Martinez v. Whaley ( 2011 )

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     8          Plaintiff-Appellee/Cross-Appellant,
     9 v.                                                           NO. 30,036
    11 E. WHALEY, individually, and
    12 HORSE FLY, LC,
    13          Defendants-Appellants/Cross-Appellees.
    15 Eugenio Mathis, District Judge
    16 The Herrera Firm, P.C.
    17 Samuel M. Herrera
    18 Taos, NM
    19 for Appellee
    20 David Henderson
    21 Santa Fe, NM
    22 for Appellants
    23                                 MEMORANDUM OPINION
    24 FRY, Judge.
     1        Plaintiff Erminio Martinez filed a lawsuit for defamation and prima facie tort
     2 against Defendants Bill Whaley and Horse Fly LC for their publication of an online
     3 article criticizing Plaintiff’s candidacy for the state legislature. In response to
     4 Plaintiff’s lawsuit, Defendants filed a counterclaim for malicious abuse of process.
     5 The district court dismissed Plaintiff’s lawsuit as well as Defendants’ counterclaim.
     6 We reverse and remand for further proceedings.
     8        Defendants published an article under the headline “Martinez and Taos News
     9 Flayed” in an online edition of Horse Fly, a local publication in Taos, New Mexico.
    10 The article, written by Defendant Whaley, criticized the decision of another local
    11 publication, The Taos News, to endorse Plaintiff as its choice for a vacancy in the
    12 state legislature. According to the article, Plaintiff was a retired magistrate court
    13 judge and a former bail bondsman. At issue in this appeal are two statements from the
    14 article, which read as follows:
    15        [Plaintiff] hustle[s] jailed inmates, who are down on their luck and
    16        take[s] advantage of their vulnerability to collect high fees for himself[.]
    17        ....
    18        During the testimony and according to documents in Horse Fly’s
    19        possession, [Plaintiff] apparently and allegedly engaged in the forgery
    20        of court records.
     1        Plaintiff filed a complaint against Defendants for defamation and prima facie
     2 tort arising out of the publication of the above two statements. The complaint alleged
     3 five counts.     The first two counts addressed the statement that Plaintiff had
     4 “apparently and allegedly engaged in the forgery of court records” (the forgery
     5 statement). In Count I, Plaintiff alleged that this statement was defamatory per se
     6 because it was a factual assertion by Defendants that Plaintiff had committed a crime.
     7 As an alternative, in Count II, Plaintiff alleged that the forgery statement constituted
     8 defamation by implication. The next two counts addressed the statement that Plaintiff
     9 “hustle[s] jailed inmates . . . and take[s] advantage of their vulnerability to collect high
    10 fees for himself” (the hustling statement). In Count III, Plaintiff claimed that this
    11 statement constituted defamation per se because it also imputed criminal activity to
    12 him. Alternatively, in Count IV, Plaintiff alleged that the statement constituted
    13 defamation by implication. Finally, in Count V, Plaintiff claimed that both statements
    14 gave rise to a prima facie tort.
    15        Defendants filed a motion to dismiss Plaintiff’s complaint for failure to state a
    16 claim, pursuant to Rule 1-012(B)(6) NMRA. Defendants also filed an answer to
    17 Plaintiff’s complaint. In their answer, Defendants asserted a counterclaim for
    18 malicious abuse of process, arguing that Plaintiff had initiated the judicial proceedings
    19 in violation of Rule 1-011 NMRA.
     1        After a hearing on Defendants’ motion to dismiss, the district court granted the
     2 motion and dismissed Plaintiff’s complaint in its entirety. The court specifically held
     3 that: (1) the hustling statement did “not constitute defamation because a reasonable
     4 person would have considered the phrase an opinion”; (2) the forgery statement did
     5 not constitute defamation when “read in context as a reasonable person would have
     6 understood the author, with the written qualifications”; and (3) the “First
     7 Amendment[] restrictions for false statements, in defamation actions, appl[y] to prima
     8 facie tort.”
     9        Plaintiff filed two motions to dismiss Defendants’ counterclaim for malicious
    10 abuse of process. The district court dismissed Defendant’s counterclaim after it
    11 determined that Plaintiff’s complaint “was filed with probable cause” and without an
    12 “improper motive.” This order served as the final order for purposes of appeal. This
    13 appeal followed. Both Plaintiff and Defendants appeal the district court’s dismissal
    14 of their respective claims.
