A No Contact Order is Abuse of Process?

monkeythinksIn Schmalfeldt’s Second Amended Complaint, he adds the count of Abuse of Process against Sarah Palmer because she DARED to get a second restraining order against him for unlawful contact.

Judge Brown, presiding over the hearing for the petition, ruled in Palmer’s favor that Schmalfeldt had indeed made unlawful contact and ordered Schmalfeldt to not contact her again.

Reading his complaint, this would obviously be a slam dunk in Twitter Court and Palmer would be hauled off in chains to be flogged daily in a deep dark dungeon.

If you think Schmalfeldt was bordering on deranged, this episode should leave no doubt he jumped deep into that territory Evel Knievel style.

ebcbfc4d-a68d-4acb-ad06-7b84f425ec02-150505beachedwhaleIn examining his complaint, you can see that he has beached himself on the theory that the first restraining order in January 2016 was invalid, if not illegal, and a violation of his civil rights because she “checked the box” that she lived in Rockingham county rather than Guilford County, as he believes she now lives.

In South Carolina, for an Abuse of Process claim to be made, there are two elements as described in Food Lion, Inc. v. United Food & Commercial Workers International Union, 2002, SC Ct of Appeals, 2002:

“An ulterior purpose.”

“An ulterior purpose exists if the process is used to gain an objective not legitimate in the use of the process.” First Union Mortgage Corp. v. Thomas, 317 S.C. 63, 74, 451 S.E.2d 907, 914 (Ct. App. 1994); see Davis v. Epting, 317 S.C. 315, 454 S.E.2d 325 (Ct. App. 1994) (finding no ulterior purpose where the record presented no evidence the process was used to gain anything other than a right to access disputed property); Rycroft v. Gaddy, 281 S.C. 119, 125, 314 S.E.2d 39, 44 (Ct. App. 1984) (holding no ulterior purpose was shown where defendants’ use of subpoena to obtain bank records was for the “entirely legitimate purpose” of gathering evidence”).

A “willful act in the use of the process not proper in the conduct of the proceeding.”

As to the second, or “willful act” element, our supreme court has stated that “[s]ome definite act . . . not authorized by the process or aimed at an object not legitimate in the use of the process is required.” Hainer, 328 S.C. at 136, 492 S.E.2d at 107 (quoting Huggins, 249 S.C. at 209, 153 S.E.2d at 694); see Rycroft, 281 S.C. at 125, 314 S.E.2d at 43.

Parsing this out, what would be the ulterior purpose of Palmer wanting a No Contact Order?  According to Schmalfeldt’s closing testimony at the hearing, he says this:

Now, if the court grants this application from Mrs. Palmer, I will not be able to contact her, with motions, with other servings, uh, because that would be direct contact in violation of the restraining order. I believe that is her ultimate end here.

This is obviously not true because not only did Palmer have a No Contact Order against him during LOLSuit VI, he was still able to serve her at – you guessed it – the address she had filed in the petition.  Later, LOLSuit VI was dismissed for lack of personal jurisdiction.

The fact that she moved later in the year is of no consequence while the No Contact Order was in place.  And it wasn’t illegal to move at any time during the restraining order period.  In fact, even in HIS testimony, he stated:

She said that she lived in Reidsville when she filed the restraining order. I see no proof of that, but I’m not going to ask for any, because I’ve been told by the District Attorney that no crime was committed.

So, no proof she lived there even though she was served while under a No Contact Order in the Wisconsin Washout of 2016. However, if you accept his legal interpretation as true, he violated the 2016 No Contact Order for serving her. Who makes logic like that?

Palmer adds in her closing statement:

I did not file this so that he could not contact me in a lawsuit. I had a restraining order against him the last time he sued me and he was perfectly able to serve me with anything he needed to because it is for a legal intent. I have absolutely no problem with that.

So if the ulterior purpose was to stop him from contacting Palmer with legal filings, she states clearly that was not the reason.  Summed up, there was no ulterior purpose other than to get him to stop harassing her.

For “willful act in the use of the process not proper in the conduct of the proceeding”:

Thus, the element comprises three components: 1) a “willful” or overt act 2) “in the use of the process” 3) that is improper because it is either (a) unauthorized or (b) aimed at an illegitimate collateral objective. (3)

In Palmer’s case, she satisfied the first two – she willfully obtained a No Contact Order as a statutory remedy for Schmalfeldt’s harassing behavior. For the remainder of it, it was authorized, and not aimed to stop him from suing her.

All that being said, that’s not what his claim rests on. This is about him wanting an answer to the question of “when she moved” because of a check in a box he believes was unlawful.  From that, he tries to magically derive authority to know why, something about civil rights, even though he CHOSE not to defend himself in the first petition.

And because her petition for a No Contact Order was granted – in no small part to his own admissions during his testimony – that was abuse of process.

im-going-let-you-think-about-one-minute-sip

Oh sure, he makes a big deal about the Judge not letting him present evidence, even though Judge Brown explained over and over to him his butthurt over the blog, and his lawsuit about it, didn’t matter. Now he wants Palmer to pay for the fact he blew the hearing.

You know what would constitute an abuse of process?  Filing eight lawsuits in various districts around the country against the same people only to have them dismissed because the pro-se plaintiff just wants to sue people for butthurt, aka frivolous lawsuits. Or is that malicious prosecution?

Either way, I think the word you’re looking for is:  Counterclaim.  I would imagine a South Carolina lawyer could write one of those up pretty quickly with all the evidence Schmalfeldt has provided, just like the evidence he happily provided in the courtroom of Greensboro, North Carolina.

Tick Tock.

6 thoughts on “A No Contact Order is Abuse of Process?

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