Trabucco v. Cogan

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ARNALDO TRABUCCO, Plaintiff/Appellee,

v.

JEFFREY COGAN, Defendant/Appellant.

No. 1 CA-CV 18-0526
FILED 1-16-2020

Appeal from the Superior Court in Mohave County
No. B8015CV201404030
The Honorable Lee Frank Jantzen, Judge

AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART;
REMANDED WITH DIRECTIONS

COUNSEL

Wilenchik & Bartness, P.C., Phoenix
By Dennis I. Wilenchik, John D. Wilenchik, Christopher A. Meyers
Counsel for Plaintiff/Appellee

Jeffrey A. Cogan, Las Vegas, Nevada
Defendant/Appellant
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MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.

W I N T H R O P, Judge:

¶1 Jeffrey A. Cogan, a bankruptcy attorney licensed in Nevada
and California, appeals the superior court’s judgment in favor of Dr.
Arnaldo Trabucco (“Dr. Trabucco”). After cross-motions for partial
summary judgment, the superior court found Cogan liable on claims of
malicious prosecution1 and abuse of process, then held a trial on damages.
The jury returned a verdict assessing $8,000,000 in compensatory and
punitive damages, plus costs, against Cogan, and Cogan appealed. For the
following reasons, we affirm the finding of liability for malicious
prosecution, reverse the finding of liability for abuse of process, vacate the
judgment with regard to damages awarded against Cogan, affirm the
judgment with regard to Helen Scharf, Karen Bright, and Randall Scharf
(collectively, “the Scharfs”), and remand with directions for the superior
court to enter judgment in favor of Cogan as to liability on the abuse of
process claim only and for a new trial on the issue of damages based only
on the finding of malicious prosecution.

FACTS AND PROCEDURAL HISTORY

¶2 In September 2012, Dr. Trabucco performed kidney surgery—
a laparoscopic left radical nephrectomy—on Gerald Scharf. Three days
later, Mr. Scharf died.

¶3 Dr. Trabucco had been embroiled in a series of unrelated and
extremely contentious financial and legal disputes—including but not
limited to post-divorce proceedings with his ex-wife, Pamela, and a

1 We recognize that civil malicious prosecution is often and perhaps
more properly referred to as “wrongful institution of civil proceedings.”
Chalpin v. Snyder, 220 Ariz. 413, 419, ¶ 20 n.5 (App. 2008) (citing Giles v. Hill
Lewis Marce, 195 Ariz. 358, 360, ¶ 5 n.1 (App. 1999)). Because the parties
and superior court consistently used the term malicious prosecution, we do
as well.

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complaint filed against him by Dr. Richard Cardone, a Mohave County
physician, who had sued Dr. Trabucco for defamation.2 Dr. Trabucco had
numerous creditors, and in November 2012, he filed for Chapter 7
bankruptcy protection.

¶4 Cogan represented Pamela Trabucco’s interests as a creditor
in the bankruptcy proceeding. At the first meeting of the creditors in 2012,
Cogan met Dr. Cardone’s wife, Joanne, and he soon began representing Dr.
Cardone. Joanne Cardone later put Cogan in touch with Gerald Scharf’s
widow, Helen, and Cogan eventually represented six creditors/clients with
respect to Dr. Trabucco’s bankruptcy: the Scharfs; Pamela Trabucco; Pamela
Houle; and Dr. Cardone.

¶5 Meanwhile, through separate counsel, the Scharfs on March
11, 2013, filed a medical malpractice lawsuit against Dr. Trabucco in
Mohave County Superior Court (“the 2013 Mohave County case”). The
Scharfs’ attorney in that lawsuit subsequently died, and Cogan took over
their representation.

