Brood v. Davis, TC

• Decision Date: 08 October 1979
• Docket Number: No. TC,E-1,TC
• Parties: Dwayne BROOD, Petitioner, v. R. G. DAVIS, Respondent. 77-2486-; CA 10201; SC 25918.
• Court: Oregon Court of Appeals

Page 487

601 P.2d 487

42 Or.App. 587

Dwayne BROOD, Petitioner, v. R. G. DAVIS, Respondent.

No. TC 77-2486-E-1; CA 10201; SC 25918.

Court of Appeals of Oregon, In Banc.

Submitted on Remand from the Oregon Supreme Court Sept. 11, 1979.

Decided Oct. 8, 1979.

Dwayne Brood, filed the briefs in pro. per. for petitioner.

E. R. Bashaw, Medford, filed the brief for respondent.

GILLETTE, Judge.

This is an appeal from a writ of review proceeding brought in circuit court to review the action of a district court judge. We affirm.

The case was before us previously. At that time, relying on our opinion in Hoffman v. French, 36 Or.App. 739, 585 P.2d 730 (1978), we dismissed the appeal on the ground that, subsequent to the enactment of Oregon Laws 1975, ch. 611 (making district courts a court of record), a writ of review would no longer lie in circuit court to review the actions of a district court. Brood v. Davis, 36 Or.App. 641, 585 P.2d 772 (1978). The Supreme Court granted review in both this case and Hoffman v. French, reversed the holding in Hoffman v. French, ¹ and reversed and remanded the present case to us for consideration on the merits. Brood v. Davis, 287 Or. 331, 599 P.2d 455 (Sept. 11, 1979).

Petitioner Brood was the defendant in a district court proceeding commenced on August 29, 1977, by United Finance (UF). After some preliminary maneuvering, Brood filed his answer and counterclaim on September 14, 1977. The counterclaim sought $101,000 damages for alleged "abuse of judicial process" by UF. On the same day, Brood filed a motion to remove the case to circuit court pursuant to ORS 46.070-46.075. ²

United Finance moved to strike Brood's counterclaim on the ground it was sham and frivolous. On September 23, 1977, after a hearing, the district court judge granted UF's motion, struck the counterclaim and denied Brood's motion to transfer proceedings to circuit court. On the same day and for reasons not pertinent to this appeal, Brood's answer was stricken, he was found to be in default and judgment was entered against him. So far as the record discloses, Brood took no appeal to this court from that judgment, and it is now final. Instead, Brood filed the present writ of review proceeding on October 6, 1977, against the district court judge. ³

After some further proceedings the circuit court on December 14, 1977, entered a memorandum opinion dismissing the writ on the ground that no cause of action was or could be stated in Brood's district court counterclaim, that the counterclaim was therefore correctly stricken and the district court continued to have jurisdiction of the case.

Petitioner first assigns as error the circuit court's affirmance of the district court's refusal to transfer the proceeding to circuit court pursuant to ORS 46.070-46.075. ⁴ The circuit court affirmed the district court because it concluded petitioner here could not state a valid cause of action in his counterclaim. We borrow extensively from the circuit court's memorandum analyzing the question.

As noted, the petitioner was defendant in a case filed in the district court by UF. Brood filed an answer denying the allegations of the complaint and making a counterclaim in which he alleged that UF knew that he was an auctioneer and maliciously filed the replevin action with full knowledge that he was not in possession of any merchandise owned by it. In the Ad damnum clause of the counterclaim Brood requested the sum of $1,000 special damages, $50,000 general damages and $50,000 punitive damages. He then complied with all of the requirements of the law to have his case transferred from the district court to the circuit court but, instead of transferring the case, the district judge granted an order striking the counterclaim, denied defendant's motion to transfer the case and refused his tender of costs.

The circuit court held two hearings on this matter, the second of which was to determine whether Any cause of action may be stated consistent with the facts alleged in the counterclaim. If no cause of action may by thus stated then the filing of the counterclaim did not oust the district court of jurisdiction. See Draper v. Mullennex, 225 Or. 267, 357 P.2d 519 (1960); 21 C.J.S. § 691 Courts. In Salitan v. Dashney, 219 Or. 553, 347 P.2d 974 (1959), and in Draper v. Mullennex, supra, the Supreme Court held that the jurisdiction of the district court with respect to the amount of the controversy is tested by examination of the Ad damnum clause in the complaint or counterclaim. In Draper the court disregarded a request for attorneys fees in determining the jurisdictional amount and held that the district court had jurisdiction because there was nothing alleged in the complaint which conferred upon plaintiff the right to recover attorneys fees. We think it follows by analogy from Draper that, if there is nothing alleged in the counterclaim in the present case which confers upon Brood the right to recover the sums requested, then the counterclaim must be disregarded in determining the jurisdiction of the district court.

The counterclaim alleges that the cause of action contained therein is based on an abuse of process. If the counterclaim was amended it might attempt to state a cause of action for (1) malicious prosecution, (2) wrongfully initiating a civil suit or (3) for abuse of process. In Alvarez v. Retail Credit Ass'n, 234 Or. 255, 381 P.2d 499 (1963), the Supreme Court discussed the situations in which the bringing of a civil action gives rise to a malicious prosecution case and held that the wrongfully prosecuted civil action must terminate in plaintiff's favor. Because defendant's counterclaim does not allege a termination of the civil suit in his favor, his counterclaim does not state a cause of action for malicious prosecution. It would be inconsistent with the facts alleged in the counterclaim to say that the civil suit alleged had terminated in defendant's favor.

In Kelly v. McBarron, 258 Or. 149, 482 P.2d 187 (1971), the Supreme Court, in discussing the wrongful filing of liens, indicated that the civil counterpart of malicious prosecution is called the wrongful initiation of a civil suit. In discussing the wrongful initiating of a civil suit, Prosser states:

"Ordinarily the plaintiff must prove the termination of the former proceeding in his favor. But there are necessary exceptions where, as in the case of putting a man under bond to keep the peace, the proceeding is an ex parte one and relief is granted without an opportunity for the party against whom it is sought to be heard. This is true also as to proceedings ancillary to a civil suit, such as attachment or arrest under civil process, as to which, if they are themselves unjustified, it is unnecessary to show a favorable termination of the main action. It usually is held, however, with a little authority to the contrary, that if an opportunity has been given to contest the facts the plaintiff must show a favorable termination of the ancillary proceeding itself." Prosser, Law of Torts, § 120 (4th ed. 1971).

Here petitioner cannot state a cause of action based on the wrongful initiation of a civil suit because the lawsuit did not terminate in his favor and none of the exceptions is present.

With respect to the last of the three possible causes of action abuse of process the Supreme Court in Larsen v. Credit Bureau, 279 Or. 405, 408, 568 P.2d 657, 658, (1977), stated:

"Abuse of process is the 'perversion of legal procedure to accomplish an ulterior purpose when the procedure is commenced in proper form and with probable cause.' Kelly v. McBarron, 258 Or. 149, 154, 482 P.2d 187 (1971). Dean Prosser has identified the essential elements of the tort as follows:

" ' * * * (F)irst, an ulterior purpose, and second, a wilful action in the use of the process not proper in the regular conduct of the proceeding. Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The improper purpose...