7 Am. Jur.

Proof of Facts 2d 181

American Jurisprudence Proof of Facts 2d Database updated July 2006

Categorical List of Articles Malicious Prosecution Jimmie E. Tinsley, J.D.[FN*] ARTICLE OUTLINE I Background 1 In general 2 Malicious prosecution distinguished from related actions--Abuse of process and false imprisonment 2.5 Anti-SLAPP statutes 3 Elements of action for malicious prosecution 3.5 Multiple malicious prosecutions 4 Proceedings on which action may be based--Criminal proceedings 5 Proceedings on which action may be based--Civil action 6 Proceedings on which action may be based--Cross complaint or counterclaim 7 Proceedings on which action may be based--Administrative and disciplinary proceedings 8 Defendant's responsibility for institution of prior proceeding; persons liable 9 Termination of prior proceeding in plaintiff's favor 9.3 Termination of prior proceeding on technical grounds--Termination on technical or procedural grounds 9.5 Termination of prior proceeding on technical grounds--Termination by settlement 10 Lack of probable cause for prior proceeding 11 Malice 12 Defenses 12.5 Vexatious litigation claims 13 Burden of proof and evidence 13.5 Expert testimony 14 Damages; in general 14.5 Punitive damages 15 Elements of damages: guide and checklist II Proof of Defendant's Initiation of Criminal Proceedings Against Plaintiff Without Probable Cause and with Malice A Elements of Proof 16 Guide and checklist B Testimony of Plaintiff 17 Defendant's responsibility for plaintiff's arrest 18 Insufficiency of information relied on to justify arrest 19 Defendant's refusal to make further investigation 20 Defendant's refusal to seek termination of prosecution after knowledge of

exculpatory facts 21 Termination of proceedings favorable to plaintiff 22 Defendant's personal hostility toward plaintiff C Testimony of Friend Who Witnessed Arrest 23 Insufficiency of information relied on to justify arrest 24 Defendant's refusal to make further investigation D Testimony of Friend Who Purchased Allegedly Stolen Item 25 Plaintiff's innocence of charge 26 Defendant's refusal to seek termination of prosecution after knowledge of exculpatory facts E Testimony of Plaintiff's Employer 27 Plaintiff's innocence of charge 28 Defendant's refusal to seek termination of prosecution after knowledge of exculpatory facts 29 Plaintiff's good character and reputation F Testimony of Defendant 30 Defendant's refusal to make further investigation INDEX Abuse of process distinguished,, 2 Administrative or disciplinary proceedings, action based on institution of, generally,, 1, 7 attorney, proceedings against,, 7 license, refusal of as special injury,, 7 pharmacist, proceedings against,, 7 physician, proceedings against,, 7 special injury, necessity of showing,, 7 Affirmative defenses, generally,, 12 advice of counsel, reliance on,, 12 advice of others, reliance on,, 12 burden of proof,, 13 guilt of plaintiff,, 12 immunity from liability,, 8, 12 Appeal, effect of,, 9 Arrest of plaintiff, defendant's responsibility for, testimony concerning,, 17 evidence of, admissibility,, 14 insufficiency of information relied on to justify, testimony concerning,, 18, 23 necessity of,, 8 special injury, as constituting,, 5 Attachment or garnishment, as special injury,, 5 Attorneys, disciplinary proceedings against, action based on institution of,, 7 liability for action instituted by client,, 8 reliance on advice of, as defense,, 12 Bankruptcy or insolvency proceedings, action based on institution of,, 5 Character and reputation, damages for injury to,, 14 evidence of, admissibility,, 13, 29 investigation of plaintiff's, defendant's refusal to make, testimony concerning,, 19 plaintiff's good, testimony concerning,, 29 Civil actions, action based on institution of, generally,, 1, 5 damages, pleading and proof required in,, 14

favorable termination of, what constitutes,, 9 initiation of, what constitutes,, 8 special injury, necessity of showing,, 3, 5 Compromise or settlement, as favorable termination,, 9 Continuation of prior proceeding, action based on,, 3, 8 Corporations, liability of,, 8 Criminal proceedings, action based on institution of, generally,, 1, 4 accusation, defect in, effect of,, 8 damages, pleading and proof required in,, 14 extradition proceedings,, 4, 9 favorable termination of, what constitutes,, 9 initiation of, what constitutes,, 8 quasi-criminal proceedings,, 4 Cross complaint or counterclaim, action based on filing of,, 1, 6 Cross pleading, raising action by,, 6 Damages, generally,, 3, 14, 15 amount,, 14 compensatory,, 14 elements of, guide and checklist,, 15 evidence of,, 14 pleading and proof of,, 3, 14 punitive, generally,, 14 exculpatory facts, defendant's knowledge of, as supporting award of,, 20 Defamation, civil actions involving,, 5 Defenses, generally,, 12 affirmative defenses, see Affirmative defenses Definitions, malice,, 1 malicious prosecution,, 1 probable cause,, 10 Disciplinary proceedings, see Administrative or disciplinary proceedings, action based on institution of Employer, liability for action commenced by employee,, 8 English rule, see Special injury Evidence, generally,, 13 False imprisonment distinguished,, 2 Financial worth of defendant, admissibility of evidence of,, 14 Habeas corpus, discharge in, as favorable termination,, 9 Inferences, malice, from lack of probable cause,, 11 probable cause, lack of, from existence of malice,, 11 from manner of termination,, 10 Injunctions, interference with property by means of, as special injury,, 5 Innocence of plaintiff, evidence of, admissibility,, 25 testimony concerning,, 25, 27 Insanity or similar proceeding, action based on institution of,, 5 Institution of prior proceeding, requirement of,, 3, 8 Investigation, defendant's failure or refusal to make, testimony concerning,, 19, 24 Joinder with related actions,, 2 Malice, generally,, 3, 11

actual malice, effect of,, 11, 14 definition,, 11 hostility toward plaintiff, evidence of, as proof of,, 11, 22 testimony concerning,, 22 malice in law,, 11 Malicious defense, action for,, 6 Mental suffering, damages for,, 3, 14 Negligence of defendant, effect of,, 11 Newspaper publicity, admissibility of evidence of,, 14 Partnerships, liability of,, 8 Principal, liability for action commenced by agent,, 8 Probable cause, definition,, 10 existence of, as defense,, 10 falsity of charge, defendant's knowledge of, as negating existence of,, 10 insufficiency of information relied on to justify arrest, testimony concerning,, 18, 23 investigation, defendant's failure or refusal to conduct, as showing lack of,, 19 lack of, as element,, 3, 10 reasonable person test,, 10 subjective test,, 10 Proof, burden of,, 13 elements of, generally,, 3 guide and checklist,, 16 Property, interference with use of as special injury,, 5 Public officials, immunity of,, 8, 12 Related actions,, 2 Respondeat superior, liability under doctrine of,, 8 Responsibility of defendant for prior proceeding, generally,, 3, 8 testimony concerning,, 17 Search warrant, procurement of, action based on,, 4 Special injury, generally,, 3, 5 actions constituting,, 5 administrative or disciplinary proceedings, necessity of showing,, 7 civil action, necessity of showing,, 5 Termination of prior proceedings, generally,, 3, 9 auxiliary proceedings, termination of as sufficient,, 9 defendant's refusal to seek, after knowledge of exculpatory facts, testimony concerning,, 20, 26, 28 extradition proceedings, termination of as sufficient,, 9 favorably to plaintiff, requirement of, generally,, 3, 9 testimony concerning,, 21 Third persons, initiation of proceedings at defendant's request,, 8

Topic of Article: Whether a prior legal proceeding, which was instituted or abetted by the defendant and which has terminated in the plaintiff's favor, was brought without probable cause and with malice. This fact question may arise in a civil action for the recovery of damages sustained as a result of the defendant's institution or instigation of prior criminal, civil, administrative, or disciplinary proceedings against the plaintiff.

I. Background 1. In general [Cumulative Supplement]

The term "malicious prosecution" is used to refer both to a proceeding which was instituted maliciously and to a cause of action arising therefrom. With respect to the original proceeding, malicious prosecution may be defined as an action that was instituted with malice and without probable cause and which terminated unfavorably to the party who instigated the action. The cause of action for malicious prosecution is the remedy in tort provided for the recovery of damages incurred as a result of the original proceeding.[FN1] This article is concerned with the cause of action for malicious prosecution, in that it deals with the proof essential to establish the plaintiff's right to recover damages resulting from a proceeding maliciously instituted or abetted by the defendant. Since such proof basically amounts to proof that the original proceeding was maliciously prosecuted, the article necessarily deals with both meanings of the term "malicious prosecution."[FN2] It has been noted that there are competing policy considerations affecting the attitude of the courts toward the action for malicious prosecution. The first consideration is the desire of the courts to provide a remedy for every wrong.[FN3] Furthermore, in addition to the harm done an individual by the malicious institution of legal proceedings, society in general is harmed, since the malicious prosecution of an action clogs the courts and threatens the efficient administration of justice.[FN4] However, the courts also desire to keep the legal system open for meritorious actions, and it is sometimes feared that the threat of a malicious prosecution action may deter the filing of good faith lawsuits.[FN5] The courts generally seem to give greater weight to this latter consideration, as a result of which the action for malicious prosecution is not favored by the law and is severely restricted as a remedy.[FN6] Although the tort of malicious prosecution originally applied to criminal proceedings only, it has generally been extended to the initiation of civil proceedings as well.[FN7] Furthermore, an action for malicious prosecution may be

based on the filing of a cross complaint,[FN8] and, under appropriate circumstances, on the institution of administrative or disciplinary proceedings.[FN9] Although the elements of the cause of action are substantially the same regardless of the nature of the prior action,[FN10] there are some differences in the proof required to sustain the action, notably in the area of damages.[FN11] CUMULATIVE SUPPLEMENT Cases: Survival: Son's allegation that he suffered the loss of his father's services, inasmuch as his father, after being framed by FBI agents and state officers, was physically removed from the family for over twenty years before he died in prison, such that son could not enjoy a normal relationship with his father and his father's financial support, stated a claim, under Massachusetts law, for loss of parental consortium, regardless of whether any action by the father's estate for malicious prosecution did not survive his death. Limone v. U.S., 336 F. Supp. 2d 18 (D. Mass. 2004); West's Key Number Digest, Mandamus 7.5. Family law proceedings: Wife's malicious prosecution action against husband, trustees of trust that was joined in dissolution action, and trust's attorney, alleging that cross-complaint by trust against her had been maliciously prosecuted without probable cause, was not proscribed by bar against malicious prosecution actions arising from family law proceedings; cross-complaint did not involve family law issues, but was simply civil action for possession of property alleged to be trust property and damages for loss of trust property, and mere fact that cross-complaint was filed in family division did not transform trust's ordinary civil action against wife into family law proceeding. Nicholson v. Fazeli, 113 Cal. App. 4th 1091, 6 Cal. Rptr. 3d 881 (6th Dist. 2003); West's Key Number Digest, Malicious Prosecution 10. There is no tort of malicious defense arising from a defendant's conduct in a lawsuit. The mainstay supporting this principle is the absolute privilege contained in Calif. Civ. Code, 47, subd. (b), for a publication in any judicial proceeding. The defendant may present any defense that he or she may have or may deem expedient, and in so doing the defendant will not be subjecting himself or herself to a second suit by the plaintiff based on the wrongful conduct of the defendant in causing the plaintiff to sue or in defending the action. The rule is the same even though the wrongful conduct of the defendant is willful, intentional, malicious, or fraudulent. California Physicians' Service v Superior Court (1992, 4th Dist) 9 Cal App 4th 1321, 12 Cal Rptr 2d 95, 92 CDOS 8077, 92 Daily Journal DAR 13165. The tort of malicious prosecution originated as a remedy for individuals who have been the targets of unjustifiable and maliciously founded criminal charges. In California, as in most other common law jurisdictions, the tort has been extended to afford a remedy for the malicious institution of civil proceedings. In both its forms, however, the tort traditionally has been and still is regarded as a disfavored cause of action, on account of its tendency to impose a "chilling effect" on the willingness of ordinary citizens either to report criminal conduct or to bring potentially valid civil claims to court. Villa v Cole (1992, 1st Dist) 4 Cal App 4th 1327, 6 Cal Rptr 2d 644, 92 CDOS 2924.

Judicial distrust: The courts have always distrusted malicious prosecution actions, and have retained a strong hand over them; for this reason the existence of probable cause, which involves only the conduct of a reasonable man under the circumstances, and does not differ essentially from the determination of negligence, usually is taken out of the hands of the jury, and held to be a matter for decision by the court. Georgia Code 51-7-40. Zohoury v. Home Depot, Inc., 239 Ga. App. 454, 521 S.E.2d 389 (1999); West's Key Number Digest, Malicious Prosecution 38. Anti-SLAPP statute: Strategic Litigation Against Public Participation (SLAPP) suits, which anti-SLAPP statute seeks to prevent, target people for reporting violations of law, writing to government officials, attending public hearings, testifying before government bodies, circulating petitions for signature, lobbying for legislation, campaigning in initiative or referendum elections, filing agency protests or appeals, being parties in law-reform lawsuits, and engaging in peaceful boycotts and demonstrations. M.G.L.A. c. 231, 59H. Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 691 N.E.2d 935 (1998). Defendant was not entitled to disqualification of plaintiff's attorney based merely on counterclaim of malicious prosecution that was asserted against him; although defendant alleged existence of conflict of interest between plaintiff and his attorney, something more than affirmation of defendants' attorney, who had no personal knowledge of matter, was required to justify drastic action of disqualification. Cerqueira v Clivilles (1995, 1st Dept) 213 AD2d 202, 623 NYS2d 580. The court would refuse to create a new cause of action based on the strategic use of a lawsuit to deter public participation; thus, such a cause of action could not be stated in a counterclaim and the defendant would have to await the termination of the plaintiff's action against him in order to state a cause of action for wrongful use of a civil proceeding. M.W. Farmer & Co. v Runner (1995 Pa) 23 D & C4th 230, review pending (Apr 13, 1995). [Top of Section] [END OF SUPPLEMENT] 2. Malicious prosecution distinguished from related actions--Abuse of process and false imprisonment [Cumulative Supplement]

Although malicious prosecution has frequently been confused with abuse of process, the two are substantially different and independent causes of action. The basic distinction between the two is that an action for malicious prosecution is concerned with maliciously causing process to issue, while abuse of process is concerned with the improper use of a regularly issued process. In other words,

malicious prosecution involves the use of process for its ostensible purpose, but without probable cause, whereas abuse of process involves the use of legal process in a manner or for a purpose not intended by law.[FN12] Malicious prosecution has also been confused with false imprisonment. Although they are related causes of action, there is a fundamental distinction between them. If a person is detained for malicious reasons but under due form of law, the cause of action, if any, is for malicious prosecution. However, if a person is detained without valid legal authority, an action lies for false imprisonment, regardless of the existence of malice or lack of probable cause for the detention.[FN13] Although malicious prosecution, abuse of process, and false imprisonment are therefore three distinct causes of action, the facts frequently will support a claim based on each of the three, and it is generally considered proper to join such causes of action in the same suit.[FN14] Furthermore, even where the plaintiff relies solely on a theory of malicious prosecution, evidence relating to false arrest may be admissible as part of the circumstances surrounding the malicious prosecution.[FN15] If the plaintiff is forced to choose between an action based on abuse of process and one based on malicious prosecution, it has been argued that, assuming the facts will support either theory, the action for abuse of process is preferable, since the plaintiff can establish his case merely by showing use of process for an improper purpose, without having to show lack of probable cause or a termination favorable to him.[FN16] CUMULATIVE SUPPLEMENT Cases: An FTCA action by a former government employee alleging "conspiracy to entrap" was properly dismissed. The allegation amounted to a claim for malicious prosecution which was excluded from the FTCA by 2680(h). A claim for malicious prosecution may arise when a person "procures" a grand jury indictment by providing public officials with information of another's supposed criminal conduct and that was the essence of the allegation. Matthews v United States (ED Wis, 1992) 805 F Supp 712. Civil Code section requiring party to petition for judicial determination of reasonable probability of prevailing as condition precedent to filing action against attorney for conspiring with client based on attorney's representation does not apply to a malicious prosecution action against an attorney who is alleged to have prosecuted a claim without probable cause and adequate investigation and which any reasonable attorney would have recognized as untenable. California Civil Code 1714.10. Westamco Investment Co. v. Lee, 69 Cal. App. 4th 481, 81 Cal. Rptr. 2d 634 (2d Dist. 1999), review denied, (Apr. 14, 1999); West's Key Number Digest, Malicious Prosecution 39. Abuse of process is not just another name for malicious prosecution. Simply filing or maintaining a lawsuit for an improper purpose, such as might support a malicious prosecution cause of action, is not abuse of process. Malicious

prosecution and abuse of process are distinct. Malicious prosecution concerns a meritless lawsuit and all the damage it inflicted. Abuse of process concerns the misuse of the tools the law affords litigants once they are in a lawsuit, regardless of whether there was probable cause to commence the lawsuit in the first place. Bidna v Rosen (1993, 4th Dist) 19 Cal App 4th 27, 23 Cal Rptr 2d 251, 93 CDOS 7354, 93 Daily Journal DAR 12461, review den (Dec 30, 1993). Even though the tort of malicious prosecution and the tort of abuse of process have different elements, in some situations the same facts which may constitute an abuse of process may also support an action for malicious prosecution and, in such a case, a consideration of whether probable cause was present to bring the underlying litigation would be the key to determining under which tort theory the action should proceed. Yaklevich v Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio St. 3d 294, 626 NE2d 115. Even though tort of malicious prosecution and tort of abuse of process have different elements, in some situations same elements which may constitute abuse of process may also support action for malicious prosecution, in which case complaint could allege both causes of action in separate counts; in such situation, consideration of whether probable cause was present to bring underlying litigation would be key to determining under which tort theory action should proceed. Kremer v. Cox, 114 Ohio App. 3d 41, 682 N.E.2d 1006 (9th Dist.Summit County 1996), dismissed, appeal not allowed, 77 Ohio St. 3d 1519, 674 N.E.2d 372 (1997). The distinction between malicious use of civil process and abuse of process is that malicious use of civil process has to do with the wrongful initiation of such process, while abuse of civil process is concerned with a perversion of the process after it has been issued. M.W. Farmer & Co. v Runner (1995 Pa) 23 D & C4th 230, review pending (Apr 13, 1995). Employee's negligence claim against employer arising from prosecution for theft was dismissed where employer signed affidavit implicating employee in theft, based upon corroborating statement of other employees involved in under-ringing scheme, because the gist of the employee's negligence claim was to recover for injuries and damages caused by prosecution for theft and sufficient evidence supported jury finding that theft prosecution was instituted with probable cause; the damages sought clearly fall within the scope of malicious prosecution and public policy considerations preclude the application of negligence principles. Wal-Mart Stores, Inc. v Medina (1991, Tex App Corpus Christi) 814 SW2d 71, writ den (Feb 12, 1992) and rehg of writ of error overr (Mar 25, 1992). IIED: A mere allegation of improper filing of a lawsuit or the improper use of legal process against an individual does not state a claim for outrageous or intolerable conduct and, as such, is not redressable by a cause of action for intentional infliction of emotional distress. Anderson Development Co. v. Tobias, 2005 UT 36, 116 P.3d 323 (Utah 2005); West's Key Number Digest, Damages 57.22. [Top of Section] [END OF SUPPLEMENT]

 2.5. Anti-SLAPP statutes [Cumulative Supplement]

CUMULATIVE SUPPLEMENT Cases: The hallmark of a "SLAPP suit" within meaning of California's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute is that it lacks merit, and is brought with the goals of obtaining an economic advantage over a citizen party by increasing the cost of litigation to the point that the citizen party's case will be weakened or abandoned, and of deterring future litigation. California Code of Civil Procedure 425.16. U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963 (9th Cir. 1999); West's Key Number Digest, Pleading 358. Legislative purpose: Because meritless strategic lawsuits against public participation (SLAPP suits) seek to deplete defendant's energy and drain his or her resources, the Legislature sought to prevent SLAPP suits by ending them early and without great cost to the SLAPP target, and so enacted the anti-SLAPP statute, which establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary judgment-like procedure at an early stage of the litigation, in order to limit the costs of defending against such a lawsuit. West's Ann.Cal.C.C.P. 425.16. Varian Medical Systems, Inc. v. Delfino, 35 Cal. 4th 180, 25 Cal. Rptr. 3d 298, 106 P.3d 958, 33 Media L. Rep. (BNA) 1396 (2005); West's Key Number Digest, Pleading 358. Under anti-SLAPP (strategic lawsuit against public participation) statute, the party moving to strike a cause of action has the initial burden to show that the cause of action arises from an act in furtherance of the moving party's right of petition or free speech, and once that burden is met, the burden shifts to the opposing party to demonstrate the probability that the plaintiff will prevail on the claim. West's Ann.Cal.C.C.P. 425.16(b)(1). Zamos v. Stroud, 32 Cal. 4th 958, 12 Cal. Rptr. 3d 54, 87 P.3d 802 (2004), as modified, (June 9, 2004); West's Key Number Digest, Mandamus 360. When an anti-SLAPP (strategic lawsuit against public participation) defendant has met its initial burden of proof, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited, which is a question of law. West's Ann.Cal.C.C.P. 425.16(b)(1). Zamos v. Stroud, 32 Cal. 4th 958, 12 Cal. Rptr. 3d 54, 87 P.3d 802 (2004), as modified, (June 9, 2004); West's Key Number Digest, Mandamus 360. Defendant moving specially under the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute to strike a cause of action arising from a statement made before, or in connection with an issue under consideration by, a legally authorized official proceeding is not required to demonstrate separately that the

statement concerned an issue of public significance; under the plain terms of the statute, it is the context or setting itself that makes the issue a public issue. California Code of Civil Procedure 425.16. Briggs v. Eden Council for Hope and Opportunity, 19 Cal. 4th 1106, 81 Cal. Rptr. 2d 471, 969 P.2d 564 (1999); West's Key Number Digest, Pleading 358. Priest, who was named successor trustee of aged widow's trust, showed reasonable probability of proving former trust beneficiary's statement, impugning priest's motives for helping widow, was false so as to defeat beneficiary's motion to strike priest's slander action under anti-SLAPP (strategic lawsuit against public participation) statute; priest had been helping widow for two years before trust was changed, priest had expended his own money on widow's needs, and widow was not subject to undue influence when she changed trust. West's Ann.Cal.C.C.P. 425.16. Gallagher v. Connell, 123 Cal. App. 4th 1260, 20 Cal. Rptr. 3d 673 (2d Dist. 2004); West's Key Number Digest, Mandamus 358. A special motion to strike under anti-SLAPP (strategic lawsuit against public participation) statute may be filed in response to a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights. U.S.C.A. Const.Amend. 1; West's Ann.Cal.C.C.P. 425.16. Soukup v. Stock, 15 Cal. Rptr. 3d 303 (Cal. App. 2d Dist. 2004), as modified on denial of reh'g, (June 21, 2004) and review granted and opinion superseded, 20 Cal. Rptr. 3d 175, 99 P.3d 499 (Cal. 2004); West's Key Number Digest, Mandamus 358. Probability of prevailing: In order to establish probability of prevailing on claim subject to dismissal under anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute, a plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. West's Ann.Cal.C.C.P. 425.16(b)(1). Colt v. Freedom Communications, Inc., 109 Cal. App. 4th 1551, 1 Cal. Rptr. 3d 245 (4th Dist. 2003), review denied, (Sept. 24, 2003); West's Key Number Digest, Pleading 360. Breast enlargement not "matter of public interest": Product offer for breast enlargement through dietary supplements did not address "matter of public interest," and thus did not merit anti-SLAPP protection (strategic lawsuits against public participation) when the product manufacturer was sued for making false claims; manufacturer argued that dietary supplements and other forms of complementary medicine were matters of public interest, but the manufacturer was speaking about neither dietary supplements in general nor serious medical conditions, and the notion that all commercial statements about supplements deserved anti-SLAPP protection as general statements about supplements was absurd. West's Ann.Cal.C.C.P. 425.16(b)(1-3), (e); West's Ann.Cal.Civ.Code 1770(a)(5); West's Ann.Cal.Bus. & Prof.Code 17200 et seq. Consumer Justice Center v. Trimedica International, Inc., 107 Cal. App. 4th 595, 132 Cal. Rptr. 2d 191 (4th Dist. 2003), review denied, (June 11, 2003); West's Key Number Digest, Torts 14. The Strategic Lawsuits Against Public Participation (anti-SLAPP) statute does not apply in every case where the defendant may be able to raise a First Amendment defense to a cause of action; rather, it is limited to exposing and dismissing SLAPP suits, that is, lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances in connection with a public issue. U.S.C.A. Const.Amend. 1; West's

Ann.Cal.C.C.P. 425.16(a, b). Paul v. Friedman, 95 Cal. App. 4th 853, 117 Cal. Rptr. 2d 82 (2d Dist. 2002), review denied, (May 15, 2002); West's Key Number Digest, Torts 14. Defendant in an alleged Strategic Lawsuit Against Public Participation (SLAPP) suit bears the initial burden of showing the suit falls within the class of suits subject to a motion to strike under the statute governing SLAPP suits. West's Ann.Cal.C.C.P. 425.16. Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal. App. 4th 294, 106 Cal. Rptr. 2d 906 (2d Dist. 2001); West's Key Number Digest, Pleading 360. The verification requirement of the anti-SLAPP (Strategic Lawsuits Against Public Participation) statute is procedural in nature in that verifications must contain certain assertions and must be filed within a certain time, but is also substantive in nature in that to determine whether the requirements of the statute have been met, the court must take a substantive look at the verification offered to ensure that the underlying lawsuit has not been initiated for an improper purpose. West's Ga.Code Ann. 9-11-11.1(b). Harkins v. Atlanta Humane Society, 264 Ga. App. 356, 590 S.E.2d 737 (2003), cert. granted, (Mar. 29, 2004) and aff'd in part, rev'd in part and remanded, 603 S.E.2d 289 (Ga. 2004); West's Key Number Digest, Mandamus 301(1). The typical mischief that the Strategic Lawsuit Against Public Participation (SLAPP) legislation intended to remedy were lawsuits directed at individual citizens of modest means for speaking publicly against development projects. M.G.L.A. c. 231, 59H. Office One, Inc. v. Lopez, 437 Mass. 113, 769 N.E.2d 749 (2002); West's Key Number Digest, Torts 14. Statute banning suits based on petitioning activity (anti-SLAPP statute) provides broad protections for individuals who exercise their right to petition from harassing litigation and the costs and burdens of defending against retaliatory lawsuits; in this regard, it is similar in purpose to the protections afforded public officials by the doctrine of governmental immunity. M.G.L.A. c. 231, 59H. Fabre v. Walton, 436 Mass. 517, 766 N.E.2d 474 (2002); West's Key Number Digest, Torts 14. Even if true, allegation by owner of island property that he was not a developer, but an individual operating an environmentally friendly tree farm, and that nonprofit bird observatory was a wealthy and politically well-connected environmental organization, did not, without more, foreclose special motion by observatory to dismiss as a strategic lawsuit against public participation (SLAPP) owner's action against observatory for tortious interference with his application to construct pier, brought based on comments by observatory's staff biologist to state and federal agencies. M.G.L.A. c. 231, 59H. Baker v. Parsons, 434 Mass. 543, 750 N.E.2d 953 (2001); West's Key Number Digest, Pleading 358. An attorney who is sued for voicing the positions of a petitioning client may bring a special motion to dismiss under the anti-SLAPP (strategic lawsuit against public participation) statute. M.G.L.A. c. 231, 59H. Plante v. Wylie, 63 Mass. App. Ct. 151, 824 N.E.2d 461 (2005), review denied, 444 Mass. 1103, 826 N.E.2d 202 (2005); West's Key Number Digest, Pleading 358.

