The United States Court of Appeals for the Tenth Circuit [certifying court] certified the following questions pursuant to the Uniform Certification of Questions of Law Act, 20 O.S. 1991 §§ 1601 et seq.:
We answer the certified questions as follows: (1) The availability of a multi-componential predicate for the torts of malicious prosecution and abuse of process
THE ANATOMY OF FEDERAL LITIGATION
Robert I. Greenberg [Greenberg or malicious-prosecution plaintiff] and Carolyn Wolfberg [malicious-prosecution defendant] are the children of Mal and Rose Greenberg. They are both potential beneficiaries of the
In the 1970's Laurance B. Wolfberg [Wolfberg or malicious-prosecution defendant], Carolyn's husband, and Greenberg acquired interests in several business partnerships including, among others, Service Business Forms, Griffith Resources and Green Wolf Oil Company. In 1982 Greenberg and Wolfberg decided to sever their business ties. After effectuating this decision the parties engaged in a series of five forensic battles commencing in November 1986. Upon the culmination of these actions Greenberg brought suit on August 14, 1990 against the Wolfbergs for malicious prosecution and abuse of process. Judgment in Greenberg's favor was entered on October 8, 1991; the Wolfbergs appealed to the U.S. Court of Appeals for the Tenth Circuit, the certifying court.
THE COMPONENTS OF THE "PROCESS" IN THE SENSE DEFINED BY THE CERTIFYING COURT
In its proffered questions the certifying court defines the four predicate suits and one counterclaim between the litigating parties as the "Process". The components of the Process are as follows:
Laurance B. Wolfberg v. Robert I. Greenberg, Cause No. CIV-86-2441-P, in the U.S. District Court for the Western District of Oklahoma, filed on November 3, 1986. In this action Wolfberg sought (a) an accounting for the profits and losses of Green Wolf Oil Company, a partnership, and (b) that partnership's dissolution. He also sought recovery for Greenberg's breach of fiduciary duties owed to this partnership. While Wolfberg prevailed in pressing for an accounting and dissolution of the partnership, he lost to Greenberg on the breach-of-duty theory. After appellate review by the certifying court, the U.S. Supreme Court denied certiorari on November 13, 1989.
Service Business Forms Industries, Inc., Service Computer Forms Industries, Inc., Laurance B. Wolfberg and Carolyn Wolfberg v. Robert I. Greenberg, individually and as co-trustee under the Mal Greenberg Testamentary Trusts et al., Cause No. CJ-86-12606, in the District Court of Oklahoma County, filed November 26, 1986. The plaintiffs asserted four causes of action against Greenberg, individually and as trustee of the Mal Greenberg Testamentary Trusts. The claims dealt primarily with an asserted failure of consideration to support the stock redemption plan for the Mal Greenberg Testamentary Trusts' stock in Service Business Forms. By March 18, 1988 all causes stood dismissed without prejudice.
Carolyn Wolfberg v. Robert I. Greenberg, individually and as co-trustee under the Mal Greenberg Testamentary Trusts et al., Cause No. CJ-86-12734, in the District Court of Oklahoma County, filed on December 3, 1986. Carolyn Wolfberg sought recovery for (1) Greenberg's breach of fiduciary duties owed to her by him as a trustee of the Mal Greenberg Residual Trust and (2) Greenberg's intentional infliction of emotional distress. The suit was dismissed without prejudice on September 17, 1987.
Carolyn Greenberg Wolfberg v. Robert I. Greenberg as co-trustee under the Mal Greenberg Testamentary Trust et al., Cause No. 88-C-3346, in the District Court, Sedgwick County, Kansas, filed on September 16, 1988. Carolyn Wolfberg sought the removal of the Mal Greenberg Testamentary Trust trustees because of their "prolonged and continued hostility and animosity" towards her. Judgment was entered for the defendants on January 25, 1990.
Robert I. Greenberg as co-trustee of the Mal Greenberg Testamentary Trusts et al. v. Service Business Forms Industries, Inc. and Service Computer Forms Industries, Inc., Cause No. CIV-87-2769-A, in the U.S. District Court for the Western District of Oklahoma, filed on March 16, 1987. The trustees sought judgment on the defendants' note given as consideration in a stock redemption plan. The defendants counter-claimed against Greenberg, alleging he had relinquished his right to any monies due the trust under the note's terms. Partial summary judgment, entered on March 14, 1988, and then final judgment of March 25, 1988 went to the plaintiffs. The latter parties prevailed on all issues. The appellate process came to an end when the U.S. Supreme Court denied certiorari on January 16, 1990.
