Pow-Bel Construction Corporation v. Gondek

• Decision Date: 05 November 1971
• Docket Number: No. 42715,POW-BEL,42715
• Citation: 192 N.W.2d 812,291 Minn. 386
• Court: Minnesota Supreme Court
• Parties: CONSTRUCTION CORPORATION, Respondent, v. Joseph R. GONDEK, Appellant.

Page 812

192 N.W.2d 812

291 Minn. 386

POW-BEL CONSTRUCTION CORPORATION, Respondent, v. Joseph R. GONDEK, Appellant.

No. 42715.

Supreme Court of Minnesota.

Nov. 5, 1971.

Rehearing Denied Jan. 3, 1972.

Syllabus by the Court

1. The essential elements of an action for abuse of process are (1) the existence of an ulterior purpose, and (2) the act of using the process to accomplish a result not within the scope of the proceeding in which it is issued, whether such result might otherwise be lawfully obtained, or not. The gist of the action is the misuse or misapplication of legal process to accomplish an end other than that which it was designed to accomplish.

2. A review of the evidence sustains a finding that appellant failed in his burden of proving the essential elements of abuse of process.

3. Out-of-court admissions of fact by an attorney, written or oral, which have Affirmed.

not been made for the specific judicial purpose of dispensing with proof or for influencing the procedure in the case are inadmissible into evidence against his client unless it appears that (aside from his mere employment in connection with pending or prospective litigation) the attorney had some special authority to act for his client and that such admission properly related to such special authorization. Whether the attorney has been vested with such power is measured by the same tests of express or implied authority as would be applied to other agents.

William Merlin, LaMar T. Piper, and Daniel A. Utter, Minneapolis, for appellant.

Robert C. Gove, Minneapolis, for respondent.

Heard before KNUTSON, C.J., and MURPHY, OTIS, ROGOSHESKE, and HACHEY, JJ.

OPINION

RONALD E. HACHEY, Justice. ^*

This is an appeal from an order of the trial court granting a motion for judgment notwithstanding the verdict.

On August 7, 1966, appellant, Joseph R. Gondek, and respondent, Pow-Bel Construction Corporation, signed a purchase agreement for certain real estate in St. Louis Park, Minnesota. As part of the agreement, respondent seller agreed to 'pay all existing special assessments and all closing costs for this transaction.' A mortgage commitment was obtained from Farmers and Mechanics Savings Bank. The purchase price of the home was $16,300. The bank agreed to a mortgage of $15,500 and appellant buyer was to provide $800 in cash. On the day of closing, September 19, 1966, the bank requested that $300 be withheld for the payment of certain assessments. Appellant did not have the requested additional $300 and indicated that he could not go through with the deal if he had to pay the additional amount. The deal was closed with the seller respondent allowing the bank to withhold the $300 from the amount of the loan that otherwise would have been paid to respondent.

Some time after the closing, respondent's attorney asked appellant to authorize the release of the $300 to respondent. Appellant refused to do so. Shortly thereafter, respondent commenced this action and served a garnishment upon appellant and his employer, Minneapolis Board of Education, which was made a part of appellant's permanent personnel record.

Shortly after the commencement of the action, attorneys for the parties had a telephone discussion relative to the possibility of naming the bank a party to the lawsuit, but respondent's attorney stated that he did not want to antagonize the bank. Appellant paid his attorney $35 to $40 to get the garnishment released. The garnishment disclosure indicated that $38 was held for the pay period ending October 21, 1966. Appellant then answered the complaint; counterclaimed against respondent for slander on credit and abuse of process, asking damages in the sum of $5,000 and exemplary damages; and brought a third-party action against the bank, alleging that if it was found that appellant was entitled to the return of the $300, then he was entitled to rescind the purchase and the mortgage. Subsequently, a stipulation was agreed to which provided that (1) the third-party defendant bank would pay $300 out of its funds to respondent seller and would pay the special assessments when due; (2) respondent would dismiss its complaint and garnishment claim; and (3) appellant would dismiss his third-party complaint against the bank. The stipulation did not affect appellant's counterclaim for abuse of process and slander on credit.

After trial of the counterclaim, the jury returned a special verdict finding that there had been a willful abuse of process by respondent and that respondent had acted with malice. The jury assessed total damages in the sum of $4,035. Upon motion, the trial court granted judgment for respondent notwithstanding the verdict. The court was of the opinion that the evidence was insufficient to sustain the verdict, both with respect to liability and to damages. An appeal was taken from the order of the trial court.

1--2. The first issue to determine is whether the evidence will sustain a judgment for abuse of process.

'* * * The essential...