C. Misuse of Legal Proceedings

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

C. Misuse of Legal Proceedings

1. Malicious Prosecution

Although the common understanding is that the tort of malicious prosecution has to do with the institution of a criminal prosecution without probable cause, an action will also lie for the malicious prosecution of an ordinary civil action.³⁷⁸ The elements of the cause of action are:

(1) the institution or continuation of original judicial proceedings, either civil or criminal; (2) by, or at the instance of, the defendant; (3) termination of such proceedings in plaintiff's favor; (4) malice in instituting such proceedings; (5) want of probable cause; and (6) resulting injury or damage.³⁷⁹

The mere fact that the defendant was unsuccessful in the prior action has no bearing on the issue of probable cause.³⁸⁰ The strict requirement of probable cause is necessary because of the need to prevent suits for malicious prosecution from inhibiting free access to the courts.³⁸¹

a. Institution of Proceedings

In order to sustain an action for malicious prosecution, plaintiff must have been charged with some criminal or civil wrong and been exonerated. For instance, the requirement of instituting and maintaining a prosecution is satisfied where a store manager calls police officers for the purpose of arresting a customer as a "professional shoplifter," and liability may be imputed to the proprietor even though he did not make or sign the affidavit or warrant.³⁸² An action for malicious prosecution fails if the plaintiff cannot prove each of the required elements by a preponderance of the evidence, including malice and lack of probable cause.³⁸³

b. Want of Probable Cause

The Supreme Court of South Carolina has defined probable cause as follows:

By probable cause is meant the extent of such facts and circumstances as would excite the belief in a reasonable mind acting on the facts within the knowledge of the prosecutor that the person charged was guilty of a crime for which he has been charged, and only those facts and circumstances which were or should have been known to the prosecutor at the time he instituted the prosecution should be considered. Brown v. Bailey, 215 S.C. 175, 54 S.E.2d 769; China v. Seaboard Air Line Ry., 107 S.C. 179, 92 S.E. 335.³⁸⁴

Want of probable cause—the absence of reasonable cause to believe the plaintiff guilty, not the plaintiff's actual guilt or innocence—is an essential element of the tort of malicious prosecution.³⁸⁵ Determination of probable cause is ordinarily a jury matter³⁸⁶ unless there is only one reasonable conclusion from the facts.³⁸⁷ In the determination of probable cause, only facts and circumstances which were known or should have been known to the prosecuting witness at the time of institution of prosecution should be considered.³⁸⁸

The fact that the defendant is acquitted of the charge brought "does not in and of itself negate probable cause to institute the criminal proceedings."³⁸⁹ In Deaton v. Leath³⁹⁰ the South Carolina Supreme Court followed the majority of jurisdictions and ruled that a conviction, even though subsequently reversed or set aside, conclusively establishes probable cause, absent a showing the conviction was procured through fraud, perjury, or other undue means.

Where a plaintiff bases the claim on an opponent's institution of civil causes of action, probable cause exists if the facts and circumstances would lead a person of ordinary intelligence to believe that the plaintiff committed one or more of the acts alleged in the opponent's complaint.³⁹¹ The issue is not what the actual facts were, but what the prosecuting party honestly believed them to be. ³⁹² A party must show the opponent lacked probable cause as to each cause of action asserted to prevail on a claim of malicious prosecution; thus, the existence of probable cause as to any one is sufficient to defeat a malicious prosecution claim.³⁹³

In relation to the element of lack of probable cause, a defendant may assert "[g]ood faith reliance upon advice of fully informed counsel" to establish that probable cause existed to bring the action.³⁹⁴ In Melton v. Williams³⁹⁵ the South Carolina Court of Appeals stated the requirements for this defense:

In order to avail herself of the defense of advice of counsel . . . [the defendant] must show she sought the advice in good faith, acted thereon in good faith and believed the charge was true. Evidence that . . . [the defendant] made a fair, full and truthful disclosure of all the facts to her attorney is necessary to show good faith. Moreover, consultation with an attorney is not conclusive of good faith, but is one of the circumstances to be considered by the jury in determining if . . . [the defendant] acted in good faith in swearing out the warrant.³⁹⁶

c. Malice

Malice in instituting the proceedings is another element of the tort of malicious prosecution. In this context "malice" is defined as the "intentional doing of a wrongful act without just cause or excuse."³⁹⁷ Malice does not necessarily mean a defendant acted out of spite, revenge, or with a malignant disposition.³⁹⁸

