Sacco v. High Country Independent Press, Inc., 94-304

CourtUnited States State Supreme Court of Montana
Citation896 P.2d 411,271 Mont. 209
Docket NumberNo. 94-304,94-304
Parties, 63 USLW 2768, 10 IER Cases 1041 Dianne Poynter SACCO, Plaintiff and Appellant, v. HIGH COUNTRY INDEPENDENT PRESS, INC., Glenn F. Sorlie, Devon Ann Sorlie, and Ricky L. Dighans, Defendants and Respondents. . Heard
Decision Date14 February 1995

Michael J. Lilly, Barry G. O'Connell, Bozeman, for respondents.

NELSON, Justice.

This is an appeal from several Eighteenth Judicial District Court, Gallatin County, orders on motions for summary judgment. We reverse and remand.

The following are issues on appeal:

I. Did the District Court err by granting Dighans' motion for summary judgment with respect to Sacco's claim that Dighans violated Sacco's civil rights under 42 U.S.C. § 1983?

II. Did the District Court err by granting Dighans' motion for summary judgment on the issue of negligent infliction of emotional distress?

III. Did the District Court err by granting the Sorlies', High Country Independent Press (HCIP's) and Dighans' motions for summary judgment on the issue of intentional infliction of emotional distress?

IV. Did the District Court err by granting the Sorlies' and HCIP's motion for summary judgment on the issue of defamation?

V. Did the District Court err by granting the Sorlies', Dighans' and HCIP's motions for summary judgment on the issue of malicious prosecution?

FACTUAL AND PROCEDURAL BACKGROUND
Parties

Since this case is being remanded for trial, it is not appropriate that we set forth the facts of this case in any more detail than is necessary to resolve the legal issues raised.

At the outset, however, we outline the parties to assist in an overall understanding of the case. The plaintiff, Dianne Poynter Sacco (Sacco) was employed at the High Country Independent Press newspaper in Belgrade, Montana, as a photographer/reporter. She left her position on October 19, 1989. High Country Independent Press, Inc. (HCIP), a corporation, owns the newspaper and Devon and Glenn Sorlie (Sorlies) are the officers and stockholders of HCIP. After Sacco left the employ of HCIP, the Sorlies made allegations to the Belgrade Police that Sacco had stolen proof sheets and photographs from the HCIP offices. Ricky Dighans (Dighans) is a sergeant with the Belgrade Police Department and was the investigating officer assigned to the case against Sacco brought as result of the Sorlies' allegations.

The following allegations form the basis of Sacco's complaint filed August 16, 1991:

1. "Between the dates of June 27, 1990 and December 31, 1990, Defendants HCIP and Sorlies maliciously conspired to bring a criminal prosecution against Plaintiff, and ... instituted a criminal action against Plaintiff by supplying to Defendant Dighans false and misleading information." The false information was that the plaintiff stole certain photographic negatives and contact sheets from HCIP between October 19, 1989 and June 28, 1990.

2. Defendant Dighans swore to a complaint before the Belgrade City Judge, alleging that Sacco committed the offense of theft of photographic negatives and proof sheets and Dighans should have known that the information in the complaint was false. Dighans knew or should have known that the photographs and negatives were owned by the plaintiff. Further, Dighans knew or should have known that there was a lack of probable cause for any criminal prosecution.

3. Defendant Glenn Sorlie "falsely, maliciously, and with the intent of injuring Plaintiff and her reputation, informed Plaintiff's employer that Plaintiff had stolen several photographs from [HCIP]." Additionally, the Sorlies provided "additional false and misleading information to Belgrade City Attorney William Schreiber," which resulted in the continuation of criminal proceedings against Sacco. Glenn Sorlie also approached Sacco at her place of employment and accused her of stealing the photographs from HCIP, threatened her and caused her to fear for her safety.

4. The defendants "acted with malice and without probable cause in causing the Complaint to be filed against, and in instigating and continuing the prosecution of Plaintiff" and that the statements made by defendants Sorlies to Dighans, Schreiber and plaintiff's employer were "false, defamatory and damaging to Plaintiff."

5. The defamatory statements caused great injury to her reputation, and she has suffered great mental anguish, physical discomfort and inconvenience as well as incurring expenses in defending the charge.

The criminal charges filed against Sacco were eventually dismissed because it was subsequently determined that prosecution of the alleged criminal conduct was barred by the statute of limitations.

Sacco alleged the following five counts in her complaint:

1. Malicious Prosecution;

2. Defamation

3. Intentional Infliction of Emotional Distress

4. Negligent Infliction of Emotional Distress

5. Civil Rights Violation

Eventually, motions for summary judgment on all counts of the complaint were filed by the defendants. In a number of orders filed by the District Court, the various summary judgment motions on all five counts of the complaint were granted. Sacco appealed from these orders on May 20, 1994. We now address the question of whether summary

judgment was correctly granted on the five counts of Sacco's complaint.

STANDARD OF REVIEW

Our review of a summary judgment order is de novo. Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P. The initial burden is on the moving party to establish that there is no genuine issue of material fact; and once met, the burden shifts to the party opposing the motion to establish otherwise.

