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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. David Griffith v. Roger Hemphill, Donald Davis, and JDO Law, PC (4/11/2025) sp-7761
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID GRIFFITH, )
) Supreme Court No. S-18804
Appellant, )
) Superior Court No. 3AN-23-04423 CI
v. )
) O P I N I O N
ROGER HEMPHILL, DONALD )
DAVIS, and JDO LAW, P.C., ) No. 7761 - April 11, 2025
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Dani Crosby, Judge.
Appearances: David Griffith, pro se, Eagle River,
Appellant. Laura L. Farley, Farley & Graves, P.C.,
Anchorage, for Appellee JDO Law, P.C. Notice of
nonparticipation filed by Robert D. Stone, Stone Law, LLC,
Anchorage, for Appellees Roger Hemphill and Donald
Davis.
Before: Maassen, Chief Justice, and Borghesan, Henderson,
and Pate, Justices. [Carney, Justice, not participating.]
BORGHESAN, Justice.
INTRODUCTION
In a prior appeal we affirmed a damages award in favor of two commercial
tenants against their former landlord.1 The former landlord then sued the tenants and
1 Griffith v. Hemphill, 521 P.3d 584 (Alaska 2022).
----------------------- Page 2-----------------------
their law firm, alleging the torts of negligent infliction of emotional distress (NIED),
malicious prosecution, and abuse of process. After taking judicial notice of the prior
legal proceedings, the superior court granted the defendants' motion to dismiss the
landlord's claims for failure to state a claim on which relief may be granted. The
landlord appeals.
We affirm the superior court's decision. The superior court followed the
proper procedure for taking judicial notice, and in doing so it was not required to convert
the motion to dismiss to a motion for summary judgment. On the merits, the landlord's
NIED claim fails because it is based on the tenants' claims and statements made in the
prior proceedings, which are privileged and cannot serve as the basis for liability. The
landlord's malicious prosecution claim fails because the prior proceedings did not
terminate in his favor. And the abuse of process claim fails because the landlord did
not allege a necessary element: an ulterior purpose separate from the process.
FACTS AND PROCEEDINGS
A. Facts
Because this is an appeal of an order dismissing the complaint for failure
to state a claim, the following facts are drawn from the complaint and assumed, for
2
purposes of this appeal, to be true.
Starting in December 2008 Roger Hemphill and Donald Davis leased a
commercial building from David Griffith for a ten-year term. The lease provisions
included an option, at the end of the lease term, for Hemphill and Davis to purchase the
property at a value set by third-party appraisal. In 2016 and 2017 Hemphill and Davis
informed Griffith that they would not exercise the option to purchase. But in 2018
Hemphill and Davis attempted to exercise the option. After the lease term expired in
November 2018, Hemphill and Davis held over on the property.
2 Robinson v. Alaska Hous. Fin. Corp., 442 P.3d 763, 768 (Alaska 2019)
(quoting Patterson v. Walker, 429 P.3d 829, 831 (Alaska 2018)).
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----------------------- Page 3-----------------------
B. Prior Proceedings
Griffith then brought a forcible entry and detainer (FED) action against
Hemphill and Davis. This FED action culminated in an appeal to us, and we take
judicial notice of the existence and outcome of those prior proceedings.3
Griffith sought to evict Hemphill and Davis from the property and claimed
$25,000 in damages.4 Hemphill and Davis counterclaimed for over $100,000 in
damages, pursuing claims of breach of contract related to the option to purchase and for
failure to maintain the property, breach of the implied covenant of good faith and fair
dealing, unjust enrichment, and specific performance.5 Hemphill and Davis later
moved to voluntarily dismiss their specific performance counterclaim, and the superior
6
court granted that motion.
After trial the superior court dismissed Griffith 's original FED claim,
finding that Hemphill and Davis "had a right to remain holdover tenants for a limited
reasonable period of time" and had not abused that right.7 The court dismissed
Hemphill and Davis' breach of contract counterclaim related to the option to purchase
for failure to properly exercise the option, as well as their counterclaims for unjust
8
enrichment and good faith and fair dealing.
