{1} The issue we address in this case is whether a defendant can be liable for malicious abuse of process when that defendant was not a party (a non-litigant) in the underlying civil lawsuit. We hold that in certain limited circumstances, a non-litigant may be liable for civil malicious abuse of process. We further hold that the complaint in this case contains sufficient allegations to state a claim for malicious abuse of process against Defendant Wal-Mart Stores, Inc., (WalMart), a non-litigant in the underlying lawsuit. Finally, we hold that the allegations in the complaint are sufficient to state a claim for civil conspiracy against Wal-Mart. We therefore reverse the trial court’s dismissal of the claims against Wal-Mart. We remand for further proceedings consistent with this opinion.
I. BACKGROUND
{2} This lawsuit, brought by Plaintiffs Joe Valles, Richard Kirschner, Bob McCannon, and Robert Pratt, is the latest in a series of lawsuits arising from the proposed West Bluff Shopping Center (Project) in Albuquerque, New Mexico. Geltmore, Inc., a developer and a co-defendant in this lawsuit, sought to develop the Project. The single largest store in the Project was to be a Wal-Mart Superstore. Plaintiffs all live near and within neighborhood associations that opposed the development. Plaintiffs participated in Albuquerque’s zoning and City Council meetings and argued that the Project failed to comply with existing land use plans and zoning regulations. Plaintiffs appealed the City Council’s approval of the Project first to the district court and then to this Court. This Court upheld the district court’s approval of the City Council’s decision in West Bluff Neighborhood Association v. City of Albuquerque,
{3} Geltmore, Inc., and ten individual property owners then sued Plaintiffs in a nine-count complaint for misuse and violation of the Nonprofit Corporation Act, NMSA 1978, §§ 53-8-1 to -99 (1975, as amended through 1999); misuse and violation of the Albuquerque Neighborhood Association Recognition Ordinance, Albuquerque Code §§ 14-8-2-1 to -7 (rev’d 1994); violations of the New Mexico Unfair Practices Act, NMSA 1978, §§ 57-12-1 to -22 (1967, as amended through 1999); malicious abuse of process; negligent misrepresentation; fraudulent misrepresentation; fraud and false pretenses; prima facie tort; and conspiracy. See Saylor v. Valles,
{4} While Saylor was on appeal with this Court, Plaintiffs filed this most recent lawsuit against Geltmore, Inc., Wal-Mart, and eleven other defendants (collectively “Defendants”) for malicious abuse of process and civil conspiracy. Plaintiffs allege that Defendants filed the underlying lawsuit to discourage public opposition to the Project. Plaintiffs contend that the underlying lawsuit was a Strategic Litigation Against Public Participation, or a “SLAPP” suit. They also contend that many allegations made by Defendants in the SLAPP suit were false and that Defendants knew or should have known of the falsehoods at the time they filed the SLAPP suit. Although Wal-Mart was not a party in the underlying lawsuit, Plaintiffs argue that Wal-Mart initiated the lawsuit because it “supported, encouraged and funded litigation against [Plaintiffs] in retaliation for their petitioning activities.”
{5} Wal-Mart moved to dismiss the claims against it, arguing that (1) it could not be liable for malicious abuse of process because it was a non-litigant in the underlying lawsuit;
II. DISCUSSION
A. Standard of Review
{6} The claims against Wal-Mart were dismissed under Rule 1-012(B)(6) NMRA 2003 for failure to state a claim upon which relief can be granted. Whether the trial court properly dismissed the claims is a question of law, which this Court reviews de novo. See Padwa v. Hadley,
B. Malicious Abuse of Process Claim
{7} Our Supreme Court first recognized the tort of malicious abuse of process in DeVaney v. Thriftway Marketing Corp.,
(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.
Id. ¶ 17. Wal-Mart contests the adequacy of the complaint as to the first three elements. We address each element in turn.
1. Initiation of Judicial Proceedings
a. New Mexico Precedent
{8} Wal-Mart claims that Plaintiffs’ complaint fails to allege, and cannot allege, that Wal-Mart initiated judicial proceedings because it was not a litigant in the underlying lawsuit. Plaintiffs, on the other hand, argue that Wal-Mart may be liable under the tort, even though it was a non-litigant, because it actively participated in procuring the underlying lawsuit. Wal-Mart responds that our Supreme Court in DeVaney rejected the theory of active participant liability.
