RENDERED: DECEMBER 22, 2000; 10:00 a.m. NOT TO BE PUBLISHED
C ommonwealth O f K entucky C ourt O f A ppeals
EVELYNNE A. VANCE
APPEAL FROM HARDIN CIRCUIT COURT HONORABLE HUGH W. ROARK, JUDGE ACTION NO. 96-CI-01191
MAPOTHER & MAPOTHER
OPINION AFFIRMING IN PART; REVERSING IN PART AND REMANDING ** ** ** ** ** BEFORE: BUCKINGHAM, JOHNSON AND MILLER, JUDGES.
JOHNSON, JUDGE: Evelynne A. Vance has appealed from two summary judgments entered by the Hardin Circuit Court on June 10, 1999, and October 22, 1999, that dismissed her claims against appellees, Bank One, N.A. and Mapother and Mapother.1 Having
concluded that Evelynne has failed to allege recoverable damages in her claim for abuse of process we affirm in part; and having
The appeal against Bank One was dismissed as settled on May 25, 2000.
concluded that there is a genuine issue of material fact that must be resolved by a jury as to Evelynne’s claim of wrongful use of civil proceedings, we reverse in part and remand. Evelynne’s claim arose from a foreclosure action filed by the law firm of Mapother and Mapother on behalf of Bank One in the Hardin Circuit Court on November 3, 1995, that named Evelynne and her husband, J.K. Vance, as defendants.2 Bank One’s
complaint erroneously claimed that J.K. Vance owned a fee simple interest in a parcel of property pursuant to a deed recorded in Deed Book 521, Page 162, in the Hardin County Court Clerk’s Office. The complaint also asserted that Evelynne “may be
claiming an interest in the [ ] real estate by reason of her ownership interest in the property.” Bank One asked that the
Master Commissioner sell the property and that it be awarded from the sale proceeds the principal sum of $64,795.33, plus interests, attorneys’ fees and costs.3 The real estate described in the foreclosure complaint had actually been owned in fee simple solely by Evelynne since November 1984. J.K. Vance was not listed on the deed. On
The foreclosure action also named as defendants, First Federal Savings Bank; the County of Hardin; the United States of America; the Commonwealth of Kentucky, Department of Human Resources; and the Commonwealth of Kentucky, Revenue Cabinet. Bank One alleged that these various defendants may be claiming an interest in the real estate in question. Bank One had previously obtained a summary judgment against J.K. Vance in the Hardin Circuit Court on October 8, 1985, for $14,064.87, plus interest, attorneys’ fees and costs. The amount claimed in the 1995 foreclosure action included accumulated interest. -23
November 22, 1995, the Vances moved the circuit court pursuant to CR4 12.02 to dismiss the complaint. The circuit court granted
the Vances’ motion and dismissed the complaint in an order entered on December 22, 1995, which stated as follows: J.K. Vance owns only a curtesy interest in Evelynne Vance’s property. That inchoate interest cannot be levied upon and sold under execution. K[entucky] R[evised] S[tatutes] 404.010; Shields v. Batts, 28 Ky. (5 J.J. Marsh.) 12 (1830); 30 Am.Jur.2d, Executions and Enforcement of Judgments sec. 169 (1994); [A]nnotation, 81 ALR 1110. This order dismissing the foreclosure action was not appealed. After the parties exchanged settlement negotiation letters in March 1996 to no avail, Evelynne filed the lawsuit that is at issue herein. In her complaint, Evelynne asserted
claims against Bank One and Mapother and Mapother for wrongful use of civil proceedings and abuse of process.5 After discovery
was completed, Bank One and Mapother and Mapother moved for summary judgment. On June 10, 1999, and October 22, 1999, the
circuit court granted Bank One’s and Mapother and Mapother’s motions, respectively, and dismissed all claims against both.6 This appeal followed.
Kentucky Rules of Civil Procedure.
