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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1058

## Text

‘ 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

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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.

-18-

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

ah

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2014%3A2. Public record. Not legal advice.