Bird v. Rothman

• Decision Date: 19 March 1981
• Docket Number: CA-CIV,No. 2,2
• Citation: Bird v. Rothman, 128 Ariz. 599, 627 P.2d 1097 (Ariz. App. 1981)
• Parties: James W. BIRD, A.I.A., Plaintiff/Appellant, v. Samuel ROTHMAN, an individual, James M. Elliott, an individual, and the Law Offices of Samuel Rothman and James M. Elliott, a partnership and Does 1 through 10, Defendants/Appellees. 3763.
• Court: Arizona Court of Appeals

Page 1097

627 P.2d 1097

128 Ariz. 599

James W. BIRD, A.I.A., Plaintiff/Appellant, v.Samuel ROTHMAN, an individual, James M. Elliott, an individual, and the Law Offices of Samuel Rothman and James M. Elliott, a partnership and Does 1 through 10, Defendants/Appellees.

No. 2 CA-CIV 3763.

Court of Appeals of Arizona, Division 2.

March 19, 1981.

Rehearing Denied April 15, 1981.

Review Denied May 5, 1981.

Maurer, Higginbotham & Harris by Charles D. Maurer, Jr., San Francisco, Cal., for plaintiff/appellant.

Fish, Briney, Duffield, Miller, Young & Adamson, P. C. by Richard Briney, Tucson, for defendants/appellees.

Peabody, Rivlin, Lambert & Meyers by Lewis A. Rivlin, Collister Johnson, Jr. and Robert J. Miller, Washington, D.C., for amici curiaeAmerican Consulting Engineer's Council and Arizona Consulting Engineer's Ass'n.

Carmichael, McClue & Powell, P. C. by J. Clayton Berger, Phoenix, for amici curiae Arizona Soc. of Architects, Inc. and American Institute of Architects.

OPINION

HATHAWAY, Chief Judge.

In this casewe are asked to review the trial court's actions in a malicious prosecution, abuse of process, and negligence suit which terminated in favor of appellees, two Tucson attorneys, on all three counts.Appellant challenges summary judgment on the abuse of process and negligence counts, and a directed verdict for appellees on the malicious prosecution count at trial.

In February 1976, appellees, representing a woman who was injured at Amado Greyhound Park when the grandstand glass was shattered by a rock, filed a tort action which initially named only the park as defendant.After additional investigation, an amended complaint was filed adding appellant Bird as a defendant.Appellant is an architect who specializes in the design of race tracks.He designed Amado Greyhound Park in 1963.After a motion for more definite statement by appellant and additional amended complaints were filed, appellant filed a motion for summary judgment.The motion was granted and judgment was entered dismissing appellant from the suit on September 29, 1977.

On May 1, 1978, appellant filed this action, alleging that appellees acted maliciously and without probable cause in bringing the prior action against him, that they were negligent in failing to investigate the facts and the law before suit, and that they were guilty of abuse of process.Appellees' motion for summary judgment on the negligence and abuse of process counts was granted on July 19, 1979.¹The remaining malicious prosecution count was tried to a jury, and after both parties had rested, a directed verdict was entered for appellees.Appellant appeals from a final judgment in favor of appellees on all three counts.We will address the issues disposed of by summary judgment first.

NEGLIGENCE

Appellant states the negligence issue as follows: "Are attorneys in Arizona immune from liability to adverse parties for negligently instituting or continuing groundless lawsuits?"The basic issue is whether an attorney owes a duty to a party opposing his client in an action arising out of his professional duties in the absence of fraud or collusion.Appellant contends that public policy compels a conclusion that attorneys should be liable in simple negligence to an adverse party for filing a groundless lawsuit.They argue such third party liability exists in other professions, and that there are no reasons why attorneys should receive preferential treatment by the courts.

