928 F.

2d 486
59 USLW 2647, 21 Bankr.Ct.Dec. 796, Bankr.
L. Rep. P 73,872

Frederick Henry VAHLSING, Jr., Plaintiff, Appellant,

v.
COMMERCIAL UNION INSURANCE CO., INC., Defendant,
Appellee.
No. 90-1624.

United States Court of Appeals,

First Circuit.
Submitted Nov. 21, 1990.
Decided March 22, 1991.

Frederick Henry Vahlsing, Jr., on brief pro se.

Cynthia J. Cohen, Warren F. Fitzgerald and Meehan, Boyle & Cohen,
P.C., Boston, Mass., on Motion for Summary Disposition, for defendant,
appellee.
Before BREYER, Chief Judge, CAMPBELL and SELYA, Circuit Judges.
SELYA, Circuit Judge.

The appellant, Frederick Henry Vahlsing, guaranteed a contract on which the

appellee, Commercial Union Insurance Company, had bound itself as surety.
The contractor defaulted, and Commercial Union instituted litigation in the
state courts of Texas to exonerate itself as surety and to collect on Vahlsing's
guarantee. Commercial Union's lawyers obtained a substantial judgment and,
after efforts to obtain payment were unavailing, began post-judgment
garnishment proceedings, again in a Texas state court.

Vahlsing proved to be an evasive target. For almost two years, Commercial

Union's lawyers tried unsuccessfully to serve Vahlsing with discovery requests.
Eventually, Commercial Union sought and received the court's permission to
make "substituted service" of the discovery requests on any adult who could be

found at Vahlsing's place of residence. Using this procedure, Commercial

Union attempted to serve Vahlsing in March 1982 with post-judgment
interrogatories and a notice of deposition, but the persons served either refused
to take or returned the documents.
3

Soon afterward, on March 29, 1982, Vahlsing filed for bankruptcy in the
United States Bankruptcy Court for the Southern District of Texas. Vahlsing
identified Commercial Union as one of his creditors. Under normal
circumstances, the court would have provided Commercial Union with notice
of the petition, thus notifying it of the automatic stay which comes into effect
upon the filing of a bankruptcy petition. 11 U.S.C. Sec. 362(a). Commercial
Union contends that it never received such notice; at trial, it introduced
evidence in the form of mail logs to support that contention.

In any event, Commercial Union went ahead with its efforts to collect on the
judgment. It filed a motion for contempt, which the Texas court allowed after
Vahlsing failed to respond to a show cause order. The Texas court issued a
judgment of contempt, and sentenced Vahlsing to 180 days in jail.

Vahlsing was arrested on August 9, 1982 in his home town of McAllen, Texas,
and incarcerated at the Hidalgo County Jail. That evening, Steven Mock-Commercial Union's lawyer--met with Vahlsing at the jail. Vahlsing claims that
Mock demanded payment of the outstanding judgment, and threatened to let
Vahlsing "stay there and rot" if he did not pay. Mock denies this charge. Both
parties agree, however, that Vahlsing informed Mock of the petition in
bankruptcy.

Mock, attending to other business, did not confirm the fact of the petition until
August 11. Vahlsing's lawyer asked Mock to seek rescission of the contempt
order, but Mock declined. Vahlsing's lawyer then filed a motion to rescind,
which the 151st District Court of Harris County, Texas heard on August 13.
Mock attended the hearing and, while he did not strenuously oppose the
motion, neither did he urge Vahlsing's release. The District Court denied the
motion, apparently on the ground that Northern Pipeline Construction Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982),
had ruled that Congress' grant of jurisdiction to the bankruptcy courts was
unconstitutional. Vahlsing remained in jail.

