Long v. Long

• Decision Date: 23 July 1992
• Docket Number: No. 90-447,90-447
• Citation: 136 N.H. 25,611 A.2d 620
• Parties: Francis LONG v. Helen LONG, Joseph Rubino, and C. Jeanne MacLennan.
• Court: New Hampshire Supreme Court

Page 620

611 A.2d 620

136 N.H. 25

Francis LONG v. Helen LONG, Joseph Rubino, and C. Jeanne MacLennan.

No. 90-447.

Supreme Court of New Hampshire.

July 23, 1992.

Shaheen, Cappiello, Stein & Gordon, Dover and Concord (Peter G. Callaghan, on the brief and orally), for plaintiff.

Elizabeth Cazden, on the defendants' joint brief, Manchester, and Law Offices of Florence K. Parker, Concord (Florence K. Parker, orally, for all defendants), for defendant Helen Long.

Rinden Professional Ass'n, Concord (Paul A. Rinden, on the defendants' joint brief, and orally, for all defendants), for defendant Joseph K. Rubino.

Barto and Puffer P.A., Concord (Mark H. Puffer, on the defendants' joint brief), for defendant C. Jeanne MacLennan.

BATCHELDER, Justice.

The plaintiff, Francis Long, appeals the Superior Court's (Dickson, J.) decision granting the defendants' motion for summary judgment in the plaintiff's action in tort for abuse of process. The defendants are Helen Long, the plaintiff's ex-wife; Joseph Rubino, Helen's son; and C. Jeanne MacLennan. The plaintiff objects to the granting of summary judgment on both procedural and substantive grounds. We find no procedural error, and hold that, as a matter of law, no process was abused. We therefore affirm.

The facts material to our decision are as follows. During the plaintiff's and Helen's divorce suit in 1988, the superior court ordered the plaintiff to pay alimony "upon verified notification by [Helen] that she is moving into an apartment." Soon afterwards, she requested alimony, supporting her claim for payment with a signed apartment lease which she now admits she fabricated. The plaintiff suspected deception and refused to pay. Ms. Long filed a motion for contempt, but withdrew it one week later, apparently after the plaintiff hired a private investigator and exposed the ruse. The superior court never took any action on the motion.

The plaintiff, alleging that Rubino and MacLennan helped Ms. Long forge the bogus lease, sued all three defendants for fraud. The defendants responded by filing individual motions for summary judgment, accompanied by supporting affidavits. The plaintiff objected, filed counter-affidavits, and moved to add a second count to his writ, alleging abuse of process based on Ms. Long's filing of the motion for contempt. The court allowed the plaintiff's amendment at a hearing and heard arguments on the motions for summary judgment. Each defendant orally requested summary judgment on both counts of plaintiff's amended writ, but none filed additional supporting affidavits. The court granted the defendants' motions for summary judgment, stating that "[n]o genuine issues of material fact exist as to detrimental reliance or as to damages ... [,] essential elements in maintaining Counts I and II." The plaintiff appealed only the lower court's summary judgment on Count II, the abuse of process claim.

Before this court, he argues first that none of the parties moved for summary judgment on the abuse of process claim and, therefore, the superior court lacked authority to grant summary judgment on that count. The question whether a court may grant summary judgment sua sponte is not before us, however, because the transcript of the parties' hearing plainly reveals each defendant orally moving for summary judgment on both counts. RSA 491:8-a, governing summary judgments, does not condition invocation of the procedure upon written motions. Cf. R. Wiebusch, 5 New Hampshire Practice, Civil Practice and Procedure § 1036, at 32 (1984) (party may move for summary judgment at any time after defendant has filed a general appearance, even during trial).

The plaintiff also contends that summary judgment was inappropriate because the defendants failed to file affidavits supporting their oral motions for summary judgment on the abuse of process claim. See RSA 491:8-a, II. Again, we find the plaintiff's reading of RSA 491:8-a too restrictive.

"A party ... need not attach a different affidavit to every summary judgment motion it files in a given case; it is sufficient for the purpose of RSA 491:8-a, II that such a motion is adequately supported by an affidavit already on file with the court in that case, irrespective of which party filed it, as 'summary judgment is to be granted or denied based on the entire record before the court,' Brown v. John Hancock Mut. Life Ins. Co., 131 N.H. 485, 491, 558 A.2d 822, 825 (1989); see RSA 491:8-a, III."

Pella Windows and Doors v. St. Mary's Bank, 133 N.H. 582, 584, 580 A.2d 730, 732 (1990).

