Westland Development Co., Inc. v. Romero

• Decision Date: 03 February 1994
• Docket Number: No. 13642,13642
• Citation: 871 P.2d 388,1994 NMCA 21,117 N.M. 292
• Parties: WESTLAND DEVELOPMENT CO., INC., and Gil E. Cordova, Plaintiffs-Appellees, v. Kenneth T. ROMERO, Toby Romero, Jesus H. Anaya, John Doe # 1, John Doe # 2, John Doe # 3, and John Doe # 4, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 388

871 P.2d 388

117 N.M. 292

WESTLAND DEVELOPMENT CO., INC., and Gil E. Cordova Plaintiffs-Appellees, v. Kenneth T. ROMERO, Toby Romero, Jesus H. Anaya, John Doe # 1, John Doe # 2, John Doe # 3, and John Doe # 4 Defendants-Appellants.

No. 13642.

Court of Appeals of New Mexico.

Feb. 3, 1994.

Joseph Goldberg, Freedman, Boyd, Daniels, Peifer, Hollander, Guttmann & Goldberg, P.A., Albuquerque, for plaintiffs-appellees.

David S. Proffit, Albuquerque, for defendants-appellants.

OPINION

BIVINS, Judge.

Plaintiffs, Westland Development Company and its president, Gil E. Cordova, (the Westland Group), filed suit against Defendants, Kenneth T. Romero, Toby Romero, Jesus Anaya and others (the Romero Group), alleging, among other things, abuse of process and defamation. The individuals making up the Romero Group then filed separate counterclaims also alleging abuse of process. The Westland Group moved for summary judgment on the counterclaims and that motion was granted. During the pendency of this appeal, the Romero Group also filed a motion seeking remand for consideration of a motion for relief from judgment and a motion to compel discovery. We remanded, and the district court also denied those motions. The Romero Group now appeals these decisions. Although denominated as an abuse of process, the Romero Group's counterclaims actually state a cause of action for malicious prosecution which cannot be asserted until termination of the Westland Group's claims. Dismissal without prejudice, therefore, was correct, and we affirm on that basis.

In their brief in chief, the Romero Group advances essentially two reasons why the order granting summary judgment should be reversed. First, they claim that genuine issues of material fact exist as to the causes of action set forth in their counterclaims both with respect to liability and to damages. Second, the Romero Group contends that the district court erred in refusing to consider newly discovered evidence and in refusing to compel further discovery. Although the order granting summary judgment recites the absence of any issues of material fact, for the reasons that follow we conclude the Romero Group's counterclaims could not be filed prior to termination of the Westland Group's claims. Thus, we affirm dismissal of the counterclaims as a matter of law but for a different reason. An appellate court will affirm a lower court's ruling if right for any reason. State v. Beachum, 83 N.M. 526, 527, 494 P.2d 188, 189 (Ct.App.1972).

The Romero Group based their counterclaims on the grounds of abuse of process. Abuse of process requires (1) the existence of an ulterior motive and (2) an act using process other than that process which would be proper in the regular prosecution of the charge. Farmers Gin Co. v. Ward, 73 N.M. 405, 407, 389 P.2d 9, 11 (1964). The Romero Group's counterclaims, however, read more like malicious use of process claims than abuse of process claims. "[M]alicious use of process is the employment of process for its ostensible purpose, but without reasonable or probable cause," and is merely a type of malicious prosecution. Avco Delta Corp. v. Walker, 22 Ohio App.2d 61, 65, 51 O.O.2d 122, 124, 258 N.E.2d 254, 257 (1969) (quoting 1 Am.Jur.2d Abuse of Process Sec. 2 (1962)).

The effect of labeling a claim as an abuse of process claim instead of a malicious prosecution claim is significant because an abuse of process claim can be brought at the beginning of a suit, for example, as a counterclaim, whereas a malicious prosecution claim cannot be brought until the termination of the proceedings. See Farmers Gin Co., 73 N.M. at 407, 389 P.2d at 11 (abuse of process); Zamora v. Creamland Dairies, Inc., 106 N.M. 628, 632, 747 P.2d 923, 927 (Ct.App.1987) (malicious prosecution). Examples of what constitutes an abuse of process include the following:

[E]xcessive execution on a judgment; attachment on property other than that involved in the litigation or in an excessive amount; oppressive conduct in connection with the arrest of a person or the seizure of property ...; extortion of excessive sums of money....

Farmers Gin Co., 73 N.M. at 407-08, 389 P.2d at 11.

In the Romero Group's counterclaims, they use the proper terminology for making abuse of process claims. For example, they state that "Westland ... had an ulterior motive for filing their Complaint" and "[t]he filing of the Complaint ... constitutes a perversion of Court processes to accomplish ends which the process was not intended by law to accomplish." (Emphasis added.) However, the essence of their counterclaims is that "Westland ... knew, or should have known upon the exercise of reasonable diligence, that the factual allegations contained in their Complaint and First Amended Complaint were false" and "without merit in light of the known facts and the applicable law." These allegations are more akin to malicious prosecution than abuse of process. Indeed, in their reply brief, the Romero Group even concedes this when they state: "What is happening with increasing frequency, and what has occurred in this case, is that defendants are denominating what is truly a claim for malicious prosecu...