, Mike E. Killion, Mika J. Killion, Richard Killion, Tresa Killion, Bill J. Killion & Mitzi Killion, Respondents, v. Bank Midwest, N.A. and Dickinson Financial Corporation and John Crist, Appellants. Case Number: 53455 Handdown Date: 12/15/1998 Appeal From: Circuit Court of Saline County, Hon. Robert H. Ravenhill Counsel for Appellant: R. Lawrence Ward, Philip Bledsoe and Donald Stouffer Counsel for Respondent: Mark T. Kempton and J. Christopher Spangler Opinion Summary: Bank Midwest, N.A., formerly known as Community Bank (the Bank), and Dickinson Financial Corporation (Dickinson) appeal the trial court's judgment against them and in favor of Mabel Killion, Mike E. Killion, Mika J. Killion, Richard Killion, Tresa Killion, Bill J. Killion, and Mitzi Killion (the Killions) for $55,000 in compensatory damages and $500,000 in punitive damages on the Killions' prima facie tort claim. On appeal, the Bank and Dickinson claim the Killions did not make a submissible case of prima facie tort. The Bank and Dickinson also contend that the trial court erred in overruling their objections to (1) the Killions' reading to the jury allegedly inflammatory and prejudicial remarks made by a judge in a prior proceeding between the parties; and (2) the Killions' arguing to the jury that it could draw improper conclusions from the failure of the Bank and Dickinson to call Paul Shepherd, former legal counsel for the appellants, to testify. Additionally, the Bank and Dickinson argue that the trial court should not have submitted the Killions' claim for punitive damages to the jury because the Killions did not make a submissible claim for punitive damages, and the punitive damage instruction did not require proof by clear and convincing evidence. REVERSED. Court holds: (1) The Killions failed to make a submissible case of prima facie tort. In balancing the interests of the parties in light of the social and economic interests of society, the Bank and Dickinson's conduct of attempting to foreclose on the Killions' property was not tortious. The Bank and Dickinson's actions did contribute to cause the Killions' default, and they were motivated in part by malice in instituting foreclosure proceedings. However, the Bank and Dickinson did have an additional legitimate motivation to collect the debt considering the Killions' historical inability to pay their mortgage debts. The Bank and Dickinson's initiation of foreclosure proceedings was neither shocking nor immoral, and a lender's use of the expeditious non-judicial foreclosure of deeds of trust is not to be discouraged. Most importantly, the Killions' emotional injury is the harm least deserving of protection under a prima facie tort cause of action, and the evidence indicated that the Killions' emotional distress was neither serious nor severe. (2)The trial court did not err in directing verdicts against the Killions on their claims for breach of fiduciary duty against Mr. Crist and Dickinson and breach of the duty of good faith against the Bank. The Killions failed to make a submissible case of breach of fiduciary duty because when the Bank and Dickinson requested Mr. Crist, as trustee, to foreclose, Mr. Crist could proceed without making any affirmative investigation unless he had actual knowledge of any fact that would legally prevent the foreclosure. The evidence did not show that Mr. Crist had knowledge of any facts that would provide a legal basis for preventing the institution of foreclosure proceedings. The Killions failed to make a submissible case of breach of the duty of good faith because they did not allege any special relationship between themselves and the Bank, and Missouri recognizes a tort action for breach of the duty of good faith only in cases where the contract places the contractors in a special relationship. --- ## Dissenting Opinion by Judge Howard: The writer would find that the Killions made a submissible prima facie tort case because they presented sufficient evidence that 1) by instituting the foreclosure sales, the Bank and Dickinson committed intentional lawful acts; 2) the Bank's and Dickinson's conduct before, during and after the attempted foreclosure sales demonstrated ill will, spite, and intent to injure the Killions; 3) the Killions suffered emotional injury as a result of the Bank's and Dickinson's acts; and 4) the Bank and Dickinson lacked sufficient justification to maintain foreclosure proceedings. However, Judge Howard would find that the "balancing of interests" test weighs in favor of the Killions, rather than the Bank and Dickinson. Judge Howard would find that while the nature and seriousness of the harm to the injured property weighs in favor of the Bank and Dickinson, the interests promoted by the Bank and Dickinson's conduct, the character of the means used by them, and their motive weigh in favor of the Killions. Judge Howard would also find that the trial court erred by refusing to instruct the jury that it needed clear and convincing evidence that the Bank and Dickinson acted with evil motive or reckless indifference to the rights of others before imposing punitive damages. Judge Howard would affirm the judgment for actual