dissenting.
Our Supreme Court has recognized, perhaps without great enthusiasm, prima facie tort as a valid cause of action. It exists, yet goes largely unembraced and neglected as the black sheep of the tort family, many times with good reason. However, this particular case fits comfortably within the confines of prima facie tort and should be affirmed as to the judgment for actual damages. As discussed below, I believe the punitive damage award should be reversed.
Prima Facie Tort
The majority sets forth the four factors the Bullions need to establish to make a submissi-ble case: (1) an intentional lawful act; (2) an intent to injure; (3) an injury; and (4) an absence of justification or insufficient justification for the act. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 315 (Mo. banc 1993).
In determining whether the Killions have made a submissible case of prima facie tort, the initial consideration is whether the Kil-lions have sufficient evidence of each of the four elements of their claim. The first element required is an intentional lawful act by the Bank and Dickinson. The intentional lawful acts alleged by the Killions are the institution of foreclosure sales of the Killions’ property on February 9, 1993 and March 23, 1993. The deed of trust allows the Bank and Dickinson to foreclose on the property in the event of a default by the Killions. One of the events of default listed on both the land note and the equipment note is the failure to pay when due any principal or interest payments. The Bank and Dickinson contend that because the Killions’ attorney stated in his closing argument that the Killions were not in default at the time the foreclosure sales were instituted, the Killions essentially “conceded away” the first element of their prima facie tort claim. The Bank and Dickinson argue that the statements in closing argument were judicial admissions that their conduct, in instituting the foreclosure sales when the Kil-lions were not in default, was unlawful and therefore was not an intentional lawful act under the first element of a prima facie tort claim.
A judicial admission “acts as a substitute for evidence and obviates the need to present evidence on the matter.” Fust v. Francois, 913 S.W.2d 38, 46 (Mo.App. E.D.1995). To constitute an admission, a statement must be a factual assertion and not a legal conclusion. Macheca v. Fowler, 412 S.W.2d 462, 465 (Mo.1967); Riley v. Union Pacific R.R., 904 S.W.2d 437, 442 (Mo.App. W.D.1995). A statement made by a party’s counsel in closing arguments must be clear, unqualified, and unequivocal to be a judicial admission. Chilton v. Garden, 952 S.W.2d 773, 778 (Mo.App. S.D.1997).
The Killions’ attorney did argue that the foreclosure sale was based on an “illegal note,” and that the Killions were not in default at the time of the attempted foreclosure sales because their payment after the partial sale in February of 1992 not only made up the deficiency in the 1991 payment but also served as a prepayment of the December 1992 payment. The Killions’ attorney was not admitting the fact that there was no default but, instead, was arguing a legal conclusion from the facts in evidence. This is not a judicial admission.
In addition, the Killions’ attorney also argued that instead of attempting to foreclose on the Killions’ property, the Bank and Dickinson could have sued the Killions on the note. Implicit in this latter argument is the Killions’ admission that the Killions were in default. This is consistent with the testimony presented by the Killions during their case-in-chief. As counsel for the Bank and Dickinson stated in his closing, “[TJhe evidence from all of the plaintiffs that testified was that they knew they were in default.” Specifically, Michael and Bill Killion both testified that they were in default at the time the Bank and Dickinson instituted the foreclosure proceedings. There was evidence that the Killions failed to make the December 31,1992 payments of $42,000 on the land note and $19,706.51 on the equipment note. In light of the evidence and the Killions’ counsel’s other statements essentially admit*815ting that the Killions were in default, the statement by the Killions’ counsel that they were not in default is an argument of a legal conclusion which was equivocal and unclear, and therefore does not constitute a judicial admission that the institution of the foreclosures was unlawful. The Killions presented sufficient evidence that in instituting the foreclosure sales, the Bank and Dickinson were committing intentional lawful acts.
