Coogan v. City of Wixom

• Decision Date: 01 June 1987
• Docket Number: No. 86-1012,86-1012
• Citation: 820 F.2d 170
• Parties: Edward COOGAN and Margaret Coogan, Plaintiffs-Appellants, v. CITY OF WIXOM, Bruce Kirby and Philip Leonard, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 170

820 F.2d 170

Edward COOGAN and Margaret Coogan, Plaintiffs-Appellants, v. CITY OF WIXOM, Bruce Kirby and Philip Leonard, Defendants-Appellees.

No. 86-1012.

United States Court of Appeals Sixth Circuit.

Argued March 12, 1987.

Decided June 1, 1987.

Stephen N. Leuchtman, Sommers, Schwartz, Silver & Schwartz, Southfield, Mich., Patrick Burkett (argued), for plaintiffs-appellants.

Stuart A. Ulanoff, Ulanoff, Ross & Wesley, P.C., Southfield, Mich., Janice G. Hildenbrand (argued), for defendants-appellees.

Before LIVELY, Chief Judge, WELLFORD, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.

LIVELY, Chief Judge.

The plaintiffs sought damages for the alleged violation of their constitutional "right to use and enjoy property and to conduct a lawful business." (Plaintiffs' brief at 16). In addition to this federal claim, the plaintiffs sought to recover on two state causes of action, relying on diversity of citizenship. Following a nine-day jury trial the district court directed a verdict for the defendants, and the plaintiffs have appealed.

I.

Edward Coogan will be referred to as "plaintiff," since his wife Margaret made no separate claim for relief. Plaintiff had a number of problems with the City of Wixom, a suburb of Detroit with a population of approximately 7500. Plaintiff developed real estate through a corporation known as Kelly Homes, Inc. Sometime prior to 1980 he sought to move a "modular building" to a location within Wixom as an office for Kelly Homes. The city building officer issued a stop work order, which delayed the installation of the building. Plaintiff alleged that there was no legal basis for the order. In May 1980 plaintiff purchased an undeveloped portion of a residential subdivision that had been platted many years earlier. The city refused to issue a building permit because plaintiff would not agree to sewer hook-up for lots within 200 feet of the existing sewer system, as required by a city ordinance. When plaintiff began constructing a road within the subdivision without a permit the city issued a stop work order. This dispute continued throughout 1980.

Two fires occurred at the office of Kelly Homes on November 7 and 8, 1980. The first fire was caused by an electrical malfunction, and caused damages of approximately $2,000. The second fire resulted in a total loss. Defendant Bruce Kirby, a Wixom police officer with some training in arson investigation, was on duty the morning of November 8. When dispatched to the fire scene Kirby was advised that a gas can had been found on the premises. Kirby secured the premises and called Sergeant Michael Malloy of the Michigan State Police Arson Strike Force. With plaintiff's permission Kirby and Malloy entered the building and conducted an investigation. Two points of origin were located along with irregular burn patterns consistent with the use of flammable liquids. The investigators photographed the interior and took carpet samples where a "sniffer" indicated the presence of such liquids.

Sergeant Malloy directed Kirby in the follow-up investigation which produced evidence that the building had been listed for sale, that taxes on the building were delinquent and that plaintiff had greatly increased the fire insurance coverage on the building immediately before the fire in response to a suggestion sent by the insurer many months previously. Kirby conducted 42 interviews in the course of his investigation, six of which were taped. Before questioning plaintiff, two individuals who conducted a business in part of the burned building, and a man who had threatened to "get even" with plaintiff, Kirby advised them of their "Miranda rights."

Following prescribed procedures, Kirby took the entire investigative file to the county prosecutor's office. When these materials were supplemented with statements of the plaintiff under oath given to an attorney for the insurer, the county prosecutor authorized the issuance of a warrant for burning insured property. This authorization was taken to a local district judge who issued the warrant. Plaintiff was arrested and a preliminary examination was conducted before a different state district judge. Plaintiff was represented by counsel at this hearing. His attorney cross-examined all but one of the 15 witnesses produced by the prosecutor. The district judge found probable cause to believe that a felony had been committed and that Coogan had committed it; he bound plaintiff over for trial in the state circuit court.

In circuit court plaintiff's attorney made a motion to quash the charge. As this attorney testified at the trial in federal district court, the purpose of the motion to quash was to have the circuit court judge reexamine the issue of probable cause. After a hearing on the motion the circuit court judge found no basis to overturn the decision of the district court judge, and the prosecution continued. In July 1982 the prosecution was dismissed by the circuit court for failure to meet speedy trial requirements.

