Chapter 23 MALICIOUS & WRONGFUL ATTACHMENT

• Jurisdiction: North Carolina

23 MALICIOUS & WRONGFUL ATTACHMENT

A. Definition

Attachment has been defined as "[t]he legal process of seizing another's property in accordance with a writ or judicial order for the purpose of securing satisfaction of a judgment yet to be rendered."¹ In North Carolina, article 35 of the civil procedure statutes governs attachment and defines it as:

[A] proceeding ancillary to a pending principal action . . . in the nature of a preliminary execution against property, and is intended to bring property of a defendant within the legal custody of the court in order that it may subsequently be applied to the satisfaction of any judgment for money which may be rendered against the defendant in the principal action.²

The attachment process is subject to abuse or misuse. If an order of attachment is improperly obtained or tortiously employed, the attachment defendant has a choice of several remedies for injuries caused by the levy on his or her property. These include a statutory action, the common law tort action for malicious and wrongful attachment, or an action for abuse of process "if the attachment plaintiff maliciously perverts and employs a regularly issued order of attachment to accomplish a result not lawfully or properly obtainable under it."³

"The statutory proceeding on the attachment bond may be prosecuted by either a motion in the original cause or by an independent action."⁴ The statutory action is available under three circumstances: (1) the attachment defendant prevailed in the principal action; (2) the order of attachment was for any reason dissolved, dismissed or set aside; or (3) service was not had on the attachment defendant as required by statute.⁵ In any of those circumstances, the attachment defendant is to have delivered to him or her "all bonds taken . . . whether filed in the proceedings or taken by an officer . . . [t]he proceeds of any sales and all money collected, and [a]ll attached property remaining in the officer's hands . . . ."⁶ The statutory action is available to the attachment defendant after judgment in his or her favor in the principal proceeding⁷ since, as the North Carolina Supreme Court has said, the action on the bond is based on wrongful issuance of the writ, and that cannot appear until it is judicially determined.⁸ In the statutory action, the attachment defendant may proceed against the attachment plaintiff and the surety jointly or separately and need not show malice or want of probable cause.⁹

In general, the tort of wrongful attachment is elusive and difficult to define. There is scant discussion of it in legal encyclopedias, and the Restatement does not use the term or grant the action its own discussion, but instead encompasses it within a section titled "Civil Proceedings Causing an Arrest or a Deprivation of Property"¹⁰ in the chapter on Wrongful Use of Civil Proceedings, which covers "process torts." One law dictionary does describe wrongful attachment as follows:

Wrongfully obtaining or tortiously employing an order for, or writ, of attachment, as where no ground for attachment exists, where property of the defendant not liable to attachment is seized, or where property of a third person is seized as that of the defendant. A wrong for which a remedy exists in a suit on the attachment bond, an action for malicious attachment, an action for abuse of process, or a suit for malicious prosecution.¹¹

Because of the 1954 North Carolina Supreme Court decision in Brown v. Guaranty Estates Corp.,¹² wrongful attachment has clear definition in this state. The Brown court said:

"[A]n action for malicious and wrongful attachment. . . is an independent common law action founded on the tort of the attachment plaintiff in maliciously suing out an order of attachment without probable cause and procuring its levy on the property of the attachment defendant."¹³

Wrongful attachment may be brought as a counterclaim.¹⁴ The surety on an attachment bond is not liable for the tortious act of an attachment plaintiff who maliciously and wrongfully attaches the property of an attachment defendant.¹⁵

B. Elements

The essential elements of the tort of malicious and wrongful attachment are:

(1) The attachment plaintiff sued out an order of attachment against the property of the attachment defendant without probable cause for believing that the alleged ground for attachment existed;
(2) The attachment plaintiff sued out the order of attachment maliciously;
(3) The order of attachment was actually levied on the property of the attachment defendant, who was thereby deprived of his or her right to use his or her property for any legitimate purpose;
(4) The attachment proceeding legally terminated in favor of the attachment defendant; and
(5) The attachment defendant suffered damage as the result of the levy of the order of attachment on the property.

