Killian v. Fuller

• Decision Date: 01 October 1987
• Docket Number: Docket No. 87631
• Citation: 162 Mich.App. 210,412 N.W.2d 698
• Parties: Jerry KILLIAN, Plaintiff-Appellant, v. Anthony FULLER, Michael Cushman, Richard Warmington, Andrew Palmer, Michael Parrish, Robert Phelps, and Edward Chmielewski, Jointly and Severally, Defendants-Appellees. 162 Mich.App. 210, 412 N.W.2d 698
• Court: Court of Appeal of Michigan — District of US

Page 698

412 N.W.2d 698

Jerry KILLIAN, Plaintiff-Appellant, v. Anthony FULLER, Michael Cushman, Richard Warmington, Andrew Palmer, Michael Parrish, Robert Phelps, and Edward Chmielewski, Jointly and Severally Defendants-Appellees.

Docket No. 87631.

162 Mich.App. 210, 412 N.W.2d 698

Court of Appeals of Michigan.

Submitted Feb. 3, 1987.

Decided Aug. 4, 1987.

Released for Publication Oct. 1, 1987.

[162 MICHAPP 212] George R. Hamo, Flint, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and J. Peter Lark, Asst. Atty. Gen., for defendants-appellees Fuller, Cushman, Warmington and Palmer.

Borrello, Thomas & Jensen, P.C. by Michael D. Thomas, Saginaw, for defendants-appellees Phelps and Chmielewski.

S. Olaf Karlstrom and Linda M. Olivieri, Flint, for defendant-appellee Parrish.

Before BEASLEY, P.J., and CYNAR and ANDERSON, ^* JJ.

PER CURIAM.

Plaintiff Jerry Killian appeals by leave granted from an order of summary disposition in favor of defendants. We affirm.

Plaintiff filed a complaint on November 13, 1984. In his amended complaint, plaintiff alleged that he was arrested on or about October 11, 1979, and charged with the criminal offense of delivery of a controlled substance. The arrest resulted from the efforts of defendant law enforcement officers, all of whom were employed by one of the following agencies: the Department of State Police, the United States Drug Enforcement Administration, the Flint Police Department, or the Saginaw County Police Department. In the ensuing criminal proceedings, the circuit court denied Killian's motion raising an entrapment defense, and Killian was thereafter convicted after a guilty plea on January 20, 1981. On June 10, 1982, this Court [162 MICHAPP 213] reversed the conviction on the ground of entrapment. On November 10, 1982, the Supreme Court denied the prosecutor's application for leave to appeal. See People v. Killian, 117 Mich.App. 220, 323 N.W.2d 660 (1982), lv. den. 414 Mich. 944 (1982).

The amended complaint stated two counts, which were entitled: (1) civil conspiracy and (2) infliction of emotional distress. Count I alleged that defendants acted jointly to entrap plaintiff, that defendants conspired to entrap plaintiff, that defendants manufactured or instigated the crime for which plaintiff was convicted, and that defendants' acts were designed to accomplish either an unlawful purpose or a lawful purpose by unlawful means. As the basis for his damages, plaintiff alleged deprivation of his liberty and emotional, mental and financial injury. In Count II, plaintiff alleged that the same acts by defendants constituted outrageous conduct that caused plaintiff severe emotional distress.

The circuit court dismissed the entire complaint. Count I was held not to state a claim upon which relief can be granted because its allegations were inadequate to raise the tort of malicious prosecution. The court denied plaintiff's request to amend Count I because the untimeliness of the amendment would prejudice defendants. Count II was deemed to be barred by the statute of limitations.