Vahlsing then wrote a letter to the bankruptcy court, which the court construed
as an application for a writ of habeas corpus. The bankruptcy court ordered that
Vahlsing be released on bail. Vahlsing was released on August 20, 1982,

having spent eleven days in jail. On September 28, 1982 the bankruptcy court
held a hearing on the application for a writ of habeas corpus. Mock again
appeared. Again, he did not oppose the application in so many words, but he did
take the position that as long as Commercial Union was ignorant of the petition,
the stay was not automatic. The bankruptcy court rejected this position, found
that Vahlsing's commitment "was void by reason of the filing of the petition in
bankruptcy", and ordered Vahlsing's release from bail.
8

In 1983 Vahlsing brought suit in the United States District Court for the
District of Massachusetts (where Commercial Union had its home office).
Vahlsing claimed entitlement to recovery on common law theories of
negligence, abuse of process, false imprisonment and intentional infliction of
emotional distress, and under 42 U.S.C. Sec. 1983. At trial, after Vahlsing had
presented his case, the district court granted Commercial Union a directed
verdict on the abuse of process claim. The jury returned a verdict in favor of
Commercial Union on the remaining counts. This appeal followed.

Vahlsing's pro se appellate briefs are marked by a persistent misapprehension of

the effect of the bankruptcy court proceedings on the case at hand. Vahlsing
seems to believe that Commercial Union's liability was conclusively litigated
after the bankruptcy court ruled that the arrest was void by virtue of the
automatic stay. But there is a difference between the effect of actions taken in
violation of the stay, and the culpability of the actors who take such acts. The
actions may be void ab initio, see In re Advent Corp., 24 B.R. 612, 614
(Bankr.App. 1st Cir.1982), but see Sikes v. Global Marine, Inc., 881 F.2d 176,
179 (5th Cir.1989) (acts violating stay are voidable rather than void), but the
actor's culpability is a question to be settled by reference to some extrinsic legal
standard, whether it is the "willfulness" requirement of 11 U.S.C. Sec. 362(h),
or the various common-law and statutory theories under which Vahlsing chose
to bring suit.1

10

Violation of the stay, in other words, is not a strict liability tort. Recovery under
one or more of the legal theories advanced by Vahlsing requires proof that
Commercial Union violated the stay under circumstances which satisfy the
elements of the theory in question. We therefore turn to the alleged bases of
liability.

Abuse of Process
11

In order to uphold the grant of a directed verdict, we must find that, viewing the
evidence in the light most favorable to Vahlsing, reasonable jurors could have
come to but one conclusion. Goldstein v. Kelleher, 728 F.2d 32, 39 (1st

Cir.1984). We must give Vahlsing the benefit of every legitimate inference, but
we are not required to indulge in conjecture or speculation, id., nor must we
neglect uncontradicted evidence introduced by Commercial Union. Carlson v.
American Safety Equipment Corp., 528 F.2d 384, 385 (1st Cir.1976).
12

Under Texas law (which governed the common-law claims in this case), abuse
of process has three elements: (1) that the defendant made an illegal, improper
or perverted use of the process, a use neither warranted nor authorized by the
process; (2) that the defendant had an ulterior motive or purpose in exercising
such illegal, perverted or improper use of the process; and (3) damage to the
plaintiff. Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 378-79
(Tex.Ct.App.1989).

13

The district court acknowledged that Vahlsing had presented evidence to show
that attorney Mock had represented Vahlsing's sister in addition to Commercial
Union, that the sister may have harbored vindictive feelings toward Vahlsing,
and that Mock may have served the sister's vindictiveness when he filed the
motion for contempt that led to Vahlsing's incarceration. However, the district
court ruled, "there's no sufficient evidence in my mind that Commercial Union's
primary purpose was to do other than collect the debt" (emphasis added).

14

This was a correct application of the facts to the law. When process is
employed for the purpose for which the law intends its use, no abuse of process
occurs even though the person using the process may have an improper motive
in addition to his lawful intention. Baubles & Beads v. Louis Vuitton, S.A., 766
S.W.2d at 379. See also Restatement (Second) of Torts Sec. 682, comment b
("there is no action for abuse of process when the process is used for the
purpose for which it is intended, but there is an incidental motive of spite or an
ulterior motive of benefit to the defendant"). While Mock's actions may have
incidentally served the sister's spite, the evidence left no doubt that Commercial
Union's primary purpose in instituting the proceedings that put Vahlsing in jail
was the collection of a court judgment. A reasonable jury could have reached
no other conclusion.

