Opinion

Greenberg v. Wolfberg

890 P.2d 895
1994 WL 706194

Court: Supreme Court of Oklahoma
Filed: Jan 3, 1995
Status: Published
Author: Opala
On the bench: Hodges, Lavender, Hargrave, Opala, Wilson, Summers, Watt, Simms, Kauger
Cited by: 66 cases
Authority: More cited than 89.6%

holding in a malicious prosecution case where the prior suit was a civil suit that “[d]ismissal without prejudice is not a termination favorable to the malicious-prosecution plaintiff.”

How later courts described this case

holding in a malicious prosecution case where the prior suit was a civil suit that “[d]ismissal without prejudice is not a termination favorable to the malicious-prosecution plaintiff.”
rejecting special damages as unnecessary given the heavy burden of proof already imposed on the plaintiff
tort of abuse of process is not included by name in statute limiting actions to one year; therefore, it falls within the unenumerated class for which a two-year limitation period is provided
discussing accrual of malicious-prosecution claims under Oklahoma law

Written by the judges who cited it.

The opinion

OPALA, Justice.

The United States Court of Appeals for the Tenth Circuit [certifying court] certified the following questions pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1991 §§ 1601 et seq.:

1. In light of the facts as detailed below that the Defendants Laurance B. Wolfberg and Carolyn Wolfberg either individually or combined instituted four separate lawsuits and filed one counterclaim against the Plaintiff Robert I. Greenberg or against a party with which Mr. Greenberg was in privity, may the four separate suits and the counterclaim be considered as a single suit (the “Process”) for purposes of alleging malicious prosecution and abuse of process claims regardless of the varied disposition and success of the various separate actions?

2. Closely related to question 1 is whether the statute of limitations applicable to both the malicious prosecution and abuse of process claims should be applied to each individual action or to the process?

3. With respect to the abuse of process claim, does the statute of limitations begin to run with the commencement or the termination of each individual action or of the Process?

4. What is the duration of the statute of limitations on an abuse of process claim?

We answer the certified questions as follows: (1) The availability of a multi-componential predicate for the torts of malicious prosecution and abuse of process

is determined by analyzing the proceedings in each

component

case. While

malicious prosecution

may be predicated upon

multiple litigation,

a malicious-prosecution plaintiff may not recover

actual damages

for proceedings that terminated

dehors

the applicable statutory limitation. (2) The time bar for both delicts pressed in federal court must be applied on a case-by-case basis. Nonetheless, those components of the “Process”

barred by limitation may be

relevant

in proving a case to recover for successive proceedings. The relevancy goes to the elements of probable cause, malice or punitive damages. (3) Viewing the third question as asking of us when the statute of limitation for an abuse-of-process claim commences, we answer that the limitation period begins when the abuse-of-process claim

accrues

— i.e., when a plaintiff could have

“first

maintained the cause to a successful result.”

(4) The statutory limitation for an abuse-of-process claim is two years.

THE ANATOMY OF FEDERAL LITIGATION

Robert I. Greenberg [Greenberg or malicious-prosecution plaintiff] and Carolyn Wolf-berg [malicious-prosecution defendant] are the children of Mal and Rose Greenberg. They are both potential beneficiaries of the

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Mai Greenberg Residual Trust. Greenberg is one of the trustees of that trust. While at his mother’s death Greenberg is to receive his share of the residual trust outright, Carolyn is to have only the interest accruing on the trust’s principal that remains after distribution to Robert.

In the 1970’s Lauranee B. Wolfberg [Wolf-berg or malicious-prosecution defendant], Carolyn’s husband, and Greenberg acquired interests in several business partnerships including, among others, Service Business Forms, Griffith Resources and Green Wolf Oñ Company. In 1982 Greenberg and Wolf-berg decided to sever their business ties. After effectuating this decision the parties engaged in a series of five forensic battles commencing in November 1986. Upon the culmination of these actions Greenberg brought suit on August 14, 1990 against the Wolfbergs for malicious prosecution and abuse of process. Judgment in Greenberg’s favor was entered on October 8, 1991; the Wolfbergs appealed to the U.S. Court of Appeals for the Tenth Circuit, the certifying court.

