In the Missouri Court of Appeals Eastern District NORTHERN DIVISION
JENNIFER PHILIPS, AMBER PHILIPS, ) No. ED100289 MARIAH PHILIPS, AND IAN PHILIPS ) NEXT FRIEND JENNIFER PHILIPS, ) ) Appellants, ) ) Appeal from the Circuit Court vs. ) of Pike County ) CITIMORTGAGE, INC., ) Honorable James D. Beck ) ) Respondent. ) Filed: May 6, 2014
Jennifer Philips and her children, Amber Philips, Mariah Philips, and Ian Philips
by his next friend, Jennifer Philips (collectively “Plaintiffs”), appeal the judgment of the
trial court dismissing their claims against Citimortgage, Inc. (“Citimortgage”). We affirm
in part and reverse and remand in part.
I. BACKGROUND
Michael Philips (“Michael”), Jennifer Philips’ husband, died unexpectedly on
March 18, 2010. Michael Philips had previously executed a deed of trust on their
residence, located at 401 Jackson Street in Pike County, Missouri. Jennifer Philips
(“Jennifer”) did not sign the deed of trust for the property. On the date of Michael’s
death, shortly after returning from the hospital, an individual from Citimortgage called
the residence and asked to speak to Michael Philips. The individual calling spoke to Jennifer Philips, and she informed the person Michael had just died. Individuals saying
they represented Citimortgage subsequently called the residence approximately four
times a day for the next few weeks. In addition, Citimortgage sent individuals to
photograph the property on numerous occasions, including one occasion which caused
flashes in the window of the residence at night.
Following Michael’s death, Jennifer filed suit against Citimortgage, seeking
declaratory judgment and damages based upon Citimortgage’s alleged actions. Jennifer
sought to have the deed of trust on the property declared void, and she requested an
award of damages based upon Citimortgage’s “extreme, outrageous, atrocious, utterly
intolerable” conduct which caused her severe emotional distress resulting in bodily harm.
An associate circuit judge granted summary judgment in favor of Jennifer on her claim
for declaratory judgment, declaring the deed of trust void. However, the associate circuit
judge also granted summary judgment in favor of Citimortgage on Jennifer’s claim for
damages.
While Citimortgage’s motion for summary judgment was pending before the
associate circuit judge, Plaintiffs filed the action which is the subject of the present
appeal. Citimortgage filed an initial motion to dismiss, which was denied by the trial
court. Thereafter, Plaintiffs filed a first amended petition. The first amended petition
asserted claims for trespass, invasion of privacy, prima facie tort, and nuisance.
Citimortgage filed a motion to dismiss the first amended petition, arguing Jennifer’s
claims were barred by res judicata, and asserting the remaining claims of her children
should be dismissed for failure to state a claim. The trial court granted Citimortgage’s
2 motion to dismiss, finding Jennifer’s claims were barred by res judicata, and finding the
remaining claims failed to state a cause of action. Plaintiffs now appeal.
II. DISCUSSION
III. Res Judicata - Claim Preclusion
In their first point on appeal, Plaintiffs contend the trial court erred in granting
Citimortgage’s motion to dismiss Jennifer’s trespass claim. 1 Plaintiffs argue the claim
was not barred by res judicata because the allegations stated in the first amended petition
stated a different cause of action and were not based upon the same transaction or series
of occurrences as the events of the initial action filed by Jennifer before the associate
circuit judge. We disagree.
Res judicata, or its modern term, claim preclusion, 2 prevents a plaintiff from
relitigating issues already determined against them in a prior suit. Williams v. Rape, 990
S.W.2d 55, 59 (Mo. App. W.D. 1999). A plaintiff may not assert any cause of action
that would have been contained in the previous suit. Id. Claim preclusion does not
prohibit a plaintiff from asserting a new and distinct cause of action against the same
defendant; however, where the “four identities” of the doctrine are satisfied, the suit will
be barred by claim preclusion. Id. These are: “(1) identity of the thing sued for; (2)
identity of the cause of action; (3) identity of the persons and parties to the action; and (4)
identity of the quality of the person for or against whom the claim is made.” Id., (quoting
1 We note that Jennifer asserted several additional claims against Citimortgage in the first amended petition. However, she does not challenge the trial court’s dismissal of any of her additional claims as barred by res judicata on appeal. She challenges only the dismissal of her claim for trespass. Therefore, we do not consider the propriety of the trial court’s dismissal of Jennifer’s remaining claims. 2 In Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W.3d 315, 318, n.5 (Mo. banc 2002), the Missouri Supreme Court noted that the modern term for the latin phrase res judicata was claim preclusion. The court stated “modern scholars” preferred the term claim preclusion instead of res judicata. Id. (internal citations omitted).
