Quality, Responsive and Trustworthy Legal Services
We offer clients a strong work ethic combined with prompt and personalized client care.



A Dish Best Served Cold: Malicious Prosecution 

Technically, family law has no legal relationship to a claim for malicious prosecution. However, they can overlap because of the nature of divorce, the hard feelings, and sometimes a desire for revenge, festering over a long period of time. Malicious prosecution is a claim you might pursue if someone filed a lawsuit against you with malice, without a valid reason, and the case ended in your favor. This also applies when someone presses criminal charges against you or otherwise causes you to be wrongly charged with a crime. If the case was a civil case, you also have to prove you suffered special damages. Criminal law involves the state suing a defendant for violation of a law, a crime. Everything else is generally civil law, and the object of most civil suits is an award of money damages.

One NC Court of Appeals case, Fuhs v. Fuhs* spells out the requirements for filing a malicious prosecution civil case seeking money damages: There Was a Legal Proceeding Filed Against You Malicious prosecution requires you to show a civil case was filed against you, or criminal charges were initiated (i.e., prosecuted) against you. Examples include someone going to a magistrate to press charges against you, or someone calling law enforcement and wrongfully pressing criminal charges against you. Depending on the circumstances, someone’s participation in criminal proceeding against you might be enough to meet this requirement. To prove a claim for malicious prosecution, you must show there was no probable cause to initiate legal proceedings against you. In other words, he or she didn’t have a reasonable suspicion you were guilty (or at fault) based on the circumstances. If a civil case was wrongly filed against you, probable cause means he or she filed the case against you when a reasonable and prudent person under the circumstances would have realized there were no grounds for filing the case.

Probable cause is not the same thing as reasonable doubt, which asks whether the defendant is guilty of a crime. With Malice When referring to malicious prosecution, the definition of malice doesn’t refer to the anger or revenge that person might have towards you when the criminal charges are made, although that can certainly be part of the motive. Instead, the legal definition of malice as used here means the person who instituted the legal proceeding against you did so intentionally and wrongly, without a valid reason. In Your Favor A criminal case must be resolved in your favor, such as the District Attorney voluntarily dismissing the case against you. A civil case must also be resolved in your favor. The legal proceeding filed against you must be finished before you file a claim for malicious prosecution. Otherwise, you do not have a ruling in your favor made by a judge or jury. Special Damages in Civil Cases

Only in civil cases, you must also prove there were special damages that interfered with your personal rights or your property before you can successfully file a claim for malicious prosecution. The damages must be more than an “injury to his reputation, embarrassment, loss of work and leisure time and that he has incurred expenses in defending the claim.” They are special because they “wouldn’t necessarily happen in similar situations.” Examples: your wrongful confinement to a mental institution, your property is seized or someone prevents you from using your property in a certain way by wrongly getting a temporary restraining order or wrongfully freezing your assets.

* Quotes and cites: Fuhs v. Fuhs, 82 S.E.2d 385 (2016), Newton v. McGowen, 256 N.C. 421 (1962), Stikeleather v. Willard, 83 N.C. App. 50 (1986) and Motsinger v. Sink, 168 N.C. 548 (1915).


Print Friendly, PDF & Email