THE NATURE OF THIS COURTS FUNCTION WHEN ANSWERING CERTIFIED QUESTIONS FROM A FEDERAL COURT
While we can set the parameters for the permissible use of (multiple) successive proceedings as a predicate for malicious prosecution, this court's assessment of the evidence adduced at the trial of this cause is beyond the allowable bounds of its responsibility. It is not this court's province to intrude (by responses to the certified questions) upon the federal court's decision-making process. Because the case is not before us for decision, we refrain from applying the given state-law responses to the facts elicited in the federal-court litigation or from passing upon the effect of federal procedure on the record and issues in the case.
EXCEPT AS ALTERED BY OKLAHOMA'S CONSTITUTION AND HER STATUTES, THE COMMON LAW REMAINS IN FULL FORCE.
To the extent that statutory provisions and this court's jurisprudence construing them do not yield complete answers to the questions posed, we have reached for this State's declared common law to supplement the responses sought. By the mandate of 12 O.S. 1991 § 2
A majority of American courts concur in the notion that if the elements which comprise malicious prosecution are met and material damages are demonstrable, a plaintiff
The Elements of the Tort
We initially delineate the elements of malicious prosecution drawn from proof supplied by multiple civil proceedings. Identification of the constituent elements is central to consideration of the first certified question. It is only when the requirements for maintaining this tort are met that a malicious-prosecution claim arises and the running of limitation is triggered. While our jurisprudence has not previously addressed the question whether a malicious-prosecution claim can be based upon repetitive civil proceedings, the national body of the common law affords ample sources to guide our task.
For the use of a multi-componential predicate in malicious prosecution the same cause of action must have been asserted in each component. The plaintiff must prove the malicious-prosecution defendant (1) initiated the proceedings
While earlier components of the predicate may serve as an element's proof in a later proceeding, each individual suit must satisfy the critical elements of (a) initiation by the malicious-prosecution defendant, (b) termination favorable to the malicious-prosecution plaintiff and (c) lack of probable cause.
Initiation of the Action by the Malicious-Prosecution Defendants
In the five components of the Process there are four separately identified plaintiffs — Laurance B. Wolfberg, Carolyn Wolfberg, Service Business Forms Industries, Inc. and Service Computer Forms Industries, Inc. To combine these components into a "single suit" requires an inquiry into the relationship of the various plaintiffs, each to the other. Where there is (1) a common claim asserted in the components of the Process
Lack of Probable Cause
Greenberg has the affirmative duty of proving
The essence of malicious prosecution is abuse of judicial process occasioned by bringing a civil proceeding with malice.
Termination in Favor of the Malicious-Prosecution Plaintiff
The fourth element of malicious prosecution requires that the claim terminate
For there to be a prevailing party in an action requires that the underlying proceeding not have been dismissed without prejudice. Dismissal without prejudice is not a termination favorable to the malicious-prosecution plaintiff. To hold differently would be to countenance the possibility of countervailing results arising from the same action.
The Statute of Limitation Trigger
The limitation period for malicious prosecution
ABUSE OF PROCESS
Elements of the Tort
The quintessence of abuse of process is "not the wrongfulness of the prosecution, but some extortionate perversion of lawfully initiated process to illegitimate ends."
These principles impel the conclusion that it is not the "commencement or the termination" of a proceeding which triggers the limitations period for this tort. Rather, it is the accrual of the cause of action.
The Limitation Period for Abuse of Process
Because the tort of abuse of process is not included eo nomine among the delicts enumerated in 12 O.S. 1991 § 95(4)
Application of the rules announced today requires that malicious prosecution be distinguished from abuse of process — the former lies for the malicious initiation of process and the latter for a perversion of the process after it is issued. If process is wrongfully initiated and later perverted, both torts would lie since they are not to be viewed as mutually exclusive delicts. The limitation periods for both torts are triggered by accrual of the respective causes of action. Because malicious prosecution is a tort disfavored by our jurisprudence and abuse of process is fact-specific, i.e., tied to misuse of process in a particular action, the applicable limitation period must be gauged on a case-by-case basis. As pointed out earlier in this opinion, the question — whether the earlier components of the Process are relevant to show (a) in malicious-prosecution claims the elements of probable cause, malice and/or punitive damages or (b) in abuse-of-process claims improper or ulterior motives or application — constitutes a matter within the certifying court's cognizance.
CERTIFIED QUESTIONS ANSWERED.
HODGES, C.J., LAVENDER, V.C.J., and HARGRAVE, OPALA, ALMA WILSON, SUMMERS and WATT, JJ., concur;
SIMMS and KAUGER, JJ., concur in result.
See also 12 O.S. 1991 § 2013 for Oklahoma's statutory treatment of counterclaims.
See also Browning, supra note 22 at 725, where it was held that if the evidence establishes that an action was instigated without probable cause, malice may be implied or inferred.
See also Donohoe Const. v. Mount Vernon Associates, 235 Va. 531, 369 S.E.2d 857, 862 (1988), which accords with this view.