Malicious prosecution causes of action, whether based on prior civil or criminal cases, are not favored under the law. See Browning-Ferris Indus. v. Lieck, 881 S.W.2d 288, 291 (Tex. 1994) (underlying criminal case); Compton v. Calabria, 811 S.W.2d 945, 949 (Tex.App._Dallas 1991, no writ) (underlying criminal case); Salado College v. Davis, 47 Tex. 131, 135-36 (1877) (underlying civil case). Public policy disfavors actions that burden or discourage persons from pursuing and resolving their disputes in court. See Salado, 47 Tex. at 135-36 (public policy seeks to avoid discouraging parties from resorting to legally constituted tribunals); Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153, 153 (1920) (quoting and citing Salado); see also, e.g.,Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 209 (Tex. 1996) ("heightened" special injury requirement for malicious prosecution claim is supported by public policy that is "compelling and well-established in Texas law," citing Pye, 222 S.W. at 153 and Salado, 47 Tex. at 135-36). FN:1

The Texas Supreme Court has held that, in order to prevail in a malicious prosecution action arising from a civil case, a plaintiff must establish the following elements: "(1) the institution or continuation of civil proceedings against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceeding; (5) termination of the proceedings in plaintiff's favor; and (6) special damages." Texas Beef Cattle Co., 921 S.W.2d at 207 (emphasis added). Thus, whether a malicious prosecution claim is based on the institution of a proceeding or the continuation of a proceeding, the requisite element of malice relates to the "commencement of the proceeding." See id. A party seeking to recover on a malicious prosecution claim must strictly adhere to the elements of the cause of action. See Browning-Ferris, 881 S.W.2d at 291; Parker v. Dallas Hunting and Fishing Club, 463 S.W.2d 496, 499 (Tex. Civ. App._Dallas 1971, no writ).

The trial court instructed the jury that, in order to find Luce liable for malicious prosecution, it had to find Luce acted with malice in filing suit against IAI. The trial court did not err in giving this instruction, as it properly tracks the required element of malice for a malicious prosecution claim. We overrule IAI's cross-point.

We next turn to Luce's second point of error, in which he argues that the evidence is legally insufficient to support the jury's finding that he acted with malice in instituting the lawsuit. When an appellant challenges the legal sufficiency of the evidence on an issue on which he did not have the burden of proof, the appellant must demonstrate there is no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In reviewing a "no evidence" challenge, we consider only the evidence and inferences tending to support the adverse finding and disregard all contrary evidence and inferences. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). If there is more than a scintilla of evidence to support the finding, the "no evidence" challenge fails. See id. Where circumstantial evidence is relied upon, and the circumstances are equally consistent with either of two facts, no more than a scintilla of evidence supports a finding and a "no evidence" point must be sustained. See id.

Malice has been defined as ill will or evil motive, or such gross indifference or reckless disregard for the rights of others as to amount to a knowing, unreasonable, wanton, and willful act. See Ellis County State Bank v. Keever, 870 S.W.2d 63, 69 (Tex. App._Dallas 1992), aff'd in part and rev'd in part on other grounds, 888 S.W.2d 790 (Tex. 1994). "To establish malice, it is not necessary to prove that the defendant acted with personal spite or ill will; it is sufficient to show the defendant committed wrongful acts in reckless disregard of another's rights and with indifference as to whether the party would be injured." Id. This element of malice may be inferred from a lack of probable cause. See Fisher v. Beach, 671 S.W.2d 63, 67 (Tex. App._Dallas 1984, no writ). FN:2

To determine whether the evidence supported the finding of malice in the commencement of the proceeding, we look for evidence that would suggest the existence of malice at the commencement of the proceeding. Evidence suggesting malice after the commencement of the proceeding is not probative on this element. To hold otherwise would necessarily negate the requirement that the defendant must have acted with malice in instituting the suit.

