Defending Against Abuse of Process Claims In Tennessee*
“In Tennessee there are two tort actions which may be brought to obtain redress for the alleged misuse of legal process by another: malicious prosecution and abuse of process.”[1] A separate article detailing the many defenses that are available to malicious prosecution claims under Tennessee law is available here. The focus of this article is defending against Tennessee-law abuse of process claims.
“‘The gist of the tort of abuse of process is the misuse of the court’s power.’”[2] As distinguished from malicious prosecution, “the basis for a claim of abuse of process ‘is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish.’”[3] Thus, “abuse of process lies ‘for the improper use of process after it has been issued, not for maliciously causing process to issue.’”[4]
“To establish a claim for abuse of process in Tennessee, . . . two elements must be alleged: ‘(1) the existence of an ulterior motive; and (2) an act in the use of process other than such as would be proper in the regular prosecution of the charge.’”[5] Given that the tort involves just two elements, one might assume that establishing liability is a simple matter. But because both elements are commonly misunderstood and many defenses to liability are available to those who are sued for abuse of process in Tennessee, that assumption is mistaken. Further, because abuse of process claims almost invariably arise out of petitioning activity, all (or nearly all) such claims are governed by the Tennessee Public Participation Act, Tennessee’s modern anti-SLAPP statute.
Elements of an Abuse of Process Claim
Element #1: Ulterior Motive.
“[T]he existence of an ulterior motive” is an essential element of an abuse of process claim.[6] “The test as to whether process has been abused is ‘whether the process has been used to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be compelled to do.’”[7] The Tennessee Supreme Court has clarified that the purpose of the tort is “to prevent parties from using litigation to pursue objectives other than those claimed in the suit, such as using a court’s process as a weapon ‘to compel [another party] to pay a different debt or to take some action or refrain from it.’”[8] Thus, it is “this ‘collateral goal’—a result that the process itself was not intended to obtain—that is the very heart of” an abuse of process claim.[9]
Alleging a qualifying ulterior motive may seem simple enough. But under Tennessee law, “no claim of abuse will be heard if process is used for its lawful purpose, even though it is accompanied with an incidental spiteful motive or awareness that the use of process will result in increased burdens and expenses to the other party.’”[10] Instead, a plaintiff must prove that “the primary purpose of using the court’s process is for spite or other ulterior motive.”[11] And given that a defendant cannot reasonably be expected to admit having any such ulterior motive, some independent evidence proving this element—which may not exist—usually will be required.
Element #2: Misuse of (Post-Complaint) Process.
The second element of an abuse of process claim is “‘an act in the use of process other than such as would be proper in the regular prosecution of the charge.’”[12] This element is where most abuse of process claims fail.
As noted, “[t]he gist of the tort of abuse of process is the misuse of the court’s power.”[13] Thus, some misuse “involv[ing] the authority of the court” is required.[14] Tennessee’s appellate courts also have clarified that this element requires proof of some “perversion[] of the tools of litigation occurring after a lawsuit has commenced.”[15]
With this definition in mind, a valid claim for abuse of process “‘normally rests on some writ, order, or command of the court in the course of a judicial proceeding.”[16] Examples include “attachment, execution, garnishment, sequestration proceedings, arrest of the person and criminal prosecution.”[17]
Although Tennessee’s appellate courts have emphasized repeatedly that the tort requires some misuse of post-filing litigation tools, many plaintiffs misunderstand this element, believing incorrectly that merely filing an abusive lawsuit qualifies. Definitionally, though, it does not: A plaintiff must “show some additional abuse of process after the original processes of the court, i.e., the complaint, summons, and responsive pleadings, have been issued[,]”[18] so “[m]ere initiation of a lawsuit, even if accompanied by a malicious ulterior motive, is not an abuse of process.”[19] “[T]he mere filing of a motion or document by a party is not automatically considered process within the context of a claim for abuse of process,” either.[20] Neither is general litigation misconduct, such as “failing to disclose assets during the marital property division.”[21] Alleged non-judicial abuses—such as “a nonjudicial foreclosure”[22]—definitionally do not qualify as process, either. Nor do gripes about opponents’ lawful efforts to achieve bona fide litigation goals[23]—like serving process on a weekend[24] or serving notice of a Rule 11 claim[25]—qualify as process in this context.
