Preiser v. MacQueen

• Citation: 352 S.E.2d 22,177 W.Va. 273
• Decision Date: 10 April 1986
• Docket Number: No. 16620,16620
• Parties: Stanley E. PREISER v. The Honorable A. Andrew MacQUEEN, Judge, Circuit Court of Kanawha County, and the Daily Gazette Company, Inc. (Intervenor).
• Court: Supreme Court of West Virginia

Page 22

352 S.E.2d 22

177 W.Va. 273

Stanley E. PREISER v. The Honorable A. Andrew MacQUEEN, Judge, Circuit Court of Kanawha County, and the Daily Gazette Company Inc. (Intervenor).

No. 16620.

Supreme Court of Appeals of West Virginia.

Submitted April 23, 1985.

Decided June 12, 1985.

Rehearing Denied July 10, 1985.

Concurring and Dissenting Opinion

April 10, 1986.

Syllabus by the Court

1. "To maintain an action for malicious prosecution it is essential to prove (1) that the prosecution was malicious, (2) that it was without reasonable or probable cause, and (3) that it terminated favorably to plaintiff." Syl. pt. 1, Lyons v. Davy-Pocahontas Coal Co., 75 W.Va. 739, 84 S.E. 744 (1915).

2. An action for malicious prosecution must be brought within one year from the termination of the action alleged to have been maliciously prosecuted. In particular, where an action is dismissed pursuant to W.Va.R.Civ.P. 41(b) for delinquency in the payment of accrued court costs, with leave to reinstate within three terms after entry of the order of dismissal, an action alleging that the dismissed action was maliciously prosecuted must be brought within one year from the expiration of the three terms, rather than within one year from the entry of the order of dismissal.

3. An action for abuse of process must be brought within one year from the time the right to bring the action accrued.

Jeremy C. McCamic, McCamic & McCamic, Wheeling, for petitioner.

No appearance for respondent.

Rebecca A. Baitty & Rudolph L. DiTrapano, DiTrapano & Jackson, Charleston, for intervenor The Daily Gazette Co., Inc.

McHugh, Justice:

In this action in prohibition, the petitioner, Stanley E. Preiser, seeks to prohibit the Honorable A. Andrew MacQueen, Judge of the Circuit Court of Kanawha County, West Virginia, from proceeding further in the case of Daily Gazette Company v. Preiser, Civil Action No. CA-81-2900. The petitioner contends that the Gazette case is barred by the statute of limitations. In February 1985, we directed the respondent judge to show cause why relief in prohibition should not be awarded. By order entered in April 1985, The Daily Gazette Company was granted leave to intervene. This Court has before it the petition, all matters of record and the briefs and argument of counsel.

I

In June 1970, The Daily Gazette Company (hereinafter "Gazette") began to publish a series of newspaper articles which alleged that various members of the police department of Charleston, West Virginia, were guilty of misconduct. In 1970 and 1971, the petitioner, an attorney representing three members of that police department, instituted in the Circuit Court of Kanawha County five separate actions for libel against the Gazette. Those actions were Civil Action Nos. 16,795-c, 16,797-c, 16,796-c, 10,578 and 10,579. The plaintiffs in those actions were Robert L. Crouse, Peter J. Biagi and Dallas W. Bias.

Plaintiff Bias died on July 7, 1971. His action against the Gazette (No. 16,796-C) was dismissed on April 20, 1973.

Thereafter, by orders entered on August 14 and 15, 1979, the remaining four actions against the Gazette, involving plaintiffs Crouse and Biagi, were dismissed. As those orders state, the four actions were "dismissed and retired from the docket with leave to reinstate...." As the record indicates, the four actions were dismissed for delinquency in the payment of accrued court costs. W.Va.R.Civ.P. 41(b); W.Va.Code, 56-8-9 [1931]; W.Va.Code, 56-8-12 [1931]; W.Va.Code, 56-8-13 [1967]. Neither those four actions, nor the Bias action, were reinstated in circuit court.

On July 14, 1981, in the Circuit Court of Kanawha County, Daily Gazette Company v. Preiser, No. CA-81-2900, was filed. In that action, the Gazette asserted that the five above-described libel actions filed by the petitioner against the Gazette constituted malicious prosecution and an abuse of process. The Gazette seeks damages against the petitioner in the amount of $25,000 and costs.

The petitioner, in his answer and motion to dismiss the complaint, alleged, inter alia, that the Gazette's actions for malicious prosecution and abuse of process are barred by the statute of limitations. By order entered on March 11, 1982, the respondent, Judge of the Circuit Court of Kanawha County, denied the petitioner's motion to dismiss. ¹ The petitioner seeks in this Court to prohibit the respondent judge from proceeding further in the Daily Gazette Company v. Preiser action.

