ABUSE OF PROCESS – EXTORTION IN NEGOTIATION IS ELEMENT OF THIS TORT – Can this tort be used when plea bargain negotiations become extortion?

 

An interesting question is raised.   Can this tort be used to seek damages for improper plea bargaining negotiations?  Under the correct fact situation this may well justify a claim against a prosecutor subject to immunity rules.  Prosecutors are entitled to qualified immunity in their investigative phase but enjoy absolute immunity during the prosecutorial phase.  So when the extortion occurs would be important.  However, federal law appears more willing to allow lawsuits against prosecutors.   A Bivens suit and Sec. 1983 of the Federal Civil Rights Act of 1870 may apply.

 

 

 

For full text of case click case number 2005-SC-001023-DG.pdf  Decision TO BE PUBLISHED  – March 2010

 

JEFFERSON COUNTY

 

SPRINT COMMUNICATIONS COMPANY, L.P.

 

V.

 

ALBERT E. LEGGETT, III (AS TRUSTEE OF

APPELLEE/CROSS-APPELLANT

THE ALBERT E. LEGGETT FAMILY TRUST)

 

OPINION OF THE COURT BY JUSTICE VENTERS

AFFIRMING IN PART AND REVERSING IN PART

OPINION OF THE COURT BY JUSTICE VENTERS AFFIRMING IN PART AND REVERSING IN PART

 

We granted discretionary review in this matter to consider issues relating to a landowner’s abuse of process claim and other related claims, against a long-distance telephone communications carrier for its conduct in attempting to use the power of eminent domain to acquire the landowner’s property.

 

Specifically, we consider whether the tort of abuse of process may be established solely on the basis of actions that occurred at or before the commencement of the legal process.

 

Appellant, Sprint Communications Company, L.P. is a “telephone company” within the meaning of KRS 278.540(2) and KRS 415.150, and therefore, has a limited power to condemn a right of way across private property. Sprint filed a condemnation action in the Jefferson Circuit Court by which it sought to acquire a “permanent utility easement” over an entire halfacre lot owned by the Albert E. Leggett Family Trust,…

 

The Leggett property is a 22,172 square-foot (one half-acre) five-sided lot upon which is located a 9,700 square-foot building that houses Leggett’s photography studio. The Leggetts purchased the land in 1990 for $325,000.

 

Sprint’s proposed use of the Leggett tract would require demolition of the building and the construction of its own new building.

 

Sprint contacted Leggett and asked him to set a price at which he would sell the property at 330-336 Baxter Avenue . Leggett said he would sell for $900,000. On Sprint’s behalf, Gilley offered Leggett $200,000 for the tract. This offer was supported by a written appraisal prepared for Sprint by a local appraiser.

 

Leggett then obtained his own professional appraisal, which valued the property at $750,000. Sprint increased its offer to $275,000, which Leggett declined.

 

Sprint filed the condemnation action to take the Leggett property, alleging in its complaint that it “possess[ed] the power to acquire real property through the exercise of eminent domain exercised pursuant to KRS 416.150 and KRS 278.540.” Sprint also pled that it had “the authority to acquire . . . by condemnation such property or interest therein as [it] may determine to be necessary, proper and convenient for its corporate purposes.”

 

The court-appointed commissioners found the fair-market value of Leggett’s property immediately before the proposed taking was $600,000, and that the value of the property remaining to Leggett after the taking was $0.

 

In March 2002, Sprint moved to voluntarily dismiss its condemnation action, and eventually the petition for condemnation was dismissed.

 

The trial court dismissed Leggett’s malicious prosecution claim because the original proceedings had not yet finally terminated, and because Leggett had not established that Sprint lacked probable cause to commence the condemnation action. The trial court dismissed the abuse of process claim because it concluded that Sprint could have no “ulterior purpose” in seeking to condemn the property, and Sprint “had done nothing more than what it was authorized to do in this judicial process.” The trial court then noted that Leggett had no evidence to show that Sprint acted improperly or deprived him of due process, and thus dismissed the civil rights claim.

