Wong v. Tabor

Decision Date08 July 1981
Docket NumberNo. 3-1079A276,3-1079A276
Citation422 N.E.2d 1279
PartiesSamuel N. T. WONG, Plaintiff-Appellant, v. Glenn J. TABOR, Defendant-Appellee.
CourtIndiana Appellate Court

M. Jean Rawson, Munster, for plaintiff-appellant.

James D. McQuillan, Merrillville, Harry J. Jennings, Spangler, Jennings, Spangler & Dougherty, P. C., Gary, for defendant-appellee.

GARRARD, Judge.

This appeal is from an action for malicious prosecution brought against attorney Glenn J. Tabor by Samuel N. T. Wong, a physician. Tabor had filed suit against Wong on behalf of Mr. and Mrs. William Privett for injuries allegedly sustained by Mrs. Privett as the result of medical malpractice which left her a quadriplegic. 1 In the present case the jury found for Wong and awarded $25,000 damages. However, the trial court set the verdict aside, and this appeal followed.

We initially relate the facts upon which Wong bases his claim for malicious prosecution. 2 The Privetts first sought legal assistance from Tabor approximately one month prior to the expiration of the statute of limitations for bringing a medical malpractice claim. Prior to filing suit, Tabor spoke with his clients, visited the hospital, spoke with hospital personnel, reviewed medical records and conducted legal research. Tabor was advised by Mrs. Privett that Wong had diagnosed her problem as one involving her vertebrae, and that he had referred her to the surgeon, Dr. Kaufman. Tabor was also told by Mr. Privett that hospital personnel had indicated Dr. Wong was present at his wife's surgery. Tabor was additionally aware that Dr. Wong and Dr. Kaufman had previously jointly performed similar surgery on Mr. Privett.

In September 1974, Tabor filed suit within the statutory time limits against a number of physicians, including Wong, and the hospital. During the course of the litigation several physicians were voluntarily dismissed by Tabor and settlements were paid by other defendants. In October 1975, in response to the Privetts' failure to answer interrogatories, Wong's attorney requested by letter that Tabor voluntarily dismiss Wong. Having received no response from Tabor, on March 9, 1976, Wong moved to dismiss for failure to comply with an order to answer interrogatories and moved for summary judgment. The motion for summary judgment was set for hearing on April 6, 1976. Prior to the hearing, an attorney from Tabor's office met with Wong's attorney outside the judge's chambers and advised him that there would be no objection to the entry of summary judgment and to have the record merely reflect his presence at the hearing. The cooperation of Tabor's office was also employed to avoid the necessity of Wong's attorney having to attend a hearing on a motion for summary judgment in another county which allowed Wong out of the litigation in a companion case.

Wong subsequently brought suit for malicious prosecution against the Privetts and Tabor, alleging suit was filed against him maliciously and without probable cause. The Privetts were later dismissed from the case, and the claim against Tabor went to trial. As the medical records reveal, Wong did not participate in the surgery. His sole involvement in Mrs. Privett's hospital care was in prescribing a laxative for her. Wong urges Tabor was, or should have been, aware of these facts prior to the initiation of suit and thus lacked probable cause for bringing a claim against Dr. Wong. Alternatively, even if probable cause existed to initially file suit, Wong argues Tabor is liable for continuing the matter once he discovered, or should have discovered, Wong had not been involved in the surgery.

The jury found for Wong and awarded $25,000 in damages. Pursuant to Indiana Rules of Procedure, Trial Rule 50(A)(4), Tabor moved for judgment on the evidence in his motion to correct errors. The trial court granted the motion, setting aside the jury's verdict upon the ground that,

"The evidence at the close of the Plaintiff's case, during the trial of this cause, was without conflict or dispute that the prior proceedings (Privett vs. Wong, et al) were terminated by agreement, with the attorney for Dr. Wong and Defendant herein, Glenn Tabor (as attorney for the Privetts in the prior proceedings); likewise, at the close of all the evidence in this case, during the trial of this cause, the same undisputed evidence was present.

Termination of the prior proceedings by agreement is a bar to the Plaintiff in a malicious prosecution action, as to the element of termination of the prior action in favor of the Plaintiff."

