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In Florida, can a party have a claim for both Abuse of Process and Malicious Prosecution?

West Palm Beach, FL |
Filed under: Fraud Subpoena

A lawsuit was filed against my company by highly disreputable means, and was eventually dismissed by the court. It was then refiled by the same Plaintiff, using similar improper conduct; however, a new judge and the court have allowed the case to continue.

In the second lawsuit, it appears the Plaintiff has committed fraud for the purposes of maintaining jurisdiction of the court, advancing the lawsuit, and falsely claiming a debt. The Plaintiff is now seeking to issue a subpoena (not yet issued, but authorized by the court), which I believe only furthers their impropriety.

In such an instance, can both abuse of process and malicious prosecution apply? If the answer is yes, can a party file a counterclaim for both?

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Attorney answers 3


There has to be a bona fide resolution of the second lawsuit in order for you to sue for malicious prosecution and/or abuse of process. In the meantime, you can counterclaim against the plaintiff in the instant matter.

An action for abuse of process differs from an action for malicious prosecution in that the latter is concerned with maliciously causing process to issue, while the former is concerned with the improper use of process after it has been issued. An abuse of process arises only when there has been a perversion of court processes to accomplish some end which the process was not intended by law to accomplish, or which compels the party against whom it has been used to do some collateral thing which he could not legally and regularly be compelled to do.

In order to sustain an action for abuse of process, two elements are essential: (1) the existence of an ulterior motive, and (2) an act in the use of process other than such as would be proper in the regular prosecution of the charge. Ulterior motive alone is insufficient; there is no abuse of process where it is confined to its regular and legitimate function in relation to the cause of action stated in the complaint.

On either theory, as stated earlier, you need to wait until the second lawsuit resolves in your favor. There are procedural mechanisms for you to get you attorney's fees paid in the underlying lawsuit, but I would need to know more about the facts of the case.

Proving abuse of process in this case could depend on establishing the following facts: The Plaintiff initiated a judicial proceeding that caused you to appear before a judge of the circuit court of Palm Beach County. The order dismissing their complaint constitutes a bona fide termination the proceeding in your favor. There was absence of probable cause to bring the lawsuit. There was malice in bringing the action. You suffered damages as a result.

I am not seeking to represent you based on the response to this question. The answer given is for general information purposes only. No attorney-client relationship is hereby intended.


You should retain an attorney and push to have the other side pay your attorneys' fees. You can claim or counterclaim anything you want, but whether the common law in your jurisdiction or the facts of your particular circumstances would support such claims are questions that require a much more detailed discussion than this forum provides.

[In accordance with the Avvo community guidelines, this communication does not constitute "legal advice", nor does it form an attorney-client relationship.]


These tort claims depend on a resolution of prior claims in your favor, and a dismissal (if not on the merits of the case) wouldn't qualify as a resolution in your favor.

Hire a business litigator for help in both defending this 2nd case and, if you choose to, pursuing a tort claim against the plaintiff.

PLEASE READ THIS BEFORE YOU COMMENT, EMAIL ME OR PHONE ME. I'm only licensed in CA. This answer doesn't make me your lawyer, and neither do follow-up comments and/or emails and/or phone calls, and you shouldn't expect me to respond to your further questions if you haven't hired me. We need an actual agreement confirmed in writing before any attorney-client relationship is formed. This answer doesn't constitute legal advice, and shouldn't be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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