Recent Civil Cases Dealing with Abuse of Process


In order to prove the tort of abuse of process, the following elements must be established: (1) a legal procedure set in motion in proper form, even with probable cause and ultimate success; (2) the procedure is perverted to accomplish an ulterior purpose for which it was not designed; and (3) a willful act is perpetrated in the use of process which is not proper in the regular conduct of the proceeding.[i] The test of abuse of process is whether a judicial process is used to extort or coerce.[ii] The key to the tort is the improper use of process after its issuance in order to accomplish a purpose for which the process was not designed.  Thus, it is the purpose for which the process is used, once issued, that is important in reaching a conclusion.

The common law tort of abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed.[iii] The essence of the tort is misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice.  To succeed in an action for abuse of process, a litigant must establish that the defendant: (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.[iv]

In order to establish the wilful-act element of the abuse-of-process tort, “some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.” [v]

The New Mexico Supreme Court overruled Devaney v. Thriftway Mktg. Corp., 124 N.M. 512 (N.M. 1997), with respect to its holding that all malicious abuse of process claims require the defendant to have initiated a judicial proceeding against the plaintiff. [vi] The Supreme Court restated the elements of abuse of process as follows: (1) the use of process in a judicial proceeding that would be improper in the regular prosecution or defense of a claim or charge; (2) a primary motive in the use of process to accomplish an illegitimate end; and (3) damages.[vii] An improper use of process may be shown by (1) filing a complaint without probable cause, or (2) an irregularity or impropriety suggesting extortion, delay, or harassment, or other conduct formerly actionable under the tort of abuse of process. [viii] A use of process is deemed to be irregular or improper if it (1) involves a procedural irregularity or a misuse of procedural devices such as discovery, subpoenas, and attachments, or (2) indicates the wrongful use of proceedings, such as an extortion attempt. [ix]Finally, the tort of malicious abuse of process should be construed narrowly in order to protect the right of access to the courts.[x]

In any malicious abuse of process claim, the use of process for an illegitimate purpose forms the basis of the tort. When the judicial process is used for an illegitimate purpose such as harassment, extortion, or delay, the party that is subject to the abuse suffers harm, as does the judicial system in general.  Thus, the malicious abuse of process tort makes the process abuser liable to the other party for the harm caused by the abuse of process.

Abuse of process torts have traditionally been limited to abuses in judicial proceedings. New Mexico has specifically determined that abuse of process claims extend to arbitration proceedings as well.[xi]

[i] Bone v. Barnard, 2008 Ark. App. LEXIS 569 (Ark. Ct. App. Sept. 10, 2008)

[ii] Id.

[iii] Rusheen v. Cohen, 37 Cal. 4th 1048, 1056-1057 (Cal. 2006)

[iv] Id.

[v] Kauilani Ewa, LLC v. Chang, 2009 Haw. App. LEXIS 498 (Haw. Ct. App. May 22, 2009)

[vi] Durham v. Guest, 145 N.M. 694 (N.M. 2009).

[vii] Id.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Durham, 145 N.M. 694