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Devaney v. Thriftway Marketing Corp.12/22/1997
ry improper motive, it is insufficient that the malicious-abuse-of-process defendant acted with ill will or spite. Prosser & Keeton, (supra) , § 121, at 897 ("Even a pure spite motive is not sufficient where process is used only to accomplish the result for which it was created." (emphasis added)); id. § 120, at 894-95 ("The plaintiff in a civil suit is always seeking his own ends."). There must be a purpose to accomplish an illegitimate end. See Restatement (Second) of Torts § 676 (recommending liability for one who initiates proceedings "primarily for a purpose other than that of securing the proper adjudication of the claim"); id. § 682 (recommending liability for "one who uses a legal process . . . against another primarily to accomplish a purpose for which it is not designed").
{30} The following are typical examples of the improper purposes that could serve as the basis for a malicious abuse of process action: (1) a litigant pursues a claim knowing that it is meritless; (2) a litigant pursues a claim primarily in order to deprive another of the beneficial use of his or her property in a manner unrelated to the merits of the claim; (3) a litigant misuses the law primarily for the purpose of harassment or delay; or (4) a litigant initiates proceedings primarily for the purpose of inducing settlement in an unrelated proceeding or for some other form of extortion. Restatement (Second) of Torts § 676 cmt. c. While an overt misuse of process, such as a lack of probable cause, or an excessive attachment, may support an inference of an improper purpose, "it may not be inferred from evidence of an improper purpose alone that there was not probable cause," Restatement (Second) of Torts § 669A cmt. b (incorporated by reference in Section 675 cmt. j), or that there was not a proper use of process, and the burden of proving the overt act by independent evidence remains upon the plaintiff. See Leyser, 5 N.M. at 362, 23 P. at 174 ("Malice . . . may be inferred by the jury from the want of probable cause. But the want of probable cause can not be inferred from any degree of even expressed malice . . . ."); Bosler v. Shuck, 714 P.2d 1231, 1235 (Wyo. 1986). The degree to which the process has been misused will determine the strength of the permissible inference of an improper motive.
C. Damages
{31} Two views have developed in American courts on what a plaintiff needs to prove in order to meet the damage requirement for the tort of malicious prosecution. 4E Frumer, (supra) , Malicious Prosecution and Abuse of Process § 1.03 . New Mexico has previously aligned itself with a minority of jurisdictions adhering to the English common law rule which requires a showing of special damages as an element of recovery for malicious prosecution. Id. § 1.05 n.2. Special damages include an actual interference with the defendant's person or property, or damages suffered beyond those ordinarily resulting from a lawsuit:
An action will not lie for the prosecution of civil action with malice and without probable cause, where there has been no arrest of the person or seizure of the property of the defendant, or where the defendant has suffered no injuries except those which are the necessary result in all ordinary law suits.
, quoted in .
{32} DeVaney argues that the special damages requirement is outdated and should be modified or abolished. For the reasons that follow, we believe the requirement serves no useful purpose and therefore should be abolished.
1. Background of the Special Injury Requirement
{33} In England, prior to the development of private rights of action for vexatious litigation, the courts established an intricate syst
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