Durham v. Guest

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-007

Filing Date: February 20, 2009

Docket No. 30,656

JAMIE DURHAM and TRAVIS DURHAM,

Plaintiffs-Petitioners,

v.

SUZANNE GUEST,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI

Michael Eugene Vigil, District Judge

Berardinelli Law Firm

David J. Berardinelli

Santa Fe, NM

for Petitioners

Guest Law Firm, P.C.

Suzanne Guest

Phoenix, AZ

for Respondent

Miller Stratvert P.A.

Ruth Fuess

Albuquerque, NM

for Amicus Curiae

Property Casualty Insurers Association of America

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Michael B. Browde

Albuquerque, NM

for Amicus Curiae

New Mexico Trial Lawyers Association

Keleher & McLeod, P.A.

Thomas C. Bird

Gary J. Van Luchene

Albuquerque, NM

for Amicus Curiae

New Mexico Defense Lawyers Association

OPINION

CHÁVEZ, Chief Justice.

{1} Plaintiffs Jamie Durham (Jamie) and Travis Durham (Travis) (together, the Durhams)

sued Suzanne Guest (Guest) for malicious abuse of process, alleging that she issued

subpoenas for an illegitimate purpose in an arbitration proceeding. Guest contends that the

Durhams failed to state a malicious abuse of process claim under DeVaney v. Thriftway

Marketing Corp., 1998-NMSC-001, 124 N.M. 512, 953 P.2d 277 (filed 1997), because she

did not initiate the underlying arbitration and because arbitration proceedings are not judicial

proceedings for the purpose of stating a malicious abuse of process claim. The district court

and the Court of Appeals agreed. We reverse and hold that (1) it is not necessary for the

defendant to have initiated judicial proceedings against the plaintiff in order to state a claim

for malicious abuse of process, and (2) arbitration proceedings are judicial proceedings for

the purpose of the tort of malicious abuse of process.

I. BACKGROUND

{2} Because this case is before us to review the district court’s dismissal of the Durhams’

malicious abuse of process claim pursuant to Rule 1-012(B)(6) NMRA, we accept as true

all well-pled factual allegations. See Delgado v. Phelps Dodge Chino, Inc.,

2001-NMSC-034, ¶ 2, 131 N.M. 272, 34 P.3d 1148. In addition, we do not consider factual

allegations raised for the first time by either party on appeal to determine whether the

Durhams stated an actionable malicious abuse of process claim. We therefore refer only to

the well-pled facts in the Durhams’ complaint and attached exhibits in recounting the facts

pertinent to our review.

{3} In March of 1997, the Durhams were traveling in Jamie’s car when they were injured

in an accident with an uninsured motorist who was driving while intoxicated. At the time of

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the accident, Jamie’s car was insured with Allstate Insurance Company (Allstate) under a

policy containing uninsured motorist coverage. Both Jamie and Travis suffered personal

injuries and other damages as a result of the accident.

{4} Two days after the accident, the Durhams’ counsel advised Allstate that the Durhams

would be making uninsured motorist claims for their injuries. A dispute arose regarding the

amount of damages owed to the Durhams under the policy. Nearly one year after the

accident, Allstate retained Guest to represent it in the arbitration of the Durhams’ claims.

The arbitrators awarded the Durhams $45,000 plus all arbitration costs, an award that

exceeded Allstate’s last offer to settle by over $31,000. No corresponding court proceeding

was filed by either party with respect to the Durhams’ uninsured motorist claims.

{5} In January of 2002, the Durhams brought a bad faith action against Allstate, Guest,

and Allstate’s sales agent for Jamie’s policy, alleging over a dozen common law and

statutory violations against them. Only the Durhams’ malicious abuse of process claim is

the subject of our review. In that claim, the Durhams alleged that, during discovery in the

arbitration proceedings, Guest maliciously issued one or more subpoenas for an illegitimate

purpose when she sought the Durhams’ employment and medical records in violation of a

protective order issued by the arbitrators. According to the Durhams’ complaint, Guest’s

purpose for issuing the subpoenas was to ruin the Durhams’ reputations, cause them to lose

their employment, inflict humiliation and emotional distress upon them, invade their privacy,

retaliate against them for refusing to accept Allstate’s previous settlement offer, and coerce

them into giving up their lawful right to benefits under Jamie’s uninsured motorist policy.

