In what circumstances will a Texas court find a defendant liable for the tort of abuse of process?

The sole issue to be resolved by this Court is whether the factual allegations set forth in Dr. Detenbeck's pleading will support a cause of action for abuse of process. The elements of a cause of action for abuse of process are: (1) that the defendant made an illegal, improper, perverted use of the process; (2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted, or improper use of process; and (3) that damage resulted to the plaintiff from the irregularity. J.C. Penney Co. v. Gilford, 422 S.W.2d 25, 31 (Tex.Civ.App.--Houston [1st Dist.] 1967, writ ref'd n.r.e.). To constitute an abuse of process, the process must be used to accomplish an end which is beyond the purview of the process, and which compels a party to do a collateral thing which he would not be compelled to do. Blanton v. Morgan, 681 S.W.2d 876, 878 (Tex.App.--El Paso 1984, writ ref'd n.r.e.). When the process is used for the purpose for which it is intended, even though accompanied by an ulterior motive, no abuse of process occurs. Baubles & Beads v. Louis Vuitton, 766 S.W.2d 377, 378-79 (Tex.App.--Texarkana 1989, no writ).

The clearest explanation of abuse of process is found in Blackstock v. Tatum, 396 S.W.2d 463, 468 (Tex.App.--Houston [1st Dist.] 1965, no writ), (quoting, Prosser on Torts, 3rd Ed., Section 115):

"The essential elements of abuse of process * * * * have been stated to be: first, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding. Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of 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."

Several Texas cases have addressed the issue of whether a doctor may recover from former patients and their attorneys because of prior malpractice suits. All of these cases, regardless of the cause of action asserted, have been unsuccessful. See Kale v. Palmer, 791 S.W.2d 628 (Tex.App.--Beaumont 1990, writ denied) (fraud and conspiracy); Blanton v. Morgan, 681 S.W.2d 876 (Tex.App.--El Paso 1985, writ ref'd n.r.e.) (malicious prosecution and abuse of process); Butler v. Morgan, 590 S.W.2d 543 (Tex.App.--Houston [1st Dist.] 1979, writ ref'd n.r.e.) (malicious prosecution); Martin v. Trevino, 578 S.W.2d 763 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.) (malicious prosecution, abuse of process, prima facie tort, and breach of Texas Code of Professional Responsibility); Moiel v. Sandlin, 571 S.W.2d 567 (Tex.Civ.App.--Corpus Christi 1978, no writ) (malicious prosecution, barratry, abuse of process, and negligence); Wolf v. Arroyo, 543 S.W.2d 11 (Tex.Civ.App.--San Antonio 1976, no writ) (constructive contempt).

In Martin v. Trevino, 578 S.W.2d at 768-69, the plaintiff-physician brought an action against his former patient and her attorney alleging they had negligently filed a medical malpractice suit against him without just cause or proper investigation. The court held that the plaintiff's pleadings failed to state a cause of action for abuse of process

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because "they fail to allege an improper use of the process other than the mere institution of the civil action. There were no damages other than that necessarily incident to filing a lawsuit." Id. at 769.

Dr. Detenbeck argues that Martin is distinguishable because in that case there was no evidence that the patient and her attorney ever actually attempted to coerce a settlement, whereas in this case, Houssiere allegedly threatened to tie up Dr. Detenbeck for two weeks by taking the case to trial if the doctor refused to settle. We find this argument unpersuasive. Evidence of an actual attempt to coerce a settlement would go to proving the element of malice. However, the mere procurement or issuance of process with a malicious intent, or without probable cause, is not actionable; there must be an improper use of the process after its issuance. Id. at 769. "[T]here is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions." Blackstock at 468. Where the only process issued is a citation, and no allegations are made that there was any abuse in the execution or service of this process, no cause of action for abuse of process is stated. Morris v. Blangger, 423 S.W.2d 133, 134 (Tex.Civ.App.--Austin 1968, writ ref'd n.r.e.).

In Blanton, 681 S.W.2d at 877-78, the plaintiff-physician alleged that his former patient and her attorney asserted a claim for punitive damages in their malpractice suit and attempted to use the punitive damages claim to extort a settlement of the case. When the attempt at settlement failed, the attorneys dropped their punitive damages claim. The court held that the plaintiff's petition failed to allege a cause of action for abuse of process because the process was used only for its intended purpose, i.e., to compel the doctor to answer the petition. The court followed the Martin case in holding that the suit failed to allege an improper use of the process. Id.

