MIAMI BUSINESS LITIGATION: ABUSE OF PROCESS CLAIMS UNDER FLORIDA LAW

Under Florida law, the tort of abuse of process involves the use of criminal or civil legal process against another primarily to accomplish a purpose for which it was not designed. Florida’s Third District Court of Appeal in Cline v. Flagler Sales Corp., 207 So.2d 709 (Fla. 3d DCA 1968), discussed the elements abuse of process and stated in pertinent part, “[i]n an action for abuse of process it is not essential to show a termination of the proceeding in favor of the person against whom the process was issued and used, or to show want of probable cause or malice. The cause of action consists of the willful or intentional misuse of process; a willful and intentional misuse of it for some wrongful or unlawful object, or ulterior purpose not intended by the law to effect.” Abuse of process is sometimes confused with the tort of malicious prosecution, which is a distinct cause of action. A leading legal treatise, Prosser on Torts, 3rd Ed., Ch. 23, Misuse of Legal Procedure, section 115, page 877, explained that: “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.” The Miami business litigation attorneys of the Mavrick Law Firm represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

In the years since the Cline appellate decision, Florida jurisprudence further developed what is required to establish an abuse of process. Bothmann v. Harrington, 458 So.2d 1163 (Fla. 3d DCA 1984), explained that abuse of process requires “a use of the process for an immediate purpose other than that for which it is designed…’Legal malice’ is presumed to exist if the plaintiff establishes that the process has been used for an improper purpose.” However, “[t]here is no abuse of process, however, when the process is used to accomplish the result for which it was created, regardless of an incidental or concurrent motive of spite or ulterior purpose. In other words, the usual case of abuse of process involves some form of extortion…Even a pure spite motive is not sufficient where process is used only to accomplish its intended purpose.” Relying on W. Prosser, Handbook of the Law of Torts § 121 (4th ed. 1971), Brothmann added that: “Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. 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 process as a threat or club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process, itself, which constitutes the tort.” Express or implied extortion sometimes occurs in, inter alia, employment and commercial litigation.

Although the tort of abuse of process often is tied to a form of extortion, it is not an element of the claim. Florida’s Fourth District Court of Appeal, in Della-Donna v. Nova University, Inc., 512 So.2d 1051 (Fla. 4th DCA 1987), explained in pertinent part that: “For a plaintiff to establish a cause of action for abuse of process, it must be proved that the defendant made illegal, improper, or perverted use of process; that the defendant had ulterior motives or purposes in exercising such illegal, improper, or perverted use of process; and that as a result of such action on the part of the defendant, the plaintiff suffered damage…[T]he tort of abuse of process is concerned with the improper use of process after it issues.”

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.