Hartley v. Water Resources Dept.

713 P.2d 1060, 77 Or. App. 517

• Court: Court of Appeals of Oregon
• Decided: February 5, 1986
• Docket: 83-552 CV; CA A32830
• Status: Published

Opinions

ROSSMAN, J.

In this action, plaintiff alleges claims for malicious prosecution and abuse of process. Defendants appeal from a judgment entered on a jury verdict in favor of plaintiff on both claims. We reverse the judgment on plaintiffs malicious prosecution claim and remand. We also reverse the judgment on plaintiffs abuse of process claim.

Plaintiff was a well digger and possessed drilling and contracting licenses. Defendant Sparks is a state watermaster. Defendant Leeds was employed by the Department of Water Resources (department) to assist watermasters in the enforcement of the laws relating to well construction.

For reasons unrelated to this action, plaintiffs contracting license was suspended for 30 days and his drilling license was suspended for 60 days, beginning on November 1, 1980. In May, 1981, Sally Guggenmos stated in writing that plaintiff had drilled a well for her on November 6, 1980. Constructing a well without a license is a criminal offense. In June, 1981, the department received a note from Rollo Allen, asserting that plaintiff had used an improper method of cement grouting around the casing of a well. The method allegedly used constitutes a criminal offense.

Defendants did not consult plaintiff about those allegations. They did, however, consult with the Klamath County District Attorney and with an attorney at the Department of Justice. Defendants were advised that they could proceed against plaintiff either civilly or criminally. In July, 1981, defendants served plaintiff with criminal citations and a notice of immediate suspension of his licenses.

Plaintiffs criminal trials were scheduled for July 15 and 16,1981. Within the hour before trial on the Guggenmos charges, Guggenmos informed Leeds that she had been mistaken about the date on which the drilling had occurred; it had not occurred during the suspension. Leeds spoke to the district attorney, and the charges were dropped. Leeds then called an assistant attorney general for advice about whether to proceed with the Allen charge. Leeds testified that he was advised to proceed. The case went to trial and was dismissed on what was labeled a motion for directed verdict. Plaintiff thereafter brought this action, claiming malicious prosecution and abuse of process.

Defendants first contend that the trial court erred in failing to grant their motion for directed verdict on plaintiffs malicious prosecution claim. The contention is based on two arguments: (1) Plaintiff failed to prove that defendants lacked probable cause for the commencement of the prosecution; (2) defendants proved that they sought the advice of counsel in good faith and had relied on that advice after a full disclosure of all the information in their possession, which proof establishes probable cause as a matter of law.

To prevail on a claim for malicious prosecution, a plaintiff must prove that the defendant did not have probable cause to initiate the criminal proceeding. See, e.g., Lampos v. Bazar, Inc., 270 Or 256, 266, 527 P2d 376 (1974). Correspondingly, the existence of probable cause is a complete defense to a claim for malicious prosecution. Gustafson v. Payless Drug Stores, 269 Or 354, 356, 525 P2d 118 (1974). Advice of counsel, if sought in good faith and if given after full disclosure of information in the possession of the accuser, establishes probable cause as a matter of law. See, e.g., Drake v. Anderson, 215 Or 291, 297-98, 334 P2d 477 (1959); Restatement (Second) Torts, § 666 (1976).

We conclude that the evidence viewed in the light most favorable to plaintiff supports submitting the issue of probable cause to the jury. Therefore, the court did not err in denying defendants’ motion for directed verdict on plaintiffs malicious prosecution claim.

Defendants next contend that the trial court erred in failing to instruct the jury, as defendants requested, that the advice of counsel, sought in good faith and given after full disclosure, is conclusive on the issue of probable cause. The court instructed the jury that such advice is only probative on the issue of probable cause.¹ We agree with defendants’ contention. It is a well-established rule that the advice of counsel, if sought in good faith and if given after full disclosure of information in the possession of the accuser, is conclusive and not merely probative of the existence of probable cause. ² See, e.g., Drake v. Anderson, supra, 215 Or at 297-98; Hess v. Oregon Baking Co., 31 Or 503, 515, 49 P 803 (1897). We hold that the court’s refusal of the instruction was erroneous and that the error was prejudicial.