Upon Guest’s motion, the district court dismissed all of the claims against Guest for failure

to state a claim upon which relief can be granted. The Durhams appealed.

{6} The Court of Appeals affirmed the district court’s dismissal and concluded that

DeVaney requires that Guest must have initiated judicial proceedings against the Durhams

in order for their malicious abuse of process claim to proceed. Durham v. Guest, 2007-

NMCA-144, ¶ 42, 142 N.M. 817, 171 P.3d 756. The Court held that an arbitration

proceeding is not a judicial proceeding for the purpose of malicious abuse of process and

that, in any case, Guest did not initiate the arbitration. Id. ¶¶ 41-42. Citing this Court’s

directive that the malicious abuse of process tort should be construed narrowly, the Court

of Appeals held that the Durhams’ malicious abuse of process claim could not lie. Id. ¶ 44.

{7} The Durhams petitioned this Court for review, and we granted certiorari on the five

issues presented in their petition. Durham v. Guest, 2007-NMCERT-010, 143 N.M. 74, 172

P.3d 1286. After reviewing the parties’ briefs, we quashed certiorari as improvidently

granted with respect to all issues listed in the Durhams’ petition except the malicious abuse

of process issue: whether the allegation that Guest issued a subpoena in an arbitration

proceeding for an illegitimate purpose is sufficient to state a claim for malicious abuse of

process.

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II. PRELIMINARY ISSUES

A. REFERENCE TO FACTS NOT IN THE RECORD

{8} The parties’ counsel, David J. Berardinelli (Berardinelli) for the Durhams and Guest

representing herself, have inundated this Court with paper. We will not endeavor to count

the number of pages of motions, responses, replies, and exhibits put before us while we

considered this matter on review. Suffice it to say that the maxim “less is more” is lost on

both counsel in all respects. We are compelled to comment on several specific abuses in

counsels’ filings, each related to the propriety of asking this Court to consider and resolve

factual disputes with this appeal.

{9} Both Berardinelli and Guest attempt to argue the factual basis of the malicious abuse

of process claim on appeal. They initially do so by improperly referring in their briefs to

documents that were not presented to the district court judge for his consideration when he

ruled on Guest’s motion to dismiss. Reference to exhibits not in the record proper and not

presented to the district court for consideration is improper and a violation of the Rules of

Appellate Procedure. Kassel v. Anderson, 84 N.M. 697, 700, 507 P.2d 444, 447 (Ct. App.

1973), overruled on other grounds by Fidelity Nat’l Bank v. Tommy L. Goff, Inc., 92 N.M.

106, 108-09, 583 P.2d 470, 472-73 (1978). Therefore, we will not consider these exhibits

on appeal. See State v. Wood, 117 N.M. 682, 687, 875 P.2d 1113, 1118 (Ct. App. 1994)

(exhibits to briefs that are not part of the record proper will not be considered on appeal);

State v. Lucero, 90 N.M. 342, 345, 563 P.2d 605, 608 (Ct. App. 1977) (“Exhibits to briefs

neither identified nor tendered as exhibits to the trial court will not be considered [on

appeal].”).

{10} In addition to referring the Court to exhibits not before the district court, Berardinelli

and Guest also make assertions of facts in their briefs that were not alleged in the complaint

or otherwise before the district court. As if the reference on appeal to facts not in the record

were not audacious enough, in many cases both Berardinelli and Guest cite no authority in

support of their new contentions. Also, in many instances where Berardinelli does cite to

the complaint in support of his new assertions, the complaint provides no support for the

allegation. We are not sure which is worse: failing to provide a citation to support a fact not

in the record or providing a misleading one. Regardless, we are certain that “[o]ur review

on appeal is limited to a consideration of the transcript of the record properly certified by the

clerk of the trial court[.]” Fed. Nat’l Mortgage Ass’n v. Rose Realty, Inc., 79 N.M. 281, 281-

