from the District Court of Cass County, East Central Judicial
District, the Honorable Steven L. Marquart, Judge.
J. Hummel (argued), Clifton G. Rodenburg (on brief), and Eeva
M. Wendorf (on brief), Fargo, ND, for plaintiff and
Mikhail Usher, self-represented and as pro hac vice for Kathy
Sira, aka Kathy Jimenez, and Usher Law Group, P.C., Brooklyn,
NY, and William C. Peacock, Broadchannel, NY, for defendants
and appellees; submitted on brief.
The Rodenburg Law Firm appeals from a judgment dismissing its
action against Kathy Sira, Mikhail Usher, and the Usher Law
Group, P.C., for malicious prosecution, abuse of process, and
exemplary damages. We conclude the district court did not
clearly err in dismissing Rodenburg's claims for abuse of
process and malicious prosecution. We affirm the judgment.
Sira initiated a Fair Debt Collection Practices Act
("FDCPA") action against Rodenburg in New Jersey
federal court, alleging Rodenburg, a North Dakota law firm,
engaged in harassment and abusive debt collection tactics and
violated 15 U.S.C. § 1692 et. seq. Sira's action was
ultimately dismissed by agreement of the parties. After the
dismissal of Sira's action, Rodenburg sued Sira and her
attorney, Usher and the Usher Law Group, in this action,
alleging malicious prosecution. Rodenburg subsequently
amended its complaint to include claims for abuse of process
and exemplary damages.
After a bench trial, the district court dismissed
Rodenburg's claims . The court found Sira lived in New
Jersey, her allegations in the federal FDCPA action stated a
claim for relief, and her allegations were based on
reasonable trustworthy information made after a reasonable
inquiry under the circumstances. The court found Sira's
lawsuit was not for an improper purpose and was not an abuse
of process. The court also found her lawsuit was not a
malicious prosecution because there was probable cause for
the action and there was no malice.
Rodenburg argues the district court misapplied the law in
determining Sira and Usher had probable cause to bring the
FDCPA action against Rodenburg in New Jersey federal court.
Rodenburg also argues that the court misapplied the law in
determining Usher and the Usher Law Group satisfied their
obligation to make a reasonable inquiry into the validity of
the claims before bringing the FDCPA action. Rodenburg
further argues the court made clearly erroneous findings
regarding Sira's credibility, the court misapplied the
law regarding probable cause and malice for a malicious
prosecution claim, and the court misapplied the law regarding
abuse of process.
We initially consider Rodenburg's challenge to the
district court's dismissal of the abuse of process claim.
An "[a]buse of process occurs when a person uses a legal
process, whether criminal or civil, against another primarily
to accomplish a purpose for which it is not designed."
Jordet v. Jordet, 2015 ND 76, ¶ 20, 861 N.W.2d
147. The two essential elements of an abuse-of-process claim
are: (1) an ulterior purpose; and (2) a willful act in the
use of the process not proper in the regular conduct of the
proceeding. Id. "In cases involving
abuse-of-process claims, our decisions require some overt act
akin to extortion or attempting to obtain a collateral
advantage beyond the issuance of the formal use of
process." Riemers v. Hill, 2016 ND 137, ¶
22, 881 N.W.2d 624 (citing Jordet, at ¶ 20;
Wachter v. Gratech Co., Ltd., 2000 ND 62,
¶¶ 33-34, 608 N.W.2d 279; Kummer v. City of
Fargo, 516 N.W.2d 294, 297-99 (N.D. 1994); Volk v.
Wisconsin Mortg. Assurance Co., 474 N.W.2d 40, 43-44
(N.D. 1991); Stoner v. Nash Finch, Inc., 446 N.W.2d
747, 751-52 (N.D. 1989)).
A district court's findings on the elements of a claim
for an abuse of process are questions of fact.
Riemers, 2016 ND 137, ¶ 24, 881 N.W.2d 624. A
question of fact will not be reversed on appeal unless it is
clearly erroneous under N.D.R.Civ.P. 52(a). Schindler v.
Wageman, 2019 ND 41, ¶ 8, 923 N.W.2d 507. A finding
of fact is clearly erroneous if it is induced by an erroneous
view of the law, if there ...