author: KURT S. ODENWALD, Presiding Judge.

text:
    Gary MAY, Jr., Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93155.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 19, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 22, 2010.
    Application for Transfer Denied May 25, 2010.

      Gwenda Renee Robinson, Office of the Missouri Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Mary H. Moore, Assistant Attorney General, Jefferson City, MO, for Respondent.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Gary May Jr. (Movant) appeals from the motion court’s denial, without an evidentia-ry hearing, of his Rule 24.035 motion for post-conviction relief. In concluding that the motion court’s denial was not clearly erroneous, we affirm.

Background

Movant was charged by indictment with three counts of class B felony assault on a law enforcement officer in the second degree, two counts of class A felony robbery in the first degree, three counts of class B felony attempted robbery in the first degree, one count of class C felony tampering in the first degree, one count of class D felony resisting or interfering with arrest, and one count of class A misdemeanor unlawful possession of drug paraphernalia. The State of Missouri (State) also charged Movant as a persistent felony offender with convictions for two or more felonies committed at different times.

On January 28, 2008, in exchange for the State’s offer to recommend a total twenty-year sentence and to refrain from pursuing persistent felony offender enhancements, Movant pleaded guilty to each of the aforementioned counts. That same date, the plea court sentenced Movant to serve a term of twenty years imprisonment for each of the two robbery counts, a concurrent term of fifteen years on each of the three assault of law enforcement officer counts, a concurrent term of fifteen years on each of the three attempted robbery counts, a concurrent term of seven years on the tampering count, a concurrent term of four years on the resisting arrest count, and a concurrent term of sixty days on the unlawful possession of drug paraphernalia count.

On June 26, 2008, Movant filed a pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence. On March 10, 2009, Movant’s court-appointed counsel filed an amended motion for post-conviction relief pursuant to Rule 24.035 (Motion for Post-Conviction Relief). Specifically, Movant contended that: (1) his plea counsel was ineffective for failing to move to suppress a coerced statement Movant made to law enforcement confessing to the charged offenses; (2) his plea counsel was ineffective for inducing his involuntary guilty plea by threatening that a trial by jury could likely lead to a sentence of life imprisonment; and (3) the fifteen-year imprisonment terms on the three counts of assault of a law enforcement officer exceeded the maximum punishment allowable.

On April 28, 2009, the motion court granted Movant’s motion in part and denied it in part. With respect to Movant’s third claim, the motion court reduced the plea court’s sentence on each of the three counts of assault of a law enforcement officer from fifteen years to seven years, to run concurrent with the remaining sentences. This reduction reflected the motion court’s finding that the conduct for which Movant was charged constituted class C felonies, not class B felonies. With respect to Movant’s first and second claims, however, the motion court denied both claims without an evidentiary hearing. In so denying, the motion court explained that “[i]t is apparent from the record that [M]ov-ant’s pleas were knowingly and voluntarily entered, and that he waived any complaints about any lack of preparation or any failure of his attorney to challenge potential evidence.” Furthermore, the motion court found that the record “reflects that no threats were made to induce his pleas, and ... [t]he mere prediction or advice of counsel does not constitute coercion.”

Point on Appeal

In his sole point on appeal, Movant claims that the motion court erred in denying, without an evidentiary hearing, his post-conviction claim that his plea counsel was ineffective for failing to move to suppress Movant’s confession. Movant contends that he pleaded facts, not conclusions, that the record does not conclusively refute and that entitle him to relief on his ineffective assistance of counsel claim.

Standard of Review

Appellate review of a motion court’s denial of a post-conviction motion under Rule 24.035 is limited to the determination of whether the motion court’s findings, conclusions, and judgment are clearly erroneous. Wooldridge v. State, 239 S.W.3d 151, 153-54 (Mo.App. E.D.2007); Rule 24.035(k). “The motion court’s findings and conclusions are clearly erroneous only if, after the review of the record, the appellate court is left with the definite and firm impression that a mistake has been made.” Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004).

Discussion

1. Evidentiary Hearing

The motion court in this case denied Movant’s ineffective assistance of counsel claim without an evidentiary hearing. To obtain an evidentiary hearing under Rule 24.035 on claims of ineffective assistance of counsel, (1) the movant must raise facts, not conclusions, warranting relief, (2) the facts alleged must raise matters not refuted by the record, and (3) the matters must have resulted in prejudice to the movant. Bequette v. State, 161 S.W.3d 905, 907 (Mo.App. E.D.2005). An eviden-tiary hearing is not required if the motion court determines that the motion and the files and records of the case conclusively show that the movant is entitled to no relief. Rule 24.035(h).

II.Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, a movant must show that he was prejudiced by his counsel’s objectively unreasonable, deficient performance. Castor v. State, 245 S.W.3d 909, 913 (Mo.App. E.D.2008). Where, as here, there is a negotiated plea of guilty, a claim of ineffective assistance of counsel is immaterial “except to the extent that it affects the voluntariness and understanding with which the movant made his plea.” Ramsey v. State, 182 S.W.3d 655, 658 (Mo.App. E.D.2005). A movant demonstrates prejudice by showing the existence of a reasonable probability that, “but for counsel’s unprofessional errors, [the] movant would not have pleaded guilty and would instead have insisted upon going to trial.” Patrick v. State, 160 S.W.3d 452, 455 (Mo.App. S.D.2005). A movant demonstrates his counsel’s objectively deficient performance by showing that such performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney. Thomas v. State, 249 S.W.3d 234, 237 (Mo.App. E.D.2008).

Moreover, it is well-settled that a “claim that counsel was ineffective for failing to file and pursue a motion to suppress is waived by the voluntary entry of a guilty plea.” Ramsey, 182 S.W.3d at 657 (emphasis added). “[A] guilty plea must be a voluntary expression of the defendant’s choice, and a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences.” State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997). The mere “existence of allegedly inadmissible evidence against [a movant] is not sufficient to vacate a guilty plea that was voluntarily and knowingly made.” Braxton v. State, 271 S.W.3d 600, 602 (Mo.App. S.D.2007).

III.Merits of Movant’s Appeal

As mentioned above, to obtain an evidentiary hearing on his ineffective assistance of counsel claim, Movant must raise facts, not conclusions, that are not conclusively refuted by the record and that call into question the voluntariness of his guilty plea. Here, the factual allegations contained in Movant’s Motion for Post-Conviction Relief focus primarily on the circumstances surrounding the statements he made to the police. Even if we presume Movant’s statements accurately reflect a coerced confession, these allegations do not affect the voluntariness of Movant’s subsequent guilty plea. Because a guilty plea renders ineffective assistance of counsel claims immaterial except with respect to the voluntariness of the plea, Movant’s factual allegations pertaining to the circumstances of his confession afford him no relief under Rule 24.035.

The remaining factual allegations contained in Movant’s Motion for Post-Conviction Relief are summarized as follows: Movant states he informed plea counsel of the circumstances surrounding his confession and that plea counsel did not move to suppress the confession; that Movant’s “plea counsel told him ... that his statement to police would get him life imprisonment”; that his plea counsel “made him feel as though pleading guilty was his only option”; and that he “pleaded guilty out of fear of receiving a life sentence and never seeing his young son again.” As to these factual allegations, the record conclusively refutes any inference that Movant’s plea was not voluntarily made. At the plea and sentencing proceeding, Movant testified that he understood each of the counts against him, along with the punishment range each count carried. Movant also testified that he had enough time to discuss the counts charged with his plea counsel; that his plea counsel fully explained his rights to him; that his plea counsel discussed with him both the content of each count and the applicable punishment ranges on each count; that his plea counsel answered all of his questions; that his plea counsel discussed with him trial tactics; that his plea counsel did everything Movant asked him to do pertaining to his representation; and that he had no complaints against his plea counsel. Additionally, Movant testified that he failed to give his plea counsel the names of any witnesses to testify on his behalf; that he understood that his guilty plea meant that he was foregoing a jury trial in which the State had the burden to prove his guilt beyond a reasonable doubt; that no threats or promises, other than the plea agreement, were made to him to induce his plea of guilty; and that his plea counsel did not make any threats or promises, other than the plea agreement, to induce his plea of guilty.

Although “general inquiries about counsel’s performance may not be sufficient to refute the record in some circumstances,” Ramsey, 182 S.W.3d at 658, the plea court’s specific inquiries in this case adequately demonstrate that Movant plead guilty on his own volition and with sufficient awareness of the consequences of his plea. The allegations raised by Movant, if true, raise serious and substantial questions not only about his plea counsel, but of the law enforcement officials involved in Movant’s arrest and interrogation. Mov-ant could have raised questions about the circumstances of his interrogation and his plea counsel’s performance at the plea hearing. Instead, Movant repeatedly expressed satisfaction with his plea counsel and denied that he had been coerced to plead guilty. See Ramsey, 182 S.W.3d at 658 (holding that where the movant was clearly aware of the issues he claimed his counsel failed to pursue prior to the plea hearing, had ample opportunity to discuss his concerns about counsel during the plea hearing, yet repeatedly expressed his satisfaction with counsel’s performance, the movant’s claim that his counsel was ineffective in failing to pursue a motion to suppress was conclusively refuted by the record such that the motion court did not clearly err by denying the movant’s claim for post-conviction relief without an evi-dentiary hearing).

The record before us conclusively supports the motion court’s finding that Mov-ant entered a voluntary guilty plea, thereby waiving any complaints about his plea counsel’s failure to file a motion to suppress evidence.

Conclusion

Based on the foregoing, we conclude that the entire record reflects that the motion court’s denial of Movant’s motion for post-conviction relief was not clearly erroneous. We affirm.

GEORGE W. DRAPER III and GARY M. GAERTNER, JR., JJ., concur.

      . In Missouri, the authorized term of imprisonment for a class A felony is “a term of years not less than ten years and not to exceed thirty years, or life imprisonment.” Section 558.011, RSMo 2009. Furthermore, if a defendant is found to be a "persistent offender,” the total authorized maximum terms of imprisonment for a class B felony, class C felony, and class D felony are enhanced, respectively, to the sentence already authorized for a class A felony, class B felony, and class C felony. Section 558.016, RSMo 2009.