3 Alaska R. Evid. 201(b) ("A judicially noticed fact must be one not subject
to reasonable dispute in that it is . . . capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned."). As we explain
further below, the existence and outcome of a prior legal proceeding are facts that are
properly subject to judicial notice.
4 Griffith, 521 P.3d at 586.
5 Id.
6 Id. at 587.
7 Id. at 588.
8 Id.
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The superior court entered judgment in favor of Hemphill and Davis on
their breach of contract counterclaim related to the failure to maintain the property,
awarding them a total of $19,330 in damages.9 We affirmed this decision.10
C. Proceedings In This Case
In January 2023 Griffith filed a new action for damages against Hemphill,
Davis, and their attorney, Jermain Dunnagan & Owens P.C. (JDO). Griffith asserted
claims of NIED, malicious prosecution, and abuse of process based on what happened
in the prior proceedings.
In support of the NIED claim, Griffith alleged that "[t]he defendants were
negligent in their duty to abide by the terms of the option contract" and caused him
emotional distress by making claims against him based on the option contract, as well
as "misleading," "lying," engaging in "fabrication/spoliation of evidence," and
violating various court rules and rules of professional conduct.
In support of the malicious prosecution claim, Griffith alleged that "both
proceedings, specific performance and breach of contract, terminated in [his] favor."
He alleged that "there was no probable cause for the proceedings as the defendants
could not exercise the option contract" and that the primary purpose of the proceedings
was "malice, retaliation and intentional delay, and not the enforcement of the contract."
In support of the abuse of process claim, Griffith alleged that "[t]he
defendants had multiple ulterior purposes" such as "intentionally delaying the F.E.D.
while looking for other properties to lease" and causing Griffith "substantial damage."
He alleged that they engaged in tortious misconduct by "intentional delay of the F.E.D.,
conducting bogus depositions and making a minimal offer of judgment while
simultaneously requesting a continuance to perform discovery."
9 Id.
10 Id. at 588-92.
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JDO moved to dismiss the suit for failure to state a claim.11 Hemphill and
Davis joined this motion. After Griffith opposed the motion, the superior court issued
an order explaining that it would treat the motion to dismiss as a motion for summary
12
judgment because the court intended to consider material outside the pleadings -
namely, the prior proceedings involving the parties. The court gave the parties two
weeks to respond. Griffith timely filed an affidavit and four trial exhibits from the
13
underlying litigation.
The superior court granted the motion to dismiss Griffith's claims against
Hemphill, Davis, and JDO. The court took judicial notice of "other court proceedings
related to this case, namely Griffith v. Hemphill, No. S-18041" - our decision in the
prior appeal. As a threshold matter, the court explained that it had "mistakenly
indicated that it would convert [the] motion to dismiss into a motion for summary
judgment." The court went on to explain that taking judicial notice of facts outside the
pleadings did not require converting the motion to a summary judgment motion. It
therefore struck Griffith's opposition to summary judgment but "accept[ed] his affidavit
to the extent it disputes the facts stated in Griffith v. Hemphill, No. S-18041."
Proceeding to the merits of Griffith's three claims, the superior court first
ruled that Griffith's NIED claim was barred by the absolute privilege for statements
made in litigation. It also ruled that Griffith failed to state a claim for malicious
prosecution because the prior proceedings were not terminated entirely in his favor. It
11 See Alaska R. Civ. P. 12(b)(6).
12 See Alaska R. Civ. P. 12(b) ("If, on a motion asserting the defense
numbered (6) to dismiss for failure of the pleading to state a claim upon which relief
can be granted, matters outside the pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment and disposed of as
provided in Rule 56, and all parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56.").
13 Griffith also filed an opposition to summary judgment reiterating the same
arguments from his opposition to Hemphill, Davis, and JDO's motion to dismiss.