The second element the Killions need to prove is the Bank’s and Dickinson’s actual intent to injure them. The Killions have a “heavy burden to shoulder” on this element, as they must prove an “actual, specific intent to injure, and not merely an intent to do the act which may result in injury.” Kiphart v. Community Fed. Sav. & Loan Ass’n, 729 S.W.2d 510, 516 (Mo.App. E.D.1987). Thus, the Killions need to establish that the Bank and Dickinson intended to injure them by instituting the two foreclosure sales. The Killions may prove intent by circumstantial evidence. Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15, 20 (Mo. banc 1995). Circumstantial evidence is evidence which “does not directly prove a fact in issue but gives rise to a logical inference that the fact exists.” City of Springfield v. Waddell, 904 S.W.2d 499, 505 (Mo.App. S.D.1995). The fact that the injury might be the natural and probable result of the Bank’s and Dickinson’s acts is insufficient to establish the malice required for a prima facie tort cause of action. Boatmen’s Bank of Butler v. Berwald, 752 S.W.2d 829, 833 (Mo.App. W.D.1988). To satisfy the intent requirement for a prima facie tort, actual spite or ill will is necessary. J.S. DeWeese Co. v. Hughes-Treitler Mfg. Corp., 881 S.W.2d 638, 646 (Mo.App. E.D.1994).
There is substantial circumstantial evidence giving rise to the logical inference that the Bank and Dickinson intended to injure the Killions by instituting the foreclosure sales. After the Killions’ partial liquidation sale of their property in February of 1992, John Crist, the loan officer at Dickinson, applied $35,129.09 of the proceeds of the sale toward the payment of contingent interest, even though he knew he had no authority under the terms of the note to collect contingent interest at that time and in that amount. Also at that time, the Bank and Dickinson attempted to get the Killions to sign a modification agreement which consented to the Bank crediting $35,000 to contingent interest, contained an exculpatory clause on usurious or illegal interest in favor of the Bank, and provided that the Killions released the Bank of liability for any claims the Killions might have had against it.
Mr. Crist testified that, after receiving the October 23, 1992 letter from the Killions’ attorney, he recommended foreclosure because the Killions would not sign the modification agreement and they were claiming that the contingent interest provision of the note was unenforceable. Mr. Crist sent a letter to the Killions demanding the December 31, 1992 payment a month and a half before it was due and before the Killions were actually in default. In the letter, Mr. Crist specifically referred to the Killions’ failure to sign the modification agreement before he made the demand for payment and threatened foreclosure. The Bank and Dickinson refused the Killions’ offer to pay all of the unpaid principal and annual interest on both notes plus $15,000 to settle the contingent interest issue. The majority points out that “the Bank’s and Dickinson’s actions pri- or to the first attempted foreclosure give rise to the reasonable inference that the Bank and Dickinson proceeded with foreclosure as retribution against the Killions for refusing to sign the modification agreement and for challenging the contingent interest provision.” (Op. at 811-812.)
Ill will toward the Killions can also be inferred from the statement made by Mr. Frick, the attorney for Dickinson, during the second foreclosure attempt. After being served with a temporary restraining order halting the second sale, Mr. Frick told the crowd at the foreclosure sale that the sale was off for that day, but “[tjhere will be a sale. This farm will sell.” This statement evidences the Bank’s and Dickinson’s intent to injure the Killions, not their intent to simply collect a debt.
After the second attempted foreclosure sale was enjoined, the Bank and Dickinson continued to take actions which indicate their intent to injure the Killions. “Although *816these acts occurred after the attempted foreclosures, they constitute circumstantial evidence of the Bank’s and Dickinson’s earlier intent at the time the foreclosure sales were instituted.” (Footnote 6, op. at 812.) After this court affirmed the trial court’s judgment declaring that the contingent interest provision in the Killions’ note was invalid and unenforceable, the Killions informed Chemical Bank of the appellate decision. Chemical Bank was willing to refinance the loan if the Bank would release its deed of trust. The Bank refused to release its deed of trust to allow the refinancing, as the attorney for Dickinson claimed that the Killions owed $29,000 in attorney fees. The trial court held a hearing on the matter.
