Defeating Abusive Claims and Counterclaims for Abuse of Process

• Publication year: 2001
• Pages: 47

30 Colo.Law. 47 Colorado Lawyer 2001.

2001, March, Pg. 47. Defeating Abusive Claims and Counterclaims for Abuse of Process

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47

Vol. 30, No. 3, Pg. 47

The Colorado Lawyer
March 2001
Vol. 30, No. 3 [Page 47]

Specialty Law Columns
The Civil Litigator
Defeating Abusive Claims and Counterclaims for Abuse of Process
by Philip L. Gordon

Abuse of process, that once-obscure tort absent from practically every law school curriculum, is gaining visibility. Civil litigators in Colorado increasingly resort to this tort as a source of negotiating leverage or for other tactical purposes, particularly in the form of a counterclaim charging that the complaint itself constitutes an abuse of process. This article explains how to defeat such misuse of the tort of abuse of process

Historical Background

Abuse of process was a late arrival to English common law as well as Colorado law. The leading English case was not decided until 1838.1 The Colorado Supreme Court did not recognize the tort until almost one century later.2 Moreover it was not until the 1980s that published decisions in Colorado reported efforts to extend the tort to claims and counterclaims based on the adversary's filing of a complaint

Both English and U.S. courts initially recognized the tort to provide a remedy in a narrow set of factual circumstances beyond the scope of the older tort of malicious prosecution. Malicious prosecution provides a remedy when an earlier court proceeding, criminal or civil, was initiated without probable cause and when that proceeding terminated unfavorably for the party who initiated it.3 By contrast, abuse of process was recognized to provide a remedy when "legal procedure has been set in motion with probable cause, and even with ultimate success, but nevertheless has been perverted to accomplish an ulterior purpose for which it was not designed."4

Coulter v. Coulter, the Colorado case that recognized the tort of abuse of process, illustrates the tort's intended narrow scope. In the abuse of process proceeding, the plaintiff alleged that the defendant, a relative, had successfully obtained the plaintiff's commitment for nine months to the Colorado State Hospital for the Insane by submitting a false affidavit in a "lunacy proceeding." Further, the plaintiff alleged that the defendant's ulterior purpose was to alienate the affection of the plaintiff's mother. Treating the claim like one for malicious prosecution, the trial court required the plaintiff to prove that he had prevailed in the underlying proceeding. The trial court dismissed the plaintiff's claim for abuse of process because he had not, and could not, allege that the underlying proceeding, the "lunacy proceeding," terminated in his favor. The Colorado Supreme Court reversed the trial court's decision, reasoning that, unlike the tort of malicious prosecution, abuse of process does not require a favorable outcome in the underlying action.5

Aztec Sound Corp. v. Western States Leasing Co.,6 provides another example of the type of factual circumstances that the tort of abuse of process was intended to address. In that case, the plaintiff had fully paid a loan secured by its manufacturing equipment. Nonetheless, the defendant, the satisfied creditor, obtained a writ of replevin and set in motion the sheriff's execution of the writ against the equipment. To prevent the disruption of its business operations, the plaintiff made a $2,000 settlement payment to the creditor and executed a release. The Colorado Court of Appeals affirmed the trial court's judgment in the plaintiff's favor on the abuse of process claim, notwithstanding the defendant's success in the replevin action.7

Not long after Aztec Sound Corp. was decided, civil litigators in Colorado sought to extend the tort of abuse of process to the filing of a civil complaint. Until that time, abuse of process had not been used beyond the confines of "lunacy proceedings," replevin actions, and other less frequently used actions seeking a writ, such as garnishment and attachment proceedings.

The first reported Colorado appellate decision involving such a claim was Protect Our Mountain Environment, Inc. (POME) v. District Court.8 There, an environmental group attempted to stop a large real estate development in Jefferson County by challenging the local government's rezoning decision in a Colorado Rules of Civil Procedure ("C.R.C.P.") Rule 106 proceeding.9 After prevailing in the Rule 106 proceeding, the real estate developer asserted an abuse of process claim against the environmental group and its counsel, seeking $40 million in compensatory and punitive damages. Just two years later, in Concerned Members of Intermountain Rural Electric Association (IREA) v. District Court,10 the party charging abuse of process used the tort even more aggressively. In IREA, the defendant in a Rule 106 proceeding did not wait until after it had obtained a favorable result to charge the party who had filed the Rule 106 petition with abuse of process. Instead, the defendant asserted in a counterclaim that the filing of the Rule 106 petition itself constituted an abuse of process.

The Colorado Supreme Court in POME and IREA imposed no bright-line rule barring an abuse of process claim or counterclaim based on the filing of a complaint. As a result, by the mid-1980s, the tort of abuse of process had arrived as a potential weapon in response to practically every lawsuit. However, in light of the tort's historical origins and its narrow scope, this tort usually can be deflected, if not entirely defeated, at an early stage of most lawsuits.

Using a Motion to Dismiss For Failure to State a Claim

The obvious starting point for defeating an abuse of process claim or counterclaim through a motion to dismiss for failure to state a claim is an understanding of the elements of the tort. The tort of abuse of process has three elements regardless of the nature of...