Thе issue certified to this court is whether “a compromise between a defendant in a criminal proceeding and the prosecutor foreсlose^] a later malicious prosecution claim against the complaining witness when the complaining witness was not a party to that comрromise.” The answer to this query is “yes.”
This court previously has held that “[t]he elements of the tort of malicious criminal prosecution are (1) malice in instituting оr continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused.” Trussell v. Gen. Motors Corp. (1990),
A proceeding is “terminated in favor of the accused” only when its final disposition indicates that the accused is innocent. See 3 Restatement of the Law 2d, Torts (1977) 420, Section 660, Comment a. Thus, an unconditional, unilateral dismissal of criminal charges or an abandonment of a prosеcution by the prosecutor or the complaining witness that results in the discharge of the accused generally constitutes a termination in favor оf the accused. See Douglas v. Allen (1897),
However, a proseсution that is terminated by reason of a voluntary settlement or agreement of compromise with the accused is not indicative of guilt or innocеnce and, therefore, is not a termination in favor of the accused. See Prosser, supra, at 875; 54 Corpus Juris Secundum (1987) 581, Malicious Prosecu
“A termination of criminal proceedings in favor of the accused other than by acquittal is not a sufficient termination to meet the requirements of a cause of action for mаlicious prosecution if
“(a) the charge is withdrawn or the prosecution abandoned pursuant to an agreement of compromise with the accused[.]”
Comment c to that section gives the reason for this rule: “Although the accused by his acceptance of a compromise does not admit his guilt, the fact of compromise indicates that the question of his guilt or innocence is left open. Having bought peace the accused may not thereafter assert that the proceedings have terminated in his favor.”
The primary purpose of a settlement or an agreement of compromise is to avoid a determination on the merits of the criminal proceeding. It would be unfair to a complaining witness to allow an accused to secure the dismissal of the criminal charges against him or her by consenting to a compromise and then take advantage оf the termination by suing the complaining witness.
The appellants argue that the trial court should not have granted the defendants’ motions for summary judgment beсause the existence of an agreement of compromise between the plaintiffs and the defendants is a jury question. We disagree for two rеasons. First, it is the function of the court and not the jury to determine whether the criminal proceedings were terminated in favor of the plaintiffs. See 3 Rеstatement of the Law 2d, Torts (1977) 448, Section 673(b). With regard to the termination of criminal proceedings, a jury’s only function is to determine the circumstances surrоunding the termination if facts are disputed. Id. at 449, Comment e.
In the case before us, both lower courts properly concluded, as a matter of law, that the criminal charges were dismissed pursuant to a voluntary agreement of compromise. The prosecutor expressly conditioned the motions to dismiss thе criminal charges upon both plaintiffs’ agreement to pay court costs and Deborah Ash’s consent to a restraining order. It is undisputed that the plаintiffs voluntarily fulfilled those express conditions. Under these circumstances, the dismissal of the criminal charges was not unilateral; the plaintiffs, as well as thе prosecutor, gave up something to effectuate the settlement and secure their dismissal. The actual amounts paid by the plaintiffs to seсure their dismissal is immaterial. The amount of a settlement is often based on a variety of factors completely unrelated to the merits of the сase, such as a desire to avoid a lengthy and inconvenient trial, a party’s continued ability to finance further litigation, and the extent to which a person is risk-averse and unwilling to gamble on the outcome of the trial.
When faced with the issue, courts in other jurisdictions have held that a voluntary compromise between an accused and the prosecutor bars a malicious criminal prosecution action against the complaining witness. In Bowman v. Breeden (Dec. 20, 1988), Tenn.App. No. 1206, unreported,
For the foregoing reasons, we agree with both lower courts that the defendants were entitled to summary judgmеnt. Although the plaintiffs may not have been aware of the legal effect of their agreements of compromise, the legal effect exists nonetheless and bars their malicious prosecution actions.
Judgment affirmed.
Notes
. Although not necessary for our holding, we note that Deborah Ash quite clearly entered into an agreement of compromise with Ash, Sr. Both agreed to and applied for a temporary restraining order prohibiting both of them from entering the marital home or destroying marital assets.