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Although there is no general cause of action for being subjected to an unsuccessful lawsuit or prosecution, Texas law recognizes the tort of malicious prosecution. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996). The tort of malicious prosecution may arise from a civil claim as well as a criminal prosecution. 

1. CLAIM FOR CIVIL MALICIOUS PROSECUTION.   To prevail in a suit alleging malicious prosecution of a civil claim, the plaintiff must establish: (1) the institution or continuation of civil proceedings against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceeding; (5) termination of the proceeding in plaintiff's favor; and (6) special damages." Id.  The sixth element of "special damages" has also been called "special injury." Airgas-Southwest, Inc. v. IWS Gas and Supply of Texas, Ltd., 390 S.W.3d 472, 478 (Tex. App.--Houston [1st Dist.] 1994, pet. denied)(citing Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 128 (Tex. App.--Houston [14th Dist.] 1994, no writ)).  A. Special Damages/Interference with Person or Property In a malicious prosecution case arsing from a civil suit, Texas adheres to the rule which denies an award of damages unless the party sued suffers some interference by reason of the suit with his person or property. Airgas-Southwest, Inc., 390 S.W.3d at 478.  Thus, Texas law requires "actual interference with the defendant's person (such as an arrest or detention) or property (such as an attachment, an appointment of receiver, a writ of replevin or an injunction)" in order to meet the special injury requirement. Sharif-Munir-Davidson Dev. Corp. v. Bell, 788 S.W.2d 427, 430 (Tex. App.--Dallas 1990, writ denied). The kind of interference with person or property required to meet the special injury requirement is physical interference. See Tex. Beef, 921 S.W.2d at 209.  Moreover, ordinary interference with a person and property that any party suffers incident to a civil suit are not of the type of special damages that supports an action for malicious civil prosecution. Id. at 208-09.  The required damages or injury are termed "special" to distinguish them from the "ordinary losses incident to defending a civil suit, such as inconvenience, embarrassment, discovery costs, and attorney's fees." Id. at 208.  Moreover, Texas courts of appeals have consistently declined to hold that the special injury requirement may be satisfied by consequential damages resulting from the underlying suit, such as attorney's fees and litigation costs, loss of professional or personal reputation, humiliation, mental anguish, loss of business and contracts, pecuniary and economic losses, diversion of time and attention to defending against the suit,increased insurance premiums, and loss of ability to obtain credit. Airgas-Southwest, Inc., 390 S.W.3d at 479.  But once the special injury hurdle has been cleared, that injury serves as a threshold for recovery of the full range of damages incurred as a result of the malicious litigation. Id. 

2. CLAIM FOR CRIMINAL MALICIOUS PROSECUTION.  To prevail on a claim for malicious criminal prosecution claim, a plaintiff must establish (1) the commencement of a criminal prosecution against the plaintiff; (2) causation (initiation or procurement) of the action by the defendant; (3) termination of the prosecution in the plaintiff's favor; (4) the plaintiff's innocence; (5) the absence of probable cause for the proceedings; (6) malice in filing the charge; and (7) damage to the plaintiff. Davis v. Prosperity Bank, 383 S.W.3d 795, 802 (Tex. App.-Houston [14th Dist.] 2012, no pet.); Richards v. Tebbe, 2014 Tex.App.LEXIS 6973, *6 (Tex. App.-Houston [14th Dist.] 2014, no pet.)(citing Richey v. Brookshire Grocery Co. 952 S.W.2d 515, 517 (Tex. 1997)).

 A. Presumption of Probable Cause/Shifting Burden.   Malicious prosecution actions involve a delicate balance between society's interest in the efficient enforcement of the criminal law and the individual's interest in freedom from unjustifiable and oppressive criminal prosecution. Id; see also Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 290-91 (Tex. 1994).  Thus, there is an initial presumption that the complainant acted reasonably and in good faith and had probable cause to initiate or procure the proceedings. Richey, 952 S.W.2d at 517. A complainant has probable cause to initiate or procure a criminal prosecution if he reasonably believes that the elements of a crime have been committed based on the information available to him before the criminal proceeding began. Richards, 2014 Tex. App. LEXIS at *8.  The presumption disappears if the accused/plaintiff produces evidence that the motives, grounds, beliefs, and other evidence upon which the complainant acted did not constitute probable cause, including evidence of the parties' prior bad relations. Id. at *9.  Once the presumption is dispelled, the burden shifts to the complainant/defendant to offer proof of proper cause. Id. 

3. STATUTE OF LIMITATIONS.   The limitations period for a claim for malicious prosecution is one year after the day that the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. 16.002 (a) (West 2002); Torres v. GSC Enterprises, Inc., 242 S.W.3d 553, 561 (Tex.App.- El Paso 2007, no pet.).  A cause of action for malicious criminal prosecution accrues when the criminal prosecution ends. Id.  For purposes of the statute of limitations, a malicious prosecution claim accrues upon termination of the criminal proceedings brought against and not when the prosecution finally decides that it no longer desires to pursue the matter.  Leal v. American Nat'l Ins. Co., 928 S.W.2d 592, 597 (Tex.App.-- Corpus Christi 1996, writ denied).

Malicious Prosecution

© 2014 Mark Courtois and Diane Davis

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