Although the anti-SLAPP (strategic lawsuit against public participation) statute can have broader application, the typical mischief that the legislation intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly against development projects. M.G.L.A. c. 231, 59H. Plante v. Wylie, 63 Mass. App. Ct. 151, 824 N.E.2d 461 (2005), review denied, 444 Mass. 1103, 826 N.E.2d 202 (2005); West's Key Number Digest, Pleading 358. To assert protection for its petitioning activities under anti-strategic lawsuit against public participation (anti-SLAPP) statute, special movant must make a threshold showing, through pleadings and affidavits, that claims against it are based on the petitioning activities alone, and have no substantial basis other than or in addition to the petitioning activities; once special movant so demonstrates, the burden shifts to the nonmoving party to show that (1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party. Massachusetts General Laws Ch 231 59H. Vittands v. Sudduth, 49 Mass. App. Ct. 401, 730 N.E.2d 325 (2000); West's Key Number Digest, Pleading 358. [Top of Section] [END OF SUPPLEMENT] 3. Elements of action for malicious prosecution [Cumulative Supplement]

There is general agreement among the courts concerning the elements of an action for malicious prosecution, although these elements have been stated in varying ways. Under what is perhaps the most common classification, six elements must be shown to successfully maintain an action. The plaintiff must prove: (1) the institution or continuation of a legal proceeding, either civil or criminal, or an administrative or disciplinary proceeding, against the plaintiff; (2) by, at the instance of, or abetted by, the defendant; (3) the termination of such prior proceeding in the plaintiff's favor; (4) the absence of probable cause for institution of the prior proceeding; (5) malice as a primary purpose for that proceeding; and (6) some injury or damage to the plaintiff as a result of the prior proceeding.[FN17] Some courts have defined malicious prosecution as consisting of three elements, by combining the first three elements mentioned above and omitting damages as an element.[FN18] Such a formulation is substantially the same as the six-element formulation, since without damages there would be nothing to recover. Although the elements of a cause of action for malicious prosecution based on a civil suit are substantially the same as those for one based on a criminal prosecution, there are differences in the evidence necessary to make out the elements, particularly with reference to damages. For example, in an action based

on a criminal prosecution, mental suffering generally is considered an element of general damages, and no special pleading or proof is required, whereas in a civil action the plaintiff generally must prove all damages in excess of actual pecuniary loss.[FN19] Furthermore, a large minority of American jurisdictions require some type of special injury when the action is based on civil proceedings.[FN20] CUMULATIVE SUPPLEMENT Cases: For purposes of a malicious prosecution claim, the question of whether a prior action was legally tenable goes to the issue of probable cause, that is, whether the defendant had an honest and reasonable belief in the truth of the allegations. Whether a prior action was terminated favorably tends to show the innocence of the defendant in the prior action, and is not affected by the objective tenability of the claim. These two elements of the malicious prosecution tort serve different purposes, and the legal tenability of the underlying action is not the standard by which to judge whether the action was terminated in the plaintiff's favor. Although the two elements are different and serve different purposes, the different purposes are not facilitated by defining the term "prior action" one way for purposes of the favorable termination element. It is the same prior action that must have been brought without probable cause and that must have terminated in the malicious prosecution plaintiff's favor. Crowley v Katleman (1993, 2nd Dist) 21 Cal App 4th 1081. The essential elements of the tort of malicious prosecution are the same in both the criminal and the civil contexts. In order to establish a cause of action for malicious prosecution, a plaintiff must plead and prove that a prior proceeding, commenced by or at the direction of the malicious prosecution defendant, was pursued to a legal termination favorable to the plaintiff, brought without probable cause, and initiated with malice. Villa v Cole (1992, 1st Dist) 4 Cal App 4th 1327, 6 Cal Rptr 2d 644, 92 CDOS 2924. Where plaintiffs merely alleged that each defendant "initiated the aforesaid proceedings with malicious intent and without probable cause" but did not allege facts to support this conclusion and therefore failed to plead facts to support each element of malicious prosecution, they failed to state a cause of action. Misselhorn v Doyle (1994, 5th Dist) 257 Ill App 3d 983, 195 Ill Dec 881, 629 NE2d 189. A plaintiff must establish four elements to support a malicious prosecution claim: (1) defendant initiated the earlier proceeding; (2) malice on the part of defendant in doing so; (3) lack of probable cause for the initiation of the earlier proceeding; and (4) termination of the earlier proceeding in favor of the plaintiff. Best v Duke Univ. (1994) 337 NC 742, 448 SE2d 506. In Raymond U v Duke University (1988) 91 NC App 171, 371 SE2d 701, review den 323 NC 629, 374 SE2d 590, it was held that the evidence was insufficient to sustain a finding that a university employer had acted unreasonably in attempting to recover parts of a machine used to treat cancer patients that had allegedly been taken by an employee. The employee's subsequent claim for malicious prosecution did not

present an issue for the jury, where there was insufficient proof of lack of probable cause. Even though it was unclear whether either party had an exclusive right to the use and control of the machine, the university had acted reasonably in employing a procedure for a quick, definite resolution of the dispute, in light of the fact that patients depended upon the operation of the machine for their treatment. [Top of Section] [END OF SUPPLEMENT] 3.5. Multiple malicious prosecutions [Cumulative Supplement]

CUMULATIVE SUPPLEMENT Cases: Statute clarifying that anti-SLAPP (strategic lawsuit against public participation) statute does not apply to cause of action against party primarily engaged in business of selling or leasing goods or services does not violate equal protection; statute does not create impermissible classifications among those who utter constitutionally protected speech, but instead creates classifications of litigants who can take advantage of the anti-SLAPP statute, which is rationally related to legitimate purpose of preventing commercial defendants from abusing anti-SLAPP suit statute. U.S.C.A. Const.Amends. 1, 14; West's Ann.Cal. Const. Art. 1, 7; West's Ann.Cal.C.C.P. 425.16, 425.17. Metcalf v. U-Haul Intern., Inc., 118 Cal. App. 4th 1261, 13 Cal. Rptr. 3d 686 (4th Dist. 2004); West's Key Number Digest, Mandamus 249(1). In an action by a vendor of real property against the purchaser's attorneys, averments in the complaint that the attorneys, with knowledge that their client had defaulted in his agreement to purchase, acted to prevent the vendor from selling to a third person and to force the vendor to deal with the defaulting purchaser by subjecting the property to encumbering litigation, was sufficient to cause a state of action for wrongful use of civil process under 42 Pa CS 8351(a). Moreover, averments that, when the state court action was about to be heard, the attorneys discontinued the action and started a new action in the federal courts and again caused it to be marked as lis pendens, were sufficient to permit an inference of intent to harass, if this was done without probable cause to bring the underlying action. Kelly-Springfield Tire Co. v D'Ambro (1991) 408 Pa Super 301, 596 A2d 867. [Top of Section] [END OF SUPPLEMENT]

 4. Proceedings on which action may be based--Criminal proceedings [Cumulative Supplement]

The tort of malicious prosecution was originally limited to the instigation of criminal proceedings, and it is uniformly agreed that the malicious institution of unfounded criminal proceedings will give rise to a cause of action for malicious prosecution.[FN21] An action will lie regardless of whether the crime charged was a felony or a misdemeanor and whether the plaintiff was actually tried or even indicted, provided that criminal proceedings were actually instituted in some manner. Thus, for example, the instigation of criminal proceedings in an effort to collect a debt may constitute malicious prosecution, although the defendant abandoned the prior prosecution and the plaintiff was never actually tried.[FN22] A person may also recover damages for the malicious instigation of quasi-criminal proceedings, such as a hearing initiated for the purpose of requiring the plaintiff to post a bond to keep the peace.[FN23] The malicious institution of extradition proceedings against the plaintiff, without probable cause to believe that the plaintiff is a fugitive from justice, will also support an action for malicious prosecution.[FN24] A person may also recover damages from one who maliciously and without probable cause procures the issuance of a search warrant directed against the plaintiff. Although there is some apparent disagreement as to whether such an action is one for malicious prosecution, it is clear that the elements of such an action are the same as the elements of an action for malicious prosecution.[FN25] CUMULATIVE SUPPLEMENT Cases: False police report: Mere filing of false police reports, by themselves, does not create right of action in damages under 1983; however, if action is taken on basis of false police report, plaintiff's constitutional rights may then be violated and 1983 action may lie. 42 U.S.C.A. 1983. Wilson v. Lyons, 270 F. Supp. 2d 73 (D. Me. 2003); West's Key Number Digest, Civil Rights 1088(1). Hyde Amendment: In deciding, in prior criminal proceeding, that corporation and its owner had failed to satisfy first part of Hyde Amendment test of vexatiousness, in that government's prosecution under Clean Water Act (CWA) did not lack legal merit or factual foundation, Court of Appeals did not hold that government had probable cause to prosecute corporation and owner, and therefore res judicata did not apply to prevent corporation and owner from contending that government lacked probable cause in support of malicious prosecution claim against government under Federal Tort Claims Act (FTCA) and Massachusetts law. 18 U.S.C.A. 3006A; 28 U.S.C.A. 1346, 2671 et seq; Federal Water Pollution Control Act Amendments of 1972, 309(c)(2)(A), as amended, 33 U.S.C.A. 1319(c)(2)(A). Riverdale Mills Corp. v. U.S., 337 F. Supp. 2d 247 (D. Mass. 2004), rev'd and remanded, 392 F.3d 55, 59 Env't. Rep. Cas. (BNA) 1801, 35 Envtl. L. Rep. 20004

(1st Cir. 2004); West's Key Number Digest, Mandamus 559. Police officers had probable cause to charge malicious prosecution claimant with perjury, precluding malicious prosecution claim; claimant testified in accident case that he was member of Green Berets and served in Vietnam for over four years, testimony that was material to establish his credibility as person with sufficient mapping skills to sketch accident site, review of army records indicated that claimant was never in Green Berets and served much less time in Vietnam, and records were reviewed by army officer to establish they were complete. New York Penal Law 210.15. Pritzker v. City of Hudson, 47 F. Supp. 2d 303 (N.D.N.Y. 1999); West's Key Number Digest, Malicious Prosecution 18(2). Initiation of prosecution without probable cause is evidence that there was improper purpose behind prosecution; thus in action for malicious prosecution by election poll watcher against deputy sheriffs who arrested her for assault and resisting arrest, trial court's finding that deputies had no reasonable basis for believing they had probable cause to make warrantless arrest was sufficient to create jury issue as to whether there was illegitimate purpose behind prosecution of poll watcher so as to deprive deputies of defense of qualified immunity, even in absence of any specific evidence that proceedings were initiated for improper purpose. Shoop v Dauphin County (1991, MD Pa) 766 F Supp 1327 (applying Pa law). Police officer who arrested shoplifter and accepted shoplifter's false identification of himself as his cousin, which ultimately led to arrest of cousin upon bench warrant when shoplifter did not show up for trial, was not liable to cousin for malicious prosecution, since officer had probable cause to believe that shoplifter was who he claimed to be, and there was no evidence that officer acted with malice or a motive other than to bring the offender to justice. Green v. Brooks, 125 Md. App. 349, 725 A.2d 596 (1999); West's Key Number Digest, Malicious Prosecution 20. Rape complainant as proximate and efficient cause of criminal prosecution: Alleged rape victim's knowledge of crime and institution of criminal proceedings for it extended beyond mere passive knowledge of, or acquiescence or consent in, acts of investigator in filing rape charge, in suit for malicious prosecution, as victim was proximate and efficient cause of putting law into motion and, thus, was liable for instigation of criminal proceeding, where victim was only person who had actual knowledge of occurrence of crime, other than alleged rapist, and sheriff's investigator relied on her statement, as well as on statements of party guests, which were all based on what victim had said to them; it was just as much within victim's power to instigate proceedings as it was within it to terminate them, as she did. (Per Lee, J., with three judges concurring, and one judge concurring in result only). Hammack v. Czaja, 769 So. 2d 847 (Miss. Ct. App. 2000); West's Key Number Digest, Malicious Prosecution 3. Property owner had legally tenable grounds to charge holder of local water rights, who crossed property to reach sand trap which was part of aqueduct system, with criminal trespass, and thus, holder, who was acquitted of charges, could not establish lack of probable cause, as required to recover on malicious prosecution claim; subsequent determination was made that no easement by prescription existed as to route used by holder, and even if easement was found to exist, lack of prior record of it or judicial recognition would satisfy probable cause requirement. Jordan v. Bailey, 944 P.2d 828 (Nev. 1997).

[Top of Section] [END OF SUPPLEMENT] 5. Proceedings on which action may be based--Civil action [Cumulative Supplement]

The tort of malicious prosecution has been extended to the wrongful instigation of civil proceedings, but there is a sharp difference of opinion as to the conditions necessary to the maintenance of an action for malicious prosecution of a civil suit.[FN26] Under one line of authority, which appears to represent the majority rule in the United States, the malicious prosecution of a civil action without probable cause constitutes a legal wrong, for the redress of which an action for malicious prosecution may be brought. Jurisdictions following this rule allow recovery even if the plaintiff was not arrested and his property was not interfered with in the course of the prior proceeding.[FN27] A large minority of American jurisdictions require that, before an action for malicious prosecution of a civil suit can be maintained, there must have been some direct interference with the person, such as an arrest, some interference with his property rights, such as a seizure of property, or some other injury to the plaintiff which is not a necessary result of all similar prosecutions.[FN28] In support of this rule, which has been called the special injury and the English rule,[FN29] it has been argued that the courts should be kept available for all citizens, and that in the ordinary civil action the only penalty an unsuccessful plaintiff should be subject to is that of costs of suit.[FN30] It has also been pointed out that malicious prosecution arose largely as a protection against the damage to a person's reputation caused by the instigation of unfounded criminal proceedings. Since most civil suits, even if maliciously instituted, do not harm a person's reputation, it has been argued that there should be no recovery for the malicious instigation of ordinary civil actions. However, if the civil action carries defamatory implications, then recovery should be allowed consistent with the defamation basis underlying malicious criminal prosecution.[FN31] Although some jurisdictions following the minority rule apparently allow recovery for malicious institution of a civil suit only where there are defamatory implications, such as allegations of bankruptcy or lunacy, most jurisdictions interpret the special injury rule more broadly.[FN32] Thus, most states following the English rule will allow a recovery if, incident to the civil action, the defendant in that action was in any way deprived of his liberty, or if his property was interfered with. For example, recovery may be allowed where property was garnished or attached, where possession or use of property was interfered with by means of injunction, or where the plaintiff was arrested by means of civil process.[FN33]

The malicious institution of involuntary bankruptcy, insolvency, or receivership proceedings has frequently been relied on as grounds for recovery in a later action for malicious prosecution, and the courts are uniformly agreed that in a proper case the person subjected to such proceedings may recover damages.[FN34] However, there is some conflict of authority as to whether there must be an actual seizure of the alleged bankrupt's property. Under the majority rule, the mere institution with malice and without probable cause of bankruptcy or similar proceedings may support an action for malicious prosecution. This rule is followed even by some jurisdictions adhering to the special injury rule, on the ground that bankruptcy proceedings effectively prevent the alleged bankrupt from disposing of his property, whether it is actually seized or not.[FN35] However, some courts have held that there must be some seizure of property, appointment of a receiver, or similar action, and it has been held that the petition for involuntary bankruptcy itself does not constitute a seizure.[FN36] The wrongful institution of insanity, civil commitment or some similar proceeding also has been frequently considered by the courts. The institution of such a proceeding, maliciously and without probable cause to believe the person insane or incompetent, is uniformly recognized as a basis for an action for malicious prosecution, whether or not the allegedly insane person was ever actually arrested or restrained of his liberty. Even jurisdictions following the special injury rule in other civil actions do not require any actual deprivation of freedom, since an insanity proceeding is not an ordinary civil action, but more closely resembles a criminal action in its purposes and consequences.[FN37] Since a person may be stigmatized by insanity or commitment proceedings, even if successfully ended, the courts are more liberal in actions for malicious prosecution of such proceedings.[FN38] CUMULATIVE SUPPLEMENT Cases: Malicious-prosecution action may be based on unfounded civil action to have person declared insane. Rushing v Bosse (1995, Fla App D4) 652 So 2d 869, 20 FLW D 583. [Top of Section] [END OF SUPPLEMENT] 6. Proceedings on which action may be based--Cross complaint or counterclaim [Cumulative Supplement]

An action for malicious prosecution may be based on the filing of a cross complaint, counterclaim, or related action, maliciously and without probable cause, by a defendant in an action originally instituted by the plaintiff.[FN39] In support of such a rule, it has been pointed out that the harm caused by the malicious filing of a cross-pleading seeking affirmative relief is substantially the same as that caused by the malicious filing of an original complaint.

Furthermore, a cross-pleading institutes a separate and independent cause of action and subjects the cross-defendant to potential liability and to mental and emotional distress, even if the counterclaim is intimately related to the cause of action alleged in the original complaint.[FN40] However, an action for malicious prosecution may not be based on the fact that the defendant in the original proceeding interposed a malicious defense to the plaintiff's rightful claim, since a defendant has the right to present any defense that he deems expedient.[FN41] Thus, the courts have refused to recognize the existence of a tort of malicious defense.[FN42] An action for malicious prosecution may not be asserted by way of a cross-pleading in the original proceeding, since an essential element of the cause of action is the prior termination in favor of the plaintiff in the malicious prosecution action.[FN43] CUMULATIVE SUPPLEMENT Cases: In Shore, Shirley & Co. v Kelley (1988, Cuyahoga Co) 40 Ohio App 3d 10, 531 NE2d 333, motion overr 37 Ohio St 3d 714, 532 NE2d 766, it was held that the evidence was sufficient to support a determination of malicious prosecution. Former clients of an accounting firm were found to have acted with actual malice, with malice implied at law, and without probable cause in filing a $15,000,000 malpractice counterclaim against the accounting firm. The evidence supported an inference that the counterclaim had no legitimate basis in fact or law, and was, at best, a vexatious ruse designed to avoid payment of a legitimate debt, where there had been no effort on the client's part to prosecute their counterclaim, and where they had cavalierly refrained from participating in the legal proceedings they had intitiated. However, if a prior criminal proceeding has been terminated in favor of the defendant therein, a counterclaim for malicious prosecution may be filed in a subsequent civil action filed against the defendant in the criminal action and arising out of the same series of events. Shippers' Best Express, Inc. v Newsom (Utah) 579 P2d 1316. Common law element of malicious prosecution claim under which plaintiff was required to prove that the proceedings ended on the merits in favor of the plaintiff, or were abandoned, was abrogated by statute which permits defendant to assert a counterclaim for malicious prosecution; such counterclaims are permitted in the interests of judicial economy, and to protect defendants from meritless attacks. West's RCWA 4.24.350. Hanson v. Estell, 100 Wash. App. 281, 997 P.2d 426 (Div. 3 2000); West's Key Number Digest, Malicious Prosecution 34. [Top of Section] [END OF SUPPLEMENT]

 7. Proceedings on which action may be based--Administrative and disciplinary proceedings [Cumulative Supplement]

It is now widely accepted that the initiation of proceedings before an administrative board, which has power to take action adversely affecting the rights of the person proceeded against, may form the basis of a subsequent action for malicious prosecution.[FN44] Similarly, it is generally accepted that the malicious instigation of disciplinary proceedings against a person gives rise to a cause of action for malicious prosecution against the person initiating such proceedings.[FN45] In support of the extension of the tort of malicious prosecution to proceedings before administrative and disciplinary bodies, the courts have pointed out that administrative agencies now have jurisdiction over many matters formerly restricted to courts, and that many administrative bodies have the power to impose penal sanctions or take other actions involving the private rights of persons.[FN46] The same harmful results may flow from the malicious institution of administrative proceedings as from the malicious instigation of judicial proceedings, and a person's right of recovery should not be dependent on the form of the proceeding in which the injury is inflicted.[FN47] Thus, it has been held that the requirement of a prior judicial proceeding is not to be construed in a strict technical sense, and that administrative proceedings are quasi-judicial to the extent necessary to form the basis for an action for malicious prosecution.[FN48] Malicious prosecution actions based on the instigation of administrative proceedings generally are covered by the rules applicable to actions based on the initiation of civil suits. Thus, jurisdictions following the special injury rule generally apply it in such cases.[FN49] It has been argued that the rules governing malicious prosecution actions based on criminal suits should be applied to actions based on administrative suits on the ground that criminal and administrative proceedings are basically similar in purpose, in that both involve the protection of a public, rather than private, interest, and both essentially involve a charge that the person has violated some public interest. However, the courts, while recognizing the penal consequences which sometimes flow from administrative proceedings, have still applied the rules applicable to civil suits.[FN50] Where an administrative agency has withheld a license from a person, such action might constitute the special injury necessary to maintenance of a malicious prosecution action.[FN51] It has been specifically recognized by some courts, and apparently assumed by other courts, that an attorney may maintain an action to recover damages resulting from the malicious institution of disciplinary or disbarment proceedings against him.[FN52] However, in at least one case it was held that a complaint made by a former client to a bar grievance committee was absolutely privileged as a matter of public policy, and that the attorney could not maintain an action for malicious prosecution based on the resulting disciplinary proceedings, which were dismissed.[FN53]

Although there are few cases considering the question, it appears to be accepted that the malicious instigation of disciplinary proceedings against a member of the medical or an allied profession also may form the basis for an action for malicious prosecution.[FN54] Thus, it was held that a pharmacist could maintain an action for malicious prosecution, where the defendant had filed a complaint against the pharmacist which resulted in a hearing before the Board of Pharmacy, an administrative agency empowered to revoke the pharmacist's license or fine her, which hearing resulted in the pharmacist being exonerated.[FN55] CUMULATIVE SUPPLEMENT Note: See also Proof that a Professional Licensee is Immune from Civil Prosecution and Civil Damages as a Result of the Licensee's Filing a Complaint Against Another License Holder, 69 Am. Jur. Proof of Facts 3d 343. Cases: City building official had probable cause to issue notice of violation against property owner for erecting bird feeder without obtaining city permit and, thus, owner failed to state malicious prosecution claim against inspector; although court later determined that city council did not intend to cover bird feeders in ordinance prohibiting construction of structures without obtaining building permits, bird feeder which stood approximately six feet tall fell within literal definition of ordinance. Levy v. Alfano, 47 F. Supp. 2d 488 (S.D.N.Y. 1999); West's Key Number Digest, Malicious Prosecution 18(1). Denial of hospital staff privilegesspecial rule: There are public policy reasons for not setting an unduly high standard of probable cause for the denial or revocation of hospital privileges. Thus, in a dentist's action against a hospital and several of its physicians for malicious prosecution of an administrative proceeding to suspend his oral surgery privileges, defendants' actions were objectively reasonable as a matter of law and, thus, were supported by probable cause, even though its initial decision to suspend privileges was reversed by its judicial review committee. The hospital had undertaken repeated review of the dentist's performance, specifically considering medical reports and identifying eight specific areas of concern, and it had obtained the report of an outside consultant, prior to deciding to deny privileges. Were the focus of the propriety of a hospital's actions placed on the final result of the proceedings initiated, rather than their inception, it would have a devastating effect on a hospital's willingness to make the hard choices necessary to protect patient safety. Nicholson v Lucas (1994, 5th Dist) 21 Cal App 4th 1657, 26 Cal Rptr 2d 778, 94 CDOS 568, 94 Daily Journal DAR 885. In a dentist's action against a hospital and several of its physicians for malicious prosecution of an administrative proceeding to suspend his oral surgery privileges, the trial court erroneously determined that no administrative proceeding against the dentist had been initiated. The hospital's letter to the dentist stated its decision to accept the recommendation of the surgical supervisory committee to delete all proctored privileges previously assigned to the dentist, with the exception of dental extractions. This was a denial of requested clinical privileges, entitling him to a hearing before the hospital's

judicial review committee. Under the hospital's bylaws, unless the dentist challenged this determination by filing a written request for a hearing within 15 days of receipt of notice, it would become final and binding. Moreover, the surgical supervisory committee's minutes provided that a letter of notice had been sent to the dentist indicating the start of the 15-day appeal process. Thus, the committee's decision to delete his privileges constituted the initiation of an administrative proceeding. Nicholson v Lucas (1994, 5th Dist) 21 Cal App 4th 1657, 26 Cal Rptr 2d 778, 94 CDOS 568, 94 Daily Journal DAR 885. Complaint against attorney: An individual who files a complaint against an attorney and makes no public announcement of the complaint, thereby allowing the grievance procedure to run its natural course, is afforded absolute immunity from a defamation action by the complained-against attorney; however, if, after filing a complaint, the complainant comments publicly or outside the grievance process, then the afforded immunity ceases to exist. West's F.S.A. Bar Rule 3-7.1. Tobkin v. Jarboe, 710 So. 2d 975 (Fla. 1998). Child abuse report: Doctor, who was not accused of malpractice, had reasonable suspicion of child abuse justifying report of mother to Child Protective Services (CPS), precluding mother's malicious prosecution claim, where doctor was faced with an infant who had suddenly lapsed into a life-threatening coma and concluded the child's lungs appeared healthy and would not explain respiratory failure, she was told by other doctors that, in their opinion, the circumstances of the child's illness were suspicious, she was told that another doctor had contacted CPS based on his suspicions, and she observed child's medical records which suggested mother was not forthcoming with information, had disregarded prior medical advice, and was the only person present when the child suffered his attacks. Alvarez v. Anesthesiology Associates, 967 S.W.2d 871 (Tex. App. Corpus Christi 1998), reh'g overruled, (May 28, 1998). [Top of Section] [END OF SUPPLEMENT] 8. Defendant's responsibility for institution of prior proceeding; persons liable [Cumulative Supplement]

