Food Lion v. UNITED FOOD & COMMERCIAL

• Decision Date: 08 July 2002
• Docket Number: No. 3533.,3533.
• Citation: 567 S.E.2d 251,351 S.C. 65
• Court: South Carolina Court of Appeals
• Parties: FOOD LION, INC., Appellant, v. UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION, Respondent.

351 S.C. 65

567 S.E.2d 251

FOOD LION, INC., Appellant, v. UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION, Respondent.

No. 3533.

Court of Appeals of South Carolina.

Heard October 11, 2000.

Decided July 8, 2002.

Charles Porter, Jane W. Trinkley and Robert L. Widener, all of McNair Law Firm, of Columbia; Donald A. Harper, of the Harper Law Firm, of Greenville; Richard L. Wyatt, Jr., Larry E. Tanenbaum and Thomas P. McLish, all of Akin, Gump, Strauss, Hauer & Feld, of Washington, D.C., for appellant.

Arnold S. Goodstein, of Summerville; Alice F. Paylor, of Rosen, Rosen & Hagood and Armand Derfner, both of Charleston; and Robert F. Muse, of Stein, Mitchell & Mezines; Robert M. Weinberg and Andrew D. Roth, both of Bredhoff & Kaiser, all of Washington, D.C., for respondent.

SHULER, J.

Food Lion, Inc. appeals the trial court's dismissal of its action for abuse of process against the United Food & Commercial Workers International Union. We affirm.

FACTS/PROCEDURAL HISTORY

On February 12, 1993, Food Lion, Inc. filed a complaint in circuit court alleging the United Food & Commercial Workers International Union committed the common-law tort of abuse of process by funding and directing a lawsuit against it as part of a "corporate campaign" strategy used to inflict economic harm on certain disfavored food retailers.¹ The Union removed the action to federal court on March 16. Food Lion filed a motion for remand and the Union responded with a motion to dismiss. On July 21 the federal court issued an order denying Food Lion's motion and granting the motion to dismiss, finding the National Labor Relations Act preempted the state law cause of action for abuse of process.

Food Lion filed a motion to reconsider and therein sought to amend its complaint. The court permitted the amendment and vacated the dismissal on January 22, 1994. On February 3, the Union filed a second motion to dismiss for failure to state a cause of action under South Carolina law, which the court denied on June 24. The Union then filed a motion to reconsider the failure to dismiss and a subsequent motion for partial summary judgment. The federal court denied both motions on October 4, 1995.

Following reassignment of the case, another judge sua sponte questioned the original remand ruling and asked the parties to re-argue the issue of subject matter jurisdiction. On July 24, 1998, the federal court, finding it lacked jurisdiction, remanded the case to the South Carolina circuit court. Thereafter, on October 27, 1998, the Union moved to dismiss the action pursuant to Rule 12(b)(6), SCRCP, and a hearing was held January 12, 1999. By order dated March 11, 1999, the court dismissed the amended complaint for failure to state a valid cause of action for abuse of process and, alternatively, because the action was preempted by federal law. Food Lion filed a motion to alter or amend the judgment, which the court denied on April 20, 1999. This appeal followed.²

LAW/ANALYSIS

Standard of Review

A trial court's ruling on a 12(b)(6) motion to dismiss for failure to state facts constituting a cause of action must be based solely upon the allegations set forth on the face of the complaint. See State Bd. of Med. Exam'rs v. Fenwick Hall, Inc., 300 S.C. 274, 387 S.E.2d 458 (1990). In deciding the motion, the court must view the allegations in the light most favorable to the plaintiff, "with every doubt resolved in his behalf." Gentry v. Yonce, 337 S.C. 1, 5, 522 S.E.2d 137, 139 (1999). The trial court, therefore, should refuse a 12(b)(6) motion if the "facts alleged and inferences reasonably deducible therefrom would entitle the plaintiff to any relief on any theory of the case." Id. (quoting Stiles v. Onorato, 318 S.C. 297, 300, 457 S.E.2d 601, 602 (1995)).

Discussion

The abuse of process tort provides a remedy for one damaged by another's perversion of a legal procedure for a purpose not intended by the procedure. See Huggins v. Winn-Dixie Greenville, Inc., 249 S.C. 206, 210, 153 S.E.2d 693, 695 (1967) ("[A]n abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to effect—the improper use of a regularly issued process."); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 121 at 897 (5th ed. 1984) ("[T]he gist of the tort is . . . misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish."). The purpose itself, though ulterior, need not be illegitimate; rather, the abuse occurs when the purpose is accomplished by using the process in a manner in which it was not intended to be used. See Fowler W. Harper et al., The Law of Torts § 4.9 (3d ed.1996).