THE COMPONENTS OF THE “PROCESS” IN THE SENSE DEFINED BY THE CERTIFYING COURT

In its proffered questions the certifying court defines the four predicate suits and one counterclaim between the litigating parties as the “Process”. The components of the Process are as follows:

COMPONENT A:

Lauranee B. Wolfberg v. Robert I. Green-berg, Cause No. CIV-86-2441-P, in the U.S. District Court for the Western District of Oklahoma, filed on November 3, 1986. In this action Wolfberg sought (a) an accounting for the profits and losses of Green Wolf Oil Company, a partnership, and (b) that partnership’s dissolution. He also sought recovery for Greenberg’s breach of fiduciary duties owed to this partnership. While Wolf-berg prevailed in pressing for an accounting and dissolution of the partnership, he lost to Greenberg on the breaeh-of-duty theory. After appellate review by the certifying court, the U.S. Supreme Court denied certiorari on November 13, 1989.

COMPONENT B:

Service Business Forms Industries, Inc., Service Computer Forms Industries, Inc., Lauranee B. Wolfberg and Carolyn Wolfberg v. Robert I. Greenberg, individually and as co-trustee under the Mai Greenberg Testamentary Trusts et al., Cause No. CJ-86-12606, in the District Court of Oklahoma County, filed November 26,1986. The plaintiffs asserted four causes of action against Greenberg, individually and as trustee of the Mai Greenberg Testamentary Trusts. The claims dealt primarily with an asserted failure of consideration to support the stock redemption plan for the Mai Greenberg Testamentary Trusts’ stock in Service Business Forms. By March 18, 1988 all causes stood dismissed

without prejudice.

COMPONENT C:

Carolyn Wolfberg v. Robert I. Greenberg, individually and as co-trustee under the Mai Greenberg Testamentary Trusts et al., Cause No. CJ-86-12734, in the District Court of Oklahoma County, filed on December 3,1986. Carolyn Wolfberg sought recovery for (1) Greenberg’s breach of fiduciary duties owed to her by him as a trustee of the Mai Green-berg Residual Trust and (2) Greenberg’s intentional infliction of emotional distress. The suit was dismissed

without prejudice

on September 17, 1987.

COMPONENT D:

Carolyn Greenberg Wolfberg v. Robert I. Greenberg as co-trustee under the Mai Greenberg Testamentary Trust et al., Cause No. 88-C-3346, in the District Court, Sedg-wick County, Kansas, filed on September 16, 1988. Carolyn Wolfberg sought the removal of the Mai Greenberg Testamentary Trust trustees because of their “prolonged and continued hostility and animosity” towards her. Judgment was entered for the defendants on January 25, 1990.

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COMPONENT E:

Robert I. Greenberg as co-trustee of the Mai Greenberg Testamentary Trusts et al. v. Service Business Forms Industries, Inc. and Service Computer Forms Industries, Inc., Cause No. CIV-87-2769-A, in the U.S. District Court for the Western District of Oklahoma, filed on March 16, 1987. The trustees sought judgment on the defendants’ note given as consideration in a stock redemption plan. The defendants counter-claimed against Greenberg, alleging he had relinquished his right to any monies due the trust under the note’s terms. Partial summary judgment, entered on March 14, 1988, and then final judgment of March 25, 1988 went to the plaintiffs. The latter parties prevailed on all issues. The appellate process came to an end when the U.S. Supreme Court denied certiorari on January 16, 1990.

