Guest v. Berardinelli

• Decision Date: 29 February 2008
• Docket Number: No. 26,813.,26,813.
• Citation: 2008 NMCA 144,195 P.3d 353
• Parties: Suzanne GUEST and the Guest Law Firm, P.C., Plaintiffs-Appellants, v. David BERARDINELLI and Cheryl McLean, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

195 P.3d 353

2008 NMCA 144

Suzanne GUEST and the Guest Law Firm, P.C., Plaintiffs-Appellants, v. David BERARDINELLI and Cheryl McLean, Defendants-Appellees.

No. 26,813.

Court of Appeals of New Mexico.

February 29, 2008.

Certiorari Denied, No. 31,089, September 11, 2008.

Guest Law Firm, P.C., Suzanne Guest, Phoenix, AZ, for Appellants.

Butt Thornton & Baehr PC, Emily A. Franke, Alfred L. Green, Jr., Albuquerque, NM, for Appellee Berardinelli.

Bannerman & Williams PA, John A. Bannerman, Rikki L. Quintana, Albuquerque, NM, for Appellee McLean.

OPINION

PICKARD, Judge.

{1} Plaintiffs, Suzanne Guest and the Guest Law Firm (Guest), appeal the district court's grant of summary judgment in favor of Defendants, David Berardinelli (Berardinelli) and Cheryl McLean (McLean) (collectively referred to as Defendants), on three claims: (1) malicious abuse of process, (2) interference with existing and prospective contractual relations, and (3) prima facie tort. Guest argues that genuine issues of material fact preclude summary judgment on all claims. We disagree and therefore affirm.

BACKGROUND

{2} On March 11, 1997, Jamie Deveney and Travis Durham (the Durhams) were involved in an automobile accident with an uninsured drunk driver and made uninsured motorist (UM) claims against Allstate Insurance Company (Allstate) under Deveney's automobile insurance policy. Guest represented Allstate as defense counsel in the arbitration of the Durhams' UM claims. The Durhams were represented by McLean. The Durhams were so upset by Allstate and Guest's behavior in settlement discussions, discovery, and the arbitration hearing that they asked McLean to explore the possibility of suing Guest and Allstate.

{3} On January 30, 2002, the Durhams sued Guest, Allstate, and an Allstate adjuster over the handling of their UM claims. The Durhams were represented by McLean, as well as Berardinelli, an attorney known to specialize in bad faith actions against Allstate. The Durhams asserted claims against Guest in her role as arbitration counsel for Allstate for violations of the New Mexico insurance code, aiding and abetting a violation of fiduciary duty, unjust enrichment, malicious abuse of process (MAP), malicious defense, and prima facie tort. The complaint accused Guest of malicious character assassination of the Durhams and of maliciously abusing process to obtain their employment and medical records outside the scope of discovery or in violation of protective orders with the intent to humiliate the Durhams, to cause or threaten them to lose their employment, to extort and intimidate them to give up their rights, and to retaliate against them for not accepting Allstate's settlement offer.

{4} These claims were based on the underlying premise that these allegedly unfair or deceptive claims handling practices were conducted pursuant to Allstate's aggressive national CCPR (claims core process redesign) DOLF (defense of litigated files) and SFXOL (settle for X or less) policies and procedures, which Berardinelli and McLean believe to be fraudulent. All claims against Guest, with the exception of the MAP claim, were dismissed by the district court with prejudice in December 2002. The remaining MAP claim was dismissed with prejudice in an order entered on September 12, 2005, and this Court recently affirmed the dismissal of all claims in Durham v. Guest, 2007-NMCA-144, 142 N.M. 817, 171 P.3d 756, cert. granted, 2007-NMCERT-010, 143 N.M. 74, 172 P.3d 1286.

{5} The instant dispute arose while Durham was still pending in New Mexico district court. On June 24, 2005, Guest filed an amended complaint against McLean, Berardinelli, and Allstate. Guest's claims against Allstate are not the subject of this appeal. The complaint alleged that McLean and Berardinelli had purposely filed the Durham suit against Guest to discourage and intimidate Guest and other attorneys from defending Allstate in current or future UM litigation; to improperly hold Guest responsible in her individual capacity as defense counsel for Allstate's actions, policies, and procedures; and to punish Guest for her defense of Allstate. Guest sought damages from McLean and Berardinelli for MAP, tortious interference with Guest's existing and prospective contractual relations with Allstate, and prima facie tort. McLean and Berardinelli moved for summary judgment on all three claims, and the district court granted the motions in an oral ruling that was transcribed and made part of the record in this appeal at the district court's request.

DISCUSSION

I. Standard of Review

{6} A district court's grant of summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 1-056(C) NMRA. Once the movant meets the initial burden of negating at least one of the essential elements upon which the opponent's claims are grounded, the burden shifts to the non-moving party to come forward with admissible evidence to establish each element of the claim that has been so negated. Blauwkamp v. Univ. of N.M. Hosp., 114 N.M. 228, 231-32, 836 P.2d 1249, 1252-53 (Ct.App.1992).

