Opposition Brief — Meyers v. Ideal Basic Industries, Inc.

‘ Suprame Court, U.S,

'D

% DEC 19 1999

NO. 91-771

OFFICE OF THE CLERK

IN THE °

Supreme Court of the United States

OCTOBER TERM, 1991

GENE MEYERS, NORMAN WYCHE,

ALDO EBERLE, and DONALD NORTHCUTT,

Plaintiffs-Petitioners,

V.

IDEAL BASIC INDUSTRIES, INC.,

Defendant- Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

~~

Counsel of Record:

J. Warren Jackman Mairen C. Kelly

PRAY, WALKER, JACKMAN, FISHER & PHILLIPS

WILLIAMSON & MARLAR 1500 Resurgens Plaza

Oneok Plaza 945 East Paces Ferry Road

Tulsa, Oklahoma 74103 Atlanta, Georgia 30326

(918) 584-4136 (404) 231-1400

December 19, 1991

QUESTIONS PRESENTED

Whether the Tenth Circuit affirmance of judgment

n.o.v. on Petitioner’s malicious prosecution claim,

which is grounded on-settled Oklahoma common

law, is supported by the record, and raises no

unique, compelling conflicting issues, mandates

denial of this Petition?

Whether, on Petitioners’ malicious prosecution

claim, the Tenth Circuit fully, fairly and accurately

addressed and resolved all material issues raised in

this Petition, thereby mandating summary denial of

this Petition?

Whether Petitioners’ failure to allege an abuse of

judicial discretion mandates affirmance of the trial

court’s conditional grant of new trial?

Whether the Tenth Circuit order affirming

dismissal of Petitioners’ abuse of process claim,

which involves application of Oklahoma common

law to undisputed record facts, is supported by the

record, and involves no unique, compelling or

conflicting issues, mandates denial of this Petition?

Whether, on Petitioners’ abuse-of process claim,

the Tenth Circuit fully, fairly and accurately

addressed all material issues here raised as grounds

for review, thereby mandating summary denial of

this Petition?

TABLE OF CONTENTS

STATEMENT GF Ite CAGE 36k sn wws. i

REASONS FOR DENYING THE WRIT ..... 2

STATEMENT OF RECORD FACTS ........ 3

PIT hh 9 ORE ee eee 6

A. JUDGMENT N.O.V. STANDARDS WERE

POMP e S APO. 6 kc ke ak ee 6

B. TENTH CIRCUIT CONSIDERED AND

REJECTED EACH CHALLENGE TO

JUDGMENT N.O.V.; THERE IS NO

BASIS FOR FURTHER REVIEW. .... 8

l. Uncontroverted Evidence Of

Reliance Negated Malicious

Prosecution; Such Could Not

ff eee rere pore 8

tN

On-Point Oklahoma Law

Establishes The Sufficiency Of The

Disclosure Evidence. .......... 10

a There Is No Evidence That The

Company Had Reason To Reject The

Investigation, Analysis And Advice of

Counsel; Petitioners’ Inferences And

Speculation Do Not Substitute For

I ae 12

4. Petitioners’ "Hostility"

Theory Fails To Present A

SI ow gic os os bee 3s 13

.. THERE IS NO BASIS TO REVIEW

CONDITIONAL GRANT OF A NEW TRIAL;

PETITIONERS NEVER ATTEMPTED TO

SHOW AN ABUSE OF DISCRETION. . 14

D. |THE ABUSE OF PROCESS CLAIM WAS

PROPERLY DISMISSED. NOTHING

WARRANTS FURTHER REVIEW. .... 16

5G Ags 4 5 bles 4 ea 0 6 eo as 20

TABLE OF AUTHORITIES

CASES: :

Blue Goose Growers, Inc. v. Yuma Groves, Inc.

641 F.2d 695 (Sth Cir. 1961) ............ 18

Celotex Corp. v. Catrett,

477 US. 317, 323, 91 L.Ed.2d 265 (1986) .... 7

Chesapeake & O. Ry. Co. v. Martin

283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983 (1931) 8

Community National Life Ins. Co. v.

Parker Square Savings and Loan Assn.

406 F.2d 603 (10th Cir. 1969) ............ 14

Continental Oil Co. v. Natrona Service.Inc.