The furthest that Tennessee’s courts have been willing to extend this element is to abuse of discovery tools during litigation, such as “subpoenas, depositions, and interrogatories[.]”[26] But that holding—which suffers from vulnerabilities that were not considered by the opinion[27]—is something of an outlier, and “[i]t is not simply that any form of legal process . . . is automatically considered process in the context of a claim for abuse of process[.]”[28] Further, “[b]ecause of its potential chilling effect on the right of access to the courts, the tort of abuse of process is disfavored and must be narrowly or strictly construed to insure the individual a fair opportunity to present the claim.”[29] For this reason, many claims that some act within litigation qualifies as “process” within the context of Tennessee’s abuse of process tort ultimately fail as a matter of law.
Defenses to Abuse of Process Claims
Even in the rare case that a plaintiff can establish both essential elements of an abuse of process claim, many meritorious defenses are available that may preclude liability. Several are addressed below.
- The One-year Statute of Limitations
“[A]buse of process falls squarely within the ambit of Tenn. Code Ann. § 28-3-104” and thus “is subject to [a] one-year statute of limitations.”[30] But unlike malicious prosecution claims—which “are subject to different accrual rules”[31] than abuse of process claims—the statute of limitations for an abuse of process claim runs “from the termination of the acts which constitute the abuse complained of, and not from the completion of the action which the process issued.”[32] Thus, a litigant’s decision “to continue” litigating a matter that a plaintiff contends is an abuse of process does not toll the statute of limitations through appeal, and the underlying case need not even have concluded for the statute of limitations to begin running.[33] Because that accrual rule is different, even sophisticated litigants have overlooked it in cases with hundreds of millions of dollars in controversy, resulting in early dismissals for failure to state a claim.[34]
- Noerr-Pennington Immunity
“[T]he Petition Clause [of the First Amendment] places limits on liability for the commission of a range of [state] common law torts.”[35] The scope of this limitation on liability is governed by the “Noerr-Pennington” doctrine.
“Although the Noerr–Pennington doctrine was initially recognized in the antitrust field, the federal courts have by analogy applied it to claims brought under both state and federal laws[.]”[36] That is because “[t]he doctrine is, at bottom, founded upon a concern for the First Amendment right to petition and, therefore, has been applied to claims implicating that right.”[37] Thus, the Noerr-Pennington doctrine limits a plaintiff’s ability to recover for abuse of process—and all other state-law torts—whenever a plaintiff’s claim is premised on a petition to the government.[38]
To overcome Noerr-Pennington immunity, a plaintiff must prove that a defendant engaged in “sham” litigation both objectively and subjectively.[39] To satisfy the objective component of the U.S. Supreme Court’s “two-part definition of ‘sham’ litigation[,]” the U.S. Supreme Court has held that a petition “must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr[.]”[40] Further, “[o]nly if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation.”[41] Thus, because many asserted abuses of process (for instance, Temporary Restraining Orders or criminal contempt petitions) cannot be considered both objectively and subjectively baseless, Noerr-Pennington immunity often will immunize them from abuse of process liability.
- Waiver
Plaintiffs may “waive[ their] right to complain of abuse of process” by failing to object to an asserted abuse in a preceding action.[42] Because this is “a factual affirmative defense[,]” defendants generally must affirmatively plead it in an answer and then prove it.[43] Nevertheless, the defense will apply in many abuse of process cases because abuse of process claims almost necessarily arise out of matters that were or could have been litigated earlier legal proceedings.
- The Litigation Privilege
Tennessee’s litigation privilege protects an attorney and immunizes him from suit when the following factors are present: (1) the attorney was acting in the capacity of counsel for a client or identifiable prospective client when the conduct occurred, (2) the attorney was acting in good faith for the benefit of and on behalf of the client or prospective client, not for the attorney’s self-interest, (3) the conduct was related to the subject matter of active litigation or proposed litigation that was under serious consideration by the attorney, and (4) there was a real nexus between the attorney’s conduct and that litigation.[44]
Tennessee’s courts have not expressly held that the litigation privilege extends to abuse of process claims. The Tennessee Court of Appeals has extended the privilege to other torts beyond defamation, however, including tortious interference with a contract.[45] One federal court applying Tennessee law also has held explicitly that the privilege extends to Tennessee-law abuse of process claims.[46] Thus, the litigation privilege may immunize attorneys from liability for abuse of process when they have been sued based on their conduct in preceding litigation.
