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RENDERED: July 7, 2006; 10:00 A.M. NOT TO BE PUBLISHED

C ommonwealth O f K entucky C ourt O f A ppeals
NO. 2005-CA-001254-MR

LINDA S. PRATHER

APPELLANT

APPEAL FROM MADISON CIRCUIT COURT HONORABLE WILLIAM W. TRUDE, JR. ACTION NOS. 02-CI-00391 & 04-CI-00995

PROVIDIAN NATIONAL BANK; PROVIDIAN FINANCIAL SERVICES, A/K/A PROVIDIAN FINANCIAL CORP; PROVIDIAN BANCORP; MICHAEL WARREN, ESQ.; DRAYER BOTT, ESQ.; PAUL G. CROUSHORE, ESQ.; GLENN ALGIE, ESQ.; AND WELTMAN, WEINBERG & REIS CO., LPA

APPELLEES

OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING ** ** ** ** ** BEFORE: BARBER AND KNOPF,1 JUDGES; EMBERTON, SENIOR JUDGE. Linda S. Prather appeals from an order of the

KNOPF, JUDGE:

Madison Circuit Court dismissing her claims for abuse of process, wrongful use of civil proceedings, fraud, defamation
1

This opinion was completed and concurred in prior to Judge William L. Knopf's retirement effective June 30, 2006. Release of the opinion was delayed by administrative handling.

and intentional infliction of emotional distress against Providian National Bank (Providian) and their prior attorneys, the law firm of Weltman, Weinberg & Reis Co., LPA (Weltman). We

agree with Prather that she pleaded sufficient facts to support a cause of action against Providian for wrongful use of civil proceedings. However, we conclude that the trial court properly Hence, we affirm in part, reverse

dismissed the other counts.

in part and remand for further proceedings. The facts of this action are rather complex and involve matters litigated in three related actions in three different courts. For purposes of this appeal, the following On May 18, 1999, Providian filed a civil

facts are relevant:

action in the Madison District Court, seeking to recover a credit-card debt which it alleged that Prather owed.2 Prather

disputed the debt alleging that the credit-card statements were withheld and, when they were provided, were fraudulently altered and did not reflect accurate information, and that the interest charges and fees were improperly calculated. In November 2001,

Prather filed counterclaims against Providian and its attorneys, Weltman, alleging fraud and breach of contract. Following

filing of Prather's counterclaims, the matter was transferred to Madison Circuit Court.3 During the course of the litigation, a

2

Action No. 99-C--00323. Action No. 02-CI-00391.

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discovery dispute arose between the parties concerning proof of Providian's ownership of the credit-card account. Providian

failed to provide such proof as ordered by the court, and on August 25, 2003, the trial court entered an order dismissing with prejudice Providian's claim against Prather. Around the same time, Prather attempted to file an amended counterclaim against Providian and Weltman, asserting additional claims for fraud, wrongful use of civil proceedings, defamation, and unlawful debt collection practices. The trial

court denied the motion to amend, taking the position that the additional claims were more appropriately addressed in a separate action. Thereafter, in August of 2004, Prather filed a

new complaint4 against Providian and Weltman and the several individually named attorneys in the Weltman firm, reasserting her prior causes of action and adding additional counts alleging violation of the Kentucky Consumer Protection Act,5 malicious prosecution, abuse of process, wrongful use of civil proceedings, defamation, and intentional infliction of emotional distress. Later in 2004, Providian and Weltman had the 2004

action removed to the United States District Court for the

4

Action No. 04-CI-00995. KRS 367.110 et seq.

