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Malicious Prosecution

One of the first questions a defendant in a civil lawsuit will inevitably ask is, assuming they prevail with the defense, whether a countersuit or independent suit can be filed against the plaintiff. The reasoning is well taken: can I sue the other person back if I win for putting me through the litigation process? Generally, the answer in theory and practice is “no,” but there may be occasions when a “malicious prosecution” lawsuit may be appropriate wherein a defendant can sue a plaintiff for filing a frivolous claim.

There are six (6) elements to malicious prosecution: (1) commencement of an earlier suit against the plaintiff, (2) instigation of the suit by the prior suit by the defendant, (3) termination of the suit in plaintiff’s favor, (4) lack of probable cause of filing the suit, (5) malicious intent by the defendant in initiating the suit, and (6) damage sustained by plaintiff  as a result of the suit. State ex rel. O’Basuyi v. Vincent, No. SC 93652 (Mo. 2014). In application, item (4) is often the most difficult to prove. Essentially, a plaintiff suing a defendant for malicious prosecution must demonstrate that the defendant had no reasonable basis or reasonable cause for initiating the lawsuit.

As a matter of policy, moreover, actions for malicious prosecution have “never been favorites of the law” because Courts favor prosecuting potential liability and investigating illegal activity. Sanders v. Daniel Int’l Corp., 682 S.W.2d 803, 806 (Mo. 1984). For this reason, Missouri has consistently required “strict compliance” with the elements of a malicious prosecution claim, including the element that the claim is not actionable until there is a full termination of the prior proceeding in the plaintiff’s favor. Id.

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