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observed that Hemphill and Davis had prevailed on some of their counterclaims in the
prior proceedings. Noting that Alaska law did not establish whether counterclaims
should be considered in evaluating the outcome of the prior proceedings, the court cited
California precedent holding that "favorable termination requires favorable resolution
of the underlying action in its entirety, not merely a single cause of action."14 Finally,
it ruled that Griffith failed to state a claim for abuse of process. It reasoned that a
necessary element of an abuse of process claim is an act beyond those taken in the
course of litigation, but Griffith's complaint relied solely on "actions taken in the course
of litigation that cannot be the proper bases for his abuse of process claim."
The court therefore dismissed all three of Griffith's claims, but gave
Griffith two weeks to amend his complaint before the order would take effect. Griffith
moved for clarification of why the court did not convert the defendants' motion to
dismiss to one for summary judgment. The court responded, explaining that conversion
is not required when taking judicial notice of other judicial proceedings, but stating that
15
it did consider Griffith's position on those proceedings.
Griffith twice moved for reconsideration, which the superior court denied.
Griffith appeals the dismissal of his claims.
14 The superior court cited Citizens of Human., LLC v. Ramirez, 277 Cal.
Rptr. 3d 501, 510 (Cal. App. 2021).
15 The superior court cited Pedersen v. Blythe, 292 P.3d 182, 185 (Alaska
2012) (noting that court "may consider materials outside the pleadings on a motion to
dismiss if those materials are subject to 'strict judicial notice' " and that court
proceedings are subject to "strict judicial notice").
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----------------------- Page 7-----------------------
STANDARD OF REVIEW
"We review a superior court's 'grant of a motion to dismiss a complaint
for failure to state a claim under Alaska Civil Rule 12(b)(6) . . . de novo.' "16 "In
reviewing a Rule 12(b)(6) dismissal, we liberally construe the complaint and treat all
factual allegations in the complaint as true."17 "[W]e also 'liberally' construe the claims
of self-represented litigants like [Griffith]."18 Civil Rule 12(b)(6) dismissals "should
be granted only if 'it appears beyond doubt that the plaintiff can prove no set of facts in
19
support of the claims that would entitle the plaintiff to relief.' "
"We exercise our independent judgment when reviewing issues of law,
'adopt[ing] the rule of law that is most persuasive in light of precedent, reason, and
policy.' "20 "We may affirm the superior court on any basis appearing in the record."21
DISCUSSION
A. The Superior Court Did Not Err In Declining To Convert The Motion
To Dismiss To A Motion For Summary Judgment.
The threshold question is whether the superior court erred by taking
judicial notice of the prior proceedings involving the litigants without converting
Hemphill, Davis, and JDO's motion to dismiss into a motion for summary judgment.
Griffith argues that the court erred by not converting the motion and that he was "left
16 Robinson v. Alaska Hous. Fin. Corp., 442 P.3d 763, 768 (Alaska 2019)
(quoting Clemensen v. Providence Alaska Med. Ctr., 203 P.3d 1148, 1151 (Alaska
2009)).
17 Id. (quoting Patterson v. Walker, 429 P.3d 829, 831 (Alaska 2018)).
18 Id.
19 Id. (quoting Clemensen, 203 P.3d at 1151).
20 Lawson v. Helmer , 77 P.3d 724, 726 (Alaska 2003) (quoting Robles v.
Shoreside Petroleum, Inc., 29 P.3d 838, 841 (Alaska 2001)).
21 Ennen v. Integon Indem. Corp., 268 P.3d 277, 281 (Alaska 2012) (quoting
Far N. Sanitation, Inc. v. Alaska Pub. Utils. Comm 'n, 825 P.2d 867, 869 n. 2 (Alaska
1992)).
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----------------------- Page 8-----------------------
with no response to the court considering, and not excluding, matters outside the
pleadings." We see no error in the way the proceedings unfolded. The superior court
was permitted to take judicial notice of prior court proceedings so long as it gave the
parties sufficient notice of its intent to do so.
