Mosley v. Titus
1:09-cv-00794
D.N.M.Oct 28, 2010Background
- Titus is a Farmington, NM attorney who primarily handles workers’ compensation matters; Mosley began practicing medicine in Farmington in 1997 and ran Mesa Occupational and Sports Medicine treating injured workers; Titus’ clients complained Mosley ex parte contacted their employers/insurers, allegedly harming them; in 1998 Titus warned Mosley that such ex parte contacts were improper and demanded cessation; from 2001 to 2008 Titus filed thirteen state court lawsuits against Mosley to stop ex parte contacts and recover damages; in 2007 Mosley sold his practice to Reliance Medical Group and moved to Colorado; by August 2008 all claims against Mosley were dismissed.]
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause and motive in malicious abuse of process | Mosley argues Titus filed suits without probable cause to harass him | Titus contends he had probable cause and pursued legitimate redress for client rights | Titus had probable cause; Mosley’s claim fails as a matter of law |
| Duty of care owed by attorney to non-clients | Mosley contends Titus owed him a duty due to ethical duties | No duty owed to non-client adverse party; advocacy for clients is privileged | No duty owed; negligence claim fails |
| Justification for prima-facie tort | Guest v. Berardinelli does not foreclose prima-facie tort when there is no guaranteed outcome | Lawsuits had probable cause and were justified to advance clients’ rights | Prima-facie tort claim fails; justified conduct outweighed any alleged injury |
| Intentional infliction of emotional distress | Filing suits with alleged harassment caused severe distress | Filing with probable cause and within professional norms cannot be extreme and outrageous | No extreme and outrageous conduct; claim fails |
| Damages and punitive damages | Loss of value of Mosley’s practice and punitive damages possible if torts succeed | Damages/punitive claims fail given dismissal of underlying torts and lack of provable damages | Damages and punitive damages claims dismissed |
Key Cases Cited
- DeVaney v. Thriftway Mktg. Corp., 124 N.M. 512, 953 P.2d 277 (1998) (restates malicious abuse of process elements and risks of chilling access to courts)
- Fleetwood Retail Corp. of N.M. v. LeDoux, 142 N.M. 150, 164 P.3d 31 (2007) (probable cause standard and pre-filing inquiry in MAP contexts)
- Guest v. Berardinelli, 145 N.M. 186, 195 P.3d 353 (Ct. App. 2008) (probable cause for filing suit; novel claims allowed; limits on abuse of process claims against attorneys)
- Beals v. Ares, 25 N.M. 459, 166 P. 780 (1919) (right/remedy principle guiding legal rights and redress)
- Gomez v. Nielson’s Corp., 119 N.M. 670, 894 P.2d 1026 (Ct. App. 1995) (insurer/agent ex parte communications with worker’s physician analyze consent/waiver)