damages, reverse the judgment for punitive damages, and remand the matter for a new trial on the issue of punitive damages. Citation: Opinion Author: Patricia Breckenridge, Judge Opinion Vote: REVERSED. Hanna, J. concurs. Howard, J., dissents in separate dissenting opinion. Opinion: Bank Midwest, N.A., formerly known as Community Bank (the Bank), and Dickinson Financial Corporation (Dickinson) appeal the trial court's judgment against them and in favor of Mabel Killion, Mike E. Killion, Mika J. Killion, Richard Killion, Tresa Killion, Bill J. Killion, and Mitzi Killion (the Killions) for $55,000 in compensatory damages and $500,000 in punitive damages on the Killions' prima facie tort claim. On appeal, the Bank and Dickinson claim the Killions did not make a submissible case of prima facie tort. The Bank and Dickinson also contend that the trial court erred in overruling their objections to (1) the Killions' reading to the jury allegedly inflammatory and prejudicial remarks made by a judge in a prior proceeding between the parties; and (2) the Killions' arguing to the jury that it could draw improper conclusions from the failure of the Bank and Dickinson to call Paul Shepherd, former legal counsel for the appellants, to testify. Additionally, the Bank and Dickinson argue that the trial court should not have submitted the Killions' claim for punitive damages to the jury because the Killions did not make a submissible claim for punitive damages, and the punitive damage instruction did not require proof by clear and convincing evidence. Because the Killions failed to make a submissible case of prima facie tort, the judgment of the trial court is reversed. Factual and Procedural Background This court is to review the evidence in the light most favorable to the plaintiffs' case, and disregard all contrary evidence. Gary Surdyke Yamaha, Inc. v. Donelson, 743 S.W.2d 522, 523 (Mo. App. 1987). In that light, the evidence is that the Killions owned and operated a 643-acre farm in Pettis County. Noah, who died in August, 1995, and his wife Mabel lived in a house on the farm. The remaining respondents are the sons and daughters-in-law of Noah and Mabel. In 1988, the Killions had three mortgages on the farm which totalled $435,000.00. Two of the mortgages were from the Federal Land Bank, and one was a purchase money mortgage for 250 acres from the seller, a Mr. Bales. The Killions were in default on the Federal Land Bank mortgages, so Noah went to Don Brown, interim president of the Bank, to inquire about refinancing the loans. Noah had a long-standing relationship with the Bank, and had served for 17 years as an advisory director on its board of directors. Noah's role as an advisory director was to solicit bank business and attend monthly meetings to review loans in default and vote on extensions of credit. On June 8, 1988, the Killions executed a promissory note payable to the Bank in the amount of $345,000.00 (the "land note"). The note paid off the loans from the Federal Land Bank. The Killions also executed a separate note in the amount of $125,827.63 (the "equipment note"). Both notes were secured by a deed of trust on the Killions' 643 acres of real property in Pettis County, and a first security interest in all growing crops, government payments or lease payments received for the land, all machinery and equipment, and all money, securities, and other property held by the Killions at the time the notes were executed and in the future. Both loans were serviced by Dickinson Financial Corporation, the sole owner and stockholder of the Bank. The promissory notes and the deeds of trust were drafted by Paul Shepherd, legal counsel for the Bank and Dickinson. Under the terms of the land note, the Killions were to make one payment of $42,000.00 each year, and a balloon payment of the remaining principal and any accrued but unpaid interest at the end of six years. One of the conditions of default on the land note was the failure of the Killions to sell the farm within ten years after the note's execution. The land note also contained a contingent interest clause, which provided that upon the sale of the farm, the Killions would owe additional interest. The additional interest would be the lesser of $90,000.00 or 40% of the amount by which the gross sales price of the farm exceeded the outstanding principal balance of the loan on the date of sale if the farm was sold prior to the maturity date, or the outstanding principal balance due on the maturity date if it was sold after the maturity date. The land note also granted the holder of the note the right of first refusal to purchase the farm and, in the deed of trust, the Killions waived their equity of redemption. Thus, pursuant to the deed and note, the Killions had to sell the farm within ten years after signing the note, regardless of whether they had paid all of the principal and interest due, the Bank had the right to buy it at a price discounted by the contingent interest amount, and the Killions could not exercise the right of redemption to buy back their farm. The Killions timely made the first payments on the notes, which were due December 31, 1988. However, the