Levinsky v. Diamond

• Decision Date: 02 February 1982
• Docket Number: No. 410-80,410-80
• Parties: Bruce J. LEVINSKY v. M. Jerome DIAMOND.
• Court: Vermont Supreme Court

Page 1277

442 A.2d 1277

140 Vt. 595

Bruce J. LEVINSKY v. M. Jerome DIAMOND.

No. 410-80.

Supreme Court of Vermont.

Feb. 2, 1982.

George H. Spangler of Richard E. Davis Associates, Inc., Barre, for plaintiff.

Robert D. Rachlin and Priscilla K. Reidinger of Downs, Rachlin & Martin, South Burlington, for defendant.

Before BARNEY, C. J., BILLINGS, HILL and UNDERWOOD, JJ., and DALEY, J. (Ret.), Specially Assigned.

UNDERWOOD, Justice.

Plaintiff, a nursing home operator, appeals the trial court's dismissal of his complaint against the defendant for malicious prosecution and abuse of process. These two torts are alleged to have been committed by the defendant, a former Attorney General of the State of Vermont, in the course of investigating the plaintiff and initiating prosecution against him on two counts of subornation of perjury, ten counts of medicaid fraud, and for seeking to have the defendant arrested on a federal warrant as a fugitive from justice while the plaintiff was vacationing in Bermuda.

The case comes to us with no answer to the complaint ever having been filed by the defendant. Rather, the defendant moved to dismiss the complaint on the grounds that it (1) failed to state a claim upon which relief could be granted, V.R.C.P. 12(b)(6); (2) was barred by the doctrine of sovereign immunity; and (3) was barred by the doctrine of prosecutorial immunity.

The court below at first denied the motion in an order dated June 23, 1980. It found that the complaint did set forth a claim for the torts of malicious prosecution and abuse of process. It dealt with both immunity defenses by noting that neither doctrine shields officials acting outside the scope of their authority. Finding that the plaintiff's complaint implied that the defendant's actions were outside the scope of his employment, the court granted the plaintiff leave to amend his complaint to set forth express instances in which he claimed the defendant exceeded his authority as Attorney General.

Plaintiff made only two amendments to the original complaint. He amended paragraph 26 of Count I to allege:

(26) The defendant's acts and conduct, as herein alleged, were beyond the reach of his office as Attorney General of the State of Vermont, and in performing said acts, the defendant was acting outside of the scope of his employment. Defendant's conduct constitutes an abuse of process in that defendant employed legal processes for purposes other than for which the same were intended by law.

He also amended paragraph 33 of Count II to allege:

(33) Defendant's acts and conduct were beyond the reach of his office and said defendant was acting outside the scope of his employment in the performance of the same. His conduct in maliciously causing said investigation and prosecutions to be instituted against the plaintiff was unlawful and constitutes a malicious use of legal process.

The defendant moved to dismiss the amended complaint on grounds that it failed to state a claim for which relief can be granted, and asked the court to reconsider its order of June 23. This time, in an order dated November 9, 1980, the court did dismiss the complaint, concluding that the amendments noted above merely recited legal conclusions without setting forth facts which showed that the defendant was operating beyond the scope of his employment.

The order and the record reflected an intermingling of two distinct motions which ought not to be confused-a motion to dismiss for failure to state a claim upon which relief can be granted, V.R.C.P. 12(b)(6), and a motion for judgment on the pleadings, V.R.C.P. 12(c). Since the complaint was adequate to withstand the former motion, and the latter motion was not properly before the court, we reverse and remand for further proceedings.

The original complaint alleged that the defendant used the powers of his office to

institute, or cause to be instituted, a major prosecution against the plaintiff to which he, the defendant, could call the public's attention and thus create in the public's mind and opinion the impression that he was a person of great ability and effectiveness in performing the duties of his office, thus enhancing his political image and furthering his then efforts to become elected Governor of this State.

Among the specific acts allegedly undertaken for this purpose were:

-deliberately causing two redundant counts of subornation of perjury to be filed where only one was supportable;

-holding a press conference to accuse the defendant of fleeing the state to avoid prosecution on these charges even though the defendant was unaware of them, and had left on a previously scheduled trip to Bermuda;

-causing a federal warrant to be issued for the defendant's arrest as a fugitive from justice;

-causing ten charges of medicaid fraud to be filed against plaintiff which defendant subsequently withdrew, admitting they were unsubstantiated; and

-causing his staff to represent to the court at plaintiff's arraignment that the plaintiff had previously fled the country as a fugitive from justice and that the evidence against him was overwhelming and thus causing bail to be set at $1,200,000-the highest ever set in a Vermont criminal case

-while subsequently conceding upon examination at a bail reduction hearing that he had no evidence that plaintiff was a fugitive from justice.

Finally, the plaintiff alleged that these various acts, in addition to being without substance, beyond the scope of the defendant's duties, and undertaken for impermissible reasons, caused him substantial pecuniary loss and emotional turmoil, and invaded his privacy and damaged his reputation.

The plaintiff's complaint clearly alleges each of the necessary elements of the torts of malicious prosecution and abuse of process. To state a claim for malicious prosecution, the plaintiff must allege facts constituting a prosecution with malice, without probable cause, and which caused damage to the plaintiff. Fay v. Van Ells, 134 Vt. 536, 541, 367 A.2d 167, 171 (1976); 52 Am.Jur.2d Malicious Prosecution § 1. To state a claim for the legally distinct tort of abuse of process, Roberts v. Danforth, 92 Vt. 88, 91, 102 A. 335, 336 (1917), a complaint must allege that the defendant made an improper, illegal, or unwarranted use of court processes with an ulterior motive or for an ulterior purpose, which produced damage to the plaintiff. 1 Am.Jur.2d Abuse of Process § 4.

The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is "to test the law of a claim, not the facts which support it." Niece v. Sears, Roebuck & Co., 293 F.Supp. 792, 794 (N.D.Okl.1968); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1356 (1969). The court's attention, therefore, is to be directed toward determining whether the bare allegations of the complaint constitute a statement of a claim under V.R.C.P. 8(a). 5 C. Wright & A. Miller, supra, § 1357, at 594.

V.R.C.P. 8 provides:

(a) A pleading which sets forth a claim for relief ... shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled....

....

(e)(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.

(f) All pleadings shall be so construed as to do...