Discussion I. Can our client satisfy the first requirement for a malicious prosecution suit that requires that the termination of the earlier suit be in the plaintiff’s favor when in our client’s case their termination was due to a voluntary dismissal by the initial plaintiff who changed her mind about her claim?

To meet the first element –favorable termination- a plaintiff cannot rely on a settlement of the case that both parties agree to. Once the litigation ends by settlement there is no favorable termination for the purpose of pursuing a malicious prosecution. A favorable termination is satisfied by abandonment or dismissal and without any final determination merits. However there are preceding cases that require that adjudication on the merits is necessary for a determination that a termination was in the plaintiff’s favor. If there is a withdrawal of proceedings by the person who is bringing them it is considered a favorable termination in the plaintiff’s favor. In our case our client should succeed because the defendant dismissed the suit on his own. So our client will satisfy this element.
The cases discussed below seem to agree on the main elements of malicious prosecution: (1) termination of the earlier suit in the plaintiff’s favor, (2) lack of probable cause for the suit, (3) malice on the defendant part, and (4) a special injury flowing from the earlier suit. Frey v. Stoneman, 722 P. 2d 274, 277 (Ariz. 1986); Young v. Motor City Apartments, 133 Mich. App. 671, 675, 350 N.W.2d 790, 792 (1984). Elements (2) and (3) are satisfied in our client’s case: The earlier suit lacked probable cause because our client had paid his storage fees, and the suit was presumably malicious because the marina owner’s only motive was to put him out of business. Element (4) is discussed below under Issue II.
In Colli v. Kamins, 468nA.2d 295 (Conn.Super. 1983) a claim was brought upon based on malicious prosecution. The malicious prosecution claim derived from the previous civil suit that the plaintiff at the time voluntarily withdrew. A voluntary dismissal of a claim is sufficient to satisfy element (1) that the prior proceedings terminated in the current plaintiff’s favor. In this case it is established that voluntary dismissal “without prejudice” of a will contest is a favorable termination of a judicial proceeding. The court denied the motion to strike the first count of the plaintiff’s complaint because the requirement of termination may be satisfied by showing that the suit was abandoned or dismissed. Therefore voluntary dismissal is a favorable termination.
As established in the Colli case, a voluntary dismissal is a favorable termination. In Frey v. Stoneman, 722 P. 2d 274, 277 (Ariz. 1986) an attorney represented a client, previous plaintiff, in her medical malpractice action against doctors, previous defendant. The doctors decided to file a claim for malicious prosecution. The client then decided to unilaterally dismiss the earlier suit against the doctors after several discussions between the two parties. This resulted in an informal agreement for dismissal. The issue presented in this case was whether the dismissal was in fact a favorable termination to pursue the malicious prosecution claim. In this case it is stated that when a termination or dismissal indicates in some fashion that the accused is innocent of wrongdoing it is a favorable termination. It is also stated that a termination without a trial on the merits may be a favorable termination of litigation if the circumstances indicate the innocence or freedom from liability of the defendant. However in a case where there is no adjunction on the merits the existence of favorable termination of the prior proceeding generally it must be found in the substance rather than the form of prior events and often involve questions of fact then it will be necessary to determine what actually happened in this case. For this case the trial judge found that the malpractice action had been dismissed without consideration. Therefore that prior proceeding had not been favorable terminated in the doctor’s favor and dismissed the malicious prosecution case. The judgment entered by the trial court on the motion to dismiss was reversed because a termination must be in favor of the person against whom civil proceedings are brought.
To have an action for malicious prosecution, our client must prove that a favorable termination has taken place. In the Colli case it establishes that a voluntary dismissal “without prejudice” of a will contest is a favorable termination. In the Frey case it is stated that when a termination or dismissal indicates in some fashion that the accused is innocent of wrongdoing it is a favorable termination. Also a termination without a trial on the merits may be a favorable termination of litigation if the circumstances indicate the innocence or freedom from liability of the defendant. In a case where there is no adjunction on the merits the existence of favorable termination of the prior proceeding, you must look at the facts to determine what actually occurred and whom the termination benefitted. II. Can our client show a special injury from another earlier suit against him, as required to have an action for malicious prosecution, when his charter boat was seized pending the suit as allowed by state, and when his professional reputation was damaged because of the suit?

To meet the fourth element –special injury- a plaintiff must show a special injury from the previous malicious suit. A special injury can be met by seizure of property or special injury to one’s fame. However to meet the requirements for a special injury to one’s fame it must be proven that the special injury created a greater hardship than one which would follow a similar case. So our client probably can satisfy this element.
The court in Barnard v. Hartman, 130 Mich. App. 692; 344 N.W.2d 53; (1983), seemed to define special injury in general terms as injury to one’s fame (as by a scandalous allegation), injury to one’s person or liberty, and injury to one’s property. In this case, the plaintiff failed to state a claim of malicious prosecution because the plaintiff failed to show interference with his person or property, which is one of the requirements to constitute a special injury under Michigan Law. In Barnard v. Hartman, 130 Mich. App. 692; 344 N.W.2d 53; (1983) (citation omitted) it states that a special injury must be some injury which would not necessarily occur in all suits prosecuted for similar causes of action. It also states that “it is not enough that the prosecution of action entails a greater hardship that which would flow from an ordinary civil action. The hardship must also be greater than that which ordinarily results from the prosecution of similar causes. The plaintiff’s special injury, the damage to her personal reputation, is a type of injury that would normally outcome from a similar suit. Therefore the court concluded that the plaintiff in this case did not meet the requirements for a special injury.
In another Michigan case, to have an action for malicious prosecution, a plaintiff must show a special injury from the previous malicious suit. This requirement is only satisfied by seizure of property as presented in Young v. Motor City Apts., 133 Mich. App. 671, 675 350 N.W.2d 79-,792 (1984). The Plaintiffs in this case were attorneys whom appealed from an order of summary judgment that was granted in favor of the defendants. Plaintiffs wanted damages from defendants for malicious prosecution and for abuse of process. Plaintiffs failed to prove special injury for the malicious prosecution. To decide this case, the courts looked at the Friedman v. Dozorc, 412 Mich. 1, 312 N.W.2d 585 (1981) in which it had similar claims to the Young case and defined special injury, “cited with approval prior cases in which the special injury alleged was the seizure of property or a result equivalent to a seizure or property.” Based on the test, the plaintiffs failed to allege a seizure of property, which meant they failed to allege special injury that is required for a claim against former clients for malicious prosecution. They didn’t prove this due to the fact that interference with one’s business and trade, including those of loss of goodwill, profits, business opportunities, and the loss of reputation in not cognizable as special injuries. The courts concurred with the Friedman case. Therefore the plaintiff’s injuries did not qualify as a special injury.
To have an action for malicious prosecution, our client must prove a special injury from another earlier suit against him. In the Bernard case it establishes that in order for a person to prove a special injury to one’s fame, which is also one of our client’s claims, he must prove that the special injury has created a greater hardship than one which would follow a similar case. In our second case, it established that interference with one’s person or property, which is one of the requirements to constitute a special injury under Michigan Law. In the Young case it is drafted that a special injury is defined as a seizure of property or a result equivalent to a seizure or property.
On the other hand, our client’s case probably meets the special-injury test. In the Young case, he failed to meet this element. During the first suit our client had his property seized, his boat. The injury to our client’s reputation may only satisfy as stated in the Barnard case; our client must prove that the special injury to his fame has created a greater hardship than one would create from a similar suit.