Manuel v. Wilka

• Decision Date: 10 May 2000
• Docket Number: No. 21121.,21121.
• Citation: 610 N.W.2d 458,2000 SD 61
• Parties: Michael MANUEL and Sharon Manuel, Plaintiffs and Appellants, v. Timothy J. WILKA and Michael Kenyon, d/b/a Top Hat and Tails, Defendants and Appellees,
• Court: South Dakota Supreme Court

610 N.W.2d 458

2000 SD 61

Michael MANUEL and Sharon Manuel, Plaintiffs and Appellants, v. Timothy J. WILKA and Michael Kenyon, d/b/a Top Hat and Tails, Defendants and Appellees,

No. 21121.

Supreme Court of South Dakota.

Argued March 22, 2000.

Decided May 10, 2000.

Jonathan K. Van Patten, Vermillion, South Dakota, for plaintiffs and appellants.

Rory King of Siegel, Barnett & Schutz Aberdeen, South Dakota, for defendants and appellees.

SABERS, Justice.

[¶ 1.] After much litigation, including claims and counterclaims, Michael Manuel sued Michael Kenyon and Kenyon's attorney, Timothy Wilka, for malicious prosecution. The trial court granted defendants' motion for summary judgment. We reverse and remand for trial.

FACTS

[¶ 2.] In July 1993, Michael Manuel heard water dripping in two walls in his home. Upon inspection, he found that the water was coming through the roof around the south chimney. He determined that the cause of the leak and the water in his home was deterioration of the chimney chase, which is the exterior covering of a chimney.

[¶ 3.] Manuel called Kenyon, a "chimney sweep" and repairman, and asked for an estimate for replacing the chase. On July 26, 1993, Kenyon inspected the chase and confirmed that the facing was coming off. He submitted an estimate to Manuel for replacement of the chase:

Remove chase / Remove flashing Remove Shingles around chase/ Reinstall chase / flashing / & Shingles. Materials $350.00 Labor $200.00 _______ $550.00 Tax $ 33.00 $583.00

The estimate also provided that payment was due when the work was completed. Manuel accepted the estimate on July 28, 1993.

[¶ 4.] On August 18, the day Kenyon arrived to make the repairs, Manuel was vacationing in Canada. When Kenyon removed the old chase and the flashing attached to the chase, he discovered what he believed to be an extensive amount of soft, rotting plywood decking on the roof. He claims that the decking had to be repaired or replaced before the chase, flashing and shingles could be permanently installed. Therefore, he claims he had his brother temporarily repair the roof. He intended to inform Manuel, upon his return from vacation, that the chase and shingles were not permanently affixed and that he would finish the job when the roof decking was replaced.

[¶ 5.] After making the temporary repairs, Kenyon spoke with Shannon Larsen, Manuel's adult daughter, at the Manuel residence. He requested, insisted and received a check for the roof repairs in the full amount of $583. Kenyon claims he told Larsen that the decking was rotting and needed immediate attention. Larsen admits that he told her there was some water damage, but claims that Kenyon did not elaborate any further. She further claims that she "asked him if [her] parents should call him when they returned home and he said that was not necessary."¹

[¶ 6.] When Manuel returned from his vacation on August 20, he discovered a substantial leak inside the house near the chimney. The source of the leak was in the area that he employed Kenyon to repair. He testified that he was angry and found the repairs to be "unbelievable." Before discussing the quality of the work with Kenyon, Manuel stopped payment on his check and asked Ralph Jakobsen, an acquaintance with roofing experience, to examine and evaluate the repair work. Manuel, who believed that Kenyon fully completed the job, videotaped Jakobsen's examination.

[¶ 7.] After the videotaping was complete, Manuel contacted Kenyon and told him that "it was worst damn job" he has ever seen. Thereafter, Kenyon claims that Manuel called him numerous times and was very "threatening, profane and angry." He was convinced that Manuel was going to sue him.

[¶ 8.] Kenyon contacted Wilka on September 8, 1993. Wilka wrote a letter to Manuel on Kenyon's behalf on September 9 and advised Kenyon that his best course of action at that time was to sue Manuel for $583 in small claims court. [¶ 9.] Manuel responded with a letter to Wilka dated September 19, 1993 and a copy of the videotape. In the letter, he stated that "it appears this may have been the first time [Kenyon] has ever ventured past cleaning chimneys to actually attempting repair work." In referring to the videotape, he stated in the letter that one reaction is "of course, to show it to someone else. It's a human trait to share laughter and unbelievable happenings with others—like `hey, you guys, you have got to see this.' " He further stated in the letter that he showed the videotape to "two fire insurance underwriters, the [Sioux Falls] Fire Protection Bureau (great interest shown here), Orlan Norgaard ( [Sioux Falls] fire chief), the city inspector's office (great interest shown here), a firm that specializes in fireplace installation, and a housing contractor." Manuel concluded that Kenyon owed him $252, the amount he paid another contractor to "undo the exterior damage" Kenyon did to his roof.