      . All references are to Mo. R.Crim. Pro.2009, unless otherwise provided.

      . Movant alleged that he was beaten; that the officers read him his Miranda rights; that he does not remember waiving his Miranda
        rights; that he was under the influence of drags at the time he made his statement; that the officers raised their voices towards him; that the officers threatened him with lengthy incarceration if he failed to cooperate; and that the officers told him that his accomplice had already confessed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the interest of: E.L.C. & A.M.C.
    No. ED 92820.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 26, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 14, 2010.
    Application for Transfer Denied May 25, 2010.
    Robert W. Bilbrey, Hillsboro, MO, for Appellant.
    Tammy M. Steward, Farmington, MO, for Respondent.
    John M. Williams, Park Hill, MO, for juvenile.
    Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER III, J., and GARY M. GAERTNER, Jr., J.
   ORDER

PER CURIAM.

Sheila Kemper (hereinafter, “Mother”) appeals from the trial court’s judgment terminating her parental rights to her minor children, E.C. and A.C. (hereinafter and collectively, “Children”). Mother raises six points on appeal, arguing the trial court erred in: (1) terminating her parental rights because there was not clear, cogent, and convincing evidence to support the findings made pursuant to Section 211.447.5(2) RSMo (2008) ; (2) terminating her parental rights because there was not clear, cogent, and convincing evidence to support the findings made pursuant to Section 211.447.5(3); (3) terminating her parental rights because there was not clear, cogent, and convincing evidence to support the findings made pursuant to Section 211.447.5(6); (4) failing to admit the prior transcript testimony of Lee Bo-rowiak; (5) failing to admit the prior transcript testimony of Mindy Weber; and (6) terminating her parental rights because it was not in the best interests of Children.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The trial court’s judgment terminating Mother’s parental rights to Children is supported by clear, cogent, and convincing evidence on the record. No precedential or jurisprudential purpose would be served by an opinion reciting the detailed facts and restating the principles of law. However, we are providing a memorandum to the parties, for their use only, setting forth the reasons for this order. We affirm pursuant to Rule 84.16(b).

      . All further statutory references herein are to RSMo (2008) unless otherwise indicated.


text:
    Thomas DIEHL and Barbara Diehl, Plaintiffs/Appellants, v. FRED WEBER, INC., Defendant/Respondent.
    No. ED 92843.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 26, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 8, 2010.
    Application for Transfer Denied May 25, 2010.

      Michael D. Quinlan, St. Louis, MO, for Appellant.
    Lawrence F. Hartstein, Hartstein Law Firm, P.C., Clayton, MO, Winthrop B. Reed, III, Lewis, Rice & Fingersh, L.C., St. Louis, MO, for Respondent.
    Before GLENN A. NORTON, P.J., and MARY K. HOFF, J., and LAWRENCE E. MOONEY, J.
   PER CURIAM.

OPINION

Thomas Diehl (Mr. Diehl) and Barbara Diehl (Wife) (collectively referred to as the Diehls) appeal from the trial court’s grant of summary judgment in favor of Fred Weber, Inc., (Weber) on the Diehls’ petition alleging malicious prosecution, abuse of process, intentional infliction of emotional distress, and prima facie tort. We reverse and remand in part and -affirm in part.

Factual and Procedural History

This appeal arises from a lawsuit originally filed by Weber alleging that Mr. Diehl had defamed Weber. The relevant facts are as follows:

Weber owned a sanitary landfill and a parcel of property where a proposed trash transfer station was to be built and operated. Both the landfill and the property were located in St. Louis County. Weber filed an application with the St. Louis County Department of Health to construct and operate the trash transfer station. The Department of Health held a public hearing, as required by law, regarding the proposed trash transfer station. It was alleged that Mr. Diehl distributed a flyer to people that attended the public hearing. The flyer stated, in pertinent part, “STOP FRED WEBER, INC.[,] ... THE TRASH TERRORISTS.” The flyer instructed persons to contact the director of St. Louis County’s Department of Health, the county executive, the director of St. Louis County’s Department of Planning, or a group called Subdivision Fee Collectors, Inc., which was organizing the public opposition to the trash transfer station. Neither Mr. Diehl’s nor Wife’s name appeared on the flyer.

The following day, Weber’s chairman of the board and chief executive officer, Thomas P. Dunne, Senior, (Dunne, Sr.,) found one of the flyers on his desk. Dunne, Sr., had not been present at the public hearing. Dunne, Sr., believed that the flyer “was probably the lowest blow and most outrageous thing ... leveled at the company” in the 42 years he had been with Weber. Dunne, Sr., was angry because he believed the flyer’s language harmed Weber’s reputation. A day or two later, Dunne contacted Weber’s attorneys because he was “looking for any kind of legal remedies that could, one, stop the flyer from being circulated; two, stop being called a terrorist; and, three, to find out at that time who was the person who originated it.” Dunne, Sr., gave Weber’s attorneys “marching orders” and told them to obtain “whatever legal remedies possible, to stop the dissemination of [the flyer] ... and the use of the word terrorist and to find out who put this together, period.” As far as Dunne, Sr., was concerned, the attorneys did not need to secure his approval before taking any particular action with regard to the legal remedies they decided to pursue because “[w]hatever it took to accomplish [those] legal remedies, that was their ... call.”

Twelve days after the public hearing, Weber filed suit against Subdivision Fee Collectors, Inc., and certain unknown and unidentified John Does, alleging the flyer was defamatory. Approximately two months later, Weber filed its first amended petition (First Amended Petition), adding Mr. Diehl as a defendant. Weber’s First Amended Petition included four counts alleging disparagement, business defamation, libel and slander, and civil conspiracy. The First Amended Petition specifically alleged, in part:

17. After the horrendous, horrifying and frightening sneak terrorist attacks against the United States on September 11, 2001, the term “terrorist” carries with it a strong connotation of acts of injuring and killing innocent people by fanatics who hate the United States.
18. In pertinent part, the offending flyer interfered with [Weber’s] landfill business by directing the customers of the trash hauler/collectors with whom [Weber] does business with (sic) or has contracts and agreements to use trash hauler s/collectors that have contracts and agreements with competitors of [Weber].
24. The false, libelous and slanderous statements of Defendants and the false innuendo surrounding them naturally and proximately led persons to whom the false, libelous and slanderous statements were published to believe that [Weber] has killed and injured people or that the proposed South Transfer Station would kill and injure people and that [Weber] was unethical, immoral and disreputable in its business dealings.
28. The publication, dissemination and distribution and utterance of the false, libelous and slanderous statements by Defendants impugned and damaged the reputation of [Weber] in that many businesses accustomed to dealing with Weber either ceased dealing with, threatened to cease dealing with or diminished their business dealings with [Weber] whereby [Weber] has been deprived of its trade and the reasonable profits which it would have enjoyed but for the publication, dissemination, distribution and utterance of the false, libelous and slanderous statements.

Weber further alleged that, due to the actions of Subdivision Fee Collectors, Inc., and Mr. Diehl, it had sustained actual damages in excess of $100,000 and was entitled to punitive damages of $5 million. Weber also sought a permanent injunction enjoining and prohibiting Subdivision Fee Collectors, Inc., and Mr. Diehl or anyone acting on their behalf from further publishing, disseminating, or distributing the flyer.

Mr. Diehl filed a motion to dismiss the First Amended Petition for failure to state a claim, which the trial court denied. Mr. Diehl then sought relief through a writ of prohibition, which this Court granted in State ex rel. Diehl v. Kintz, 162 S.W.3d 152 (Mo.App. E.D.2005) (Diehl I). There, we found that Weber had failed to state a claim for defamation because the language used in the flyer, particularly the words “TRASH TERRORISTS,” was not defamatory but was “imaginative expression or rhetorical hyperbole.” Diehl I, 162 S.W.3d at 156. We reasoned that, taken in context and considering the circumstances, i.e., the flyer was distributed at a public hearing regarding a controversial issue, a reader of the flyer would not actually believe Weber was a terrorist but would recognize the language as voicing the “writer’s staunch opposition to the proposed trash transfer station.” Id. at 156. Consequently, we also found that Weber had failed to state a claim for civil conspiracy because there existed no underlying act or tort upon which such a claim could be based. Id. at 156-57. In granting the writ of prohibition, this Court considered the “chilling impact that might be suffered in public discourse” if Weber’s “meritless action” was allowed to proceed. Id. at 157.

Following this Court’s mandate in Diehl I, the Diehls filed their five-count petition in the instant case, alleging intentional infliction of emotional distress, malicious prosecution, abuse of process, prima facie tort, and negligent infliction of emotional distress. The Diehls further alleged that Weber had filed its previous suit in order to intimidate them and other citizens from voicing their opposition to the proposed trash transfer station.

Later, the Diehls voluntarily dismissed without prejudice their claims for negligent infliction of emotional distress. Mr. Diehl also dismissed without prejudice his claim for prima facie tort. Wife, who was not a named defendant in Weber’s lawsuit, dismissed without prejudice her claims for malicious prosecution and abuse of process. Weber filed a motion to dismiss the Diehls’ claims for intentional infliction of emotional distress, which the trial court granted on the ground that such claims could not stand as separate causes of action along with the Diehls’ other tort claims. Weber then filed motions for summary judgment as to Mr. Diehl’s claims for malicious prosecution and abuse of process and as to Wife’s claim for prima facie tort. In separate orders, trial court judges granted Weber’s motions for summary judgment.

In the order granting summary judgment in favor of Weber on Mr. Diehl’s malicious prosecution and abuse of process claims, Judge Dowd found that Dunne, Sr.’s, role in instigating the previous lawsuit against Mr. Diehl was limited to making the final decision to proceed and that Dunne, Sr., was not specifically aware of Mr. Diehl’s identity. Judge Dowd further found that the details of the defamation lawsuit, and the manner in which it was prosecuted, were left to Weber’s attorneys and that the record did not indicate the defamation lawsuit had been filed without a factual basis or in bad faith. Judge Dowd concluded that Weber’s decision to instigate and maintain the defamation lawsuit against Mr. Diehl was reasonable because Weber and its attorneys believed “the remarks in the flyer were defamatory in the first instance.” Judge Dowd also concluded that the “fact that the words were later determined not to be legally defamatory [did] not change the original purpose of the [defamation] suit,” which Weber claimed was to stop the harm allegedly being done to its reputation as a result of the flyer’s characterization of the company as a “terrorist.”

