Jay C. Adkins v. John A. Alberts

Jay C. Adkins sued John A. Alberts on a legal negligence (legal malpractice) theory:

1. Adkins is a citizen of the State of Oklahoma and a resident of Oklahoma County.

2. Defendant, John A. Alberts ("Alberts") is an attorney licensed to practice in Oklahoma. He maintains an office in Oklahoma City, Oklahoma.

3. Defendant, Jennifer Wadley ("Wadley") is an attorney licensed to practice in Oklahmoa. She maintains an office in Oklahoma City, Oklahoma.

4. Defendant, Alberts & Associates ("Associates"> is a law firm in Oklahoma City, Oklahoma.

5. At The time of the divorce, the Court entered an agreed upon Consent Divorce Decree that deposed of and divided all marital property and belonging to the parties.

6. Sometime after the divorce and prior to November, 2009, Heather Wolf hired the Defendants to obtain a modification of the Consent Divorce Decree.

7. On July 12, 2010, Defendants filed on behalf of Heather Wolf a Motion to Modify the Consent Divorce Decree. See case# FD-2009-1987 in the District Court of Oklahoma County.

8. On August 3,2010, Adkins filed a Response to the Motion to Modify the Consent Divorce Decree, pointing out that the recovery allegations of fraud were not made in their Petition. Heather Wolf failed to file a reply to this response.

9. On November 15, 2010, Adkins filed a Motion for Summary Judgment. A few days before this Motion for Summary Judgment was to be heard, Heather Wolf by and through the Defendants, filed a Motion to Dismiss the Motion to Modify without even responding to the Motion for Summary Judgment.

10. Adkins filed a Motion for Attorney Fees and Costs. At the hearing on the Motion, Alberts conceded that the Motion to Modify had been filed to see if Adkins could be persuaded to give away some of this rights he had bargained for regarding the Consent Divorce Decree.. Defendants, Alberts also conceded that the Motion was dismissed because the "they gotten as far as they could in the divorce court needed to go upstairs.”

11. As a result of the dismissal, Defendants secured the assistance of another set of attorneys who filed suit against Adkins and Splash and Go on behalf of Heather Wolf. Alberts said that the new law suit was filed because they had gotten as far as they could with the Motion to ModifS'.

12. The second lawsuit was copied nearly verbatim from a lawsuit filed by a third party against another third party and was styled as a shareholder derivative suit by Heather Wolf It contained no allegations related to any issue dealing with the Divorce Decree, or it creation.

13. Splash and Co filed a Motion to Dismiss. Heather Wolf followed her earlier practice and dismissed the cause of action against the Defendant without any sort of response.

14. Despite the well established authority that a derivation action cannot proceed without the subject corporation, Heather Wolf caused her new attorney to serve Adkins personally the day after Splash N' Go was dismissed.

15. Adkins moved for Summary Judgment using numerous United States Supreme Court cases holding that a derivative action cannot be maintained without the corporation. The Court granted Defendants Motion for Summary Judgment.

16. As a result of the litigation initiated by Heather Wolf and the Defendants, Adkins has suffered economic damages in an amount exceeding $50,000 dollars, as well as extreme emotional distress, which has resulted in serious medical issues in an amount sufficient to invoke federal jurisdiction, if appropriate.

17. Defendants acted with the intent to "coerce,: "harass” or force Adkins into giving up the benefits of the Consent Divorce Decree. Defendants intended to create as much economic loss and emotional distress as possible by commencing this totally frivolous litigation.

SUMMARY OF BACKGROUND ALLEGATIONS

18. For unknown reasons, Defendants agreed to represent Heather Wolf in an attempt to "redo” her Consent Divorce Agreement. By virtue of their training, Defendants were aware that there was no legal principal supporting the requested "redo” of a Consent Divorce Decree in the State of Oklahoma absence fraud, and that attempt was without question frivolous litigation in its worst form.

The frivolity of this litigation was demonstrated by Defendants complete failure to defend their Motion against the most simple and obvious challenges by Adkins. Defendants made no attempt to defend their clients claim. As such, the circumstances surrounding the Defendants actions demonstrate that Defendants acted intentionally to harass, annoy and injure Adkins. The facts of this case will demonstrate that Defendants wrongfully abused process in this case.

In addition, the facts demonstrate that the Defendants acted jointly, deliberately, and intentionally to harass, annoy and vex Adkins through misuse of litigation, which was designed to intentionally inflict mental/emotional distress on Adkins and in the end caused severe physical health issues for Adkins.

THEORIES OF RECOVERY ABUSE OF PROCESS

19. Adkins incorporates and alleges by references all allegations contained in paragraph 1 through 18 of this Petition.

20. The Defendants' actions together initiated legal abuse of process against Adkins.

21. This action was doomed to failure and was intended merely to intimidate and emotionally force Adkins into re-doing the Consent Divorce Decree..

22. This action was merely part of a larger plan to disrupt Adkins life and business and was not for any legitimate legal purpose

23. Adkins has been damaged. economically, emotionally & physically

TORT OF OUTRAGE

24. Adkins re-alleges paragraphs 1 through 23 as if repeated here.

25. Defendants acted in a manner that would be classified by any reasonable person or society as "outrageous.”

26. Defendants knew and/or should have known that their actions would cause economic and emotional distress.

27. Adkins his suffered severe emotional distress requiring medical attention.

RELIEF REQUESTED

28. Compensatory damages in an amount greater than the minimal amount to invoke federal jurisdiction.

29. Since Defendants actions were sufficiently reprehensible. Punitive damages in an amount allowed by law.

30. Costs including attorney fees as allowed by law.

31. Any other relief this Court finds just and equitable.

Defendants appeared and moved to dismiss Plaintiff's claims, stating:

COMES NOW, Defendants, John A. Alberts, Jennifer Wadley, and Alberts & Associates, (hereinafter referred to as "Defendants”), and pursuant to 12 0.5. § 2012(B)(6), specially appear and respectfully move this Court to dismiss Plaintiff's Amended Petition for failure to state a claim upon which relief can be granted. In support hereof, Defendants would state as follows:

INTRODUCTION

The entire basis for the instant lawsuit is the filing of a Motion to Modify a Conseit Divorce Decrec ("Motion to Modify”) by Defendants on behalf of their client, Heather Adkins, in her divorce case.' Premised solely upon Plaintiff's belief the Motion to Modify filed in the Divorce Proceeding was frivolous, Plaintiff filed the instant matter. In the case at bar, Plaintiff attempts to hold Defendants liable based on three separate, but equally inapplicable, causes of action: (1) abuse of process; and (2) malicious prosecution; and (3) intentional infliction of emotional distress. Plaintiff's Petition fails to state a claim upon which any relief may he granted. As such, this case must he dismissed.

Concerning the abuse of process claim. Plaintiff's Petition fails to: (1) specify any willful act committed by Defcndants other than the jiling of the Motion to Modify; (2) identify any part of the court's process Defendants allegedly misused; and (3) allege any improper or ulterior purpose as the pr/man' purpose of the Motion to Modify. As such, Plaintiff's Petition does not state a claim for abuse of process. Further, the Divorce Proceeding was not terminated in Plaintiff's favor. For this reason, among others, Plaintiff is unable to state a cause of action for malicious prosecution. Finally, Plaintiff's Petition does not allege any conduct by Defendants that could be considered by any reasonably prudent person to he "outrageous” and unacceptable iii today's society. Thus, Plaintiff's claim of intentional infliction of emotional distress (he. tort of outrage) must hc dismissed.

Because Plaintiff is unable to state any claims upon which relief may be granted against Defendants.2 anti Plaintiff has now attempted three times to assert claims against Defendants, Plaintiff's Petition must he dismissed with prejudice and Defendants should be awarded attorney's lees and costs associated with defending this action, as well as Plaintiff's Prior Proceeding hi-ought against Defendants.

STATEMENT OF THE CASE

In the Divorce Proceeding, Heather Adkins retained Defendants o, among other things, modify a Consent Divorcc Dccrce. See Plaintiff's Amended Petition, attached hereto as Exhibit "A”, 7. Prior to any adjudication on the merits, Heather Adkins dismissed her Motion to Modify filed in the Divorce Proceeding. See Id., 91 9. Following Ms. Adkins' dismissal of her Motion to Modify, Plaintiff sought attorney's fees and costs. See Id., ¶ 10. Plaintiff based his request for fees and costs on the premise that Ms. Adkins' Motion to Modify was frivolous. This is the same premise upon which the instant lawsuit is being pursued. See Id.. ¶ 19. Plaintiff's Motion for Attorney's Fees was denied and is currently pending on appeal. See Case No. DFl093 3, Oklahoma State Supreme Court.

