Nassar v. Concordia Rod and Gun Club, Inc.

• Citation: 682 So.2d 1035
• Decision Date: 24 October 1996
• Docket Number: No. 93-CA-00187-SCT,93-CA-00187-SCT
• Parties: Michael A. NASSAR v. CONCORDIA ROD AND GUN CLUB, INC.
• Court: United States State Supreme Court of Mississippi

Page 1035

682 So.2d 1035

Michael A. NASSAR v. CONCORDIA ROD AND GUN CLUB, INC.

No. 93-CA-00187-SCT.

Supreme Court of Mississippi.

Oct. 24, 1996.

Robert G. Johnston, Alexander, Johnston & Alexander, Cleveland, for appellant.

Richard L. Kimmel, Upshaw Williams Biggers Beckham & Riddick, Greenwood, for appellee.

Before DAN LEE, C.J., and PITTMAN and JAMES L. ROBERTS, Jr., JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

This case presents the Court with a de novo review, while applying an objective reasonableness standard, of a factual scenario involving the decision of a citizen to file a criminal affidavit against another thought to have committed the misdemeanor crime of shooting a firearm from the Mississippi River levee near Gunnison, Mississippi. The crux of the case presented to the Court on summary judgment concerns whether the defendant, Robert Canady, an employee of Concordia Rod & Gun Club, Inc. [hereinafter Concordia], had an objectively reasonable belief, i.e., probable cause, after conducting what is alleged as an unreasonable inquiry, that the plaintiff, Mike Nassar, was the correct person to file charges against for the undisputed violation.

The facts reveal that Canady should have more thoroughly investigated the identity of the unknown shooter given the conflicting evidence he had prior to filing the charges. ¹ Because the facts were not in dispute as to what happened to whom and when, the determination of probable cause in this malicious prosecution case was the trial judge's decision. ² Accordingly, the trial judge, and now this Court, had to determine, while applying an objective reasonableness standard, whether or not Canady acted reasonably in his inquiry to establish an objectively reasonable ground to believe that the unknown shooter was Mike Nassar.

The facts revealed that at the time Canady filed the affidavits, he had apparently spoken with three persons to try and identify the nameless shooter. One of the three felt that Mike Nassar had to have been that person. Another of the three expressed reservations about the identity after initially agreeing that Mike Nassar was the nameless shooter. The third individual also thought that Mike Nassar was the shooter, but subsequently expressed reservation about the correct identity which was based upon six-year-old information.

Prior to filing charges, Canady and the others apparently knew where the suspected individual, Mike Nassar, resided and could be located, ³ which was approximately fifteen miles away, but yet did not attempt to "eye-ball" Mike Nassar to verify their suspicions. Accordingly, the question to determine the issue in this case becomes whether or not Canady should have tried to "eye-ball" Mike prior to filing charges. Given the circumstances, namely that there were conflicting opinions and that the burden of locating the suspect to make sure that the correct person was charged was not beyond the realm of reason, Canady did not have an objectively reasonable basis to have probable cause to file the charges against Mike Nassar. Therefore, the case must be reversed and remanded in part regarding actual damages.

An additional issue regarding Nassar's pursuit of punitive damages must be rendered in favor of Concordia. The record, Nassar's deposition, reveals that he did not believe that Canady was filing the charges for any reason other than to fulfill his civic duty and employment obligations. Accordingly, the record does not support the possibility of punitive damages. Therefore, the punitive damage request is rendered in favor of Concordia and will not be considered on remand.

STATEMENT OF THE CASE

The procedural history of this case began on August 20, 1990, with the filing of a complaint by Michael A. Nassar in the Circuit Court of the Second Judicial District of Bolivar County, Mississippi. The complaint alleged that Robert Canady, as an agent of Concordia, was liable for false arrest and malicious prosecution. Nassar sought $250,000 in actual damages and $500,000 in punitive damages. The alleged damages stemmed from Nassar's December 4, 1989, arrest for shooting a firearm from the levee.

