Strategies, Challenges, and Answers

Malicious Prosecution and Abuse of Process

This is a previously published Mills & Associates Newsletter. 

For additional information on this or other Nevada Insurance Law topics, please e-mail Mr. Mills at or phone (702) 240-6060.


For many years the torts of abuse of process and malicious prosecution have been confused and misused in all aspects of the legal system.  These two torts appear to be similar on their face and do result in the same stiff penalties, but upon closer inspection, they are entirely different in both purpose and method.  However, the confusion lifted in 2002 when the Nevada Supreme Court clearly and concisely differentiated the two and revealed that these so-called fraternal twins are more like stepbrothers in Lamantia v. Redisi, 38 P.3d 877 (2002).


The Lamantia case arose out of a precursor case entitled Teleview Inc. v. Lamantia filed in 1995.  In that case Mr. Redisi, president of Teleview, sued Mr. Lamantia for various torts including breach of contract and fraud.  In that action, the district court granted summary judgment to Mr. Lamantia, finding that Teleview could not pursue its causes of action in Nevada.

Fast forward one year to 1996, when Mr. Lamantia filed suit against Mr. Redisi for malicious prosecution and abuse of process.  Mr. Lamantia claimed that Teleview and Mr. Redisi “actively, maliciously, and without probable cause commenced and prosecuted its lawsuit against him, for which there was not legal basis.”  Mr. Lamantia also claimed that the initial lawsuit was brought by Teleview and Mr. Redisi against him “with an ulterior purpose and not for the purpose of resolving its legal dispute.”  The district court granted Mr. Redisi’s motion for summary judgment and Mr. Lamantia appealed to the Nevada Supreme Court.

The Nevada Supreme Court, tired of the misconception, put its proverbial foot down and laid out the law on these two torts in a clear and concise fashion, in an effort to educate those in the legal system who often use the two torts interchangeably.


The first and most important difference between malicious prosecution and abuse of process is that the former requires a previous criminal proceeding.  To establish malicious prosecution a plaintiff must establish the following: (1) want of probable cause to initiate the prior criminal proceeding; (2) malice; (3) termination of the prior criminal proceeding; and (4) damage.

The first element requires that the defendant initiated, procured the institution of, or actively participated in the continuation of a criminal proceeding against the plaintiff.  The Nevada Supreme Court, in its opinion, overruled its previous decision in Dutt v. Kremp, 111 Nev. 567 (1995).  The Dutt opinion basically expanded the term “prior criminal proceeding” to “prior action,” which allowed an underlying civil proceeding to establish a claim of malicious prosecution.  The Dutt ruling is one of the main reasons that malicious prosecution and abuse of process have been viewed as one and the same in the past.

However, the Court was very clear in the Lamantia case that Dutt was specifically overruled to the extent that the opinion suggests that a plaintiff may claim malicious prosecution in the absence of a prior criminal proceeding.

The second element required is malice, which does not necessarily mean that an act must be with intent to cause specific injury.  Malice can be proven when the individual has knowledge that the evidence supporting the criminal proceeding is false or made with a reckless disregard for the truth.  Malice can be very easy to prove because specific intent is not required.

The third element requires that the criminal proceeding be terminated prior to the civil claim of malicious prosecution.  This requirement seems obvious because it would be difficult to explain how a person can be awarded money for malicious prosecution of a crime, but later be convicted for that same exact crime.

Finally, we come to damages.  Damages are presumed because of the impossibility of affixing an exact monetary amount for present and future injury to the plaintiff’s reputation, wounded feelings and humiliation, loss of business, and any consequential physical illness or pain.

The only limitation that is generally imposed in regards to damages is that the damages awarded must not have been influenced by passion or prejudice. In K-mart v. Washington, 109 Nev. 1180 (1993), the Court held that the jury did not need expert medical testimony to assist in determining whether the plaintiff was humiliated, embarrassed, and inconvenienced by K-Mart’s criminal prosecution of him and upheld a $15,000.00 award for future damages for malicious prosecution.

Based on what a plaintiff needs to endure, it is clear that this is one tort no one ever wants to face.  It requires two trials, two juries and too many unknowns.  Further, many courts are becoming frustrated with attorneys and their clients who ignorantly file for malicious prosecution and in fact many states, such as California, have designed laws to protect people who wrongly plead malicious prosecution.


Abuse of process, which is available to a broader section of litigants, can be a defendant’s best friend if they are faced with a lawsuit that is brought with a less than honorable intent.

Abuse of process has two main elements.  It must be proven that: (1) the suit was brought with an ulterior purpose by the defendants other than resolving a legal dispute and (2) there must be a willful act in the use of the legal process which is not proper in the regular conduct of the proceeding.

Abuse of process is usually lumped into an action with a claim for malicious prosecution, but there are several key differences.  The most important difference between these two torts is that abuse of process can lie following a civil action.  Further malice, want of probable cause and termination in favor of the person initiating or instituting the proceedings are not necessary elements to establish an abuse of process claim.  See Lamantia at 879.

An abuse of process defendant does not necessarily need to be a named party in the underlying action to establish abuse of process.  As stated in Lamantia, the defendant could also be liable for abuse of process if it is found that he actively pressured or directed another to improperly use the legal process for an ulterior purpose.

Abuse of process is very difficult to establish and even more difficult to win.  These claims are generally either dismissed by a judge or a jury will find in favor of the defendant.  The main reason is because judges and juries alike are hesitant to foreclose a proceeding and limit access to the courts by future meritorious cases.

The most notable successful abuse of process claim is Bull v. McCuskey, 96 Nev. 706 (1980), where a doctor filed an abuse of process claim in response to a medical malpractice suit that was brought to induce a nuisance settlement.  The decisive fact in the case was that the plaintiff’s attorney reviewed no medical records and attempted to settle the case for $750.00.  The Nevada Supreme Court held that the medical malpractice claim was a nuisance case and upheld the doctor’s abuse of process claim and his award of $85,000.00 in damages.

Even though claims of abuse of process are difficult to win, it is clear that they are available and should give a plaintiff’s attorney second thoughts before filing a frivolous lawsuit.  Further, it is another tool a defendant can use to recover damages if they are faced with such a suit.


While many still confuse malicious prosecution and abuse of process as the same tort with a different name, it is imperative to know the differences both torts present and how to either bolster or attack these torts when you are confronted with them. Malicious prosecution, which is by far the most improperly pled tort, is only available to those who have endured a criminal proceeding, while abuse of process is available for civil actions.  Know this and the other key differences discussed above will give you an advantage over the litigant that does not or cannot differentiate between the two.