Greenberg v. Wolfberg

• Decision Date: 20 December 1994
• Docket Number: No. 81416,81416
• Citation: 890 P.2d 895,1994 OK 147
• Parties: Robert I. GREENBERG, Plaintiff-Appellee, v. Laurance B. WOLFBERG and Carolyn Wolfberg, Defendants-Appellants.
• Court: Oklahoma Supreme Court

Page 895

890 P.2d 895

1994 OK 147

Robert I. GREENBERG, Plaintiff-Appellee, v. Laurance B. WOLFBERG and Carolyn Wolfberg, Defendants-Appellants.

No. 81416.

Supreme Court of Oklahoma.

Dec. 20, 1994.

As Corrected Jan. 3, 1995.

Certified Questions from a United States Court.

Robert Greenberg, the defendant in several civil actions brought by the Wolfbergs, either individually or jointly, recovered judgment

against them on his malicious-prosecution and abuse-of-process claims. The United States Court of Appeals for the Tenth Circuit certified several unsettled questions of state law dealing with these torts

CERTIFIED QUESTIONS ANSWERED.

Harry F. Tepker, Jr., Norman and Aton Arbisser, Robert Barnes, Kaye, Scholer, Fierman, Hays & Handler, Los Angeles, CA, for appellants.

John T. Edwards, Shannon L. Edwards, Robert A. French, Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, for appellee.

OPALA, Justice.

The United States Court of Appeals for the Tenth Circuit [certifying court] certified the following questions pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1991 §§ 1601 et seq.:

1. In light of the facts as detailed below that the Defendants Laurance B. Wolfberg and Carolyn Wolfberg either individually or combined instituted four separate lawsuits and filed one counterclaim against the Plaintiff Robert I. Greenberg or against a party with which Mr. Greenberg was in privity, may the four separate suits and the counterclaim be considered as a single suit (the "Process") for purposes of alleging malicious prosecution and abuse of process claims regardless of the varied disposition and success of the various separate actions?

2. Closely related to question 1 is whether the statute of limitations applicable to both the malicious prosecution and abuse of process claims should be applied to each individual action or to the process?

3. With respect to the abuse of process claim, does the statute of limitations begin to run with the commencement or the termination of each individual action or of the Process?

4. What is the duration of the statute of limitations on an abuse of process claim?

We answer the certified questions as follows: (1) The availability of a multi-componential predicate for the torts of malicious prosecution and abuse of process¹ is determined by analyzing the proceedings in each component case. While malicious prosecution may be predicated upon multiple litigation, a malicious-prosecution plaintiff may not recover actual damages for proceedings that terminated dehors the applicable statutory limitation. (2) The time bar for both delicts pressed in federal court must be applied on a case-by-case basis. Nonetheless, those components of the "Process"² barred by limitation may be relevant in proving a case to recover for successive proceedings. The relevancy goes to the elements of probable cause, malice or punitive damages. (3) Viewing the third question as asking of us when the statute of limitation for an abuse-of-process claim commences, we answer that the limitation period begins when the abuse-of-process claim accrues--i.e., when a plaintiff could have "first maintained the cause to a successful result."³ (4) The statutory limitation for an abuse-of-process claim is two years.

I THE ANATOMY OF FEDERAL LITIGATION⁴

Robert I. Greenberg [Greenberg or malicious-prosecution plaintiff] and Carolyn Wolfberg [malicious-prosecution defendant] are the children of Mal and Rose Greenberg. They are both potential beneficiaries of the In the 1970's Laurance B. Wolfberg [Wolfberg or malicious-prosecution defendant], Carolyn's husband, and Greenberg acquired interests in several business partnerships including, among others, Service Business Forms, Griffith Resources and Green Wolf Oil Company. In 1982 Greenberg and Wolfberg decided to sever their business ties. After effectuating this decision the parties engaged in a series of five forensic battles commencing in November 1986. Upon the culmination of these actions Greenberg brought suit on August 14, 1990 against the Wolfbergs for malicious prosecution and abuse of process. Judgment in Greenberg's favor was entered on October 8, 1991; the Wolfbergs appealed to the U.S. Court of Appeals for the Tenth Circuit, the certifying court.

Mal Greenberg Residual Trust. Greenberg is one of the trustees of that trust. While at his mother's death Greenberg is to receive his share of the residual trust outright, Carolyn is to have only the interest accruing on the trust's principal that remains after distribution to Robert.

