The tort of abuse of process
The elements of an abuse-of-process claim are (1) the defendant misused a regularly issued process—e.g., "the issuance of a citation or a writ"—for a purpose not lawfully warranted by that particular process, (2) the defendant had an ulterior motive or purpose for misusing the process, and (3) the plaintiff sustained damage from the irregularity. Detenbeck v. Koester, 886 S.W.2d 477, 480 (Tex. App.-Houston [1st Dist.] 1994, no writ); Tandy Corp. v. McGregor, 527 S.W.2d 246, 249 (Tex. App.-Texarkana 1975, writ ref'd n.r.e.); see also Pittsburgh SNF, LLC v. PharMerica E., Inc., 2:10-CV-363-JRG-RSP, 2012 WL 4509753, at *2 (E.D. Tex. July 19, 2012), report and recommendation adopted, No. 2:10-CV-363-JRG-RSP, 2012 WL 4508127 (E.D. Tex. Sept. 28, 2012) (listing examples of processes). The focus is on the use of the process once it is properly obtained, not on the motive for originally obtaining the process. See Detenbeck, 886 S.W.2d at 480-81; Tandy, 527 S.W.2d at 249 ("An action for abuse of process presupposes an originally valid and regular process, duly and properly issued."); cf. Bossin v. Towber, 894 S.W.2d 25, 33 (Tex. App.-Houston [14th Dist.] 1994, writ denied) (explaining that malicious prosecution, by contrast, focuses on party's actions and malice in getting process issued); Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207-08 (Tex. 1996) (malicious prosecution case).
A suit for abuse of process must be based on an allegation that the other party misused process for a collateral purpose:
Some definite act or threat not authorized by 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 the process as a threat or a 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.
Blackstock v. Tatum, 396 S.W.2d 463, 468 (Tex. Civ. App.-Houston 1965, no writ); cf. Blanton v. Morgan, 681 S.W.2d 876, 878 (Tex. App.-El Paso 1984, writ ref'd n.r.e.) (seeking exemplary damages as means to extort settlement not abuse of process because process was used for intended purpose to require answer to petition). The process must be used to "compel a party to do a collateral thing which he would not be compelled to do" otherwise. See Detenbeck, 886 S.W.2d at 480; Blanton, 681 S.W.2d at 878; Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 378-79 (Tex. App.-Texarkana 1989, no writ) (citing RESTATEMENT (SECOND) OF TORTS § 682, cmt. b (1977)).
SOURCE: HOUSTON COURT OF APPEALS - 01-13-00463-CV - 3/27/2014
C. No evidence in support of abuse of process claim
HRS filed a no-evidence motion for summary judgment arguing that Davis presented no evidence of a misuse of process, e.g., the order appointing a receiver or the turnover order. In her response, Davis did not argue that HRS misused a properly obtained process to obtain a collateral advantage. Instead, she argued that HRS's suit to collect a debt was filed in the wrong venue, that she was not notified of the trial setting, that the turnover order was deficient, and that the amount of funds removed from her account exceeded the judgment. Davis proffered no evidence in her response to support her complaint that the funds removed exceeded the lawful amount owed under the default judgment. The court order closing the receivership lists the amount the receiver removed from Davis's account, which matches the amount Davis claims to have been removed. Davis's other complaints, challenging the legality of the judgment, are required to have been raised through a direct appeal of the judgment, not through an independent suit for misuse of a properly issued process. See Davis v. West, 317 S.W.3d 301, 309 (Tex. App.-Houston [1st Dist.] 2009, no pet.) (affirming summary judgment for court-appointed receiver and bank against Davis; noting that Davis "failed to timely prosecute a direct appeal of the turnover order or seek injunctive or mandamus relief prohibiting the execution of the turnover order" and stating that appellate challenge to turnover order and scope of the receiver's powers constituted "a collateral attack on the turnover order."); see also Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) ("A collateral attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted for the purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific relief which the judgment currently stands as a bar against.").
Davis presented no evidence that HRS misused process to compel Davis to act in a collateral way; rather, the only evidence is that the process was used to satisfy the debt. See Bossin, 894 S.W.2d at 33; see also March v. Cacioppo, 185 N.E.2d 397, 243 (Ill. App. Ct. 1962) ("The complaint does not charge an ulterior purpose or that either judgment or garnishment was used to effect an objective not within their proper scope, such as an attempt to force the plaintiffs to do something other than to pay their supposed debt. There was no abuse of process in this case."). Further, the only evidence presented by Davis—her affidavit—stated that the written request for deposition transcripts did not create a legal obligation for her to pay HRS the underlying debt, that she was never given a copy of the release of judgment, and that she was given insufficient notice that the release of judgment would be used as summary judgment evidence. None of these statements raises a fact issue concerning misuse of process for a collateral purpose. See Baubles & Beads, 766 S.W.2d at 379 (stating that neither pleadings nor response to motion for summary judgment constitutes summary judgment evidence and finding that plaintiff failed to present evidence to avoid summary judgment on abuse of process claim).
Having concluded that Davis presented no evidence that HRS misused a properly obtained process for a collateral advantage, we conclude that the trial court did not abuse its discretion granting summary judgment to HRS on Davis's abuse of process claim.
We overrule issue three.
Having overruled all three of Davis's issues, we affirm the judgment of the trial court.
SOURCE: HOUSTON COURT OF APPEALS - 01-13-00463-CV - 3/27/2014