C. Elements Defined

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

C. Elements Defined

1. Ulterior Purpose

The fact that a suit was properly instituted does not foreclose an action for abuse of process if the defendant has in fact, committed acts outside the normal process that are improper.¹⁸ If process is used to gain an objective which is not legitimate in the use of the process, an ulterior purpose exists.¹⁹ Mere commencement of a civil action by the service of a summons does not in itself constitute abuse of process.²⁰ Initiation of criminal proceedings for a legitimate purpose is also not an abuse of process.²¹

Causing a valid subpoena to issue for a legitimate purpose does not meet the requirement of ulterior purpose.²² 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.²³ Demands made during negotiation prior to filing an action are also not a basis for finding an improper use of process.²⁴ Nor is offering to drop criminal charges of assault and battery upon payment of restitution.²⁵ 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.²⁶

Using the criminal process to coerce a customer to pay for merchandise a store employee believed had previously been taken²⁷ and filing a lis pendens to prevent a sale of property to a third party²⁸ 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.²⁹

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.³⁰

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.³¹ 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.³²

The willful aspect of the second element is said to be comprised of three parts: a willful or overt act; the act was in...