Mosley v. Titus (762 F. Supp. 2d 1298, 2010)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants’ Motion for Summary Judgment, filed July 21, 2010 (Doc. 50). The Court held a hearing on October 15, 2010. The primary issues are: (i) whether Plaintiff Fred Mosley, M.D., has established a genuine issue of material fact whether Defendant Victor Titus, a lawyer, engaged in malicious abuse of process when he filed claims against Mosley without probable cause, when there is evidence that Titus believed that Mosley was engaging in improper ex parte contacts with employers and insurers as well as evidence that Titus wanted to run Mosley out of town; (ii) whether Titus owed Mosley, the defendant in the underlying cases, a duty to exercise reasonable care and negligently breached that duty; (iii) whether Titus filed the lawsuits against Mosley without sufficient justification and with intent to injure, and is liable for prima-facie tort; (iv) whether Titus intentionally inflicted emotional distress on Mosley; and (v) whether the undisputed facts establish damages claims. The Court grants the Defendants’ Motion for Summary Judgment, because it finds that Mosley has failed to establish a genuine issues of material fact and that Mosley’s claims for malicious abuse of process, negligence, prima-facie tort, intentional infliction of emotional distress, and damages fail as a matter of law.

FACTUAL BACKGROUND

Titus is an attorney in Farmington, New Mexico. See Curriculum Vitae of Victor A. Titus, filed July 21, 2010 (Doc. 51-10). In his law practice, Titus primarily represents workers in proceedings under the New Mexico Workers’ Compensation Act, NMSA 1978, §§ 52-1-1 to -70. See Curriculum Vitae of Titus at 1. In 1997, Mosley began practicing medicine in Farming-ton. See Complaint for Malicious Abuse of Process, Negligence, Interference with Contractual Relations, Violation of NMSA § 57-1-1 et seq., Intentional Infliction of Emotional Distress and Prima Facie Tort ¶¶ 7-9, at 2, filed August 13, 2009 (Doc. 1) (“Complaint”). Mosley opened his own practice, known as Mesa Occupational and Sports Medicine. See Complaint ¶ 9, at 1. A substantial part of Mosley’s practice was treating workers who were injured on the job and receiving workers’ compensation benefits. See id. ¶¶ 7-9, at 2. Over the years, as Mosley practiced medicine in Farmington, several of his patients were also Titus’ clients. See id. ¶ 13, at 2. Titus knew that his client’s employers directed his clients to Mosley for care and treatment following accidental on-the-job injuries. See Deposition of Fred Mosley at 107:13-24 (taken June 10, 2010), filed July 21, 2010 (Doc. 51-5). Mosley considered both objective evidence and subjective evidence — such as a worker’s allegations of continuing pain — when making his return-to-work recommendations to avoid abuse of the workers’ compensation system. See Mosley Depo. at 37:3-38:4.

When patients would arrive at Mesa Occupational and Sports Medicine, the receptionist would give them a packet of paperwork to fill out, which included a release, which, when signed, purported to permit Mosley to contact his patients’ employers, see Authority to Release Medical Reports and Information, filed July 21, 2010 (Doc. 51-5). If a patient had a question about one of the forms, Mosley or a member of his staff would discuss the form with the patient. See Mosley Depo. at 67:9-69:17. In 1998, and at present, New Mexico law prohibited ex parte contact between a worker’s treating physician and the worker’s employer or insurer absent the worker’s knowing and informed consent to the ex parte contact. See Deposition of Helen Stirling at 57:22-60:22 (taken June 28, 2010), filed July 21, 2010 (Doc. 51-8).

In approximately 1998, Titus learned that Mosley was engaging in ex parte contacts with the employers of Titus’ clients. See Letter to Dr. Fred Mosley from Victor A. Titus (dated March 26, 1998), filed July 21, 2010 (Doc. 51-10). Also in 1998, Titus sent Mosley two letters, in which he advised Mosley that his ex parte contacts with his patient’s employers was improper and, on behalf of Titus’ clients, demanded that Mosley cease any further ex parte contacts. See Letter to Dr. Fred Mosley from Victor A. Titus (dated January 9, 1998), filed July 21, 2010 (Doc. 51-10) (“Jan. 9 Letter”). From 1998 to 2008, Mosley continued to engage in ex parte contacts with the employers of injured workers whom Titus represented. See Deposition of Guillermo Rivera at 6:22-7:8 (taken June 22, 2010), filed July 21, 2010 (Doc. 51-6). Several of Titus’ clients were unhappy with Mosley; many did not want Mosley speaking to their employers or insurers and, in some cases, told Mosley they did not want him to speak to their employers or insurers. See Deposition of Laurie Lynn Bible at 24:25-26:5 (taken July 16, 2010), filed August 3, 2010 (Doc. 57 — l). Mosley’s ex parte contacts with employers and insurers resulted in adverse employment consequences for Titus’ clients, including loss of worker’s compensation benefits, and, for some, even loss of their jobs. See Deposition of Terry D. Black at 28:1-31:17 (taken June 30, 2010), filed July 21, 2010 (Doc. 51-1).

Beginning in March 2001, on behalf of several of his clients, Titus filed complaints against Mosley in the State District Court in Farmington, New Mexico, seeking to prevent Mosley from engaging in further ex parte contacts and to recover damages for the harm caused to Titus’ clients by the ex parte contacts. See Rightmire v. Mosley Case Detail, D-1116-CV-200100215, filed August 5, 2010 (Doc. 59 — 4). In his deposition, Titus testified:

I [told my clients] that the law in New Mexico went to a certain point on privilege — physieian/patient privilege and what you could and couldn’t do. But it was unclear as to what the remedy was for a violation and whether or not the causes of action that I had brought or proposed would be acceptable to the court in all or in part; and if any one of those was acceptable to the court, what damages would be awardable if any.

See Deposition of Victor A. Titus at 71:25-72:8 (taken June 30, 2010), filed August 5, 2010 (Doc. 59-3). Titus’ clients were aware of and consented to the filing of verified complaints on their behalf. See McPherson Depo. at 11:1-13:24. Titus’ clients understood Titus filed the lawsuits to stop Mosley’s ex parte contacts, to get medical treatment, and to obtain compensation for their losses. See Thomason Depo. at 18:15-21:10. After the lawsuits were filed, some additional workers that Titus represented sought to intervene in the lawsuits. See Rivera Depo. at 7:2-9:23.