3 King Gen. Contractors, Inc. v. Reorganized Church, 821 S.W.2d 495, 501 (Mo. banc
1991)).
The doctrine of claim preclusion applies not only to the specific issues ruled upon
by the court and used to form the court’s judgment, but also to issues which the parties,
exercising reasonable diligence, could have brought in the previous litigation. Id. at 60.
The test is not whether a new legal theory is asserted in the subsequent action, but rather,
whether the subsequent action arises out of the same transaction or occurrence as the
prior suit. Id. “Transaction” has been broadly defined. Id., quoting King, 821 S.W.2d at
501. It is the aggregate of the circumstances constituting the foundation for the claim,
and it includes all of the facts and circumstances which resulted in the injury. Id.
Here, Plaintiffs argue two of the required identities are missing, and therefore the
court improperly dismissed Jennifer’s claim of trespass as barred by claim preclusion.
Plaintiffs contend there is neither identity of the thing sued for, nor identity of the cause
of action. Although Jennifer’s trespass claim was, in name, based upon a different legal
theory, as the trial court correctly noted, it was based upon the same actions as those
asserted in the declaratory judgment and damages case filed before the associate circuit
judge. Plaintiffs’ argument that an additional trespass occurred on January 8, 2012,
which gave rise to the present, distinct claim, is without merit. The original declaratory
judgment action was pending before the associate circuit judge when the present suit was
filed. The associate circuit judge did not rule on Citimortgage’s motion for summary
judgment regarding damages in the declaratory judgment action until July 5, 2012. Thus,
the alleged January 8, 2012, trespass occurred while the prior suit was still pending
before the associate circuit judge, and therefore, could have been raised in the prior case.
4 In addition, the alleged trespass was part of the circumstances constituting the
foundation for both the previous action and the present action. Each suit was based upon
allegations of Citimortgage’s repeated phone calls and photographs of the residence.
This series of actions formed the basis for the claims for damages in both the declaratory
judgment action and the claim for trespass. Thus, Jennifer’s claim for trespass arose from
the same series of connected occurrences out of which her earlier action arose, and
therefore, the trial court correctly concluded it was barred by claim preclusion. See
Williams, 990 S.W.2d at 61. Point one on appeal is denied.
C. Failure to State a Claim
In each of the remaining four points on appeal, Plaintiffs challenge the trial
court’s dismissal of their claims for trespass, invasion of privacy, prima facie tort, and
nuisance for failure to state a claim. Plaintiffs argue they alleged sufficient facts to
support each claim.
1. Standard of Review
Our review of the trial court’s decision to grant a motion to dismiss for failure to
state a claim is de novo. Thomas v. City of Kansas City, 92 S.W.3d 92, 96 (Mo. App.
W.D. 2002). We view the pleadings liberally, and we accept all facts alleged as true and
view them in the light most favorable to the pleader. Id. We do not address the merits of
the case, or consider evidence outside the pleadings. Id. The law generally favors trial
upon the merits, and therefore, the criteria used to determine the sufficiency of the
petition is designed to further this purpose. Id. If the allegations sufficiently advise the
defendant of the claim asserted and the relief demanded, the petition sufficiently states a
claim. Id.
5 A motion to dismiss for failure to state a cause of action is solely a test of the
adequacy of the petition. Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012)
(citing Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993)). We
do not weigh the factual allegations contained in the petition, and we do not determine
whether those allegations are credible or persuasive. Id. We simply review the petition
to determine whether facts are alleged to meet the elements of a recognized cause of
action. Id.
III. Trespass
In the second point on appeal, Plaintiffs challenge the trial court’s dismissal of the
children’s remaining claims for personal injury from Citimortgage’s trespass for failure
to state a claim. Plaintiffs argue they pleaded sufficient facts to state a claim of
possessory interest in the property to warrant recovery for trespass. We agree.
“In Missouri trespass is described as a direct physical interference with the person
or property of another.” Maryland Heights Leasing, Inc. v. Mallinckrodt, Inc., 706
S.W.2d 218, 224 (Mo. App. E.D. 1985) (citing Looney v. Hindman, 649 S.W.2d 207, 212
(Mo. banc 1983)). It is the unauthorized entry by a person upon another’s land,
regardless of the degree of force used, and regardless of any damage done. Grossman v.
St. John, 323 S.W.3d 831, 834 (Mo. App. W.D. 2010) (internal citation omitted). Thus,
the central issue of a trespass action is violation of possession. International Broth. of
Elec. Workers v. Monsees, 335 S.W.3d 105, 108 (Mo. App. W.D. 2011). According to
Citimortgage, Plaintiffs failed to adequately plead a possessory interest in the property to
support a claim for trespass.