When considering a motion to dismiss, a court "generally 'do[es] not
consider materials outside the complaint and its attachments.' "22 If the court intends
to consider material beyond the pleadings when deciding a motion to dismiss under
Civil Rule 12(b)(6), "the motion shall be treated as one for summary judgment,"23 and
the court must give the parties "reasonable opportunity to present all material made
24
pertinent."
But there is an exception: "courts may consider materials outside the
pleadings on a motion to dismiss if those materials are subject to 'strict judicial
notice.' "25 When doing so "the court must give notice to the opposing party of its
intent to take judicial notice and afford him an opportunity to dispute the facts judicially
noticed."26 That is what the court did here.
The facts the superior court described were subject to judicial notice. "A
judicially noticed fact must be one not subject to reasonable dispute in that it is either
(1) generally known within this state or (2) capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned."27 That was the
22 Sagoonick v. State, 503 P.3d 777, 791 (Alaska 2022) (quoting Pedersen v.
Blythe, 292 P.3d 182, 184 (Alaska 2012)).
23 Alaska R. Civ. P. 12(b).
24 Id. ; see also Pedersen, 292 P.3d at 184-85.
25 Pedersen, 292 P.3d at 185.
26 Id. (quoting Schwartz v. Commonwealth Land Title Ins. Co., 374 F. Supp.
564, 579 (E.D. Pa. 1974), supplemented, 384 F. Supp. 302 (E.D. Pa. 1974)) (internal
quotation marks omitted).
27 Alaska R. Evid. 201(b).
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case here. The court cited our opinion in Griffith v. Hemphill28 when describing the
results of the prior proceedings. In particular, it took judicial notice of the fact that
Hemphill and Davis did not prevail on counterclaims related to the option to purchase
but did prevail on other counterclaims for damages. Matters subject to strict judicial
notice include "matters of public record (including other court proceedings), and
matters of common knowledge."29 Judicial notice of court records is only proper for
"facts not subject to reasonable dispute" like "facts that a prior suit was filed, who the
parties were," and, in this instance, the outcome of prior proceedings.30 It was therefore
proper for the superior court to take judicial notice of the claims asserted in the prior
litigation and how those claims were resolved.
The superior court also followed the correct procedure when taking
judicial notice. It gave Griffith notice of its intent to consider the underlying
proceedings and gave him time to respond. Griffith timely filed an affidavit and four
trial exhibits from the underlying litigation. And the court stated in its decision that it
"accepts [Griffith's] affidavit to the extent it disputes the facts stated in Griffith v.
Hemphill, No. S-18041." The court also stated in a later clarification that it "considered
28 521 P.3d 584 (Alaska 2022).
29 Pedersen, 292 P.3d at 185; accord Forrer v. State, 471 P.3d 569, 584
(Alaska 2020); see also Nizinski v. Currington , 517 P.2d 754, 756 (Alaska 1974)
(affirming that superior court properly considered matters of public record - affidavits
from related lawsuit - on motion to dismiss).
30 F.T. v. State, 862 P.2d 857, 863-64 (Alaska 1993). "Courts are far more
circumspect about taking judicial notice of the facts alleged in court records." Id. Other
courts have similarly acknowledged that it is proper to "take judicial notice of another
court's opinion not for the truth of the facts recited therein, but for the existence of the
opinion, which is not subject to reasonable dispute over its authenticity." Winget v. JP
Morgan Chase Bank, N.A., 537 F.3d 565, 576 (6th Cir. 2008) (quoting S. Cross
Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir.
1999)).
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the information that Mr. Griffith submitted regarding the prior proceedings," asserting
that "his position as to [those] proceedings [had] been taken into consideration."
Because the results of the prior litigation were facts susceptible to judicial
notice, and the court followed the procedures required for taking judicial notice, it did
not err by declining to convert the motion to dismiss to a motion for summary judgment.
B. The Superior Court Did Not Err In Dismissing Griffith's NIED Claim
Because Litigation Conduct Cannot Create Liability For NIED.