¶6 Rather than continue to litigate the 2013 Mohave County case,
however, Cogan let that case lie dormant and filed an adversary
“Complaint to Determine Nondischargeability of Debts” against Dr.
Trabucco in Nevada bankruptcy court in May 2013, alleging negligence.
Then, on July 16, 2013, Cogan filed a First Amended Complaint to
Determine Nondischargeability of Debts on behalf of the Scharfs in
bankruptcy court, asserting the same wrongful death claims as alleged in
the 2013 Mohave County case, but dropping the negligence claim against
Dr. Trabucco, and instead alleging that Dr. Trabucco had “committed
willful and malicious actions upon Mr. Scharf, eventually resulting in Mr.
Scharf’s death,” and Dr. Trabucco’s actions constituted “extreme and
outrageous behavior.” More specifically, the allegations included the
following: (1) Dr. Trabucco knew he lacked sufficient experience and

2 As requested by Cogan and unopposed by Dr. Trabucco, we take
judicial notice of the fact that Dr. Trabucco later entered a settlement with
Dr. Cardone in May 2014, pursuant to which Dr. Trabucco agreed to not
practice medicine in Mohave County for at least ten years. See Ariz. R. Evid.
201; Muscat v. Creative Innervisions LLC, 244 Ariz. 194, 196, ¶ 5 n.2 (App.
2017) (review denied July 24, 2018) (taking judicial notice of a superior court
sentencing minute entry on the ground that the facts were not the subject
of reasonable dispute); but see In re Henry’s Estate, 6 Ariz. App. 183, 188
(1967) (declining to take judicial notice of legal proceedings transacted in
another court).

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expertise regarding laparoscopic nephrectomy, and that he did not have
hospital privileges to perform such a procedure; (2) Dr. Trabucco
intentionally misled the Scharfs regarding his experience and expertise
regarding laparoscopic nephrectomy; (3) an interoperative
complication/injury occurred due to an error by Dr. Trabucco; (4) Dr.
Trabucco knew this error had occurred and yet continued the operation
without addressing the interoperative complication/injury; (5) following
the surgery, Dr. Trabucco hid the fact that an interoperative
complication/injury had occurred; (6) although he knew Mr. Scharf was
seriously injured and would probably die, Dr. Trabucco did not attempt to
remedy the situation, and instead lied to the Scharf family and hospital
staff; and (7) Dr. Trabucco interfered with and delayed the subsequent
medical transfer of Mr. Scharf, again with the intention of hiding the
interoperative complication/injury or other malicious intent. As Cogan
later explained, his basis for making such allegations was that “[u]nder
bankruptcy law, negligence is a dischargeable matter of law. We were
required to show willful, malicious injury which necessarily involves
intentional conduct and kind of extreme and outrageous intentional
conduct, and thus, the amended complaint was fashioned as such.”3

¶7 Cogan admittedly didn’t “know medical terms, medical
procedures and the like,” so he hired Joanne Cardone, who is a nurse, as his
paralegal. Unknown to Cogan, Joanne Cardone had filed complaints
against Dr. Trabucco with various agencies, including the Department of
Health and Human Resources, the Nevada State Board of Medical
Examiners, and the Arizona Medical Licensing Board, and sent letters to
Dr. Trabucco’s relatives, friends, business associates, referral sources, and
judges handling Dr. Trabucco’s divorce, all in an effort to discredit Dr.
Trabucco. After learning of Joanne Cardone’s continuing activities in this
regard, Cogan terminated her employment.

¶8 Realizing Cogan was not experienced in medical malpractice
litigation, Dr. Trabucco’s medical malpractice defense attorney, Scott
Holden, took Cogan aside after the first hearing following filing of the First
Amended Complaint and explained to Cogan that (1) “if you accuse
someone [of] intentionally causing the death of a patient, you better have
evidence to back that up,” (2) Cogan’s “essential medical theory made no
sense,” and (3) the allegations in the First Amended Complaint could

3 See 11 U.S.C. § 523(a)(6) (“A discharge under [specified sections] of
this title does not discharge an individual debtor from any debt . . . for
willful and malicious injury by the debtor to another entity or to the
property of another entity.”).

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adversely affect any existing liability insurance coverage because, “[i]f you
accuse a doctor of intentional conduct, the [malpractice] insurance
[coverage] goes away.” Thereafter, Holden repeatedly demanded that
Cogan produce evidence to support his claims that Dr. Trabucco had
intentionally and maliciously caused the death of Gerald Scharf, and he
threatened to seek sanctions against Cogan pursuant to Arizona Rule of
Civil Procedure (“Rule”) 11.

¶9 Cogan acknowledged it was “unfair to Dr. Trabucco to make
these allegations,” but explained that, in his opinion, “these are the only
allegations that I can make, ie. (sic) intentional tort and they would survive
a Rule 11 claim” because the surgery had continued well beyond the
anticipated two hours and because Dr. Trabucco had “consent to open the
[surgical] field and did not,” indicating Dr. Trabucco made a conscious
decision not to convert the laparoscopic procedure to an open procedure
for which he had pre-operative consent and instead, according to Cogan,
prematurely terminated the surgery.

