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Malice is an element concerning the state of mind of the accused[i].  Malice denotes that condition of mind manifested by intentionally doing a wrongful act without just cause or excuse[ii].  Malice is evidenced either when the accused acted with a sedate, deliberate mind or committed any purposeful and cruel act without any provocation[iii].

The question whether malice is an element of abuse of process depends upon the jurisdictions.  In some jurisdictions malice is not considered as a necessary element of the tort of abuse of process except where punitive or exemplary damages are sought.  While in some other jurisdictions, proof of malice is required in order to sustain a claim for abuse of process.

In Gause v. First Bank of Marianna, the appellee bank filed a suit against appellant demanding payment on a note.  Appellant filed a counterclaim against appellee bank for abuse of process and malicious prosecution.  Appellant contended that malice was not an element of a cause of action in abuse of process.  The court observed that malice is not an element of abuse of process in the particular case law.

Whereas, in Willis v. Parker[iv], a tenant negotiated to buy a grocery business and got the landlord to assign to him the related lease.  The parties agreed to extend the lease for three years.  The tenant signed the lease for a corporation that became non existed after two days of signing the lease.  When the lease expired, the parties operated on a month to month lease. The landlord insisted the tenant to sign a long term lease, but the tenant declined.  The landlord notified the tenant to either sign a long term lease or vacate the property before a certain date and the tenant rejected both the conditions.  The landlord filed an action for eviction and the tenant contended that the defendant was not him, but the corporation.  The landlord later dismissed his action against the tenant and sued the corporation.

The court found the evidence did not support findings of the wrongful use of the eviction process and the existence of malice necessary to show the landlord’s abuse of process.

[i] State v. Burlison, 255 Neb. 190 (Neb. 1998)

[ii] Id

[iii] Branch v. Commonwealth, 14 Va. App. 836 (Va. Ct. App. 1992)

[iv] 814 So. 2d 857 (Ala. 2001)

Inside Malice