Se Fame Foe CE, PPD cc ct eee 7

Daniels v. Twin Oaks Nursing Home

692 F.2d 1321 (11th Cir. 1982) ...:........ 8

Donaldson v. Miller,

12 F.20 Goa, Goo (Geno 1937) .... we ees 11

E.E.O.C. v. Sperry Corporation

852 F.2d 503 (10th Cir. 1988) ............. 7

Ford Motor Credit Co. v. Milburn

615 F.2d 892 (10th Cir. 1980) ........... 7,9

Harris v. inones

a? Bae aoe (10th Car. 1974) 2.6 we es 14

Herrick v. Devorak,

Sop Fee ee Cees 29D) 2... cs es 10

Holmes v. Wack

me ae ee cae Oe. T97Z) www es 15

Houghton v. Foremost Financial Services Corp..,

peo Bor te le 18

Houtz v. General Bonding & Insurance Co.

ee ae re eR 6s eee 14

Hurd v. American Hoist & Derrick Co.

Fp Se 2 8 Le AR | i)

Kitchens v. Bryan County Nat. Ban

ae Pe ee ee, Ge, FOE) oe ee ews Y

Lewis v. Crystal Gas Co.,

532 Fae S3i, (eis. 1975) ........ ,& 1.

Lodges 743 and 1746 v. United Aircraft Corp.

534 F.2d 422 (2d Cir. 1975)

cert. denied, 429 U.S. 825 (1976) ..... a, if

Pg ee a ee Pm

703 F.2d 1152, 1168 (10th Cir. 1981) ....... 15

Minneapolis St. P. & S.S.M. Ry. Co. v. Moquin, —

p ie Re ee ) rr 15

Missouri, Kansa é ines v. Meister

330 P.2d S7D COMER, TRGBD ce cece ccc 9, 10, 11

t Wari V an,

31] UD, Bey eI et ws 6

: Constr. Co., 386 U.S. 317, 321, 18

L.Ed.2d 75, 80, 87 S.Ct. 1072 (1967) .......... 6

Vv

533 F.20: 401 (Gi Cin, PPS) 1. sw... .s.. 15

O'Gilvie v. International Playtex, Inc,

S21 F.20 1435 CRG Ge, fee)... ........ 15

Page v. Rose,

546 P.2d 617, 622 (Okla. 1975) ......... 13, 14

Poole v. Leone

374 F.20 96) (MO Re Ee wc wc ee. 14

Rodriguez v. Carroll

510 F. Supp. 547 (S.D. Tex. 1981) ........ 18

Rosersa v. International Harvester Co.

109 F.R.D. 143 (E.D. Wis. 1986) ......... 16

Sage Intern. Ltd. v. Cadillac Gage Co.,

556 F. Supp. 381 (E.D. Mich. 1982) ....... 19

-Vi-

a |

Selle v. Gibb

567 F. Supp. 1173 (N.D. Ill. 1983)

aff'd, 741 F.2d 896 (7th Cir 1984) ..........

Stafos vy Mi : Pacific Railroad C

367 F.2d 314 (10th Cis. 1966)... .......2-.

Tappan v. Ager, 599 F.2d 376 (10th Cir. 1979) ..

5 Vv

482 P.2d 927 (Okla. 1971) ........02.005.

Tulsa Radiology Assoc. v. Hic

683 P.2d 537 (Okla. App. 1984) ........ 17,

W. Vv O istri

793 F.2d 679 (Sth Cir. 1986) ........-.. 15,

Whi Vv O

719 F.2d 1051 (10th Cir. 1983) ...........

Williams v. Frey, 4

78 P.2d 1052 (Okla. 1938) ...... 7, 8, 10, 11,

Worsham v. City of Pasa é

881 F.2d 1336 (Sth Cir. 1989) .......... 15,

-Vii-

18

18

16

15

13

STATUTES:

ee a 0) oe. tot, 6

OTHER AUTHORITIES:

Handbook of the Law of Torts, § 121

I IE lat ota oe ae meek 17, 18

-Vill-

STATEMENT OF THE CASE

These Oklahoma common law claims arise from

a 1988 lawsuit filed by the Ideal Basic Cement

Company! (hereinafter "the Company" or "Ideal")

alleging conspiracy (the "conspiracy claim") and naming

Petitioners as defendants. Petitioners’ Appendix pp.

2a, 3a (hereinafter cited as "App."). The conspiracy

claim and Petitioners’ various counterclaims were

voluntarily dismissed in 1989, with the exception of

Petitioners’ malicious prosecution and abuse of process

claims. Id.

The trial court dismissed the abuse of process

allegations for. failure to state a claim under Oklahoma

law. App. 2a, 3a, 4a-6a. The malicious prosecution

claim went to trial. The jury’s verdict was for

Petitioners. App. 2a, 3a. .

On January 30, 1990, the trial court vacated that

verdict and entered judgment n.o.v. for the Company.

