Nienstedt v. Wetzel, 1
| Decision Date | 08 July 1982 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 133 Ariz. 348,651 P.2d 876 |
| Parties | , 33 A.L.R.4th 635 Philip R. NIENSTEDT and Barbara Nienstedt, husband and wife, Plaintiffs- Appellees, v. Manfred R. WETZEL and Nancy Wetzel, husband and wife, Defendants-Appellants. 5106. |
| Court | Arizona Court of Appeals |
Black, Robertshaw, Frederick, Copple & Wright, P. C. by Jon R. Pozgay, Phoenix, for defendants-appellants.
Appellees, Philip R. and Barbara Nienstedt, husband and wife, commenced this action in Maricopa County Superior Court to recover damages allegedly sustained as a result of abuse of process by appellants Manfred R. and Nancy Wetzel, husband and wife, in prior litigation between the parties. A jury verdict awarded the Nienstedts $7,350 as compensatory damages and $50,000 as punitive damages. The Wetzels have appealed from the judgment entered on that verdict.
Although several issues have been raised on appeal, we will first address appellants' contentions concerning the applicability of abuse of process concepts to the claim involved here, as well as the contention that the evidence was insufficient to justify submission of the claim to the jury.
Viewing the evidence in a light most favorable to supporting the judgment, we find that the following facts were established at trial.
In February 1975, Manfred Wetzel, then an attorney licensed to practice law in Arizona, filed a complaint against the Nienstedts in Maricopa County Cause No. C-307988 for breach of an alleged oral contract, fraud and defamation. 1 Appellants and the Nienstedts were neighbors when this complaint was filed and the lawsuit involved an alleged oral contract pursuant to which the parties were to share the cost of building a retaining wall on appellants' property adjacent to the Nienstedts' property. The Nienstedts' liability under the alleged oral contract would have amounted to $780.69. Appellant Manfred Wetzel had purchased the home prior to his marriage to Nancy Wetzel and brought suit solely in his name. The Nienstedts answered the complaint and counterclaimed against both of the appellants on the assumption that Nancy Wetzel, even though not named as a plaintiff in the complaint, might have a legal interest in the home. In his capacity as the Wetzels' attorney, Manfred Wetzel thereafter filed a pleading entitled a "Counter-counterclaim" on behalf of his wife. This pleading was essentially a reiteration of the original complaint naming Nancy Wetzel as the "Counter-counterclaimant."
On May 13, 1975, the Nienstedts filed a motion to dismiss and strike the counter-counterclaim as an improper pleading. On January 29, 1976, the Nienstedts not having filed an answer or a reply, appellants entered their default on the counter-counterclaim. On February 27, 1976, a default hearing before a superior court judge was conducted at which time the default was set aside and the court set April 2, 1976, as the time for hearing the Nienstedts' motion to dismiss and strike, as well as other pending motions. On that date the court, by minute entry order, denied the motion to dismiss and strike, and stated that following completion of discovery the court would consider realignment of the parties.
On April 27, 1976, appellants entered another default against the Nienstedts on the counter-counterclaim and noticed a default hearing before a court commissioner for May 27, 1976. The Nienstedts filed a motion to quash the default hearing, and at the hearing on this motion the trial court vacated the default hearing and realigned the parties denominating Nancy Wetzel as a plaintiff. The court further joined the counter-counterclaim with the complaint and held that the answer previously filed by the Nienstedts would be considered as an answer to the counter-counterclaim and that the counterclaim previously filed by the Nienstedts would be considered as a counterclaim against both appellants.
Numerous discovery motions were filed by both parties. At one point the trial court imposed sanctions for what it described as obstructionist activities of appellants.
In August 1976, one day prior to the scheduled trial, appellant Manfred Wetzel moved for a continuance. The motion stated that he was committed to represent a client at another trial scheduled on the same day on a matter having a lower cause number. In response, the Nienstedts filed an affidavit stating that appellant Manfred Wetzel did not appear as the counsel of record on that particular case. However, appellant Manfred Wetzel filed an uncontroverted affidavit stating that although his brother's name appeared as the attorney of record, he and his brother had associated on the case and he was in fact trying the case.