The same likely is not true of the related advice-of-counsel defense, though. “The fact that a plaintiff acted under the advice of counsel is not generally considered to be a defense” to an abuse of process claim.[47] The issue is arguably unsettled in Tennessee, however, given that, to date, the Tennessee Court of Appeals has stated only that advice of counsel is not an “absolute” defense to abuse of process liability.[48]
- The Tennessee Public Participation Act
For First Amendment purposes, lawsuits are petitions.[49] By their nature, abuse of process claims also almost invariably relate to lawsuits. As such, all (or nearly all) abuse of process claims will be governed by the Tennessee Public Participation Act (the “TPPA”)—Tennessee’s modern anti-SLAPP statute—which applies to any claim that is “based on, relates to, or is in response to [a defendant’s] exercise of the . . . right to petition[.]”[50]
Although the TPPA does not confer substantive defenses to liability, it does afford important procedural protections to defendants who are sued for qualifying claims, and it significantly raises the stakes for the plaintiffs who sue them. Among those protections, the TPPA presumptively forbids discovery,[51] meaning that plaintiffs generally must have prima facie evidence of each essential element of their claims at the time of filing. Plaintiffs who sue for abuse of process but fail to overcome a properly supported TPPA petition also will be required to pay their opponent’s “reasonable attorney’s fees, discretionary costs, and other expenses incurred[.]”[52] Thus, based on the TPPA’s protections, plaintiffs who file unsuccessful abuse of process claims in Tennessee sometimes find themselves paying the people they have sued.[53]
* * *
Given these barriers—the difficulty of establishing the elements of abuse of process in the first place, and the many available defenses (including immunities) that apply to abuse of process claims even when liability could otherwise be established—few abuse of process claims are successful. Indeed, many of them result in expensive consequences for the plaintiffs who file them. As such, although competently defending against an abuse of process claim requires significant expertise, most Tennessee defendants who are sued for abuse of process can rest (comparatively) comfortably, assured in the knowledge that most such claims are unlikely to be successful.
*Copyright: Daniel A. Horwitz, Horwitz Law, PLLC. This is a draft whitepaper current through December 3, 2025. It is not intended to be legal advice, and it should not be relied on for that purpose. If you would like to purchase a consultation, you can do using the form below.
[1] Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550, 555 (Tenn. 1999).
[2] Blalock v. Preston L. Grp., P.C., No. M2011-00351-COA-R3CV, 2012 WL 4503187, at *4 (Tenn. Ct. App. Sept. 28, 2012) (quoting 1 Am.Jur.2d Abuse of Process § 5 (1994)).
[3] Id. (cleaned up).
[4] Id. (quoting Bell ex rel. Snyder, 986 S.W.2d at 555).
[5] Bell ex rel. Snyder, 986 S.W.2d at 555 (quoting Priest v. Union Agency, 125 S.W.2d 142, 143 (Tenn. 1939)).
[6] Bell ex rel. Snyder, 986 S.W.2d at 555 (quoting Priest v. Union Agency, 125 S.W.2d 142, 143 (Tenn. 1939)).
[7] Givens v. Mullikin ex rel. Est. of McElwaney, 75 S.W.3d 383, 401 (Tenn. 2002) (quoting Priest, 125 S.W.2d at 143–44).
[8] Givens, 75 S.W.3d at 401 (quoting Restatement (Second) of Torts § 682 cmt. b (1977)).
[9] Givens, 75 S.W.3d at 401.
[10] Montpelier, 2017 WL 2378301, at *7 (quoting Givens, 75 S.W.3d at 401).
[11] Montpelier v. Moncier, No. E2016-00246-COA-R3-CV, 2017 WL 2378301, at *7 (Tenn. Ct. App. June 1, 2017) (quoting Givens, 75 S.W.3d at 401. (cleaned up).
[12] Bell ex rel. Snyder, 986 S.W.2d at 555 (quoting Priest, 125 S.W.2d at 143).
[13] Warwick v. Warwick, No. E2011-01969-COA-R3CV, 2012 WL 5960850 at *10 (Tenn. Ct. App. Nov. 29, 2012) (emphasis added).
[14] Id. at *11 (“failing to disclose assets during the marital property division is not abuse of process because it does not involve the authority of the court. We therefore conclude that the complaint fails to state a cause of action for abuse of process.”).
[15] Montpelier, 2017 WL 2378301, at *5 (“Abuse of process ‘only deals with perversions of the tools of litigation occurring after a lawsuit has commenced.’”).
[16] Blalock, 2012 WL 4503187, at *4 (quoting Merritt–Chapman & Scott Corp. v. Elgin Coal, Inc., 385 F. Supp. 17, 21 (E.D. Tenn. 1972)).