82, 442 P.2d 593, 593-94 (1968). We reiterate that counsels’ reference to facts not before

the district court and not in the record is inappropriate and a violation of our Rules of

Appellate Procedure. See Rule 12-213(A)(3) NMRA (stating that the brief in chief shall

include a summary of the facts relevant to the issues presented for review with citations to

the record proper, transcript of proceedings, or exhibits supporting each factual

representation); Rule 12-213(B) (same for answer brief). We therefore do not consider any

of Berardinelli’s or Guest’s new factual assertions on appeal, and review only the complaint

and exhibits attached thereto to determine if the Durhams stated a claim for relief. Both

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Berardinelli and Guest are admonished to adhere strictly to the Rules of Appellate Procedure

in the future.

B. EXHIBITS TO THE COMPLAINT

{11} The Durhams attached five exhibits to their complaint. On appeal, they argue that

the Court of Appeals erred in considering these exhibits in ruling on their malicious abuse

of process claim, relying on Dellaira v. Farmers Ins. Exch., 2004-NMCA-132, ¶ 8, 136 N.M.

552, 102 P.3d 111. However, Guest contends that the Court’s consideration of the exhibits

was proper.

{12} We agree with Guest that the Durhams’ reliance on Dellaira is misplaced. The issue

before the Court of Appeals in Dellaira was whether it was proper to consider exhibits that

were submitted in opposition to the plaintiffs’ motion to dismiss, when nothing in the record

indicated that the district court relied on the disputed exhibits when ruling on that motion.

Id. ¶ 7. The Court held that under those circumstances, it would not consider the exhibits

and would review the district court’s decision under the standard applicable to Rule 1-

012(B)(6) dismissals. Id. In this case, the exhibits in question were attached to the

Durhams’ complaint and were not submitted in response to Guest’s motion to dismiss. Thus,

Dellaira is inapposite, and our rules governing the attachment of exhibits to pleadings

control. “A copy of any written instrument which is an exhibit to a pleading is a part thereof

for all purposes.” Rule 1-010(C) NMRA. Therefore, the Court of Appeals was correct when

it considered the exhibits attached to the complaint and we may also consider the exhibits

in determining the basis for the Durhams’ malicious abuse of process claim.

C. GUEST’S MOTION FOR SANCTIONS

{13} Guest filed a motion in this Court requesting us to impose sanctions against the

Durhams and Berardinelli for knowingly making false factual representations to this Court

in their certiorari briefs regarding their allegations that Guest misused the subpoena process

in the underlying arbitration. In her motion, Guest contends that such misrepresentations

violate Rule 16-303 NMRA (candor toward the tribunal) such that Rule 12-312(D) NMRA

allows this Court to impose sanctions for failure to comply with the Rules of Appellate

Procedure. Guest also contends that Berardinelli’s factual misrepresentations to this Court

directly violated the Court of Appeals’ order requiring him to refrain from overzealous

advocacy and to adhere to the Rules of Appellate Procedure. We denied the motion without

prejudice.

{14} To resolve Guest’s motion for sanctions, we would need to resolve factual disputes

that are inextricably linked to the merits of the Durhams’ claim. For example, Guest asserts

that the Durhams or Berardinelli knew at the time of filing their complaint that she did not

issue the subpoena that forms the basis of their malicious abuse of process claim. She argues

that the Durhams or Berardinelli knowingly misrepresented this fact to the Court in their

briefs. The Durhams’ complaint, however, alleges that Guest misused a judicial process

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when she issued subpoenas for an improper purpose. It does not list specific subpoenas.

Therefore, we cannot tell from the complaint what subpoenas form the basis of the Durhams’

complaint and whether Guest actually issued them. Furthermore, we cannot tell from the

record when the Durhams or Berardinelli actually knew which subpoena(s) were issued by

Guest, to whom, and for what purpose. Without the benefit of a developed record that

clearly resolves the allegations in Guest’s motion for sanctions, we declined to rule on its

merits.