Titus stated that he wanted to run Mosley out of town. See Stirling Depo. at 97:17-25. Black executed a signed statement under oath at Mosley’s request which stated that he had not consented to the filing of the Complaint and that the purpose of the complaints was to run Mosley out of town. See Statement of Terry D. Black (dated December 4, 2008), filed July 21, 2010 (Doc. 51-1). In his subsequent deposition, Black testified that Mosley bribed him to make the Statement, and that the Statement is false. See Black Depo. at 32:2-34:19, 39:12-47:20.

On June 14, 2001, Titus proposed a compromise settlement to Mosley’s counsel, in which Titus sought an agreement to: (i) a permanent injunction preventing Mosley’s office from engaging in ex parte contact with worker’s employers, insurers and case managers, and preventing Mosley’s office from using the release form; (ii) a provision that violation of the injunction could be sanctioned as contempt of court; (iii) the plaintiffs’ waiver of all compensatory and punitive damages; and (iv) Mosley’s payment of the plaintiffs’ filing fees and service fees, with each side to pay its own attorney fees. See Letter from Victor A. Titus to Seth V. Bingham, Esq. and Terri L. Sauer, Esq. (dated June 14, 2001), filed July 21, 2010 (Doc. 51-10). On approximately November 6, 2002, Titus sent a letter to Mosley’s attorney stating that he was generally agreeable to dismissing the lawsuits against Mosley if Mosley would sell his medical practice and leave Farmington. See Letter from Victor A. Titus to Terry Beach, Esq. (dated November 6, 2002), filed August 5, 2010 (Doc. 59-3). In the approximately seven years that the lawsuits against Mosley were pending, Titus did not request a trial setting or take any depositions; the only written discovery he served was a single set of interrogatories and requests for production on behalf of one of the thirteen plaintiffs. See Rightmire v. Mosley Case Detail.

On February 1, 2007, the sale of Mosley’s medical practice of Mesa Occupational and Sports Medicine to Reliance Medical Group, which was owned by Ken Stradling, M.D., closed. See First Amendment to Agreement of Purchase and Sale of Assets, filed August 5, 2010 (Doc. 59-3). Mosley’s and Stradling’s accountants arrived at the valuation of Mosley’s practice. See Deposition of Ken Stradling at 20:17-23:13 (taken June 22, 2010), filed July 21, 2010 (Doe. 51-9). The valuation by Mosley’s accountant was based on assumptions that Mosley gave the accountant and did not meet the standards under the Uniform Standards for Professional Appraisers. See Deposition of Kenneth W. Shields, CPA at 55:1-59:11 (taken June 7, 2010), filed July 21, 2010 (Doc. 51-7). The lawsuits were not a factor in the negotiations for the sale of Mosley’s practice or in the purchase price that Reliance Medical paid for Mosley’s practice. See Stradling Depo. at 33:11-23; id. at 62:10-17. Mosley had no contracts with any employers or insurers and he did not lose any patients as a result of the lawsuits, although he did lose some patients to competition from other medical providers. See, e.g. Mosley Depo. at 111:16-116:19; id. at 14:13-24.

In 2007, Mosley left Farmington and moved to Grand Junction, Colorado. See Mosley Depo. at 6:4-13. A few months after Mosley left Farmington, Titus moved to withdraw as counsel for one of the plaintiffs, Toney Moore, who was left pro se and was dismissed from the lawsuit a few days later. See Rightmire v. Mosley Case Detail at 3-4. In the following months, Titus either agreed to have every claim dismissed with no recovery or he withdrew as counsel, leaving his clients pro se. See Rightmire v. Mosley Case Detail at 2-4. By August 2008, every claim against Mosley had been dismissed. See Rightmire v. Mosley Case Detail at 2. Not all of the workers understood why the lawsuits had been dismissed or that they had been dismissed. See Bible Depo. at 14:9-15:2.

PROCEDURAL BACKGROUND

On August 13, 2009, Mosley filed a Complaint against Titus, Steven Murphy, and Titus & Murphy, LLC in the United States District Court for the District of New Mexico. See Doc. 1. In his Complaint, Mosley alleges causes of action for malicious abuse of process, negligence, interference with contractual relations, violation of the New Mexico Antitrust Act, NMSA 1978, §§ 57-1-1 to -19, intentional infliction of emotional distress, and prima facie tort. See Complaint ¶¶ 31-69, at 4-7.

On April 28, 2010, Murphy and Titus & Murphy, LLC, filed a Motion to Dismiss or, in the Aternative, Summary Judgment. See Defendants Titus & Murphy, LLC and Steven Murphy’s Motion to Dismiss or, in the Aternative, for Summary Judgment, April 28, 2010 (Doc. 34). Murphy and Titus & Murphy, LLC, also filed a Memorandum in Support of their Motion to Dismiss or, in the Aternative, for Summary Judgment. See Memorandum in Support of Defendants Titus & Murphy, LLC and Steven Murphy’s Motion to Dismiss or, in the Aternative, for Summary Judgment, filed April 28, 2010 (Doc. 35) (“Murphy and Titus & Murphy, LLC’s Memorandum”). Most of Mosley’s claims were specific to Titus, except for his negligence claim, which included allegations against all of the Defendants. See Murphy and Titus & Murphy, LLC’s Memorandum at 2-3. Titus & Murphy, LLC argued that Mosley’s Complaint against it failed to state a claim for relief, because Mosley made only a claim of negligence against Titus & Murphy, LLC, yet did not plead any facts that showed that Titus & Murphy, LLC, a real estate holding company, owed Mosley a duty, breached that duty, or caused Mosley any injury. See Murphy and Titus & Murphy, LLC’s Memorandum at 5-6. Both Murphy and Titus & Murphy, LLC argued that no genuine issue of material fact existed that would entitle Mosley to relief against them, because Mosley could not prove that either Defendant owed him a duty, or breached that duty. See Murphy and Titus & Murphy, LLC’s Memorandum at 6.