The plaintiff alleged no facts that could entitle him, as a matter of law, to judgment on the abuse of process claim. Moreover, the affidavits already filed by the defendants on the fraud count relate to the factual scenario--the fabrication of the apartment lease--that forms the basis of the plaintiff's abuse of process claim. Accordingly, we hold that these affidavits adequately supported the defendants' motions for summary judgment on the abuse of process count as well as the fraud count. See id. The defendants were not required to file additional affidavits.

The plaintiff next asserts that the superior court erred in holding detrimental reliance and damages to be essential elements of an abuse of process claim. Assuming arguendo that the court's reasoning was faulty, we may nonetheless affirm the result if a valid alternative ground for it exists. See Catalano v. Town of Windham, 133 N.H. 504, 508, 578 A.2d 858, 861 (1990). We hold that the defendants were entitled to summary judgment as a matter of law because the plaintiff failed to allege any facts that could support an abuse of process claim. Because a valid alternative ground exists for the superior court's ruling, no claim of error in the court's reasoning can justify reversal.

Finally, we reach the plaintiff's claim that, because a genuine issue of material fact existed for trial, and because the defendants were not entitled to judgment as a matter of law, the superior court erroneously granted summary judgment. See RSA 491:8-a, III. The defendants respond that the plaintiff failed to present a triable issue of fact on any of the elements of abuse of process and that therefore summary judgment was proper.

An examination of our earlier cases reveals that this court has never been required to precisely define the tort of abuse of process. Cf. McGranahan v. Dahar, 119 N.H. 758, 768, 771-72, 408 A.2d 121, 128, 129-30 (1979) (setting forth some, but not all, elements of abuse of process; elements of "wrongful civil proceedings" outlined); Amabello v. Colonial Motors, 117 N.H. 556, 558, 374 A.2d 1182, 1183-84 (1977) (discussing definition of "process," but not delineating other elements of tort); Friel v. Plumer, 69 N.H. 498, 499, 43 A. 618, 618-19 (1898) (discussing "malicious abuse of process," but setting forth few elements of tort). We adopt the definition of the tort given in section 682 of the Restatement (Second) of Torts and accepted by both the plaintiff and the defendants: "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." Restatement (Second) of Torts § 682, at 474 (1977); cf. Weiss-Lawrence, Inc. v. James Talcott, Inc., 399 F.Supp. 84, 92 (D.N.H.) (definition of tort found in § 682 of tentative draft of Restatement (Second) of Torts "substantially in line with New Hampshire law"), aff'd 527 F.2d 643 (1st Cir.1975). A party claiming abuse of process must prove the following elements: (1) a person used (2) legal process, whether criminal or civil, (3) against the party (4) primarily to accomplish a purpose for which it is not designed and (5) caused harm to the party (6) by the abuse of process.

Comment a to section 682 explains the purpose of this cause of action.

"The gravamen of the misconduct for which the liability stated in this Section is imposed is not the wrongful procurement of legal process or the wrongful initiation of criminal or civil proceedings; it is the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to accomplish. Therefore, it is immaterial that the process was properly issued, that it was obtained in the course of proceedings that were brought with probable cause and for a proper purpose, or even that the proceedings terminated in favor of the person instituting or initiating them. The subsequent misuse of the process, though properly obtained, constitutes the misconduct for which the liability is imposed under the rule stated in this Section."

Restatement (Second) of Torts § 682 comment a at 474. The tort of abuse of process apparently developed over time to compensate plaintiffs unable to win redress under the limited scope of a malicious prosecution action. See W. Prosser, Law of Torts § 121, at 897 (5th ed. 1984). Thus, "[a]n action for abuse of process differs from an action for malicious prosecution in that the latter is concerned with maliciously causing process to issue, while the former is concerned with the improper use of process after it has been issued." 1 Am.Jur.2d Abuse of Process § 2, at 250 (1962); see also Hogan v. Robert H. Irwin Motors, Inc., 121 N.H. 737, 739, 433 A.2d 1322, 1324 (1981) (malicious prosecution); Robinson v. Fimbel Door Co., 113 N.H. 348, 350, 306 A.2d 768, 769 (1973) (same).

As broad as the abuse of process action can be, here we find that the plaintiff's writ fails to allege a basic element of the tort, that "process" was involved. In Amabello v. Colonial Motors, we noted that "[d]efinitions of the tort consistently describe 'process...