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Abuse of Process & Malicious Prosecution

Litigation is expensive. Between court costs, discovery costs, and legal fees, you can end up feeling like you “lost” even when you prevail. It is for this reason that there are often strong cries for lawsuit reforms, such as loser pays systems in which the losing party in litigation must pay for the prevailing parties court costs and attorney fees.

Regardless of whatever policies may be instituted by the powers that be in Washington D.C. or Jefferson City, there does exist a somewhat helpful claim designed to remedy the problem of meritless lawsuits. In Missouri — and most other states — abuse of process is recognized as a valid cause of action. A pleading alleging abuse of process must set forth ultimate facts establishing (1) the present defendant made an illegal, improper, perverted use of process, a use neither warranted or authorized by the process;  (2) the defendant had an illegal purpose in exercising such illegal, perverted or improper use of process;  and (3) damage resulted.  Ritterbusch v. Holt, 789 S.W.2d 491, 493 (Mo. 1990).   It must be shown that process has been used to accomplish an unlawful end or to compel the defendant to do something he could not be legally compelled to do.

Furthermore, Missouri also recognizes malicious prosecution, which is often used in the context of criminal matters. It consists of  (1) the commencement of a judicial proceeding against the plaintiff;  (2) the instigation of the suit by the defendant;  (3) the termination of the proceeding in plaintiff’s favor;  (4) the absence of probable cause for the suit;  (5) malice by the defendant in instituting the suit;  and (6) resulting damage to the plaintiff.

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