App. 2a, 3a-4a, 9a, 19a. The trial court held that

uncontroverted evidence of reliance on counsel negated

the prima facie element of “lack of probable cause",

and established an absolute defense to malicious

prosecution. App. 17a-19a. The trial court also found

that the jury verdict was against the manifest weight of

the evidence and reflected jury passion and prejudice.

App. 2la-22a. In the absence of judgment n.o.v., a

new trial was required. ld.

l [deal’s inter-corporate structure is as follows: Ideal was

merged into Holnam Inc. on or about March, 9, 1990. Holnam

inc. has one subsidiary not wholly-owned, St. Lawrence Cement,

Inc. Holnam Inc. is owned by Holdernam Inc., which in turn is

owned by Holderbank Financiere Glaris Ltd.

On appeal, the Tenth Circuit examined the

dismissal and judgment n.o.v. issues de novo. App. 4a,

6a. The Court affirmed the trial court’s orders in their

entirety (App. 6a, 13a) and thereafter denied

Petitioners’ Motions for Rehearing and Rehearing En

Banc.

REASONS FOR DENYING THE WRIT

This Petition raises issues and arguments

identical to those presented to the Tenth Circuit. The

Petition involves nothing more than the application of

fundamental Oklahoma tort law to record facts.

Petitioners seek Supreme Court review based upon

nothing more than their disagreement with the Tenth

Circuit assessment of the record and application of

settled law.

The Tenth Circuit’s affirmance of judgment

n.o.v. on Petitioners’ Oklahoma malicious prosecution

claim was proper. Uncontroverted evidence established

the Company’s reliance on counsel as a complete

defense and negated an essential element of malicious

prosecution. Petitioners’ inferences and opinions do

not substitute for evidence; there is nothing tc warrant

further review.

As to the trial court’s conditional grant of new

trial, Petitioners never even attempt to meet their

burden of showing that such was an abuse of discretion.

Petitioners’ Oklahoma abuse of process claim

was properly dismissed because they never pled any

facts establishing that the Company’s 1988 conspiracy

claim against Petitioners constituted misuse of the

judicial process for a purpose unwarranted by the

-.

|

complaint. Alleged improper motive in filing is entirely

insufficient to support their tort claim and the trial

court and Tenth Circuit correctly so held.

Each and every argument proffered by

Petitioners was fully, fairly and accurately reviewed by

the Tenth Circuit. There is no issue of fact or law

warranting further review. This Petition should be

denied in its entirety.

STATEMENT OF RECORD FACTS

In 1987 and 1988, the Company’s Ada

Oklahoma plant became the target of serial acts of

sabotage.” App. 3a, 8a, lla. At the same time,

workers’ compensation claims were filed by twenty-five

percent of the workforce, an unprecedented figure. Id.

Management consulted with counsel specializing in

labor matters and disclosed all facts known. App. 3a,

8a, 9a, 12a. Management did not know if it had any

legal recourse or who, if any, among its employees

might be involved in misconduct. App. 3a, 8a, 9a-10a,

1la-12a.

Management requested the lawyer to conduct an

investigation. App. 3a, 12a. Counsel was given full

access to Company personnel, records and facilities.

App. 3a, 8a, 12a. After on-site investigation and off-

site analysis, counsel advised the plant manager that

facts disclosed by his investigation warranted the filing

of a lawsuit. Id. Counsel identified Petitioners as the

2 Due to an impasse in collective bargaining negotiations,

the plant’s unionized employees, including Petitioners, had worked

without a contract since 1984. App. 2a.

4.

individuals to be named as defendants. App. 3a, 8a,

lla-12a. The Company had never singled out these

four or suggested that they be targets of investigation.

App. 8a, lla-12a. The trial court found and Tenth

Circuit confirmed uncontroverted evidence that, acting

in reliance on counsel’s conclusions and advice

concerning the lawsuit and these Petitioners, the

Company filed the 1988 conspiracy suit. App. 3a, 8a,

lla-12a, 16a-17a, 18a.

Petitioners disagree with the trial court and

Tenth Circuit, and insist that the Company had specific

information that should have alerted it that the lawyers’

conclusions regarding these four Petitioners were

erroneous. Petition for Certiorari, pp. 10-13, 18-19

(hereinafter cited as "Pet."). The Tenth Circuit fully

considered that argument and held that there was no

proof of Company notice of exonerating circumstances:

. . Mr. Sauer [general manager and

decision-maker] did not possess any

evidence as to the Appellants, nor did he

encourage or suggest these Appellants be

named. Mr. Sauer clearly testified his

decision to bring the lawsuit against the

four Appellants was made in reliance

upon the investigation and advice of

counsel. No evidence exists in the record

to suggest otherwise. ... Mr. Sauer was

entitled to assume Mr. Kruger [the

Company’s counsel] considered all

relevant information in making his

recommendation as to the existence of

sufficient factual and legal basis to bring

-4.

a lawsuit against these four Appellants.

