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04/05/76 PEISNER v. DETROIT FREE PRESS

April 5, 1976

PEISNER
v.
DETROIT FREE PRESS, INCORPORATED



Appeal from Wayne, Peter B. Spivak, J.

Leave to appeal applied for.

D. E. Holbrook, Jr., P. J., and McGregor and N. J. Kaufman, JJ.

SYLLABUS BY THE COURT

1. Judgment -- Summary Judgment -- Failure to State Claim -- Legal Sufficiency of Complaint -- Well-Pleaded Allegations -- Court Rules.

A motion for summary judgment on the ground that the opposing party has failed to state a claim upon which relief can be granted tests the legal sufficiency of the complaint only, and in ruling on such a motion a trial court must consider all the nonmoving party's well-pleaded allegations as true (GCR 1963, 117.2[1]).

2. Malicious Prosecution -- Statutes -- Treble Damages -- Abuse of Process.

A statute which provides a statutory remedy of treble damages for malicious prosecution does not create a cause of action for abuse of process independent of the common law (MCLA 600.2907; MSA 27A.2907).

3. Process -- Abuse of Process -- Common Law -- Elements.

The common law cause of action for abuse of process has two essential elements, (1) an ulterior purpose, and (2) an act which is improper in the regular conduct or prosecution of the case.

4. Process -- Abuse of Process -- Institution of Lawsuit -- Irregular Acts.

The mere institution of a lawsuit is not enough to create a cause of action for abuse of process; the complainant must also allege that the malefactor has committed some act that is irregular in the use of process before the complainant has stated a cause of action for abuse of process.

5. Process -- Abuse of Process -- Irregular Acts -- Prior Acts.

Acts of a plaintiff occurring prior to the date that process is started are irrelevant to a cause of action for abuse of process for a showing that the plaintiff committed some act that is irregular in the use of process, since prior to the date that process is started there was no process to misuse.

6. Malicious Prosecution -- Malicious Civil Prosecution -- Wrongful Institution of Lawsuit.

An action for malicious civil prosecution is the correct cause of action for the wrongful institution of a lawsuit.

7. Malicious Prosecution -- Malicious Civil Prosecution -- Prior Proceedings -- Terminated in Defendants' Favor.

One of the essential elements of a cause of action for malicious civil prosecution is that a prior proceeding has been terminated in the prior defendant's favor; therefore, where an original libel action has not yet been terminated, it is impossible for the defendants in the libel action to maintain a ...


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