To maintain a cause of action for the common law tort of malicious use of process, a plaintiff must prove that (1) a prior civil proceeding was instituted by the defendant; (2) The proceeding was instituted without probable cause; (3) The proceeding was instituted with malice; (4) The proceeding terminated in favor of the plaintiff; and (5) Damages were inflicted upon the plaintiff by arrest or imprisonment, by seizure of property, or other special injury which would not necessarily result in all suits prosecuted to recover for a like cause of action.[i] The pleadings of a case of abuse of process should clearly allege the essential elements or the facts of the action.
In White v. Holderby, 192 F.2d 722 (5th Cir. Ga. 1951) the cause of action was the alleged abuse of process in accusing plaintiff’s wife of being a negro before a school board in order to stop plaintiffs’ children from attending public school. The claim was dismissed by the court on the reason that the count did not allege any improper use of the process after its issuance, but relied upon the charge those defendants maliciously and without probable cause procured the issuance of the process.
Mere general allegation that a defendant misused the litigation process will not support a claim for damages resulting from abuse of process. The intention of the wrong doer is considered in an action for harm due to abuse of process. A pleading for abuse of process must clearly lay out the wrongdoer’s intention or malice.
[i] Runkle v. O’Neil, 2007 U.S. Dist. LEXIS 8682 (D. Md. Feb. 7, 2007)