Valles v. Silverman

Decision Date12 December 2003
Docket NumberNo. 23,174.,23,174.
PartiesJoe VALLES, Richard Kirschner, Bob McCannon, and Robert Pratt, Plaintiffs-Appellants, v. Paul L. SILVERMAN, Geltmore, Inc., Richard B. Saylor, Albert Kolb, Gloria Kolb, Sylvia Mock, Paul Tulenko, Valdemar Peterson, Darlene Garrett, Dawn Gastaldo, Merrill B. Thomas, and H. Ernestine Thomas, Defendants, Wal-Mart Stores, Inc., Defendant-Appellee.
CourtCourt of Appeals of New Mexico

Jane Gagne, Philip B. Davis, Albuquerque, NM, for Appellants Joe Valles, Richard Kirschner, and Bob McCannon.

Eric Scott Jeffries, Brian A. Thomas, Jeffries & Rugge, P.C., Albuquerque, NM, for Appellant Robert Pratt.

Charles R. Peifer, Cerianne L. Mullins, Peifer, Hanson & Mullins, P.A., Albuquerque, NM, for Appellee.

Certiorari Denied, No. 28,442, January 29, 2004.

OPINION

CASTILLO, Judge.

{1} The issue we address in this case is whether a defendant can be liable for malicious abuse of process when that defendant was not a party (a non-litigant) in the underlying civil lawsuit. We hold that in certain limited circumstances, a non-litigant may be liable for civil malicious abuse of process. We further hold that the complaint in this case contains sufficient allegations to state a claim for malicious abuse of process against Defendant Wal-Mart Stores, Inc., (Wal-Mart), a non-litigant in the underlying lawsuit. Finally, we hold that the allegations in the complaint are sufficient to state a claim for civil conspiracy against Wal-Mart. We therefore reverse the trial court's dismissal of the claims against Wal-Mart. We remand for further proceedings consistent with this opinion.

I. BACKGROUND

{2} This lawsuit, brought by Plaintiffs Joe Valles, Richard Kirschner, Bob McCannon, and Robert Pratt, is the latest in a series of lawsuits arising from the proposed West Bluff Shopping Center (Project) in Albuquerque, New Mexico. Geltmore, Inc., a developer and a co-defendant in this lawsuit, sought to develop the Project. The single largest store in the Project was to be a Wal-Mart Superstore. Plaintiffs all live near and within neighborhood associations that opposed the development. Plaintiffs participated in Albuquerque's zoning and City Council meetings and argued that the Project failed to comply with existing land use plans and zoning regulations. Plaintiffs appealed the City Council's approval of the Project first to the district court and then to this Court. This Court upheld the district court's approval of the City Council's decision in West Bluff Neighborhood Association v. City of Albuquerque, 2002-NMCA-075, 132 N.M. 433, 50 P.3d 182, overruled on other grounds by Rio Grande Chapter of the Sierra Club v. N.M. Mining Comm'n, 2003-NMSC-005, ¶ 16, 133 N.M. 97, 61 P.3d 806

.

{3} Geltmore, Inc., and ten individual property owners then sued Plaintiffs in a nine-count complaint for misuse and violation of the Nonprofit Corporation Act, NMSA 1978, §§ 53-8-1 to -99 (1975, as amended through 1999); misuse and violation of the Albuquerque Neighborhood Association Recognition Ordinance, Albuquerque Code §§ 14-8-2-1 to -7 (rev'd 1994); violations of the New Mexico Unfair Practices Act, NMSA 1978, §§ 57-12-1 to -22 (1967, as amended through 1999); malicious abuse of process; negligent misrepresentation; fraudulent misrepresentation; fraud and false pretenses; prima facie tort; and conspiracy. See Saylor v. Valles, 2003-NMCA-037, 133 N.M. 432, 63 P.3d 1152

. Wal-Mart was not a party in Saylor (underlying lawsuit). This Court affirmed the district court's dismissal of the underlying lawsuit for failure to state a claim upon which relief can be granted. See id. ¶ 26.

{4} While Saylor was on appeal with this Court, Plaintiffs filed this most recent lawsuit against Geltmore, Inc., Wal-Mart, and eleven other defendants (collectively "Defendants") for malicious abuse of process and civil conspiracy. Plaintiffs allege that Defendants filed the underlying lawsuit to discourage public opposition to the Project. Plaintiffs contend that the underlying lawsuit was a Strategic Litigation Against Public Participation, or a "SLAPP" suit. They also contend that many allegations made by Defendants in the SLAPP suit were false and that Defendants knew or should have known of the falsehoods at the time they filed the SLAPP suit. Although Wal-Mart was not a party in the underlying lawsuit, Plaintiffs argue that Wal-Mart initiated the lawsuit because it "supported, encouraged and funded litigation against [Plaintiffs] in retaliation for their petitioning activities."

