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Potter, Prescott v. Campbell, et al.

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME -70
Docket:	Cum-97-69
Argued:	September 4, 1997
Decided:	April 3, 1998



	[¶1]  The law firm of Potter, Prescott, Jamieson & Nelson, P.A.,
appeals from the judgment entered in the Superior Court (Cumberland
County, Bradford, J.) dismissing pursuant to M.R. Civ. P. 12(b)(6) the firm's
complaint against the defendants, John Campbell, James Hartnett, and
Robert Adam.  The firm also challenges the court's (Calkins, J.) denial of its
motion to amend the judgment or, alternatively, to grant the firm leave to
amend its complaint.  We affirm the judgment.  
	[¶2]  In March 1993 the firm began representing defendant Hartnett
in a then-pending divorce action.  On March 21, 1994, the same day as the
divorce settlement hearing, the firm filed a complaint (collection action)
against Hartnett for payment in the amount of $18,802.98 according to a fee
agreement.  The firm requested and received an ex parte trustee process in
the District Court (Biddeford, Levy, J.) for that amount, which was later
increased to $30,000.  Pursuant to M. Bar R. 9(e), Hartnett sought fee
arbitration from the Board of Overseers of the Bar and retained defendant
attorney John Campbell to represent him in that proceeding.  Pursuant to
the rule{1} and a motion by Hartnett, the collection action was stayed pending
the outcome of the arbitration proceeding.  
	[¶3]  In September 1995 Hartnett filed in the District Court a motion
to amend his answer to include a counterclaim.{2}  The court refused to
entertain the motion because the fee arbitration proceeding was pending. 
Hartnett then brought a separate action in the Superior Court (malpractice
action) in December 1995 by a complaint containing the same allegations as
the counterclaim that he had attempted to add to his answer in the
collection action.  In the meantime, the fee arbitration commission
determined that Hartnett owed the firm $19,887 in fees and interest, but
was not liable to the firm for collection costs.  In March 1996 the District
Court in the collection action denied Hartnett's motion to amend his answer
and held that the fee arbitration decision barred any subsequent action in
the District Court.  
	[¶4]  In January 1996 prior to the District Court's decision, the firm
filed its own complaint against the defendants{3} in the Superior Court,
alleging malicious prosecution, abuse of process, civil conspiracy, malicious
defense, fraud, and civil liability for violation of M.R. Civ. P. 11.  In response,
the defendants filed a motion to dismiss for failure to state a claim on which
relief may be granted.  The Superior Court granted the defendants' motion,
deciding that the firm had failed to state sufficiently a claim for malicious
prosecution, malicious defense, abuse of process, and civil conspiracy.{4}  The
firm filed a motion either to alter the judgment to state that the dismissal
was without prejudice or for leave to amend its complaint.  The Superior
Court denied the motion.  This appeal followed.  
	[¶5]  A motion to dismiss tests the legal sufficiency of the complaint. 
Richards v. Soucy, 610 A.2d 268, 270 (Me. 1992).  For purposes of a Rule
12(b)(6) motion, the material allegations of the complaint must be taken as
admitted.  Larrabee v. Penobscot Frozen Foods, Inc., 486 A.2d 97, 98 (Me.
1984).  In reviewing a dismissal, we examine the complaint in the light
most favorable to the plaintiff to determine whether it sets forth elements of
a cause of action or alleges facts that would entitle the plaintiff to relief
pursuant to some legal theory.  Id. at 99.  "A dismissal should only occur
when it appears 'beyond doubt that a plaintiff is entitled to no relief under
any set of facts that he might prove in support of his claim.'"  McAfee v.
Cole, 637 A.2d 463, 465 (Me. 1994) (quoting Hall v. Board of Envtl.
Protection, 498 A.2d 260, 266 (Me. 1985)).  
	[¶6]  In order to state successfully a claim for malicious prosecution
(or wrongful use of civil proceedings), a plaintiff must allege that an action
was instituted against him without probable cause and with a primary
purpose other than that of securing the proper adjudication of the claim
upon which the proceedings was based and that he received a favorable
termination of the proceedings.  Pepperell Trust Co. v. Mountain Heir Fin.
Corp., 1998 ME 46, ¶¶ 14-16, --- A.2d ---, ---.  The trial court concluded
that the firm had failed to state a claim for wrongful use of a civil proceeding
because neither the malpractice action nor the collection action had
terminated at the time the firm filed its complaint.  Although the fee
arbitration proceeding had ended at the time the firm brought suit, the trial
court correctly noted that in its complaint the firm did not allege that the
defendants initiated that action maliciously.  We therefore affirm the
dismissal of the claim for wrongful use of a civil proceeding.{5}  
	[¶7]  The firm next contends that its complaint sufficiently states a
claim for abuse of process.  The elements necessary to sustain that claim are
the use of process in a manner improper in the regular conduct of the
proceeding and the existence of an ulterior motive.  Nadeau v. State, 395
A.2d 107, 117 (Me. 1978).  The firm bases its allegations on the defendants'
initiation of the malpractice action in the Superior Court.  In Simon v.
Navon, 71 F.3d 9 (1st Cir. 1995), the court held that under Maine law the
filing of a complaint alone cannot be the basis for an abuse of process claim
and explained that the "[f]iling of a lawsuit is a 'regular' use of process, and
therefore may not on its own fulfill the requirement of an abusive act, even if
the decision to sue was influenced by a wrongful motive, purpose or intent." 
Id. at 16.  The court noted that typical abuse of process cases involve the
misuse of such procedures as discovery, subpoenas, and attachment.  Id. at
15.  The decision of the court in Navon is consistent with our decisions
involving abuse of process claims.  See Saliem v. Glovsky, 132 Me. 402, 406,
172 A. 4, 6 (1934) ("Regular use of process can not constitute abuse, even
though the user was actuated by a wrongful motive, purpose or intent.").  We
agree with the trial court that an action for abuse of process cannot be based
solely on the filing of a complaint.  
	[¶8]  The firm also contends that its complaint sufficiently states a
claim for civil conspiracy.  We disagree.  In Cohen v. Bowdoin, 288 A.2d 106
(Me. 1972), we explained that absent the actual commission of some
independently recognized tort, a claim for civil liability for conspiracy fails. 
Id. at 110.  Because the firm fails to state sufficiently a claim for either
malicious prosecution or abuse of process, its claim for civil conspiracy also
	[¶9]  The firm further contends that the dismissal was without
prejudice and that the trial court erred in denying its motion to amend the
judgment to reflect that it was without prejudice.  We disagree.  A Rule
12(b)(6) dismissal is technically an adjudication on the merits and is with
prejudice.  1 Field, McKusick & Wroth, Maine Civil Practice § 12.11, at 119
(2d ed. Supp. 1981); see also Dutil v. Burns, 1997 ME 1, ¶ 5, 687 A.2d 639,
641 ("An order of dismissal for failure to state a claim is technically an
adjudication on the merits unless, as is usually the case, leave is granted to
amend the complaint.").  
	[¶10]  Finally, the firm asserts that the Superior Court erred by
refusing to grant it leave to amend its complaint.  To support this
contention, the firm cites Barkley v. Good Will Home Ass'n, 495 A.2d 1238
(Me. 1985).  In that case we held that a trial court's refusal to allow the
plaintiffs to amend their complaint, even though they had already been given
the opportunity to do so, was an abuse of discretion.  Id. at 1239-40.  In
Barkley, however, the plaintiffs were able to show how they could cure their
complaint.  In this case, the firm has failed to do that.  The trial court's
refusal to grant the firm leave to amend its complaint was therefore within
the bounds of its discretion.  
	The entry is:
				Judgment affirmed. 

