Parisi v. Michigan Townships Ass'n

• Decision Date: 06 May 1983
• Docket Number: Docket No. 61662
• Citation: 332 N.W.2d 587,123 Mich.App. 512
• Parties: Joseph A. PARISI, Jr., Plaintiff-Appellant, v. MICHIGAN TOWNSHIPS ASSOCIATION, a Michigan non-profit corporation, Defendant-Appellee. 123 Mich.App. 512, 332 N.W.2d 587
• Court: Court of Appeal of Michigan — District of US

Page 587

332 N.W.2d 587

Joseph A. PARISI, Jr., Plaintiff-Appellant, v. MICHIGAN TOWNSHIPS ASSOCIATION, a Michigan non-profit corporation, Defendant-Appellee.

Docket No. 61662.

123 Mich.App. 512, 332 N.W.2d 587

Court of Appeals of Michigan.

Submitted Nov. 5, 1982.

Decided Feb. 25, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 513] Thomas Emmett Woods, Lansing, for plaintiff-appellant.

Foster, Swift, Collins & Coey, P.C. by Theodore W. Swift and Stephen O. Schultz and Leonora K. Baughman, Lansing, for defendant-appellee.

Before HOLBROOK, P.J., and ALLEN and TAHVONEN, ^* JJ.

PER CURIAM.

Does the two-year statute of limitations governing a malicious prosecution action begin to run when the trial court enters judgment in the alleged maliciously prosecuted action or, where an appeal is taken, when the appellate decision is rendered? On December 7, 1981, the trial court ruled that the action accrued at the time the circuit court judgment was entered and granted defendant's motion for accelerated judgment. Plaintiff appeals as of right. This question of first impression in Michigan comes to us upon an [123 MICHAPP 514] agreed statement of facts which has been submitted for purposes of this appeal.

In March 1975, Joseph A. Parisi, Jr. (plaintiff), left his position as Executive Director of Michigan Townships Association (defendant). The association filed suit against Parisi on December 11, 1975, alleging that Parisi had misappropriated the association's funds and committed other wrongful acts. A jury verdict was rendered in Parisi's favor and judgment was entered May 3, 1979. The association appealed that judgment and this Court affirmed the jury verdict in an unpublished per curiam opinion released July 8, 1980. On September 16, 1981, Parisi filed the instant action against the association for malicious civil prosecution. The association moved for and was granted an accelerated judgment because the statute of limitations had run. The parties agree that the limitations period is two years pursuant to M.C.L. Sec. 600.5805; M.S.A. Sec. 27A.5805. The dispute is whether the action accrued May 3, 1979, when the circuit court judgment was entered, as the lower court ruled in the instant case, or whether it accrued July 8, 1980, when this Court's opinion affirming the circuit court's judgment was rendered. We hold that the action accrued on July 8, 1980, and reverse.

As a general rule, tort actions accrue when all the elements of a cause of action have occurred and can be alleged in a proper complaint. Campbell v. Detroit, 51 Mich.App. 34, 214 N.W.2d 337 (1973); Lefever v. American Red Cross, 108 Mich.App. 69, 310 N.W.2d 278 (1981). The elements of a malicious prosecution action are (1) a prior proceeding terminated in favor of the present plaintiff, (2) absence of probable cause for those proceedings, (3) a purpose for bringing the prior proceedings other than that of securing the proper adjudication[123 MICHAPP 515] of the claim, and (4) injury, including special injury. Friedman v. Dozorc, 412 Mich. 1, 48, 312 N.W.2d 585 (1981).

Courts of other jurisdictions which have considered this issue are divided on whether the first element, termination of the prior proceeding in favor of the present plaintiff, occurs upon rendition of the judgment in the original action or when the appeal is decided. See cases collected in Anno, 41 A.L.R.2d 863, and Anno, 87 A.L.R.2d 1047. In Commercial Credit Corp. v. Ensley, 148 Ind.App. 151, 264 N.E.2d 80 (1970), the Indiana Court of Appeals, when faced with the exact issue raised here, said:

"In Indiana, under our statutory appeal, the suit is not legally terminated until it has been finally decided by our court of appeals to which it is finally submitted, and its opinion certified to the trial court.

"Appellant also relies upon Waring v. Fletcher, 152 Ind. 620, 52 N.E. 203 (1899). Appellant cites Waring for the proposition that an appeal in the State of Indiana, without filing an appeal bond, does not suspend the judgment from which the appeal is taken. We are in complete agreement with that statement and agree that it is the law in Indiana. However, that is not the issue here--the question to be decided in this appeal is when the action for malicious prosecution accrued.

"Where a litigant is prevented from enforcing his remedy because of pending legal proceedings, the time during which he is thus prevented will not be counted against him in determining whether a statute of limitations has barred his action. * * *

"It is true that appellees could have filed the suit for malicious prosecution before the outcome of the pending appeal--instituted by appellant--was known. We are of the opinion, however, that appellees could not have enforced their remedy until final disposition of the attachment proceedings [the underlying action] * * *. To hold appellees' action was barred by the statute of [123 MICHAPP 516] limitations would have the effect of forcing parties to initiate litigation with the full knowledge that it may be made groundless. This we will not do.

"We are in agreement with Comment on Clause (b) of 3 Restatement, Torts, Sec. 674, at 444-445 (1938), which is as follows:

" 'g. Termination in favor of the person against whom civil proceedings are brought. Civil proceedings may be terminated in favor of the person against whom they are brought under the rule stated in Clause (b), (1) by the favorable adjudication of the claim by a competent tribunal, or (2) by the withdrawal of the proceedings by the person bringing them, or (3) by the dismissal of the proceedings because of his failure to prosecute them. A favorable adjudication may be by a judgment rendered by a court after trial or upon demurrer or its equivalent. In either case the adjudication is a sufficient termination of the proceedings, unless an appeal is taken. If an appeal is taken, the proceedings are not terminated until the final disposition of the appeal and of such further proceedings as it may entail.' (Emphasis supplied).

"Our decision regarding the statute of limitations is only applicable to suits for malicious prosecution. Justice would be defeated if we were to hold that the statute of limitations began to run before an essential element of malicious prosecution, final termination in favor of the plaintiff, occurred." 148 Ind.App. 160-161, 264 N.E.2d 85-86. (Emphasis in original).

In Levering v. National Bank of Morrow County, 87 Ohio St. 117, 100 N.E. 322 (1912), the Ohio Supreme Court appears to have reached a contrary result:

"The general rule is that until the original suit between the parties has been legally terminated in favor of the plaintiff in the malicious prosecution action, the latter has no remedy, because until that point is reached no presumption of malice and want of probable cause arises. That presumption arises eo instante when the court which has jurisdiction of the original [123 MICHAPP 517] action renders judgment for the defendant, the plaintiff in the malicious prosecution case. A proceeding in error could not affect the right of the defendant to bring his action for malicious prosecution; because if the judgment in his favor should be affirmed by the reviewing court, the presumption in his favor continues, and if the judgment should be finally reversed, that may be pleaded as a defense to the pending action for malicious prosecution. The pendency of a proceeding in error may be a good...