The superior court dismissed Griffith's NIED claim because it concluded
that the allegations underlying his claim involved privileged litigation conduct. Griffith
argues that the litigation privilege does not apply to "the intentional and malicious
initiation and continuation of a meritless proceeding."
Our precedent indicates otherwise. In Meidinger v. Koniag, Inc. , we
affirmed dismissal of an IIED claim by corporate shareholders against a corporation,
reasoning "to the extent that the IIED claim is based on [the corporation's] lawsuit
against the [shareholders], filing that lawsuit is privileged and cannot be the basis of
IIED liability." 31 We cited with approval a Texas decision holding that "the institution
and prosecution of a civil suit afford no cause of action for damages against the party
suing except in cases of malicious prosecution or abuse of process."32 If filing a lawsuit
cannot be the basis for intentional infliction of emotional distress because filing a
lawsuit is privileged conduct, it should not be the basis for negligent infliction of
emotional distress either.33 So an NIED claim cannot be based on Hemphill, Davis,
and JDO's filing and prosecution of a civil suit.
31 31 P.3d 77, 87 (Alaska 2001).
32 Id. at n.35 (citing Greyhound Lines, Inc. v. Duhon, 434 S.W.2d 406, 413
(Tex. App. 1968)).
33 See Kallstrom v. United States, 43 P.3d 162, 166 (Alaska 2002) ("[IIED]
differs from NIED in that the plaintiff must show that the defendant's actions leading
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Because Griffith's NIED claim is based on precisely that litigation
conduct, it was properly dismissed. Griffith alleged that "[t]he defendants caused [him]
to experience severe emotional distress" by filing a counterclaim based on the option
contract, and that this distress was exacerbated by their "outrageous" litigation conduct
and "malicious" dishonesty in connection with the litigation. These actions cannot be
the basis for NIED liability.
C. It Was Not Error To Dismiss The Malicious Prosecution Claim
Because The Prior Proceedings Did Not Terminate Favorably To
Griffith.
"A malicious prosecution cause of action seeks to redress the wrongful
bringing of an action."34 To prevail on a claim of malicious prosecution, a plaintiff
must plead and prove the "favorable termination of the original suit, lack of probable
cause of the claim asserted[,] and malice on the part of the claimant."35 The superior
court, guided by California law, ruled that Griffith's malicious prosecution claim failed
36
because the prior proceedings were not terminated favorably to him in their entirety.
As the superior court noted, "[t]he defendants . . . won a judgment that assessed
damages against [Griffith]" on a breach of contract counterclaim. And, although the
superior court did not mention it, they also prevailed on Griffith's original eviction
to the complained of emotional distress were intentional, outrageous, or reckless and
extreme.").
34 Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988).
35 Zamarello v. Yale, 514 P.2d 228, 232 (Alaska 1973); see also Indus.
Power & Lighting Corp. v. W. Modular Corp., 623 P.2d 291, 298 (Alaska 1981);
RESTATEMENT (SECOND) OF TORTS § 674 (AM. L. INST . 1977); W. PAGE KEETON ET
AL., PROSSER AND KEETON, HANDBOOK ON THE LAW OF TORTS § 120, at 892-96 (5th
ed. 1984).
36 See Citizens of Human., LLC v. Ramirez, 277 Cal. Rptr. 3d 501 (Cal. App.
2021).
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claim, with the court ruling that they had a "right to remain holdover tenants for a
limited reasonable period of time" and had not abused that right.37
On appeal Griffith appears to argue that because he prevailed on Hemphill
and Davis's counterclaims related to the option to purchase, these claims were
terminated in his favor and may support a claim for malicious prosecution. We have
never decided whether the plaintiff must show favorable termination of all claims in the
original suit, including counterclaims, or of only the subset of claims that the plaintiff
alleges were maliciously prosecuted. Griffith does not cite any legal authority
supporting his apparent position that favorable resolution of a single claim in a prior
proceeding can support a malicious prosecution claim regardless of how other claims
in the prior proceeding were resolved. But there is some uncertainty in the case law
about whether the malicious prosecution plaintiff must show completely favorable
termination of the prior proceedings.
