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Dutt v. Kremp12/22/1992
a persuasive rationale for the requirement that the court, rather than the jury, determines the existence of probable cause: The question whether, on a given set of facts, there was probable cause to institute an action requires a sensitive evaluation of legal principles and precedents, a task generally beyond the ken of lay jurors, and courts have recognized that there is a significant danger that jurors may not sufficiently appreciate the distinction between merely unsuccessful and a legally untenable claim. To avoid improperly deterring individuals from resorting to the courts for the resolution of disputes, the common law affords litigants the assurance that tort liability will not be imposed for filing a lawsuit unless a court subsequently determines that the institution of the action was without probable cause. Here, because the facts upon which appellant relied in filing the prior action are undisputed, the existence of probable cause was a purely legal question which should have been answered explicitly by the district court. Yet, despite appellant's repeated requests that it rule on the existence of probable cause, the district court refused to take the issue from the jury. Instead, the district court submitted the issue to the jury, as evidenced by the following jury instruction: In a malicious prosecution action against an attorney, the test for “probable cause” is an objective one. Significant issues include what facts were known to the attorney, and whether those facts made the lawsuit tenable. The attorney's subjective belief as to the merits of the case is relevant and admissible on the issue of malice. We hold that the district court erred in submitting the issue of probable cause to the jury.
Nevertheless, because the existence of probable cause is a purely legal question and the material facts have been fully developed in the trial court and are undisputed, we need not remand this matter to the district court for a determination. See Nyberg v. Kirby, 65 Nev. 42, 67-68, 188 P.2d 1006, 1018 (1948), reh'g denied, 65 Nev. 78, 193 P.2d 850 (1948). Instead, we shall resolve the determinative legal question here on appeal. See Pink v. Busch, 100 Nev. 684, 691 P.2d 456 (1984).
This court has not yet enunciated a test for determining whether the facts known to the attorney constitute probable cause
[108 Nev. 1076, Page 1081]
for filing the underlying action. After considering the approaches of other jurisdictions, we have concluded that the test set forth by the California Supreme Court in Sheldon Appel Co. is most appropriate. Under this test, when the facts known by the attorney are not in dispute, the court must determine whether, on the basis of these facts, any reasonable attorney would have thought that the institution of the prior action was legally tenable. Sheldon Appel Co., 765 P.2d at 511 (emphasis added). The standard is an objective one; it does not permit the court to consider whether the attorney subjectively believed that the prior action was legally tenable. Moreover, the adequacy of an attorney's research is not relevant to the probable cause determination, id. at 510, and an attorney is entitled to rely entirely on what his client told him when deciding whether there is probable cause to file a lawsuit. Lucero v. Stewart, 892 F.2d 52, 54 (9th Cir. 1989) (construing Sheldon Appel Co.). We adopt the Sheldon Appeal Co. test for our jurisdiction, and, in doing so, we reaffirm the principle that an attorney's role is to facilitate access to our judicial system for any person seeking legal relief.
We conclude that, under the Sheldon Appel Co. test, a reasonable attorney, relying upon facts learned from reviewing Rentnelli's medical rec
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