Generally, in an action for abuse of process, an injured person could recover the actual damage s/he suffered as a natural and probable consequence of abuse. However when an abuse of process is accompanied by malice, exemplary or punitive damages can be awarded. To maintain an action for malicious abuse of process, there must be both a misuse of the power of judiciary by a litigant and a malicious motive.[i]
In Donohoe v. Burd,[ii] an attorney persuaded a prosecuting attorney to institute a criminal proceeding against the attorney’s former business associate in order to compel the associate to pay an outstanding debt. The court ordered punitive damages and held that actual malice is necessary for an award of punitive damages. Actual malice necessary for an award of punitive damages can consist of: 1) that state of mind under which a person’s conduct is characterized by hatred, ill will or a spirit of revenge; or 2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm. In Donohoe th court further held that punitive damages are an exception to the general rule of compensation for injury, and are awarded as punishment and to discourage the commission of similar acts. Punitive damages should be fair and reasonable and not excessive or actuated by passion or prejudice.
In Nienstedt v. Wetzel,[iii] the court held that the amount of punitive damages is a matter of discretion. Courts allow punitive damages, when the conduct of the wrongdoer is wanton, reckless, or shows spite or ill will.
[i] Weststar Mortg. Corp. v. Jackson, 131 N.M. 493 (N.M. Ct. App. 2001)
[ii] 722 F. Supp. 1507 (S.D. Ohio 1989)
[iii] Nienstedt v. Wetzel, 133 Ariz. 348 (Ariz. Ct. App. 1982)