Ideal did not know anything about these

App. 1la-12a (emphasis in original).

Petitioners have pointed to what they consider

the Company’s "body of knowledge" which they believe

should have convinced the Company of their innocence.

Pet. 10-13, 18-19. Petitioners’ own version of this

information contains nothing which would necessarily

remove these four from any possible participation in

the conspiracy alleged. And, this "body of knowledge"

was made fully available to the attorney. App. 3a, 8a,

12a. The Tenth Circuit held that the company was

entitled to rely on the attorney’s assessment of this

information in making his analysis and recommendation

to the Company. App. 1la-13a.

There was no evidence to impeach or contradict

management’s unequivocal testimony that it retained

counsel, requested an investigation, and thereafter acted

in accord with and in reliance on counsel’s advice.

App. 3a, 8a, 9a, 1la-12a.

Concerning the abuse of process claim, the

Petitioners’ complaint alleges that the Company’s

"improper purpose" in filing the 1988 conspiracy claim

was to interfere with legitimate workers’ compensation

claims and obtain labor concessions. App. 4a-5Sa, 37a-

38a. The trial court pointed out that the legitimacy of

the workers’ compensation claims and labor tactics

were cornerstones of the underlying 1988 conspiracy

claim. App. 38a. Such matter, fully within the four

corners of the original complaint, could not be labelled

a collateral "improper purpose"; it could not sustain an

abuse of process claim. Id. The Tenth Circuit

affirmed, citing the body of the case law establishing

that alleged ulterior motive in filing suit, even if taken

as true, is entirely insufficient to state an Oklahoma

abuse of process claim. App. 4a-6a.

By order of November 14, 1991, the Tenth

Circuit denied Petitioners’ Motions for Rehearing and

Rehearing En Banc. This Petition for Certiorari

followed.

ARGUMENT

A. JUDGMENT N.O.V. STANDARDS WERE

PROPERLY APPLIED.

Petitioners attempt to present a federal question

by arguing that Fed.R.Civ.P. 50(b), authorizing

judgment n.o.v., denied Petitioners’ seventh aggendment

right to a jury trial. This contention has been explicitly

rejected by this Court. Neely v. Eby Constr. Co., 386

U.S. 317, 321, 18 L.Ed.2d 75, 80 (1967), citing

Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 85

L.Ed. 147 (1940). Moreover, the Tenth Circuit

considered and_ rejected Petitioners’ Seventh

Amendment argument. App. 6a-7a. Petitioners’

attempt to transform an Oklahoma state law question

into a federal constitutional question for purposes of

this Petition, must fail.

Under Oklahoma’s law of malicious prosecution,

reliance on counsel is more than an _ affirmative

defense; such evidence negates the prima facie element

of lack of probable cause. Lewis vy. Crystal Gas

Company, 532 P.2d 431, 433 (Okla. 1975). Where

reliance on counsel is uncontroverted, the malicious

prosecution claim fails; judgment for defendant is

required based on the plaintiff's failure of proof. Id.

See also Williams v. Frey, 78 P.2d 1052 (Okla. 1938).

Federal evidentiary prerequisites governing entry

of judgment n.o.v. are settled. Failure of a prima facie

element signals failure of the claim. Celotex Corp. v.

Catrett, 477 U.S. 317, 323, 91 L.Ed.2d 265 (1986).

Under such circumstances, judgment n.o.v. is required.

E.E.0.C, v. Sperry Corp., 852 F.2d 503 (10th Cir. 1988)

(plaintiffs theories unsupported by sufficient evidence;

trial court erred in denying JNOV). Where

uncontroverted evidence establishes an affirmative

defense, judgment n.o.v is required. Ford Motor Credit

Co, v. Milburn, 615 F.2d 892, 897 (10th Cir. 1980) (trial

court erred in refusing JNOV in favor of party with

burden of proof); Continental Oil Co, v. Natrona

Service, Inc., 588 F.2d 792, 799-800 (10th Cir. 1978)

(upholding directed verdict and JNOV for party with

burden of proof).

The instant Tenth Circuit decision fully comports

with federal judgment n.o.v. standards and governing

Oxkiahoma law. There is no basis whatsoever for

further review. This Petition should be summarily

rejected in its entirety.

B. TENTH CIRCUIT CONSIDERED AND

REJECTED EACH CHALLENGE TO

JUDGMENT N.O.V.; THERE IS NO

BASIS FOR FURTHER REVIEW.

1. Uncontroverted Evidence Of

Reliance Negated Malicious

Prosecution; Such Could Not

Be Ignored.

