The Basic Concept
In McCornell, Justice Wingate wrote:
"[A]buse of process (is) the intentional use of legal process for an improper purpose incompatible with the lawful function of the process by one with an ulterior motive in doing so, and with resulting damages."
Or, this, from the Appellate Division of the Supreme Court of the State of New York in Sipsas:
"In its broadest sense, abuse of process may be defined as misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process."
Abuse of process can also form the basis of a tort claim. In that regard, note these words of Justice Winfree in DeNardo:
"Abuse of process is a tort comprised of two elements: (1) an ulterior purpose and (2) a willful act in the use of process not proper in the regular conduct of the proceeding.
"The first element, ulterior purpose, usually consists of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money with use of the process as a threat or a club.
"The second element involves an overt act, but actions taken in the regular course of litigation, such as threatening suit or requesting discovery, are not a proper basis for an abuse of process claim even if done with an ulterior motive."
In Montemayor, Justice Castillo added:
"Elements of a claim for the tort of abuse of process include (1) an illegal, improper, or perverted use of the process, neither warranted nor authorized by the process, (2) an ulterior motive or purpose in exercising such use, and (3) damage as a result of the illegal act.
"Abuse of process is the malicious misuse or misapplication of process in order to accomplish an ulterior purpose. However, the critical aspect of this tort remains the improper use of the process after it has been issued.
"Abuse of process exists where the original process is used to accomplish an end other than that which the writ was designed to accomplish."
- DeNardo v. Maassen, 200 P. 3d 305 (Supreme Court of Alaska, 2009)
- McCornell v. City of Jackson, 489 F. Supp. 2d 605 (United States District Court, Mississippi, 2006)
- Montemayor v. Ortiz, 208 SW 3d 627 (Court of Appeals of Texas at Corpus Christi-Edinburg, 2006)
- Reis v. Walker, 491 F. 3d 868 (United States Court of Appeals, 2007)
- Sipsas v. Vaz, 50 AD 3d 878 (Appellate Division of the Supreme Court of the State of New York, 2008)