As it relates to Defendants in the case at bar3, Plaintiff alleges by tiling the Motion to Modify in the Divorce Proceeding, "Defendants acted with the intent to 'coerce', 'harass' or force IPlaintitTi into giving up the benefits of the Consent Divorce Decree.” cc Exhibit "A”, 9191 7, 17. Plaintiff further alleges "Defendants intended to create as much economic loss and emotional distress as possible, by maliciously commencing, conducting, and pursuing a pattern of had faith litigation that never had any merit in law or fact, or probable cause.” Id. at 9J 17. Plaintiff goes on to asser "Defendants and others acted jointly, deliberately, maliciously and intentionally to harass, annoy, vex and harm Adkins through a pattern of bad faith, harassing and malicious litigation without probable cause, which was designed to intentionally inflict mental/emotional distress on Adkins.” Id. at 91 9. In short, Plaintiff is seeking redress in this Court for damages (undefined in type and amount) related solely to Defendants acting as advocates on behalf of their client, Heather Wolf Adkins, in the Divorce Proceeding. However, Plaintiff has failed to identify any set of ThcIs upon which relief may be granted.

ARGUMENT AND AUTHORITY

The purpose of a motion to dismiss for failure to state a claim is to "test the legal sufficiency of the pleadings, not to evaluate the underlying facts.” Patel v. OMH Med. Ctr.. Inc., 1999 OK 33, ¶ 43, 987 R2d 1185, 1202 (footnotes omitted). Accordingly, the question before the Cowl is whether, taking Plaintiff's allegations as true, he is precluded from recovering as a matter of law. Id. A plaintiff's petition is disinissible where the petition (I) fails to identify any cognizable legal theory of liability; or (2) fails to include sufficient facts under the advanced theory. See Lockhart v. Looscn, 1997 OK 103, 91 5, 943 P.2d 1074, 1078. Here, regardless of the so-called facts asserted by PlaintitT, (here simply is no cognizable legal theory of liability under which Plaintiff can state a claim against Defendants.

The only cognizable legal theories propounded against Defendants by Plaintiff are: (1) abuse of process and (2) malicious prosecution; and (3) intentional infliction of emotional distress.4 None of these theories are pleaded with the sufficiency required to avoid dismissal. Additionally, Plaintiff's Amended Petition states no facts supporting any cognizable legal theory against Defendants. Plaintiff's law-suit is based solely on conclusory statements without any factual support and must he dismissed.

PROPOSITION I: PLAINTIFF FAILS TO STATE A CLAIM AGAINST DEFENDANTS FOR ABUSE OF PROCESS.

"All litigation results in some detriment to those involved.” Milroy v. Allstate Ins. Co., 151 P.3d 922, 928 (OkIa. Civ. App. 2006) (citing A.W. Huss Co. v. Continental Cas. Co., 735 F.2d 246, 256 (7th Cir.1984)). The elements of an abuse of process claim are "(1) the improper use of the court's process; (2) primarily for an ulterior or improper purpose; and (3) with resulting damage to the plaintiff asserting the misuse.” Greenberg v. Wolfberg. 1994 OK 147, ¶ 22. 890 P.2d 895, 905 (footnotes omitted). See also Restatement (Second) of Toils § 682 which states the general principle of the delict as "[o]ne who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed. is subject to liability to the other for harm caused by the abuse of process.” The quintessence of abuse of process is 'not the wrongfulness of the prosecution, but some extortionate perversion of lawfully initiated process to illegitimate ends.” Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372 (fit 5). Here, the burden rests on the Plaintiff to prove each of the elements of his abuse of process claim. Callaway v. Parkwood Village, L.L.C., 1 P.3d 1003, 1005 n. I (Okla. 2000).

Abuse of process must he distinguished from claims for malicious prosecution.5 Malicious prosecution pertains to the malicious initiation of process, while abuse of process concerns a perversion of the process a/thr it is issued. See Greenberg, 890 P.2d at 906. Due to these differences. "I c lourts have also required the plaintiff I in an abuse of process case I to prove a willful act in the use of process not proper in the regular conduct of the proceeding.” Advantor Capital Corp. v. Yeary, 136 F.3d 1259, 1264 (10th Cir.1998) (citing Meyers, 940 F.2d at 1382)h In other words, although a plaintiff in a predicate action may have been motivated by bad intention, there is no abuse if the court's process is used legitimately to its authorized conclusion. Greenberg, 890 P.2d at 905. See also Meyers, 940 F.2d at 1383 (finding no abuse of process when claimant had only complained of the filing of the lawsuit); Gen. Refractorics Co. v. Fireman's Fund Ins. Co., 337 F.3d 297, 313 n.6 (3d Cir. 2003) (attorney not liable for simply carrying out the proccss): and Ramona Unified School Dist. v. Tsiknas, 37 Cal.Rptr.3d 381, 389 (Cal. App. 2005) ("[T]he mere initiation of a lawsuit, even for an improper purpose, does not support a claim for abuse of process.”).

A. PLAINTIFF DOES NOT ALLEGE DEFENDANTS IMPROPERLY USED THE COURT'S PROCESS.

Conccerning the first element of an abuse of process claim, improper use means a "definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process.” Hickman, 683 P.2d at 539 (quoting Prosser, HANDBOOK OF THE LAW OF Towrs, § 121, at 857 (4th Ed. 1971)). This element is not met if "the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.” Id. (Emphasis added).

In the instant case, Plaintiff does not argue Defendants misused the process. Rather, Plaintiff merely argues Defendants utilized the process with the intent "to harass, annoy and injure” Plaintiff. See id.. 91 19. While Plaintiff alleges Defendants' filing of the Motion to Modify was done with bad intent. Plaintiff has offered no suggestion that Defendants used the court system in an illegitimate manner. This is fatal to Plaintiff's claim for abuse of process. See Greenberg, 890 P.2d at 905 ("Although a plaintiff in a predicate action may have been motivated by had intention, there is no abuse if the court's process is used legitimately to its authorized conclusion.”). Failing to prove some "willful act taken by the defendant in addition to filing the complaint” is grounds for dismissal. Gore, 792 P.2d at 435 (citations omitted) (emphasis added).

In the instant case, other than filing the Motion to Modify in the Divorce Proceeding, Plaintiff has not identified any willful act taken by Defendants that is not proper in the regular conduct of a legal proceeding. In fact, the only act committed by Defendants following the filing of the Motion to Modify in the Divorce Proceeding was the voluntary dismissal of the Motion to Modify. Plaintiff also fails to identify any part of the court's process allegedly misused by Defendants. The facts of this case reveal that nothing done by Defendants (or their client) in the Divorce Proceeding constitutes an improper use of process.

It was the right of Defendants' client, Ms. Adkins, to file her Motion to Modify. Defendants did not misuse any process by/fling the Motion to Modify on behalf of their client. Further, it was the right of Ms. Adkins to dismiss her Motion to Modify. See 12 0.5. §*683, 684. Despite any alleged motive or ulterior purpose that may have been behind the decision to file the Motion to Modify (and subsequently dismiss the same), no misuse of process occurred in the Divorce Proceeding by Defendants or Ms. Adkins. See Hickman, supra, 683 P.2d at 539 (where "the defendant has done nothing more than carry out the process to its authorized conclusion, even though with had intentions”, no misuse of process has occurred).

Viewing Plaintiff's Petition in the light most favorable to him, and taking the allegations therein as true, Plaintiffs Petition (ails to establish the necessary element of improper use of process. Specifically. Plaintiffs Petition does not identify any "definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process.” çç Gore, 792 P.2d at 435-36. Rather, the only definite act alleged in Plaintiff's Petition is Defendants' filing of the Motion to Modify in the Divorce Proceeding. See Exhibit "A”, generally. Under Oklahoma law, the absence of an allegation that some definite act or threat occurred showing an improper use of the process defeats a claim of abuse of process. .çç Hickman, 683 P.2d at 539. Without such an allegation, the element of a willful use of the process not proper in the regular conduct of the proceeding cannot be satisfied. Meyers! supra, 940 F.2d 1379. Therefore, Plaintiff's Petition fails to satisfy the first element of his abuse of process claim.7

B. PLAINTIFF Dovs NOT ALLEGE DEFENDANTS USED THE COURT'S PROCESS PRIMARILY FOR ANY ULTERIOR OR IMPROPER PURPOSE.

The second element of an abuse of process claim is the court's process must have been used primarily for an ulterior purpose. See Greenberg, supra, 890 P.2d at 905. Plaintiff alleges the ulterior and unlawful purpose of Defendants in filing the Motion to Modify in the Divorce Proceeding was to "intentionally II harass, annoy and injure [Plaintiff” (see Exhibit "A”, 9119); coerce, harass, or force Plaintiff into giving up the benefits of the Consent Divorce Decree” (see id.. 9[ 17); and "create as much economic loss and emotional distress as possible.”(see idj, Even when viewed in the light most favorable to Plaintiff, Plaintiff's Petition still fails to establish an abuse of process claim.