{15} Our denial of Guest’s motion without prejudice will not prevent Guest from raising

these issues again in the district court, nor is it meant to preclude the district court from

considering and ruling on any of the issues raised in Guest’s motion for sanctions, should

Guest file such a motion in the district court on remand. Specifically, our denial of Guest’s

motion will not preclude the district court from determining whether the Durhams or

Berardinelli violated the Rules of Appellate Procedure by knowingly making false

representations in any of its filings in either the Court of Appeals or this Court.

III. DISCUSSION

{16} We review de novo the district court’s dismissal of the Durhams’ malicious abuse

of process claim for failure to state a claim pursuant to Rule 1-012(B)(6). See Valdez v.

State, 2002-NMSC-028, ¶ 4, 132 N.M. 667, 54 P.3d 71. The specific issue we must resolve

is whether Guest’s alleged issuance of a subpoena during an arbitration proceeding for the

purpose of extortion is sufficient to state a malicious abuse of process claim when she did

not initiate the arbitration proceeding against the Durhams. To resolve this dispute, we must

address two separate issues: (1) whether the malicious abuse of process tort requires that the

defendant have initiated the underlying judicial proceeding against the plaintiff, and (2)

whether arbitration proceedings may be considered judicial proceedings for the purpose of

malicious abuse of process.

{17} The Court of Appeals affirmed the district court’s dismissal, holding that an

arbitration proceeding is not a judicial proceeding for the purpose of malicious abuse of

process, and that, in any event, Guest did not initiate the arbitration. Durham, 2007-NMCA-

144, ¶¶ 41, 44. We reverse the district court, and hold that the defendant’s initiation of

judicial proceedings against the plaintiff is no longer a required malicious abuse of process

element and arbitration proceedings are judicial proceedings for the purpose of the malicious

abuse of process tort.

{18} In DeVaney v. Thriftway Marketing Corp., 1998-NMSC-001, 124 N.M. 512, 953

P.2d 277 (filed 1997), abrogated on other grounds by Fleetwood Retail Corp. of N.M. v.

LeDoux, 2007-NMSC-047, ¶¶ 19-21, 142 N.M. 150, 164 P.3d 31, we combined the torts of

abuse of process and malicious prosecution and restated them as a single cause of action

known as malicious abuse of process. 1998-NMSC-001, ¶¶ 1, 17. We held that the elements

of the tort of malicious abuse of process are as follows:

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(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. The focus of the parties’ arguments is the first malicious abuse of process

element.

{19} The parties dispute whether this Court intended to limit claims for abuse of

process in DeVaney to only those where the defendant had first brought a judicial action

against the plaintiff. Guest argues that the plain language of the first malicious abuse of

process element is unambiguous and that the Durhams’ malicious abuse of process claim

was properly dismissed because (1) she did not initiate the arbitration proceeding against

them, and (2) an arbitration is not a “judicial” proceeding for the purposes of stating a

malicious abuse of process claim. The Durhams argue that, despite our inclusion of the

first malicious abuse of process element in DeVaney, this Court did not intend to

eliminate malicious abuse of process claims when legal processes were abused by either

party to a proceeding. Alternatively, the Durhams argue that the issuance of a subpoena

may be considered “the initiation of a judicial proceeding” for the purposes of stating a

malicious abuse of process claim. We understand the Durhams’ second argument to be a

response to Guest’s claim that an arbitration proceeding may not be treated as a judicial

proceeding for the purpose of malicious abuse of process. We address the following

issues in turn: (1) whether the initiation of proceedings by the defendant is an element of

malicious abuse of process, and (2) whether arbitration is a judicial proceeding for the

purpose of stating a malicious abuse of process claim.

A. THE DURHAMS’ ARGUMENT WAS PRESERVED

{20} Guest argues that because the Durhams rely on facts not presented to the district

court, many of their arguments are not preserved for review. We disagree. Although the

Durhams presented facts in their brief that we will not consider in our review, they have

consistently argued to the district court, the Court of Appeals, and this Court that the

DeVaney Court did not intend to limit claims for malicious abuse of process to situations

when the defendant initiated the judicial proceeding, and that issuing a subpoena for

illegitimate purposes in an arbitration proceeding is sufficient to state a malicious abuse

of process claim. Therefore, these arguments were preserved and we will properly

consider them.