Mr. Diehl thereafter filed a motion to vacate the summary judgment on his malicious prosecution and abuse of process claims, along with a submission of additional material facts in opposition to Weber’s motion for summary judgment. After hearing arguments, Judge Dowd denied the motion to vacate.

Several months later, Judge Dierker, subsequently entered the order granting summary judgment in favor of Weber on Wife’s claim for prima facie tort, finding that Wife’s claim was “purely based upon the filing of the underlying Lawsuit against [Mr. Diehl] by Weber” and that Wife’s claim was, therefore, dependent on the -viability of Mr. Diehl’s malicious prosecution and abuse of process claims. Judge Dierker acknowledged Judge Dowd’s earlier order granting summary judgment in favor of Weber but expressed “some doubt” regarding the correctness of the prior ruling:

Were the Court writing on a blank slate, it might very well conclude that the malicious prosecution claim is viable and that [Wife’s] remedy is not prima facie tort, but loss of consortium arising out of the malicious prosecution tort inflicted upon her husband. However this Court is constrained by the prior rulings in this case as a matter of custom and practice, in the interests of the administration of justice.

Judge Dierker thereafter concluded that summary judgment was appropriate because Wife’s prima facie tort claim was based solely on Mr. Diehl’s previously-extinguished claims for malicious prosecution and abuse of process. Judge Dierker also concluded that all counts of the Diehls’ petition had been disposed of and that Weber was, therefore, entitled to final judgment.

This appeal of the two summary judgments followed. Additional facts will be discussed as necessary to our analysis of the issues on appeal.

Malicious Prosecution, Abuse of Process, and Prima Facie Tort Claims

Because the Diehls’ first and second points on appeal concern claims that were disposed of through summary judgment, those claims are governed by the same standard of review. Therefore, we address those claims together.

In their first point, the Diehls contend the trial court erred in granting summary judgment in favor of Weber on Mr. Diehl’s malicious prosecution and abuse of process claims. The Diehls argue that the claims should have been submitted to a jury because Weber’s statement of uncontrovert-ed material facts in support of its motion for summary judgment failed to show that there were undisputed material facts regarding either claim or the facts necessary to support Weber’s affirmative defense of advice of counsel.

In their second point, the Diehls contend the trial court erred in granting summary judgment in favor of Weber on Wife’s pri-ma facie tort claim because the trial court improperly based its ruling on the earlier summary judgment on Mr. Diehl’s malicious prosecution and abuse of process claims.

Whether the trial court’s grant of summary judgment was proper is a question of law, which we review de novo. Todd v. Missouri United School Ins. Council, 223 S.W.3d 156, 160 (Mo. banc 2007); ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is proper only when the movant establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Rule 74.04(c); Todd, 223 S.W.3d at 160. Where the defending party is the movant, it may establish a right to judgment by showing: 1) facts negating any one of the non-movant’s elements facts; 2) that the non-movant, after an adequate period of discovery, has not been able and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the non-movant’s elements; or 3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense. ITT, 854 S.W.2d at 381. Most importantly, we review the record in the light most favorable to the party against whom summary judgment was entered. ITT, 854 S.W.2d at 376. We take as true the facts set forth by affidavit or otherwise in support of the moving party’s motion unless contradicted by the nonmov-ing party’s response. Ehrhardt v. Herschend, 294 S.W.3d 58, 59 (Mo.App. S.D.2009). We accord the non-moving party the benefit of all reasonable inferences from the record. Ehrhardt, 294 S.W.3d at 59. Furthermore, where competent materials in the record show there are two plausible but contradictory accounts of the necessary facts, there exists a genuine issue for trial. Risher v. Farmers Ins., 200 S.W.3d 84, 88 (Mo.App. E.D.2006).

First, the Diehls argue that Weber was not entitled to summary judgment as a matter of law on the malicious prosecution claim because Weber failed to state undisputed facts regarding the “lack of probable cause” element of their claim and because Weber failed to establish there was no genuine dispute with regard to each element of Weber’s advice-of-counsel defense.

Generally, a plaintiff may recover damages resulting from the initiation of a civil action where such action was prosecuted maliciously and without probable cause or was an abuse of process. Dillard Dept. Stores, Inc., v. Muegler, 775 S.W.2d 179, 183 (Mo.App. E.D.1989).

To prevail on a claim for malicious prosecution, a plaintiff must prove the following elements: (1) the previous commencement of a lawsuit against the plaintiff; (2) that was instigated by the defendant; (3) that terminated in favor of the plaintiff; (4) due to a lack of probable cause for the instigation of the suit; (5) because the defendant’s conduct was motivated by malice; and (6) the plaintiff sustained damages as a result. Ehrhardt, 294 S.W.3d at 60; Crow v. Crawford & Co., 259 S.W.3d 104, 114 (Mo.App. E.D.2008). The plaintiff must prove all six elements to make a submissible case of malicious prosecution. Crow, 259 S.W.3d at 114. On the contrary, the defendant in a suit for malicious prosecution may establish a right to summary judgment by showing facts negating any one of the plaintiffs elements or by establishing there is no genuine dispute as to the existence of each of the facts necessary to support an affirmative defense that the prior suit was filed on advice of counsel. Id.; Ehrhardt, 294 S.W.3d at 60.

The defense of advice of counsel requires a showing that the defendant made a full and truthful disclosure of all material facts to his attorney prior to the filing of the previous lawsuit. Ehrhardt, 294 S.W.3d at 60. Such disclosure requires the client to have informed his attorney of all material facts within is actual knowledge and those he might have learned by reasonable diligence. Zahorsky v. Griffin, Dysart, Taylor, Penner and Lay, P.C., 690 S.W.2d 144, 152 (Mo.App. W.D.1985). Advice of counsel is an affirmative defense, and the defendant bears the burden of proof, even though such defense is “inextricably bound up with the plaintiffs burden to demonstrate lack of probable cause.” Ehrhardt, 294 S.W.3d at 60, quoting Zahorsky, 690 S.W.2d at 152.

“Probable cause to instigate a civil suit” means a reasonable belief in the facts alleged plus a reasonable belief that the claim may be valid under the applicable law. State ex rel. Police Retirement System of St. Louis v. Mummert, 875 S.W.2d 553, 555 (Mo. banc 1994). “Probable cause does not depend upon what may have ultimately proved to be the actual state of facts embraced in the previous action or proceeding, but instead upon the honest and reasonable belief of one who instigated its prosecution.” Zahorsky, 690 S.W.2d at 151-52 (quotations omitted). If it appears that a reasonably prudent person would have believed and acted under the circumstances as did the person who instigated the previous action, then the existence of probable cause is sufficiently established. Id. at 152. However, if the previous claim against the plaintiff resulted in a decision on the merits in favor of the plaintiff, the acquittal itself constitutes some evidence of a lack of probable cause and is to be considered with the other facts and circumstances. Ehrhardt, 294 S.W.3d at 61. Because establishing the absence of probable cause requires proof of a negative, slight evidence is sufficient. Id. “If any material part of the evidence showing existence or want of probable cause is in conflict, a fact issue exists that is sufficient to make a submissible case.” Id., quoting Hoene v. Associated Dry Goods Corp., 487 S.W.2d 479, 483-84 (Mo. banc 1972).

Here, the voluminous record reveals numerous contradictions in the evidence that precluded the entry of summary judgment in favor of Weber on the malicious prosecution claim.

Dunne, Sr.’s, own testimony suggested that Weber lacked legitimate probable cause to instigate the defamation lawsuit because even Dunne, Sr., could not say whether Weber had been harmed by the flyer. Dunne, Sr., testified that he contacted Weber’s attorneys only a day or two after the public hearing because he wanted to stop the flyer from being circulated and to find out who had created it. Dunne, Sr., gave Weber’s attorneys their “marching orders” and told them to obtain “whatever legal remedies possible, to stop the dissemination of [the flyer] ... and the use of the word terrorist and to find out who put this together, period.” However, Dunne, Sr., did not know whether anyone actually would have believed Weber was a “terrorist” based on the flyer. In fact, Dunne, Sr., had heard some “[p]eople in business meetings” joking about the flyer calling Weber “terrorists.” Dunne, Sr., acknowledged that, before filing the defamation lawsuit, no one ever expressed a belief that the flyer diminished Weber’s image. Dunne, Sr., further admitted that he was not offended by the other language contained in the flyer, which asked the public to consider hiring trash haulers that did not use Weber’s landfill. Dunne, Sr., further testified that he had “made the decision” to sue Mr. Diehl. This testimony indicated that the defamation lawsuit was instigated on Dunne, Sr.’s, insistence that the flyer be stopped rather than on the reasonable belief that a valid defamation claim existed. Moreover, the evidence failed to establish that Dunne, Sr., made a full and truthful disclosure to Weber’s attorneys regarding the lack of actual harm to Weber’s reputation before the defamation lawsuit was filed. As the Diehls point out in the argument section of their brief, the evidence implied that Weber rushed to file the defamation lawsuit in order to stop the flyer’s unflattering characterization of the company and to stop further public protest regarding the proposed trash transfer station.

Even the two trial court orders granting summary judgment in favor of Weber suggest contradictions. In the summary judgment on Wife’s claim for prima facie tort, Judge Dierker specifically questioned the propriety of the earlier summary judgment on Mr. Diehl’s claim for malicious prosecution and abuse of process. Additionally, this Court’s decision in Diehl I finding Weber’s defamation claims to be “meritless” reflects evidence of a lack of probable cause to instigate a civil suit. See Ehrhardt, 294 S.W.3d at 61. Accordingly, because of the contradictory evidence in the record and given our standard of review, we cannot conclude that Weber was entitled to summary judgment as a matter of law on Mr. Diehl’s claim of malicious prosecution.

