JEROME W. PECKINS, LYNNE PECKINS, AND CHAROLD & CO., LTD., APPELLANTS,
v.
HAROLD KAYE, VIRGINIA KAYE, CHARLES C. HOFFBERGER AND BERNICE HOFFBERGER, APPELLEES
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Appellants filed an abuse of process action against appellees, alleging that a counterclaim filed against them was motivated by a threat to cause harassment and excessive legal costs. The court affirmed summary judgment for appellees, holding that while a counterclaim may constitute 'process' for abuse of process purposes, an ulterior motive alone is insufficient without an improper willful act misusing the process.
The court affirmed that a counterclaim may constitute 'process' for abuse of process purposes without requiring technical issuance of process; however, an ulterior motive alone is insufficient to establish abuse of process. There must be an improper willful act during the course of proceedings misusing the process for a collateral purpose outside its normal scope.
[1] The filing of a counterclaim may constitute the issuance of process for the purpose of an abuse of process action.
[2] A cause of action for abuse of process requires a showing of a willful and intentional misuse of process for some wrongful and unlawful object or collateral purpose.
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Join FLexlaw to unlock all legal intelligence“A cause of action for abuse of process requires a showing of a willful and intentional misuse of process for some wrongful and unlawful object, or collateral purpose.”
Establishes the legal standard for abuse of process claims
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Join FLexlaw to unlock all legal intelligenceAppellants filed an eight-count complaint against appellees and others. Appellees answered and counterclaimed, alleging malicious joinder. Appellants …
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SCHOONOVER, Judge.
This is an appeal from a summary judgment entered in an abuse of process action. We affirm.
Litigation between the parties began when the appellants filed an eight count complaint against the appellees and others. The appellees answered and counterclaimed alleging that the appellants had maliciously joined them in the action. In response to this counterclaim, the appellants, with court permission, filed the instant action for. abuse of process.
The appellants alleged, in substance, that the appellees’ counterclaim was filed and implemented for the purpose of carrying out a threat to delay the appellants’ main action, and to cause them to suffer unreasonable attorney’s fees, costs, harassment, aggravation, and inordinate expenditures of their time and money.
The court granted the appellees’ motion for summary judgment and this appeal timely followed.
We agree with the appellants’ contention that it is not necessary to prove a technical issuance of process in order for them to recover. In an abuse of process action, process may mean an action that is initiated independently such as the commencement of a suit, or one initiated collaterally, such as an attachment. Tellefsen v. Key System Transit Lines, 198. Cal.App.2d 611, 17 Cal.Rptr. 919 (1961). Therefore, the filing of a counterclaim may constitute issuance of process for the purpose of an abuse of process action. Blackstock v. Tatum, 396 S.W. 2d 463 (Tex.Civ.App.1965); Hewes v. Johnston, 61 N.C.App. 603, 301 S.E. 2d 120 (1983); Stanback v. Stanback, 297 N.C. 181, 254 S.E. 2d 611 (1979).
However, although it is not necessary to show a technical issuance of process, the trial court properly found that no genuine issue of material fact existed, and that the appellees were entitled to a summary judgment as a matter of law. Holl v. Talcott, 191 So. 2d 40 (Fla.1966).
A cause of action for abuse of process requires a showing of a willful and intentional misuse of process for some wrongful and unlawful object, or collateral purpose. Cline v. Flagler Sales Cory., 207 So. 2d 709 (Fla. 3d DCA 1968). The abuse consists not in the issuance of process, but rather in the perversion of the process after its issuance. The writ or process must be used in a manner, or for a purpose for which it is not by law intended. Black-stock.
In the case sub judice, the record contains evidence that prior to the filing of the counterclaim in question, one of the appellees threatened' to cause the appellants undue and inordinate expenditures of their time and money. This indicates there may have been an ulterior motive of harassment in the filing of the counterclaim. An ulterior motive in itself is not sufficient. There must be an improper willful act during the course of the proceedings to constitute an abuse of process. Hewes. The record does not reflect any improper willful act using the process to achieve a collateral purpose not within the normal scope of the process. Accordingly, the trial court properly determined that the appellees were entitled to a judgment as a matter of law.
AFFIRMED.
GRIMES, A.C.J., and LEHAN, J., concur.
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Gause v. First Bank OF Marianna, 457 So. 2d 582 (Fla. 1st DCA 1984)…lice, neither of which are elements of a cause of action in abuse of process. Cline at 711. Abuse of process consists rather of a willful and intentional misuse of process for some wrongful and unlawful object or collateral purpose. Peckins v. Kaye, 443 So. 2d 1025, 1026 (Fla. 2d DCA 1983). Therefore, the court’s order does not properly dispose of this count and it still remains for determination. The elements of a cause of action in malicious prosecution are: 1) the commencement or continuation of an origina…
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Valdes v. GAB Robins N. Am., Inc., 924 So. 2d 862 (Fla. 3d DCA 2006)…994-95 (Fla. 5th DCA 2003) (citations omitted)(footnote omitted). Valdes’ failure to allege any improper willful acts by the appellees during the course of the prior action requires dismissal of the abuse of process claim as well.2 Peckins v. Kaye, 443 So. 2d 1025, 1026 (Fla. 2d DCA 1983)(eonfirming that ulterior motives alone are insufficient to support an abuse of process claim and that “[t]here must be an improper willful act during the course of the proceedings to constitute an abuse of process”). The fa…
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Yoder v. Venancio A. Adriatico, 459 So. 2d 449 (Fla. 5th DCA 1984)…whereas the tort of abuse of process is concerned with the improper use of process after it issues. Nash v. Walker, 78 So. 2d 685 (Fla.1955); Cazares v. Church of Scientology of California, Inc., 444 So. 2d 442 (Fla. 5th DCA 1983); Peckins v. Kaye, 443 So. 2d 1025 (Fla. 2d DCA 1983); McMurray v. U-Haul Co., 425 So. 2d 1208 (Fla. 4th DCA 1983). In the instant case, there was no evidence to support the tort of abuse of process. On appeal, the Adriaticos contend that, in the absence of a motion for directed ver…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Cora Lee Cline v. Flagler Sales Corp. & O. H. Schwartz, 207 So. 2d 709 (Fla. 3d DCA 1968)