A. Definition

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

A. Definition

"The tort of abuse of process is intended to compensate a party for harm resulting from another party's misuse of the legal system."¹ 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."² 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."³ And it has said the focus of the action is on the improper use of process after it has been issued.⁴ 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.⁵ 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."⁶ That bad intentions alone are insufficient to support a cause of action for abuse of process has been emphasized in several decisions.⁷

Actions for abuse of process have been based on: appeal of a trial court judgment,⁸ appeal of the decision of a Board of Adjustment,⁹ wrongful intervention,¹⁰ improper venue,¹¹ filing suit after a voluntary dismissal,¹² and filing a complaint with an administrative agency.¹³

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."¹⁴

Where a malicious prosecution action was premature, the Court of Appeals said that abuse of process was the "more appropriate action to take against an alleged maliciously filed notice of lis pendens when there has not yet been a favorable termination that reflects the merits of the underlying claim."¹⁵

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Notes:

^[1] Pallares v. Seinar, 407 S.C. 359, 370, 756 S.E.2d 128, 133 (S.C. 2014).

^[2] 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. Bank of Tokyo Trust Co., 338 S.C....