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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RHYTHM MOTOR SPORTS, L.L.C., an Arizona limited liability

company, Plaintiff/Appellant,

v.

KEVIN L. BECKWITH and KEVIN L. BECKWITH P.C., an Arizona 

professional corporation, Defendants/Appellees.

No. 1 CA-CV 14-0010

Appeal from the Superior Court in Maricopa County

No. CV2012-013940

The Honorable Michael J. Herrod, Judge

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

The Calhoun Law Firm, PLC, Tempe 

By S. Jay Calhoun

Counsel for Plaintiff/Appellant

Broening Oberg Woods & Wilson, P.C., Phoenix

By Donald Wilson, Jr., Brian W. Purcell 

Counsel for Defendants/Appellees
RHYTHM v. BECKWITH

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2

AMENDED MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Peter B. Swann joined.

W I N T H R O P, Judge:

¶1 Rhythm Motor Sports, L.L.C. (“RMS”) appeals from the 

superior court’s entry of summary judgment in favor of Kevin L. Beckwith 

(“Beckwith”) and his law firm, Kevin L. Beckwith, P.C. (“Firm”), on claims 

of wrongful institution of civil proceedings (“WICP”) and abuse of process. 

For the following reasons, we affirm in part and vacate in part the entry of 

summary judgment on the WICP claim and affirm in part and vacate in part 

the entry of summary judgment on the abuse of process claim.

FACTS AND PROCEDURAL HISTORY1

I. The Underlying Litigation

¶2 RMS is an Arizona limited liability company that sells “after 

market” – or post-manufacture - parts for autos. George Sayegh, G & S 

Auto Sales and Leasing, Inc.’s (“G & S”) sole shareholder, bought a 

turbocharger tool kit from RMS in 2008. Sayegh paid cash to Nick

Cornelius, an employee of RMS, to begin work on installing the turbo kit in 

a G & S Honda Civic. Cornelius installed the turbo kit in November 2008. 

Dissatisfied with the installation, Sayegh had the Honda towed to Import 

Power House (“Import”) for additional work and retained Beckwith and 

Firm to recover damages. Invoices showed that Sayegh had the vehicle 

towed three times between G & S Auto Sale and Import and two times 

between G & S Auto Sale and G & S Auto Repair Shop.

¶3 Through Beckwith, G & S claimed that RMS’s improper work 

had “completely ruined the motor on the Honda.” In addition, G & S 

demanded “all of RMS’ repair receipts on this vehicle,” a refund for 

$2,818.91 in installation charges and repairs Import made to the Honda, and 

unspecified expenses to repair the motor. RMS refused to pay, arguing that 

 

1 We view the evidence and the inferences drawn from it in the light 

most favorable to RMS. Comerica Bank v. Mahmoodi, 224 Ariz. 289, 291, 293, 

¶¶ 13, 21, 229 P.3d 1031, 1033, 1035 (App. 2010).
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it had no installation contract with G & S and had not installed the turbo 

kit. G & S accordingly filed suit against RMS in 2010 for breach of contract 

and negligence and claimed $5,773.91 in damages (Maricopa County 

Superior Ct. No. CV2010-022443). The superior court referred the case to 

arbitration.

¶4 RMS moved for summary judgment based upon the lack of a 

written contract between RMS and G & S. In declining to grant the motion,

the superior court noted that the record was a “mess” and ordered 

Beckwith to amend G & S’s complaint and its disclosure statement to 

specify the alleged contract’s terms and to clarify G & S’s damages. Firm 

and Beckwith accordingly amended the complaint to include a $10,464.73 

damages claim for installation, repairs, a new motor, and towing charges.

RMS responded with a motion to dismiss, and the superior court 

subsequently denied the motion.

¶5 In deposition testimony, Sayegh explained that he had visited 

RMS to order high performance auto parts. While at RMS, Sayegh asked 

an employee of RMS, Nick Cornelius, if Cornelius was aware of anyone 

who could install the turbo kit. Cornelius told Sayegh he would install the 

turbo kit. In deposition testimony, both Sayegh and Cornelius denied that 

the installation work was done at RMS.