Second, the Diehls argue that Weber was not entitled to summary judgment as a matter of law on the abuse of process claim because they presented sufficient evidence from which a jury could have properly concluded that Weber abused the legal process in that it had an “improper purpose” for filing the lawsuit.

To prevail on an abuse of process claim, a plaintiff must prove the following elements: (1) the defendant made an illegal, improper, perverted use of process, which was neither warranted nor authorized by the process; (2) the defendant had an improper purpose in exercising such illegal, perverted, or improper use of process; and (3) the plaintiff sustained damages as a result. Duvall v. Lawrence, 86 S.W.3d 74, 84-85 (Mo.App. E.D.2002). If the action filed by the defendant was confined to its regular and legitimate function, there is no abuse of process, even if the defendant had an ulterior motive in bringing the action or knowingly brought the suit upon an unlawful claim. Id., 86 S.W.3d at 85. The test is whether the process was used to accomplish some unlawful end or to compel the plaintiff to do some collateral thing that he could not be compelled to do legally. Id. The difference between a claim for malicious prosecution and abuse of process is not the commencement of an action without justification but the misuse of process for an end other than that which it was designed to accomplish. Dillard Dept. Stores, Inc., 775 S.W.2d at 183; Guirl v. Guirl, 708 S.W.2d 239, 245 (Mo.App. E.D.1986).

Here, given this Court’s decision in Diehl I finding Weber’s defamation lawsuit “meritless” and our analysis of the Diehls’ malicious prosecution claim in the instant case, we conclude that Weber was not entitled to summary judgment as a matter of law on the Diehls’ abuse of process claim.

The trial court entered summary judgment against the Diehls on their abuse of process claim because it found that the original purpose of Weber’s lawsuit was “to stop the publication of a flyer referring to [Weber] as a ‘terrorist,’ a term [Weber] believed was harmful.... ” The trial court further found that this original purpose was not transformed into an improper purpose when this Court, in Diehl I, determined that the flyer was not defamatory but was “imaginative expression or rhetorical hyperbole” distributed at a public hearing intended to encourage public discourse and the sharing of opinions regarding a controversial issue. See Diehl I, 162 S.W.3d at 157. However, we find that Weber presented no evidence establishing that, at the time the defamation lawsuit was filed, anyone reasonably believed Weber was a terrorist based on the contents of the flyer or that Weber’s reputation was damaged as a result. Instead, the record before us implies that the defamation lawsuit might have been an attempt to compel Mr. Diehl to stop exercising his First Amendment right to publicly oppose the proposed trash transfer station, a collateral purpose. Consequently, there are disputed issues of material fact regarding whether Weber filed its defamation lawsuit to protect its reputation from harm or rather to quash distribution of the flyer and opposition to the trash transfer station, by seeking actual damages in excess of $100,000 and punitive damages of $5 million.

We likewise reverse the summary judgment on Wife’s prima facie tort claim. In his order granting summary judgment in favor of Weber on Wife’s prima facie tort claim, Judge Dierker acknowledged Judge Dowd’s earlier summary judgment but found that, “after close scrutiny of the entire record, there may well be genuine issues of material fact” regarding the elements of Wife’s prima facie tort claim. Judge Dierker further found that, “If the Court were to rule on the motion for summary judgment solely on those grounds, the motion might very well be denied.” Judge Dierker, noted, however, that Wife’s claim was “purely based upon the filing of the underlying Lawsuit against [Mr. Diehl] by Weber” and that Wife’ claim was, therefore, dependent on the viability of Mr. Diehl’s malicious prosecution and abuse of process claims. Consequently, given our decision reversing the summary judgment regarding Mr. Diehl’s claims of malicious prosecution and abuse of process, we reverse the summary judgment on Wife’s prima facie tort claim, which arose from and was dependent upon Mr. Diehl’s claims.

The Diehls’ first and second points are granted.

Intentional Infliction of Emotional Distress

In their third point on appeal, the Diehls contend the trial court misapplied the law when it dismissed their claim for intentional infliction of emotional distress.

Our review of the trial court’s grant of a motion to dismiss for failure to state a claim is de novo. Hamid, v. Kansas City Club, 293 S.W.3d 123, 125 (Mo.App. W.D.). The propriety of the trial court’s ruling on such a motion rests solely on the adequacy of the plaintiffs petition. Hamid, 293, S.W.3d at 125. The facts contained in the plaintiffs petition are treated as true and are construed liberally in favor of the plaintiff to determine if they meet the elements of a recognized cause of action or of a cause that might be adopted in the case. Id. If the plaintiffs petition sets forth any set of facts that, if proven, would entitle him to relief, then the petition states a claim. Id.

In Missouri, to state a claim of intentional infliction of emotional distress, a plaintiff must plead: (1) the defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; and (3) the conduct caused severe emotional distress resulting in bodily harm. Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo. banc 1997); K.G. v. R.T.R., 918 S.W.2d 795, 799 (Mo. banc 1996). The conduct must have been so outrageous in character and so extreme in degree that it is beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community. Thomas v. Special Olympics Missouri, Inc., 31 S.W.3d 442, 446 (Mo.App. W.D.2000); Gibson, 952 S.W.2d at 249. Furthermore, the conduct must have been intended only to cause extreme emotional distress to the victim. Id. However, Missouri courts have held that where one’s conduct amounts to the commission of a traditional tort and was not intended only to cause extreme emotional distress to the victim, the tort of intentional infliction of emotional distress will not lie and recovery must be had under the appropriate traditional tort action. K.G., 918 S.W.2d at 799. When a defendant’s conduct is intended to invade other legally-protected interests of the plaintiff or intended to cause bodily harm and damages for mental suffering are recoverable for those other intentional tort claims, the recovery for emotional distress, as an independent tort, is duplicative. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 316 (Mo. banc 1993); Hester v. Barnett, 723 S.W.2d 544, 561 (Mo.App. W.D.1987).

Here, the Diehls argue that Weber’s primary purpose in filing the defamation lawsuit was to cause them “immediate emotional distress” while the “collateral effect” of filing the lawsuit was political intimidation. We disagree. According to the facts alleged in the Diehls’ petition, Weber’s primary purpose in filing the defamation lawsuit was to silence the Diehls and other opponents of the proposed trash transfer station and to stop their public challenge to Weber’s permit application for the trash transfer station. Notably, the petition did not allege that Weber’s filing of the lawsuit was intended only to cause extreme emotional distress to the Diehls. See Thomas, 31 S.W.3d at 446. Although emotional distress might have been an element of damages in the Diehls’ claims for malicious prosecution, abuse of process, and prima facie tort, which were still pending at the time the claim for intentional infliction of emotional distress was dismissed, the claim for intentional infliction of emotional distress could not have been maintained as a separate cause of action alongside the other tort claims because such a claim would have been duplicative. See Nazeri, 860 S.W.2d at 316; Hester, 723 S.W.2d at 561. Accordingly, the trial court did not err in dismissing this claim. Point denied.

Attorney Work Product and Privileged Documents

Because the Diehls’ fourth and fifth points on appeal assert claims concerning the trial court’s rulings with regard to discovery requests, which are governed by the same standard of review and rules of law, we address those claims together.

The trial court has broad discretion in controlling and managing discovery. State ex rel. Dixon v. Darnold, 939 S.W.2d 66, 68 (Mo.App. S.D.1997). We will not disturb the trial court’s ruling regarding discovery unless the ruling was clearly against the logic of the circumstances then before the court and so arbitrary and unreasonable as to shock the sense of justice and to indicate a lack of careful consideration. State ex rel. Dixon, 939 S.W.2d at 68.

Generally, parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, whether it relates to the claim or the defense of the party seeking discovery or to the claim or the defense of any other party, as long as the intended discovery appears to be reasonably calculated to lead to the discovery of admissible evidence. Rule 56.01(b)(1).

Subject to the rule governing expert witnesses, parties may obtain discovery of documents and tangible things otherwise discoverable under Rule 56.01(b)(1) and prepared in anticipation of litigation by that party’s representative only upon a showing that the party seeking discovery has substantial need of the material in the preparation of its case and is unable, without undue hardship, to obtain the substantial equivalent of the materials by other means. Rule 56.01(b)(3).

Confidential communications between an attorney and his client concerning the representation of the client are protected by the attorney-client privilege. In re Marriage of Hershewe, 931 S.W.2d 198, 202 (Mo.App. S.D.1996). Absent a waiver, such privileged communications are immune from discovery. State ex rel. Chase Resorts, Inc. v. Campbell, 913 S.W.2d 832, 838 (Mo.App. E.D.1995). Attorney work product, both tangible and intangible, also is privileged. Edwards v. Missouri State Bd. of Chiropractic Examiners, 85 S.W.3d 10, 26 (Mo.App. W.D.2002). The trial court shall apply the work product doctrine to protect against the disclosure of the mental impressions, conclusions, opinions, or legal theories, both tangible and intangible, created or commissioned by counsel in preparation for possible litigation. Rule 56.01(b)(3): State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367 (Mo. banc 2004); State ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. O'Malley, 898 S.W.2d 550, 553, 555 n. 2 (Mo. banc 1995). The work product doctrine applies to two types of information: opinion work product and trial preparation materials. Edwards, 85 S.W.3d at 26.

The party seeking discovery has the burden of establishing the relevance of the sought-after materials. Rule 56.01(b)(1): State ex rel. Ford Motor Co., 151 S.W.3d at 367. If relevance has been established or is uncontested and the opposing party asserts that a privilege precludes disclosure, the opposing party bears the burden of showing the privilege applies. State ex rel. Ford Motor Co., 151 S.W.3d at 367. To invoke the protection of the work product doctrine, the party opposing discovery must establish, through competent evidence, that the materials sought to be protected are documents or tangible things prepared in anticipation of litigation or for trial and were prepared by or for a party or a representative of that party. Id.

In their fourth point, the Diehls claim the trial court abused its discretion in denying their emergency motion to compel the production of certain documents characterized by Weber as attorney internal work product.

