Daniels v. Terranova
| Decision Date | 18 August 2020 |
| Docket Number | WD 82785 |
| Citation | 611 S.W.3d 799 |
| Parties | Nicholas Demanule DANIELS, Appellant, v. Officer Ryan TERRANOVA, et al., Respondents. |
| Court | Missouri Court of Appeals |
Brent E. Haden, Columbia, MO, Attorney for Appellant.
Brad C. Letterman, Jefferson City, MO, Attorney for Respondents.
Before Division Four: Karen King Mitchell, Presiding Judge, and Thomas H. Newton and Anthony Rex Gabbert, Judges
Nicholas Daniels appeals the award of summary judgment to Columbia Police Officers Ryan Terranova, Patrick Corcoran, and Clint Sinclair and former Columbia Police Sergeant Candy Cornman (collectively, the Officers) on Daniels's claim of malicious prosecution stemming from an underlying criminal prosecution for trespassing, assault of a law enforcement officer, and resisting arrest. On appeal, Daniels raises seven points, arguing that the motion court erred in granting summary judgment because (1) an earlier suit was commenced against Daniels in that criminal charges were filed against him; (2) there are genuine issues of material fact as to whether the Officers instigated the prosecution; (3) the case terminated in Daniels's favor in that the prosecuting attorney dismissed the case by nolle prosequi , intended to abandon the case, and did not refile charges against Daniels before the statute of limitations expired; (4) there are genuine issues of material fact demonstrating that the Officers lacked probable cause to instigate the prosecution against Daniels for any criminal charges; (5) collateral estoppel does not bar Daniels from presenting evidence of lack of probable cause; (6) there are genuine issues of material fact regarding the Officers’ malice; and (7) there are genuine issues of material fact regarding Daniels's damages. Because the motion court properly granted summary judgment as to Daniels's claim of malicious prosecution arising from the charge of resisting arrest and as to all of his claims against Sergeant Cornman, we affirm in part. But, because we find genuine issues of material fact as to (1) probable cause to prosecute Daniels for trespass and assault of a law enforcement officer and (2) whether the prosecutor abandoned the case, we reverse the grant of summary judgment as to Daniels's claims of malicious prosecution for trespass and assault of a law enforcement officer against the remaining Officers and remand the case for further proceedings consistent with this opinion.
Around midnight on October 23, 2013, several of the Officers were conducting a routine business check at the Fieldhouse, a bar in downtown Columbia, Missouri, when an altercation occurred between Daniels and Brock Gettemeier, a Fieldhouse bouncer. Daniels and the Officers disagree about how the altercation arose, developed, and progressed and as to whether Daniels acted aggressively. Some of the Officers responded to the altercation, and a fight broke out. During the fight, one of the Officers was struck in the face and responded by using his Taser on Daniels.
Daniels was arrested and, on November 14, 2013, he was charged by information with three offenses: (1) Class B misdemeanor of trespass in the first degree under § 569.140;1 (2) Class A misdemeanor of assault of a law enforcement officer in the third degree under § 565.083; and (3) Class A misdemeanor of resisting arrest under § 575.150. On April 25, 2014, the assistant prosecuting attorney assigned to the case entered a nolle prosequi ,2 and a docket entry of the same date states, "Dismissed by Prosec/Nolle Pros."
Daniels subsequently filed a federal lawsuit in the U.S. District Court for the Western District of Missouri against the Officers, and others, asserting claims for violation of Daniels's constitutional rights in connection with his arrest. Daniels's federal complaint also asserted state-law claims for battery, conspiracy to commit battery, false imprisonment, malicious prosecution, and conspiracy to commit malicious prosecution. On October 26, 2016, the federal district court granted summary judgment in favor of all defendants on all of Daniels's federal claims, finding that probable cause existed for Daniels's arrest for resisting arrest under federal standards and, alternatively, that the Officers were entitled to qualified immunity and that the use of force was objectively reasonable. Daniels v. City of Columbia, Mo. , 2016 WL 6394496, at *5-12 (W.D. Mo. Oct. 26, 2016). The federal court declined to exercise supplemental jurisdiction over Daniels's state-law claims, instead dismissing them without prejudice. Daniels , 2016 WL 6394496, at *12.