II

The issue before this Court is whether the Daily Gazette Company v. Preiser action, filed in the Circuit Court of Kanawha County, is barred by the "statute of limitations." ² The petitioner, contending that the Gazette action is barred, seeks relief in prohibition. The intervenor, The Daily Gazette Company, contends that the Gazette action was timely filed.

Inasmuch as the complaint in the Gazette action alleges both malicious prosecution and abuse of process, we look to the nature of those causes of action in considering relief in prohibition.

III

This Court discussed malicious prosecution in Van Hunter v. Beckley Newspapers Corporation, 129 W.Va. 302, 40 S.E.2d 332 (1946). In Van Hunter, a newspaper corporation instituted a mandamus proceeding against the Clerk of the Circuit Court of Raleigh County, West Virginia, to gain access to certain records concerning divorce litigation. The newspaper corporation was unsuccessful in that mandamus proceeding. Thereafter, the clerk brought an action against the newspaper corporation for malicious prosecution. This Court noted: "To sustain an action ... for malicious prosecution of either a civil suit, action or proceeding, or a criminal charge, there must be a showing, from a preponderance of the evidence, of both malice and want of probable cause in the prosecution complained of." Van Hunter, syl. pt. 2.

Holding in favor of the newspaper corporation, this Court in Van Hunter concluded that there was an absence of "sufficient evidence to establish either malice or want of probable cause in the institution or the prosecution [by the newspaper corporation] of the mandamus proceeding...." 129 W.Va. at 311, 40 S.E.2d at 337.

Similarly, in Porter v. Mack, 50 W.Va. 581, 40 S.E. 459 (1901), in which the plaintiff alleged that the defendants had improperly utilized judicial proceedings to financially destroy the plaintiff's business, this Court indicated that an action for malicious prosecution must include the elements of "both malice and want of probable cause...." 50 W.Va. at 588, 40 S.E. at 462.

Moreover, the plaintiff in an action for malicious prosecution must show that the proceedings in question were terminated in his or her favor. See Lyons v. Davy-Pocahontas Coal Co., 75 W.Va. 739, 84 S.E. 744 (1915); syl. pt. 1, Porter, supra. This Court stated in syllabus point 1 of Lyons: "To maintain an action for malicious prosecution it is essential to prove (1) that the prosecution was malicious, (2) that it was without reasonable or probable cause, and (3) that it terminated favorably to plaintiff." ³

This Court has indicated that an action for malicious prosecution must be brought within one year from the time the right to bring the action accrued. Syl. pt. 10, Porter, supra. See also Duffy v. Ogden Newspapers, Inc., --- W.Va. ---, 294 S.E.2d 121, 122 (1982); Cavendish v. Moffitt, 163 W.Va. 38, 40, 253 S.E.2d 558, 559 (1979); Snodgrass v. Sisson's Mobile Home Sales, Inc., 161 W.Va. 588, 594, 244 S.E.2d 321, 325 (1978); syl. pt. 1, Vencill v. Flynn Lumber Company, 94 W.Va. 396, 119 S.E. 164 (1923).

In particular, we concur with the following language found in Annot., 87 A.L.R.2d 1047, 1059 (1963); "The general rule followed by most courts is that a cause of action for malicious prosecution of a civil suit accrues, for the purpose of starting the running of the statute of limitations, from the date that such suit terminated in favor of the party so prosecuted." Moreover, as stated in 52 Am.Jur.2d Malicious Prosecution § 115 (1970): "As a general rule, the statute of limitation[s] begins to run only from the termination of the action complained of, since it is only then that the injured party can sue for malicious prosecution."

In the proceeding before this Court, the libel actions alleged to have been maliciously prosecuted against the Gazette were dismissed by the circuit court on August 14 and 15, 1979. Those dismissals, for delinquency in the payment of accrued court costs, were entered pursuant to W.Va.R.Civ.P. 41(b), ⁴ which provides, in relevant part:

Any court in which is pending an action wherein for more than two years there has been no order or proceeding but to continue it, or wherein the plaintiff is delinquent in the payment of accrued court costs, may, in its discretion, order such action to be struck from its docket; and it shall thereby be discontinued. The court may direct that such order be published in such newspaper as the court may name. The court may, on motion, reinstate on its trial docket any action dismissed under this rule, and set aside any nonsuit that may be entered by reason of the nonappearance of the plaintiff, within three terms after entry of the order of dismissal or nonsuit; but an order of reinstatement shall not be entered until the accrued costs are paid.

As stated above, the libel actions were never reinstated.

The petitioner asserts that the one year statute of limitations, as to the Gazette's action for malicious prosecution, began to run in August, 1979 when the libel actions were dismissed, and that inasmuch as the Gazette action was not filed until July 14, 1981, the Gazette action is barred. Thus, the petitioner asserts that the running of the statute of limitations did not depend upon the expiration of "three terms after entry of the order[s] of dismissal." W.Va.R.Civ.P. 41(b).

The Gazette, however, contends that the statute of limitations did not begin to run upon the Gazette's claim of malicious prosecution...