II.

Plaintiff's claims under state law sought damages for malicious prosecution and for intentional infliction of emotional distress.

A.

The elements of malicious prosecution are clearly defined under Michigan law. In order to recover a plaintiff must show: "(1) a criminal prosecution instituted against plaintiff by defendant, terminating in plaintiff's favor, (2) absence of probable cause for the criminal proceeding, and (3) malice or a primary purpose in bringing the action other than bringing the offender to justice." Rivers v. Ex-Cell-O Corp., 100 Mich.App. 824, 832, 300 N.W.2d 420 (1980) (citations omitted). In granting the directed verdict the district court held, as a matter of law that plaintiff had failed to show an absence of probable cause. Plaintiff argues that this was error, contending that the question whether the defendants had probable cause to institute the criminal prosecution was for the jury. The plaintiff relies on the decision of Michigan Court of Appeals in Koski v. Vohs, 137 Mich.App. 491, 358 N.W.2d 620 (1984). However, this decision was reversed by the Supreme Court of Michigan, which wrote:

When the material facts are undisputed and in the opinion of the court constitute probable cause, he should direct a verdict in favor of the defendant.

Koski v. Vohs, 426 Mich. 424, 430, 395 N.W.2d 226 (1986), quoting Clanan v. Nushzno, 261 Mich. 423, 427, 246 N.W. 168 (1933).

The district court found that the material facts were undisputed. Kirby had obtained expert assistance, had conducted a thorough investigation and had presented his entire file to the county prosecutor who authorized the warrant. All plaintiff had been able to show in nine days of trial was that there were other possible leads that Kirby might have followed in his investigation. He did not demonstrate that Kirby knew of any exculpatory information that he withheld from the county prosecutor, or produce any other evidence that Kirby acted in bad faith. In addition, there was absolutely no evidence connecting defendant Leonard, the Wixom Chief of Police, with the decision to seek a warrant. On this basis the district court directed a verdict in favor of both individual defendants and the City of Wixom.

A decision on probable cause is a determination that "involves only the conduct of a reasonable man under the circumstances." Koski, 426 Mich. at 432, 395 N.W.2d 226, quoting Prosser & Keeton, Torts, (5th ed.), Sec. 119, p. 882. The fact that Kirby may have been mistaken in concluding that plaintiff caused his building to burn is immaterial, since "probable cause is a matter of the appearances presented to the defendant." Koski, 426 Mich. at 434, 395 N.W.2d 226. Where there are sufficient facts to warrant a prudent person in a defendant's position to believe that a crime was committed and that the person charged committed it, "the failure to make a further investigation does not negate probable cause." Id. at 436, 395 N.W.2d 226 (footnote omitted).

Plaintiff has failed to identify any fact known to Kirby at the time he obtained the warrant that negated the existence of probable cause. Kirby was in possession of a number of facts which would indicate to a reasonable person that the crime of arson had been committed and that plaintiff was the person responsible. The fact that plaintiff might have a defense to the charge that was unknown to Kirby or that he might ultimately win acquittal at a trial did not create an issue of material fact. The standard of proof of guilt beyond a reasonable doubt has no relevance to the issue of probable cause to institute a prosecution.

The district court properly directed a verdict on the state claim of malicious prosecution.

B.

This court thoroughly analyzed the Michigan cause of action for intentional infliction of emotional distress in Ross v. Burns, 612 F.2d 271 (6th Cir.1980). We wrote:

Although the Michigan Supreme Court has yet to rule on a case of this nature, the Michigan Court of Appeals has recognized the tort of intentional infliction of emotional distress as a viable cause of action. Frishett v. State Farm Mutual Insurance Co., 3 Mich.App. 688, 143 N.W.2d 612 (1966), lv. den., 379 Mich. 733 (1966). The Michigan Court explicitly adopted the definition in Restatement (Second) of Torts Sec. 46 (1948), which reads in applicable part: "(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, ..." Warren v. June's Mobile Home Village and Sales, Inc., 66 Mich.App. 386, 239 N.W.2d 380, 382 (1976).

The Restatement definition implies four distinct elements of proof necessary to sustain a claim. A complainant must produce evidence of "extreme and outrageous" conduct, of the actor's injurious intent or reckless disregard for the consequences of his acts, of causation, and of the actual experience of severe distress before his case will...