Nagy v. McBurney

Decision Date11 October 1978
Docket NumberNo. 73-6-A,73-6-A
Citation392 A.2d 365,120 R.I. 925
PartiesSteven NAGY v. John F. McBURNEY. ppeal.
CourtRhode Island Supreme Court
OPINION

JOSLIN, Justice.

In 1963 and 1964, John F. McBurney, an attorney and the defendant in this case, instituted five civil collection suits against Steven Nagy, the plaintiff herein. After those suits had finally terminated in his favor, Nagy commenced this action of trespass on the case in the Superior Court in 1965. The common-law rules of pleading then prevailed in this state, and Nagy's declaration contained ten counts of abuse of process and five counts of malicious prosecution, all grounded on McBurney's five collection suits. Nagy alleged that those suits had been instituted maliciously and without probable cause. McBurney pleaded the general issue and eventually the case was tried to a jury. After the evidence was in and both sides had rested, the trial justice granted McBurney's motion for a directed verdict on the malicious prosecution counts, denied both McBurney's and Nagy's motions for directed verdicts on the abuse of process counts, and submitted the case to the jury with instructions to return a separate verdict, with respect to each of the five collection suits, on whether McBurney's employment of legal process constituted an abuse of process. The jury returned a verdict for McBurney as to each suit. Nagy appealed, assigning as errors the granting of McBurney's motions for directed verdicts on the malicious prosecution counts, the denial of his own motions for directed verdicts on two of the abuse of process counts, and certain evidentiary rulings.

In the early 1960's McBurney represented Nagy in a legal proceeding in which Nagy was defaulted. Thereafter, in April 1962, Nagy complained to the Rhode Island Bar Association that McBurney had permitted the case to be defaulted and had done nothing to defend him. That complaint was ultimately rejected by the committee of this court having jurisdiction over complaints against attorneys.

While that complaint was pending, or shortly after its rejection, McBurney, in a telephone conversation with Nagy, expressed displeasure at Nagy's having instituted the disciplinary proceedings and then allegedly said, "You dirty son-of-a-bitch, you took me before the Bar Association, I'm going to attach your pay anytime I want, for any amount of money that I want because no one can tell me how much money I should charge," and "If you're a man * * * you'd come down the office and I'll kick the hell out of you."

Shortly thereafter, McBurney instituted a collection suit against Nagy and at various times during the next 2 years followed it with four others. Three were to recover for legal services allegedly rendered by McBurney for Nagy, and two were commenced on behalf of a physician for services rendered for Nagy's wife and for a third person. Each suit was commenced by a writ of attachment garnishing Nagy's wages and in three of those suits a total of ten writs of mesne process were issued, each of which also attached Nagy's wages.

In considering the several motions for directed verdicts the trial justice was not permitted to weigh the evidence or to pass on the credibility of the witnesses, but was required to view the evidence and the inferences reasonably deducible therefrom in the light most favorable to the adverse party, and to submit the case to the jury for its resolution if, upon so viewing the evidence, it appeared that there were material issues upon which reasonable persons might differ. Evans v. Liguori, R.I., 374 A.2d 774, 776 (1977); Marshall v. Tomaselli, R.I., 372 A.2d 1280, 1283 (1977); Powers v. Carvalho, 117 R.I. 519, 524, 368 A.2d 1242, 1246 (1977).

The Malicious Prosecution Counts

The tort of malicious prosecution, or malicious use of process as it is sometimes called when the original suit giving rise to the action is civil rather than criminal in nature, has long been recognized in this state. It may be defined as a suit for damages resulting from a prior criminal or civil 1 legal proceeding that was instituted maliciously and without probable cause, and that terminated unsuccessfully for the plaintiff therein. Powers v. Carvalho, 117 R.I. 519, 526, 368 A.2d 1242, 1246 (1977); Lauzon v. Charroux, 18 R.I. 467, 470, 28 A. 975, 976 (1894).