Plaintiff has failed to allege Defendants used the court's process in the Divorce Proceeding primarily for an ulterior or improper purpose. To be certain, Plaintiff alleges "I-leather iAdkinsl hired Defendants to obtain a modification of the Consent Divorce Decree” (id. at 9 6) and ". . Defendants agreed to represent Heather [Adkins] in an attempt to 'redo' her Consent Divorce Agreement.” Id.. ¶ 19. Reforming We Divorce Decree was the primary purpose for Ms. Adkins instructing her attorneys to file the Motion to Modify. This is not an improper or ulterior purpose. Simply because the effect of the relief sought by Ms. Wolf may be perceived by Plaintiff as being malicious, such perceived effect does not constitute an improper purpose. See Gore v. Taylor, 792 P.2d 432, 436 (Ct. App. OkIa. 1990) ("With respect to the primary purpose doctrine, the courts have held that a counterclaim admittedly filed for the purpose of encouraging settlement is not an improper motive or purpose.”) (Citations omitted). Even assuming (irguen.d() Defendants did have some ulterior or improper purpose for filing the Motion to Modify (which they did not), Plaintiff's Petition still fails to allege the Motion to Modify was filed primarily for such ulterior or improper purpose(s). Moreover, Plaintilt is unable to identify a single fact which would support such a position. Accordingly, Plaintiff's Petition fails to meet (he second element of his abuse of process claim.

C. PLAINTIFF HAS FAILED TO DEMONSTRATE DEFENDANTS' ALLEGED MISUSE OF PROCESS HAS CAUSED HIM ANY DAMAGES

The third element of an abuse of process claim is that a defendant's misuse of process resulted in damage to the plaintiff asserting the misuse. See Greenberg, 890 P.2d at 905. Because Plaintiff is unable to demonstrate any misuse of process, he is likewise unable to demonstrate Defendants' alleged misuse of process caused the damages he is now complaining to have suffered. Plaintiff has alleged "lals a result of the malicious actions taken by Defendants, Heather Wolf and their other confederates. Adkins has suffered economic damages in an amount sufficient to satisfy federal jurisdiction, as well as severe emotional distress, which has resulted in serious medical issues and damages.” Exhibit "A”, ¶ 16. However, the initiation of a claim does not constitute an abuse of process. See Greenberg, 890 P.2d at 905. Accordingly, Plaintiff's Petition fails to meet the third element of his abuse of process claim. For the reasons discussed above, Plaintiff's Petition fails to satisfy any of the three elements of an abuse of process claim. As such, Plaintiff's abuse of process claim must be dismissed with prejudice.

PROPOSITION II: PLAINTIFF'S PETITION FAILS TO STATE A CLAIM OF MALICIOUS PROSECUTION

Malicious prosecution actions are disfavored by Oklahoma courts, and the elements of the action are narrowly construed, Meyers. supra. 940 F.2d at 1383 (citing Glasgow v. Fox, 757 P.2d 836, 838-39 (OkIa.1988)). In an action for malicious prosecution. a plaintiff must show the following: (1) the bringing of the action, (2) its successful termination in favor of the plaintiffs, (3) want of probable cause, (4) malice, and (5) damages. See Page v. Rose, 546 P.2d 617 (OkIa. 1976). At the very least, Plaintiff's Amended Petition fails to meet elements 2, 3, and 4, above.

The Divorce Proceeding was not terminated in favor of Plaintiff Rather, it was voluntarily dismissed by Heather Adkins. The "dismissal without prejudice of the [Divorce Proceeding I was not a termination of the suit in IPlaintiff's] favor which will support an action for malicious proseeution[] [as I I i]t did not reach the substantive rights of the cause of action and thereby vindicate IPlaintiffi as to the [Divorce Proceedingj.” Glasgow, 757 P.2d at 839. See also Peterson v. Underwood, 220 P.3d 1158. 1163-64, fn. 5. Plaintiff even admits the litigation was not terminated on the merits. (See Ex. A, ¶ 9) ("This disnussal was to keep the issues from being resolved on the merits..”). In an attempt. to circumvent the success on the merits requirement, Plaintiff asserts his success in the Derivative Action qualifies. (See Ex. A, ¶ 26- 30). Because Plaintiff admits Defendants did not bring the Derivative Action (see Ex. A, 9111) ("another set of attorneys iled suit against Adkins on behalf of Heather Wolf and Splash N. Go ), this argument likewise fails. Accordingly, whether it is the Divorce Proceeding, the Derivative Action, or both, upon which Plaintiff premises his claims, he is unable to state a claim For malicious prosecution against Defendants, Thus, the second element cannot he satisfied. As such, no claim for malicious prosecution can he stated by Plaintiff.

In addition to failing to meet the second element of a malicious prosecution claim, Plaintiff's Petition does not allege Defendants acted with want of probable cause in filing the Motion to Modify. Probable cause is a reasonable belief in the existence of the facts upon which the claim is based and a reasonable belief that under such facts the claim may he valid either at common law or under an existing statute. Greenberg, supra, 890 P.2d at 903, n. 2S. Plaintil'f does not allege Defendants lacked probable cause to file the Motion to Modify.

As evidence of the existence of probable cause to file the Motion to Modify, this Court need look no further than the denial of Plaintiff's Motion for Attorney's Fees in the Divorce Proceeding. Thus, Plaintiff is unable to satisfy the third prong of the test.

PROPOSITION III: PLAINTIFF'S PETITION FAILS TO STATE A CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

To state a claim for intentional infliction of emotional distress, a plaintiff niust allege each of the following elements: I) the alleged tortfeasor acted intentionally or recklessly: 2) the alleged tortfeasor's conduct was extreme and outrageous; 3) the conduct caused the plaintiff emotional distress; and 4) the emotional distress was severe. See Computer Publications, Inc. v. Welton, 2002 OK 50, 9J 7, 49 P.3d 732, 735. The Oklahoma Supreme Court addressed the tort of outrage in Breeden v. League Services Corp.. 575 P.2d 1374 (OkIa. 1978). In Breeden, the Court stated "... liability from such cases has been found only where the conduct has been so outrageous in character, and so extreme in degree. as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Breeden at 1376, 1378; see also Miller v. Miller. 1998 OK 24, ¶ 33, 956 P.2d 887, 901. Liability does not extend "'to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.'" Eddy v. Brown, 1986 OK 3. ¶ 7, 715 P.2d 74, 77 (quoting Restatement (Second) of Toils § 46 cmt. d). "The tort of outrage protects emotional tranquility against serious invasion only. Extraordinary transgression of the bounds of civility is required.” Id. at n. 6.

To ensure only valid claims reach a jury, the trial court must initially act as a gatekeeper to determine if an alleged tortfeasor's conduct is sufficiently extreme and outrageous and if the plaintiff suffered severe emotional distress. See Computer Publ'ns, 49 P.3d at 737. For example, in Mason v. State of Oklahoma cx rd. Board of Regents of the University of Oklahoma, 2001 OK CIV APP 33, 23 P.3d 964, a former law student alleged that the University's failure to consider his application for readmission after his expulsion amounted to outrageous conduct sufficient to state a claim for intentional infliction of emotional distress. The Court stated, "lwe have no difficulty in affirming the trial court's decision that this conduct falls far short of the level of 'outrageous' conduct necessary to support a cause of action for intentional infliction of emotional distress.” Id. at 9114, 23 P.3d at 970.

Emphasis Added by MoreLaw

The relevant issue here is not whether Plaintiff subjectively believes he has suffered harm caused by Defendants' conduct; rather, the issue is whether the conduct alleged is so reprehensible that a reasonable person would consider it to be beyond all possible bounds of decency. In the case at bar, the only conduct Plaintiff alleges constitutes intentional infliction of emotional distress is Defendants' filing of the Motion to Modify in the Divorce Proceeding. .gc Exhibit "A”, ccji 16 and 19. The fact Defendants filed the Motion to Modify in the Divorce Proceeding on behalf of their client, Ms. Adkins, is not conduct so extreme and outrageous as to meet the standard for the tort of intentional infliction of emotional distress. Defendants' actions did not so totally exceed the bounds of acceptable behavior that, upon a recitation of the facts, an average member of the community would exclaim "outrageous,” and it cannot be said that a rcasonablc person would find Defendants' conduct meets the criteria set forth in Breeden and its progeny. When measured against the extremely high hurdle that must he met to state a claim for inientional infliction of emotional distress under Oklahoma Law, Plaintiff's allegations fail to state a claim upon which relief may be granted and must be dismissed, Sec Starr v. Pearle Vision Centers, 54 F.3d 1548. 1558 (10th Cir. 1995) ("Nothing short of 'lelxtraordinary transgressions of the bounds of civility' will give rise to a claim ). Even if all facts and inferences are viewed in a light most favorable to Plaintiff, Defendants' actions still do not rise to the level of extreme and outrageous conduct.