During discovery, the Diehls served subpoenas duces tecum, on the attorneys that had represented Weber in the underlying defamation lawsuit, seeking documents and testimony from them relating to Weber’s factual and legal basis for filing and pursuing the underlying defamation lawsuit. Weber opposed the discovery request on the ground that such documents and testimony were protected by the attorney-client privilege and the work product doctrine.

The Diehls subsequently filed an emergency motion to compel production, alleging that Weber had waived both the attorney-client privilege and work product immunity with respect to all matters related to Weber’s advice of counsel defense. In the motion, the Diehls argued that the requested materials were not protected by any privilege because Weber had delegated to the attorneys its authority to decide whether or not to sue the Diehls, and the delegation of such authority had caused the attorneys “to cease to be mere advisers, and made them corporate decision makers, whose knowledge and information [was] per se the knowledge and information of the corporation.” The Diehls further argued that, in light of Weber’s advice of counsel defense, they had substantial need for the information- and no substitute means for obtaining it and that they were entitled, as a matter of fundamental fairness, to discover the nature and circumstances of the legal advice upon which Weber relied in filing the defamation lawsuit.

Weber filed a memorandum in opposition to the Diehls’ emergency motion to compel production. Weber argued that the information the Diehls sought had been prepared by Weber’s attorneys in the underlying defamation lawsuit and was privileged because: (1) the information was work product containing the mental impressions, opinions, and litigation strategy of Weber’s attorneys and has never been communicated to Weber, thus, the information was not relevant to Weber’s decision to sue the Diehls or its advice of counsel defense; and (2) the attorneys at all times were engaged in providing professional advice to Weber and never became employees or corporate decision makers of Weber.

The trial court later called, heard, and denied the Diehls’ emergency motion to compel production.

After reviewing of the numerous pleadings and supporting documents related to this claim, we find the trial court did not abuse its discretion in denying the emergency motion to compel production. The information the Diehls attempted to discover, such as the mental impressions, opinions, and litigation strategy of Weber’s attorneys, all fell under the protection of the work product doctrine. Although the communications between the attorneys and Weber relating to the underlying defamation lawsuit were relevant to the advice of counsel defense and were required to be produced, nothing in the record suggests that the particular information the Diehls sought to discover through their motion to compel production was ever communicated by the attorneys to Weber or had any bearing on Weber’s decision to sue the Diehls. In fact, the Diehls’ motion to compel does not even specify with any particularity the information they wished to obtain. Furthermore, the work product doctrine could not be avoided on the ground that Weber’s attorneys became corporate decision makers as a result of Dunne, Sr.’s, directive that they pursue all legal remedies on behalf of Weber. Pursuing legal remedies for perceived wrongs against the company was the very nature of them function as attorneys, and these materials the attorneys prepared in view of litigation on Weber’s behalf were privileged. The Diehls’ fourth point is denied.

In their fifth point, the Diehls claim the trial court abused its discretion when it ordered them to return an inadvertently-produced document, known as the LRF email, to Weber. The Diehls essentially argue that the LRF email was discoverable because the email contained “advice of counsel regarding the legal validity” of the defamation lawsuit and Weber had waived any privilege in the email by asserting the advice-of-counsel defense to the Diehls’ malicious prosecution and abuse of process claims.

The LRF email consisted of attorney-client communication between Weber and its attorney in the instant action and included the mental impressions, conclusions, and opinions of its current attorney with regard to the likelihood and potential merit of a malicious prosecution claim based on the dismissal of the underlying defamation lawsuit. Due to a clerical error, the two-page LRF email was mistakenly delivered to the Diehls along with thousands of pages of other documents as the result of production requests. Weber’s attorneys became aware of the inadvertent disclosure after the Diehls attached a copy of the LRF email to one of the Diehls’ discovery motions. Weber filed a motion to compel the return of the LRF email alleging that it never intended to produce the LRF email. Attached to Weber’s motion was the affidavit of Weber’s attorney in the instant case, attesting to the accidental disclosure of the LRF email.

In its order granting Weber’s motion to compel the return of the LRF email, the trial court found that Weber had not waived the attorney-client and work product privileges by inadvertently producing the LRF email because: (1) the Diehls and Weber had previously agreed, in an “Agreed Protective Order” entered by the trial court, that such inadvertent disclosures would not result in the full or partial waiver of any privilege; (2) the LRF email contained attorney-client communication and opinion work product and was, therefore, generally immune from discovery; and (3) under the “middle of the road” test, reasonable precautions had been taken to prevent the inadvertent disclosure of privileged material, the disclosure was minimal in relation to the total production, Weber promptly acted to rectify the disclosure, and the interests of justice would be properly served by requiring the return of the LRF email and prohibiting the Diehls from making any use of it in the litigation. After reviewing the extensive record concerning this claim, we agree. Consequently, we find that the trial court did not abuse its discretion in ordering the Diehls to return the LRF email to Weber and in prohibiting its use in the remainder of the litigation. The Diehls’ fifth point is denied.

The Diehls’ Amended Petition

As we understand their sixth point on appeal, the Diehls claim the trial court abused its discretion in granting Weber’s motion to strike their amended petition or, in the alternative, to deny them leave to file their amended petition to add claims against Weber’s third party defendants. The Diehls argue that Rule 52.11(a) gave them the right to so amend. We disagree.

A party may amend a pleading once as a matter of right at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the pleading may be amended at any time within thirty days after it is served. Rule 55.33(a). Otherwise, a pleading may be amended only by leave of court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Id.

We review the trial court’s denial of an amendment for abuse of discretion, and the burden is upon the proponent of the amendment to show the ruling was so arbitrary and unreasonable as to shock the sense of justice and to indicate a lack of careful consideration. Dueker v. Gill, 175 S.W.3d 662, 671 (Mo.App. S.D.2005). We will not disturb the trial court’s exercise of discretion absent an obvious and palpable abuse of that discretion. Hoover v. Brundage-Bone Concrete Pumping, Inc., 193 S.W.3d 867, 871 (Mo.App. S.D.2006). In deciding whether to allow an amendment to a pleading, the trial court considers: (1) the hardship to the moving party if leave to amend is denied; (2) the reasons for the moving party’s failure to include the matter in the original pleading; (3) timeliness of the proposed amendment; (4) whether the proposed amendment would cure the inadequacy of the moving party’s pleading; and (5) the injustice to the non-moving party should leave to amend be granted. Dueker, 175 S.W.3d at 671; Asmus v. Capital Region Family Practice, 115 S.W.3d 427, 433 (Mo.App. W.D.2003).

According to the record, approximately three years after the litigation in this case began, Weber filed a third-party petition against the attorneys who had represented the company in the defamation lawsuit. The third-party petition alleged that the attorneys had committed legal malpractice by advising Weber to pursue the defamation lawsuit against the Diehls and that the attorneys should be required to indemnify Weber for all damages, liabilities, claims, costs, attorney’s fees, and other expenses Weber might incur in defending against the Diehls’ current claims. The Diehls thereafter filed a motion to sever the third-party claims, arguing that Weber had asserted such claims as a tactic to delay trial. The Diehls also argued that any claims Weber had against the attorneys were premature and would not ripen until Weber actually sustained damages as a result of a judgment in favor of the Diehls. Weber opposed the Diehls’ motion to sever, arguing that the Diehls had not shown they would be prejudiced if the attorneys were allowed to be joined as third-party defendants and that separate trials would not be conducive to judicial economy. The trial court thereafter called, heard, and granted the Diehls’ motion to sever.

The Diehls’ then filed their amended petition, pursuant to Rule 52.11(a), adding direct claims of civil conspiracy against Weber and the attorneys and naming Weber and the attorneys joint and several defendants on all counts of the amended petition. Weber filed a motion to strike the amended petition or, in the alternative, to deny the Diehls leave to file the amended petition on the ground that the Diehls’ claims against the attorneys were independent from the instant action and that the Diehls’ could not rely on Rule 52.11(a) to assert those claims.

The trial court granted Weber’s motion, finding that the Diehls’ amended petition merely reasserted the same claims contained in their original petition, some of which had already been disposed through summary judgment and dismissal, with the only addition being a new cause of action for civil conspiracy against both Weber and the attorneys. The trial court further found that the Diehls could not assert direct claims against the attorneys because the attorneys had already been severed from the action as a result of the Diehls’ previous motion to sever. Observing that the Diehls had argued against allowing Weber to join the attorneys as third-party defendants on the ground that Weber’s claims against the attorneys “were premature and would not ripen” until Weber sustained damages as a result of a judgment in favor of the Diehls, the trial court reasoned:

[A]s [the Diehls] would have it, there truly can be no third-party claim at all because such a claim would became [sic] moot upon the Court’s issuance of summary judgment in [Weber’s] favor on the malicious prosecution claim. According to reasoning expressed in [the Diehls’] own motion to sever relating to the separateness of the [Diehls’] claims from [Weber’s] third-party claims, [Weber’s] claims against the third-party defendants are moot, rendering the claims [the Diehls] now attempt to assert in their Amended Petition against the severed third-party defendants moot. In sum, because the pretext for an invocation of any right owing under Rule 52.11(a) is commonality of a “transaction or occurrence,” this Rule cannot be read to afford [the Diehls] an opportunity, at this stage of the litigation, to amend their petition as a matter of right.

The trial court also reasoned that the Diehls were not entitled to amend their petition as a matter of right under Rule 55.33(a) because: (1) the Diehls had filed their original petition more than three years earlier, and Weber had already filed several responsive pleadings; and (2) the matter had been placed on the trial docket before the Diehls attempted to amend their petition.

The trial court also denied the Diehls leave to amend on the ground that the Diehls did not articulate a clear reason for amending their petition so late in the litigation and that the amendments were futile in light of the court’s previous rulings. The trial court also found that Weber would suffer injustice if leave to file the amended petition was granted because of the resources expended in the three years it had litigated the matter but that the Diehls would not suffer hardship because they had “been fairly afforded the opportunity to litigate their claims” and sought to amend their pleadings only “upon the issuance of adverse rulings.”

