Humphrey v. Herridge

BISHOP, Judge. Appellee, Van K. Herridge, obtained summary judgment against appellants, Bernard W. Humphrey, Jr., and Peggy K. Humphrey, in the amount of $194,607.68, plus interest. Her-ridge’s attorneys, Stephen H. Kehoe and the law firm of Ewing, Dietz, Turner & Kehoe (“the Law Firm”) filed a writ of execution by levy, on behalf of Herridge, in the Circuit Court for Talbot County. The Talbot County Sheriff executed the writ and levied upon the Humphreys’ residence.

The Humphreys filed for bankruptcy, thereby staying the judgment and the levy. The Humphreys and James Wooten, trustee of the Humphreys’ bankruptcy estate, filed a complaint against Herridge, alleging abuse of process, trespass, conversion, and intentional infliction of emotional distress. The Law Firm filed a motion to intervene in the proceedings, to which appellants consented. The Law Firm and Herridge later filed motions to dismiss, or in the alternative, motions for summary judgment.

The Humphreys filed an amended complaint, adding Stephen H. Kehoe as a defendant, and alleging ²⁴¹ claims of abuse of process and trespass against Kehoe. The amended complaint also alleged that the Law Firm was vicariously liable for Kehoe’s actions. Kehoe and the Law Firm filed another motion to dismiss, or in the alternative, motion for summary judgment, which, after a hearing, the trial court granted, along with Herridge’s previously filed motion to dismiss. Issues The Humphreys and Wooten raise several issues, which we rephrase and consolidate: I. Does the amended complaint state a claim for abuse of process?

II

Is it an abuse of process under a writ of levy to exclude judgment debtors from their real property in accordance with instructions of the plaintiff given to the sheriff, pursuant to Md.Rule 2-641(a)?

III

Does an amended complaint state causes of action for trespass and conversion based on the execution of a writ of levy coupled with instructions to bar debtors from their property? Facts The Humphr eys purchased St. Michaels Hardware and Gift Store from Herridge in 1985. The Humphreys financed their purchase by executing a note payable to Herridge in the amount of $210,000, secured by the store’s inventory and fixtures. The Humphreys defaulted on the note, and Her-ridge obtained summary judgment in the amount of $194,-647.68, plus interest.

Herridge moved to collect the judgment, directing Kehoe and the Law Firm to file a request for writ of execution by levy. The writ instructed the sheriff to levy upon the Humphreys’ residence located at 8490 Bozman-Neavitt Road, St. Michaels, Maryland, and directed the sheriff “not [to] exclude others from access to, or the use of, the levied property.” This writ was returned “non est” because the sheriff received a replacement writ, instructing the sheriff ²⁴² to levy upon the property “located in Talbot County at 8940 [sic] Bozman-Neavitt Road” and “[to] exclude others from access to, or the use of, the levied property.” The sheriff served the replacement writ and levied the property. Kehoe later accompanied the sheriff to the property and assisted in placing padlocks on the Humphreys’ home. In order to regain access to their property, the Humphreys sought relief by filing for bankruptcy.

The Humphreys then filed suit against Herridge, Kehoe, and the Law Firm, alleging wrongful use of a writ of execution to achieve ulterior purposes, inconsistent with the proper and orderly execution of a writ. Specifically, the Humphreys assert that, by executing the writ, appellees sought to “cause them deprivation, humiliation and inconvenience[,]” and “to coerce them into immediately paying the judgment ..., or at least to file bankruptcy.” According to the Humphreys, in the course of the execution of the writ, appellees assisted the sheriff in wrongfully removing the Humphreys from their property and locking them out of their home. The Humphreys assert that these actions were undertaken after the issuance of the writ and amounted to trespass and conversion. Discussion Standard of Review The trial court dismissed, with prejudice, the Humphreys’ complaint pursuant to Rule 2-322(b)(2). “In reviewing that judgment, we assume the truth of all relevant and material facts well pleaded and all inferences which can be reasonably drawn from those facts.” Stone v. Chicago Title Ins.

