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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 1-16-2020
TRABUCCO v. COGAN

Decision of the Court

2

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.
TRABUCCO v. COGAN

Decision of the Court

3

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).
TRABUCCO v. COGAN

Decision of the Court

4

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.”).
TRABUCCO v. COGAN

Decision of the Court

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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.
TRABUCCO v. COGAN

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6

¶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
TRABUCCO v. COGAN

Decision of the Court

7

$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.)
TRABUCCO v. COGAN

Decision of the Court

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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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Decision of the Court

9

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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Decision of the Court

10

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 
TRABUCCO v. COGAN

Decision of the Court

11

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 21⁄2 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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Decision of the Court

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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 
TRABUCCO v. COGAN

Decision of the Court

13

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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Decision of the Court

14

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.
TRABUCCO v. COGAN

Decision of the Court

15

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.
TRABUCCO v. COGAN

Decision of the Court

16

¶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.