{9} The principle of “active participation” is set forth in the Restatement of Torts in the context of “Wrongful Use of Civil Proceedings.” Restatement (Second) of Torts § 674 (1977) [hereinafter Restatement]. Section 674 provides that “[o]ne who takes an active part in the initiation, continuation or procurement of civil proceedings” may be liable for the wrongful use of civil proceedings. Id. Wal-Mart contends that New Mexico has not “adopted this statement of law with regard to abuse of process-type claims” because even though our Supreme Court cited to Restatement § 674 in DeVaney,
{10} We do not agree with Wal-Mart that our Supreme Court specifically rejected the active participant theory in DeVaney. To the contrary, the only portion of Restatement § 674 that the Court specifically rejected was the requirement that the underlying proceeding be terminated in the plaintiffs favor. DeVaney,
{11} In DeVaney, our Supreme Court noted that the formerly recognized tort of malicious prosecution required “initiation of [judicial] proceedings.” Id. ¶ 15. But a review of
{12} Wal-Mart argues, however, that there is no precedent for extending non-litigant liability to an underlying civil lawsuit. We are not persuaded that the lack of precedent limits the application of the active participant theory to underlying criminal lawsuits. Indeed, the lack of precedent may be explained on two grounds. First, the tort of malicious prosecution was rarely available based on an underlying civil proceeding because of the need to allege and prove special damages. See, e.g., Landavazo v. Credit Bureau,
{13} Wal-Mart further argues that this Court’s dismissal of the malicious abuse of process claim in Saylor indicates our unwillingness to recognize malicious abuse of process claims brought by or against non-litigants in the underlying lawsuit. Wal-Mart has incorrectly interpreted Saylor. In Saylor, this Court held that the plaintiffs could not state a claim for malicious abuse of process because they had not been sued in the underlying litigation. Id. ¶¶ 14-15. We rejected the plaintiffs’ contention that an interested party under Rule 1-074 NMRA 2003 is a “formal party defendant” for purposes of a malicious abuse of process claim because the plaintiffs cited no authority supporting this proposition. Saylor,
{14} Finally, Wal-Mart argues that non-litigant liability in the criminal context should be distinguished from non-litigant liability based on an underlying civil proceeding. It contends that non-litigant liability is needed for an underlying criminal proceeding because,
{15} We do not interpret the initiation requirement for non-litigant liability for malicious abuse of process in underlying civil lawsuits as narrowly as Wal-Mart does. Nor do we read Weststar, DeVaney, or Saylor as creating a rule of law that a non-litigant in a civil lawsuit cannot be liable for malicious abuse of process. We reject Wal-Mart’s argument that whenever a malicious abuse of process claim is based upon an underlying civil (as opposed to criminal) proceeding, a plaintiff must show that the defendant initiated, by actually filing, the underlying lawsuit. We also disagree with Wal-Mart’s argument that recognizing non-litigant liability will impermissibly broaden the tort to include potential liability for those who are merely friends and supporters of the litigant. We believe that sufficient restrictions will serve “to protect the important interest of access to the courts, thereby preventing any chilling effect on the legitimate use of process” while “allow[ing] victims of groundless suits to obtain adequate redress.” DeVaney,
b. Parameters for “Active Participation” by a Non-litigant in the Initiation or Procurement of an Underlying Civil Proceeding
{16} New Mexico has not addressed the conduct necessary to find active participation in the initiation or procurement of civil proceedings. There is clear direction, however, regarding the types of activity required to establish liability in initiating or procuring criminal proceedings. See, e.g., Weststar,
Both torts are designed to offer redress to a plaintiff who has been made the subject of legal process improperly, where the action was wrongfully brought by a defendant merely for the purpose of vexing or injuring the plaintiff, and resulting in damageto his or her personal rights. Further, both torts represent an attempt to strike a balance between the interest in protecting litigants’ right of access to the courts and the interest in protecting citizens from unfounded or illegitimate applications of the power of the state through the misuse of the courts.
Meaningful access to the courts is a right of fundamental importance in our system of justice. Because of the potential chilling effect on the right of access to the courts, the tort of malicious prosecution is disfavored in the law. Thus, we must construe the tort of malicious abuse of process narrowly in order to protect the right of access to the courts.
DeVaney,
{17} The narrowness of the tort, the policy considerations behind it, and New Mexico cases dealing with initiation and procurement of criminal proceedings provide guidance. We also look to other jurisdictions that have already considered what constitutes active participation in the initiation or procurement of civil proceedings. We agree that more is required for active participation than encouragement, advice, or consultation. See Kirsch v. Meredith,
c. Adequacy of Complaint
{18} Wal-Mart claims that even if a non-litigant in the underlying lawsuit could be liable in theory, the allegations in the complaint fail to state a claim against WalMart for malicious abuse of process. Rule 1-008 NMRA 2003 requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Our standard is one of notice pleading: “[G]eneral allegations of conduct are sufficient, as long as they show that the party is entitled to relief’ and are sufficiently detailed to give the parties and the court a fair idea of the plaintiffs complaint and the relief requested. Schmitz v. Smentowski,
{19} Only five paragraphs of the complaint contain allegations of specific action or involvement on the part of Wal-Mart. Those allegations are as follows:
5. Defendant Wal-Mart Stores, Inc. [“Wal-Mart”] is a foreign corporation authorized to do business in the State of New Mexico, and does business in New Mexico.
