Morn v. City of Phoenix, 2

• Decision Date: 16 December 1986
• Docket Number: CA-CV,No. 2,2
• Citation: 730 P.2d 873,152 Ariz. 164
• Parties: Diane MORN, individually and as guardian ad litem for Rebecca Morn, Daniel Morn, Theresa Morn and Kristyn Morn, minors; Georgia Joyce Collins, individually and as guardian ad litem for Jolonda Joyce Collins, Gordon Fletcher and Ronoska Fletcher, minors, Plaintiffs/Appellants, v. CITY OF PHOENIX, a body politic of the State of Arizona; Rocky Franklin and Jane Doe Franklin, his wife; David Bower and Jane Doe Bower, his wife, Defendants/Appellees. 5871.
• Court: Arizona Court of Appeals

Page 873

730 P.2d 873

152 Ariz. 164

Diane MORN, individually and as guardian ad litem for Rebecca Morn, Daniel Morn, Theresa Morn and Kristyn Morn, minors; Georgia Joyce Collins, individually and as guardian ad litem for Jolonda Joyce Collins, Gordon Fletcher and Ronoska Fletcher, minors, Plaintiffs/Appellants, v. CITY OF PHOENIX, a body politic of the State of Arizona; Rocky Franklin and Jane Doe Franklin, his wife; David Bower and Jane Doe Bower, his wife, Defendants/Appellees.

No. 2 CA-CV 5871.

Court of Appeals of Arizona Division 2, Department B.

Dec. 16, 1986.

[152 Ariz. 165] Owens, Rybarsyk & Nussbaum, P.C. by Michael A. Carragher, Scottsdale, for plaintiffs/appellants.

Jones, Skelton & Hochuli by William R. Jones, Jr. and Bruce D. Crawford, Phoenix, for defendants/appellees.

OPINION

LACAGNINA, Judge.

This appeal is taken from a jury verdict and damage award in favor of two City of Phoenix police officers arising out of their counterclaim alleging abuse of process. We believe the trial court erred in denying a motion for directed verdict at the close of the counterclaimant's case and a motion for judgment notwithstanding the verdict, and we reverse.

Appellant Diane Morn ¹ brought an action individually and as guardian ad litem for her four children against the City of Phoenix and two police officers for conversion, assault, intentional infliction of emotional distress, false imprisonment and defamation, all arising out of a November 6 1982 search of the Morn residence. The search was conducted pursuant to a warrant issued in a criminal investigation of Morn's husband by the City of Phoenix and the State of Arizona. The defendants answered denying the allegations of the complaint and counterclaimed alleging malicious prosecution and/or abuse of civil process. The joint pre-trial statement identified the issues for trial as Morn's claims of assault, false arrest and/or imprisonment and defamation, and the police officers' counterclaims for abuse of process. The jury returned a verdict in favor of the police officers, awarding them $5,000 each as compensatory damages and $10,000 each as punitive damages. The court treated Morn's motion for judgment n.o.v. on the counterclaim as a motion for new trial and denied it.

Morn makes two arguments on appeal. First, she argues the trial court erred in permitting the police officers to pursue the counterclaim for abuse of process because the counterclaim was fatally defective in that it did not contain sufficient specific facts to give her notice of the basis for the claim. Second, she contends that the trial court should have directed a verdict in her favor or granted her motion for judgment n.o.v.

We believe the abuse of process counterclaim met the requirements of Rule 8(a), Ariz.R.Civ.P., 16 A.R.S. As a notice pleading state, Arizona requires a statement of the ground upon which the court's jurisdiction depends, a statement of the claim showing that the pleader is entitled to relief and a demand for judgment. The counterclaim in this case sets forth the elements of the tort and alleged facts to support the claim. See, e.g., Verde Water and Power Co. v. Salt River Valley Water Users Association, 22 Ariz. 305, 197 P. 227, cert. denied, 257 U.S. 643, 42 S.Ct. 53, 66 L.Ed. 412 (1921).

Morn's second argument, that the trial court should have granted a directed verdict in her favor or judgment n.o.v., is more persuasive. The basis of the officers' counterclaim was an allegation that Morn had attempted to use civil process to achieve an objective which had absolutely no relation to the claims framed in her complaint. The Restatement (Second) of Torts § 682 (1977) sets forth the general principle of the tort of abuse of process and states that liability will be imposed upon one who uses the legal process against another "primarily to accomplish a purpose for which it is not designed." Division One of this court has noted that Arizona case law, although not extensive, is in accord with the Restatement view. Nienstedt v. Wetzel, 133 Ariz. 348, 651 P.2d 876 (App.1982). The essential elements of the tort include a wilful act in the use of judicial process for an ulterior purpose not proper in the regular conduct of the proceedings. The court in Nienstedt cites the Restatement and its comments in stating that although the process "may have been properly obtained or issued ... [i]t is the subsequent misuse which constitutes the misconduct for which liability is imposed." Id. at 353, 651 P.2d at 881. However, the court in Neinstedt recognized that there is no action for abuse of process when the defendant uses the process for its authorized or intended purpose, "even though with bad intentions," or if "there is an incidental motive of spite." Id.

Two previous decisions of this court, Bird v. Rothman, 128 Ariz. 599, 627 P.2d 1097, cert. denied, 454 U.S. 865, 102 S.Ct. 327, 70 L.Ed.2d 166 (App.1981), and Rondelli v. County of Pima, 120 Ariz. 483, 586 P.2d 1295 (App.1978), help to explain the nature of the tort. In Bird, the appellant's abuse of process claim was founded on an allegation that one party brought another into the underlying lawsuit in order to force a settlement. This court, citing Rondelli and Joseph v. Markovitz, 27 Ariz.App. 122, 551 P.2d 571 (1976), found that there was no evidence of subsequent misuse of process after process lawfully issued, and "[a]n ulterior purpose alone cannot constitute abuse of process. There was no proof of an improper use of judicial process here, as the purpose of settlement is includable in the goals of proper process." 128 Ariz. [152 Ariz. 167] at 602, 627 P.2d at 2000. In Rondelli, this court again stressed the elements of misuse of process justified in itself for an end other than for its intended purpose. "It is an act done under the authority of the court for the purpose of perpetrating an injustice, i.e., a perversion of the judicial process to the accomplishment of an improper purpose." 120 Ariz. at 489, 586 P.2d at 1301, citing Younger v. Soloman, 38 Cal.App.3d 289, 297, 113 Cal.Rptr. 113, 118 (1974). In Rondelli we found that obtaining a bench warrant and later arresting Rondelli pursuant to the warrant did not show an ulterior purpose. In addition, we found no evidence that the City or county "acted wilfully to procure [Rondelli's] arrest for a corporate debt he was not liable for" but that the only reasonable inference was that a mistake was made. Therefore, the action did not lie. 120 Ariz. at 489, 586 P.2d at 1301.

In this case, the officers did not produce any evidence that the process was used by Morn to obtain a collateral advantage or any form of extortion. Rather, the evidence showed that the legal process was used primarily to seek redress for wrongs believed by Morn to have occurred along with the incidental purpose of, perhaps, "getting even" for these alleged wrongs.

The police officers devote a substantial portion of their answering brief arguing that their counterclaim alleged that Morn had used the litigation not "to address any perceived grievances resulting from the search, but rather as a form of extortion." According to the officers, Morn knew it was not just the filing of the complaint but its continuation which was the basis for the counterclaim. As counsel for the police officers explained to the court at a bench conference on July 8, 1985:

The basis of the counterclaim is that the investigation was ongoing. Mr. Morn knew it. Mrs. Morn knew it. They filed the...