The Tenth Circuit held that evidence establishing

disclosure of all known facts and good faith reliance on

counsel was entirely uncontroverted. App. 9a, 1la-12a,

13a. The instant Petition sets forth nothing more than

Petitioners’ disagreement with the Tenth Circuit, based

upon their own partisan opinions, inferences and

speculations. Such are wholly insufficient to overcome

the plain uncontroverted evidence.

Chesapeake & O.

Ry. Co. v. Martin, 283 U.S. 209, 216, 51 S.Ct. 453, 456-

457, 75 L.Ed. 983 (1931); Daniels v. Twin Oaks

Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1982)

("an inference is not reasonable if it is ‘only a guess or

a possibility, unsupported by evidence").

3 This record mirrors Williams v. Frey, 78 P.2d 1052 (Okla.

1938). There, as here, the evidence affirmatively established

disclosure of known facts to counsel; and action in accord with

counsel’s advice. In Williams, plaintiffs inferences and skepticisms

proffered to refute reliance were flatly rejected. Id. at 1055.

ee Nef

The significance of uncontroverted, unimpeached

evidence is settled law; such must be taken as true:

[T]his testimony standing uncontradicted,

unimpeached, and not discredited by

cross-examination must be taken as true.

Hurd v. American Hoist & Derrick Co,, 734 F.2d 495,

500 (10th Cir. 1984); see also Stafos v. Missouri Pacific

Railroad Co,, 367 F.2d 314, 317 (10th Cir. 1966)

("controlling, positive, uncontradicted and unimpeached

evidence may not be disregarded even though adduced

from interested witnesses; the trier of fact is bound to

honor it"); Ford Motor Credit Co, v. Milburn, 615 F.2d

892, 897 (10th Cir. 1980) (uncontradicted, unimpeached

testimony required judgment n.o.v.); Selle v. Gibb, 567

F. Supp. 1173 (N.D. Ill. 1983), aff'd, 741 F.2d 896 (7th

Cir. 1984) (jury verdict could not be reconciled with

uncontradicted and unimpeached defense testimony;

judgment n.o.v. required).

The trial court and Tenth Circuit found

uncontroverted evidence that Company management

disclosed all known facts; gave counsel full access to

Company data; and received and relied on counsel's

advice. App. 3a, 8a, 9a, lla-12a, 16a-17a, 18a-19a.

These facts constitute good faith reliance, which is a

complete defense to malicious prosecution § in

Oklahoma. Lewis v. Crystal Gas Company, 532 P.2d

431, 433 (Okla. 1975); Thompson v. Inman, 482 P.2d

927, 939 (Okla. 1971); Missouri, Kansas & Oklahoma

Coach Lines v Meister, 330 P.2d 579, 582 (Okla. 1958).

In Oklahoma, a party is entitled to rely on

counsel because counsel is the “better judge” of

whether known facts warrant litigation. Williams v.

Frey, 78 P.2d 1052, 1057 (Okla. 1938). A charging

party is fully entitled to rely on counsel’s investigation

and evaluation of the underlying facts. Herrick v.

Devorak, 155 P. 1153, 1154 (Okla. 1916).4 Under such

circumstances, the party is not obliged to undertake its

own investigation of the facts, or second guess the

attorney’s conclusions. Williams, 78 P.2d at 1057.

In full uccord with the record and governing

Oklahoma tort law and federal j.n.o.v. standards, the

trial court and Tenth Circuit held that uncontroverted

proof of reliance on counsel disposed of the malicious

prosecution claim. Governing authorities and

uncontroverted evidence fully support their conclusions.

There is no basis whatsoever for further review. The

instant Petition should be summarily denied.

4 On-Point Oklahoma Law

Establishes The Sufficiency Of The

Disclosure Evidence.

Petitioners contend that disclosure to counsel

was inadequate because information concerning "these

Petitioners" was not assembled and evaluated by the

Company. Pet. 20-21. The identical argument was

rejected by the trial court and the Tenth Circuit. App.

lla-12a, 16a, 17a-18a.

4 See also Missouri, Kansas & Oklahoma Coach Lines v.

Meister, 330 P.2d 579, 582 (Okla. 1958) (the charging party

secured the personal presence of an attorney and relied on his

counsel’s investigation; the charging party “did all that could

reasonably be expected").

-10-

The uncontroverted fact, confirmed by the Tenth

Circuit, is that at the time counsel was consulted and

directed to investigate, the Company had never

identified "these men". Id. The Company had no

reason to assemble information particular to them.

Counsel had full access to the universe of Company

information regarding "these men". App. 3a, 8a, 12a.

