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Law Update


Dismissal Of A Stalking Petition Due To The Petitioner's Failure To Appear
For A Hearing Is A Favorable Termination For Purposes Of A Malicious
Prosecution Action
Issuance Of An Ex Parte Protective Order Did Not Constitute
A Determination That The Petition Was Brought With Probable Cause

Paul v. Sherburne , No. 2005-326 (July 21, 2006) 

Facts: Sherburne brought a civil stalking petition against Paul in small claims court. The court issued ex parte, a temporary order of protection against Paul, and a final hearing on the merits was scheduled. Sherburne failed to appear for the hearing, and the stalking petition was dismissed.

Paul then filed a small claims complaint against Sherburne seeking damages for malicious prosecution. Sherburne moved to dismiss the case, arguing that two of the elements necessary to prevail on a claim for malicious prosecution were absent.

The trial court granted Sherburne's motion to dismiss for failure to satisfy two of the four required elements of a malicious prosecution. The court ruled that Sherburne's stalking petition was not filed without probable cause because the court's issuance of a protective order required a finding that Sherburne was "in immediate and present danger of abuse." The court also ruled that Paul had not received a "favorable termination" because the stalking petition was dismissed on procedural grounds rather than on the merits.

Paul appealed the dismissal of his claims on grounds that the trial court misinterpreted and misapplied two elements of the tort of malicious prosecution.

Held:   Reversed and remanded.

The Supreme Court held that the trial court erred as a matter of law in ruling that Paul failed to meet two of the four elements necessary to prevail on a civil malicious prosecution claim.

In order to prevail on a claim for malicious prosecution, a plaintiff must prove:

  1. That he was subjected to a criminal proceeding instituted by the defendant;
  2. Without probable cause;
  3. With malice; and
  4. That the proceedings terminated in the plaintiff's favor.

The Court ruled that the issuance of the ex parte restraining order did not constitute conclusive evidence of probable cause since it was based only on information provided by Sherburne. Instead, the order constituted only prima facie evidence of probable cause. Whether or not Sherburne had probable cause to bring the stalking petition was a question of fact to be determined by the trier of fact following an evidentiary hearing to address his state of mind and reasonable belief at the time he initiated the stalking petition.

The Court also held that the dismissal of the stalking petition based on Sherburne's failure to appear for the evidentiary hearing constituted a favorable determination and satisfied the fourth element of a malicious prosecution claim.

The Court ruled that the trial court incorrectly applied its decision in Robinson v. Fimbel Door Co., 113 N.H. 348 (1973), in which the Court affirmed the dismissal of a malicious prosecution claim because the underlying action was nol prossed. Where the underlying proceeding ends in a compromise or settlement, it does not constitute a favorable termination that will support a malicious prosecution claim. Where, however, the underlying complaint is dismissed because of insufficient evidence, or because the petitioner fails to appear or otherwise abandons the proceedings, the matter has been favorably terminated for purposes of a subsequent malicious prosecution action.


Mike Wallenius




Attorneys at Law

1838 Elm Street, Manchester, NH 03104
Ph 603.634.4300 - Fax 603.626.3647

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