6 Granting the first amended petition liberal construction, and reviewing the
petition to determine only whether it contains allegations necessary to advise the
defendant of the claim asserted, Plaintiffs alleged sufficient facts to state a claim for
trespass. Plaintiffs allege Ian Philips is a minor child, residing at 401 Jackson Street,
which is the property owned by Jennifer Philips. They further allege the remaining
children, Amber and Mariah Philips, are “lawful tenants” residing at 401 Jackson Street.
Plaintiffs allege several incidents of agents of Citimortgage entering that property without
authorization.
The trial court found the allegations “seem to establish that Jennifer Phillips [sic]
maintained exclusive control of the property, not any of the other Plaintiffs,” and that
Plaintiffs failed to allege any facts to support the conclusion that the three children had a
possessory interest in the home. The court further concluded “[i]t would not make sense
to allow a child, who has no independent claim of exclusive possession of the property, to
be considered to have a possessory interest.” The trial court improperly reviewed the
substantive merits of the allegations, rather than reviewing the allegations in a liberal,
academic manner. As a result, the trial court erroneously determined Plaintiffs’ factual
allegations were insufficient regarding Plaintiffs’ possessory interests in the residence,
and therefore, the trial court erred in dismissing Plaintiffs’ trespass action for failure to
state a claim. Point two on appeal is granted.
3. Invasion of Privacy
In their third point on appeal, Plaintiffs contend the trial court erred in dismissing
the children’s remaining claims for invasion of privacy from intrusion upon seclusion for
7 failure to state a claim. According to Plaintiffs, the first amended petition alleged
sufficient facts to support their claim.
A general right to privacy encompasses four separate privacy interests. Crow v.
Crawford & Co., 259 S.W.3d 104, 120 (Mo. App. E.D. 2009). Invasion of these interests
may result in four separate torts, and each individual tort has its own distinct set of
elements. Id. “The right to privacy is breached when there is: (1) an unreasonable
intrusion upon the seclusion of another; (2) the appropriation of the name or likeness of
another; (3) unreasonable publicity given to another’s private life; or (4) publicity that
unreasonably places another in a false light before the public.” Id. (internal citation
omitted).
The first amended petition alleges Citimortgage intentionally intruded upon the
seclusion of Plaintiffs, and therefore we consider only the first tort, intrusion upon the
seclusion of another. The Restatement (Second) of Torts, Section 652B states: “[o]ne
who intentionally intrudes, physically or otherwise upon the solitude or seclusion of
another or his private affairs or concerns, is subject to liability to the other for invasion of
his privacy, if the intrusion would be highly offensive to a reasonable person.” See Sofka
v. Thal, 662 S.W.2d 502, 510 (quoting Restatement (Second) of Torts, Section 652B).
Plaintiffs allege numerous occasions upon which agents of Citimortgage entered
the property located at 401 Jackson Street to take photographs, including one occasion
during which the photograph caused flashes in the window of the residence at night. In
addition, Plaintiffs allege Citimortgage called the house approximately four times a day
for several weeks. Plaintiffs specifically allege Mariah Philips answered one such phone
8 call. The first amended petition further alleges Plaintiffs have suffered severe emotional
distress as a result of Citimortgage’s actions.
The trial court concluded Plaintiffs failed to allege facts that Citimortgage spoke
to any of the Plaintiffs other than Jennifer Philips and on one occasion to Mariah Philips.
Plaintiffs do not specifically claim each of them were present for every phone call and
photograph taken of the residence in their first amended petition. However, given liberal
construction, based upon the allegation of fact that each of the Plaintiffs resided at 401
Jackson Street where the conduct occurred, it is reasonable to conclude the allegations
concerning Citimortgage’s repeated actions directed to the residence constituted
sufficient facts to support a claim for an unreasonable intrusion upon their privacy. See
Estate of Saling, 924 S.W.2d 312, 313 (Mo. App. S.D. 1996) (reviewing whether petition
states a claim we give the plaintiff benefit of every reasonable intendment with respect to
facts stated).
Furthermore, the trial court concluded the only actions pleaded to support the
claim of invasion of privacy were “simply phone calls” asked about Michael Philips,
which “certainly [] was not a private or personal matter.” Again, the trial court
conducted an impermissible review of the allegations as to their substantive merit, rather
than simply determining whether the allegations stated a cause of action. Plaintiffs’
allegations of repeated phone calls to the residence, “[a]pproximately four times a day for
the next few weeks,” inquiring about Michael following his death and after being
informed of his death, are sufficient facts to state a claim for the unreasonable intrusion
upon Plaintiffs’ seclusion. Therefore, the trial court erred in dismissing their claim for
invasion of privacy based upon this intrusion. Point three on appeal is granted.