II

THE COMPONENTS OF THE "PROCESS" IN THE SENSE DEFINED BY THE

CERTIFYING COURT

In its proffered questions the certifying court defines the four predicate suits and one counterclaim between the litigating parties as the "Process". The components of the Process are as follows:

COMPONENT A:

Laurance B. Wolfberg v. Robert I. Greenberg, Cause No. CIV-86-2441-P, in the U.S. District Court for the Western District of Oklahoma, filed on November 3, 1986. In this action Wolfberg sought (a) an accounting for the profits and losses of Green Wolf Oil Company, a partnership, and (b) that partnership's dissolution. He also sought recovery for Greenberg's breach of fiduciary duties owed to this partnership. While Wolfberg prevailed in pressing for an accounting and dissolution of the partnership, he lost to Greenberg on the breach-of-duty theory. After appellate review by the certifying court, the U.S. Supreme Court denied certiorari on November 13, 1989.

COMPONENT B:

Service Business Forms Industries, Inc., Service Computer Forms Industries, Inc., Laurance B. Wolfberg and Carolyn Wolfberg v. Robert I. Greenberg, individually and as co-trustee under the Mal Greenberg Testamentary Trusts et al., Cause No. CJ-86-12606, in the District Court of Oklahoma County, filed November 26, 1986. The plaintiffs asserted four causes of action against Greenberg, individually and as trustee of the Mal Greenberg Testamentary Trusts. The claims dealt primarily with an asserted failure of consideration to support the stock redemption plan for the Mal Greenberg Testamentary Trusts' stock in Service Business Forms. By March 18, 1988 all causes stood dismissed without prejudice.

COMPONENT C:

Carolyn Wolfberg v. Robert I. Greenberg, individually and as co-trustee under the Mal Greenberg Testamentary Trusts et al., Cause No. CJ-86-12734, in the District Court of Oklahoma County, filed on December 3, 1986. Carolyn Wolfberg sought recovery for (1) Greenberg's breach of fiduciary duties owed to her by him as a trustee of the Mal Greenberg Residual Trust and (2) Greenberg's intentional infliction of emotional distress. The suit was dismissed without prejudice on September 17, 1987.⁵

COMPONENT D:

Carolyn Greenberg Wolfberg v. Robert I. Greenberg as co-trustee under the Mal Greenberg Testamentary Trust et al., Cause No. 88-C-3346, in the District Court, Sedgwick County, Kansas, filed on September 16, 1988. Carolyn Wolfberg sought the removal of the Mal Greenberg Testamentary Trust trustees because of their "prolonged and continued hostility and animosity" towards her. Judgment was entered for the defendants on January 25, 1990.

COMPONENT E:

Robert I. Greenberg as co-trustee of the Mal Greenberg Testamentary Trusts et al. v. Service Business Forms Industries, Inc. and Service Computer Forms Industries, Inc., Cause No. CIV-87-2769-A, in the U.S. District Court for the Western District of Oklahoma, filed on March 16, 1987. The trustees sought judgment on the defendants' note given as consideration in a stock redemption plan. The defendants counter-claimed against Greenberg, alleging he had relinquished his right to any monies due the trust under the note's terms. Partial summary judgment, entered on March 14, 1988, and then final judgment of March 25, 1988 went to the plaintiffs. The latter parties prevailed on all issues. The appellate process came to an end when the U.S. Supreme Court denied certiorari on January 16, 1990.

III

THE NATURE OF THIS COURT'S FUNCTION WHEN ANSWERING CERTIFIED

QUESTIONS FROM A FEDERAL COURT

While we can set the parameters for the permissible use of (multiple) successive proceedings as a predicate for malicious prosecution, this court's assessment of the evidence adduced at the trial of this cause is beyond the allowable bounds of its responsibility. It is not this court's province to intrude (by responses to the certified questions) upon the federal court's decision-making process. Because the case is not before us for decision, we refrain from applying the given state-law responses to the facts elicited in the federal-court litigation or from passing upon the effect of federal procedure on the record and the issues in the case.⁶ We hence must defer to the certifying court the task of analyzing the impact of our answers on the components defined as the Process.

IV

EXCEPT AS ALTERED BY OKLAHOMA'S CONSTITUTION AND HER

STATUTES, THE COMMON LAW REMAINS IN FULL FORCE.

To the extent that statutory provisions and this court's jurisprudence construing them do not yield complete answers to the questions posed, we have reached for this State's declared common law to supplement the responses sought. By the mandate of 12 O.S.1991 § 2⁷ the common law remains in full force unless a constitutional clause or a statute explicitly provides to the contrary. The common law's legislative abrogation may not be effected by mere implication;⁸ it must be clearly and plainly expressed.⁹ A presumption favors the preservation of common-law rights.¹⁰ In this State's legal tradition the common law forms "a dynamic and growing" body of rules that changes with the conditions of society.¹¹

V MALICIOUS PROSECUTION

A majority of American courts concur in the notion that if the elements which comprise malicious prosecution are met and material damages are demonstrable, a plaintiff

may prevail upon this cause of action without having to prove special...