In the absence of analogous Oklahoma eases, the Court may look to federal courts sitting in diversity and the jurisprudence of other states that have adopted the tort of intentional infliction of emotional distress to determine Oklahoma courts' likely conclusion about what conduct is sufficiently extreme to give rise to a claim. See Williams v. City of Tulsa, Oklahoma, 393 F.Supp.2d 1124, 1130 (ND. OkIa. 2005). Applying decisions from other courts, the facts of the ease at bar do not rise to the level of outrageous conduct required to maintain a claim for intentional infliction of emotional distress. See, e.g. Saldivar v. Momah, 145 Wash.App. 365, 390 186 P.3d 1117. 1131 (Wash. App. Div. 2 2008) ("Filing suit alleging sexual abuse by a physician, even with malicious intent, is not "so outrageous in character, land I so extreme in degree, as to go beyond all possible bounds of decency” and to be "utterly intolerable in a civilited community; Bell v. Eufaula City Bd. of Educ., 995 F.Supp. 1377. 1387 (M.D.Ala.1998) (forced transfer of teacher to new teaching team, even if done for reasons motivated by race. gender or age, does not constitute "egregious” conduct under Alabama law for purposes of outrage claim); FMC Corp., Inc. v. HeRon. 360 Ark. 465, 202 S.W.3d 490 (2005) (finding, no tort of outrage cvcn where the plaintiff testified that, as a result of the defendant's conduct, he was unable to sleep, lost weight, and had to start taking antidepressants, and even described his distress as being "as severe as that caused by losing his mother.”).

There is no set of circumstances Plaintiff can prove that would indicate the filing of a lawsuit by attorneys acting on behalf of their client constitutes the intentional infliction of emotional distress. Plaintiff has failed to state a claim for relief based on intentional infliction of emotional distress. Accordingly, Plaintiff's claim of intentional infliction of emotional distress must he dismissed with prejudice.

PROPOSITION IV: THE LITIGATION PRIVILEGE REQUIRES DISMISSAL OF PLAINTIFF'S PETITION

Although couched as claims for abuse oF process, malicious prosecution and intentional infliction of emotional distress, each claim is based solely on the allegation that Defendants filed "groundless litigation” against Plaintiff See Exhibit "A”, j 10. The only act Plaintiff claims entitles him to relief from Defendants is Defendants' filing of the Motion to Modify in the Divorce Proceeding. Id. However, the filing of a lawsuit is not sufficient to hold Defendants liable based on any theory. See Conner v. Howe, 344 F.Supp.2d 1164. 1175 (S.D. Ind. 2004) (broad protection for lawyers acting on behalf of clients); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 57(2) (2000) ("A lawyer representing a client in a civil proceeding, is not liable to a non-client For wrongful use of civil proceedings or for malicious prosecution if the lawyer has probable cause for acting, or if the lawyer acts primarily to help the client obtain propcr adjudication of the client's claim in that proceeding.”).

Other than filing the Motion to Modify, Plaintiff does not allege Defendants conducted any act upon which he relies to support thc claims set forth in his Petition. All of Plaintiff's claims against Defendants arise from Defendants alleged improper conduct related to the filing of the Motion to Modify. See id.. generally. Accordingly, it is the alleged "groundless nature” of the Motion to Modify (see id. at 91 10) and the testimony contained therein that serves as the complete basis for Plaintiff's claims in the instant case.

Immunity of parties and witnesses from subsequent liability in damages for their testimony in judicial proceedings was well established in English common law. Briscoc v. Lal-lue. 460 U.S. 325, 331. 103 S.Ct. 1108. 75 L.Ed.2d 96 (1983). In Kirschstein v. 1-laynes, 1990 OK 8, 788 P.2d 941, the Oklahoma Supreme Court recognized the rule, originally granting immunity in defamation cases, also extended to immunity from a damage suit for intentional infliction of emotional distress arising from the same circumstances as a defamation claim. See id. The litigation privilege has been extended even further since the Kirsehstein decision.

In Hartley v. Williamson, IX P.3d 355 (OkIa. Civ. App. 2000), a physician was acting as a court authorized counselor in a child custody proceeding. 14. at 356-57. At the conclusion of the child custody matter, the plaintiff sued the physician seeking damagcs for negligence, intentional infliction of emotional distress, deceit and conspiracy to commit abuse of process. J. at 357. The court found the litigation privilege extended to cover all of the plaintilf's alorementioned claims. Id. at 358. In so finding, the court reasoned "[ajlthough couched as claims for negligence, intentional infliction of emotional distress, deceit and conspiracy to commit abuse oF process. each claim is based on the allegation {the physician! teslified against the plaintiffs in the emergency ex-parte hearing.” Id.

Applying this same reasoning to the case at bar, it is the filing of and the statements, or testimony, contained in the Motion to Modify that for Plaintiffs requested relief. Accordingly, the litigation privilege immunity in the case at bar.

PROPOSITION V PLAINTIFF HAS SHOWN NO SET OF FACTS WARRANTING THE IMPOSITION OF PUNITIVE DAMAGES

Plaintiff is not entitled to punitive damages, as he can present no evidence warranting the imposition of such damages. According to Oklahoma law, Plaintiff must provide clear and convincing evidence Defendants have been guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice before the jury may give damages for the sake of example, and by way of punishing the defendant. Title 23 OS. § 9.1. The conduct necessary to entitle one to recover punitive damages must be of a flagrant nature. Hamilton v. Anwar Petroleum Co., Inc., 769 P.2d 146, 149 (Okla. 1989). As in the present case, where Plaintiff cannot provide the Court with any conduct evincing a wanton or reckless disregard for the rights of another, Plaintiff is not entitled to punitive damages and his claim for such must be dismissed.

Under Oklahoma law. "Itihe act which constitutes the cause of action must be actuated by or accompanied with some evil intent, or must he the result of such gross negligence--such disregard of another's rights--as is deemed equivalent to such intent.” Slocurn v. Phillips Petroleum Co., 678 P.2d 716, 719 (OkIa. 1983); Hamilton, 769 P.2d at 149. Whether or not acts surrounding a particular injury would constitute ordinary or gross negligence would depend upon the Motion to Modify provide the sole basis provides Defendants all the circumstances surrounding the accident, See Missouri K. & YR. Co. et al. v. Zuber, 184 P. 452, 272 (Okl. 1919).

Plaintiff's allegation of punitive damages is raised in his prayer for relicE (See Ex. A, 91 35). Plaintiff does not state specifically what actions of Defendants he believes entitles him to punitive damages and only makes broad and conclusory statements throughout his Amended Petition regarding his perception of Defendants conduct as "malicious.” (See Ex. A, generally). Although the allegation is made, absolutely no evidence has been presented that Defendants acted willfully, wantonly or recklessly, or that Defendants' conduct rose to the level of evil intent necessary for the imposition of punitive damages. As such, Plaintiff's claim for punitive damages must be dismissed as a matter of law.

PROPOSITION VI: ALTERNATIVELY, SHOULD PLAINTIFF'S CLAIMS NOT BE DISMISSED, DEFENDANTS MOVE FOR ITS COSTS IN DEFENDING PLAINTIFF'S PRIOR PROCEEDING

In the event this Court determines all of Plaintiff's claims should not he dismissed. Defendants alternatively move for their costs in defending Plaintiff's Prior Proceeding. Title 12, Section 684 of the Oklahoma Statutes provides the following:

D. The provisions of this section apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to subsection A of this section shall he made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing.

If a plaintiff who has once dismissed an action in any court commences an action based upon or in eluding the same claim against the same defendant. the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

12 OS. § 684. (Emphasis added). Plaintiff tiled the Prior Proceeding in the District Court of Oklahoma County on June 3. 2011. (See Petition. Ex. B). Plaintiff voluntarily dismissed the Prior Proceeding on July 21. 2011 (Scc Dismissal Without Prejudice, Ex. C) and re-filed the instant action alleging the same claims against the same Defendants on Novcrnbcr 10, 2011. (Scc Ex. A). Becausc Plaintiff previously dismissed a nearly identical lawsuit against Defendants, should this Court determine Plaintiff's claims should survive the instant Motion to Dismiss, Defendants move for thc costs in defending the Prior Proceeding pursuant to 12 0.5. § 684 and pray this Court stay the proceedings in the case at bar until such time as Plaintiff has complied with such an Order.