Malice "may be inferred from a want of probable cause."³⁹⁹ This inference may not be necessary because the prosecutor is free from liability for malicious prosecution if there was probable cause for the accusation made.⁴⁰⁰ Malice also may proceed from an ill-regulated mind which is not sufficiently cautious before causing injury to another person.⁴⁰¹

Malice may be implied where the evidence reveals a disregard of the consequences of an injurious act, without reference to any special injury that may be inflicted on another person.⁴⁰² Malice also may be implied in the doing of an illegal act for one's own gratification or purpose without regard to the rights of others or the injury which may be inflicted on another person. In an action for malicious prosecution, malice may be inferred from a lack of probable cause to institute the prosecution."⁴⁰³

Malice is generally a matter of fact to be resolved by the jury.⁴⁰⁴

d. Favorable Termination of Proceedings

An acquittal following a trial upon charges made is the most obvious example of favorable termination of proceedings.⁴⁰⁵ However, because the burden of proof in criminal prosecutions is proof beyond a reasonable doubt, acquittal should not be equated to want of probable cause. Similarly, the favorable termination of civil prosecution should not be confused with malice, which is a separate element.

In McKenney v. Jack Eckerd Co.,⁴⁰⁶ the South Carolina Supreme Court adopted the "majority rule" that where criminal charges are dismissed for reasons consistent with the innocence of the accused, there is sufficient termination upon which to base the action for malicious prosecution. Similarly, the discharge of the accused by a magistrate on a preliminary investigation is a sufficient termination to sustain an action.⁴⁰⁷ However, dismissal of criminal charges as a result of voluntary completion of Pre-Trial Intervention Program is not a termination of proceedings in plaintiff's favor.⁴⁰⁸

e. Actions Against Attorneys

In Gaar v. North Myrtle Beach Realty Co.,⁴⁰⁹ defendant-attorneys had represented a party in a suit for breach of real estate contracts against the Garr plaintiffs. This earlier suit had terminated in an involuntary nonsuit. The Garr plaintiffs brought an action for malicious prosecution and the South Carolina Court of Appeals affirmed a summary judgment for the defendants.⁴¹⁰ The court held that a suit for malicious prosecution does not ordinarily lie against an attorney who filed suit on behalf of his client.⁴¹¹

In our opinion, the better rule is that an attorney is immune from liability to third persons arising from the performance of his professional activities as an attorney on behalf of and with the knowledge of his client. Accordingly, an attorney who acts in good faith with the authority of his client is not liable to a third party in an action for malicious prosecution. Such a suit is properly brought against the party to the original action, not the attorney representing him. The attorney normally conducts the litigation solely in his professional capacity. He has no personal interest in the suit. In his professional capacity the attorney is not liable, except to his client and those in privity with his client, for injury allegedly arising out of the performance of his professional activities.⁴¹²

The court noted with approval the Restatement provision that even if the attorney who initiates civil proceedings for his client has no probable cause to do so, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of the client's claim.⁴¹³ The Garr Court stated:

The attorneys acted solely in their capacity as attorneys to bring the lawsuit, and did not become parties to the suit. There was no evidence that they were actuated by personal or malicious motives. Therefore, they are not liable to the Garrs in an action for malicious prosecution.⁴¹⁴

The court also noted that even though the remedy of malicious prosecution is seldom properly directed against the attorney, alternative remedies may be available.⁴¹⁵

f. Statute of Limitations

The statute of limitations for malicious prosecution claims begins to run after the underlying proceedings terminate in the plaintiff's favor because a favorable termination is one element of the tort.⁴¹⁶ The limitations period depends upon whether the defendant is a governmental entity or a nongovernmental defendant. The two-year limitations period under the South Carolina Tort Claims Act applies to claims against state governmental defendants.⁴¹⁷ For nongovernmental defendants the general three-year statute of limitations applies.⁴¹⁸

g. Federal Preemption

Where a claim of malicious prosecution arises in the context of matter regulated by federal law, the action may be preempted.⁴¹⁹

2. Abuse of Process

The torts of abuse of process and malicious prosecution are...