B. THE INITIATION OF JUDICIAL PROCEEDINGS BY THE DEFENDANT

AGAINST THE PLAINTIFF IS NO LONGER AN ELEMENT OF

MALICIOUS ABUSE OF PROCESS

{21} The thrust of the Durhams’ DeVaney argument is that this Court did not intend to

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eliminate claims for abuse of process when the individual accused of abusing process was

not the party who initiated the judicial proceeding. They contend that the DeVaney Court

intended to combine both claims based on their similarities, and claims that would have

been allowable under the former tort of abuse of process should be allowed after

DeVaney, despite the plain language of the first malicious abuse of process element.

Essentially, the Durhams argue that DeVaney’s requirement that the defendants must

have initiated the judicial proceedings in which they allegedly abused process is unfair

because it allows defendants to abuse process within those proceedings simply because

the defendants did not commence them. We agree. For basic reasons of equality and

fairness, this cannot have been the DeVaney Court’s desired result.

{22} This Court’s motivation in DeVaney was to clarify the differences, if any,

between the former torts of abuse of process and malicious prosecution. The specific

issue before us was whether the filing of a complaint, without any subsequent act, could

constitute the improper act necessary to state a claim for abuse of process and, if it could,

how an abuse of process claim based solely on the filing of a complaint for an

illegitimate purpose differed from an action for malicious prosecution. See id. ¶ 1. That

issue was unclear in New Mexico law, and the facts before the Court in DeVaney raised

the broader issue of whether New Mexico should maintain these two distinct torts.

{23} Prior to DeVaney, we stated that “[t]he initial use of process itself [i.e., the

initiation of litigation] may constitute the required overt act under the facts [necessary to

state a claim for abuse of process].” Richardson v. Rutherford, 109 N.M. 495, 502, 787

P.2d 414, 421 (1990). We also stated that, “[w]hile a subsequent act may suffice to prove

an abuse of process which was appropriate when issued, it is not an essential element [to

stating an abuse of process claim].” Id. The New Mexico Court of Appeals subsequently

noted this language and stated that Richardson “arguably might be read as blurring the

line between malicious prosecution and abuse of process because it held that the

improper act required for an abuse of process claim could be the filing of the complaint

itself and that an improper subsequent act was not required.” Westland Dev. Co. v.

Romero, 117 N.M. 292, 294, 871 P.2d 388, 390 (Ct. App. 1994). Similarly, in DeVaney,

the Court of Appeals “construed Richardson and Westland as allowing for the possibility

that under certain, very limited and special circumstances[,] the filing of [a] suit could be

enough [to state a claim for abuse of process].” 1998-NMSC-001, ¶ 8 (internal quotation

marks and citation omitted).

{24} Thus, our charge in DeVaney was to clarify these two torts and determine whether

a plaintiff could state a claim for abuse of process when the only alleged abusive act was

the improper filing of a complaint. See id. ¶ 1 (“We granted certiorari to revisit and

clarify the elements required for the two torts on which [the plaintiff] relies.”). We held

that while

[a]n improper act, or misuse of process, need not occur subsequent to the

filing of a complaint and might, in fact, be found in the complaint itself . .

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. the filing of a proper complaint with probable cause, and without any

overt misuse of process, will not subject a litigant to liability for malicious

abuse of process, even if it is the result of a malicious motive.

Id. ¶ 20 (citations omitted). As a result, the DeVaney Court held that maliciously filing a

complaint was insufficient to state a malicious abuse of process claim unless it was done

without probable cause or was accompanied by some subsequent abuse of process. Id. ¶¶

22, 28.

