Brough v. Foley
| Decision Date | 04 April 1990 |
| Docket Number | No. 88-496-A,88-496-A |
| Citation | 572 A.2d 63 |
| Parties | John BROUGH et al. v. Linda FOLEY et al. |
| Court | Rhode Island Supreme Court |
This matter comes before the Supreme Court for a second time after having been remanded to the Superior Court in Brough v. Foley, 525 A.2d 919 (R.I.1987). Before us today is the appeal of the defendant, Linda Foley, from a Superior Court order dismissing her counterclaim of abuse of process and granting the plaintiffs' motion for summary judgment in regard to her counterclaims of slander of title and malicious use of process. The facts relevant to this appeal are as follows.
On February 17, 1971, Jeanette S. Nathans, now deceased, conveyed a certain parcel of real estate located on Watch Hill Road in the town of Westerly to Watch Hill Manor, Inc. (Watch Hill Manor), a Rhode Island corporation. On the same day, as a part of the consideration for this conveyance, Nathans executed an option or right of first refusal in favor of Eldacare, Inc. (Eldacare), the parent corporation of Watch Hill Manor. This option gave Eldacare first-refusal rights on a parcel of real estate (option property) owned by Nathans, which was adjacent to the parcel that had been conveyed to Watch Hill Manor.
Thereafter, Watch Hill Manor developed a nursing home on its property and operated the same until the real estate was sold to defendant Foley in 1983.
Following the death of Nathans, her executor, Harold B. Soloveitzik, Esq. (Soloveitzik), listed the option property with Raymond Castagna (Castagna), a real estate broker and Westerly town councilman. Soon thereafter Castagna and plaintiffs formed a partnership and negotiated with Soloveitzik to purchase the option property. The negotiations culminated with the signing of a purchase-and-sale agreement by both parties on July 22, 1985. The agreement provided for sale of the property to the partnership for the sum of $475,000 but was made subject to the right of first refusal held by Eldacare.
On July 25, 1985, Soloveitzik forwarded notice of the sale agreement and the purchase price to Eldacare. On or about July 29, 1985, Eldacare informed Soloveitzik that defendant Foley had been appointed as its nominee for the purpose of exercising the option. 1 On or about August 9, 1985, defendant Foley exercised her right of first refusal to purchase the disputed property and so informed Soloveitzik by a written instrument. Soloveitzik notified the partnership of the exercise of the right of first refusal and proceeded to enter into a purchase-and-sale agreement with defendant Foley. This agreement ultimately led to the conveyance of the disputed property to defendant Foley on September 3, 1985.
On February 5, 1986, after obtaining a State "certificate of need," defendant Foley filed a zoning-amendment petition with the Westerly Town Council seeking to rezone the newly purchased property in order to expand the adjacent nursing home. On March 10, 1986, the day scheduled for the hearing on the petition, plaintiffs filed a complaint in Superior Court alleging that defendant Foley did not own the subject property because the right of first refusal granted to Eldacare was void as violative of the rule against perpetuities. 2 In their request for relief plaintiffs asked for a temporary restraining order and were granted the same. Pursuant to their complaint plaintiffs also filed a notice of lis pendens.
On that same day plaintiffs filed with the Westerly town clerk a written protest to the zoning-amendment petition of defendant Foley. The protest stated:
On April 29, 1986, defendant Foley filed an answer to plaintiffs' complaint, alleging that plaintiffs lacked standing to sue and that their claim to title was "interposed merely for purposes of delay and harassment." Hence she counterclaimed against plaintiffs, alleging abuse of process, malicious prosecution, and slander of title. 3 Soon thereafter both parties moved for partial summary judgment on the issue of the validity of the option as exercised by defendant Foley. In granting summary judgment in favor of defendant Foley, the trial justice found that the option did not violate the rule against perpetuities and that the assignment of the option from Eldacare to defendant Foley was valid. The plaintiffs subsequently appealed the judgment to this court, whereupon we determined that plaintiffs lacked standing to sue in the first instance and thereby affirmed the grant of summary judgment. 4 Brough v. Foley, 525 A.2d 919 (R.I.1987). The case was then remanded to the Superior Court for a resolution of defendant Foley's counterclaims.
At this time plaintiffs moved for summary judgment on the malicious prosecution and slander-of-title counterclaims and moved to dismiss the abuse-of-process counterclaim on the ground that it failed to state a claim upon which relief could be granted. All three motions were heard in the Superior Court on April 29, 1988, and were granted by orders of the court on May 9, 1988. It is from the grant of these motions that defendant Foley appeals. We shall address each counterclaim separately.
The tort of malicious prosecution or malicious use of process, as it is sometimes called when the original suit giving rise to the action is civil rather than criminal in nature, may be defined as a suit for damages resulting from a prior criminal or civil legal proceeding that was instituted maliciously and without probable cause and that terminated unsuccessfully for the plaintiff therein. Powers v. Carvalho, 117 R.I. 519, 526, 368 A.2d 1242, 1246 (1977). Such actions are traditionally disfavored because of the belief that they tend to deter the prosecution of crimes and/or to chill free access to the courts. Id. at 526, 368 A.2d at 1247; Paul v. National Education Ass'n, 189 N.J. Super. 265, 267, 459 A.2d 1213, 1214 (1983). Consequently such actions are subjected to a stricter burden of proof by requiring the plaintiff to establish the existence of malice and want of probable cause by "clear proof." Solitro v. Moffatt, 523 A.2d 858, 862 (R.I.1987); Fox v. Smith, 26 R.I. 1, 5, 57 A. 932, 934 (1904).
It is generally held that malice may be established by a showing that the person initiating the original action was primarily motivated by ill will or hostility or did not believe that he or she would succeed in that action. Nagy v. McBurney, 120 R.I. 925, 929, 392 A.2d 365, 367 (1978). "Proof of malice alone, however, even in the extreme, will not suffice to establish a case of malicious prosecution unless accompanied by a showing that the original action was instituted without probable cause." Id. at 930, 392 A.2d at 367. For want of such a showing in this case, we believe that the grant of summary judgment on the malicious-prosecution claim was appropriate.
In determining probable cause, the Second Restatement of Torts provides:
"One who takes an active part in the initiation, continuation or procurement of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either
(a) correctly or reasonably believes that under those facts the claim may be valid under the applicable law, or
(b) believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information." Restatement (Second) Torts § 675 (1977).
We believe that the record supports a finding of probable cause under this definition.
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