In Blackstock, 396 S.W.2d at 467-468, the appellants alleged that the appellees filed a frivolous suit against them in an attempt to coerce appellants into dismissing an action that was already pending between the parties. In rejecting appellants' abuse of process claim, the court stated:

As we understand it, abuse of process consists not in the filing and maintenance of a civil action, but rather in the perversion of some process issued in the suit after its issuance. The process referred to in the cases is not in the filing and maintenance of a civil action, but in the wrongful use of a writ issued in the suit. The writ or process must be used in a manner or for a purpose for which it is not by law intended and the use must interfere with the person or property of another

Id. at 467 (emphasis added).

Based on these cases, we conclude that Dr. Detenbeck's cause of action for abuse of process must fail. Even if we were to assume that Koester and Houssiere instituted the malpractice suit without probable cause, and with the malicious intent of coercing a settlement, Dr. Detenbeck's pleadings remain defective because they do not allege an improper use of the process. The only process involved in this case was the citation issued when the cause was filed. The citation was used only for its intended purpose of compelling an answer to the lawsuit. The mere maintenance of a civil action, even if done with malicious intent, will not support a cause of action for abuse of process.

Furthermore, an attempt to coerce a settlement is not an attempt to obtain a collateral advantage not properly involved in the proceeding itself. The purpose every lawsuit is to obtain either a settlement or a judgment. Therefore, an attempt to use a citation, and the resulting lawsuit, to coerce a settlement, is not an attempt to obtain a collateral advantage, but merely an attempt to carry out the process to its natural conclusion.

“Abuse of process is the malicious misuse or misapplication of process in order to accomplish an ulterior purpose.” Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 378 (Tex.App.–Texarkana 1989, no writ). In order to recover on a claim for abuse of process, a party must show:

(1) that the defendant made an illegal, improper or perverted use of the process, a use neither warranted nor authorized by the process;

(2) that the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of the process; and

(3) that damage resulted to the plaintiff as a result of such illegal act.

Blanton v. Morgan, 681 S.W.2d 876, 878 (Tex.App.–El Paso 1984, writ ref'd n.r.e.).

“The critical aspect of this tort is the improper use of the process after it has been issued.” Jordan v. Jordan, No. 05–98–01971–CV, 2001 WL 856209, at *2 (Tex.App.–Dallas July 30, 2001, no pet.) (not designated for publication). “To constitute an abuse of process, the process must be used to accomplish an end which is beyond the purview of the process, and which compels a party to do a collateral thing which he would not be compelled to do.” Detenbeck v. Koester, 886 S.W.2d 477, 480 (Tex.App.–Houston [1st Dist.] 1994, no writ). “[F]iling suit and filing a lis pendens alone do not state a cause of action for abuse of process without alleging that the process was used for an improper purpose after it was issued....” Jordan, 2001 WL 856209, at *3.

The entirety of Payne–Hall's evidence on Liverman's motive consisted of her opinion testimony that she believed Liverman wished to harass her, impede her finances, and discredit her in the Denton County lawsuit. When asked why she believed that, she testified:

A. He made the comment before when he was being evicted that either I sign that house at 201 North Fourth Street in Krum over to him or he would bankrupt me. It would cost me more to get the liens off the house than it would be for me just to sign it over to him and pay it.

So I believe it's all been a financial motive to try to bankrupt me, put me in a position where I can't defend this, and plus it makes him look better in his criminal trial to have these false allegations against me here in West Texas.

Q. Did he tell you he wanted something from you?

A. He wanted my house at 201 North Fourth Street in Krum.

In her appellate briefing, Payne–Hall asserts that this suit is a ruse Liverman is using to try and extort her into giving him the Krum house. Assuming that the trial court believed Liverman made those comments, Payne–Hall's testimony about what Liverman told her during his eviction from the Krum house is insufficient to bridge the attenuated link between this lawsuit over the Upton Property and the rental house in Krum. At best, Payne–Hall's testimony on this point creates mere surmise or suspicion that Liverman's Upton County lawsuit was filed to leverage Payne–Hall into giving up the Krum house. But mere surmise or suspicion is legally insufficient to support a verdict. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 30 (Tex.2014). Likewise, Payne–Hall's contention that Liverman stood to gain strategic advantages in his civil and criminal trials in Denton County by filing the Upton County suit as a way to cast aspersions on her credibility is unsupported by more than a scintilla of evidence. A factfinder “may not reasonably infer an ultimate fact from ‘meager circumstantial evidence which could give rise to any number of inferences, none more probable than another.’ ” Hancock v. Variyam, 400 S.W.3d 59, 70–71 (Tex.2013).

