Day on Torts
In Parvin v. Newman, No. E2016-00549-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2016), the Court of Appeals affirmed summary judgment for defendant in an abuse of process claim.
Husband and wife had litigated a contentious divorce, and during the course of that proceeding, wife had filed a Motion to Impose Sanctions for Contempt. Nine months and many filings later, a Final Judgment of Divorce was entered in the case, with the parties stipulating to the terms of the divorce. Particularly of note, the divorce judgment stated that “the parties had reached an agreement to settle and compromise all of the matters in dispute between them and that they [had] freely, voluntarily and knowingly entered into an agreement that is reflected” in the final judgment.
Three months after the divorce was finalized, husband filed this abuse of process claim against wife, alleging that “Wife’s purpose in filing her July 2014 contempt motion had been to harass him, cause him to incur unnecessary expenses to defend the motion, weaken his resolve to continue litigation of the divorce, and settle for terms favorable to wife.” Wife argued, however, that “husband’s complaint should be dismissed on the basis of res judicata and because the undisputed facts negate the essential elements of husband’s claims for abuse of process.”
The trial court ultimately granted summary judgment to wife on the basis of both res judicata and husband’s inability to prove his case, and the Court of Appeals affirmed.
Plaintiff husband argued that his abuse of process claim was a separate tort claim that he had not had the opportunity to litigate in the divorce case. He stated in an affidavit to the trial court that “if [he] had amended [his] divorce complaint to allege abuse of process it would have hardened wife’s position toward settlement.” He also asserted that he “entered into the divorce settlement under duress,” as he “did not want to have to defend [himself] against charges that might [have] land[ed] [him] in jail.” The Court, though, rejected this argument.
“The doctrine of res judicata or claim preclusion bars a second suit between the same parties or their privies on the same claim with respect to all issues which were, or could have been, litigated in the former suit.” (internal citation omitted). Here, the Court analyzed “whether the same claim or cause of action was asserted in both suits.” Despite husband’s assertions that he did not have the opportunity to litigate his tort claim in the divorce case, the Court noted that husband failed to request a hearing on wife’s contempt motion before entry of the final judgment, despite having nine months to do so. The Court reasoned:
Husband insists that he waited to file his complaint because he wanted to be sure the divorce judgment was final before he alleged that Wife had committed abuse of process. In no way does Husband allege that he was unaware of his potential claim for abuse of process when he entered into the consent order, and he certainly does not allege that Wife was concealing the basis for such a claim from him at the time. We determine that Husband had ample opportunity in the nine months between the filing of Wife’s contempt motion and the entry of the divorce judgment to fully and fairly litigate the basis for any potential abuse of process claim regarding the contempt motion by requesting a hearing on the motion before entering into a final consent order.
The Court accordingly affirmed summary judgment based on res judicata.
The Court also affirmed summary judgment on the grounds that husband could not prove the elements of abuse of process. A plaintiff asserting abuse of process must show “(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.” (internal citations omitted). Here, the Court found that “(1) Husband presented no evidence to contradict Wife’s assertion in her affidavit that she filed the contempt motion in good faith, and (2) Wife’s contempt motion was a ‘lawful’ and ‘appropriate use of process’ filed in the divorce action to address acts allegedly not accomplished by Husband after he was ordered to accomplish them.” Further, the Court noted that husband was allegedly seeking damages for emotional distress, which would indicate he was advancing a claim for intentional infliction of emotional distress, but that he “allege[d] no conduct on the part of Wife in filing a contempt motion that could conceivably rise to the level of this tort.”
Finally, the Court affirmed the trial court’s award of Rule 11.02 sanctions against husband’s attorneys. The Court found that “Husband’s counsel had no reasonable basis upon which to believe that any litigation related to Wife’s contempt motion remained unresolved by the parties’ divorce settlement and final judgment,” and that “a reasonable pre-filing investigation…would have demonstrated to Husband’s counsel that a defense of res judicata was bound to prevail…” Thus, sanctions against the attorneys of over $9,700 were affirmed.
This case serves as a cautionary tale in two ways. First, before a final judgment is agreed upon, make sure you have litigated all the claims you care to litigate. You most likely won’t be able to reopen the door on claims related to that case down the road. Second, as lawyers, it is our duty to fully investigate the merits and the legal standing of a claim before we file it. Failure to do so could lead to substantial sanctions in some cases.