C. Elements Defined

1. Lack of Probable Cause for Believing That Alleged Ground for Attachment Existed

To prove wrongful attachment, the attachment defendant must demonstrate that the attachment plaintiff did not have probable cause to believe he or she had grounds for attaching the property at issue.¹⁶ In malicious prosecution actions, where probable cause is also at issue, the North Carolina Supreme Court has said that it may be defined as the existence of facts and circumstances, known to the plaintiff that at the time would induce a reasonable person to commence an action.¹⁷ It is evidence of probable cause that the plaintiff acted on the advice of counsel.¹⁸ That a defendant knew the plaintiff was not indebted to him or her at all but still sued out an attachment and levied it on the plaintiff's property would be equivalent to an allegation and proof of want of probable cause.¹⁹

Where the basis on which an attachment was issued was that the plaintiff had left the state and become a citizen of another, but evidence showed the defendant's agent, in making that determination, made no inquiry in the county where the plaintiff's family resided, did not go to the residence, made no inquiry of persons who were supposed to know something about the plaintiff, and relied on "mere street rumor," if the jury found the evidence to be true, a want of probable cause was established in the opinion of the court.²⁰ Similarly, in a nineteenth century case,²¹ the plaintiff, a carpenter, enlisted as a soldier and was sent to serve in the war with Mexico. In his absence, the defendant sued out an attachment to be levied on the plaintiff's carpentry tools. The defendant alleged the plaintiff was "fraudulently eluding the ordinary process of law" or "privately removed, or was about to remove himself out of the county, or so absented, absconded and concealed himself that the ordinary process of law could not be served on him." The court, finding for the plaintiff, said the defendant had no probable cause to support that allegation since the plaintiff had enlisted as a soldier, and the fact that he left North Carolina for Mexico, was "a matter of public notoriety." That the plaintiff's absence may have made it difficult for the defendant to find a feasible remedy was, added the court, no excuse and did not show probable cause or justify an otherwise wrongful proceeding.

2. Malice²²

The party claiming wrongful attachment must show the other party acted maliciously.²³ The malice required to support an action for malicious and wrongful attachment may be either actual malice or legal malice.²⁴ Malice may be implied or inferred from lack of probable cause; to put it another way, lack of probable cause is evidence of malice.²⁵ Malice "in legal proceedings does not necessarily mean personal ill will or spite. It means a wrongful act done intentionally without just cause or excuse."²⁶ This would be legal or implied malice, and will support an action for wrongful attachment.²⁷

The words of a complaint that the defendant in suing out the attachment and levying on the plaintiff's property "knew he had no ground for his action and that it was an unjustifiable and indefensible suit to extort money" necessarily implied malice.²⁸ That a defendant had "laid all the facts before counsel of high standing in the profession and had sued out the attachment under his advice" was evidence in an early case to rebut the allegation of malice.²⁹

In one case, the plaintiff's son was the attachment defendant and he stored his mother's furniture and his own together when he left the state. His creditors had warrants of attachment issued against his property, but not that of his mother; however, the officer who levied the attachment included the plaintiff's property. The trial court found for the plaintiff, but the North Carolina Supreme Court reversed and said there was no evidence that the officer or the creditors had any notice, actual or constructive, of the plaintiff's claim, or that the creditors received any part of the proceeds of the sale with knowledge that any person other than the attachment defendant had or claimed an interest in the property attached or that creditors, with knowledge of the error, ratified the officer's act.³⁰

3. Order of Attachment was Actually Levied on Property and Plaintiff was Deprived of Right to Use Property for Any Legitimate Purpose

The claimant must show interference with his or her property.³¹ In an early case, the North Carolina Supreme Court said that "an action will not lie for malicious prosecution in a civil suit, unless there was . . . [a] seizure of property, as in attachment proceedings at law or their equivalent in equity . . . ."³²

4. Attachment Proceeding Legally Terminated in Favor of Attachment Defendant

The plaintiff must aver and prove favorable termination of the attachment proceeding because, until the underlying action has finally ended, there is no remedy since there is no wrong; the process is valid and lawful until set aside.³³ Favorable termination is also an element of malicious prosecution, another of the "process torts." In a...