
    Rosella SONSTEBY, Appellant, v. Beverly H. HAGEN, et al., Respondents.
    No. 49472.
    Supreme Court of Minnesota.
    Feb. 15, 1980.
    Jacobowski, Doffing & Hennessy and William J. Hennessy, St. Paul, for appellant.
    Barna, Guzy, Terpstra, Merrill & Giancola and Gabriel D. Giancola, Minneapolis, for respondents.
   PETERSON, Justice.

Plaintiff, Rosella Sonsteby, sued defendants Beverly H. Hagen and Henry S. Anderson, her adjoining neighbors, for trespass upon her property, and defendants counterclaimed for damages because of repetitive and vexatious litigation, which the trial court construed and submitted to the jury as a claim for abuse of process. A jury’s verdict found for defendants on the issue of trespass (notwithstanding photographic evidence that defendants had permitted some of their personal property to encroach upon plaintiff’s property) and found for defendants on the issue of abuse of process (awarding damages therefor).

Plaintiff appeals from the trial court’s order denying her post-trial motion for judgment notwithstanding the verdict or for a new trial, raising only the issue of whether there was sufficient evidence to support the verdict as to abuse of process. We reverse and remand with instructions to enter judgment for plaintiff on defendants’ counterclaim.

Plaintiff had unsuccessfully initiated similar litigation in 1974, but, as the trial court correctly concluded, the judgment in that case was not res judicata as to any claim for subsequent conduct. We hold as a matter of law that defendants’ claim of abuse of process predicated upon the alleged repetitive and vexatious nature of this litigation is without sufficient evidence to sustain a claim for abuse of process. Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780 (1947), and Pow-Bel Const. Corp. v. Gondek, 291 Minn. 386, 192 N.W.2d 812 (1971).

Reversed in part and remanded with instructions.

OTIS, J., took no part in the consideration or decision of this case.  