As the superior court correctly observed, recent California decisions
require a malicious prosecution plaintiff to show that the prior proceedings were
terminated entirely in the plaintiff's favor.38 That is, "if the underlying plaintiff
succeeds on any of his or her claims, the favorable termination requirement is
unsatisfied and the malicious prosecution action cannot be maintained."39 An earlier
California decision suggested that favorable termination of "separable" claims might
support a subsequent claim for malicious prosecution even though other claims in the
initial proceeding were not terminated favorably to the malicious prosecution
37 Griffith v. Hemphill, 521 P.3d 584, 588 (Alaska 2022).
38 E.g. Citizens of Human., LL C, 277 Cal. Rptr. 3d at 510-11 (quoting Lane
v. Bell, 228 Cal. Rptr. 3d 605, 608 (Cal. App. 2018)).
39 Id. at 510 (quoting Lane, 228 Cal. Rptr. 3d at 608).
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plaintiff.40 Under this rule, claims are "separable" if they vindicate different "primary
rights" or injuries, and could be brought as separate suits.41 But the California Supreme
Court later criticized this reasoning as dicta,42 and subsequent appellate decisions
43
declined to follow it.
We need not decide which rule to adopt under Alaska law because Griffith
cannot establish favorable termination of the prior proceedings under either of them.
Even if a malicious prosecution plaintiff need only show favorable termination of a
"separable" set of claims, Griffith cannot do so here. The claims for specific
performance and damages based on breach of the alleged option to purchase in the lease
agreement were compulsory counterclaims to Griffith's original complaint for
possession and damages. They were not "separable" from the other claims that were
resolved favorably to Hemphill and Davis. So the fact that Griffith prevailed on claims
related to the option to purchase is not enough to establish the favorable termination
element of a malicious prosecution claim.
A counterclaim is compulsory "if it arises out of the transaction or
occurrence that is the subject matter of the opposing party's claim," or the counterclaim
is forever waived.44 A counterclaim arises out of the same transaction or occurrence as
the original claim when there is a "logical relationship" between them; "the claims
share[] the same evidentiary basis," such as "time, space, origin, or motivation,"
"similar testimony . . . the same exhibits, and the same parties"; and "a decision on [the]
40 Freidberg v. Cox, 242 Cal. Rptr. 851, 855 (Cal. App. 1987) (citing
Albertson v. Raboff , 295 P.2d 405, 410 (Cal. 1956)).
41 See id.
42 Crowley v. Katleman, 881 P.2d 1083, 1092-93 (Cal. 1994).
43 Lane, 228 Cal. Rptr. 3d at 607 (noting, ironically, that Crowley's criticism
of Freidberg and Albertson was itself dicta, but concluding that more recent precedent
should control).
44 Alaska R. Civ. P. 13(a).
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counterclaims was . . . necessary to the result in [the original] suit."45 "Failure to assert
46
a compulsory counterclaim bars a party from asserting it in subsequent suits."
When each party's ability to recover depends on the success or failure of
the other's claim, the parties' claims are compulsory to each other.47 In Baker v. Duffus
we held that business partners' counterclaims were compulsory to each other because
each partner's claims ultimately asserted that the other partner was responsible for the
failure of their joint project.48 If one partner was correct that the second partner's breach
of fiduciary duties, conversion, and UTPA violations were responsible for the failure of
the project, the second partner could not be correct that the project failed due to the
negligence and fraud of the first partner.49 Therefore the counterclaims were
compulsory.
When Griffith filed his original complaint for eviction and damages,
Hemphill and Davis's option contract counterclaims were compulsory.50 Griffith
brought the FED suit against Hemphill and Davis when they held over on the property
they had leased from Griffith. Their lease included an option to purchase the property.