12. The primary and largest business planned for the Project is Defendant WalMart’s Wal-Mart Superstore.
13. Defendants Silverman, Geltmore, Wal-Mart, and Saylor each has a substantial financial interest in the Project.
31. On information and belief, Defendant Wal-Mart funded the [underlying lawsuit] in substantial part.
32. On information and belief, Defendant Wal-Mart sanctioned, encouraged, and participated in the [underlying lawsuit].
{20} In addition to the above five paragraphs, allegations against all of the Defendants, including Wal-Mart, read as follows:
45. Defendants’ improper purpose in bringing the [underlying lawsuit] against Plaintiffs was to intimidate, harass, extort cooperation, frighten, silence, and retaliate against Plaintiffs so that Plaintiffs would dismiss their Rule 1-074 Appeal, and cease their public opposition to the Project.
46. Defendants’ further improper purpose in bringing the [underlying lawsuit] was to send a message, to chill, deter, and otherwise extort cooperation from other citizens who, like the Plaintiffs whom Defendants targeted, from engaging in lawful opposition to the Project, or to future similar real estate developments.
65. Defendants intentionally initiated the [underlying lawsuit] against Plaintiffs, and abused the judicial process, with an improper purpose to intimidate [and] frighten ... Plaintiffs ... without any reasonable belief whatsoever in the validity of the allegations of fact or law of the [underlying lawsuit].
{21} However, Plaintiffs further allege that Defendant Silverman “was the controlling and dominating force in the [underlying lawsuit].” There is no such similar allegation against Wal-Mart.
{22} Wal-Mart argues that these allegations are insufficient to state a claim that Wal-Mart initiated judicial proceedings against Plaintiffs because the complaint fails to allege (1) that the non-litigant actively urged or insisted that the lawsuit be filed and (2) that the litigant was not already contemplating the lawsuit. In particular, Wal-Mart points to the absence of allegations that it was the determining factor in the decision to file the underlying lawsuit or that it caused the underlying lawsuit to be filed.
{23} We disagree with Wal-Mart that the litigant in the underlying lawsuit must not have contemplated the lawsuit or that “but[]for” the non-litigant’s suggestion, the lawsuit would not have been filed. But see Chapman,
{24} Contrary to Plaintiffs’ contention in their brief-in-chief, the complaint never specifically alleges that Wal-Mart was a participant by procuring the suit. Likewise, the allegation that Wal-Mart “sanctioned [and]
2. Remaining Elements
{25} The second element for malicious abuse of process is an “act by the defendant in the use of process other than such as would be proper in the regular prosecution of the claim.” DeVaney,
{26} The third element of malicious abuse of process is “a primary motive by the defendant in misusing the process to accomplish an illegitimate end.” Id. ¶ 17. Plaintiffs allege that Defendants improperly brought the lawsuit “to intimidate, harass, extort cooperation, ... and retaliate against Plaintiffs so that Plaintiffs would dismiss their Rule 1-074 Appeal.” We find the complaint sufficiently alleges the third element. Because there are sufficient allegations for each of the elements of malicious abuse of process, we hold that the lawsuit may proceed.
C. Civil Conspiracy
{27} Civil conspiracy is not in itself a cause of action; it must be accompanied by a civil action against one of the conspirators. Ettenson v. Burke,
{28} Wal-Mart additionally argues that Plaintiffs’ claim fails to allege sufficient facts necessary to support a conspiracy claim. In order to state a claim for civil conspiracy, Plaintiffs must allege “(1) that a conspiracy between two or more individuals existed; (2) that specific wrongful acts were carried out by the defendants pursuant to the conspiracy; and (3) that the plaintiff was damaged as a result of such acts.” Ettenson,
{29} Plaintiffs still bear the burden of providing sufficient evidence to support the conspiracy claim. See Morris v. Dodge Country, Inc.,
III. CONCLUSION
{30} We reverse the trial court’s dismissal of the claims against Wal-Mart and remand for further proceedings in accordance with this opinion.
{31} IT IS SO ORDERED.