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3.13-8  Abuse of Process

Revised to January 1, 2008

In this case, plaintiff <name of plaintiff> seeks to recover damages from defendant <name of defendant> for abuse of process.  Under our law, a person commits an abuse of process when (he/she) uses a legal process against another person primarily to accomplish a purpose for which it is not designed.  In light of this definition, <name of plaintiff> must prove two essential elements by a fair preponderance of the evidence to prevail on (his/her) claim of abuse of process:

  1. that  <name of defendant> used a legal process against (him/her/it), in (his/her/its) own name or in the name of another person or entity; and

  2. that <name of defendant> used such legal process primarily to accomplish a purpose for which it is not designed.

In this case, <name of plaintiff> has based (his/her) claim of abuse of process upon <name of defendant>'s  alleged use against (him/her) of (an execution / <identify form of legal process>)1 in <title and/or docket number of underlying case or proceeding in which defendant allegedly used the challenged execution or other legal process>, which I will refer to as "the underlying (action/proceeding)," (on/between) <the date(s) on/between which defendant allegedly used the challenged execution or other legal process against plaintiff>.  To establish the first essential element of abuse of process, <name of plaintiff> must prove that <name of defendant> did indeed use the challenged (execution / <identify form of legal process>) against (him/her) in the underlying (action/proceeding) at the time specified in (his/her) complaint.  [<Add if applicable>:  Here, because <name of defendant> has admitted in (his/her) answer that (he/she) used the challenged (execution / <identify form of legal process>) against <name of plaintiff> in that (case/proceeding) and at that time, it is uncontested, and thus you must find that the first essential element of abuse of process the plaintiff has established as a matter of law.]

<Name of plaintiff> further claims that  <name of defendant>'s use of the challenged (execution / <identify form of legal process>) against (him/her) constituted an abuse of process because <name of defendant>'s primary purpose in so using it was <insert as appropriate:>

  • to recover or secure an amount of money greater than that determined to be owed under a valid and specific legal judgment.

  • <state what plaintiff claims to have been defendant's primary purpose for using the challenged legal process against (him/her)>.

Because the purpose for which (an execution / <identify form of legal process>) is designed2 is <insert as appropriate:>

  • to provide a means for a party to recover under a judgment for money damages, the liability for, and amount of which, has been specifically determined by a court.

  • <state the proper, intended purpose of the challenged legal process>.

not to

  • recover or secure an amount of money greater than that determined to be owed under a valid and specific legal judgment.

  • <restate what plaintiff claims to have been defendant's primary purpose for using the challenged legal process against (him/her)>.

<name of plaintiff> can establish the second essential element of (his/her) abuse of process claim by proving, as (he/she) has alleged, that <name of defendant> used the challenged (execution / <identify form of legal process>) against (him/her) primarily for the latter, improper purpose. 

To meet (his/her) burden of proof on this second essential element of abuse of process, <name of plaintiff> need not prove that <name of defendant>'s only purpose in using the challenged (execution / <identify form of legal process>) against (him/her) was the improper purpose I just described for you.  Rather, (he/she) must prove that the alleged improper purpose was <name of defendant>'s primary purpose – that is, not merely an incidental purpose which (he/she) may also have had or entertained while otherwise properly using the challenged (execution / <identify form of legal process>) for its designed purpose.3

If, in the course of your deliberations, you find that <name of plaintiff> has failed to prove either essential element of (his/her) abuse of process claim by a fair preponderance of the evidence, then you must return a Defendant's Verdict on that claim.  If, on the other hand, you find that <name of plaintiff> has proved both essential elements of (his/her) abuse of process claim by that standard,  then you must go on to determine what damages to award (him/her) on that claim.

In this case, the plaintiff seeks to recover [both]4 compensatory [and punitive] damages on (his/her) claim of abuse of process.  Compensatory damages for abuse of process are confined to those flowing from – that is, legally caused by – the abuse of process.5 To determine what compensatory damages, if any, to award the plaintiff on that claim, you must first decide what injuries and losses claimed by (him/her) were legally caused by the defendant 's proven abuse of process.  You must then determine what amount of damages is fair, just and reasonable to compensate the plaintiff for those proven injuries and losses under my general instructions on compensatory damages.

