Keel, plaintiffbélow, filed suit against the defendant, Medoc Corporation. Plaintiffs action sought damages in two counts — false imprisonment and malicious prosecution. It was alleged that, while a customer at the defendant’s disco, plaintiff was "grabbed and manhandled” by the defendant’s "bouncer” and accused of stealing a glass jigger. Though he protested his innocence and attempted to leave the premises, plaintiff alleged he was restrained by the defendant’s employees and agents, told he was under arrest and being held for the police. It was further alleged that his arrest was "maliciously carried out” by a warrant issued pursuant to the affidavit of the defendant’s assistant manager, charging plaintiff with theft by taking. After hearing the evidence, the recorder’s court dismissed the criminal charges against plaintiff.
Medoc Corporation answered the suit and count *685 erclaimed against plaintiff. The allegations of the counterclaim were that plaintiff had "filed this civil action for the purpose of harassing Defendant, of causing Defendant to needlessly have to incur substantial expenses to defend itself, and is causing Defendant extreme expense and annoyance.” The counterclaim further alleged that the bringing and continuing of the suit against the defendant was "wrongful” and the basis for a recovery of damages against the plaintiff for malicious abuse of process.
Plaintiff moved to dismiss the counterclaim and the motion was granted. The defendant petitioned for an interlocutory appeal from the order dismissing its counterclaim for malicious abuse of process. This application was granted in order that we might review our holding in
Morris v. Lester Labs.,
1. The issue presented for resolution is whether a defendant may counterclaim against a plaintiff for malicious abuse of process for having filed and prosecuted the very action in which the defendant asserts such counterclaim. In
Morris v. Lester Labs.,
*686 Upon further consideration of this issue, it is our opinion that the attention of the court in Morris was so focused upon one element of distinction between an action for malicious use of process and an action for malicious abuse of process — the requirement, as a condition precedent, of the termination of the civil proceeding — that it failed to give complete consideration to all the critical elements necessary in an action for the latter and, thereby, reached the improper result. We, therefore, decline to follow Morris and expressly overrule it.
"Malicious
abuse
of civil process... lies when the plaintiff in a civil proceeding wilfully misapplies process of the court in order to obtain an objective such process was not intended by law to achieve. [Cits.].. .In malicious abuse of process actions there must be an ulterior motive on the part of the plaintiff to employ the process for a purpose for which it was not designed,
coupled with an improper act
in the use of such process
after it has issued
which amounts to its perversion to some unlawful purpose. [Cits.] Thus, the critical element of
abuse
of civil process is that the action lies for 'improper use of process after it has been issued, not for maliciously causing it to issue.’ [Cits.]”
Cooper v. Public Finance Corp.,
In its counterclaim in the instant case, Medoc Corporation alleged that plaintiff maliciously abused civil process by "wrongfully bringing” suit against it. Insofar as this allegation is an attack upon the
mere issuance
of the summons and complaint, by which Medoc was legally and properly made a party defendant to the action, it has no bearing or relevancy to, and cannot serve as a predicate for, a counterclaim for
abuse
of civil process. "Regular and legitimate use of process, though with a bad intention, is not a malicious abuse of process.”
Davison-Paxon Co. v. Walker,
If "bringing and continuing” a lawsuit stated a claim for malicious abuse of process, the defendant in every pending case could turn it into a damage suit against the plaintiff for having merely brought the áction in the first instance. If a defendant wished to seek relief against a plaintiff on the basis of what amounted to an inchoate malicious
use
of process cause of action, he could utilize the otherwise unavailable procedural vehicle of counterclaim simply by denominating his claim as one for malicious
abuse
of process. Every person with a grievance would have to weigh the possibility that he might become a "defendant” to a counterclaim for malicious abuse of process simply because he chooses to litigate his own claim in court; the filing of every complaint would be grounds for a potential malicious abuse of process counterclaim. "The constitutional right to appeal to the courts [cit.] authorizes a fair and legitimate testing of one’s bona fide claim of right. A litigant is not subject to be penalized by the award of damages whenever he loses his case. Otherwise every man would enter the doors of the court-house, no matter how honestly or with what probable cause, with the danger of damages hanging over him ... There is no law by which every case brought by a plaintiff can be turned into a damage suit by the defendant
*688
against the plaintiff for bringing it, while it is still pending.”
Fender v. Ramsey,
Notice pleading under our Civil Practice Act, adopted in 1966, has in no way diminished the rule of law enunciated in the cases cited supra, with which
Morris
is in conflict. Notice pleading does not allow a claimant who pleads facts which would not support his claim for the relief sought to survive a motion to dismiss. Notice pleading does not vitiate the rule of law that a counterclaim for malicious abuse of process based upon the mere filing and maintaining of the main action by the plaintiff does not state a claim for damages which can be recovered in the trial of the same action.
Terry v. Wonder Seal Co.,
2. The rule we have readopted in overruling
Morris
— that á counterclaim for malicious abuse of process based upon the mere institution and prosecution of the pending action by the plaintiff does not state a claim for relief — does not leave defendants who may be harassed by "wrongful” lawsuits without recourse. If
after
suit is filed but before an answer made, the plaintiff uses the institution of the action "to accomplish some unlawful end, or to compel the defendant to do some collateral thing which he could not legally be compelled to do,”
Whitehead
*689
v. Sou. Discount Co.,
For the reasons stated above,
Morris v. Lester Labs., Inc,
Judgment affirmed.