Bankston v. Pass Road Tire Center, Inc., 07-CA-59544

• Citation: 611 So.2d 998
• Decision Date: 31 December 1992
• Docket Number: No. 07-CA-59544,07-CA-59544
• Parties: Lee BANKSTON v. PASS ROAD TIRE CENTER, INC., Elbert Williams, Sandy Whitehead, H.T. Hargrove, George H. Payne, Brian K. Smith, C.M. Rogers, and the City of Gulfport.
• Court: United States State Supreme Court of Mississippi

Page 998

611 So.2d 998

Lee BANKSTON v. PASS ROAD TIRE CENTER, INC., Elbert Williams, Sandy

Whitehead, H.T. Hargrove, George H. Payne, Brian

K. Smith, C.M. Rogers, and the City of Gulfport.

No. 07-CA-59544.

Supreme Court of Mississippi.

Dec. 31, 1992.

Harry P. Sneed, Jr., Gulfport, for appellant.

Joe Sam Owen, Gulfport, William E. Whitfield, III, Bryant Colingo Williams & Clark, Gulfport, for appellees.

En Banc.

PITTMAN, Justice, for the Court:

This cause of action, arising out of the June 5, 1984, arrest of Lee Bankston, was filed August 2, 1985, against the City of Gulfport, its police department, The Pass Road Tire Center, its owner, and its manager. At trial, the lower court granted the Defendants' Motion for Directed Verdict. We find error in the trial court's determination that the action was barred by the statute of limitations; however, we do not find error in the trial court's determination that Bankston failed to establish a prima facie case of malicious prosecution and/or deprivation of property in violation of civil rights. We affirm the directed verdict. We also consider whether the trial judge was correct in his denial of the Defendants' request for attorney's fees and affirm the denial.

I.

From February 14 until February 24, 1984, Randy Gaffney made a series of purchases from The Pass Road Tire Center, a tire store and distributor of Goodyear and Laramie Tires located on Pass Road in Gulfport, Mississippi. The sole shareholder of Pass Road Tire is Elbert Williams. The business is managed by Sandy Whitehead.

On February 14, Gaffney gave two checks payable to Pass Road Tire in the amounts of $468.00 and $69.00 for tires. The checks were drawn on the account of C & R Tire, a tire concern which was owned partly by Gaffney which sold tires to others. On February 21, Gaffney passed a third check to Pass Road Tire in the amount of $2,362.86 for the purchase of tires. And finally, on February 24, Gaffney wrote a check in the amount of $6,203.94 for the purchase of tires from Pass Road Tire.

Gaffney delivered several of these new tires to Fleet Tire Service around February 20, 1984. While at Fleet Tire Service Gaffney met Lee Bankston who was also at Fleet Tire Service doing business. Bankston was the owner/proprietor of a used tire shop located in west Gulfport. He dealt primarily in used tires but occasionally sold new tires. Bankston agreed to purchase thirty-three (33) new truck tires from Gaffney. Gaffney delivered them to Bankston on February 24 at Bankston's store. Bankston paid $3,225.00 for the tires, which originated at Pass Road Tire and were marked with the Pass Road Tire logo. When Bankston inquired about the origin of the tires, Gaffney told him that it was none of his business. Bankston had borrowed most of the $3,225.00 from a local financing company. Gaffney gave Bankston a receipt and left town. Later in the day, Bankston sold eleven (11) of the tires to Michael Wells.

On February 25, 1984, Whitehead at Pass Road Tire received one of Gaffney's checks returned from the bank with the inscription "account closed." Eventually, all of Gaffney's checks were returned and not honored.

Wells realized that the tires he purchased from Bankston were from Pass Road Tire and called Pass Road Tire to determine if he could purchase similar truck tires at a lower price. Wells wanted to bypass Bankston's profit margin. Wells was told by Pass Road Tire that the tires had been illegally removed from their warehouse. Whitehead and one or more officers from the Gulfport Police Department went to Wells' home to identify the tires. Wells explained where he had gotten the tires. The officers copied the Department of Transportation numbers from the tires.

Whitehead, upon the advice of Williams, filed a formal complaint dated February 25 against Gaffney at the Gulfport Police Department. Whitehead then proceeded to Bankston's tire business. Whitehead confronted Bankston about the remaining tires purchased from Gaffney. Eighteen (18) tires remained. Bankston could not find his receipt to satisfy Whitehead that he had in fact purchased the tires from Gaffney. Whitehead asked Bankston not to sell the remaining tires pending the investigation by the Gulfport Police Department. Bankston did sell a majority of the remaining tires.

Officer C.M. Rogers was initially in charge of the investigation. By Wednesday, February 29, the continued investigation was transferred to Investigator Brian K. Smith.

