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Dutt v. Kremp12/22/1992
ords, researching medical literature, and interviewing Rentnelli and his son, could have concluded that a tenable claim of medical malpractice existed against respondents. B. Malice
As noted above, malice is an element of a cause of a malicious prosecution action. Although the existence of probable cause is fatal to respondents' malicious prosecution claim, we believe that a discussion of malice would be useful to the parties, our lower courts and our practitioners.
[108 Nev. 1076, Page 1082]
Appellant contends that there was insufficient evidence to support the jury's findings that he acted with malice and that therefore his motion for judgment notwithstanding the verdict should have been granted. According to appellant, the record contains no evidence suggesting that he sought anything other than a full adjudication of Rentnelli's claim. Moreover, appellant submits, the absence of malice is demonstrated by his dismissal of the malpractice action when he became convinced that there was no basis for the lawsuit. We are persuaded by appellant's argument.
The malice element of malicious prosecution relates to the subjective intent or purpose with which the defendant acted in initiating the prior action; and the defendant's motivation is a question of fact to be determined by the jury. Sheldon Appel Co., 765 P.2d at 503. The Restatement (Second) of Torts § 676 (1977) defines the malice element as “propriety of purpose”: To subject a person to liability for wrongful civil proceedings, the proceedings must have been initiated or continued primarily for a purpose other than that of securing the proper adjudication of the claim on which they are based. Under the Sheldon Appel Co. formula, the extent of a defendant attorney's investigation and research is relevant to the question of whether the attorney acted with malice. Sheldon Appel Co., 765 P.2d at 510.
We find the record bereft of direct evidence from which the jury could conclude that appellant acted with malice. As respondents correctly observe, however, malice may be inferred from proof showing a lack of probable cause. See Chapman, 85 Nev. at 369, 455 P.2d at 620. Even so, we believe that to infer malice from the evidence showing a lack of probable cause, the defendant's pre-filing behavior must have been clearly unreasonable. See Grindle v. Lorbeer, 242 Cal.Rptr. 562 (Cal.Ct.App. 1987).
In Grindle, before filing the underlying lawsuit for negligent operation of a golf cart, the defendant attorney reviewed a file and a memo prepared by a law clerk summarizing the facts of the case; the attorney also relied on his own knowledge of golf carts. Although the court concluded that the attorney might have been careless, it also concluded that the research was adequate and that there was no evidence of indifference or malice. Id. at 566. In addition, the court declined to infer malice because the attorney dismissed the case almost immediately after determining that it lacked merit. The court concluded that the attorney's conduct was consistent with a finding that he filed the lawsuit in the good faith belief that it had merit, and discontinued it upon realizing that it lacked merit. Id.
[108 Nev. 1076, Page 1083]
Like the defendant attorney in Grindle, appellant in the present case reviewed his client's file, conducted research and dismissed the case soon after discovering that it lacked merit. Appellant also interviewed Rentnelli's family members and spoke with an attorney experienced in medical malpractice litigation. If anything, appellant's investigation was more thorough than that of the attorney in Grindle. Thus, we hold that the evidence does not support an infe
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