Killions were late in making their payments for the next three years. The Bank allowed the Killions to pay late, but charged them interest which was 3.0 percentage points higher during the periods they were late, as allowed by the terms of the notes. When the Killions were not able to timely pay their 1991 payment, the Bank extended another loan to the Killions to cover the Killions' interest payment for 1991 and their crop input cost. The Killions repaid that loan at an eleven percent interest rate. By the fall of 1991, the Killions decided they would need to sell some of their land and equipment because they were having difficulty making their loan payments. The Killions had discussions with John Crist, the loan officer at Dickinson assigned to service their loan. They told Mr. Crist that they wanted to partially liquidate their property and modify the terms of the land note to reduce the annual payment amount so that they would be able to service the note. In February of 1992, the Killions held an auction and sold 250 acres of their land and most of the farm equipment. The Killions gave the Bank the proceeds from the sale, which were significantly more than the deficiency in their 1991 payment. The Bank reduced the principal balance on the land note to approximately $171,500.00 and the principal balance on the equipment note to $25,000.00. The Bank also applied $35,129.09 of the proceeds toward the payment of contingent interest. The remaining real property and equipment securing the notes was valued at $356,000.00. Mr. Crist testified that he knew there was no authority under the land note to collect contingent interest from the Killions without a sale of the entire property or the note maturing, and that there was no authority under the note to compute a contingent interest amount of $35,129.09 at that time. He testified that his authority for collecting contingent interest at that time and in that amount came from the modification agreement the Bank had proposed to the Killions. When they learned that the Bank had applied a portion of the sale proceeds to the payment of contingent interest, the Killions consulted an attorney, Adam Fischer, because the promissory note provided for payment of contingent interest only "[u]pon the sale of all the real property which secures this note." (Emphasis added). The Killions also asked Mr. Fischer to review the Bank's proposed modification agreement. Mr. Fischer advised the Killions not to sign the modification agreement, as it contained an exculpatory clause on usurious or illegal interest, disclaimed a fiduciary relationship between the Killions and the Bank, and provided that the Killions released the Bank from liability for any claims the Killions might have had against it. Mr. Fischer also advised the Killions not to make any further payments on the land note because he was concerned that the Bank would apply more payments toward contingent interest, and the contingent interest on this note was owed on the difference between the principal balance on the note and the sale price of the property. Every time the Killions made a payment reducing the principal balance, they were actually increasing the amount of contingent interest due. During this time, the Killions began negotiating with Chemical Bank of Sweet Springs to refinance the loan; however, Chemical Bank would not commit to the refinancing until it was determined whether the Killions owed $90,000.00 in contingent interest. Mr. Fischer wrote a letter to the Bank, dated October 23, 1992, advising it that the Killions would not sign the modification agreement. He told the Bank that he believed the contingent interest provision was not enforceable because the Bank had misrepresented to the Killions when they signed the note how the contingent interest would be calculated, and that the terms of the note did not entitle the Bank to collect contingent interest upon the sale of only part, but not all, of the real estate. He also told the Bank that the exculpatory language in the modification agreement was not acceptable to the Killions. Mr. Fischer testified that he had served as in-house counsel for two banks for a total of twenty-eight years, and had reviewed note modification agreements. In his experience, the exculpatory clause on illegal interest in the note modification agreement was unusual, and he had never seen a disclaimer of a fiduciary relationship between a bank and a borrower or a release of all the lender's liability in a note modification agreement. Mr. Fischer asked the Bank to prepare a payoff quote so that the Killions could end their relationship with the Bank and Dickinson. Upon receipt of the October 23, 1993 letter from Mr. Fischer informing him that the Killions would not sign the modification agreement and that Mr. Fischer believed the contingent interest provision was not enforceable, Mr. Crist recommended foreclosing on the Killions' property. Mr. Crist responded to Mr. Fischer's letter by sending a letter dated November 12, 1992 to the Killions, in which he referred to the fact that the Killions would not execute the proposed modification, and then demanded that they make the