In an action for malicious prosecution, whether based on a criminal, civil, administrative, or disciplinary proceeding, the plaintiff must show that the prior proceeding was actually commenced in some way and that the defendant was responsible therefor. Generally, any person who instigates or aids in the instigation of judicial proceedings, with malice and without probable cause, is liable for the injuries caused; however, some persons are accorded immunity by reason of their public office. To successfully maintain an action for malicious prosecution, the plaintiff must prove that the prior proceeding on which he relies was actually commenced; neither

a threat to prosecute nor an unsuccessful attempt to initiate proceedings constitutes malicious prosecution. However, since the steps necessary to commence an action differ from jurisdiction to jurisdiction, the decisions are in conflict as to what constitutes the actual commencement of a proceeding.[FN56] With respect to criminal proceedings, in some jurisdictions the mere filing of an affidavit or a complaint, without more, may be sufficient to constitute commencement of a proceeding. In other jurisdictions, a proceeding may not be commenced until some process, such as a summons, is issued. Under either of the above views, the plaintiff need not prove that he was actually arrested, the mere filing of the criminal charge being sufficient injury to support an action for malicious prosecution. However, in other jurisdictions the plaintiff must actually have been arrested before he can recover for malicious prosecution.[FN57] For purposes of an action for malicious prosecution, proof that the plaintiff was actually arrested and imprisoned is clearly sufficient to prove institution of proceedings, provided the warrant was valid.[FN58] There is a conflict, however, as to whether an action for malicious prosecution may be maintained where the formal criminal accusation was legally defective, in that either it did not charge an offense or it failed to aver all the necessary elements of the offense charged. The majority view is that in such a case an action for malicious prosecution will lie, regardless of the deficiency in the formal accusation. The minority view is that no cause of action for malicious prosecution exists, since no prosecution ever legally existed; under this view, the plaintiff is relegated to an action in trespass against the prosecutor. Where the formal accusation contains defects that are merely technical or formal, it is uniformly agreed that there has been a commencement of proceedings sufficient to support an action for malicious prosecution.[FN59] There are also different views as to what constitutes commencement of a civil proceeding. In some jurisdictions the mere issuance of civil process is sufficient institution of proceedings, while other jurisdictions require proof that the plaintiff was actually arrested, that his property was interfered with, or that he was at least summoned.[FN60] The plaintiff must also show the legal causation of the prior proceedings by the defendant. The defendant must have taken some affirmative action which was responsible for the institution of the proceedings.[FN61] However, the plaintiff need not show that the defendant actually conducted the prosecution of the plaintiff. It is sufficient to show that the defendant caused, advised, or assisted in the prosecution of the prior action. If the prosecution was instituted at the instance and request of the defendant, he is responsible for it, although he did not actually conduct the trial. Thus, the malicious filing of an affidavit or making of a criminal complaint may be sufficient to render the defendant liable for malicious prosecution.[FN62] Where the prior proceeding was instituted by a third person who was procured for that purpose by the defendant, the defendant is responsible for institution of the proceedings, and he may be held liable if he acted maliciously and without probable cause, even if the third person did not act maliciously. However, before the defendant can be found liable for proceedings actually initiated by a third person, it must be shown that the defendant took some affirmative action which was the proximate cause of the prior proceeding.[FN63]

In some jurisdictions a person may be held liable for malicious continuation of a criminal prosecution where, although there was probable cause for the commencement of the proceeding, the defendant subsequently learned that the charge was false and failed to take any action to have the prosecution stopped. However, in other jurisdictions the defendant may avoid liability on the ground that he had no control over the case once the prosecution had actually been initiated.[FN64] Generally, any person who maliciously instigates a legal proceeding is liable in a subsequent action for malicious prosecution. Where more than one person is responsible for the initiation of proceedings, all may be held liable, regardless of whether they acted jointly or separately.[FN65] Furthermore, an employer or principal may be liable for the malicious initiation of proceedings by his employee or agent, if the employee's or agent's acts were within the scope of his authority or were otherwise authorized or ratified. Thus, under the doctrine of respondeat superior, a principal may be liable for a prosecution maliciously initiated by his collection agent.[FN66] An attorney is not ordinarily liable for the malicious institution of legal proceedings by a client; however, if the attorney knows that the client is actuated by malicious motives, and that there is a lack of probable cause for the action, then the attorney is equally liable with the client.[FN67] Although some early cases indicated that a corporation could not commit the tort of malicious prosecution, since it was incapable of malice, almost all modern authorities now agree that a corporation may be liable for malicious prosecution.[FN68] It has also been held that a partnership may be held responsible for the malicious institution of legal proceedings.[FN69] Generally, a judicial officer may not be held liable for malicious prosecution, even if he acted maliciously and without probable cause. Immunity of judges from liability is based on considerations of public policy, and such immunity is generally extended to other judicial and quasi-judicial officers, such as prosecuting attorneys, other public officials, and members of administrative agencies or boards.[FN70] There is a conflict of authority, however, as to whether the doctrine of judicial immunity extends to law enforcement officers, and thus as to whether such officers are immune from liability for initiating proceedings maliciously and without probable cause.[FN71] In any event, the doctrine of judicial immunity is generally considered inapplicable where the acts complained of were outside the jurisdiction or the scope of the authority of the particular officer, whether a judge, prosecutor, law enforcement officer, or some other public officer.[FN72] CUMULATIVE SUPPLEMENT Cases: In 42 USCA 1983 malicious prosecution action against county deputy sheriff by person indicted, tried, and acquitted of insurance fraud in connection with hotel fire, deputy sheriff would not be entitled to absolute immunity in regard to his grand jury testimony, where deputy played role of complaining witness in grand

jury proceeding, to extent any of grand jury testimony was relevant to manner in which deputy initiated or perpetuated prosecution of plaintiff. Anthony v Baker (1992, CA10) 955 F2d 1395. State highway patrolmen who arrested wrecker operator for alleged violation of highway department regulation prohibiting wreckers from responding to accident calls except upon request of proper police authority were not immune under state tort claims act from wrecker's malicious prosecution claim, where there were sufficient facts to support jury finding of actual malice on behalf of patrolmen, based on allegation that arrest and prosecution of wrecker operator was done in retaliation for his participation in investigation into alleged kickback scheme involving highway patrolmen and wrecker service operators. Pritchett v Lanier (1991, DC SD) 766 F Supp 442 (applying SC law). Convenience store clerk who placed 911 call reporting robbery incident did not instigate criminal proceeding against arrestee and, thus, could not be liable on malicious prosecution claim, even if clerk did not specifically state until preliminary hearing that arrestee had done nothing during incident in question; clerk merely reported truthfully that arrestee was with two other customers whose behavior after she refused to let them have cigarettes without paying for them caused her to fear for her safety. Lee v. Minute Stop, Inc., 874 So. 2d 505 (Ala. 2003); West's Key Number Digest, Mandamus 3. In a retrial of a malicious prosecution action against a newspaper publisher and its attorneys, it was held that a nonsuit in favor of the defendants had been properly granted based on evidence that the defendant attorney had minimal involvement in the complained-of actions. Gerard v Ross (1988, 2nd Dist) 204 Cal App 3d 968, 251 Cal Rptr 604. Attorney for husband acted reasonably under the circumstances in filing adultery counterclaim in divorce case, and established good faith defense to wife's abusive litigation claim; although the facts clearly did not establish adultery allegation, and adultery claim was withdrawn after discovery, they were sufficient for reasonable attorney to conclude that colorable inference existed in support of claim which required investigation or discovery to be developed; it was not feasible for attorney to conduct a pre-filing investigation, and it was reasonable inquiry under the circumstances for attorney to rely on facts he obtained from client, file adultery counterclaim, and immediately pursue discovery to develop claim. O.C.G.A. 51-7-80 et seq. Kluge v. Renn, 226 Ga. App. 898, 487 S.E.2d 391 (1997). A person may be held liable for malicious prosecution where he gives information to an officer that leads to the arrest of another with knowledge that the information is false. Willis v Brassell (1996) 220 Ga App 348, 469 SE2d 733, 96 Fulton County D R 913. Court erred in denying motion to dismiss complaint brought by student against university for malicious prosecution arising out of incident in which university, having been informed by another student and school security guard that plaintiff had assaulted them with weapon or dangerous instrument, urged them to report assault to police, resulting in criminal prosecution in which charges against plaintiff were dismissed, since (1) university did not commence criminal

proceeding against plaintiff, having merely urged complainants to report matter to police, and (2) even if university were responsible for commencement of proceeding, probable cause was established by report that plaintiff was assailant and one complainant's identification of plaintiff in lineup, absent any pleaded basis for university's failure to make further inquiry. Buccieri v Franzreb (1994, 1st Dept) 201 AD2d 356, 607 NYS2d 330. The evidence was sufficient to raise a genuine issue of material fact regarding whether defendant police chief "initiated" or "instituted, procured, or participated in" an earlier nuisance abatement action upon which this malicious prosecution action was based where it tended to show that, at a meeting of the City Board of Commissioners, defendant suggested that plaintiffs' dinette be declared a public nuisance and permanently closed; in support of his proposal, defendant submitted a collection of police reports concerning the dinette and its patrons which officers had complied over the years at his direction; after the Board passed a resolution requesting the district attorney to undertake a nuisance abatement action, defendant himself took that document and the list of incidents from the police log to the district attorney; and defendant characterized himself as "the motivating force" behind the nuisance action. Moore v City of Creedmoor (1995) 120 NC App 27, 460 SE2d 899. In malicious prosecution action by man who had been acquitted of arson and murder, against his criminal codefendant, court did not err in dismissing action where man's claim was based on codefendant's having made statements inculpating man, where even if statements were false, man failed to make required showing that they were sole cause of his prosecution, where man's argument that codefendant's statements were "sole cause" of his prosecution ignored that man had been charged with arson after grand jury heard 17 witnesses and that codefendant had been merely one of those witnesses, and where liability could not be based on codefendant's having helped state survive motion for acquittal in criminal case inasmuch as evidence failed to show that codefendant had some influence on prosecutor's decision to continue case. Waldner v Dow (1994) 128 Or App 197, 876 P2d 785. In fulfilling duty to zealously represent clients within bounds of law, attorney has right to interpose any defense or supposed defense and make use of any right in behalf of such client or clients as attorney deems proper and necessary, without making himself subject to liability in damages. Renfroe v. Jones & Associates, 947 S.W.2d 285 (Tex. App. Fort Worth 1997), reh'g overruled, (July 17, 1997) and petition for review filed, (Sept. 5, 1997). [Top of Section] [END OF SUPPLEMENT] 9. Termination of prior proceeding in plaintiff's favor [Cumulative Supplement]

In addition to showing that a prior proceeding was commenced in some manner, the plaintiff must also prove that the proceeding was terminated favorably to him. This requirement of termination is applicable to all actions for malicious prosecution, whether based on a prior civil or criminal proceeding. However, under some circumstances the requirement is not absolute. Thus, if the action for malicious prosecution is based on the institution of proceedings auxiliary to the main proceeding, it is sufficient to show a favorable termination of the auxiliary proceeding, without proof that the main action has been terminated.[FN73] For example, it has been held that when an action is based on the malicious institution of extradition proceedings, it is sufficient to prove that the extradition proceedings were terminated favorably to the plaintiff, without regard to whether the criminal action in the demanding state was terminated.[FN74] With respect to criminal proceedings, the requirement of favorable termination has often been stated in terms of final termination. This requirement has sometimes been interpreted as requiring jeopardy to have attached in the prior proceeding, so that any further prosecution is impossible. Some authorities have even indicated that, in a case where an indictment was properly returned, only an acquittal would constitute a sufficient termination. However, this view is not widely accepted, and the great weight of authority merely requires that the particular criminal proceeding must have terminated in some manner, regardless of whether a new proceeding based on the same offense can be instituted.[FN75] Thus, although there is authority to the contrary, the requirement of termination is generally considered met where, after a charge has been filed, the grand jury has refused to indict the accused, where an indictment has been quashed, where either the prosecutor or the complaining witness has abandoned the prosecution, or where a nolle prosequi has been entered.[FN76] Furthermore, the requirement of a favorable termination may be met where the committing magistrate has discharged the accused and dismissed the accusation, or where the prosecution was dismissed by the trial court without a trial.[FN77] However, the dismissal of a prosecution because the accused has fled the jurisdiction does not constitute a termination favorable to him.[FN78] There is a considerable difference of opinion as to whether a discharge in habeas corpus constitutes a sufficient termination of criminal proceedings for purposes of a later malicious prosecution action; however, this divergence of opinion is explicable in large part on the basis of different factual settings. Thus, if a discharge in habeas corpus has the effect of precluding further prosecution of the accused, it is generally held that there has been a sufficient termination of the action.[FN79] With respect to an action for malicious prosecution based on the institution of civil proceedings, it is sufficient to show that the prior proceedings have ended in a manner favorable to the plaintiff. It is not necessary that the prior action have been disposed of on the merits, and the requirement of a favorable termination may be satisfied by showing an abandonment or dismissal of the prior civil action. However, there has not been a termination favorable to the plaintiff, for purposes of a malicious prosecution action, where the prior action terminated in a manner favorable in part to the plaintiff, but also favorable in part to the opposing party.[FN80] Where the prior proceeding was terminated by a compromise or settlement agreement

entered into between the parties, the requirement of a favorable termination has not been met.[FN81] Thus, where a crossclaim was dismissed pursuant to an agreement of the parties, the cross-defendant could not later bring an action for malicious prosecution, even if the settlement agreement was essentially favorable to the cross-defendant.[FN82] However, if a settlement is brought about by duress, so that it was not the free and voluntary act of the plaintiff, the plaintiff may still maintain an action for malicious prosecution.[FN83] If an appeal has been taken from the judgment of the trial court, the general rule is that the proceeding has not yet terminated, although there is contrary authority. However, if no appeal is taken, the mere existence of a right to appeal does not prevent the judgment in the trial court from constituting a favorable termination.[FN84] CUMULATIVE SUPPLEMENT Cases: Entry of pretrial diversion agreement in case involving defendants' alleged interference with aircraft flight crew did not terminate criminal action in favor of defendants for purposes of their bringing malicious-prosecution claim; rather, by entering diversion agreements, defendants effectively gave up their potential malicious-prosecution suit in exchange for conditional dismissal of criminal charges against them. Taylor v Gregg (1994, CA5 Tex) 36 F3d 453. If malicious prosecution plaintiff was convicted on evidence obtained by fraud, perjury, or other corrupt means, adequate postconviction remedies exist whereby conviction may be corrected and, on malicious prosecution claim under Mississippi law, it is insufficient to argue that conviction was wrongly obtained; that is, plaintiff should exhaust all available post conviction remedies and secure termination of such criminal proceeding favorable to him before recovering in action for malicious prosecution. Tyus v. Kidney Care, Inc., 982 F. Supp. 422 (N.D. Miss. 1997). Arrestee's 42 USCA 1983 malicious prosecution claim is summarily dismissed, where prosecutor dismissed criminal charges against arrestees "in interest of justice" pursuant to CLS CPL 170.40, because dismissal of charges could not be considered termination on merits in favor of arrestees. Delaney v Gerdon (1992, ED NY) 785 F Supp 1128. In adjudicating malicious prosecution claims, courts have applied both the alternate theory rule and the primary right rule. Under the alternate theory rule, a plaintiff in a prior action who does not prevail is subject to a malicious prosecution action if any one of a number of alternate theories is brought without probable cause. The plaintiff may not be liable if he or she acted without malice, but malice may be inferred from the absence of probable cause. Since the factual issue of malice frequently requires a jury trial, and given the difficulties in the apportionment of damages, the alternate theory rule fosters additional, perhaps frivolous, and frequently trivial litigation. It is also inconsistent with modern pleading practice where alternative factual theories are pleaded and it is difficult to determine which factual theory most accurately reflects the events. Under the primary right rule, a plaintiff will not be subject to a malicious

prosecution action if the underlying cause of action, consisting of a primary right possessed by the plaintiff, a corresponding primary duty owed by the defendant, and a delict or wrong done by the defendant, is brought with probable cause. The primary right rule reasonably accommodates the competing policies of encouraging citizens to bring civil disputes to the courts and protecting defendants from baseless actions. Such a rule also furthers the continuing disfavored status of malicious prosecution lawsuits. Crowley v Katleman (1993) 16 Cal App 4th 1, 19 Cal Rptr 2d 654, 93 CDOS 3949, 93 Daily Journal DAR 6631, review gr (Cal) 23 Cal Rptr 2d 100, 858 P2d 567, 93 CDOS 6642, 93 Daily Journal DAR 11345. Defendants in action arising from dispute over right to develop land did not have favorable termination of action such that they could bring action for malicious prosecution where plaintiffs' action was dismissed on appeal and plaintiffs chose not to refile action based on expense of relitigation, not on merits. Oprian v Goldrich, Kest & Associates (1990, 4th Dist) 220 Cal App 3d 337, 269 Cal Rptr 429. The requirement of a favorable termination may be met even though the method of termination does not necessarily indicate the accused's innocence. Thus, where a dismissal of a criminal prosecution was based on a grant of immunity which had been given before the criminal complaint was filed, such dismissal satisfied the requirement of a favorable termination. Scannell v County of Riverside (1984, 4th Dist) 152 Cal App 3d 596, 199 Cal Rptr 644. Trial court erred in dismissing plaintiff's cause of action for malicious prosecution, where, although criminal proceeding was dismissed "in the interest of justice" rather than after trial on merits, criminal charges were most likely dismissed on basis of plaintiff's uncontroverted alibi. Hankins v Great Atl. & Pac. Tea Co. (1995, 1st Dept) 208 App Div 2d 111, 622 NYS2d 678 (among conflicting authorities noted in Pinaud v County of Suffolk (CA2 NY) 52 F3d 1139). State was entitled to summary judgment dismissing action by funeral home and officer of funeral home for malicious prosecution of disciplinary proceeding, which alleged 160 violations of statutes and regulations in operation of funeral home, since proceeding resulted in final determination of misconduct on 57 charges; although more serious charges were ultimately dismissed, it was not shown that those charges were improperly joined or that sustained charges were merely technical or innocuous. Funeral homes and officer did not establish proof of injury to or interference with their person or property as result of initiation of disciplinary proceedings; neither legal expenses in defending against charges nor injury to reputation established necessary injury or interference. Campion Funeral Home, Inc. v State (1991, 3d Dept) 166 App Div 2d 32, 569 NYS2d 518, app den 78 NY2d 859, 575 NYS2d 455, 580 NE2d 1058, reconsideration den 79 NY2d 823, 580 NYS2d 202, 588 NE2d 100. [Top of Section] [END OF SUPPLEMENT] 9.3. Termination of prior proceeding on technical grounds--Termination on technical or procedural grounds

[Cumulative Supplement]

CUMULATIVE SUPPLEMENT Cases: Termination, "in interest of justice": Arrestee's 1983 malicious prosecution claim must be dismissed, even though robbery charges against arrestees were dismissed "in interest of justice" pursuant to state criminal procedure rule, because prosecutor, whose motion dismissed case, stated that (1) probable cause for arrest existed, (2) she did not know of any evidence showing that defendants were actually innocent, and (3) complainants did not wish to proceed with prosecution, making it certain that dismissal was not "on merits" in their favor so as to support tort of malicious prosecution. Delaney v Gerdon (1992, ED NY) 785 F Supp 1128. Dismissal of criminal proceedings was not on merits, and thus did not support malicious prosecution claim, where drug charges against arrestees were dismissed in interests of justice because prosecutor was unwilling to call police officer as witness after he was arrested on drug-related charge; it could not be said that dismissal of criminal proceedings was in arrestees' favor or indicative of their innocence. Barnett v Dillon (1995, ND NY) 890 F Supp 83. Nol pros: In a malicious prosecution action, a nol pros may not be a bona fide termination even if the termination was not based solely on restitution. Alamo Rent-A-Car v Mancusi (1994, Fla) 632 So 2d 1352, 19 FLW S 20. Defendant was entitled to summary judgment in action for malicious prosecution where (1) he had commenced prior action to enjoin construction of addition to townhouse on basis of restrictive covenant which prohibited additions so long as he "occupied" adjoining building, and (2) he was originally granted preliminary injunction, but did not prevail at trial as he had subleased adjoining premises and no longer lived there; plaintiff failed to overcome presumption of probable cause which arose from various court orders in favor of defendant (including preliminary injunction order) as defendant had relied on dictionary meaning and legal interpretation of "occupied" and on his intent to again occupy adjoining building on expiration of sublease. Crown Wisteria, Inc. v F.G.F. Enterprises Corp. (1990, 1st Dept) 168 App Div 2d 238, 562 NYS2d 616. [Top of Section] [END OF SUPPLEMENT] 9.5. Termination of prior proceeding on technical grounds--Termination by settlement

[Cumulative Supplement]

CUMULATIVE SUPPLEMENT Cases: Where arrestee brought malicious prosecution action against police officer and village, defendants are entitled to summary judgment because arrestee conceded that the escape charge was dismissed as a result of a plea agreement, and therefore plaintiff's prior criminal proceeding did not terminate in a manner indicative of plaintiff's innocence, precluding an action for malicious prosecution. Jones v Villa Park (1993, ND Ill) 815 F Supp 249. Mortgage broker, as plaintiff in malicious prosecution action against title company, made a prima facie showing that it had obtained a favorable termination of the underlying action, notwithstanding that, after it was awarded damages on its cross-complaint and title company was awarded nothing, the parties entered into a compromise and stipulation about the amount of costs; the settlement and the resulting stipulation did not relate to the merits of the parties' underlying dispute. HMS Capital, Inc. v. Lawyers Title Co., 118 Cal. App. 4th 204, 12 Cal. Rptr. 3d 786 (2d Dist. 2004); West's Key Number Digest, Insurance 35(2). In malicious-prosecution action, trial court properly granted summary judgment for defendant where plaintiffs could not show that underlying lawsuit, which was dismissed pursuant to settlement, was terminated in their favor; although plaintiffs did not pay any of settlement, they were parties to agreement and waived fees and costs, thereby giving up something to get suit dismissed. Further, for termination of lawsuit to be considered favorable to malicious-prosecution plaintiff, termination must reflect merits of action and plaintiff's innocence of misconduct alleged in lawsuit. Pender v Radin (1994, 4th Dist) 23 Cal App 4th 1807, 29 Cal Rptr 2d 36, 94 CDOS 2509, 94 Daily Journal DAR 4742. The actual amount or subjective value of consideration given by a plaintiff to defendants as part of the settlement agreement, is immaterial to any consideration of whether one of the defendants can show, in a subsequent malicious prosecution action, a termination of the prior lawsuit in his or her favor. Just as the fact of settlement says nothing about a defendant's liability or nonliability, freedom from fault, or culpability, so is the amount of a settlement absolutely irrelevant to the merits of a lawsuit. This is because a litigant's decision to settle, and what to accept in settlement, may well be based on a variety of factors completely unrelated to the actual issues in the case. Villa v Cole (1992, 1st Dist) 4 Cal App 4th 1327, 6 Cal Rptr 2d 644, 92 CDOS 2924. Where underlying action against city, its chief of police and two individual police officers, for violation of civil rights, assault and battery, false arrest, and both intentional and negligent infliction of emotional distress, was terminated by settlement between city and underlying plaintiff, and where underlying plaintiff dismissed individual police officers to effect settlement, termination of action did not constitute "favorable termination" for purposes of malicious prosecution action by one officer against underlying plaintiff, notwithstanding officer objected to and did not participate in settlement. Villa v

Cole (1992, 1st Dist) 4 Cal App 4th 1327, 6 Cal Rptr 2d 644, 92 CDOS 2924. Bargaining or negotiating for the termination of underlying litigation does not always negate the bona fide nature of the termination, for purposes of supporting a malicious prosecution claim. Doss v. Bank Of America, N.A., 857 So. 2d 991 (Fla. Dist. Ct. App. 5th Dist. 2003); West's Key Number Digest, Malicious Prosecution 35(2). Joint stipulated dismissal of bank's underlying lawsuit against customer, seeking to recover amounts bank had paid to unknown person who presented checks with customer's forged endorsement, was a "bona fide termination" of the litigation in customer's favor, so as to support customer's malicious prosecution claim against bank, although customer waived claim to interest on the $37.14 paid by bank as restitution of customer's savings account balance, and customer did not seek attorney fees or costs; sum of interest would have been de minimus, any attorney fees and costs would have been minimal, and no apparent reason existed for the dismissal other than the lack of merit of the collection suit. Doss v. Bank Of America, N.A., 857 So. 2d 991 (Fla. Dist. Ct. App. 5th Dist. 2003); West's Key Number Digest, Malicious Prosecution 35(2). Legal malpractice action was not terminated in attorney's favor, as required to establish claim for wrongful use of civil proceedings, where attorney and former client entered into settlement agreement in which client dismissed malpractice action, and attorney compromised on counter-claim for breach of contract. Feinberg v. Townsend, 107 S.W.3d 910 (Ky. Ct. App. 2003); West's Key Number Digest, Malicious Prosecution 35(2). The dismissal of all of tradesman's claims against homeowner, which totaled $110,000, in consideration of dismissal of homeowner's claim against tradesman for $252, with the survival of homeowner's claim against tradesman's attorney for sanctions and his claim against both tradesman and attorney for malicious prosecution constituted a favorable termination to homeowner, and thus trial court erred in dismissing malicious prosecution claim for lack of favorable termination. Manuel v. Wilka, 2000 SD 61, 610 N.W.2d 458 (S.D. 2000); West's Key Number Digest, Malicious Prosecution 37. [Top of Section] [END OF SUPPLEMENT] 10. Lack of probable cause for prior proceeding [Cumulative Supplement]

Lack of probable cause for institution of the prior proceeding, whether civil or criminal, is an essential element of an action for malicious prosecution. The existence of probable cause for the original proceeding constitutes an absolute defense, regardless of any malicious motivation for bringing that action.[FN85]

The existence, or lack of existence, of probable cause is generally considered to be a mixed question of law and fact. It is within the province of the court to determine what facts are sufficient to establish the existence, or the lack of existence, of probable cause, but it is the function of the trier of fact to determine what facts have been proved. Thus, the normal procedure in a disputed case is for the jury to determine the question of probable cause under appropriate instructions.[FN86] The issue of probable cause necessarily requires an examination of the elements of the crime originally charged, or the cause of action originally asserted, in order to determine whether the defendant in the malicious prosecution action had reasonable grounds for institution of the particular prior proceeding. Although the term "probable cause" has been defined in various ways, there is substantial agreement as to the basic meaning of the term. Generally, probable cause for the initiation of proceedings exists if there is a reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious or prudent person in believing that the charge against the accused is true.[FN87] If the facts and circumstances known to the defendant at the time of the institution of proceedings do not meet such a reasonable person test, the element of lack of probable cause is established.[FN88] Thus, lack of probable cause may be established by proof that the initiator of the proceedings possessed information insufficient to warrant a belief in the charges, or that the information possessed was unreliable, or that the initiator failed to make further inquiry which a reasonable person would have made.[FN89] Although the existence, or lack of existence, of probable cause is thus determined in part by the objective reasonable person test, it may also be determined in part by a subjective test. The person initiating the proceedings must hold an honest and good faith belief in the truth of the charge. Where the initiator does not have such a belief, or in fact knows that his claim is false or that the accused is innocent of the crime charged, he does not have probable cause for the initiation of the proceedings, regardless of the existence of circumstances which would warrant a reasonable person's believing the charge to be true.[FN90] While a belief in the truth of the charges made is thus essential to the existence of probable cause, belief alone is not sufficient in the absence of circumstances supporting such belief.[FN91] Thus, the plaintiff in a malicious prosecution action may establish the lack of probable cause by proof either that the facts and circumstances known to the defendant were not sufficient to warrant a reasonable belief in the truth of the charges, or by proof that the defendant in fact did not believe in the truth of the charges. There is a divergence of opinion as to whether lack of probable cause may be established by evidence of the manner in which the prior proceeding was terminated. While most courts apparently hold that the abandonment, dismissal, or other similar termination of the prior proceeding does not constitute evidence of, raise a presumption of, or establish a prima facie case of lack of probable cause, some cases have held that probable cause may be inferred from the termination of a proceeding in such manner.[FN92] While a conviction in a criminal trial, if not reversed on appeal, is generally considered conclusive proof of the existence of probable cause, an acquittal in a criminal trial is generally not considered evidence of lack of probable cause.[FN93]

CUMULATIVE SUPPLEMENT Cases: In Illinois, indictment by a grand jury is prima facie evidence of probable cause; one of the elements of malicious prosecution is the absence of probable cause for the proceeding. Bontkowski v U.S. (1994, CA7) 28 F3d 36. Grand jury indictment: Malicious-prosecution plaintiff, who had mistakenly been arrested for murder, could not prevail in 42 USCA 1983 action against city and police officers; plaintiff failed to adduce evidence sufficient to rebut presumption of probable cause for arrest that arose from plaintiff's indictment by grand jury. Dukes v City of New York (1995, SD NY) 879 F Supp 335. Standard of review: The test that the appellate court must apply when reviewing the lack-of-probable-cause element in a malicious prosecution case in which summary judgment has been granted to a defendant is whether undisputed facts can be found in the record below establishing that the defendant acted in good faith on the appearance of things as they existed when the suit was filed, based upon direct evidence, or upon circumstantial evidence and inferences that can reasonably be drawn therefrom; if so, then summary judgment in favor of the defendant on the plaintiff's malicious prosecution count would be appropriate. Willis v. Parker, 814 So. 2d 857 (Ala. 2001); West's Key Number Digest, Appeal and Error 863. Whether store manager had provable cause to initiate theft prosecution against customer was question for jury, where there was dispute in facts as to whether manager in fact saw events on day of theft or had reasonably trustworthy information as would lead person of reasonable caution to believe customer was guilty; manager failed to tell magistrate that customer had denied allegation, that there was difference between clothing worn by man seen stealing items from store and clothing worn by customer, that manager had seen man allegedly stealing items for only limited time, and that manager had not questioned customer about what had taken place; moreover, alleged eyewitness to theft was not given opportunity to be present before magistrate, nor was lineup conducted before warrant was issued. Delchamps, Inc. v Larry (1992, Ala) 613 So 2d 1235. A customer brought suit for malicious prosecution against a grocery store that had charged her with the theft of two videotapes. After picking out her tapes, the customer had asked at the video counter whether she could pay the rental fee at the check-out counter together with her groceries. The clerk consented, giving the customer a coded slip to present to the checker. When she arrived, she paid for her groceries, but failed to present the tapes or the slip. Although a grand jury indicted her, she was ultimately found not guilty. As evidence of misconduct necessary to defeat the store's prima facie defense based upon the grand jury indictment, the customer presented the store's failure to show to the police a copy of her videotape membership application providing that members would be liable for criminal prosecution for failing to return any rented equipment. The customer argued that this precluded prosecution for merely failing to pay in advance. Although the court found the argument alluring, it did not find it persuasive. Her inquiry whether she could pay for the tape rentals at the checkout counter constituted an agreement to do so and her failure to pay supported the finding of probable cause. Whitlow v Bruno's, Inc. (1990, Ala) 567 So 2d 1235.