Attorney for Plaintiff: Thomas S. Coward, Esq. (Orally) POTTER, PRESCOTT, JAMIESON & NELSON, P.A. 37 Beach St., P. O. Box 1190 Saco, ME 04072-1190 Attorneys for Defendants: John S. Campbell, Esq. (Orally) POULOS & McARDLE 183 Middle St., P. O. Box 369 Portland, Maine 04112 Ricky L. Brunette, Esq. (Orally) P. O. Box 7494 Portland, Maine 04112-7494 (for R. Adam)
FOOTNOTES******************************** {1}. M. Bar R. 9(e)(5)(D) provides in pertinent part: "If there is then pending before a court or agency of this State an action instituted by either petitioner or respondent involving the disputed fees, then such action shall, upon motion of the petitioner, be stayed until such dispute is resolved pursuant to this rule." {2}. The counterclaim charged the firm with negligence, breach of fiduciary duties, negligent misrepresentation, breach of contract and the implied covenant of good faith and fair dealings, negligent and intentional infliction of emotional distress, taking without due process, violation of Maine's Improvident Transfer Statute, and violation of the Federal Debt Collection Practice Act. {3}. The complaint alleged that all three of the defendants were liable for these claims. According to the firm, the liability of defendant Robert Adam, Hartnett's accountant, was based on a civil conspiracy theory stemming from his testimony at the fee arbitration proceeding. The firm alleges that Adam conspired with the other defendants to submit false and malicious testimony at the proceeding. {4}. The trial court also dismissed, on the same ground, any claims for fraud or civil liability for violation of M.R. Civ. P. 11. The firm does not challenge the dismissal of those claims. {5}. If we were to recognize a tort of malicious defense, see Aranson v. Schroeder, 671 A.2d 1023 (N.H. 1995), the claim would fail for the same reason. Id. at 1028-29.