1 Abuse of Process

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

1 Abuse of Process

A. Definition

The South Carolina Supreme Court has defined abuse of process as "employment of legal process for some purpose other than which it was intended by law to effect -the improper use of a regularly issued process."¹ The court has distinguished the tort of abuse of process from malicious prosecution by saying it "involves the malicious misuse or perversion of the process, after its issuance, for an end not lawfully warranted by it."²And it has said the focus of the action is on the improper use of process after it has been issued.³ The references to use of process after it has been issued have lead to arguments that in an abuse of process claim, only acts occurring after process has been issued may be considered.⁴ This conclusion has been vigorously disputed by the South Carolina Court of Appeals which has opined that cases indicating "an improper act committed before process is issued is insufficient to support an action for abuse of process stand only for the narrower proposition that there must be an overt act and bad purpose alone is insufficient."⁵ That bad intentions alone are insufficient to support a cause of action for abuse of process have been emphasized in several decisions.⁶

Actions for abuse of process have been based on: appeal of a trial court judgment,⁷appeal of the decision of a Board of Adjustment,⁸ wrongful intervention,⁹ improper venue,¹⁰filing suit after a voluntary dismissal,¹¹ and filing a complaint with an administrative agency.¹²

The Court of Appeals has noted that no South Carolina case has defined the "process" aspect of abuse of process and concluded the term "embraces the full range of activities and procedures attendant to litigation."¹³

B. Elements

(1) ulterior purpose
(2) willful act in the use of the process not proper in the regular conduct of the proceeding.¹⁴

The tort of abuse of process has neither an element of intent to harm, nor actual malice¹⁵

C. Elements Defined

1. Ulterior Purpose

If process is used to gain an objective which is not legitimate in the use of the process, an ulterior purpose exists.¹⁶ Mere commencement of a civil action by the service of a summons does not in itself constitute abuse of process.¹⁷ Initiation of criminal proceedings for a legitimate purpose is also not an abuse of process.¹⁸

Causing a valid subpoena to issue for a legitimate purpose does not meet the requirement of ulterior purpose.¹⁹ Bringing suit again after a voluntary dismissal and not in the county of the defendant's residence was found not to constitute an ulterior purpose.²⁰ Demands made during negotiation prior to filing an action are also not a basis for finding an improper use of process.²¹ Nor is offering to drop criminal charges of assault and battery upon payment of restitution.²² Attachment of a check, although other assets might be available to attach. was found to be an intended use of the attachment process without ulterior motive.²³

Using the criminal process to coerce a customer to pay for merchandise a store employee believed had previously been taken²⁴ and filing a lis pendens to prevent a sale of property to a third party²⁵ have both been found to constitute ulterior purposes. Where a defendant counterclaimed for abuse of process alleging the suit was brought in retaliation for the political defeat of the plaintiff and because of another lawsuit involving plaintiff filed by the defendant's son, the allegations were a sufficient showing of ulterior purpose to survive a motion to dismiss.²⁶

Where an attorney acted with the plaintiff's "best interests in mind" when he, at the request of the plaintiff's son and attorney-in-fact, transferred her property to a trust for her benefit so that she would "not bring financial harm to herself," her action against the attorney for abuse or process failed as there was no suggestion of an ulterior purpose.²⁷

2. Willful Act in the Use of the Process Not Proper in the Regular Conduct of the Proceeding

This second element of the action is less well defined than the first. Under it liability exists not because a party seeks to gain collateral advantage by using legal process, but because the collateral objective was the sole or paramount reason for acting. An allegation of an ulterior purpose or "bad motive" alone is insufficient to assert a claim.²⁸ In one case a Board of Adjustment granted a variance and would-be competitors of the successful petitioner appealed. The appeal, said the court, did not constitute a willful act in the use of the process not proper in the regular conduct of the proceeding.²⁹

The willful aspect of the second element is said to be comprised of three parts: a willful or overt act; the act was in the use of the process; and, the act was improper either because it was unauthorized or was aimed at an illegitimate collateral objective.³⁰

The fact that the process is carried to its authorized conclusion does not mean that no liability may arise since the essence of the tort centers on events occurring outside of the process. Thus, where there was evidence to suggest that the primary purpose of a police investigation of an officer, and issuance of warrants against him, was to coerce or extort his testimony against a former officer also under investigation — even though the officer had previously indicated he had no knowledge that would further the investigation — the circuit court did not err in denying the defendant's motions for a directed verdict or later for JNOV.³¹

D. Defenses

The South Carolina Tort Claims Act³² waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort. It contains, however, many limitations on liability and damages that may preclude or restrict a plaintiff's cause of action.³³ The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity.³⁴ A limitation specifically applicable to an action for abuse of process is that governmental entities³⁵ are not liable for a loss resulting from "employee conduct ... which constitutes ... actual malice ...".³⁶ The Court of Appeals has said that a cause of action for abuse of process does not contain an element of actual malice,³⁷ and, therefore, the action is not barred by the Act "because of its elements."³⁸

The statute of limitations for abuse of process is six years for actions arising prior to April 15, 1988, and three years for those arising on or after that date.³⁹ Actions initiated under the provision must be commenced within three years after the plaintiff knew or by the exercise of reasonable diligence should have known that a cause of action existed.⁴⁰

A defendant who enters a guilty plea, including an Alford plea — a guilty plea accompanied by an assertion of innocence — at a criminal proceeding is collaterally estopped from litigating the issue in a subsequent civil acton based on the same facts underlying the plea.⁴¹

E. Damages

Actual⁴² and punitive⁴³ damages have been awarded in actions for abuse of process. The compensatory damages a successful plaintiff may recover are those for the natural results of the wrong and may include physical or mental injury, loss of time, and injury to business, property or financial standing.⁴⁴

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Notes:

^[1] Huggins v. Winn-Dixie Greenville, Inc., 249 S.C. 206, 153 S.E.2d 693, 695 (1967) (the court distinguished malicious prosecution which it defined as "maliciously causing process to be issued."); Whitfield Const. Co. v....