Toltec Watershed Imp. Dist. v. Johnston

• Decision Date: 09 April 1986
• Docket Number: No. 85-169,85-169
• Citation: 717 P.2d 808
• Parties: TOLTEC WATERSHED IMPROVEMENT DISTRICT, Roger Garrett, Don Robbins, Glen Dunlap and Bill Goodrich, Appellants (Plaintiffs), v. Eldon JOHNSTON, C.W. Burnette, Associated Enterprises, Inc., a Wyoming Corporation and Bard Ranch Company, a Wyoming Corporation, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 808

717 P.2d 808

TOLTEC WATERSHED IMPROVEMENT DISTRICT, Roger Garrett, Don Robbins, Glen Dunlap and Bill Goodrich, Appellants (Plaintiffs), v. Eldon JOHNSTON, C.W. Burnette, Associated Enterprises, Inc., a Wyoming Corporation and Bard Ranch Company, a Wyoming Corporation, Appellees (Defendants).

No. 85-169.

Supreme Court of Wyoming.

April 9, 1986.

Rehearing Denied May 13, 1986.

Jack R. Gage, of Whitehead, Zunker, Gage, Davidson & Shotwell, Cheyenne, for appellants.

Eric Alden and William R. Jones, of Jones, Jones, Vines & Hunkins, Wheatland, for appellees.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

BROWN, Justice.

This appeal results from a summary judgment in favor of appellees in an action for abuse of process, malicious prosecution and tortious interference with a contract. Appellants Toltec Watershed Improvement District, Roger Garrett, Don Robbins, Glen Dunlap and Bill Goodrich (hereinafter collectively referred to as Toltec) filed the action against appellees Eldon Johnston, C.W. Burnette, Associated Enterprises, Inc., and Bard Ranch Company (hereinafter collectively referred to as Associated Enterprises). Appellants raise a number of issues, but since we will affirm the district court, we need only review the summary judgment granted.

This is not the first time these parties have been before us, but we are optimistic that it will be the last. The litigation history between the parties is long and complex, ranging over some fifteen years. In their brief appellants have summarized the case history as follows:

                DATE                                                      HISTORY AND
                FILED     NATURE               DISPOSITION                CITATIONS
                ------------------------------------------------------------------------------
                6-15-70   Obtain entry         Toltec granted relief.     490 P.2d 1069
                          to survey.           Counterclaim denied;       (Wyo. 1971)
                          Counterclaim on one  appealed to the Wyo
                          man, one vote        Supreme and U.S.           410 U.S. 743 (93 S
                          theory.              Supreme Court.             Ct. 1237, 35 L.Ed.2d
                                                                          675) (1973)
                10-1-74   Condemnation         Toltec granted relief.     656 P. 2d 1144
                          action.              Appealed to Wyo.           (Wyo. 1983)
                                               Supreme Court
                11-25-74  Declaratory          Defendants appealed        Laramie County Court
                          judgment against     summary judgment, then     Doc. 75-269
                          State Engineer.      abandoned the appeal.      Wyo. Supreme Court
                                                                          Doc. 4581
                10-7-75   Administrative       Defendants lost; appealed  578 P.2d. 1359
                          action to challenge  to Dist. Court and Wyo.    (Wyo. 1978)
                          extension of time    Supreme Court
                          to commence
                          construction
                9-28-78   EIS suit in federal  Defendants appeal to       500 F.Supp. 1323
                          court.               Tenth Circuit.             (D.Wyo. 1980)
                                                                          698 F. 2d 1088
                                                                          (10th Cir. 1983)
                

The facts have been set forth in the previous opinions so a lengthy recital is not now necessary. Basically, appellants formed Toltec Watershed Improvement District for the purpose of building a reservoir on lands owned by Associated Enterprises. Associated Enterprises refused access to Toltec for surveying purposes and the first of five lawsuits was brought. Trial resulted in judgment for Toltec, and Associated Enterprises appealed to this court. We affirmed the judgment in Associated Enterprises, Inc. v. Toltec Watershed Improvement District, Wyo., 490 P.2d 1069 (1971). Associated Enterprises then appealed the case to the United States The second case commenced in 1974 when Toltec filed a condemnation action against the lands owned by Associated Enterprises. Toltec prevailed and the decision was again appealed to this court. We modified the judgment and affirmed as modified in Associated Enterprises v. Toltec Watershed Improvement District, Wyo., 656 P.2d 1144 (1983).