Co., 330 Md. 329, 333 , 624 A.2d 496 (1993). “[A]ny ambiguity or uncertainty in the allegations bearing on whether the complaint states a cause of action[, however,] must be construed against the pleader.” Figueiredo-Torres v. Nickel, 321 Md. 642, 647 , 584 A.2d 69 (1991) (quoting Sharrow v. State Farm Mut. Auto. Ins., Co., 306 Md. 754, 768 , 511 A.2d 492 (1986)). ²⁴³ I. & II. “ ‘The tort of abuse of process occurs when a party has wilfully misused criminal or civil process after it has issued in order to obtain a result not contemplated by the law.’ ” Keys v. Chrysler Credit Corp., 303 Md. 397, 411, 494 A.2d 200 (1985) (quoting Krashes v. White, 275 Md. 549, 555, 341 A.2d 798 (1975)). To sustain an action for abuse of process, the claimant must prove (1) the wilful use of process for an illegal purpose; (2) an ulterior motive underlying the use of process; and (3) damages resulting from the perverted use of process.

See Berman v. Karvounis, 308 Md. 259, 262 , 518 A.2d 726 (1987); R.P. Gilbert, P.T. Gilbert & R.J. Gilbert, Maryland Tort Law Handbook, § 5.0 (1986). “[T]his second element of the tort requires ‘[s]ome definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process....’” Berman, 308 Md. at 265 , 518 A.2d 726 (quoting W. Prosser, Handbook of the Law of Torts, § 121 at 857 (4th ed. 1971)). “[I]n Palmer Ford, [Inc. v. Wood, 298 Md. 484 , 471 A.2d 297 (1984),] the tort was established because there was evidence to support a finding that criminal process had been used as a coercive tactic to collect a civil debt.” Berman, 308 Md. at 265 , 518 A.2d 726 . In Berman , however, the Court of Appeals determined that the tort of abuse of process was not alleged because there [were] no facts to show how the process was used for any purpose other than the normal one of obtaining personal jurisdiction over the appellants. Appellants have failed to allege in what manner process was used in some abnormal fashion “to coerce/extort money and/or property from” them. Id.

Because we are dealing with a motion to dismiss in the case sub judice, “we consider ... allegations of fact and inferences deducible from them, not merely conclusory charges.” Id. Here, the alleged abuse of process arises out of the issuance of a writ of execution directing the sheriff to ²⁴⁴ levy upon the Humphreys’ real property in order to satisfy the money judgment obtained by Herridge. According to the Humphreys’ complaint, Mr. Herridge intentionally utilized the improper and irregular use of the Writ described above in order to obtain satisfaction of ulterior motives. Mr. Herridge harbored actual malice toward the Humphreys and sought to injure them by ejecting them from their home.

He wished to punish the Humphreys for defaulting on the note he held. In addition, Mr. Herridge sought to use ejectment of the Humphreys from their home to force them into bankruptcy, or if the Humphreys did not pay immediately or file bankruptcy, to cause them to suffer gratuitous deprivation and humiliation. Mr. Herridge intended as well as to harass the Humphreys and cause them fear, grief and inconvenience by removing them, from their home without notice and barring them from access to their possessions. In Berman , the Court of Appeals explained that no liability for abuse of process exists “ “where the defendant has done no more than carry out the process to its authorized conclusion, even though with bad intentions.’ ” Id. at 265 , 518 A.2d 726 (quoting W. Prosser, Handbook of the Law of Torts, § 121 at 857 (4th ed. 1971)).

In the case sub judice, the Humphreys fail to show how the process was used for any purpose other than the normal one of obtaining satisfaction of the judgment against them. Pursuant to Rule 2-641(a), the request for a writ of execution shall be accompanied by instructions to the sheriff that shall specify (1) the judgment debtor’s last known address, (2) the judgment and the amount owed under the judgment, (3) the property to be levied upon and its location, and (4) whether the sheriff is to leave the levied property where found, or to exclude others from access to it or use of it, or to remove it from the premises. The judgment creditor may file additional instructions as necessary and appropriate and deliver a copy to the sheriff. ²⁴⁵ The Humphreys assert that the language used in subsection (4) of Rule 2-641(a) refers only to the personalty of the judgment debtor and, therefore, appellees had no authority to instruct the sheriff to exclude them from access to or the use of their home. We disagree.

Rule 2-641(a) sets forth general provisions for the issuance and content of a writ of execution. Rule l-202(u) defines the term “property,” as used in the Rule 2-641, to include “real, personal, mixed, tangible or intangible property of eveiy kind.” Rule l-202(u). That definition