1998 -NMSC- 1, DeVaney v. Thriftway Marketing Corp.

• Decision Date: 22 December 1997
• Docket Number: No. 23581,23581
• Parties: , 1998 -NMSC- 1 David DEVANEY, Plaintiff-Petitioner, v. THRIFTWAY MARKETING CORPORATION, Jerry Clayton, and R.J. Dalley, Defendants-Respondents.
• Court: New Mexico Supreme Court

Page 277

953 P.2d 277

124 N.M. 512, 1998 -NMSC- 1

David DEVANEY, Plaintiff-Petitioner, v. THRIFTWAY MARKETING CORPORATION, Jerry Clayton, and R.J Dalley, Defendants-Respondents.

No. 23581.

Supreme Court of New Mexico.

Dec. 22, 1997.

[124 N.M. 514] Mettler & LeCuyer, P.C., Earl Mettler, Albuquerque, for Plaintiff-Petitioner.

Benson & Associates, Robert D. Benson, Farmington, for Defendants-Respondents.

OPINION

MINZNER, Justice.

¶1 Plaintiff-Petitioner David DeVaney brought a tort action seeking damages for abuse of process and malicious prosecution. The trial court granted Defendants-Respondents Thriftway Marketing Corporation and its officers (collectively, "Thriftway") summary judgment, and the Court of Appeals affirmed. We granted certiorari to revisit and clarify the elements required for the two torts on which DeVaney relies. Specifically, we address two issues: (1) whether, in an abuse of process claim, filing a complaint for an improper purpose may serve as the requisite improper act, and (2) whether the "special injury" requirement for a malicious prosecution claim may be satisfied by a showing that a plaintiff is no longer able to work in his or her chosen occupation. We conclude that the torts of malicious prosecution and abuse of process should be restated as a single tort known as malicious abuse of process. Also, we abolish the "special injury" requirement for a malicious abuse of process claim, and therefore, we need not decide whether DeVaney's inability to secure employment fits within the realm of "special injury." Because we believe genuine issues of material fact preclude judgment as a matter of law, we reverse and remand.

I. FACTS AND PROCEDURE

¶2 Thriftway owns and operates several convenience stores within the boundaries of the Navajo Nation, in Farmington, and in surrounding communities. DeVaney was formerly a manager at a Thriftway store located within the Navajo Nation. An article appeared in the September 19, 1991, edition of the Navajo Times, a newspaper circulated and read throughout the Navajo Nation and surrounding communities including Farmington and Gallup. The article stated that DeVaney made the following negative comments about Thriftway: "I don't think the company [Thriftway] really cares about the Navajo people even though they have a lot of stores here on the reservation," and, "They [Thriftway] had cut their prices so much in Farmington that they weren't making any money so they had to increase the price of the gasoline on the reservation to bring in the profits."

¶3 The article also contained comments to the effect that Thriftway practiced a course of conduct in which store managers were fired after only a year or two of service without regard for the wishes of the communities in which they worked and that Thriftway was insensitive to the Navajo culture both by hiring employees without regard for their ability to understand Navajo culture and by failing to provide any training on Navajo culture after they were hired.

¶4 Thereafter, Thriftway sued DeVaney for defamation and interference with business relations, alleging that it was damaged by DeVaney's comments because they caused public contempt for the company. Specifically, Thriftway believed that its then-pending negotiations with the Navajo Nation to complete a business transaction failed because of the negative comments DeVaney made publicly.

¶5 In the action initiated by Thriftway, DeVaney moved to dismiss both counts. Devaney asserts that, at a hearing, the judge indicated that he would dismiss the count for intentional interference with business relations but would not dismiss the count for defamation. Thriftway then filed a motion for default judgment before the expiration of the time limitation on the filing of DeVaney's answer. The court did not grant Thriftway's motion. Additionally, DeVaney alleges that one of Thriftway's employees failed to appear for a scheduled out-of-town deposition. Thriftway also resisted requests for discovery of relevant information within the exclusive control of Thriftway. Specifically, Thriftway refused to produce documents containing information about Thriftway's gas prices within the Navajo Nation compared with those in Farmington and other communities and documents pertaining to Thriftway's personnel practices in relation to its managers. When the court compelled disclosure of the necessary information, Thriftway dismissed its suit.