 

The Court of Appeals affirmed the summary judgment with respect to the malicious prosecution claim, but reversed with respect to the abuse of process and civil rights claims, and remanded those claims for further proceedings in the circuit court .

 

 The Court of Appeals also considered, and affirmed, the order of the trial court substantially limiting Leggett’s discovery of certain sealed documents on the grounds that they were protected by attorney-client privilege.

 

We granted Sprint’s petition for discretionary review…

 

For reason set forth below, we affirm the Court of Appeals’ decision to reverse the summary judgment granted against Leggett’s abuse of process and civil rights claims.

 

However, we reverse the Court of Appeals ruling which affirmed the limitation of Leggett’s discovery.

 

Generally stated, one who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which that process is not designed, is subject to liability to the other for harm caused by the abuse of (process)…

 

 Restatement (Second) of Torts § 682 (1977) . There is no liability where the defendant (usually a plaintiff in the underlying action) has done nothing more than carry out the process to its authorized conclusion. W. Prosser, Handbook of the Law of Torts, § 121 (4th ed. 1971) .

 

In Stoll Oil Refining v. Fierce, 337 S.W .2d 263, 266 (Ky. 1960) our predecessor Court defined abuse of process simply as “the irregular or wrongful employment of a judicial proceeding.”

 

[T]he gist of the tort[abuse of process] is not commencing an action or causing process to issue without justification, but misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish . The purpose for which the process is used, once it is issued, is the only thing of importance . .

 

. . The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.

 

We addressed the issue most recently in Simpson v. Laytart, 962 S.W.2d 392 (Ky. 1998), reiterating that an action for abuse of process is “the irregular or wrongful employment of a judicial proceeding[,]” and has two essential elements: 1) an ulterior purpose, and 2) a willful act in the use of the process not proper in the regular conduct of the proceeding . Id. at 394.

 

We emphasized, again citing W. Prosser, Handbook of the Law of Torts, § 121 (4th ed . 1971), that some definite act or threat not authorized by the process, or aimed at an objective which is not a legitimate use of the process was required.

 

The process is used as a form of extortion, and “it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.” Id. (citing W. Prosser, Handbook of the Law of Torts, § 121 (4th ed . 1971)) .

 

Sprint’s specific argument is that the trial court properly granted summary judgment dismissing Leggett’s abuse of process claim because Leggett failed to present evidence to establish either of the two “essential elements” of abuse of process .

 

Sprint claims it sought to obtain nothing other than what was proper in the condemnation litigation. However, we agree with the Court of Appeals and with Leggett. A telephone company does not have the right under Kentucky law to take by the power of eminent domain a “permanent easement,” coextensive with an entire tract of land, demolish the principal buildings located thereon, and totally deprive the owner of any use thereof.

 

KRS 278.540(2), which empowers Sprint and other telephone companies to take private property by condemnation, provides in pertinent part:

 

Any telephone company authorized to do business in this state may, by contract with any person, construct, maintain and operate telephone lines on and across the real property of that person, and if it cannot obtain the right of way by contract it may . . . condemn the right of way in the manner provided in the Eminent Domain Act of Kentucky

 

Whether the expansion of service was necessary is not at issue here, but apparently the acquisition of Leggett’s property was not necessary as Sprint moved to voluntarily dismiss the condemnation in March 2002, less than 90 days after filing its petition .

 

We agree with the Court of Appeals that even a cursory reading of the statute reveals that Sprint had no authority to take for its permanent use the entirety of Leggett’s land . There is no ambiguity in the language of KRS

278.540(2) .

 

We cannot construe the term “right of way” so broadly as to allow Sprint to consume Leggett’s entire half-acre lot in perpetuity . The right to pass through another’s land cannot be equated with the power to divest that person of all meaningful attributes of his ownership interest.

 

A brief survey of the applicable statutes discloses that the power of eminent domain granted to telephone companies is much more limited than the power enjoyed by other private entities serving a public need.

 

One cannot reasonably read into KRS 278.540(2) the authority to acquire by condemnation a “permanent easement” over an entire half-acre tract, upon which to construct a large building, in a way that totally deprives the owner of the use of his land .

