NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0613n.06 Nos. 10-1008, 10-1071 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

H A R R Y P A R T R I C H ; R I C H A R D G
. PARTRI CH, as the persona l repr esenta tive of the Estate of

Har ry Partrich, Pl a in ti f f s - Appellants /C r o s s - A

p p e ll e e s , v. DONNAFARB ER, Def endant- Appellee , STEVEN SOFF ERI

N, Def endant- Appellee /Cross-Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COU R T FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : BOG GS, GI L MAN, and COOK , Circuit J udg es. COOK, Circuit J udg e. Af ter pre vailing in a

nasty probate dispute, Har

ry Partrich sued his stepchildren (the “childre n”) for malicious prose cu t i on and abuse of proce ss. The district court dismiss ed the malicious-prosec ution claim for failure to plead special i njury an d l at er grante d the children summar

y judgme nt on the abuse- of-pr ocess c laim. We affirm.
I
.Nos. 10-1008, 10-1071

Partrich v. Farber
J oan Partrich died intesta te. At the time of her death, she and her husband, Har ry Partrich, jointly owned a rig ht-of-sur vivorship bank account with a balance of about $350,000. After J oan died, Partrich foug ht extensively with J oan’s children, Donna Fa rber and Steven Soffer in, over how to divide J oan’s proper

ty , with Partrich insisti ng that the children had no rig ht t o a m o n et ary inheritanc e.
After J oan’s funer al, Fa

rber and Soffer in petitioned to probate J oan’s estate. They initially did not challeng e Partrich’ s interest in the estate, but instead repr esente d that they intended to pursue a medica l-malprac tice cla im a g ainst J oan’s doctors. Partrich f orwa rded Joan’s medica l rec ords to the childre n, who neve r did file a ma lprac tice suit.
Partrich e ventually

asked the probate court to close the estate. This prompted the children to issue Partrich an ulti m at u m : either he pay them $175,000 or they would object to closing the estate on the g round t h at t h e es t ate had a wrong ful-death claim ag ainst him beca use he withheld medical car e near the end of J oan’s life. When Partrich ref used to pay them, the children filed their objections.
Partrich’ s ref

usal did not dissuade the children. They reiter ated their demand for $175,000 and advised Partrich that if the parties could not neg otiate a settlement, they would petition the court to revoke his interest i n J oan’s estate, pursuant to Michig an’s slay er statute, on the theory that he killed her by withholding medical car e. Partrich ag ain ref used; the children ag ain followed throug h, this ti me filing a Petition to R evoke B enef its. - 2 -Nos. 10-1008, 10-1071

Partrich v. Farber The probate court, u n i m p re s sed by the children’s slay er- statute alleg ation, dismiss ed their objections and their Petition to Revoke Be nefits; sanctioned Fa rber , Soffer in, and their attorney for fa iling to conduct a rea sonable inquiry into exis ting law befor e invoking the slay er st at u t e; an d closed Joan’s estate.
Partric h , h umiliated, sued Fa rber and Soffer in for malicious prosec ution and abuse of proce ss. The district court dismiss ed the malicious-prosec ution claim and later g rante d the children summary judgme nt on the abuse- of-pr ocess claim. Patrich appea ls both losses; Soffer in appea ls the denial of his motion to dism iss the latter cla im.
I I
. A.
We revie w de novo the di smissal of P artric h’s m alicious-pr o s ec u t i on claim under Fe dera l Rule of Civil Procedur e 12(b)( 6), see Louisvill e/Je fferson Cnty. Metro G o v ’ t v . H o te ls

. c o m , L.P. , 590 F.3d 381, 384 (6th Cir. 2009), asking whether the compl ai n t “c o ntain[s] sufficie nt fac tual matter,
acc epted as true, to sta

te a claim to r elief that is plausible on its fac e,” Ashcroft v. Iqbal , 129 S. Ct. 1937, 1949 (2009) ( internal quotation marks a nd citation omitted).
For a malicious-prosec ution cl ai m to survive a motion to dismiss , a plaintiff must alleg e, among other things, specia l injury
. Friedman v. Dozorc , 312 N.W.2d 585, 600 (Mich. 1981). The district court held that Partr ich fa iled to plead spec ial injury , and we ag ree . - 3 -Nos. 10-1008, 10-1071

Partrich v. Farber
The Michig an courts rec og nize three ty pes of specia l injury : injury to fame , to proper ty , and to person or liberty
. See, e.g. , Barnard v. Hartman , 344 N.W.2d 53, 54 (Mich. Ct. App
. 1 9 83). Partrich contends that his a lleg ations satisfy the first and se cond ty

pes. His complaint alleg es that the children’s slay er- statute objection (1) damag ed his persona l reputa tion and ( 2 ) i n terfe red with his property

rig hts in his wife’s estate. Par trich’s a lleg ed “injurie s,” howe ver, do not suff ice.
1.
Partrich first asser

ts that the children, by filing t h e slay er- statute objection, injured his persona l reputation bec ause the y acc used him of murder ing his wife
. I njury to fame or reputa tion satisf i es t h e specia l-injury require ment only if it constitutes “unusual hardship,” which mea ns that “the injury

