MALICIOUS PROSECTION

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1 MALICIOUS PROSECTION DALE JEFFERSON, Houston Martin, Disiere, Jefferson & Wisdom, L.L.P. State Bar of Texas CAUSES OF ACTION March 30-31, Irving April 6-7, 2006 Houston CHAPTER 18

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9 MALICIOUS PROSECUTION by Dale Jefferson SCOPE I am going to discuss Malicious Prosecution as it deals with civil proceedings. This paper is just an outline of my talk, along with references to the book you received today, O Connor s Texas Causes of Action (2006) (the COA ). Malicious civil prosecution is covered in Chapter 18-B of the COA, beginning on page 423. Actions for malicious civil prosecution are not favored under the law because it discourages people from relying on the court for dispute resolution. However, if the elements of the cause are proved, liability is established ELEMENTS OF MALICIOUS PROSECUTION OF CIVIL PROCEEDINGS I. A civil proceeding was instituted or continued against the plaintiff; II. III. IV. The proceeding was instituted or continued by or at the insistence of the defendant; The defendant acted with malice; The defendant did not have probable cause for the proceeding; V. The proceeding was terminated in the plaintiff s favor; and VI. The plaintiff suffered special injury as a result of the proceeding. PLAINTIFF S ELEMENTS I. Civil Proceeding against plaintiff To prove an action for malicious prosecution, the plaintiff must establish that a civil proceeding was instituted or continued against the plaintiff. A. Civil Proceeding i. Plaintiff must prove that there was an underlying civil proceeding. Besides an ordinary civil lawsuit, the following types of civil proceedings may underlie a claim for malicious prosecution:

10 1. Involuntary commitment and temporary guardianship proceedings, B. Institution or continuation 2. Involuntary bankruptcy proceedings, 3. Administrative proceedings. i. The plaintiff must prove the underlying civil proceeding was instituted or continued against the plaintiff. C. Plaintiff was party i. The plaintiff must prove it was a party in most cases a defendant in the underlying civil proceeding. ii. A nonparty to the underlying litigation cannot maintain a malicious prosecution suit even if the nonparty suffered injury from the underlying suit. II. Insistence of defendant A. Plaintiff must establish the proceeding was initiated or continued by or at the insistence of the defendant. B. Although most malicious prosecution claims arise from a suit filed by a plaintiff in the underlying suit, a defendant s counterclaim or cross-claim can give rise to a malicious prosecution suit III. Malice in proceeding Plaintiff must establish that the defendant acted with malice. A. Malice i. Ill will, evil motive, or such gross indifference or reckless disregard for the rights of other as to amount to a willful and wanton act. ii. Malice may be proved by direct or circumstantial evidence. 1. proof the defendant acted with personal spite or ill will is not required. 2. malice my be inferred from proof that the defendant did not have probable cause.

11 B. In the proceeding i. Supreme Court stated the third element of malicious civil prosecution as malice in the commencement of the proceeding. The issue is whether the malice must be in the commencement of the suit or whether it could arise after a suit was commenced. Only one case has addressed this issue (Luce v. Interstate Adjusters, Inc., 26 S.W.3d 561, 566 (Tex.App. Dallas 2000, no pet.). 1. Commencement Only a. In Luce, the Dallas Court of Appeals held that malice must be in the commencement, and cannot be solely in the continuation of the suit. Unless the suit was commenced with malice, the court said there can be no cause of action for malicious civil prosecution. 2. Commencement or continuation a. The better argument is that the malice can be in either the commencement or the continuation of the suit. b. Although not adopted by the supreme court, Comment c from the Restatement (2d) of Torts section 674, states that one who continues a civil proceeding that has properly been begun or one who takes an active part in its continuation for an improper purpose after he has learned that there is not probable cause for the proceeding becomes liable as if he had then initiated the proceeding. Restatement of Torts 674 cmt. c (1977) (emphasis added). IV. Lack of probable cause A. Plaintiff must establish the defendant lacked probable cause for the underlying suit. B. There is an initial presumption that the defendant acted reasonably and in good faith and therefore had probable cause. C. Presumption disappears once the plaintiff produces evidence that the motives, grounds, beliefs, and evidence the defendant acted on did not amount to probably cause to commence or continue the proceedings.

