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Malicious Prosecution

November 27, 2017

What do you do when the courts are used not to resolve a dispute, but as an instrument of harassment against an undeserving defendant?

America is home to one of the greatest legal systems in the world.  While not always perfect, our courts provide access to a fair and impartial system of justice that more often than not results in an equitable and fair resolution.  Unfortunately, from time to time, this access to justice is abused.  Frivolous lawsuits, vexatious filers, and over-litigation bogs down the judicial system.  Fortunately, in Florida, plaintiffs that file baseless lawsuits in bad faith may be held accountable by filing a claim for malicious prosecution.

To file a claim for malicious prosecution, the plaintiff must establish the following:

(1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994).

Prevailing in a claim for malicious prosecution requires proving each element listed above.  In short, this legal standard means that you must prove you were sued, you won the suit, and the person suing you did so maliciously.  Maliciously filing a lawsuit is not the same as filing a weak claim.  But, there must be some merit, or probable cause for a plaintiff to have reasonable grounds for filing.

In most cases, proving an absence of probable cause for the original proceeding, and malice on the part of the present defendant will go hand-in-hand.  The two elements should not be conflated, but if you can show there were no reasonable grounds for the suit, an improper motive may be assumed.  The Florida Supreme Court has held that “it is not necessary for a plaintiff to prove actual malice; legal malice is sufficient and may be inferred from, among other things, a lack of probable cause, gross negligence, or great indifference to persons, property, or the rights of others.”

Plaintiffs injured as the result of a malicious prosecution must be able to prove damages.  You have a right to recover any and all damages that result from the defendant’s improper suit.  Depending on your jurisdiction, damages may include expenses, or the embarrassment of the suit.  Because of the nature of malicious prosecutions, punitive damages may be awarded.  Punitive damages require a showing of willful or wanton behavior, which is the essence of a malicious prosecution lawsuit.

Similar causes of action include the wrongful institution of criminal proceedings, and abuse of process.  The wrongful institution of criminal proceedings includes filing a police report, or doing anything that initiates a criminal proceeding against an innocent plaintiff.   Abuse of process is the purposeful misuse of civil or criminal processes such as a garnishment action to force a party to do something.

Bryan W. Crews is a personal injury attorney serving clients throughout Orlando.  If you have successfully defended a baseless lawsuit that you believe was filed maliciously, call Bryan W. Crews today, an Orlando personal injury attorney.



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