Attorney who represented swimming pool accident victim and filed suit against former owners of premises on theory that one of them either created or concealed dangerous condition of premises, was not liable to former owner for malicious prosecution. Attorney had good faith belief that trier of fact might find claim against former owner meritorious and this belief was objectively reasonable. Thus, attorney had probable cause to file suit and continue litigation against former owner. Attorney's probable cause was complete defense to former owner's action for wrongfully initiated civil proceedings. Smith v Lucia (1992, Ariz App) 842 P2d 1303, 111 Ariz Adv Rep 55. Borrower's then-wife and her attorneys had no probable cause to sue lenders for fraud, conspiracy, malice, or punitive damages, for purposes of lenders' subsequent malicious prosecution action against them, where borrower's wife's counsel ignored legitimate interests of lenders, abandoned their professional duty of evaluation and investigation, sued lenders without evidence that they had engaged in fraudulent conduct, and compounded their misdeeds by pressing claims to trial despite lack of evidence to support them. Mabie v. Hyatt, 71 Cal. Rptr. 2d 657 (App. 2d Dist. 1998), opinion modified on denial of reh'g, Mabie v. Hyatt, 1998 WL 105598 (Cal. App. 2d Dist. 1998). Any-reasonable-attorney test: Controlling test for determining question of probable cause, in context of malicious prosecution action, is whether, as an objective matter, any reasonable attorney would have thought underlying claim tenable and depends upon the state of the law as well as the state of the facts. Slaney v. Ranger Ins. Co., 115 Cal. App. 4th 306, 8 Cal. Rptr. 3d 915 (2d Dist. 2004), review denied, (May 12, 2004); West's Key Number Digest, Mandamus 25(1). Trial court's discretionary decision not to award attorney fees to the former employee in the former employee's underlying sex discrimination suit under the Fair Employment and Housing Act (FEHA) against the employer and the chief executive officer (CEO) was not determinative of whether the former employee had probable cause to prosecute the underlying action, for purposes of subsequent malicious prosecution claim by the CEO against the attorneys who had represented the former employee in the underlying action; trial court was making a discretionary call on a cold record, and was not called upon to undertake the same analysis that was required of the appellate court, i.e., whether the causes of action in the underlying complaint were supported by existing authority or the reasonable extension of that authority. West's Ann.Cal.Gov.Code 12965(b). Siebel v. Mittlesteadt, 12 Cal. Rptr. 3d 906 (Cal. App. 6th Dist. 2004), review granted and opinion superseded, 18 Cal. Rptr. 3d 667, 97 P.3d 72 (Cal. 2004); West's Key Number Digest, Mandamus 25(3). "No probable cause" affidavit: Declaration signed by attorney who represented vendors of condominium in purchaser's action against vendors to recover losses caused by vendors' failure to disclose construction defects was inadmissible in vendor's subsequent action for malicious prosecution against purchaser's attorney on the grounds that the declaration was speculative, conclusory, and inadmissible opinion; vendor's attorney's "boilerplate denial" of the other side's version of events could not be said to have put purchaser's attorney on notice of any specific fatal flaw in purchasers claim such as would negate probable cause for filing the action. West's Ann.Cal.Evid.Code 352. Morrison v. Rudolph, 103 Cal. App. 4th 506, 126 Cal. Rptr. 2d 747 (4th Dist. 2002), as modified, (Nov. 4, 2002);

West's Key Number Digest, Malicious Prosecution 59(3). Objective standard: Standard for determining the probable cause element for purposes of a malicious prosecution suit is objective, not subjective, and the trial court is called upon to make an objective determination of the reasonableness of the defendant's conduct, namely to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable. Stroock & Stroock & Lavan v. Tendler, 102 Cal. App. 4th 318, 125 Cal. Rptr. 2d 694 (2d Dist. 2002); West's Key Number Digest, Malicious Prosecution 25(1). Disability insurer had probable cause to sue insured physician for fraud, and thus was not liable for malicious prosecution, as reasonable lawyer representing insurer could have concluded that insured's yearly income of more than $400,000 was earned in months when services generating it were paid, not solely in one month when insured's corporation paid him salary, that machinations with "annual salary" were contrary to policy's spirit, and that physician's concealment of true economic earnings was material and induced insurer to pay him for disability benefits in months in which insured claimed no salary. Roberts v. Sentry Life Insurance, 76 Cal. App. 4th 375, 90 Cal. Rptr. 2d 408 (2d Dist. 1999); West's Key Number Digest, Malicious Prosecution 25(1). In malicious prosecution actions, when there are no disputed questions of fact about the defendant's preparation and knowledge prior to the institution of the proceeding giving rise to the malicious prosection claim, the existence or absence of probable cause is a question of law to be determined by the court, rather than a question of fact for the jury. Nicholson v Lucas (1994, 5th Dist) 21 Cal App 4th 1657, 26 Cal Rptr 2d 778, 94 CDOS 568, 94 Daily Journal DAR 885. In malicious prosecution actions, an issue of fact as to the existence of probable cause is raised only if the circumstances surrounding the making of the determination are disputed. Thus, in a dentist's action against a hospital and several of its physicians for malicious prosecution of an administrative proceeding to suspend his oral surgery privileges, the dentist did not raise a triable issue of fact as to the existence of probable cause, since he did not dispute the fact his performance had been repeatedly discussed prior to the decision to suspend his privileges, nor did he refute defendants' evidence as to their review of the medical records prior to the decision. Although other evidence disputed the merits of the decision, it did not dispute defendants' preparation and knowledge prior thereto. Thus, there was no controversy about what defendants did or did not do, or about what they knew or did not know, and the question of whether those facts, including their reasonableness, gave rise to probable cause was a legal one for the court. Nicholson v Lucas (1994, 5th Dist) 21 Cal App 4th 1657, 26 Cal Rptr 2d 778, 94 CDOS 568, 94 Daily Journal DAR 885. In malicious prosecution action in which there is evidentiary dispute over information and facts known to defendant when he brought prior action or where it is claimed defendant was aware of information that established lack of truth in his factual allegations, threshold question of state of defendant's knowledge of facts must be resolved by jury before application of objective standard regarding existence of probable cause. However, when state of defendant's knowledge of facts has been determined or is undisputed, then his subjective belief in legal validity of claim is irrelevant and only question is whether, based upon his knowledge, his

action was objectively reasonable; that determination is always to be made by court and not by jury. Leonardini v Shell Oil Co. (1989, 3rd Dist) 216 Cal App 3d 547, 264 Cal Rptr 883, review den, cert den (US) 112 L Ed 2d 247, 111 S Ct 293. In malicious prosecution action, court rejected instant defendant's argument that jury's finding of no liability as to underlying false arrest/false imprisonment claim conclusively established, as matter of law, existence of probable cause, where jury's finding of no liability was not necessarily based on finding that probable cause existed, but could have been based on finding concerning nature of detention. Maybin v Thompson (1992, Fla App D2) 606 So 2d 1240, 17 FLW D 2443. In malicious prosecution action brought against landowner by neighbor who had been arrested at the landowner's behest for stalking, evidence was sufficient to support finding that there had not been probable cause for the arrest; the landowner testified that the neighbor used to stare at his house and that she had begun to harass him after he had testified against her in unrelated proceedings, but facts surrounding their combative relationship were disputed, and there was evidence that the landowner had instructed others to falsely testify against the neighbor in her criminal trial. O.C.G.A. 51-7-40. Ashmore v. Foster, 254 Ga. App. 97, 561 S.E.2d 228 (2002); West's Key Number Digest, Malicious Prosecution 18(4). Genuine issue of material fact as to whether there was probable cause for police officer's arrest of shopper for shoplifting after shopping mall security guard told her that she witnessed shopper put blouse in his bag precluded summary judgment in shopper's action against mall, guard, and officer for false arrest, false imprisonment, and malicious prosecution. Corporate Property Investors v. Milon, 249 Ga. App. 699, 549 S.E.2d 157 (2001), cert. denied, (Oct. 1, 2001) and cert. dismissed, (Oct. 1, 2001); West's Key Number Digest, Judgment 181(33). If probable cause existed at the time the defendant set the criminal proceeding against the plaintiff in motion, the plaintiff could not recover for malicious prosecution even if the defendant had an improper motive. Willis v Brassell (1996) 220 Ga App 348, 469 SE2d 733, 96 Fulton County D R 913. Abusive-litigation claim by employee against Insurance Commissioner for bringing suit to enforce indemnification agreement that employee denied signing was supported by evidence that Commissioner had ample reason to believe that signature on agreement was not employee's, in light of analyses by handwriting experts, denials by employer that employee had signed, and trial tesimony by both purported notaries that they had not witnessed employee signing, which evidence indicated that Commissioner proceeded with suit in wilful, wanton, and reckless disregard of consequences. Fabe v Floyd (1991) 199 Ga App 322, 405 SE2d 265, 102-62 Fulton County D R 14B. In an action brought against a union and its members by the owner of a company, the trial court improperly dismissed the plaintiff's malicious prosecution claims. The plaintiff alleged that the defendants had willfully and maliciously procured his arrest by wrongfully accusing him of a criminal offense. The trial court determined that because the judge in the criminal proceedings found probable cause to arrest the plaintiff, the claim for malicious prosecution was barred. The appellate court reversed, holding the fact that the judge in the prior criminal

proceedings found probable cause to arrest did not foreclose further inquiry in the civil action into the issue of probable cause. Pease v. International Union of Operating Engineers Local 150 (1991, 2d Dist) 208 Ill App 3d 863, 153 Ill Dec 656, 567 NE2d 614. Abuse of process standard distinguished: Probable cause element of a malicious prosecution claim is not identical to the improper process element of tort of abuse of process; test of an improper process is whether the legal steps were procedurally and substantively proper under the circumstances, while probable cause exists when a reasonably intelligent and prudent person would be induced to act as did the person who is charged with the burden of having probable cause. City of New Haven v. Reichhart, 748 N.E.2d 374 (Ind. 2001); West's Key Number Digest, Process 168. Fact that parents did not know what questions to ask surgeons about back surgery that rendered their daughter paraplegic, including asking which of two physicians performed certain parts of surgery, did not render their pre-medical malpractice suit investigation less than diligent effort, so as to expose them to liability for malicious prosecution, as knowing exact questions to ask about serious medical conditions and remedies required greater knowledge and sophistication than parents as laypersons possessed. Bartal v. Brower, 268 Kan. 195, 993 P.2d 629 (1999); West's Key Number Digest, Malicious Prosecution 25(1). Advice of counsel: Parents' reliance upon advice of counsel in suing surgeon for medical malpractice when their daughter was rendered paraplegic in course of back surgery was complete defense to surgeon's suit for malicious prosecution, even assuming parents did not disclose to their attorneys a discussion in which they allegedly learned that another surgeon was involved in surgery, where second surgeon's involvement did not appear material to decision to sue surgeon and where attorneys obtained copies of all medical records, including surgery report identifying both surgeons, prior to filing suit. Bartal v. Brower, 268 Kan. 195, 993 P.2d 629 (1999); West's Key Number Digest, Malicious Prosecution 25(2). Grocery store and store manager had probable cause sufficient to institute criminal proceedings against store patron so as to not support finding of malicious prosecution; manager witnessed patron aid accomplice in stealing merchandise by distracting employee while accomplice put merchandise in her purse, manager clearly believed that while accomplice pilfered merchandise, patron acted as decoy to distract watchful employees, manager then requested that patron and accomplice accompany him to back of store where they could resolve shoplifting issue, and then patron became belligerent, instructed accomplice to exit premises, escorted accomplice to his car, and drove away. Williams v. Jitney Jungle, Inc., 910 So. 2d 39 (Miss. Ct. App. 2005); West's Key Number Digest, Malicious Prosecution 20. Appellate Division erred in concluding that employees had failed to establish necessary elements of their causes of action for false arrest and malicious prosecution, and in ordering that employees' complaint be dismissed despite jury verdicts in their favor, where evidence at trial gave rise to several factual disputes bearing on (1) whether probable cause existed to support employer's arrest of employees for theft of supplies in course of internal delivery, (2) whether there were frequent departures from employer's delivery slip system, and (3) whether employees had concealed supplies or merely retained them in order to

accommodate another employee's request to view samples. Appellate Division also erred in concluding that employees failed to plead and prove actual or special damages where both employees testified that they had incurred legal expenses in connection with their defense of criminal charges brought against them by their employer. Parkin v Cornell University, Inc. (1991) 78 NY2d 523, 577 NYS2d 227, 583 NE2d 939, 121 CCH LC 56790, on remanded (App Div, 3d Dept) 581 NYS2d 914. The trial court correctly granted summary judgment in favor of plaintiff on defendant's counterclaim for malicious prosecution where defendant contended that plaintiff did not have probable cause to institute the prior prosecution for criminal assault against defendant, but defendant's own testimony revealed that he entered plaintiff's house, called his name loudly several times and poured beer upon plaintiff while plaintiff was sleeping, then hit plaintiff several times with a metal pin. Additionally, a prima facie case of probable cause was established because the magistrate made an "independent determination" that probable cause existed and issued a warrant for defendant's arrest. Juarez-Martinez v Deans (1993) 108 NC App 486, 424 SE2d 154. Trial court properly granted summary judgment in favor of defendants in malicious prosecution action arising out of arson complaint dismissed by prosecutor prior to prosecution, where homeowner charged with arson failed to present facts from which it could reasonably be inferred that investigator and prosecutor did not truly believe he was guilty of charged offense; whether or not there was probable cause to instigate prosecution was mixed question of law and fact, and court would decide whether or not facts warranted belief of guilt in reasonably cautious and prudent person, while question of existence of essential belief on part of defendant would be question of fact. Richmond v Haney (1992, ND) 480 NW2d 751. Where plaintiff in malicious prosecution action has been found guilty of criminal offenses by court of competent jurisdiction, conclusive presumption of probable cause exists as complete defense to action for malicious prosecution, even though convictions are subsequently reversed on appeal, as long as no fraud or unlawful means were employed to secure convictions. Courtney v Rice (1988, Hamilton Co) 46 Ohio App 3d 133, 546 NE2d 461, motion overr 38 Ohio St 3d 710, 533 NE2d 363. In a malicious prosecution action arising from an underlying criminal prosecution of the plaintiff based on her purchasing goods at the defendant store with the credit card of a person who had died 2 days earlier, probable cause for the arrest and prosecution of the plaintiff was shown where (1) the plaintiff was held over for trial by a district justice, and the plaintiff did not allege any procedural infirmities or that evidence had been withheld at the preliminary hearing, (2) the cardholder's widow complained of the purchases and asserted that they were not authorized, (3) the plaintiff knew that the cardholder was dead when she made the purchases, and (4) the plaintiff presented no evidence to support her assertion that the purchases had been authorized by the cardholder. Cosmas v Bloomingdales Bros. (1995, Pa Super Ct) 660 A2d 83. Father failed to state cause of action against mother for wrongful use of civil proceedings based on her actions in initiating emergency custody petition after child informed mother that father had sexually assaulted child; petition did not terminate in father's favor in that his visitation rights were temporarily suspended, family court judge determined that mother had probable cause for bringing petition, and there was no indication that mother brought petition for

any reason other than protection of daughter. 42 Pa.C.S.A. 8351. Logan v. Lillie, 728 A.2d 995 (Pa. Commw. Ct. 1999); West's Key Number Digest, Malicious Prosecution 25(1). Genuine issue of material fact existed as to whether tradesman's attorney reasonably believed that tradesman possessed valid claim of slander against homeowner, based upon homeowner's screening to various individuals and city officials of videotape depicting highly critical evaluation conducted by roofing contractor of tradesman's work on owner's home and letter written by homeowner to tradesman's attorney stating that several professionals were "interested" to see manner of work done by tradesman, precluding summary judgment in homeowner's malicious prosecution action. Manuel v. Wilka, 2000 SD 61, 610 N.W.2d 458 (S.D. 2000); West's Key Number Digest, Judgment 181(33). A man alleged that his neighbor's request for the issuance of a criminal warrant against him amounted to malicious prosecution. When the neighbor's horses escaped onto land that the man occupied, he informed both an associate of the neighbor and the neighbor's brother that he would only return the horses after being paid for the damage they had caused. However, the neighbor arranged with the assistant district attorney to bring criminal charges for the malicious secretion of the property of another. Although probable cause was found to exist at a preliminary hearing, the man brought suit for malicious prosecution when the grand jury declined to indict. The trial court erroneously granted the neighbor's motion for summary judgment based upon lack of malice. Since the neighbor had presumably been informed that the man was holding the horses as collateral, he was on notice that they were not being maliciously secreted. This should have led the neighbor to make further investigation; his failure to do so established a factual issue concerning his malice in requesting the district attorney to bring criminal charges. Perry v Sharber (1990, Tenn App) 803 SW2d 223. Grocery store employees had no duty to inquire into customer's state of mind before causing customer's arrest for shoplifting, in determining whether prosecution was supported by probable cause in subsequent malicious prosecution action, where store manager observed customer leave store without paying for item in his concealed possession. Richey v. Brookshire Grocery Co., 952 S.W.2d 515 (Tex. 1997), reh'g of cause overruled, (Oct. 30, 1997). A malicious prosecution plaintiff's admission that there were insufficient funds to cover a past-due rent check when she wrote it did not defeat the "without probable cause' element of the action where plaintiff did not deliver the rent check to the defendant until the evening of the day on which she believed her employer would deposit funds in her checking account. Esquivel v Watson (1992, Tex) 823 SW2d 589, rehg of cause overr (Mar 4, 1992). Level of immunity afforded building inspector: County building inspector, whose duties were more akin to those of a police officer in the enforcement of laws, rules, and regulations, than to a prosecutor in the judicial process, was not entitled to the absolute immunity afforded by quasi-judicial immunity in malicious prosecution action. Andrews v. Ring, 266 Va. 311, 585 S.E.2d 780 (2003); West's Key Number Digest, Counties 92. [Top of Section]

[END OF SUPPLEMENT] 11. Malice [Cumulative Supplement]

In an action for malicious prosecution the plaintiff must prove both that there was a lack of probable cause for the prior proceeding and that it was initiated with malice. It has been noted that malice is not only an essential element, but that malice and lack of probable cause are the very essence of the cause of action, and that both must concur before the action may be maintained.[FN94] Unless the evidence on the issue is totally undisputed, the existence of malice is always a question of fact exclusively for the determination of the trier of fact.[FN95] Where the defendant's primary motive for bringing the prior proceeding was a proper one, the mere fact that he was also influenced to some extent by improper considerations generally does not constitute the required malice.[FN96] There are various differing definitions of malice and some disagreement as to the type of malice required in an action for malicious prosecution. The majority view appears to be that what has been called actual malice, or malice in fact, is required in an action for malicious prosecution. Malice in fact is generally proved by evidence of some wrongful or improper motive, or by evidence of a wanton or reckless disregard of the rights of another. The minority view is that the malice essential to an action for malicious prosecution is malice in law, which consists of a wrongful act done intentionally without legal justification. Malice in law is generally presumed from proof of certain facts. In at least one jurisdiction, it appears that the element of malice may be established by proof sufficient to show either malice in fact or malice in law.[FN97] Furthermore, in a case where malice in fact was required to sustain an award of punitive damages, it was stated that while malice implied by law from lack of probable cause would not support such an award, malice in fact inferred from the lack of probable cause would justify the award.[FN98] The existence of malice may be shown in various ways. For example, proof that a criminal proceeding was instituted for the purpose of compelling payment of a debt, or proof that the prior action was instituted merely to annoy or harass the plaintiff, or that the prior proceeding was brought for some other ulterior purpose, is sufficient to establish the existence of malice.[FN99] Similarly, proof that the defendant instituted the prior proceedings out of hostility toward the plaintiff may establish the necessary malice; however, the lack of any personal ill will does not necessarily negative the existence of malice.[FN1] While malice is not the same as lack of probable cause, it is generally agreed that lack of probable cause may constitute evidence of malice. Thus, malice may be inferred as a fact from the absence of probable cause,[FN2] which inference may be rebutted by the defendant.[FN3] Although in some jurisdictions lack of probable cause raises a presumption of malice, the majority rule is that malice must be affirmatively established and will not be presumed, as opposed to inferred, from a lack of probable cause.[FN4] However, lack of probable cause may not be inferred

from proof of malice, however wanton or gross.[FN5] Malice may not be established by proof of the defendant's negligence, since negligence arises from inadvertence or lack of purpose, whereas malice requires the existence of some improper purpose.[FN6] CUMULATIVE SUPPLEMENT Cases: Employee failed to allege that employer acted with malice in instituting or continuing employee's criminal prosecution for felony of inducing panic based on investigation that revealed employee may have called in a bomb threat on employer's pay phone, as required to support claim of malicious criminal prosecution against employer under Ohio law; three other employees identified employee's voice on tape of telephone call after asked to do so by police, and there was no evidence other than employee's self-serving affidavit that employer maliciously withheld exculpatory evidence or that other employees had motive to lie regarding identification of employee's voice. Bickley v. FMC Technologies, Inc., 282 F. Supp. 2d 631 (N.D. Ohio 2003); West's Key Number Digest, Malicious Prosecution 64(2). Malicious prosecution action against Department of Motor Vehicles (DMV) would be dismissed by Court of Claims where claimant, although forced to appear at 5 administrative trials to answer 11 traffic charges (which he did not commit) despite having reported loss of his license to DMV, and lost job as consequence, did not establish that proceedings were commenced or continued with actual malice and without probable cause, since DMV's policy of declining to drop prosecution based only on report of loss of license was not unreasonable. State could not be held liable in negligence just because system required claimant to make numerous court appearances rather than ministerial errors in record-keeping. Glenn v State (1989) 144 Misc 2d 101, 543 NYS2d 632. Commercial landlord did not act with malice or lack of probable cause when he sought to evict tenant, and named tenant personally rather than tenant's corporation in the action, and thus landlord did not commit malicious prosecution; landlord filed eviction notice only after tenant repeatedly refused to comply with landlord's request to sign long-term lease or vacate the property, only lease in existence at time eviction action was filed was oral lease between landlord and tenant, tenant negotiated the oral lease without disclosing that he was an agent acting on behalf of any principal, and mistaken choice of tenant as defendant was not an indication of bad motive on landlord's part. Willis v. Parker, 814 So. 2d 857 (Ala. 2001); West's Key Number Digest, Malicious Prosecution 25(1). Improper motive: Owner of baseball team submitted evidence from which a reasonable person could infer that attorney repeatedly filed actions challenging city's actions relating to development of new baseball park in order to interfere with or derail the project, which was sufficient to establish prima facie case of improper motive as an element of owner's malicious prosecution claims against attorney. Padres L.P. v. Henderson, 114 Cal. App. 4th 495, 8 Cal. Rptr. 3d 584 (4th Dist. 2003), as modified on denial of reh'g, (Jan. 15, 2004) and review denied, (Apr. 14, 2004); West's Key Number Digest, Mandamus 30.

