Commercial Credit Corp. v. Ensley, 769A140

• Decision Date: 01 December 1970
• Docket Number: No. 2,No. 769A140,769A140,2
• Citation: 148 Ind.App. 151,264 N.E.2d 80
• Court: Indiana Appellate Court
• Parties: COMMERCIAL CREDIT CORPORATION, Appellant, v. Jack ENSLEY, Beni Ensley, also known as Bennie Ensley, Appellees

Page 80

264 N.E.2d 80

148 Ind.App. 151

COMMERCIAL CREDIT CORPORATION, Appellant, v. Jack ENSLEY, Beni Ensley, also known as Bennie Ensley, Appellees.

No. 769A140.

Appellate Court of Indiana, Division No. 2.

Dec. 1, 1970.

Rehearing Denied Dec. 22, 1970.

Alan H. Lobley, Indianapolis, for appellant; Ice, Miller, Donadio & Ryan, Indianapolis, Scifres, Hollingsworth & Martin, Lebanon, of counsel.

Sherwood Blue, Arch N. Bobbitt, Indianapolis, Eugene B. Burns, Lebanon, for appellees; Ruckelshaus, Bobbitt & O'Connor, Indianapolis, of counsel.

HOFFMAN, Presiding Justice.

Defendant-appellant appeals from a judgment in favor of plaintiffs-appellees in an action for the malicious prosecution of attachment proceedings. The trial court, without a jury, awarded $75,500 compensatory damages and $35,000 punitive damages to plaintiffs-appellees.

It is the well-established law in Indiana that '(t)he decision of the trial court comes to us clothed with the presumption that a correct result was reached and the burden is upon appellant * * * to overcome that presumtion.' A.S.C. Corporation v. First Nat. Bank, etc., 241 Ind. 19 at 23, 167 N.E.2d 460 at 462 (1960); Souerdike v. State, 231 Ind. 204, 206, 108 N.E.2d 136, 138 (1952).

In reviewing the record before us we may consider only the evidence most favorable to appellees, together with any reasonable inferences which may be drawn therefrom, and it is only when there is no conflict in the evidence and it can lead only to a conclusion contrary to the one which the trial court reached, will the decision be reversed. A.S.C. Corporation v. First Nat. Bank, etc., supra; Souerdike v. State, supra; Pokraka v. Lummus Co., 230 Ind. 523, 529, 532, 104 N.E.2d 669 (1952).

The pertinent facts most favorable to appellees are as follows:

In December, 1958, Jack Ensley, Inc., an Indiana corporation, was owned and operated by plaintiffs-appellees as a dealer in foreign automobiles. Defendant-appellant entered into certain contracts whereby it agreed to provide a line of credit to Jack Ensley, Inc. for the purpose of financing the acquisition for sale, or resale, of new and used automobiles under a floor plan arrangement, and to provide retail financing to the customers of Jack Ensley, Inc. in the purchase of automobiles. Plaintiffs-appellees, as a part of the financing arrangement, personally guaranteed the floor plan financing of Jack Ensley, Inc.

In 1960 and early in 1961 disagreements arose and existed between the litigants here involved regarding certain matters pertaining to the operation of the automobile dealership and the manner in which the financing of new and used cars was being handled. Appellees questioned whether or not payments made by Jack Ensley, Inc. were being properly credited by appellant. Each accused the other of wrongdoing and, as a result of statements made and numerous telephone calls at all hours, as well as several visits to the home of appellees--some by representatives of appellant from Chicago--appellees were put in fear for their personal safety and the safety of their children as well as the security of their possessions, both real and personal.

Indicative of the threats made by representatives of appellant is the following testimony given by appellee-Jack Ensley, on direct examination: 'Mr. Luckhardt and Mr. Hull came in * * *, Mr. Luckhardt said Jack you've got to get over this insane idea of yours about asking for an accounting, * * * you know I'm not going to give it to you, * * * you know we're a big outfit and * * * we can keep that attachment on you for the rest of your life, we can fix it so that your wife won't have anything and your kids won't eat and we'll keep you locked up with that attachment for the rest of your life * * *.' '(W)e'll never let you off this thing in twenty years * * *.'

Further, appellee-Beni Ensley testified, on direct examination, that she 'had several phone calls * * * late at night all times of the morning and everything else and one night this man called me about four in the morning and said that he was representing Commercial Credit and said that we should keep a better eye on our children and I hung up and later on it sounded like the same man called and said that you Ensleys are really brave, we'll see just how brave and that I should really watch my children.' And, further, '(T)he children and I were sitting on the back padio (patio) of our home and all of a sudden someone jumped the fence and he had on what I would call short pants and a funny hat and sun glasses and after these threats I didn't know who it was, so I got the children up and took them in the house as fast as I could and he came up on the porch and pushed me inside the door and he says you know me Mrs. Ensley and I said I don't know you at all and he took his glasses off and he said I'm Norman McDonald from Commercial Credit and he said they instructed me to find you and give you these and handed me letters.'

