ABUSE
OF PROCESS model jury charge 3.30D
The
plaintiffs in this action allege that the defendant is liable for abuse of
process. The defendant denies the
allegation.
There are two basic elements necessary
to sustain the cause of action of abuse of process. They are (1) that the
defendant made an improper, illegal and perverted use of the legal procedure,
that is to say, his/her resort to the legal process was neither warranted nor
authorized by law,[1]
and (2) that the defendant had an ulterior motive in initiating the legal
process. In other words, abuse of
process is the misuse or misapplication of the legal procedure in a manner not
contemplated by law.
Specifically, the plaintiff contends
that the defendant utilized the legal process to intimidate, harass and coerce
the plaintiff in order to obtain a collateral advantage. In other words, the plaintiff contends that
the defendant invoked the legal process to accomplish some unlawful end,
namely, to compel the plaintiff to do some collateral thing which he/she could
not legally be compelled to do.
The defendant denies this allegation and asserts
that he, the defendant, made a regular and legitimate use of the process. The defendant contends that he/she employed
the legal process to have his/her claims adjudicated or to enforce legitimate
claims.
In short,
in order for the plaintiff to prevail in this action, he/she must prove by a
preponderance of the evidence that the defendant made an improper, illegal, and
perverted use of the process and that there existed an ulterior motive or
purpose on part of the defendant.
If you find that the use of the process
was a proper one, then I charge you as a matter of law that the motive is
immaterial. The legal pursuits of one’s
rights, no matter what may be the motive of the promoter of the action, cannot
be deemed either illegal or inequitable.
It is the misuse of the process, though properly obtained, which
constitutes the misconduct for which liability is imposed.
If you find, therefore, that the defendant
made a perverted use of legal procedure for which it was not designed, with an
ulterior purpose, than I charge you as a matter of law, the law provides a
redress and the defendant is thereby liable to the plaintiff.
NOTE TO JUDGE
See Ash v.
Cohn, 119 N.J.L. 54 (E. & A.
1937) in which the court distinguishes malicious abuse of process from an
action for malicious use of process:
An action for malicious abuse of process is
distinguished from an action for malicious use of process in that the action
for abuse of process lies for the improper, unwarranted and perverted use of
process after it has been issued while that for the malicious use of it lies
for causing process to issue maliciously and without reasonable or probable
cause. Grainger v. Hill, 4 Bing.
N.C. 212. Thus it is said, is substance,
that the distinction between malicious use and malicious abuse of process is
that the malicious use is the employment of process for its ostensible purpose,
although without reasonable or probable cause, whereas the malicious abuse is
the employment of a process in a manner not contemplated by law. Another fundamental distinction is that in
the case of malicious use it is necessary to allege that the action in which
the process was used has terminated favorably to the plaintiff whereas in the
case of the malicious abuse no such allegation is necessary. Saliem
v. Glovsky (1942), 132 Me. 402;
172 Atl. Rep. 4; 50 C.J. 612, sec.
373.” 119 N.J.L. at p. 58.
Prosser comments on the
distinction between these causes of action in his treatise as follows:
Abuse of process differs from malicious prosecution in that
the gist of the tort is not commencing an action or causing process to issue
without justification, but misusing, or misapplying process justified in itself
for an end other than that which it was designed to accomplish. The purpose for which the process is used,
once it is issued, is the only thing of importance. Consequently, in an action for abuse of
process it is unnecessary for the plaintiff to prove that the proceeding has
terminated in his favor, or that the process was obtained without probable
cause or in the course of a proceeding begun without probable cause. It is often said that proof of ‘malice’ is
required; but it seems well settled that, except on the issue of punitive
damages, this does not mean spite or ill will, or anything other than the
improper purpose itself for which the process is used, and that even a pure
spite motive is not sufficient where process is used only to accomplish the result
for which it was created. Thus if the
defendant prosecutes an innocent plaintiff for a crime without reasonable
grounds to believe him guilty, it is malicious prosecution; if he prosecutes
him with such grounds to extort payment of a debt, it is abuse of process. Prosser
on Torts, Chap. 22, sec. 121 at 856-857 (4th ed. 1971).
See also Earl v.
Winne, 14 N.J. 119, 135 (1953);
34 N.J. Super. 605, 616 (Cty. Ct. 1955), and Gambocz v. Apel, et al.,
102 N.J. Super. 123, 128-130 (App. Div. 1968), certif. denied, 52 N.J.
485 (1968).
