COURT OF APPEALS DECISION DATED AND RELEASED December 5, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3188
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
JAMES SARLUND,
Plaintiff-Appellant,
v.
KIMBERLY MORK,
Defendant-Respondent.
APPEAL from orders of
the circuit court for Dane County:
PAUL B. HIGGINBOTHAM, Judge.
Affirmed in part; reversed in part and cause remanded with directions.
Before Eich, C.J.,
Dykman, P.J., and Vergeront, J.
PER
CURIAM. James Sarlund and Richard A. Lyshek, Jr., his
attorney, appeal from an order dismissing Sarlund's complaint and finding it
frivolous, and from an order setting the amount of fees and costs they must
pay. We affirm in part, reverse in
part, and remand for further proceedings.
Sarlund, represented by
Lyshek, filed a complaint in March 1995 alleging abuse of process by defendant
Kimberly Mork. The complaint alleged that
in December 1993 Mork obtained a restraining order against Sarlund. He alleged she then abused legal process to
have him prosecuted for violating that order, and that she did so to retaliate
against Sarlund because of the "informant role" he played in
convicting two persons Sarlund alleged to be friends of Mork's.
Mork moved to dismiss
the complaint. Sarlund sought to depose
Mork, but she successfully moved to have the notice quashed. The circuit court then dismissed the
complaint for failure to state a claim.
It also concluded Sarlund and Lyshek knew or should have known that the
complaint was lacking a reasonable basis in law. See § 814.025(3)(b), Stats. The court
later awarded several thousand dollars in costs and fees to Mork.
Sarlund first argues the
court erred in quashing his notice to depose Mork. He argues that Mork's motion to dismiss was converted to summary
judgment under § 802.06(3), Stats.,
by submission of additional materials, and that the court's quashing of his
notice prevented him from providing materials necessary to argue on that
basis. He also argues that the quashing
of the notice prevented the appellants from obtaining information necessary to
defend against the argument that the suit was frivolous.
We conclude that any error
would be harmless. The first step in
summary judgment analysis is to determine whether the complaint states a
claim. Grams v. Boss, 97
Wis.2d 332, 338, 294 N.W.2d 473, 476 (1980).
The circuit court concluded, solely from the face of the complaint, that
Sarlund did not state a claim.
Therefore, a deposition of Mork never would have become part of the
court's analysis. Its absence cannot
have harmed Sarlund. Similarly, Mork's
deposition would have been irrelevant to deciding what the appellants knew or
should have known at the time they filed the action.
The next issues require
a review of the elements of a claim for abuse of process. They are:
(1) a purpose other than that which the process was designed to
accomplish, and (2) a subsequent misuse of the process. Strid v. Converse, 111 Wis.2d
418, 427, 331 N.W.2d 350, 355 (1983).
In Thompson v. Beecham, 72 Wis.2d 356, 363, 241 N.W.2d
163, 166 (1976), the court stated:
In
order to maintain an action for abuse of process, the process must be used for
something more than a proper use with a bad motive. The plaintiff must allege and prove that something was done under
the process which was not warranted by its terms. The existence of an improper purpose ... must also culminate in
an actual misuse of the process to obtain some ulterior advantage.
We assume for purposes
of appeal that Sarlund would have been able to prove the factual allegations of
his complaint. However, even so, the
appellants should have known that those facts fail to state a claim for abuse
of process because no inference can be drawn that Mork did something under the
process which was not warranted by its terms.
It is not abuse of process solely because she may have acted out of bad
motive or improper purpose. Id.
at 362-63, 241 N.W.2d at 165-66.
The appellants argue
that their abuse of process theory is not frivolous because it could be
supported by a good faith argument for an extension, modification or reversal
of existing law. See
§ 814.025(3)(b), Stats. Specifically, they argue Mork's acts were in
retaliation for Sarlund's informant role, and therefore violated 18 U.S.C. §§
1512 and 1513 which prohibit respectively tampering with or retaliation against
a victim, witness or informant.
The first of these
statutes prohibits conduct which attempts to prevent or discourage one of those
persons from taking some action in the future, such as testifying. Here there is no allegation that Sarlund's
informant role was ongoing or that he was expected to take action in the future
regarding Mork's alleged friends.
Therefore, there is no basis to argue that Mork violated this
statute. The second statute,
retaliating against a witness, victim or informant, prohibits conduct causing
bodily injury or damage to tangible property of such a person. Mork's alleged conduct in this case did
neither. Therefore, we reject the
argument that these statutes provide a good faith basis for Sarlund's abuse of
process claim.
The appellants also
argue that the circuit court made inadequate findings in determining that
Sarlund's claim was frivolous. We
reject this argument. The findings were
adequate.
Finally, the appellants
argue that the trial court improperly ordered Sarlund and Lyshek to be jointly
liable for the entire amount of fees assessed.
Mork concedes that the circuit court must apportion the fees between
Sarlund and Lyshek. Therefore, we
reverse and remand with directions to do so.
By the Court.—Orders
affirmed in part; reversed in part and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.