Abuse of process, an intentional tort, requires proof of two elements:
LaMantia v. Redisi, 118 Nev. 27, 30, 38 P.3d 877, 897 (2002).
The following ARE NOT necessary elements for a prima facie abuse of process claim:
An "ulterior purpose" includes any "improper motive" underlying the issuance of legal process.Dutt v. Kremp, 111 Nev. 567, 894 P.2d 354, 360 (Nev.,1995) (overruled on other grounds by LaMantia v. Redisi, 118 Nev. 27, 30, 38 P.3d 877, 897 (2002))).
Examples of what is abuse of process:
The Nevada Supreme Court upheld a jury award for abuse of process where the respondent's attorney, with knowledge that there was no basis for the claim, brought suit against a physician for medical malpractice with the ulterior purpose of coercing a nuisance claim settlement.Bull v. McCuskey, 96 Nev. 706, 709, 615 P.2d 957, 960 (1980), overruled in part on other grounds by Ace Truck v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987) Here the trial judge found that attempting to force payment of the claim rather than obtaining security for the debt was the ulterior purpose and that attaching all of the respondent's equipment and refusing to release any of it was the willful act not proper in the regular conduct of the proceeding. Nevada Credit Rating Bureau, Inc. v. Williams, 88 Nev. 601, 503 P.2d 9 (1972). The Plaintiff's claim for abuse of process rested on his assertion that the City wrongfully charged him with a criminal violation and then attempted to use the prosecution as a bargaining tool in obtaining a resignation from him. The Nevada Supreme Court held that was sufficient to sustain an abuse of process claim.Posadas v. City of Reno, 109 Nev. 448, 452, 851 P.2d 438, 441-42 (1993).
Examples of what is not abuse of process
Here, the Supreme Court rejected a claim for abuse of process because the plaintiff could not present "specific facts that Redisi had an ulterior purpose in the underlying lawsuit, other than resolving Teleview's legal dispute with LaMantia, and that Redisi willfully and improperly used the legal process to accomplish that purpose". LaMantia v. Redisi, 118 Nev. 27, 30, 38 P.3d 877, 897 (2002). The suit was filed simply because they could not get along with the Acostas and therefore did not want to be tenants in common with them. Secondly, the appellants' failure to dismiss the partition suit after they sold the property involved in the partition action does not constitute willful misuse of legal process. Kovacs v. Acosta, 106 Nev. 57, 787 P.2d 368 (1990) A desire to avoid paying fees for what are, at the time, perceived to be negligent medical services is not an improper motive. There was insufficient evidence to support a finding that appellant filed the malpractice action to coerce a nuisance settlement. Dutt v. Kremp, 844 P.2d 786 (Nev.1992).
Abuse of process can arise from both civil and criminal proceedings.LaMantia v. Redisi, 118 Nev. 27, 30, 38 P.3d 877, 897 (2002). "The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law." , 117 Nev. 330, 339-40, 22 P.3d 1164, 1171 (2001), quoting Faretta v. California, 422 U.S. 806, 835 n.46 (1975). Abuse of process is not a compulsory counterclaim which must be brought in the underlying litigation. Executive Management, Ltd. v. Ticor Title Ins. Co. 114 Nev. 823, 843, 963 P.2d 465, 478 (1998). Thus, we conclude that there is insufficient evidence to support a finding that appellant filed the malpractice action to coerce a nuisance settlement. It is clear that McClatchy has failed to state a claim for abuse of process under Nevada law. As seen above, Nevada courts have held that the filing of a complaint alone cannot constitute the willful act necessary for the tort to lie. This, however, is all that McClatchy has alleged. There is no allegation of abusive measures taken after the filing of the complaint, such as minimal settlement offers or huge batteries of motions filed solely for the purpose of coercing a settlement. Thus, the Court finds that McClatchy has failed to satisfy its pleading burden as far as this tort is concerned, and the motion to dismiss should be granted on this count as well.Laxalt v. McClatchy, 622 F. Supp. 737 (D. Nev. 1985).
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Jared Richards is the managing partner of Richards & Associates, a Nevada law firm focusing on personal injury, business litigation and probate. To learn more about Jared Richards, visit his Google+ Profile or his website.