In action for malicious prosecution against victim of armed robbery, trial court properly dismissed case against defendant, even though defendant positively identified plaintiff as perpetrator of robbery, plaintiff was acquitted, where record supported court's conclusion that defendant was without malice when he identified plaintiff as perpetrator. Joseph v Cannon (1992, La App 5th Cir) 609 So 2d 838. Per se malicious criminal complaint: Donut store owner's filing of a complaint for theft for the purpose of suppressing the exercise of patron's right to enforce her civil rights was per se malicious in connection with determining whether patron, who was charged with theft after she refused to pay for stale donut, established malicious prosecution or malicious use of process claim against donut store owner. Turner v. Wong, 363 N.J. Super. 186, 832 A.2d 340 (App. Div. 2003); West's Key Number Digest, Malicious Prosecution 30. Defendant town was not entitled to summary judgment in action for malicious prosecution since question of fact existed as to malice where (1) after one-car accident, plaintiff driver was issued tickets for driving while intoxicated, operating unregistered vehicle and driving at unreasonable speed, (2) police officers dispatched to scene of accident testified that plaintiff was somewhat incoherent, that they detected faint odor of alcohol and that, when they asked plaintiff if he had been drinking, he responded "not much," and (3) charges against plaintiff were dismissed after blood alcohol test showed that he had no alcohol in his blood; if fact finder were to discredit police testimony as to odor of alcohol and plaintiff's statement at scene, they would be entitled to infer malice. Allen v Colonie (1992) 182 App Div 2d 998, 583 NYS2d 24. In a malicious prosecution action where the State had earlier voluntarily dismissed a trespass charge against plaintiff and the jury had returned a verdict of not guilty on the larceny charge, the trial court properly denied defendant's motions for directed verdict and judgment n.o.v. and did not abuse its discretion in denying defendant's motion for new trial, since a reasonable mind might infer malice from the lack of probable cause evidenced by the dismissal of the trespass charge. Best v Duke Univ. (1993) 112 NC App 548, 436 SE2d 395. In a claim of malicious prosecution, the trial court erred when it determined that the plaintiff had produced insufficient evidence to support an inference of malice where the plaintiff was a child's guardian ad litem, where the plaintiff had instructed her colleague not to allow anyone to interview the child as to allegations of sexual abuse without either her presence or that of a licensed psychologist, where the defendant police detective tried to interview the child without the presence of either the plaintiff or a psychologist, where the detective filed charges, which were later dropped, because the record indicated that the defendant may have filed the charges without probable cause, because the record disclosed that the defendant made no attempt to contact the plaintiff after the incident or to confirm the appropriateness of the charges with the prosecutor, and because the record indicated that the detective became enraged when he was told he could not interview the child and made threats of criminal prosecution. Kirk v Edwards (1995, Franklin Co) 103 Ohio App 3d 187, 658 NE2d 1124. [Top of Section]

[END OF SUPPLEMENT] 12. Defenses [Cumulative Supplement]

When handling a malicious prosecution case, the plaintiff's attorney should be aware not only of the elements he must prove to make out the cause of action, but also of certain possible defenses which the defendant may rely on to avoid liability. Of course, the absence of any of the elements essential to the cause of action constitutes a defense. Moreover, there are certain affirmative defenses available to the defendant, the most common one being reliance on the advice of counsel.[FN7] It is well established that the defendant's good faith reliance on the advice of counsel constitutes a defense to an action for malicious prosecution.[FN8] The defense of advice of counsel is available where the advice was given by a private attorney, with respect to either a civil or a criminal action, as well as when the advice was given by a prosecuting attorney with respect to a criminal action.[FN9] The defense, where established, has the effect of showing either probable cause for institution of the prior proceedings, the absence of malice on the part of the defendant, or both.[FN10] Where the defendant relies on the defense of advice of counsel, he must show that a full and truthful disclosure of all the facts was made to the attorney giving the advice.[FN11] Furthermore, the defendant must have sought the advice of counsel in good faith and must have acted thereon in good faith; it is not sufficient if the defendant sought and acted on the advice merely to provide a shield against liability.[FN12] Thus, if the defendant did not make a full and complete disclosure to the attorney he consulted, or if he sought the attorney's advice in bad faith and for the purpose of protecting himself against a later action for malicious prosecution, the defense of advice of counsel may properly be rejected.[FN13] Also, the defendant must have sought the advice of an impartial attorney, and the defense is unavailable where the advice was given by an attorney who was biased against the plaintiff or who had some personal interest in the outcome of the case.[FN14] The fact that the defendant in a malicious prosecution action relied on the advice of someone other than an attorney does not generally constitute a defense.[FN15] Thus, the defendant generally cannot defend on the ground that he relied on the advice of a magistrate, clerk of court, police officer, or other nonprofessional person.[FN16] However, in some jurisdictions reliance on the advice of a magistrate in instituting criminal proceedings is considered a defense.[FN17] Other affirmative defenses available to a defendant in a malicious prosecution action include the defenses of judicial immunity and that the plaintiff was actually guilty of the charges made in the prior proceeding, notwithstanding a termination of that proceeding favorable to the plaintiff.[FN18]

The plaintiff's actual guilt is generally considered a complete defense, and his guilt or innocence of the prior charge may be retried in the malicious prosecution action. Furthermore, if the plaintiff was in fact guilty of an offense very similar to that charged, but the defendant erroneously prosecuted him under the wrong statutory section, such facts may be shown as a complete defense.[FN19] CUMULATIVE SUPPLEMENT Cases: Prosecutor was not entitled to absolute immunity for his role in negotiating and effectuating undocumented agreement by which cocaine arrestee agreed to deed two parcels of land to county in exchange for dismissal of criminal charges upon his effective cooperation with other investigations, since prosecutor's acts were not within traditional scope of prosecutorial powers and discretion protected by immunity, in that they involved primarily administrative functions; threat of suit was not unduly vexatious; and absence of criminal process deprived arrestee of any other effective way to redress conscience-shocking conduct of officials. Giuffre v Bissell (1994, CA3 NJ) 31 F3d 1241. Advice of counsel: In malicious prosecution actions under Tennessee law, advice of counsel to effect that there is reasonable chance of recovery on claim can establish probable cause for suit; however, defendant must have disclosed to his attorney all material facts within his knowledge and all facts which he could have ascertained by reasonable diligence. Hill v. White, 190 F.3d 427, 1999 FED App. 299P (6th Cir. 1999); West's Key Number Digest, Malicious Prosecution 25(2). Government attorney, who had acted within scope of her employment when she filed third-party complaint for Department of Commerce, could not be sued for malicious prosecution where that claim had been exempted from waiver of sovereign immunity by Federal Tort Claims Act, 28 USCA 2680(h). Forrest City Machine Works, Inc. v United States (1992, CA8 Ark) 953 F2d 1086. Applicable limitations period for arrestee's 1983 malicious prosecution action against police officers is 3-year period, instead of 2-year period covering actions for injuries to person caused by negligence or by reckless or wanton misconduct, because, where state law provides multiple statutes of limitations for personal injury actions, 1983 claims should borrow general or residual statute for personal injury cases. Brown v Wargo (1992, DC Conn) 815 F Supp 59. Rule 11 sanctions would not be imposed against an anti-abortion activist bringing a pro se defamation suit against women's organization and its official, despite claim that there was no conceivable basis for him to argue that the statements at issue were untrue or uttered with actual malice; the activist consulted at least two attorneys to evaluate the merit of his claims prior to filing suit, he made attempts to conduct thorough legal research, and there was no evidence that he had filed suit solely to harass. Fed.Rules Civ.Proc.Rule 11(b), 28 U.S.C.A. Horsley v. Feldt, 128 F. Supp. 2d 1374 (N.D. Ga. 2000); West's Key Number Digest, Federal Civil Procedure 2771(6).

In malicious-prosecution action, Kansas' 1-year statute of limitations begin to run upon expiration of time for filing notice of appeal, rather than from date of entry of judgment in original action, where cause of action for malicious prosecution does not accrue until time for appeal has passed on original action. Webb v Airlines Reporting Corp. (1993, DC Kan) 825 F Supp 273. Detainee's 1983 malicious prosecution and false imprisonment claims are dismissed, even though he was held in jail 9 months before his indictment was dismissed, because (1) district attorney enjoys absolute immunity for her actions in reaching undisputed compromise with detainee to cease prosecution efforts, and (2) arrest pursuant to valid warrant signed by justice of peace precludes false imprisonment claim. Lewis v Houston County Jail (1995, ED Tex) 876 F Supp 861. Plaintiff in malicious prosecution made out prima facie case of lack of probable cause by showing that criminal prosecution instigated against him by defendant was nol prossed; although defendant could rebut presumption by showing he acted in good faith, good faith was not established where defendant stated he signed warrant in reliance on police officer's advice, since defendant did not rely on advice of counsel. Thompson v Harris (1992, Ala App) 603 So 2d 1086. Family law disputes: No malicious prosecution action may arise from unsuccessful family law motions or orders to show cause. Thus, the trial court did not err in dismissing, following the sustaining of a demurrer, a former husband's malicious prosecution action against his former wife arising from the wife's repeated meritless orders to show cause, financed by her wealthy mother, attempting to modify a marital dissolution order granting primary physical custody of the couple's child to the husband. Even though the wife's activity was egregious and the husband was limited to inadequate family law remedies (attorney fees and costs under Cal. Civ. Code 4370.6 or Code Civ. Proc., 128.5) which do not include punitive damages or damages for emotional distress, allowing a malicious prosecution action in family law matters might result in a flood of litigation, given the bitterness that often typifies family law cases, and might chill the pursuit of legitimate family law remedies. Bidna v Rosen (1993, 4th Dist) 19 Cal App 4th 27, 23 Cal Rptr 2d 251, 93 CDOS 7354, 93 Daily Journal DAR 12461. Advice of counsel is a complete defense to an action of vexatious suit when it is shown that the defendant instituted his civil action relying in good faith on such advice, given after a full and fair statement of all facts within his knowledge, or which he was charged with knowing. C.G.S.A. 52-568. Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 715 A.2d 807 (1998). Qualified immunity: Department of Health and Rehabilitative Services' caseworker was only entitled to qualified immunity, rather than absolute immunity, from state claims for malicious prosecution in filing sworn petition for dependency of infant, as her role was not fully analogous to a prosecutor who only relies on evidence received from law enforcement and who enjoys absolute immunity, but rather to a dual role of prosecutor and police officer, who collects and decides sufficiency of evidence and so enjoys only qualified immunity; the employee's immense power of having both investigated and filed the petition and the balance of interests involved supported a grant of only qualified immunity. West's F.S.A. 768.28(9)(a). Johnson v. Sackett, 793 So. 2d 20 (Fla. Dist. Ct. App. 2d Dist. 2001); West's Key Number Digest, Infants 17.

Although "good faith" defense to claim of abusive litigation is defined in subjective terms to the extent it refers "to the best of a person's or his or her attorney's knowledge, information, and belief, formed honestly," attorney cannot establish that he or she acted in good faith by simply asserting a subjective, honest belief that a claim was well grounded in fact and warranted by existing law or by reasonable grounds to believe that an argument for changing the law may be successful; "reasonable inquiry" requirement of abusive litigation statute is an objective good faith requirement which imposes duty to conduct reasonable inquiry into the facts and law prior to initiating, continuing, or procuring a claim; thus, applicable standard is what would be objectively reasonable for a competent attorney under the circumstances. O.C.G.A. 51-7-80(4). Kluge v. Renn, 226 Ga. App. 898, 487 S.E.2d 391 (1997). A customer brought suit against a store that charged him with forgery when he attempted to purchase items with his wife's checks. After watching the customer and a female companion making a series of purchases, the store's security manager asked them to identify themselves. While the manager was seeking telephone approval for the check, a cashier informed him that the couple was running down the escalator. In his affidavit, the customer claimed that he had explained to the manager that the checks belonged to his wife and urged him to contact her. In an unsworn statement of facts he claimed were in dispute, he also explained that he had left the scene when the manager picked up the phone because he thought the manager was calling his wife, whom he did not want to know he was shopping with another woman. The trial court erroneously denied the store's motion for summary judgment. The evidence was sufficient to establish that the manager had reasonable cause to believe the customer had committed the crime. Additionally, the customer's wholly unsubstantiated assertion that his wife had given him permission to use her checks was insufficient to rebut a grand jury indictment as prima facie evidence of probable cause. Sears Co. v Weddington (1990) 197 Ga App 52, 397 SE2d 471. Claimant corporation engaged in dissemination of information regarding religious freedom stated claim for malicious prosecution against two religious corporations and their attorneys, allegedly responsible for 21 lawsuits against corporation over 17 month period, all terminated in claimant's favor, even though it was argued that allowance of claim violated First Amendment rights of those bringing suits; First Amendment rights would not protect parties filing litigation maliciously, and in any event present proceeding was only for purpose of determining if claim was stated, and First Amendment claim was fact-dependent defense. U.S.C.A. Const.Amend. 1; S.H.A. 735 ILCS 5/2-615. Cult Awareness Network v. Church of Scientology Intern., 177 Ill. 2d 267, 226 Ill. Dec. 604, 685 N.E.2d 1347 (1997). Advice of counsel: Developer was not entitled to amend pleadings to conform to evidence by asserting defense of advice of counsel in malicious prosecution action, where record was devoid of testimony directly addressing issue of advice of counsel as well as extent of information that was transmitted by developer to its attorney, evidence simply demonstrated that developer had consulted with an attorney who then signed interference complaint against property owner, and developer set forth no evidence establishing competency of any of attorneys who represented it during the twelve-year litigation. Executive Builders, Inc. v. Trisler, 741 N.E.2d 351 (Ind. Ct. App. 2000), cert. denied, 2002 WL 13288 (U.S. 2002); West's Key Number Digest, Pleading 237(8).

In action against three physicians and their attorney for malicious prosecution, arising out of physicians' prior lawsuit against plaintiff for defamation and malicious prosecution, plaintiff failed to state cause of action against attorney. Although plaintiff alleged that attorney deliberately encouraged physicians to file prior lawsuit against him, gave evasive discovery responses, and wrongfully opposed procedural motions so as to prolong litigation against plaintiff, plaintiff did not allege that attorney either exceeded scope of his agency or engaged in intentionally tortious conduct. At best, plaintiff alleged that attorney zealously prosecuted weak case on behalf of his clients. MacFadyen v Lee (1992, La App 1st Cir) 601 So 2d 24, cert den (La) 606 So 2d 544. Non-lawyers who rely on the advice of counsel may, in some circumstances, raise this as a defense to an allegation of malicious prosecution. Carter v. Aramark Sports and Entertainment Services, Inc., 153 Md. App. 210, 835 A.2d 262 (2003); West's Key Number Digest, Malicious Prosecution 21(1). Owner of corporation did not have standing to bring malicious prosecution action arising from prior action commenced by defendant against corporation, Since owner of corporation was not party to either original contract between defendant and corporation which led to prior action, or prior action by defendant. Crown Wisteria, Inc. v F.G.F. Enterprises Corp. (1990, 1st Dept) 168 App Div 2d 238, 562 NYS2d 616. Psychiatrist who, as consultant to disciplinary committee, recommended that plaintiff attorney undergo psychiatric examination in connection with misconduct proceedings brought against him was entitled to summary judgment dismissing action for malicious prosecution and abuse of process, since his findings and letter to disciplinary committee concerning his evaluation of plaintiff's psychiatric condition constituted privileged information and was immune from legal action, amounting to official acts in judicial proceeding. Klapper v Guria (1992, Sup) 153 Misc 2d 726, 582 NYS2d 892. Action for malicious prosecution was properly dismissed, since plaintiff forecast no evidence demonstrating special damages, where plaintiff merely referred to liquidated damages, and where there was no factual dispute as to whether special damages existed. Abram v Charter Medical Corp. (1990) 100 NC App 718, 398 SE2d 331, review den 328 NC 328, 402 SE2d 828. Where a bank customer charged a bank with malicious prosecution, libel, and slander for disclosures it made which led to his wrongful indictment for the criminal offense of unauthorized sale or disposition of a secured vehicle, the trial court erred in granting the bank's motion for summary judgment on the ground that 31 USCA 5318(g)(3) insulated it from liability, because unresolved material fact issues existed as to whether the bank reported a possible violation of law by its customer, and if so, whether such report was made by the bank knowing it to be untrue, in which case the bank's affirmative defense would not apply. Walls v First State Bank (1995, Tex App Amarillo) 900 SW2d 117, writ of error filed (Aug 1, 1995). Public policy: Right to bring suit for malicious prosecution is strictly limited,

since such suits intimidate prospective litigants, and public policy favors open courts in which a plaintiff may fearlessly present his case. Hanson v. Estell, 100 Wash. App. 281, 997 P.2d 426 (Div. 3 2000); West's Key Number Digest, Malicious Prosecution 38. Limitation of actions: The right to bring an action for malicious prosecution accrues upon the termination of the action complained of in the trial court and is barred by the statute of limitation if not asserted within one year after such termination, although an appeal of the action complained of is pending; under this rule, the termination of the action complained of in the trial court is the trial court's entry of its final order which terminates litigation between the parties and leaves nothing to be done but to enforce the execution of what has been determined. McCammon v. Oldaker, 516 S.E.2d 38 (W. Va. 1999); West's Key Number Digest, Limitation of Actions 106. Defendant in malicious prosecution action was not entitled to directed verdict on grounds he relied on advice of counsel in initiating criminal charges, where defendant's personal attorney testified she advised defendant that although there "might be criminal ramifications" to plaintiff's actions, she was not criminal attorney, and that she did not recommend that criminal warrant be obtained, and where prosecuting attorney testified he never gave any indication to defendant as to whether plaintiff had committed criminal offense. Pote v Jarrell (1991, W Va) 412 SE2d 770. [Top of Section] [END OF SUPPLEMENT] 12.5. Vexatious litigation claims [Cumulative Supplement]

CUMULATIVE SUPPLEMENT Cases: New trial is denied and sanctions will be imposed upon pro se 1983 litigant, where litigant was arrested for criminal trespass after arguing with store manager because store was out of specific brand of vermouth, charges were dismissed on speedy trial violation, then litigant sued store, manager, arresting officers, and town for false arrest, malicious prosecution, and violation of his Twenty-first Amendment right to purchase alcohol, because litigant was warned upon dismissal of that suit against further frivolous actions, yet brought baseless motion arguing that court had joined conspiracy against him and deprived him of his right to jury verdict. Baasch v Reyer (1993, ED NY) 827 F Supp 940. Computer software developer had probable cause to bring federal copyright infringement action against competitor, and thus competitor could not prove its

vexatious litigation claims, although federal jury found that developer brought action with malice, where neither party disputed that software program was copied and taken from client's offices and transported to computer hardware vendor's facilities for benchmarking, competitor was party to benchmarking, and federal court on competitor's motion for sanctions found that developer had good claim. C.G.S.A. 52-568. Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 715 A.2d 807 (1998). A layperson who brought actions for malicious prosecution, intentional infliction of emotion distress, and harassment was properly prohibited from representing himself and properly required to obtain counsel after the court found that the plaintiff had disrupted the effective and orderly administration of justice by maligning and threatening opposing counsel and filing immaterial, irrelevant, and impertinent pleadings, where there was competent and substantial evidence to support the trial court's assessment of the situation. Rodriguez-Diaz v Abate (Fla App, 1993) 613 So 2d 515, 18 FLW D 341, review dismd (Fla) 618 So 2d 1371. [Top of Section] [END OF SUPPLEMENT] 13. Burden of proof and evidence[FN20] [Cumulative Supplement]

In an action for malicious prosecution, the burden is on the plaintiff to prove the essential elements by a preponderance of the evidence.[FN21] The plaintiff is not, however, required to prove his actual innocence of the prior charges.[FN22] Furthermore, while the plaintiff must introduce affirmative proof of lack of probable cause, some courts have indicated that, since such proof is necessarily negative in character, the plaintiff need introduce only slight proof on that issue. Other courts, however, require the same degree of proof of lack of probable cause as is required on other elements of the cause of action.[FN23] Once the plaintiff has made a prima facie showing of lack of probable cause, the burden shifts to the defendant to rebut such evidence.[FN24] The burden of proof of all affirmative defenses is on the defendant.[FN25] Thus, where the defendant relies on the defense of advice of counsel, he must show by a preponderance of the evidence that he acted on the advice of an attorney, after making a full and complete disclosure to the attorney of all facts known to the defendant.[FN26] Similarly, the burden is on the defendant where he relies on the defense that the plaintiff was actually guilty of the prior charge.[FN27] The evidence in an action for malicious prosecution necessarily depends on the facts of the particular case. Questions as to the admissibility of evidence are governed by the general principles of evidence, and any evidence which is relevant to one of the issues in the action and which is otherwise admissible may be introduced.[FN28] While some issues are often susceptible of direct proof, others generally must be proved by circumstantial evidence, and the plaintiff's case is

usually based on a combination of direct and circumstantial evidence. Proof as to the initiation of the prior proceeding, the defendant's responsibility therefor, and its termination as favorable to the plaintiff is often made by introduction of properly authenticated judicial records of the prior proceeding. Thus, the plaintiff may introduce an affidavit executed by the defendant, a warrant of arrest or a search warrant, a transcript or other record of the prior proceedings, a copy of the judgment in the prior case, or any other properly authenticated record relevant to the issues.[FN29] The defendant's responsibility for the prior proceedings also may be proved by any other evidence tending to show that he was an affirmative cause of the proceedings, such as evidence indicating that he actively sought institution of the proceedings or evidence that he employed counsel for the prosecution of the prior action.[FN30] Lack of probable cause and the existence of malice are generally proved by circumstantial evidence. In presenting his case, the plaintiff is not limited to evidence of facts actually known to the defendant at the time the proceedings were instituted, but may also introduce evidence of facts and circumstances that were so open and notorious that the defendant, unless he was acting from malicious motives, should have and would have known them. With respect to malice, the plaintiff may also present any evidence showing that the defendant had some improper or ulterior motive for initiating the prior action.[FN31] Also, since a person's good character and reputation should be considered with other facts in determining the probability of his guilt, the plaintiff generally may introduce evidence that his character and reputation were good at the time the prior proceeding was initiated, together with evidence showing that the defendant knew or could have ascertained such reputation.[FN32] CUMULATIVE SUPPLEMENT Cases: Grand jury indictment as presumptive probable cause: under New York law, indictment before a grand jury creates a presumption of probable cause that may only be rebutted by evidence that the indictment was procured by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith, for purposes of a malicious prosecution claim. Savino v. City of New York, 331 F.3d 63 (2d Cir. 2003); West's Key Number Digest, Malicious Prosecution 24(7). Civil rights plaintiff's past misdemeanor conviction for unlawful use of credit card was admissible in 1983 suit for malicious prosecution. Prior conviction explicitly included element of intent to defraud and could be used to impeach plaintiff's credibility. Logan v Drew (1992, ND Ill) 790 F Supp 181. In malicious prosecution action against police officer based on officer's charges of battery and resisting arrest against plaintiff for which plaintiff was found not guilty, officer's motion in limine to exclude evidence of the not-guilty verdict is denied because, given the elements of an action for malicious prosecution, including (1) the commencement of an original criminal or civil judicial proceeding by the defendant, (2) the termination of the proceeding in favor of the plaintiff, and (3) the absence of probable cause for such proceeding, it is axiomatic that the jury verdict in question is relevant and should not be

excluded. Logan v Drew (1992, ND Ill) 790 F Supp 181, (applying Illinois law). Transcript of audiotape of secretly recorded conversation between homeowner and city plumbing inspector was admissible in homeowner's action for fraud and malicious prosecution; inspector testified that he had read transcript and considered it fairly accurate, and trial court instructed jurors to use transcript only as an aid and that any conflicts between audiotape and transcript were to be resolved in favor of audiotape. City of Gasden v. Lawder, 718 So. 2d 707 (Ala. Civ. App. 1997), reh'g denied, (Dec. 5, 1997) and rev'd, 718 So. 2d 716 (Ala. 1998), on remand to, 718 So. 2d 721 (Ala. Civ. App. 1998). Expert testimony regarding what constitutes probable cause to institute and maintain an action is not required in an action for malicious prosecution, so that a plaintiff's failure to present expert testimony regarding whether or not the actions of the defendant attorneys in instituting and maintaining the original action were reasonable would not be grounds for reversal. Gerard v Ross (1988, 2nd Dist) 204 Cal App 3d 968, 251 Cal Rptr 604. Heavy burden: An aggrieved party has an especially heavy burden in an action for malicious prosecution since his interest is weighed against the public's interest in encouraging citizens to report violations of law. Willis v Brassell (1996) 220 Ga App 348, 469 SE2d 733, 96 Fulton County D R 913. While a plaintiff ordinarily bears the burden of proof on all the elements of the malicious prosecution action, including proving the absence of probable cause and malice, a presumption of lack of probable cause exists where a committing magistrate, without a trial, has discharged the accused, or the prosecuting officer has dismissed the charge, or where a grand jury has returned a no bill, and thus the burden of showing that the plaintiff acted on probable cause and without malice is upon the defendant. Hope v. City Of Shreveport, 862 So. 2d 1139 (La. Ct. App. 2d Cir. 2003); West's Key Number Digest, Mandamus 24(3). State of mind evidence: Evidence regarding allegations of embezzlement which preceded teacher's departure from prior job was admissible "prior bad act" to establish teacher's state of mind and her motive for acting against superintendent of juvenile institution, in superintendent's action against teacher and others for allegedly conspiring to file false sexual harassment charges against him; evidence lent support to superintendent's theory that teacher maliciously filed false charges against him as act of self-preservation to keep her job at all costs. N.J.S.A. 2A:84A, App. A; Rules of Evid., N.J.R.E. 404(b). Hill v. New Jersey Dept. of Corrections Com'r Fauver, 342 N.J. Super. 273, 776 A.2d 828 (App. Div. 2001); West's Key Number Digest, Evidence 134. In malicious prosecution action, trial court did not err in admitting evidence that plaintiff had been acquitted of shoplifting charges, since (1) termination of criminal proceeding in plaintiff's favor was necessary element of cause of action, (2) acquittal had little evidentiary value since it raised no presumption of lack of probable cause to prosecute plaintiff, and (3) absence of charge to jury on different standards of proof in criminal and civil proceeding did not prevent jury from finding in surrounding circumstances want of probable cause to prosecute. Horn v Village Supermarkets, Inc. (1992) 260 NJ Super 165, 615 A2d 663, certif den 133 NJ 435, 627 A2d 1141.