¶6 In the present complaint against Thriftway for malicious prosecution and abuse of process, DeVaney alleged that Thriftway "filed the lawsuit without probable cause or reasonable grounds to believe that it had been slandered, libelled or defamed, without probable cause or reasonable grounds to believe that any of its contractual or business relations had been interfered with, and without probable cause or reasonable grounds to believe that it had been damaged by any act of [DeVaney]." DeVaney alleged that Thriftway's suit was filed in order to silence his criticism of Thriftway's business practices and to obtain a retraction of the criticisms. He contends on appeal that these motives provide a basis for a claim of malicious prosecution as well as abuse of process. DeVaney highlighted Thriftway's actions of prematurely filing a default motion, abusing discovery and dismissing the suit in response to an order compelling discovery, as instances of improper conduct during its suit against him.

¶7 Thriftway moved for summary judgment, seeking to show that DeVaney could not establish one or more of the essential elements of the torts on which he based his complaint. The trial court ruled in favor of Thriftway on both counts. The district court concluded that DeVaney's statements were actionable. The court found that Thriftway "possessed reasonable and probable cause to initiate and prosecute the prior lawsuit." The court also found that it "possessed no ulterior motive or improper purpose in instituting or prosecuting that action." The district court granted Thriftway's motion for summary judgment and dismissed Devaney's complaint. The Court of Appeals affirmed dismissal of both claims, but for other reasons. On the abuse of process claim, the Court of Appeals assumed existence of an improper motive, but held that a subsequent improper act "amount[ing] to extortion," was required in addition to filing the complaint. On the malicious prosecution claim, the Court of Appeals did not decide whether Thriftway had reasonable grounds to sue DeVaney, but held that DeVaney failed to prove "special damages", a required element for the tort.

¶8 We granted certiorari in order to re-examine the elements of the two torts in light of Richardson v. Rutherford, 109 N.M. 495, 787 P.2d 414 (1990). In Richardson, we explained that, "[w]hile a subsequent act may suffice to prove an abuse of process which was appropriate when issued, it is not an essential element." Id. at 502, 787 P.2d at 421. We questioned the necessity of the special damages requirement in an action for abuse of process. See id. at 501 n. 3, 787 P.2d at 420 n. 3. Subsequently, our Court of Appeals interpreted Richardson to mean that "the improper act required for an abuse of process claim could be the filing of the complaint itself and that an improper subsequent act was not required." Westland Dev. Co. v. Romero, 117 N.M. 292, 294, 871 P.2d 388, 390 (Ct.App.1994). In the present action, the Court of Appeals construed Richardson and Westland as allowing "for the possibility that under certain, very limited and special circumstances the filing of suit could be enough." DeVaney v. Thriftway, NMCA 16,842, slip op. at 3 (March 25, 1996). We now reverse.

II. STANDARD OF REVIEW

¶9 "In reviewing a grant of summary judgment, we must determine whether the moving party has demonstrated that there is no genuine issue of material fact and is therefore entitled to judgment as a matter of law." Gonzales v, Allstate Ins., Co., 1996 NMSC 041, 122 N.M. 137, 139, 921 P.2d 944, 946. When a defendant seeks summary judgment against a plaintiff, the defendant might attempt to negate one of the essential elements of the plaintiff's claim. Blauwkamp v. University of New Mexico Hosp., 114 N.M. 228, 231-32, 836 P.2d 1249, 1252-53 (Ct.App.1992). In an action for abuse of process, for example, the Court of Appeals has sustained summary judgment on the basis that a plaintiff was not able to show an act in "the use of process other than such as would be proper in the regular prosecution of the charge." Burgett v. Apprill, 100 N.M. 72, 75, 665 P.2d 1163, 1166 (Ct.App.1983) (quoting Farmers Gin Co. v. Ward, 73 N.M. 405, 407, 389 P.2d 9, 11 (1964)). In an action for malicious prosecution, the Court of Appeals has sustained summary judgment on the basis that the plaintiff had not shown a lack of probable cause for initiating criminal proceedings. Somerstein v. Gutierrez, 85 N.M. 130, 132, 509 P.2d 897, 899 (Ct.App.1973).

¶10 Thriftway moved for summary judgment on various grounds. Thriftway argued that DeVaney could not establish that it lacked probable cause in suing him or that he had suffered special damages. Thus, Thriftway argued, DeVaney could not establish essential elements of the claim for malicious prosecution. Thriftway also contended that DeVaney could not establish it proceeded for an ulterior motive or committed an act that was not a proper part of the regular pursuit of its claim. Thus, it contended he could not establish essential elements of the claim for abuse of process. In order to evaluate the soundness of Thriftway's motion, we first consider the elements of the two torts as they have developed in New Mexico.

¶11 In New Mexico, abuse of process has required: (1) the existence of an ulterior motive; (2) an act using process other than that which would be proper in the regular prosecution of the charge; and (3) damages. Ruiz v. Varan, 110 N.M. 478, 480, 797 P.2d 267, 269 (1990). Abuse of...