Bull v. McCuskey, 10732
| Decision Date | 21 August 1980 |
| Docket Number | No. 10732,10732 |
| Citation | 615 P.2d 957,96 Nev. 706 |
| Parties | Samuel T. BULL, Appellant, v. Charles F. McCUSKEY, Jr., Respondent. |
| Court | Nevada Supreme Court |
Johnson, Belaustegui & Robison, Reno, for appellant.
Echeverria & Osborne, Chartered, and Nathan M. Jenkins, Reno, for respondent.
Dr. Charles McCuskey commenced this action against attorney Samuel Bull to recover damages for abuse of process. It was his contention that attorney Bull, acting for Catherine Doucette, instituted a malpractice suit against him for the ulterior purpose of coercing a nuisance settlement knowing that there was no basis for the claim of malpractice. A jury returned its verdict for Dr. McCuskey, awarding him $35,000 as compensatory and $50,000 as punitive damages. Bull has appealed from the judgment entered upon jury verdict and from denial of his post-trial motion for judgment n. o. v., or in the alternative, a new trial. The main claim of error is that the evidence does not show an abuse of process. Other errors also are assigned and will be considered.
On May 20, 1974, Catherine Doucette, an 86-year-old woman, was admitted to St. Mary's Hospital following an automobile accident. She had sustained multiple injuries, including fractures of the left wrist, the patellas, and the right femur. Because of her age, she also suffered from an arteriosclerotic heart disease, and was senile. Dr. Charles McCuskey was called to take care of the orthopedic problems, while other doctors managed her other disabilities. The following August, she was transferred from St. Mary's Hospital to the Physicians' Hospital for Extended Care. She was depressed, uncooperative and uncommunicative. While there, she developed bed sores on her hips and heels. Because of this, her nephew, Milan Jeffers, who had been appointed her guardian, dismissed Dr. McCuskey and replaced him with Dr. Jack Sargent. Soon after the substitution, Jeffers inquired of Dr. Sargent whether there had been malpractice by Dr. McCuskey and was told that there was none. Apparently, her bed sores resulted either from her refusal to follow directions, or her inability to do so, and were not traceable to any conduct of the doctor.
In October 1974, Milan Jeffers contacted attorney Bull. An action charging Dr. McCuskey with malpractice, and the Physicians' Hospital with negligence then was filed. The complaint was filed on the basis of Jeffers' statement that the condition of his aunt, Catherine Doucette, had greatly deteriorated, and upon photographs showing bed sores, which photographs were taken by Bull's assistant.
Before filing suit, attorney Bull did not examine nor did he obtain medical records from St. Mary's Hospital or Physicians' Hospital. He did not confer with a doctor. Neither did he submit his client's claim to the Joint Screening Panel, established pursuant to an agreement between the Washoe County Medical Society and the Washoe County Bar Association. 1
After filing suit, attorney Bull did not secure the deposition of Dr. McCuskey, nor of any doctor. He did not retain an expert for trial, nor attempt to do so.
Shortly before trial, the claim against Physicians' Hospital was settled for $750. Dr. McCuskey refused to authorize his carrier to settle for any amount, although settlement of the claim against him also could have been made for $750.
During trial, attorney Bull called Dr. McCuskey incompetent, a fumble-fingered fellow, a liar, a scoundrel, a damned idiot. He also said, "(i)t will be a cold day in hell when I let that dum-dum take care of my mother." Of the doctor he also stated, "(h)e will lie under oath, steel an elderly woman's redress, cheat if he can get away with it, and all that is left for him is to make a pact with the devil and murder those who would oppose him."
The jury to whom the medical malpractice action was presented, quickly returned its verdict for Dr. McCuskey. Dr. McCuskey then commenced this action against attorney Bull for abuse of process.
1. The main assignment of error is that the evidence may not be viewed as establishing the elements of the tort of abuse of process. Recently, this court had occasion to consider that tort. Nevada Credit Rating Bur. v. Williams, 88 Nev. 601, 503 P.2d 9 (1972). We there noted that the two essential elements of abuse of process are an ulterior purpose, and a willful act in the use of the process not proper in the regular conduct of the proceeding. The malice and want of probable cause necessary to a claim of malicious prosecution are not essential to recovery for abuse of process. Moreover, we mentioned that abuse of process hinges on the misuse of regularly issued process in contrast to malicious prosecution which rests upon the wrongful issuance of process.
In Nevada Credit Rating Bur. we sustained an award of compensatory and punitive damages for abuse of process. In that case, property valued at more than $30,000 was attached to secure an alleged debt of less than $5,000. We deemed that to be a willful misuse of the ancillary remedy of attachment for the ulterior purpose of coercing payment of the sum claimed to be due.
In the case at hand, it is asserted that the process (complaint and summons) charging Dr. McCuskey with malpractice was misused for the ulterior purpose of coercing a nuisance settlement. In considering all evidence presented, it was permissible for the jury to conclude that attorney Bull had utilized an alleged claim of malpractice for the ulterior purpose of coercing a nuisance settlement. His offer to settle the case for the minimal sum of $750 when considered in the light of his failure adequately to investigate before deciding to file suit and the total absence of essential expert evidence, supports such a conclusion by the jury, and we may not set it aside.
2. Next, it is asserted that certain rulings of the trial court in the medical malpractice action preclude recovery by Dr. McCuskey in this case by reason of the doctrine of collateral estoppel. This contention is without substance.
In the malpractice case the district court denied Dr. McCuskey's pre-trial motion for summary judgment, and also his motion for a directed verdict tendered during trial. It is asserted that those rulings conclusively establish that the Doctor's instant action for abuse of process is without merit.
The relitigation of an issue that has been finally resolved in a prior case may be barred by the doctrine of collateral estoppel. Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964). The mentioned rulings in the earlier malpractice action were interlocutory rather than final. The only final determination in that action was a judgment entered upon a jury verdict that Dr. McCuskey was not liable for malpractice. The doctrine of collateral estoppel is not concerned with interlocutory rulings.
3. It is asserted that the evidence simply does not support either the award of $35,000 in compensatory damages or $50,000 in punitive damages.
a. The compensatory damages recoverable in an action for abuse of process are the same as in an action for malicious prosecution, Prosser, Law of Torts at 858 (4th ed. 1971), and include compensation for fears, anxiety, mental and emotional distress. Spellens v. Spellens, 49 Cal.2d 210, 317 P.2d 613 (Cal.1957). In Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962), a malicious prosecution case, we wrote:
(T)he plaintiff may recover general money damages to compensate for injury to reputation . . ., humiliation, embarrassment, mental suffering and...
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