Concordia filed its answer on September 27, 1990, denying any liability. Discovery commenced including, but not limited to, interrogatories, depositions, request for admissions and production of documents. Concordia subsequently filed its motion for summary judgment on April 2, 1992. Nassar responded to the motion, and after briefing said motion, it was heard on February 17, 1993, by the Honorable Elzy J. Smith. Upon hearing all of the evidence and arguments presented, Judge Smith rendered an opinion and order granting Concordia's motion for summary judgment wherein he held that there was no issue as to the following material facts followed by his analysis and holding:

1. On or about December 1, 1989, Bobby Canady was employed as a caretaker by Defendant. 2. On the same date, Canady resided adjacent to the Mississippi River levee near Dennis Landing and heard gunshots being fired from the levee near his home. 3. It is a misdemeanor to fire guns and hunt from a motorized vehicle off the mainline Mississippi River levee. 4. After hearing the shots, Bobby Canady investigated the incident and stopped the vehicle from which the shots were fired and requested the names and addresses of the two occupants of the vehicle. 5. The driver of the vehicle identified himself as Buck Burroughs and told him he resided in Shelby, Mississippi. The passenger in the vehicle refused to provide Mr. Canady with his name and address. 6. Subsequent to the incident, Mr. Canady undertook to determine the correct name and address of the occupant of the Burroughs' vehicle and was advised by at least one other person, Red Yarborough, a long time caretaker of a hunting club near where the incident occurred, that the occupant who refused to identify himself was Plaintiff, Michael A. Nassar. 7. Canady, after investigation, believed in good faith that the unidentified occupant of the Burroughs' vehicle was Michael A. Nassar and filed charges in the Bolivar County Justice Court against Buck Burroughs and Michael Nassar charging them with hunting from the Mississippi River levee. 8. A warrant was issued for Plaintiff's arrest and he was arrested for the charge. 9. Prior to the Justice Court hearing and within a few days of after the Affidavit was signed, Mr. Canady was advised that plaintiff was not, in fact, the occupant of the vehicle but the correct name of the occupant was John William Nassar, a cousin of Plaintiff, who also resided in Shelby, Mississippi. 10. Mr. Canady then immediately called the Justice Court to have the charges dismissed and was advised by the Justice Court Judge that the charges had in fact been dismissed against the Plaintiff. 11. Plaintiff was not required to defend the charges brought against him. 12. Another Affidavit was filed against John William Nassar and he was ultimately arrested and both he and Buck Burroughs plead guilty to the charges. 13. Plaintiff admitted in his deposition that he did not believe that Bobby Canady acted with malice. Nassar also stated that he did not believe Bobby Canady had any ill will toward him. ⁴

The elements of malicious prosecution are: (1) The institution or continuation of original judicial proceedings, either criminal or civil; (2) By, or at the instance of the defendant; (3) Determination of such proceedings in Plaintiff's favor; (4) Malice in instituting the proceeding; (5) Want or probable cause for the proceeding; and (6) The suffering of damage as a result of the action or prosecution. Page v. Wiggins, 595 So.2d 1291, 1293 (Miss.1992); Strong v. Nicholson, 580 So.2d 1288, 1293 (Miss.1991); Mississippi Road Supply v. Zurich-American Ins. Co., 501 So.2d 412, 414 (Miss.1987); Royal Oil Company, Inc., v. Wells, 500 So.2d 439, 442 (Miss.1986); Pugh v. Easterling, 367 So.2d 935, 937 (Miss.1979).

While several of the elements of malicious prosecution can be found in this case, the fourth and fifth elements cannot be found. To determine if the defendant acted with malice, the Court must look to the defendant's subjective state of mind. (Fn # 1. The defendant denies that Canady acted within the scope of his employment, but the Court sees no need to address that issue in this opinion since the Plaintiff's claims fail for the other reasons set forth in this opinion.) Page v. Wiggins, supra; Owens v. Kroger Co., 430 So.2d 843, 846 (Miss.1983). As the Mississippi Supreme Court stated in the Page case, the term "malice" is used in an artificial and legal sense and applied to prosecutions instituted primarily for purposes other than that of bringing an offender to justice. The plaintiff has offered no facts to support that Canady acted with malice. There is no suggestion that Canady acted with any motive other than as a law abiding citizen attempting to see that law violators were brought to justice. As in the Page case, Nassar admitted that Canady neither knew him nor had ever been acquainted with him prior to the night of the incident in question. Mr. Canady's explanation of the incident leading to the charge and the ultimate arrest of plaintiff is uncontradicted. The facts clearly indicate that Mr. Canady acted in good faith in bringing the charges. It was simply a case of mistaken identity.

The Court is also of the opinion that Mr. Canady acted with probable cause. Plaintiff does not offer facts which dispute Canady's claim that he honestly believed that at the time the charges were filed against Plaintiff, that he was guilty. The investigation conducted by Canady gave him reasonable grounds for such belief. Accordingly, Canady had probable cause to file the charges against Nassar.

The plaintiff has also charged defendant with false arrest which plaintiff concedes should actually be a charge of false imprisonment. To sustain a charge of false imprisonment, the plaintiff must prove that...