Koski v. Vohs

• Decision Date: 09 November 1984
• Docket Number: Docket No. 69982
• Citation: 358 N.W.2d 620,137 Mich.App. 491
• Parties: Aldred KOSKI, Plaintiff-Appellant, v. Kenneth VOHS, Gerald Crossley, Joseph D. Whitefield, Oakland County Prosecutor and Danny R. Daniel, Defendants-Appellees. 137 Mich.App. 491, 358 N.W.2d 620
• Court: Court of Appeal of Michigan — District of US

Page 620

358 N.W.2d 620

Aldred KOSKI, Plaintiff-Appellant, v. Kenneth VOHS, Gerald Crossley, Joseph D. Whitefield, Oakland County Prosecutor and Danny R. Daniel Defendants-Appellees.

Docket No. 69982.

137 Mich.App. 491, 358 N.W.2d 620

Court of Appeals of Michigan.

Submitted April 16, 1984.

Decided Sept. 17, 1984.

Released for Publication Nov. 9, 1984.

[137 MICHAPP 496] Paterson & Adams by James Paterson, Hazel Park, for plaintiff-appellant.

Moore, Sills, Poling & Wooster, P.C. by John L. Wooster, Birmingham, for Vohs and Whitefield.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Michael L. Updike, Farmington Hills, for Patterson and Daniel.

Before HOOD, P.J., and BEASLEY and CAPRATHE, ^* JJ.

BEASLEY, Judge.

On November 14, 1979, plaintiff, Aldred Koski, started a suit for malicious prosecution against seven defendants. Five of these were or had been Madison Heights police officers, and the others were the Oakland County Prosecutor (L. Brooks Patterson) and an investigator in his office. Eventually, in November, 1982, ¹ trial commenced and, after six days of trial, when plaintiff had completed putting in his case, the trial court granted a motion for directed verdict brought on behalf of the four defendants then remaining in [137 MICHAPP 497] the case, namely, Whitefield, Vohs, Daniel and Patterson. The basis for the trial court's ruling was a finding that as a matter of law defendants had probable cause to initiate criminal prosecution against plaintiff.

Plaintiff appeals as a matter of right. For the reasons to be indicated, we affirm the grant of a directed verdict with respect to defendants Kenneth Vohs, Joseph D. Whitefield and the Oakland County Prosecutor. With respect to defendant Danny R. Daniel, we reverse and remand for trial on the merits.

Plaintiff Koski worked for many years as a news reporter for various newspapers and radio stations. For three years, he worked for the Michigan State Police Troopers Association, where his duties included editing the Trooper, a monthly tabloid about the State Police. From this job, plaintiff got the idea to publish public relations magazines for local law enforcement agencies and began Monitor Publications, Ltd. in 1973.

In early 1974, plaintiff published a magazine for the Madison Heights Police Officers Association (MHPOA). Through 1975, he published magazines for 10 other suburban Detroit law enforcement agencies. On August 18, 1975, plaintiff entered into a contract to produce a second magazine for the MHPOA. This contract was signed on behalf of the MHPOA by Gerald Crossley, president, Herbert Allen, vice president, and Dennis Carley, secretary-treasurer.

To raise funds for the magazine, Monitor personnel solicited advertising from area merchants. The contract provided that the advertising revenues were to be deposited in an association bank account and held "in trust to insure publishing costs, expenses and against the profit-split". MHPOA [137 MICHAPP 498] was obligated to make payments to Monitor to cover expenses incurred in carrying out the project. Once all expenses were paid, the MHPOA was to receive a minimum payment of $5,000, assuming sufficient revenues were generated, after which it would share in remaining profits at the rate of 30% until an additional sum of $3,000 was attained.

Collection of advertising revenues was to be handled in three ways: (1) Monitor personnel would receive cash or a check from the advertiser at the time of solicitation of the advertisement; (2) the advertiser could mail a check to the police station; or (3) the advertisers could opt to pay upon publication. The plan was that at the end of each day that revenues were received, plaintiff would go to the police station, make a log of each payment and determine how much was to be paid over to Monitor.

Plaintiff sold his first account in September, 1975. According to the terms of the contract, the magazine was to be published within 12 weeks of the first sale. However, plaintiff ran into difficulties. First, he was faced with falling advertising sales because of competition from a person representing the Fraternal Order of Police or the Metropolitan Club. Plaintiff's efforts to invoke paragraph 6 of his contract and to have the police department mediate the dispute did not result in a satisfactory result. Plaintiff tried to sell bumper stickers to raise the needed revenues. Second, plaintiff had some sort of a falling-out with Officer Carley, the association's secretary-treasurer, which resulted in further expense payments to Monitor being terminated.

