Bonnie Braes Farms, Inc. v. Robinson
| Decision Date | 25 April 1980 |
| Citation | 598 S.W.2d 765 |
| Parties | BONNIE BRAES FARMS, INC., Appellant, v. William B. ROBINSON, Jane A. Robinson and Joseph L. Arnold, Appellees. |
| Court | Kentucky Court of Appeals |
Weldon Shouse, Shouse & Burrus, Lexington, for appellant.
Joseph L. Arnold, Nunn, Odear & Arnold, Lexington, for appellees.
Before BREETZ, GUDGEL and HOWARD, JJ.
This action involves a unique set of circumstances wherein the appellant, Bonnie Braes Farms, Inc., seeks to establish a cause of action against the appellees for the alleged wrongful filing of a lis pendens notice. On July 26, 1978, William B. Robinson and Jane A. Robinson filed suit in Fayette Circuit Court, attempting to collect a debt of $67,054.42 which arose out of a contract between the Robinsons and the appellant. The contract, dated November 1, 1972, provided for the purchase by the appellant of certain thoroughbred horses, with the sum of $175,000.00 to be paid to the Robinsons. Of this amount, $67,054.42 was outstanding at the time the complaint was filed. In conjunction with the litigation, the Robinsons filed a lis pendens notice asserting an interest in the Bonnie Braes property. The appellant discovered the existence of the notice in early February while attempting to sell one hundred and seventy-eight acres of the farm. The land was ultimately sold with the purchaser's attorney holding in escrow $80,000.00 of the proceeds from the sale. With the action concerning the debt still pending, the appellant filed suit against the Robinsons and their attorney, Joseph L. Arnold, alleging the use of the lis pendens notice constituted abuse of process and slander of title. It is asserted that the statements contained within the lis pendens notice are false and further, the notice was filed wilfully, maliciously and without probable cause.
The appellant moved to consolidate the two suits and requested an order requiring the discharge of the lis pendens notice. The appellees countered said motions with a motion to dismiss the complaint. By order of the Fayette Circuit Court, the motion to dismiss was granted as was the motion to discharge the lis pendens notice. The court also ordered the immediate release of the $80,000.00 held in escrow. This appeal arises out of the issuance of this order.
We affirm the decision of the trial court as we do not find the essential elements of the torts abuse of process and slander of title to be alleged in the complaint. Abuse of process may be defined as the irregular or wrongful employment of a judicial proceeding. Stoll Oil Refining Company v. Pierce, Ky., 337 S.W.2d 263 (1960). The essential elements of the tort include (1) an ulterior purpose and (2) a wilful act in the use of the process not proper in the regular conduct of the proceeding. W. Prosser, Handbook of the Law of Torts, § 121 (4th ed. 1978). Although appellant has attempted to prove a malicious purpose in the acts of the appellees, there has been no proof of process. Judicial process may broadly be defined as all acts of the court, from the beginning of the proceeding to its end; a more narrow definition is the means of compelling a defendant to appear in court. 62 Am.Jur.2d Process § 1. We do not find a lis pendens notice to be within this definition. The lis pendens is merely a notice required by statute to protect the interests of any subsequent purchasers. It is filed without intervention of the judicial authority and brings neither the...
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Chrysler Corp. v. Fedders Corp.
...has ruled that a lis pendens is not "process" and therefore cannot give rise to a claim of abuse of process. Bonnie Braes Farms, Inc. v. Robinson, 598 S.W.2d 765 (Ky.Ct.App.1980). And in New Jersey, no state court has directly decided this issue, although the Third Circuit (interpreting New......
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Carrozza v. Voccola
...(1984) (“[I]t is clear in California that a slander of title can result where no purchaser is present.”); Bonnie Braes Farms, Inc. v. Robinson, 598 S.W.2d 765, 766 (Ky.Ct.App.1980) (“The special damage required [for a slander of title action] may consist of either a loss by the plaintiff of......
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Cherry v. Howie
...by the use of the process as a threat or a club." Flynn v. Songer , 399 S.W.2d 491, 494 (Ky.1966) ; see alsoBonnie Braes Farms, Inc. v. Robinson , 598 S.W.2d 765, 765 (Ky.Ct.App.1980). "There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rathe......
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Ballard v. 1400 Willow Council of Co-Owners, Inc.
...statute of limitations found in KRS 413.140(1)(d) applied to a slander of title claim. 5 As set forth in Bonnie Braes Farms, Inc. v. Robinson, 598 S.W.2d 765, 766 (Ky.App.1980): In order to maintain a slander of title action in this jurisdiction, the plaintiff must plead and prove that the ......