is of a kind not ordinarily resulting from simil ar
cause s.” Id. (interna l quotation marks and citation omitted). For example, a court repor ter suffe red
no unusual hardship wh en s h e was acc used of intentionally prepa ring a false and misleading transcr ipt be cause that ty

pe of a lleg ation would ordinarily mar a court re porter’ s reputation. Id. at 53–55. So, too, here
. Partrich’ s alleg ed injury —damag e to his persona l reputa tion when the children falsely acc used him of murdering his wife—is the kind that no rm all y flows from a slay er- statute alleg ation beca

use Mi chig an’s law divests a joi nt tenant of his right of survivorship only when he “fe lonious[ ly ] and intentional[ ly ]” kills the dece ased. See Mich. Comp. L aws § 700.2803(2)( b). I n
- 4 -Nos. 10-1008, 10-1071

Partrich v. Farber addition, the probate court reme died any reputa tional damag e when it overr u l ed the children’ s objections, dismiss ed their Petition to Revoke Be nefits, and imposed sanctions. See Barnard , 344 N.W.2d at 54 (“When the action is tried in public, [pl aintiff’s] fair fame will be clea red, if it deser

ves to be clea red . . . .” (interna l quotation marks and citation omitted)).
Partrich attempts to disting uish his case on two g rounds, but to no avail. He first contends that, unlike Barnard ’s cour t reporte r, he suffe red damag e to his persona l, r ather than profe ssional, reputa tion. But thi s distinction misses the poi nt: Partrich alleg es an injury that ordinarily results when a party invokes the slay er statute, thus re moving it from the spe cial-injury cate g ory . See id. Second, Partrich claims that the scanda lous nature of the children’ s acc usation eleva tes his injury to an unusual har dship. This arg ument rests entire ly upon one historical obse rvation by the Michig an Supreme Cour t : t h at in Eng land, in 1698, “injury to one’s fame (as by a scanda lous alleg ation)” would support a malicious-pros ec u t ion action. Friedman , 312 N.W.2d at 596. Unfortuna tely , neither Friedman nor any other case elabor ates on this scanda lous-allega t ion statement or explains what constitutes a sufficie ntly scanda lous alleg ation. Yet nothing that Partrich cites allows him to circ umvent the require ment that he alleg e an injury “not ordinarily resulting from simil ar cause s,” Barnard , 344 N.W.2d at 54 (interna l quotation marks and citation omitted)—which he fa ils to do.

- 5 -Nos. 10-1008, 10-1071

Partrich v. Farber
2.
Partrich next asser

ts that the children constructively seized his proper ty when they invoked the slay er statute beca

use “[he] wa s leg ally barr ed from alienating ” the money in the bank acc ount until the probate c ourt fully adjudicate d the childre n’s claim.
A “tec hnical or constructive seizure of proper ty ” satisfies Michig an’s specia l-injury require ment. Friedman , 312 N.W.2d a t 597. I n Brand v. Hinchman , for example, the court found
a “tec hnical taking and possession”—and thus a specia l injury —wher e office rs en t er ed a store to execute a writ of attachme nt on the merc hant’s g oods and preve nted the merc hant from selling any thing in his store. 36 N.W. 664, 667 (Mich. 1888). I n contra st, no s p ec i al i n j ury exis ts if the defe ndant’s use of

civil proce eding s does not cause any limit ation on alienation. See Kauff man v. Shefman , 426 N.W.2d 819, 822–23 (Mich. Ct. App. 1988) (holding that the filing of a lis pende ns
cause s no special injury

beca use the owne r may

still convey

the prope rty

).
Contrar y to Partrich’ s asser tions, the children’ s slay er- statute alleg ation did not lead to a “tec hnical taking ” of his proper ty beca use nothing preve nted him from spending —i.e., alienating

— J oan’s share of the $350,000. When J oan died, her interest in the couple ’s j o i n t -t enanc y acc ount devolved to Partrich, entitling him to all the money in the accou nt. See Mich. Comp. L aws §§ 700.1105(e) , 700.6101(1)( c). Thoug h the children later advocated for sever ing the joint tenanc y , see id. § 700.2803(2)( b), they did not ask the court to preve nt Partrich from using the money while they litigat e d th e s la

y e r - s ta tu te c laim. Be cause no temporar y injunction prohibited alienation of the funds, - 6 -Nos. 10-1008, 10-1071

Partrich v. Farber
Partrich instead claims that the children’ s mere alleg ation of murder leg ally barr ed any use. But he cites no authority support i n g h i s position. Moreove r, the slay er statute itself sug g ests just the opposite: even if the probate court had found hi m a killer, Partric h could have validly transfe rre d the money