On appeal, plaintiff argues that the allegations of Count I were adequate to state a claim for malicious prosecution. Although not clearly indicated by the circuit court, we assume that the disposition of this count was pursuant to either GCR 1963, 117.2(1) or MCR 2.116(C)(8). Under either provision, the motion tests the legal basis of the complaint with reference to the pleadings alone. The allegations of the complaint and all fairly drawn inferences from those allegations are [162 MICHAPP 214] assumed to be true. The test is whether the claim is so unenforceable as a matter of law that no factual development could possibly justify recovery. See Kekel v. Allstate Ins. Co., 144 Mich.App. 379, 381, 375 N.W.2d 455 (1985), lv. den. 424 Mich. 878 (1986). If it appears that a pleading deficiency can be cured by amendment of the complaint, then the court should grant the plaintiff leave to amend. GCR 1963, 117.3; MCR 2.116(I)(5).

The elements of a malicious prosecution claim are (1) a termination of prior proceedings (instigated by defendant) favorably to the plaintiff, (2) the absence of probable cause for the proceedings, and (3) malice on the part of the defendant. King v. Arbic, 159 Mich.App. 452, 465, 406 N.W.2d 852 (1987). Our review of the complaint in the instant case indicates that the draftsman failed to plead the elements of either lack of probable cause or malice. Nevertheless, it appears that the pleading deficiency may have been amenable to cure by amendment.

However, we conclude that the claim of malicious prosecution is deficient for another reason--the facts pleaded by the complaint establish that it is legally impossible for plaintiff to prove that defendants lacked probable cause. More particularly, plaintiff's guilty plea prior to his acquittal on the ground of entrapment establishes conclusively that defendants had probable cause for their role in plaintiff's criminal prosecution.

In arriving at this conclusion, we note that the successful assertion of an entrapment defense neither negates nor establishes probable cause. Entrapment is entirely collateral to the issues of the defendant's guilt or innocence. The entrapment defense reflects a judicial policy to deter overreaching governmental conduct. People v. D'Angelo, 401 Mich. 167, 257 N.W.2d 655 (1977). We wish [162 MICHAPP 215] to make clear that our holding is not based on the fact that defendant obtained an acquittal by means of the entrapment defense. ¹

The general rule is that a guilty plea is conclusive evidence of probable cause unless that plea was induced by fraud or unfair means. Piechowiak v. Bissell, 305 Mich. 486, 9 N.W.2d 685 (1943). See also, Nawrocki v. Eberhard Foods, Inc., 24 Mich.App. 646, 650-651, 180 N.W.2d 849 (1970), lv. den. 389 Mich. 753 (1972). In the instant case, plaintiff's complaint does not allege that his plea was in any way improperly obtained or induced. Presumably, the plea taking was conducted in accordance with GCR 1963, 785.7, now MCR 6.101(F), which contains procedural safeguards for the accuracy and voluntariness of the plea. Therefore, the dismissal of the malicious prosecution claim was proper because the claim failed to state a legal basis upon which relief can be granted. Although the circuit court order dismissing Count I did not reach this issue, it is well settled that this Court will not reverse a correct decision reached by the trial court for the wrong reason. Buckeye Union Fire Ins. Co. v. Detroit Edison Co., 38 Mich.App. 325, 332, 196 N.W.2d 316 (1972).

With respect to Count II, plaintiff argues that his claim for intentional infliction of emotional distress was not barred by the statute of limitations. Plaintiff argues that the period did not begin to [162 MICHAPP 216] run until the November 10, 1982, decision of the Supreme Court denying leave to appeal this Court's decision reversing plaintiff's criminal conviction. The period of limitations applicable to a claim for intentional infliction of emotional distress is three years, as provided by M.C.L. Sec. 600.5805(8); M.S.A. Sec. 27A.5805(8). Mosley v. Federal Department Stores, Inc., 85 Mich.App. 333, 338-340, 271 N.W.2d 224 (1978). The circuit court ruled that the period of limitations began to run at the time of plaintiff's October, 1979, arrest date and that the claim for intentional infliction of emotional distress, first filed more than five years thereafter, was untimely. We agree with the circuit court ruling that Count II was by the statute barred.

Generally, a cause of action does not accrue until all elements of the cause have occurred and can be pleaded in a proper complaint. Parisi v. Michigan Townships Ass'n, 123 Mich.App. 512, 514, 332 N.W.2d 587 (1983), lv. den. 417 Mich. 1100.16 (1983). The...