National City Bank, Indiana v. Shortridge , 1997 Ind. LEXIS 241 ( 1997 )

DICKSON, Justice,

dissenting.

I disagree with the majority opinion which concludes that National City may proceed with its claims of abuse of process and tor-tious interference.

The thorough findings of facts and conclusions of law made by the trial court reflect that Shortridge and Martin represented Mitcham, who had suffered devastating injuries in a construction accident while working on the roof of a medical office building. The injuries rendered him a quadriplegic. In pursuing their Ghent’s claim for damages against the building owner, 3200 North Meridian Medical, Ltd. (“3200 Ltd.”), Shortridge and Martin discovered that 3200 Ltd. was uninsured and was attempting to transfer its only asset, the medical building, to a new partnership consisting of persons who were general partners or lienholders of 3200 Ltd. To protect Mitcham, his lawyers filed a declaratory judgment action and filed hs pen-dens notices to protect him from a fraudulent conveyance.

Among its conclusions of law, the trial court declared that the actions of Shortridge and Martin “were both proeedurahy and substantively proper under the circumstances.” Record at 689. The judgment continued:

It was proper for Mitcham to protect his rights as a creditor and tort claimant to pursue his statutory rights created by common law and under the fraudulent conveyance act_ Mitcham and the Defendant lawyers had probable cause to bring the action and to protect his rights in this way. This is true as a matter of law irrespective of the Plaintiffs opining that Mitcham should have used another procedure in order to protect his rights.

Record at 689. Affirming the trial court, the Court of Appeals also concluded that, because Mitcham’s attorneys “had an arguable basis for the second lis pendens filing, his action in so doing cannot be construed as fraudulent.” National City Bank, Indiana v. Shortridge, 662 N.E.2d 1004,-(Ind.Ct. App.1996).

The majority emphasizes that establishing the tort of abuse of process involves proof of “some extortionate perversion of lawfully initiated process to illegitimate ends.” Op. at 1252. It notes that a claim of tortious interference requires proof of the absence of justification and other elements. In this case neither the trial court nor the Court of Appeals were offended by the actions of Mitc-ham’s attorneys. To the contrary, these judges found the steps taken by the attorneys to be acceptable and reasonable advocacy. Thus, the actions of Shortridge and Martin were clearly within a range of legitimate ends and justifiable conduct which should preclude National City’s claims of abuse of process and intentional interference. I agree with the decision of the Court of Appeals.