Abuse of Process
By Sally A. Roberts
Under Connecticut law, “abuse of process” is the misuse of process regularly issued to
accomplish an unlawful ulterior purpose.1 Although attorneys have a duty to their clients and to
the judicial system not to pursue litigation that is utterly groundless, that duty does not give rise
to a third party action for abuse of process unless the third party can point to specific misconduct
intended to cause specific injury outside of the normal contemplation of private litigation.2
Because the tort of abuse of process arises out of the accomplishment of a result that could not be
achieved by the proper and successful use of process, 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, with the word “primarily” intended to exclude liability when 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.3
An action for abuse of process lies against any person using a legal process against
another in an improper manner or to accomplish a purpose for which it was not designed.4 The
abuse occurs through the employment of process for a wrongful and malicious purpose to attain
an unjustifiable end or an object that the particular process was not meant to effect.5 In other
words, the action focuses on the use of a legal process against another primarily to accomplish a
purpose for which it is not designed.6 For example, a residential tenant could not show that
attempts by his landlord to institute summary process proceedings were for any purpose other
than those for which they were intended, namely to evict the tenant from the apartment, and as
such, the tenant could not establish abuse of process against the landlord.7
In discussing the scope of the potential liability of an attorney for abuse of process arising
out of the attorney’s professional responsibility to clients, which must be reconciled with the
court’s “responsibility to assure unfettered access to our courts”8 the Connecticut Supreme Court
has explained the need to afford to attorneys, as officers of the court, absolute immunity from
liability for allegedly defamatory communications in the course of judicial proceedings.9 The
Court cautioned, however, that “for other causes of action, the exigencies of the adversary
system have not been deemed to require absolute immunity for attorneys. We have assumed,
without discussion, that an attorney may be sued in an action for vexatious litigation, arguably
1
See Davis v. United States, 430 F. Supp. 2d 67 (D. Conn. 2006).
See Bernhard-Thomas Bldg. Systems, LLC v. Dunican, 100 Conn. App. 63, cert. granted in part 282 Conn. 912,
aff’d 286 Conn. 548 (2007).
3
See Bernhard-Thomas Bldg. Systems, LLC v. Dunican, 100 Conn. App. 63, cert. granted in part 282 Conn. 912,
aff’d 286 Conn. 548 (2007).
4
Mozzochi v. Beck, 204 Conn. 490, 494 (1987).
5
1 F. Harper, F. James & O. Gray, Torts (2d ed. 1986) § 4.9.
6
Mozzochi v. Beck, 204 Conn. 490, 494 (1987), quoting 3 Restatement (Second), Torts § 682 (1977).
7
Wilson v. Jefferson, 98 Conn. App. 147 (2006).
8
Mozzochi v. Beck, 204 Conn. 490, 494 (1987).
9
Mozzochi v. Beck, 204 Conn. 490, 494-95 (1987).
2
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because that cause of action has built-in restraints that minimize the risk of inappropriate
litigation.”10
In Mozzochi v. Beck, 204 Conn. 490 (1987), the Court addressed a claim for abuse of
process arising from allegedly defamatory statements made by the attorney in the complaint in
the underlying action. The principal issue was whether a cause of action for abuse of process
may be brought to recover damages from attorneys who allegedly pursued litigation despite their
discovery that their client’s claim lacked merit. The Court held that an attorney’s duty not to
pursue groundless litigation does not give rise to a third party action for abuse of process unless
the third party can point to specific misconduct intended to cause specific injury outside of the
normal contemplation of private litigation.11
Thus, in Mozzochi, although the Court recognized the need to afford attorneys special,
limited protection from liability in certain abuse of process actions to ensure their clients’ access
to the courts, it suggested that no special protections were necessary to vindicate those interests
under the existing standard for vexatious litigation actions.
10
Mozzochi v. Beck, 204 Conn. 490, 495 (1987); see also 3 Restatement (Second), Torts § 586 (1977) (an attorney
at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a
proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in
which participates as counsel, it it has some relation to the proceeding).
11
Mozzochi v. Beck, 204 Conn. 490, 497 (1987); see also Suffield Development Associates Ltd. Partnership v.
National Loan Investors, L.P., 260 Conn. 766, 776 (2002) (relying on Mozzochi to support plaintiff’s abuse of
process claim against defendant litigants for wrongful and excessive execution of judgment).
2