Each of those basic elements has acquired a gloss from the cases and consequently we briefly amplify our definition. While the element of malice has been variously defined, it is generally held that it may be established by a showing that the person initiating the original action was actuated by a primary motive of ill will or hostility, or did not believe that he would succeed in that action. Gore v. Gorman's Inc., 143 F.Supp. 9, 14 (W.D.Mo.1956); Albertson v. Raboff, 46 Cal.2d 375, 383, 295 P.2d 405, 410 (1956); Wills v. Noyes, 29 Mass. (12 Pick.) 324, 328 (1832); Prosser, Torts § 120 at 855 (4th ed. 1971). Proof of actual ill will, however, is not a sine qua non, for a hostile motive may also be inferred from a showing of a lack of probable cause, DeFusco v. Brophy, 112 R.I. 461, 463 n. 1, 311 A.2d 286, 287 n. 1 (1973); Quinlan v. Breslin, 61 R.I. 327, 331, 200 A. 989, 991 (1938); Beaumier v. Provensal, 58 R.I. 472, 476, 193 A. 521, 522-23 (1937); Prosser, Supra at 855, but may not be drawn from the "mere failure" of the original action. DeSimone v. Parillo, 87 R.I. 95, 98-99, 139 A.2d 81, 83 (1958).

Proof of malice alone, however, even in the extreme, will not suffice to establish a case of malicious prosecution unless accompanied by a showing that the original action was instituted without probable cause. Probable cause is defined as "the existence of a state of facts sufficient to cause an ordinarily careful and prudent person to believe the accused guilty." Quinlan v. Breslin, 61 R.I. at 330, 200 A. at 991 (1938). That definition, to be sure, is taken from a case where the original action was criminal in nature, and the term may carry a somewhat different connotation where the action was civil, rather than criminal. In general terms, however, as Dean Prosser explains, a person has probable cause for bringing a civil suit if he reasonably believes that he has a good chance of establishing it to the satisfaction of the court or the jury. Prosser, Supra at 854. The Second Restatement's more specific definition is also helpful:

" § 675. Existence of Probable Cause

One who takes an active part in the initiation, continuation or procurement of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either

(a) correctly or reasonably believes that under those facts the claim may be valid under the applicable law, or

(b) believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information. " Restatement (Second) of Torts § 675 (1977).

Moreover, this definition is subject to the qualification that a judicial determination by a court of original jurisdiction in favor of the person who initiated the civil proceedings is generally held to be conclusive evidence of probable cause, even though that determination is ultimately reversed on appeal, unless it is shown to have been obtained by fraud or other imposition upon the court. Hull v. Sprague, 23 R.I. 188, 188-89, 49 A. 697, 697 (1901); Giusti v. Del Papa, 19 R.I. 338, 339-40, 33 A. 525, 525-26 (1896); Welch v. Boston & Providence Railroad, 14 R.I. 609, 610 (1884); Prosser, Supra at 855; Restatement (Second) of Torts § 675, comments b, i (1977). The rationale for drawing the inference of conclusiveness appears to be that a competent tribunal is not likely to render a decision for a party who lacked probable cause for initiating the action.

Finally, a plaintiff, in order to maintain an action for malicious prosecution, must show that the original proceeding against him finally terminated in his favor. An exception to this requirement of a favorable final termination that is applicable in this as well as in a majority of other courts is that a termination based on a compromise or settlement is not deemed favorable. Moreau v. Picard, 54 R.I. 93, 95, 169 A. 920, 921 (1934); Prosser, Supra at 853-54.

Whether the trial justice erred in directing verdicts for McBurney on the five malicious prosecution counts depends, then, on whether the evidence viewed in the required light, Supra at p. 3, raised factual issues as to the existence of the essential elements upon which reasonable persons might differ.

Whether the jury could have found malice, that is, that McBurney was actuated by ill will or hostility in commencing the original actions, poses no problem. Nagy testified that following his complaint to the bar association, McBurney called him a "dirty son-of-a-bitch" and threatened to attach his pay for any amount of money. That testimony, notwithstanding McBurney's denial that he bore Nagy any malice, when considered together with the almost immediate commencement of one collection suit, the subsequent initiation of four others, the issuance of multiple writs of mesne process, and other evidence which, being cumulative, need not be recited, created a basis for a reasonable inference that each suit was maliciously instituted.

Neither need we dwell at length on the requirement that the original actions must finally have terminated in Nagy's favor. Three of the five suits were decided in Nagy's favor by the District Court where they originated and were not appealed. The other two, although decided at the District Court level for McBurney, were...

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