¶10 In February 2014, the parties stipulated to dismiss the First
Amended Complaint in bankruptcy court with prejudice. The stipulation
allowed the Scharfs to institute a medical negligence action against Dr.
Trabucco if they obtained bankruptcy court approval to pursue claims
against him personally, but the dismissal was final and binding as to any
allegations of malicious or intentional conduct by Dr. Trabucco.

¶11 On February 28, 2014, Dr. Trabucco filed the complaint in this
case against Cogan and the Scharfs, alleging malicious prosecution, abuse
of process, and intentional infliction of emotional distress. Cogan initially
represented only himself in this case but, after being admitted pro hac vice
and notwithstanding the apparent conflict of interest, also represented the
Scharfs.

¶12 Meanwhile, Dr. Trabucco moved to dismiss the 2013 Mohave
County case for failure to prosecute, and in June 2014, that case was
dismissed with prejudice by stipulation of the parties. Also, in July 2014,
the bankruptcy court entered an order discharging Dr. Trabucco from all
pre-petition debts.

¶13 In September 2014, Cogan filed an answer and counterclaims
in this case, alleging a “survival claim” and wrongful death claim on behalf
of the Scharfs. Cogan also filed a new complaint on behalf of the Scharfs in
federal district court, alleging medical negligence and wrongful death
claims against Dr. Trabucco.

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¶14 In January 2015, the superior court granted Dr. Trabucco’s
motion for summary judgment on the counterclaims in this case.4 Dr.
Trabucco then filed a First Amended Complaint, adding a claim for
negligent hiring, supervision, and retention against Cogan regarding the
hiring of his paralegal, Joanne Cardone. In March 2015, Dr. Trabucco filed
a Second Amended Complaint in this case, extending the claims of
negligent hiring, supervision, and retention to Cogan’s business entity.

¶15 In January 2016, Dr. Trabucco moved for partial summary
judgment as to liability in this case. Cogan and the Scharfs cross-moved for
partial summary judgment. After further briefing and oral argument in
April 2016, the court took the matter under advisement.

¶16 Meanwhile, on October 6, 2017, the jury in the federal district
court medical negligence case found unanimously in favor of Dr. Trabucco.
Dr. Trabucco then filed an unopposed supplement to his motion for partial
summary judgment in this case, informing the superior court of the result
in federal court.

¶17 In January 2018, the superior court granted partial summary
judgment in favor of Dr. Trabucco against Cogan and the Scharfs, finding
no genuine issue of material fact as to their liability on the malicious
prosecution and abuse of process claims. Later, in the parties’ joint pretrial
statement, the parties stipulated in part as follows: “Defendants filed a
lawsuit against [Dr. Trabucco] alleging without probable cause that he
intentionally and maliciously caused the death of his own patient, which
was false.”

¶18 At the July 2018 trial, which was to be limited only to the
damages caused by Cogan’s and the Scharfs’ malicious prosecution and
abuse of process, Dr. Trabucco claimed that, as a result of the actions of
Cogan, the Scharfs, Joanne Cardone, and others, he lost his medical practice
and had been damaged emotionally and financially.5 The jury awarded

4 The record is unclear as to why the superior court granted the
motion; however, during oral argument Cogan conceded he and the Scharfs
were “okay if this court dismisses the counterclaim.”

5 Although not explicitly noted in the record, the parties at the
appellate oral argument agreed that the claims for intentional infliction of
emotional distress and negligent hiring/supervision/retention had been
abandoned and subsequently were not to be presented to or considered by

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$6,232,000 in compensatory damages and $1,768,000 in punitive damages,
plus costs, to Dr. Trabucco and against Cogan, while assessing no damages
against the Scharfs.