{7} The non-moving party must show "at least a reasonable doubt, rather than a slight doubt, as to the existence of a genuine issue of fact." Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P.2d 263. In this connection, we note that recent cases employing the "slight doubt" or "slightest doubt" standard have relied on cases predating the seminal case of Goodman v. Brock, 83 N.M. 789, 792, 498 P.2d 676, 679 (1972), in which the Supreme Court unequivocally rejected the "slightest doubt" standard in favor of one of reasonable doubt. See, e.g., Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶ 22, 135 N.M. 539, 91 P.3d 58 (relying on the pre-Goodman case of Las Cruces Country Club, Inc. v. City of Las Cruces, 81 N.M. 387, 467 P.2d 403 (1970)).

{8} Our review is de novo, meaning that we will "apply our own judgment in gleaning the facts from the record, assimilating them into a coherent story, weighing their relevance, and evaluating their legal significance." Reed v. State ex rel. Ortiz, 1997-NMSC-055, ¶ 47, 124 N.M. 129, 947 P.2d 86, rev'd on other grounds, 524 U.S. 151, 118 S.Ct. 1860, 141 L.Ed.2d 131 (1998). We analyze the legal issues without any presumption in favor of the judgment of the court below. Id. We make all reasonable inferences in favor of the non-moving party. Celaya v. Hall, 2004-NMSC-005, ¶ 7, 135 N.M. 115, 85 P.3d 239.

II. Malicious Abuse of Process

{9} In New Mexico, the tort of MAP is generally disfavored as a cause of action. Dawley v. La Puerta Architectural Antiques, Inc., 2003-NMCA-029, ¶ 23, 133 N.M. 389, 62 P.3d 1271. MAP claims involve balancing "the interest in protecting litigants' right of access to the courts and the interest in protecting citizens from unfounded or illegitimate applications of the power of the state through the misuse of the courts." DeVaney v. Thriftway Mktg. Corp., 1998-NMSC-001 ¶ 14, 124 N.M. 512, 953 P.2d 277, abrogated on other grounds by Fleetwood Retail Corp. of N.M. v. LeDoux, 2007-NMSC-047, 142 N.M. 150, 164 P.3d 31. Because meaningful access to the courts is a right of fundamental importance in our system of justice, our courts construe MAP narrowly to protect this right. Weststar Mortgage Corp. v. Jackson, 2003-NMSC-002, ¶ 6, 133 N.M. 114, 61 P.3d 823. The "filing of a proper complaint with probable cause, and without any overt misuse of process, will not subject a litigant to liability for [MAP], even if it is the result of a malicious motive." DeVaney, 1998-NMSC-001, ¶ 20, 124 N.M. 512, 953 P.2d 277.

{10} With this in mind, the elements of MAP are:

(1) the initiation of judicial proceedings against the plaintiff by the defendant; (2) an act by the defendant in the use of process other than such as would be proper in the regular prosecution of the claim; (3) a primary motive by the defendant in misusing the process to accomplish an illegitimate end; and (4) damages.

Id. ¶ 17. The parties' arguments in this case focus principally on the second element, which may be satisfied by Guest in one of two ways: (1) with proof that Defendants filed the Durham complaint without probable cause or (2) by demonstrating that Defendants engaged in some other procedural impropriety "suggesting extortion, delay, or harassment." See DeVaney, 1998-NMSC-001, ¶¶ 22, 28, 124 N.M. 512, 953 P.2d 277. We first address the question of probable cause, and then we discuss Guest's allegations of procedural impropriety.

A. Probable Cause

{11} In granting summary judgment on Guest's MAP claim, the district court ruled that Defendants had probable cause to name Guest as a party in the Durham suits. The district court applied the proper standard: whether Defendants had a reasonable belief, founded on known facts established after a reasonable pre-filing investigation, that a claim could be established to the satisfaction of a court or a jury. DeVaney, 1998-NMSC-001, ¶ 22, 124 N.M. 512, 953 P.2d 277. Guest argues on appeal that Defendants overtly misused process by filing the Durham complaint without meeting this standard. As discussed below, we agree with the district court's analysis of the facts bearing on the question of probable cause, and we affirm its ruling.

{12} We first inquire whether Defendants have made a prima facie showing that they performed a reasonable pre-filing inquiry. See DeVaney, 1998-NMSC-001, ¶ 22, 124 N.M. 512, 953 P.2d 277. A prima facie showing encompasses "such evidence as is sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted." Goodman, 83 N.M. at 792-93, 498 P.2d at 679-80. Prior to filing suit, McLean and the Durhams provided Berardinelli with the factual background of the...