Cottman v. Cottman

BLOOM, Judge. On July 22, 1977, Marie Antoinette Cottman, one of the appellees, filed suit for a divorce against her then husband, James Stewart Cottman, brother of Brooke P. Cottman, the appellant herein. Mrs. Cottman was represented by attorneys Robert Kolodney and Edward C. Bou, who are also appellees herein, as is the law firm of Burch, Kerns & Klimek, P.C. Marie retained Kolodney to represent her in the divorce action. Kolodney is a member of the District of Columbia bar but not of the Maryland bar.

He associated himself with Bou, a Maryland lawyer, for purposes of filing a divorce action against James in the Circuit Court for Baltimore County. In her bill of complaint, Marie alleged, inter alia, that James was wrongfully withholding some of Marie’s property from her, including the proceeds from the sale of a house which had been owned jointly by Marie and James. In addition to seeking a divorce, Marie sought to impose a constructive trust on “any accounts” held by James. All attempts to have the summons and complaint served on James proved to be fruitless.

On two occasions service by the sheriff was returned non est. This led Marie and her ⁴¹⁹ attorneys to believe that James was evading service. In September 1977 Marie informed Kolodney that James had purchased a house located at 13901 Jarrettsville Pike in Phoenix, Maryland. Furthermore, it was ascertained that James had not appeared at that house for about three weeks.

Bou then sought and obtained an order, pursuant to Rule 104h, permitting alternative service to be made on James. In early summer of 1978, Marie discovered that the property at 13901 Jarrettsville Pike was being prepared for imminent sale. She later learned that James had transferred the property to Brooke. She informed Kolodney of these facts, and he then told Bou.

Thereafter, in July 1978, a search of the Baltimore County land records disclosed that on August 19, 1977, Brooke became record titleholder to the property. Kolodney advised Bou of those facts and that the property was currently for sale. These and other facts led the attorneys to believe that Brooke was aiding and abetting James in his efforts to, in the attorneys’ words, “avoid his obligations to Marie.” For example, they were informed that Brooke was harboring James and some of his and Marie’s possessions at a location in Pennsylvania. Furthermore, they received information to the effect that, even though the property was recorded in Brooke’s name, James held himself out as the owner of the Jarrettsville Pike property and took actions consistent with such ownership.

As a result of this information, Marie’s attorneys filed an amended bill of complaint for divorce which sought to impose a constructive trust on the property located at 13901 Jarrettsville Pike and which named Brooke as a defendant. Meanwhile, on June 14, 1978, Brooke had executed a contract of sale for the property to a third party. As a result of the filing of the amended bill, that sale fell through. After a series of procedural maneuvers by both parties, the amended bill was voluntarily dismissed in April 1980.

In September of that year Brooke filed this suit naming Marie, Bou, ⁴²⁰ Kolodney, and the law firm of Burch, Kerns & Klimek, P.C., as defendants and seeking damages for malicious use of process and abuse of process. In November 1982, summary judgment was granted in favor of all the defendants. I. Propriety of Summary Judgment on Malicious Use of Process in Favor of Appellees Kolodney and Bou In Maryland, a summary judgment will be granted to a party “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Md. Rule 610 d 1. In addition, “[ajnswers [to interrogatories], made under oath by a party, are a proper means of placing before the court facts to be considered in ruling on a motion for summary judgment.” Vanhook v. Merchants Mut.

Ins. Co., 22 Md.App. 22, 27 , 321 A.2d 540 (1974). A summary judgment proceeding is not a substitute for trial. Rather, its function is to determine if a trial is necessary, i.e., whether there is a genuine issue of material fact.

Coffey v. Derby Steel Co., 291 Md. 241, 247 , 434 A.2d 564 (1981); Berkey v. Delia, 287 Md. 302, 326 , 413 A.2d 170 (1980); Wood v. Palmer Ford, Inc., 47 Md.App. 692, 693-694 , 425 A.2d 671 (1981); Vanhook v. Merchants Mut. Ins. Co., supra. Thus, our inquiry is whether the trial judge correctly ruled that there were no genuine factual disputes and that, as a result, Kolodney and Bou were entitled to judgment as a matter of law on the malicious use of process count.