On August 5, 2010, the Court entered a Stipulated Order, which partially granted Murphy and Titus & Murphy, LLC’s Motion to Dismiss or, in the Aternative, Summary Judgment by dismissing Titus & Murphy, LLC from the action. See Stipulated Order Partially Granting Defendants Steven Murphy and Titus & Murphy, LLC’s Motion for Summary Judgment and Dismissing Titus & Murphy, LLC, filed August 5, 2010 (Doc. 60). On August 31, 2010, Murphy filed a Stipulated Notice, withdrawing the portion of Defendants’ Motion to Dismiss or, in the Aternative, Summary Judgment, and Memorandum in support of this motion that related to him. See Stipulated Notice to Withdraw Motion to Dismiss or, in the Aternative, for Summary Judgment by Defendant Stephen Murphy, filed August 31, 2010 (Doc. 67) (“Stipulated Notice”). Murphy stated that, after further review and analysis, “it has been determined that sufficient questions of fact remain with regard to thé status of [Murphy], which would require the Court to deny the Motion at this time.” Stipulated Notice at 1.

The Defendants — currently only Titus and Murphy remain in the action' — -move the Court, pursuant to rule 56 of the Federal Rules of Civil Procedure, for an order granting summary judgment in their favor on all claims against them. See Motion for Summary Judgment at 1. The Defendants submitted a memorandum in support of their Motion for Summary Judgment. See Memorandum in Support of Motion for Summary Judgment, filed July 10, 2010 (Doc. 51) (“Memorandum”). As grounds for their motion, the Defendants state that there are no genuine issues as to any material fact and that they are entitled to summary judgment dismissing all claims in the case. See Memorandum at 1. The Defendants assert that Titus acted properly in seeking to assert his client’s constitutional right to access the courts and seek redress against Mosley for breach of the physician-patient privilege, and therefore all of Mosley’s claims fail as a matter of law. See Memorandum at 1. The Defendants thus ask the Court to grant summary judgment on Mosley’s claims for malicious abuse of process, negligence, antitrust violations, tortious interference with contract, prima-facie tort, intentional infliction of emotional distress, and damages. See Memorandum at 23. The Defendants assert that Murphy cannot be liable because he was not Titus’ partner and was not involved in filing the lawsuits; to the extent the Complaint alleges causes of action against Murphy, however, he joins in seeking summary judgment on the claims Mosley has asserted. See Memorandum at 1 n. 1.

In his Response, Mosley concedes that his claim under the New Mexico Antitrust Act and his claim for tortious interference. See Plaintiffs Amended Response to Defendants’ Motion to Summary Judgment (Doc. 50), filed August 5, 2010 (Doc. 59) (“Response”). Mosley contends that his claim for malicious abuse of process should survive, because Titus filed thirteen claims against Mosley without probable cause and with a primary purpose of harassing Mosley to the point that Mosley would leave Farmington. See Response at 7-8. Mosley contends that his negligence claim should survive, because the general rule that a lawyer does not owe a duty to a party who is adverse to his client is qualified by the assumption that an attorney is acting legally and ethically, and whether Titus acted within the rules of professional ethics is a disputed fact. See Response at 9-10. Mosley argues that his prima-facie tort claim should survive, because the parties dispute whether Titus had sufficient justification to file the lawsuits. See Response at 10. Mosley also contends that his intentional infliction of emotional distress claim is viable, because there is a question of fact whether Titus’ conduct was extreme and outrageous, and whether Mosley suffered severe emotional distress. See Response at 11. In conclusion, Mosley contends that the Court should not dismiss his damages claims, because he sold his practice for less than it was worth, and because if any of his intentional tort claims are successful, he will be entitled to punitive damages, as malicious abuse of process, prima-facie tort, and intentional infliction of emotional distress each require a finding that Titus acted intentionally and maliciously. See Response at 11-12.

At the hearing, Eric Loman, attorney for Mosley, disputed the Defendants’ assertion that Mosley had ex parte communication without his patients’ consent. See Tr. at 31:20-22 (Loman). Emily A. Franke, attorney for Titus, stated that the issue whether the release was sufficient would have been developed through discovery in the underlying litigation, but that the issue did not need to be definitely resolved before Titus could file the complaints. See Tr. at 45:10-46:21 (Franke, Court). The parties agreed to submit additional briefing on the meaning of informed consent. See Tr. at 54:4-55:7 (Franke, Court, Loman).

On October 20, 2010, Loman submitted a letter to the Court, providing the Court with excerpts from the Workers’ Compensation Handbook for New Mexico and the release that Mosley used. See Letter from Eric Loman to the Court (dated October 20, 2010), filed October 20, 2010 (Doc. 76) (“Loman’s Letter”). Loman also asserts that, under New Mexico contract law, a person acknowledges that he understands the meaning of a document when he signs the document. See Loman’s Letter at 2. Loman represents that he could not find any New Mexico authority regarding the validity of a worker’s consent to his physician’s ex parte contacts. See Loman’s Letter at 2.

On October 21, 2010, the Defendants submitted supplemental briefing. See Doc. 75. The Defendants stated: “There are no New Mexico cases that explore what is necessary for informed consent to waiver of the physician-patient privilege in the workers’ compensation context.” Supplemental Brief at 4. The Defendants therefore provided the Court with an overview of New Mexico law regarding informed consent and waiver in other contexts, including: (i) the validity and enforceability of consent to submit a dispute to arbitration, where courts examine the circumstances surrounding the consent, including the party’s ability to understand the terms of the agreement and the bargaining power of the parties to determine whether the agreement to arbitration is an invalid adhesion contract; (ii) informed consent in the medical care and treatment context, where a doctor has a duty to disclose to the patient all facts necessary to form the basis of intelligent consent by the patient; (iii) releases of liability, where courts require the language in the release to be of such clarity that a person without legal training could understand it; and (iv) attorney disclosure of client information, which requires the client’s consent after the attorney’s full disclosure of any information sufficient for the client to make an informed decision. See Supplemental Brief at 4-5.

LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT

Rule 56(c) states that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The movant bears the initial burden of “showfing] that there is an absence of evidence to support the nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record], together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”) (internal quotation marks omitted). Once the movant meets this burden, rule 56(e) requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”) (internal quotes omitted).

The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Rule 56 provides that “an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Fed.R.Civ.P. 56(e) and Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).

Genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539. Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improv. Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (internal citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

CHOICE OF LAW

When a court’s jurisdiction rests on diversity of citizenship under 28 U.S.C. § 1332, the court should look to the forum state’s choice-of-law rules to determine which state’s substantive law to apply. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Pepsi-Cola Bottling Co. v. PepsiCo., Inc., 431 F.3d 1241, 1255 (10th Cir.2005). In New Mexico, choice-of-law analysis is a two-step process. See Terrazas v. Garland & Loman, Inc., 140 N.M. 293, 296, 142 P.3d 374, 377 (Ct.App.2006). First, the Court must characterize the “area of substantive law — e.g., torts, contracts, domestic relations' — to which the law of the forum assigns a particular claim or issue.” Terrazas v. Garland & Loman, Inc., 140 N.M. at 296, 142 P.3d at 377. The next step is to apply New Mexico’s choice-of-law rule. See Terrazas v. Garland & Loman, Inc., 140 N.M. at 296, 142 P.3d at 377.

In tort actions, New Mexico courts follow the doctrine of lex loci delicti commissi and apply the law of the place where the wrong took place. See Torres v. State, 119 N.M. 609, 613, 894 P.2d 386, 390 (1995). The place of the wrong is the location of the last act necessary to complete the injury. See Torres v. State, 119 N.M. at 613, 894 P.2d at 390. Where the elements of the underlying claim include harm, the place of the wrong is the place where the harm occurred. See First Nat’l Bank in Albuquerque v. Benson, 89 N.M. 481, 482, 553 P.2d 1288, 1289 (Ct.App.1976). The Supreme Court of New Mexico has said that it will not use the place-of-wrong-rule, however, if application of the rule would violate New Mexico public policy. See Torres v. State, 119 N.M. at 613, 894 P.2d at 390. The Court of Appeals of New Mexico has interpreted this principle to mean that, although there is a strong presumption in favor of application of the place-of-the-wrong rule, in some situations a court may depart from the general rule if another state has a more significant interest in having its law apply. See Estate of Gilmore, 124 N.M. 119, 946 P.2d 1130 (Ct.App.1997).

RELEVANT NEW MEXICO LAW REGARDING MALICIOUS ABUSE OF PROCESS

In DeVaney v. Thriftway Marketing Corp., 124 N.M. 512, 953 P.2d 277 (1997), overruled on other grounds by Durham v. Guest, 145 N.M. 694, 204 P.3d 19 (2009), the Supreme Court of New Mexico reviewed the purposes and elements of the two torts of abuse of process and malicious prosecution. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 517, 953 P.2d at 282. The Supreme Court of New Mexico concluded that the two torts would no longer be separate causes of action and restated their elements into a single tort — malicious abuse of process. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 518, 953 P.2d at 283. In New Mexico, the tort of malicious abuse of process is disfavored, because of “the potential chilling effect on the right of access to the courts.” Fleetwood Retail Corp. of N.M. v. LeDoux, 142 N.M. 150, 156, 164 P.3d 31, 37 (2007) (citation omitted). New Mexico courts state that the tort of malicious abuse of process should be construed narrowly to protect the right of access to the courts. See Durham v. Guest, 145 N.M. at 701, 204 P.3d at 26; Weststar Mortg. Corp. v. Jackson, 133 N.M. 114, 119, 61 P.3d 823, 828 (2002). Malicious-abuse-of-process claims involve balancing “the interest in protecting litigants’ right of access to the courts and the interest in protecting citizens from unfounded or illegitimate applications of the power of the state through the misuse of the courts.” DeVaney v. Thriftway Mktg. Coop., 124 N.M. at 517, 953 P.2d at 282. “[T]he filing of a proper complaint with probable cause, and without any overt misuse of process, will not subject a litigant to liability for malicious abuse of process, even if it is the result of a malicious motive.” DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 520, 953 P.2d at 285.

The elements of a malicious-abuse-of-process action are: (i) the use of process in a judicial proceeding that would be improper in the regular prosecution or defense of a claim or charge; (ii) a primary motive in the use of process to accomplish an illegitimate end; and (in) damages. See Durham v. Guest, 145 N.M. at 701, 204 P.3d at 26. An improper use of process may be shown by: (i) filing a complaint without probable cause; or (ii) an irregularity or impropriety suggesting extortion, delay or harassment, or other conduct formerly actionable under the tort of abuse of process. See Durham v. Guest, 145 N.M. at 701, 204 P.3d at 26.

The Supreme Court of New Mexico has defined probable cause in the malicious abuse of process context as “a reasonable belief, founded on known facts established after a reasonable pre-filing investigation that a claim can be established to the satisfaction of a court or jury.” Fleetwood Retail Corp. of N.M. v. LeDoux, 142 N.M. at 154, 164 P.3d at 36 (internal quotations and citation omitted). “The lack of probable cause must be manifest.” Fleetwood Retail Corp. of N.M. v. LeDoux, 142 N.M. at 154, 164 P.3d at 36 (citation omitted). Probable cause is to be judged on the facts as they appeared at the time; it is not to be judged on later-discovered facts. See Weststar Mortg. Corp. v. Jackson, 133 N.M. at 122, 61 P.3d at 831 (“Probable cause ... is to be judged by facts as they appeared at the time, not by later-discovered facts.”) (citing Restatement (Second) of Torts § 662 cmt. e (stating that an accusation leading to the initiation of a criminal proceeding must be based on probable cause, determined as of the time the action was filed) (other citations omitted)). The existence of probable cause in the underlying proceeding is a question of law to be decided by the court. See Weststar Mortg. Corp. v. Jackson, 133 N.M. at 123, 61 P.3d at 832 (“[T]he existence of probable cause in the underlying proceeding, that is, whether the facts amount to probable cause, is a question of law and shall be decided by the trial judge.”) (internal quotation marks and citation omitted). A malicious-abuse-of-process plaintiff who is attempting “to show a lack of probable cause must demonstrate, by the applicable standard of proof, that the opponent did not hold a reasonable belief in the validity of the allegations of fact or law of the underlying claim.” DeVaney v. Thriftway Marketing Corp., 124 N.M. at 522, 953 P.2d at 287.

