765 P.2d 126 (Idaho 1988), 16821, Badell v. Beeks

Docket Nº:16821.
Citation:765 P.2d 126, 115 Idaho 101
Opinion Judge:BISTLINE, Justice. BAKES,
Party Name:Michael C. BADELL, Plaintiff-Appellant, v. Paul M. BEEKS, Defendant-Respondent.
Attorney:Crist & Barsotti, P.A., Ketchum, for plaintiff-appellant. Roger E. Crist argued. Elam, Burke & Boyd, Boise, for defendant-respondent. Jeffery J. Ventrella argued.
Case Date:April 08, 1988
Court:Supreme Court of Idaho
 
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Page 126

765 P.2d 126 (Idaho 1988)

115 Idaho 101

Michael C. BADELL, Plaintiff-Appellant,

v.

Paul M. BEEKS, Defendant-Respondent.

No. 16821.

Supreme Court of Idaho.

April 8, 1988

Rehearing Denied Dec. 30, 1988.

Crist & Barsotti, P.A., Ketchum, for plaintiff-appellant. Roger E. Crist argued.

Elam, Burke & Boyd, Boise, for defendant-respondent. Jeffery J. Ventrella argued.

BISTLINE, Justice.

This case against attorney Paul Beeks was the aftermath of an unsuccessful malpractice action against a dentist, Michael Badell, which Mr. Beeks brought on behalf of the dentist's patient, one Vaughn Hicks. In a summary judgment hearing, Dr. Badell sought dismissal on the basis that Hicks had failed to establish the applicable standard of care in malpractice actions, citing I.C. § 6-1012, through an expert witness. The district court, the Hon. Phillip M. Becker agreed, but denied Dr. Badell's motion on the condition Hicks supply such expert testimony within five weeks. Hicks did not do so, and summary judgment was granted dismissing her action against Dr. Badell.

Page 127

[115 Idaho 102] Approximately one year later, Dr. Badell filed his action against Hicks and Beeks alleging malicious prosecution 1 and abuse of process. Hicks was voluntarily dismissed leaving Beeks as the sole defendant. Beeks moved for summary judgment contending that Dr. Badell had not produced evidence sufficient to establish the elements of his claim. Judge Granata agreed and granted the motion. We review his order.

Hicks first saw Dr. Badell in May of 1983 to determine whether she needed braces. He identified a nick in Hicks' tooth and remarked that he could correct the problem. He filed the tooth. Immediately following the filing, Hicks expressed no dissatisfaction. However, later that year, she was photographed while smiling which was necessary for her modeling and acting career. She examined the photos and concluded that the tooth ruined her smile for professional purposes.

Before she contacted Beeks, Hicks solicited advice from two other attorneys. One of them advised her that she might have a viable claim for professional malpractice.

She met with Beeks in November 1983. She showed him photographs of her before and after Dr. Badell's filing. She stated that another dentist had encouraged her to pursue the claim against Dr. Badell.

Hicks wrote to Beeks twice from California, in early 1984, to inform him that she had spoken to another dentist who advised her that the filing appeared to have been done irresponsibly. Following unsuccessful negotiations with Dr. Badell's insurance carrier, Beeks filed her action which would later end in dismissal as aforesaid.

While preparing for trial, Beeks located a dentist in Twin Falls, a Dr. Lincoln, who agreed to testify that Dr. Badell's work had fallen below the community standard of care pursuant to I.C. § 6-1012. However, on the night before the summary judgment hearing, Beeks learned that Dr. Lincoln would not sign an affidavit incorporating his views. Among other reasons for his retrogression, he stated that he could not comfortably testify after being informed that Hicks had filed on the tooth herself, thereby making it impossible to ascertain how much damage had been done by Dr. Badell and how much by her.

Dr. Badell's appeal seeks a determination whether the trial court ruled correctly that Beeks was not liable, as a matter of law, for malicious prosecution and/or abuse of process. In addition, both parties seek attorney fees on appeal.

I.

Summary judgment is appropriate if the pleadings, affidavits, and discovery documents on file with the court, read in a light most favorable to the nonmoving party, demonstrate no material issue of fact such that the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c). The moving party is entitled to judgment when the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case on which that party will bear the burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Actions for malicious prosecution are not favored in law and, thus are limited by requiring the plaintiff to establish several elements. Luther v. First Bank of Troy, 64 Idaho 416, 133 P.2d 717 (1943). The elements are as follows: (1) That there was a prosecution; (2) That it terminated in favor of the plaintiff; (3) That the defendant was the prosecutor; (4) Malice; (5) Lack of probable cause; and (6) Damages sustained by the plaintiff. Myers v. City of Pocatello, 98 Idaho 168, 559 P.2d 1136 (1977).

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[115 Idaho 103] The trial court ruled only on the element of lack of probable cause. Having decided that Dr. Badell did not establish this element, the Court granted Beeks' motion for summary judgment without discussing the other elements. If the trial court was correct, there is no need for a discussion of the other elements at this level.

In an action for malicious prosecution (or wrongful civil proceedings) the court determines whether the defendant had probable cause for his action. Restatement 2nd of Torts § 681B(1)(c). The jury's role is limited to adjudicating the facts necessary to enable the court to determine the existence, or lack, of probable cause. Id. § 681B(2)(a). Where, as here, the record shows no conflict as to the investigation made by the defendant before filing the law suit, the issue may be resolved by the court as a matter of law.

Beeks argues...

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