    16        We first address the dismissal of Plaintiff’s complaint for defamation and prima
    17 facie tort, and then move on to address the dismissal of Defendant’s counterclaim for
    18 malicious abuse of process.
    19 Standard of Review
     1        We apply de novo review to a district court’s decision to dismiss a case for
     2 failure to state a claim under Rule 1-012(B)(6). Delfino v. Griffo, 2011-NMSC-015,
     3 ¶ 9, 
    150 N.M. 97
    257 P.3d 917
    . “A motion to dismiss for failure to state a claim upon
     4 which relief can be granted tests the legal sufficiency of the complaint.” Saenz v.
     5 Morris, 
    106 N.M. 530
    , 531, 
    746 P.2d 159
    , 160 (Ct. App. 1987). We therefore “accept
     6 all well-pleaded factual allegations in the complaint as true and resolve all doubts in
     7 favor of the sufficiency of complaint.” Delfino, 2011-NMSC-015, ¶ 9. “Dismissal
     8 on 12(B)(6) grounds is appropriate only if [the plaintiff is] not entitled to recover
     9 under any theory of the facts alleged in their complaint.” Id. ¶ 12 (alteration in
    10 original) (internal quotation marks and citation omitted).
    11        We also apply de novo review to the district court’s dismissal of Defendants’
    12 counterclaim for malicious abuse of process. See Durham v. Guest, 2009-NMSC-007,
    13 ¶ 16, 
    145 N.M. 694
    204 P.3d 19
    14 Dismissal of Plaintiff’s Complaint for Defamation and Prima Facie Tort
    15 A.     Defamation Claims
    16        We first address the dismissal of the first four counts of Plaintiff’s complaint
    17 that alleged defamation per se or, in the alternative, defamation by implication. We
    18 ignore these purported distinctions and address the four counts as one claim of
    19 defamation. See UJI 13-1002 NMRA, comm. commentary (explaining that the jury
     1 instructions for defamation abolish all distinctions between the “per se” and “per
     2 quod” varieties of defamation because they “no longer make sense”); see also Moore
     3 v. Sun Publ’g Corp., 
    118 N.M. 375
    , 381, 
    881 P.2d 735
    , 741 (Ct. App. 1994) (treating
     4 defamation by implication in the same manner as libel per quod). In New Mexico,
     5 defamation is defined as “a wrongful and unprivileged injury to a person’s
     6 reputation.” UJI 13-1001 NMRA; see Fikes v. Furst, 2003-NMSC-033, ¶ 12, 134
    7 N.M. 602
    81 P.3d 545
     (“The primary basis of an action for libel or defamation is
     8 contained in the damage that results from the destruction of or harm to that most
     9 personal and prized acquisition, one’s reputation.” (internal quotation marks and
    10 citation omitted)). According to the framework of our Uniform Jury Instructions, the
    11 tort of defamation has nine elements, which the plaintiff has the burden of proving:
    12        (1) [t]he defendant published the communication; and (2) [t]he
    13        communication contains a statement of fact; and (3) [t]he communication
    14        was concerning the plaintiff; and (4) [t]he statement of fact was false;
    15        and (5) [t]he communication was defamatory; and (6) [t]he person[s]
    16        receiving the communication understood it to be defamatory; and (7)
    17        [t]he defendant acted with malice; and (8) [t]he communication caused
    18        actual injury to the plaintiff’s reputation; and (9) [t]he defendant abused
    19        its privilege to publish the communication.
    20 See UJI 13-1002(B).
    21        Under the applicable standard of review, we review Plaintiff’s complaint to
    22 determine whether Plaintiff has stated a claim for defamation, keeping in mind that
    23 we must accept as true all well-pleaded factual allegations in order to determine
     1 whether Plaintiff may prevail under any theory of the facts alleged. Plaintiff alleged
     2 that: (1) Defendants published the hustling and forgery statements in the article to
     3 make the factual assertion that Plaintiff had committed criminal acts; (2) both
     4 statements contained a statement of fact which was false and defamatory; (3)
     5 Defendants acted with malice, intentionally, or with reckless disregard for the truth;
     6 and (4) the publication of the statements caused actual injury to Plaintiff’s reputation.
     7 The underlying factual allegations consisted primarily of the online article and past
     8 encounters between Plaintiff and Defendant Whaley.
