Chapter 1: Abuse of Process

§1.1 Generally

The Case: Givens v. Mullikin , 75 S.W.3d 383 (Tenn. 2002).

The Basic Facts: Plaintiff initially brought suit against Defendant after she was injured in an automobile accident. The Defendant's insurance company then hired an attorney to defend the Defendant. This attorney engaged in substantial discovery, but was eventually fired and replaced by a new law firm. The new firm then engaged in extensive discovery of its own. Plaintiff then brought a separate action on a theory of vicarious liability for the defense attorneys' alleged abuse of process, inducement to breach express and implied contracts of confidentiality, inducement to breach a confidential relationship, and invasion of privacy during discovery.

The Bottom Line:

  • "The plaintiff first asserts that the allegedly abusive actions of the Richardson Firm in conducting discovery constituted an abuse of process, a tort for which we have long recognized a remedy. See Priest v. Union Agency, [125 S.W.2d 142 (Tenn. 1939)]. As this Court has acknowledged, 'the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish.' Bell ex rel. Snyder, 986 S.W.2d at 555 (quoting W. Page Keeton et al., [Prosser and Keeton on the Law of Torts] § 121, at 897 (5th ed. 1984)). To this end, a plaintiff must establish by evidence two elements to recover for abuse of process: '(1) the existence of an ulterior motive; and (2) an act in the use of process other than such as would be proper in the regular prosecution of the charge.' Id. (quoting Priest, [125 S.W.2d at 143]); see also Donaldson, 557 S.W.2d at 62." 75 S.W.3d at 400-01.
  • "The test as to whether process has been abused is 'whether the process has been used to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be compelled to do.' Priest, [125 S.W.2d at 143-44]. In its most basic sense, therefore, an action for abuse of process is intended to prevent parties from using litigation to pursue objectives other than those claimed in the suit, such as using a court's process as a weapon 'to compel [another party] to pay a different debt or to take some action or refrain from it.' [Restatement (Second) of Torts ]§ 682 cmt. b (1977). It is the use of process to obtain this 'collateral goal'-a result that the process itself was not intended to obtain-that is the very heart of this tort. The essential question to be answered concerning the present claim, therefore, is whether the use of process to discourage the other party from continuing the litigation is a sufficiently 'collateral goal' to give rise to tort liability.'" Id. at 401.
  • "Ordinarily, the lawful use of a court's process does not give rise to an abuse of process claim, and no claim of abuse will be heard if process is used for its lawful purpose, even though it is accompanied with an incidental spiteful motive or awareness that the use of process will result in increased burdens and expenses to the other party. Id. However, a different case is presented when the primary purpose of using the court's process is for spite or other ulterior motive. For example, in Nienstedt v. Wetzel, 651 P.2d 876, 882 (Ariz. Ct. App. 1982), the Arizona Court of Appeals held that while 'there is no liability when the defendant has done nothing more than legitimately utilize the process for its authorized purposes, even though with bad intentions,' an action for abuse of process may lie where 'the ulterior or collateral purpose involved [is] to expose the injured party to excessive attorney's fees and legal expenses.' In this respect, the court held that an action for abuse of process is proper where the plaintiff can establish that such was the primary motive for the discovery tactics and where the plaintiff can show that the 'use of various legal processes was not for [the] legitimate or reasonably justifiable purposes of advancing [the party's] interests in the ongoing litigation.' Id. Importantly, the Nienstedt Court was clear that mere awareness of the additional costs and burdens would not warrant liability; instead, the court stated that '[l]iability should result only when the sense of awareness progresses to a sense of purpose . . . .' Id." Id.
  • "Other courts have also recognized that a primary desire to harass and cause unnecessary expense to the other party in litigation is a sufficient ulterior motive to constitute an abuse of process. The New York Court of Appeals, for example, found that a claim for abuse of process was stated when a complaint alleged that defendants used regularly issued subpoenas to harass and inflict economic injury upon the plaintiffs. See Board of Educ. v. Farmingdale Classroom Teachers' Ass'n, Inc., 343 N.E.2d 278, 283 (N.Y. 1975). Noting that 'when a party abuses process[,] his tortious conduct injures not only the intended target but offends the spirit of the legal procedure itself,' id. at 281, the court further stated that
    [w]hile it is true that public policy mandates free access to the courts for redress of wrongs and our adversarial system cannot function without zealous advocacy, it is also true that legal procedure must be utilized in a manner consonant with the purpose for which that procedure was designed. Where process is manipulated to achieve some collateral advantage, whether it be denominated extortion, blackmail or retribution, the tort of abuse of process will be available to the injured party.
    Id . at 283 (citations omitted). Moreover, in Vallance v. Brewbaker, 411 N.W.2d 808, 646 (Mich. Ct. App. 1987), the Michigan Court of Appeals recognized in dicta that allegations of the use of discovery 'in a manner consistent with the rules of procedure, but for the improper purpose of imposing an added burden and expense on the opposing party in an effort to conclude the litigation on favorable terms,' can form the basis of a valid abuse of process claim." Id. at 401-02.
  • "Broadly speaking, the aim of the civil discovery process is 'to bring out the facts prior to trial so the parties will be better equipped to decide what is actually at issue,' see, e.g., Ingram v. Phillips, 684 S.W.2d 954, 958 (Tenn. Ct. App. 1984), not to wear the mettle of the opposing party to reach a favorable termination of the cause unrelated to its merits. When the civil discovery procedures are used with the specific and malicious intent to weaken the resolve of the other party, then one may rightfully claim that the procedures are being used 'to accomplish some end which is without the regular purview of the process.' Accordingly, we adopt the test first announced in Nienstedt and hold that abuse of process in the civil discovery context may lie when (1) the party who employs the process of a court specifically and primarily intends to increase the burden and expense of litigation to the other side; and (2) the use of that process cannot otherwise be said to be for the 'legitimate or reasonably justifiable purposes of advancing [the party's] interests in the ongoing litigation.'" Id. at 402.
