Mummery v. Polk
| Decision Date | 10 March 1989 |
| Docket Number | No. 88-244,88-244 |
| Citation | 770 P.2d 241 |
| Parties | Jeffrey MUMMERY, Appellant (Plaintiff), v. Louis F. POLK, Jr., and B.P., Inc., a Wyoming corporation, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
P. Richard Meyer and Robert N. Williams, Jackson, for appellant.
Tom C. Toner of Redle, Yonkee & Toner, Sheridan, for appellees.
Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.
This is an appeal from an order granting appellees' motion to dismiss appellant's causes of action alleging abuse of process and intentional infliction of emotional distress. The action was dismissed for failure to state claims upon which relief can be granted.
We affirm.
Appellant's issues are:
I.
II.
Appellant Jeffrey Mummery filed his complaint on July 10, 1986, against appellees Louis F. Polk, Jr. and B.P., Inc., a Wyoming corporation, alleging in substance that:
1. Polk formed B.P., Inc. for the sole purpose of purchasing an outstanding judgment against Mummery;
2. During the time Mummery's deposition was being taken in an unrelated lawsuit between Mummery and Polk, B.P., Inc. caused execution to be levied upon Mummery and his stock in another corporation which is also the subject of still another lawsuit between Mummery and Polk; and
3. Appellees' actions were improper and constituted the torts of abuse of process and outrage.
Appellees filed a motion to dismiss on July 28, 1986, pursuant to W.R.C.P. 12(b)(6), and Mummery responded with an affidavit by his attorney indicating that he had talked to another attorney who in turn had "heard one of the attorneys for Mr. Polk say words to the effect that Mr. Polk should purchase the judgment against Mr. Mummery for the purpose of putting pressure upon Mr. Mummery." Appellees requested that their motion to dismiss be converted to a motion for summary judgment When considering a dismissal under W.R.C.P. 12(b)(6) for failure to state claims upon which relief can be granted, the court must view the allegations in the complaint in the light most favorable to the plaintiff, accepting as true all facts in the complaint which are well pleaded. Champion Well Service, Inc. v. NL Industries, 769 P.2d 382 (Wyo.1989); Carbon County School District No. 2 v. Wyoming State Hospital, 680 P.2d 773 (Wyo.1984); Moxley v. Laramie Builders, Inc., 600 P.2d 733 (Wyo.1979). This liberal rule of pleading, however, does not go so far as to excuse the omission of that which is material and necessary to entitle one to relief. Sump v. City of Sheridan, 358 P.2d 637, 642 (Wyo.1961). The complaint must allege "all facts essential to constitute a legal cause of action." Harris v. Grizzle, 599 P.2d 580, 583 (Wyo.1979). A motion to dismiss, even though sparingly granted, is the proper method for testing the legal sufficiency of the allegations and will be sustained when the complaint shows on its face that the plaintiff is not entitled to relief. Paravecchio v. Memorial Hospital of Laramie County, 742 P.2d 1276 (Wyo.1987), cert. denied 485 U.S. 915, 108 S.Ct. 1088, 99 L.Ed.2d 249 (1988); Mostert v. CBL & Associates, 741 P.2d 1090 (Wyo.1987). With these standards in mind, we now address the issues raised by Mummery.
but the court declined, and only the complaint was considered in granting the motion to dismiss. An order was entered on July 18, 1988, and it is from this order that this appeal is taken.
In Bosler v. Shuck, 714 P.2d 1231, 1234-35 (Wyo.1986), and Toltec Watershed Improvement District v. Johnston, 717 P.2d 808, 810-12 (Wyo.1986), this Court clearly defined the essential elements necessary to state a cause of action for an abuse of process: (1) an ulterior purpose; and (2) a willful act in the use of the process which is not proper in the regular conduct of the legal proceeding. We also stated in Toltec Watershed Improvement District that there can be no action for abuse of process for merely carrying out the process and that the motive for doing such is immaterial and irrelevant. Id. at 811. We agree with the...
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