In Guest v. Berardinelli, 145 N.M. 186, 195 P.3d 353, the Court of Appeals of New Mexico discussed the element of probable cause in the context of a claim for malicious abuse of process. See id. at 190, 195 P.3d at 357. In determining whether the malicious-abuse-of-process defendants had probable cause to name the malicious-abuse-of-process plaintiff as a party in a previous suit, the Court of Appeals first considered whether the defendants made a prima-facie showing that they performed a reasonable pre-filing inquiry. See id. at 190, 195 P.3d at 357. The Court of Appeals found that, before filing the suit, the defendants obtained factual background, including correspondence, medical records, depositions, arbitration discovery, written statements, and that the defendants reviewed the materials and information, analyzed the potential causes of action against the plaintiff, and filed the lawsuits on that basis. See Guest v. Berardinelli, 145 N.M. at 190, 195 P.3d at 357. The Court of Appeals found that these actions met the standard for a reasonable pre-filing investigation. See id. at 190, 195 P.3d at 357. The Court of Appeals then inquired into whether the defendants made a primafacie showing that the knowledge they obtained from their pre-filing inquiry supported a reasonable belief that they had grounds to bring their claims. See Guest v. Berardinelli, 145 N.M. at 190, 195 P.3d at 357. In making this inquiry, the Court of Appeals recognized that probable cause does not require certainty, but is “a standard which we understand to grant attorneys reasonable latitude in asserting novel claims under New Mexico law.” Guest v. Berardinelli, 145 N.M. at 190, 195 P.3d at 357. The Court of Appeals found that the defendants “had a reasonable belief that their claims, some of them novel, could be established to the satisfaction of a judge or jury,” because the defendants had evidence that the plaintiff had potentially violated New Mexico statutes and had served a subpoena under the judicial authority of the Second Judicial District Court despite that there was no case pending. Guest v. Berardinelli, 145 N.M. at 191-92, 195 P.3d at 358-59. The Court of Appeals noted that the fact that the district court ultimately dismissed the defendants’ claims “has no bearing on the question of whether Defendants had probable cause to file suit.” Guest v. Berardinelli, 145 N.M. at 192, 195 P.3d at 359 (citing DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 521, 953 P.2d at 286 (“[Fjavorable termination is not an element of an action for malicious abuse of process.... ”)). The Court of Appeals expounded on this statement:

This is particularly true when evaluating probable cause in the context of MAP suits against attorneys. In Durham, we relied on the notions that attorneys have some measure of freedom in representing their clients, and we did not want to chill an attorney’s vigorous representation of the client; accordingly, except in unusual circumstances, an attorney should not have to worry about asserted duties to non-clients. Durham [v. Guest], 2007-NMCA-144, ¶¶20-22, 142 N.M. 817, 171 P.3d 756. Out-of-state authority supports application of this principle to the issue of probable cause in [malicious-abuse-of-process] cases against attorneys. The California Supreme Court recently stated, “Only those actions that any reasonable attorney would agree are totally and completely without merit may form the basis for a malicious prosecution suit.” Zamos v. Stroud, 32 Cal.4th 958, 12 Cal.Rptr.3d 54, 87 P.3d 802, 810 (2004). Similarly, the Connecticut Supreme Court said, “ ‘The vitality of our common law system is dependent upon the freedom of attorneys to pursue novel, although potentially unsuccessful, legal theories.’ ” Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 912 A.2d 1019, 1032 (2007) (quoting Wong v. Tabor, 422 N.E.2d 1279, 1288 (Ind.Ct.App.1981)). These pronouncements are consistent with our own Rules of Professional Conduct and the ABA Comment printed immediately following in our annotated rules volumes. See Rule 16-301 NMRA (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”); see also Rule 16-301 ABA cmt. (“The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail.”).

It would be inconsistent with these authorities to require plaintiffs’ attorneys, such as [the defendants in this case], to interview and investigate the defendant, [the plaintiff in this case], and her witnesses and then disregard what their own client told them. It would be inconsistent with the attorneys’ professional duty to zealously advocate for their clients loere we to hold [the defendants] to the standard [the plaintiff] proposes.

Guest v. Berardinelli, 145 N.M. at 192, 195 P.3d at 359 (emphasis added).

Lack of probable cause is not the only way to establish misuse of process; a plaintiff can also show misuse of process by pointing to “some irregularity or impropriety suggesting extortion, delay or harassment.” DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 522, 953 P.2d at 287. A plaintiff may prove misuse of process through procedural irregularity — such as misuse of discovery, subpoenas, and attachments — or an act that otherwise indicates wrongful use of proceedings — such as an extortion attempt. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 522, 953 P.2d at 287. Some examples of misuse of process include: (i) excessive execution on a judgment; (ii) attachment of property other than the property involved in the litigation; (iii) oppressive conduct in connection with an arrest or seizure of property; and (iv) extortion of excessive sums of money. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 522, 953 P.2d at 287.

Under the requirement of a primary improper motive, it is insufficient that the malicious-abuse-of-process defendant acted with ill will or spite. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 522, 953 P.2d at 287 (citing W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on the Law of Torts § 121, at 897 (5th ed. 1984) (“[E]ven a pure spite motive is not sufficient where process is used only to accomplish the result for which it was created.”) (emphasis added)). There must be a purpose to accomplish an illegitimate end. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 522, 953 P.2d at 287. The Supreme Court of New Mexico has given several examples of improper purpose, including: (i) a litigant who pursues a claim knowing that the claim is merit-less; (ii) a litigant who pursues a claim primarily to deprive another of the beneficial use of his or her property in a manner unrelated to the merits of the claim; (iii) a litigant who misuses the law primarily for harassment or delay; or (iv) a litigant who initiates proceedings primarily for the purpose of extortion. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 522, 953 P.2d at 287. An overt misuse of process may support an inference of an improper purpose, but a court may not infer from evidence of an improper purpose alone that there was not probable cause or that there was not a proper use of process. See DeVaney v. Thriftway Mktg. Corp., 124 N.M. at 522, 953 P.2d at 287.