To sustain a claim for abuse of process, it is axiomatic that "the judicial process must in some manner be involved." Keeton, supra, § 121 at 898; see Kirchner v. Greene, 294 Ill.App.3d 672, 229 Ill.Dec. 171, 691 N.E.2d 107 (Ill.Ct.App. 1998) (holding that where no court process is involved there can be no abuse of process); 72 C.J.S. Process § 106 at 697 (1987) ("[I]f the process is not used at all, no action can lie for its abuse."). Although no South Carolina case has defined the term "process" in the context of the tort, we agree with Food Lion that the trial court erroneously circumscribed its meaning by giving it the technical construction found in Royal Exchange Assurance of London v. Bennettsville & C.R. Co., 95 S.C. 375, 79 S.E. 104 (1913). In our view, "process," as it pertains to the abuse of process tort, embraces the full range of activities and procedures attendant to litigation. See Hart v. O'Malley, 436 Pa.Super. 151, 647 A.2d 542, 551 (Pa.Super.Ct.1994) ("The word `process' as used in the tort of abuse of process has been interpreted broadly and encompasses the entire range of procedures incident to the litigation process.") (citation omitted); Nienstedt v. Wetzel, 133 Ariz. 348, 651 P.2d 876, 880 (Ariz.App.1982) ("`[P]rocess' as used in the tort . . . is not restricted to the [traditionally] narrow sense of that term."); 72 C.J.S. § 106 at 694 ("For purposes of the tort, the word `process' may encompass a range of court procedures incident to the litigation."); Harper, supra, § 4.9 at 4:104, n. 52 ("That a tort action, loosely called `abuse of process,' requires the use of the word process as that word is technically defined in other contexts is no more self-evident than that a tort action loosely called `false imprisonment' should require a `prison.'"). A plaintiff alleging abuse of process in South Carolina must assert two essential elements: 1) an "ulterior purpose," and 2) a "willful act in the use of the process not proper in the conduct of the proceeding." Hainer v. Am. Med. Int'l, Inc., 328 S.C. 128, 136, 492 S.E.2d 103, 107 (1997); see LaMotte v. Punch Line of Columbia, Inc., 296 S.C. 66, 370 S.E.2d 711 (1988). "An ulterior purpose exists if the process is used to gain an objective not legitimate in the use of the process." First Union Mortgage Corp. v. Thomas, 317 S.C. 63, 74, 451 S.E.2d 907, 914 (Ct.App.1994); see Davis v. Epting, 317 S.C. 315, 454 S.E.2d 325 (Ct.App.1994) (finding no ulterior purpose where the record presented no evidence the process was used to gain anything other than a right to access disputed property); Rycroft v. Gaddy, 281 S.C. 119, 125, 314 S.E.2d 39, 44 (Ct.App.1984) (holding no ulterior purpose was shown where defendants' use of subpoena to obtain bank records was for the "entirely legitimate purpose" of gathering evidence").

As to the second, or "willful act" element, our supreme court has stated that "[s]ome definite act . . . not authorized by the process or aimed at an object not legitimate in the use of the process is required." Hainer, 328 S.C. at 136, 492 S.E.2d at 107 (quoting Huggins, 249 S.C. at 209, 153 S.E.2d at 694); see Rycroft, 281 S.C. at 125, 314 S.E.2d at 43. Thus, the element comprises three components: 1) a "willful" or overt act 2) "in the use of the process" 3) that is improper because it is either (a) unauthorized or (b) aimed at an illegitimate collateral objective.³ Id. Food Lion indisputably alleged the first element of the tort by stating in its amended complaint that the Union "generated, funded, pursued and directed" the Bryant lawsuit for the "improper ulterior purpose of furthering the objectives of its corporate campaign." See Hainer, 328 S.C. at 136,492 S.E.2d at 107 (noting the improper purpose usually is "to obtain a collateral advantage[ ] not properly involved in the proceeding itself') (quoting Huggins, 249 S.C. at 209,153 S.E.2d at 694). As to the second element, Food Lion alleged the Union committed the following "willful acts":

a. Filing the Complaint alleging a class action in the Bryant case for collateral purposes. . . .

b. Amending the Complaint in the Bryant case to add widely diverse additional named plaintiffs as class representatives for collateral purposes. . . .

c. Taking formal and informal discovery in the Bryant case, including depositions, interrogatories, and interviews, for collateral purposes. . . .

d. Taking depositions of persons [the Union] claimed as its clients in the Bryant case for collateral purposes e. Filing a motion to release from a Confidentiality Order the depositions [the Union] had taken of persons it claimed as its own clients in the Bryant case for collateral purposes. . . .

f. Non-privileged publication of various allegations in pleadings filed by [the Union] in the Bryant case . . . for collateral purposes. . . .

We agree with the trial court, albeit for different reasons, that these acts as described are facially insufficient to allege the second element of the tort.⁴

Food Lion correctly observes that an abuse of process action may lie if a party prosecutes an "entire lawsuit" for collateral purposes.⁵See 1 Am.Jur.2d Abuse of Process § 11 at 420 (1994) ("[I]f the suit is brought not to recover on the cause of action stated in...