     9        We conclude that Plaintiff’s complaint has sufficiently stated claims for
    10 defamation arising out of the publication of the hustling and forgery statements. The
    11 district court’s dismissal of the complaint apparently relied on its determination that,
    12 as a matter of law, Plaintiff was not entitled to relief under any theory of the facts
    13 alleged. The district court’s dismissal on this basis was erroneous.
    14        With regard to the defamation counts that arose from the publication of the
    15 forgery statement, the court determined that a reasonable person would not have
    16 understood the forgery statement to be defamatory in the context it was made and
    17 given the “qualifications” that were used. As stated earlier, the forgery statement was
    18 the italicized language below:
    19        During the testimony and according to documents in [Defendant] Horse
    20        Fly’s possession, [Plaintiff] apparently and allegedly engaged in the
     1        forgery of court records—he was a poor speller like The Taos
     2        News—and misrepresented orders from the Administrative Office of the
     3        Courts (AOC); and even claimed the AG was representing him when it
     4        wasn’t.
     5 By “qualifications,” the district court’s order appeared to reference the terms
     6 “apparently and allegedly” above. It appears that the district court determined either
     7 that the statement was opinion rather than fact or that the recipient of the
     8 communication did not understand it to be defamatory.            The district court’s
     9 determination on either ground was improper in the context of a Rule 1-012(B)(6)
    10 motion to dismiss.
    11        “[C]ommon law defamation will lie for false statements of fact but not for those
    12 statements that are but fair opinion.” Moore, 118 N.M. at 382, 881 P.2d at 742.
    13 Although a court may determine that a statement is unambiguously opinion as a matter
    14 of law, see Marchiondo v. Brown, 
    98 N.M. 394
    , 404, 
    649 P.2d 462
    , 472 (1982), if an
    15 opinion “implies that it is based upon the existence of undisclosed facts[, it] is the
    16 same as a statement of fact.”       UJI 13-1004 NMRA.         Here, the statement in
    17 question—that Plaintiff “apparently and allegedly engaged in the forgery of court
    18 records”—rested on the stated premise that the allegation came from “documents in
    19 [Defendant] Horse Fly’s possession.”       Therefore, we conclude that, even if the
    20 statement regarding alleged forgery was a statement of opinion, the reference to
    21 documents implied the existence of undisclosed facts. See UJI 13-1004 Use Note
     1 (explaining that when a court “determines that the alleged defamatory statement is or
     2 may be a statement of opinion, but further determines that the statement, if opinion,
     3 nonetheless may imply the existence of undisclosed facts,” the question is one for the
     4 jury). Under these circumstances, “there is a triable issue of fact for the jury.”
     5 Marchiondo, 98 N.M. at 404, 649 P.2d at 472 (internal quotation marks and citation
     6 omitted).
     7        The same is true with respect to the question of defamatory meaning. When “an
     8 expression of opinion is capable of bearing a defamatory meaning because it may
     9 reasonably be understood to imply the assertion of undisclosed facts that justify the
    10 expressed opinion,” it is “the function of the jury to determine whether [a defamatory]
    11 meaning was attributed to it by the recipient of the communication.” UJI 13-1004 Use
    12 Note (citation omitted). While it is possible that Defendants, through discovery, will
    13 at some point be able to present enough evidence to allow the district court to rule on
    14 these issues as a matter of law in the context of a summary judgment motion, at this
    15 stage of the proceedings, Plaintiff has stated a claim sufficient to withstand Rule 1-
    16 012(B)(6) dismissal. See Fikes, 2003-NMSC-033, ¶¶ 17-19 (stating that summary
    17 judgment was granted in favor of the defendant where the defendant presented
    18 evidence, including deposition testimony, to show that the recipients did not attribute
    19 a defamatory meaning to the statements made by the defendant).
     1        We also reverse the dismissal of Counts III and IV of Plaintiff’s complaint,
     2 which concerned the hustling statement. These counts were based on Defendant’s
     3 statement that “[Plaintiff] hustle[s] jailed inmates, who are down on their luck and
     4 take[s] advantage of their vulnerability to collect high fees for himself.” The district
     5 court determined that the hustling statement did “not constitute defamation because
     6 a reasonable person would have considered the phrase an opinion” and not a statement
     7 of fact.
