Legal Memorandum: Action for Abuse of Process in MS

Issue: In Mississippi, when can a plaintiff successfully assert a cause of action based primarily on abuse of process?

Mississippi, like most jurisdictions, recognizes the tort of "abuse of process."  Under Mississippi law abuse of process is (1) the intentional use of legal process (2) for an improper purpose incompatible with the lawful function of the process (3) by one who has an ulterior motive in doing so, (4) with resulting damage.  State ex rel Foster v. Turner, 319 So. 2d 233, 236 (Miss. 1975); Dun v. Koehring Co., 546 F.2d 1193, 1199 (5th Cir.), reh’g denied in part, granted in part sub nom. Hyde Constr. Co. v. Koehring Co., 551 F.2d 73 (5th Cir. 1977); Dunagin v. City of Oxford, 489 F. Supp. 763, 775 (D. Miss. 1980), rev’d on other grounds, 701 F.2d 385 (5th Cir. 1983), cert. denied, 467 U.S. 1259 (1984).

An action for abuse of process is essentially different from an action for malicious prosecution in that the latter is concerned with causing process to issue while the former is concerned with improper use of process after it has issued.  Turner, 319 So. 2d at 235.  Generally it is easier to plead and prove abuse of process.  Unlike actions for malicious prosecution, abuse of process may exist even though the process has been validly issued, and regardless of whether there was probable cause for its issuance or whether any prior proceeding has terminated in favor of the plaintiff.

Under Mississippi law those procedures which are deemed to […]