¶6 According to Sayegh’s testimony, Import mechanic Ramsey 

Leong had told him that “the vehicle is not running right, the turbo is not 

installed right.” In a disclosure statement filed on November 12, 2010, 

Beckwith similarly asserted that Leong would testify that RMS improperly 

installed the turbo kit, causing the Honda to lose its engine and G & S to 

sustain damages. But Leong later signed an affidavit stating that the turbo 

kit was properly installed and he made no repairs to it when Sayegh first 

brought it in. When Sayegh brought the Honda back to Import four months 

later seeking repairs to the turbo kit, Leong stated that he still found no 

issue with the turbo kit or its installation, and made unrelated repairs. 

Thereafter the car “operated great” and future visits turned up no problems 

with the turbo kit or its installation. Import eventually replaced the 

Honda’s engine at Sayegh’s request, after noting that it “had high mileage 

. . . and/or . . . the engine was pushed passed [sic] its limits.” Contrary to 

representations in the disclosure statement, Leong testified at a March 26, 

2012 evidentiary hearing that he had never told Beckwith that he would be 

an expert witness, and Leong stated it was “not [his] opinion” that the turbo 

kit was improperly installed.
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¶7 Ultimately, the arbitrator found that the RMS invoices “in no 

way demonstrate that Defendant contracted to install the turbo kit in 

question.” The arbitrator granted RMS its costs expended in proving that

there was no written installation contract and the final arbitration award 

included a finding that the G & S witnesses’ testimony was “contradictory

and, as a result, was not credible.” The superior court had previously 

concluded in a discovery hearing that Leong never held the opinions 

attributed to him in G & S’s Rule 26.1 Disclosure Statement. The court 

incorporated the arbitrator’s award in a judgment, which G & S did not 

appeal.

II. This Litigation

¶8 RMS then sued G & S, Beckwith, and Firm for WICP and 

abuse of process. All defendants moved for summary judgment on liability 

and damages. In support of these motions, Beckwith submitted an affidavit 

stating that he had brought suit based upon the RMS invoices and 

information received from Sayegh. The superior court granted summary 

judgment in favor of Firm and Beckwith, holding that RMS failed to 

establish that Beckwith and Firm had reason to know that the complaint 

was “objectively baseless.” The superior court, however, denied summary 

judgment as to the claims against G & S.

¶9 The superior court incorporated the summary judgment 

rulings concerning Beckwith and Firm in a Rule 54(b) judgment. This 

appeal followed. We have jurisdiction pursuant to Arizona Revised 

Statutes (“A.R.S.”) section 12-2101(A)(1).

2

ANALYSIS

I. Wrongful Institution of Civil Proceedings

¶10 Summary judgment is not warranted if there are material 

factual disputes or if the court must choose among competing inferences,

determine witness credibility, or weigh the quality of evidence. Taser Int’l, 

Inc. v. Ward, 224 Ariz. 389, 393, ¶ 12, 231 P.3d 921, 925 (App. 2010). We 

review the grant of summary judgment de novo. Great Am. Mortg., Inc. v. 

Standard Ins. Co., 189 Ariz. 123, 125, 938 P.2d 1124, 1126 (App. 1997). This 

court may affirm the summary judgment if the superior court “reached the 

right result for the wrong reason.” Aida Renta Trust v. Maricopa Cnty., 221 

 

2 We cite the current version of the statutes if no revisions material to 

our decision have occurred since the relevant dates.
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Ariz. 603, 608, ¶ 5, 212 P.3d 941, 946 (App. 2009) (citation and internal 

quotation marks omitted).

¶11 A WICP claim requires proof that the defendant “(1)

instituted a civil action which was (2) motivated by malice, (3) begun [or 

maintained] without probable cause, (4) terminated in plaintiff’s favor and 

(5) damaged plaintiff.” Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 

411, 416-17, 758 P.2d 1313, 1318-19 (1988). In this case, the pivotal issue is 

whether Beckwith and Firm had probable cause to begin or maintain the 

action. The plaintiff’s “failure to establish a lack of probable cause is a 

complete defense to an action for [wrongful use of civil proceedings].” 