45 Domke v. Alyeska Pipeline Serv. Co., 137 P.3d 295, 301-02 (Alaska
2006); see also Wells v. Noey, 399 P.2d 217, 219-20 (Alaska 1965) (holding plaintiff's
claim that tax deed was invalid was compulsory because earlier adverse possession
claim required that tax deed be proven valid). But see Ellingstad v. State, Dep't of Nat.
Res., 979 P.2d 1000, 1010 (Alaska 1999) (no logical relationship between claims that
arose from same land contracts but involved different legal questions and evidence).
See generally RESTATEMENT (SECOND) OF JUDGMENTS § 24(2) (AM. L. INST . 1982).
46 Dickerson v. Goodman , 161 P.3d 1205, 1208 (Alaska 2007).
47 Baker v. Duffus, 441 P.3d 432, 436 (Alaska 2019).
48 Id. at 437.
49 Id. at 436-37.
50 "Whether counterclaims are compulsory is a question of law." Id. at 436.
See also id. at 435 ("Interpreting the Alaska Civil Rules 'presents a question of law that
we review de novo.' " (quoting Ellingstad, 979 P.2d at 1004)).
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Griffith had no right to evict Hemphill and Davis from the property if they properly
exercised their right to purchase it. Hemphill and Davis's counterclaims based on the
option to purchase concerned the same contract, parties, and facts. As in Baker, in
which the parties' claims revolved around fault for the failure of a business project, the
parties' claims at issue here also revolved around a single legal issue - the right to
possession of the property. So Hemphill and Davis's claims were compulsory, and they
51
had no choice but to bring the claims or forfeit them entirely.
These claims were therefore not "separable" from the rest of the
possession and damages claims, which did not terminate favorably to Griffith. So
Griffith cannot show favorable termination of the prior proceeding even under a rule
that allows separable claims to serve as the basis for a subsequent claim of malicious
prosecution. We therefore affirm the superior court's dismissal of the malicious
prosecution claim.
D. It Was Not Error To Dismiss Griffith's Abuse Of Process Claim
Because He Did Not Allege An Ulterior Purpose Independent From
The Process.
"Abuse of process differs from malicious prosecution in that the [tortious
conduct] is not commencing an action or causing process to issue without
justification." 52 Rather, abuse of process is misusing or misapplying an otherwise
justifiable process "for an end other than that which [the process] was designed to
53
accomplish."
To state a claim for abuse of process, a plaintiff must show an "ulterior
purpose independent from the process" and "a willful act in the use of the process not
51 See id. at 436-37 (counterclaims were compulsory because proving them
would defeat initial suit).
52 PROSSER AND KEETON, supra note 35, § 121, at 897.
53 Id.
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proper in the regular conduct of the proceeding."54 Griffith's complaint in this case
alleged that Hemphill, Davis, and JDO had "multiple ulterior purposes" and engaged in
willful acts "not proper in the regular conduct of the proceeding."
The superior court dismissed Griffith's abuse of process claim, concluding
that Griffith's allegations failed to establish the second element of the tort: a "willful
act . . . not proper in the regular conduct of the proceeding."55 The superior court
reasoned that the "willful acts" alleged by Griffith were normal acts of litigation that
cannot, on their own, establish an abuse of process claim. Griffith challenges this
conclusion on appeal. We do not reach this point because Griffith's complaint fails to
allege the first element of the tort: an "ulterior purpose independent from the
56
process."
To state a claim for abuse of process, the plaintiff must allege "a purpose
for which [the process] was not designed."57 "The required motive in an abuse of
process claim is to put pressure on the person who is wrongfully sued to perform or to
refrain from performing an action unrelated to the process."58 An example of an
54 Greywolf v. Carroll, 151 P.3d 1234, 1243 (Alaska 2007); see also
PROSSER AND KEETON, supra note 35, § 121, at 898.
