2005-326, RIC PAUL v. FRANKLIN C. SHERBURNE

Wiggin & Nourie, P.A.

No. 2005-326 Milford District Court

See

brought a civil stalking petition against Paul in the Rochester District Court.

The undisputed facts are as follows. In early February 2002, Sherburne

remand. McLaughlin Law Office, P.C.,

173-B:4, I (2002). A final hearing on the merits was scheduled to be held on issued an ex parte temporary order of protection against Paul. See id.; RSA RSA 633:3-a, III-a (Supp. 2005). The District Court (Jones, J.) promptly page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

prosecution against the defendant, Franklin C. Sherburne. We reverse and District Court (Crocker, J.) dismissing his small claim action for malicious GALWAY, J. The plaintiff, Ric Paul, appeals a decision of the Milford

brief and orally), for the defendant.

orally), for the plaintiff. Errors may be reported by E-mail at the following address: , of Manchester (Peter E. Hutchins on the brief and

errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as relief may be granted, we assume the truth of the facts alleged by the plaintiff

p. 2 In reviewing a motion to dismiss for failure to state a claim upon which

dismiss the malicious prosecution claim. reconsidering and reversing its prior order denying Sherburne’s motion to

misapplied two elements of the tort of malicious prosecution; and (2) erred by

On appeal, Paul argues that the trial court: (1) misinterpreted and

purposes of Paul’s malicious prosecution claim.

ruled that its dismissal did not constitute a favorable termination for the

determination had been made of the merits of the stalking petition, the court and upon the making of certain findings of fact.” Thus, because no dismissal of the case by the court after having heard evidence or testimony,

underlying cause of action must be decisive, i.e. an actual acquittal after trial,

sustain a cause of action for malicious prosecution, the determination in the

dismissed on procedural grounds. The trial court reasoned that, “In order to termination in the underlying proceeding because the stalking petition was abuse.” The trial court also ruled that Paul did not receive a favorable

malicious prosecution. Specifically, the trial court ruled that the ex

the Trial Court (Crocker

judicial finding that Sherburne was “in immediate and present danger of At the October 2002 hearing, the trial court, sua

satisfy, as a matter of law, two of the four required elements of the tort of

been denied by Judge Ryan in June 2002. By order dated February 16, 2005,

of a malicious prosecution claim because the issuance of that order required a In April 2002, Paul, appearing pro protective order constituted a judicial finding of probable cause for the purpose would be heard at the time of trial.

termination” in the underlying proceedings. Therefore, Paul’s claim failed to prosecution claim. In June 2002, the Milford District Court (Ryan instituted without probable cause, and that Paul had not received a “favorable malicious prosecution claim, ruling that Sherburne’s claim had not been

prosecution. Sherburne, who was also appearing pro arguments regarding Sherburne’s motion to dismiss, which had previously

merits for October 2002, and notified the parties that Paul’s motion to dismiss petition was dismissed. dismiss Sherburne’s cross-claim. The trial court scheduled a hearing on the March 27, 2002. Sherburne failed to appear at the hearing and the stalking Sherburne’s motion to dismiss. Thereafter, in July 2002, Paul moved to

two of the four required elements necessary to prevail on a civil malicious In his motion to dismiss, Sherburne asserted that Paul’s claim did not satisfy cross-claim as well as a motion to dismiss Paul’s malicious prosecution claim.

against Sherburne in Milford District Court seeking damages for civil malicious

p. 3 believe or entertain an honest and strong suspicion that the person arrested is

prosecutor as would lead a [person] of ordinary caution and prudence to

probable cause is defined as “such a state of facts in the mind of the It is well settled that in the context of a malicious prosecution claim,

probable cause for initiating the underlying proceedings. See underlying civil proceeding. of a preliminary injunction is not conclusive evidence of the existence of

constitutes prima

Cohn prudence to believe that [he or she] had a cause of action against the plaintiff.” defendant’s state of mind and reasonable belief when he or she initiated the protective order. A majority of these jurisdictions have found that the granting such knowledge of facts as would lead a [person] of ordinary caution and

We have not yet considered whether an ex

facie evidence of probable cause); Bank of Barcelona v. Riggi

without notice to or a hearing of the other side, which is later dissolved, 355 P.2d 137, 141 (N.M. 1960) (ex upon the credibility of conflicting evidence proffered on that issue.” Stock parte preliminary injunction granted

hearing. He argues that an evidentiary hearing is required to determine the with respect to a preliminary injunction, which is analogous to a temporary when he initiated the underlying suit against the plaintiff, “did not possess factual question to be determined by the trier of fact following an evidentiary malicious prosecution claim. Other jurisdictions have addressed this issue cause necessary to avoid liability for civil malicious prosecution existed is a conclusive evidence of probable cause in the context of a subsequent civil

question of law to be determined by the court.” Id. N.H. at 846. “Whether there was probable cause is ultimately, however, a

defendant; (2) without probable cause; (3) with malice; and (4) that the, 71 N.H. at 567 (quotation omitted). The existence of probable cause, in must prove: (1) that he was subjected to a civil proceeding instituted by the

N.H. 558, 567 (1902)). The plaintiff is required to prove that the defendant, conclusive evidence of probable cause. Paul contends that whether probable, 120 N.H. 844, 846 (1980) (citing Cohn v. Saidel, 71

Paul first contests the trial court’s ruling that the ex

In order to prevail on a civil malicious prosecution claim, the plaintiff

order issued in the underlying stalking petition constitutes, as a matter of law, Dewyngaerdt v. Bean Ins. Agency parte protective and construe all reasonable inferences in the light most favorable to him.

