Owen v. Shores
| Decision Date | 17 July 1975 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 537 P.2d 978,24 Ariz.App. 250 |
| Parties | 'Jerry' Oliver B. OWEN, Appellant, v. V. E. SHORES, J. R. Gressit, S. A. Weedle, L. G. Gilmore, the Arizona District Council of the Assemblies of God, General Adjustment Bureau, Inc., a New York Corporation, Carlson Claims Service, an Arizona Corporation, Carlson Claims, Inc., aka Carlson Claims Service, Joe Bush, Thomas J. Wallace, Walter Conklin, R. J. Thurmond, Bartlett Peterson, and William O. Vickery, Appellees. 2459. |
| Court | Arizona Court of Appeals |
The sole question presented on this appeal relates to when the appellant's alleged claim for malicious prosecution accrued. If it accrued upon the expiration of the time for the filing of a motion for rehearing relating to the Court of Appeals opinion reversing appellant's prior conviction, then appellant's malicious prosecution claim is admittedly barred by the one year statute of limitation provided by A.R.S. § 12--541(1). On the other hand, if it did not accrue until the subsequent issuance of the Court of Appeals mandate in that appeal, then appellant's complaint was timely filed and not subject to the limitations bar.
In the underlying criminal proceeding appellant was convicted in the trial court of the crimes of arson, arson with intent to defraud insurer, and conspiracy. He appealed and Division 2 of this Court reversed the convictions. See State v. Owen, 3 Ariz.App. 509, 415 P.2d 907 (1966). The Court of Appeals opinion was filed and mailed to the parties on June 27, 1966, and the time for the filing of a motion for rehearing by the state expired on July 12, 1966, without any rehearing motion being filed. Thereafter, on July 25, 1966, the Clerk issued the appellate court mandate to the trial court. The mandate stated:
'ORDERED that the judgment of the Superior Court of Pima County on appeal is reversed and the case is dismissed and the bond is exonerated.' 1
On July 19, 1967, which was less than one year after the issuance of the mandate, the appellant filed his complaint for malicious prosecution based upon the above-described criminal proceedings.
The plaintiff in a malicious prosecution action in order to state a valid cause of action must allege a prior prosecution against himself and that the proceedings have terminated in his favor. Overson v. Lynch, 83 Ariz. 158, 317 P.2d 948 (1957); Meadows v. Grant, 15 Ariz.App. 104, 486 P.2d 216 (1971). The plaintiff's claim accrues when the prior proceedings have terminated in his favor. Sullivan v. O'Brien, 85 S.W.2d 1106 (Tex.Civ.App.1935); Board of Education of Miami Trace Local School District v. Marting, 88 Ohio L. Abstract 475, 185 N.E.2d 597 (1962); Babb v. Superior Court of Sonoma County, 3 Cal.3d 841, 92 Cal.Rptr. 179, 479 P.2d 379 (1971). A malicious prosecution action filed prior to the favorable termination of the criminal proceeding is premature and subject to dismissal. Sullivan v. Choquette, 420 F.2d 679 (1st Cir. 1969); Gaito v. Strauss, 249 F.Supp. 923 (W.D.Pa.1966); Slaff v. Slaff, 151 F.Supp. 124 (S.D.N.Y.1957).
Thus the question in this case becomes, was the prior proceeding terminated in defendant's favor at the expiration of the time for the filing by the state of a motion for rehearing? The appellees urge in support of the trial court's judgment dismissing appellant's complaint that a criminal proceeding has terminated sufficiently to allow the filing of a malicious prosecution action when the prosecutor can proceed no further against the defendant in the same action. From this premise, the appellees conclude that upon the expiration of the time for the filing of the motion for rehearing, the state's right to further prosecute appellant in the criminal proceeding terminated.
We agree that upon the expiration of the time for the filing of the motion for rehearing, the state's right to further prosecute appellant in that proceeding terminated. However, this does not necessarily mean that appellant's malicious prosecution claim accrued at that time. All of the authorities of which this Court is aware hold that the prior prosecution Proceeding itself must have terminated, and do not allow the filing of a complaint at some point prior to the termination of the proceeding when the prosecutor could proceed no further against the defendant. It is true that in Jaffe v. Stone, 18 Cal.2d 146, 114 P.2d 335 (1941), a case heavily relied upon by appellees, the California Supreme Court stated, quoting from a prior California decision:
'Consequently, the refusal of the grand jury to file an indictment, a nolle prosequi, or any proceeding by which the particular prosecution is disposed of in such a manner that it cannot be revived, And that the prosecutor, if he intends to proceed further, must institute proceedings de novo, is a sufficient termination of the prosecution to enable the plaintiff to bring his action.' (Emphasis added). 114 P.2d at 341.
However, when this statement is reviewed in the context of the facts in Jaffe, it is obvious that the California court did not intend the meaning urged by appellees. In Jaffe, there was no question but that the prior Proceedings had been formally terminated by the granting of motions to dismiss by a magistrate on the grounds of insufficient evidence at the conclusion of a preliminary hearing. The real issue in Jaffe was whether the termination of the proceedings was a termination Favorable to the accused, with the contention being that there could be no such Favorable termination as long as the accused could again be charged and prosecuted for the same crime. In considering this issue, and after discussing some anomalous cases apparently contrary to the mainstream of the many California decisions in point, the Jaffe court stated:
'The explanation for these holdings lies in a curious misconception of the notion of 'finality'. Mistaken emphasis is placed upon the idea of 'final' rather than 'favorable' termination; And the offense is confused with the proceeding.
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'The correct rule is set forth in the Restatement of Torts, sec. 659, Comment a, as follows: 'In order that there may be a sufficient termination in favor of the accused it is not necessary that the proceedings should have gone so far as to preclude further prosecution on the ground of double jeopardy. Hence, although the quashing of an indictment does not preclude the initiation of new proceedings for the same offense or for other charges growing out of the same misconduct on the part of the accused, it constitutes a termination of the original proceedings in favor of the accused unless such new proceedings have been initiated before the trial of the civil action. * * *"
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