     8        As we have noted, the question of whether a statement is opinion or fact “is one
     9 of law for the judge only when the statement unambiguously constitutes either fact or
    10 opinion.” Kutz v. Indep. Publ’g Co., 
    97 N.M. 243
    , 244, 
    638 P.2d 1088
    , 1089 (Ct.
    11 Ohio App. 1981
    ) (internal quotation marks and citation omitted). Where, however, the
    12 statement “could have been understood by the average reader in either sense, the issue
    13 must be left to the jury’s determination.” Id. (internal quotation marks and citation
    14 omitted).
    15        In the proceedings below, the parties presented two different interpretations of
    16 the word “hustle.” Plaintiff argued that the word, in the context it was used, imputed
    17 to him the crime of obtaining money by fraud or deception. Defendants maintained
    18 that the word meant seeking out clients to make a profit. The district court considered
    19 these arguments and ruled that the hustling statement was clearly an opinion. On
     1 appeal, Plaintiff argues that there is a disputed issue of fact with regard to the meaning
     2 of the word “hustle” and, thus, it was inappropriate for the district court to determine
     3 as a matter of law that the hustling statement constituted an opinion. We agree. If
     4 Plaintiff is able to prove that the average reader understood the word to have a
     5 criminal connotation, then he could be entitled to recover. Therefore, dismissal under
     6 Rule 1-012(B)(6) was improper. See Delfino, 2011-NMSC-015, ¶ 12 (stating that
     7 “[d]ismissal on 12(B)(6) grounds is appropriate only if [the plaintiff is] not entitled
     8 to recover under any theory of the facts alleged in their complaint” (alteration in
     9 original) (internal quotation marks and citation omitted)).
    10 B.     Prima Facie Tort Claim
    11        The district court also dismissed Plaintiff’s claim for prima facie tort arising out
    12 of the publication of the forgery and hustling statements. Based on the somewhat
    13 unclear language of the order, we understand the district court to have determined that
    14 First Amendment protections rendering the two statements non-defamatory also
    15 extended to the prima facie tort claim. At the hearing on Defendants’ motion to
    16 dismiss, the district court relied on Andrews v. Stallings in its decision to dismiss the
    17 prima facie tort claim. 
    119 N.M. 478
    , 493-94, 
    892 P.2d 611
    , 626-27 (Ct. App. 1995)
    18 (discussing the general principle that a prima facie tort claim “should not be permitted
    19 to duplicate, or remedy a defect in, another established cause of action” and on this
     1 basis, dismissing a prima facie tort claim where the claim was “being asserted merely
     2 to circumvent the established defenses to defamation” (internal quotation marks and
     3 citation omitted)).
     4        On appeal, Plaintiff does not direct any specific arguments to the dismissal of
     5 his prima facie tort claim. The closest indication of any argument as to this claim is
     6 found in two headings in Plaintiff’s brief in chief, where he states that dismissal of
     7 Count V (the prima facie tort claim), among other claims, was erroneous because the
     8 forgery and hustling statements are “susceptible to being proven true or false . . . and
     9 thus, are not constitutionally protected.” Aside from the headings, Plaintiff fails to
    10 make any specific argument regarding this claim in his briefing. This Court has no
    11 duty to review an argument that is not adequately developed.                   Headley,
    12 2005-NMCA-045, ¶ 15.
    13        Despite Plaintiff’s failure to make a developed argument on the prima facie tort
    14 claim, we nevertheless reverse the district court’s dismissal of this claim. It is clear
    15 that the district court’s sole basis for dismissing the prima facie tort claim arose from
    16 Defendants’ argument, and the court’s determination, that the two statements were
    17 non-defamatory in nature and, thus, protected by the First Amendment. Once the
    18 court determined that Plaintiff’s defamation claims failed as a matter of law, the
    19 court’s reliance on Andrews further shows that it dismissed the prima facie tort claim
     1 solely because the court believed the claim was being asserted merely to overcome
     2 obstacles in Plaintiff’s suit for defamation. On appeal, however, because we have
     3 determined that the district court erred in dismissing the defamation claims, we also
     4 reverse the district court’s dismissal of the prima facie tort claim. That dismissal was
     5 premised on the district court’s erroneous conclusions of law regarding the defamation
     6 claims. The district court is free to revisit as needed the viability of Plaintiff’s prima
     7 facie tort claim in later proceedings. See Schmitz v. Smentowski, 
    109 N.M. 386
    , 396,
    785 P.2d 726
    , 736 (1990) (stating that if a plaintiff’s proof of the prima facie tort
     9 claim “is susceptible to submission under one of the accepted categories of tort, the
    10 action should be submitted to the jury on that cause and not under prima facie tort”).
