Meadows v. Grant

• Decision Date: 24 June 1971
• Docket Number: No. 1,CA-CIV,1
• Citation: 15 Ariz.App. 104,486 P.2d 216
• Parties: Della MEADOWS and Safford J. Meadows, her husband, Appellants, v. Homer K. GRANT, Appellee. 1252.
• Court: Arizona Court of Appeals

Page 216

486 P.2d 216

15 Ariz.App. 104

Della MEADOWS and Safford J. Meadows, her husband, Appellants, v. Homer K. GRANT, Appellee.

No. 1 CA-CIV 1252.

Court of Appeals of Arizona, Division 1, Department B.

June 24, 1971.

Safford J. Meadows, Della Meadows, in pro. per.

Mangum, Wall & Stoops, by Richard K. Mangum, Daniel J. Stoops, Flagstaff, for appellee.

EUBANK, Judge.

Della and Safford Meadows, husband and wife, plaintiffs in the trial court and appellants here, filed their claim against Homer K. Grant, defendant in the trial court and appellee here, alleging two counts of malicious prosecution which arose out of the arrest of Della Meadows on two separate occasions--May 10, 1967 and June 8, 1967--in the city of Flagstaff. The defendant answered and denied that the arrests were the result of malice on his part and alleged, affirmatively, that probable cause for both arrests existed. He also counterclaimed against the plaintiffs. The counterclaim was dismissed by the trial court and is not before us on this appeal.

With the issues joined, plaintiffs and defendant entered into a Pretrial Stipulation which was approved by the court on April 28, 1969. It provided, in part, that:

'The uncontested facts are that Della Meadows was arrested on two complaints procured by the Defendant, Homer K. Grant; that the two complaints were filed against Plaintiff, both of which were dismissed in favor of the Plaintiff.'

This stipulation established and proved the first two elements, of the necessary four elements, that constitute a claim in malicious prosecution, namely: (1) A criminal proceeding instituted or conducted by defendant against the plaintiffs; (2) The termination of the proceedings in favor of the accused; (3) The absence of probable cause from the proceeding; and (4) The presence of malice, or a primary purpose other than that of bringing an offender to justice. Lantay v. McLean, 2 Ariz.App. 22, 406 P.2d 224 (1965). Of the two issues remaining, probable cause is primarily a question of law to be determined by the Court, although where a conflict of facts is involved, the factual basis may be determined by the trier of fact (Sarwark Motor Sales, Inc. v. Woolridge, 88 Ariz. 173, 354 P.2d 34 (1960); Todd v. Melcher, 11 Ariz.App. 157, 462 P.2d 850 (1970)), while the issue of malice is a question for the trier of fact. Prosser, Torts (3rd Ed.1964) pp. 866--867, § 113.

On April 28, 1969 the matter was tried to the court sitting without a jury. Following the trial extensive memoranda were submitted by the parties for consideration by the trial court in arriving at its judgment. The court found in favor of the defendant and against the plaintiffs and the formal written judgment was filed on September 2, 1969. It is from this judgment that plaintiffs appeal.

The questions raised by plaintiffs on appeal are as follows:

'(1) Did Defendant on April 10, 1967, maliciously and without probable cause, procure and have executed a false complaint charging Della Meadows with destruction of real property in the Police Court of the City of Flagstaff, County of Coconino, State of Arizona?

and '(2) Did Defendant on June 8, 1967, maliciously and without probable cause, procure and have executed a false complaint charging Della Meadows with disturbing the peace in the Police Court of the City of Flagstaff, County of Coconino, State of Arizona? and if so,

'(3) (If either of the above are answered affirmatively) What are Della Meadows' damages?'

The plaintiffs' brief contains and extensive analysis and discussion of the evidence introduced at the trial supporting the plaintiffs' contentions, and supporting their contention for an affirmative answer to questions (1) and (2). The trial court obviously found the facts differently and, in effect, by awarding the defendant judgment, answered the plaintiffs' questions in the negative. Since neither party requested that the trial court make findings of fact and conclusions of law, we must draw all inferences which arise from the evidence introduced at the trial in favor of sustaining the judgment. Rosen v. Hadden, 81 Ariz. 194, 303 P.2d 267 (1956); Kay v. Biggs ,13 Ariz.App. 172, 475 P.2d 1 (1970).

Due to the stipulation entered into by the parties prior to trial, we need only review the sufficiency of the evidence introduced at the trial to support the trial court's implied finding of a lack of malice and presence of probable cause on defendant's part.

The defendant was originally the sole stockholder of the H and G Restaurants Incorporated, which operated under a lease the Branding Iron Restaurant and Cocktail Lounge, located in the city of Flagstaff. In February, 1966, the plaintiff-husband Safford J. Meadows was employed by the defendant as the manager of the Branding Iron. In June Mr. Meadows purchased eleven (11) percent of the H and G Restaurants Incorporated corporate stock from the defendant and continued to work as manager of the Branding Iron, with a salary, until August 1967. During his period of employment as manager, it was agreed between the defendant and plaintiff-husband that in order to meet competition they would employ 'go-go dancers' for the cocktail lounge, which they did. The plaintiff-wife strongly objected to the employment of such dancers on moral grounds and commenced a personal campaign of mild harassment to accomplish their elimination. Two of these activities resulted in the arrests here in question.

The first arrest occurred on April 10, 1967, when the plaintiff-wife appeared at the Branding Iron and observed a large sign advertising the appearance of a belly dancer and tore it off the wall. The defendant contacted the city magistrate and gave him these facts. The city magistrate advised the defendant the plaintiff-wife had violated A.R.S. § 13--501, the Destruction of Real Property, and a complaint charging her with this violation was prepared and executed by the defendant. The plaintiff-wife was then arrested. The matter came on for trial and during the proceedings it became apparent that the charge against the plaintiff should have been for destroying personal property rather than real property and the charge was dismissed.

The second arrest occurred two months later on June 8, 1967. This event resulted from an altercation between the plaintiff-wife and a go-go dancer at the cocktail lounge. The defendant, although not present when the event took place, interviewed the witnesses and then asked the plaintiff-wife to leave the premises. When she refused to go, the defendant telephoned the city attorney and told him the circumstances and requested his advice. The city attorney advised him to file a 'Disturbing the Peace' (A.R.S. § 13--371) complaint against her. The defendant did, and at the trial on June 21, 1967 she was found guilty as charged. This conviction was appealed and later reversed due to the failure of the prosecutor to file an ordered Bill of Particulars.

The record shows that plaintiff-wife candidly admits the foregoing and primarily bases her right to involve herself in the management of the Branding Iron on the basis of the eleven (11) percent stock interest owned by plaintiffs. It is well established in Arizona that stock ownership does not in and of itself vest the stockholder with any right or...