The issue of an attorney's liability to an adverse party in negligence was recently addressed in Lewis v. Swenson, 126 Ariz. 561, 617 P.2d 69(App.1980).There, the court applied our earlier opinion in Fickett v. Superior Court, 27 Ariz.App. 793, 558 P.2d 988(1976), in holding that an attorney was not liable for negligence for failing to warn an expert witness not to mention insurance during his testimony.The adverse party had brought an action against the defendant attorney alleging damages as a result of the mistrial which was granted after insurance was mentioned while defendant was examining the expert witness.The court applied the test adopted in Fickett to resolve the issue of whether the attorney owed a duty to the adverse party under the circumstances:

"... the better view is that the determination of whether, in a specific case, the attorney will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injuries suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16(1958);(other citations omitted)."27 Ariz.App. at 795, 558 P.2d at 990.²

As cited in the above quotation, the Biakanja case in California was the first to apply the balancing concept to determining liability in negligence to a third party.The California Court of Appeals was called upon to apply the test to the same issue as the one presently before us in Norton v. Hines, 49 Cal.App.3d 917, 123 Cal.Rptr. 237(1975).We have no hesitancy in agreeing with the conclusion in Norton, and the overwhelming majority view in other jurisdictions, that malicious prosecution is the proper cause of action under the circumstances of this case, and that negligence is an improper standard upon which to base liability of an attorney to an adverse party.The balance between freedom of access to the courts and compensating a defendant from unwarranted prosecution and discouraging unmeritorious litigation must be struck in favor of allowing the attorney, as an officer of the court, the freedom to present his case as vigorously as the rules of law and professional ethics will permit.See also, Weaver v. Superior Court, 95 Cal.App.3d 166, 156 Cal.Rptr. 745(1979);Lyddon v. Shaw, 56 Ill.App.3d 815, 14 Ill.Dec. 489, 372 N.E.2d 685(1978);Petrou v. Hale, 43 N.C.App. 655, 260 S.E.2d 130(1979);Brody v. Ruby, 267 N.W.2d 902(Iowa1978).Our courts must be held open to litigating parties without fear of subsequent prosecution for calling upon the court to decide a contested issue.The lawyer's role in this process is unlike that of other professionals.His relationship with the opposing party is by its very nature adverse, not mutually beneficial.The party who is forced to defend a groundless lawsuit may institute disciplinary proceedings against the offending lawyer, as well as bringing a malicious prosecution action.

Since we hold that there can be no liability in negligence for an attorney who allegedly brings a groundless suit against another party, the summary judgment on this count was properly granted.

ABUSE OF PROCESS

The gist of appellant's abuse of process claim is that there was some evidence that appellees brought appellant into the underlying lawsuit in order to force a settlement.Appellant contends that instituting an action to force several defendants to pool their funds and pay plaintiff his demand rather than undergo the expense of trial is evidence of an ulterior, improper purpose precluding summary judgment on this count.

The essential elements of the tort of abuse of process are an ulterior purpose and a wilful act in the use of judicial process not proper in the regular conduct of the proceeding.Joseph v. Markovitz, 27 Ariz.App. 122, 551 P.2d 571(1976);Rondelli v. County of Pima, 120 Ariz. 483, 586 P.2d 1295(App.1978).Even assuming a factual issue exists in regard to an ulterior purpose, there was no evidence of subsequent misuse of process after it was lawfully issued.An ulterior purpose alone cannot constitute abuse of process.There was no proof of an improper use of judicial process here, as the purpose of settlement is includable in the goals of proper process.Bickel v. Mackie, 447 F.Supp. 1376(N.D.Iowa1978), aff'd590 F.2d 341(8th Cir.1978);Martin v. Trevino, 578 S.W.2d 763(Tex.Civ.App.1978);Petrou v. Hale, supra;Brody v. Ruby, supra.The summary judgment on the abuse of process count was properly granted.

MALICIOUS PROSECUTION

In determining the propriety of a directed verdict in a malicious prosecution case, the evidence and all inferences therefrom must be viewed in the light most favorable to the opposing party.LaSalle National Bank v. 222 East Chestnut Street Corp., 353 F.2d 680(7th Cir.1965), cert. den.384 U.S. 938, 86 S.Ct. 1460, 16 L.Ed.2d 539(1966).After three days of testimony, the trial court granted a directed verdict for appellees on this count because it concluded as a matter of law that probable cause existed to bring the underlying action against appellant.Our review of the record indicates that the trial judge properly understood his role in determining probable cause, and that he correctly applied the applicable law to the facts before him.

The elements of malicious prosecution include (1) the institution of a proceeding, (2) actuated by malice, (3) without probable cause by the defendant in this action, (4) which terminated in the plaintiff's favor, and (5) caused him damages.The failure to establish lack of...