In action against town for, inter alia, malicious prosecution and abuse of process arising from town's multiple efforts to enforce zoning law against plaintiff, plaintiff's contention that town was collaterally estopped from relitigating same issues in its civil action for injunction after dismissal of its criminal action against plaintiff was not reviewable on appeal from order which granted town's motion for summary judgment dismissing plaintiff's complaint, where town's civil enforcement action had been resolved by settlement whereby court was to issue order directing plaintiff to abide by town zoning law, since plaintiff's failure to appeal or otherwise challenge court's order ended her right to raise issues relating to that order. Deising v Town of Esopus (1994, 3d Dept) 204 AD2d 940, 611 NYS2d 964. In action for false arrest and malicious prosecution based on alleged conduct of police in deliberately withholding material exculpating plaintiff from assistant district attorney, transcript of unsworn statements made in open court by assistant district attorney disclosing certain exculpatory material would be admitted as business record under CLS CPLR 4518, since prosecutor's duty to disclose exculpatory material in his control assured trustworthiness of statements. Kearney v New York (1989) 144 Misc 2d 201, 543 NYS2d 879. [Top of Section] [END OF SUPPLEMENT] 13.5. Expert testimony [Cumulative Supplement]

CUMULATIVE SUPPLEMENT Cases: Expert's probable cause opinion: Trial court acted within its discretion in precluding store patron's expert from testifying as to law governing arrests and investigative stops and from stating his legal conclusion that police officer lacked probable cause or reasonable suspicion to detain patron for shoplifting, in patron's action against officer for assault and battery and false arrest and against store for negligent hiring, training, and supervision after he was stopped on suspicion of shoplifting but released without charge; such testimony was not calculated to help jury do its job, in that judge alone had responsibility to instruct jury on law and jury alone had responsibility to apply law to facts. Steele v. D.C. Tiger Market, 854 A.2d 175 (D.C. 2004); West's Key Number Digest, Mandamus 506. In malicious prosecution action, court's refusal to allow plaintiff's proposed expert to testify on "generally accepted police procedures" in order to elicit his opinion as to whether probable cause existed at time of plaintiff's arrest, if

error, was harmless since jury agreed with plaintiff's position that his arrest was not supported by probable cause, and jury's verdict in favor of defendants was based on its finding that arrest was not motivated by "ill will," or by some other ulterior circumstance. Barone v Mt. Vernon (1991, 2d Dept) 170 AD2d 557, 566 NYS2d 332. The trial court did not err in granting defendant public safety officer's motion for a directed verdict on the issue of punitive damages in a malicious prosecution action because the evidence was inadequate to present a question of actual malice for the jury where probable cause based on uncontroverted facts existed for plaintiff's arrest and prosecution for larceny, and plaintiff testified that the officers were polite and professional to him at his stop and during his arrest. Best v Duke Univ. (1994) 337 NC 742, 448 SE2d 506. [Top of Section] [END OF SUPPLEMENT] 14. Damages; in general [Cumulative Supplement]

In an action for malicious prosecution the plaintiff may recover both compensatory and punitive damages. In determining the amount of damages recoverable, the general rules of damages are applicable, whether the action is based on the institution of a civil or a criminal action.[FN33] However, the nature of the prior proceeding as civil or criminal does have a significant impact on the proof of damages required to sustain a verdict. There are three basic items of compensatory damages, covering both pecuniary and nonpecuniary losses. These items of damages include the costs to the plaintiff of defending the prior action, including reasonable attorneys' fees, compensation for injury to his character and reputation, including injury to his social or business standing in the community, and compensation for mental suffering and humiliation resulting from the initiation and prosecution of the prior action.[FN34] It has been noted that malicious prosecution arose as an action for the protection of a person's reputation against the damage caused by unjustified litigation, and consistent with that rationale, the bulk of recovery for compensatory damages typically is for injury to reputation and mental suffering.[FN35] In a malicious prosecution action based on the initiation of a criminal action, it is generally presumed that injuries to the plaintiff's reputation and mental wellbeing necessarily result from the fact that the plaintiff has been formally accused of a crime. Thus, in such cases the great majority of jurisdictions allow the recovery of damages for loss of reputation and mental distress as general damages, without any special pleading or proof of actual damages.[FN36] As a result, in a malicious prosecution action based on the instigation of criminal proceedings the plaintiff may recover a large sum for these elements of damages with little or no real proof of them.[FN37]

When an action for malicious prosecution is based on a civil proceeding, the majority view is that no damages are assumed and that the plaintiff must prove all damages in excess of actual pecuniary losses. This rule is probably based on the assumption that most civil cases, even if maliciously instituted, do not necessarily harm a person's reputation or cause emotional distress.[FN38] In line with this rationale, if the civil action complained of carries defamatory implications or involves interference with the plaintiff's person or property, the courts will apply the per se damage rule applicable to criminal actions.[FN39] It is generally accepted that, even in a case where no special proof is required, the plaintiff may introduce evidence concerning the damage to his reputation or feelings caused by the prior action. Such evidence is usually of two kinds: general testimony concerning the fact that the plaintiff was shamed or humiliated by the prior action; and testimony regarding specific incidents which show damage to his reputation or mental well-being.[FN40] Thus, in determining damages, it has been held that the jury may consider evidence of the plaintiff's age (57 years), his standing in the community, his previously unblemished record, and the humiliation he suffered from being arrested in the presence of a friend.[FN41] Similarly, evidence that the plaintiff was arrested and spent the night in jail, and that such facts were reported on the front page of the newspaper, may be considered in assessing damages.[FN42] The plaintiff may also introduce evidence showing a change in the conduct of his friends or acquaintances toward him, a change in his business standing in the community, his loss of credit, and the emotional distress caused him by the fact that his family was aware of the charges.[FN43] In considering awards of punitive damages in malicious prosecution actions, the courts have pointed out that such damages are intended not only to punish the defendant, but to deter the defendant and others from committing similar misconduct.[FN44] The amount of punitive damages to be awarded in a particular case is largely within the discretion of the trier of fact.[FN45] In considering whether punitive damages should be assessed, and if so, the amount thereof, there are two basic considerations: the nature of the wrong committed by the defendant, and the financial worth of the defendant. With respect to the first factor, the general view is that punitive damages may be awarded where there is proof of actual malice, sometimes referred to as malice in fact, where the defendant proceeded in a wanton manner or with a reckless disregard of the plaintiff's rights, or where other aggravating circumstances are shown by the evidence.[FN46] Thus, it has been held that it was proper to admit evidence showing that the defendant, after being given compelling evidence of the plaintiff's innocence, repeatedly refused to seek termination of pending criminal proceedings, and that such evidence could be considered as a severe aggravating circumstance in determining the amount of punitive damages.[FN47] With respect to the financial wealth of the defendant, the courts have pointed out that, since one of the purposes of punitive damages is to punish the defendant, evidence as to the wealth of the defendant is relevant in determining the amount of damages necessary to accomplish the purpose.[FN48]

Since there is a great deal of subjectivity involved in awards of both compensatory and punitive damages in malicious prosecution actions, the attorney handling such a case should give a great deal of attention to the issue of damages. With respect to compensatory damages, it has been pointed out that the plaintiff's attorney must make a determination, based on the particular facts of the case, of the best method of proving the damage to his client's reputation and emotional well-being resulting from the prior proceeding, not only to persuade the trier of fact, but also to avoid a reversal on appeal.[FN49] The plaintiff's attorney general should introduce such evidence even in a case where no special proof is required, since he may obtain a larger verdict thereby. The same considerations apply when the attorney is seeking punitive damages. Careful attention should be paid to any aggravating circumstances which will support such an award, and the financial wealth of the defendant should be investigated, especially in the case of corporate or other presumptively wealthy defendants. The presentation of such evidence may result in a significantly larger verdict than the plaintiff might otherwise obtain. For example, in a malicious prosecution action based on the plaintiff's arrest on shoplifting charges, compensatory damages of $10,000 and punitive damages of $46,000 were upheld as not excessive, where the defendant was a corporation with a large net worth and there were aggravating circumstances surrounding the plaintiff's arrest and prosecution.[FN50] CUMULATIVE SUPPLEMENT Cases: Police officers who mistakenly obtained and executed warrant for arrest of individual they believed was responsible for check kiting and fraud, but who turned out to have been innocent victim of elaborate fraud scheme using his stolen credentials, were protected by statutory immunity from malicious prosecution action in absence of showing that officers' use of handwriting samples of both individual and person impersonating him in preparing affidavit for warrant was intentionally or recklessly misleading. Beard v City of Northglenn (1994, CA10 Colo) 24 F3d 110. $2 million for past injury to reputation, inconvenience, anguish, humiliation, and loss of liberty, and $500,000 for future injury to reputation, inconvenience, anguish, and humiliation, in favor of businessman who brought malicious prosecution action against city arising out of resisting-arrest charges was excessive award; awards would be lowered to $300,000 and $200,000 respectively. Rodick v City of Schenectady (1994, ND NY) 856 F Supp 105. Causation: Award of $750,000 in compensatory damages to securities broker on her claim for malicious prosecution, solicitation of perjury, and perjury against investors, a husband and wife who had unsuccessfully sued broker over failed investment, was not supported by competent substantial evidence; broker incurred attorney fees of $360,000 defending herself against lawsuits brought by a total of 14 investors, no evidence indicated that entire fee was incurred as a result of investors' action, and while broker was fired from her job, there was no evidence that she lost her job as a result of investors' suit as opposed to ensuing Securities and Exchange Commission (SEC) investigation or suits brought by other

investors. Ruskin v. Ryan, 859 So. 2d 1218 (Fla. Dist. Ct. App. 4th Dist. 2003); West's Key Number Digest, Damages 133. Evidence that army officer who was arrested and prosecuted for disorderly conduct at initiation of casino had never before been arrested, that arrest could affect his career even though it was expunged, that he had to ask former subordinates to testify on his behalf at criminal trial, that he was forceably detained and handcuffed by casino employees, that he was embarrassed by being escorted out of casino in handcuffs, and that arrest and prosecution harmed his reputation, was sufficient to establish that army officer was damaged by casino's acts, in officer's action against casino for false imprisonment and malicious prosecution. Alpha Gulf Coast, Inc. v. Jackson, 801 So. 2d 709 (Miss. 2001); West's Key Number Digest, Malicious Prosecution 65.1. Trial court properly exercised its discretion in denying attorney's fees to prevailing defendants in malicious prosecution action brought under 42 USCA 1983 by tire dealer who ended up in middle of transactions based on NSF checks and who sued public and private parties for resulting criminal involvement, where, although presentation of trial evidence supported successful motion for directed defense verdict, plaintiff had suffered substantial damage and his attempt to establish civil liability was therefore not frivolous. Bankston v Pass Rd. Tire Center, Inc. (1992, Miss) 611 So 2d 998. $15,000 award in malicious prosecution future damages to store customer who was prosecuted for, and found not guilty of, petty larceny, assault and battery, and resisting arrest following his detainment for shoplifting was not excessive; customer was also awarded $2,000 in past damages on his malicious prosecution claim against store. K-Mart Corp. v Washington (1993, Nev) 866 P2d 274. Emotional distress: While superintendent of juvenile institution could not recover for litigation-induced distress, he could recover for severe emotional distress, exclusive of litigation, proximately caused by alleged conspiracy of equal employment opportunity (EEO) director, teacher at institution, and union president, to file false sexual harassment charges against him. Hill v. New Jersey Dept. of Corrections Com'r Fauver, 342 N.J. Super. 273, 776 A.2d 828 (App. Div. 2001); West's Key Number Digest, Damages 49. Causation of damages: Modeling agency's allegations fell short of the specific and meaningful damages required to maintain a malicious prosecution action against sports management firm, which brought underlying action seeking damages for inducing firm's clients into defecting to a new management agency that was a division of modeling agency's company; modeling agency could not identify any individuals represented by its related entities that terminated their business relationships because of the allegations in the underlying action and did not show a loss of financing. McKinney's CPLR 3211. Wilhelmina Models, Inc. v. Fleisher, 19 A.D.3d 267, 797 N.Y.S.2d 83 (1st Dep't 2005); West's Key Number Digest, Malicious Prosecution 14. In an action for malicious prosecution, abuse of process and false arrest, compensatory damage awards of $100,000 to each plaintiff were excessive, and would be reduced by remittur to $10,000, where plaintiffs suffered almost no financial loss, their contact with the criminal justice system was brief, and much of their

alleged humiliation resulted from their own admitted instigation and encouragement of media coverage. Parkin v Cornell University, Inc. (1992, 3d Dept) 182 App Div 2d 850, 581 NYS2d 914, app dismd 80 NY2d 914, 588 NYS2d 821, 602 NE2d 229. Award of $75,000 in favor of woman who was maliciously prosecuted and falsely imprisoned in connection with alleged shoplifting was excessive in relation to woman's injuries, which were mental and emotional in nature and for which she did not seek medical attention. Soares v Ann & Hope, Inc. (1994, RI) 637 A2d 339, summary op at (RI) 14 R.I.L.W. 803. Where the jury in a malicious prosecution case awarded the victim's wife damages for loss of consortium, which were not included in the trial court's judgment, the Court of Appeals erred in reinstating the damages to the wife, because damages for loss of spousal consortium are not recoverable absent proof of physical injury. Browning-Ferris Indus. v Lieck (1994, Tex) 881 SW2d 288. Award of $150,000 in malicious prosecution case for emotional distress was supported by evidence of accused's fear and anxiety related to charges pending against her, and emotional strain surrounding her preparation for and attendance at over 15 court proceedings as criminal defendant; additional evidence that she could not sleep or eat, required medication or psychiatric care, experienced depression, or fell into substance abuse as result of the charges against her was not required. Thrift v. Hubbard, 974 S.W.2d 70 (Tex. App. San Antonio 1998), reh'g denied, (May 6, 1998) and review denied, (Oct. 15, 1998). A seller of cattle satisfied the requirements for bringing a malicious prosecution action, because there was interference with the person of the seller and there was interference with his money because of extensive and expensive but necessary and reasonable attorney's fees and court costs that the seller had to pay in 3 separate lawsuits between the seller and the potential buyer, and the trials and the resulting appeals constituted special injury since the seller was required to spend several hundred thousand dollars in defending the suits. Texas Beef Cattle Co. v Green (1994, Tex App Beaumont) 883 SW2d 415, 130D motion filed (Oct 7, 1994). [Top of Section] [END OF SUPPLEMENT] 14.5. Punitive damages [Cumulative Supplement]

CUMULATIVE SUPPLEMENT Cases:

Home improvement retailer was potentially liable for punitive damages under Pennsylvania law, in malicious prosecution action by customer whose erroneously printed check, written to retailer, was refused, where store continued to prosecute customer even after it had received payment in full plus a penalty and customer took many steps to remedy the discrepancy and spoke to a top manager at corporate headquarters. Hayfield v. Home Depot U.S.A., Inc., 168 F. Supp. 2d 436 (E.D. Pa. 2001); West's Key Number Digest, Malicious Prosecution 68. Award by jury of $300,000 in punitive damages to customer in malicious prosecution action against bank, which had customer prosecuted for defrauding a secured creditor after customer filed for bankruptcy, did not offend federal due process; harm to customer was not purely economic in nature, there was ample evidence bank made false representations to prosecutor to secure customer's prosecution, three to one ratio of punitive damages to compensatory damages was not breathtaking, and an award of a similar amount of punitive damages had been previously upheld in Arkansas. U.S.C.A. Const.Amend. 14. Bank of Eureka Springs v. Evans, 109 S.W.3d 672 (Ark. 2003); West's Key Number Digest, Malicious Prosecution 69. Awards of $30,000 in compensatory damages and $75,000 in punitive damages to landowners who prevailed on slander of title, malicious prosecution, and abuse of process claims against parties who had claimed ownership interest in land were not excessive; landowners had sustained out-of-pocket expenses totalling $13,720, and presented evidence that while forced to litigate matter they suffered stress, stomach problems, and martial differences and sought medical attention. Houston v. Knoedl, 329 Ark. 91, 947 S.W.2d 745 (1997). Legal malice, if based on a showing of gross misconduct or willful and wanton disregard of a plaintiff's rights, is sufficient to support a punitive damage award. Alamo Rent-A-Car v Mancusi (1994, Fla) 632 So 2d 1352, 19 FLW S 20. Customer was entitled to punitive damages of $250,000 on finding that department store was liable for false imprisonment, false arrest, malicious prosecution, assault and battery, and intentional infliction of emotional distress; jury could find that store personnel detained customer without reason, causing her physical pain, outrage and public humiliation, after newspaper named her as a suspected shoplifter, and store compounded their offense by arresting and prosecuting her in retaliation for her objecting to the rough treatment and illegal detention or in an attempt to justify their actions. Wal-Mart Stores, Inc. v. Johnson, 249 Ga. App. 84, 547 S.E.2d 320 (2001), cert. denied, (Sept. 7, 2001); West's Key Number Digest, Master and Servant 331. In action arising out of altercation at defendant's adult entertainment business, in which jury determined that defendant had maliciously prosecuted plaintiff, punitive damages were grossly excessive where (1) punitive damage award was 80 times compensatory damage award, and (2) it appeared that amount of punitive damages was actuated by jury's passion as result of plaintiff's attorney's improper and prejudicial remarks throughout trial; plaintiff's attorney incited jury's passion by attempting to try case as one against entire adult entertainment industry. Manolas v 303 W. 42nd St. Enters. (1991, 1st Dept) 173 AD2d 316, 569 NYS2d 701, app den 78 NY2d 864, 578 NYS2d 879, 586 NE2d 62. In an accounting firm's successful action for malicious prosecution based on a

former client's counterclaim for malpractice, a jury award of $17,000 in punitive damages was supported by evidence and was reasonably related to an award of $17,000 in compensatory damages, where the counterclaim had not been supported by probable cause or any good faith basis of law, and where the clients had failed to even prosecute the counterclaim. Shore, Shirley & Co. v Kelley (1988, Cuyahoga Co) 40 Ohio App 3d 10, 531 NE2d 333, motion overr 37 Ohio St 3d 714, 532 NE2d 766. Award of $450,000 in punitive damages to African-American woman, who sued grocery store for false arrest and malicious prosecution after she was stopped pursuant to policy under which store personnel could randomly check any customer for receipts, was not so excessive as to violate store's due process rights; store had notice that its right to interfere with customer's freedom must be based on probable cause, actions were sufficiently reprehensible to support award, and award, which far exceeded compensatory damages award of $25,000, was reasonably related to harm. U.S.C.A. Const.Amend. 14. Blume v. Fred Meyer, Inc., 155 Or. App. 102, 963 P.2d 700 (1998). Punitive damage award of $1,000,000 against attorney and his law firm was not excessive in landlords' action for wrongful use of civil proceedings, abuse of process and intentional interference with contractual relations arising out of attorney's representation of client in equity action against landlords, where attorney indulged his client's desire to wield every available legal mechanism against landlords without hope of success, simply to harass them and cause them to suffer emotional and financial harm, assisted in prolonging this design for many years, and resorted to baseless efforts to interfere with landlords' property rights long after his client's business was irretrievably lost, all in return for significant remuneration. Shiner v. Moriarty, 706 A.2d 1228 (Pa. Super. Ct. 1998), reargument denied, (Mar. 19, 1998). Punitive damage award of $1,000,000 against bank for malicious prosecution of borrower was not excessive where, after borrower's indictment, borrower became severely depressed and suffered from post-traumatic stress disorder, bank acted with malice and continued to try to collect on loan after it knew of borrower's bankruptcy, bank showed no remorse, and bank's principals made misrepresentations to district attorney and grand jury with purpose of obtaining felony indictment to compel borrower to pay debt barred by bankruptcy. Ellis County State Bank v Keever (1996, Tex App Dallas) 936 SW2d 683. Sellers of cattle were entitled to $500,000 exemplary damages in suit alleging tortious interference with contract and malicious prosecution where, although basic conflict involved interference with contract between sellers and buyers of beef, defendant had threatened to cause financial ruin to sellers by continuing prosecution of complex case "to highest court," and in consideration of extent that offending conduct insulted public sense of justice and propriety. Texas Beef Cattle Co. v Green (1994, Tex App Beaumont) 883 SW2d 415, 130D motion filed (Oct 7, 1994). [Top of Section] [END OF SUPPLEMENT]

 15. Elements of damages: guide and checklist Testimony as to the following elements of damages, among others, should be elicited, when applicable, from the plaintiff and his witnesses in an action seeking recovery for the malicious prosecution of the plaintiff by the defendant:

? Injury to plaintiff's reputation In the community where he lives In the community where he is employed ? Mental distress and injury to plaintiff's feelings As a result of arrest and incarceration As a result of having to defend against unfounded charges As a result of humiliation, embarrassment, or shame As a result of the reaction of others toward plaintiff ? Physical pain and suffering sustained by plaintiff as a result of prosecution ? Costs of defending prior action Attorneys' fees Loss of income resulting from prosecution Loss of credit resulting from prosecution Other financial injuries sustained as result of prosecution ? Losses and injuries reasonably certain to be sustained in the future ? Existence of actual malice or other aggravating circumstances, where punitive damages are soughtNote: It has been observed that in malicious prosecution actions there is generally no attempt to recover damages for future mental suffering, possibly on the theory that the ordinary person will experience no suffering after obtaining a favorable termination of the prior proceedings.[FN51] However, it has been pointed out that, particularly in the case of a criminal action, many persons may continue to believe the person guilty even after an acquittal, which may result in future damage to the plaintiff's reputation and future mental suffering by the plaintiff.[FN52] Moreover, the damages recoverable for injury to the plaintiff's reputation are essentially the same as those recoverable in an action for libel or

slander, and future damages are recoverable in such actions.[FN53]

II. Proof of Defendant's Initiation of Criminal Proceedings Against Plaintiff Without Probable Cause and with Malice A. Elements of Proof 16. Guide and checklist The following facts and circumstances, among others, tend to establish that a prior criminal action against the plaintiff, which terminated favorably to the plaintiff, was initiated by the defendant without probable cause and with malice:

? Defendant's responsibility for plaintiff's arrest [ 17] ? Insufficiency of information relied on to justify arrest [ 18, 23] ? Defendant's refusal to make further investigation [ 19, 24] ? Defendant's refusal to seek termination of prosecution after knowledge of exculpatory facts [ 20, 26, 28] ? Plaintiff's innocence of charge [ 17, 23, 25, 27] ? Plaintiff's good character and reputation [ 29] ? Defendant's personal hostility toward plaintiff [ 22] ? Termination of proceedings favorable to plaintiff [ 21] [In the following proof, reference is made only to the individual defendant against whom recovery is being sought. If a corporation owned the store referred to in the proof, such corporation should also be joined as a defendant. However, the facts that must be proved to establish liability are the same, whether the action is against the individual defendant alone or against him and the corporation. The proof assumes the existence of evidence relating to damages, and no evidence is presented on that issue, except where such evidence relates to another issue as well. For the types of evidence which might be relied on to establish damages, see 14 and 15, supra.]

B. Testimony of Plaintiff 17. Defendant's responsibility for plaintiff's arrest [After introduction and identification of witness]

Q. Where do you presently reside? A. At [address] in the City of . Q. How long have you lived there? A. years. Q. How old are you? A. I am years old. Q. What is your birth date? A. , . Q. What is your occupation? A. I am a . Q. By whom are you employed? A. I work for the Company. Q. Where is that company located? A. It's in the city of also. Q. Who is your immediate supervisor there? A. . Q. I want to direct your attention now to , . Do you recall that date? A. Yes, very well. Q. Do you recall what you did that morning? A. Yes, I went shopping with a friend of mine. Q. What is your friend's name? A. . Q. Were you shopping for anything in particular? A. Yes, [friend] wanted to buy his wife some clothes, and I went along to keep him company. Q. How many stores did you go to that morning? A. Just one. Q. What store was that? A. It's a store called the Department Store. Q. Where is that store located?

A. It's also in the city of . Q. How did you and [friend] get to the store? A. I picked him up on my motorcycle, and we both rode to the store on it. Q. When you entered the store, did you carry anything with you? A. Yes, I took my helmet. [Have helmet marked for identification.] Q. I show you now plaintiff's Exhibit for identification and ask if you can identify it. A. Yes, I can. That is the motorcycle helmet I took into the store with me. Q. On that date, who owned that helmet? A. I did. Q. How long had you owned the helmet? A. days. It had been given to me for my birthday as a gift. Counsel: I offer this helmet, marked plaintiff's Exhibit for identification, into evidence as plaintiff's Exhibit . The Court: It may be admitted. Q. Did you and [friend] enter the store together? A. Yes, we did. Q. Did you remain together the entire time you were in the store? A. Yes, we did. Q. How long did you remain in the store? A. Probably about 15 minutes. Q. How large is that store? A. I don't know in terms of square feet, but it's a large store, with two stories. Q. Is the store divided into various departments? A. Yes, it is. Q. How many departments did you go to on that morning? A. The only one we went to was the women's clothing department. Q. Did you purchase anything that morning? A. No.

Q. Did you observe [friend] purchase anything? A. Yes, he bought a dress. Q. When did you leave the store? A. Right after he bought the dress. Q. Do you recall what happened after you left the store? A. Yes, as soon as I got outside, a security officer came up to me and asked me to step back in the store. Q. Did you do so? A. Yes, I did. Q. Did [friend] go back into the store with you? A. Yes. Q. What happened then? A. The security officer told me he thought I had stolen the helmet, and that I was under arrest for shoplifting. He asked me to come to the office with him. Q. Did you accompany him to the office? A. Yes. Q. Where was the office located? A. It was on the second story of the building. Q. Did [friend] go with you to the office? A. Yes. Q. When the three of you entered the office, was anyone else there? A. Yes, [defendant], the owner of the store was there. 18. Insufficiency of information relied on to justify arrest Q. Did you, [defendant], and the security officer have a discussion in the office concerning the shoplifting charge? A. Yes, we did. Q. What was said in that regard? A. The security officer told [defendant] that he thought I had shoplifted the helmet. I denied the charge, but [defendant] said he was going to call the police anyway. Q. Did the security officer give any reasons for his belief that you had stolen

it? A. Yes, he told [defendant] that he was certain I must have stolen it, because it was new and the store had them in stock. Q. Did the security officer indicate that he had seen you take the helmet? A. No, he did not. Q. Did you offer any explanation to [defendant] concerning your possession of the helmet? A. Yes, I did. Q. What explanation did you offer? A. I told him it was my helmet, and that it was new because it had just been given to me days before. Q. What response did [defendant] make to your explanation? A. He said it was my word against that of the security officer, and he would believe the security officer. 19. Defendant's refusal to make further investigation [Cumulative Supplement]

Q. Did you suggest any means of corroborating your version? A. Yes, I made several suggestions to [defendant]. Q. What were those suggestions? A. Well, first I told him that I had not even been in the department where the helmets were sold, and I suggested that he check with his salespeople in that department to verify that fact. Q. Did [defendant] do so? A. No, he did not. Q. What else did you suggest? A. I told him that if he didn't believe me, he could call up [purchaser], who had given me the helmet, and that he could also telephone , my boss, who had seen me wear the helmet at work the day before. Q. Did [defendant] attempt to contact either of those persons? A. No, he did not. Case Illustrations: Significance of evidence of defendant's failure to investigate plaintiff's explanation.

Where there was evidence that the plaintiff, after failing to receive a satisfactory explanation as to why certain automobile repairs were not covered by the warranty, stopped payment on the check for the repairs, and that the plaintiff informed the defendant of her reason for stopping payment, but the defendant, without investigating the plaintiff's complaint, swore out a warrant for her arrest, the court, stating that the defendant could not with impunity fail to investigate the plaintiff's explanation, held that the evidence was sufficient to raise a jury question as to the existence of probable cause. Shipp v Autoville, Ltd., 23 Md App 555, 328 A2d 349. Where the defendant bank mistakenly credited the plaintiffs' account with another customer's deposit, which one plaintiff withdrew prior to discovering the mistake, and where the plaintiffs agreed to come to the bank to correct the mistake at a future time, but the bank, on learning that one plaintiff had lost his job, and without attempting to contact either plaintiff again, although they lived only four or five blocks from the bank, caused the arrest of one plaintiff on a charge of theft, it was held that the evidence was sufficient to establish lack of probable cause and malice on the part of the defendant. Fry v Bank of America Nat. Trust & Sav. Asso., 142 Cal App 2d 150, 298 P2d 34.