This testimony of appellees was not disputed by appellant. In an effort to resolve the disputes, appellees and Jack Ensley, Inc., on April 19, 1961, filed an action for accounting and damages against appellant, its president and his assistant. The action was still pending in Room 2 of the Superior Court of Marion County, Indiana, as Cause No. S61--2697, at the time the judgment herein was entered by the Boone Circuit Court.

On April 25, 1961, the same day on which appellant appeared specially in the action for accounting, it instituted attachment proceedings against appellees in the Marion Circuit Court. Appellant alleged in its affidavit for attachment that appellees were non-residents of the State of Indiana, were residents of the State of Florida, and had so concealed themselves that summons could not be served upon them, and further stated that it sought to recover from appellees $44,680.26 upon a certain contract.

Also, on April 25, 1961, appellant, as principal, with United States Fidelity & Guaranty Company, as surety, executed and filed its attachment bond and on the same day, an order of attachment was issued by the Clerk of the Marion Circuit Court to seize and take into possession the personal property and attach the land of appellees in Marion County, or so much thereof as would satisfy the claim for $44,680.26.

On April 25, 1961, appellant caused the Sheriff of Marion County, Indiana, to attach certain lands belonging to appellees which at that time had a fair market value of $750,000. The land when attached was not a single parcel but had previously been divided and was capable of further division so that the attachment of a smaller parcel thereof would have been sufficient to satisfy the claim of $44,680.26.

On August 13, 1962, acting on motion of appellees, the Marion Circuit Court quashed the proceedings in attachment, the service of the writ of attachment, the Sheriff's amended return thereto, and entered judgment for appellees. Appellant appealed the judgment to the Appellate Court of Indiana and, on June 12, 1964, the judgment of the Marion Circuit Court was affirmed. ¹ On July 10, 1964, appellant's petition for rehearing was denied. On October 1, 1964, the Supreme Court of Indiana denied appellant's petition to transfer. On October 26, 1964, the Clerk of the Supreme and Appellate Courts certified to the Marion Circuit Court a copy of the opinion of the Appellate Court affirming the judgment of the trial court.

The filing of the attachment proceedings by appellant, its appeal to this court, petition for rehearing, petition to transfer to the Supreme Court, and the certification of the opinion of this court to the Marion Circuit Court covered the period from April 25, 1961 to October 26, 1964. During this 42-month period appellees were deprived of the free and unencumbered use of their land.

On November 20, 1964, the action for malicious prosecution of attachment proceedings, which resulted in this appeal, was commenced by appellees. Appellant pleaded--by affirmative defense--that the statute of limitations had run and that the action was barred.

At the request of both parties, the trial court made its finding of facts and stated conclusions of law thereon.

Appellant's sole assignment of error is the overruling of its motion for a new trial. The motion for a new trial contains 21 grounds which include: the decision of the trial court is not sustained by sufficient evidence, the decision is contrary to law, and the damages are excessive.

Appellant has chosen to brief and argue only three specific contentions: 1) the defendant-appellant had probable cause as a matter of law; 2) the statute of limitations had run prior to the time the plaintiffs commenced this action; and 3) the trial court erred in awarding damages that accrued after the dissolution of the attachment.

The elements of malicious prosecution set forth in 3 Restatement, Torts, § 677, at 454 (1938), are as follows:

'Initiation of Civil Proceedings Causing an Arrest or a Deprivation of Property.

'One who by initiating civil proceedings against another causes him to be arrested or deprived of the possession of his land or chattels or other things is liable to him for the harm done thereby if

(a) the proceedings are initiated

(i) without probable cause, and

(ii) primarily for a purpose other than that of securing the adjudication of the claim on which the proceedings were based, and

(b) except where they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.' (Emphasis supplied.)

See also:

Cassidy v. Cain, Ind.App., 251 N.E.2d 852, (1969), (Transfer denied);

Dwyer v. McClean, 133 Ind.App. 454, 175 N.E.2d 50, (1961), (Transfer denied);

Treloar v. Harris, 66 Ind.App. 59, 117 N.E. 975 (1917).

Appellant contends that it did have probable cause to believe that appellees were no longer residents of Indiana and were residents of Florida based upon the following statement which appeared at the bottom of a...