{25} Had we not gone further and clarified the elements of the two former misuse of

process torts, this holding would have led to confusion regarding which cause of

action–abuse of process or malicious prosecution–was the correct claim to make in such

situations, because the act of filing a complaint without probable cause arguably satisfied

the elements of both torts. See id. ¶ 11 (listing the elements of the former tort of

malicious institution of civil proceedings). To minimize this confusion, we combined the

two torts, recognizing that they shared common purposes and elements. Id. ¶¶ 14, 15.

Importantly, in so doing we did not overrule our prior case law with respect to abuse of

process. See id. ¶ 18 (recognizing that many of the traditional elements of the abuse of

process tort continue to serve important purposes). Thus, we believe that this Court’s

intention was to allow claims that would have been viable under the former tort of abuse

of process to have continued validity under the restated malicious abuse of process tort.

{26} Prior to DeVaney, the tort of abuse of process did not require that the defendant

have initiated judicial proceedings against the plaintiff. Instead, to state such a claim,

one had only to allege “(1) the existence of an ulterior motive; and (2) an act in the use of

process other than such as would be proper in the regular prosecution of the charge.”

Richardson, 109 N.M. at 501, 787 P.2d at 420 (internal quotation marks and citation

omitted). Before DeVaney, this Court said that “[o]ne 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.” Id.

(quoting Restatement (Second) of Torts § 682 (1976)). We also said that

[a]n abuse of process arises only when there has been a perversion of court

processes to accomplish some end which the process was not intended by

law to accomplish, or which compels the party against whom it has been

used to do some collateral thing which he could not legally and regularly

be compelled to do.

Farmers Gin Co. v. Ward, 73 N.M. 405, 406, 389 P.2d 9, 11 (1964). In other words, the

only prerequisites to bringing an abuse of process claim were that the defendant have

misused a process within a judicial proceeding for some purpose that it was not intended.

See Restatement (Second) of Torts, § 682 cmt. a (1977) (“The gravamen of the

misconduct for which the liability stated in this Section [abuse of process] is imposed . . .

is the misuse of process, no matter how properly obtained, for any purpose other than that

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which it was designed to accomplish.”). The initiation of judicial proceedings by the

process abuser was not an element of this claim.

{27} Our restatement of the malicious abuse of process cause of action in DeVaney

overlooked the fact that our law allowed some abuse of process claims to proceed when a

defendant had not initiated the action against the plaintiff. In fact, in DeVaney we

recognized that the abuse of process tort was broader than malicious prosecution, 1998-

NMSC-001, ¶ 13, and we acknowledged that typical abuses of process involve the

misuse of procedures, such as discovery abuses or the improper issuance of subpoenas.

Id. ¶ 28. Instead of limiting claims for abuse of process, it was the Court’s intention to

preserve both torts, restating them only for the sake of simplicity and to avoid confusion.

See, e.g., id. ¶ 38 (recognizing “that malicious prosecution and abuse of process should

be restated as a single cause of action in order to achieve the ultimate, common purposes

for which they were created”).

{28} Furthermore, the result of applying the first malicious abuse of process element to

typical abuse of process claims would create an inequity that the DeVaney Court could

not have intended. If the initiation of judicial proceedings by the defendant process

abuser against the plaintiff remains a malicious abuse of process requirement, then a

defendant that did not initiate the judicial proceeding may abuse process within that

proceeding without risking malicious abuse of process liability. However, an abuse of

process by the plaintiff could result in a valid malicious abuse of process claim. Such an

inequitable cause of action cannot be what the Court intended, and we are compelled to

correct that oversight.

{29} For these reasons, we overrule DeVaney with respect to its holding that all

malicious abuse of process claims require the defendant to have initiated a judicial

proceeding against the plaintiff. We leave in place the combined tort of malicious abuse

of process, but restate its elements as follows: (1) the use of process in a judicial

proceeding that would be improper in the regular prosecution or defense of a claim or

charge; (2) a primary motive in the use of process to accomplish an illegitimate end; and

(3) damages. An improper use of process may be shown by (1) filing a complaint

without probable cause, or (2) “an irregularity or impropriety suggesting extortion, delay,

or harassment[,]” or other conduct formerly actionable under the tort of abuse of process.