On review, given the record before us, we find that the trial court did not abuse its discretion in finding that the Diehls were not entitled to amend their petition as a matter of right. First, the trial court correctly found that the Diehls could not amend their petition as a matter of right under Rule 55.33(a) because responsive pleadings had already been filed and the matter had already been placed on the trial docket. Second, the trial court correctly found that the Diehls could not amend their petition as a matter of right under Rule 52.11(a). Rule 52.11(a) applies when a plaintiff wishes to add claims against a third-party defendant arising out of the same transaction or occurrence that is the subject matter of the plaintiffs claim against the defendant. In this case, the attorneys were no longer parties to the action. They had been severed based on the Diehls’ own motion to sever. Third, the trial court correctly found that the Diehls would not suffer hardship if the claims against the attorneys were not added because they had ample opportunity to assert those claims earlier in the litigation. The Diehls failed to explain their reasons for failing to include the attorneys in the original pleading, yet they had vigorously opposed Weber’s attempt to bring the attorneys into the action. Consequently, allowing the Diehls to amend their petition to include the attorneys would have been an injustice to Weber, which had already spent considerable time and resources during the course of the litigation. Furthermore, the Diehls failed to show the existence of any new or additional facts pertaining to their possible claims against the attorneys that were overlooked or unknown when they originally filed their petition. See Mackey v. Mackey, 914 S.W.2d 48, 50 (Mo.App. W.D.1996). The trial court did not abuse its discretion in granting Weber’s motion. Point denied.

Conclusion

Because there remain disputed issues of material fact, the trial court erred in granting summary judgment in favor of Weber on the Diehls’ claims of malicious prosecution and abuse of process and Wife’s claim for prima facie tort. We therefore reverse the trial court’s judgment and remand the case for further proceedings with regard to those claims. We affirm the trial court’s rulings concerning the Diehls’ claims regarding intentional infliction of emotional distress, the return of privileged documents, the discovery of attorney work product, and the striking of the Diehls’ amended petition.

      . In Missouri, the elements of a defamation claim are: (1) publication; (2) of a defamatory statement; (3) that identifies the plaintiff; (4) that is false; (5) that is published with the requisite degree of fault; and (6) damages the plaintiff's reputation. See State ex rel. BP Products North America, Inc., v. Ross, 163 S.W.3d 922, 929 (Mo. banc 2005); Overcast v. Billings Mutual Ins. Co., 11 S.W.3d 62, 70 (Mo. banc 2000).

      . "Proof of actual reputational harm is an absolute prerequisite in a defamation action.” Johnson v. Allstate Indem. Co., 278 S.W.3d 228, 235 (Mo.App. E.D.2009) (quotations omitted).

      . Although we found Weber's defamation lawsuit '‘meritless" in Diehl I, we note that the issues adjudicated in Diehl I occurred before the Missouri Legislature's enactment of Section 537.528, commonly referred to as the SLAPP law. SLAPP is an acronym for strategic lawsuits against public participation, which are lawsuits brought for the purpose of retaliation for activity in opposition to a plaintiff's business interests. See Diehl I, 162 S.W.3d at 159, n. 6.

      . Gray v. Bicknell, 86 F.3d 1472 (8th Cir.1996); United States v. Mallinckrodt, 227 F.R.D. 295 (E.D.Mo.2005).

      . The attorneys subsequently filed motions to dismiss Weber's third party claims against them, but the trial court apparently never ruled on those motions. Later, Weber voluntarily dismissed without prejudice its third party claims against the attorneys.

      . The Diehls filed their amended petition following the entry of summary judgment in favor of Weber on Mr. Diehl's claims of malicious prosecution and abuse of process but prior to the entry of summary judgment in favor of Weber on Wife's claim of prima facie tort.


author: NANNETTE A. BAKER, Judge.

text:
    Vincent V. VOGLER, Appellant, v. GRIER GROUP MANAGEMENT CO., Respondent.
    No. ED 92940.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2010.
    Application for Transfer Denied May 25, 2010.

      Vincent D. Vogler, James Klenc, Co-counsel, St. Louis, MO, for appellant.
    Shulamith Simon, Clayton, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Introduction

The issue in this case is whether the trial court properly granted summary judgment in favor of a property management company that had been sued for violating the Fan- Debt Collection Practices Act (FDCPA). Plaintiff, Vincent V. Vogler, alleged that Defendant, Grier Group Management Company (Grier Group), violated the FDCPA when it attempted to collect past due condominium assessments. The trial court granted summary judgment to Grier Group. It also found that Vogler brought the claim in bad faith and awarded attorney’s fees to Grier Group. We find no error and affirm.

Background

The undisputed facts are as follows. In November 2006, Vogler purchased a unit at the Courtland Hall Condominium, which is governed by a condominium association. On August 30, 2007, Grier Group and the condominium association entered into a management agreement. Under the management agreement, Grier Group maintained the income and disbursements records, prepared and recommended an annual budget, submitted an annual report, and hired, supervised and discharged personnel.

After Vogler bought the condominium, he failed to pay the $200 monthly condominium assessment. According to his deposition testimony, he was working with Chris Long, the Association’s Board of Directors’ secretary, to resolve water, rodent and trash issues. He stated he did not pay his association fees because he felt the association was not properly handling his complaints regarding the building and his unit.

Chris Long contacted Derek Grier, director of business development with Grier Group, and asked him to call Vogler to resolve Vogler’s issues. There is no dispute that on September 20, 2007, Derek called Vogler while Vogler was working at his father’s law office. Following this phone call, Vogler filed a petition against Grier Group, alleging that Grier Group violated Section 806 of the FDCPA in part by contacting Vogler at his place of employment and attempting to collect an alleged outstanding debt.

Grier Group moved for summary judgment on the grounds that it was not a debt collector, as defined by the FDCPA. In its motion, Grier Group claimed that it was in the business of providing property management services, not debt collecting. The unit owners send their monthly assessments directly to the bank, not Grier Group. If unit owners do not pay their assessments, Grier Group will send only one reminder letter, unless the Board directs otherwise. Grier Group claimed that it spends less than 2% of its time on delinquent assessments.

Vogler filed two responses. The first response was inadequate, and failed to comply with Rule 74.04(c)(2). At the hearing on the motion for summary judgment, the trial court gave Vogler leave to amend, which he did. The exhibits in the amended motion contained letters from Grier Group to other tenants regarding outstanding condominium assessments, Board meeting minutes, a copy of Grier Group’s web page and depositions. Grier Group filed a motion to strike, claiming that Vo-gler’s exhibits, except the depositions, were not properly identified, certified or authenticated, and, therefore, were hearsay and not admissible. The trial court granted Grier Group’s motion for summary judgment. It found that there were no disputed material facts in that “Plaintiffs Response to Defendant’s Statement of Uncontroverted Material Facts has admitted each of such statements, either expressly or by failure to comply with the provisions of Rule 74.04(c)(2).” The court also ordered Vogler to pay Grier Group’s reasonable fees totaling $6035.00, because it found the case was brought in bad faith and for the purposes of harassment. Vo-gler now appeals.

Discussion

Vogler raises two points on appeal. In his first point, he claims the summary judgment was improper because a genuine issue of material fact exists as to whether Grier Group was a debt collector as defined by the FDCPA.

Whether a motion for summary judgment should be granted is a question of law and our review is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is proper where the movant establishes the absence of any genuine issue of material fact and a legal right to judgment. Id. at 378. We will review the record in the light most favorable to the party against whom judgment has been entered. Id. at 376. Facts set forth by affidavit or otherwise in support are taken as true unless contradicted by the non-moving party’s response. Id. We will affirm the trial court’s judgment if it is sustainable on any theory. Id. at 387-88; Citibrook II, L.L.C. v. Morgan’s Foods of Missouri,, Inc., 239 S.W.3d 631, 634 (Mo.App. E.D.2007).

A moving party who is a defendant: establishes] a right to judgment by showing (1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense. Regardless of which of these three means is employed by the [defendant], each establishes a right to judgment as a matter of law.

ITT Commercial Fin. Corp., 854 S.W.2d at 381.

To avoid summary judgment, Vo-gler had to file a response complying with Rule 74.04(c)(2) and supplement the summary judgment record before the court with specific facts to show a genuine issue of disputed material fact. Rule 74.04(e); Peck v. Alliance Gen. Ins. Co., 998 S.W.2d 71, 75 (Mo.App.E.D.1999). Vogler’s response did not comply with Rule 74.04. His response contained only unverified or insufficiently verified denials and was inadequate to rebut the evidence relied on in support of a motion for summary judgment. Where the response does not admit or deny each factual statement in the motion or contain adequate citations to the record to rebut the factual assertions in the motion, as required by Rule 74.04(c), we take the factual assertions contained in the motion as true. Peck, 998 S.W.2d at 75.

In his petition, Vogler alleged that Grier Group is a debt collector and that it violated the FDCPA when it contacted him at his place of business and attempted to collect a past due assessment.

Under the FDCPA, section 1692e prohibits the use of false, deceptive or misleading representation or means in connection with the collection of any debt. See also Alexander v. Omega Mgmt., 67 F.Supp.2d 1052, 1054 (D.Minn.1999). Section 1692a(6) defines a debt collector as:

any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.... The term does not include—
(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity
(iii) concerns a debt which was not in default at the time it was obtained by such person;

In its motion for summary judgment, Grier Group maintained that its principal purpose is not debt collection, rather that it is a property management company.

The interpretation of a statute is a question of law. McKinney v. State Farm Mut. Ins., 123 S.W.3d 242, 245 (Mo.App. W.D.2003). In Alexander, the United States District Court for Minnesota addressed whether one who is hired to manage a town home community is a debt collector under the FDCPA. The court found Omega Management, who was hired to manage plaintiffs home owners association, was not a debt collector because its principal purpose was not the collection of debts, but the management of property. Id. at 1054. Omega Management spent less than 3% of its time collecting assessments. The court also found that Omega was not a debt collector because the debt, monthly assessments, was not in default when Omega first attempted to collect it. Id. at 1055.