Evelynne also asserted a claim against Mapother and Mapother for professional negligence. This claim was dismissed by an order entered on December 4, 1997, and Evelynne has abandoned that issue on appeal. Evelynne amended her complaint to include a claim of intentional infliction of emotional distress. This claim was also dismissed and has been abandoned on appeal. -36
Our review of a summary judgment is set forth in Scifres v. Kraft,7 as follows: The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. Kentucky Rules of Civil Procedure (CR) 56.03. There is no requirement that the appellate court defer to the trial court since factual findings are not at issue. Goldsmith v. Allied Building Components, Inc., Ky., 833 S.W.2d 378, 381 (1992). “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991). Summary “judgment is only proper where the movant shows that the adverse party could not prevail under any circumstances.” Steelvest, 807 S.W.2d at 480, citing Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985). Consequently, summary judgment must be granted “[o]nly when it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor . . .” Huddleston v. Hughes, Ky.App., 843 S.W.2d 901, 903 (1992), citing Steelvest, supra [citations omitted]. Our Supreme Court in Prewitt v. Sexton,8 provided an excellent summary of the development of the law in Kentucky for the tort of wrongful use of civil proceedings: Properly designated, this tort is the “wrongful use of civil proceedings,” the elements of which are described in the Restatement (Second) of Torts, §§ 674-681B. We have recently clarified and explained the basis for this cause of action in Mapother &
Ky.App., 916 S.W.2d 779, 781 (1996). Ky., 777 S.W.2d 891 (1989). -4-
Mapother, P.S.C. v. Douglas, Ky., 750 S.W.2d 430, 431 (1988): “[I]n this type of action, the law is set out in Restatment (Second) of Torts, § 674-76 (1977). These sections are found under the general heading of Chapter 30, entitled ‘Wrongful Use of Civil Proceedings.’ We would note in passing that this is a more accurate categorization than ‘malicious prosecution’ as utilized in Hill v. Wilmott, [Ky.App., 561 S.W.2d 331 (1978)], and any reliance upon the dicta in that case where a civil action is involved is misplaced.” ... Borrowing terminology from older cases discussing the concept of malicious prosecution has confused the issue. We turn, instead, to the discussion of the key elements of Wrongful Use of Civil Proceedings in Chapter 30, Restatement (Second) of Torts, which we approved in Mapother & Mapother, P.S.C. v. Douglas, supra. The elements which have caused difficulty are (1) lack of probable cause, (2) improper purpose, and (3) what type of injury is compensable. This cause of actions requires that in the prior lawsuit the tortfeasor acted “without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the [prior] claim.” Restatement (Second) of Torts § 674. Recovery is limited to specified harm (Id., § 681), and the judge must decide whether “the harm suffered by the plaintiff is a proper element for the jury to consider in assessing damages.” Id., § 681B(1)(d). Understanding begins by appreciating that lack of probable cause and improper purpose are separate and distinct elements, separate both as to their meaning and as to their function, i.e., the role they play in the decision-making process [emphases original]. First, as to cause” is a legal judicial decision probable cause to their meaning. “Probable concept with origins in the as to whether there was issue a warrant, and as -5-
such its existence is a question for the court to decide [emphasis original]. Id., § 681B(1). It covers both a mistake of law and a mistake of fact, and it exists where the person who initiates civil proceedings “reasonably believes in the existence of the facts upon which the claim is based, and . . . that under those facts the claim may be valid under the applicable law.” Id., § 675. The second of these two essential prongs is an improper purpose, which is for the jury to decide after the court has determined that under the law and the facts the prior action was initiated or pursued without probable cause [emphasis original]. Id., § 681B(2). What is often loosely labeled proof of “malice” is more specifically defined in the Restatement as bringing the prior lawsuit “primarily for a purpose other than that of securing the proper adjudication of the claim.” Id., § 676. ... Traced through its course in Kentucky cases, this concept must be viewed, candidly, as a tort in transition, finding ultimate repose in present form in Mapother & Mapother, P.S.C. v. Douglas, supra. In Raine v. Drasin, supra, our Court referred to the Restatment (Second) of Torts as authority; in Mapother & Mapother, P.S.C. v. Douglas, we adopted it as the law on this subject. The Restatement (Second of Torts, § 681B, summarizes the “Functions of Court and Jury” in an action for Wrongful Use of Civil Proceedings as follows: (1) In an action for wrongful civil proceedings, the court determines whether (a) a civil proceeding has been initiated; (b) the proceeding was terminated in favor of the plaintiff;