Fleetwood Retail Corp. of N.M., 2007-NMSC-047, ¶ 12 (citation omitted). A use of

process is deemed to be irregular or improper if it (1) involves a procedural irregularity

or a misuse of procedural devices such as discovery, subpoenas, and attachments, or (2)

indicates the wrongful use of proceedings, such as an extortion attempt. DeVaney, 1998-

NMSC-001, ¶ 28 (listing examples of abuse of process). Finally, we emphasize that the

tort of malicious abuse of process should be construed narrowly in order to protect the

right of access to the courts. Id. ¶ 19.

C. FOR THE PURPOSE OF MALICIOUS ABUSE OF PROCESS, AN

ARBITRATION PROCEEDING IS A JUDICIAL PROCEEDING

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{30} Having concluded that it is not a requirement for Guest to have initiated the

judicial proceeding for her to be found liable for any misuse of process within that

proceeding, we must now determine if an arbitration is a “judicial proceeding” for the

purpose of stating a malicious abuse of process claim. Relying on our directive to

narrowly construe the malicious abuse of process tort, the Court of Appeals “decline[d]

to expand its application to arbitration proceedings when a complaint has not been filed

in the underlying action.” Durham, 2007-NMCA-144, ¶ 44. The Court concluded that

“[n]owhere in New Mexico law is the definition of ‘judicial proceeding’ expanded to

include contractual arbitration proceedings conducted before the judicial system has been

accessed.” Id. The issue we must resolve is whether abuses of process in a judicial

proceeding should be treated any differently than identical abuses in an arbitration. We

believe they should not. We therefore reverse the Court of Appeals and hold that an

arbitration proceeding is a judicial proceeding for the purpose of stating a malicious

abuse of process claim.

{31} In any malicious abuse of process claim, the use of process for an illegitimate

purpose forms the basis of the tort. See Richardson, 109 N.M. at 502, 787 P.2d at 421

(“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[.]” (emphasis added) (quoting W.P.

Keeton, D.B. Dobbs, R.E. Keeton, & D.G. Owen, Prosser and Keeton on the Law of

Torts § 121, 898 (5th ed. 1984)). When the judicial process is used for an illegitimate

purpose such as harassment, extortion, or delay, the party that is subject to the abuse

suffers harm, as does the judicial system in general. Thus, the malicious abuse of process

tort makes the process abuser liable to the other party for the harm caused by the abuse of

process. See id. at 501, 787 P.2d at 420 (quoting the Restatement (Second) of Torts §

682 (1976)).

{32} Abuse of process torts have traditionally been limited to abuses in judicial

proceedings. See, e.g., DeVaney, 1998-NMSC-001, ¶ 17 (holding that, to state a

malicious abuse of process claim, “there must be both a misuse of the power of the

judiciary by a litigant and a malicious motive.”). However, New Mexico has a strong

public policy in favor of arbitration as a form of dispute resolution, as expressed in the

Uniform Arbitration Act, NMSA 1978, §§ 44-7A-1 through -32 (2001). See Fernandez

v. Farmers Ins. Co. of Ariz., 115 N.M. 622, 625, 857 P.2d 22, 25 (1993). New Mexico

has specifically determined that arbitration is an acceptable form of dispute resolution

when the parties have agreed to resolve their dispute without accessing the judicial

system. See § 44-7A-7(a) (stating that agreements to arbitrate are “valid, enforceable and

irrevocable except upon a ground that exists at law or in equity for the revocation of a

contract”). We see no reason why we should have any less interest in protecting citizens

against misuses of process in an arbitration when the State has ratified, if not encouraged,

arbitration as a form of dispute resolution.