In response to one of the Nienstedts' motions to produce, appellants filed a motion for a protective order to prevent disclosure of two tape recordings allegedly containing conversations of the Nienstedts which Manfred Wetzel had filed with the court in a sealed envelope. Manfred Wetzel had indicated to the Nienstedts that these tapes proved the existence of an oral contract, and if played at trial, could be used to prove perjury by the Nienstedts. He represented to the court that these tape recordings were to be used for impeachment purposes and also were subject to protection because they constituted his work product as an attorney inasmuch as the questions on the tape "were structured" by him. He further requested that the court review the tapes in chambers and determine whether they were privileged as his work product. At the hearing on appellants' motion for the protective order appellants were represented by counsel other than Manfred Wetzel. Following the court's denial of his motion for a protective order, Manfred Wetzel admitted to the court that the tapes were blank, contrary to his prior express affirmation to the court that the tapes contained questions structured by him. The court then found that appellant Manfred Wetzel had deceived the court, had willfully and intentionally failed to comply with the Nienstedts' motion for production, and had filed motions for enlargement of time and for a protective order which were a sham and unjustified. Consequently, the court dismissed appellants' complaint as a sanction pursuant to Rule 37, Arizona Rules of Civil Procedure, 16 A.R.S. The court further awarded the Nienstedts $500 in attorney's fees incurred on their motion to produce and their response to appellants' motion for protective order, plus their total court costs incurred in that action.
The Nienstedts then commenced this litigation against appellants claiming that abuse of process in the prior litigation had occurred when appellants: sought recovery of punitive damages in a contract action; filed a motion to continue by reason of another pending action in which appellant Manfred Wetzel did not appear as attorney of record; entered default on an improper pleading; entered a second default and scheduled a hearing before a court commissioner when the appellants knew that the trial judge had set aside an identical default and contemplated realignment of the parties; and failed to act in good faith in discovery proceedings. The Nienstedts contended that in engaging in the aforementioned procedures, the primary goal of the appellants was to utilize processes of the court to harass the Nienstedts by purposely subjecting them to excessive legal fees in defending against appellants' claims. In this connection, there was evidence that during discovery proceedings appellant Manfred Wetzel told the Nienstedts that through this case he was going to make the Nienstedts' attorney a rich man; that he (Wetzel) could break people financially (impliedly through subjecting them to legal fees and expenses); and, that because he was a lawyer representing himself it would not be necessary for him to incur similar fees and expenses.
Against this factual background we now address the legal requirements necessary for the establishment of an abuse of process claim. First, we note that through developing case law the word "process" as used in the tort "abuse of process" is not restricted to the narrow sense of that term. 2 Rather, it has been interpreted broadly, and encompasses the entire range of procedures incident to the litigation process. Barquis v. Merchants Collection Association of Oakland, Inc., 7 Cal.3d 94, 496 P.2d 817, 101 Cal.Rptr. 745 (1972); Thornton v. Rhoden, 245 Cal.App.2d 80, 53 Cal.Rptr. 706 (1966); Younger v. Solomon, 38 Cal.App.3d 289, 113 Cal.Rptr. 113 (1974); Foothill Industrial Bank v. Mikkelson, 623 P.2d 748 (Wyo.1981). Thus it has been held that a request for admissions will, under appropriate circumstances, support a complaint for abuse of process, Twyford v. Twyford, 63 Cal.App.3d 916, 134 Cal.Rptr. 145 (1976). See also Hopper v. Drysdale, 524 F.Supp. 1039 (D.Mont.1981) (). As applied to this case, we therefore consider as "processes" of the court for abuse of process purposes, the noticing of depositions, the entry of defaults, and the utilization of various motions such as motions to compel production, for protective orders, for change of judge, for sanctions and for continuances.
Concerning whether the utilization of any of these processes singly or collectively constitutes an abuse of the court's processes, the Restatement (Second) of Torts (1977), states the general principle as follows:
Under this view, to establish a claim for abuse of process there must be a...
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