¶19 Cogan did not file any post-trial motions but filed a timely
notice of appeal from the court’s signed judgment. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

ANALYSIS

I. Standard of Review

¶20 The superior court should grant summary judgment when
“there is no genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). We review
de novo the grant of summary judgment, viewing the facts and all
reasonable inferences therefrom in the light most favorable to the party
against whom judgment was entered. Felipe v. Theme Tech Corp., 235 Ariz.
520, 528, ¶ 31 (App. 2014) (citation omitted). “Summary judgment should
be granted ‘if the facts produced in support of the claim or defense have so
little probative value, given the quantum of evidence required, that
reasonable people could not agree with the conclusion advanced by the
proponent of the claim or defense.’” Aranki v. RKP Invs., Inc., 194 Ariz. 206,
208, ¶ 6 (App. 1999) (quoting Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990)).

II. Cogan’s Objections to Authenticity

¶21 Cogan argues the superior court should have denied Dr.
Trabucco’s motion for partial summary judgment because several of the
exhibits provided in support of the motion lacked authentication and were
not admissible.

¶22 “The trial court has broad discretion in admitting evidence,
and we will not disturb its decision absent clear abuse of discretion and
prejudice.” Pima Cty. v. Gonzalez, 193 Ariz. 18, 22, ¶ 14 (App. 1998) (citation
omitted). “In ruling on a party’s motion for summary judgment, the trial
court should consider those facts that would be admissible in evidence.” In
re 1996 Nissan Sentra Vin: 1N4AB41D1TC74220 Az Lic: 162ARH, 201 Ariz.

the jury. (However, we also note that, although not relevant to the
remaining claims, the jury received substantial inflammatory evidence of
Joanne Cardone’s actions and communications concerning Dr.
Trabucco—actions and communications that were apparently never
authorized or approved by either Cogan or the Scharfs.)

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114, 117, ¶ 6 (App. 2001). In general, such facts “are those which are set
forth in an affidavit or a deposition; an unsworn and unproven assertion in
a memorandum is not such a fact.” Id. (citing Prairie State Bank v. IRS, 155
Ariz. 219, 221 n.1A (App. 1987)); Ariz. R. Civ. P. 56(c)(5), (6). A proponent
of evidence must establish foundation for it by first authenticating or
identifying the evidence. Ariz. R. Evid. 901(a). The proponent does this by
producing evidence “sufficient to support a finding that the item is what
the proponent claims it is.” Id. In considering whether evidence has been
properly authenticated, we have adopted a flexible approach, “allowing a
trial court to consider the unique facts and circumstances in each case—and
the purpose for which the evidence is being offered.” State v. King, 226 Ariz.
253, 257, ¶ 9 (App. 2011) (quoting State v. Haight–Gyuro, 218 Ariz. 356, 360,
¶ 14 (App. 2008)).

¶23 Cogan raised specific objections to the authenticity of certain
exhibits in his written response opposing the motion for partial summary
judgment, and he again made a generalized objection at oral argument on
the motion. Although Dr. Trabucco argues Cogan never filed a
controverting statement of facts in response to Dr. Trabucco’s statement of
facts supporting his motion for partial summary judgment, Cogan correctly
notes that an objection may be included in a party’s responsive
memorandum. See Ariz. R. Civ. P. 56(c)(4). Accordingly, we decline to
apply waiver to Cogan’s argument on this basis.

¶24 Further, we agree with Cogan that Dr. Trabucco bore the
burden of proof as to the authenticity of the proffered exhibits. See Ariz. R.
Evid. 901(a); see also Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 211, ¶ 1
(App. 2012) (“[A] plaintiff cannot shift the burden of proof to the defendant
by filing a motion for summary judgment.”); MidFirst Bank v. Chase, 230
Ariz. 366, 368, ¶ 6 (App. 2012) (“[T]he movant has the burden of proving
both the absence of a genuine issue of material fact as to each element of its
claim, and that it is entitled to judgment as a matter of law.” (citation
omitted)).

¶25 Nevertheless, although Cogan objected to the authenticity of
certain exhibits in the superior court, he did not specifically object to all the
exhibits to which he now objects on appeal, including his own e-mails. See
Ariz. R. Civ. P. 56(c)(4) (“Any objection presented in the party’s response to
the separate statement of facts must be stated concisely.”). Further, in his
“Statement of Uncontested Facts in Support of Motion/Cross Mot[]ion for
Partial Summary Judgment,” he affirmatively relied on several of the
exhibits he now objects to on appeal, including other of his own e-mails,
effectively conceding the authenticity of these exhibits. Moreover, the

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transcript of the July 9, 2014 oral argument on Cogan’s motion to dismiss,
which Dr. Trabucco describes as “perhaps the most important exhibit of all”
and relies upon for admissions by Cogan, is a “full, true and accurate”
transcript of the proceedings in open court as certified by the official court
reporter’s signature, and is a part of this court’s official record.

