Can a voluntary dismissal “without prejudice” still give rise to a malicious prosecution claim?

If a party who brings a civil action (without probable cause and with ulterior motives) against a Defendant voluntarily dismisses their own suit without prejudice, is it is ever possible that the original Defendant may still potentially bring a future malicious prosecution claim against the original Plaintiff? Or, does a voluntary dismissal without prejudice ALWAYS/automatically eliminate the possibility of a future malicious prosecution claim being brought?

Additional information
Landlord brought eviction action against tenant, alleging an unauthorized occupant was living in tenant’s apartment, but failed to offer evidence at the forcible detainer hearing. At the hearing landlord stipulated to voluntarily dismissing action if tenant paid the previous month’s rent of which the landlord had already rejected prior to the hearing, specifically stating to the tenant in writing that they could not accept rent due to the pending outcome of the hearing. Tenant had voluntarily vacated the apartment just prior to the hearing due to landlord’s constant harassment over several months. The landlord was given back the keys to the apartment prior to the hearing, yet still went forward with the hearing even knowing that the tenant had already vacated the apartment. The landlord’s stated basis of moving forward with the forcible detainer hearing was to collect the rent from the tenant, however, this was the same rent that they’d already just rejected from the tenant in writing prior to the hearing.

A: Usually you need a ruling on the merits before a malicious prosecution claim can succeed. I’d have to know more about the facts of this before giving a definitive answer, though. However, I do agree with the other respondents that even if you have a case, it seems like one that isn’t worth bringing.

* This answer does not constitute legal advice. I am admitted in the State of Arizona only. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. You should not rely on this advice alone, and nothing in these communications creates an attorney-client relationship.

Brad Denton, Mesa Business Attorney.
Re-posted from AVVO Legal Questions & Answers.

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