Finally, Payne–Hall maintains that we can essentially infer Liverman's ulterior motive because his lawsuit was facially meritless and unwinnable, as the

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probate court's now-unappealable order closing the Covill Estate definitively vested Triage Construction with title to the Upton Property. We issue no opinion as to the ultimate merit of Liverman's claims, because such discussion is not germane to the abuse of process analysis here. “Merely issuing or procuring process, even if accompanied by malicious intent or without probable cause, is not actionable.” Jordan, 2001 WL 856209, at *2. Further, the case Payne–Hall cites in support of her contention as to definitive resolution of a title dispute, Francis v. Sterling, 45 S.W.3d 194 (Tex.App.–Tyler 2001, no pet.), is inapplicable. Francis dealt with the question of whether a minority shareholder's filing of a lis pendens was proper when he did not technically allege a title dispute in his underlying lawsuit but instead only generally challenged a corporate receiver's ability to conduct a sale of assets. Id. at 196. In that case, the company only sought to expunge the lis pendens; it never raised a counterclaim for abuse of process, and the appellate court never discussed abuse of process. Id.

In sum, Payne–Hall bore the burden at trial of showing that by filing this suit, Liverman sought to gain something outside the proper scope of the suit. While the record shows a history of litigation and acrimony between the parties, there is no evidence more than a scintilla that would show Liverman filed suit to gain a collateral advantage. The judgment must be reversed and rendered.

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

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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)).

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

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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, 37 Ill.App.2d 235, 185 N.E.2d 397, 401 (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.

Schechter alleged that Pitts also committed the tort of abuse of process by repeatedly filing copies of a video recording of the statements to Houston City Council that were the subject of the defamation claim. The record reflects that Pitts took the position during pretrial discovery that he did not have a copy of the recording and that he was unable to obtain one from any public source. He insisted that a copy be produced to him by Schechter, who complied, designating it as being confidential for purposes of the protective order governing the case. The record does not reflect any objection by Pitts to this designation of confidentiality.

The protective order specified that “confidential information shall not be filed with the clerk of the Court nor included in whole or in part in pleading, motions or briefs.” The order did permit the filing of confidential materials under seal “should the Court need to examine them as evidence in a hearing or other pretrial proceeding.” The order further provided that confidential information “shall not be disclosed directly or indirectly to any person, including the media, other than those authorized by this Protective Order without the consent of the non-disclosing Party, or upon further order of the Court.”

On appeal, Pitts has not contended that his actions were not violations of the protective order. To the contrary, Pitts affirmatively testified that the video recording was subject to a protective order, that he filed it without placing it under seal, and that, in so doing, he failed to follow the proper procedure. On cross-examination he agreed he was responsible for the recording being filed on three separate occasions without being placed under seal. Schechter's counsel testified that he complained to Pitts in writing about each of the first two violations, but Pitts nevertheless continued to attach the videorecording to his public filings.

Although Schechter suggested to the jury that Pitts's actions resulted in confidential information being published in a newspaper article, no evidence was presented at trial to show that any information published by the newspaper could be directly traced to Pitts's violations of the protective order. The only actual damages requested by Schechter were litigation costs in the amount of $10,146.50 incurred in attempts to secure Pitts's compliance with the protective order and to remediate or reverse the effects of the violations. Schechter also sought and obtained a jury finding by clear and convincing evidence that the abuse of process damages resulted from Pitts's malice.

The jury found Pitts liable to Schechter on his claim of abuse of process and awarded $10,146.50 in actual damages and $15,000 in exemplary damages. On appeal, Pitts argues that the evidence was legally and factually insufficient to support an abuse-of-process cause of action because this claim was improperly based on litigation conduct. In addition, he contends that the judgment must be reversed because there is no evidence of special damages.

The elements of the cause of action for abuse of process include: (1) the defendant made an illegal, improper, perverted use of the process; (2) in so doing the defendant had an ulterior motive or purpose; and (3) damage resulted to the plaintiff from the irregularity. Detenbeck v. Koester, 886 S.W.2d 477, 480 (Tex.App.-Houston [1st Dist.] 1994, writ dism'd). To recover for abuse of process in Texas, a claimant must demonstrate that he suffered special damages, i.e. some physical interference with the claimant's person or

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property in the form of an arrest, attachment, injunction, or sequestration. See Martin v. Trevino, 578 S.W.2d 763, 766–769 (Tex.Civ.App.-Corpus Christi 1978, writ ref'd n.r.e.); see also Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 209 (Tex.1996). The policy supporting this rule is that it “assures good faith litigants access to the judicial system without fear of intimidation by a countersuit.” Tex. Beef Cattle, 921 S.W.2d at 209 (quoting Martin, 578 S.W.2d at 768). The special damage requirement also serves to avoid needless and vexatious litigation. See id.