Spain-Morrow Ranch Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331-32. (Citations omitted.)

INTRODUCTION

Sacco alleged that defendant Dighans committed violations of her civil rights under 42 U.S.C. § 1983. She also alleged that Dighans committed the tort of negligent infliction of emotional distress. She alleged that the Sorlies, HCIP and Dighans committed the tort of intentional infliction of emotional distress. She further asserted that HCIP and the Sorlies defamed her and finally, that all defendants engaged in malicious prosecution. We address all five counts and the grant of summary judgment on each in turn.

I. CIVIL RIGHTS VIOLATION UNDER 42 U.S.C. § 1983--COUNT V

Sacco argues that the District Court erred by granting Dighans' motion for summary judgment as to Count V of the complaint, which alleged violation of Sacco's civil rights under 42 U.S.C. § 1983. Dighans argues that he is protected from Sacco's claims by the doctrine of qualified immunity. The District Court agreed with Dighans and concluded that Dighans had probable cause to prepare and file the complaint against Sacco. The court also concluded that Dighans had complied with the "objective reasonableness" mandate set forth in Malley v. Briggs (1986), 475 U.S. 335, 344-45, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 271. We disagree.

Under Harlow v. Fitzgerald (1982), 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396, government officials performing discretionary functions are shielded from liability for civil damages only where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have knowledge. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Sacco contends that in the instant case, her clearly established right to be free from arrest without probable cause was violated by Dighans. She further states that no reasonably competent officer would have concluded from the complaint submitted in the instant case that probable cause existed for an arrest.

Harlow presents a two-pronged test to determine whether an official will be granted qualified immunity--first, we must consider whether a clearly established right has been violated and second, we must determine whether a reasonable person or official would have known that his conduct violated that right. This test was made applicable to state police officers in Malley. Malley, 475 U.S. at 341, 106 S.Ct. at 1096.

As stated above, Sacco claims that her right to be free from arrest without probable cause, was violated by Dighans. The right to be free from arrest except upon probable cause has been clearly established in the Ninth Circuit. See Kennedy v. Los Angeles Police Dept. (9th Cir.1989), 901 F.2d 702, 706; Barry v. Fowler (9th Cir.1990), 902 F.2d 770, 772-73; McKenzie v. Lamb (9th Cir.1984), 738 F.2d 1005, 1007; Gilker v. Baker (9th Cir.1978), 576 F.2d 245, 247; Haupt v. Dillard (D.Nev.1992), 794 F.Supp. 1480, 1490; Sunn v. City and County of Honolulu (D.Hawaii 1994), 852 F.Supp. 903, 906-07. Accordingly, because the right Sacco alleges to have been violated is a clearly established right, the first prong of theHarlow test is satisfied. Since Sacco's arrest was the result of Dighans' application for and his obtaining an arrest warrant on the basis of his complaint, the relevant question then becomes whether, "on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue...." Malley, 475 U.S. at 341, 106 S.Ct. at 1092.

The Notice to Appear and Complaint prepared by Dighans and filed against Sacco stated that:

The [Defendant Sacco] is charged with violating [Montana Code] Section # 45-6-301 ... in that said defendant did knowingly or purposely or negligently commit the offense of theft of photo negatives/proof sheets between Oct. 19, 1989 and 28 June 1990 from High Country Independent Press. To wit: wildlife photos.

The Notice to Appear and Complaint was signed by Dighans, issued by the Belgrade Police Department, dated November 5, 1990, and signed by City Judge Gordon L. Smith.

In his deposition, Judge Smith stated...

To continue reading

Request your trial
121 cases
  • Squeo v. Norwalk Hosp. Ass'n, SC 19283
    • United States
    • Supreme Court of Connecticut
    • April 28, 2015
    ...stress engendered by the circumstances of the event" [internal quotation marks omitted]); Sacco v. High Country Independent Press, Inc., 271 Mont. 209, 234, 896 P.2d 411 (1995) ("Complete emotional [tranquility] is seldom attainable in this world, and some degree of transient and trivial em......
  • Berger v. Hanlon
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 13, 1997
    ...foreseeable consequence of the defendant's negligent or intentional act or omission." See Sacco v. High Country Indep. Press, Inc., 271 Mont. 209, 896 P.2d 411, 429 The district court rejected this claim on the ground that it had already found that none of the media appellees' acts were unl......
  • Seltzer v. Morton
    • United States
    • United States State Supreme Court of Montana
    • March 12, 2007
    ...been caused by something other than the anxiety resulting from the lawsuit. 11. Relying on Sacco v. High Country Independent Press, Inc., 271 Mont. 209, 896 P.2d 411 (1995), the District Court instructed the jury that, in order to recover damages for emotional distress, Seltzer was required......
  • Lorang v. Fortis Ins. Co., 04-489.
    • United States
    • United States State Supreme Court of Montana
    • July 17, 2008
    ...2004 MT 324, 324 Mont. 86, 101 P.3d 773, where we applied the standard enunciated in Sacco v. High Country Independent Press, Inc., 271 Mont. 209, 896 P.2d 411 ¶ 185 In Sacco, we adopted a standard of proof for independent tort claims of negligent or intentional infliction of emotional dist......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT