2021 MT 252N
Mont.2021Background:
- Terry Wallace, counsel for Karrie Serrania, was previously sanctioned in related Serrania litigation; sanctions were affirmed in part and Wallace was later suspended from practicing law.
- LPH, Inc. (a debt collector) obtained a money judgment against Wallace (via Serrania sanctions); Law Offices of Bruce M. Spencer was retained to collect the judgment but could not locate Wallace or his assets.
- Spencer served subpoenas duces tecum on Wallace’s son, Dr. Sam Wallace, to depose him about Terry Wallace’s whereabouts and assets; one deposition was to occur at a law firm conference room (Geiszler Steele, PC).
- Wallace sued Spencer, LPH, and Geiszler Steele for abuse of process, intentional infliction of emotional distress (IIED), and civil conspiracy; defendants moved for summary judgment and for an order declaring Wallace a vexatious litigant.
- The District Court granted summary judgment for defendants, held Wallace’s tort claims failed as a matter of law, and entered a pre-filing vexatious-litigant order requiring court approval before Wallace could initiate new suits; Wallace appealed.
Issues:
| Issue | Wallace's Argument | Appellees' Argument | Held |
|---|---|---|---|
| Whether subpoenas to Wallace’s son constituted abuse of process | Spencer served subpoenas with ulterior, vindictive motive; subpoenas aimed to harass and coerce Wallace | Subpoenas were authorized means to aid execution of judgment (M. R. Civ. P. 69); defendants simply pursued collection | Summary judgment affirmed: no abuse—no unauthorized act beyond normal execution procedures and Wallace offered only speculation |
| Whether IIED and civil conspiracy claims survive absent abuse of process | IIED and conspiracy arise from defendants’ alleged improper conduct surrounding subpoenas | Those torts require an underlying wrongful act; defendants acted within legal rights collecting a judgment | Claims dismissed as they rest on failed abuse-of-process theory; insistence on legal rights not actionable |
| Whether denial of Wallace’s request for a summary-judgment hearing violated due process | Wallace asserts he was entitled to an oral hearing and that its denial denied procedural fairness | Court may forgo hearing in extraordinary circumstances and exercised discretion given Wallace’s litigational history and disruptive conduct | Denial was not an abuse of discretion; due process not violated given record and Wallace’s conduct |
| Whether entry of a pre-filing vexatious-litigant order was appropriate | Wallace challenges order as overbroad and unnecessary | District Court weighed McCann factors: repeated vexatious suits, lack of reasonable chance to prevail, waste of resources, and prior sanctions inadequately deterring | Order affirmed: court did not abuse discretion and pre-filing restriction was tailored and warranted |
Key Cases Cited
- Hughes v. Lynch, 338 Mont. 214, 164 P.3d 913 (2007) (elements of abuse of process require ulterior purpose and a willful, unauthorized act)
- Brault v. Smith, 209 Mont. 21, 679 P.2d 236 (1984) (abuse-of-process principles)
- Moore v. Goran, LLC, 388 Mont. 340, 400 P.3d 729 (2017) (summary-judgment evidence must be material and substantial, not speculative)
- Judd v. Burlington N. & Santa Fe Ry., 343 Mont. 416, 186 P.3d 214 (2008) (insistence on legal rights in permissible way does not give rise to IIED)
- McCann v. McCann, 392 Mont. 385, 425 P.3d 682 (2018) (factors for assessing vexatious-litigant orders)
- Illinois v. Allen, 397 U.S. 337 (1970) (courts have discretion to maintain decorum and address disruptive conduct)
- Richards v. County of Missoula, 354 Mont. 334, 223 P.3d 878 (2009) (hearing on summary judgment may be unnecessary in extraordinary circumstances)