9 III. Prima Facie Tort
In the fourth point on appeal, Plaintiffs argue the trial court erred in dismissing
the children’s remaining claims for prima facie tort for failure to state a claim. Plaintiffs
contend they alleged sufficient facts in the first amended petition to state a cause of
action.
The elements of a prima facie tort action are: (1) an intentional lawful act by the
defendant; (2) the defendant’s intent to injure the plaintiff; (3) injury to the plaintiff; and
(4) the absence of justification or insufficient justification for the defendant’s act. Nazeri,
860 S.W.2d at 315.
As noted above, Plaintiffs allege numerous occasions upon which Citimortgage
photographed their home, as well as phone calls to the residence multiple times a day for
weeks. Plaintiffs allege the actions were an attempt to collect money Michael owed to
Citimortgage, and Citimortgage knew Michael died on March 18, 2010. Plaintiffs
alleged Citimortgage knew Jennifer was not a party to Michael’s debt, and
Citimortgage’s actions were an attempt to intimidate her into abandoning litigation
against Citimortgage. As previously discussed, Citimortgage’s actions occurred at the
residence of each Plaintiff, and the frequency and nature of their actions, coupled with the
allegation of Citimortgage’s knowledge of Michael’s death and the circumstances
surrounding the debt, constitute sufficient facts from which could be concluded
Citimortgage intended to cause injury to Plaintiffs. Without determining whether the
facts alleged are credible or persuasive, the facts alleged concerning Citimortgage’s
knowledge of the circumstances also support an absence of justification for
Citimortgage’s actions. In addition, Plaintiffs allege Citimortgage’s actions caused
10 severe emotional distress to Plaintiffs, as well as nausea and vomiting to Ian Philips, and
therefore, Plaintiffs alleged sufficient facts to support the element of injury to Plaintiffs.
Based upon the foregoing, Plaintiffs pleaded sufficient facts to state a cause of
action for prima facie tort, and therefore, the trial court erred in dismissing Plaintiffs
claim. Point four on appeal is granted.
III. Nuisance
In their fifth and final point on appeal, Plaintiffs argue the trial court erred in
dismissing the children’s remaining claims for nuisance for failure to state a claim.
Plaintiffs contend they alleged sufficient facts in their first amended petition to state a
cause of action for nuisance.
“Nuisance is the unreasonable, unusual, or unnatural use of one’s property so that
it substantially impairs the right of another to peacefully enjoy his property.” Frank v.
Environmental Sanitation Management, Inc., 687 S.W.2d 876, 880 (Mo. banc 1985). A
nuisance claim recognizes two competing rights: the right of property owners to control
their land and use it for their own benefit, and the right of the public and neighboring land
owners to prevent unreasonable use that impairs the peaceful use and enjoyment of their
own property. Id. The requirement that the use of land be unreasonable serves to balance
the rights of adjoining property owners. Id. Thus, the core of a nuisance action is
unreasonable land use. Id.
In their first amended petition, Plaintiffs fail to allege any facts concerning
Citimortgage’s use of its land in an unreasonable manner. The only allegation regarding
any land is the recitation of the address of Citimortgage’s Missouri agent. However,
Plaintiffs do not allege Citimortgage used this property in an unreasonable, unusual, or
11 unnatural manner. Instead, Plaintiffs state only the conclusion that Citimortgage
“engaged in the unreasonable, unusual, or unnatural use of its property,” to impair
Plaintiffs’ ability to peacefully use and enjoy their own property. Under the fact pleading
requirements in Missouri, this mere conclusion, without any allegation of supporting
facts, is disregarded in determining whether Plaintiffs stated a claim for nuisance. See
Jennings v. Board of Curators of Missouri State University, 386 S.W.3d 796, 797 (Mo.
App. S.D. 2012). Thus, based upon the facts alleged in the first amended petition,
Plaintiffs failed to state a claim for nuisance. Therefore, the trial court properly
dismissed the count for failure to state a claim. Point five on appeal is denied.
III. CONCLUSION
For the foregoing reasons, the judgment of the trial court dismissing Jennifer
Philips’ claims as barred by res judicata, and dismissing the remaining Plaintiffs’ claim
for nuisance for failure to state a claim, is affirmed. However, the judgment dismissing
the children’s remaining claims for trespass, invasion of privacy, and prima facie tort for
failure to state a claim is reversed. The cause is remanded for further proceedings
consistent with this opinion.
ROBERT M. CLAYTON III, Chief Judge
Clifford H. Ahrens, J., and Mary R. Russell, Sp.J., concur.