—befor e or afte r the court decla red the sever ance —to any one who relied in g ood faith on his apparent title by survivorship. See id. § 700.2803(3). Nothing, there fore , prohibited him from spending the money

during the pende ncy

of the probate proc eeding s.
B.
We also revie w de novo the di s t ri ct court’s gr ant of summary judgme nt to the children on the abuse -of- proce ss claim. See Pluck v. BP Oil Pipeline Co. , 640 F.3d 671, 676 ( 6th Cir. 2011). We must aff

irm if, viewing the fac ts in Partrich’ s favor , see id. , the children “show[ed] that there is
no g enuine dispute as to any materia l fac t and [t hey are ] entitled to judgme nt as a matter of law,” see Fe d. R. Civ. P . 56(a)
. To rec over on an abuse- of-pr ocess claim, a plaintiff must show “(1) an ulterior purpose and (2) an act in the use of proce ss which is improper in the reg ular prosec uti o n o f t h e p ro ceeding .” Friedman , 312 N.W.2d at 594. The dist ri ct co u rt, finding the children’ s settlement demands consistent with the reg

ular use of probate proce eding s, h el d t h at Partrich failed to establish the second e lement: an improper use of pr ocess. We ag ree .

- 7 -Nos. 10-1008, 10-1071

Partrich v. Farber
A settlement offe r become s an i m p ro p er u s e of proce ss wher e the offe r seeks “more than objectives co m m o n l y s oug ht by claimants who initiate [si milar] lawsuits.” Y oung v. Motor City Apartments Ltd. Dividend Hous. Ass’n No. 1 & No. 2 , 350 N.W.2d 790, 795 (Mich. Ct. App. 1984). I n such a case , a claimant’s demand perve rts the reg ular proce ss beca use his or her true objective is
mere ly “collate ral to [t he suit’s] proper purpose.” Three Lakes Ass’n v. W hiting , 255 N.W.2d 686, 690–91 (Mich. Ct. App. 1977). I n Three Lakes , for example, a corpor ation soug ht tort damag es from
a nonprofit for obstructing the corpor ation’s condo projec t. Id. at 687–88. The corpor ation offe red to drop the suit if the nonprofit ended all of its opposition to the projec t, both leg al and illega l. Id. at 690. When the nonprofit later sued the corpor ation for abuse of proce ss, the court found the settlement demand co l l at er al to the purpose of the tort suit—and thus to be an improper use of proce ss—beca

use the c orpora tion asked the nonprof it to end even legal

opposition t o the projec t. Id. at 690–91.
Her e, in contra st to Three Lakes , the children’ s settlement offe r fully comports with the relief they soug ht throug h probate
. I f the children’ s slay er- statute alleg ation had succe eded, J oan’s estate would have pa ssed to them as her intestate heirs. See Mich. Comp. L aws § 700.2103(a ). And the children’ s settlement demand—$175,000—r oug hly equate s to the value of that estate. Their offe r thus “depic t[ s] nothing inconsistent with the zealous repr esenta tion of claims that is inhere nt in our adver sary sy stem.” Y

oung , 350 N.W.2d at 795.

- 8 -Nos. 10-1008, 10-1071

Partrich v. Farber
Partrich neverthe less contends that the probate court’s ina bility to awa rd t he children cash rende rs their settlement demand collater al to the proper purpose of their objections and the Petition to Revoke Be nefits—i.e., an order decla ring him a “killer” and instructing him to transfe r the assets to J oan’s estate. But this arg ument eleva tes form over substance. J oan’s estate consisted primarily of cash; the children demande d a sum roug hly equivalent to the value of the estate that they would have rec eived had the slay er statute applied; and a settlement would have relieve d all parties of the need to litigate the slay er- statute claim and othe r objec tions.
Partrich thus identifies not hing unusual, irregular, or improper about this proce ss—except to label the slay er- statute all ega tion “fr ivolous” and “unfounde d.” The filing of a g roundless or basele ss claim, howeve r, does n ot rise to the level of abuse of proce ss. See Early Detec tion Ctr., P.C. v. N.Y

. Life Ins. Co. , 403 N.W.2d 830, 835 (Mich. Ct. App. 1986) (per curia m). Finally , Partrich arg ues that the children abused proce ss mere ly by opening the probate proce eding s beca

use they lied about their intentions. We, like the district court, decline to consider this arg ument. Partrich twice advanc ed the same arg ument below—and the court twice passed over it, noting his f

ailure to a lleg e in his complaint that the children’ s initiation of probate proce eding s, standing alone, constituted an improper act. I n addit i o n , d es pite the court advising him of its unwillingness to consider his newly asser ted theory , Partrich never moved to amend his complaint. See Fe d. R. Civ. P. 15. Under these circ umstances, we see no rea son to rule on this theory now. See

- 9 -Nos. 10-1008, 10-1071

Partrich v. Farber
Perez v. Aetna Life Ins. Co. , 150 F.3d 550, 554–55 (6th Cir. 1998) (en banc) (“Ty pically , we will not addre ss issues unless ruled upon by the trial cour

t below.”)
. The district court having proper ly g rante d t h e ch i l d ren summary judgme nt, we need not addre ss Sofferin’s c ross-appe al of the de nial of his motion to di smiss t his claim.
I I I
. For these re asons, we a ffirm the district c ourt’s judg ment.

- 10 -