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Eastern District of Kentucky.6

However, the federal court

determined that removal of Prather's state-law claims was not warranted, and the court ordered those claims remanded back to the Madison Circuit Court. Upon remand, the trial court ordered

the 2004 action consolidated with Prather's 2002 counterclaims. Providian and Weltman filed separate motions to dismiss. In an order entered on April 14, 2005, the trial court

dismissed the individually named attorneys, and noting the agreement of the parties, also dismissed Prather's Consumer Protection Act claim. On May 18, 2005, the trial court

dismissed all of Prather's claims against Providian and Weltman except the breach of contract claim. The trial court designated

its order dismissing as final and appealable on June 6, 2005, and Prather now appeals. Prather's breach-of-contract claims

remain pending before the trial court.7 In the various orders, the trial court did not set out its reasons for dismissing Prather's claims. Consequently, we

shall presume that the trial court based its decisions on the grounds asserted in Providian's and Weltman's motions. While

this matter was removed to the Federal District Court, Providian and Weltman filed motions to dismiss Prather's claims pursuant to F.R.Civ.Pro 12(b)(6).
6

The federal court did not rule on

Civil Action No. 04-432-JBC. See CR 54.02.

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these motions, and Providian and Weltman renewed their motions following remand to the Madison Circuit Court pursuant to CR 12.02(f). Prather contends that the motions should have been

treated as motions for summary judgment pursuant to CR 56. However, there is no indication in the record that the trial court considered matters outside of the pleadings. Consequently, the trial court properly treated the matter as a motion to dismiss for failure to state a claim. A motion to dismiss should only be granted if "it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim".8 When ruling on the motion, the allegations in "the pleadings should be liberally construed in a light most favorable to the plaintiff and all allegations taken in the complaint to be true."9 In making this decision, the trial court is not required Therefore, the question is

to make any factual findings.10

purely a matter of law,11 and the trial court's decision will be reviewed de novo.12

8

Pari-Mutuel Clerks' Union v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977). Gall v. Scroggy, 725 S.W.2d 867, 868 (Ky.App. 1987). James v. Wilson, 95 S.W.3d 875, 884 (Ky.App. 2002). Id. Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719 (Ky. 2000).

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11

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Prather first argues that the trial court erred by dismissing her claims alleging malicious prosecution, wrongful use of civil proceedings or abuse of process. As to the first

two claims, where the underlying action is civil, the tort properly is called "wrongful use of civil proceedings."13 term "malicious prosecution" is reserved for the wrongful prosecution of criminal cases. Abuse of process is the irregular or wrongful use of a judicial proceeding. The essential elements of the tort The

include: (1) an ulterior purpose; and (2) a willful act in the use of process not proper in the regular conduct of the proceeding.14 The six (6) elements necessary to establish a

claim for wrongful use of civil proceedings are: (1) the institution or continuation of original judicial proceedings; (2) by, or at the instance of the plaintiff; (3) the termination of such proceedings in the defendant's favor; (4) malice in the institution of the proceedings; (5) lack of probable cause for the proceeding; and (6) the suffering of damage as a result.15 The distinction between abuse of process and wrongful use of civil proceedings is not always clear.
13

Both torts

Prewitt v. Sexton, 777 S.W.2d 891, 893-894 (Ky. 1989). See also, Mapother and Mapother, P.S.C. v. Douglas, 750 S.W.2d 430, 431 (Ky. 1988).
14

Simpson v. Laytart, 962 S.W.2d 392, 394 (Ky. 1998), and Bonnie Braes Farms, Inc. v. Robinson, 598 S.W.2d 765, 766 (Ky.App. 1980).
15

Raine v. Draisin, 621 S.W.2d 895, 899 (Ky. 1981).

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protect individuals against the misuse of civil actions to cause harm.16 However, the gist of the first tort is the abuse of

otherwise proper judicial process as a means to secure a collateral advantage over another party.17 Some definite act or

threat not authorized by the process, or aimed at an objective not legitimate in the use of the process is required and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion even though with bad intentions.18 In contrast, malice and the absence of probable cause are essential elements of wrongful use of civil proceedings. Mapother & Mapother, P.S.C. v. Douglas,19 the Supreme Court of Kentucky included improper purpose as an element of the tort of wrongful use of civil proceedings. This would seem to conflate In

the elements of wrongful use of civil proceedings and abuse of process. But in Prewitt v. Sexton,20 the Supreme Court explained

that the term "improper purpose", as used in wrongful use of civil proceedings, substitutes for the "malice" element used in
16

W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS

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