Brody v. Ruby

• Decision Date: 28 June 1978
• Docket Number: No. 60842,60842
• Citation: 267 N.W.2d 902
• Parties: Sidney BRODY, M. D., Appellant, v. Marilyn RUBY et al., Appellees.
• Court: Iowa Supreme Court

Page 902

267 N.W.2d 902

Sidney BRODY, M. D., Appellant, v. Marilyn RUBY et al., Appellees.

No. 60842.

Supreme Court of Iowa.

June 28, 1978.

Michael C. Vinyard, Ottumwa, for appellant.

D. M. Elderkin and David A. Elderkin, of Wadsworth, Elderkin, Pirnie & Von Lackum, Cedar Rapids, for appellees.

Considered by MOORE, C. J., and MASON, ^* REES, UHLENHOPP, and REYNOLDSON, JJ.

REYNOLDSON, Justice.

This is a suit by a physician, Dr. Sidney Brody, against the former plaintiff (Marilyn Ruby) and her lawyers in a prior action for malpractice against Dr. Brody and others. The malpractice action, arising out of the death of Mrs. Ruby's husband, was settled without direct participation of Dr. Brody. It then was dismissed with prejudice as to all defendants.

In several counts, this petition alleged defendants wrongfully instituted the malpractice litigation and consequently became liable in damages to plaintiff on theories of malicious prosecution, abuse of process, and negligence. Dr. Brody alleged $250,000 actual damages in cost and time in defense of the malpractice suit, and for injury to personal and professional reputation, business, credit, community standing, and for humiliation, embarrassment, mental suffering, anguish, physical pain and discomfort. He further prayed for $250,000 in exemplary damages.

After depositions and interrogatories, defendants moved for summary judgment. This motion was sustained as to all counts of the petition. Plaintiff timely appeals, relying on propositions treated in the following divisions. We affirm.

I. Sufficiency of summary judgment procedure.

Plaintiff challenges sufficiency of defendants' summary judgment on three grounds.

He argues rule 237(h), Rules of Civil Procedure, requires a party moving for summary judgment to submit supporting affidavits, and defendants failed to do so. R.C.P. 237(h) provides:

Upon any motion for summary judgment pursuant to rule 237, there shall be annexed to the motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried, including specific reference to those parts of the pleadings, depositions, answers to interrogatories, admissions on file and affidavits which support such contentions and a memorandum of authorities.

Subparagraph "h" was added to R.C.P. 237 by Acts 1975 (66 G.A.) ch. 260. The change in this summary judgment rule left intact subparagraph "b":

A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. (emphasis supplied)

We hold subparagraph "h" by implication does not repeal the plain language of subparagraph "b" which allows the motion to be made "with or without supporting affidavits." The 1975 provisions for a statement of material facts and memorandum of authorities was designed in part to assist trial court in examining the entire record before it, including affidavits, if any, in light of allegations in the motion. See Meyer v. Nottger, 241 N.W.2d 911, 917 (Iowa 1976); Schulte v. Mauer, 219 N.W.2d 496, 500 (Iowa 1974).

In so ruling, we emphasize it remains movant's burden to show there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law. R.C.P. 237(c); Mead v. Lane, 203 N.W.2d 305, 306-307 (Iowa 1972).

Plaintiff further argues defendants' motion was fatally defective because it lacked a specific allegation that no issue of material fact existed.

We are not persuaded such omission is fatal. The very essence of summary judgment is the notion no material factual issues exist. The basic issue concerns legal consequences flowing from undisputed facts. Jacobs v. Stover, 243 N.W.2d 642, 643 (Iowa 1976).

Because our rule 237 is patterned on rule 56, Federal Rules of Civil Procedure, federal interpretations are persuasive. Sherwood v. Nissen, 179 N.W.2d 336, 339 (Iowa 1970). Federal courts liberally interpret summary judgment motions to secure just, speedy, and inexpensive determination of every action. See 10 Wright & Miller, Federal Practice and Procedure: Civil, § 2713, at 393 (1973). This court has demonstrated a similar flexibility. See Hanna v. State Liquor Control Commission, 179 N.W.2d 374, 375 (Iowa 1970).

Finally, plaintiff contends defendants did not meet the burden of proof necessary to sustain a motion for summary judgment.

In ruling on such motion, a court must view all material before it in light most favorable to the non-moving party. Sand Seed Service, Inc. v. Poeckes, 249 N.W.2d 663, 664 (Iowa 1977); Daboll v. Hoden, 222 N.W.2d 727, 731 (Iowa 1974). If reasonable minds could draw different inferences and reach different conclusions from undisputed facts, the issues must be reserved for trial and summary judgment is improper. Daboll v. Hoden, supra, 222 N.W.2d at 733.