The Company was entitled to rely on counsel’s

evaluation of such data, and counsel’s opinion that

facts warranted litigation against them.

In Oklahoma, the disclosure required for

reliance on counsel means "known facts" bearing on the

matter at hand. Lewis v. Crystal Gas Co., 532 P.2d

431, 433 (Okla. 1975). Disclosure is satisfied if the

reporting party states his knowledge and makes any

additional documentary evidence available. Missouri

Kansas & Oklahoma Coach Lines v. Meister, 330 P.2d

579, 582 (Okla. 1958).

Oklahoma has considered and refused to impose

an affirmative duty of diligent inquiry or investigation

on the party relying on counsel. Williams, 78 P.2d at

1057. In Williams, the charging party testified that "I

told [counsel] all the circumstances . . . that I knew."

78 P.2d at 1055. That testimony was sufficient to

establish full disclosure and support reliance on

counsel.

5 See also Donaldson v. Miller, 72 P.2d 853, 855 (Idaho

1937) (where independent investigation of counsel is undertaken

at request of charging party, the charging party “would not be

liable as for malicious prosecution even though the prosecuting

attorney’s advice was unsound or erroneous. . . . [I]f any mistake

was made it was not the mistake of [the charging party]").

ai.

Here, the trial court and Tenth Circuit

concluded that this record uncontrovertedly established

full disclosure of the facts known to management.

App. 12a, 18a-19a. Uncontroverted testimony

established that these four were never identified by the

Company. App. 1la-12a, 16a, 17a-18a. The Company

relied on counsel’s investigation, conclusions and

advice. Id. On the disclosure issue, governing

Oklahoma law was correctly applied. There is no basis

for further review.

3. There Is No Evidence That The

Company Had Reason To Reject The

Investigation, Analysis And Advice of

Counsel; Petitioners’ Inferences And

Speculation Do Not Substitute For

Evidence.

Petitioners ask this Court to review the Tenth

Circuit’s "single finding" that the Company “did not

know anything about [Petitioners] that would have

alerted them to a concern as to the propriety of Mr.

Kruger’s recommendation." Pet. 17-18. Petitioners

point to Company records concerning “these

Petitioners" and claim that the Company had reason to

know that they were innocent and should not be sued.

Pet. 18-19. In fact, the "body of knowledge” recited in

this Petition does not contain any exculpatory fact

which would constitute notice that the attorney’s advice

was in error. Moreover, this "body of knowledge” was

made fully available to counsel, and the Company was

entitled to rely on counsel’s evaluation:

Mr. Sauer was entitled to assume Mr.

Kruger considered all relevant information

in making his recommendation as to the

existence of sufficient factual and legal

basis to bring a lawsuit against these four.

App. 12a. see Lewis, 532 P.2d at 434; Williams, 78

P.2d at 1057.” Petitioners’ opinionated and speculative

disagreement with the Tenth Circuit is no_ basis

whatsoever for further review. This Petition should be

denied.

4. Petitioners’ "Hostility" Theory Fails

To Present A Fact Question.

Additionally, Petitioners argue that Supreme

Court review is required because they believe the

record establishes the Company and/or its manager

were hostile to the workforce. Pet. 22-24. Even if

such innuendo could be properly raised, such is wholly

insufficient to create a fact question regarding reliance.

The Oklahoma Supreme Court’s decision in Page v.

© Petitioners argue that the Tenth Circuit decision is error

because these was no evidence linking these Petitioners to a

sabotage. Pet. 13, 19-20. The contention is meritless; the attorney

conducted the investigation, factually identified these Petitioners

as participants in a labor conspiracy and advised the Company

concerning the legal theories to be asserted. As a matter of

Oklahoma law, the Company was entitled to rely on counsel's

advice concerning the sufficiency of facts to warrant litigation.

-13-

Rose, 546 P.2d 617, 622 (Okla. 1975) is directly on

point:

Assuming that malice entered into

[defendants’] actions in this situation or

even prompted a vigilance . . . they might

not otherwise have undertaken . . . [such]

does not establish lack of probable cause.

Id. The Company’s reliance on counsel stands

uncontroverted. Nothing warrants further review. This

Petition should be denied in its entirety.

C. THERE IS NO BASIS TO REVIEW

CONDITIONAL GRANT OF A NEW TRIAL;

PETITIONERS NEVER ATTEMPTED TO

SHOW AN ABUSE OF DISCRETION.

Extreme deference is accorded a trial court’s

ruling on motion for new trial. Houtz v. General

Bonding & Insurance Co., 235 F.2d 591 (10th Cir.

1956) (although judgment n.o.v. reversed, order for a

new trial affirmed). Absent a showing of abuse, the

trial court’s ruling will not be disturbed. Harris v.

