RENDERED: April 4, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 95-CA-1057-MR
SHIRLEY ANN WHILES
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
ACTION NO. 94-CI-0612
v.
MELVIN WHILES
APPELLEE
AND
NO. 95-CA-1670-MR (DIRECT)
NO. 95-CA-1761-MR (CROSS)
MELVIN WHILES
v.
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
ACTION NO. 94-CI-0612
SHIRLEY ANN WHILES
APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING
* * * * * * *
BEFORE:
BUCKINGHAM, COMBS, and KNOPF, Judges.
KNOPF, JUDGE:
This appeal has a long and complicated history.
It began in an unrelated dissolution of marriage action between
the appellee/cross-appellant Shirley Ann Whiles and Thomas Whiles
(not a party to this action).
During that action, Shirley and
Thomas brought a third party complaint against Thomas's parents,
Melvin and Marie Whiles.
They contended that Melvin and Marie
orally agreed to sell to them certain real property located in
Campbell County, Kentucky.
contract.
They sought a judgment enforcing the
Melvin and Marie took the position that no enforceable
land sale contract existed, and that Shirley and Thomas were
merely tenants-at-will on the property.
After the master commissioner's hearing in that action,
but prior to the entry of the master commissioner's report,
Melvin filed a forcible detainer complaint against Shirley in
Campbell District Court.
Upon being advised of the pending
circuit court matter, the district court promptly dismissed the
eviction action.
Shortly thereafter, the master commissioner
issued his report, finding that an enforceable land sale contract
existed.
The trial court subsequently confirmed the master
commissioner's report and ordered Melvin and Marie to convey the
property to Shirley and Thomas.1
Ultimately, Shirley received
the property as part of the settlement in the dissolution action.
1
This court ruled on one issue involving the same parties
and property in a previous appeal. Melvin and Marie Whiles v.
Shirley and Thomas Richard Whiles, No. 94-CA-2175 (May 10, 1996).
The issue of the enforceability of the land sale contract was not
appealed.
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Shirley then brought a complaint against Melvin,
alleging abuse of process and malicious prosecution in the filing
of the forcible detainer action.
Melvin filed a counterclaim
seeking reimbursement for taxes and insurance which he had paid
on the property and alleging "intentional infliction of emotional
distress based upon abuse of process" in bringing her complaint.
The trial court granted both Shirley and Melvin's motions for
summary judgment.
The court found that Shirley's claim of abuse
of process failed because she could not establish that Melvin had
an improper ulterior purpose in bringing the forcible detainer
action.
The court rejected her malicious prosecution claim
because Melvin established that he brought the eviction action
upon advise of counsel, "which is an absolute defense to a
malicious prosecution claim."
Furthermore, the court found no
evidence that Shirley had any damages from the filing of the
forcible detainer action.
The trial court rejected Melvin's claim for taxes and
insurance on the property as barred under the doctrine of res
judicata.
Finally, the trial court dismissed Melvin's outrageous
conduct and abuse of process claim, finding that the alleged
conduct did not support a claim for intentional infliction of
emotional distress.
determinations.
Both Shirley and Melvin now appeal these
Shirley also appealed the trial court's denial
of her discovery motion to obtain information about Melvin's
assets.
We find that the trial court's conclusions are correct,
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and we affirm.
Abuse of process is the irregular or wrongful use of a
judicial proceeding.
The essential elements of the tort include:
(1) an ulterior purpose; and (2) a willful act in the use of
process not proper in the regular conduct of the proceeding.
Bonnie Braes Farms, Inc. v. Robinson, Ky. App., 598 S.W.2d 765,
766 (1980).
The crucial element of abuse of process is that the
defendant acted with an improper purpose.
Bourbon County Joint
Planning Commission v. Simpson, Ky. App., 799 S.W.2d 42, 45
(1990).
The gist of the tort is the abuse of otherwise proper
judicial process as a means to secure a collateral advantage over
another party.
Flynn v. Songer, Ky., 399 S.W.2d 491, 495 (1966).
The trial court noted that the purpose of the forcible
detainer statute is to allow a landowner to evict a party holding
possession and to regain possession of the premises.
Melvin's
goal in bringing the forcible detainer action against Shirley was
precisely the same.
Shirley contends that Melvin brought the
eviction action in an attempt to gain leverage over her in the
pending land contract litigation.
However, an action for abuse
of process will not lie unless the person actually attempts to
misuse legal process to gain a collateral advantage over another
person which is not proper in the regular course of the
proceeding.
(1986).
Mullins v. Richards, Ky. App., 705 S.W.2d 951, 952
There is no evidence that Melvin ever sought to use the
eviction action as a "club" to force Shirley to abandon her claim
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to the property.
Id. at 494.
The tort of "malicious prosecution", more properly
known as "wrongful use of civil proceedings", is distinct from
abuse of process.
(1989).
Prewitt v. Sexton, Ky. 777 S.W.2d 891, 894
The six (6) elements necessary to establish a claim for
wrongful use of civil proceedings are: (1) the institution or
continuation of original judicial proceedings; (2) by, or at the
instance of the plaintiff; (3) the termination of such
proceedings in the defendant's favor; (4) malice in the
institution of the proceedings; (5) lack of probable cause for
the proceeding; and (6) the suffering of damage as a result.
Raine v. Draisin, Ky., 621 S.W.2d 895, 899 (1981).
Since the
absence of probable cause is an essential element of the tort,
the fact that the plaintiff filed the action upon advice of
counsel is a complete defense.
872, 873 (1964).