(c) the defendant had probable cause for his action; (d) the harm suffered by the plaintiff is a proper element for the jury to consider in assessing damages. (2) In an action for wrongful civil proceedings, subject to the control of the court, the jury determines (a) the circumstances under which the proceedings were initiated in so far as may be necessary to enable the court to determine whether the defendant had probable cause for initiating them; (b) whether the defendant acted primarily for a purpose other than that of securing the proper adjudication of the claim on which the proceeding was based; (c) the circumstances under which the proceedings were terminated; (d) the amount that the plaintiff is entitled to recover as general and specific damages; (e) whether punitive damages are to be awarded, and if so, in what amount. ... It is only in circumstances where the trial court has decided that if certain facts exist they establish lack of probable cause, and the existence of such facts is in dispute, that there is a fact question for the jury to decide [emphases added].9 Section 675 of the Restatement (Second) of Torts sets
Id. at 893-95. -7-
forth the grounds for a defense of probable cause: Existence of Probable Cause One who takes an active part in the initiation, continuation or procurement of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either (a) correctly or reasonably believes that under these facts the claim may be valid under the applicable law, or (b) believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information.10 Evelynne argues that the circuit court, in ruling that Mapother and Mapother had probable cause to file this lawsuit on behalf of Bank One, assumed the existence of certain facts that were actually in dispute. Evelynne points to the following
statements by the circuit court in the October 22, 1999, summary judgment: The question of probable cause is related to whether it was reasonable for Mapother to believe that Bank One’s claim was tenable. [ ]. The Plaintiff bears the burden of proving the lack of probable cause. Puckett v. Clark, Ky., 410 S.W.2d 154 (1966). From a deed of record, Mapother believed that the property was held in J.K. Vance’s name, and he was made the primary defendant in the original action. The Plaintiff was named so that she might assert her rights in the property. There is no dispute of the indebtedness of J.K. Vance’s debt to Bank One and this suit sought foreclosure on land believed to be owned by him. A spouse has an
Douglas, supra at 431. -8-
interest in said real estate and must be named as a defendant in any action filed against said property. The Plaintiff must prove there was an ulterior motive for bringing the original suit against J.K. Vance, the primary defendant. The Plaintiff in this action, his wife, Evelynne A. Vance was simply named to assert her rights in the property [emphases added]. If the statements from the summary judgment that we have highlighted represented undisputed factual matters, then the circuit court’s ruling would have been correct. However, as
Evelynne correctly notes, each of these statements is disputed. First, Mapother and Mapother contends that from its reading of the deed it mistakenly believed J.K. Vance had a fee simple interest in the real estate. However, since the deed on its face
clearly indicates that Evelynne is the only owner of the property and since Mapother and Mapother is a law firm experienced in debt collections, it would be reasonable for a jury to disbelieve Mapother and Mapother’s claim. Second, Mapother and Mapother’s
true intent in naming Evelynne as a party to the lawsuit is disputed. If a jury does not accept Mapother and Mapother’s
statement that it believed J.K. Vance had a fee simple interest in the property, then it would not be logical for a jury to believe that Evelynne was named merely so she might assert her dower interest in J.K.’s property. Accordingly, since the
evidence viewed in the light most favorable to Evelynne supports a finding that Mapother and Mapother lacked probable cause to believe that Bank One’s claim was tenable, summary judgment was
If a jury were to determine that Mapother and
Mapother knew that J.K. Vance was not listed in the deed as an owner and that Mapother and Mapother included Evelynne as a defendant to the foreclosure action for the improper purpose of attempting to leverage her to pay her husband’s debt, then there would have been a lack of probable cause for bringing the civil proceedings against Evelynne.12 Mapother and Mapother originally argued before the circuit court that at the time the complaint was filed that it believed J.K. Vance’s name was on the deed. It also argued
