Section 3.3 Commencement of Prosecution Against Malicious Prosecution Plaintiff and Instigation by Malicious Prosecution Defendant

• Library: Tort Law 2016

A. (§3.3) Commencement of Prosecution Against Malicious Prosecution Plaintiff and Instigation by Malicious Prosecution Defendant

To support the first element of an action for malicious prosecution, the malicious prosecution defendant must:

· personally "commence" the underlying proceeding by filing suit and requesting issuance of process;

· "instigate" the underlying prosecution in the sense that the defendant encourages a third person to open the litigation; or

· continue the underlying prosecution against the initial defendant.

See:

· Rustici v. Weidemeyer, 673 S.W.2d 762, 767 (Mo. banc 1984)

· King v. Ryals, 981 S.W.2d 151, 154 (Mo. App. E.D. 1998) (a claim of malicious prosecution can be founded on continued malicious pursuit of a legal action)

· Hampton v. Carter Enters., Inc., 238 S.W.3d 170, 176 (Mo. App. W.D. 2007) ( King "held that a claim of malicious prosecution could be based on the malicious continuation of prosecution")

As a threshold issue, Missouri courts have only extended malicious prosecution to situations in which the underlying proceeding has been either a civil or criminal lawsuit. Holland v. Healthcare Servs. of Ozarks, 347 S.W.3d 166, 168 n.2 (Mo. App. S.D. 2011) (declining to decide whether a malicious prosecution theory can be based on an administrative proceeding). To date, there does not appear to be a direct case holding that a claim for malicious prosecution can arise from an administrative proceeding. Under the proper set of facts, however, it would not be surprising to see that expansion occur.

Generally, "instigate" means "to stimulate or goad to an action, especially a bad action . . . one of its synonyms is ‘abet,’ which ‘means, in law, to aid, promote, or encourage the commission of an offense.’" Crow v. Crawford & Co., 259 S.W.3d 104, 114–15 (Mo. App. E.D. 2008). In the criminal context, "[i]nstigation requires that there be some affirmative action by way of encouragement, advice, pressure, or the like in the institution of the prosecution." Id. at 115. Merely providing honest information from which a prosecution ensues is not instigation. Baker v. St. Joe Minerals Corp., 744 S.W.2d 887, 889 (Mo. App. E.D. 1988).

The cases discussed below illustrate the instigation requirement.

In Beard v. St. Mary’s Health Center, 735 S.W.2d 27 (Mo. App. E.D. 1987), a directed verdict was entered in favor of the malicious prosecution defendant because the instigation element was not met. The malicious prosecution...