RELEVANT NEW MEXICO LAW REGARDING A PHYSICIAN’S EX PARTE CONTACTS WITH A WORKER’S EMPLOYER AND THE EMPLOYER’S INSURER

In Smith v. Ashby, 106 N.M. 358, 743 P.2d 114 (1987), the Supreme Court of New Mexico issued a writ of superintending control prohibiting the Honorable Philip Ashby, District Judge, from enforcing an order that compelled the plaintiff to sign a document authorizing his personal physician to disclose all information regarding the plaintiff in the physician’s possession to the defense counsel either out of the presence of the plaintiff or of his attorneys. See 106 N.M. at 359-60, 743 P.2d at 115-16. The Supreme Court stated:

This Court has long recognized the relationship of trust and confidence between a physician and patient. Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962). In Petrillo v. Syntex Laborato ries, Inc., 148 Ill.App.3d 581, 102 Ill.Dec. 172, 499 N.E.2d 952 (1986), the Illinois appellate court joined the “growing number of courts which have found that public policy strongly favors the confidentiality of the physician-patient relationship and thereby prohibits, because of the threat posed to the sanctity of that relationship, extra-judicial ex parte discussion of a patient’s medial confidences.” Id. 102 Ill.Dec. at 177, 499 N.E.2d at 957. Further, “we find it difficult to believe that a physician can engage in an ex parte conference with the legal adversary of his patient without endangering the trust and faith invested in him by his patient.” Id. 102 Ill.Dec. at 182, 499 N.E.2d at 962.

Society’s interest in preserving the confidential nature of the physician-patient relationship is, through our decision to bar ex parte conferences, also fostered by members of the public who look to the court system for justice will know that although they have consented to the release of information regarding the condition placed at issue, they have not, by instituting litigation, automatically consented to a complete breakdown of the trust and confidentiality embodied in the physician-patient relationship.

Id. 102 Ill.Dec. at 187, 499 N.E.2d at 967. We agree with Petrillo that public policy dictates that practices and procedures in litigation should not allow for unnecessary breakdown of the trust and confidentiality embodied in the physician-patient relationship. As we have noted, this is not a question of privilege, for there is no longer a physician-patient privilege in New Mexico. Rather, this is a recognition that it is neither good nor necessary, particularly under the facts of this case, that litigants perceive their privacy interests and other personal relationships threatened by court-ordered ex parte encroachments by the opposing party.

Smith v. Ashby, 106 N.M. at 359-60, 743 P.2d at 115-16.

In Church’s Fried Chicken No. 1040 v. Hanson, 114 N.M. 730, 845 P.2d 824 (Ct.App.1992), the Court of Appeals of New Mexico addressed whether the district court erred in issuing an order prohibiting the employer’s workers’ compensation insurer from engaging in ex parte contacts with the worker’s treating physician. 114 N.M. at 731, 845 P.2d at 825. The Court of Appeals found that the Supreme Court’s rationale in Smith v. Ashby, that a patient’s trust and faith in physicians would be endangered if physicians could engage in ex parte discussions with the patient’s legal adversaries, applied to workers’ compensation actions. See Church’s Fried Chicken No. 1010 v. Hanson, 114 N.M. at 735, 845 P.2d at 829. The Court of Appeals thus concluded that the public-policy considerations that the Supreme Court of New Mexico recognized in Smith v. Ashby supported the district court’s authority to restrict ex parte discovery of the worker’s treating physician. See Church’s Fried Chicken No. 1040 v. Hanson, 114 N.M. at 735, 845 P.2d at 829.

In Gomez v. Nielson’s Corp., 119 N.M. 670, 894 P.2d 1026 (Ct.App.1995), the Court of Appeals reversed an order that a Workers’ Compensation Judge issued which held that the worker’s employer and the employer’s insurer, through its agent, could have contact with the worker’s physician outside the presence of the worker’s counsel. See 119 N.M. at 671, 675, 894 P.2d at 1027, 1031. The insurer argued that its agent was not the worker’s adversary and thus Church’s Fried Chicken No. 1040 v. Hanson did not apply. See Gomez v. Nielson’s Corp., 119 N.M. at 673, 894 P.2d at 1029. The Court of Appeals found that, for the purposes of communicating with the worker’s treating physician, the insurer’s agent was in the same position as the insurer, and therefore Church’s Fried Chicken No. 1040 v. Hanson applied. See Gomez v. Nielson’s Corp., 119 N.M. at 673, 894 P.2d at 1029. The Court of Appeals reversed the order, because it allowed ex parte communications with the worker’s legal adversaries, and stated that the worker’s employer, the employer’s insurer, and the insurer’s agents “may not engage in ex parte contacts with [the] worker’s treating physician, but must instead secure the permission or presence of the worker or worker’s legal representative before discussing matters with the treating physician.” Gomez v. Nielson’s Corp., 119 N.M. at 675, 894 P.2d at 1031.

The Workers’ Compensation Handbook For New Mexico informs workers that they are required to sign a medical release that authorizes their physicians to provide claim representatives with written medical reports and other written communication as “a condition of receiving workers’ compensation benefits.” Workers’ Compensation Handbook for New Mexico at 13, Exhibit 1 to Loman’s Letter. The Workers’ Compensation Handbook, however, also informs workers that New Mexico law restricts communications between them employers, claim representatives, or case managers and their physicians, in the absence of their permission. See Workers’ Compensation Handbook at 13. The Workers’ Compensation Handbook reflects the state of the law after Church’s Fried Chicken No. 1040 v. Hanson and Gomez v. Nielson’s Corp.

RELEVANT NEW MEXICO LAW REGARDING CONSENT

For an agreement to be binding, it must be accepted. See Medina v. Sunstate Realty, Inc., 119 N.M. 136, 138, 889 P.2d 171, 173 (1995). “Acceptance must be clear, positive, and unambiguous.” DeArmond v. Halliburton Energy Servs., Inc., 134 N.M. 630, 635, 81 P.3d 573, 578 (Ct.App.2003). The Supreme Court of New Mexico has stated that “[e]ach party to a contract has a duty to read and familiarize himself with its contents before he signs and delivers it, and if the contract is plain and unequivocal in its terms, each is ordinarily bound thereby.” Smith v. Price’s Creameries, Div. of Creamland Dairies, Inc., 98 N.M. 541, 545, 650 P.2d 825, 829 (1982). The Court has not been able to find any New Mexico cases that explore, in the workers’ compensation context, what is necessary for a worker to validly consent to ex parte contact between the worker’s treating physician and the worker’s employer, the employer’s insurer, or claim representatives. The Court will thus consider other areas of New Mexico law that may be illustrative.

