Abuse of Process –


[1] Elements and Case Citations

(1) Defendant willfully or intentionally made illegal, improper, or perverted use of process;

(2) Defendant had ulterior motive or purpose in exercising the process; and

(3) Defendant’s actions caused injury to plaintiff.

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Florida State Courts

First District: Gause v. First Bank of Marianna, 457 So. 2d 582, 584 (Fla. 1st DCA 1984)

Second District: Peckins v. Kaye, 443 So. 2d 1025, 1026 (Fla. 2d DCA 1983)

Third District: Valdes v. GAB Robins N. Am., Inc., 924 So. 2d 862, 867 n.2 (Fla. 3d DCA 2006)

Fourth District: P.T.S. Trading Corp. v. Habie, 673 So. 2d 498, 500 (Fla. 4th DCA 1996)

Fifth District: Hardick v. Homol, 795 So. 2d 1107, 1111, n. 2 (Fla. 5th DCA 2001)

Florida Federal Courts

Eleventh Circuit: Dykes v. Hosemann, 776 F. 2d 942, 950 (11th Cir. 1985), cert. denied, 479 U.S. 983 (1985)

Southern District: Steinhilber v. Lamoree, 825 F. Supp. 1003, 1006 (S.D. Fla. 1992), aff’d, 15 F.3d 1097 (11th Cir. 1994)

Middle District: Coachmen Indus., Inc. v. Royal Surplus Lines Ins. Co., No. 3:06-CV-959-J-HTS, 2007 WL 1837842, *7 (M.D. Fla. June 26, 2007)

Nothern District: Gulley v. Escambia County, No. 3:07CV409/RS-MD 2008 WL 899238, *3 (N.D. Fla. Apr. 1, 2008)

Florida Rules

Fla. R. Civ. P. 1.070

Fla. R. Prof. Conduct 4-3.1

Florida Statutes

§ 48.011 et seq., § 49.011 et seq., Fla. Stat.

References

Restatement (Second) of Torts § 682 (1965)

[2] Defenses to Claim for Abuse of Process

(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses): a party must set forth affirmatively accord and satisfaction, arbitration and award, assumption of the risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, waiver, and any other matter constituting avoidance or an affirmative defense. See § 60.

(2) Statute of Limitations: § 95.11(3)(o), Fla. Stat. (four years); Blue v. Weinstein, 381 So. 2d 308, 311 (Fla. 3d DCA 1980).

(3) Threats of judicial action, even if without basis, are not actionable as abuse of process; a claim requires the issuance of some form of process by a court. See Steinhilber v. Lamoree, 825 F. Supp. 1003, 1005, 1006 (S.D. Fla. 1992).

(4) Judges enjoy absolute immunity from claims for abuse of process when the judge has subject matter jurisdiction over the matter forming the basis for liability. See Dykes v. Hosemann, 776 F.2d 942, 943 (11th Cir. 1985), cert. denied, 479 U.S. 983 (1985).

(5) Plaintiff cannot bring claim for abuse of process when defendant’s action was authorized by a court order. See Laird v. Vogel, 334 So. 2d 650, 651 (Fla. 3d DCA 1976), cert. denied, 348 So. 2d 949 (Fla. 1977).

(6) Plaintiff cannot assert claim for abuse of process when process is used to accomplish the result for which it was created, regardless of defendant’s incidental, ulterior or concurrent motive. See Thomson McKinnon Secs., Inc. v. Light, 534 So. 2d 757, 760 (Fla. 3d DCA 1988).

(7) The mere initiation of judicial process does not give rise to abuse of process claim unless defendant misuses process ``after’’ it was issued by pursuing the improper claim. See Della-Donna v. Nova University, 512 So. 2d 1051, 1056 (Fla. 4th DCA 1987).

(8) Advice of counsel. Natural Solutions v. Terrabind, 840 So.2d 387 (Fla. 4th DCA 2003).