Nevertheless, by December 5, 1975, plaintiff had the magazine covers prepared and had 11,500 [137 MICHAPP 499] "rolled" on a press. In January, 1976, plaintiff sent a letter to the association membership indicating the funds received up to that time. As a result, Officer Carley released "a little bit" of money for expenses, but, on February 10, 1976, Officer Carley again cut off all funds. Plaintiff did not receive any substantial payment until December, 1976, and, consequently, had to lay off his staff and was unable to complete the magazine.

On July 21, 1976, plaintiff had a meeting with Officer Thomas Linville, who had become president of the association earlier that year, and other officers in the association. Plaintiff claims that Officer Carley was away on vacation at that time, but that fact is in dispute. Lieutenant Jerry Sloan, a long-time friend of plaintiff and the brother of then Chief of Police, William Sloan, attended the meeting as plaintiff's representative.

At the meeting, publication of the magazine, an accounting and release of funds to plaintiff were discussed. Plaintiff asserted that the association account should contain at least $10,000. Officer Linville, however, indicated he did not know what funds were in the account. This would suggest that Officer Carley was not present with his books. Plaintiff claimed that the upshot of the meeting was that an accounting would be immediately forthcoming. Officer Linville, however, believed that the accounting was to follow publication. Nothing further occurred until September, 1976, when Officer Carley gave plaintiff a check and promised an accounting. Neither publication nor the accounting was performed by December, 1976, when the parties agreed that plaintiff should resume advertising sales.

In September, 1976, Officers Linville and Carley went to the Oakland County Prosecutor's office to [137 MICHAPP 500] complain about their contract problems. After seeing Chief Assistant Prosecutor Richard Thompson, they were referred to the consumer affairs division, where it was explained to them that they had a civil, not a criminal, complaint.

In March, 1977, the association made a complaint to the Attorney General's office. A meeting was held with plaintiff and officers of the association present. Joseph Whitefield, who was then assistant chief of police, attended at the request of Chief Sloan. The matters discussed at the meeting included plaintiff's lack of a charitable trust license, failure to circulate the Monitor magazine, and plaintiff's claim that money was stolen from the association account. The meeting culminated with a deadline being set for plaintiff to publish the magazine.

Plaintiff had the magazine printed in July, 1977. In August, plaintiff received a call from defendant Officer Kenneth Vohs, who was the new association president. Officer Vohs explained that the printing bill was $3,600 more than expected and that, according to Officer Carley, the association could not pay it without running out of funds. Furthermore, Officer Vohs said that Officer Carley had told him that the association had already paid its share and any excess was for plaintiff to pay. Plaintiff responded that there should be plenty of funds and requested that Officer Vohs check with Officer Carley, who was still the secretary-treasurer. Plaintiff also stated that he was collecting the pay-on-publication accounts so that about $2,000 in additional revenues should be coming in. Plaintiff claimed that the additional billing from the printer was due to increased costs over the original estimate.

On August 29, 1977, after discussing a possible [137 MICHAPP 501] civil action against the association with his attorney, plaintiff was intercepted in the street by Officer Vohs, and they discussed the magazine's problems. Initially, plaintiff suggested to Officer Vohs that he talk with plaintiff's attorney. Plaintiff explained to Officer Vohs that the association should handle distribution of the magazines, and he gave Officer Vohs 25 to 30 magazines to show to businessmen who called about them. Plaintiff also said that, if there really were insufficient funds in the association account, there was some reason for it other than his expenses. Officer Vohs, however, was unfamiliar with how the association's funds were handled and trusted Officer Carley in the matter.

While Officer Vohs told plaintiff that businessmen were complaining about nonproduction of the magazine, he did not tell plaintiff that on August 15, 1977, there had been a complaint about plaintiff's endorsing a check made payable to the association. Mr. Jackson, of Spalding DeDecker and Associates, a purchaser of advertising in the magazine, told Officer Vohs that on August 4, 1977, a man fitting plaintiff's description had come in, identified himself as Dennis Carley and requested a check made out to Monitor Magazine. Jackson had refused the request because he understood the check was supposed to be made out to the association, but he had later mailed a check for $100 to the police station. After getting this report from Jackson, Officer Vohs returned to the station and spoke with secretary Elsie Keil. She stated that on or about July 26, 1977, plaintiff had come to the station and asked if there was any mail. She had a check from McDonald's, but refused to hand it over. Plaintiff then made a telephone...