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Malicious prosecution is the Florida claim a business can bring after a lawsuit against it ends in its favor and should not have been brought. It is a second lawsuit, it opens only after the first case ends in your favor, and it fails if any one of six elements is missing. This guide covers what a company must prove, how long it has to file, and what to weigh before suing back.
Can My Business Sue Over a Baseless Lawsuit in Florida?
Yes, but only after the baseless case is over and ended in your favor. A Florida business must prove six elements in a new lawsuit, and missing any one of them defeats the claim. Ending the first case in your favor is the starting point, not the proof.
Did a baseless lawsuit against your company just end in your favor? Talk with a Jimerson Birr business litigation attorney before you decide whether to sue back.
In Alamo Rent-A-Car, Inc. v. Mancusi, the Florida Supreme Court listed the six elements and held that failing to establish any one is fatal.
What Does My Business Have to Prove?
All six of the following, according to Alamo:
- An original civil or criminal proceeding was commenced or continued against your company.
- The party you want to sue was the legal cause of that proceeding, usually the party that filed it or pushed it forward.
- The proceeding ended in a bona fide termination in your favor.
- There was an absence of probable cause for the proceeding.
- The party acted with malice.
- Your company suffered damage because of the proceeding.
The next sections take the three elements that need the most explanation: how the first case ended, probable cause, and malice.
Did My Case End the Right Way to Sue Over It?
Yes. The first case must be over, and it must have ended in a bona fide termination in your favor, before this claim exists. That is why Florida appellate courts have held the claim cannot be filed as a counterclaim in the original case. You file a new lawsuit once the first one is done.
How the case ended matters. Once a plaintiff puts on evidence of a bona fide termination, Alamo shifts the burden to the other side to rebut it. Alamo arose from a criminal charge dropped after negotiations, and the Court said that bargaining does not always negate a bona fide termination. Whether that reasoning helps after a civil settlement is a question for counsel, because the terms of the deal can decide it.
A voluntary dismissal or a dismissal on technical grounds is not automatically a bona fide termination. Florida courts look at why the case ended. If your case ended by voluntary dismissal or settlement, that one fact can decide whether you have a claim, so get it reviewed before you act. Our guide to whether a business lawsuit can be dismissed early explains the difference between dismissals with and without prejudice.
Can They Argue They Had a Reason to Sue Me?
Probable cause asks whether the other side had reasonable grounds to bring the first case. Alamo calls probable cause a mixed question of law and fact: once the underlying facts are found or admitted, the court decides their legal effect.
Because the absence of probable cause is one of the six elements, your company carries the burden of showing it. Losing a lawsuit does not prove the other side lacked probable cause, so the record built in the first case matters.
Malice is the improper-motive element. Alamo holds that legal malice is enough and may be inferred from a lack of probable cause, among other things. A suit filed to hamstring a competitor, pressure a vendor, or force a concession is the kind of motive this element examines.
Will the Litigation Privilege Shut My Claim Down?
Not in every case. In Debrincat v. Fischer, the Florida Supreme Court held that the litigation privilege does not bar a malicious prosecution claim based on adding a party defendant to a civil suit.
The privilege otherwise gives judges, counsel, parties, and witnesses absolute immunity for acts that have some relation to a judicial proceeding, so expect the other side to raise it. The holding was framed around an added defendant, so how the privilege applies on other facts is a question for counsel to analyze.
What Can My Business Recover for the Cost of the First Case?
A company that proves its claim can recover the loss caused by bringing or continuing the first case, including the reasonable expenses and lawyers’ fees necessarily incurred in that case. Florida’s standard jury instruction on malicious prosecution damages lists both.
Other categories of loss, and punitive damages, depend on your facts and carry their own rules. Keep the invoices, the time records, and proof of any lost contracts or financing tied to the first case.
How Long Do I Have Before the Deadline Passes?
Four years. Section 95.11(3)(n), Florida Statutes, lists malicious prosecution among the actions that must be brought within four years.
Because the claim does not exist until the first case ends, the practical clock starts when that case is over. Whether a pending or possible appeal affects the start date is a question counsel should answer before you rely on any calculation. Our post on how long a business lawsuit takes in Florida covers appeal timelines.
Is Suing Back Worth the Cost, or Is There a Better Move?
Sometimes the better tool is the one available during the first case, and a malicious prosecution suit is a separate bet on top of it. The first case is also where the record for a later claim gets built, so lawsuit defense strategy and any later claim are linked.
Under section 57.105, when a court finds the losing party or its attorney knew or should have known a claim or defense lacked support in the material facts or then-existing law, it shall award the prevailing party a reasonable fee, including prejudgment interest. Unless an exception applies, the losing party and its attorney pay in equal amounts, and the exceptions include good-faith protections for some lawyers and represented parties. The motion must be served first, and it can be filed only if the challenged claim is not withdrawn within 21 days.
Abuse of process is a different claim, aimed at misuse of the legal process itself rather than the decision to sue. Our abuse of process page describes it.
A malicious prosecution suit means a new complaint, new discovery, and proof of what the other side knew and why it sued. A business litigation attorney, such as Charles Jimerson, can weigh that cost against what you can document.
The options inside the first case are covered in our posts on bad-faith litigation, how courts evaluate weak or baseless business lawsuits, and defending false or unfounded claims. If a competitor filed the case, see how businesses defend suits filed to slow down competition. Our guide to defending a business lawsuit without going to trial covers the off-ramps.
What Should I Check Before I Sue Over a Baseless Lawsuit?
Five facts change the answer for your business:
- How and when the first case ended: dismissal with or without prejudice, summary judgment, verdict, voluntary dismissal, or settlement, and the exact date.
- Whether an appeal is pending or still possible.
- Whether you signed a release or settlement agreement in the first case that could reach later claims.
- What the other side knew when it filed, and why it sued.
- Your documented losses: defense fees, lost contracts, and financing consequences.
These facts decide whether a claim exists and whether it is worth bringing, and an attorney needs to review them.
Not sure your facts support a claim? Talk with a Jimerson Birr lawsuit defense attorney before the four-year clock runs out.
How Can Jimerson Birr Help With Malicious Prosecution in Florida?
If a baseless lawsuit against your business has ended in your favor, malicious prosecution in Florida may deserve a hard look. Jimerson Birr’s attorneys help clients pursue or defend malicious prosecution claims under Florida law, and they weigh costs and benefits before choosing a strategy that fits your goals. Call (904) 389-0050 or request a free consultation. The four-year limit under section 95.11(3)(n) keeps running while you wait.