scheduled payment on December 31, 1992. Mr. Crist also provided a payoff quote, in which he applied the $35,129.09 he had previously collected as contingent interest toward principal reduction. However, the payoff quote also included a demand for $90,000.00 of contingent interest. He told the Killions that the letter would be the only demand letter they would receive prior to foreclosure. The Killions' attorney sent another letter to Mr. Crist on December 17, 1992. He again advised that he did not believe the contingent interest provision was enforceable, but that the Killions would pay the Bank $15,000.00 to settle the contingent interest issue, and pay all of the unpaid principal balance on both notes plus the annual interest accrued. On January 12, 1993, an attorney for Dickinson notified the Killions that a foreclosure sale of the Killions' property would be held on February 9, 1993. The Notice of Foreclosure was published in the Sedalia Democrat newspaper. The Killions testified that people in the community who saw the foreclosure notice in the paper made comments that embarrassed and humiliated them. They also testified that the threatened foreclosure was stressful on their marriages, and was particularly stressful on Noah and Mabel Killion, because they worried about losing their home. On February 4, 1993, the Killions filed a petition in the Circuit Court of Pettis County against the Bank and Mr. Crist, as successor trustee under the deed of trust, seeking a temporary restraining order and preliminary injunction prohibiting the foreclosure sale, and a declaratory judgment that the contingent interest provision of the land note was invalid and unenforceable, or, in the alternative, that contingent interest was not owed at that time because there had been no sale of all of the property. The court entered the temporary restraining order prohibiting the foreclosure sale. On February 11, 1993, the court held a hearing on the Killions' petition for a preliminary injunction. Noah Killion, Mike Killion, Mr. Crist, and their respective counsel appeared at this hearing. At the hearing, the Killions testified that they were afraid they would lose their equity in the farm if the foreclosure sale took place, and they had sought refinancing from Chemical Bank, but Chemical Bank would not commit until the contingent interest issue was settled. The Killions' attorney asked the court to take judicial notice of 4 C.S.R. 140-6.050. This regulation provides, in pertinent part, as follows: PURPOSE: The legal separation of deposit taking from investment banking prevents banks from investing in the stock of other corporations. It has also raised a question whether banks can contract to receive additional interest or stock purchase warrants from a borrower contingent upon the success of the borrower's business. This rule authorizes contract provisions to receive additional interest or stock purchase warrants from the borrower contingent upon the success of the borrower's business. Further, it permits a new business to negotiate a loan agreement with a commercial bank which may substantially reduce interest expense in the early years until a date when the business is more established. (1) A bank may contract to receive additional interest on any loan for business purposes contingent only upon the profitability and successful operation of the business receiving the proceeds of the loan. In no event shall the repayment of principal be subject to any contingency. The Killions' attorney argued that this regulation made the contingent interest provision of the note unenforceable because the contingent interest was not based on profitability and successful operation of the Killions' business. The Bank argued that section 408.035, RSMo Cum. Supp. 1992, applied. Section 408.035 provided that "it is lawful for parties to agree in writing to any rate of interest, fees, and other terms and conditions in connection" with a loan to a corporation, business loan over $5,000, real estate loan other than residential real estate loans, and certain other loans. The Bank also argued that the case should be dismissed due to improper venue. The court took the matter under advisement and, prior to the court ruling, the Killions voluntarily dismissed their petition against the Bank on February 17, 1993.(FN1) In a letter dated February 24, 1993, the attorney for Dickinson notified the Killions of another foreclosure sale on their farm set for March 23, 1993.