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Dutt v. Kremp12/22/1992
By the Court, Mowbray, C. J.:
THE FACTS
In the winter of 1985, respondents, physicians affiliated with Saint Mary's Hospital in Reno, treated Jack Rentnelli for a brain illness. Believing that he had not received proper medical care from respondents, Rentnelli contacted appellant Virgil Dutt, an attorney, about bringing a medical malpractice lawsuit.
Appellant and his legal assistant evaluated Rentnelli's claim, interviewing Rentnelli and his family members, obtaining and reviewing Rentnelli's medical records, and researching pertinent medical and legal authorities. Appellant also spoke with another attorney, experienced in medical malpractice litigation, who told him that Rentnelli's claim had merit. Ultimately concluding that there were grounds to bring a medical malpractice action, appellant filed a complaint against respondents.
In response to the complaint, appellant received a letter from respondent Dr. David C. Johnson in which Dr. Johnson vigorously defended the medical treatment given to Rentnelli and opined that the malpractice claim was groundless. Dr. Johnson also warned appellant that if Rentnelli should further pursue the claim, he would consider such action to be an abuse of process and “unreasonable litigation.”
Appellant answered Dr. Johnson with a letter of his own, in which he replied, “I have become aware that there exist several
[108 Nev. 1076, Page 1079]
services which analyze a medical malpractice case and advise whether or not we are completely off base. I am in the process of selecting one of these organizations and will be more than happy to abide by their advice.” In accordance with this letter, appellant submitted the records of Rentnelli's treatment to the Medical Quality Foundation.
On September 11, 1986, the Medical Quality Foundation produced a report concluding that “no provable negligence” could be found in respondents' treatment of Rentnelli. Appellant, with the consent of Rentnelli, then voluntarily dismissed the complaint.
In spite of this dismissal, respondents filed a complaint for malicious prosecution and abuse of process against appellant and Rentnelli. After a flurry of pre-trial motions, trial began on August 20, 1990. At the close of respondents' case in chief, Rentnelli and appellant moved for involuntary dismissals; the trial court granted Rentnelli's motion but denied appellant's. On August 29, 1990, the jury returned a verdict for respondents, and the district court entered judgment accordingly. After denying several post-trial motions brought by the parties, the district court entered an amended judgment on March 7, 1991. This appeal and cross-appeal followed.
DISCUSSION
I. MALICIOUS PROSECUTION A. Probable Cause
The elements that must be proved in a malicious prosecution action are the following: (1) a lack of probable cause to commence the prior action; (2) malice; (3) favorable termination of the prior action; and (4) damages. See Chapman v. City of Reno, 85 Nev. 365, 455 P.2d 618 (1969). The first question presented in this appeal is whether, as appellant contends, the trial court erred by refusing to rule on the issue of probable cause.
When there is no dispute as to the facts upon which an attorney acted in filing the prior action, the question whether there was probable cause to institute the prior action is purely a legal question to be answered by the court. Bonamy v. Zenoff, 77 Nev. 250, 362 P.2d 445 (1961). In Sheldon Appel Co. v. Albert & Oliker, 765 P.2d 498, 504 (Cal. 1989), the California Supreme
[108 Nev. 1076, Page 1080]
Court offered
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