This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Kenneth S. Benigni,





Theodore Tammaro,



Filed July 20, 2004


Gordon W. Shumaker, Judge


St. Louis County District Court

File No. C4-02-602448


Kenneth Benigni, 7485 Kauppi Lake Road, Cotton, MN 55724 (pro se appellant)


Jerome D. Feriancek, Thibodeau, Johnson & Feriancek, PLLP, 800 Lonsdale Building, 302 West Superior Street, Duluth, MN 55802 (for respondent)


            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N



            Appellant contends that the district court erred in dismissing his action for abuse of process and malicious prosecution.  Because appellant has failed to show that he is entitled to recover on either claim, we affirm.


            The parties own adjacent parcels of real estate and have an acrimonious history in dealing with each other, the details of which are set forth in district court records.  Appellant Kenneth Benigni sued respondent Theodore Tammaro for damages for trespass.  At some point after that, Tammaro threatened to sue Benigni.  Then, in early July 2000, Tammaro applied for an ex parte harassment restraining order against Benigni.  In his supporting affidavit, Tammaro alleged that he and his wife witnessed violent, rageful, and bizarre conduct by Benigni that made them afraid that Benigni might harm them.  On July 7, 2000, the district court issued a temporary restraining order against Benigni.

On September 19, 2000, the court held a harassment evidentiary hearing.  At the conclusion of Tammaro’s evidence, the court granted Benigni’s motion to dismiss the harassment action.  The court noted that although Tammaro proved that he feared Benigni, the fear lacked a sufficiently reasonable basis under the harassment law to support a permanent restraining order.

Two years after the dismissal of the harassment action, Benigni sued Tammaro for damages for malicious prosecution and abuse of process, claiming that Tammaro obtained the temporary harassment restraining order on false allegations.  Tammaro moved to dismiss the action.  On May 1, 2003, the district court granted the motion, ruling that because the district court had issued the temporary order, claims for malicious prosecution or abuse of process would not lie absent a showing of fraud on the court.  Benigni appeals that determination.


            We review the dismissal of a complaint de novo.  Elzie v. Comm’r of Pub. Safety, 298 N.W. 2d 29, 32 (Minn. 1980).  Our focus is whether “it appears to a certainty that no facts, which could be introduced consistent with the pleading, exist which would support granting the relief demanded.”  Id. 

The Minnesota statutes create a harassment action.  Minn. Stat. § 609.748 (2002).  Among other things, harassment includes repeated unwarranted acts, words, or gestures that have or are intended to have “a substantial adverse effect on the safety, security, or privacy of another . . . .”  Minn. Stat. § 609.748, subd. (1)(a).  A victim of harassment may seek a restraining order against the harasser.  Minn. Stat. § 609.748, subd. 2.  The court may issue a temporary restraining order “if the court finds reasonable grounds to believe that the respondent has engaged in harassment.”  Minn. Stat. § 609.748, subd. 4(a).  The temporary restraining order remains in effect until the court holds a hearing on the harassment claim.  Minn. Stat. § 609.748, subd. 4(c).

The district court found that Tammaro had alleged sufficient facts to support the grant of a temporary restraining order.  But when the court held an evidentiary hearing, it ruled that Tammaro had not proved a sufficient basis for a permanent restraining order.

Because of this ruling, Benigni alleges that the petition for the temporary restraining order constituted malicious prosecution and abuse of process.  In his complaint, Benigni alleged: “The prosecution lacked probable cause at the outset.  The civil harassment petition was brought for an improper purpose.”  More specifically, Benigni alleged that Tammaro brought the harassment action in retaliation for Benigni’s trespass suit against Tammaro.

A claim for malicious prosecution will lie if (1) an action is brought without probable cause or reasonable belief that the plaintiff will ultimately prevail on the merits, (2) the action is instituted and prosecuted with malicious intent, and (3) the action is terminated in the defendant’s favor.  Stead-Bowers v. Langley, 636 N.W.2d 334, 338 (Minn. App. 2001), review denied (Minn.Feb. 19, 2002).

The gist of Benigni’s complaint is that the harassment petition lacked probable cause.  But the particular incidents alleged in the petition describe conduct and words that could reasonably have a substantial adverse effect on Tammaro’s safety or security.  And the district court so found when it issued the temporary restraining order.  Thus, sufficient “probable cause” for the order existed on the face of the harassment petition and the supporting affidavit and exhibits.  The fact that the court later determined that the evidence was insufficient to support a permanent restraining order does not negate the “probable cause” that existed when the court considered the petition.

The essential elements for a cause of action for abuse of process are the existence of an ulterior purpose and the act of using the process to accomplish a result not within the scope of the proceedings in which it was issued, whether such a result might otherwise be lawfully obtained or not.


Kellar v. VonHoltum, 568 N.W.2d 186, 192 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997).

Benigni contends that Tammaro’s threat of a lawsuit indicates that the harassment action was merely retaliatory.  But nothing in Benigni’s complaint suggests that Tammaro used the harassment process to accomplish any result other than the restraint of the particular acts of alleged harassment described in the petition.  The bare allegation that the harassment action was retaliatory is insufficient to state an abuse-of-process claim.

Although we do not go so far as to hold that abuse-of-process or malicious-prosecution claims can never lie when a court has found “probable cause,” Benigni has failed to show that relief can be granted on either of his claims, and, thus, we affirm.

Because our ruling is dispositive of the entire action, we need not reach the remaining issues raised by the parties.