A litigant may commit abuse of process by bringing or defending an underlying action. Crackel v. Allstate Ins. Co., 208 Ariz. 252, 258, 92 P.3d 882, 888 (Ct. App. 2004).
An attorney may also commit abuse of process. The privilege an attorney has representing a client is a qualified one and does not extend to the intentional tort of abuse of process. See Giles v. Hill Lewis Marce, 195 Ariz. 358, 361, 988 P.2d 143, 146 (Ct. App. 1999). Accordingly, Arizona allows a cause of action against opposing counsel for abuse of process. Id.
at 362, 988 P.2d at 147.
However, public officials may be immune from abuse of process. See Keys Ltd., LLC v. City of Tucson,
2006 Ariz. App. Unpub. LEXIS 379, at *14-15 (Sept. 25, 2006) (citing A.R.S. § 13-413).
Arizona does not require expert testimony for abuse of process claims, because they involve no standard of care requirement, expert witnesses are expensive for plaintiffs to secure and a jury is capable of deciding whether a legal process has been primarily used to pursue an improper purpose. Crackel, 208 Ariz. at 265, 92 P.3d at 895.
To prove a claim for abuse of process, the plaintiff bears the burden of proving the following four elements: (1) the defendant willfully used against the plaintiff a specific judicially-sanctioned process; (2) the defendant used that process in a wrongful manner that was not proper in the regular course of the proceedings; (3) the defendant used that process primarily for an improper purpose or ulterior motive; and (4) the defendant’s wrongful use of that process caused injury, damage, loss, or harm to the plaintiff. See RAJI (Civil), 5th Intentional Torts 18.1 (Abuse of Process – Elements of Liability) (citations omitted).
These elements must be based on more than “mere conjecture” or “mere speculation.” Crackel v. Allstate Ins. Co., 208 Ariz. at 259, 92 P.3d at 889; Morn v. City of Phoenix,
152 Ariz. 164, 167, 730 P.2d 873, 876 (Ct. App. 1986).
Each of these elements is discussed in turn in detail below.
Specific Judicially-Sanctioned Process. Regarding the first element for abuse of process, “the word ‘process’ . . . is not restricted to the narrow sense of that term. Rather, it has been interpreted broadly, and encompasses the entire range of procedures incident to the litigation process.” Nienstedt v. Wetzel,
133 Ariz. 348, 352, 651 P.2d 876, 880 (Ct. App. 1982) (citations omitted). See also Crackel, 208 Ariz. at 258 n.2, 92 P.3d at 888 n.2 (“Arizona has adopted a liberal view on the types of court processes that can support a claim”).
Accordingly, the following are all considered a “process” for abuse of process purposes: notice of depositions, entry of defaults, utilization of various motions, such as motions to compel production, for protective orders, for change of judge, for sanctions and for continuances, and discovery, including request for admissions. See Nienstedt, 133 Ariz. at 352-53, 651 P.2d at 880-81.
However, the filing of a lis pendens is not considered a “process” for abuse of process purposes. See Gray v. Kohlhase,
502 P.2d 169, 172-73 (Ct. App. 1972).
Neither is the filing of a false report. See Yanes v. Maricopa County, 2012 Ariz. App. Unbpub. LEXIS 1456, at *16-17 (Nov. 8, 2012).
Moreover, “mere threats that process will be invoked, at least in the absence of any demand for special advantage from it, will be insufficient.” Morn, 152 Ariz. at 168, 730 P.2d at 877 (quoting Prosser and Keeton on the Law of Torts § 121 at 897-99 (5th ed. 1984)).
Finally, pre-litigation conduct does not give rise to an abuse of process claim. See Crackel, 208 Ariz. at 271, 92 P.3d at 901; Irving v. State Farm Ins. Co., 2008 Ariz. App. Unpub. LEXIS 988, at *11-13 (Mar. 13, 2008); RAJI (Civil), 5th Intentional Torts 18.1 (Abuse of Process – Elements of Liability), Use Notes. But see Acomb v. Foster, 2003 Ariz. App. Unpub. LEXIS 151, at *5-8 (Apr. 15, 2003) (“We therefore reject the Acombs’ assertion that an abuse of process claim must fail if the evidence only shows the defendant’s improper conduct occurred before legal process issued ...”).
In short, “[t]he authority of the court must have been invoked for a defendant to be liable for an abuse of process.” Id.
at 271, 92 P.3d at 901.
Unlike other courts, Arizona courts do not “require as an additional element of an abuse of process claim, a showing that the wrongful use of the court’s process has resulted in the seizure of the plaintiff’s person or property.” Nienstedt, 133 Ariz. at 353, 651 P.2d at 881 (citations omitted). “Such a requirement has not been set forth in prior Arizona decisions or in the Restatement, and, in essence, would limit the scope of the tort to those instances involving the use of ‘process’ in the strictest sense of that term.” Id.
at 353, 651 P.2d at 881. “As previously indicated, the late authorities interpret ‘process’ as encompassing the entire range of court procedures incident to the litigation process, and do not restrict the tort to the utilization of process in the nature of attachment, garnishment or warrants or arrest.” Id.
at 353, 651 P.2d at 881.