 

Sprint surmises that the “willful act” of coercion must occur after the initiation of the legal process .

 

We find nothing in the text of the Restatement or in any of the cases and treatises cited to us that supplies a compelling rationale for placing great weight on the use of the word “subsequent.” It is use of the legal process to

coerce compliance with the ulterior purpose, whenever it may occur, that the tort of abuse of process is designed to redress.

 

We note that in both Stoll Oil Refining v. Pierce, 337 S.W.2d 263 (Ky. 1960) and Williams v. Central Concrete, Inc., 599 S .W .2d 460 (Ky. App. 1980)

abuse of process was established without an act subsequent to the issuance of the process. In Songer, we prominently noted that, “The purpose for which the

process is used, once it is issued, is the only thing of importance” and “the gist of the tort is that they attempted to use it as a means to secure a collateral

advantage.” Flynn v. Songer, 399 S.W.2d 491, 494 (Ky. 1966)

 

What is significant is the willful act of employing of a legal process against another to achieve a purpose other than that for which the process was designed and intended.

 

we conclude, from the weight of Kentucky jurisprudence and the persuasive authority expressed by the courts of other states, that abuse of process does not require that the willful, coercive act occur subsequent to the issuance of the process .

 

there is evidence that Sprint went beyond the simple filing of a lawsuit – it threatened Leggett that unless he sold Sprint his entire property, it would take his land and force him to suffer “the rigors of contest and associated unpleasantries” of a condemnation suit.

 

 Second, there is evidence that Sprint abused its power of condemnation by filing a lawsuit that grossly overstated its authority to condemn property in an effort to induce Leggett to negotiate more generously than had been his prior inclination for the sale of an interest in his land that Sprint had no power to acquire by legal process.

 

To be clear, this opinion does not expose the risk of an abuse of process lawsuit, to one who engages in pre-litigation settlement negotiations, and, with

an eye toward encouraging an agreement, merely reminds the opposing party of the “rigors and unpleasantries” of litigation. Nor, does this opinion hold that

simply filing a groundless lawsuit constitutes an abuse of process .

 

Because Leggett has evidence available for use at trial to establish the elements of abuse of process, the Court of Appeals properly reversed the summary judgment.

 

Sprint finally asserts that summary judgment on the abuse of process claim was appropriate because Leggett can not show compensable damages.

We disagree. If upon remand, Leggett’s evidence of abuse of process is persuasive, he is entitled to at least nominal damages. Stoll Oil Refining, 337

S.W.2d at 266.

 

While we do not hold that the survival of the abuse of process claim assures the survival of the (Federal Section 1983) civil rights claim, in the absence of any compelling argument to do otherwise, we affirm the Court of Appeals’ decision remanding the civil rights claim to the trial court for further proceedings.

 

upon remand of this matter, Leggett is entitled to a determination by the trial court of whether waiver of privilege applies with respect to the documents in

question, and with respect to discovery materials otherwise sought.

 

CONCLUSION

 

For the reason set forth above, we affirm the decision of the Court of Appeals reversing the summary judgment granted on the claims of abuse of process and violation of civil rights under 42 USC § 1983, and we reverse the

decision of the Court of Appeals with respect to the discovery of privileged documents.

 

This matter is remanded to the Jefferson Circuit Court for further proceedings consistent with this opinion.

 

Cunningham, Noble, Schroder and Scott, JJ., and Special Justice Kevin Garvey and Special Justice John Grise, concur. Minton, C.J . and Abramson, J., not sitting.

 

COUNSEL FOR APPELLANT/CROSS-APPELLEE:

Stuart E. Alexander, III

Kathleen M. Winchell Schoen

William J. Walsh

Tilford, Dobbins, Alexander, Buckaway and Black, LLP

401 West Main Street

Suite 1400

Louisville, Kentucky 40202

 

COUNSEL FOR APPELLEE/CROSS-APPELLANT:

Oliver Grant Bruton

Middleton Reutlinger

2500 Brown and Williamson Tower

401 South Fourth Street

Louisville, Kentucky 40202-3410

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