Quinones, 507 F.2d 533 (10th Cir. 1974); see also

Savings and Loan Assn., 406 F.2d 603, 605 (10th Cir.

1969) ("[t]he trial judge is best equipped to apply the

standard enunciated"); Poole v. Leone, 374 F.2d 961,

963 (10th Cir. 1967) ("motion for a new trial is

addressed to the sound discretion of the trial court’).

The trial court is in the best position to

determine whether a jury’s verdict is excessive or

ah

et ee

influenced by passion or prejudice. Its judgment will

be disturbed only if the record manifests a gross abuse.

See, ¢.g., Worsham v. City of Pasadena, 881 F.2d 1336,

1338 (Sth Cir. 1989); Nodak Oil Co. v. Mobil Oil

Corp., 533 F.2d 401, 410-411 (8th Cir. 1976); Holmes

v. Wack, 464 F.2d 86, 89 (10th Cir. 1972). Here,

Petitioners never even attempt to argue the presence of

abuse.

Petitioners contend that assessment of damages

is the exclusive province of the jury.’ Petitioners fail

to comprehend that the responsibility and duty to set

aside the jury’s verdict as excessive, the product of

passion, and/or against the weight of the evidence, is

the exclusive province of the trial court. Whitely v.

OKC Corp., 719 F.2d 1051, 1058 (10th Cir. 1983);

Holmes _v. Wack, 464 F.2d 86, 89 (10th Cir. 1972).

Such judicial responsibilities are no invasion of the jury

system. Id.

Where the court determines that passion or

prejudice influenced the jury, a new trial on all issues

is required. Malandris v. Merrill Lynch, Pierce, Fenner

& Smith, 703 F.2d 1152, 1168 (10th Cir. 1981)

(remittitur not proper; absent judgment n.o.v., a new

trial is required).” The trial court’s finding of passion

7 QGilvie v. International Playtex, Inc,, 821 F.2d 1438 (10th

Cir. 1987), provides no authority to overturn the trial court’s new

trial ruling. In O’Gilvie, there was no trial court finding of

excessiveness and no Tenth Circuit application of the abuse of

discretion standard.

5 See Minneapolis St. P. & S.S.M. Ry. Co. v. Moguin, 283

U.S. 520, 51 S.Ct. 501 (1931) (no verdict can stand which is, in

any degree, the result of passion and prejudice); Wells v. Dallas

-15-

or prejudice is afforded great deference; it may be

disturbed only upon a showing of abuse of discretion.

Worsham v. City of Pasadena, 881 F.2d 1336, 1338 (Sth

Cir. 1989).

Petitioners never attempt to identify any facts to

suggest that the district court’s conditional grant of a

new trial constituted an abuse of discretion. Petitioners

present no legitimate basis for this Court’s further

review. This Petition should be summarily rejected.

D. |THE ABUSE OF PROCESS CLAIM WAS

PROPERLY DISMISSED. NOTHING

WARRANTS FURTHER REVIEW.

In affirming the dismissal of Petitioners’ abuse of

process claim, the Tenth Circuit focused on the third

element of Oklahoma abuse of process which requires

pleading of:

[sjome definite act or threat not

authorized by the process, or aimed at an

objective not legitimate in the use of the

process....

Independent School District, 793 F.2d 679, 683 (Sth Cir. 1986)

(remittitur from $1.9 million to $250 thousand insufficient; new

trial required); Rosersa v. International Harvester Co., 109 F.R.D.

143, 152 (E.D. Wis. 1986) ("it is unmistakably clear that remittitur

may not be employed to cure . . . an excessive verdict that resulted

from passion, prejudice, or caprice").

.’%

Tulsa Radiology Assoc. v. Hickman, 683 P.2d 537, 539

(Okla. App. 1984), citing Prosser, Handbook of the

Law of Torts, § 121 (4th ed. 1971); App. 4a, 37a.

The instant abuse of process claim is grounded

on Petitioners’ allegation that the 1988 conspiracy case

was filed with the objective of “intimidating . . .

employees ... into an abandonment of their legitimate

Workers’ Compensation claims." App. 5a (emphasis

added). The trial court fully recognized that the

legitimacy of workers’ compensation claims was a

pivotal issue in the conspiracy case. App. 38a.

Petitioners have never alleged facts to demonstrate that

the Company misused the court’s process for a purpose

unrelated to.such conspiracy issues:

There is no showing that Ideal was using

its lawsuit for a coercive purpose to

obtain an advantage that was collateral to

the lawsuit itself.

Id. (emphasis in original).

