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What is the Cause of Action for Abuse of Process?

In Florida, a cause of action for abuse of process arises when a legal process, such as a civil lawsuit or criminal proceeding, is used improperly or maliciously. This is done in order to achieve a result that is not related to the purpose for which the process was intended.

What is Abuse of Process?

Abuse of process involves “the use of criminal or civil legal process against another primarily to accomplish a purpose for which it was not designed”. [1] “For the cause of action to exist, there must be a use of the process for an immediate purpose other than that for which it was designed. There is no abuse of process, however, when the process is used to accomplish the result for which it was created, regardless of an incidental or concurrent motive of spite or ulterior purpose. In other words, the usual case of abuse of process involves some form of extortion.” [2]

Requirement of Malice

Malice—the intention or desire to do evil—is not required in an abuse of process claim. [1] It is not an excuse either that a litigant was following the advice of her lawyer. [1] “Abuse of process consists “of a willful and intentional misuse of process for some wrongful and unlawful object or collateral purpose.” [3]

Difference from Malicious Prosecution

Abuse of process and malicious prosecution are often mixed, but they are different. 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. [4] The maliciousness or lack of foundation of the asserted cause of action itself is actually irrelevant to the tort of abuse of process. [5]


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[1] Cline v. Flagler Sales Corp., 207 So.2d 709 (Fla. 3d DCA 1968) [2] Restatement (Second) of Torts § 682 comment b (1977); W. Prosser, Handbook of the Law of Torts § 121 (4th ed. 1971); Bothmann v. Harrington, 458 So. 2d 1163, 1169 (Fla. 3d DCA 1984). [3] Peckins v. Kaye, 443 So.2d 1025, 1026 (Fla. 2d DCA 1983). [4] Marty v. Gresh, 501 So. 2d 87, 90 (Fla. 1st DCA 1987); Yoder v. Adriatico, 459 So. 2d 449, 450 (Fla. 5th DCA 1984); Cazares v. Church of Scientology of Cal., Inc., 444 So. 2d 442, 444 (Fla. 5th DCA 1983). [5] Peckins v. Kaye, 443 So. 2d 1025, 1026

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