Carroll v. Kalar, 112 Ariz. 595, 596, 545 P.2d 411, 412 (1976). Whether a 

particular set of facts establishes probable cause is a question for the court

only if the operative facts are undisputed. Smith v. Lucia, 173 Ariz. 290, 295, 

842 P.2d 1303, 1308 (App. 1992); see generally Bird v. Rothman, 128 Ariz. 599, 

603, 627 P.2d 1097, 1101 (App. 1981) (describing the jury’s function as 

“determin[ing] the actual facts of what the prosecuting party or attorneys 

performed in the way of investigation and research”).

A. The Probable Cause Standard

¶12 In support of the summary judgment motion on WICP, 

Beckwith filed an affidavit and a statement of facts relating that G & S’s 

complaint was based on information received from Sayegh, along with 

invoices and billing statements. Beckwith’s affidavit further provides that 

he honestly and in good faith believed that he had a good chance of 

establishing to a fact finder that G & S hired RMS to install the turbo kit and 

that RMS negligently installed it. To meet the probable cause standard, this 

affidavit and other evidence must satisfy both objective and subjective 

components. See Chalpin v. Snyder, 220 Ariz. 413, 419, ¶ 21, 207 P.3d 666, 

672 (App. 2008). In assessing the objective element, the initiator must 

“reasonably believe[] that he has a good chance of establishing [his case] to 

the satisfaction of the court or the jury.” Bradshaw, 157 Ariz. at 417, 758 P.2d 

at 1319 (quoting PROSSER & KEETON ON THE LAW OF TORTS 

(“PROSSER & KEETON”) § 120, at 893 (5th ed. 1984)).

¶13 In support of its ruling granting summary judgment on the 

WICP claim, the superior court relied in part on the underlying case judge’s 

decision to deny RMS’s summary judgment and Rule 12(b)(6) motions.

Contrary to Beckwith and Firm’s argument, these rulings are not a critical 

factor in the probable cause analysis. “The law has never recognized 

[surviving a summary judgment motion] as the test for malicious 

prosecution.” Bradshaw, 157 Ariz. at 417, 758 P.2d at 1319; Chalpin, 220 Ariz. 
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at 422-23, ¶ 38, 207 P.3d at 675-76 (“The test for objective probable cause is 

not whether a person can force an issue to trial.”). In this case, RMS’s two 

dispositive motions quickly followed the filing of the complaint and the 

amended complaint, and the superior court had directed G & S to further 

delineate its contract theory. The superior court’s rulings consequently

were not indicative of the ultimate merits of G & S’s claims.

B. Filing the Amended Complaint

¶14 RMS argues that, in addition to applying the wrong legal 

standard, the superior court overlooked material issues of fact preventing

resolution of the WICP claim as a matter of law. Although the evidence 

ultimately failed to support Sayegh’s version of events, there is no genuine 

dispute as to what facts Beckwith had at the time he filed the amended 

complaint. Applying the Bradshaw standard to these facts, we affirm the 

summary judgment on the WICP claim only with respect to Beckwith’s

filing of the amended complaint.

¶15 The arbitrator ultimately rejected Sayegh’s version of events. 

There is no genuine dispute, however, concerning what Sayegh told 

Beckwith about the case before the latter filed the amended complaint.

Sayegh told Beckwith that Cornelius, an employee of RMS, performed the 

installation upon payment of $1,500, and Sayegh had subsequently taken 

the vehicle to Import for repairs. He provided Beckwith with invoices for

repair work and towing expenses, as well as his American Express bill 

reflecting charges at RMS for unspecified items. RMS disputed Sayegh’s

version of events and denied performing the work. Beckwith did not have 

to believe RMS’s assertions; under Bradshaw, Beckwith also “did not have 

to be certain [G & S] would prevail; rather, [he] only had to reasonably 

believe in the possibility that the court would find [G & S’s] claim valid.”

Bradshaw, 157 Ariz. at 418, 758 P.2d at 1320. Based upon the documents,

Cornelius’s status as RMS’s employee, and Sayegh’s representations about 

Leong’s testimony, Beckwith could reasonably have believed at the 

inception of the litigation that he had a good chance under Bradshaw of 

establishing the existence of a contract and negligent installation. See Bird, 

128 Ariz. at 603-04, 627 P.2d at 1101-02 (granting summary judgment 

because the parties did not dispute the facts surrounding the plaintiff’s prefiling investigation and research). Regardless of the relative strength of the 

case, the record established probable cause to file the amended complaint.