186, 190 (1993).

dismiss. Id. constitute a basis for legal relief, we will uphold the granting of the motion to

evidence to refute the allegations contained in that protective order and to

necessary to grant the ex conclusion strikes the proper balance between supporting the judicial finding parte

claim],” if the granting of a preliminary injunction constituted conclusive for the purpose of saving themselves from [a subsequent malicious prosecution conclusive evidence of probable cause. Rather, we hold that an ex “[t]here would be a temptation to some to make their bills as strong as possible,

immediate and present danger of abuse.” RSA 173-B: p. 4 4, I. Because the ex against whom the protective order was issued, an opportunity to present

finding in accordance with it, but does not require such a finding). This Co. v. Duvall, 115 N.H. 215, 217 (1975) (prima facie presumption permits a constitutes prima facie evidence of probable cause. See New Hampshire Ins. protective order based only upon information provided by the petitioner

evidence from the other party, we cannot conclude that it constitutes to or hearing from the other side, and is subsequently dissolved or dismissed, parte temporary protective order was issued without notice to or hearing

the issuing judge was required to find that Sherburne made a “showing of an pursuant to RSA 633:3-a, III-a and RSA 173-B: p. 4 4. To issue that ex parte order, Here, the trial court granted Sherburne’s ex protective order particular case); Annotation, Malicious Prosecution-Injunction granting the preliminary ex persuasive.

prosecution claim based upon the underlying ex

but preliminary injunction or temporary protective order is granted without notice undisputed facts, or upon a statement of the case fairly and honestly made); Barcelona, 179 N.Y.S. at 395. As the Knight court reasoned, if an ex parte subsequent malicious prosecution case. Bokum, 355 P.2d at 1 p. 4 41; Bank of then it is only prima facie evidence of probable cause for the purposes of a

injunction and whether probable cause exists depends on the facts of the The underlying rationale appears to be that because the judicial ruling

restraining order).

restraining order, “without other compelling evidence,” precludes malicious cf. Dunham v. Roer, 708 N.W.2d 552 (Minn. Ct. App. 2006) (issuance of a Bros. Co.

not conclusive evidence of probable cause, unless the decision is based upon S.E. 293 (Ga. Ct. App. 1908) (judgment rendered after an ex parte hearing is 536, 571-7 p. 4 4 (1976). But see South Georgia Bldg. & Inv. Co. v. Mathews, 61

preliminary injunction is not conclusive of probable cause for obtaining an conducted); H.P. Rieger & Co. v. Knight, 97 A. 358, 361 (Md. 1916) (ex parte and provisional order to maintain the status quo until a trial on the merits is facie, and not conclusive, evidence of probable cause because it is a temporary

, 179 N.Y.S. 391, 39 p. 4 4 (Sup. Ct. 1919) (preliminary injunction is prima ruling. While we recognize that there are instances in which the trial court is

p. 5 misinterpreted Robinson v. Fimbel Door Co.

in the plaintiff’s favor.” Id fails to appear or abandons the prosecution, the proceedings have terminated either by reason of insufficient evidence or because the complaining witness upon the facts and circumstances before the trial court when it made its

his subsequent malicious prosecution claim. He contends that the trial court favorable termination for the purposes of satisfying the requisite elements of supports the trial court’s ruling that appear at the March 27, 2002 final hearing on the merits, constitutes a terminated in Paul’s favor for purposes of his malicious prosecution claim. See the stalking petition. Therefore, as a matter of law, the matter favorably petition. His failure to appear was the trial court’s sole grounds for dismissing

However, we also specifically found that “if the complaint is dismissed Paul did not receive a favorable termination in the underlying claim based Sherburne argues that Robinson defendant’s contracting equipment until he was paid for the extra work. Id subsequent malicious prosecution claim. Id id the accused,” it does not constitute a favorable termination that will support a. compromise or settlement, “voluntarily and understandingly consummated by dismissal of the underlying stalking petition, based upon Sherburne’s failure to

In Robinson appear for the March 27, 2002 final hearing on the merits of his stalking

prosecution claim, concluding that where an underlying proceeding ends in a favorable termination in the underlying claim. He argues that the trial court’s defendant. Id. We affirmed the trial court’s dismissal of the malicious Paul also contests the trial court’s ruling that he did not receive a The plaintiff then brought a claim for malicious prosecution against the equipment was returned and the criminal action was nol prossed. Id. at 350. prossed in exchange for the plaintiff’s return of the equipment. Id. The court appearance, the parties agreed that the criminal action would be nol warrant and complaint procured by the defendant. Id. Prior to a scheduled The plaintiff was subsequently arrested for embezzlement based upon an arrest

to pay the plaintiff for some “extra work” that was performed by the plaintiff, Robinson, 113 N.H. at 349. When the parties disputed the defendant’s liability

, the plaintiff was a contractor employed by the defendant.

procedural grounds does not constitute a decisive termination.” We agree. prosecution claim. “must be decisive”; and (2) “[a] termination or dismissal based on technical or establish the absence of probable cause for a subsequent malicious ruled that: (1) a favorable determination in the underlying cause of action

reversing its prior order denying Sherburne’s motion to dismiss. court also erred on procedural grounds; namely, by reconsidering and claim on substantive grounds, we need not address his contention that the trial

determined that the trial court erred in dismissing Paul’s malicious prosecution

elements necessary to prevail on a civil malicious prosecution claim. Having

ruling that Paul’s malicious prosecution claim failed to meet two of the four For the foregoing reasons, the trial court erred, as a matter of law, in

BRODERICK, C.J.