Dale J. Montpelier v. Herbert S. Moncier
E2016-00246-COA-R3-CV
| Tenn. Ct. App. | Jun 1, 2017Background
- Dispute arose from ownership/control disputes over Brakebill Nursing Home after transfers by W. Lynn Brakebill and her later conservatorship; competing litigation consolidated in Knox County circuit court and one case removed to federal court.
- Herbert S. Moncier (defendant), an attorney for W. Lynn Brakebill and others, served a Tennessee Rule 11 sanctions motion on opposing counsel (Montpelier and Della-Rodolfa) after receiving notice of removal to federal court.
- Plaintiffs (Montpelier and Della-Rodolfa) are attorneys for Jack Brakebill and allege Moncier repeatedly uses Rule 11 and other sanctions motions as coercive, extortionate tactics to shift fees and impose litigation costs.
- Plaintiffs asserted common-law abuse of process (and alternatively civil extortion), alleging Moncier served Rule 11 motions in state court for improper purposes, in an improper forum, and without proper client authorization, sometimes without filing the motions in court.
- The trial court dismissed the complaint under Tenn. R. Civ. P. 12.02(6), reasoning that serving an unfiled Rule 11 safe-harbor motion (or a motion not yet presented to the court) does not constitute use of court authority (i.e., “process”) sufficient for abuse of process.
- The Court of Appeals affirmed, finding plaintiffs plausibly alleged an ulterior motive but failed to allege a use of process that constituted an improper use of the court’s authority required for abuse of process; civil extortion claim also rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint states abuse of process | Monpelier/ Della‑Rodolfa: Moncier served Rule 11 motions to coerce fee-shifting and un-removal; ulterior motive and improper forum render the service an abuse of process | Moncier: serving a Rule 11 safe-harbor motion (not filed with the court) is not "process" invoking court authority; no actionable use of process | Court: Plaintiffs allege ulterior motive but did not allege use of court authority sufficient for abuse of process; dismissal affirmed |
| Whether civil extortion claim viable | Plaintiffs: Rule 11 threats sought collateral advantage (money/un-removal) — extortionate purpose | Moncier: same procedural defense; actions within advocacy and safe-harbor; not actionable extortion | Court: No viable civil extortion claim on these facts; affirmed |
| Whether procedural posture (unfiled/served-only motions) creates a new tort | Plaintiffs: service without filing can still coerce and abuse process | Moncier: Rule 11 procedure precludes treating served-but-unfiled motions as process | Court: Declined to create a new cause of action; left question whether the practice complies with Rule 11 for another day |
| Whether appeal frivolous | Plaintiffs: N/A | Moncier: appeal frivolous | Court: Appeal not frivolous; nonetheless affirmed dismissal |
Key Cases Cited
- Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 2002) (adopts test for abuse of process where primary intent is to increase burden and expense on opponent and use is not legitimately advancing litigation)
- Bell ex rel. Snyder v. Icard, 986 S.W.2d 550 (Tenn. 1999) (abuse of process requires use of legal process for wrongful purpose)
- Webb v. Nashville Area Habitat of Humanity, Inc., 346 S.W.3d 422 (Tenn. 2011) (Rule 12.02(6) standards for dismissal reviewed)
- Ellithorpe v. Weismark, 479 S.W.3d 818 (Tenn. 2015) (Rule 12.02(6) principles; accept complaint allegations as true)
- Trau‑Med of Am., Inc. v. Allstate Ins., 71 S.W.3d 691 (Tenn. 2002) (de novo review of legal conclusions on motion to dismiss)
- Merritt‑Chapman & Scott Corp. v. Elgin Coal, Inc., 385 F. Supp. 17 (E.D. Tenn. 1972) (discusses abuse of process as misuse of court authority)