David Griffith v. Roger Hemphill, Donald Davis, and JDO Law, PC

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,

Appellant,

v.

ROGER HEMPHILL, DONALD

DAVIS, and JDO LAW, P.C., Appellees.

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Supreme Court No. S-18804 Superior Court No. 3AN-23-04423 CI

O P I N I O N

No. 7761 - April 11, 2025 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.¹The former landlord then sued the tenants and

1 Griffith v. Hemphill, 521 P.3d 584 (Alaska 2022).

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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 purposes of this appeal, to be true.²

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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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.⁴Hemphill 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.⁵Hemphill and Davis later moved to voluntarily dismiss their specific performance counterclaim, and the superior court granted that motion.⁶

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.⁷The 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 enrichment and good faith and fair dealing.⁸

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.⁹We 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.¹¹Hemphill 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 judgment because the court intended to consider material outside the pleadings¹²— 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 underlying litigation.¹³

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."¹⁴Finally, 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 it did consider Griffith's position on those proceedings.¹⁵

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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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]."¹⁸Civil Rule 12(b)(6) dismissals "should be granted only if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief.' "¹⁹

"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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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.' "²²If 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,"²³and the court must give the parties "reasonable opportunity to present all material made pertinent."²⁴

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.' "²⁵When 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."²⁶That 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."²⁷That 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."²⁹Judicial 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.³⁰It 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."³¹We 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."³²If 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.³³So 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."³⁴To 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."³⁵The superior court, guided by California law, ruled that Griffith's malicious prosecution claim failed because the prior proceedings were not terminated favorably to him in their entirety.³⁶

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.³⁸That 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."³⁹An 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., LLC, 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.⁴⁰Under this rule, claims are "separable" if they vindicate different "primary rights" or injuries, and could be brought as separate suits.⁴¹But the California Supreme Court later criticized this reasoning as dicta,⁴²and subsequent appellate decisions declined to follow it.⁴³

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.⁴⁴A 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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