Finally, defendants contend that the trial court committed error in failing to grant their motion for a directed verdict on plaintiffs claim for abuse of process. Plaintiff alleged that defendants abused the process involved by suspending and then reinstating his drilling license.³

We agree with defendants that there was insufficient evidence to submit the claim of abuse of process to the jury. As we recently stated in Reynolds v. Givens, 72 Or App 248, 695 P2d 946 (1985):

“Abuse of process is ‘the perversion of legal procedure to accomplish an ulterior purpose when the procedure is commenced in proper form and with probable cause.’ Kelly v. McBarron, 258 Or 149, 154, 482 P2d 187 (1971). Dean Prosser has identified the elements of the action as follows:

“ ‘* * * [F]irst, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding. 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; and there is no liability where the defendant had done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. 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.’ Prosser, Torts 857, § 121 (4th ed 1971), quoted in part in Larsen v. Credit Bureau, [279] Or 405, 408, 568 P2d 657 (1977).”

Plaintiff presented no evidence that defendants acted with an ulterior purpose in causing his license to be suspended. The evidence that plaintiff relies on shows only that defendants may have had some malice toward plaintiff. However, that does not constitute an ulterior purpose in the form of coercion to obtain a collateral advántage not associated with the process, such as the surrender of property or the payment of money. Accordingly, we reverse the judgment on the abuse of process claim.

Reversed and remanded on the claim for malicious prosecution; reversed on the claim for abuse of process.

1 The trial court instructed the jury:

“You’re instructed that the defendant — you’re instructed that where one fully, fairly and truthfully disclosed all of the pertinent facts of which he has knowledge or which he could obtain knowledge, with a reasonable diligence to his attorney and seeks the advice of his attorney in good faith and from honest motives, and then in good faith follows the advice of his attorney and files a criminal charge for a proper purpose, then you as jury may find the advice of his attorney to be a defense to the charge that the action was brought without probable cause or that he brought it with malice.” (Emphasis supplied.)

2 The dissent does not seem to recognize the fundamental problem with the court’s instruction. The court allowed the jury to find that defendants acted without probable cause, even if it concluded that they had relied on the advice of counsel after (a) seeking that advice in good faith (b) disclosing to counsel all that they knew and (c) using reasonable diligence in obtaining their information. That is an impermissible instruction under Drake v. Anderson, 215 Or 291, 297-98, 334 P2d 477 (1959), and Hess v. Oregon Baking Co., 31 Or 503, 515, 49 P 803 (1897). It is also an impermissible instruction under any reasonable interpretation of Lampos v. Bazar, Inc., 270 Or 256, 527 P2d 376 (1974), the case relied on by the dissent.

3 Plaintiff alleged:

“II

“THAT on or about July 14, 1981, the Defendants herein did maliciously abuse civil process against the Plaintiff, CHARLES E. HARTLEY, in that they did order that his license be suspended until such time as the criminal cases set out in Plaintiffs First Cause of Action, Paragraph IV, were concluded. That the Defendants did include in said Suspension Order the provision that in the event that said criminal cases were adjudicated in favor of the Plaintiff herein that the Plaintiff’s license, automatically, would be renewed.

“HI

“THAT all three (3) criminal cases were ruled favorably to the Plaintiff, CHARLES E. HARTLEY, on July 14, 1981 by the Honorable Wayne H. Blair, District Court Judge and said Court did order, pursuant to the suspension, that the Plaintiffs license was automatically reinstated.

“IV

“THAT the Defendants herein did not reinstate the license of the Plaintiff, CHARLES E. HARTLEY, but did, after the favorable result, advise the insurance company covering the Plaintiff that the Plaintiff was suspended and was not eligible to drill wells. The Defendants did further advise businesses that the Plaintiff did business with, to wit: Valley Pump Company, Interstate Pump Company and others, that the Plaintiff was suspended and was not legally entitled to drill wells.

“V

“THAT as a direct and proximate result of the conduct of the Defendants as hereinbefore set out, the insurance company involved did cancel the insurance of the Plaintiff, CHARLES E. HARTLEY, and did cause a further suspension. That said suspension occurred at a time when the Plaintiff herein had actual contracts for well drilling. That this was to the Plaintiffs damage in the sum of $20,000.00.”