malicious abuse of process claim in New Mexico

2024As currently stated, a malicious abuse of process claim requires the 5 plaintiff to prove “(1) the use of process in a judicial proceeding that would be 6 improper in the regular prosecution or defense of a claim or charge; (2) a primary 7 motive in the use of process to accomplish an illegitimate end; and (3) damages.” 8 Durham, 2009-NMSC-007, ¶ 29 ; accord UJI 13-1636 NMRA.

2024See Durham v. Guest, 2009-NMSC-007, ¶ 29 , 145 N.M. 694 , 204 P.3d 4 19 (defining as an element of a malicious abuse of process claim the “irregular or 5 improper” use of process, which can include filing a complaint without probable 6 cause).

2024That result is not appropriate here because Pollock also argues that under Fleetwood any recovery by Pollock provides an absolute defense on a malicious abuse of process claim founded on lack of probable cause. {36} In Fleetwood the Supreme Court answered two questions certified by this Court concerning the contours of the new malicious abuse of process tort described in Devaney v. Thriftway Marketing Corp., 1998-NMSC-001, ¶¶ 13-17, 24 , 124 N.M. 512 , 953 P.2d 277 (combining previously separate torts of “abuse of process” and “malicious prosecution” and holding that the new tort could asserte

2024If a malicious abuse of process claim is premised on a lack of probable cause, then the plaintiff must show that the defendant lacked “the reasonable belief, founded on known facts established after a reasonable pre-filing investigation, that a claim can be established to the satisfaction of a court or jury.” DeVaney, 1998-NMSC-001, ¶ 22 (citation omitted); accord UJI 13-1639 NMRA.

2009See Richardson, 109 N.M. at 502 , 787 P.2d at 421 (“Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required [.]” (emphasis added)) (quoting W.P.

2009See Richardson, 109 N.M. at 502 , 787 P.2d at 421 (“Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required [.]” (emphasis added)) (quoting W.P.

2024As currently stated, a malicious abuse of process claim requires the plaintiff to prove “(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 3Although Cordova decided to impose a heightened pleading standard “in furtherance of the policy upon which the Anti-SLAPP statute is based,” Cordova did not equate eligibility for Noerr-Pennington immunity with eligibility for the procedural protections of the Anti-SLAPP statute. 2017-NMSC-020, ¶ 30 .

2024DeVaney’s probable cause standard is more lenient than the sham exception to Noerr- Pennington, as the Noerr-Pennington doctrine requires the protected conduct be “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits.” Cordova, 2017-NMSC-020, ¶ 28 (internal quotation marks and citation omitted).

2023See id. {7} The parties appear to agree that attorney fees can be awarded as damages for a malicious abuse of process claim, and we are satisfied that Defendant established that such damages were warranted.

2020See Peterson, 2014-NMCA-036, ¶ 34 .

2019See Deflon v. Sawyers, 2006-NMSC-025, ¶¶ 16, 27 , 139 N.M. 637 , 137 P.3d 577 (stating that collateral estoppel does not apply when the findings required to succeed in a subsequent proceeding differ from those required to succeed on a claim in a prior proceeding).

2019See Deflon v. Sawyers, 2006-NMSC-025, ¶¶ 16, 27 , 139 N.M. 637 , 137 P.3d 577 (stating that collateral estoppel does not apply when the findings required to succeed in a subsequent proceeding differ from those required to succeed on a claim in a prior proceeding).

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

2015See Doe v. Roman Catholic Diocese of 5 Boise, Inc., 1996-NMCA-057 , ¶ 21, 121 N.M. 738 , 918 P.2d 17 (stating that the party 6 challenging a limitation on discovery must show an abuse of discretion and 7 prejudice). 8 {8} Plaintiff’s final arguments concern the district court’s refusal to allow him to 9 amend his complaint to include a malicious-abuse-of-process claim against Narciso 10 Garcia, Mr. Salazar’s attorney.

2015See Doe v. Roman Catholic Diocese of 5 Boise, Inc., 1996-NMCA-057 , ¶ 21, 121 N.M. 738 , 918 P.2d 17 (stating that the party 6 challenging a limitation on discovery must show an abuse of discretion and 7 prejudice). 8 {8} Plaintiff’s final arguments concern the district court’s refusal to allow him to 9 amend his complaint to include a malicious-abuse-of-process claim against Narciso 10 Garcia, Mr. Salazar’s attorney.

2007See, e.g., Teefey v. Cleaves, 73 S.W.3d 813, 817 (Mo.Ct.App.2002) (“Separate counts in an underlying petition do not support separate actions for malicious prosecution: To allow a party to separate the unsuccessful claims from the successful claims in the underlying proceeding and bring a malicious prosecution action on the unsuccessful ones would invite a multitude of unwarranted litigation ____” (quoted authority omitted)). {21} By allowing “some form of recovery” for the plaintiff in the underlying suit, even though not on all counts, to serve as conclusive evidence of probable cause, we re

2007The procedural impropriety theory of misuse of process retains the broader dimensions of the former tort of abuse of process, which recognized that ‘“even in meritorious eases the legal process may be abused.’ ” Richardson v. Rutherford, 109 N.M. 495, 502 , 787 P.2d 414, 421 (1990) (quoting Mills County State Bank v. Roure, 291 N.W.2d 1, 5 (Iowa 1980)).

2007See, e.g., id.

2005See id. {13} SFBC argues that the question of whether Hiner had probable cause to file the underlying lawsuit should not have been determined as a matter of law because material issues of fact were in dispute surrounding the filing of the complaint and the circumstances leading to its voluntary dismissal.

2003Co. v. Romero, 117 N.M. 292, 293 , 871 P.2d 388, 389 (Ct.App.1994) (“Abuse of process requires (1) the existence of an ulterior motive and (2) an act using process other than that process which would be proper in the regular prosecution of the charge.”). {13} Wal-Mart further argues that this Court’s dismissal of the malicious abuse of process claim in Saylor indicates our unwillingness to recognize malicious abuse of process claims brought by or against non-litigants in the underlying lawsuit.

2003Co. v. Romero, 117 N.M. 292, 293 , 871 P.2d 388, 389 (Ct.App.1994) (“Abuse of process requires (1) the existence of an ulterior motive and (2) an act using process other than that process which would be proper in the regular prosecution of the charge.”). {13} Wal-Mart further argues that this Court’s dismissal of the malicious abuse of process claim in Saylor indicates our unwillingness to recognize malicious abuse of process claims brought by or against non-litigants in the underlying lawsuit.

1997“For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.” In re Sedillo, 84 N.M. 10, 12 , 498 P.2d 1353, 1355 (1972). (26) If a plaintiff chooses to delay the assertion of a malicious abuse of process claim until the termination of the underlying proceeding, the plaintiff must, instead, prove a lack of probable cause by a preponderance of the evidence.

1997“For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.” In re Sedillo, 84 N.M. 10, 12 , 498 P.2d 1353, 1355 (1972). (26) If a plaintiff chooses to delay the assertion of a malicious abuse of process claim until the termination of the underlying proceeding, the plaintiff must, instead, prove a lack of probable cause by a preponderance of the evidence.