New Mexico courts have considered the validity of mandatory-arbitration provisions contained in agreements. See Fiser v. Dell Computer Corp., 144 N.M. 464, 467, 188 P.3d 1215, 1218 (2008). New Mexico courts have stated that a mandatory-arbitration provision might be unenforceable if the contract which contains the provision is an adhesion contract whose terms are patently unfair to the weaker party. See Cordova v. World Fin. Corp. of N.M., 146 N.M. 256, 265, 208 P.3d 901, 910 (2009). The Supreme Court of New Mexico has stated:

Three elements must be satisfied before an adhesion contract may be found. First, the agreement must occur in the form of a standardized contract prepared or adopted by one party for the acceptance of the other. Second, the party proffering the standardized contract must enjoy a superior bargaining position because the weaker party virtually cannot avoid doing business under the particular contract terms. Finally, the contract must be offered to the weaker party on a take-it-or-leave-it basis, without opportunity for bargaining.

146 N.M. at 265, 208 P.3d at 910 (quotation omitted). “A party may be deemed unable to avoid doing business under the terms of a standardized form contract when the dominant contracting party has monopolized the relevant geographic market or when all the competitors of the dominant party use essentially the same contract terms.” Guthmann v. LaVida Llena, 103 N.M. 506, 509, 709 P.2d 675, 678 (1985), overruled on other grounds by Cordova v. World Fin. Corp. of N.M., 146 N.M. 256, 208 P.3d 901. “An absence of opportunity to bargain is relevant only where the weaker party to a standard form contract objects or has reason to object to one or more of the contract terms.” Guthmann v. LaVida Llena, 103 N.M. at 509, 709 P.2d at 678.

In the context of a medical malpractice actions, New Mexico courts have stated that the relationship “between a physician and his patient is one of trust and confidence and that the physician has the duty to make a full and frank disclosure to the patient of all pertinent facts relative to his illness and the treatment prescribed or recommended therefor.” Woods v. Brumlop, 71 N.M. 221, 227, 377 P.2d 520, 524 (1962). The purpose for this rule is to give the patient a basis upon which to determine whether he or she will consent to the treatment. See id. at 227, 377 P.2d at 524. “Without the disclosure by the doctor it is said that the patient is not informed and that, therefore, any consent obtained is ineffectual.” Id. at 227, 377 P.2d at 524.

Rule 16-106 of the New Mexico Rules of Professional Conduct prohibits lawyers from revealing “information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted [under the Rules of Professional Conduct].” Rule 16-106 NMRA. The New Mexico Rules of Professional Conduct define informed consent as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Rule 16-100 NMRA.

RELEVANT NEW MEXICO LAW REGARDING NEGLIGENCE

Generally, a negligence claim requires the existence of a duty from a défendant to a plaintiff, breach of that duty, which is typically based on a standard of reasonable care, and the breach being a cause-in-fact and proximate cause of the plaintiffs damages. See Herrera v. Quality Pontiac, 134 N.M. 43, 47-48, 73 P.3d 181, 185-86 (2003). “In New Mexico, negligence encompasses the concepts of foreseeability of harm to the person injured and of a duty of care toward that person.” Ramirez v. Armstrong, 100 N.M. 538, 541, 673 P.2d 822, 825 (1983), overruled on other grounds by Folz v. State, 110 N.M. 457, 460, 797 P.2d 246, 249 (1990). Generally, negligence is a question of fact for the jury. See Schear v. Bd. of County Comm’rs, 101 N.M. 671, 672, 687 P.2d 728, 729 (1984). “A finding of negligence, however, is dependent upon the existence of a duty on the part of the defendant.” Id. at 672, 687 P.2d at 729. “Whether a duty exists is a question of law for the courts to decide.” Id. at 672, 687 P.2d at 729 (citation omitted).

New Mexico courts have stated that foreseeability of a plaintiff alone does not end the inquiry into whether the defendant owed a duty to the plaintiff. See Herrera v. Quality Pontiac, 134 N.M. at 48, 73 P.3d at 186. The New Mexico courts have recognized that, “[ultimately, a duty exists only if the obligation of the defendant [is] one to which the law will give recognition and effect.” Herrera v. Quality Pontiac, 134 N.M. at 49, 73 P.3d at 187 (internal quotation marks and citation omitted). To determine whether the obligation of the defendant is one to which the law will give recognition and effect, courts consider legal precedent, statutes, and other principles of law. See Herrera v. Quality Pontiac, 134 N.M. at 48, 73 P.3d at 186.

The Supreme Court of New Mexico has rejected a stringent privity test as the touchstone of an attorney’s duty to a non-client. See Leyba v. Whitley, 120 N.M. 768, 773, 907 P.2d 172, 177 (1995). The Supreme Court stated that it is the intent of the attorney and the client to benefit a third party that forms the basis of a malpractice action by the third party. See id. at 773, 907 P.2d at 177. “An attorney has no duty however to protect the interests of a non-client adverse party for the obvious reasons that the adverse party is not the intended beneficiary of the attorney’s services and that the attorney’s undivided loyalty belongs to the client.” Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 106 N.M. 757, 761, 750 P.2d 118, 122 (1988). “Thus, an attorney in discharging professional duties on behalf of his client cannot be held liable for negligence toward an adverse party.” Id. at 761, 750 P.2d at 122.

RELEVANT NEW MEXICO LAW REGARDING PRIMA-FACIE TORT

In Schmitz v. Smentowski, 109 N.M. 386, 785 P.2d 726 (1990), the Supreme Court of New Mexico recognized a cause of action for prima-facie tort. See Schmitz v. Smentowski, 109 N.M. at 396, 785 P.2d at 736. The underlying theory of the prima-faeie tort is that a party who intends to cause injury to another should be liable for that injury, if the conduct is generally culpable and not justifiable under the circumstances. See Schmitz v. Smentowski 109 N.M. at 394, 785 P.2d at 734.

