A cause of action for the intentional tort “abuse of process” arises when one intentionally uses the legal system to attain a wrongful, unjustified result, thus causing another injury. [A tort is an act that causes injury to another, whether intentional or negligent.]
The term “process” applies to a summons that attaches to a complaint served to initiate a lawsuit. The term may also apply to witness subpoenas or other special orders or writs issued by the court that command persons to do certain things.
The abuse of the court’s “process” and injury caused by that abuse gives rise to this cause of action. The person injured by such abuse has this cause of action (i.e., a right to sue). As stated above, however, the injured person must properly state his cause of action and support it with all ultimate facts necessary to establish the elements listed below.
Suppose Smith sues Jones for fraud just to keep Jones from closing a deal with Miller. Smith believes when Miller sees Jones has been sued, Miller will doubt Jones’ honesty and refuse to go forward with the deal. Smith wants to stop the deal, so he abuses legal process to attain a wrongful result.
In order for Jones to sue Smith for abuse of process, however, Jones must show that
If Jones was, in fact, guilty of fraud that caused Smith money damages, then Jones cannot sue Smith for suing Jones, because Smith had a legitimate right to sue Jones in the first place. The underlying wrong that gives rise to the cause of action is perversion of our legal system. The act of using the courts for an improper purpose (i.e., a purpose the law never intended) is a wrong for which injured persons need an opportunity seek redress of their grievance in the courts.
If Smith had a legitimate purpose for suing Jones for fraud, there is no perversion, and Jones has no cause of action for abuse of process. If Smith did not have a legitimate purpose for suing Jones for fraud, then Jones has a cause of action (i.e., right to sue) for abuse of process against Smith.
Abuse of process may arise where a person either sues another in civil court or applies to the criminal system to achieve an improper purpose the law does not intend. It may not be necessary for Jones to win the underlying lawsuit brought by Smith, provided he can show in his action against Smith for abuse of process that Smith intentionally proceeded against him and did so for an improper purpose.
Maliciousness is irrelevant. It is the improper purpose that gives rise to the cause of action, purpose not intended by law, an ulterior purpose for which our laws were not designed, a purpose that abuses the system itself.
For a plaintiff to adequately plead a cause of action for abuse of process, he must allege ultimate facts sufficient to establish the following essential elements:
Each of these three elements must be expanded with the ultimate facts to fully explain how each element exists in the situation. To win the case plaintiff must prove each and every essential fact alleged.
So long as the acts of the court or a judge have some relation to the proceeding, the court system and the judge are protected by absolute immunity from suit for abuse of process. Statements amounting to perjury, libel, slander, and defamation do not give rise to an action for abuse of process.
Before the cause of action of abuse of process can arise, the court must issue some form of process (usually the summons that commands a civil defendant to appear in court and answer the complaint). Process must be used for an improper purpose. No act occurring prior to issuance of the court’s process can give rise to this cause of action.
There is no cause of action for abuse of process unless the process was used for a purpose other than that which the law intended. If process is used to accomplish a proper result (e.g., bringing a civil defendant before the court to answer a complaint that’s predicated on a legitimate cause of action) there is no abuse of process, even if the process furthers another purpose separate from its legitimate purpose.
If a person sued for abuse of process had a legitimate purpose for the process that caused damage to the other unrelated to the legitimate purpose, the cause of action does not arise. There is no abuse of process if process is used to accomplish a legitimate result, even if there is a separate, wrongful motive behind it.
Frequently, abuse of process arises from a form of extortion, i.e., used to compel another to do something he would not otherwise be lawfully compelled to do. If the one using process has a legitimate reason to do so, however, there is no abuse, and the cause of action must be dismissed.
In jurisdictions where the complaining party need not prevail in the underlying action as a pre-requisite to bringing this cause of action, one may file a counterclaim seeking damages for abuse of process.
Unless the counterclaim itself stands on a solid footing, however (i.e., unless the counterclaim is justified by the facts, rather than being a mere retaliatory tactic without merit in its own right), the party filing the counterclaim may be sued for abusing process.
Check local rules and case law to determine if abuse of process requires as one of its essential elements a termination of the action in favor of the person against which the allegedly abusive process was issued in the first place.