[17] Blalock, 2012 WL 4503187, at *4 (citing William L. Prosser & Page Keeton, Prosser and Keeton on Torts ch. 21, Abuse of Process, § 121 (5th ed. 1984)).
[18] Givens, 75 S.W.3d at 403 (emphases added and omitted).
[19] Blalock, 2012 WL 4503187, at *4 (citing Bell ex rel. Snyder, 986 S.W.2d at 555).
[20] Blalock, 2012 WL 4503187, at *4 (citing Rentea v. Rose, M2006-02076-COA-R3-CV, 2008 WL 1850911 at *4 (Tenn. Ct. App. 2008).
[21] Warwick, 2012 WL 5960850, at *11.
[22] Amodio v. Ocwen Loan Servicing, LLC, No. 3:18-CV-00811, 2018 WL 6727106, at *6 (M.D. Tenn. Dec. 21, 2018).
[23] Christmas v. Kington, No. E202200699COAR3CV, 2023 WL 5498762, at *9 (Tenn. Ct. App. Aug. 25, 2023) (“An action for abuse of process cannot be sustained where the process was employed to perform no other function than that intended by law.”).
[24] Harmer v. Colom, 650 F. App’x 267, 271–72 (6th Cir. 2016) (“Charitably construing the complaint yields an allegation that Colom improperly served Peter Harmer at home on the weekend because he had an ulterior motive said to be separate from the malicious purpose for the underlying litigation. Yet, personal service is Tennessee’s preferred method for serving process. We simply cannot accept that by complying with Tennessee’s stated preference here, Colom engaged in an improper act amounting to abuse of process.”) (internal citations ommitted); See Hall v. Haynes, 319 S.W.3d 564, 572 (Tenn. 2010).
[25] Montpelier, 2017 WL 2378301, at *8.
[26] Givens, 75 S.W.3d at 402.
[27] The Tennessee Rules of Civil Procedure provide internal remedies to redress asserted discovery abuses. See, e.g. Tenn. R. Civ. P. 26. There also are reasonable arguments to be made that such remedies are exclusive. Even if they were not, failing to invoke those remedies and to prevail within the preceding litigation introduces serious waiver, forfeiture, and res judicata issues.
[28] Rentea v. Rose, No. M2006-02076COAR3CV, 2008 WL 1850911, at *4 (Tenn. Ct. App. Apr. 25, 2008).
[29] Amodio v. Ocwen Loan Servicing, LLC, No. 3:18-CV-00811, 2018 WL 6727106, at *5 (M.D. Tenn. Dec. 21, 2018) (citing 1 Am.Jur.2d Abuse of Process § 1 (1994)).
[30] Blalock, 2012 WL 4503187, at *7.
[31] Cordova v. Martin, 677 S.W.3d 654, 660 (Tenn. Ct. App. 2023).
[32] Id.
[33] Blalock, 2012 WL 4503187, at *7.
[34] See, e.g., The Congress Group Inc. et al. v. Steven Snyder et al., Case No. 24C869 (Davidson Co. 8th Cir. Nov. 22, 2024), https://horwitz.law/wp-content/uploads/Decker-Memorandum-Opinion.pdf.
[35] Scott v. Hern, 216 F.3d 897, 914 (10th Cir. 2000) (citing Cheminor Drugs, Ltd. v. Ethyl, Corp., 168 F.3d 119, 128 (3d Cir. 1999) (malicious prosecution, tortious interference with contract, tortious interference with prospective economic advantage, and unfair competition), cert. denied, 528 U.S. 871, 120 S.Ct. 173, 145 L.Ed.2d 146 (1999); see also, e.g., State of South Dakota v. Kansas City S. Indus., Inc., 880 F.2d 40, 50 n. 24, 53–55 (8th Cir. 1989) (tortious interference with contract); Video Int’l Prod., Inc. v. Warner–Amex Cable Communications, 858 F.2d 1075, 1084 (5th Cir. 1988) (tortious interference with contractual relations); Havoco of Am., Ltd. v. Hollobow, 702 F.2d 643, 649–50 (7th Cir. 1983) (tortious interference with business relationships); Suburban Restoration Co. v. ACMAT Corp., 700 F.2d 98, 101–02 (2d Cir. 1983) (tortious interference with a business expectancy); Computer Assocs. Int’l, Inc. v. American Fundware, Inc., 831 F. Supp. 1516, 1523 (D. Colo. 1993) (unfair competition); Pennwalt Corp. v. Zenith Lab., Inc., 472 F. Supp. 413, 424 (E.D. Mich. 1979) (tortious interference with business relationships and abuse of process), appeal dismissed, 615 F.2d 1362 (6th Cir. 1980); Sierra Club v. Butz, 349 F. Supp. 934, 937–39 (N.D. Cal. 1972) (tortious interference with advantageous relationship); Pacific Gas & Elec. Co. v. Bear Stearns & Co., 50 Cal.3d 1118, 1133–38, 270 Cal. Rptr. 1, 9–12, 791 P.2d 587, 595–98 (Cal. 1990) (intentional interference with contract and intentional interference with prospective economic advantage)).
