SEYMOUR, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.
William and Jesse Houghton, husband and wife, brought this diversity suit applying Oklahoma law against Foremost Financial Services (Foremost). The Houghtons sought damages resulting from Mr. Houghton's arrest and detention for contempt arising out of a state court replevin action initiated by Foremost. The district court construed the Houghtons' complaint to allege causes of action for false imprisonment, malicious prosecution, and abuse of process. The parties filed cross motions for summary judgment, and the district court granted Foremost's motion. We affirm in part and reverse in part.
The undisputed facts, as set forth in the district court order, are as follows:
Rec., vol. I, at 113-14.
All of the Houghtons' claims are based on their assertion that the state court replevin action was actually an improper attempt to recover money owing on a personal liability that had been discharged in bankruptcy. The district court rejected this contention, stating that "[t]he proceeding before the state court was nothing more than an action in replevin." Id. at 115. On appeal, the Houghtons assert that whether Foremost instituted the state court proceedings to recover possession of the mobile home or to collect on a discharged personal debt is a disputed issue of material fact, and that summary judgment was therefore improper. For the reasons set out below, we conclude that the record reveals a dispute as to this fact and that it is material to Mr. Houghton's causes of action for false imprisonment and abuse of process.
Summary judgment is proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reviewing a grant of summary judgment, we must construe the pleadings and documents liberally in favor of the party against whom the motion is granted. Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33, 36 (10th Cir.1975). Factual inferences tending to show triable issues must be considered in the light most favorable to the existence of those issues. Id. Summary judgment should not be granted when different inferences can be drawn from conflicting evidence, particularly when credibility is at issue. Romero v. Union Pacific Railroad, 615 F.2d 1303, 1309 (10th Cir.1980). The fact that both parties have moved for summary judgment does not permit entry of summary judgment if disputes remain as to material facts. Harrison Western Corp. v. Gulf Oil Corp., 662 F.2d 690, 692 (10th Cir.1981).
In this case, a dispute exists as to whether Foremost was aware of the location of the mobile home when the replevin action was begun in state court. Foremost submitted an affidavit by Bruce McClellan, its attorney in the replevin action. McClellan stated that the sole purpose of the state suit had been to recover possession of the mobile home, and that prior to the suit Foremost had been unable to locate the trailer. However, the Houghtons testified in their depositions that they had moved out of the trailer about the time of the bankruptcy, and that they had written to Foremost several times after the bankruptcy proceeding requesting Foremost to pick up the mobile home. The Houghtons further stated that someone had visited them in an effort to repossess the mobile home and they had given directions to it. They also testified that Foremost had written letters addressed to them when they were living in the mobile home.
Section 14f of the Bankruptcy Act provides that:
11 U.S.C. § 32(f) (1976), repealed by Bankruptcy Reform Act of 1978, Pub.L. 95-598 § 401(a), 92 Stat. 2682.
Ryan v. Ohio Edison Co., 611 F.2d 1170, 1173-74 (6th Cir.1979). The purpose of the legislation was to end harassment of discharged debtors by prohibiting creditors from using the state courts to attempt to collect discharged debts. Id. at 1174; Wood, 548 F.2d at 219. If the state replevin action by Foremost was such a suit, it was barred by section 14f.
The lawfulness of the replevin suit is material to the tort claims of false imprisonment and abuse of process. Under Oklahoma law, false imprisonment is defined as the unlawful restraint of an individual against his will. S.H. Kress & Co. v. Bradshaw, 186 Okl. 588, 99 P.2d 508, 511 (1940). The district court in this case recognized the general principle that "an arrest, even for contempt of court, is unlawful if it is based on a void judgment." Rec., vol. I, at 115. Cf. Miller v. Stinnett, 257 F.2d 910 (10th Cir.1958) (Plaintiff stated claim for false imprisonment based on arrest and detention under ordinance valid on its face but invalid and inapplicable in fact.). Section 14f(1) of the Bankruptcy Act specifically provides that any judgment rendered subsequent to an order of discharge is "null and void as a determination of the personal liability of the bankrupt." Thus, if the contempt citation and arrest were an attempt by Foremost to collect a void money judgment, Mr. Houghton has a cause of action for false imprisonment.
Oklahoma also recognizes a cause of action arising from abuse of process. See Neil v. Pennsylvania Life Insurance Co., 474 P.2d 961, 965 (Okl.1970). Abuse of process occurs when legal process is used for an improper purpose, to accomplish an end not lawfully obtainable, or to compel someone to do some collateral thing he could not legally be compelled to do. Id.; W. Prosser, Law of Torts § 121 (4th ed. 1971). The elements of this tort are generally articulated as an illegal or improper use of the process for an ulterior or improper purpose with resulting damage to the plaintiff. Prosser, supra; see also Tappen v. Ager, 599 F.2d 376, 379-80 (10th Cir.1979). Because a dispute exists as to whether Foremost instituted the replevin for the unlawful purpose of collecting a discharged debt, summary judgment against Mr. Houghton was improper on the abuse of process claim. Only William Houghton was discharged in bankruptcy, however. Accordingly, Mrs. Houghton has no abuse of process claim and the summary judgment against her was proper.
The Houghtons' third claim is for malicious prosecution. Under Oklahoma law, the elements of this cause of action are "(1) the bringing of the original action by the defendant; (2) its successful termination in plaintiff's favor; (3) want of probable cause to join the plaintiff; (4) malice; and (5) damages." Young v. First State Bank, 628 P.2d 707, 709 (Okl.1981) (emphasis added). The district court based its grant of summary judgment on the undisputed fact that the underlying state court action has not been terminated in the Houghtons' favor. Given the Houghtons' failure to establish this essential element,
The judgment against Mr. Houghton on the false imprisonment and abuse of process claims is reversed. The judgment against Mr. Houghton on the malicious prosecution claim and against Mrs. Houghton on all claims is affirmed. The case is remanded to the district court for further proceedings.
Okla.Stat. tit. 12, § 1580 (1981).
In its replevin petition, Foremost sought "judgment against defendants for possession of the personal property hereinabove described, or if the same cannot be found, its reasonable value...." Rec., vol. I at 34. The journal entry of judgment in the replevin action provides that
Id. at 42-43.
As support for its assertion that it was only seeking replevin, Foremost points out that it did not move for and receive a money judgment in state court after showing that delivery could not be had. However, the judgment on its face provides an alternative money judgment if delivery is impossible, as it was in this case. Our perusal of the Oklahoma statutes and case law reveals no procedure or requirement under which the prevailing party must return to court and obtain a second judgment if delivery cannot be obtained. Indeed it appears that, under Oklahoma law, when an alternative judgment has been rendered in a replevin action, upon the losing party's failure to make delivery he becomes liable on the alternative judgment for value. See Brook v. Cullimore, 436 P.2d 32, 34 (Okl.1967); Hyre v. Pratt, 382 P.2d 18, 22 (Okl.1963); Wortham v. Mathews, 207 Okl. 466, 250 P.2d 428 (1952). However, since we are remanding this case for further proceedings, the district court may wish to consider additional argument and authorities on this issue should the parties submit them.