Negligence
15

The district court correctly instructed the jury that a negligence claim contains
four basic elements: (1) that the defendant owed the plaintiff a duty of care, (2)
that the defendant was negligent (i.e. failed to use reasonable care) in the
discharge of that duty, (3) that the defendant's negligence was the proximate
cause of the plaintiff's injury, and (4) that the plaintiff suffered compensable
damage as a result. About the duty requirement, the court told the jury (1) that

Commercial Union "owes to everyone the duty to conduct itself in accordance

with the law as a reasonably careful, good corporate citizen", (2) that attorney
Mock had a "responsibility for conducting himself as a reasonably careful
attorney" who was "reasonably familiar with the law," but (3) that Mock owed
a duty "first and foremost" to his client. Finally, the court said:
16 you believe the evidence that at a certain time Mr. Mock became aware that Mr.
[I]f
Vahlsing claimed to have filed for bankruptcy, you may consider, having in mind
that Mr. Vahlsing was then imprisoned, and having in mind what the stakes were
there, a person's liberty, what duty, if any, Mr. Mock had to the legal system to make
representations to straighten out that matter. I leave that to you, but you may
consider it, whether Mr. Mock in the premises [sic] had any duty to do anything, to
straighten out with Mr. Vahlsing there in jail claiming to have filed bankruptcy.
17

Vahlsing attacks this last instruction. He cites a number of cases from the
bankruptcy courts which say that a creditor, after it learns of the automatic stay,
has an affirmative duty to undo actions it took in violation of the stay and to
restore the status quo. See In re Adams, 94 B.R. 838, 851 (Bankr.E.D.Pa.1989);
In re Shropshire, 25 B.R. 128, 130 (Bankr.W.D.Wash.1982); In re Shiko, 21
B.R. 203, 204 (Bankr.M.D.Pa.1982); In re Miller, 10 B.R. 778, 780
(Bankr.D.Md.1981). The district court erred, Vahlsing says, when it asked the
jury to determine the existence and extent of Commercial Union's duty to
secure his release from jail once Commercial Union had learned of the petition
in bankruptcy and the automatic stay.

18

Vahlsing says that the district court should have taken the issue of negligence
liability away from the jury altogether. He apparently wants us to impose an
absolute duty to restore the status quo on those who have violated the automatic
stay. Whatever the teaching of the bankruptcy cases he cites, this is clearly not
the correct standard for a negligence claim.2 The essence of the tort is the
reasonableness of the defendant's actions in light of the duty imposed on him.

19

Vahlsing's argument is that the district court incorrectly left it to the jury to
decide whether Commercial Union owed Vahlsing an affirmative duty to seek
his release from jail. As a general rule, the existence of a duty of care is a
question of law to be decided by the court. Producers Grain Corp. v. Lindsay,
603 S.W.2d 326, 329 (Tex.Civ.App.1980). See also Federal Express Corp. v.
State of Rhode Island, Department of Transportation, 664 F.2d 830, 835 (1st
Cir.1981). The district court might have better instructed the jury that Mock had
a duty to use reasonable care to obtain Vahlsing's release if the jury found (1)
that Mock's actions had caused Vahlsing's imprisonment, (2) that Mock learned
of the petition in bankruptcy while Vahlsing was still in jail, and (3) that Mock

was at that time in a position to do for Vahlsing what Vahlsing could not do for
himself. See Restatement (Second) of Torts Sec. 322 (an actor who knows or
has reason to know that his actions, whether tortious or innocent, have caused
such harm to another as to make him helpless and in danger of further harm, is
under a duty to "exercise reasonable care to prevent such further harm").
20

We need not decide whether the court's instruction was erroneous or

prejudicial, however, since Vahlsing's trial attorney did not object to the
instruction after it was given, even though the court gave him an opportunity to
do so. "According to a long line of precedents in this circuit, such an omission
constitutes waiver of the objection pursuant to Federal Rule of Civil Procedure
51." Wells Real Estate, Inc. v. Greater Lowell Board of Realtors, 850 F.2d 803,
809 (1st Cir.1988) and cases cited therein. Absent a timely objection, the
court's instruction became the law of the case. Id.

