129 B.R. 27 | Bankr. D. Del. | 1991
MEMORANDUM OPINION AND ORDER
In this adversary proceeding, Hiram N. Lasher moves for summary judgment on Count III of the amended complaint of Harold and S. Jean Marvel, debtors. Count III states an abuse of process claim and seeks unspecified damages. This Court has jurisdiction pursuant to 28 U.S.C. § 157, and this is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (K), and (0).
I. FACTS
In considering a motion for summary judgment, the court will consider admissions, depositions and exhibits thereto, and signed affidavits on file. Matter of L.B. Trucking, 90 B.R. 81, 84 (Bankr.D.Del. 1988). Viewing this record in the light most favorable to the non-movants (the Marvels), the following facts for the purposes of this motion exist.
On June 26, 1990, the Marvels filed a voluntary petition under Chapter 11 in this Court. Lasher subsequently filed a proof of claim relating to the Superior Court judgment for $180,170.23 plus interest.
II. DISCUSSION
Count III alleges Lasher wrongfully and maliciously executed upon the farm equipment knowing that the Debtors would be unable to use the farm equipment at the height of the farming season in order to extract payment from the Marvels. As a result of the scheduling of the Sheriffs sale, Count III alleges the Marvels were forced to file a bankruptcy petition to enable them to continue farming. Count III seeks all expenses ensuing from this filing, including attorney’s fees.
The parties agree that the Marvels’ abuse of process tort claim must satisfy the requirements of Delaware law:
[T]he essential elements of the tort are: 1) an ulterior purpose; and 2) a wilful act in the use of the process not proper in the regular conduct of the proceedings. In explaining these elements, Prosser notes that some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required. Merely carrying out the process to its authorized conclusion, even though with bad intentions, does not result in liability. Some form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, must be shown.
Nix v. Sawyer, Del.Super., 466 A.2d 407, 412 (1983) (citations omitted). That there must be some definite act in furtherance of an illegitimate objective was recently reiterated in Feinman v. Bank of Delaware, 728 F.Supp. 1105, 1115 (D.Del.1990) (construing Delaware law).
Initially, the court notes that Lasher’s use of the Fi Fa attachment process was fully authorized, and was a legitimate method of attempting to satisfy the debt. The Marvels emphasize Lasher’s bad intent in utilizing this process. However, that Lasher had bad intentions in filing the Fi Fa attachment does not by itself satisfy the abuse of process requirements. The Marvels have not averred any overt act, either before or after the attachment, that could be equated with coercion to obtain a collateral advantage. See id. at 1115. Specifically, Mr. Marvel’s affidavit does not allege that Lasher extracted, or attempted to extract payments from the Marvels.
In apparent recognition of this deficiency, the Marvels cite non-Delaware case law for the proposition that “in the case of excessive attachment, ... the inference may be drawn that the defendant sought extortionate advantage by tying up all of the plaintiff’s property when attachment of a small amount would provide sufficient security for the debt.” See Prosser and Keeton, Law of Torts, § 121, at 899 & n. 28 (5th ed. 1984). This doctrine, assuming it would be applicable in Delaware, does not help shore up the hole in the Marvels’ abuse of process claim. No evidence of
The Marvels have not averred a coercive act, and therefore, their abuse of process claim is deficient as a matter of law. It is thus not necessary to reach the issue of whether extracting payment on a debt in these circumstances constitutes an unauthorized and illegitimate objective as required by the Feinman case.
III. CONCLUSION
An order in accordance with this Memorandum Opinion is attached.
ORDER
AND NOW, June 13, 1991, for the reasons stated in the attached Memorandum Opinion,
IT IS ORDERED THAT:
1. Hiram N. Lasher’s motion for summary judgment is GRANTED.
2. Lasher’s request for sanctions pursuant to Bankruptcy Rule 9011 is DENIED.
3. Trial on Counts I and II of the amended complaint will be held September 26, 1991 at 11:00 a.m.