Cunningham v. Jensen

Gary and Martha Cunningham (the Cunninghams) (plaintiffs) entered into a contract to purchase real property from Donald and Charolette Jensen (the Jensens). The Cunninghams sued the Jensens and their grandson Arthur Hansen for making misrepresentations to entice them into purchasing the property. The Jensens and Hansen retained the law firm of Brassey, Wetherell, Crawford, and McCurdy (BWC&M) to represent them. During the lawsuit, the Cunninghams sought the imposition of sanctions against BWC&M and a default judgment based on the actions of the Jensens, Hansen, and BWC&M in delaying and stalling the case. The case ultimately was settled, but prior to settlement, the Cunninghams sued the Jensens and Hansen, as well as William McCurdy, J. Nick Crawford, and BWC&M (collectively, BWC&M) (defendants) for abuse of process, conspiracy to abuse process, and intentional infliction of emotional distress. The Cunninghams alleged that the Jensens, Hansen, and BWC&M delayed filing an answer and the taking of depositions, refused to appear for depositions, refused to comply with document-production requests, presented false and perjured testimony and affidavits, refused to comply with the court’s order compelling discovery, and filed motions and pleadings that were not intended to advance the litigation. The district court granted BWC&M’s motion to dismiss the claim alleging intentional infliction of emotional distress. The Cunninghams appealed, arguing that the sanctions imposed by the court and attorney fees awarded in the previous litigation demonstrated that BWC&M’s actions were extreme and outrageous and that the district court erred in ruling that the proper remedy was court sanctions rather than a separate tort action.