False Imprisonment
21

The district court correctly instructed the jury that under Texas law the
elements of the tort of false imprisonment are (1) a "willful" detention of the
plaintiff, (2) without authority of law and (3) without the plaintiff's consent.
See J.C. Penney Co. v. Duran, 479 S.W.2d 374, 379 (Tex.Civ.App.1972). The
district court went on to tell the jury that "willful" means something more than
that Commercial Union intended to have Vahlsing detained. In order to prove
willfulness, the court said, Vahlsing had to show that Commercial Union "in
fact knew, not that they were careless, not that they blundered, but that they in
fact knew that there was no right to pick him up and have him put in jail, no
right even to ask a judge to do that, or that they recklessly disregarded Mr.
Vahlsing's rights, recklessly disregarded the possibility that he might have filed
for bankruptcy, and went ahead in reckless disregard of that fact...."

22

As a general statement of the law of false imprisonment, this part of the

instruction might arguably be incorrect. Ordinarily, the requisite intent is, in
fact, merely the intent to confine. See Restatement (Second) of Torts Sec. 35(1)
(an actor is subject to liability to another for false imprisonment if, inter alia, he
acts intending to confine the other within boundaries fixed by the actor).

23

Under the circumstances of this case, however, the instruction was on the mark.
Commercial Union did not physically confine Vahlsing; rather, it caused him to
be confined by the police acting pursuant to a warrant issued by the state court.
Under Texas law, "it is a complete defense to an action for false imprisonment
that the arrest or detention was by virtue of process, legally sufficient in form
and duly issued by a court or official having jurisdiction to issue it." Tandy

Corporation v. McGregor, 527 S.W.2d 246, 248 (Tex.Civ.App.1975). A court

has "jurisdiction to issue" a particular form of process (e.g. an arrest warrant) if
the court generally has the authority to issue process of that kind. "Such
authority back of a warrant legal on its face is sufficient justification for the
arrest even though the proceedings back of its issuance were irregular, or void
...", Pate v. Stevens, 257 S.W.2d 763, 767 (Tex.Civ.App.1953), for example,
even if the automatic stay rendered the warrant void ab initio.
24

Under these circumstances, the only sensible approach to the "willfulness"

requirement was the approach taken by the district court. A defendant who has
effected the plaintiff's confinement through process that is valid on its face can
have acted "willfully" only if the process was "maliciously or wrongfully
obtained," see Brewer v. Blackwell, 692 F.2d 387, 400 (5th Cir.1982)
(Louisiana law)--that is, only if the defendant knew that the process was for
some reason void.

25

The district court correctly stated the law, and there was ample evidence to
support the jury's verdict. Mock testified that he did not know of the automatic
stay until after Vahlsing was imprisoned; Commercial Union's mail logs
supported its contention that it did not receive notice of the petition in
bankruptcy. The jury was entitled to credit this evidence and find for the
defendant. See Computer Systems Engineering, Inc. v. Qantel Corp., 740 F.2d
59, 65 (1st Cir.1984) (jury verdict is reviewed in light most favorable to
appellee).

Intentional Infliction and 42 U.S.C. Sec. 1983

26
27

We need not linger over these claims. In both cases the district court properly
instructed the jury, and the evidence was more than sufficient to support the
jury's determination.

28

Affirmed.

Section 362(h) provides that "An individual injured by any willful violation of
a stay provided by this section shall recover actual damages, including costs
and attorneys' fees, and, in appropriate circumstances, may recover punitive
damages." Section 362(h) was enacted in 1984, and thus was not available to
Vahlsing. In re Wagner, 87 B.R. 612 (Bankr.C.D.Cal.1988). Before the passage
of section 362(h), the law was "unsettled as to whether violations of the
automatic stay ... g[a]ve rise to a private right of action for the recovery of

damages." In re De Lay, 48 B.R. 282, 286 (W.D.Mo.1984)

2

The bankruptcy cases are not consistent. For example, in In re Miller, 10 B.R.
778, 780 (Bankr.D.Md.1981), the court ruled that it "is implied in Sec. 362 that
a creditor is under an obligation to maintain the status quo as of the moment of
the filing of the petition and to take whatever affirmative action is necessary to
do so" (emphasis added). In In re Adams, 94 B.R. 838, 851 (Bankr.
E.D.Pa.1989), on the other hand, the court said that "a party who has acted in
violation of the stay without previous knowledge of the debtor's bankruptcy
filing is obliged to take any reasonable action to undo a previous, innocent
violation of the stay" (emphasis added)