Q. Did you make any other suggestions to [defendant]? A. Yes, I did. Q. What further suggestion or suggestions did you make? A. I told him that in addition to verifying that I owned the helmet, [purchaser] and [employer] could also vouch for my good reputation, if he would just call them. Q. What response did [defendant] make to that suggestion? A. He just said that he didn't care about my reputation. Case Illustrations: Refusal to investigate reputation as showing lack of probable cause. Where the plaintiff, after being detained by defendant for shoplifting, repeatedly proclaimed her innocence and requested defendant to contact various persons who could verify her good reputation, but the defendant refused to make any such inquiry, it was held that the defendant's refusal to investigate plaintiff's reputation was sufficient evidence to show lack of probable cause, the court noting that the plaintiff's reputation was in fact good and that the defendant was responsible for facts that could have been ascertained by reasonable inquiry. Randol v Kline's Inc., 322 Mo 746, 18 SW2d 500, later app 330 Mo 343, 49 SW2d 112. In a malicious prosecution action based on the plaintiff's arrest on shoplifting charges, it was held that she made a submissible case of lack of probable cause where the evidence showed, among other things, that on being detained she had protested her innocence, that she produced a sales slip showing that the item had been purchased on a previous date, and that the defendant completely failed to investigate her status or reputation, the court stating that the defendant was responsible for all pertinent facts which could have been determined at the time,

including the plaintiff's prior reputation. Hoene v Associated Dry Goods Corp. (Mo) 487 SW2d 479.

Q. How long did you remain in [defendant's] office? A. About half an hour. Q. What happened then? A. The police arrived, and I was taken to jail. CUMULATIVE SUPPLEMENT Cases: Refusal to investigate plaintiff's claim of ownership. A judgment in favor of the plaintiff in a malicious prosecution action was affirmed on appeal where the evidence showed that the plaintiff, on being detained for allegedly stealing a black vinyl jacket that he had actually purchased in the same store two weeks before, requested the security guard to permit the plaintiff to telephone his wife or his employer to verify his ownership of the jacket, but the guard refused. There was also evidence that the plaintiff had been seen wearing the jacket by several persons during the two weeks prior to his arrest, and that he had also been seen wearing the jacket the day of his arrest prior to his entry into the store. Finally, there was evidence that the defendant, despite all the evidence indicating the plaintiff's innocence of the charged theft, maintained the criminal prosecution in an attempt to force the plaintiff to release the defendant from civil liability. Graf v McCrory Corp. (La App) 368 So 2d 1217. [Top of Section] [END OF SUPPLEMENT] 20. Defendant's refusal to seek termination of prosecution after knowledge of exculpatory facts [Cumulative Supplement]

Q. How long did you remain in jail? A. About hours. Q. What did you do after you were released from jail? A. I immediately went over to [purchaser's] house and informed him what had happened. Q. What happened then?

A. [Purchaser] still had the sales slip for the helmet, so he gave it to me, and the following Monday he and I went back to the store. Q. Why did you wait until Monday? A. It was about p.m. by that time, and the store was closed for the weekend. Q. What time did you and [purchaser] arrive at the store on Monday? A. About o'clock in the morning. Q. What did you do after you arrived at the store? A. I went back to [defendant's] office to show him the sales slip. Q. Did [purchaser] go into the office with you? A. Yes, he did. Q. What did you do when you arrived back at [defendant's] office? A. I showed him the sales slip for the helmet. [Have sales slip marked for identification.] Q. I show you now plaintiff's Exhibit for identification, and ask if you can identify it? A. Yes, that's the sales slip. Q. Is this the slip which you showed to [defendant]? A. Yes, it is. [Offer sales slip into evidence, as in 17, supra.] Q. Did [defendant] look at the sales slip? A. Yes, he did. Q. Did you make any request of [defendant] at that time? A. Yes, I asked him to drop the charge he had made against me. Q. What was his response? A. He said that it was up to the police and the courts to handle the matter, and he didn't want me to come bothering him any more. Practice Comment: Evidence of defendant's refusal to seek termination of prosecution. Evidence that the defendant, after being presented evidence of the plaintiff's innocence, refused to seek termination of the prosecution may be admissible on several grounds. In a jurisdiction recognizing malicious continuation of prosecution as actionable, such evidence is admissible as proof that the defendant did not have probable cause for continuing the prosecution. Even in a jurisdiction not allowing recovery for malicious continuation of prosecution, such evidence may be admissible on the issues of probable cause and malice, since the evidence

subsequently presented to the defendant provided confirmation of the plaintiff's earlier explanation, and the defendant's refusal to intervene can be considered as evidence of his wanton disregard of the plaintiff's rights. Furthermore, such evidence is clearly admissible as showing aggravating circumstances that might warrant the imposition of punitive damages. See 52 Am. Jur. 2d, Malicious Prosecution 26, 94, 96, 152, 159. Case Illustration: Defendant's failure to seek termination of prosecution as supporting punitive damages. In a case where the defendant, after being given evidence which completely exonerated the plaintiff of the charge made, repeatedly refused to intervene to seek termination of the pending criminal proceedings, it was held that, although plaintiff was not relying on a malicious continuation of prosecution theory, such evidence was nonetheless admissible as showing aggravating circumstances that would warrant the imposition of punitive damages. Boquist v Montgomery Ward & Co. (Mo App) 516 SW2d 769. CUMULATIVE SUPPLEMENT Cases: Deputy, whose investigation of alleged kidnappings and rapes of schoolchildren led to plaintiff's arrest, kept prosecutors aware, even after indictment, of ongoing information he received concerning children's changing stories and recantations, and he therefore did not maliciously continue prosecution; decision whether to proceed or not in the face of new evidence rested with prosecutor. Heib v. Lehrkamp, 2005 SD 98, 704 N.W.2d 875 (S.D. 2005); West's Key Number Digest, Malicious Prosecution 4. Importance of producing sales slip. A jury verdict finding for plaintiff in an action for false imprisonment and malicious prosecution was affirmed on appeal where the evidence at trial included a cash register tape from the defendant store which apparently reflected the plaintiff's purchase of the allegedly stolen item at an earlier date. Gibson Discount Center, Inc. v Cruz (Tex Civ App) 562 SW2d 511, writ ref n r e. [Top of Section] [END OF SUPPLEMENT] 21. Termination of proceedings favorable to plaintiff Q. Did you subsequently have to go to court on that charge? A. Yes, I did. Q. What happened in court? A. There was a preliminary hearing, and at the end of the hearing the charge was dismissed.

[Have properly authenticated judicial records showing termination of prior proceeding marked for identification, and offer such records into evidence, as in 17, supra.] 22. Defendant's personal hostility toward plaintiff Q. Did you know [defendant] prior to this incident on , ? A. Yes, I did. Q. How long had you known him prior to that date? A. About years. Q. Were you on friendly terms with him during that time? A. Well, we were friendly up until about years ago, but then we had a falling out. Q. Did anything in particular precipitate the falling out? A. Yes. Q. What? A. At the time of the falling out, we were both on the local board of education. There was a dispute among the board members concerning various items of the curriculum, and the propriety of using certain books in the schools, and [defendant] and I were on opposing sides. This dispute lasted for a couple of months and it became pretty bitter. Q. Prior to that dispute, did you and [defendant] ever see each other socially? A. Yes, we did. We used to invite each other to dinner occasionally. Q. Since the dispute, have you seen [defendant] socially? A. No. Q. Did you ever make any attempt to do so? A. Yes, about six months after the dispute I described I asked him over to dinner. Q. What was his response? A. He told me that he did not want to have anything further to do with me, and that he would never forget the way I had double-crossed him on the school board. Practice Comment: Relevance of evidence showing defendant's personal hostility toward plaintiff. Evidence of the defendant's hostility toward the plaintiff is relevant to the issues of malice, lack of probable cause, and punitive damages. With respect to malice, it is well accepted that evidence of personal hostility is admissible to prove that the defendant instituted the prior proceeding for an improper motive. Evidence of such an improper motive, while not establishing lack of probable cause, may be considered as one circumstance in determining that issue. With

respect to punitive damages, it is generally accepted that evidence of personal hostility may be considered in determining whether to award such damages. See 22 Am. Jur. 2d, Damages 249, 250, 331; 52 Am. Jur. 2d, Malicious Prosecution 48, 152, 160.

C. Testimony of Friend Who Witnessed Arrest 23. Insufficiency of information relied on to justify arrest [After introduction and identification of witness] Q. Where do you presently reside? A. I live at [address] in the city of . Q. How long have you lived there? A. years. Q. What is your occupation? A. I am a . Q. By whom are you employed? A. I am self-employed. Q. Do you know [plaintiff]? A. Yes, I do. Q. How long have you known him? A. Approximately years. Q. Directing your attention now to , , do you recall that day? A. Yes, I do. Q. Is there any particular reason that you recall that day? A. Yes, that is the day that [plaintiff] was arrested. Q. Were you with [plaintiff] at the time of his arrest? A. Yes, I was. Q. Where did the arrest take place? A. It was at the Department Store. Q. Would you relate the events immediately preceding that arrest? A. [Plaintiff] and I had gone to the store to buy a dress for my wife. After I paid for the dress, we left the store, and a security guard came out and arrested

[plaintiff]. Q. How long were you and in the store? A. Not over 15 or 20 minutes. Q. Were you with [plaintiff] that entire time? A. Yes, I was. Q. What department or departments did you go to during that time? A. We only went to one, which was the women's clothing department. Q. When the security officer arrested [plaintiff], did he inform him of the reason? A. Yes, he said it was for stealing a helmet. [Counsel requests Exhibit from Court Reporter.] Q. I show you now plaintiff's Exhibit and ask if you can identify it. A. Yes, that is the helmet which the officer accused [plaintiff] of stealing. Q. Do you recall the first time you ever saw that helmet? A. Yes. Q. When was that? A. It was on that morning. [Plaintiff] picked me up on his motorcycle, and he was wearing that helmet at the time. Q. Was that before or after you went to the Department Store? A. That was before. Q. What happened after the security officer told [plaintiff] that he was under arrest? A. The officer asked [plaintiff] to go to the office with him, and the three of us went to the office together. Q. When you got to the office, was anyone else there? A. Yes, [defendant] was in the office. Q. So there were four people in the office altogether? A. Yes, that's right. Q. Was there any discussion regarding the charge that [plaintiff] had stolen the helmet? A. Yes, there was. Q. In the course of that discussion, did the security officer give any reason for his belief that [plaintiff] had stolen the helmet?

A. Yes, he did. Q. What reason or reasons did he give? A. In essence, the guard stated that it was a new helmet and that the store had them in stock, and that under those circumstances he felt [plaintiff] had stolen the helmet that morning. Q. Did he give any other reason for his belief? A. No. Q. Did [plaintiff] offer any explanation of his possession of the helmet? A. Yes, he told the guard and [defendant] that it was a recent gift to him. Q. What was [defendant's] response to [plaintiff's] explanation? A. Essentially he said he would leave it up to the courts to decide who was telling the truth. Q. During this discussion did you in any way corroborate [plaintiff's] explanation? A. Yes, I told [defendant] and the guard that I was certain [plaintiff] was innocent, because he had worn the helmet before he ever came into the store. Q. Did [defendant] respond in any way to your statement? A. He merely said that he had no reason to believe me any more than [plaintiff]. 24. Defendant's refusal to make further investigation Q. Did you make any further attempt to corroborate [plaintiff's] explanation? A. Yes, I did. Q. What was that? A. I told [defendant] that if he would wait to call the police, I would try to find the person who had given the helmet to [plaintiff], to see if he still had the sales slip. If he did, I would bring it back to show it to [defendant]. Q. Did [defendant] accept your offer? A. No, he said he was going to call the police immediately.

D. Testimony of Friend Who Purchased Allegedly Stolen Item 25. Plaintiff's innocence of charge [After introduction and identification of witness]

Q. Where do you presently live? A. I live at [address] in the city of . Q. How long have you lived there? A. About a year. Q. What is your occupation? A. I am a . Q. For whom do you work? A. Right now I am working for the Company. Q. Do you know [plaintiff]? A. Yes, I do. Q. How long have you known him? A. Approximately years. [Counsel asks Court Reporter for exhibit.] Q. I show you now plaintiff's Exhibit and ask if you can identify it. A. Yes, that is a helmet which I gave to [plaintiff]. Q. Do you recall when you gave it to [plaintiff]? A. Yes, I gave it to him on his birthday in , so that would have been on , . Q. Where did you get the helmet? A. I bought it at a sporting goods store. Practice Comment: Evidence establishing plaintiff's innocence of crime charged. Although the plaintiff need not prove his actual innocence in order to recover, proof of his innocence is admissible on the issue of probable cause, provided the defendant knew or should have known of the existence of facts establishing such innocence. 52 Am. Jur. 2d, Malicious Prosecution 132, 161. In the context of the present fact situation, the defendant was informed at the time of the arrest that the plaintiff could establish his innocence through the present witness, so the above evidence is admissible. See 52 Am. Jur. 2d, Malicious Prosecution 159. 26. Defendant's refusal to seek termination of prosecution after knowledge of exculpatory facts Q. After you gave [plaintiff] the helmet, did you have any further contact with him concerning the helmet? A. Yes, I did.

Q. Do you recall when that was? A. I don't recall the exact date, but I know it was a few days after I gave it to him. Q. Did you contact [plaintiff] or did he contact you? A. He got in touch with me. Q. Why did he contact you? A. It was after his arrest, and he wanted to know if I still had the sales slip. Q. Did you have the slip? A. Yes, I did. Q. Did you give the slip to [plaintiff]? A. Yes. Q. What happened then? A. The next Monday [plaintiff] and I went down to the Department Store to see [defendant]. Q. Did you see [defendant]? A. Yes, we did. Q. Did a conversation ensue? A. Yes. Q. Where did this occur? A. It was in [defendant]'s office at the department store. Q. Do you recall the substance of that conversation? A. Yes, I do. [Plaintiff] showed the sales slip to [defendant] and requested him to drop the charges he had filed. [Counsel asks Court Reporter for exhibit.] Q. I show you now plaintiff's Exhibit and ask if you can identify it. A. Yes, I can. Q. Please do so. A. That is the sales slip for the motorcycle helmet. Q. Is that the same slip which [plaintiff] showed to [defendant]? A. Yes, it is. Q. What was [defendant's] response when [plaintiff] showed him the slip and asked him to drop charges?

A. [Defendant] refused. Q. Did he give any reason for his refusal? A. He said he was willing to leave the matter up to the courts. He also said the slip did not prove what helmet was purchased. Q. Did you suggest any way that [defendant] could obtain further proof that the sales slip in fact related to the helmet in question? A. Yes, I did. Q. What was your suggestion? A. I suggested that he call the store where I bought the helmet, since they knew me and could verify that I had in fact bought the helmet. Q. Did [defendant] respond to your suggestion? A. Yes, he said he was not going to contact the store.

E. Testimony of Plaintiff's Employer 27. Plaintiff's innocence of charge [After introduction and identification of witness] Q. Where do you presently live? A. I live at [address] in the city of . Q. How long have you lived there? A. years. Q. What is your occupation? A. I am a supervisor for the Company. Q. Where is that company located? A. At [address] in the city of . Q. Do you know [plaintiff]? A. Yes, I do. Q. How long have you known him? A. About years. Q. How do you happen to know him? A. He also works at the Company, and I am his supervisor. That is how I originally

got to know him. Q. During the time that [plaintiff] has worked for you, have you had occasion to observe the means of transportation he uses to come to work? A. Yes, I have. Q. When he first began working for you, what means of transportation did he generally use? A. He would come in a car; usually he drove, but occasionally someone would drive him. Q. Does he still come to work in a car? A. Occasionally, but not very often any more. Q. How does he generally get to work now? A. He has a small motorcycle which he usually drives. Q. Do you know when he first began driving the motorcycle? A. Yes, it was sometime during the month of , . Q. When he first began coming on the motorcycle, did he wear any sort of protective clothing? A. No, not at first. Q. Did he subsequently begin to wear any sort of protective clothing? A. Yes, he did. Q. What sort of protective clothing did he begin wearing? A. He began wearing a leather jacket and a helmet. Q. Do you know about when he began wearing those items? A. Yes, it was the day after his birthday in . Q. Is there any particular reason that you remember that day? A. Yes, there is. Q. What is that reason? A. Well, I had mentioned to him prior to his birthday that he really should wear a helmet if he insisted on riding the motorcycle, and he had told me that he hoped to get one for his birthday. Then the day after his birthday it was quite a surprise when he came in not only wearing a helmet, but a leather jacket. I remember teasing him about looking more like a teen-ager than a person who had just turned years old. [Counsel asks Court Reporter for exhibit.] Q. I am now showing you plaintiff's Exhibit , and I ask if you can identify it.

A. Yes, I certainly can. Q. Please do so. A. That is the helmet which [plaintiff] got for his birthday that year. Q. When did you first see [plaintiff] wearing this helmet? A. As I indicated, the day after his birthday. 28. Defendant's refusal to seek termination of prosecution after knowledge of exculpatory facts Q. Do you know [defendant]? A. Yes, I do. Q. How long have you known him? A. Several years, probably about years. Q. So you knew him prior to , ? A. Yes, definitely. Q. Sometime after , , did you have occasion to contact [defendant] with respect to [plaintiff]? A. Yes, I did. Q. Do you recall the exact date that you contacted him in that regard? A. If I recall correctly the date you mentioned was a Saturday, and I got in touch with [defendant] early the following week, probably on Tuesday. Q. Did you contact [defendant] at [plaintiff's] request? A. Yes. Q. What was your purpose in contacting [defendant]? A. I wanted to clear [plaintiff] of the charge that he had stolen that helmet. Q. Did you talk to [defendant] in person? A. No, I called him on the telephone. Q. Had you previously talked to [defendant] on the telephone? A. Yes, several times. Q. Were you acquainted with the sound of his voice? A. Yes. Q. Did you telephone him at his home or at the store?

A. I called him on his private line at the store. Q. Do you recall who answered the phone? A. Yes, [defendant] did. Q. Did you recognize his voice? A. Yes, I did. Practice Reminder: Need to identify participant to telephone conversation. A party seeking to introduce evidence of a telephone conversation must first establish the identity of the parties to the conversation. Evidence that the witness called for a person at that person's place of business and that the person answering claimed to be the person called for is generally satisfactory proof of identification. However, where it is important that the conversation was had with the specific individual against whom testimony of such conversation is offered, it is better to identify him further, such as by evidence that the caller recognized the person's voice. See 29 Am. Jur. 2d, Evidence 381383. Q. What did you tell [defendant]? A. I told him that [plaintiff] could not possibly have stolen that helmet, because he had gotten it as a birthday present the week before, and several of the people at work had seen him wearing it the Friday before. Q. Did [defendant] respond to what you said? A. Yes. He said he was tired of people talking to him about that helmet, and that it was up to the court to take care of the matter. 29. Plaintiff's good character and reputation Q. Do you know where [plaintiff] lives? A. Yes, I do. He lives at [address] in the city of . Q. How far is his residence from your residence? A. We live about three blocks apart. Q. During the time that you have known [plaintiff], have you had any contact with him other than at work? A. Yes, I have. Our families occasionally get together for picnics, parties, and things like that. Also, this is a fairly small city, and I run into him from time to time around town. Q. During the time that you have known [plaintiff], have you met other people living in the same general community who also know him? A. Yes. We have a number of mutual acquaintances.

Q. Prior to , 20 [date of arrest], did you ever hear [plaintiff] discussed by such people? A. Yes, I did. Q. How many such people have you heard discuss him? A. Quite a few. Perhaps [number]. Q. Prior to that date, how often had you heard [plaintiff] discussed by such people? A. I couldn't give an exact number, but I've heard people talk about him on a number of occasions. Q. Prior to that date, did [plaintiff] have a general reputation in the community where you and he live for truth and veracity? A. Yes, he did. Q. What was that reputation? A. He had a very good reputation. He was considered to be a very truthful man. Practice Comment: Dual purpose of evidence of plaintiff's good reputation. Evidence of the plaintiff's good character and reputation is admissible as one circumstance tending to show a lack of probable cause for the arrest. Additionally, such evidence is admissible on the issue of damages, since the major portion of compensatory damages is usually for injury to the plaintiff's reputation and mental well-being. The defendant may also introduce evidence showing the plaintiff's bad reputation, and the plaintiff should be aware before trial of the existence of any such evidence. 52 Am. Jur. 2d, Malicious Prosecution 96, 97, 162, 172; Witte, Damages for Injury to Feelings in Malicious Prosecution and Abuse of Process, 15 Clev-Mar L Rev 15, 16. Case Illustration: Importance of showing plaintiff's prior good reputation. Where the plaintiff, after being detained on a shoplifting charge, protested her innocence and requested defendant to inquire of several persons concerning her reputation, it was held that the defendant's refusal to make any such inquiry was sufficient to establish a lack of probable cause, the court noting in detail evidence showing plaintiff's good reputation and the complete lack of any evidence controverting such a good reputation. Randol v Kline's Inc., 322 Mo 746, 18 SW2d 500, later app 330 Mo 343, 49 SW2d 112. Q. During the time that [plaintiff] has worked for you, have you ever heard him discussed by other people working for the same company? A. Yes, I have. Q. Do you know how many fellow employees you have heard him discussed by? A. Probably about [number]. Q. How often have such discussions taken place?

A. A number of times, perhaps [number] altogether. Q. As of , 20 [date of arrest], did [plaintiff] have a general reputation with respect to truth and veracity at the place he worked? A. Yes, he did. Q. What was that general reputation? A. It was the same as his reputation where he lived. He had an excellent reputation in that regard. Practice Comment: Relevance of reputation at place of employment. Evidence of one's reputation at his place of employment is admissible when the circumstances of the case makes such reputation relevant. See 29 Am. Jur. 2d, Evidence 347. Since, at the time of his arrest, the plaintiff requested defendant to inquire as to his reputation not only from a friend, but also from his employer, and since damages may include injury to reputation which impairs the plaintiff's business, as well as his social, status in the community, evidence of reputation at the plaintiff's place of employment is relevant and therefore admissible. See 52 Am. Jur. 2d, Malicious Prosecution 97, 101, 187, 188.

F. Testimony of Defendant 30. Defendant's refusal to make further investigation [Cumulative Supplement]

CUMULATIVE SUPPLEMENT Cases: A judgment awarding the plaintiff $5,000 in actual damages and $5,000 in exemplary damages for false imprisonment and malicious prosecution was affirmed, where the evidence showed, inter alia, that after the defendant's employees accused the plaintiff of shoplifting a hat, the plaintiff and his mother and sister all said that the hat had been previously purchased at the defendant's store, but the defendant's employees refused to investigate such explanation prior to filing theft charges and having the plaintiff arrested. At trial the plaintiff produced a cash register tape from the store indicating the prior purchase of the hat. Gibson Discount Center, Inc. v Cruz (Tex Civ App) 562 SW2d 511, writ ref n r e. [Top of Section] [END OF SUPPLEMENT]

A.L.R. Library Medical-malpractice countersuits, 61 A.L.R. 5th 307 Admissibility of evidence of polygraph test results, or offer or refusal to take test, in action for malicious prosecution, 10 A.L.R. 5th 663 Recovery of attorneys' fees and costs of litigation incurred as result of breach of agreement not to sue, 9 A.L.R. 5th 933 Bringing of frivolous civil claim or action as ground for discipline of attorney, 85 A.L.R. 4th 544 Liability of police or peace officers for false arrest, imprisonment, or malicious prosecution as affected by claim of suppression, failure to disclose, or failure to investigate exculpatory evidence, 81 A.L.R. 4th 1031 Excessiveness or inadequacy of compensatory damages for malicious prosecution, 50 A.L.R. 4th 843 Malicious prosecution: defense of acting on advice of justice of the peace, magistrate, or lay person, 48 A.L.R. 4th 250 Nature of termination of civil action required to satisfy element of favorable termination to support action for malicious prosecution, 30 A.L.R. 4th 572 Termination of criminal proceedings as result of compromise or settlement of accused's civil liability as precluding malicious prosecution action, 26 A.L.R. 4th 565 Accused's release of liability, or stipulation that there was probable cause for criminal charge, in consideration of termination of prosecution as precluding malicious prosecution action, 26 A.L.R. 4th 245 Venue in action for malicious prosecution, 12 A.L.R. 4th 1278 Defendant's state of mind necessary or sufficient to warrant award of punitive damages in action for malicious prosecution, 94 A.L.R. 3d 791 Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee, 93 A.L.R. 3d 826 Action for breach of contract as basis of action for malicious prosecution or abuse of process, 87 A.L.R. 3d 580

Institution of confessed judgment proceedings as ground of action for abuse of process or malicious prosecution, 87 A.L.R. 3d 554 Confession as Defense in Action for Malicious Prosecution, 66 A.L.R. 3d 95 Malicious prosecution: liability for instigation or continuation of prosecution of plaintiff mistakenly identified as person who committed an offense, 66 A.L.R. 3d 10 May action for malicious prosecution be predicated on defense or counterclaim in civil suit, 65 A.L.R. 3d 901 Civil liability of judicial officer for malicious prosecution or abuse of process, 64 A.L.R. 3d 1251 Malicious prosecution: Liability of perpetrator of crime for damages to innocent persons subjected to prosecution for the commission of such crime, 40 A.L.R. 3d 1005 Action for malicious prosecution based on institution of involuntary bankruptcy, insolvency, or receivership proceedings, 40 A.L.R. 3d 296 Malicious prosecution predicated upon prosecution, institution, or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R. 3d 473 Liability for malicious prosecution based on contest or caveat to will, 35 A.L.R. 3d 651 Liability for malicious prosecution predicated upon institution of, or conduct in connection with, insanity proceedings, 30 A.L.R. 3d 455 Malicious prosecution: Effect of grand jury indictment on issue of probable cause, 28 A.L.R. 3d 748 Liability of attorney acting for client, for false imprisonment or malicious prosecution of third party, 27 A.L.R. 3d 1113 Attorneys' fees as element of damages in action for false imprisonment or arrest, or for malicious prosecution, 21 A.L.R. 3d 1068 What statute of limitations governs action for malicious use of process or abuse of process, in the absence of an express provision for such tort, 10 A.L.R. 3d 533

When cause of action accrues, for purpose of starting the running of the statute of limitations against an action for malicious prosecution, 87 A.L.R. 2d 1047 Comment note.Probable cause or want thereof, in malicious prosecution action, as question of law for court or of fact for jury, 87 A.L.R. 2d 183 Judgment in false imprisonment action as res judicata in later malicious prosecution action, or vice versa, 86 A.L.R. 2d 1385 Conclusiveness, as evidence of probable cause in malicious prosecution action, of conviction as affected by the fact that it was reversed or set aside, 86 A.L.R. 2d 1090 Claim of judgment based on malicious prosecution, false imprisonment, or other similar tort, as liability for wilful and malicious injury within 17(2) of the Bankruptcy Act (11 USC 35(a)), barring discharge of such liability, 78 A.L.R. 2d 1226 What statute of limitations, in the absence of an express provision as to such tort, governs an action for malicious prosecution, 70 A.L.R. 2d 1088 Malicious prosecution: Commitment, binding over, or holding for trial by examining magistrate or commissioner as evidence of probable cause, 68 A.L.R. 2d 1168 Civil liability of school officials for malicious prosecution, 66 A.L.R. 2d 749 Acquittal, discharge, or discontinuance of criminal charge as evidence of want of probable cause in malicious prosecution action, 59 A.L.R. 2d 1413 Judgment in prior civil proceedings adverse to instant plaintiff in malicious prosecution as evidence of probable cause, 58 A.L.R. 2d 1422 Admissibility and permissible use, in malicious prosecution action, of documentary evidence showing that prior criminal proceedings against instant plaintiff were terminated in his favor, 57 A.L.R. 2d 1086 Malicious prosecution or similar tort action predicated upon disciplinary proceedings against an attorney, 52 A.L.R. 2d 1217 Liability, in malicious prosecution action, for instigation or continuation of prosecution of plaintiff mistakenly identified as person who committed an offense, 43 A.L.R. 2d 1048

