Plаintiffs appeal a Wayne County Circuit Court order of summary judgment, appar *144 ently issued because the court believed plaintiffs had not stated a cause of action. GCR 1963, 117.2(1).
In 1969, defendant issued an automobile insurance policy tо plaintiffs, but cancelled the policy when plaintiffs failed to pay the premiums. Despite the cancellation, plaintiffs submitted a claim to defendant for damages they sustained and damages they caused in an automobile accident. Defendant mistakenly paid $1,249, part to plaintiffs and part to an accident victim. On discovering the error of the payment, and after failing to reach an informal settlement, defendant sued plaintiffs and received a judgment for $1,249, plus costs and interest. After plaintiffs failed to comply with a court approved payment plan, defendant sought leverage to force payment. Defendant, through retained counsel, asked the court сlerk of the 71st District Court to file a certification of an unsatisfied judgment, allegedly authorized by MCLA 257.511; MSA 9.2211. The statute, partially set out in the margin, 1 requires that the clerk of the court forward to the Secretary of State a certification оf failure to satisfy a "judgment”, with "judgment” having a particular statutory definition. 2 The clerk *145 filed a certificate, and the Secretary of State suspended Mr. Rowbotham’s operator’s license, allegedly pursuant to the statute. MCLA 257.512; MSA 9.2212.
Two years later, plaintiffs filed the present suit in the Wayne County Circuit Court, alleging in general terms that defendant’s conduct in causing the suspension of Mr. Rowbotham’s license was "wrongful, negligent, and illegal”. The 71st District Court subsequently set aside the certification of unsatisfied judgment, informing the Secretary of State that the resulting suspension was improper. The district court ruled that defendant’s judgment against plaintiffs was not the sort of unsatisfied judgment, as defined in the statute, that mandated license suspension. 3
The Wayne County Circuit Court, after allowing plaintiffs to amend their complaint by adding factual allegations, granted defendant’s motion for summary judgment. The court’s order does not specify the reason for granting summary judgment. However, the transcript оf certain of the proceedings below suggests that the court believed defendant had done nothing tortious in requesting the court clerk to file the certification.
We can understand the court’s reluctance to accept plaintiffs’ complaint as stating a cause of action. Their theory of liability seems novel and does not fit squarely into any traditional tort doctrine. Nonetheless, we hold that the grant of summary judgment was improper. The novelty of *146 plaintiffs’ theory should not automatically call for rejection of their claim; in truth, the theory is novel because defendant chose a form of debt leverage that was itself novel. A plaintiff should not be barred from court, via а summary judgment order, merely because a creditor has discovered a new, and improper, method of exacting payment.
We say that this claim is novel because it does not clearly satisfy the traditional requirements of thе two torts that we could ordinarily consider: abuse of process and malicious prosecution.
The essential elements to an action for abuse of process are the existence of an ulterior purpose and an act in the use of the process not proper in the regular conduct or prosecution of the proceedings. The action lies for the improper use of the process after it had been issued, not fоr maliciously causing it to issue.
Spear v Pendill,
In the present case, plaintiffs’ complaint comes close to alleging an abuse of process. The allegation that defendant chose to gain debt collection leverage by causing the suspension of Mr. Rowbotham’s license is an allegation of an improper purpose in the use of the certification procedure. The only fact that would distinguish the present facts from a case such as
Marlatte v Weickgenant,
It is somewhat incongruous that a defеndant can escape an abuse of process claim with a defense that the process could not have been issued for any purpose. Although incongruous, that is presently the status of the abuse of process tоrt. There is no tort of abuse of process because there was no legitimate process to be abused.
Turning to malicious prosecution, we note the traditional elements of that tort:
"1. A criminal proceeding instituted оr continued by the defendant against the plaintiff.
"2. Termination of the proceeding in favor of the accused.
"3. Absence of probable cause for the proceeding.
"4. 'Malice’, or a primary purpose other than that of bringing an offender to justice.” Prosser, Torts (4th ed), § 119, p 835 (Footnote omitted).
See also,
Wilson v Yono,
The Michigan courts have clearly expanded this tort to include malicious civil proceedings. See,
e.g., Brand v Hinchman,
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Defendant urges that the summary judgment order be upheld because the existence of probable cause is conclusively estаblished by defendant’s assertion that it relied on the advice of counsel. Defendant cites
Davis v McMillan,
"Was there a question for the jury in the matter of probable cause? Defendants’ counsel say there was not, for the reason that they acted upon the advice of counsel, which is a complete justification. To make such a complete defense, it is necessary that the advice be sought and acted upon in good faith, and that a full disclosure of all material facts be made to counsel.”
