BANK OF
v.
EMMA RANDALL, Defendant.
Trial Division
CA No. 22-95
November 5, 1997
[1] An action for malicious prosecution may not be asserted by way of cross-complaint or counterclaim in the original proceedings, prior to its termination, since it is essential that the original proceedings shall have previously terminated in favor of the party bringing the malicious prosecution action
Before
Counsel: For Plaintiff, Ellen A. Ryan
For Defendant, Pro Se [1ASR3d142]
ORDER GRANTING MOTION TO DISMISS
Plaintiff Bank of Hawaii ("BOH") seeks
judgment against defendant Emma Randall ("Randall") for $14,962.68,
plus interest, attorney's fees and costs, based on an alleged default on a loan
note, dated April 30, 1992. The
trial date is December 5, 1997.
Randall filed a counterclaim against BOH and its
attorney, Ellen A. Ryan ("Ryan"). The basis of the counterclaim is that
Randall's credit ratings, good name, reputation, and career have been ruined
because of BOH and Ryan's inaccurate assertions. Ryan moved to dismiss the counterclaim,
and the motion came for hearing on October 20, 1997.
[1]
Randall's counterclaim is essentially a claim of malicious prosecution. A required element of such a claim is
the termination of a prior action in favor of the party bringing the claim for
malicious prosecution. See,
e.g., H & H Farms, Inc. v. Hazlett, 627 P.2d 1161, 1167 (Kan. App.
1981)("[A]n action for malicious prosecution may not be asserted by way of
cross-complaint or counterclaim in the original proceedings, prior to its
termination, since it is essential that the original proceedings shall have
previously terminated in favor of the party bringing the malicious prosecution
action.") (quoting First Trust Co. of Montana v. McKenna, 614 P.2d
1027 (Mont. 1980) (quoting 52 Am.Jur.2d, Malicious Prosecution
14 at 195)); Bollinger v. Jarrett, 406 P.2d 834, 837 (Mont. 1965)
(Defendant's counterclaim that plaintiff's action for balance due wrongfully
injured the credit standing of the defendant could not be sustained on grounds
of malicious prosecution because a claim of malicious prosecution requires
proof of termination of a former proceeding in favor of the defendant.)
Because there has been no final determination of
BOH's claim against Randall, Randall's counterclaim for malicious prosecution
is premature and must be dismissed.
H & H Farms, 627 P.2d at 1167; Izard v. Arndt, 483 F.
Supp. 261, 264 (E.D. Wis. 1980).
Order
Randall's counterclaim is dismissed without
prejudice. She may make the claim again
only at the proper time.
It is so Ordered.
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