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Wed 2 Feb, 2005 01:32 pm
I was maliciously prosecuted for slander and libel of a public official. I was sued by this local government official for stating in a recall petition which was circulated that she assaulted and battered my mother. (Which she did, and I and others were eyewitnesses.) When the assault and battery was reported to the sheriff and county prosecutor, I believe it was "covered up" and dismissed. It was covered up and dismissed! This official sued me with a SLAPP suit after the petition was approved by the county. Being an attorney-in-fact I discovered that she had the burden of proof of proving that what I said was knowingly false and done with malice. She could not prove it! However she died before this could go to trial or discovery. Now I want to sue her estate for malicious prosecution in probate court. I have to wait 90 days to see if any of this official relatives want to take over the suit in her place and continue it to trial. I doubt they will. This area of law is new to me and any "positive and helpful" advice is requested. What is my next step? Can I prevent her home and assets from being sold before I sue her estate?
You have to win the underlying claim in order to be able to bring a claim of malicious prosecution. Since the claimant died before a ruling could be made, your scenario doesn't seem to fit the elements of malicious prosecution, sorry.
Looks like you've got your own malicious prosecution plan in the works.
malicious prosecution
I agree with Jespah. You need to research the essential elements of your alleged claims to make sure you can state a legally cognizable claim.
Additionally, be careful of the terminology that you use when identifying possible tort claims.
Quote:Technically, malicious prosecution and wrongful use of a civil proceeding are two distinct torts. The tort of malicious prosecution consists of initiating or procuring criminal proceedings, from an improper motive and without probable cause, against another who is not guilty of the offense charged, and who ultimately gains a favorable termination of the proceedings. The tort of wrongful use of a civil proceeding is the civil counterpart of malicious prosecution, and is based on a prior civil proceeding. The two torts are similar, but interchanging the terms can cause confusion.
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