This case is factually similar to Alexander. While not binding precedent, we find Alexander’s reasoning persuasive. Like Omega Management, Grier Group’s principal purpose is not the collection of debts. In its statement of uncontroverted material facts, Grier Group stated that it spends less than 2% of its time on delinquent assessments. Vogler failed to rebut this assertion in his response to Grier Group’s motion for summary judgment.

Vogler claims that this case is distinguishable from Alexander because the issue here is not whether Grier Group’s principal purpose is the collection of debts, but whether Grier Group regularly collects debt owed to another. Vogler claims that the court in Alexander never reached this analysis, finding Omega was not a debt collector because its principal purpose was not debt collection. On appeal, Vogler argues that Grier Group is a debt collector because it regularly attempts to collect debts owed another or asserted to be owed another. However, the undisputed facts demonstrate that Grier Group does not regularly attempt to collect debts owed another, as defined in Section 1692a(6).

Specifically, Vogler relies on Grier Group’s web page, which indicates that a basic service it provides is the collection of association fees. However, the collection of association fees does not make one a debt collector because association fees are generally not in default when collected. Section 1692a(6) specifically excludes from the definition of debt collector one who collects debt that is not in default when obtained by that person. Section 1692a(6)(F)(iii).

Vogler also claims that Grier Group routinely sends demand letters for past due assessments. However, the undisputed facts show that Grier Group sends one reminder letter immediately after a monthly assessment has not been paid. Thereafter, the Board handles the collection of past due assessments through its attorneys. Again, Vogler failed to cite to specific evidence in the record to rebut Grier Group’s assertion. The three instances in the record where Grier Group sent letters or drew up agreements to settle outstanding accounts were at the Board’s direction.

The trial court did not err when it granted Grier Group’s motion for summary judgment because the undisputed facts demonstrate Grier Group’s principal purpose is not the collection of debt and it does not regularly collect or attempt to collect debts, as defined in Section 1692a(6). Point I is denied.

In his second point, Vogler contends that the trial court erred in finding that he brought the claim in bad faith and in awarding attorney’s fees. We will reverse the trial court’s decision to award attorney’s fees only if it abused its discretion. Workman v. Workman, 298 S.W.3d 89, 101 (Mo.App. E.D.2009). “An abuse of discretion occurs where the trial court’s decision was so arbitrary and unreasonable as to shock one’s sense of justice and shows a lack of deliberation.” Id.

Section 1692k(a)(3) of the FDCPA permits the court to award attorney’s fees and costs to the defendant if it finds that the action was brought in bad faith and for the purpose of harassment. The trial court stated in its findings and judgment: “Since the uncontroverted material facts establish that there was no justification for the Plaintiffs suit, the Court finds that it was brought in bad faith and for the purpose of harassment.” We do not find that the trial court’s decision shows a lack of deliberation or shock one’s sense of justice. Accordingly, it did not abuse its discretion in awarding attorney’s fees to Grier Group. Point II is denied.

Conclusion

For the foregoing reasons, we affirm the trial court’s grant of summary judgment and its award of attorney’s fees.

EATHIANNE KNAUP CRANE, P.J., and CLIFFORD H. AHRENS, J., concur.

      . 15 U.S.C. §§ 1692-1692p (2007).


text:
    Gary S. HEIFETZ, James E. Chervitz, Jeffrey S. Gershman, Jeffrey Michelman, Steven P. Spewak, Sidney L. Stone and Steven M. Stone, Plaintiffs/Appellants, v. Paul A. NOVELLY and Apex Clayton, Inc., Defendants/Respondents.
    No. ED 92561.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 22, 2010.
    Application for Transfer Denied May 25, 2010.
    Martin M. Green, Green, Jacobson & Butsch, P.C., Clayton, MO, for Appellant.
    Sandberg, Phoenix, & von Gontard, John S. Sandberg, counsel and Fibbens Addo Koranteng co-counsel, St. Louis, MO, for Respondent.
    Before GLENN A. NORTON, P.J., and MARY K. HOFF, J„ and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Gary S. Heifetz (Heifetz), James E. Chervitz (Chervitz), Jeffrey S. Gershman (Gershman), Jeffrey Michelman (Michel-man), Steven P. Spewak (Spewak), Sidney L. Stone (S.L. Stone), and Steven M. Stone (S.M. Stone) (collectively Plaintiffs) appeal from the trial court’s grant of summary judgment in favor of Paul A. Novelly and Apex Clayton, Inc., (Defendants) on Plaintiffs’ First Amended Petition alleging breach of contract, breach of fiduciary duty, civil conspiracy, and declaratory relief.

We have reviewed the briefs of the parties and the record on appeal. No error of law appears. Rule 84.16(b)(5). Defendants were entitled to judgment as a matter of law. Rule 74.04(c). An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth our reasons for the order affirming the trial court’s award of summary judgment, pursuant to Rule 84.16(b).


author: MARY R. RUSSELL, Special Judge. DANIEL E. SCOTT, Chief Judge,

text:
    MERLYN VANDERVORT INVESTMENTS, LLC, and 7 Mile Investments, Inc., d/b/a Jeremiah’s Night Club, Appellants, v. ESSEX INSURANCE COMPANY, INC., Respondent.
    No. SD 29858.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 11, 2010.
    Motion for Rehearing or Transfer to Supreme Court Denied March 5, 2010.
    Application for Transfer Denied May 25, 2010.

      Bernard Schmitt, Kansas City, MO, for Appellants.

      Thomas B. Caswell, Lindsey A. Davis, Minneapolis, MN, Colly J. Durley, Columbia, MO, for Respondent.
   MARY R. RUSSELL, Special Judge.

The issue in this case is whether the trial comb correctly granted summary judgment in favor of an insurance company in interpreting a commercial insurance policy. More specifically, the issue is whether an endorsement provided additional coverage for the property loss suffered by Merlyn Vandervort Investments, LLC and 7 Mile Investments, Inc., d/b/a Jeremiah’s Night Club (collectively “Insured”) in a fire. This Court finds that Insured is entitled to additional coverage for fire damage as provided in the endorsement. The judgment is reversed and remanded.

Background

Insured owned and operated Jeremiah’s Night Club, a bar, restaurant, and entertainment center located in Lake Ozark. A fire destroyed the business, including the building, the business personal property, and the equipment on the premises. The fire investigator stated in his report that he could not identify “an exact cause or ignition source for this fire ... [although the electrical wiring is suspect and cannot be eliminated at this time.” He also noted in his report that there was wiring in the building that “displayed very heavy arching [sic].”

Prior to the fire, Insured had purchased a commercial insurance policy and endorsement from Essex Insurance Company. The policy provided “building” coverage with a limit of $1.2 million, “business personal property” coverage with a limit of $400,000, and “business income” coverage with a limit of $120,000. The endorsement, entitled “Mechanical, Electrical or Pressure Systems Breakdown,” was purchased as optional coverage. The policy declaration described the endorsement as “Equipment Breakdown Coverage with a limit of $1,600,000.”

Following the fire, Essex paid Insured $1.2 million under the building coverage, $400,000 under the business personal property coverage, and $120,000 under the business income loss coverage. Insured sought further payment from Essex under the endorsement for the fire damage, asserting that it provided additional coverage with an additional limit of $1.6 million. Essex denied that portion of the claim, stating that fire damage is covered only in the policy and that the endorsement does not provide any additional coverage for the fire damage suffered. Instead, Essex argued that the endorsement “put back” coverage for certain policy exclusions, including mechanical, electrical, or pressure systems breakdown.

Insured brought a suit seeking damages against Essex for breach of contract and vexatious refusal to pay. Essex filed a motion for summary judgment as to all claims alleged against it, arguing that the endorsement did not provide additional coverage for damage caused by fire loss. Insured filed a cross-motion for partial summary judgment as to the breach of contract claim, arguing the endorsement provided additional coverage and policy limits for damage caused by all “specified causes of loss,” including fire. The trial court sustained the Essex’s motion for summary judgment and denied Insured’s cross-motion for partial summary judgment. Insured appeals.

Standard of Review

Appellate review of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 876 (Mo. banc 1993). Summary judgment is appropriate where 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. “When the underlying facts are not in question, disputes arising from the interpretation and application of insurance contracts are matters of law for the court.” See Grable v. Atl. Casualty Ins. Co., 280 S.W.3d 104, 106 (Mo.App.2009) (internal quotation marks omitted).

When interpreting the terms of an insurance policy, this Court applies the meaning that would be understood by an ordinary person of average understanding purchasing the insurance. Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007). If the policy is ambiguous, it will be construed against the insurer. Id. A policy is ambiguous if “there is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy.” Id. If the policy is unambiguous, the policy will be enforced according to its terms. Id.

Interpretation of the Policy

The issue in this case is whether the endorsement, regardless of its limits, provides additional coverage beyond that provided by the policy in its unendorsed form for loss suffered by Insured in a fire. Insured claims that the policy was ambiguous, requiring this Court to construe it against Essex. Alternatively, Insured contends that the endorsement unambiguously provided additional coverage for all causes of loss, including fire. Both arguments require this Court to interpret the insurance contract, which includes the form policy, declarations, endorsements, and definitions, and determine, as a matter of law, what coverage the policy provides. See Grable, 280 S.W.3d at 107-108.

The unendorsed policy was comprised of several forms. First, the Building and Personal Property Coverage form provided, in relevant part:

[Essex] will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.
3. Covered Causes Of Loss
See applicable Causes of Loss Form as shown in the Declarations.

Next, the Causes of Loss — Special Form CP 1030 (“Loss form”) defined “covered causes of loss” as:

When Special is shown in the Declarations, Covered Causes of Loss means RISKS OF DIRECT PHYSICAL LOSS unless the loss is:
1. Excluded in Section B., Exclusions; or
2. Limited in Section C, Limitations; that follow.

The relevant exclusion listed in Section B. stated:

2. [Essex] will not pay for loss or damage caused by or resulting from any of the following:
a. Artificially generated electrical current, including electrical arcing, that disturbs electrical devices, appli-anees or wires. But if artificially generated electrical current results in fire, we will pay for the loss or damage caused by that fire.