Following dismissal of his federal lawsuit, Daniels filed the petition in the underlying action, asserting state-law claims for malicious prosecution, false imprisonment, battery, and negligent supervision. The Officers moved for summary judgment on all four claims, asserting collateral estoppel/issue preclusion, res judicata/claim preclusion, qualified immunity, official immunity, and failure to state a claim upon which relief may be granted. With respect to malicious prosecution, all of the Officers challenged two essential elements of Daniels's prima facie case—termination of the criminal prosecution in his favor and probable cause to initiate the prosecution. Sergeant Cornman also challenged the additional element that she did not instigate the prosecution of Daniels. Daniels responded to the Officers’ statement of uncontroverted material facts that accompanied their motion, but Daniels did not file a contemporaneous legal memorandum opposing summary judgment. The Officers filed a reply in support of their motion, including responses to Daniels's statement of additional material facts; the Officers did not assert any new additional material facts in their reply. Daniels subsequently filed a sur-reply that, for the first time, raised legal arguments in opposition to the Officers’ motion for summary judgment.
The court held a hearing on the Officers’ motion. Following the hearing, the court granted summary judgment in the Officers’ favor on all claims, but the court neither entered findings of fact and conclusions of law nor indicated the basis on which it granted the motion.3
As a preliminary matter, the Officers assert that Daniels failed to preserve any issues for review on appeal because he did not file a legal memorandum in opposition to their motion for summary judgment, instead raising his legal arguments in opposition to the motion for the first time in his sur-reply. The Officers argue that Daniels's sur-reply was not allowed under Rule 74.04(c).4 In pertinent part, Rule 74.04(c)(4) states:
Sur-replies in Opposition to Motions for Summary Judgment. Within 15 days of service, if movant files a statement of additional material facts pursuant to Rule 74.04(c)(3), the adverse party shall file a sur-reply. The sur-reply shall set forth each additional statement of fact in its original paragraph number and immediately thereunder admit or deny each such factual statement. The sur-reply shall be in the form and shall be supported in the manner prescribed by Rule 74.04(c)(2).
Rule 74.04(c)(5) further states, Because Daniels did not seek leave to file his sur-reply, the Officers contend that no issues raised by Daniels for the first time in his sur-reply were preserved for appellate review.
In response, Daniels argues that, as the non-moving party, he is not required to file a legal memorandum in response to the summary judgment motion in order to preserve legal issues for appeal. In support of his argument, Daniels points to use of the permissive word "may" in the following sections of Rule 74.04(c)(2):
(Emphasis added.)
As the non-moving party, Daniels was required to serve a response setting forth each of the Officers’ factual statements and admitting or denying the truth thereof, which Daniels did. Rule 74.04(c)(2). That rule permits, but does not require, the non-moving party to file a legal memorandum explaining the legal or factual reasons why summary judgment should be denied.
While Rule 74.04(c)(4) requires a non-moving party to file a sur-reply where the movant files a statement of additional material facts in its reply pursuant to Rule 74.04(c)(3), we do not read that rule to allow sur-replies only when the movant has filed a statement of additional facts. And we do not interpret Rule 74.04(c)(5)’s prohibition on submission of other papers without leave of court to pertain to sur-replies. "Rule [74.04(c)(5) ] specifies that ‘[n]o other papers with respect to the motion for summary judgment [beyond the motion, response, reply, and sur-reply ] shall be filed without leave of court.’ " Matysyuk v. Pantyukhin , 595 S.W.3d 543, 548 (Mo. App. W.D. 2020) (quoting Rule 74.04(c)(5)) (emphasis added).
Moreover, the Officers fail to cite a single case holding that the non-moving party in a summary judgment proceeding must file a legal memorandum to preserve issues for appeal. To the contrary, the Supreme Court of Missouri expressly held that the non-moving party...
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