Ill

THE NATURE OF THIS COURT’S FUNCTION WHEN ANSWERING CERTIFIED QUESTIONS FROM A FEDERAL COURT

While we can set the parameters for the permissible use of (multiple) successive proceedings as a predicate for malicious prosecution, this court’s assessment of the evidence adduced at the trial of this cause is beyond the allowable bounds of its responsibility. It is not this court’s province to intrude (by responses to the certified questions) upon the federal court’s decision-making process. Because

the case

is not before us for decision, we refrain from applying the given state-law responses to the facts elicited in the federal-court litigation or from passing upon the effect of federal procedure on the record and the issues in the case.

We hence must defer to the certifying court the task of analyzing the impact of our answers on the components defined as the Process.

EXCEPT AS ALTERED BY OKLAHOMA’S CONSTITUTION AND HER STATUTES, THE COMMON LAW REMAINS IN FULL FORCE.

To the extent that statutory provisions and this court’s jurisprudence construing them do not yield complete answers to the questions posed, we have reached for this State’s declared common law to supplement the responses sought. By the mandate of 12 O.S.1991 §

the common law remains in full force unless a constitutional clause or a statute explicitly provides to the contrary.

The common law’s legislative abrogation may not be effected by mere implication;

it must be clearly and plainly expressed.

A presumption favors the preservation of common-law rights.

In this State’s legal tradition the common law forms “a dynamic and growing” body of rules that changes with the conditions of society.

MALICIOUS PROSECUTION

A majority of American courts concur in the notion that if the elements which comprise malicious prosecution are met and material damages are demonstrable, a plaintiff

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may prevail upon this cause of action

without having to prove special injury or

grievance.

Our jurisprudence clearly accords with this view. We do not recognize

interference with the

person

property

of another as a required element for pressing this delict. The special-injury requirement stands supplanted by the malicious-prosecution plaintiffs heavy burden of proof. This onus serves to shield legitimate resort to the courts from subjection to vexatious litigation

and is consistent with our announced policy that disfavors this tort rubric.

The Elements of the Tort

We initially delineate the elements of

malicious prosecution drawn from proof supplied by multiple civil proceedings.

Identification of the constituent elements is

central

to consideration of the first certified question. It is only when the requirements for maintaining this tort are met that a malicious-prosecution claim arises and the run-rung of limitation is triggered. While our jurisprudence has not previously addressed the question whether a malicious-prosecution claim can be based upon repetitive civil proceedings, the national body of the common law affords ample sources to guide our task.

It recognizes the delict of malicious prosecution based upon

a multi-componential predicate,

where a party (1) has brought successive suits against the same person upon

the same cause of action

after an adverse decision which should have ended the controversy or (2) has filed separate actions upon the

same claim.

We recognize today Restatement (Second) of ToRts § 679

as the correct exposition of this State’s common law.

For the use of a multi-componential predicate in malicious prosecution

the same cause of action

must have been asserted in each component. The plaintiff must prove the malicious-prosecution defendant (1) initiated the proceedings

embraced within the multi-componential predicate and these proceedings were (2) brought

without

probable cause, (3) motivated by malice, (4) terminated

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in the plaintiffs favor and (5) damaging to the plaintiff.

While

earlier

components of the predicate may serve as an element’s proof in a

later

proceeding,

each individual suit

must satisfy the critical elements of (a) initiation by the malicious-prosecution defendant, (b) termination favorable to the malicious-prosecution plaintiff and (c) lack of probable cause.

There is an exception to the lack-of-probable-cause requirement where an earlier action, although brought with probable cause, is decided adversely to the malicious-prosecution defendant.

There, if successive suits are brought on the same cause of action, the plaintiff may use the

earlier,

adversely-decided action to prove one or more of the § 679 tort’s elements. Nonetheless,

no actual damages

may be recovered for the earlier action if it was brought

upon

probable cause.

