regular prosecution defense in New Mexico

2025Malicious Abuse of Process {5} To sustain a claim for MAP, a plaintiff must prove three elements: “(1) the use of process in a judicial proceeding that would be improper in the regular prosecution or defense of a claim or charge; (2) a primary motive in the use of process to accomplish an illegitimate end; and (3) damages.” Durham v. Guest, 2009-NMSC-007, ¶ 29 , 145 N.M. 694 , 204 P.3d 19 .

2025Malicious Abuse of Process {5} To sustain a claim for MAP, a plaintiff must prove three elements: “(1) the use of process in a judicial proceeding that would be improper in the regular prosecution or defense of a claim or charge; (2) a primary motive in the use of process to accomplish an illegitimate end; and (3) damages.” Durham v. Guest, 2009-NMSC-007, ¶ 29 , 145 N.M. 694 , 204 P.3d 19 .

2012The tort is “disfavored in the law [b]ecause of the potential chilling effect on the right of access to the courts.” Fleetwood Retail Corp. of N.M. v. LeDoux, 2007-NMSC-047, ¶ 19 , 142 N.M. 150 , 164 P.3d 31 (alternation in original) (internal quotation marks and citation omitted). {30} In a malicious abuse of process claim, a claimant must establish three elements: “(1) the use of process in a judicial proceeding that would be improper in the regular prosecution or defense of a claim or charge; (2) a primary motive in the use of process to accomplish an illegitimate end; and (3) damages.” Dur

2012The tort is “disfavored in the law [b]ecause of the potential chilling effect on the right of access to the courts.” Fleetwood Retail Corp. of N.M. v. LeDoux, 2007-NMSC-047, ¶ 19 , 142 N.M. 150 , 164 P.3d 31 (alternation in original) (internal quotation marks and citation omitted). {30} In a malicious abuse of process claim, a claimant must establish three elements: “(1) the use of process in a judicial proceeding that would be improper in the regular prosecution or defense of a claim or charge; (2) a primary motive in the use of process to accomplish an illegitimate end; and (3) damages.” Dur

2010Consequently, the district court did not err in granting summary judgment on this claim. {19} In order to prove the prima facie tort claim, High Mesa had to prove Defendants' filing of the notice of lis pendens was committed "with the intent to injure [them], or, in other words, without justification[.]" Schmitz v. Smentowski, 109 N.M. 386, 395 , 785 P.2d 726, 735 (1990).

2010Consequently, the district court did not err in granting summary judgment on this claim. {19} In order to prove the prima facie tort claim, High Mesa had to prove Defendants' filing of the notice of lis pendens was committed "with the intent to injure [them], or, in other words, without justification[.]" Schmitz v. Smentowski, 109 N.M. 386, 395 , 785 P.2d 726, 735 (1990).

2015Further, 9 in the Tenth Circuit, analysis of a § 1983 malicious prosecution claim is guided by 10 the following elements: “(1) the defendant caused the plaintiff’s continued 11 confinement or prosecution; (2) the original action terminated in favor of the plaintiff; 12 (3) no probable cause supported the original arrest, continued confinement, or 13 prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained 14 damages.” Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008). 15 New Mexico Tort Claims 16 {20} Under New Mexico tort law, to prevail on a malicious abuse of p

2012See Mayfield Smithson Enters. v. Com-Quip, Inc., 120 N.M. 9, 16 , 896 P.2d 1156, 1163 (1995) (“Summary judgment is appropriate when a defendant negates an essential element of the plaintiff’s case by demonstrating the absence of an issue of fact regarding that element.”). {37} Accordingly, we agree with the unanimous Court of Appeals holding that the district court properly dismissed Kehoe’s malicious abuse of process claim because Kehoe failed to establish an essential element of his claim — that LensCrafters’ lawsuit lacked probable cause.

2012See Mayfield Smithson Enters. v. Com-Quip, Inc., 120 N.M. 9, 16 , 896 P.2d 1156, 1163 (1995) (“Summary judgment is appropriate when a defendant negates an essential element of the plaintiff’s case by demonstrating the absence of an issue of fact regarding that element.”). {37} Accordingly, we agree with the unanimous Court of Appeals holding that the district court properly dismissed Kehoe’s malicious abuse of process claim because Kehoe failed to establish an essential element of his claim — that LensCrafters’ lawsuit lacked probable cause.

2010Id. (“Absent [a] citation 18 to the record or any obvious preservation, we will not consider the issue.”). 19 Malicious Abuse of Process Claim 12 1 Our Supreme Court in Durham v. Guest, 2009-NMSC-007, ¶ 29 , 145 N.M. 694 , 2 204 P.3d 19 , recently identified the elements of the tort of malicious abuse of process 3 as follow: “(1) the use of process in a judicial proceeding that would be improper in 4 the regular prosecution or defense of a claim or charge; (2) a primary motive in the 5 use of process to accomplish an illegitimate end; and (3) damages.” The Court further 6 explained that “[a]n

2009Upon the movant making a prima facie showing, the burden shifts to the 8 party opposing the motion to demonstrate the existence of specific evidentiary facts 9 which would require trial on the merits.” Roth v. Thompson, 113 N.M. 331, 334-35 , 10 825 P.2d 1241, 1244-45 (1992) (citation omitted). 11 A claim for malicious abuse of process must establish the following: 12 (1) the initiation of judicial proceedings against the plaintiff by the 13 defendant; (2) an act by the defendant in the use of process other than 14 such as would be proper in the regular prosecution of the claim; (3) a 15 prima

2009Upon the movant making a prima facie showing, the burden shifts to the 8 party opposing the motion to demonstrate the existence of specific evidentiary facts 9 which would require trial on the merits.” Roth v. Thompson, 113 N.M. 331, 334-35 , 10 825 P.2d 1241, 1244-45 (1992) (citation omitted). 11 A claim for malicious abuse of process must establish the following: 12 (1) the initiation of judicial proceedings against the plaintiff by the 13 defendant; (2) an act by the defendant in the use of process other than 14 such as would be proper in the regular prosecution of the claim; (3) a 15 prima

1997Oren Royal Oaks, 232 Cal.Rptr. at 575 , 728 P.2d at 1209-10 (stating that “the laek-of-probablecause requirement in the malicious prosecution tort plays a crucial role in protecting the right to seek judicial relief*’ and in preventing an “improper ‘chilling’ of the right to seek redress in court.”); see Harper, supra, § 4.9, at 498 (“[Standardized barriers to the malicious prosecution action have been erected in the interest of assuring that it is available only in eases of clear perversion.”). 1.

1997Oren Royal Oaks, 232 Cal.Rptr. at 575 , 728 P.2d at 1209-10 (stating that “the laek-of-probablecause requirement in the malicious prosecution tort plays a crucial role in protecting the right to seek judicial relief*’ and in preventing an “improper ‘chilling’ of the right to seek redress in court.”); see Harper, supra, § 4.9, at 498 (“[Standardized barriers to the malicious prosecution action have been erected in the interest of assuring that it is available only in eases of clear perversion.”). 1.