Supreme Court which affirmed the decision, with three justices dissenting in Associated Enterprises, Inc. v. Toltec Watershed Improvement District, 410 U.S. 743, 93 S.Ct. 1237, 35 L.Ed.2d 675 (1973).

The third case commenced when Associated Enterprises filed a declaratory judgment action against the state engineer, seeking to have the Toltec reservoir permits declared invalid. This action was dismissed by the district court and an appeal perfected to this court. The case was dismissed for want of prosecution. Associated Enterprises, Inc. and Johnston Fuel Liners, Inc. v. Floyd A. Bishop, State Engineer (No. 4581, October 30, 1975).

The fourth action began when Associated Enterprises objected to Toltec's request for an extension of time from the state engineer in which to commence construction on the dam. The state engineer approved the extension and Associated Enterprises appealed to the district court which affirmed the decision. Appeal was made to this court and the decision affirmed in Associated Enterprises, Inc. v. Toltec Watershed Improvement District, Wyo., 578 P.2d 1359 (1978).

The final action commenced when Associated Enterprises filed suit in the Wyoming Federal District Court against the federal government to compel the preparation of an environmental impact statement (EIS). The relief was granted and an EIS filed. Johnston v. Davis, 500 F.Supp. 1323 (D.C.Wyo.1980). The Tenth Circuit affirmed the case but remanded for modification of the EIS in Johnston v. Davis, 698 F.2d 1088 (10th Cir.1983).

Before the Tenth Circuit decision and the decision of this court in Associated Enterprises, Inc. v. Toltec Watershed Improvement District, Wyo., 656 P.2d 1144 (1983) (the second case), Toltec filed the present action alleging abuse of process, malicious prosecution, tortious interference with a contract, and seeking punitive damages. As noted earlier, the trial court granted Associated Enterprises' motion for summary judgment on all issues.

We begin by stating our applicable standards of review. In Garner v. Hickman, Wyo., 709 P.2d 407, 410 (1985), we said:

"When reviewing a summary judgment on appeal, we review the judgment in the same light as the district court, using the same information. Randolph v. Gilpatrick Construction Company, Inc., Wyo., 702 P.2d 142 (1985); and Lane Company v. Busch Development, Inc., Wyo., 662 P.2d 419 (1983). A party moving for summary judgment has the burden of proving the nonexistence of a genuine issue of material fact. Dudley v. East Ridge Development Company, Wyo., 694 P.2d 113 (1985). Material fact has been defined as one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties. Samuel Mares Post No. 8, American Legion, Department of Wyoming v. Board of County Commissioners of the County of Converse, Wyo., 697 P.2d 1040 (1985). Upon examination of a summary judgment, we view the record from the vantage point most favorable to the party opposing the motion, giving him all favorable inferences which may be drawn from the facts. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980).

ABUSE OF PROCESS AND MALICIOUS PROSECUTION

The tort of abuse of process is defined thusly:

"One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of "The essential elements of abuse of process, as the tort has developed, have been stated to be: first, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding. Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions." Prosser and Keeton, Torts § 121, p. 898 (5th ed., 1985).

                process."   Restatement (Second) of Torts § 682, p. 474 (1977).
                

In Foothill Industrial Bank v. Mikkelson, Wyo., 623 P.2d 748 (1981), this court reversed a judgment granted for abuse of process. In that case, the mortgagors brought action against the mortgagee when the mortgagee accelerated payments on a note after the mortgagors defaulted. We stated that the gravamen of abuse of process lies in the misuse of a court's power to perpetrate injustice. We found there could be no action for abuse of process when the bank foreclosed the note upon default which was its right. We further found that the bank's motive in so doing was immaterial and irrelevant. We quoted with approval the following language:

" 'If the law concerned itself with the motives of parties new complications would be introduced into suits which might seriously obscure their real merits. * * * ' " Id., at 757, quoting Dickerman v. Northern Trust Company, 176 U.S. 181, 190, 20 S.Ct. 311, 314, 44 L.Ed. 423 (1900).

Such is in accord with the general principle " * * * that there is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." Restatement (Second) of Torts § 682, p. 475 (1977). Abuse of process requires that the use of the process be primarily for an immediate purpose other than the purpose designed and intended. See, e.g., Bosler v. Shuck, 714 P.2d 1231 (Wyo., 1986).

Similarly, it matters not what the motive might be in instituting prosecution for purposes of malicious prosecution. In the case of Consumers Filling Station Company v. Durante, 79 Wyo. 237, 333 P.2d 691, 694 (1958), this court set...