Initiation of the Action by the Malicious-Prosecution Defendants

In the five components of the Process there are four separately identified plaintiffs — Laurance B. Wolfberg, Carolyn Wolfberg, Service Business Forms Industries, Inc. and Service Computer Forms Industries, Inc. To combine these components into a “single suit” requires an inquiry into the relationship of the various plaintiffs, each to the other. Where there is (1) a common claim asserted in the components of the Process

and (2) privity of interest or estate between the parties who initiated the suits,

the actions can be combined to assert a malicious-prosecution claim. Disparity among the identities in which a malicious-prosecution plaintiff is sued can also be resolved by the same analysis. If there is a privity of interest or estate among the different legal entities by which the malicious-prosecution plaintiff was haled into court, that plaintiff may combine the proceedings as a predicate to allege the delict if the component suits are based upon a common cause of action.

Lack of Probable Cause

Greenberg has the affirmative duty of proving

that the malicious-prosecution defendants brought the component ae-

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tions

without probable cause.

In pressing malicious prosecution based upon multiple civil proceedings, one could encounter an

earlier

component of the Process which may have been filed

with

probable cause.

Nevertheless, if the earlier action had been determined adversely to the malicious-prosecution defendant, subsequent suits asserting the same cause of action presumably will have been instigated

without

probable cause. For

evidentiary

purposes the relevancy of the earlier adversely-determined cause is not denigrated by its status as a time-barred component in the action.

Nonetheless, there may be

recovery of

actual

damages suffered from suits

dehors

the applicable statutory limitation.

Malicious Motivation

The essence of malicious prosecution is abuse of judicial process occasioned by

bringing

a civil proceeding

with

malice.

When a malicious-prosecution defendant (1) instigates successive suits upon a cause of action after an adverse determination, (2) files repetitive suits for the

same

cause of action before any are resolved or (3) initiates, dismisses and refiles the same cause of action, the bringing of the successive actions [even those concluded

dehors

the applicable statutory limitation] may be used as proof of an improper motive or of malice.

Nonetheless, where the earlier action

has not been adversely concluded,

successive proceedings upon the

same cause of action

are

not

relevant to

a lack of probable cause.

The malicious-prosecution plaintiff carries the burden of proving the defendant’s want of probable cause in bringing

each action comprising the multi-componential predicate.

Termination in Favor of the Malicious-Prosecution Plaintiff

The fourth element of malicious prosecution requires that the claim terminate

in the plaintiffs favor in

each

of the component suits of the Process.

The Wolf-bergs assert that component A was not re

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solved in Greenberg’s favor. The material submitted, supplemented by the admissions in the parties’ briefs in this court,

demonstrates that Wolfberg asserted

separate

claims in component A — one for an accounting and dissolution of the partnership interests shared with Greenberg and a second claim for alleged breach of fiduciary duties owed by Greenberg to Green Wolf Oil Company. Where more than one claim is asserted in a proceeding, it is proper for the court to review each claim

separately

to determine if it satisfies the delict’s critical elements. If a claim is terminated in favor of the malicious-prosecution plaintiff, an action for malicious prosecution will lie on that singular claim, regardless of who prevails on other claims pressed in the same suit.

For there to be a prevailing party in an action requires that the underlying proceeding

not

have been dismissed

without

prejudice.

Dismissal without prejudice

not

a termination favorable to the malicious-prosecution plaintiff. To hold differently would be to countenance the possibility of countervailing results arising from the same action.

The Statute of Limitation Trigger

The limitation period for malicious prosecution

is triggered by

accrual of the cause of action.

To determine when a cause accrues the court must ascertain (1) the nature of the right the litigant seeks to assert and (2) when the plaintiff could have

first

maintained the cause advanced to a successful result.

Generally, the one-year time bar is set in motion by each

qualified

eomponential predicate terminated in favor of the malicious-prosecution plaintiff.

This is the temporal point that triggers the limitation clock.

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ABUSE OF PROCESS

Elements of the Tort

The quintessence of

abuse of process

is “not the wrongfulness of the prosecution, but some extortionate perversion of lawfully initiated process to illegitimate ends.”