Likewise, an abuse of process claim is not limited to those court procedures in “which a litigation uses court procedural authority to compel opposing litigants ‘to act or forebear to act’ in some way.” Crackel, 208 Ariz. at 258, 92 P.3d at 888.
Use of Process In Wrongful Manner. The second element, misuse of the process “‘is an act done under the authority of the court for the purpose of penetrating an injustice, i.e., a perversion of the judicial process to the accomplishment of an improper purpose.’” Rondelli, 120 Ariz. at 490, 586 P.2d at 1301 (citation omitted).
It is immaterial that the process may have been properly obtained or issued as a normal incident of the litigation involved. It is the subsequent misuse which constitutes the misconduct for which liability is imposed. On the other hand, the authorities recognize that there is no liability when the defendant has done nothing more than legitimately utilize the process for its authorized purposes, even though with bad intentions.
Nienstedt, 133 Ariz. at 353, 651 P.2d at 881 (emphasis added). See also Crackel, 208 Ariz. at 259, 92 P.3d at 889 (“a claimant must establish that the defendant used a court process in a fashion inconsistent with legitimate litigation goals. . . . Thus, plaintiffs . . . must also show that, in using the court process, the defendant took an action that could not logically be explained without reference to the defendant’s improper motives.”); Pankratz v. Willis, 155 Ariz. 8, 22, 744 P.2d 1182, 1196 (Ct. App. 1987)(“Where a lawful end is pursued by appropriate process, incidental motives of spite or greed are not actionable.”) (citation omitted); Nienstedt, 133 Ariz. at 354, 651 P.2d at 882 (“Liability should only result when . . . the utilization of the procedure for the purposes for which it was designed becomes so lacking in justification as to lose its legitimate function as a reasonably justifiable litigation procedure.”); RAJI(Civil), 5th Intentional Torts 18.2 (Abuse of Process – Reasonably Justifiable Conduct) (“Use of process is wrongful only if it is not reasonably justifiable in light of legitimate litigation goals and can be logically explained only by an improper purpose or ulterior motive, even if it was actually undertaken with bad intentions, such as spite, ill will, or an intent to harass.”) (citations omitted)
Courts “cannot infer the necessary wilful act ‘not proper in the regular conduct of the proceeding’ from the mere existence of an improper motive alone.” Morn, 152 Ariz. at 168, 730 P.2d at 877. See also Id.
at 168, 730 P.2d at 877 (“it is not possible to infer acts from the existence of an improper motive alone”) (quoting Prosser and Keeton on the Law of Torts § 121 at 897-99 (5th ed. 1984)).
A “plaintiff must prove that one or more specific judicially sanctioned processes have been abused to establish an abuse-of-process claim.” Crackel, 208 Ariz. at 257, 92 P.3d at 887.
Accordingly, initiating or continuing a lawsuit does not in and of itself constitute an improper use of the judicial process. See Id.
at 258, 92 P.3d at 888 (“we reject Guenther and Drannan’s contention that a generalized allegation that a defendant has misused the litigation process as a whole can support a claim of abuse of process. Rather, it must be based on something more than the opposing party’s mere persistence in the litigation.”); Morn, 152 Ariz. at 167-68, 730 P.2d at 876-77 (filing and continuing complaint was insufficient for abuse of process counterclaim); Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 410, 441 n.1, 758 P.2d 1312 (Ct. App. 1986) (“Seeking an advantage in litigation over a single incident by filing a complaint or counterclaim is not misuse of process.”) Joseph v. Markovitz, 551 P.2d 571, 575 (Ct. App. 1976) (“proof of abuse of process requires some act beyond the initiation of a lawsuit; such as, if Drs. Markovitz and Weinrach had offered to dismiss the third-party complaint in exchange for Dr. Joseph not testifying against them”). Cf. Meyer v. Gutierrez, 2012 Ariz. App. Unpub. LEXIS 1579, at *5-9 (Dec. 27, 2012) (“implied inference from the defense verdicts that [plaintiffs] continued this litigation even though they knew it had no basis is, by itself, not sufficient evidence of abuse of process”).
Similarly, settlement does not in and of itself constitute an improper use of the judicial process. See Crackel, 208 Ariz. at 263, 92 P.3d at 893 (“a mere failure to settle or refusal to make a settlement offer cannot constitute abuse of process”); Bird v. Rothman, 128 Ariz. 599, 602, 627 P.2d 1097, 1100 (Ct. App. 1981) (“There was no proof of an improper use of judicial process here, as the purpose of settlement is includable in the goals of proper process.”).
Improper or Ulterior Purpose Primary Motivation for Process. For the third element, “a plaintiff must show that the defendant’s improper purpose was the primary motivation for its actions, not merely an incidental motivation.” Crackel, 208 Ariz. at 259, 92 P.3d at 889.