IAI argues that the following evidence supports a finding that Luce acted with malice: (1) Mr. Thomas's first phone call to Luce's office raised serious questions as to whether Luce had sued the correct party; (2) after Luce filed the suit, Mr. Thomas made several calls to Luce's office saying that Luce had sued the wrong party; (3) Luce did not provide the Youngs with the information communicated during Thomas's post-filing phone calls; (4) Luce did not advise Mr. Thomas of any court settings; (5) Luce obtained a default judgment against IAI even though there was a question as to whether IAI was the correct party; (6) at the damages hearing, Luce elicited testimony from Mrs. Young that IAI was the company who had towed her car even though there was a question as to whether IAI was the correct party; (7) Luce knew that IAI claimed that it was not the company that towed the Youngs' car; (8) Luce did not return Mrs. Thomas's phone calls after he had mailed the post-judgment interrogatories to IAI; (9) at the time of the bill of review proceeding, Luce was aware that IAI was not the correct party; (10) Luce pursued an appeal of the bill of review in an attempt to have the judgment against IAI reinstated; (11) Luce failed to disclose to the Youngs various communications and evidence which suggested that IAFW had towed the car, not IAI.

On behalf of the Youngs, Luce commenced the action against IAI on January 20, 1989. All of the above evidence relied on by IAI as evidence of Luce's malice concern events that took place after the commencement of the proceedings. This evidence does not suggest that Luce acted with malice in commencing the suit against IAI on January 20, 1989.

Because malice may be inferred from a lack of probable cause, see Fisher, 671 S.W.2d at 67, we next determine whether there is any evidence of lack of probable cause from which an inference of malice in the commencement could be drawn.

IAI contends that there was sufficient circumstantial evidence to support a finding that Luce lacked probable cause for the proceedings. Specifically, IAI points to the following evidence: (1) after learning from the Youngs that Interstate Adjusters had towed the car, Luce failed to sufficiently investigate to verify such information; (2) Luce had the address of IAFW in his files prior to filing suit against IAI; (3) the address for IAFW and the registered agent for IAI were different; (4) Luce did no substantial investigation concerning either IAFW or IAI prior to filing suit; (5) Luce did not review the assumed name certificates prior to filing suit; (6) Luce put forth little effort to ascertain the identity of the wrecker company that towed the Youngs' car; (7) Luce came to understand early in the proceedings that IAI and IAFW were two separate companies and that IAI was claiming that it was the incorrect party; (8) Luce did not provide the Youngs with information that IAI may not have been the correct party; (9) at the time of the bill of review proceedings, Luce was aware that IAI was not the correct party; (10) after the judgment against IAI was set aside, Luce filed an appeal in an attempt to have the judgment re-instated; (11) Luce continued to prosecute the case without sufficient investigation or verification concerning the correct defendant.

Of the above evidence pointed to by IAI as evidence of lack of probable cause, items (7) through (11) are not relevant to Luce's state of mind when he commenced the proceedings; they relate to matters taking place after the commencement of the proceedings, and are, therefore, not evidence from which the jury could infer malice in the commencement of the suit. Assuming, without deciding, the evidence described in (1) through (6), above, might be circumstantial evidence of a lack of probable cause, the circumstances are equally consistent with a good faith belief by Luce that IAI was the correct defendant and that the towing company and its registered agent simply maintained different addresses. Thus, this circumstantial evidence is equally consistent with either of two facts-i.e., Luce lacked probable cause to sue IAI, or Luce had probable cause to sue IAI based on a good faith belief that IAI was the proper party defendant. Therefore, this evidence constitutes no more than a scintilla of evidence to support a finding of lack of probable cause. See Continental Coffee, 937 S.W.2d at 450. Thus, the evidence described in items (1) through (6) above is no evidence from which an inference of malice in the commencement can be drawn.

We have reviewed the entire record to determine if any of the evidence would suggest that Luce acted with malice in commencing the suit against IAI. We conclude the record contains no evidence to support a finding that Luce acted with malice in commencing the suit against IAI. Therefore, we sustain Luce's second point of error.