CONCLUSION

Upon reviewing the four corners of Plaintiff's Petition in this matter, and taking those allegations as true, Plaintiff fails to state any claim for which relief could he granted. As shown above, Plaintiff's Petition fails to state a claim of(1) abuse of process; (2) malicious prosecution; and (3) intentional infliciion of emotional distress. Plaintiff's Amended Petition is completely devoid of any facts giving rise to any cause of action against Defendants. Where a petition fails to include sufficient facts under the advanced theory(ies), ihe petition must be dismissed. Scc Lockhart, 943 P.2d at 1078. Additionally, there is no set of facts Plaintiff could allege which would allow' him to proceed in any action against Defendants. The litigation privilege provides Defendants immunity from Plaintiff's claims and Plaintiff has shown no set of facts warranting the imposition of punitive damages. Plaintiff's Petition must be dismissed, in its entirety, with prejudice. In the alternative, should Plaintiff's claims not be dismissed, Defendants move for the costs iii defending the Prior Proceeding pursuant to 12 OS. § 684.

WHEREFORE. pursuant to 12 O.S. 2012(B)(6). Defendants. John A. Alberts. Jennifer Wadley, and Alberts & Associates. respectfully move the Court for an Order dismissing Plaintiff Jay C. Adkins' Petition in its entirety with prejudice. For the Court's convenience, Defendants have attached hereto as Exhibit "D”. their proposed Order dismissing Plaintiff's claims against Defendants with Prejudice.


Defendants, John A. Alberts, Jennifer Wadley and Alberts & Associates' Motion for Summary Judgment and Brief in Support:

Defendants, John A. Alberts, Jennifer Wadley and Alberts & Associates (sometimes referred to as "Alberts”) hereby submit this Motion for Summary Judgment and Brief in Support pursuant to 12 0.5. § 2056 and Rule 13 of the Rules for District Courts as there is no substantial issue as to the material facts and Defendants are entitled to judgment as a matter of law. In support of this motion, Defendants submit the following brief:

INTRODUCTION

This lawsuit stems from the filing of a Motion to Clari& and Reform Decree of Divorce and Motion to Order Constructive Trust ("Motion to ClarifS”) filed by Defendants on behalf of their client, Heather Wolf ("Wolf') in Oklahoma County Case No. FD-2009- 1987. Shortly after the Amended Consent Divorce Decree was entered, Wolf became concerned that several issues remained unaddressed by the Decree and retained Alberts to represent her in resolving those issues. As the post-divorce litigation continued, the relationship between Plaintiff, Jay Adkins ("Adkins”), and Wolf deteriorated into a bitter dispute. Adkins' anger increased to the point a protective order against him was sought and granted. Attempts to negotiate a settlement of all the outstanding issues were unsuccessful and Alberts filed the Motion to Clarify to address the remaining issues. Ultimately, Adkins and Wolf agreed to settle the issues left unresolved by the Decree and entered into a Settlement Agreement and Mutual Release. Adkins, through the guise of this lawsuit, now seeks retribution against Defendants for their representation of Wolf in this bitter saga. However, Adkins' claims fail as a matter of law and summary judgment is appropriate.

STATEMENT OF UNDISPUTED MATERIAL FACTS

1. Jay Adkins and Heather Wolf were divorced on May 12, 2009. See Agreed Decree of Divorce and Docket Sheet for Oklahoma County Case No. FD-2009-1987, attached hereto as Exhibits "1” and "2”.

2. An Amended Agreed Divorce Decree (the "Decree”) was entered on June 9, 2009 to correct a scrivener's error regarding ownership of one of the couple's joint businesses. See Amended Agreed Divorce Decree, attached hereto as Exhibit "3” and depositions of Heather Adkins, p. 24:11-23 and Jay Adkins, pp. 34:24-25 and 35:1-6, taken August 27,2010 in relation to the Motion to Clari&, attached hereto as Exhibits "4” and "5”.

3. Wolf and Adkins maintained an intimate relationship and continued to operate as business partners throughout the summer following their divorce. See deposition of Heather Adkins, pp. 27:16-23; 28:1-10 and 29:18-24, attached hereto as Exhibit "4” and deposition of Jay Adkins, pp. 14-17, attached hereto as Exhibit "5”.

4. The relationship between Adkins and Wolf abruptly ended in September, 2009 and it became apparent they could no longer function as business partners. See Depositions of Heather Wolf, p. 27:16-23 and Jay Adkins, pp. 14-17 and 30:17-19, attached hereto as Exhibits "4” and "5”.

5. Wolf retained Alberts in November, 2009 to help resolve issues she felt were unresolved by the Decree. See Affidavit of John Albeit attached hereto as Exhibit "6”.

6. The deterioration of the professional and personal relationship between Wolf and Adkins created the necessity for Alberts to send a letter to Adkins' counsel, Tom Riesen, outlining nine (9) issues unresolved by the Decree. The issues concerned the parties' lake property in McIntosh County, automobile loans, 2008 income tax refunds, the ownership of Splash 'N Go Express Car Wash, Inc. ("SNG”), ownership of Adkins Group Properties, LLC ("AGP”), jointly held credit cards, unresolved car titles, life insurance policies and threatening contacts by Adkins. See Letter from John Alberts to Tom Riesen dated November 23, 2009, attached hereto as Exhibit "7”.

7. The parties conducted an informal mediation on December 7, 2009, wherein some, but not all, of the issues outlined in the November 23, 2009 letter were resolved. See Letter from John Alberts to Tom Riesen dated December 7, 2009, attached hereto as Exhibit g

8. Between December, 2009 and February, 2010, Adkins and Wolf attempted to resolve the remaining issues without the assistance of attorneys. See Deposition of Jay Adkins, pp. 7:21-25 and 8:1, attached hereto as Exhibit "5”. See also letter from John Alberts to Tim Riesen dated February 15, 2010, attached hereto as Exhibit "9”.

9. Shortly thereafter, talks between Wolf and Adkins broke down and Wolf again contacted Alberts for assistance in resolving issues related to the Decree and also in obtaining a Victim's Protective Order against Adkins as a result of his abusive and threatening behavior. See Petition for Protective Order and text messages attached hereto as Exhibits "10” and "11”.

10. Wolf s request for a protective order was subsequently granted by the court on March 4, 2010. See Transcript of Proceedings and Order Granting Protective Order attached hereto as Exhibits "12” and "13”.

11. When attempts to settle all remaining issues failed, Alberts filed the Motion to ClarilS' on behalf of Wolf to address the ownership of SNG, AGP and Wet Dreams, LLC ("WD”). See Motion to Clarify and Reform Divorce Decree and Motion to Order Constructive Trust and Brief in Support of Combined Motion filed July 12, 2010, attached hereto as Exhibits "14” and "15”.

12. The parties continued to negotiate towards an amicable resolution of the remaining issues with no success. See correspondence attached hereto as Exhibit "16”.

13. The parties attended Mediation with Larry Spears on October 6, 2010, in an attempt to resolve their issues. See Mediation Statement and Letter from Larry Spears, attached hereto as Exhibits "17” and "18”.

14. Adkins subsequently indicated all settlement offers were rescinded, there would be no further settlement discussions of any kind and he would utilize all levels of the appellate process for any and all adverse decisions. See Letter from Tom Riesen to John Alberts dated October 29, 2010, attached hereto as Exhibit "19”.

15. Adkins filed a Motion for Summary Judgment regarding the Motion to Clarify on November 15, 2010. See Petitioner's Motion for Summary Judgment, attached hereto as Exhibit "20”.

16. Wolf subsequently dismissed the Motion to Clarify without prejudice on November 24, 2010. See Dismissal Without Prejudice, attached hereto as Exhibit "21”.

17. Adkins filed a Motion to Tax Attorneys Fees Against Respondent and Brief in Support on January 14, 2011, alleging Wolf frivolously filed the Motion to Clari& without any factual or legal basis, which coistituted oppressive behavior. See Motion to Tax Attorney's Fees Against Respondent, Brief in Support of Motion for Attorney's Fees and Costs and Response in Support of Motion for Attorney's Fees attached hereto as Exhibits axd ''24''

18. The court denied Adkins' motion for attorney's fees on March 24, 2011. See Order denying attorney's fees, attached hereto as Exhibit "25”.

19. Adkins appealed (and later dismissed) the denial of attorney's fees in Supreme Court Case No. 109383. See Petition in Error, Appellant's Brief in Chief, Appellee's Response Brief, Appellant's Reply Brief and Docket Sheet attached hereto as Exhibits "26”, "27”, "28”, "29” and "30”. See also, Undisputed Fact No. 23.

20. Defendants' representation of Heather Wolf ceased on or about March 17, 2011; however Defendant's did not formally withdraw from the divorce proceeding until July 20, 2011. See Affidavit of John Alberts, attached hereto as Exhibit "6”.

21. Alberts referred Wolf to another law firm for help in dissolving Adkins' and Wolf s joint corporation, SNO. See Affidavit of John Alberts, attached hereto as Exhibit "6”.

