Kummer v. City of Fargo

• Decision Date: 19 May 1994
• Docket Number: No. 930209,930209
• Citation: 516 N.W.2d 294
• Parties: Terry Lee KUMMER, Plaintiff and Appellant, v. CITY OF FARGO, a Municipal Corporation, Donn Weaver, in his capacity as a Fargo Police Officer, and individually, State of North Dakota, Dan Baumann, in his official capacity, and individually, John T. Goff, in his official capacity as Cass County State's Attorney, and individually, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 294

516 N.W.2d 294

Terry Lee KUMMER, Plaintiff and Appellant, v. CITY OF FARGO, a Municipal Corporation, Donn Weaver, in his

capacity as a Fargo Police Officer, and individually, State

of North Dakota, Dan Baumann, in his official capacity, and

individually, John T. Goff, in his official capacity as Cass

County State's Attorney, and individually, Defendants and Appellees.

Civ. No. 930209.

Supreme Court of North Dakota.

May 19, 1994.

Robin L. Olson (argued), Nelson Law Office, Fargo, for plaintiff and appellant.

Thomas J. Gaughan (argued), City Prosecutor, Fargo, for defendants and appellees City of Fargo and Donn Weaver.

Laurie J. Loveland (argued), Sol. Gen., Atty. Gen's. Office, Bismarck, for defendants and appellees State and Dan Baumann.

Bruce D. Quick (argued), Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for defendant and appellee John T. Goff.

NEUMANN, Justice.

Terry Kummer appeals from a summary judgment dismissing his claims for abuse of process, malicious prosecution, and conversion of property against the State, the City of Fargo, Donn Weaver, Dan Baumann, and John Goff. We affirm.

The claims in this case arise out of Kummer's prosecution for drug offenses following a "reverse sting" operation. Special Agent Baumann of the State Crime Bureau and Officer Weaver of the Fargo Police Department, having received information that Kummer was involved in drug trafficking, set up the "reverse sting." Officer Weaver obtained cocaine from the evidence room of the Fargo Police Department and provided it to a confidential informant, who had arranged a sale of the cocaine to Kummer at a local motel. The informant, wearing a body transmitter, sold the cocaine to Kummer for $3,600. Kummer was arrested upon leaving the motel room, and the money and cocaine were recovered by police.

Kummer was tried and convicted of possession of a controlled substance with intent to deliver. This court reversed his conviction on appeal, holding that the "reverse sting" operation, whereby the law enforcement officers unlawfully furnished the controlled substance, constituted entrapment as a matter of law. State v. Kummer, 481 N.W.2d 437 (N.D.1992).

After reversal of the conviction, Cass County State's Attorney John Goff filed a motion for release of the money and drugs, which were being held by the clerk of court. The district court ordered the money and drugs released, and they were transferred to Special Agent Baumann. The money and drugs were subsequently seized by federal agents pursuant to a warrant issued by the federal district court, and Kummer was charged and convicted of drug offenses in federal court. Kummer's federal conviction was affirmed on appeal. United States v. Kummer, 15 F.3d 1455 (8th Cir.1994).

Kummer sued the State, the City of Fargo, Weaver, Baumann, and Goff, alleging abuse of process, malicious prosecution, and conversion of the $3,600. On the defendants' motions for summary judgment, ¹ the court ordered entry of judgment dismissing all claims. Kummer appealed.

Summary judgment under Rule 56, N.D.R.Civ.P., allows prompt and expeditious disposition of a controversy without trial if there is no genuine issue of material fact, or if the law is such that the resolution of any factual dispute will not change the result. Littlefield v. Union State Bank, 500 N.W.2d 881, 883 (N.D.1993). Although the party seeking summary judgment bears the initial burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991). The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record by setting out the page and line in depositions or other documents containing testimony or evidence raising an issue of material fact. Peterson, supra, 477 N.W.2d at 234. Neither the trial court nor the appellate court has a duty or responsibility to search the record for evidence opposing the motion for summary judgment. Peterson, supra, 477 N.W.2d at 234.

The plain language of Rule 56 requires the entry of summary judgment, upon motion and after adequate time for discovery, against a party who fails to establish the existence of a material factual dispute as to an essential element of his claim and on which he will bear the burden of proof at trial. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 77 (N.D.1991); Eckmann v. Northwestern Federal Savings & Loan Association, 436 N.W.2d 258, 260 (N.D.1989). When no pertinent evidence on an essential element is presented to the trial court in resistance to the motion for summary judgment, it is presumed that no such evidence exists. Soentgen, supra, 467 N.W.2d at 77; Eckmann, supra, 436 N.W.2d at 260.

The defendants argue that summary judgment dismissal of Kummer's abuse of process claim was appropriate because Kummer failed to present any evidence supporting an inference that they acted with an ulterior purpose. We agree.

We discussed abuse of process in Stoner v. Nash Finch, Inc., 446 N.W.2d 747, 751 (N.D.1989):

"The tort of abuse of process is described in Restatement (Second) of the Law of Torts Sec. 682 (1976): 'One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.' The essential elements of the tort are discussed in Prosser and Keeton, The Law of Torts Sec. 121, at p. 898 (5th ed. 1984):

" 'The essential elements of abuse of process, as the tort has developed, have been stated to be: first, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding. Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.' [Footnotes omitted.]"

In Volk v. Wisconsin Mortgage Assurance Co., 474 N.W.2d 40, 43 (N.D.1991) (citations omitted), we added:

"In other words, the gist of the tort of abuse of process is the misuse or misapplication of legal process to accomplish an end other than that which the process was designed to accomplish.... It is the purpose behind the use of the legal process that is controlling."

The defendants through affidavits presented evidence that they did not know Kummer personally, that they had been informed through other persons that he was involved in drug trafficking, and that they investigated and prosecuted him with the sole purpose of bringing a drug offender to justice. Kummer did not file a responsive affidavit, and attempts to rely upon conclusory unsupported allegations that his entrapment, standing alone, establishes the ulterior purpose required for abuse of process. However, we agree with the district court's response to that argument: "The fact that the Defendants' 'reverse drug sting' constitutes entrapment as a matter of North Dakota law does not mean the Defendants had another purpose than to enforce the law."

Abuse of process focuses upon misuse of the legal process to obtain a collateral advantage not directly involved in the proceeding itself. See Volk, supra, 474 N.W.2d at 43; Stoner, supra, 446 N.W.2d at 751; Prosser & Keeton, The Law of Torts 898 (5th ed. 1984). Kummer has failed to direct our attention to specific...