Understanding Issue Preclusion, Claim Preclusion, and Abuse of Process

By Mark Ellis, J.D., LL.M., Ph.D | Alumni – Loyola University Chicago School of Law

The doctrines of issue preclusion, also known as collateral estoppel, and claim preclusion, sometimes referred to as res judicata, bar litigation of a previously decided case. Both are integral to the policy-based doctrine of finality of judgments and efficient court administration. Both ease the burden on parties who would otherwise have to defend repeated lawsuits arising from the same set of facts. These doctrines rest on the premise that a matter, once decided, is settled and should not be subject to relitigation.

Issue Preclusion (Collateral Estoppel)

            Issue preclusion bars relitigation of an already decided issue. The preclusion of a party on an issue must require the following: the issue was litigated and determined in the prior action; the determination of the problem must have been essential to a final judgment; and the party against whom preclusion is sought must have had a full and fair opportunity to litigate that issue previously. An illustrative example of issue preclusion is the case of Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), in which the Supreme Court decided that collateral estoppel can be used as a sword to preclude defendants from relitigating issues already determined adversely to them.

Claim Preclusion (Res Judicata)

            The doctrine of claim preclusion prevents a party from re-litigating a claim or matter that has already been finally adjudicated. This doctrine includes the claims that were actually litigated and those that could have been raised in the prior action. For the application of claim preclusion, there must be a final judgment on the merits and identity between the parties to both actions or privity, and the claim in the second action shall have been based upon the same transaction or occurrence as the claim in the first action. The Federated Department Stores, Inc. v. Moitie, 452 U.S. 394 (1981), demonstrates the application of res judicata, where the Supreme Court reasserted that a final judgment on the merits precludes subsequent relitigation of the same claim.

Abuse of Process

            Abuse of process involves the misuse of legal proceedings for an ulterior purpose not intended by the legal system. While the first two are defenses against repeated litigation, abuse of process constitutes a tort claim against the party who misuses the judicial process. A claim for the tort of abuse of process is established where the plaintiff can prove an ulterior motive on the part of the defendant in the use of the process and that the defendant willfully committed an improper act in the use of the process after it has been issued, not proper in the regular conduct of the proceedings. The key elements are the ulterior purpose and the improper use of the process after it has been issued. For example, in Board of Education v. Farmingdale Classroom Teachers Association, 38 N.Y.2d 397 (1975), the court found abuse of process where the legal process is used to harass and intimidate the other side rather than to achieve a legitimate legal objective.

Application Against Opposing Counsel

            There is an application against opposing counsel on an abuse of process theory to show that the actions by opposing counsel were indeed intended to harass, intimidate, or otherwise misuse the legal system or for an improper purpose. A simple averment of multiple suits or refiling claims by themselves does not constitute abuse of the process of the court without specifically showing that the legal proceedings were conducted with ulterior motives and improper purposes. For example, in the case of Richardson v. Miller, 44 S.W.3d 1 (Tenn. Ct. App. 2000), the court had stated that a lawsuit filed, even if done with malice, will not support a finding of abuse of process without the commission of a further act evidencing inappropriate use of the legal process.

Abuse of Process and Frivolous Lawsuits

            Frivolous lawsuits, particularly those which are not permitted to go forward under the doctrines of issue preclusion or claim preclusion, might lead to liability on an abuse of process theory for an attorney who brings a lawsuit on behalf of a plaintiff. Bringing a lawsuit precluded by a judgment would be a misuse of the legal process. Elements of abuse of process include an ulterior motive and a willful act of misusing the process. An example of this would be an attorney filing a lawsuit, where said attorney knew or should have known that the same claims he raised had already been adjudicated and thus barred. This can be seen as a way to burden or harass the defendant unnecessarily.

            Where, however, a frivolous suit is filed even with evident matter or claim preclusion, the defendant may rely on an attorney that represents an abuse of process claim against the plaintiff. His bad faith and misuse of the judicial system have to be proved, for instance, in Givens v. Mullikin, ex rel. McElwaney, 75 S.W.3d 383 (Tenn. 2002), held that the abuse of process doctrine may be present when the legal proceeding has been utilized for ends other than, or even contrary to those, which were conceded or intended to be consonant with properly effected use of such process in courts of law. For example, to extort from the defendant or anyone else money, property, or advantage that ought not, in good conscience and honesty, be surrendered in favor of those seeking improperly to make a wrongful use of such process.

Conclusion

            Issue preclusion and claim preclusion are essential doctrines because they bar relitigation of issues and claims already previously decided and, therefore, ensure judicial economy and the prevention of relitigation of matters by parties again. Abuse of process, on the other hand, gives a remedy against persons who misuse legal procedure for the wrong purpose. Therefore, in establishing a cause of action against opposing counsel based on abuse of process, mainly related to the filing of a frivolous action in reckless disregard of issue or claim preclusion, there must be the ability to establish that the initiation of the legal process had an ulterior purpose. There was some improper behavior occurring after the commencement of an action at law or in equity. These principles serve the larger goals of protecting the integrity and effectiveness of the judicial system.