Schechter claimed no damages for abuse of process other than his legal fees incurred in the course of responding to Pitts's improper filings in violation of the protective order. But for purposes of the special-injury requirement, “[i]t is insufficient that a party has suffered the ordinary losses incident to defending a civil suit, such as inconvenience, embarrassment, discovery costs, and attorney's fees.” Id. at 208. Schechter's appellate brief identifies no other evidence of special injury. Accordingly, we sustain Pitts's issues challenging the awards of damages, including punitive damages, on Schechter's abuse-of-process claim.

IV. Conclusion

We affirm the judgment of the trial court in all respects concerning Schechter's contract claims against Pitts. We also affirm the judgment with respect to non-economic and exemplary damages awarded under Schechter's defamation claim. We reverse for evidentiary insufficiency that portion of the judgment that awarded Schechter $1,000 in economic damages on his professional colleague claim, and we render judgment that Schechter take nothing in economic damages on that cause of action. We also find the evidence of special injury arising from Schechter's claim of abuse of process to be legally insufficient. We therefore reverse and render judgment that Schechter take nothing on his abuse-of-process claim against Pitts. The judgment of the trial court is affirmed in all other respects.

Appellants contend Texas law does not require that the process be issued directly against the abuse-of-process plaintiff. Appellants also contend that if the abuse of process claim requires issuance directly against a party, then an exception should be made when the process is issued as a means to deliberately damage a non-party. Appellants are mistaken in their contentions. "[P]rocess must have been used to accomplish an end which is beyond the purview of the process and which compels a party to do a collateral thing which he would not otherwise be compelled to do." Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 379 (Tex.App.--Texarkana 1989, no writ) (emphasis added). Further, in every decision examining an abuse of process claim, the plaintiff bringing the claim was the defendant in the original proceeding. See, e.g., Detenbeck v. Koester, 886 S.W.2d 477, 479 (Tex.App.

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--Houston [1st Dist.] 1994, no writ); Blanton v. Morgan, 681 S.W.2d 876, 877 (Tex.App.--El Paso 1985, writ ref'd n.r.e.). Here, appellants were not a party to the original action and were not served with process. Thus, appellants do not satisfy the first element for abuse of process.

Moreover, to maintain an abuse of process claim, there must be a coercive use of the process. Detenbeck, 886 S.W.2d at 480. Compulsion means something more than requiring a defendant to answer a lawsuit. Blanton, 681 S.W.2d at 878. Filing a complaint is not an improper or illegal use of the process. Rose v. First Am. Title Ins. Co., 907 S.W.2d 639, 644 (Tex.App.--Corpus Christi 1995, no writ). Merely issuing or procuring process, even if accompanied by malicious intent or without probable cause is not actionable. Martin v. Trevino, 578 S.W.2d 763, 769 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.). Maintaining an abuse of process cause of action requires an improper use of the process after its issuance. Id. The abuse of process plaintiff must show something more than the damages that are incidental to the filing of the lawsuit. Id. Here, appellants do not provide summary judgment evidence of any action they were forced to maintain as a result of the issuance of process in the original suit.

Additionally, an abuse of process claim requires a showing of a wrongful seizure of property or an actual interference with the person. Blackstock v. Tatum, 396 S.W.2d 463, 467 (Tex.Civ.App.--Houston 1965, no writ). In Blackstock, the plaintiff alleged that a "parade of lawsuits" caused mental damage from the "abuse of process of the courts." 396 S.W.2d at 466. According to the plaintiffs, the parade of lawsuits was an effort to force them to submit to attempts to build an island, depriving the plaintiffs from using a lake. Id. at 467. The filing of lawsuits allegedly reduced the value of property surrounding the lake, the plaintiffs contended. Id. The Blackstock court held that the improper purpose of the process manifests itself by the surrender of property or the payment of money "by the use of process as a threat or a club." Id. at 468. The mere issuance of process, by itself, is not sufficient to establish the abuse of process tort. Id.

The Blackstock scenario is very similar to the scenario here. As in Blackstock, appellants contend that the Association filed suit against Yeutter not to determine rights and liabilities, but to prevent the appellants from training horses by a particular method. Appellants also assert that the Association's filing of lawsuits lowered the value of the horses. Therefore, the holding in Blackstock is controlling here. A claim for abuse of process requires a perversion of the process, and merely filing suit is not sufficient to maintain an abuse of process claim. Id. at 466. Because appellants were not a party to the original action and suffered no actual interference by the process, we find no error in the trial court's granting of summary judgement against the appellants on the abuse of process claim. We overrule point of error four.