“Thus, a claim of abuse of process may not be based solely on the fact that an opposing litigant received some secondary gain or emotional satisfaction from the use of a court process.” Id.
at 259, 92 P.3d at 889. See also RAJI (Civil), 5th Intentional Torts 18.3 (Abuse of Process – Primary Motivation) (“A primary improper purpose or ulterior motive requires more than an incidental motive of ill will to the plaintiff or benefit to the defendant, or an awareness that the action, though otherwise proper, will cause the opposing party to incur additional legal expenses or other injury.”).
An improper purpose or ulterior motive may include trying to “obtain a collateral advantage” or “extortion.” Morn, 152 Ariz. at 167, 730 P.2d at 876; Rondelli, 120 Ariz. at 489, 586 P.2d at 1301.
The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding, itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion ...
Morn, 152 Ariz. at 168, 730 P.2d at 877 (quoting Prosser and Keeton on the Law of Torts § 121 at 897-99 (5th ed. 1984)).
Another “ulterior or collateral purpose involved has been to expose the injured party to excessive attorney’s fees and legal expenses.” Nienstedt, 133 Ariz. at 354, 651 P.2d at 882. In that situation, liability may only result when the attorney’s “sense of awareness” that his or her action will necessarily subject the opposing party to additional legal expenses progresses to become a “sense of purpose.” Id.
at 354, 651 P.2d at 882.
An ulterior motive may be proven by: (1) showing a direct demand for collateral advantage; (2) inferring it from what is said or done about the process; or (3) inferring it from the way the process was carried out, i.e., the motive may be inferred from the act in the case. Morn, 152 Ariz. at 168, 730 P.2d at 877 (quoting Prosser and Keeton on the Law of Torts § 121 at 897-99 (5th ed. 1984)).
However, the timing of a lawsuit is insufficient to infer a defendant’s primary motivation. See Hatton v. Ariz. Dep’t of Revenue, 2007 Ariz. App. Unpub. LEXIS 456, at *12-13 (Feb. 22, 2007).
Also insufficient are allegedly false statements made during discovery, like the amount of damages. See Meyer, 2012 Ariz. App. Unpub. LEXIS 1579, at *6-7.
Injury, Damage, Loss or Harm to Plaintiff. A plaintiff must demonstrate he or she suffered harm arising from the defendant’s abuse of process. See Crackel, 208 Ariz. at 264, 92 P.3d at 894; Nienstedt, 133 Ariz. at 353, 641 P.2d at 881. Such harm may include costs, emotional distress, humiliation, inconvenience or anxiety as a result of the underlying action. Crackel, 208 Ariz. at 264, 92 P.3d at 894.
The foregoing four elements are not always easy to meet. There are only a few Arizona cases in which courts have found a potential abuse of process claim. See, e.g., Crackel, 208 Ariz. at 260-64, 92 P.3d at 890-94; Giles, 195 Ariz. at 362, 988 P.2d at 147; Nienstedt, 133 Ariz. at 354, 651 P.2d at 882; Acomb, 2003 Ariz. App. Unpub. LEXIS 151, at *5-8.
Meanwhile, there are more cases in which courts did not find a viable abuse of process claim. See, e.g., Pankratz, 155 Ariz. at 22, 744 P.2d at 1196; Morn, 152 Ariz. at 166-68, 730 P.2d at 875-77; Bradshaw, 157 Ariz. at 441 n.1, 758 P.2d 1312; Bird, 128 Ariz. at 602, 627 P.2d at 1100; Rondelli, 120 Ariz. at 489, 586 P.2d at 1301; Joseph, 551 P.2d at 575; Gray, 502 P.2d at 172-73; Parra v. Lippman Griffeth & Assocs., P.C., 2014 Ariz. App. Unpub. LEXIS 382, at *9-14 (Mar. 27, 2014); Meyer, 2012 Ariz. App. Unpub. LEXIS 1579, at *5-9; Yanes, 2012 Ariz. App. Unbpub. LEXIS 1456, at *16-17; Reed v. Kirk,
2012 Ariz. App. Unpub. LEXIS 390, at *11-14 (Mar. 27, 2012); Higgins v. Tiffany & Bosco, P.A., 2010 Ariz. App. Unpub. LEXIS 70, at *5-7 (June 10, 2010); Schlauder v. Nelson,
2010 Ariz. App. Unpub. LEXIS 835, at *20-22 (Arp. 22, 2010); Irving, 2008 Ariz. App. Unpub. LEXIS 988, at *11-13; Discover Fin. Servs., Inc. v. Foroughi, 2007 Ariz. App. Unpub. LEXIS 310, at *16-18 (Mar. 22, 2007); Hatton, 2007 Ariz. App. Unpub. LEXIS 456, at *11-15; Keys Ltd., 2006 Ariz. App. Unpub. LEXIS 379, at *13-15; Feulner v. Engler,
2004 Ariz. App. Unpub. LEXIS 20, at *3-9 (Oct. 28, 2004); Feulner v. Aboud,
2004 Ariz. App. Unpub. LEXIS 284, *8-10 (May 12, 2004); Hanson v. County of Pima,
2003 Ariz. App. Unpub. LEXIS 454, at *15-16 (Oct. 20, 2003).