before the circuit court and continues to argue that even though it was mistaken in its belief that J.K.’s name was on the deed, it nonetheless had probable cause to bring the action based on J.K.’s curtesy interest in the property. The circuit court accepted Mapother and Mapother’s probable cause defense and noted that “[a]ccording to the Court in Raybro Elec[tric] Supplies v. Barclay,13 Kentucky law allows creditors to attach a debtor-spouse’s contingent interest in marital land to secure unilateral debt, but prevents creditors from foreclosing on the land itself until the debtor-spouse becomes full owner by survivorship.” The problem with the
circuit court’s ruling is that the complaint prepared by Mapother
Steelvest, supra at 480. Prewitt, supra at 895. 813 F.Supp. 1267 (W.D.Ky. 1992) -10-
and Mapother and filed on behalf of Bank One did not in any way assert a claim against J.K. Vance’s curtesy interest. In fact,
the opposite was true: Bank One asserted the right to foreclose against J.K.’s alleged fee simple interest and Evelynne was named as a defendant for the purpose of “set[ting] up whatever right, interest or claim she may have in or to the [ ] real estate, or be forever barred.” Thus, if a jury were to find that Mapother
and Mapother did not believe that J.K. held a fee simple interest in the property and that Evelynne was not named merely for the purpose of asserting her dower interest in the property, then Mapother and Mapother would have lacked probable cause for bringing the action. Mapother and Mapother claims that its actions in bringing the foreclosure complaint against J.K. Vance can be justified on the basis of it having had probable cause to bring an action to attach J.K.’s contingent interest in Evelynne’s property even though it may have understood the facts at the time of the filing of the foreclosure action to have only supported the foreclosure action, i.e., that J.K. owned a fee simple interest in the property. Comment c. to Section 675 of the
Restatement (Second) of Torts provides that “[t]he considerations that determine the reasonable character of the original plaintiff’s belief in the existence of facts upon which his claim is based are, except as stated in Comment d, in substance similar to those that determine whether the belief of a private prosecutor as to the conduct of the accused is reasonable, and to -11-
this extent Comments e, f, and g on § 662 are applicable.” Section 662 comment e. states in part: “It is the facts known or reasonably believed by the private prosecutor that determine the existence or non-existence of probable cause and not the facts which, although within the knowledge of third persons, are not communicated to him.” Thus, an alternative ground that could
have been asserted by Mapother and Mapother on behalf of Bank One to support its claim does not provide a justification for the original claim it asserted. We hold that the determination of
probable cause goes to the claim that is actually asserted not to some alternative claim that could have been asserted. Accordingly, the factual determination that must be made by a jury goes to whether certain facts that would have established probable cause for the foreclosure action actually existed, not to whether some alternative theory may have been justified, i.e., attachment of J.K.’s contingent interest in Evelynne’s fee simple interest. Thus, we reverse the summary judgment on the claim of
wrongful use of civil proceedings against Mapother and Mapother and remand for further proceedings consistent with this Opinion. We now address Evelynne’s claim of abuse of process. In Simpson v. Laytart,14 our Supreme Court summarized this tort as follows: An action for abuse of process is “the irregular or wrongful employment of a judicial proceeding.” Stoll Oil Refining Company v. Pierce, Ky., 337 S.W.2d 263
Ky., 962 S.W.2d 392 (1998). -12-
(1960). ... Abuse of process, [ ], consists of “the employment of legal process for some other purpose than that which it was intended by the law to effect.” Raine v. Drasin, Ky., 621 S.W.2d 895 (1981); Flynn v. Songer, Ky., 399 S.W.2d 491 (1966). ... The essential elements of an action for abuse of process are (1) an ulterior purpose and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding. Bonnie Braes Farms Inc. v. Robinson, Ky.App., 598 S.W.2d 76 (1980); Williams v. Central Concrete Inc., Ky.App., 599 S.W.2d 460 (1980). Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process is required and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion even though with bad intentions. W. Prosser, Handbook of the Law of Torts, Section 121 (4th ed.1971).15 While Evelynne’s claim arguably met these essential elements of the tort of abuse of process,16 her claim failed to assert appropriate damages. stated: Moreover, an action for abuse of process will Our Supreme Court in Raine,17
Id. at 394-95.
