Husch Blackwell Beats Malicious Prosecution Suit


Husch Blackwell beats suit alleging it tried to silence critic of wealthy client

Firm didn’t abuse judicial system by filing defamation suit against critic of bond initiative

Ruling shows difficulty of proving malicious prosecution, abuse of process


A former school board candidate failed to convince a Missouri appeals court that Husch Blackwell LLP filed a bogus defamation suit to “silence” his criticism of a municipal bond campaign that the firm’s client was underwriting.

The court’s April 23 opinion highlights the difficulty of proving two types of tort claim—malicious prosecution and abuse of process—that disgruntled litigants a shot at turning the tables on opposing parties and their lawyers.

The ruling is also likely to end a contentious nine-year dispute between a local activist who claims that two powerful Missouri institutions—L.J. Hart & Co., a major municipal underwriter, and Husch Blackwell, an AmLaw 100 firm—used the legal system to squelch his speech rights.

Nine Years of Litigation

The appellate panel affirmed the dismissal of a lawsuit that John T. Impey filed in 2013.

The litigation was tied to events in 2009, when Impey ran for a school board seat and campaigned against a $3 million bond proposal that L.J. Hart & Co. and its owner, Larry Joe Hart, underwrote.

The bond initiative would have financed the destruction of the high school Impey attended and the construction of a new building in its place.

During the campaign, Impey alleged that Hart told the school board to circulate rumors that the historic high school building was “unsafe” and “structurally unsound.”

He also alleged that Hart influenced the board to get a second report from an architect after receiving a report that concluded the building was structurally sound.

Husch Blackwell then brought a defamation and tortious interference lawsuit against Impey on Hart’s behalf.

The firm obtained a preliminary injunction that prohibited Impey from repeating those specific accusations; but when the campaign ended—and the bond initiative failed—Husch Blackwell advised Hart to drop the defamation case.

In 2013, Impey brought this action for malicious prosecution and abuse of process, and the case wound its way through the courts for another five years.

High Bars

The appellate panel affirmed a trial court’s dismissal of Impey’s suit in an opinion that emphasized the high evidentiary bars for proving malicious prosecution and abuse of process.

Malicious prosecution is a “disfavored” tort that requires “strict and clear proof” of all elements, Judge Edward R. Ardini said, and Impey failed to satisfy one of them: a showing that the defamation suit lacked probable cause.

The fact that Hart obtained a preliminary injunction in the defamation case militated against a finding that the suitlacked probable cause, Ardini said.

“Although apparently not previously considered in Missouri, courts from other jurisdictions have held that a preliminary injunction issued after notice to the parties and a hearing is at least prima facie evidence of probable cause,” Ardini wrote.

Discouraging Dispute Resolution

To prove abuse of process Impey had to show that the underlying lawsuit was brought for an “improper purpose.”

He tried to make that showing by pointing to the fact that Husch Blackwell advised Hart to voluntarily dismiss the case after the election—and did so in an email that described dismissal as “[t]he cheapest option.”

The appeals court wasn’t convinced. To “hold that voluntarily dismissing a case that does not reach its authorized conclusion is an abuse of process” would be “contrary to the aim of dispute resolution,” Judge Edward R. Ardini wrote.

“We do not wish to discourage plaintiffs from voluntarily dismissing a lawsuit because it is ‘[t]he cheapest option’ out of fear that they will later be sued for abuse of process where the lawsuit has been confined to its regular and legitimate function but lost its significance,” the court said.

Judges Mark D. Pfeiffer and Anthony Rex Gabbert joined the opinion.

Robert T. Wilhelmus, Kansas City, Missouri, represented Impey. Husch Blackwell was represented by Turner, Reid, Duncan, Loomer & Patton P.C.

The case is Impey v. Clithero, 2018 BL 143422, Mo. Ct. App. W.D., No. WD80991, 4/24/18.

To contact the reporter on this story: Samson Habte in Washington at shabte@bloomberglaw.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bloomberglaw.com