The tort’s elements are (1) the improper use of the court’s process

(2)

primarily

for an ulterior or improper purpose (3) with resulting damage to the plaintiff asserting the misuse.

Although a plaintiff in a predicate action may have been motivated by bad intention, there is no abuse if the court’s process is used legitimately to its

authorized

conclusion.

The party who asserts the abuse-of-process claim is

not required

to prove (1) the underlying action was brought

without probable cause

or (2) that he/she prevailed in that proceeding. Neither is it necessary that the action, in which the abuse is alleged to have occurred, be concluded.

These principles impel the conclusion that it is not the “commencement or the termination” of a proceeding which triggers the limitations period for this tort. Rather, it is the

accrual

of the cause of action.

An abuse-of-process claim accrues when the process is abused and damages are incurred,

regardless of when the action is determined.

Because this delict concerns itself with specific misapplications or misuses of process, the statute of limitation must be applied

separately

to each component of the Process. The court may find earlier components of the Process [as defined by the certifying court] relevant as proof of an ulterior or improper motive in a subsequent action. Nonetheless, unless a court’s

process

has been

misused or misapplied

in the

specific

proceeding relied upon to assert the abuse-of-process claim, the delict is not maintainable.

The Limitation Period for Abuse of Process

Because the tort of abuse of process is not included

eo nomine

among the delicts enumerated in 12 O.S.1991 § 95(4)

—those which are governed by a one-year time

bar

— it

falls within the unenumerated class

for which a two-year limitation period is

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provided by 12 O.S.1991 § 95(3).

At the time § 95(4) was enacted the torts of malicious prosecution and abuse of process

both were known to the common law of Oklahoma as distinct delicts;

yet, abuse of process is not included among the actions governed by the one-year statutory time bar. Based upon the time-honored canon of construction known by the Latin phrase of

expressio uni-us est exclusio alterius,

we conclude that the legislature

intended to exclude

abuse of process from the class of torts for which a one-year limitation was established.

VII

CONCLUSION

Application of the rules announced today requires that malicious prosecution be distinguished from abuse of process — the former lies for the malicious

initiation

of process and the latter for a

perversion

of the process

after

it is issued. If process is wrongfully initiated and later perverted, both torts would lie since they are not to be viewed as mutually exclusive delicts. The limitation periods for both torts are triggered by accrual of the respective causes of action. Because malicious prosecution is a tort disfavored by our jurisprudence and abuse of process is fact-specific,

i.e.,

tied to misuse of process in a particular action, the applicable limitation period must be gauged on a case-by-case basis. As pointed out earlier in this opinion, the question — whether the

earlier

components of the Process are relevant to show (a) in malicious-prosecution claims the elements of probable cause, malice and/or punitive damages or (b) in abuse-of-process claims improper or ulterior motives or application — constitutes a matter within the certifying court’s cognizance.

CERTIFIED QUESTIONS ANSWERED.

HODGES, C.J., LAVENDER, V.C.J., and HARGRAVE, OPALA, ALMA WILSON, SUMMERS and WATT, JJ., concur;

SIMMS and KAUGER, JJ., concur in result.

. Malicious prosecution and abuse of process are

common law actions

uninvaded and unmodified by this State's statutory regulations.

See

Part II,

infra,

for identification and explanation of the components of the "Process”, as that term is used in the certified questions.

Neff v. Willmott, Roberts & Looney,

170 Okl. 460 , 41 P.2d 86, 87 (1935).

.The material accompanying the certified questions consists of the parties' briefs to the U.S. Court of Appeals for the Tenth Circuit. The factual recitals in the anatomy of federal litigation and in the discussion of the components of the Process were gleaned from this material and from the briefs submitted to this court.

. For an explanation of the legal effect of a dismissed lawsuit (without prejudice) as a malicious-prosecution predicate, see

infra

note 40.