[¶ 10.] On September 21, Kenyon received a phone call from Ron Bell, the city building inspector, who asked him to come to City Hall immediately. Bell told him that he "better start pulling permits out" so his work can be inspected.

[¶ 11.] Two weeks later, Kenyon received a second billing from Manuel. He also heard that Manuel was contacting more people about the quality of his work. Kenyon feared that the videotape and Manuel's statements about him were harming his reputation and his business.

[¶ 12.] On October 9, 1993, Kenyon sued Manuel for slander and intentional infliction of emotional distress seeking $10,000 in compensatory damages and $100,000 in punitive damages. Manuel counterclaimed alleging he was entitled to $252 for breach of contract and an undetermined amount for emotional damages and $100,000 in punitive damages for malicious prosecution. The circuit court dismissed the malicious prosecution claim without prejudice because it was premature.²

[¶ 13.] In late fall of 1994, Wilka contacted Bell and inquired about Manuel's contacts with him and other city officials. Bell commented to Wilka that Manuel was angry when he showed him the videotape and that "he sure had plenty to say about Mr. Kenyon, and none of it good." After speaking with Kenyon, Bell told Manuel that "the shingles obviously were not installed in accordance with the building code," but that there was also "some type of lack of communication" between the two regarding the temporary nature of the repair work. Bell later told Wilka that he thought Manuel brought the videotape down to City Hall and showed it to various officials in order to "make Kenyon look like shit."

[¶ 14.] After the depositions were taken, Kenyon brought a motion to dismiss the entire case. Manuel did not oppose the motion. Kenyon's complaint and Manuel's counterclaim were dismissed without prejudice.

[¶ 15.] Despite the dismissal, Kenyon then filed a breach of contract claim for $583 in small claims court. Manuel filed a petition to remove the claim to circuit court. Wilka filed an amended complaint eliminating slander but asserting breach of contract and intentional infliction of emotional distress. He sought $10,000 in compensatory damages and $100,000 in punitive damages. Manuel asserted his breach of contract claim for $252. On the eve of trial, in November of 1995, the parties agreed to a dismissal of these claims with prejudice. The settlement was approved by the circuit court.

[¶ 16.] On July 15, 1997, Manuel sued Kenyon and attorney Wilka for malicious prosecution claiming compensatory and punitive damages, in amounts to be determined at trial.³ Wilka motioned for summary judgment for defendants, which was granted on June 8, 1999. Manuel appeals raising three issues.

STANDARD OF REVIEW

[¶ 17.] Our standard of review for summary judgment is well established and briefly is "whether a genuine issue of material fact exists and whether the law was correctly applied." Parmely v. Hildebrand, 1999 SD 157, ¶ 7, 603 N.W.2d 713, 715-16 (citations omitted).

MALICIOUS PROSECUTION

[¶ 18.] "A malicious prosecution is one that is begun in malice, without probable cause to believe it can succeed, and which finally ends in failure." Specialty Mills v. Citizens State Bank, 1997 SD 7, ¶ 9, 558 N.W.2d 617, 620 (quoting Kunz v. Johnson, 74 S.D. 577, 582, 57 N.W.2d 116, 119 (1953) (citation omitted)). Malicious prosecution requires six elements:

1. The commencement or continuance of an original criminal or civil judicial proceeding;

2. [I]ts legal causation by the present defendant against plaintiff, who was defendant in the original proceeding;

3. [I]ts bona fide termination in favor of the present plaintiff;

4. [T]he absence of probable cause for such proceeding;

5. [T]he presence of malice; and

6. [D]amages conforming to legal standards resulting to plaintiff.

Id. (quoting Miessner v. All Dakota Ins. Associates, Inc., 515 N.W.2d 198, 200 (S.D. 1994) (citations omitted)). If the plaintiff cannot sustain any one of the six elements, the action fails.

[¶ 19.] Defendants argued in trial court for summary judgment that Manuel could not satisfy element 4), an absence of probable cause, and 5), the presence of malice. The trial court agreed and also determined that element 3), favorable termination to Manuel, was missing.

[¶ 20.] 1. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THE DISMISSAL OF THE PRIOR ACTION WAS "NOT FAVORABLE" TO MANUEL.

[¶ 21.] Attorney Wilka motioned for summary judgment for defendants on the grounds that he had probable cause to bring the slander action and that there was no showing of malice. He did not raise the matter of favorable termination, which is a question of law. The trial court, however, raised the issue sua sponte and concluded:

Neither party to this action can properly claim to have been the victor in the proceedings that have taken place here.... The withdrawal of Kenyon's claim did not result from a lack of probable cause, but through a mutual agreement between the

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