See id.
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C. Maintaining and Continuing the Proceedings

¶16 The superior court based its summary judgment on RMS’s 

failure to establish that Beckwith and Firm had reason to know that G & S’s 

complaint was objectively baseless at the time of filing. RMS contends that 

the superior court erroneously failed to consider whether Beckwith also 

had probable cause to continue the prosecution of the action. We agree.

¶17 A WICP claim arises not only when a party brings suit, but 

also when it continues or maintains the litigation. See McClinton v. Rice, 76 

Ariz. 358, 367, 265 P.2d 425, 431 (1953) (explaining that the test is: “would a 

reasonably prudent man have instituted or continued the proceeding?”); see 

generally Restatement (Second) of Torts § 674 (1977) (a party may bring a 

WICP claim against one who “takes an active part in the initiation, 

continuation or procurement of civil proceedings against another”); id. cmt. 

c (explaining that a WICP claim may be asserted against one who “takes an 

active part in [a civil proceeding’s] continuation for an improper purpose 

after he has learned that there is no probable cause for the proceeding 

. . . .”).

¶18 The complaint’s WICP allegations are not limited to probable 

cause at the time of filing, and also extend to the post-filing activity of 

exchanging Rule 26.1 disclosure statements misrepresenting Leong’s 

opinion. Further, the claim incorporates the allegation that Beckwith and 

Firm made “false material statements” during the litigation and “they failed

to correct those statements.” Beckwith’s affidavit did not allege, and the 

superior court did not consider, whether Beckwith and Firm had probable 

cause to maintain and continue to prosecute the action after filing the 

amended complaint.

¶19 The record contains material evidence of Beckwith’s lack of 

diligent investigation after filing the amended complaint. Beckwith did not 

depose Cornelius during the pendency of the underlying lawsuit, and he 

failed to contact Leong, G & S’s designated expert and the mechanic 

performing the repairs, to verify Leong’s purported opinions. 

Consequently, G & S’s disclosure statements represented for months that 

Leong would testify that RMS negligently installed the turbo kit. During 

the evidentiary hearing, however, Leong denied that the turbo kit was 

negligently installed. Beckwith later admitted that Leong’s testimony was 

fatal to G & S’s claim for damages to the Honda’s motor, yet he failed to 

dismiss that claim prior to the arbitration hearing. Although probable 

cause existed at the time of filing, the record fails to support summary 

judgment on probable cause to continue and maintain the claim thereafter. 
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See Carroll, 112 Ariz. at 598-99, 545 P.2d at 414-15 (“If from one set of facts 

the conclusion can be inferred that probable cause exists, and from another 

that it does not, it is for the jury to determine the true state of facts.”). We 

therefore vacate the entry of summary judgment as it relates to the WICP 

claim concerning maintaining the underlying action after the filing of the 

amended complaint.

II. Abuse of Process

¶20 RMS also argues that Beckwith and Firm were not entitled to 

summary judgment on the abuse of process claim. This tort requires proof 

that a defendant committed a willful act in using judicial process for an 

ulterior purpose not proper in the regular conduct of the proceeding. 

Nienstedt v. Wetzel, 133 Ariz. 348, 353, 651 P.2d 876, 881 (App. 1982). “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.” PROSSER & KEETON § 121, at 

897.

¶21 The abuse of process tort extends to the “entire range of 

procedures incident to the litigation process” and includes noticing a 

deposition and general motion practice. Nienstedt, 133 Ariz. at 352, 651 P.2d 

at 880. On appeal, RMS narrows its abuse of process allegations to misuse 

of the subpoena, discovery, and the hearing processes. Specifically, RMS’s 

Opening Brief alleges that Beckwith and Firm (1) made false statements in 

an effort to disqualify RMS’s counsel, (2) issued two subpoenas to Leong, 

and (3) added new damages to the original complaint and filed it as an

amended complaint. Because RMS has developed legal and factual 

authority only with respect to G & S’s motion to disqualify RMS’s counsel, 

we limit our abuse of process review to that issue. See Polanco v. Indus. 

Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2 (App. 2007); see 

generally Ariz. R. Civ. App. P. 13(a)(6).