[36] Campbell v. PMI Food Equip. Grp., Inc., 509 F.3d 776, 790 (6th Cir. 2007).
[37] Id. (collecting cases); see also Video Int’l Prod., Inc. v. Warner-Amex Cable Commc’ns, Inc., 858 F.2d 1075, 1084 (5th Cir. 1988) (“There is simply no reason that a common-law tort can any more permissibly abridge or chill the constitutional right of petition than can a statutory claim such as antitrust.”); Braintree Lab., Inc. v. Schwarz Pharm., Inc., 568 F. Supp. 2d 487, 494–95 (D. Del. 2008) (citing Third and Fourth Circuit cases extending the doctrine).
[38] See, e.g., Pound Hill Corp. v. Perl, 668 A.2d 1260, 1264 (R.I. 1996) (“the Noerr–Pennington doctrine, resting as it does upon the First Amendment right to petition, does add a constitutional gloss to civil actions for abuse of process”); E. Sav. Bank, FSB v. Papageorge, 31 F. Supp. 3d 1, 19 (D.D.C. 2014) (citations omitted), aff’d, 629 F. App’x 1 (D.C. Cir. 2015) (“Under the Noerr–Pennington doctrine, the First Amendment generally immunizes the filing of good-faith lawsuits from liability.”).
[39] Pro. Real Est. Invs., Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60 (1993); see also BE & K Constr. Co. v. NLRB, 536 U.S. 516, 526 (2002) (petitioning activity must “be a sham both objectively and subjectively” to overcome Noerr–Pennington defense).
[40] Pro. Real Est. Invs., Inc., 508 U.S. at 60.
[41] Id.
[42] Givens, 75 S.W.3d at 404.
[43] Id.; cf. Douglas v. Strada, No. W2024-00753-COA-R3-CV, 2024 WL 5115870, at *3 (Tenn. Ct. App. Dec. 16, 2024).
[44] Rajapakse v. Baker Donelson Bearman Caldwell & Berkowitz, P.C., No. 13-2328-JDT-DKV, 2013 WL 3992523, at *10 (W.D. Tenn. Aug. 5, 2013) (citing Unarco Material Handling, Inc. v. Liberato, 317 S.W.3d 227, 238 (Tenn. Ct. App. 2010)).
[45] Unarco, 317 S.W.3d 227.
[46] Brown v. Shelby Cnty. Sch., No. 2:24-CV-02571-SHL-ATC, 2025 WL 2603060, at *2 (W.D. Tenn. Sept. 9, 2025) (“the R&R correctly determined that Brown’s abuse of process claim must be dismissed under the litigation privilege.”).
[47] 1 Am.Jur.2d Abuse of Process § 28 (collecting cases).
[48] Hill v. Derryberry, No. 89-348-II, 1990 WL 94714, at *4 (Tenn. Ct. App. July 11, 1990) (“[W]e have found no authority suggesting that acting on the advice of counsel is an absolute defense to an abuse of process claim.”)
[49] See, e.g., Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 387 (2011) (“This Court’s precedents confirm that the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes.”) (citing Sure–Tan, Inc. v. NLRB, 467 U.S. 883, 896–897, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984) (“the right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government[.]”)); BE & K Constr. Co. v. NLRB, 536 U.S. 516, 525, 122 S.Ct. 2390, 153 L.Ed.2d 499 (2002); Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (“the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition.”).
[50] Tenn. Code Ann. § 20-17-105(a).
[51] Tenn. Code Ann. § 20-17-104(d).
[52] Tenn. Code Ann. § 20-17-107(a)(1).
[53] Memorandum Order on Motion to Dismiss, James Powell v. Sarah Powell, (Davidson Co. 6th Cir. May 15, 2025), https://horwitz.law/wp-content/uploads/Order-Granting-TPPA-Petition-2.pdf