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STATE OF MICHIGAN
COURT OF APPEALS


JAY A. BIELFIELD, Plaintiff-Appellant/ Cross-Appellee, v STEVEN BLOOM, Defendant-Appellee/ Cross-Appellant.

UNPUBLISHED June 13, 1997

No. 192788 Oakland Circuit Court LC No. 94-473294-NZ

Before: McDonald, P.J., and Reilly and O'Connell, JJ. PER CURIAM. In this action for abuse of process, plaintiff appeals as of right the order of the trial court granting defendant's motion for summary disposition pursuant to MCR 2.116(C)(10). Additionally, defendant has filed a cross-appeal in this matter, arguing that the trial court erred in failing to grant his motion for summary disposition on the additional grounds of MCR 2.116(C)(7) because res judicata barred the instant action, and further requesting us to assess sanctions against plaintiff for vexatious appeal. We affirm but refuse defendant's request for sanctions. The facts are not greatly at issue on appeal. At the heart of this case is a bitter family feud about money. Briefly, the underlying dispute ensued when plaintiff's father, a wealthy Detroit-area businessman, lay in a coma during his final illness. While the rest of his family was at the hospital attending to plaintiff's father, plaintiff allegedly took the opportunity to forge his father's signature and obtain entry to his safety deposit box, remove approximately $25,000 in municipal bonds, cash them, and deposit the proceeds into plaintiff's personal account. Additionally, plaintiff is alleged to have engaged in a course of significant self-dealing as to certain family business partnerships and the administration of his late father's estate. As a result of these alleged misdeeds and other disputes, the parties and other family members filed several lawsuits against each other. In addition, defendant filed a request for investigation of plaintiff, an attorney, with the Attorney Grievance Commission (AGC). Defendant filed another complaint against plaintiff, also a real estate

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agent, with the Department of Commerce's Bureau of Occupational and Professional Regulation. As a result, these administrative agencies instituted investigations of plaintiff. One key lawsuit was settled in January 1993 pursuant to acceptance of a mediation evaluation. Like this case, that suit also involved plaintiff's claim that defendant had abused process. After that settlement, one other lawsuit initiated by defendant (a contract claim) remained pending. On several occasions throughout 1993, defendant's attorney contacted plaintiff's lawyer and expressed his client's desire to drop his AGC and Department of Commerce complaints against plaintiff in return for plaintiff's agreement to settle the remaining lawsuit. Plaintiff refused. Defendant continued during the parties' face-to-face negotiations to offer to drop the administrative proceedings in exchange for a settlement. Plaintiff remained adamant in his refusal to settle. In light of plaintiff's refusal to settle the remaining court case, defendant filed an amendment to his AGC complaint against plaintiff, alleging that plaintiff was attempting to "extort" money from defendant and his insurance carrier by filing a claim against him for emotional distress and abuse of process, based on defendant's alleged threats made during the settlement negotiations of 1993. Defendant also supplied the Department of Commerce with additional evidence of plaintiff's alleged misdeeds, which caused that agency to reopen its investigation of plaintiff. Plaintiff's claim for abuse of process is predicated on defendant's attempt to use the administrative proceedings as leverage to force plaintiff to enter into a settlement and defendant's filing of further allegations with the AGC and the Department of Commerce once plaintiff refused to capitulate to his settlement offer. The trial court granted defendant's motion under MCR 2.116(C)(10) because plaintiff failed to submit evidence to establish that defendant misused the administrative proceedings in any way, thus failing to raise a triable issue of fact regarding defendant's liability for abuse of process. This appeal and cross-appeal followed. Plaintiff argues that the trial court erred in granting defendant's motion for summary disposition as to his claim for abuse of process, because he succeeded in establishing that defendant harbored an ulterior motive in filing grievances against him and that defendant engaged in an improper use of process to advance his ulterior motive. MCR 2.116(C)(10) permits summary disposition when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." This Court considers the factual support for the claim, giving the benefit of any reasonable doubt to the nonmoving party to determine whether a record might be developed which might leave open an issue upon which reasonable minds could differ. Jackhill Oil Co v Powell Production, Inc, 210 Mich App 114, 117; 532 NW2d 866 (1995). When deciding a motion for summary disposition, a court must consider the pleadings, depositions, affidavits, admissions and other documentary evidence available to it. Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). The grant of summary disposition pursuant to MCR 2.116(C)(10) is reviewed de novo. Jackhill, supra. -2

To establish the tort of abuse of process, a plaintiff must plead and prove (1) an ulterior purpose and (2) an act in the use of process which is improper in the regular prosecution of the proceeding. Friedman v Dozorc, 412 Mich 1, 30; 312 NW2d 585 (1981). Courts of this state have adopted the following language from 3 Restatement Torts,

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