    11 Dismissal of Defendants’ Counterclaim for Malicious Abuse of Process
    12        We next consider Defendants’ appeal of the district court’s dismissal of their
    13 counterclaim for malicious abuse of process. This appeal arises from the filing of two
    14 motions to dismiss by Plaintiff subsequent to the dismissal of his defamation and
    15 prima facie tort claims.
    16        At the outset, the parties dispute whether this Court can consider both of
    17 Plaintiff’s motions to dismiss or whether our review is limited solely to Plaintiff’s
    18 second motion to dismiss. Plaintiff contends that the district court only considered
    19 Plaintiff’s second motion and, therefore, that we must limit our review accordingly.
     1 We do not agree. Our review of the proceedings below indicates that the district court
     2 considered both motions. Specifically, we note that at the start of the relevant motions
     3 hearing, the district court stated that it had convened to consider both motions to
     4 dismiss filed by Plaintiff. Plaintiff’s counsel also began his argument at this hearing
     5 by informing the district court that he would address both motions because they had
     6 “merged into each other.” Furthermore, at the conclusion of the hearing, the district
     7 court in its oral ruling from the bench did not indicate that its decision was based
     8 solely on the second motion. Although we recognize that the district court’s written
     9 order of dismissal states that it was issued on the basis of Plaintiff’s second motion to
    10 dismiss, the district court considered arguments raised by the parties on both motions.
    11 Therefore, we see no reason to limit our review to the second motion only.
    12        Plaintiff’s first motion to dismiss appears to have been based on Rule 1-
    13 012(B)(6), although it does not explicitly state as much. The second motion also
    14 failed to state the explicit basis for dismissal, but Plaintiff’s reply to Defendants’
    15 response clarified that he sought dismissal on the basis of both Rule 1-012(B)(6) and
    16 Rule 1-012(C). This lack of clarity in the district court pleadings is similar to the lack
    17 of clarity we have mentioned in connection with the appellate briefs.
    18        The district court’s order of dismissal also failed to state the basis for its
    19 dismissal of the counterclaim. The court’s written order simply stated that it was
     1 dismissing Defendants’ counterclaim with prejudice for the following two reasons: (1)
     2 “Plaintiff’s [c]omplaint was filed with probable cause” and (2) “Plaintiff did not file
     3 the motion with an improper motive.” The district court’s order does not specify
     4 whether the district court’s determination was based on Rule 1-012(B)(6), Rule 1-
     5 012(C), or some other basis. It appears to us that the district court decided as a matter
     6 of law that Plaintiff’s complaint was filed with probable cause and without an
     7 improper motive.
     8        To the extent that the district court reached its decision on Rule 1-012(B)(6)
     9 grounds, the dismissal was improper because Defendants’ counterclaim is sufficient
    10 to state a claim for malicious abuse of process. Our Supreme Court has identified the
    11 elements of the tort of malicious abuse of process as: “(1) the use of process in a
    12 judicial proceeding that would be improper in the regular prosecution or defense of
    13 a claim or charge[,] (2) a primary motive in the use of process to accomplish an
    14 illegitimate end[,] and (3) damages.” Durham, 2009-NMSC-007, ¶ 29. The first
    15 element, an improper use of process, may be shown in one of two ways: “(1) [the]
    16 filing [of] a complaint without probable cause[,] or (2) an irregularity or impropriety
    17 suggesting extortion, delay, or harassment.” Id. (internal quotation marks and citation
    18 omitted).