Even after the trial court recommended that the Bank release its deed of trust conditioned upon a receiver, previously appointed at the Bank’s request, retaining $40,000 the receiver had collected in farm income pending the resolution of the attorney fee dispute, the Bank and Dickinson refused to release the deed of trust. The trial court finally entered an order effectuating its recommendation. The Bank and Dickinson then refused to accept a check from a Chemical Bank representative to pay off the Killions’ note, claiming that Chemical Bank’s check was not “good and available funds.” The Bank and Dickinson required Chemical Bank to wire transfer the payoff funds to them.
The Bank’s and Dickinson’s conduct before, during and after the attempted foreclosure sales provides substantial evidence of their intent to injure the Killions by instituting the foreclosure sales. The Bank’s and Dickinson’s actions indicate more than just an intent to foreclose and collect the debt owed by the Killions; they indicate actual malice and spite toward the Killions. The Killions presented sufficient evidence on the second element of their prima facie tort cause of action.
The next element the Killions need to prove is that they were injured by the Bank and Dickinson threatening to proceed with the foreclosure sales. An injury is defined as “the invasion of a legally protected interest.” Porter v. Crawford & Co., 611 S.W.2d 265, 271 (Mo.App. W.D.1980). The Bank and Dickinson argue that because they had the right to begin foreclosure proceedings when the Killions defaulted on their mortgage, and Missouri law requires that they publish notice of the foreclosure, the Killions suffered no injury because the Bank’s and Dickinson’s actions were lawful. If this were the case, no prima facie tort plaintiff could ever succeed, as the cause of action requires the plaintiff to establish that the defendant committed a lawful act.
As the majority points out, the “evidence proves that the Killions were stressed, humiliated and embarrassed.” (Op. at 809.) That evidence will not be repeated here. Permitting the recovery of damages for emotional distress in a prima facie tort cause of action is consistent with the general rule in Missouri that one can recover for emotional injuries without an accompanying physical injury when there is “malice, willfulness, wantonness or inhumanity.” Medlock v. Farmers State Bank of Texas County, 696 S.W.2d 878, 879 (Mo.App. S.D.1985). Since a cause of action for prima facie tort includes the element of malice, under general Missouri law, emotional injury alone would be sufficient to prove the element of injury. Here, the Kil-lions presented evidence of emotional injury in that they testified they were stressed, humiliated and embarrassed by the actions of the Bank and Dickinson.
The fourth element the Killions need to prove by substantial evidence is the absence of justification or insufficient justification for the Bank’s and Dickinson’s threatening to proceed with the foreclosure sales. The Bank and Dickinson argue that because the Killions were in default, they were lawfully permitted to initiate foreclosure proceedings and had a valid business reason for doing so, despite any dispute over the contingent interest provision. They contend, therefore, that they Were justified in following established legal procedure by initiating foreclosure proceedings.
In support of their claim that they had a valid business reason for foreclosing, the Bank and Dickinson cite Centerre Bank of Kansas City, N.A. v. Distributors, Inc., 705 S.W.2d 42 (Mo.App. W.D.1985). Centerre is distinguishable from the present case. In *817Centerre, this court reversed a jury verdict in favor of the plaintiff on the basis that Cen-terre had a valid business reason for calling a promissory note due, and such justification alone was sufficient to defeat the plaintiff’s prima facie tort cause of action. Id. at 54. The bank in Centerre had reason to believe that it was insecure because of inadequate collateral. Id. There was evidence that the plaintiff had been losing money for a period of time, the inventory figures given to the bank were suspect, and the bank believed the company was in a negative position. Id. In this case, the Bank and Dickinson were well-secured. The proceeds from the liquidation sale reduced the principal balance on the land note to approximately $171,500 and the principal balance on the equipment note to $25,000, and this does not include credit for the $35,129.09 that the Bank and Dickinson incorrectly applied toward the payment of contingent interest. The remaining real property and equipment securing the notes was valued at $356,000.