(FN2) A Notice of Foreclosure was again published in the newspaper. On March 2, 1993, the Killions filed another petition in Pettis County against the Bank for declaratory judgment asking the court to declare the contingent interest provision of the note invalid and unenforceable, or, in the alternative, that no contingent interest was owed at that time. On March 22, 1993, the Killions also filed an additional petition in Pettis County against Mr. Crist for a temporary restraining order and preliminary injunction prohibiting the foreclosure sale. The court granted the temporary restraining order, which was served on March 23rd, immediately before the sale started. After being served with the temporary restraining order, the attorney for Dickinson told the crowd at the foreclosure sale that the sale was off for that day, but "[t]here will be a sale. This farm will sell." On May 12, 1993, Judge Donald Barnes granted the Killions' petition against Mr. Crist for a preliminary injunction against the foreclosure proceedings. In his order, Judge Barnes made the following comments about the Bank: In short, the Bank has ahold of [the Killions] by the short hair and refuses to let loose even upon payment in full. * * * It would appear there may be some circumstances, however, where [the Killions] may mount a reasonable challenge to the validity or enforceability of what seems to this Court on first review arguably a very harsh and onerous, perhaps under the facts, an egregiously unfair contract which was drawn by the Bank represented by counsel and entered into by [the Killions], unexperienced in such non-traditional transactions and apparently unrepresented by counsel. The Killions' declaratory judgment action against the Bank, seeking a holding that the contingent interest provision was unlawful and also seeking damages, was transferred to Saline County after the Bank had requested a change of venue. The court granted the Bank's motion to appoint a receiver to collect all of the income from the farm pending the resolution of the contingent interest dispute. The trial court found that the contingent interest provision was invalid and unenforceable because it violated 4 C.S.R. 140-6.050. This court affirmed that decision in Killion v. Bank Midwest, N.A., 886 S.W.2d 29, 33-34 (Mo. App. 1994). Upon receiving the appellate decision, the Killions informed Chemical Bank that they did not owe contingent interest. Chemical Bank indicated they were willing to refinance the loan if the Bank would release its deed of trust. The Bank refused to release the deed of trust on the property to allow the refinancing because the attorney for Dickinson claimed the Killions owed $29,000.00 in attorney fees incurred by a Kansas City law firm(FN3) Dickinson had hired to prepare the application to transfer Killion v. Bank Midwest, 886 S.W.2d 29, to the Missouri Supreme Court. The trial court held a hearing in December of 1994, and recommended that the Bank release its deed of trust, conditioned upon the receiver retaining the $40,000.00 the receiver had collected in farm income, until the attorney fee issue was decided. The Bank and Dickinson refused to agree, so the court entered an order effectuating its recommendation. A representative of Chemical Bank attended the hearing, and had a blank check ready to pay off the Killions' note; however, the attorney for Dickinson refused to accept it, claiming that Chemical Bank's check was not "good and available funds." The Bank and Dickinson required Chemical Bank to wire transfer the payoff funds to them. The court later ruled that the Killions did not owe the Bank and Dickinson attorney fees, as the Killions were the prevailing party in the declaratory judgment action. The Killions filed the present action for damages against the Bank, Dickinson, and John Crist, alleging that the Bank made fraudulent misrepresentations to the Killions at the time the Killions executed the note, Mr. Crist breached his fiduciary duty to the Killions as trustee under the deed of trust, Dickinson breached its fiduciary duty to the Killions because Mr. Crist was acting as an employee of Dickinson, the Bank breached its duty of good faith to the Killions by allowing Dickinson to proceed with the foreclosure sales, and the Bank, Dickinson and Mr. Crist committed a prima facie tort by proceeding with the foreclosure sales without justification. The case was tried to a jury. At the close of the evidence, the trial court directed a verdict in favor of the Bank, Dickinson and Mr. Crist on all counts except for the prima facie tort claim. On the Killions' prima facie tort claim, the jury found in favor of the Killions and against the Bank and Dickinson, and awarded the Killions $55,000 in compensatory damages. The jury also awarded the Killions $100,000 in punitive damages from the Bank, and $400,000 in punitive damages from Dickinson.(FN4) The Bank and Dickinson timely filed this appeal. The Killions did not appeal the directed verdicts against them. The Killions Failed to Make a Submissible Case of Prima Facie Tort The Bank and Dickinson's first point is that the Killions failed to make a submissible case of prima facie tort. Submissibility is a question of law. Gary Surdyke Yamaha, 743 S.W.2d at 523. In reviewing the submissibility of a plaintiff's case, this court views the evidence in the light most favorable to the plaintiff's case, presuming the plaintiff's evidence to be true, and giving the plaintiff "the benefit of all reasonable and favorable inferences drawn from the evidence." Riley v. Riley, 847 S.W.2d 86, 88 (Mo. App. 1992). To make a submissible case of prima facie tort, the Killions need to satisfy two requirements. First they need to demonstrate that they have substantial evidence on each of the four elements of their prima facie cause of action: (1) an intentional lawful act by the Bank and Dickinson; (2) the Bank's and Dickinson's intent to injure the Killions; (3) injury to the Killions; and (4) an absence of justification or insufficient justification for the Bank's and Dickinson's act. