S. Ct. Civ. No. 2013-0041

After suspicions about operation and handling of cash receipts from a restaurant and grocery business led to criminal charges of embezzlement, grand larceny and forgery - but trial of those charges resulted in a not-guilty verdict - the Superior Court did not err in granting summary judgment for the defense in the present malicious prosecution case brought by the former criminal defendant against the person who reported the suspicions to the authorities. The soundest rule for the Virgin Islands is to adopt the following elements for a malicious prosecution cause of action: (1) the defendant initiated or procured a criminal proceeding against the plaintiff; (2) the absence of probable cause for the proceeding; (3) malicious intent on the part of the defendant; and (4) termination of the proceeding in favor of the plaintiff. Restatement (Second) of Torts § 653 is adopted for its commentary analysis in applying these elements. The correct analysis for determining probable cause in a malicious prosecution case is to determine whether the defendant, not the police, the prosecutor or the judge, reasonably believed that the person accused has acted or failed to act in a particular manner, that those acts or omissions constitute the offense that he charges against the accused, and that he is sufficiently informed as to the law and the facts to justify him in initiating or continuing the prosecution. While the Superior Court misapplied the probable cause standard, its error was harmless since defendant was entitled to summary judgment under the correct standard. The record establishes that defendant reasonably believed that the plaintiff was misappropriating company funds and thus had sufficient probable cause to report his suspicions to the Virgin Islands Department of Justice. As a result, this plaintiff failed to sufficiently prove the second element of a malicious prosecution claim, the lack of probable cause. He also failed to show that the defendant's desire to have the criminal proceedings initiated was the determining factor in the government commencing prosecution, or that defendant provided false information to the police. The Superior Court's grant of summary judgment in favor of the defendant in its May 2, 2013 Order is affirmed.