Further, the Loss form defined “specified causes of loss” in Section F. as:

Fire; lightning; explosion, windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism; leakage from fire extinguishing equipment; sinkhole collapse; volcanic action; falling objects; weight of snow, ice or sleet; water damage.

(emphasis added).

Both parties agree that the unendorsed policy provided coverage for damage due to the peril of fire. In fact, Essex paid Insured $1.6 million pursuant to the un-endorsed policy for property damage. It is also uncontested that the unendorsed policy excluded coverage for damage as a result of artificially generated electrical current, including electrical arcing, that disturbs electrical devices, appliances, or wires, and mechanical breakdown. And although electrical or mechanical breakdown was excluded in the unendorsed policy, the parties agree that the endorsement expands the scope of covered perils, defined as “specified causes of loss” to include “direct damage to covered property” from electrical and mechanical breakdown. The endorsement provided, in relevant part:

THIS ENDORSEMENT CHANGES THE POLICY
This endorsement modifies and is subject to the insurance provided under the following:
BUILDING AND PERSONAL PROPERTY COVERAGE FORM
CAUSES OF LOSS-SPECIAL FORM
6. As respect the [Loss form] the following applies:
a. The following EXCLUSIONS are deleted;
The exclusions pertaining to:
(1) Artificially generated electrical current, including electrical arcing, that disturbs electrical devices, appliances or wires.
(2) Mechanical breakdown, including rupture or bursting caused by centrifugal force.

The crux of the dispute, however, is whether the endorsement provided additional coverage for fire. The relevant provision of the endorsement that is in dispute states as follows:

4. As respects to the [Loss form] the following applies:
a. The following Definition, “Specified Causes of Loss,” is deleted and replaced by the following:
“Specified Causes of Loss” means the following: Fire; lightning; explosion; windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism; leakage from fire extinguishing equipment; falling objects; weight of snow, ice or sleet; water damage; mechanical, electrical or pressure systems breakdown;
(3)Mechanical, electrical or pressure systems breakdown means direct damage to covered property from the following:
(a) Mechanical breakdown, including rupture or bursting caused by centrifugal force;
(b) Artificially generated electrical current, including electrical arcing, that disturbs electrical devices, appliances or wires;

(emphasis added).

Insured asserts that the endorsement provided additional coverage for fire in that the definition of “specified causes of loss” in the endorsement included the word “fire,” as did the definition of “specified causes of loss” in the unendorsed policy. Yet Essex argues that an ordinary person of average understanding purchasing the policy would believe that the endorsement did not provide additional fire coverage because it was already covered in the unendorsed policy. Essex claims that because the endorsement’s “specified causes of loss” added six words, “mechanical, electrical or pressure systems breakdown,” it was the only peril that was covered. It asserts that the endorsement only “put back” the cause that was specifically excluded in the unendorsed policy.

To determine whether an ambiguity exists, this Court reads the form policy, declarations, endorsement, and definitions. See Grable, 280 S.W.3d at 107-08. “If the language of the endorsement and the general provisions of the policy conflict, the endorsement will prevail, and the policy remains in effect as altered by the endorsement.” Abco Tank & Mfg. Co. v. Fed. Ins. Co., 550 S.W.2d 193, 198 (Mo. banc 1977).

We find no ambiguity in the endorsement’s definition of “specified causes of loss.” Despite Essex’s argument that the endorsement did not provide any additional coverage for the peril of fire, the plain reading of the endorsement listed “fire” as one of the “specified causes of loss”:

“Specified Causes of Loss” means the following: Fire; lightning; explosion; windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism; leakage from fire extinguishing equipment; falling objects; weight of snow, ice or sleet; water damage; mechanical, electrical or pressure systems breakdown....

(emphasis added). While the endorsement’s definition of “specified causes of loss” did add coverage for “mechanical, electrical or pressure systems breakdown,” the balance of the itemized causes of loss was nearly identical to those enumerated in the unendorsed policy. Nothing in the endorsement indicated that any of the identical “specified causes of loss” were to be excluded from the endorsement’s coverage because they were already covered in the policy. An ordinary person of average understanding could reasonably construe that since “fire” was listed in both the policy and the endorsement, there was additional coverage. Accordingly, this Court finds that, as a matter of law, the endorsement provided additional coverage for fire damage.

The grant of summary judgment is reversed and remanded.

SCOTT, C.J., dissents in separate opinion.

RAHMEYER, J., concurs.

DANIEL E. SCOTT, Chief Judge,

dissenting.

I respectfully dissent. The court finds the “Mechanical, Electrical or Pressure Systems Breakdown” endorsement does not merely add such coverage; it also boosts the policy limits for fire, windstorm, hail, and every other insured risk. By analogy, my basic $100,000 homeowner’s policy pays nothing if a power surge ruins my TV and computers. Under the principal opinion, if I insure those via the endorsement in this case, I luck into doubling my other policy limits as well.

I have several concerns. First, Appellants’ fire coverage did not stem from the “specified causes of loss” definition, but from the policy’s obligation to “pay for direct physical loss ... caused by or resulting from any Covered Cause of Loss,” the latter being risks not excluded or limited by the policy. “Specified causes of loss,” by contrast, are exceptions to the policy’s exclusions — none applicable here— for damage due to rust, fungus, smog, bird nesting, etc. The principal opinion misses the critical distinction between “covered” and “specified” causes of loss.

Second, and more broadly, I think the principal opinion endangers an oft-used and reasonable method of revising contracts and complex writings. Our legislature, for example, can amend a statute by passing a bill that adds a word to the end of one line, removes a clause and punctuation from the next, and makes other line-by-line changes to the existing text. Commonly, however, legislative bills delete and replace entire statutory sections with new sections incorporating all the changes, a process that presumably reduces the risk of error.

As this case illustrates, insurers use the same process to amend policies by endorsement. I think the principal opinion unwittingly punishes this by potentially doubling the insurer’s exposure solely, in that opinion’s words, because:

Nothing in the endorsement indicated that any of the identical specified causes of loss were to be excluded from the endorsement’s coverage because they were already covered in the policy. An ordinary person of average understanding could reasonably construe that since “fire” ivas listed in both the policy and the endorsement, there was additional coverage, [my emphasis]

Again, “specified causes of loss” are contractually irrelevant to this case. But even if they applied, the endorsement expressly says its list of “specified losses” deletes and replaces the base policy’s list. For all these reasons, I believe no reasonable policyholder would think this endorsement did other than its title and language in context suggest.

In summary, the principal opinion hinges on a policy definition inapplicable to this loss. It also, in my opinion, adds risk to a common and legitimate way of amendment, and may subject many policies and endorsements to similar attacks. I have found no cases with comparable results or reasoning. I do not think we should be among the first to so hold.

      . Insured also claims error in the denial of its motion for partial summary judgment. This is not a final, appealable order, even when the denial occurs at the same time the trial court grants summary judgment to the other party.
        Grable v. Atl. Casualty Ins. Co., 280 S.W.3d 104, 106 n. 1 (Mo.App.2009).

      . This Court does not address Insured's arguments that if the endorsement applies to fire damage, it provides coverage limits above and beyond the stated unendorsed policy limits. This issue was not included in Essex's motion for summary judgment.

      . The dissent posits an interpretation of “specified causes of loss” that is neither discussed by the parties nor apparent from a logical interpretation of the policy.

      . There is no dispute that if the excluded artificially generated electrical current results in fire, Essex will pay for the loss of damage caused by that fire.

      . The policy provides that “specified causes of loss” include "sinkhole collapse [and] volcanic action” while the endorsement’s definition of "specified causes of loss” omits those perils.

        . The dissent falsely predicts that the majority’s opinion endangers future interpretations of contracts. However, this opinion is limited to the unique language of this policy.

      .Insured's arguments regarding extrinsic evidence are not addressed as this Court finds no ambiguity. Black & Veatch Corp. v. Wellington Syndicate, 302 S.W.3d 114 (Mo.App.2009).’

      . Although Appellants claim they meant to increase their coverage, subjective intent is irrelevant under the principal opinion, which finds additional coverage from the policy’s four corners as a matter of law.

      . Building and Personal Property Coverage Form, Section A., titled ’’COVERAGE.”

      . Causes of Loss — Special Form, Section A., titled "COVERED CAUSES OF LOSS.”

      . Causes of Loss — Special Form, Section B.2 ("But if an excluded cause of loss that is listed in 2.d. (1) through (7) results in a 'specified cause of loss'... we will pay for the loss or damage caused by that 'specified cause of loss.' "). Exclusions 2.d. (1) through (7), as noted above, include losses caused by rust, fungus, smog, bird nesting, etc.

      . Consider the principal opinion's analysis on a comparable attempt to narrow a policy's scope. Assume an endorsement that "deleted and replaced” this base policy’s covered losses with an otherwise identical list omitting “hail.” By still treating the original list as part of the policy, and not "deleted” as the endorsement requires, hail still may be covered and all else double-covered.


text:
    STATE of Missouri, Respondent, v. Kristopher A. MILLER, Appellant.
    No. ED 92262.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 16, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2010.
    Application for Transfer Denied May 25, 2010.
    Kent Denzel, Columbia, MO, for Appellant.
    Christopher A. Koster, Attorney General, Terrence M. Messonnier, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J. and ROBERT G. DOWD, JR. and PATRICIA L. COHEN, JJ.
   ORDER

PER CURIAM.

Kristopher Miller (“Defendant”) appeals from the judgment upon his conviction by a jury of the class A felony of assault in the first degree, Section 565.050, RSMo 2000, for which he was sentenced to ten years’ imprisonment. Defendant argues the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because there was insufficient evidence to establish the victim suffered physical injury that created a substantial risk of death, serious disfigurement, or protracted loss or impairment of the function of any part of his body. Defendant also contends the trial court plainly erred in failing to sua sponte instruct the jury to disregard evidence of plea negotiations, in sustaining the State’s objection to Defendant’s argument about Dr. Kutz’s testimony where the State misstated the evidence, and in failing to sua sponte instruct the jury to disregard the State’s comments regarding the victim’s emotional state and the victim’s fear of Defendant during closing argument.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).