994 P.2d 372 (Alaska 1999), S-8265, Caudle v. Mendel

Docket Nº:S-8265.
Citation:994 P.2d 372
Opinion Judge:MATTHEWS, Chief Justice.
Party Name:Larry L. CAUDLE, Appellant, v. Allison MENDEL, Mendel & Associates, and Mendel & Huntington, Appellees.
Attorney:Larry L. Caudle, pro se, Anchorage. Allison E. Mendel, Mendel & Associates, Anchorage, for Appellees.
Judge Panel:Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.
Case Date:December 30, 1999
Court:Supreme Court of Alaska
 
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Page 372

994 P.2d 372 (Alaska 1999)

Larry L. CAUDLE, Appellant,

v.

Allison MENDEL, Mendel & Associates, and Mendel & Huntington, Appellees.

No. S-8265.

Supreme Court of Alaska

December 30, 1999.

Page 373

Larry L. Caudle, pro se, Anchorage.

Allison E. Mendel, Mendel & Associates, Anchorage, for Appellees.

Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

OPINION

MATTHEWS, Chief Justice.

I. INTRODUCTION

Larry Caudle filed a complaint against Allison Mendel, Mendel & Associates, and Mendel & Huntington (Mendel), alleging malicious prosecution, abuse of process, intentional infliction of emotional distress (IIED), and negligent infliction of emotional distress (NIED) for Mendel's actions in representing Caudle's wife, Debra Caudle, in a domestic violence (DV) petition for a protective order and in a subsequent divorce action. The superior court granted Mendel's motion to dismiss for failure to state a claim upon which relief can be granted and awarded Mendel actual attorney's fees. Because we hold that Caudle's claims were premature, we affirm the superior court's dismissal of all claims. We reverse and remand the award of actual attorney's fees for further findings.

II. FACTS AND PROCEEDINGS

On April 18, 1997, Caudle filed a complaint against Mendel for abuse of process, malicious prosecution, IIED, and NIED. Caudle alleged the following general facts in support of his complaint. First, Mendel had represented Caudle's wife, Debra, in a DV petition filed on February 3, 1997. Second, the petition was dismissed for "insufficient evidence" on February 4, 1997. Third, Mendel was representing Debra in a divorce action against Caudle that was filed on February 13, 1997. Fourth, on February 14, 1997, Mendel filed an expedited motion for interim custody, interim support, and eviction of Caudle from the family home. In the expedited motion, Mendel alleged domestic violence by Caudle against his wife.

In Count I, Caudle claimed that Mendel's actions in the divorce proceedings were an abuse of process and/or malicious prosecution because she pursued a second claim of domestic violence in the divorce case based on the same allegations of domestic violence that were previously dismissed for insufficient evidence in the DV petition. In Count II, he claimed that Mendel's actions in filing the DV petition were an intentional and/or negligent infliction of emotional distress, because Mendel knew or should have known that the DV charges were false and that the DV petition was frivolous. Caudle also claimed that Mendel filed the DV petition for the improper purposes of evicting him from the marital home, obtaining attorney's fees from Debra's father, William Hinnershitz, and gaining an advantage in the divorce case by obtaining an ex parte protective order.

Mendel did not answer the complaint. Instead, she filed a Civil Rule 12(b)(6) motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The superior court granted the motion to dismiss. It held that Caudle could not prove any of his claims because Mendel's actions in using the same domestic violence allegations in the divorce proceeding that had previously been deemed insufficient to support the DV petition were reasonable since the burden of proof in the latter proceeding was lower.

Mendel then moved for actual attorney's fees, arguing that Caudle's filing the complaint was vexatious, in bad faith, and unreasonable, since the divorce action was still pending and since the burdens of proof for a DV petition and an interim divorce proceeding were different.

The superior court awarded Mendel actual attorney's fees in the amount of $2,563. It

Page 374

stated that full fees were justified by Caudle's "unreasonable, bad faith and vexatious conduct in bringing and pursuing this case, in that it was legally deficient and had no chance of success."

Caudle appeals the dismissal of his complaint and the award of actual attorney's fees.

III. STANDARD OF REVIEW

We review de novo an order dismissing a complaint for failure to state a claim upon which relief can be granted.1 To survive a Rule 12(b)(6) motion:

it is enough that the complaint set forth allegations of fact consistent with and appropriate to some enforceable cause of action. The trial court must only consider the material contained in the pleadings in a motion to dismiss for failure to state a claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. The court must presume all factual allegations of the complaint to be true and [make] all reasonable...

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