  • "In this case, we conclude that the plaintiff's complaint states a claim for abuse of process in the Richardson Firm's use of discovery subpoenas, depositions, and interrogatories. The plaintiff has in fact alleged the ulterior motive for the practices of the Richardson Firm in paragraph seventy-four of her complaint, which states that the Richardson Firm used the discovery process 'for the improper purposes of (1) harassing the Plaintiff; and (2) causing the Plaintiff to incur unnecessary expense to defend against its discovery schemes; [and] (3)
    weakening the Plaintiff's resolve to pursue the suit to the extent that she will abandon it.' Cf. Nienstedt, 651 P.2d at 882. Taken as true, these allegations certainly support the first element of the tort, i.e., the existence of an ulterior motive." Id.
  • "Regarding the second element of the tort, an act 'in the use of process other than such as would be proper in the regular prosecution of the charge,' we find that the complaint alleges facts showing that the Richardson Firm issued process without any reasonably justifiable purpose of advancing its legitimate interests in the ongoing litigation. For example, the complaint alleges that the Richardson Firm issued more than 230 interrogatories and subjected her to an eight-hour deposition, even though much of the information requested in the interrogatories and deposition was either already in the defendant's possession, not relevant to the issues in litigation, or otherwise not reasonably calculated to lead to discoverable information. The plaintiff has also alleged that the Richardson Firm issued more than seventy discovery subpoenas for medical and other records to obtain embarrassing information not related to the issues in the case and to obtain confidential and privileged information about the plaintiff from the plaintiff's psychologist. Taking these allegations as true, we find that the complaint has sufficiently alleged a use of process for purposes other than would be proper 'in the regular prosecution of the charge.'" Id. at 402-03.
  • "In response, Allstate advances two primary arguments. First, it argues that the Richardson Firm used the interrogatories and subpoenas solely for their lawful and intended purpose of gathering information relating to the merits of the case. This may in fact be so, but the intention of the Richardson Firm is a question of fact not properly decided in a motion to dismiss under Rule 12.02(6). In deciding whether to grant a motion to dismiss, this Court does not look to the perceived strength of the plaintiff's proof. See, e.g., White, 33 S.W.3d at 718. Rather, we look only to the allegations contained in the plaintiff's complaint, and we find here that the complaint sufficiently alleges that the Richardson Firm primarily sought to increase the burden and expense of litigation to the plaintiff." Id. at 403
  • "Second, Allstate argues that before a claim for abuse of process can be stated, the complaint must allege that the Richardson Firm took some action after it issued the subpoenas which shows an improper use of process. We disagree. Although some cases contain language that initially appears to support Allstate's position, see Bell ex rel. Snyder, 986 S.W.2d at 555, we believe that Allstate has read these cases too broadly. Instead, the additional use requirement only demands that a plaintiff show some additional abuse of process after the original processes of the court, i.e., the complaint, summons, and responsive pleadings, have been issued. In fact, the additional use requirement must be so limited because it is this requirement alone that distinguishes this tort from that of malicious prosecution, which arises solely upon the filing of a complaint without probable cause. See Roberts v. Federal Express Corp., 842 S.W.2d 246, 247-48 (Tenn. 1992)." Id.
  • "Once a suit has been filed and other processes have been unjustifiably issued, a plaintiff is not then also required to show some further misuse of that process to state a claim for relief. As the New Mexico Supreme Court has recognized,
    While a subsequent act may suffice to prove an abuse of process which was appropriate when issued, it is not an essential element. The initial use of process itself may constitute the required overt act under the facts. . . . We thus are in agreement with the court in Mills [County State Bank v. Roure, 291 N.W.2d 1, 5 (Iowa 1980)], when it wrote:
    The existence of this cause of action recognizes that even in meritorious cases the legal process may be abused. That abuse involves using the process to secure a purpose for which it was not intended. We can see no reason why there must be subsequent activity to support the cause of action. Such activity may be very probative in determining the intent to abuse; however, there need not be such a subsequent action to commit the tort. To rule otherwise would protect the tortfeasor when the abuse is most effective-where the issuance of the process alone is sufficient to accomplish the collateral purpose.
    Richardson v. Rutherford , 787 P.2d 414, 421 (N.M. 1990) (citations omitted) (emphasis added). We conclude, therefore, that the plaintiff has adequately alleged facts supporting both elements of a claim for tortious abuse of process." Id.

Other Sources of Note: Bell v. Icard, Merrill, Cullis, Timm, Furen, and Ginsburg P.A , 986 S.W.2d 550 (Tenn. 1999) (excellent discussion of abuse of process and conspiracy to abuse process). Also, the Givens opinion has a discussion of whether the plaintiff in that case waived her abuse of process claim. That discussion is may be found at 75 S.W.3d 383, 403-04.

Recent Cases:

Crowe v. Bradley Equipment Rental and Sales, Inc., No. E2008-02744-COA-R3-CV, 2010 WL 1241550 (Tenn. Ct. App. Mar. 31, 2010) (abuse of process claim requires proof of misuse of judicial process).

Rentea v. Rose , No. M2006-02076-COA-R3-CV, 2008 WL 1850911 (Tenn. Ct. App. Apr. 25, 2008) (upholding summary judgment on abuse of process claim finding there was no improper use of the court's authority; instead, for the most part, claims centered around discovery disputes).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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