12 D. Once the plaintiff overcomes the presumption, the defendant must offer independent proof of probable cause. V. Termination in plaintiff s favor To prove an action for malicious prosecution, the plaintiff must establish the civil proceeding was terminated in the plaintiff s favor. A. Termination i. Plaintiff must show a final judgment was rendered in the underlying suit and all appeals were exhausted. ii. This prevents a suit for malicious prosecution from being rendered meaningless by an adverse ruling of an appellate court on the underlying suit. iii. Abatement is not the equivalent of a final judgment. B. In favor of plaintiff i. Plaintiff must show that termination was in its favor. ii. Voluntary termination of the underlying suit can sometimes satisfy the favorable-termination element, depending on the circumstances. iii. These voluntary dismissals do not satisfy the favorable-termination element, and thus cannot be the basis of a malicious prosecution: 1. an agreed dismissal 2. a nonsuit without prejudice to refilling the claim VI. Special injury To prove an action for malicious prosecution, plaintiff must establish it suffered special injury. A. Plaintiff suffers special injury when there has been physical interference with the plaintiff s person or property, such as arrest, attachment, injunction, or sequestration. The following are special injuries: i. attachment or detention of the plaintiff, injunction restraining the plaintiff, or some other physical interference with the plaintiff.

13 ii. attachment of plaintiff s property, appointment of a receiver for plaintiff s property, writ of replevin. B. Ordinary losses flowing from the mere fact that a suit was filed are insufficient to maintain a suit for malicious prosecution. The following are not special injuries for purposes of malicious prosecution: i. The mere filing of a lawsuit with the attendant inconvenience, embarrassment, discovery costs, and attorney fees. ii. Taking of deposition, service of subpoena duces tecum, defense costs. iii. False allegations resulting in harm to profession reputation. iv. Cancellation of or increased premiums for malpractice insurance. v. Notice of lis pendens filed under Texas Property Code vi. Filling opposition to a claim in bankruptcy court that delayed distribution of proceeds. REMEDIES I. Actual Damages A. Plaintiff can recover actual damages. B. Proving special injury is the threshold element for recovering the full range of compensable damages caused by the malicious prosecution. i. Reputation damages 1. compensable damages for special injury to the plaintiff s person can include recovery for injury to reputation, goodwill, and credit rating. ii. Property damages 1. Compensable damages for special injury to the plaintiff s property can include reasonable value of the use of the property during the time the plaintiff was denied the use. iii. Mental anguish damages 1. compensable damages for special injury to the plaintiff s person can include recovery for physical and emotional distress.

14 iv. Defense damages 1. compensable damages for special injury to the plaintiff can include recovery for reasonable and necessary expenses for defense in the underlying suit. v. No damages for family 1. Members of the plaintiff s family are not entitled to damages for malicious prosecution. II. Exemplary damages A. Plaintiff can recover exemplary damages. B. Plaintiff must prove with clear and convincing evidence that defendant acted with malice. III. Interest A. Plaintiff can recover prejudgment interest. B. Plaintiff can recover post judgment interest. IV. Court Costs A. Plaintiff can recover court costs. V. Attorney fees LIMITATIONS A. A prevailing party cannot recover attorney fees from an opposing arty unless permitted by statute, by a contract between the parties, or under equity. B. Because no statute provides for attorney fees in an action for malicious prosecution, and because generally there is no contract between the parties, attorney fees are not recoverable. C. Attorney fees incurred in defending the underlying case may be recovered in a suit for malicious civil prosecution. I. Limitations period

15 A. It is unclear whether the limitations period for a malicious civil prosecution suit is one year or two years. B. Plain language of the one-year statute of limitations refers to a suit for malicious prosecution. i. Texas Supreme Court in 1885 held that the one year statute applies only to a suit for malicious prosecution based on an underlying criminal proceeding Bear Bros. & Hirsch v. Marx & Kempner, 63 Tex. at 301 (1885). ii. When the suit is based on an underlying civil action, the twoyear statute of limitations controls 1. Supreme Court said that the underlying civil action involved injury to one s property or estate, and thus a malicious prosecution suit based on the underlying civil action should be governed by the two year statute applying to actions for trespass. 2. Even so, the Supreme Court decision suggests that the one-year statute might apply when the underlying civil action involved injury to one s person or character, such as defamation. II. Accrual A. An action for malicious prosecution accrues when the underlying civil suit ends. B. Because the period for bringing a suit for malicious prosecution begins on the occurrence of a specified event, the discovery rule is unlikely to apply. DEFENSES TO A MALICIOUS PROSECUTION CLAIM I. Defendant can assert limitations II. Plaintiff s fault A. Defendant can assert that the plaintiff s own acts or omissions caused or contributed to the plaintiff s injury. B. If the defendant pleads and proves the plaintiff s fault, the defendant is entitled to a jury submission on the issue of proportionate responsibility. III. Good faith

16 A. Because there is a presumption that the defendant was reasonable in bringing suit and brought it in good faith, the defendant does not need to raise the defense of good faith and offer evidence to support it unless the plaintiff overcomes the presumption. IV. Absolute immunity A. Where the defendant testifies in trial or in quasi-judicial proceedings before governmental executive officers, boards, and commissions that exercise quasijudicial powers, no civil liability may arise from the testimony. CASE LAW The elements of malicious prosecution can be found in the 1996 case Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex.1996). In Green, a seller of cattle sued beef cattle company for tortuous interference with contract and malicious prosecution. The 253 rd District Court, Liberty County, entered judgment for the seller on both claims, and the cattle company appealed. The Beaumont Court of Appeals affirmed, and the cattle company appealed. On rehearing, the Supreme Court held that (1) an underlying civil claim does not terminate in favor of plaintiff in malicious prosecution case until the appeals process has been exhausted; (2) seller did not establish special injury by virtue of an injunction issued at company s request against a third party, as injunction did not affect seller s property interests, and (3) jury finding of actual malice on defendant s part with respect to tortuous interference claim did not vitiate jury s finding that defendant was justified in interfering with contract. The Court also ruled in Green that proceedings are not terminated until the final disposition of any appeals or any further proceedings. The court also held that a plaintiff must suffer a special injury before recovering for malicious prosecution of a civil case. It is insufficient that a party has suffered the ordinary losses incident to defending a civil suit. An interesting case to examine is Luce v. Interstate Adjusters, Inc., 26 S.W.3d 561 (Tex. App. Dallas 2004). This case deals with a towing company that brought malicious prosecution action against owners of a vehicle after the towing company succeeded in setting aside default judgment in favor of vehicle owners in separate action. The District Court entered judgment for the towing company, but the Court of Appeals reversed that ruling. The holding in Luce says that malice must be in the commencement and cannot be solely in the continuation of the suit. This holding is in direct contradiction with the statement of the first element of malicious prosecution, which is the institution or continuation of civil proceedings. When dealing with the statute of limitations, we look at the case Bear Bros. & Hirsch v. Marx & Kempner, 63 Tex, 298, 301 (1885). Bear is a very old case that holds that the one year statute applies only to a suit for malicious prosecution based on the following actions: injuries done to the person of another, actions for malicious prosecution, or for injuries done to the character or reputation of another by libel or slander, actions for injuries done to the person of another, where death ensues from such injuries; and the cause of action shall be considered as

17 having accrued at the death of the party injured. Bear also held that a two year statute of limitations applies to cases that include: trespass, detaining the personal property of another and converting to one s own use, taking or carrying away the goods and chattels of another, actions for debt where the indebtedness is not evidence by a contract, and actions upon stated or open accounts.

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