¶26 Finally, we agree with Dr. Trabucco that Cogan makes no
coherent argument in support of a finding of either abuse of discretion by
the judge or prejudice to Cogan as a result of the court’s apparent decision
to overrule any authenticity objections and consider the subject exhibits.
Nonetheless, because the plaintiff always bears the ultimate burden of
persuasion to prove its claim and cannot simply rely on deficiencies in a
defendant’s response to a motion for summary judgment, Wells Fargo Bank,
231 Ariz. at 211, ¶ 1, we conduct our de novo review mindful of the
requirement that Dr. Trabucco independently demonstrate with admissible
evidence his entitlement to summary judgment as a matter of law.

III. Malicious Prosecution

¶27 Cogan argues the superior court erred in granting Dr.
Trabucco’s motion for partial summary judgment as to malicious
prosecution. To prove malicious prosecution, a plaintiff must show the
defendant (1) instituted a proceeding, (2) motivated by malice, (3) without
probable cause, (4) that terminated in the plaintiff’s favor, and (5) damaged
the plaintiff. Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 411, 416-
17 (1988); Bird v. Rothman, 128 Ariz. 599, 602 (App. 1981).

A. Malice

¶28 Cogan does not dispute that he instituted civil and adversary
bankruptcy actions against Dr. Trabucco, but he argues the superior court
erred in determining his actions were motivated by malice.

¶29 “The malice element in a civil malicious prosecution action
does not require proof of intent to injure.” Bradshaw, 157 Ariz. at 418 (citing
Restatement (Second) of Torts (“Restatement”) § 676 cmt. c (1977)).
“Instead, a plaintiff must prove that the initiator of the action primarily
used the action for a purpose ‘other than that of securing the proper
adjudication of the claim.’” Id. (citations omitted).

¶30 Here, Cogan admitted his primary motivation in accusing Dr.
Trabucco of willfully and maliciously killing his patient was to prevent Dr.
Trabucco from obtaining a bankruptcy discharge. During oral argument

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before the superior court on an earlier motion to dismiss Cogan filed in this
case, Cogan told the court why he made the allegations:

Under bankruptcy law, negligence is a dischargeable
matter of law. We were required to show willful, malicious
injury which necessarily involves intentional conduct and
kind of extreme and outrageous intentional conduct, and
thus, the amended complaint was fashioned as such.

....

I had to file this case under a willful and malicious
injury under the bankruptcy code as negligence is
dischargeable and therefore the amended complaint was
fashioned as such, and we made those allegations.

Moreover, in his e-mails to Holden, Cogan admitted this was his primary
motivation for the allegations, and even that he believed these allegations
were “unfair” to Dr. Trabucco. Thus, Cogan’s articulated purpose in filing
the First Amended Complaint in bankruptcy court was not to secure the
proper adjudication of the claim but rather a legal ploy designed solely to
prevent the Scharfs’ claim from being discharged in the bankruptcy
proceedings.

¶31 Because Cogan admitted bringing the intentional tort claims
for an improper purpose, the superior court did not err in finding Dr.
Trabucco had shown the existence of the malice element of malicious
prosecution.

B. Probable Cause

¶32 Cogan also argues the superior court erred in finding he
lacked probable cause to bring the claims he alleged in the First Amended
Complaint in bankruptcy court.

¶33 Probable cause is determined by the court as a question of
law. Bradshaw, 157 Ariz. at 419. To meet a showing of probable cause, “[t]he
initiator of the action must honestly believe in its possible merits; and, in
light of the facts, that belief must be objectively reasonable.” Id. at 417 (citations
omitted). Thus, although the initiator of the original action need not be
certain he will prevail, he must reasonably believe in the possibility the court
will find his claim valid. Id. at 417-18; but see In re Am. Cont’l Corp./Lincoln
Sav. & Loan Sec. Litig., 845 F. Supp. 1377, 1384 (D. Ariz. 1993) (concluding
that, “as long as the underlying lawsuit is not objectively baseless, the

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plaintiff cannot be held liable for bringing the suit even if the plaintiff’s
motives were malicious” (citing Prof’l Real Estate v. Columbia Pictures Indus., 508 U.S. 49, 57 (1993))).