Maintainability of malicious prosecution action by one prosecuted on charge not amounting to a crime or under defective accusation, 36 A.L.R. 2d 786 Discharge in habeas corpus proceedings as constituting favorable termination of criminal proceedings requisite to maintenance of malicious prosecution action, 30 A.L.R. 2d 1128 Civil liability of law enforcement officers for malicious prosecution, 28 A.L.R. 2d 646 Acts of employee, in procuring warrant or aiding prosecution, as within scope of employment so as to render employer liable for malicious prosecution, 18 A.L.R. 2d 402 Necessity and sufficiency of allegations in complaint for malicious prosecution or tort action analogous thereto that defendant or defendants acted without probable cause, 14 A.L.R. 2d 264 Reliance on advice of prosecuting attorney as defense to malicious prosecution action, 10 A.L.R. 2d 1215 Construction and application of Federal Tort Claims Act provision (28 U.S.C.A. 2680(h)) excepting from coverage claims arising out of false imprisonment, false arrest, malicious prosecution, or abuse of process, 152 A.L.R. Fed. 605 What conduct constitutes multiplying proceedings unreasonably and vexatiously so as to warrant imposition of liability on counsel under 28 USCA 1927 for excess costs, expenses, and attorney fees, 81 A.L.R. Fed. 36 Actionability of malicious prosecution under 42 USCA 1983, 79 A.L.R. Fed. 896 Construction and application of Federal Tort Claims Act provision (28 USCA 2680(h)) excepting from coverage claims arising out of false imprisonment, false arrest, malicious prosecution, or abuse of process, 43 A.L.R. Fed. 571

Legal Encyclopedias Action for malicious prosecution as remedy for wrongful attachment or garnishment, 6 Am. Jur. 2d, Attachment and Garnishment 596, 636 Action for malicious prosecution as remedy for improper issuance of injunction, 42 Am. Jur. 2d, Injunctions 359 Actions for malicious prosecution, generally, 52 Am. Jur. 2d, Malicious

Prosecution Action for malicious prosecution as remedy for malicious procurement of search warrant, 68 Am. Jur. 2d, Searches and Seizures 121, 125

Trial Strategy Proof of Circumstances Establishing Constitutional Malice in a Defamation Cause of Action, 71 Am. Jur. Proof of Facts 3d 321 Proof that a Professional Licensee is Immune from Civil Prosecution and Civil Damages as a Result of the Licensee's Filing a Complaint Against Another License Holder, 69 Am. Jur. Proof of Facts 3d 343 Government Liability for Liberty or Privacy Deprivation Resulting from Erroneous Information in Agency Records, 40 Am. Jur. Proof of Facts 3d 237 Attorney's Malicious Prosecution of Client's Action, 30 Am. Jur. Proof of Facts 2d 197 Malicious Prosecution: Good Faith Reliance on Advice of Counsel in Bringing Suit, 26 Am. Jur. Proof of Facts 2d 275 Abuse of ProcessDebt Collection, 7 Am. Jur. Proof of Facts 2d 413 Actionable Practices in Debt Collection, 18 Am. Jur. Proof of Facts 59 Attachment, 2 Am. Jur. Proof of Facts 221 Avoiding Legal Malpractice Claims in Litigation, 46 Am. Jur. Trials 325 Physicians' Countersuits, 35 Am. Jur. Trials 225 Malicious Prosecution, 16 Am. Jur. Trials 205 Police Misconduct LitigationPlaintiff's Remedies, 15 Am. Jur. Trials 555

Forms Complaint by union member against union for malicious prosecution resulting in

plaintiff's loss of employment and union membership, 16 Am. Jur. Pleading and Practice Forms, Labor and Labor Relations, Form 121 For forms relating to all aspects of malicious prosecution, including complaints, answers, instructions to the jury, and findings of fact in such actions, see 17 Am. Jur. Pleading and Practice Forms, Malicious Prosecution Complaint for malicious prosecution against procurer and issuer of invalid search warrant, 22 Am. Jur. Pleading and Practice Forms, Searches and Seizures, Form 101 Complaint against constable for false arrest and malicious prosecution, 22 Am. Jur. Pleading and Practice Forms, Sheriffs, Police, and Constables, Form 131

Law Reviews and Other Periodicals $9.9M for a couple's ruined reputations; Three trials and 17 years later, false arrest for child molestation is resolved, 5/28/2001 Nat'l L.J. 13 (2001) A better SLAPP trap: Washington state's enhanced statutory protection for targets of strategic lawsuits against public participation, 38 Gonz. L. Rev. 263 (2003 WL 22285787) Adler, Malicious Prosecution Suits as Counterbalance to Medical Malpractice Suits, 21 Clev St L Rev 51 At what point does an attorney have a duty to dismiss a lawsuit that may be a meritless claim? 27 J. Legal Prof. 233 (2003 WL 22847230) Back SLAPP: has the development of anti-SLAPP law turned the statute into a tool to be used against the very parties it was intended to protect? 26 L.A. Law. 37 (2003 WL 23199144) Business opposes anti-SLAPP laws; lobbyists stop some, but not all, legislation, 12/10/2001 Nat'l L.J. A17 (2001 WL 1689267) Byrd, Malicious Prosecution in North Carolina, 47 NC L Rev 285 Cause and effect; Avoid malicious-prosecution liability: Support every count, 6/5/2001 L.A. Daily J. 7 (2001) Comment, Malicious Prosecution in Tennessee, 29 Tenn L Rev 552 Comment, Malicious Prosecution as Basis of Recovery for Wrongful Instigation of

Civil Commitment Proceedings, 9 Wake Forest L Rev 115 Comment, The Criminal Does Pay: Offenders Required to Compensate the Wrongfully Accused, 1972 Utah L Rev 283 Court protects defendants in SLAPP suits; justices rule law does not require chilling-effect proof; subjective intent, 8/30/2002 L.A. Daily J. 1 (2002 WL 31203019) Courts apply SLAPP law to malicious-prosecution cases, 3/14/2003 L.A. Daily J. 7 (2003 WL 1857382) Cutting off political speech; amendment to anti-SLAPP law would prevent misuse of statute by big business, 10/14/2002 L.A. Daily J. 3 (2002 WL 31556854) Expert witness to face malicious prosecution suit, 149 Chi. Daily L. Bull. 6 (2003 WL 1312637) False arrest, malicious prosecution, and abuse of process in 1983 litigation, 20 Touro L. Rev. 705 (2004 WL 3395167) How probable is probable cause? 40 Trial 60 (2004 WL 811871) Judge reduces jury's malicious prosecution verdict by $40 million, 8/22/200 N.Y. L.J. 1 (2002 WL 2002415) Lawyer's malicious prosecution suit fails, 6/4/2002 N.Y. L.J. 1 (2002 WL 1173962) Malicious ProsecutionRebutting Presumption of Probable Cause for Previous Prosecution, 39 Mo L Rev 63 Malicious prosecution remains New Jersey's toughest tort: Third Circuit overturns award, finding judge misapplied N.J. law, 10/29/2001 N.J.L.J. 1 (2001 WL 1472845) Malicious prosecution: proof of special injury, 8/16/2001 Chi. Daily L. Bull. 1 (2001 WL 1141749) Note, Malicious ProsecutionThe Law in Arkansas, 22 Ark L Rev 340 Note, TortsMalicious ProsecutionDamages Required to Sustain an Action Based on the Instigation of an Administrative Proceeding, 1962 Wis L Rev 701 Offended by a SLAPP: as lawsuits against citizens expand, countermeasures are

rolled out, 91 A.B.A. J. 16 (2005 WL 489600) Reduce your malicious prosecution exposure, 29 S.F. Att'y 15 (2002 WL 31409810) Retaliatory lawsuits and Texas's judicial proceedings privilege, 22 Rev. Litig. 541 (2003 WL 22408750) Section 1983 and the tort of malicious prosecution: a Tenth Circuit historical analysis, 82 Denv. U. L. Rev. 499 (2005 WL 2209151) SLAPP happy; celebrity libel lawyers like Barry Langberg are anything but thrilled with a California law that they say allows tabloids to run amok in Hollywood, 1/22/2002 L.A. Daily J. S10 (2002 WL 377822) Slapping on the Writs: Defamation, Developers and Community Activism, (Reviewed), 29 Alternative L.J. 106 (2004 WL 2473741) State courts had 20 opinions in 2002 invoking SLAPP law, 1/6/2003 L.A. Daily J. 7 (2003 WL 328917) Time runs out; DOJ barred from pursuing merits of vexatious prosecution appeal, 87 A.B.A. J. 27 (2001) TortsMalicious prosecution Essential elements, 26 Tenn L Rev 437 Unexamined premises: toward doctrinal purity in 1983 malicious prosecution doctrine, 97 Nw. U. L. Rev. 439 (2002 WL 32057589) Wal-Mart hit with $13M verdict; malicious prosecution verdict hinges on tape, 10/22/2001 Nat'l L.J. A4 (2001 WL 1538392) Who's on first, what's on second, and I don't know about the Sixth Circuit: a 1983 malicious prosecution Circuit split that would confuse even Abbott and Costello, 36 Suffolk U. L. Rev. 513 (2003 WL 22036891) Who are those guys? An empirical examination of medical malpractice plaintiffs' attorneys, 58 SMU L. Rev. 225 (2005 WL 2341876) Witte, Damages for Injury to Feelings in Malicious Prosecution and Abuse of Process, 15 Clev-Mar L Rev 15 Attorneys who seek patients for malpractice suits, 86(1) J Mich Dent Assoc 22 (2004)

[FN*] Editor, Bancroft-Whitney Company.

-------------------------------------------------------------------------------Section 1 Footnotes: [FN1] 52 Am. Jur. 2d, Malicious Prosecution 1. [FN2] Unless otherwise indicated, the terms "plaintiff" and "defendant" are used to refer to the parties in the action brought to recover damages for malicious prosecution. [FN3] Note, TortsMalicious ProsecutionDamages Required to Sustain an Action Based on the Instigation of an Administrative Proceeding, 1962 Wis L Rev 701. [FN4] Bertero v National General Corp., 13 Cal 3d 43, 118 Cal Rptr 184, 529 P2d 608, 65 ALR3d 878. [FN5] Note, 1962 Wis L Rev 701, 702. [FN6] Note, 1962 Wis L Rev 701, 702. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 5. [FN7] Witte, Damages for Injury to Feelings in Malicious Prosecution and Abuse of Process, 15 Clev-Mar L Rev 15. 52 Am. Jur. 2d, Malicious Prosecution 9. See also, 4, 5, infra. [FN8] See 6, infra. [FN9] See 7, infra. [FN10] See 3, infra. [FN11] See 14, infra. Section 2 Footnotes: [FN12] 1 Am. Jur. 2d, Abuse of Process 2; 52 Am. Jur. 2d, Malicious Prosecution 2.

[FN13] Shipp v Autoville, Ltd., 23 Md App 555, 328 A2d 349. Legal Encyclopedias 32 Am. Jur. 2d, False Imprisonment 4; 52 Am. Jur. 2d, Malicious Prosecution 3. [FN14] 1 Am. Jur. 2d, Abuse of Process 20; 32 Am. Jur. 2d, False Imprisonment 82; 52 Am. Jur. 2d, Malicious Prosecution 113. [FN15] Boquist v Montgomery Ward & Co. (Mo App) 516 SW2d 769. [FN16] Witte, 15 Clev-Mar L Rev 15, 24. Section 3 Footnotes: [FN17] Malicious ProsecutionRebutting Presumption of Probable Cause for Previous Prosecution, 39 Mo L Rev 63, 64. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 6. [FN18] See, for example, Bertero v National General Corp., 13 Cal 3d 43, 118 Cal Rptr 184, 529 P2d 608, 65 ALR3d 878; Shipp v Autoville, Ltd., 23 Md App 555, 328 A2d 349. [FN19] Witte, 15 Clev-Mar L Rev 15, 16, 21. See also, 14, infra, for a discussion of damages. [FN20] Witte, 15 Clev-Mar L Rev 15. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 10, 11. See also, 5, infra, for a discussion of the special injury rule. Section 4 Footnotes: [FN21] Witte, 15 Clev-Mar L Rev 15. Legal Encyclopedias

52 Am. Jur. 2d, Malicious Prosecution 8, 9. [FN22] 52 Am. Jur. 2d, Malicious Prosecution 8, 49. [FN23] Oliver v Haspil (Fla App) 152 So2d 758. [FN24] Keller v Butler, 246 NY 249, 158 NE 510, 55 ALR 349. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 18, 29, 40. [FN25] 68 Am. Jur. 2d, Searches and Seizures 121, 125. Section 5 Footnotes: [FN26] 52 Am. Jur. 2d, Malicious Prosecution 9, 10. [FN27] 52 Am. Jur. 2d, Malicious Prosecution 10. [FN28] Witte, 15 Clev-Mar L Rev 15. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 911. [FN29] Witte, 15 Clev-Mar L Rev 15. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 10, 11. [FN30] 52 Am. Jur. 2d, Malicious Prosecution 10. [FN31] Note, 1962 Wis L Rev 701, 70203; Witte, 15 Clev-Mar L Rev 15, 2122. [FN32] Note, 1962 Wis L Rev 701, 702703; Witte, 15 Clev-Mar L Rev 15, 22. Legal Encyclopedias

52 Am. Jur. 2d, Malicious Prosecution 11. [FN33] 52 Am. Jur. 2d, Malicious Prosecution 11. [FN34] A.L.R. Library Action for malicious prosecution based on institution of involuntary bankruptcy, insolvency, or receivership proceedings, 40 A.L.R. 3d 296. [FN35] 40 A.L.R. 3d 296.

Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 16. [FN36] 40 A.L.R. 3d 296. [FN37] A.L.R. Library Liability for malicious prosecution predicated upon institution of, or conduct in connection with, insanity proceedings, 30 A.L.R. 3d 455.

Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 17. [FN38] Comment, Malicious Prosecution as Basis of Recovery for Wrongful Instigation of Civil Commitment Proceedings, 9 Wake Forest L Rev 115, 127. Section 6 Footnotes: [FN39] Merritt-Chapman & Scott Corp. v Elgin Coal, Inc. (DC Tenn) 358 F Supp 17, affd without op (CA6 Tenn) 477 F2d 598; Bertero v National General Corp., 13 Cal 3d 43, 118 Cal Rptr 184, 529 P2d 608, 65 ALR3d 878. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 14.

[FN40] Bertero v National General Corp., 13 Cal 3d 43, 118 Cal Rptr 184, 529 P2d 608, 65 ALR3d 878. [FN41] Ritter v Ritter, 381 Ill 549, 46 NE2d 41. [FN42] Bertero v National General Corp., 13 Cal 3d 43, 118 Cal Rptr 184, 529 P2d 608, 65 ALR3d 878. [FN43] 52 Am. Jur. 2d, Malicious Prosecution 14. See also 9, infra, with respect to the requirement of termination of the prior proceeding. Section 7 Footnotes: [FN44] 52 Am. Jur. 2d, Malicious Prosecution 19. [FN45] 52 Am. Jur. 2d, Malicious Prosecution 20. [FN46] Kauffman v A. H. Robins Co., 223 Tenn 515, 448 SW2d 400. [FN47] Hardy v Vial, 48 Cal 2d 577, 311 P2d 494, 66 ALR2d 739. [FN48] Kauffman v A. H. Robins Co., 223 Tenn 515, 448 SW2d 400. [FN49] Note, 1962 Wis L Rev 701, 703. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 19. [FN50] Note, 1962 Wis L Rev 701, 70304. [FN51] Ibid., p. 704. [FN52] A.L.R. Library Malicious prosecution or similar tort action predicated upon disciplinary proceedings against an attorney, 52 A.L.R. 2d 1217. [FN53] Toft v Ketchum, 18 NJ 280, 113 A2d 671, 52 ALR2d 1208, adhered to 18 NJ

611, 114 A2d 863, 52 ALR2d 1217, cert den 350 US 887, 100 L Ed 782, 76 S Ct 141. [FN54] A.L.R. Library Malicious prosecution predicated upon prosecution, institution, or instigation of disciplinary proceeding against member of medical or allied profession, 39 A.L.R. 3d 473. [FN55] Kauffman v A. H. Robins Co., 223 Tenn 515, 448 SW2d 400. Section 8 Footnotes: [FN56] 52 Am. Jur. 2d, Malicious Prosecution 21. [FN57] 52 Am. Jur. 2d, Malicious Prosecution 21. [FN58] 52 Am. Jur. 2d, Malicious Prosecution 21. [FN59] A.L.R. Library Maintainability of malicious prosecution action by one prosecuted on charge not amounting to a crime or under defective accusation, 36 A.L.R. 2d 786.

Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 22. [FN60] 52 Am. Jur. 2d, Malicious Prosecution 21. [FN61] Malicious ProsecutionRebutting Presumption of Probable Cause for Previous Prosecution, 39 Mo L Rev 63, 64. [FN62] 52 Am. Jur. 2d, Malicious Prosecution 23, 24. [FN63] 52 Am. Jur. 2d, Malicious Prosecution 25. [FN64] 52 Am. Jur. 2d, Malicious Prosecution 26. [FN65] 52 Am. Jur. 2d, Malicious Prosecution 57.

[FN66] 52 Am. Jur. 2d, Malicious Prosecution 61, 62. [FN67] 52 Am. Jur. 2d, Malicious Prosecution 64. [FN68] 52 Am. Jur. 2d, Malicious Prosecution 63. [FN69] 52 Am. Jur. 2d, Malicious Prosecution 57. [FN70] 52 Am. Jur. 2d, Malicious Prosecution 66, 67, 69. [FN71] A.L.R. Library Civil liability of law enforcement officers for malicious prosecution, 28 A.L.R. 2d 646.

Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 68. [FN72] 52 Am. Jur. 2d, Malicious Prosecution 6669. 28 A.L.R. 2d 646. Section 9 Footnotes: [FN73] 52 Am. Jur. 2d, Malicious Prosecution 29. [FN74] Keller v Butler, 246 NY 249, 158 NE 510, 55 ALR 349. [FN75] 52 Am. Jur. 2d, Malicious Prosecution 30, 37. [FN76] 52 Am. Jur. 2d, Malicious Prosecution 31, 32, 34, 35. [FN77] 52 Am. Jur. 2d, Malicious Prosecution 36. [FN78] 52 Am. Jur. 2d, Malicious Prosecution 39. [FN79] A.L.R. Library

Discharge in habeas corpus proceedings as constituting favorable termination of criminal proceedings requisite to maintenance of malicious prosecution action, 30 A.L.R. 2d 1128.

Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 33. [FN80] 52 Am. Jur. 2d, Malicious Prosecution 42. [FN81] 52 Am. Jur. 2d, Malicious Prosecution 43. [FN82] Merritt-Chapman & Scott Corp. v Elgin Coal, Inc. (DC Tenn) 358 F Supp 17, affd without op (CA6 Tenn) 477 F2d 598 [FN83] 52 Am. Jur. 2d, Malicious Prosecution 43. [FN84] 52 Am. Jur. 2d, Malicious Prosecution 44. Section 10 Footnotes: [FN85] 52 Am. Jur. 2d, Malicious Prosecution 50. [FN86] Shipp v Autoville, Ltd., 23 Md App 555, 328 A2d 349. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 184, 185. [FN87] Bertero v National General Corp., 13 Cal 3d 43, 118 Cal Rptr 184, 529 P2d 608, 65 ALR3d 878; Shipp v Autoville, Ltd., 23 Md App 555, 328 A2d 349. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 51. [FN88] 52 Am. Jur. 2d, Malicious Prosecution 52. [FN89] 52 Am. Jur. 2d, Malicious Prosecution 53, 54.

[FN90] Bertero v National General Corp., 13 Cal 3d 43, 118 Cal Rptr 184, 529 P2d 608, 65 ALR3d 878; Fry v Bank of America Nat. Trust & Sav. Asso., 142 Cal App 2d 150, 298 P2d 34; Williams v New York (CA2 NY) 508 F2d 356. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 72. [FN91] 52 Am. Jur. 2d, Malicious Prosecution 72. [FN92] 52 Am. Jur. 2d, Malicious Prosecution 163. Shipp v Autoville Ltd., 23 Md App 555, 328 A2d 349. [FN93] 52 Am. Jur. 2d, Malicious Prosecution 165, 179. Section 11 Footnotes: [FN94] 52 Am. Jur. 2d, Malicious Prosecution 45. [FN95] 52 Am. Jur. 2d, Malicious Prosecution 156. [FN96] 52 Am. Jur. 2d, Malicious Prosecution 48. [FN97] 52 Am. Jur. 2d, Malicious Prosecution 46. [FN98] Bertero v National General Corp., 13 Cal 3d 43, 118 Cal Rptr 184, 529 P2d 608, 65 ALR3d 878. [FN99] 52 Am. Jur. 2d, Malicious Prosecution 49, 152, 153. [FN1] 52 Am. Jur. 2d, Malicious Prosecution 152. [FN2] Fry v Bank of America Nat. Trust & Sav. Asso., 142 Cal App 2d 150, 298 P2d 34; Shipp v Autoville, Ltd., 23 Md App 555, 328 A2d 349. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 47, 141. [FN3] Shipp v Autoville, Ltd., 23 Md App 555, 328 A2d 349.

[FN4] 52 Am. Jur. 2d, Malicious Prosecution 140, 141. [FN5] 52 Am. Jur. 2d, Malicious Prosecution 142. Shipp v Autoville, Ltd., 23 Md App 555, 328 A2d 349. [FN6] 52 Am. Jur. 2d, Malicious Prosecution 47. Section 12 Footnotes: [FN7] 52 Am. Jur. 2d, Malicious Prosecution 70. [FN8] 52 Am. Jur. 2d, Malicious Prosecution 77. [FN9] 52 Am. Jur. 2d, Malicious Prosecution 78, 81. [FN10] 52 Am. Jur. 2d, Malicious Prosecution 78, 87, 158, 174. [FN11] 52 Am. Jur. 2d, Malicious Prosecution 83. [FN12] 52 Am. Jur. 2d, Malicious Prosecution 84, 86. [FN13] Bertero v National General Corp., 13 Cal 3d 43, 118 Cal Rptr 184, 529 P2d 608, 65 ALR3d 878; Fry v Bank of America Nat. Trust & Sav. Asso., 142 Cal App 2d 150, 298 P2d 34. [FN14] 52 Am. Jur. 2d, Malicious Prosecution 80. [FN15] 52 Am. Jur. 2d, Malicious Prosecution 88, 89. [FN16] 52 Am. Jur. 2d, Malicious Prosecution 89, 90. [FN17] 52 Am. Jur. 2d, Malicious Prosecution 82. [FN18] 52 Am. Jur. 2d, Malicious Prosecution 70, 76. [FN19] 52 Am. Jur. 2d, Malicious Prosecution 76. Section 13 Footnotes: [FN20] The proof necessary to establish the various elements of the plaintiff's cause of action, and the types of evidence which may be relied on in so doing, are also discussed in the sections dealing with those elements.

[FN21] 52 Am. Jur. 2d, Malicious Prosecution 128, 129, 136. [FN22] 52 Am. Jur. 2d, Malicious Prosecution 132. [FN23] 52 Am. Jur. 2d, Malicious Prosecution 130, 137. [FN24] 52 Am. Jur. 2d, Malicious Prosecution 134. [FN25] 52 Am. Jur. 2d, Malicious Prosecution 128. [FN26] 52 Am. Jur. 2d, Malicious Prosecution 135, 138. [FN27] 52 Am. Jur. 2d, Malicious Prosecution 133. [FN28] 29 Am. Jur. 2d, Evidence 249; 52 Am. Jur. 2d, Malicious Prosecution 139. [FN29] 52 Am. Jur. 2d, Malicious Prosecution 149151. [FN30] 52 Am. Jur. 2d, Malicious Prosecution 150. [FN31] 52 Am. Jur. 2d, Malicious Prosecution 152, 153, 159. [FN32] Hoene v Associated Dry Goods Corp. (Mo) 487 SW2d 479. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 162. Section 14 Footnotes: [FN33] 52 Am. Jur. 2d, Malicious Prosecution 93, 94. [FN34] Bertero v National General Corp., 13 Cal 3d 43, 118 Cal Rptr 184, 529 P2d 608, 65 ALR3d 878. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 9698. [FN35] Note, 1962 Wis L Rev 701, 702; Witte, 15 Clev-Mar L Rev 15, 16.

[FN36] Note, 1962 Wis L Rev 701, 702; Witte, 15 Clev-Mar L Rev 15, 16. [FN37] Witte, 15 Clev-Mar L Rev 15, 17. [FN38] Ibid., p. 21. [FN39] Note, 1962 Wis L Rev 701, 70203; Witte, 15 Clev-Mar L Rev 15, 22. [FN40] Witte, 15 Clev-Mar L Rev 15, 1718. [FN41] Boquist v Montgomery Ward & Co. (Mo App) 516 SW2d 769. [FN42] Fry v Bank of America Nat. Trust & Sav. Asso., 142 Cal App 2d 150, 298 P2d 34. [FN43] Witte, 15 Clev-Mar L Rev 15, 18. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 101, 187. [FN44] Williams v New York (CA2 NY) 508 F2d 356; Boquist v Montgomery Ward & Co. (Mo App) 516 SW2d 769. [FN45] 52 Am. Jur. 2d, Malicious Prosecution 94. [FN46] 52 Am. Jur. 2d, Malicious Prosecution 94, 96. [FN47] Boquist v Montgomery Ward & Co. (Mo App) 516 SW2d 769. [FN48] Bertero v National General Corp., 13 Cal 3d 43, 118 Cal Rptr 184, 529 P2d 608, 65 ALR3d 878; Boquist v Montgomery Ward & Co. (Mo App) 516 SW2d 769. Legal Encyclopedias 52 Am. Jur. 2d, Malicious Prosecution 189. [FN49] Witte, 15 Clev-Mar L Rev 15, 21.

[FN50] Boquist v Montgomery Ward & Co. (Mo App) 516 SW2d 769. For a discussion of various types of testimony which the plaintiff may use to graphically show his damages, see Malicious Prosecution, 16 Am. Jur. Trials 205 22. Section 15 Footnotes: [FN51] Witte, 15 Clev-Mar L Rev 15, 1819. [FN52] Malicious Prosecution, 16 Am. Jur. Trials 205 22. [FN53] 50 Am. Jur. 2d, Libel and Slander 356. 2006 Thomson/West 7 AMJUR POF 2d 181 END OF DOCUMENT

2006 Thomson/West