{5} Wal-Mart moved to dismiss the claims against it, arguing that (1) it could not be liable for malicious abuse of process because it was a non-litigant in the underlying lawsuit; (2) even if a non-litigant could be liable for malicious abuse of process, Plaintiffs' complaint is insufficient as a matter of law because it fails to allege the requisite elements of a claim for malicious abuse of process against Wal-Mart; and (3) it could not be liable on Plaintiffs' conspiracy claim because the complaint does not state a claim against Wal-Mart for the predicate tort, malicious abuse of process. The district court granted Wal-Mart's motion and dismissed all of the claims against Wal-Mart with prejudice.

II. DISCUSSION
A. Standard of Review

{6} The claims against Wal-Mart were dismissed under Rule 1-012(B)(6) NMRA 2003 for failure to state a claim upon which relief can be granted. Whether the trial court properly dismissed the claims is a question of law, which this Court reviews de novo. See Padwa v. Hadley, 1999-NMCA-067, ¶ 8, 127 N.M. 416, 981 P.2d 1234

. "[A]ll well-pleaded factual allegations" are accepted as true, and all doubts are resolved "in favor of the sufficiency of the complaint." Id. The only question is "whether the plaintiff might prevail under any state of facts provable under the claim." N.M. Life Ins. Guar. Ass'n v. Quinn & Co., 111 N.M. 750, 753, 809 P.2d 1278, 1281 (1991).

B. Malicious Abuse of Process Claim

{7} Our Supreme Court first recognized the tort of malicious abuse of process in DeVaney v. Thriftway Marketing Corp., 1998-NMSC-001, ¶ 14, 124 N.M. 512, 953 P.2d 277, when it combined the torts of abuse of process and malicious prosecution. The elements of malicious abuse of process (the tort) are as follows:

(1) the initiation of judicial proceedings against the plaintiff by the defendant; (2) an act by the defendant in the use of process other than such as would be proper in the regular prosecution of the claim; (3) a primary motive by the defendant in misusing the process to accomplish an illegitimate end; and (4) damages.

Id. ¶ 17. Wal-Mart contests the adequacy of the complaint as to the first three elements. We address each element in turn.

1. Initiation of Judicial Proceedings
a. New Mexico Precedent

{8} Wal-Mart claims that Plaintiffs' complaint fails to allege, and cannot allege, that Wal-Mart initiated judicial proceedings because it was not a litigant in the underlying lawsuit. Plaintiffs, on the other hand, argue that Wal-Mart may be liable under the tort, even though it was a non-litigant, because it actively participated in procuring the underlying lawsuit. Wal-Mart responds that our Supreme Court in DeVaney rejected the theory of active participant liability.

{9} The principle of "active participation" is set forth in the Restatement of Torts in the context of "Wrongful Use of Civil Proceedings." Restatement (Second) of Torts § 674 (1977) [hereinafter Restatement]. Section 674 provides that "[o]ne who takes an active part in the initiation, continuation or procurement of civil proceedings" may be liable for the wrongful use of civil proceedings. Id. Wal-Mart contends that New Mexico has not "adopted this statement of law with regard to abuse of process-type claims" because even though our Supreme Court cited to Restatement § 674 in DeVaney, 1998-NMSC-001, ¶¶ 11, 44, 124 N.M. 512, 953 P.2d 277, it failed to adopt that section or to approve the principle of "procurer liability."

{10} We do not agree with Wal-Mart that our Supreme Court specifically rejected the active participant theory in DeVaney. To the contrary, the only portion of Restatement § 674 that the Court specifically rejected was the requirement that the underlying proceeding be terminated in the plaintiff's favor. DeVaney, 1998-NMSC-001, ¶ 23, 124 N.M. 512, 953 P.2d 277. The issue of whether a party can be liable as an "active participant" never arose in DeVaney because in that case, the defendant in the malicious abuse of process claim was the party who actually filed the underlying lawsuit. Id. ¶ 6.

{11} In DeVaney, our Supreme Court noted that the formerly recognized tort of malicious prosecution required "initiation of [judicial] proceedings." Id. ¶ 15. But a review of our state's jurisprudence on malicious prosecution makes clear that the "initiation" element never required that the defendant be a party in the underlying, often criminal, proceeding. See, e.g., Hughes v. Van Bruggen, 44 N.M. 534, 538-39, 105 P.2d 494, 497 (1940) (holding that whether or not the criminal proceedings were initiated by the defendant depends on whether the defendant's actions were the determining factor in the decision to prosecute or if the defendant knowingly furnished the official with false information); cf. Johnson v. Weast, 1997-NMCA-066, ¶ 20, 123 N.M. 470, 943 P.2d 117

("[M]erely providing information that is not false to the authorities does not initiate proceedings ... if the decision to proceed is left to the discretion of ... the prosecutor and the absence of falsity allows the prosecutor to exercise independent judgment."); Zamora v. Creamland Dairies, Inc., 106 N.M. 628, 633, 747 P.2d 923, 928 (Ct.App.1987) ("A defendant cannot be held liable for malicious prosecution [in an underlying criminal case] unless he took some active part in instigating or encouraging prosecution."). Nor is...

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