     1        In this case, Defendants’ counterclaim alleged that Plaintiff initiated judicial
     2 proceedings against Defendants “without probable cause or [with] impropriety
     3 suggesting harassment by (1) knowing that the allegations of defamation would not
     4 pass constitutional muster and (2) inserting extraneous scandalous matters [into the
     5 complaint] regarding [Defendant Whaley’s] son that have no bearing on any issue in
     6 this action in violation of [Rule] 1-011.” The counterclaim further asserted that
     7 Plaintiff’s “actions in bringing th[e] action [for defamation] and abusing process were
     8 malicious, willful, reckless and/or in wanton disregard” and therefore, that Defendants
     9 were entitled to damages. As for the factual allegations underlying the counterclaim,
    10 Defendants elected to incorporate the contents from their answer to Plaintiff’s
    11 complaint, which specifically included their denial of Plaintiff’s allegation that the
    12 forgery and hustling statements were false and that they were made with actual
    13 malice. In sum, Defendants asserted in their counterclaim that Plaintiff initiated his
    14 suit for defamation without probable cause, that he did so with impropriety suggesting
    15 harassment, that he had a malicious or willful motive, and that Defendants were
    16 entitled to damages as a result.
    17        We conclude that Defendants have stated a claim for malicious abuse of process
    18 that is sufficient to withstand dismissal under Rule 1-012(B)(6). See Schmitz, 109
    19 N.M. at 389-90, 785 P.2d at 729-30 (“[N]otice pleading does not require that every
     1 theory be denominated in the pleadings—general allegations of conduct are sufficient,
     2 as long as they show that the party is entitled to relief and the averments are set forth
     3 with sufficient detail so that the parties and the court will have a fair idea of the action
     4 about which the party is complaining and can see the basis for relief.”).
     5        To the extent that the district court reached its decision on Rule 1-012(C)
     6 grounds, dismissal of the counterclaim on this basis was also erroneous. Our courts
     7 have construed a motion for judgment on the pleadings under Rule 1-012(C) as similar
     8 or, in certain circumstances, identical to a motion to dismiss for failure to state a claim
     9 under Rule 1-012(B)(6). See Shovelin v. Cent. N.M. Elec. Coop., Inc., 
    115 N.M. 293
    10 302, 
    850 P.2d 996
    , 1005 (1993). Having already rejected Plaintiff’s motion to dismiss
    11 on Rule 1-012(B)(6) grounds, we also reject the motion to the extent it is based on
    12 Rule 1-012(C).
    13        Although the determination of probable cause for the tort of malicious abuse
    14 of process is a question of law, it is a “rare case in which both facts and inferences are
    15 undisputed.” Fleetwood Retail Corp. of N.M. v. Ledoux, 2007-NMSC-047, ¶ 27, 142
    16 N.M. 150
    164 P.3d 31
    . Our Supreme Court has stated that “while the court decides
    17 what facts amount to probable cause [for the tort of malicious abuse of process], when
    18 the facts or inferences are disputed, the jury must determine what the facts are before
    19 the court can decide the question of law.” Id.; see DeVaney v. Thriftway Mktg. Corp.,
     1 1998-NMSC-001, ¶ 41, 
    124 N.M. 512
    953 P.2d 277
     (“[T]he circumstances
     2 surrounding the filing of the complaint [for the probable cause determination], if in
     3 dispute, must be resolved by a fact-finder.”), overruled on other grounds by Durham,
     4 2009-NMSC-007. In this case, Defendants asserted below and again on appeal that
     5 there are disputed issues of fact concerning the falsity of the statement and whether
     6 the statements were made with actual malice. We agree that these issues were
     7 material to the determination of whether Plaintiff initiated judicial proceedings
     8 without probable cause and therefore precluded the resolution of this issue as a matter
     9 of law. See DeVaney, 1998-NMSC-001, ¶¶ 44-46 (holding that where a defamation
    10 claim had been voluntarily dismissed before evidence could be presented to
    11 demonstrate the falsity of the statements or malice on the part of the defendant, there
    12 were unresolved issues of fact, material to the issue of probable cause, which
    13 precluded this determination as a matter of law). The district court may be in a
    14 position to decide the question of probable cause after the parties have undertaken
    15 discovery and presented the court with evidence in conjunction with a motion for
    16 summary judgment but, at this early stage, the counterclaim states a claim sufficient
    17 to withstand dismissal under either Rule 1-012(B)(6) or Rule 1-012(C).
    1        For the foregoing reasons, we reverse the dismissal of Plaintiff’s claims for
    2 defamation and prima facie tort. We also reverse the dismissal of Defendants’
    3 counterclaim for malicious abuse of process. We remand for further proceedings
    4 consistent with this opinion.
    5        IT IS SO ORDERED.
    7                                        CYNTHIA A. FRY, Judge
    8 WE CONCUR:
    12 MICHAEL E. VIGIL, Judge