In order for an action for malicious use of process to succeed, the plaintiff must prove the following: “(i) the institution of civil proceedings (ii) without probable cause (iii) with malice (iv) that the proceedings have terminated in the plaintiffs favor, and (v) that damages were inflicted on the plaintiff by seizure of his property or other special injury.” Wesko v. G.E.M., Inc., 272 Md. 192, 197 , 321 A.2d 529 (1974) (citations omitted). ⁴²¹ Here, we shall focus on the second requirement — that the malicious use defendant shall have instituted the original action without probable cause of success. “Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused is guilty.” ... It is equally clear that if the facts, and the inferences to be drawn therefrom, relied on to constitute probable cause are clear and undisputed, the question is one of law for the court; where the facts are contested, however, whether they are proved is a question for the jury- Exxon Corp. v. Kelly, 281 Md. 689, 697-98 , 381 A.2d 1146 (1978) (citations omitted). In the instant case, both Bou and Kolodney have presented evidence which represents that Marie told them facts which led them to believe that she was entitled to the imposition of a constructive trust on the property in question. Attached to each defendant’s motion for summary judgment were affidavits of Marie, Kolodney and Bou which combined to set forth in detail the facts outlined above.

Marie’s affidavit related facts known to her and information received by her from named reliable sources pertaining to her husband’s purchase of the Jarrettsville Pike property which convinced her that her husband, and not his brother, was the sole and true owner of the property. Kolodney’s affidavit set forth the information given him by Marie, his reliance thereon in concluding that James was the real owner of the subject property, his actions in reliance upon that information and his sharing that information with Bou. Bou’s affidavit disclosed the information he received from Marie and Kolodney, his reliance thereon and his actions in reliance upon that information. Both attorneys stated under oath that the amended bill of complaint to name appellant as a party and to seek to impress the Jarrettsville Pike property with a trust was filed “because all of the facts which had been related to [them] strongly suggested that ⁴²² the property had been transferred by James to Brooke for the purpose of preventing Marie from reaching marital assets to which she was entitled.” Kolodney’s answers to interrogatories propounded by Brooke recite additional facts upon which he based his decision to seek the constructive trust.

For example, Kolodney stated that in August 1977 Marie had told him that James and his mother had gone to live with Brooke in Media, Pennsylvania. Furthermore, he says that Marie had told him that she had gone to Media in May or June 1978 and saw James’ automobile parked in Brooke’s driveway. Kolodney states that he had called Brooke in September 1977 in an attempt to have Brooke locate James. Brooke threatened Kolodney, told him that he would not tell him James’ location, and told him to expect a “war” if he attempted to bring litigation.

Bou’s answers to interrogatories contain much of the same information. Those answers further stated that after the date of the assignment of the property to Brooke, James repeatedly held himself out as the owner of the property and, in fact, took actions to maintain the property, including hiring a gardener. Brooke presented no evidence to dispute the claims of Kolodney and Bou. Brooke did not submit any affidavits in opposition to the motion for summary judgment.

Furthermore, his answers to Bou’s interrogatories do not contend that Bou and Kolodney were not informed of the matters described in their affidavits and answers. Brooke instead argues that much of the evidence contained in the affidavits and answers is hearsay evidence and therefore should not have been considered in ruling on the motion for summary judgment. He contends that statements beginning with “I had been informed” and “The information I received was” are hearsay statements. This position involves a fundamental misunderstanding of the hearsay role and its operation. ⁴²³ Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.