¶34 Probable cause does not exist “merely because at the time an
action is filed there is some evidence that will withstand a motion for
summary judgment.” Bradshaw, 157 Ariz. at 417. “Such a rule . . . would be
unwise because it would permit people to file actions they believed or even
knew to be unfounded simply because they could produce a scintilla of
evidence sufficient to withstand a motion for summary judgment.” Id.
Instead, the test is whether the initiator of the action “reasonably believes
that he has a good chance of establishing his case to the satisfaction of the
court or the jury.” Id. (citation omitted).

¶35 On appeal, Cogan argues his probable cause to allege Dr.
Trabucco maliciously and willfully killed his patient during surgery was
that the patient, Gerald Scharf, “died only three days after what was to be
a simple 2½ hour surgery [which] actually [took] approximately nine hours
and where Dr. Trabucco said that the surgery went well.” Also, in a
previous e-mail, Cogan argued he had probable cause because Dr. Trabucco
had “consent to open the [surgical] field and did not.” However, before
dismissal of the First Amended Complaint in the bankruptcy proceeding,
Cogan had produced no witness, much less an expert, opining that this
even constituted medical negligence, let alone any objective evidence to
support the allegations of willful and malicious behavior.6 Further, he has
still not produced any evidence showing he had an objectively reasonable
basis for claiming Dr. Trabucco willfully and maliciously killed his own
patient. Accordingly, as a matter of law, Cogan had no probable cause for
these claims.7

6 Cogan notes that, before the 2017 trial in federal district court, he
produced two expert witnesses, including a causation expert, Dr. Donald
Mellman, whose testimony might have supported a claim of negligence.
Needless to say, such opinion evidence—even if admissible in a negligence
case—falls far short of the heightened proof required to establish willful
and malicious acts.

7 Cogan also argues the bankruptcy adversary case was not
“maintained” because it was ultimately dismissed voluntarily and with
prejudice. This argument is a non sequitur, however, because maintenance
of the offending lawsuit is not a necessary element of malicious
prosecution.

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C. Termination of Proceedings in Dr. Trabucco’s Favor

¶36 Cogan next argues the bankruptcy adversary proceedings
were not terminated in Dr. Trabucco’s favor because there was no trial, only
a voluntary dismissal of the First Amended Complaint.

¶37 In general, the existence of a favorable termination is a
question of law. See Lane v. Terry H. Pillinger, P.C., 189 Ariz. 152, 155-56
(App. 1997). “Civil proceedings may be terminated in favor of the person
against whom they are brought . . . by (1) the favorable adjudication of the
claim by a competent tribunal, or (2) the withdrawal of the proceedings by
the person bringing them, or (3) the dismissal of the proceedings because
of his failure to prosecute them.” Frey v. Stoneman, 150 Ariz. 106, 110 (1986)
(quoting Restatement § 674 cmt. j). A voluntary dismissal with prejudice
does not as a rule amount to a judgment on the merits. Wetzler v. Howell, 37
Ariz. 381, 385 (1930). When a termination or dismissal indicates the
defendant is innocent of wrongdoing, it is a favorable termination;
however, if it is merely procedural or technical, the dismissal is not a
favorable adjudication on the merits. Lane, 189 Ariz. at 154 (citing Frey, 150
Ariz. at 110; W. Prosser & W. Keeton, Law of Torts § 119 at 874 (stating that,
for a termination to be favorable, it must reflect on the merits and not be
merely a procedural victory)). To make such a determination, the court
must evaluate whether the dismissal substantively reflects on the merits,
such that, if it had been pursued, it would surely have resulted in a decision
in favor of the defendant. Frey, 150 Ariz. at 111 (citations omitted).