55 Greywolf, 151 P.3d at 1243.
56 Id.
57 Cornelison v. TIG Ins., 376 P.3d 1255, 1268 (Alaska 2016) (quoting
Greywolf, 151 P.3d at 1243); see also RESTATEMENT (SECOND) OF TORTS § 682 cmt. b
(AM. L. INST . 1977) ("[T]here is no action for abuse of process when the process is used
for the purpose for which it is intended, but there is an incidental motive of spite or an
ulterior purpose of benefit to the defendant.").
58 Cornelison, 376 P.3d at 1268.
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"ulterior purpose" is "to extort the plaintiff and force him to take some action by the
use of the process as a threat."59
By contrast, use of legal process to accomplish the aims for which it was
designed is not an "ulterior purpose," even if the party initiating the process is motivated
by personal gain or spite.60 For example, in Cornelison v. TIG Insurance, a workers'
compensation insurer petitioned the Alaska Workers' Compensation Board to terminate
61
the benefits of an employee who was injured at work and found to be totally disabled.
The worker sued the insurance company for abuse of process. The worker had alleged
that the insurer "wanted to terminate [the worker's] benefits because the benefits were
expensive, not because [the insurer] thought [the worker] was in fact no longer
disabled."62 We affirmed dismissal of the claim because no "ulterior purpose" was
alleged: regardless of whether the insurer was motivated by the merits of its claim or
by its bottom line, the insurer used the "appropriate process" to terminate the worker's
63
benefits.
59 Sands v. Living Word Fellowship, 34 P.3d 955, 961 (Alaska 2001); see
also DeNardo v. Cutler , 167 P.3d 674, 678 (Alaska 2007) ("The ulterior purpose
'usually takes the form of coercion to obtain a collateral advantage, not properly
involved in the proceeding itself, such as the surrender of property or the payment of
money, but the use of the process as a threat or a club.' " (quoting PROSSER AND
KEETON, supra note 35, § 121, at 898)).
60 RESTATEMENT (SECOND) OF TORTS, § 682 cmt. b (AM. L. INST . 1977)
("[T]here is no action for abuse of process when the process is used for the purpose for
which it is intended, but there is an incidental motive of spite or an ulterior purpose of
benefit to the defendant.").
61 Cornelison, 376 P.3d at 1262-63.
62 Id. at 1268.
63 Id. See also Caudle v. Mendel, 994 P.2d 372, 373, 376 (Alaska 1999)
(holding complaint alleging that attorney representing wife in divorce proceeding relied
on baseless allegation of domestic violence to evict husband from marital home and to
obtain attorney's fees from wife's family failed to state abuse of process claim because
neither aim was "illegitimate in the sense required by the abuse of process tort").
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Like the worker in Cornelison, Griffith failed to allege an ulterior purpose
that can support an abuse of process claim. Griffith alleged that Hemphill, Davis, and
JDO had ulterior purposes for litigating their counterclaims against him in the original
action, "including, but not limited to, intentionally delaying the F.E.D. while looking
for other properties to lease and their written intention to cause [Griffith] 'substantial
damages'[sic]." In other words, Griffith alleged that Hemphill, Davis, and JDO pursued
their counterclaims against him to hinder and delay his attempt to evict them. But
attempting to delay or defeat an eviction is a proper purpose for bringing counterclaims
asserting a right to possession of the property in question. The right to possession is at
the heart of FED proceedings.64 These counterclaims alleging a right to possession
based on a contractual option to purchase the property were an "appropriate process"
for contesting Griffith's right to evict them from the property.
Because Griffith failed to allege an "ulterior purpose" sufficient to state a
claim for abuse of process, we affirm the superior court's dismissal of that claim.
CONCLUSION
We AFFIRM the superior court's grant of Hemphill, Davis, and JDO's
motion to dismiss.
64 See, e.g., Vinson v. Hamilton, 854 P.2d 733, 737-738 (Alaska 1993)
(indicating that even in FED action that involves tenant counterclaims for money
damages "the central issue of the case is still possession"); Chilton- Wren v. Olds, 1 P.3d
693, 698 (Alaska 2000) ("FED hearings exist to protect a landlord's right to possession
and to prevent the use of self-help.").
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