22. Alberts never represented Wolf in the case styled Heather 1 Wolf individually and on behalf of nominal Defendant, Splash 'N Go Express Wash, Inc. v. Jay Adkins and Splash 'NGo Express Wash, Inc., Oklahoma County District Court Case No., CJ2010-10221 (the "derivative action”), never entered an appearance in that action and did not bring that action. See Affidavit of John Alberts and Docket Sheet for Oklahoma County Case No. CJ-201 0-10221, attached hereto as Exhibits "6” and "31”.

23. Adkins and Wolf entered into a Settlement Agreement and Mutual Release ("Settlement Agreement”) on January 17, 2012, wherein the parties agreed to settle their remaining differences in exchange for a mutual dismissal with prejudice of the Motion to Clarify, appeal of the denial of attorney's fees and all other pending cases involving Adkins and Wolf See Settlement Agreement and Mutual Release, Joint Dismissal with Prejudice and Appellant's Motion to Dismiss Appeal, attached here to as Exhibits "32”, "33” and "34”.

STANDARD FOR MOTION FOR SUMMARY JUDGMENT

Summary judgment should be granted where the facts set forth in detail in affidavits, depositions, admissions and other items of the record show there is no substantial controversy as to any material fact. Wee/cs v. Wedgewood VIII., Inc., 1976 OK 72, 554 P.2d 780, 784. See also Bishop By & Through Childers v. Carroll, 1994 OK CIV APP 37, 872 P.2d 407, 409. The principle purpose of summary judgment is to avoid useless trials and at the same time achieve a final determination on the merits. Cook v. Btvhop, 1988 OK 120, 764 P.2d 189, 190. There are no material facts in dispute and summary judgment in Defendants' favor is proper.

ARGUMENTS AND AUTHORITIES

PROPOSITION I: PLAINTIFF'S CAUSE OF ACTION FOR MALICIOUS PROSECUTION FAILS AS A MATTER OF LAW AS THE MOTION TO CLARIFY WAS NOT TERMINATED IN ADKINS' FAVOR AND WAS FILED WITH PROBABLE CAUSE.

Malicious prosecution actions are not favored by the court, and they should not be encouraged by lax rules favoring them. Glasgow v. Fox, 1988 OK 71, 757 P.2d 836, 838; citing Williams v. Frey, 1938 OK 280, 78 P.2d 1052. The plaintiff in a malicious prosecution action has the burden of affirmatively proving five elements: (1) the bringing of an original action by the defendant, (2) its successful termination in plaintiff's favor, (3) want of probable cause, (4) malice, and (5) damages. Neely v. First State Ban/c Harrah, Oklahoma, 1998 OK 119, ¶ 8, 975 P.2d 435, 437. If any one of the elements is not met, a claim for malicious prosecution fails. Plaintiff's claim for malicious prosecution fails as a matter of law because it does meet at least two of the necessary elements.

A. The Motion to Clarify was not Terminated in Plaintiffs Favor.

The second element of a malicious prosecution claim requires successful termination of the action in favor of the Plaintiff. The only action brought by Defendants in this case was the Motion to Clarify and it was not terminated in Plaintiff's favor.' See Exhibits "14” and "15”. Prior to any adjudication on the merits, Defendants voluntarily dismissed the Motion to Clarify without prejudice to refiling. A dismissal without prejudice is not a termination of the action in Plaintiff's favor which will support an action for malicious prosecution as it does not reach the substantive rights of the cause of action. Glasgow at 839. See also Peterson v. Underwood, 20090K CIV APP 82 n.5, 220 P.3d 1158, 1163-64. Plaintiff even admits the litigation was not terminated on the merits. See Plaintiff's Amended Petition, ¶ 9 attached hereto as Exhibit "37” ("This dismissal was to keep the issues from being resolved on the merits.)

The Motion to Clarify was later dismissed with prejudice, but only as part of a compromise settlement. When the parties agreed to settle the remaining issues that formed the basis for the Motion to Clarify, they entered into a Settlement Agreement and Mutual Release. See Exhibit "32”. As part of the Settlement Agreement, the parties agreed to dismiss the Motion to Clarify with prejudice. See Exhibit "33”. This, however, does not constitute termination of the action in favor of the Plaintiff "[Wjhere the dismissal in the original action is procured by the defendant, or done pursuant to a compromise or agreement of the parties, that termination cannot support an action for malicious prosecution . .

Neely at ¶ 8, citing Young v. First State Ban?4 Watonga, 1981 OK 53, 628 P.2d 707. Further, where the termination of the proceeding "is pursuant to a settlement, the action for malicious prosecution is barred because either the settlement is an admission of probable cause for the initiation of the prosecution, or because it would be unfair to allow a person to consent to the termination and then take advantage of it.” Young at 710, ¶5; citing 52 Am.Jur.2d s 44, Malicious Prosecution and Jaffe v. Stone, 18 Cal.2d 146, 114 P.2d 335 (1941). See also First State Bank v. Denton, 1921 OK 217, 198 P. 874, 875. Because the Motion to Clarify was not terminated in Plaintiff's favor, he has failed to meet the second element of a malicious prosecution claim. Thus, Defendants are entitled to Judgment as matter of law.

B. Alberts had Probable Cause to File the Motion to Clarify.

The third element that must be met by Plaintiff in order to maintain a successful malicious prosecution claim is lack of probable cause. Even if the underlying action had been terminated in Plaintiff's favor (which it was not), Plaintiffs claim for malicious prosecution still fails because Alberts had probable cause to file the Motion to Clari&.

The existence of probable cause "constitutes a complete defense irrespective of the motive or malice of the person prosecuting.” Pafrick v. Wigley, 1952 OK 118, 242 P.2d 423, 425. "Probable cause for the institution of a legal proceeding is the honest belief on the part of the instigator that the claim is founded on facts sufficiently strong to warrant the average person in believing the claim to be true.” Lierly v. Tidewater Petroleum Corp., 2006 OK 47, ¶ 21, 139 P.3d 897, 903-904. Probable cause, however, does not mean legal cause or every plaintiff who failed to recover would be liable for malicious prosecution. Lewis v. Crystal Gas Co., 1975 OK 26, 532 P.2d 431, 433. "The question of probable cause is answered in light of the facts existing at the time the action is filed.” Tulsa Radiology Associates, Inc. v. Hickman, 1984 OK CIV APP 11, 683 P.2d 537, 539. Further, an attorney is entitled to rely in good faith on the statement of facts made by the client and his or her ability to set forth specific facts and legal arguments in support of the claim is evidence of probable cause. Peterson at ¶ 21. Plaintiff has the burden of proof to show lack of probable cause, and in the absence of disputed facts, probable cause is a matter of law for the court to decide. See Champlin Ref Co. v. Le Force, 1936 OK 14, 54 P.2d 190, 193 and Page v. Rose, 1975 OK 176, 546 P.2d 617, 620.

Plaintiff has alleged the Motion to Clarify was filed without the required allegations of fraud, had no basis in fact or law, and was filed in a malicious attempt to deprive Plaintiff of his rights under the Decree. See Exhibit "23” pp. 2-4. To the contrary, the Motion to Clarify and brief in support made clear allegations that Adkins obtained or retained total ownership of AGP and WD through "actual or constructive fraud.” See Exhibit "14” p. 4 and Exhibit "15” p. 10. It was further alleged that this was achieved through abuse of confidence of Wolf, artifice, concealment and other unconscionable and abusive means. See Exhibit "14” P.4.

Although, generally, a property division pursuant to a divorce decree cannot be vacated, set aside or modified, any judgment or decree can be vacated or modified pursuant to provisions of 12 0.S. § 1231 or as a void judgment under 12 O.S. § 1238. Clj/ion v. Cit/ion, 1990 OK 88, 801 P.2d 693, 698 and In re Key, 1996 OK 130, 930 P.2d 824, 826. See also Scoufos v. Fuller, 1954 OK 363, 280 P.2d 720, 725. The Motion to Clarify alleged the decree was void on its face as it did not provide a sum certain for the division of AGP and WD, which were marital property. See Exhibit "15”, pp. 4, 5 and 7. Further, the Decree allowed Adkins to hold Wolf's share of these companies for an indefinite period of time and did not inhibit or prevent Adkins from encumbering Wolf's interest in those companies. See Exhibit "15” p. 4. This is consistent with Oklahoma case law establishing a divorce decree awarding alimony without fixing a definite amount to be paid or the term during which the payments are to be made is beyond the power of the court to make and enforce and is void. See Finley v. Finley, 1935 OK 927, 50 P.2d 643, 645. See Also Trosper v. Trosper, 1957 OK 50, 308 P.2d 320 ("Where the Court awards to one of the parties a sum of money in lieu of property, such sum must be in a definite amount independent of contingences); and Charles v. Charles, 1985 OK CIV APP 44, 713 P.2d 1048 ("Division of vested property subject to contingencies is unauthorized by law.”)