Additionally, the evidence showed that the Killions’ default on the note was caused by the Killions’ inability to refinance their debt to the Bank because the Bank would not release the deed of trust on the Killions’ farm unless they paid contingent interest under an illegal provision in the note. The majority properly discounted the defendants’ argument that they believed the contingent interest provision was enforceable. “There was evidence that the Bank and Dickinson were aware of the potential invalidity of the contingent interest provision and its questionable enforceability because Mr. Crist, the Bank’s agent and Dickinson’s employee, tried to get the Killions to sign the proposed note modification agreement. The proposed modification agreement contained an exculpatory clause on usurious or illegal interest in favor of the Bank, and provided that the Killions released the Bank of liability for any claims they might have had against it. The reasonable inference is that the Bank and Dickinson had knowledge of the invalidity of the contingent interest provision.” (Op. at 810-811.)
Despite this knowledge, they initiated foreclosure proceedings when the Killions questioned the provision and refused to sign the modification agreement waiving their rights against the Bank and Dickinson, and caused the Killions’ default by refusing to release the deed of trust unless the Killions paid illegal contingent interest. As indicated by the majority, the Bank and Dickinson could well have suspended foreclosure proceedings pending the adjudication of the validity of a questionable interest provision, knowing that they had security worth far more than the principal amount of the loans and any interest which would accrue during the pendency of any action. As the majority notes, the method of computing contingent interest was also invalid because it was unconscionable. The Killions presented substantial evidence that the Bank and Dickinson lacked sufficient justification to maintain foreclosure proceedings, the fourth element of their claim for prima facie tort.
Since the Killions presented evidence on each of the elements of their claim for prima facie tort against the Bank and Dickinson, the court must undertake the “balancing of interests” test to determine whether their conduct was tortious. The four factors weighed by the court under this test are: “(1) the nature and seriousness of the harm to the injured party; (2) the interests promoted by the actor’s conduct; (3) the character of the means used by the actor; and (4) the actor’s motive.” Lundberg v. Prudential Ins. Co. of America, 661 S.W.2d 667, 671 (Mo.App. W.D.1983).
I agree with the majority that factor one is weighed in favor of the Bank and Dickinson. The Killions suffered real harm as previously pointed out here and in the majority opinion. However, physical harm to person or property receives more weight than emotional harm. Id.
The majority demonstrates very well that the second factor is weighed in favor of the Killions. I won’t attempt to improve on that analysis.
Factor three requires the consideration of whether there is conduct which “offends societal concepts of fairness and morality.” Id. The majority weighs this factor in favor of the Bank and Dickinson because initiating foreclosure proceedings and publishing the foreclosure notices “were not shocking or *818immoral in light of the fact that the note and deed of trust gave them the right to foreclose in the event of default.” (Op. at 811.)
Merely because the documents conferred a right to foreclose does not mean the exercise of that right cannot be shocking or immoral. Possessing a legal right to act is not an absolute defense. In fact, it is an element of the tort that the act complained of be lawful.
The focus regarding factor three is whether the conduct here offends societal concepts of fairness and morality. I believe it does.
The attenuating circumstances surrounding the defendants’ act prevent their “right” to foreclose from being used as a shield from liability. The foreclosure procedures were carried out under circumstances that were unfair and offensive. The conduct described here and in the majority opinion offends societal concepts of fairness and morality and weighs in favor of defendants’ liability.
The majority also points to the ease of Reese v. First Missouri Bank & Trust Company, 736 S.W.2d 371 (Mo. banc 1987), which declined to authorize a cause of action for wrongful attempted foreclosure. Whether or not wrongful attempted foreclosure is, in and of itself, a cause of action does not dispose of our inquiry.
Prima facie tort has been recognized as a cause of action by our Supreme Court and requires a much different analysis than the Reese court was confronted with. The intentional act of a defendant, whether an attempted foreclosure or some other act, is but one element of a prima facie tort. In fact, it is a requirement that the act complained of not be, in and of itself, a cause of action. Otherwise that cause, not prima facie tort, must be pursued.
In the landmark case first recognizing this tort in Missouri, the defendants argued that there could be no cause of action because of their statutory right to stop payment on a check given to plaintiff. Porter v. Crawford & Co., 611 S.W.2d 266, 273 (Mo.App. W.D.1980). The court responded in this way:
Thus, the defendants continue to refuse to recognize the principle that the duty violated in any intentional tort is the duty to avoid intentionally causing harm to another without justification.
