Hewitt v. Rice ( 2007 )

Justice EID,

concurring in part and specially concurring in part.

Under comment k of Restatement (Second) of Torts section 674 (1977), a plaintiff who brings a malicious prosecution claim is relieved of the burden to show that the proceeding upon which the claim is based was terminated in his favor, if that proceeding was ex parte in nature. The majority's principal holding today finds that Petitioners claim, which is based on the recording of a lis pendens, does not fall within comment k because a lis pendens does not qualify as an ex parte proceeding. Maj. op. at 4183. But the majority's reasoning-that the recording of a lis pendens is not a "proceeding" at all-establishes a more fundamental proposition: namely, that the filing of lis pendens, in and of itself, cannot serve as the basis of a claim for malicious prosecution because the plaintiff is not complaining about an "action" filed against him by the defendant. Because Petitioners' malicious prosecution claim is fatally deficient from the outset, I specially concur with Part III of the court's opinion.

1.

The majority marshals an impressive array of evidence in order to demonstrate that the recording of a lis pendens is not an ex parte proceeding. As the majority explains, the recording of a lis pendens is "a simple, nonjudicial procedure" that "merely gives notice of pending litigation ... to persons acquiring interests in the property." Id. at 412. It "does not constitute a lien against real property." Id. It "does not result in relief being granted...." Id. at 418. There "is no hearing or judicial action involved in filing the lis pendens." Id.. Recording a lis pendens "does not involve the addition of new claims," and thus "there is no remedy granted by a notice of lis pendens." Id. At bottom, a lis pendens "simply restates what is already a public record, namely, that there exists a lawsuit involving a particular property." Id.

I agree with the majority's description of what a lis pendens does (and does not) do. But nothing in the majority's description has anything to do with whether a lis pendens is an ex parte action. While the majority characterizes the "crucial question" in this case as deciding "whether lis pendens filings are ex parte," maj. op. at 412, its entire analysis centers on whether the recording of a lis pendens is an action at all-and it correctly concludes that it is not. Thus, comment k doesn't apply in these cireumstances not for any reason involving the ex parte nature of the underlying action,¹ but because Petitioners' claim simply isn't based on an action.

The majority's rationale that the recording of a lis pendens is not an action establishes that Petitioners' malicious prosecution claim fails from the start. The threshold element of a claim for malicious prosecution is that the plaintiff must be complaining about an "action" brought against him. Maj. op. at 411-12 (citing Thompson v. Maryland Cas. Co., 84 P.3d 496, 503 (Colo.2004)). Here, Petitioners' malicious prosecution claim, as they describe it, is based solely on Respondents' recording of a lis pendens.² Since the recording of a lis pendens is not an action, Petitioners' claim for malicious prosecution fails as a matter of law.

I recognize that we have, in the recent past, stated that a lis pendens can serve as the basis of a malicious prosecution claim. See Thompson, 84 P.3d at 504 ("The filing of a notice of lis pendens may form the basis of a claim for malicious prosecution.") (citing Johnston v. Deidesheimenr, 76 Colo. 559, 561, 232 P. 1113, 1114 (1925)); Westfield Dev. Co. v. Rifle Inv. Assoc., 786 P.2d 1112, 1118-19 (Colo.1990) ("We have previously held that the filing of notice of lis pendens may be actionable as malicious prosecution." (citing Johnston)); Kerns v. Kerns, 53 P.3d 1157, 1164 n. 6 (Colo.2002) ("[ Wle have held that in the appropriate case, the filing of notice of lis pendens may be actionable as malicious prosecution." (citing Westfield)). These statements might be understood to mean that the recording of a lis pendens alone can serve as. the basis of a malicious prosecution claim. But we have never expressly held that to be the case.

The source of the statements appears to be our decision in Johnston v. Deidesheimer, 76 Colo. 559, 232 P. 1113 (1925), where we considered a malicious prosecution claim alleging the wrongful filing of two lawsuits and attendant notices of lis pendens filed by the defendants. The plaintiff in Johnston claimed that he suffered damages as a result of the lis pendens notices, specifically that he was unable to dispose of his real property. But' Johnston took pains to explain that the plaintiff's allegations were that "the actions . were instituted without right and maliciously." Id. at 560, 232 P. at 1114 (emphasis added). The defendants only were liable for damages resulting from the recording of the lis pendens notices "if the suits brought by defendants against plaintiff were brought maliciously, and without probable cause. ..." Id. at 561, 232 P. at 1114.