The elements of a cause of action for prima-facie tort are: (i) commission of an intentional, lawful act; (ii) an intent to injure the plaintiff; (iii) injury to the plaintiff as a result of the intentional act; and (iv) the absence of sufficient justification for the injurious act. See Lexington Ins. Co. v. Rummel, 123 N.M. 774, 777, 945 P.2d 992, 995 (1997); UJI 13-1631 NMRA (listing the elements as: (i) that the defendant intentionally did some act; (ii) that the defendant intended that the act would cause harm to the plaintiff or that the defendant knew with certainty that the act would cause harm to the plaintiff; (iii) that the defendant’s act was a cause of plaintiffs harm; and (iv) that the defendant’s conduct was not justifiable under all circumstances). In Schmitz v. Smentowski the Supreme Court of New Mexico emphasized the importance of limiting the cause of action for prima-facie tort because the prima facie tort was not intended to provide a remedy for every intentionally caused harm. See Schmitz v. Smentowski, 109 N.M. at 394, 785 P.2d at 734. See also Lexington Ins. Co. v. Rummel, 123 N.M. at 777, 945 P.2d at 995 (“In recognizing prima facie tort, this Court emphasized the importance of limiting the cause of action.... Prima facie tort was not intended to provide a remedy for every intentionally caused harm.”). Because not every intentionally caused harm gives rise to an actionable tort, once a plaintiff establishes intent to injure, the trial court must balance the defendant’s act or acts against the justification for the act or acts and the severity of the injury, weighing: (i) the injury, (ii) the culpable character of the conduct, and (iii) whether the conduct is unjustifiable under the circumstances. See Portales Nat. Bank v. Ribble, 134 N.M. 238, 240, 75 P.3d 838, 840 (Ct.App.2003). These three balancing factors were refined into four factors in Beavers v. Johnson Controls World Servs., Inc., 120 N.M. 343, 901 P.2d 761 (Ct.App.1995), and in the Uniform Jury Instructions. The Uniform Jury Instructions instruct the jury to weigh four factors in determining whether defendant’s act was justifiable under the circumstances. See UJI 13-1631A NMRA. These factors are: (i) the nature and seriousness of the harm to the plaintiff; (ii) the fairness or unfairness of the means used by the defendant; (iii) the defendant’s motive or motives; and (iv) the value to defendant or to society in general of the interests that the defendant’s conduct advances. See UJI 13-1631A NMRA. If the court finds that there is sufficient evidence to support all four elements in UJI 13-1631, it must then give the jury the balancing factors in UJI 13-1631A, if the Court determines that a reasonable jury could balance the factors and find for the plaintiff. “The trial court must initially balance these factors and, if it finds that a jury could reasonably find in the plaintiffs favor, the trial court must submit the claim to the jury for its own balancing of the factors.” Portales Nat. Bank v. Ribble, 134 N.M. at 240, 75 P.3d at 840.

In Martinez v. Northern Rio Arriba Electric Co-op., Inc., 132 N.M. 510, 51 P.3d 1164 (Ct.App.2002), the Court of Appeals of New Mexico performed the balancing test and held that the plaintiff did not make an actionable prima-facie tort claim. See id. at 517, 51 P.3d at 1171. The Court of Appeals found that the defendant’s conduct had some justification, because: (i) the conduct related to furthering a legitimate business interest; (ii) the means the defendant used were not outside the ambit of legitimate employer behavior; (iii) the evidence did not support the view that the defendant acted maliciously with the intent to cause the injury and without sufficient justification; and (iv) the emotional difficulties the plaintiff experienced because of the defendant’s actions did not, on balance, support a claim for prima-facie tort. See id. at 516-17, 51 P.3d at 1170-71. The Court of Appeals stated: “We are not persuaded that any of these allegations, or all of them taken together, rise to the level of both behavior and injury that is envisioned by the theory of prima facie tort.” Id. at 517, 51 P.3d at 1171.

The Court has not been able to find a case in which a court held an attorney liable under prima-facie tort for filing a lawsuit when the attorney had probable cause to file the lawsuit. In Guest v. Berardinelli, 145 N.M. 186, 195 P.3d 353 (Ct.App.2008), the Court of Appeals of New Mexico discussed the relationship between the malicious-abuse-of-process tort and the prima-facie tort. The Court of Appeals affirmed the district court’s grant of summary judgment on the plaintiffs prima-facie-tort claim. See id. at 188, 195 P.3d at 355. The district court granted summary judgment on the plaintiffs prima-facie-tort claim, because the claim relied on the same set of facts as her malieious-abuse-of-process claim, and because she had not established a genuine issue of material fact sufficient to defeat summary judgment on her malieious-abuse-of-process claim. See id. at 197,195 P.3d at 364. In affirming the district court’s grant of summary judgment, the Court of Appeals stated that the plaintiff neither rebutted the district court’s finding that her malicious-abuse-of-process claim and prima-facie-tort claim relied on the same set of facts, nor directed the Court of Appeals to evidence that created a genuine issue of material fact to overcome summary judgment on the prima-facie-tort claim. See Guest v. Berardinelli, 145 N.M. at 198,195 P.3d at 365. The Court of Appeals stated:

We agree with the district court that the same set of facts required to prove lack of probable cause and misuse of process in the MAP context are necessary to prove lack of justification in the prima facie tort context. The undisputed facts in our discussion of MAP above support a prima facie showing that Defendants’ actions were justified because Defendants had probable cause to file suit and did not engage in any overt misuse of process. Because Guest does not direct us to a genuine issue of material fact requiring determination by a jury, we affirm summary judgment on Guest’s prima facie tort claim.

Guest v. Berardinelli, 145 N.M. at 198, 195 P.3d at 365.

RELEVANT NEW MEXICO LAW REGARDING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

New Mexico courts have adopted the approach used in the Restatement (Second) of Torts § 46 (1965) in addressing the intentional-infliction-of-emotional-distress tort. See Trujillo v. Northern Rio Arriba Elec. Co-op, Inc., 131 N.M. 607, 616, 41 P.3d 333, 342 (2001). To prove an intentional-infliction-of-emotional-distress claim, a plaintiff must prove: (i) the conduct in question was extreme and outrageous; (ii) the conduct of the defendant was intentional or in reckless disregard of the plaintiff; (iii) the plaintiffs mental distress was extreme or severe; and (iv) there is a causal connection between the defendant’s conduct and the claimant’s mental distress. See id. at 616, 41 P.3d at 342; Jaynes v. Strong-Thorne Mortuary, Inc., 124 N.M. 613, 618, 954 P.2d 45, 50 (1997) (stating that, under New Mexico law, to establish a claim for intentional infliction of emotional distress, a plaintiff must show that the defendant intentionally