<Insert Damages - General, Instruction 3.4-1 and Legal Cause, Instruction 3.1-1.>

Economic damages may be awarded for any financial loss or expense which <name of plaintiff> proves (he/she) was legally caused to sustain or incur as a result of <name of defendant>'s abuse of process.  Here, <name of plaintiff> seeks to recover economic damages for the following financial losses and expenses which (he/she) claims (he/she) was legally caused to sustain or incur as a result of <name of defendant>'s alleged abuse of process: <list all types of financial losses for which the plaintiff seeks economic damages, as claimed in the complaint and supported by the evidence at trial, including, where appropriate, any loss to business or property resulting from the abuse, any reasonable and necessary medical expenses incurred to treat physical or mental injury caused by such abuse, and any expenses, including reasonable attorney's fees, incurred to protect against the abuse or to put it to an end)>.6  If you find that <name of defendant> committed an abuse of process, as here alleged, and that that abuse of process legally caused <name of plaintiff> to sustain or incur any such financial loss or expense, then you must award (him/her) fair, just and reasonable economic damages for that proven loss or expense, also in accordance with my general instructions on compensatory damages.  [<Add the following where appropriate:?  You cannot, however, award any attorney's fees or costs necessary to bring the present lawsuit of <name of plaintiff> against <name of defendant>, only those you find were necessary to defend against or correct the abuse of process when it was taking place.7]

Noneconomic damages may be awarded for any injury which <name of plaintiff> proves (he/she) was legally caused to suffer as a natural consequence of <name of defendant>'s abuse of process.  Here, <name of plaintiff> seeks to recover noneconomic damages for the following injuries which (he/she) claims (he/she) was legally caused to suffer as a result of <name of defendant>'s alleged abuse of process: <list all types of emotional or physical injuries for which the plaintiff seeks noneconomic damages, as claimed in the complaint and supported by the evidence at trial, including, where appropriate, any injury to feelings because of the humiliation, disgrace or indignity of, and any injury to the person or physical suffering caused by, the abuse of process>.8  If you find that <name of defendant> committed an abuse of process, as here alleged, and that such abuse of process legally caused <name of plaintiff> to suffer any such injury, then you must award (him/her) fair, just and reasonable noneconomic damages for that proven injury in accordance with my general instructions on compensatory damages.

After making your determinations as to economic and noneconomic damages, if you reach them in the course of your deliberations, you must record your findings on the appropriate lines of the Plaintiff's Verdict form, then add them together to calculate total compensatory damages on the line provided for that purpose.

[To determine what punitive damages, if any, to award the plaintiff on (his/her) claim of abuse of process, you must be guided by my general instructions on punitive damages, which are as follows.  <Insert Damages - Punitive, Instruction 3.4-4.>]
_______________________________________________________

1 The language pertaining to executions sets forth an instruction suitable for describing the elements of an abuse-of-process claim such as that discussed by the Supreme Court in Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766 (2002) (reversing trial court's granting of motion to strike abuse of process claim from plaintiff's complaint), and later by the Appellate Court in Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn. App. 541, cert. denied, 280 Conn. 242, 243 (2006) (affirming judgment for plaintiff after court trial following remand on the previously stricken claim).  The other option provides a template suitable for drafting an instruction on a claim based upon alleged abuse of a different form of legal process.

2 Whether or not the primary purpose for which the defendant allegedly used the challenged legal process against the plaintiff is one for which such legal process was designed or intended is a question of law which the court must decide before sending the case to the jury.  If the court determines that the alleged purpose in question is not one for which the challenged legal process was designed or intended, it must so inform the jury, then instruct the jury to find whether or not the plaintiff has proved that the defendant actually acted with that as (his/her) primary purpose.  See Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra, 260 Conn. 773-74.

3 In Mozzochi v. Beck, 204 Conn. 490, 494 (1987), our Supreme Court explained this requirement as follows:  "Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of ‘a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . . .'  (Emphasis added.)  Comment b to § 682 explains that the addition of ‘primarily' is meant to exclude liability ‘when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.'  See also 1 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 4.9; R. Mallen & V. Levit, Legal Malpractice (2d Ed. 1981) § 61; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 121."

4 Only use the bracketed language in this portion of this instruction when the plaintiff has demanded and attempted to prove (his/her) entitlement to recover punitive damages.

5 See generally, McGann v. Allen, 105 Conn. 177, 184 (1926) ("[d]amages suffered through an abuse of legal process not malicious must be compensatory, that is compensation for the natural consequences resulting, which would include injury to the feelings because of the humiliation, disgrace or indignity suffered, together with injury to the person and physical suffering, as well as special damage incurred in consequence of the wrong, as loss to one's business or property, or expense caused in curing the physical or mental injury, or in protecting one's person from arrest or confinement").

6 McGann v. Allen, supra, 105 Conn. 184

7 Id. (compensatory damages cannot be awarded for attorney's fees incurred to defend a criminal prosecution following an unlawful post-arrest detention that itself was found to have constituted an abuse of process, because such fees had no relation to the abuse itself); see also Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., Superior Court, judicial district of Hartford, Docket No. CV 99 0590031 (February 17, 2005), aff'd, 97 Conn. App. 541, cert denied, 280 Conn. 942, 943 (2006). 

8 McGann v. Allen, supra, 105 Conn. 184.

Authority

Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772-73 (2002); Mozzochi v. Beck, 204 Conn. 490, 494 (1987); McGann v. Allen, 105 Conn. 177 (1926); Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn. App. 541, cert. denied, 280 Conn. 242, 243 (2006).
 


 

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