I.
The cases discussed below seem to agree on the four main elements of malicious prosecution: (1) termination of earlier suit in the plaintiff’s favor, (2) lack of probable cause for the suit, (3) malice on the defendant’s part, and (4) 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; and the suit was presumably malicious because the lienholder’s only motive was to put her out of business. Element (1) is dicussed under Issue I and element (4) is discussed under Issue II below.
Can a plaintiff sue satisfying …show more content…
Our case is similar to Colli and Frey because both cases have been prosecuted as if the earlier suit was voluntarily dismissed by the defendant resulting in favorable termination satisfying element (1) for malicious prosecution. The only difference in Colli is that the suit was dismissed after three years whereas in our case the suit was dismissed after two weeks. It is unlikely that the time taken before a voluntary dismissal will affect whether it satisfies the requirement that the suit must terminate in the plaintiffs favor. The only difference in Frey is that it is under review whether the first suit ended in a voluntary dismissal or a mutual agreement by both parties. Therefore the end result for our case should be the same as Colli as in both cases there was a voluntary dismissal satisfying the requirement for element (1). Depending on further determination of whether the first case forming the basis for Frey was a voluntary dismissal will determine the level of similarity, if it is determined the defendants voluntarily dismissed ,then it is similar to our case. If it is by an agreement then it is different than our case as an agreement does not satisfy element (1) for a judgment in plaintiffs favor.
I.
Can a plaintiff show a special injury from an earlier suit, as required to have an action for malicious prosecution, when property was seized pending the suit as