Id. In the context of prima facie tort, it is not the act of the defendant which creates the tort. It is that the act was done with an intent to injure without sufficient justification. Porter, 611 S.W.2d at 268.
Prima facie tort is not a recent innovation, having evolved and developed for almost a century. Schmitz v. Smentowski, 109 N.M. 386, 785 P.2d 726, 734 (N.M.1990). The significant safeguards and balancing considerations unique to this tort make the majority’s concerns about a chilling effect unwarranted.
The majority opinion weighs the fourth factor equally in favor of the Bank and Dickinson and the Killions. It acknowledges evidence of ill will toward the Killions and that the evidence supports the finding that the defendants intended to injure the Killions by instituting the foreclosure sales. However, the majority tips the scales back to even, citing Lundberg for the proposition that the defendants are entitled to advance “a valid business purpose” and because “in a society which professes to believe in the free enterprise system, profit motivation, economic self-interest, and business success are not offensive terms.” (Op. at 811, quoting Lundberg, 661 S.W.2d at 671.)
I agree that those terms are not patently offensive and believe the defendants were indeed motivated by profit, economic self-interest and success. At what price? The defendants’ actions perverted those time-honored business terms and the conduct in this case bears little resemblance to “free” enterprise.1 I believe that this factor weighs in favor of the Killions.
The majority concedes evidence of the first two factors of a submissible case: an intentional lawful act and an intent to injure. I *819also believe the Killions established the remaining two factors: that they were injured, and that the injury was without justification. The defendants’ actions were wrongful and their liability was established.
Jury Instruction on Punitive Damages
The Bank and Dickinson also claim that the trial court erred by refusing to instruct the jury that it needed clear and convincing evidence that the companies acted with evil motive or reckless indifference to the rights of others before imposing punitive damages. They claim that the recent pronouncement of the Missouri Supreme Court in Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. banc 1996) compels this court to remand this case to the trial court in order to instruct the jury on the clear and convincing standard of proof with regard to punitive damages. I agree.
At trial, the attorney for the Bank and Dickinson objected to the jury instruction on the ground that it did not instruct the jury on the clear and convincing evidence standard. The trial court overruled their objection and merely instructed the jury that the standard was, in effect, the preponderance of the evidence. The Bank and Dickinson also raised this issue in their motion for new trial, thus properly preserving the issue for our review. See Balke v. Central Missouri Elec. Coop., 966 S.W.2d 15, 21 (Mo.App. W.D.1997).
In Rodriguez, the Missouri Supreme Court determined the appropriate standard of proof for cases in which the jury must determine whether to impose punitive damages against a defendant. The court determined that “[bjecause punitive damages are extraordinary and harsh, ... a higher standard of proof is required: For common law punitive damage claims, the evidence must meet the clear and convincing standard of proof.” Rodriguez, 936 S.W.2d at 111. The Rodriguez court determined that this change in the common law should apply prospectively only. Id. Specifically, the court determined that the clear and convincing standard of proof for punitive damages shall apply to all cases in which trial begins after February 1, 1997, and all other pending cases in which a proper objection to the punitive damages instruction has been preserved. Id.
Rodriguez was decided December 17,1996, and rehearing denied on January 21, 1997. This case was pending as of the date Rodriguez was decided since the direct appeal was not exhausted. State v. Cobb, 875 S.W.2d 533, 534 (Mo. banc 1994). Therefore, under Rodriguez, the trial court should have instructed the jury that the burden of proof for punitive damages in this case was “clear and convincing evidence.” Cole v. Goodyear Tire & Rubber Co., 967 S.W.2d 176, 186 (Mo.App. E.D.1998). I would therefore reverse the judgment for punitive damages and remand the matter for a new trial on that issue.
. Two additional points of error were raised by the Bank and Dickinson. They allege that the jury should not have had the contents of Judge Barnes’ court order read to them and that during closing argument plaintiff impermissibly argued an adverse inference from the Bank’s failure to call its president, Paul Sheperd, to testify. I do not believe either point constitutes reversible error.