Defendants also argued the Decree should be construed as a contract as it represented a settlement, subsequent to the negotiation of the parties citing Whitehead v. Whitehead, 1999 OK 91, ¶9, 995 P.2d 1098. See Exhibit "15” pp. 7-8. Accordingly, the failure of the decree to properly divide the marital property was a mutual mistake, and the Decree should have been reformed, citing Greeson v. Greeson, 1953 OK 111, 257 P.2d 276, 278. See Exhibit "15” p. 8. The legal sufficiency of these arguments are not at issue in this case; however, the fact these assertions were made in the Motion to Clarify is conclusive evidence of probable cause for filing the action. See Peterson at 1166.

Further, the fact the parties entered into a settlement agreement is in and of itself sufficient evidence of probable cause to negate a cause of action for malicious prosecution. See Young at 710. (Settlement agreement is admission of probable cause). The Settlement Agreement resolved the issues that formed the basis of the Motion to Clarif,. See Exhibits "14”, "15” and "32”. This shows an admission by Adkins that the Decree did not resolve all of the issues between the parties and the filing of the Motion to Clarify was justified. As Alberts had probable cause to file the Motion to Clarifr in the underlying proceeding, Plaintiffs cause of action for malicious prosecution cannot be maintained as a matter of law.

PROPOSITION II: PLAINTIFF'S CAUSES OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND ABUSE OF PROCESS ARE BARRED UNDER TUE LITIGATION PRIVILEGE.

The litigation privilege grows out of a strong public policy that a sense of freedom to speak and write in connection with judicial proceedings, without the restraint of fear of an ensuing tort action, is indispensable to the administration of justice. "The immunity of parties and witnesses from subsequent damages liability for their testimony was well established in English common law.” Briscoe v. LaHue, 460 U.S. 325, 332 (1983). The Oklahoma Supreme Court recognizes "an absolute privilege for communications made preliminary to proposed judicial or quasi-judicial proceedings in favor of attorneys, parties and witnesses. . ." Kirschstein v. Haynes, 1990 OK 8, 788 P.2d 941, 945. The litigation privilege "accords attorneys, parties, jurors and witnesses immunity for comments or writings made during the course of or preliminary to judicial or quasi judicial proceedings.” Springer v. Richardson Law Firm, 2010 OK CIV APP 72, ¶ 8, 239 P.3d 473, 475, citing Samson mv. Co. v. Chaevaillier, 19990K 19, 988 P.2d 327.

The preeminent case in Oklahoma regarding the litigation privilege is Kirschstein v. Haynes. In Kirschstein, plaintiff alleged intentional infliction of emotional distress and defamation stemming from the filing of an affidavit in an action to obtain a delayed birth certificate. The Court held the litigation privilege applied as the affidavit at issue was related to the pending quasi-judicial proceeding and made in furtherance of the representation and affirmed the dismissal of the plaintiffs action. The Court further held: "[Wjhen [aJ claim for intentional infliction of emotional distress is based on the same factual underpinnings as a defamation claim for which the privilege applies, a claim for intentional infliction of emotional distress is also barred by the reach of the absolute privilege.” Id at 954.

The litigation privilege was further extended in Bennett v. McKibben, 1996 OK CIV APP 22, 915 P.2d 400. Similarly to Plaintiff here, the plaintiff in Bennett argued the "filing of a frivolous and meritless lawsuit was 'extreme and outrageous' and caused her severe emotional distress.” Id. at 405. In denying the plaintiff's related claim for intentional infliction of emotional distress, the Court of Civil Appeals held her claim was "based on the same factual underpinnings as her slander of title claim and the absolute privilege bars such a claim.” Similarly, in Pryor v. Findley, 1997 OK CIV APP 74, 949 P.2d 1218, the Court affirmed the trial court's dismissal of the plaintiffs claim for intentional infliction of emotional distress, holding because the plaintiffs "claim for emotional distress is based on the same factual underpinnings as a slander of title claim, the absolute privilege bars that claim as well.” Id at ¶4.

The Court of Civil Appeals again expanded the litigation privilege to apply to other causes of action, including abuse of process, in Hartley v. Williamson, 2001 OK CIV APP 6, 18 P.3d 355. In Hartley, the plaintiff sued the doctor who testified as an expert in a child custody case. The Court extended the litigation privilege to preclude plaintiff's claims for negligence, intentional infliction of emotional distress, deceit and conspiracy to commit abuse of process. The Court held plaintiff's causes of action arose from the doctor's testimony at a judicial proceeding and were based on the same circumstances as a defamation claim, thereby precluding plaintiffs claims. Id. at ¶ 15.

Application of the litigation privilege to abuse of process claims is also consistent with holdings from other jurisdictions. The New Jersey Supreme Court in Baglini v. Lauletta, 338 N.J. Super. 282, 768 A.2d 825, 833-834 (App. Div. 2001) held although malicious prosecution was the one tort excepted from the litigation privilege, no such exception has been made for abuse of process. Similarly, California courts have applied the litigation privilege to plaintiffs' claims for abuse of process stemming from divorce and post divorce litigation. See Twyford v. Twyford, 63 Cal. App. 3d 916, 134 Cal. Rptr. 145 (Ct. App. 1976) and Green v. Uccelli, 207 Cal. App. 3d 1112, 1120, 255 Cal. Rptr. 315 (Ct. App. 1989).

In Springer v. Richardson Law Firm, the Court of Civil Appeals applied the litigation privilege to preclude claims for legal malpractice, fraud, deceit, libel and slander. The Court affirmed the dismissal of plaintiff's petition as the statements made were pertinent to and made during a legal proceeding, thereby invoking the litigation privilege. Id. at ¶10. Once again, the Court extended the litigation privilege to other claims stemming from statements made in a judicial proceeding because they were based on the same factual underpinnings as an action for defamation, and were subject to the litigation privilege.

Since Kirschstein, other Oklahoma courts have gone a step further and set a strong precedent that there can be no civil cause of action at all for litigation related conduct as long as the actions taken by the attorney are related to the litigation and made during the litigation.

In Hutchinson v. Carter, 2001 OK CIV APP 124, 33 P.3d 958, the plaintiff brought an action for fraud, deceit, negligent supervision and misrepresentation against lawyers and law firms arising from legal and factual positions taken in hearings and pleadings filed by defendants on behalf of their clients. Id. at ¶3. The Court of Civil Appeals found plaintiff's petition contained nothing more than unactionable statements made by the defendants in defending and advocating for their client. Id. at ¶6. In affirming the trial court's dismissal of plaintiff's claims, the Court noted: "It is black-letter law in Oklahoma that no civil remedy is available for litigation-related misconduct.” Id at ¶ 7, (emphasis added) citing Patel v. OMfiMedical Center, Inc., 1999 OK 33, 987P.2d 1185, 1202.

While the litigation privilege originated for defamation claims, courts have applied it broadly to tort claims generally, lest the protection be evaded by a simple change in the legal theory. See Kirschstein and Baglini. The Supreme Court of Florida articulated this principal best in Levin, Middlebroolcs, Mabie, Thomas, Mayes & Mitchell, PA. v. US. Fire mi Co., 639 So. 2d 606, 608 (Fla. 1994), holding:

Absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior. . . so long as the act has some relation to the proceeding. The rationale behind the immunity afforded to defamatory statements is equally applicable to other misconduct occurring during the course of ajudicial proceeding.

See also, Conner v. Howe, 344 F.Supp.2d 1164, 1175 (S.D. Ind. 2004) (broad protection for lawyers acting on behalf of clients) and RESTATEMENT (ThIRD) OF Ti-w LAW GOVERNING LAWYERS § 57(2) (2000) ("A lawyer representing a client in a civil proceeding ... is not liable to a non-client for wrongfhl use of civil proceedings or for malicious prosecution if the lawyer has probable cause for acting, or if the lawyer acts primarily to help the client obtain proper adjudication of the client's claim in that proceeding.”)

Plaintiffs arguments that the litigation privilege does not extend beyond defamation is incorrect. As noted in the cases above, Oklahoma courts have extended the litigation privilege to specifically include numerous causes of action, including intentional infliction of emotional distress and abuse of process. Plaintiff claims Defendants maliciously filed a Motion to Clarify without justification and made statements therein and during the proceeding - all in an effort to extort, harass and force Plaintiff into giving up his rights under the Decree. See Exhibit "37” p. 4. See also Plaintiffs Response to Defendant's First Set of Interrogatories, pp. 6-9, attached hereto as Exhibit "38”; Plaintiffs Supplemental Response to Defendant's First Set of Tnterrogatories, p. 5, attached hereto as Exhibit "39”; and Plaintiffs Second Supplemental Response to Defendant's First Set of Intenogatories, pp. 4- 6, attached hereto as Exhibit "40”. Plaintiffs attempt to couch his allegations as something different does not negate the fact they arose from the same circumstances as a defamation claim. As noted in Hartley, the litigation privilege applies to causes of action "arising from the same circumstances as a defamation claim.” Hartley at ¶15. Further, as demonstrated in Hutchinson and Patel, there is no civil cause of action for litigation related conduct of an attorney so long as the actions taken by the attorney are related to the litigation. All of the alleged conduct of which Plaintiff complains was incidental to and in furtherance of Defendants' representation of their client during the course of andlor as part of a judicial proceeding. Such conduct squarely falls within the litigation privilege. Thus, Plaintiffs claims against Defendants for intentional infliction of emotional distress and abuse of process are barred by the litigation privilege.