{33} Furthermore, the processes that are susceptible to abuse in both the civil judicial

system and arbitration proceedings are governed by similar rules such that abuses in

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either forum should subject the abuser to liability. For example, with respect to

subpoenas, the arbitrator “may issue a subpoena for the attendance of a witness and for

the production of records and other evidence” so long as it is “served in the manner for

service of subpoenas in a civil action[.]” Section 44-7A-18(a). In addition, a subpoena

issued in an arbitration may be “enforced in the manner for enforcement of subpoenas in

a civil action.” Id. The arbitrator may also issue discovery-related orders, compel the

attendance of a witness or the production of evidence, and may “take action against a

noncomplying party to the extent a court could if the controversy were the subject of a

civil action in this state.” Section 44-7A-18(d). An arbitrator may also issue a protective

order to the same extent allowed to the district court, § 44-7A-18(e), and “[a]ll laws

compelling a person under subpoena to testify . . . apply to an arbitration proceeding as if

the controversy were the subject of a civil action in this state.” Section 44-7A-18(f).

Therefore, the similarity of these rules of procedure suggest that we should treat abuses

of the processes in an arbitration proceeding just as we would in a judicial forum.

{34} Finally, we note that arbitration awards are subject to confirmation by the district

court, § 44-7A-23, and those awards are final, subject to a very limited scope of judicial

review. Fernandez, 115 N.M. at 625, 857 P.2d at 25 (holding that the Uniform

Arbitration Act does not allow a district court to review an arbitration award on the

merits of the controversy). Magnifying the effect of this limited review, the doctrine of

collateral estoppel is applicable to issues decided in arbitration proceedings. Rex, Inc. v.

Manufactured Hous. Comm., 119 N.M. 500, 505, 892 P.2d 947, 952 (1995). Just as the

rules governing legal processes that may be subjected to abuse are similar in both civil

actions and arbitrations, the outcomes of arbitration proceedings are similarly binding on

the parties. These similarities compel us to treat abuses of process in either forum

identically.

{35} We believe that the use of process in either a judicial or an arbitration proceeding

to harass, extort, delay, or for any other illegitimate end should subject a person to the

same civil liability for the resulting harm. Our interest in seeing that justice and fairness

predominate in the resolution of parties’ disputes is not confined within courthouse walls.

Given this State’s strong public policy in favor of arbitration, the similarities between the

two types of proceedings, and the similarity of the harms that could be inflicted by abuses

of process in either forum, we see no principled reason to distinguish malicious abuse of

process claims on this basis. Therefore, we hold that for the purpose of the tort of

malicious abuse of process, arbitration proceedings are judicial proceedings, and the

improper use of process in an arbitration proceeding to accomplish an illegitimate end

may form the basis of a malicious abuse of process claim.

IV. CONCLUSION

{36} For the reasons stated above, we overrule DeVaney with respect to its requirement

that the defendant have initiated judicial proceedings against the plaintiff in order to state

a claim for malicious abuse of process. We restate the malicious abuse of process tort to

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require: (1) the use of process in a judicial proceeding that would be improper in the

regular prosecution or defense of a claim or charge; (2) a primary motive in the use of

process to accomplish an illegitimate end; and (3) damages. We further hold that an

arbitration proceeding is a judicial proceeding for the purpose of stating a malicious

abuse of process claim.

{37} We therefore reverse the district court’s dismissal of the Durhams’ malicious

abuse of process claim for failure to state a claim for which relief can be granted, and we

likewise reverse the Court of Appeals’ affirmance of that dismissal. We remand this

claim to the district court with instructions to reinstate this matter on its docket.

{38} IT IS SO ORDERED.

EDWARD L. CHÁVEZ, Chief Justice

WE CONCUR:

PATRICIO M. SERNA, Justice

PETRA JIMENEZ MAES, Justice

RICHARD C. BOSSON, Justice

TED BACA, District Judge

(sitting by designation)

Topic Index for Durham v. Guest, No. 30,656

AE APPEAL AND ERROR

AE-EX Exhibits

AE-RA Record on Appeal

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CP CIVIL PROCEDURE

CP-AP Abuse of Process

CP-AT Arbitration

CP-DS Dismissal

CP-MD Motion to Dismiss

CP-RC Record

RE REMEDIES

RE-AN Arbitration

TR TORTS

TR-AP Abuse of Process

TR-MA Malicious Abuse of Process*

TR-MP Malicious Prosecution

* New Topic Index

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