¶22 Liability for abuse of process results “only when the sense of 

awareness progresses to a sense of purpose, and, in addition the utilization 

of the procedure for the purposes for which it was designed becomes so

lacking in justification as to lose its legitimate function as a reasonably 

justifiable litigation procedure.” Nienstedt, 133 Ariz. at 354, 651 P.2d at 882. 

Beckwith based the disqualification motion on alleged improper contacts 

between RMS’s counsel and Leong, G & S’s designated expert. After a 

hearing, the superior court found that RMS’s counsel had obtained an 

affidavit from Leong. Nevertheless, the court denied G & S’s 
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disqualification motion in view of the lack of prejudice, explaining that 

Leong was never going to support G & S’s negligence theory.

¶23 Although Leong was disclosed by Beckwith as having expert 

opinions, Leong was not a retained or specially employed expert; instead 

he was, first and foremost, a fact witness. As such, counsel for RMS was 

entitled to contact Leong to determine his knowledge of the underlying 

events and the work performed on the Honda. In that regard, counsel for 

RMS exercised appropriate diligence. In contrast, Beckwith was not 

diligent relative to interviewing Leong. At a minimum, there is a question 

of fact as to Beckwith’s motivation for filing the motion to disqualify. 

Accordingly, we vacate the entry of summary judgment on this aspect of 

the abuse of process claim.

III. Remaining Issues

¶24 In its Opening Brief, RMS complains that the superior court 

(1) expanded the comparative fault statute by allowing Beckwith and Firm 

to identify RMS’s counsel as a non-party at fault; (2) erred by altering 

another superior court’s judgment; and (3) erroneously ignored collateral 

estoppel principles in ordering that Cornelius be deposed. Beckwith and 

Firm’s answering brief does not address RMS’s arguments as to these 

remaining issues. In addition, Beckwith and Firm concede that the superior 

court applied an illegal rate of interest.

¶25 Although the superior court initially denied RMS counsel’s 

Motion to Strike Beckwith and Firm’s “Notice of Non-Party at Fault,” the 

superior court ultimately granted RMS counsel’s Motion to Strike an 

identical notice filed by co-defendant G & S. The court appropriately 

concluded that the comparative fault statute did not apply or provide a 

defense to the intentional torts alleged, and that reasoning applies equally 

to the notice of non-party at fault filed by Beckwith and Firm. Accordingly, 

we hold that, on remand, any “fault” on the part of RMS’s counsel is not 

relevant to those portions of the WICP and abuse of process claims that 

remain to be litigated.

¶26 In granting summary judgment, the trial court awarded 

taxable costs to Beckwith and Firm. In light of our decision on appeal, we 

vacate that award in its entirety, without prejudice to the trial court’s 

resolution of costs upon conclusion of the case on remand. Because we 

vacate the cost award, the issue as to the interest rate applied by the trial 

court to such award is moot.
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¶27 RMS urges that we order any discovery concerning 

Cornelius’ status and scope of work as an employee of RMS precluded on 

res judicata grounds, even though RMS did not raise this issue in summary 

judgment briefing prior to this appeal. We decline to address it. See

Lansford v. Harris, 174 Ariz. 413, 419, 850 P.2d 126, 132 (App. 1992) (holding 

that on appeal from a grant of summary judgment an appellant may not

advance new theories or raise new issues). Likewise, we will not assess 

whether litigation of this issue constitutes a horizontal appeal.

CONCLUSION

¶28 Based on the foregoing analysis, we vacate the grant of 

summary judgment on RMS’s WICP claim with respect to Beckwith and 

Firm’s continuation of the proceedings after filing the amended complaint,

and the abuse of process claim relating to the filing of the motion to 

disqualify counsel, but otherwise affirm summary judgment on the WICP

and abuse of process claims. We remand those portions of the WICP claim

and the abuse of process claim for resolution consistent with this decision,

and vacate the total award of costs, without prejudice to reconsideration by 

the trial court upon conclusion of the case. In the exercise of our discretion, 

we decline to award either party attorneys’ fees on appeal pursuant to 

A.R.S. § 12-341.01(A), Arizona Rule of Civil Procedure 11, A.R.S. § 12-349, 

and Arizona Rule of Civil Appellate Procedure 21(c). Subject to compliance 

with Rule 21, RMS is awarded its costs on appeal.