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Dutt v. Kremp12/22/1992
rence that appellant acted with malice. II. Abuse of Process
At the close of trial, appellant moved for a directed verdict and for judgment notwithstanding the verdict or, in the alternative, for a new trial on the grounds that there was no evidence to support a verdict in favor of respondents on their abuse of process claim. The trial court denied these motions, and appellant contends that the court erred in doing so. We agree with appellant.
An abuse of process claim consists of two elements: (1) an ulterior purpose other than resolving a legal dispute, and (2) a willful act in the use of process not proper in the regular conduct of the proceeding. Kovacs v. Acosta, 106 Nev. 57, 787 P.2d 368 (1990). An “ulterior purpose” is any “improper motive” underlying the issuance of legal process. Laxalt v. McClatchy, 622 F.Supp. 737, 751 (D.Nev. 1985). At trial, respondents assigned two improper motives to appellant.
Respondents first argued that appellant and Rentnelli filed the malpractice action in an effort to avoid paying the bill for medical services provided by respondents. In our view, however, the evidence marshalled by respondents in support of this argument is not persuasive. Moreover, as appellant correctly contends, a desire to avoid paying fees for what are, at the time, perceived to be negligent medical services is not an improper motive. Finally, this improper motive, if it existed at all, was more Rentnelli's than appellant's and, as noted above, the trial court granted Rentnelli's motion for involuntary dismissal.
Respondents also asserted that appellant filed the malpractice action to coerce a nuisance settlement. See Bull v. McCuskey, 96 Nev. 706, 615 P.2d 957 (1980), overruled in part on other grounds by Ace Truck v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987). According to respondents, this improper motive was demonstrated by appellant's attempt, after obtaining the Medical Quality Foundation's report, to negotiate a settlement with the
[108 Nev. 1076, Page 1084]
lawyer for one of the respondents. Again, however, we find respondents' evidence unconvincing. Unlike the defendant attorney in Bull, appellant made no formal demand for settlement and presented no specific monetary figures. Indeed, appellant dismissed the complaint shortly after receiving the Medical Quality Foundation's report. Thus, we conclude that there is insufficient evidence to support a finding that appellant filed the malpractice action to coerce a nuisance settlement.
Because we hold that appellant harbored no ulterior purpose other than resolving Rentnelli's apparent malpractice dispute with respondent, we need not consider the second element of an abuse of process claim, namely, whether appellant engaged in a willful act in the use of process not proper in the regular conduct of the proceeding.
The dissenting author's advocacy on behalf of the medical establishment, while characteristically turgid, is laudable, as are his past efforts on behalf of gaming concerns, business and industry, and assorted insurance companies. One is nigh moved to tears by these chronicles of destitution, misery and exploitation of the privileged few by the wicked little people.
Mr. Justice Steffen, the world is not as you see it. I remind you that all persons—not just society's “winners”—are equal before the judicial courts of this land. I also urge you to open your eyes to the practical consequences of your rarefied legal analysis; People suffer unjustly when they are fired from their jobs for little or no reason or when they are denied insurance coverage based on an arcane reading of some hidden policy exclusion. With respect to the rul
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