¶38 Here, there is no material dispute of fact about the
circumstances under which Cogan’s intentional tort claims were dismissed,
and that the dismissal reflected substantively on the merits, such that, had
the matter been pursued, it would have certainly resulted in a decision in
favor of Dr. Trabucco. Dr. Trabucco’s counsel, Holden, demanded in a
series of e-mails and other written correspondence that Cogan stipulate to
dismiss the claims of “malicious and willful” conduct in bankruptcy court
because they were baseless, and to agree the remaining allegations for
negligence could be tried in a separate action in state or federal court.
Cogan produced no evidence to support his intentional tort claims, and
eventually agreed to dismiss those claims with prejudice, albeit with the
stipulation that the Scharfs be allowed to refile a negligence action against
Dr. Trabucco with approval from the bankruptcy court. Given that the
intentional tort claims alleging malicious and willful conduct on the part of
Dr. Trabucco were dismissed with prejudice, this outcome was clearly a
favorable termination for Dr. Trabucco as to such claims. Accordingly, the

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superior court did not err in concluding that bankruptcy adversary
proceedings were terminated in Dr. Trabucco’s favor.

¶39 On this record, the court’s decision to grant partial summary
judgment against Cogan on the claim of malicious prosecution was
supported by the facts and law, and we affirm that ruling.

IV. Abuse of Process

¶40 Cogan also argues the superior court erred in granting Dr.
Trabucco’s motion and denying his cross-motion for partial summary
judgment as to abuse of process.

¶41 “The essential elements of the tort of abuse of process are an
ulterior purpose and a wilful act in the use of judicial process not proper in
the regular conduct of the proceeding.” Bird, 128 Ariz. at 602 (citations
omitted); accord Nienstedt v. Wetzel, 133 Ariz. 348, 353 (App. 1982) (requiring
“(1) a willful act in the use of judicial process; (2) for an ulterior purpose not
proper in the regular conduct of the proceedings”).

¶42 “Filing of a lawsuit is a ‘regular’ use of process, and therefore
may not on its own fulfill the requirement of an abusive act, even if the
decision to sue was influenced by a wrongful motive, purpose or intent.”
Simon v. Navon, 71 F.3d 9, 16 (1st Cir. 1995) (citations omitted); accord Joseph
v. Markovitz, 27 Ariz. App. 122, 125 (1976) (“Abuse of process differs from
malicious prosecution in that the gist of the tort is not commencing an
action or causing process to issue without justification, but misusing, or
misapplying process justified in itself for an end other than that which it
was designed to accomplish.”); see also Restatement § 682 cmt. a (“The
gravamen of the misconduct for which the liability stated in this Section is
imposed is not the wrongful procurement of legal process or the wrongful
initiation of criminal or civil proceedings; it is the misuse of process, no
matter how properly obtained, for any purpose other than that which it was
designed to accomplish.”).

¶43 Cogan argues that the ulterior purpose element Dr. Trabucco
appeared to primarily if not fully rely on for his abuse of process claim “is
from the hiring of Mrs. Cardone,” and he raises several arguments why the

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superior court should not have relied on the actions of Joanne Cardone in
finding that he abused the legal process.8

¶44 Rather than address these arguments on appeal, Dr. Trabucco
instead argues the filing of the bankruptcy adversary claim alone sufficed
to constitute abuse of process because through the claim, Cogan wrongfully
attempted to prevent Dr. Trabucco’s discharge from bankruptcy. However,
as Cogan correctly notes, he did not seek or obtain the denial of Dr.
Trabucco’s discharge under 11 U.S.C. § 727; instead, Cogan’s goal in filing
the adversary complaint was to preserve an exception to the discharge, i.e.,
the non-dischargeability of a debt under 11 U.S.C. § 523(a)(6). More to the
point, reliance on the filing of the claim alone improperly conflates the
malicious prosecution claim with the abuse of process claim.

¶45 Dr. Trabucco further argues that “even if there were some
technical defect in characterizing Dr. Trabucco’s claim as ‘abuse of process’
as opposed to [malicious prosecution], and in awarding summary
judgment thereon, such error would be harmless under the circumstances,
since both claims arose out of exactly the same facts; there is no meaningful
distinction in the damages available for each; and the two torts are very
closely related, to the point of often being confused for the same.”9 He then
cites several cases for the proposition that malicious prosecution and abuse
of process are often confused and closely related torts. Although we
generally agree with that proposition, it does not serve to advance Dr.
Trabucco’s argument for affirming partial summary judgment on the abuse
of process claim on any independent ground. Accordingly, on this record,
we reverse summary judgment as to Dr. Trabucco’s abuse of process claim
and direct the superior court to enter judgment in favor of Cogan as to
liability on the abuse of process claim only.

