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McShares12/18/1998
Appeal from Saline district court; DANIEL L. HEBERT, Judge. Opinion filed December 18, 1998. Reversed and remanded.
This is an appeal from the district court's dismissal of the petition of McShares, Inc., (McShares) for damages for alleged malicious prosecution and abuse of process. The defendants/appellees are individual attorneys and law firms who represented claimants against McShares in a prior federal court class action under the Sherman Antitrust Act, 15 U.S.C. 1 et seq. (1994), which concluded with a jury verdict in favor of McShares. The appeal was transferred from the Court of Appeals to this court.
The district court dismissed the petition in the present case on the ground that the subject matter is preempted by operation of federal law and procedure. The sole issue in this appeal is whether the state court claims of malicious prosecution and abuse of process arising out of the Sherman Antitrust Act litigation are preempted by federal law.
Material facts are not in dispute. The district court's journal entry of judgment recites that defendants had filed various motions requesting judgment on the pleadings, dismissal of the action, and summary judgment. The district court had requested the parties to file proposed findings of fact and Conclusions of law, and the journal entry of judgment contains findings of fact and Conclusions of law. It does not appear that all the district court's findings of fact are from the pleadings. For this reason, the trial court's action will be deemed to be an entry of summary judgment in favor of defendants/appellees and against McShares. K.S.A. 60-212(b) and (c).
There is nothing in the record, docketing statement, or briefs to indicate that any challenges have been or are being raised to the district court's findings of fact. The district court's determinations of fact, therefore, are final and conclusive. Justice v. Board of Wyandotte County Comm'rs, 17 Kan. App. 2d 102, 109, 835 P.2d 692, rev. denied 251 Kan. 938 (1992).
The district court's findings of fact are as follows:
"1. On or about November 27, 1996, Plaintiff filed a Petition for damages against the Defendants herein alleging claims for malicious prosecution and abuse of process. "2. Plaintiff alleges that the Defendants acted without probable cause and with malice, and improperly and for an ulterior purpose and motive in filing against and continued prosecution of Plaintiff in Albert City Elevator Co. v. Pestcon Sys., Inc., et al., Case No 93-CV-2496, in the United States District Court for the District of Kansas. "3. The Defendants are individual attorneys and law firms who represented the claimants against the Plaintiffs herein in the prior Federal Court action. "4. The prior Federal Court action against Plaintiff was premised solely upon alleged civil violations of Federal anti-trust laws, specifically the Sherman Anti-Trust Act, 15 U.S.C. ยง 1, et seq. "5. Without detailing the somewhat convoluted procedural history of the prior Federal Court case, the action consisted of several individual class action lawsuits against various parties filed pursuant to the Federal Rules of Civil Procedure, which cases were eventually consolidated and tried under procedures set forth in the Federal Court Manual for Management of Complex Litigation. "6. After extensive pre-trial proceedings, the Federal case was tried to a jury which returned, inter alia, a verdict in favor of Plaintiff herein against the claims of the parties represented by the Defendants herein. "7. No motion or other action was filed by the Plaintiff herein in the prior Federal case suggesting that any pleading filed by any of the Defendants herein was frivolous, unwarranted or fi
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