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 315 (Mo. banc 1993). In addition to the requirement that the Killions have substantial evidence on each element of their prima facie tort claim, there is a further prerequisite before the Killions can be found to have made a submissible case. Lundberg v. Prudential Ins. Co. of America, 661 S.W.2d 667, 670 (Mo. App. 1983). The Bank's and Dickinson's conduct must be found to be tortious under a "balancing of interests" test before they can be held liable. Id. Not every intentionally-caused harm merits a tort remedy. Restatement (Second) of Torts section 870 cmt. e (1977). Under the balancing of interests test, the court must weigh the conflicting interests of the parties to the litigation in light of the social and economic interests of society. Restatement (Second) of Torts section 870 cmts. c,d,e. Essentially, the court balances "the bad motivation of the defendant against the claimed justification for the act." Porter v. Crawford & Co., 611 S.W.2d 265, 270 (Mo. App. 1980). To do this, the court considers four factors: "(1) the nature and seriousness of the harm to the injured party; (2) the interests promoted by the actor's conduct; (3) the character of the means used by the actor; and (4) the actor's motive." Lundberg, 661 S.W.2d at 671. Because this issue is dispositive, the court undertakes the analysis of the balancing of interests test to determine whether the Bank's and Dickinson's conduct is tortious. With regard to the first factor, an injury is defined as "the invasion of a legally protected interest." Porter, 611 S.W.2d at 271. The comments to the Restatement (Second) of Torts set forth a hierarchy of the harms entitled to protection under the law. Physical harm to the person and to property weigh most heavily. Restatement (Second) of Torts section 870 cmt. f. Harm to existing advantageous relationships weighs less heavily, and harm to prospective pecuniary interests weighs less heavily still. Id. The significance of emotional harm in the balancing of interests process "varies considerably depending largely upon its severity." Id. The severity of the harm suffered is an important consideration in every case, "and a serious harm to an interest less deserving of protection may be a more important factor in finding liability than a slighter harm to a more significant interest." Id. The Killions presented evidence of both pecuniary injury and emotional harm as a result of the Bank and Dickinson instituting foreclosure proceedings. The Killions' claimed pecuniary injury was in the form of attorney fees and expenses which they incurred from the time the foreclosure sales were halted until the Bank released the deed of trust. There was evidence that they incurred attorney fees in connection with obtaining the temporary restraining orders halting both foreclosure sales, and attorney fees and expenses in connection with obtaining a judicial declaration that the contingent interest provision of the note was invalid and unenforceable. Generally, Missouri does not allow recovery of attorney fees and other litigation expenses in damage actions. Ashworth v. Schneider, 667 S.W.2d 16, 17 (Mo. App. 1984); Powell v. City of Osceola, 636 S.W.2d 163, 164 (Mo. App. 1982). There are exceptions to this rule. Attorney fees may be recovered when provided for by statute or contract, when incurred because of involvement in collateral litigation, or "when needed to balance benefits in a court of equity." Carlund Corp. v. Crown Center Redevelop., 910 S.W.2d 273, 277 (Mo. App. 1995). In this case, no statute or contract allows the Killions to collect attorney fees. To meet the collateral litigation exception, there must be a showing that the attorney fees were incurred in other litigation against a third party which is actually collateral to litigation involving the parties, such as when a party's breach of contract causes another party to the contract to sue or be sued by an outside third party. Smith v. Chatfield, 797 S.W.2d 508, 510 (Mo. App. 1990); Carlund Corp., 910 S.W.2d at 277. This exception does not apply to the Killions, as they are asking for attorney fees and expenses incurred in previous litigation against the Bank and Dickinson, not against a third party. Likewise, the Killions cannot recover attorney fees under the balance of benefits exception either, as that exception applies only in equitable proceedings in "those rare situations in which a party's pursuit of litigation enures to the benefit of other parties. . . ." Consol. Public Water Supply v. Kreuter, 929 S.W.2d 314, 317 (Mo. App. 1996). The Killions do not meet any of the exceptions allowing recovery of the attorney fees and expenses incurred in their prior litigation with the Bank and Dickinson. Therefore, the Killions' incursion of attorney fees and expenses due to the Bank's and Dickinson's instituting foreclosure proceedings against them is not an invasion of a legally protected interest, and