Malicious Prosecution

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  • Topic: Plaintiff, Pleading, Civil procedure
  • Pages : 5 (1949 words )
  • Download(s) : 117
  • Published : June 10, 2012
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I.
The cases discussed below seem to agree on the four main elements of malicious prosecution: (1) termination of earlier suit in the plaintiff’s favor, (2) lack of probable cause for the suit, (3) malice on the defendant’s part, and (4) special injury flowing from the earlier suit. Frey v. Stoneman, 722 P. 2d 274, 277 (Ariz. 1986); Young v. Motor City Apartments, 133 Mich. App. 671, 675, 350 N.W.2d 790, 792 (1984). Elements (2) and (3) are satisfied in our client’s case: the earlier suit lacked probable cause; and the suit was presumably malicious because the lienholder’s only motive was to put her out of business. Element (1) is dicussed under Issue I and element (4) is discussed under Issue II below. Can a plaintiff sue satisfying the first requirement for malicious prosecution requiring that the termination of the earlier suit be in the plaintiffs favor when in this case the termination of judicial proceedings is in the nature of a voluntary dismissal by the initial plaintiffs who filed the complaint? As for the first element¬-- favorable termination-- some cases say that it is satisfied by abandonment or dismissal and without any final determination merits. But other cases require that an adjudication on the merits is necessary for a determination that a termination was in the plaintiff’s favor. When there is a withdrawal of proceedings by the person who is bringing them it is regarded as a favorable termination in the plaintiff’s favor. In our case our client should succeed because the defendant dismissed the suit on his own. In Colli v. Kamins, 468nA.2d 295 (Conn.Super. 1983) a lawsuit instituted on grounds of malicious prosecution based on a prior civil suit which was voluntarily withdrawn was sufficient to satisfy element (1) that the prior proceedings terminate in the plaintiff’s favor. After the initial lawsuit had been pending for more than three years the current defendant’s withdrew their case against the plaintiff’s. The defendant’s in this case filed a motion to strike based on element (1) that the termination of an earlier suit must be in the current plaintiff’s favor. The court held that “a final determination on the merits of the case is unnecessary and the mere discontinuance of a civil suit in any way satsifies the requirement.” Colli, 468 A.2d at 297 (quoting Hurgren v. Union Mutual Life Ins. Co., 141 Cal. 585, 588, 75 P. 168 (1904)). The court also held that a “voluntary dismissal “without prejudice” of a will contest is a favorable termination of a judicial proceeding.” Colli, 468 A.2d at 297 (quoting Annot., 35 A.L.R.3d 651,658) . Since it was established that the defendant had voluntarily dismissed the first lawsuit and because the court found those circumstances equivalent to a favorable termination of a judicial proceeding the plaintiff’s satisfied element (1). In Frey, there were issues of material fact with respect to the circumstances under which the first lawsuit ended. This was different fromn Colli where it was clearly established that the previous lawsuit was voluntarily withdrawn; leading to a remand to determine whether the circumstances satisfied element (1). The plaintiff’s attorneys requested the defendant (earlier plaintiff) to withdraw all claims against their client in ongoing medical malpractice proceedings. As a result of the Judge’s approval of a stipulated dismissal between some parties and granting the plaintiff’s motion to dismiss with respect to other parties there were two conflicting judgments: one judgment dismissing the complaint and the other granting summary judgment in favor of the doctors forming the confusion in determining element (1). The plaintiff’s attorneys initiated a suit for malicious prosecution based on a voluntary dismissal by the defendants while the defense moved to dismiss arguing a favorable judgment was a prerequisite for the suit and the the prior proceedings were terminated in an agreement. The court held that favorable termination of a claim...
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