Defendant further argues that the question of probable cause is a question of law for the court to decide and that the present trial judge’s decision to grant summary judgment should not be disturbed. See
Sottile v DeNike,
However, the
Sottile
opinion does not authorize summary judgment in any case where defendant merely avers probable cause by alleging reliancе on counsel. The
Davis v McMillan, supra,
excerpt, clearly requires that the advice be sought and acted on in good faith, with a full disclosure made to counsel. Michigan courts have often allowed the jury to consider the probable cаuse issue even when defendant invokes the defense of reliance on counsel.
E.g., Leeseberg v Builders Plumbing Supply Co, supra,
The jury will be allowed to pass on the question of probable cause where the facts concerning reliance, good faith, and disclоsure are not free from dispute.
Cf., Belt v Ritter,
In the present case, we cannot say that the facts presented below are free from dispute. Without any specific facts, we find it difficult to accept the claim that this defendant had a good faith belief that it could seek suspension of Mr. Rowbotham’s operator’s license.
4
We cannot agree that there was, as a matter of law, probable cause to request the certificate. The question remains one for the jury. See
LaLone v Rashid,
In addition to the factual inadequacies of the proffered defense, we are troubled by the implications of defendant’s argument. Without suggesting that the present defendant and its attorney had any рarticular relationship, we can envision disquieting results were courts to accept the defense without factual examination of good faith, reliance, and disclosure. Could it be the law that because an attorney knows that his client desires to cause an improper suspension of a driver’s license that the client is thereby insulated from tort liability? We only pose the question; we refrain from answering because, as we have noted, the record is insufficient to warrant any conclusions.
We find that there is a necessity for further proceedings to consider at least the malicious civil proceedings claim. 5 We note, however, that our *150 concentration on the torts of abuse of process аnd malicious prosecution should not necessarily preclude plaintiffs from litigating a theory of simple negligence. It would appear that there are questions of fact on this theory as well.
Plaintiffs’ complaint, to be sure, is аmbiguous, but indicates that they may have been wronged. As was stated in a similar case over eighty years ago:
"For every malicious wrong there is certainly in this day and age a remedy; and, under our liberal system of pleading in this state, a plаin and clear statement of the facts constituting the wrong is sufficient, and it is but little matter, in actions of trespass on the case, what the action is named or called.”
Antcliff v June,
Although our system of pleading has been altered, the concеpt of providing a remedy for a wrong remains. Plaintiffs should be allowed to proceed.
Notes
"Sec. 511(a). Whenever any person fails within 30 days to satisfy any judgment, the clerk of the court, or of the judge of a court which has no clerk, in which thе judgment is rendered shall forward to the secretary of state immediately upon the request of the plaintiff or his attorney after the expiration of 30 days an abstract of the court record of the judgment properly certifiеd, on forms supplied by the department.”
MCLA 257.23; MSA 9.1823 defines "judgment”:
"Sec. 23. 'Judgment’ means any judgment which shall become final by expiration without appeal of the time within which an appeal might have been perfected, or by final affirmation on apрeal, rendered by a court of competent jurisdiction of any state or of the United States, upon a cause of action arising out of the ownership, maintenance, or use of any motor vehicle, for damages, including damages for care and loss of services, because of bodily injury to or death of any person, or for damages because of injury to or destruction of *145 property, including the loss of use thereof, or upon a cаuse of action on an agreement of settlement for such damages.”
The district court concluded that defendant’s judgment was not given upon a cause of action arising out of the ownership, maintenance or use of аny motor vehicle, but was instead grounded in fraud or unjust enrichment.
Defendant, on appeal, submitted an affidavit from the attorney who requested the certificate. The affidavit is not only tardy but unpersuasive as well.
On remand, the parties should attempt to establish the facts surrounding the clerk’s filing of the certificate. In particular, the parties should attempt to determine who decided to request the clerk’s filing of the certificate and the purpose of the request. In addition, the parties should consider if the act of the court clerk was
*150
the sole proximate cause of any injuries.
See Nash v Mayne,