Wong argues the court erred in setting the verdict aside on the ground that the prior proceeding was not terminated in his favor. In response, Tabor urges that not only was the trial court correct in its expressed reason for setting the verdict aside, but alternative grounds exist upon which the trial court's action can be sustained. As preserved by his original motion to correct errors, see P-M Gas & Wash Co., Inc. v. Smith (1978), 268 Ind. 297, 375 N.E.2d 592, Tabor argues the trial court should have sustained his motion on the grounds that (1) there was no evidence of lack of probable cause to bring suit against Wong; (2) no evidence as to malice was shown; (3) certain of the instructions were erroneously given; and (4) the damages awarded were excessive. While we conclude the trial court erred in holding the prior action terminated by agreement, we nevertheless affirm since the evidence is insufficient to support a finding that Tabor lacked probable cause to initiate suit against Wong.

This case presents the first opportunity in Indiana for appellate review of a malicious prosecution suit brought against a lawyer by a physician for wrongful initiation of a claim for medical malpractice. The recent influx of medical malpractice litigation has spawned a sentiment in the medical community, as well as the general public, that the motivation behind the bringing of many malpractice claims may be something less than a desire to obtain compensation for a plaintiff legitimately injured as the result of malpractice. Attorneys, anxious to insure their client is wholly compensated for any injuries sustained, have been criticized for bringing suit against any and all potentially liable parties with little regard for who is actually responsible and whether there is, in fact, liability. In response to this concern, physicians have begun retaliating where they believe they have been unjustifiably harassed by groundless lawsuits. The most common vehicle for such an attack is a countersuit for malicious prosecution against either the original plaintiff or his attorney. 3

The action of malicious prosecution, which was first developed as a remedy against the unjustified initiation of criminal proceedings, has undergone a slow process of extension into the field of the wrongful initiation of civil suits. See W. Prosser, Law of Torts § 120 at 850-53 (4th Ed. 1971). Compare, however, Coffey v. Myers, supra, n. 1. Designed in the interest of freedom from litigation, the evolution and refinement of the tort reflects its primary purpose: to provide relief where a meritless suit is brought and the plaintiff has an improper motive for initiating it. Note, A Lawyer's Duty to Reject Groundless Litigation, 26 Wayne L.Rev. 1561, 1568 (1980) (hereinafter referred to as Note, A Lawyer's Duty). While the tort of malicious prosecution is not generally favored in our legal system, and thus its requirements are construed strictly against the party bringing the action, Lyddon v. Shaw (1978), 56 Ill.App.3d 815, 14 Ill.Dec. 489, 372 N.E.2d 685, it has been recognized as a legitimate vehicle for persons seeking relief from groundless litigation.

In recent years litigants have sought to use the tort against an attorney who allegedly initiated a meritless lawsuit on behalf of his client. While an attorney, like any person using the judicial process for improper purposes, is liable for his actions, it has been argued that a claim of malicious prosecution more properly focuses upon the intent of the original plaintiff, and not the reasonableness of an attorney's performance in screening lawsuits. Note, A Lawyer's Duty, supra, at 1568. While the tort assumes litigant responsibility, it was not created for, nor does it contemplate, the need for a remedy designed to deter attorneys from filing baseless lawsuits. Id. The clear reluctance of the courts to find attorneys liable for malicious prosecution is evidence of the questioned efficacy of such an action in promoting this end. Nevertheless, it is generally recognized that if any cause of action exists against an attorney, malicious prosecution is essentially the only vehicle available for seeking relief. 4

The essential elements of malicious prosecution are well established. The plaintiff has the burden of proving (a) the defendant instituted, or caused to be instituted, a prosecution against the plaintiff; (b) the defendant acted maliciously in doing so; (c) the prosecution was instituted without probable cause; and (d) the prosecution terminated in the plaintiff's favor. Satz v. Koplow (1979), Ind.App., 397 N.E.2d 1082; Yerkes v. Washington Manufacturing Co. (1975), 163 Ind.App. 692, 326 N.E.2d 629.

In the instant case we are faced with the question of the sufficiency of the evidence to fulfill elements (b), (c), and (d) above. As the trial court set the jury verdict aside on the ground that the prior action terminated by settlement, we will initially consider whether Wong met his burden in establishing the previous litigation terminated in his favor.

I. Termination in Favor of Prior Defendant

The trial court granted Tabor's motion for judgment on the evidence. As stated by our Supreme Court in Huff v. Travelers Indemnity Co. (1977), 266 Ind. 414, 363 N.E.2d 985, 990:

"When the trial court is considering a motion for judgment on the evidence subsequent to the jury's verdict, it must view only the...

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