Congratulations John Hillenbrand for winning the 55″ Westinghouse flat screen HDTV….
The drawing was held at 6:00 pm and this was sent to me so I could post it
Thanks to all of you who bought tickets from Ramona, Georgia and Jessica to help raise money for Frank and Georgia Carson’s transcripts
Thank you Jessica Duran for donating this excellent prize
Mr. Hillenbrand is a very long time Attorney friend and colleague of the Carson law firm…
An action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced withoutprobable causeand for a purpose other than that of bringing the alleged offender to justice.
An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil. The criminal defendant or civil respondent in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encouraging the original case. The defendant in the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or prosecutor in the original case becomes the defendant. In most states the claim must be filed within a year after the end of the original case.
A claim of malicious prosecution is a tort action. A tort action is filed in civil court to recover money damages for certain harm suffered. The plaintiff in a malicious prosecution suit seeks to win money from the respondent as recompense for the various costs associated with having to defend against the baseless and vexatious case.
The public policy that supports the action for malicious prosecution is the discouragement of vexatious litigation. This policy must compete against one that favors the freedom of law enforcement officers, judicial officers, and private citizens to participate and assist in the administration of justice.
In most jurisdictions an action for malicious prosecution is governed by the common law. This means that the authority to bring the action lies in case law from the courts, not statutes from the legislature. Most legislatures maintain some statutes that give certain persons immunity from malicious prosecution for certain acts. In Colorado, for example, a merchant, a merchant’s employee, or a police officer, who reasonably suspects that a theft has occurred, may detain and question the suspect without fear of liability for slander, false arrest, false imprisonment, unlawful detention, or malicious prosecution (Colo. Rev. Stat. Ann. § 18-4-407 [West 1996]).
An action for malicious prosecution is distinct from an action for false arrest or false imprisonment. If a person is arrested by a police officer who lacks legal authority for the arrest, the proper remedy is an action for false arrest. If a person is confined against her or his will, the proper remedy is an action for false imprisonment. An action for malicious prosecution is appropriate only when the judicial system has been misused.
IN ADDITION, FROM A READER:
To win a suit for malicious prosecution, the plaintiff must prove four elements: (1) that the original case was terminated in favor of the plaintiff, (2) that the defendant played an active role in the original case, (3) that the defendant did not have probable cause or reasonable grounds to support the original case, and (4) that the defendant initiated or continued the initial case with an improper purpose. Each of these elements presents a challenge to the plaintiff.
The Original Case Was Terminated in Favor of the Plaintiff The original case must end before the defendant or respondent in that case may file a malicious prosecution suit. This requirement is relatively easy to prove. The original case qualifies as a prosecution if the defendant or respondent had to appear in court. The original case need not have gone to trial: it is enough that the defendant or respondent was forced to answer to a complaint in court. If the original case is being appealed, it is not considered terminated, and the defendant or respondent must wait to file a malicious prosecution suit.
A criminal proceeding is any process where the government can punish a person — this ranges from murder to parking tickets.
A civil proceeding is typically where the plaintiff is not a governmental entity — although the defendant might be — and the plaintiff is suing for money or an injunction.
Even if the people bringing the criminal or civil proceeding think they have a winning case and are suing for a legitimate reason when they begin the case, they can be guilty of malicious prosecution if they discover a reason they cannot win during the case, but continue the case for improper motives anyway. Reasonable Grounds
The person bringing the original prosecution or lawsuit must have reasonable grounds (also called probable cause), i.e. a reasonable person in their place would think that the legal action was legitimate and had a chance of winning.
However, if the person bringing the prosecution or lawsuit knows that the action is illegitimate, there is no need to prove that a hypothetical reasonable person would also think it was illegitimate. Improper Purpose
Typically, if a lack of reasonable grounds is proved, an improper purpose will be assumed. This means that the plaintiff in a malicious prosecution action does not necessarily need to prove that the defendant had an improper purpose. However, if the defendant can prove that he or she had a proper purpose, the plaintiff will not win.
For example, if a defendant was only doing what his or her attorney recommended, even though the lawsuit had no probable cause, then the defendant may not be guilty of malicious prosecution if she unreasonably, but mistakenly thought her lawsuit was legitimate. Favorable Termination
Finally, the plaintiff in a malicious prosecution suit must have successfully defended against and won the previous illegitimate lawsuit. In other words, if a person was convicted of criminal charges or had to pay damages in a civil lawsuit, he or she cannot sue for malicious prosecution based on that criminal or civil legal action.