We have never had to squarely face the question of whether the recording of a lis pendens, in and of itself, could support a malicious prosecution claim. Kerns did not concern a malicious prosecution claim, and the malicious prosecution claims in Thompson and Westfield involved the recording of lis pendens based on underlying actions. See Thompson, 84 P.3d at 504; Westfield, 786 P.2d at 1115. Our statements should be understood to mean, as we held in Johnston, that where a plaintiff has properly based her malicious prosecution claim on an action filed against her, the recording of a lis pendens noticing the existence of that action serves as evidence of damages that flow from the allegedly wrongful action. See 76 Colo. at 561, 232 P. at 1114. I believe we should take this opportunity today to clarify our earlier statements and squarely hold that the recording of lis pendens, in and of itself, cannot support a claim for malicious prosecution. Such a clarification is more than a housekeeping measure, as it would make clear that a plaintiff who is aggrieved by the allegedly wrongful recording of a lis pendens standing alone, without an underlying action, must look elsewhere for relief. See, e.g., § 88-85-204(1) & (2), C.R.S. (2006) (setting forth procedure for expunging a "spurious lien" or "spurious document").

IL.

During its discussion of comment k in Part III of its opinion, the majority accepts Petitioners' characterization of their malicious prosecution claim as based solely on the recording of the lis pendens. See, e.g., maj. op. at 411-12 (noting that in Thompson, "we upheld the principle that the filing of a notice of lis pendens may form the basis of a claim for malicious prosecution ...." (internal quotation marks omitted) (emphasis added)), and id. at 414 (noting that "(there are several alternative avenues of relief in the case of a wrongful lis pendens filing ...." (emphasis added)). But see id. at 418 (contradicting this characterization by stating that "Hewitt cannot split the 1998 CUFTA claim from its associated lis pendens in an attempt to force a narrow view of the lis pendens standing alone."). Based on this characterization, as noted above, I would find that Petitioners have failed to state a claim for malicious prosecution. But the majority goes on to consider in Part IV of its opinion the question of whether the Bank's 1998 CUFTA action, which served as "the basis for the Bank's filing of the lis pendens," was resolved in Petitioners' favor. Maj. op. at 415. In other words, in Part IV of its opinion, the majority shifts gears and characterizes Petitioners' claim as one based on the 1998 action, rather than solely on the filing of lis pendens noticing that action.

If the majority's latter characterization is indeed correct-and I would find that it is³ -then the comment k exception plainly would not apply in this instance because the 1998 action was not ex parte in nature (assuming, without deciding, that Colorado recognized such an exception).⁴ The only issue remaining in the case would be whether the 1998 action was resolved in Petitioners' favor. Because I believe that the majority properly rejects the totality-of-the-cireumstances test and finds that, as a matter of law, the 1998 action was not resolved in Petitioners' favor, maj. op. at 415-16, I concur in the remainder of the majority's opinion.

ok

We should put our tort house in order. I would take the opportunity today to clarify our previous opinions and hold expressly that the recording of a lis pendens, standing alone, cannot support a malicious prosecution claim. I therefore concur with all of the court's opinion with the exception of Part III, with which I specially concur in the result.

I am authorized to state that Justice COATS joins in this opinion concurring in part and specially concurring in part.

1 . The comment k exception appears to be based on the rationale that it would be improper to require the plaintiff in a malicious prosecution case to prove that the underlying action she complains of was terminated in her favor when that action was ex parte in nature because, by definition, she was absent from that action and could not defend her position. See, eg., Bump v. Betts, 19 Wend. 421 (N.Y.1838); Hyde v. Greuch, 62 Md. 577 (1884); Lanterman v. Del., L. & W.R.R. Co., 229 F. 770 (D.N.J.1916).

2 . Petitioners argued in their Petition for a Writ of Certiorari that the court should grant their petition because it would give the court the opportunity to consider "whether under Colorado law malicious prosecution should be modified to exclude the element of favorable resolution when the claim is based upon the wrongful filing of lis pendens." Pet. at 4 (emphasis added).

3 . For example, the court of appeals described Petitioners' malicious prosecution claim as alleging that Respondents "knew or should have known that it was unnecessary to bring" the 1998 action, that they "knew or should have known that there was no fraudulent transfer," and that they "knew or had reason to know that the [1998 action] and Notice of Lis Pendens lacked any reasonable basis of law and fact." Hewitt v. Rice, 119 P.3d 541, 543 (Colo.App.2004).

4 . Thus, the action that forms the basis of the malicious prosecution claim is the same action that might qualify under comment k, if Colorado were to recognize that exception. See Restatement (Second) of Torts § 674 (stating that who takes an active part in the initiation ... of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if (a) he acts without probable cause ... and (b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought." (emphasis added)).