cannot constitute a compensable injury. In addition to incurring attorney fees, the Killions also claimed that they suffered emotional injury from the institution of foreclosure proceedings. Emotional harm qualifies as a harm to a "legally protected interest" which can support a prima facie tort cause of action but, as previously noted, "[t]he significance of the emotional harm varies considerably depending largely upon its severity." Restatement (Second) of Torts section 870 cmt. f. The evidence of emotional harm was provided by Noah and Mabel Killion's sons, Michael, Bill and Richard. Michael Killion testified that people in the community indicated to him that they had seen the notice of foreclosure in the paper, and that it was very bothersome to him. He testified that he heard "things from the neighbors," and that caused stress on him and his parents. He also testified that the impending foreclosure sale was embarrassing and humiliating to him. Bill Killion testified that the threatened foreclosure was very stressful on his marital relationship. Richard Killion testified that he heard comments from other persons in the community after the notice of foreclosure was published, and that those comments made him feel very embarrassed, ashamed, and humiliated. He also testified that it had a negative effect on his relationship with his wife, that it was hard to face people in the community on a day-to-day basis, and that he was "a little bit concerned" about the effect it would have on his business credit. Like his brother Michael, Richard also testified that the impending foreclosure was hard on his parents, and it was hard for him to watch his parents being humiliated. This evidence proves that the Killions were stressed, humiliated and embarrassed by the actions of the Bank and Dickinson. Nevertheless, their emotional harm was not serious or severe under the hierarchy of harms of the Restatement; the Killions have a slight harm to the interest least deserving of protection. Restatement (Second) of Torts section 870 cmt. f. Under similar facts, factor one in other cases has been weighted for the defendant. In Lundberg, 661 S.W.2d at 670, the plaintiff claimed that "his demotion would cause him to suffer loss of income and retirement benefits thereafter and that he was humiliated, disgraced and embarrassed." Because his claim was only emotional harm and harm to prospective pecuniary interests, factor one was weighted in favor of defendant. Id. at 671. Plaintiff's emotional harm of being nervous, unable to sleep or eat and being distraught for two months weighed in favor of defendant in Kiphart v. Community Fed. Sav. & Loan Ass'n, 729 S.W.2d 510, 518 (Mo. App. 1987), considering the short duration of the emotional harm. Likewise, the appellate court in Riley, 847 S.W.2d at 89, found factor one weighted against a party who did not claim physical injury, but only emotional distress of short duration, noting that the evidence of emotional injury came only from the party and was not substantiated by medical testimony. Considering the nature of the Killions' injury, the first factor is weighted in favor of the Bank and Dickinson. On the second factor, the nature and significance of the interests promoted by the actor's conduct, the court is to afford established privileges or rights of the actor proper weight. Id. In this case, the note and deed of trust gave the Bank and Dickinson the right to proceed with foreclosure in the event of the Killions' default, and the Killions were admittedly in default. Missouri law provides that foreclosure is proper and legal following default and the law requires publication of notice of the foreclosure, which is the sole basis of the Killions' claim of emotional damages. Sections 443.290, 443.320, RSMo 1994. Nevertheless, the evidence showed that the Killions' default on the note was caused by the Killions' inability to refinance their debt to the Bank because the Bank and Dickinson insisted that the Killions pay contingent interest under an illegal provision in the note before the Bank would release the deed of trust on the Killions' farm. The Bank and Dickinson contend that they had every right to believe the contingent interest provision of the note was enforceable, and were justified in attempting to enforce it until this court determined it was illegal. The Bank was entitled to contract for contingent interest, but its method of computing the contingent interest was found to be invalid in Killion, 886 S.W.2d at 33-34, because it was not contingent upon the success of the Killions' business as required by 4 C.S.R. 140-6.050. If this were the only problem with the method of calculating contingent interest, the Bank and Dickinson would have been more justified in enforcing the interest provision until it was ruled invalid. The method of computing contingent interest was also invalid, however, because it was unconscionable.(FN5) A contract is substantively unconscionable if there is undue harshness in the terms of the contract. World Enterprises, Inc. v. Midcoast Aviation, 713 S.W.2d 606, 611 (Mo. App. 1986). Or, as more colorfully stated, "an unconscionable contract is one,