Bonner v. Oklahoma Rock Corp.,

Okl., 863 P.2d 1176 , 1178 n. 3 (1993);

Shebester v. Triple Crown Insurers,

Okl., 826 P.2d 603 , 606 n. 4 (1992).

. The relevant terms of 12 O.S.1991 § 2 provide:

"The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma....”

Tate v. Browning-Ferns, Inc.,

Okl., 833 P.2d 1218, 1225-26 (1992);

Silver v. Slusher,

Okl., 770 P.2d 878, 884 (1989);

Ricks Exploration v. Okl. Water Resources Bd.,

Okl., 695 P.2d 498, 504 (1985);

Roxana Petroleum Co. v. Cope,

132 Okl. 152 , 269 P. 1084, 1085 (1928) (the court’s syllabus ¶3);

Reaves v. Reaves,

15 Okl. 240 , 82 P. 490, 495 (1905);

State Mut. Life Assur. Co. of Amer. v. Hampton,

Okl., 696 P.2d 1027 , 1034, 1036 (1985) (Opala, J., concurring).

Fuller v. Odom,

Okl., 741 P.2d 449, 451 (1987);

McCormack v. Oklahoma Pub. Co.,

Okl., 613 P.2d 737, 740 (1980);

Reaves, supra

note 8 , 82 P. at 495 ;

Hampton, supra

note 8 at 1036 (Opala, J., concurring).

Reaves, supra

note 8 , 82 P. at 495 ;

Hampton, supra

note 8, 82 P. at 1036 (Opala, J., concurring).

Brigance v. Velvet Dove Restaurant, Inc.,

Okl., 725 P.2d 300, 303 (1986), quoting

McCormack, supra

note 9 at 740.

See also

12 O.S.1991 § 2013 for Oklahoma's statutory treatment of counterclaims.

Reeves v. Agee,

Okl., 769 P.2d 745, 752 (1989);

Young v. First State Bank, Watonga,

Okl., 628 P.2d 707, 709 (1981);

Page v. Rose,

Okl., 546 P.2d 617, 620 (1976);

Browning v. Ray,

Okl., 440 P.2d 721, 724 (1968);

Towne v. Martin,

196 Okl. 510 , 166 P.2d 98, 100 (1945);

Sawyer v. Shick, 30

Okl. 353, 120 P. 581, 582 (1911).

. The court in

Sawyer, supra

note 22 , 120 P. at 582 , drew a critical distinction between malice and want of probable cause when it observed:

"Malice may be inferred from a total want of probable cause, but,

e converso,

a total want of probable cause cannot be inferred from malice.”

See also

Restatement (Second) of Torts § 675, comment h (1977).

Ripley v. Bank of Skidmore,

355 Mo. 897 , 198 S.W.2d 861, 866 (1947).

Id.,

198 S.W.2d at 866 .

Young, supra

note 16 at 710.

See

Restatement (Second) of Torts § 679, comment c (1977).

See also

Restatement (Second) of Torts § 675, comment b.

. Admissions made in the briefs may be considered as supplementing and curing an otherwise deficient appellate record.

Reeves, supra

note 22 at 753;

Womack v. City of Oklahoma City,

Okl., 726 P.2d 1178, 1181 (1986);

Timmons v. Royal Globe Ins. Co.,

Okl., 713 P.2d 589 , 592 n. 10 (1985).

Reeves v. Agee,

Okl., 769 P.2d 745, 752-54 (1989).

. The second and third components of the Process identified by the certifying court were dismissed

without prejudice. An action dismissed without prejudice may not serve as a componential predicate for a malicious-prosecution action.

Malicious prosecution requires that the predicate action be terminated in the malicious-prosecution plaintiff's favor.

Glasgow, supra

note 16 at 839.

See also

Restatement (Second) of Torts § 682 which states the general principle of the delict as:

"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 process.

Donohoe, supra

note 45 , 369 S.E.2d at 862 ;