As more fully set out in subsequent divisions, we hold defendants in this instance met the burden of proof necessary to sustain their motion. The material before the court demonstrated no material fact issues warranting a trial. The vital issues are legal, not factual.

II. Malicious prosecution.

We have noted one ground of plaintiff's action is based on malicious prosecution arising out of the prior malpractice litigation.

The six elements of a malicious prosecution action are laid out in Sarvold v. Dodson, 237 N.W.2d 447, 448 (Iowa 1976). The sixth element, "damage to plaintiff," is subject to further qualification. Only certain damage satisfies this element.

In this jurisdiction the rule always has been no cause of action arises from malicious prosecution unless there has been either an arrest, seizure of property, or a special injury sustained which would not necessarily result in all suits prosecuted to recover for like causes of action. Bickel v. Mackie et al., 447 F.Supp. 1376, 1379 (N.D.Iowa filed April 4, 1978); Aalfs v. Aalfs, 246 Iowa 158, 163, 66 N.W.2d 121, 124 (1954); Wetmore v. Mellinger, 64 Iowa 741, 744, 18 N.W. 870, 871 (1884).

Imposition of the "special injury" requirement was a public policy determination resolved in favor of allowing litigants access to courts to resolve controversies without fear of a counteraction for damages based on alleged malice in event of an adverse decision:

The * * * position * * * which we have adopted and still believe sound, is that the courts should be open to all who think they have a just cause of action, and it would deter many honest litigants from asserting their rights if they knew they were to be penalized by a counter-action for damages based on alleged malice if for any reason they failed in winning their cause. Aalfs, supra, 246 Iowa at 161, 66 N.W.2d at 123.

The rationale behind the special injury rule is articulated further in Ammerman v. Newman, 384 A.2d 637, 641 (D.C.App.1978), the court quoting the following from Melvin v. Pence, 76 U.S.App.D.C. 154, 157, 130 F.2d 423, 426 (1942):

The (special injury) limitation is sound. When disputes reach the litigious stage, usually some malice is present on both sides. Friendly tort suits are not common. Nor is existence or want of probable cause always easy to determine until the event of the litigation is known. Some margin of safety in asserting rights, though they turn out to be groundless and their assertion accompanied by some degree of ill-will, must be maintained. Otherwise litigation would lead, not to an end of disputing, but to its beginning, and rights violated would go unredressed for fear of the danger of asserting them.

See also Fielder Agency v. Eldan Const. Corp., 152 N.J.Super. 344, 349, 377 A.2d 1220, 1223 (1977).

Seventeen jurisdictions, including Iowa, follow the above English or "strict" rule. Twenty-three jurisdictions do not impose the special injury requirement. Other states have not decided the issue. See cases collected, O'Toole v. Franklin, 279 Or. 513, 518-519, 569 P.2d 561, 564 nn. 3 & 4 (1977); see also Note, Malicious Prosecution: An Effective Attack on Spurious Medical Malpractice Claims?, 26 Case W.R.L.Rev. 653, 657-662 (1976).

Examination of plaintiff's deposition discloses no viable evidence of damage other than his assertions of mental distress resulting from the malpractice action. He is unable to demonstrate any loss of practice or diminished income. He does not present a claim of "special injury" to professional reputation that would not accompany most professional malpractice actions.

We weighed the various considerations in Aalfs and refused to overthrow our rule. We find no persuasive reason in this case to abolish our special injury requirement.

We hold trial court was right in granting summary judgment for defendants on the malicious prosecution count.

III. Abuse of process.

Plaintiff's petition also alleges the malpractice action constituted abuse of process.

In its broadest sense abuse of process has been defined as misuse or perversion of regularly issued legal process, after it has been issued, to achieve some collateral purpose not justified by the nature of the process. See Hyde Construction Co., Inc. v. Koehring Company, 387 F.Supp. 702, 712-713 (S.D.Miss.1974); Sarvold v. Dodson, supra, 237 N.W.2d at 449; Restatement (Second) of Torts § 682 (1977); Birnbaum, Physicians Counterattack: Liability of Lawyers for Instituting Unjustified Medical Malpractice Actions, 45 Fordham L.Rev. 1003, 1033-1034 (1977).

In the interest of protecting ready access to courts, abuse of process actions should not lie for mere institution of a civil action which inconveniences a defendant. Drago v. Buonagurio, 89 Misc.2d 171, 172-173, 391 N.Y.S.2d 61, 62 (1977). Settlement of actions is a positive goal of courts in order to avoid unnecessary and lengthy litigation. See Bickel v. Mackie et al., supra 447 F.Supp. at 1382; Birnbaum, Physicians Counterattack, supra, 45 Fordham...