Evelynne claims the ulterior purpose in bringing the foreclosure action was to extort payment from her or J.K. on J.K’s debt. She claims the continuation of the foreclosure proceedings was not proper in the regular conduct of the proceeding because Bank One and Mapother and Mapother knew that J.K. was not listed on her deed.
Supra at 902. -13-
not lie unless there has been an injury to the person or his property. Injury to name or reputation is not sufficient. 1 Am.Jur.2d, Abuse of Process, Sec. 4; Flynn v. Songer, Ky., 399 S.W.2d 491 (1966); Stoll Oil Refining Co. v. Pierce, Ky., 337 S.W.2d 263 (1960).18 In her complaint, Evelynne pled the same damages for her abuse of process claim as she did for her claim of wrongful use of civil proceedings: (a) (b) Payment of attorney fees to defend a meritless claim. Expenses and attorney fees charged by First Federal, a mortgage holder forced to answer Defendant’s wrongful suit and file a Crossclaim against her. See Exhibit “B”. Loss of reputation. Humiliation. Mortification[.] Mental and physical pain and suffering. General impairment of social and mercantile standing.
(c) (d) (e) (f) (g)
While a plaintiff in a wrongful use of civil proceedings action “may recover for humiliation, mortification and loss of reputation,”19 “an action for abuse of process will not lie unless there has been an injury to the person or his
See also 1 Am.Jur.2d Abuse of Process §7 (1994).
Raine, supra at 900 (citing Hayes v. Ketron, 223 Ky. 119, 3 S.W.2d 172 (1928); and Harter v. Lewis Stores, Inc., Ky., 240 S.W.2d 86 (1951)). -14-
“There must be an unlawful interference with the “It has repeatedly
person or property under color of process.”21
been held that the mere institution of a civil action which has occasioned a party trouble, inconvenience and expense of defending, will not support an action for abuse of process.”22 Accordingly, the claim for abuse of process was properly dismissed by summary judgment. In summary, we affirm the Hardin Circuit Court’s summary judgment as to Evelynne’s claim for abuse of process, but reverse and remand on the claim of wrongful use of civil proceedings. ALL CONCUR. BRIEF AND ORAL ARGUMENT FOR APPELLANT: Douglas E. Miller Radcliff, KY BRIEF FOR APPELLEE: Roy Kimberly Snell LaGrange, KY Thomas L. Canary, Jr. Louisville, KY ORAL ARGUMENT FOR APPELLEE: Roy Kimberly Snell LaGrange, KY
Raine, supra at 902.
Earl v. Winne, 34 N.J.Super. 605, 615, 112 A.2d 791, 796 (1955) (citing Silverman v. Ufa, Eastern Division Distribution, 135 Misc. 814, 236 N.Y.S. 18 (Sup.Ct. 1929)). Scully v. Genesee Milk Producer’s Cooperative, Inc., 78 A.D.2d 982, 434 N.Y.S.2d 48, 50 (1980) (citing Miller v. Stern, 262 App Div 5, 7). -1522