¶46 Additionally, we disagree with Dr. Trabucco’s argument that
the claims of malicious prosecution and abuse of process (and the damages

8 We note that Cogan did not object to this evidence at trial,
notwithstanding Dr. Trabucco’s abandonment of the negligent
hiring/supervision/retention claim (as well as the intentional infliction of
emotional distress claim).

9 At oral argument on appeal, counsel for Dr. Trabucco suggested the
two torts might be combined into what counsel characterized as an
“übertort” of wrongful use of litigation. We decline counsel’s suggestion
to combine the two torts in this fashion.

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Decision of the Court

associated with each) arise out of exactly the same facts.10 Although many
of the facts underlying each tort may be the same, each individual tort relies
on separate facts for its basis. Moreover, those separate facts provide not
only the basis for an independent cause of action, but also an independent
basis for damages, which obviously may vary greatly based on the jury’s
view of the actions associated with each tort. Neither the trial on damages,
nor the jury’s verdict, nor the resulting judgment identified or
distinguished between the damages associated with each tort; after
carefully reviewing the entire record of the trial, we cannot, either.
Accordingly, the jury’s verdict with respect to Cogan must be vacated11 and
the matter remanded for a new trial as to the damages, if any, arising out of
Cogan’s malicious prosecution of Dr. Trabucco in bankruptcy court.12

V. Dr. Trabucco’s Supplemental Filing

¶47 Cogan also argues the superior court erred in allowing Dr.
Trabucco to supplement his motion for partial summary judgment with
evidence of the trial proceedings in federal district court.

¶48 The issue here is whether the superior court could consider
the fact that a federal court jury returned a defense verdict in favor of Dr.
Trabucco on the Scharfs’ wrongful death negligence allegations, not
whether any jury in this case should be advised of that fact, which would
likely require an analysis under Rule 403, Ariz. R. Evid.

10 Although both claims as alleged by Dr. Trabucco had their genesis
in the filing of the First Amended Complaint (with its allegations of an
intentional tort) in bankruptcy court, Dr. Trabucco largely relied at trial on
the individual actions of Joanne Cardone—most of which occurred before
Cogan ever hired her—to argue that he had been damaged, ostensibly by
an abuse of process.

11 Dr. Trabucco did not cross-appeal from the judgment in favor of the
Scharfs. Accordingly, that portion of the judgment remains and is final.

12 The superior court retains the role of gatekeeper of the evidence, see
generally State v. Damper, 223 Ariz. 572, 577, ¶ 20 (App. 2010), and at trial on
remand, the jury should be presented only with evidence related to the
malicious prosecution damages. Subject to proper objection, evidence of
Joanne Cardone’s unauthorized activities and other evidence that relates
only to the claims of abuse of process, intentional infliction of emotional
distress, or negligent hiring/supervision/retention should not be admitted.

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Decision of the Court

¶49 It was within the discretion of the trial judge to take judicial
notice of the proceedings in the federal district court matter, including the
verdict. See Ariz. R. Evid. 201 (allowing courts to take judicial notice of facts
that are not the subject of reasonable dispute); Muscat, 244 Ariz. at 196, ¶ 5
n.2. But even assuming any error, there is no indication that such error had
any obvious effect. Cogan did not object to the supplement, fails to argue
on appeal that he could not have responded to it, and does not argue, much
less show, that he was prejudiced by it. The court referenced the
supplement in its minute entry granting partial summary judgment, but the
record is not clear as to what extent the court may have relied on it. Finally,
the evidence before the superior court was more than sufficient to support
the court’s finding of liability as to malicious prosecution without the
supplement.

VI. Costs on Appeal

¶50 Dr. Trabucco requests his costs on appeal, pursuant to A.R.S.
§§ 12-341 and 12-342. Because neither side has been entirely successful on
appeal, we decline to award costs to either party.

CONCLUSION

¶51 For the foregoing reasons, we affirm the finding of liability for
malicious prosecution, reverse the finding of liability for abuse of process,
vacate the judgment with regard to the damages awarded against Cogan,
affirm the judgment with regard to the Scharfs, and remand with directions
for the superior court to enter judgment in favor of Cogan as to liability on
the abuse of process claim only and, as consistent with this decision, for a
new trial on the issue of damages arising out of Cogan’s malicious
prosecution of Dr. Trabucco in the bankruptcy proceedings.

AMY M. WOOD • Clerk of the Court
FILED: AA

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