Mayes v. Watt, Ky., 387 S.W.2d
The advice of counsel need not be sound.
Id.
All that is necessary is that the plaintiff acted upon advice of
counsel after full disclosure of all material facts.
Flynn v.
Songer, 399 S.W.2d at 494.
Melvin presented the affidavit of his prior counsel,
Jan Kipp Kreutzer.
Ms. Kreutzer stated that she advised Melvin
that he could properly bring a forcible detainer complaint
against Shirley, on the theory that only a landlord-tenant
relationship existed.
Significantly, Ms. Kreutzer was also
Melvin's trial counsel in the land contract litigation.
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Melvin
established that he brought the forcible detainer complaint upon
advice of counsel after full disclosure of all material facts.
Shirley presented no evidence to rebut this inference.
Under
these circumstances, Melvin had probable cause to bring the
eviction action.
Furthermore, we agree with the trial court that Shirley
failed to allege any physical or mental symptoms which were
directly related to the eviction proceedings.
621 S.W.2d at 900.
Raine v. Draisin,
There was no evidence that the proceedings
were made public or that her reputation was tarnished.
Shirley's
lack of appreciable damages, as well as her failure to establish
that Melvin brought the action without probable cause, is fatal
to her claim for wrongful use of civil proceedings.
Since the
trial court properly dismissed both of Shirley's claims, her
appeal of the discovery issue regarding punitive damages is now
moot.
Melvin also argues that the trial court improperly
dismissed his claim against Shirley for abuse of process.
Yet in
the action below, he never couched his claim against Shirley as
abuse of process.
Rather, he characterized his claim as "tort
liability for intentional infliction of emotional distress and
for the filing of frivolous claims which is in the nature of an
abuse of process cause of action."
In his memoranda before the
trial court, Melvin never argued abuse of process as an
independent cause of action, but only as it related to his
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outrageous conduct claim.
He is precluded from raising it for
the first time on appeal.
The Supreme Court of Kentucky adopted the tort of
intentional infliction of emotional distress, or "outrage" in
Craft v. Rice, Ky., 671 S.W.2d 247 (1984).
Craft, and the
Restatement (Second) of Torts, § 46, define it as "the
intentional or reckless causation of severe emotional distress by
outrageous, extreme and intolerable conduct by the defendant upon
the plaintiff."
Liability is found only where the conduct has
been so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency and to be regarded as
atrocious and utterly intolerable in a civilized community.
Restatement (Second) of Torts, § 46, Comment (d).
Even gross
negligence is insufficient to support a claim for intentional
infliction of emotional distress.
Humana of Kentucky, Inc. v.
Seitz, Ky., 796 S.W.2d 1, 4 (1990).
The tort of outrage was adopted as a "gap-filler",
providing redress for extreme emotional distress in those
instances in which the traditional common law did not apply.
[W]here an actor's conduct amounts to the
commission of one of the traditional torts
such as assault, battery, or negligence for
which recovery for emotional distress is
allowed, and the conduct was not intended
only to cause extreme emotional distress in
the victim, the tort of outrage will not lie.
Recovery for emotional distress in those
instances must be had under the appropriate
traditional common law action. The tort of
outrage was intended to supplement the
existing forms of recovery, not swallow them
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up.
Rigazio v. Archdiocese of Louisville, Ky., 853 S.W.2d 295, 299
(1993).
The mere act of filing a lawsuit, even a frivolous one,
does not reach the level of "outrageousness" necessary to support
a cause of action for intentional infliction of emotional
distress.
If Melvin had a cause of action arising from Shirley's
filing of the complaint, he should have pursued it only as an
abuse of process claim.
The trial court correctly dismissed his
claim.
Lastly, Melvin contends that the trial court erred in
dismissing his claim for taxes and insurance which he paid on the
property.
CR 13.01 requires that:
A pleading shall state as a counterclaim any
claim which at the time of serving the
pleading the pleader has against any opposing
party, if it arises out of the transaction or
occurrence that is the subject matter of the
opposing party's claim and does not require
for its adjudication the presence of third
parties of whom the court cannot acquire
jurisdiction.
The doctrine of res judicata not only bars subsequent
litigation of the same subject matter, but it also bars any claim
which properly belonged to the subject of the litigation in the
first action and which in the exercise of reasonable diligence
might have been brought forward at that time.
Egbert v. Curtis,
Ky. App., 695 S.W.2d 123, 124 (1985).
Melvin first argues that his claim for taxes and
insurance which he paid on the property did not belong properly
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in the divorce litigation.
However, the Civil Rules remain
applicable in a proceeding for dissolution of marriage.
KRS
403.130. Shirley and Thomas brought their claim against Melvin
and Marie as a third party complaint pursuant to CR 14.01.
Melvin was required to assert any counterclaims arising out of
the alleged land sale contract at that time.
Melvin next argues that he could not have raised his
reimbursement claim in the prior action because no actual
controversy existed until the court found that an enforceable
land sale contract existed.
We disagree.
He could have asserted
the claim alternatively in his answer to Shirley and Thomas's
third party complaint, or he could have filed an amended
complaint after the trial court entered its order confirming the
master commissioner's report.
His claim for taxes and insurance
on the property clearly arises out of the subject matter of
Shirley and Thomas's complaint and it belonged in that action.
He is now barred from bringing it now.
Accordingly, the judgments of the Campbell Circuit
Court are affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bernard J. Blau
Jolly & Blau
Cold Spring, Kentucky
N. Jeffrey Blankenship
Monohan, Hertz & Blankenship
Florence, Kentucky
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