Abuse of process- when lawyers use the law to the opposing party’s disadvantage

By: Editor  //  Legal

Abuse of process is described as the improper use of a civil or criminal legal procedure for an unintended, malicious, or perverse reason. 

“It is the malicious and deliberate misuse of regularly issued civil or criminal court process that is not justified by the underlying legal action,” according to Stimmel law.com.

“Abuse of process includes litigation actions in bad faith that is meant to delay the delivery of justice. Examples include serving legal papers on someone which have not actually been filed with the intent to intimidate, or filing a lawsuit without a genuine legal basis in order to obtain information, force payment through fear of legal entanglement or gain an unfair or illegal advantage.”

For Jason Hartman, he believes a recent action taken by Kansas City attorney David Zeiler might fall under process abuse and he’s prepared to take the steps necessary to find out.

“I think it’s absolutely awful what the parties did, Dave Zeiler, Quentin Kearney and Ken Logan because they knew it was torpedoing the case, and now it has delayed the trial,” Hartman alleged.

Hartman was expecting to go to trial Aug. 9 when, while in court on Aug. 6, his attorney, Lee Hardee, was handed a document. That document was a draft notice advising him that he was being sued by defendants Quentin Kearney and Ken Logan for abuse of process. The eleventh-hour notice left Hartman without an attorney for the upcoming trial.

Hartman noted that he intends to file an ethics complaint against Zeiler as well as pursue a lawsuit for the delay in his case that he believes was an intentional act to prevent the plaintiffs from testifying.

An attorney is protected from the liability for defamation that occurs during a judicial proceeding. However, such protection may not provide an attorney with an absolute defense to liability for abuse of process as noted in Alexandru v. Dowd79 Conn. App. 434 (Conn. App. Ct. 2003). Therefore, an attorney can be made liable for damages for abuse of process for acts that includes personal acts, or acts of others instigated and carried on by the attorney as cited in Lambert v. Breton, 127 Me. 510 (Me. 1929).

A plaintiff has to establish that the alleged misconduct resulted primarily from the attorney’s ulterior motive or malice to state a claim for abuse of process against an attorney. Journeymen, Inc. v. Judsonstates that a plaintiff has to establish that the alleged misconduct resulted primarily from the attorney’s ulterior motive or malice to state a claim for abuse of process against an attorney. 

A mere institution of legal action by an attorney will not constitute abuse of process, even it is done with an improper purpose or motive, as ruled in Epps v. Vogel.However, if it is proved that the attorney performed some additional act which is not proper in the regular prosecution of the proceedings, then the attorney can be held liable for abuse of process.

Hartman has been embroiled in a legal battle with Kearney and Logan for approximately eight years.

The longstanding feud began when a company owned by Kearney and Logan managed a property for Hartman. Vague invoices were sent to Hartman for work purportedly done on his property, and Hartman alleged he requested itemized invoices so he would know what work had been done where and who had completed the work. There were no signature showing who did the work, nor did the tenant sign anything to state the work had been completed. When he did not receive the invoices, Hartman posted a video holding the vouchers to the camera and made commentary. That led to the beginning of the legal battle between the parties.

The trial that was scheduled for Aug. 9 has been rescheduled for next year.