McCormick, Law of Evidence § 246, p. 584 (2d ed. 1972). Kuhl v. Aetna Casualty and Surety 51 Md.App. 476, 486 , 443 A.2d 996 (1982), aff’d., sub nom Aetna Casualty and Surety v. Kuhl, 296 Md. 446 , 463 A.2d 822 (1983). Here, the statements in question were not being offered for their truth. Rather they were offered to show that they were made and to show their effect on the listeners, Kolodney and Bou. “The general rule is that a statement is admissible if introduced for the purpose of showing that a party relied on and acted upon the statement and is not introduced for the purpose of showing that the facts stated in the declaration are true.” Purvis v. State, 27 Md.App. 713, 716 , 343 A.2d 898 (1975).

This is precisely the purpose for which these statements were used. For example, the statement in Kolodney’s affidavit, “Specifically, Mrs. Cottman informed me that her husband, James, was wrongfully withholding certain of her property from her ...” was not used to prove its truth, i.e., that James was indeed withholding her property. Instead, the statement was offered to show its effect on Kolodney — that he relied on and acted upon it. Thus, the statements are not hearsay and therefore were properly considered by the trial court in granting the motion.

Hence, there is no dispute as to what was told to Kolodney and Bou. There being no genuine issue of material fact as to what Kolodney and Bou relied on to constitute probable cause, the question is were they entitled to judgment as a matter of law? That is, do the facts that were available to them add up to probable cause as a matter of law? As we noted previously, probable cause is a reasonable ground of suspicion. ⁴²⁴ Probable cause requires no more than that there be a reasonable basis for the attorney to believe that the client had a “tenable” claim.

In other words, probable cause exists unless the attorney prosecutes a claim which a reasonable lawyer would not regard as tenable under the circumstances of the existing facts and laws. R. Mallen and V. Levit, Legal Malpractice § 53 (2d ed. 1981) (footnotes omitted). Defining probable cause as a reasonable basis is not terribly useful to our inquiry; one term is as nebulous as the other. It may be helpful to examine the policy behind the probable cause requirement and the courts’ perspective on both the requirement and the cause of action in general.

The Court of Appeals has declared that “ ‘[i]f attorneys cannot act and advise freely, and without constant fear of being harassed by suits and actions at law, parties could not obtain their legal rights.’ ” North Point Constr. Co. v. Sagner, 185 Md. 200, 208 , 44 A.2d 441 (1945) (citations omitted). Therefore, “[sjuits for malicious prosecution are viewed with disfavor in law and are to be carefully guarded against.” Id. at 206 , 44 A.2d 441 (citations omitted). This is particularly true when the defendant is an attorney, because of the attorney’s professional duty to represent his client zealously.

See, Model Code of Professional Responsibility EC 7 — 4 (1979). “[A]n attorney’s role is to facilitate access to our judicial system for any person seeking legal relief. As such, probable cause is not to be judged merely upon some personal assessment of a claim’s merit. It must encompass consideration of the law’s desire to fully meet the client’s needs.” Wong v. Tabor, Ind.App., 422 N.E.2d 1279, 1285 (1981) (footnote omitted). The Indiana Court of Appeals in Wong adopted the two-pronged test contained in Tool Research & Engineering Corp. v. Henigson, 46 Cal.App.3d 675 , 120 Cal.Rptr. 291, 297 (1975), as a standard for determining whether a lawyer has acted with probable cause when he decides to commence litigation: “ ‘The attorney must entertain a subjective belief ⁴²⁵ in that the claim merits litigation and that belief must satisfy an objective standard.’ ” Wong v. Tabor, supra, at 1287 quoting Tool Research & Engineering Corp. v. Henigson, supra.

In determining whether the attorney has a subjective belief that the claim merits litigation, it is important to remember that “[i]t is the attorney’s reasonable and honest belief that his client has a tenable claim that is the attorney’s probable cause for representation . . . and not the attorney’s conviction that his client must prevail.” Wong v. Tabor, supra, at 1288 quoting Tool Research & Engineering Corp. v. Henigson, supra. Generally, the subjective belief requirement will be easily met. The attorney does not have the duty to investigate fully his client’s claim before bringing suit. Wong v. Tabor, supra, at 1289.

It has been suggested that a claim merits litigation if it is neither unlawful nor frivolous. R. Mallen and V. Levit, supra. Here,