Abuse of process requires more thar an

allegation that the charging party had an _ ulterior

motive in filing the litigation. Lodges 743 and 1746 v.

United Aircraft Corp., 534 F.2d 422 (2d Cir. 1975),

cert. denied, 429 U.S. 825 (1976). In Lodges 743, a

union alleged that an employer filed a lawsuit to force

the union to withdraw certain unfair labor charges. Id.

at 464. The pleading failed to allege "action. . . to

utilize the court’s process . . . for collateral purposes

not related to the suit in question.” Id. at 465.

Alleged wrongful motive or intent did not render the

2%

litigation an abuse of process; such allegation could not

sustain a claim.

In Tulsa Radiology Assoc. v. Hickman, 683 P.2d

537, 539 (Okla. App. 1984) the Oklahoma Court of

Appeals reiterated that alleged bad intent does not

state an abuse of process claim:

[T]here is no liability where the defendant

has done nothing more than carry out the

process to its authorized conclusion, even

though with bad intenti

Hickman, 683 P.2d at 539, quoting Prosser, Handbook

of the Law of Torts, § 121 (4th ed. 1971) (emphasis

added). See also Blue Goose Growers, Inc. v. Yuma

Groves, Inc., 641 F.2d 695, 697 (9th Cir. 1981)

(initiation of lawsuit and pursuit of discovery process

based upon ulterior motive insufficient to support abuse

of process); Rodriguez v. Carroll, 510 F. Supp. 547, 553

(S.D. Tex. 1981) ("[i]ssuance of process with malicious

intent or without probable cause .. . is not

actionable").

In Houghton _v. Foremost Financial Services

Corp., 724 F.2d 112 (10th Cir. 1983), abuse of process

was grounded on litigation allegedly undertaken for an

illegal purpose entirely remote from the issues framed

by the underlying replevin complaint. Here, the

9 In Tappan v. Ager, 599 F.2d 376 (10th Cir. 1979), the

Tenth Circuit applied Kansas principles identical to Oklahoma

abuse of process law and explained that the element of ulterior

purpose is satisfactory only if "the ulterior purpose or motive. .

. €xist{S] Outside of the process itself." Id. at 379-80.

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an aol

"legitimacy" of workers’ compensation claims was a

cornerstone issue of the underlying action. The

Petitioners never alleged any improper motive

"collateral" to the original lawsuit.

Here alleged ulterior motive involves legitimacy

(or illegitimacy) of workers’ compensation claims. Such

is inextricably linked to the crux of the underlying case.

As such, it is legally insufficient to state an abuse of

process claim. The cause of action was properly

dismissed. 10 Nothing warrants further review.

The facts governing this abuse of process claim

are entirely undisputed. The Tenth Circuit carefully

evaluated the body of Oklahoma authorities, and

reiterated and applied governing axioms. App. 6a.

The Tenth Circuit fully addressed and correctly decided

10 Sage Intern. Ltd. v. Cadillac Gage Co., 556 F. Supp. 381

(E.D. Mich. 1982), is on point. There, the ostensible purpose of

the underlying lawsuit was to stop unlawful competition.

Plaintiffs abuse of process claim alleged that the “ulterior

purpose” was to stop all competition, lawful or unlawful. The

alleged “ulterior purpose" was inextricably linked to a disputed

issue in the original claim; it could not support an abuse of

process claim:

Defendants’ ostensible purpose in the [underlying]

action was to prevent plaintiffs from competing

with defendants through the use of defendants’

trade secrets and proprietary information.

Defendants’ alleged ulterior purpose was to

prevent plaintiffs from competing at all. This is

not a collateral purpose . . . because such a

purpose is indistinguishable from that of the

ostensible purpose ....

Id. at 389

-19-

this Oklahoma tort law question. There is no fact or

circumstance warranting further review. The record

and governing authorities mandate that this Petition be

denied in its entirety.

CONCLUSION

For all the reasons herein stated based upon

dispositive Oklahoma and federal standards, this cause

was fully, fairly and accurately decided by the Tenth

Circuit Court of Appeals. This Petition raises no

compelling issues which would, in any manner, warrant

further review. This Petition should be summarily

rejected in its entirety.

Respectfully submitted,

IDEAL BASIC INDUSTRIES, INC.

Mairen C. Kelly

Counsel of Record

FISHER & PHILLIPS

1500 Resurgens Plaza

945 East Paces Ferry Road

Atlanta, Georgia 30326

(404) 231-1400

-20-

J. Warren Jackman

PRAY, WALKER, JACKMAN,

WILLIAMSON & MARLAR

Oneok Plaza

Tulsa, Oklahoma 74103

(918) 584-4136

December 19, 1991

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