OPINION
{1} This ease requires that we address the requirements of a claim for malicious abuse of process. Defendant Eddy Hiner had previously filed a lawsuit against Plaintiff Southern Farm Bureau Casualty Company (SFBC) and its insured, alleging that the insured had driven his vehicle into storage sheds on Hiner’s property, damaging them. SFBC disputed Hiner’s claim and, when the claim was dismissed, filed this action for malicious abuse of process and fraud. Hiner moved for summary judgment, which the district court granted, and SFBC now appeals. We hold that the district court did not err in concluding that Hiner had probable cause to file the underlying lawsuit and that there were no genuine issues of material fact in dispute. We therefore affirm.
Background
{2} In the complaint filed in the underlying lawsuit, Hiner alleged that, on January 20, 2001, SFBC’s insured drove into storage buildings on Hiner’s property and then left the scene. Although SFBC disputes the number of buildings that were damaged, it does not dispute that the next day an officer from the Portales Police Department told Hiner that SFBC’s insured was responsible for hitting the storage buildings. It is also undisputed that SFBC and its insured were subsequently dismissed from the underlying lawsuit and another person was named as the defendant. In his motion for summary judgment, Hiner produced the testimony of a police officer who had told Hiner thatSFBC’s insured, and not another person, was responsible for the damage.
{3} Following the dismissal of SFBC and its insured from the underlying lawsuit, SFBC filed this action against Hiner, alleging malicious abuse of process and fraud. In its amended complaint, SFBC alleged that the morning after the accident occurred, Hiner was informed that a person other than SFBC’s insured was responsible for the damage to his property, but Hiner failed to investigate this information and, instead, demanded payment from SFBC and its insured. SFBC also alleged that Hiner falsely exaggerated the amount of damage that occurred, asserted a claim for punitive damages that was without basis, and failed to disclose the name of the person who had claimed responsibility for the property damage.
{4} Hiner moved to dismiss or, alternatively, for summary judgment, arguing that the undisputed facts showed that SFBC had not presented evidence to support all the elements of its claims for malicious abuse of process and fraud, entitling him to judgment as a matter of law. In its response, SFBC argued that disputed issues of material fact remained. The district court agreed with Hiner and granted the motion for summary judgment. The court filed its letter ruling on December 31, 2003. At the time of this ruling, the court appeared unaware that SFBC had filed a motion for partial summary judgment on December 29, 2003. In this motion, SFBC argued that it was entitled to summary judgment on its malicious abuse of process claim based on Hiner’s allegations in the underlying lawsuit that SFBC had acted in bad faith. SFBC also appears to have asked the court to reconsider its ruling granting Hiner’s motion for summary judgment. In its order granting Hiner’s motion for summary judgment, the court denied SFBC’s motion for partial summary judgment and its motion to reconsider. This appeal followed.
SFBC’S Malicious Abuse of Process Claim
{5} SFBC raises two general issues on appeal: that legal presumptions and genuine issues of material fact preclude summary judgment in favor of Hiner and that Hiner failed to provide evidence to rebut SFBC’s allegation that he lacked probable cause to sue SFBC directly. The first issue arises from Hiner’s motion for summary judgment and the second from SFBC’s motion for partial summary judgment or to reconsider.
{6} As the district court stated in its letter ruling, the elements of the tort of malicious abuse of process are:
(1) the initiation of judicial proceedings against the plaintiff by the defendant; (2) an act by the defendant in the use of process other than such as would be proper in the regular prosecution of the claim; (3) a primary motive by the defendant in misusing the process to accomplish an illegitimate end; and (4) damages. In short, there must be both a misuse of the power of the judiciary by a litigant and a malicious motive.
DeVaney v. Thriftway Mktg. Corp.,
{7} In DeVaney, our Supreme Court explained that the second element, misuse of process, can be satisfied in two ways: by a lack of probable cause to file a complaint or by “some irregularity or impropriety suggesting extortion, delay, or harassment.” DeVaney,
{8} The district court ruled in this case that the undisputed material facts demonstrated that Hiner had probable cause to file the underlying lawsuit and that SFBC had not been able to raise a factual question about any procedural impropriety. The court also denied SFBC’s motions for partial summary judgment and reconsideration. We first address whether the court erred in granting Hiner’s motion for summary judgment and then address whether the court erred in denying SFBC’s motions for partial summary judgment and reconsideration.
Hiner’s Motion for Summary Judgment
{9} “Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. The issue on appeal is whether the [defendant] was entitled to [judgment] as a matter of law. We review these legal questions de novo.” Self v. United Parcel Serv., Inc.,
{10} In arguing that there were legal presumptions in favor of trial on the merits and genuine issues of material fact precluding summary judgment, SFBC raises four sub-issues: (1) that the district court incorrectly evaluated the legal significance of Hiner’s voluntary dismissal of the underlying lawsuit; (2) that probable cause cannot be determined as a matter of law if material issues of fact are in dispute; (3) that material issues of fact existed concerning probable cause to sue SFBC directly; and (4) that factual issues existed as to procedural improprieties or misuse of process. The first three of these sub-issues arise from the court’s determination that Hiner had probable cause to file the underlying lawsuit. The fourth sub-issue arises from the court’s ruling that SFBC had not raised a question of fact over a procedural impropriety.
