Malicious Prosecution

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Submitted By mswendylizeth
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Discussion I. Can our client satisfy the first requirement for a malicious prosecution suit that requires that the termination of the earlier suit be in the plaintiff’s favor when in our client’s case their termination was due to a voluntary dismissal by the initial plaintiff who changed her mind about her claim?

To meet the first element –favorable termination- a plaintiff cannot rely on a settlement of the case that both parties agree to. Once the litigation ends by settlement there is no favorable termination for the purpose of pursuing a malicious prosecution. A favorable termination is satisfied by abandonment or dismissal and without any final determination merits. However there are preceding cases that require that adjudication on the merits is necessary for a determination that a termination was in the plaintiff’s favor. If there is a withdrawal of proceedings by the person who is bringing them it is considered a favorable termination in the plaintiff’s favor. In our case our client should succeed because the defendant dismissed the suit on his own. So our client will satisfy this element.
The cases discussed below seem to agree on the main elements of malicious prosecution: (1) termination of the earlier suit in the plaintiff’s favor, (2) lack of probable cause for the suit, (3) malice on the defendant part, and (4) a special injury flowing from the earlier suit. Frey v. Stoneman, 722 P. 2d 274, 277 (Ariz. 1986); Young v. Motor City Apartments, 133 Mich. App. 671, 675, 350 N.W.2d 790, 792 (1984). Elements (2) and (3) are satisfied in our client’s case: The earlier suit lacked probable cause because our client had paid his storage fees, and the suit was presumably malicious because the marina owner’s only motive was to put him out of business. Element (4) is discussed below under Issue II.
In Colli v. Kamins, 468nA.2d 295 (Conn.Super. 1983) a claim…...

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