Legal Question in Civil Litigation in Kentucky

I might have a claim for wrongful use of civil proceedings in Kentucky. I understand the law requires that 4 elements be met. There is no question that I have a at least three of these four and might have all.

The four required elements for this claim in Kentucky:

(1) Someone instituted or continued judicial proceedings directed toward her; (2) I feel strongly that the proceedings were resolved in my favor, but I need to make sure that I have this element, which is my main question; (3) The former plaintiff acted without probable cause and with actual malice (for purposes other than those claimed in the former plaintiff's lawsuit); and (4) I suffered damages as a result of the proceedings.

The former plaintiff's lawsuit was dismissed for lack of prosecution. This was a procedural dismissal; the merits of of that claim were never adjudicated, because he ran away from his lawsuit. (His lawsuit had claimed that he needed emergency injunctive relief to secure his physical safety; it was filed in Texas, where there is no such cause of action. No legal or factual basis for this claim, and he ran away from it, leaving it to be DWOPed.)

Question: Is a DWOP a "favorable termination" for purposes of the claim of wrongful use of civil proceedings? (It's a procedural dismissal without prejudice.)

In Raine v. Drasin (KY Supreme Court, 1981), the conclusion was that the purpose of the required element of a "favorable termination" is to ensure that the wrongful lawsuit "was unsuccessful." My DWOP certainly meets that standard. Also Raine v. Drasin found that an "agreed dismissal" is a favorable termination for a claim of wrongful use.

In Davidson v. Castner-Knott Dry Goods (2006) the KY Appeals Court gave a long discourse citing much case law including KY Supreme Court rulings to show there is no problem with the dismissal being without prejudice and concludes, "...we find that a dismissal without prejudice is a 'final determination' for purposes of a malicious prosecution suit.''

Other case law I have found:

In Alcorn v. Gordon, 762 S.W.2d 809 (Ky.App. 1988), a panel of this court cited to Comment a to the Restatement (Second) of Torts � 660 for the proposition that �[p]roceedings are �terminated in favor of the accused� as that phrase is used in � 653 and throughout this Topic, only when their final disposition is such as to indicate the innocence of the accused.� [emphasis added by me] Id. at 811-12. Further citing to Lackner v. LaCroix, 25 Cal.3d 747, 159 Cal.Rptr. 693, 602 P.2d 393 (1979), we elaborated on this principle, stating: It is apparent �favorable� termination does not occur merely because a party complained against has prevailed in an underlying action. While the fact he has prevailed is an ingredient of a favorable termination, such termination must further reflect on his innocence of the alleged wrongful conduct. [Emphasis added by me] If the termination does not relate to the merits - reflecting on neither innocence of nor responsibility for the alleged misconduct - the termination is not favorable in the sense it would support a subsequent action for malicious prosecution. We therefore concluded that 'dismissal of a suit for technical or procedural reasons that do not reflect on the merits of the case is not a favorable termination of the action."

And in Rudd v. Bailey, Kentucky Federal Court (Southern Division) found, "Element three, favorable termination, requires more than just that the party prevailed in the underlying action. See Davidson v. Castner-Knott Dry Goods Co., 202 S.W.3d 597, 605 (Ct. App. Ky. 2006). Specifically, "dismissal of a suit for technical or procedural reasons that do not reflect on the merits of the case is not a favorable termination of the action." Id. (quotations omitted); see Alcorn v. Gordon, 762 S.W.2d 809, 812 (Ky. 1988) (indicated that the dismissal of a suit for technical or procedural reasons is not a favorable termination of the action). Thus for this element to be satisfied the party must have successfully prevailed on the merits in the underlying litigation."

So Kentucky Courts have gone both ways on this particular question.

Is the Judge allowed to go either way, as a matter of law, and to choose, at the Judge's discretion, whichever case law he wants, when the outcomes of said case law sharply conflict?

Is my DWOP (a procedural dismissal without prejudice) enough to show that the wrongful lawsuit "was unsuccessful?" Is my DWOP a "favorable termination" for purposes of a wrongful use claim?

Thank you for your help.

1 Answer from Attorneys

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