Schmidt, Sethi & Akmajian Blog


Posted by Ted A. Schmidt | Dec 03, 2017 | 0 Comments

Torts: Abuse of Process

Fappani v. Bratton, 778 Ariz. Adv. Rep. 8 (App. Div. I, November 16,  2017) (J. Brown)

Plaintiff built a private dirt motorbike track on his property for use by his children. Defendant successfully urged the Maricopa County Sheriff to issue two citations for excessive noise to plaintiff and then urged the county attorney to prosecute the charges. The justice court ruled in a bench trial that plaintiff was not guilty. Plaintiff then sued defendant for abuse of process alleging the citations were issued and prosecuted at defendant's insistence based upon the defendant's ulterior motive of trying to get the racetrack removed because she thought it diminished the value of her  property.  The trial court granted defendant's motion to dismiss under Rule 12(b)(6) of the Arizona Rules of Civil Procedure and denied plaintiff's motion for new trial. The Arizona Court of Appeals affirmed.

One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process. The specific elements of abuse of process are: 1) a willful act in the use of judicial process; (2) for an ulterior purpose not proper in the regular conduct of the proceedings.

Here there was no allegation or evidence that defendant used an instrument of judicial process. The deputy sheriff,  and not the defendant, issued the citations. The deputy signed a certification that the he believed the plaintiff had committed acts in violation of the law. Similarly, demands issued to a prosecutor that an action be pursued does not implicate judicial process. The prosecutor has discretion to prosecute such cases as he or she deems appropriate whether demanded by a victim or not.

Additionally, plaintiff failed to establish that defendant “misused and perverted the criminal justice system.”  There is nothing improper about a property owner seeking to preserve his or her property value by trying to prevent unlawful practices. It matters not whether or not as alleged, defendant's acts were further motivated by “spite or ill-will” where, as here, the process was used for the purpose it was intended.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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