When Your Malicious Prosecution Lawsuit Doesn't Need The 'Favorable Termination' Element

The theory of "malicious prosecution" is an import from English common-law tradition. It is based on the idea that a person has a common-law right to not be harassed by vexatious legal proceedings.

You might consider filing a malicious prosecution lawsuit when you find yourself having been harassed by a vexatious legal proceeding. In such a lawsuit, you would be alleging, in layman's terms, that you were the defendant in such a legal proceeding, that you were damaged somehow as a result, and that the person who initiated that legal proceeding against you did so without justification and with the intention of causing you harm.

The "without justification" part is referred to in the malicious prosecution elements as "without probable cause."

The subject of this article pertains mostly to that "without probable cause" part.

Malicious Prosecution Elements

Although different jurisdictions may package the essential elements you would need to prove for a malicious prosecution lawsuit in slightly different ways, if you distill each of those different presentations down to a typical set, then, for a malicious prosecution lawsuit arising from a vexatious civil action, you might have:

1. Favorable termination (i.e. the vexatious legal proceeding was terminated in your favor).
2. No probable cause (i.e. the plaintiff, complainant, etc., in the vexatious legal proceeding, had no probable cause for initiating the vexatious legal proceeding).
3. The defendant acted with malice (i.e. the person who initiated the vexatious legal proceeding did so with the intention to harm you).
4. Damages (i.e. the vexatious legal proceeding damaged you somehow).

Reasons For The Favorable Termination Requirement

The traditional reasoning behind the "favorable termination" requirement is twofold.

First, generally, if the legal proceeding you allege to have been vexatious terminated in a way that is adverse to you, then it serves as conclusive evidence that there was probable cause for the legal proceeding--because, if there were not probable cause, you would have not "lost" that legal proceeding, as it were.

Second, it's intended to guard against malicious prosecution lawsuits arising during the pendency of the legal proceeding you allege to be vexatious--because, prior to that allegedly vexatious proceeding terminating, there remains a chance that the proceeding could terminate in a way that is unfavorable to you, which would preclude your malicious prosecution action.

There is also a third, albeit less-often mentioned, reason: as a matter of public policy, we don't want defendants in a given legal proceeding to be able to file a malicious prosecution action as a way to create leverage against the parties prosecuting the underlying proceeding.

What Constitutes Favorable Termination?

In practice, there is nuance involved when trying to determine whether "favorable termination" has occurred.

For example, suppose the underlying legal proceeding was dismissed without a trial. Is that a "favorable termination" for you? Some argue yes, while some argue no, and there is caselaw in every state that fields this question.

As another example, what if the vexatious legal proceeding reached its designed termination without you ever having a chance to defend yourself--as in an ex parte proceeding where (see definition below), by design, the defendant is neither present nor given notice of the proceeding beforehand?

There is at least one circumstance we can be sure of without having to wade through nuance: that favorable termination does not occur if the defendant in the allegedly vexatious proceeding is found guilty or liable.

Most other circumstances are subject to analysis, even if to varying degrees.

Origins of Ex Parte Exception

The ex parte example listed above is where a potential exception arises to the "favorable termination" requirement.

This exception has it s roots in the Restatement (Second) of Torts, which says that a malicious prosecution action can be maintained on the basis of a vexatious ex parte proceeding without having to prove favorable termination.

Definition of Ex Parte

Ex parte proceedings are those where relief is granted without the party against whom the relief is sought having an opportunity to be heard.

In an ex parte proceeding, because “the accused party ha[d] no opportunity to disprove the case made against him[,]” the favorable termination requirement is excused. See Thomas Cooley, A Treatise on the Law of Torts 186 (1879).

Example of Malicious Prosecution Action Based On Vexatious Ex Parte Proceeding

An example of such an ex parte proceeding might be part of a DVPO lawsuit, in which the plaintiff alleges that the potential for considerable harm caused the defendant is so great that the court should enter a temporary DVPO against the defendant ex parte, meaning the defendant won't even know that the plaintiff requested the DVPO until after it already takes effect (on a temporary basis).

Ex Parte Exception Example

Applying the ex parte exception to the DVPO example above, the defendant in the DVPO action might later bring a malicious prosecution action against the DVPO plaintiff alleging or arguing that...

1. The ex parte DVPO matter has terminated, and, although it was not terminated in the DVPO defendant's favor, the favorable termination requirement should be waived, because the DVPO defendant was not given an opportunity to defend himself prior to the temporary DVPO being entered.
2. The DVPO defendant suffered "special damages" as a result of the ex parte DVPO action: for example, let's say that the DVPO defendant was immediately evicted from the home he shared with the DVPO plaintiff.
3. The DVPO plaintiff did not have probable cause to motion for the ex parte DVPO: let's say that the DVPO defendant alleges that there was no basis for the DVPO plaintiff to allege immediate danger or risk of harm but for the ex parte DVPO.
4. The DVPO plaintiff's true motive for filing the ex parte DVPO motion was to harass, annoy, or harm the DVPO defendant, rather than any "proper purpose" such as protecting against abuse by the DVPO defendant.

Not every jurisdiction recognizes this exception yet. But a few state already do (e.g. Colorado), and the trend seems to be moving in that direction.