(1) Probable Cause
{11} DeVaney emphasizes that although the filing of a complaint can, in some circumstances, constitute a malicious abuse of process, “the filing of a proper complaint with probable cause, and without any overt misuse of process, will not subject a litigant to liability for malicious abuse of process, even if it is the result of a malicious motive.” DeVaney,
{12} It is well-settled that “the existence of probable cause in the underlying proceeding, that is, whether the facts amount to probable cause, is a question of law” which is to “be decided by the trial judge.” Id. ¶¶ 24, 41. When “the essential facts on which the issue of probable cause turns” are not in dispute, the question is one of law and should not be submitted to the jury. Weststar Mortgage Corp. v. Jackson,
{13} SFBC argues that the question of whether Hiner had probable cause to file the underlying lawsuit should not have been determined as a matter of law because material issues of fact were in dispute surrounding the filing of the complaint and the circumstances leading to its voluntary dismissal. Indeed, DeVaney supports the propositions that “some form of recovery for the original-proceeding plaintiff, is conclusive evidence of the existence of probable cause,” and that dismissal can create an inference of lack of probable cause in some circumstances. Id. ¶ 23 (internal quotation marks and citation omitted). Nevertheless, a dismissal does not create an issue of fact when other undisputed facts establish that probable cause existed to support the underlying lawsuit at the time it was filed. See Weststar Mortgage Corp.,
{14} In this case, as the district court determined, there was no factual question because the facts supporting a finding of probable cause at the time the case was filed were undisputed. Hiner produced evidence to support his factual assertion that he had been informed by the police that SFBC’s insured was the person responsible for damaging his property. He produced evidence that the police had told him that another person was not responsible. SFBC did not produce evidence to rebut this testimony, but objected to it on hearsay grounds. The district court did not specifically rule on the issue of whether such a reported conversation was hearsay. However, the district court would not have abused its discretion in ruling that the police officer’s statement was not hearsay because the conversation was not introduced to support its truth, but only to demonstrate that such a conversation had occurred for the purposes of establishing probable cause. See Rule 11 — 801(C) NMRA. Moreover, even if the officer’s statement was hearsay, it still would have been admissible for purposes of establishing probable cause. See Zamora v. Creamland Dairies, Inc.,
{15} We are not persuaded by SFBC’s argument that Weststar Mortgage Corp. supports the assertion that, in addition to Hiner’s knowledge at the time he filed the underlying complaint, a “panorama” of circumstances was relevant to the question of probable cause and that those facts should have been determined by a jury. As we have discussed, our Supreme Court stated in Weststar Mortgage Corp. that when the plaintiffs extent of knowledge at the time of filing the underlying suit is not in dispute, the question of probable cause is one of law and should not be submitted to the jury. Weststar Mortgage Corp.,
{16} In this case, there was no dispute that Hiner had been told by the police investigating the property damage that SFBC’s insured, and no one else, was responsible, and that SFBC did not meet its burden in disputing these essential facts. Similarly, Hiner’s motives in filing suit are irrelevant if the complaint was supported by probable cause. See DeVaney,
{17} SFBC also argues that the district court erred in determining as a matter of law that Hiner had probable cause to sue SFBC in a direct action for unreasonably denying his claim because SFBC had no contractual relationship with Hiner. SFBC acknowledges that our Supreme Court has recognized that the insurance provider for a tortfeasor may be joined as a necessary party in a case brought pursuant to the Mandatory Financial Responsibility Act, NMSA 1978, §§ 66-5-201 to 66-5-239 (1978, as amended through 2003). See Raskob v. Sanchez,
{18} Hiner responds to this argument by noting that our Supreme Court pointed out that since 1984 New Mexico has recognized a private right of action against insurers who engage in unfair claims practices under the Insurance Code. See Hovet v. Allstate Ins. Co.,
{19} SFBC also argues that Hiner did not argue that his claim arose under the Insurance Code and that, even if it does, the Insurance Code permits such an action only when “liability has become reasonably clear.” See •§ 59A-16-20(E). SFBC argues that in this case the complaint and amended complaint make no such allegation. Instead, SFBC suggests that the contested facts did not establish probable cause for the claim. We disagree. Probable cause does not require certainty; it requires “the reasonable belief, founded on known facts established after a reasonable [pre-trial] investigation, that a claim can be established to the satisfaction of a court or jury.” DeVaney,
{20} We acknowledge that our Supreme Court stated that any “action for unfair claims practices based on failure to settle may only be filed after the conclusion of the underlying negligence litigation, and after there has been a judicial determination of fault in favor of the third party and against the insured.” Hovet,
(2) Procedural Impropriety
{21} SFBC also argues, relying on DeVaney, that even if Hiner was able to establish probable cause to file his complaint, factual issues remained regarding procedural improprieties or misuse of the process that precluded summary judgment. See DeVaney,
{22} On appeal, SFBC argues that the district court applied the wrong standard in determining that only outrageous conduct could establish a procedural impropriety. SFBC contends that the district court was weighing facts, which was inappropriate on summary judgment. SFBC also suggests that Hiner’s letter to the Texas Department of Insurance and claim filed against an insurance company could be viewed as extortion. In his answer brief, Hiner points out that it was undisputed that SFBC did not view the letter to the Department of Insurance as extortion or harassment, noting in its communications with the Department that Hiner had been patient in waiting for his claim to be processed. In addition, Hiner argues that his lawsuit and inquiries were based entirely on information he received from the Portales Police Department.
{23} The letter to the Texas Department of Insurance does not constitute legal process. See Weststar Mortgage Corp.,
SFBC’s Motion for Partial Summary Judgment
{24} SFBC also argues that the district court erred in denying its motion for partial summary judgment, in which SFBC argued that Hiner lacked probable cause to sue SFBC directly. Although a defendant who moves for summary judgment has only to negate one of the essential elements of the claim, see Blauwkamp,
{25} In light of our earlier determination that Hiner had probable cause to file the underlying lawsuit, we affirm the district court’s denial of SFBC’s motion for partial summary judgment.
Conclusion
{26} For the foregoing reasons, we affirm the district court’s grant of Hiner’s motion for summary judgment and the court’s denial of SFBC’s motions for partial summary judgment and reconsideration.
{27} IT IS SO ORDERED.