Nienstedt v. Wetzel
In Nienstedt v. Wetzel, 133 Ariz. 348, 353, 651 P.2d 876, 881 (App. 1982), the defendants had argued that such claims should be narrowly limited to improper use of court-sanctioned service of process.
Responding to that argument, the court stated:
We reject appellants' suggestion that we adopt the position taken by some courts which require as an additional element of an abuse of process claim . . . a showing that the wrongful use of the court's process has resulted in the seizure of plaintiffs' person or property. Such a requirement has not been set forth in prior Arizona decisions . . . and . . . would limit the scope of the tort to those instances involving the use of "process" in the strictest sense of that term. As previously indicated, the later authorities interpret "process" as encompassing the entire range of court procedures incident to the litigation process, and do not restrict the tort to the utilization of process in the nature of attachment, garnishment or warrants of arrest. Id. at 353, 651 P.2d at 881.
The court did not address whether a claim could be predicated on the litigation process as a whole or on a defendant's mere refusal to settle.
Rather, the court specified which court processes arguably had been misused by the defendant in the underlying action.
That analysis would have been unnecessary if a claimant were only required to establish that the defendant had possessed an improper purpose in sustaining the overall litigation. Id. at 351-54.
To demonstrate a defendant's primary motive was improper, a claimant must establish that the defendant used a court process in a fashion inconsistent with legitimate litigation goals.
In Nienstedt, the court explained this requirement as follows:
We recognize that the utilization of virtually any available litigation procedure by an attorney will generally be accompanied by an awareness . . . that his action will necessarily subject the opposing party to additional legal expenses. The range of feeling in the initiating attorney evoked by that awareness might well vary from instances of actual indifference to instances of intense satisfaction. . . . Liability should result only when the sense of awareness progresses to a sense of purpose, and, in addition the utilization of the procedure for the purposes for which it was designed becomes so lacking in justification as to lose its legitimate function as a reasonably justifiable litigation procedure. 133 Ariz. at 354, 651 P.2d at 882.