Holding Court: So, Sue Me

Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.

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By Joe Latwin

So, sue me.

You just got sued and you think the case was baseless. What can you do?

There may be a remedy at Common Law. There is a cause of action for misuse of legal procedure. It usually arises where you are sued and there is reasonable belief that acts constituting a civil wrong were alleged. The plaintiff must prove: (1) that at the time the case was brought the plaintiff did not actually believe you committed the acts constituting s civil wrong; (2) the plaintiff acted maliciously in bringing the suit; (3) you won the case; and (4) you suffered a special injury as a result of the suit.

To show plaintiff did not actually believe you committed the acts constituting a civil wrong, you usually must show the plaintiff filed the action for a purpose other than adjudication of the asserted claim. Was there a reasonable belief you did the acts and did the plaintiff have a colorable legal claim against you? The lack of each must be patently obvious. The first is a factual issue for the jury; the second a legal issue for the judge. That a plaintiff relied on the advice of counsel in bringing the claim against you can be considered but it is not a complete defense if it did.

The special injury requirement requires a highly substantial and identifiable interference with your person or property, such as arrest, involuntary bankruptcy, property execution, a lien, suspension from job duties, or seizure of personal property. Loss of business financing or business relationships might also qualify as special injury, but legal expenses do not.

You must have won the case against you. That victory must be based on the Court’s findings based on evidence or on the plaintiff’s consent, withdrawal, or abandonment of the case. A settlement is not a favorable termination for purposes of your claim.

Malice in the prior action may be inferred from a lack of merits of the underlying case or a Court finding there was no chance of success.

Once you prove all the elements, you can recover all the damages that naturally and directly flow from including attorney’s fees and harm to reputation.

Akin to the cause of action for misuse of legal procedure is the claim for abuse of process. The gist of abuse of process is the improper use of process after it is legally issued. This claim requires the use of legal process, such as a lien, subpoena, property execution, or the seizure of property, bank account, etc. based on a document issued by court or a person authorized by the court, such as an attorney, without justification or excuse and with intent to harm and for a purpose other than what the process was legally intended for.

The process used cannot be a summons to start an action even if it is done with malice nor can it be the issuance of a traffic ticket.

The perversion of a legal process must be outside of the legitimate ends of that process, such as to extort money, coerce withdrawal of a case, or compel payment of a debt.