PROPOSITION III: THERE WAS No PERVERSION OF THE LEGAL PROCEEDING TO SUPPORT PLAINTIFF'S CLAIM FOR ABUSE OF PROCESS.

As outlined in Proposition IT, above, Plaintiffs claim for abuse of process is barred by the litigation privilege. However, even absent the litigation privilege, Plaintiff's claim for abuse of process still fails as a matter of law. To maintain a cause of action for abuse of process, plaintiff must show: "(1) the improper use of the court's process (2) primarily for an ulterior or improper purpose (3) with resulting damage to the plaintiff asserting the misuse.” Greenberg v. Woljberg, 1994 OK 147, 890 P.2d 895, 905. Perversion of the process must be "some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process . . . The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself. . Tulsa Radiology Associates at 539. Acts which lend themselves to an abuse of process include "attachment, execution, garnishment, sequestration proceedings, arrest of the person and criminal prosecution and even such infrequent cases as the use of a subpoena for the collection of a debt.” Baglini at 282. "In the absence of some coercive or illegitimate use of the judicial process there can be no claim for its abuse.” Id.

Malicious prosecution has been distinguished from abuse of process - "the former lies for the malicious initiation of process and the latter for aperversion of the process after it is issued.” Greenberg at 906. All of the actions complained of by Plaintiff stem from the initiation of the process. Plaintiff claims that Defendants tried to ". . .extort him through the use of litigation filed without any probable cause. All damages sought come from the malicious filing of a groundless lawsuit.” See Plaintiffs Motion to Reconsider Dismissal and Brief in Support, p. 6 attached hereto as Exhibit "41”. Plaintiff also states that this alleged scheme "was based on a plan to wear Plaintiff down... through the initiation of legal actions in bad faith and without any probable cause....” See Exhibit "41” p. 2. Plaintiff's Amended Petition alleges Defendants'"actions were taken for the primary purpose of maliciously harming him.” See Exhibit "37” p. 6 ¶ 23. Finally, Plaintiff stated in his discovery responses that the abuse of process is the filing of the Motion to Clarify, in an effort to harm and extort him, without factual or legal support and without fully investigating its underlying facts. See Exhibit "38” pp. 6-7, Exhibit "39” p. 5, and Exhibit "40” pp. 4-6. All of these claims relate to the initiation of process; which is not abuse of process. As noted above in Greenberg, a lawsuit or action that was wrongfully brought would give rise to a malicious prosecution claim, not an abuse of process claim. It is only where wrongful acts are taken within the course of an active or ongoing lawsuit that abuse of process can lie. Greenberg at 906.

Adkins has not demonstrated any alleged willful act that occurred after the filing of the Motion to Clarify showing that Defendants misused the court's process primarily for an improper purpose. In fact, Plaintiff does not argue Defendants misused the process at all. Rather, Plaintiff merely argues Defendants utilized the process with malice and in an attempt to coerce and aimoy Plaintiff into giving up his benefits under the Decree. However, bad intentions do not constitute abuse of process. Greenberg at 905. ("Although a plaintiff in a predicate action may have been motivated by bad intention, there is no abuse if the court's process is used legitimately to it authorized conclusion.”) There can be no abuse of process if Defendants simply used the process for its intended purpose. There must be a further act done outside the use of the process — a perversion of the process. See Greenberg at 906.

It is undisputed that the only actions taken by Defendants consisted of filing the Motion to Clarify, conducting discovery, participating in a mediation and dismissing the Motion to Clarify without prejudice. Defendants simply used the legal process to accomplish a purpose for which it was designed. Defendants' used the process in an effort to reform the underlying Decree to address various unresolved issues and forever sever any and all ties between Wolf and Adkins. See Exhibits "6” p. 3, "7”, "14” p.3, ¶ 11 and "15”. This is not an improper or ulterior purpose. Further, Defendants took no perverse actions outside the Motion to Clarify or unauthorized by the court process. See Gore v. Taylor, 1990 OK CIV APP 24, 792 P.2d 432, 436 ("With respect to the primary purpose doctrine, the courts have held that a counterclaim admittedly filed for the purpose of encouraging settlement is not an improper motive or purpose.”) Further, Defendants certainly had the right, as part of the court's process, to dismiss without prejudice, the Motion to Clarify. That is not misuse of the process. See Hickman at 539 (where "the Defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions,” no misuse of process has occurred). There simply were no actions outside of the judicial process that can be perceived as a perversion of the process and the Motion to Clarify was not filed for an improper purpose. Accordingly, Plaintiff's cause of action for abuse of process must fail as a matter of law.

Ultimately, this action led to a Settlement Agreement between Adkins and Wolf as to the remaining issues outlined in the Motion to Clarify. The fact that the litigation resulted in a settlement further demonstrates that the process was used legitimately and for a proper purpose and nothing else. Accordingly, Plaintiff's cause of action for abuse of process must fail as a matter of law.

PROPOSITION IV: THIS ACTION IS BARRED BY COLLATERAL ESTOPPELIISSUE PRECLUSION.

"Once a court has decided an issue of fact or law necessary to its judgment, the same parties or their privies may not re-litigate that issue in a suit brought upon a different claim.” Oklahoma Dept of Pub. Safety v. McCrady, 2007 OK 39, ¶ 7, 176 P.3d 1194. (Emphasis added) "The purpose of [collateral estoppelj is to 'relieve the parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and by preventing inconsistent decisions, by encourage reliance on adjudication.” Miller v. Miller, 1998 OK 24, ¶ 25, 956 P.2d 887. "Collateral estoppel requires: (1) the precluded issue be the same as that involved in the earlier action; (2) the issue was actually litigated; (3) it was determined by a final and valid decision; and (4) the determination was essential and necessary to the earlier result.” Cities Serv. Co. v. Gulf Oil Corp., 19990K 14, 980 P.2d 116, 125. "[A]n order's finality for issue- preclusion purposes is assessed by determining whether the conclusion in question is procedurally definite. Particularly relevant to the latter decision are such factors as 'the nature of the decision (i.e., that it was not avowedly tentative), the adequacy of the hearing, and the opportunity for review.” Id. at 127 (emphasis in original).

The arguments made by Adkins in this case are the exact same arguments he made to the trial court in his motion for fees and costs in the divorce proceeding. See Exhibits "22”, "23” and "24”. He argued the Motion to Clarify was not based in law or fact and was a frivolous law suit aimed at exerting emotional and financial pressure on him to coerce him into giving up his rights under the Decree. Exhibit "23” pp. 1, 2 and 4. The divorce court entertained briefing on these issues and heard oral arguments from the parties. The court subsequently overruled Adkins' arguments and found fees were not warranted. See Exhibit "25”. Adkins subsequently appealed this denial only to dismiss his appeal pursuant to the Settlement Agreement between him and Wolf See Exhibits 26-30. The issue of whether or not the Motion to ClarifS' was warranted and sanctioned by the law and facts was addressed by the divorce court and Plaintiff's arguments therein were denied. Accordingly, Plaintiff is estopped from pursuing this collateral attack on that court's prior ruling. Additionally, the proper forum in which to address any perceived attorney misconduct would have been in the underlying proceeding. "Attorney misconduct may be sanctioned by the court in which the misconduct occurred. . . But advocacy, even abusive advocacy, is not an independent tort that a party litigant may bring against a lawyer or his client outside the action in which the person believes the misconduct occurred.” Hutchinson at ¶ 9. See also Kirschstein at 950-951 (the litigation privilege does not protect from sanctions in the underlying proceeding). Plaintiff not only had the option to seek redress in the divorce court, but did in fact seek redress of his grievances, which were denied. This issue has been litigated and Plaintiffs allegations have been found lacking. Accordingly this Court should grant Judgment in Defendants' favor.

CONCLUSION

WHEREFORE, premises considered, Defendants respectfully requests this Court enter judgment in their favor as there is no dispute as to the material facts and Defendants are entitled to judgment as a matter of law, and for such other relief as the Court deems just and proper.

The Court overruled Defendants' motion to dismiss but sustained their motion for summary judgment.