Assistant Chief of Police George Payne instructed Officer Rogers to consult with the District Attorney's Office as to an appropriate course of action in light of the fact that Gaffney's whereabouts were unknown. Officer Rogers discussed the situation with the District Attorney's Office on February 29. After consultation, Officer Rogers and Investigator Smith went to Bankston's store for the purpose of impounding the tires that remained in his possession originating from Gaffney. Only four tires originally purchased from Gaffney were still in Bankston's possession. Bankston was absent; therefore, the officers gave a receipt to one of Bankston's employees for the tires. Due to a lack of storage space at the Gulfport Police Department, a custody storage request was made to Pass Road Tire. At this time, Investigator Smith was advised by the District Attorney's Office to discontinue impounding any more tires.

Wells was contacted by the Gulfport Police Department on the same day and instructed to bring the tires sold to him by Bankston to the Police Department for impounding. On March 9, 1984, Wells filed a suit in County Court of Harrison County for claim and delivery against Lee Bankston d/b/a Lee Bankston Tires and Pass Road Tire Center, Inc. Bankston filed his answer to Wells and filed a cross-complaint against Pass Road Tire Center for the value of the tires impounded from his premises.

Investigator Smith presented his reports to the Harrison County Grand Jury. On May 25, 1984, the Grand Jury returned an indictment against Gaffney and against all the recipients of tires sold by Gaffney, Bankston and two other Gulf Coast residents (William J. Moody and Wayne N. Thomas). These men were arrested and processed by the Gulfport police. (Police records indicated that Bankston had been charged once before, in July of 1980, with possession of stolen property to which Bankston had pleaded guilty to a reduced charge of receiving stolen property of less than $100.00 and was fined $500.00.) The charges against Bankston resulting from the Gaffney investigation were dismissed, nolle prosequi, by the District Attorney's Office on August 6, 1984.

The civil case filed by Wells and cross-complaint filed by Bankston in County Court went to trial on September 10, 1984. The jury returned judgment in favor of Bankston against Pass Road Tire in the amount of $1,620.00.

Gaffney was finally located and arrested in May of 1985. There is no indication in the record of the outcome of the arrests of Gaffney, Moody, and Thomas.

Bankston filed suit against Pass Road Tire, Williams, Whitehead, Hargrove, Payne, Smith, Rogers, and the City of Gulfport on August 2, 1985. After more than two years of discovery and motions by the attorneys involved, the case finally went to trial on March 17, 1988. At the close of Bankston's proof, Judge Terry granted the defendants' motion for a directed verdict, finding that Bankston's claim was barred by the statute of limitations and that Bankston had put on insufficient proof for a reasonable jury to decide in his favor that the defendants were liable for malicious prosecution or for deprivation of property in violation of 42 U.S.C. Sec. 1983.

II.

This matter is presented to this Court on the question of whether the directed verdict was appropriate. A motion for directed verdict, "made under the procedural vehicle of Rule 50(a), Miss.R.Civ.Proc., tests the legal sufficiency of the plaintiffs' evidence. The Circuit Court--and this Court on appeal--are required to consider the evidence in the light most favorable to the plaintiffs ..., giving those plaintiffs the benefit of all favorable inferences that may reasonably be drawn from the evidence. Unless the evidence is so lacking that no reasonable jury could find for plaintiffs, the motion must be denied." Wall v. Swilley, 562 So.2d 1252, 1256 (Miss.1990). Thus, Judge Terry's dismissal of the cause of action brought by Bankston will only be upheld if the suit was not brought within the correct time period and no reasonable jury could find that any of the defendants were liable for malicious prosecution or violation of civil rights by deprivation of property.

III.

Bankston argues on appeal that he commenced action within the applicable statute of limitations and that a directed verdict on the basis of limitation of action was error. We agree. To determine the appropriate limitation period, it is helpful to review each of Bankston's claims separately and in light of the surrounding circumstances.

What is the limitation of action period for Bankston's claim of malicious prosecution? Since 1983, Miss.Code Ann. Sec. 15-1-35 has read as follows:

All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of such action accrued, and not after.

Because this is the applicable statute of limitations, see City of Mound Bayou v. Johnson, 562 So.2d 1212, 1218 (Miss.1990), Bankston had one year to commence his action against the defendants.

In an action for malicious prosecution arising out of an earlier theft prosecution, the right of action accrues when the trial court recalls the case from the files and enters a nolle prosequi. See Childers v. Beaver Dam Plantation, Inc., 360 F.Supp. 331 (N.D.Miss.1973); City of Mound Bayou, 562 So.2d at 1217. Thus,...