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Establishing a Malicious Prosecution Claim

Sometimes plaintiffs sue for all the wrong reasons.  If a party sues an individual without a proper basis to bring suit, the party being sued may have a claim for malicious prosecution against the party who wrongfully filed suit.  Florida has long recognized malicious prosecution claims. Long ago (1932) the Florida Supreme court in Duval Jewelry Company v. Smith, spelled out the requirements for bringing such a claim:  (1) the commencement or continuation of an original civil or criminal judicial proceeding; (2) its legal causation by the present defendant against a plaintiff who was the defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice; and, (6) damages to the plaintiff.  Duval Jewelry Company v. Smith, 136 So. 878 (Fla. 1931);  see also, Adams v. Whitfield, 290 So.2d 49 (Fla. 1974).

Starting with the first element, it is important to remember that a malicious prosecution claim can arise from the commencement of a baseless lawsuit, the continuation of such a suit, or both. Perhaps the party who filed the lawsuit originally believed the litigation had merit.  However, if during the course of the litigation the original plaintiff realizes the litigation is frivolous, the plaintiff’s continuation of suit can provide the basis for a malicious prosecution claim.

The second requirement for a malicious prosecution claim simply requires that the party alleging the prior suit was malicious must have been the defendant in the original proceeding.  Said another way, a party cannot allege malicious prosecution if it was not the party who was wrongfully sued in the first action. Next, a malicious prosecution case requires that the original, frivolous lawsuit have terminated in favor of the party who now brings the malicious prosecution claim.  The party who brings the malicious prosecution claim needs to have prevailed in the original action.

The fourth element is a lack of probable cause for bringing the underlying action.   The Florida Supreme Court in Burns v. GCC Beverages, Inc., 502 So.2d 1217 (Fla. 1986), explained what is meant by probable cause:  “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.”  (Further citations omitted). The Burns case looked at malicious prosecution in the context of an underlying criminal proceeding.  Even so, the court’s definition provides guidance in understanding the probable cause element for a malicious prosecution involving civil cases.

The next element of a malicious prosecution claim is the presence of malice.  Turning to Adams v. Whitfield, 290 So.2d at 51, the Florida Supreme Court explained that malice need not be proven directly, but can instead be implied or inferred from the lack of probable cause.  Under Adams “it is not necessary to prove actual malice in order to recover for malicious prosecution; only legal malice is necessary and this legal malice may be inferred entirely from a lack of probable cause.”  Id.

The final element of a malicious prosecution claim is damages.  On this point, Adams v. Whitfield again provides guidance:  “a jury awarding compensatory damages for malicious prosecution constituted a sufficient finding of malice to justify an award of punitive damages.”  Id. at 51.  There, however, the court explained that the mere absence of probable cause may not always warrant punitive damages, but in Adams the court found that the defendant had shown a “wanton disregard for the rights” of the plaintiff such that punitive damages were appropriate.


Jason Cornell is a Florida attorney who represents plaintiffs who are the victims of malicious prosecution.  If you have questions regarding this post, you can reach Jason at 561 616-3333 or jcornell@liggiolaw.com.

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