Richmond v. Haney, 910298

• Citation: 480 N.W.2d 751
• Decision Date: 06 February 1992
• Docket Number: No. 910298,910298
• Parties: Donald RICHMOND, Plaintiff and Appellant, v. Thomas HANEY; City of Bismarck, a municipal corporation; Burleigh County, a governmental organization, Defendants and Appellees. Civ.
• Court: United States State Supreme Court of North Dakota

Page 751

480 N.W.2d 751

Donald RICHMOND, Plaintiff and Appellant, v. Thomas HANEY; City of Bismarck, a municipal corporation Burleigh County, a governmental organization Defendants and Appellees.

Civ. No. 910298.

Supreme Court of North Dakota.

Feb. 6, 1992.

Donald Richmond, pro se.

Kapsner and Kapsner, Bismarck, for defendant and appellee Burleigh County; argued by John C. Kapsner.

Charles C. Whitman (argued), City Atty., Bismarck, for defendants and appellees Thomas Haney and City of Bismarck.

ERICKSTAD, Chief Justice.

Donald Richmond appeals from the judgment of the District Court for Burleigh County, dismissing his complaint against Thomas Haney, the City of Bismarck, and Burleigh County. We affirm.

On March 29, 1990, Richmond, acting pro se, brought this action against Thomas Haney, the City of Bismarck, and Burleigh County, alleging, among other things, a claim for malicious prosecution. An amended complaint was filed on April 10, 1990, correcting a minor drafting error on Richmond's part. Haney and the City of Bismarck answered Richmond's complaint on April 12, 1990, denying liability and asserting as affirmative defenses that the complained of act was a discretionary act and accordingly immune from liability; that the complaint failed to state a claim upon which relief could be granted; and that the plaintiff had failed to follow a number of statutory pleading requirements. Burleigh County answered Richmond's complaint on April 11, 1990, and made an amended answer on April 12, 1990, denying liability and asserting as affirmative defenses that the complained of act was a discretionary act and accordingly immune from liability, and that the complaint failed to state a claim upon which relief could be granted. On April 18, 1990, the City of Bismarck and Haney moved to have that part of Richmond's complaint asking for punitive damages dismissed as not complying with the requirements of section 32-03.2-11, N.D.C.C. ¹ Richmond resisted the motion and, subsequently, on April 30, 1990, moved to amend his complaint to comply with section 32-03.2-11, N.D.C.C. Without a memorandum opinion, the trial court denied Richmond's motion to amend his complaint to include a claim for punitive damages, and granted Haney and the City's motion to dismiss the prior claim for punitive damages in Richmond's initial complaint. On March 28, 1991, Richmond filed a note of issue and certificate of readiness. On April 25, 1991, Haney and the City moved to amend their answer to include an additional affirmative defense; namely, that of qualified immunity under common law. The trial court granted the motion of Haney and the City and the amended answer was filed on May 20, 1991. On July 10, 1991, Haney and the City filed a motion for summary judgment. On July 25, 1991, Burleigh County filed a motion for summary judgment. The trial court granted both motions and dismissed Richmond's complaint with prejudice concluding that probable cause existed for the prosecution against Richmond and that the Burleigh County State's Attorney's actions were immune from liability. This appeal followed.

The facts precipitating this action arose out of a fire in a mobile home owned by Richmond on December 10, 1987. The Bismarck Fire Department arrived at the scene approximately three minutes after a neighbor reported the fire. Richmond was at the mobile home at the time of the fire. Richmond told Captain Orne, one of the Bismarck firefighters on the scene, that he had been working on a faulty light fixture in the workshed, that after turning a fuse back in to its socket it blew, and that when he returned to the shed to see what was wrong he found that a fire had started. ² Sherwin Nelson, a fire investigator for the Bismarck Fire Department, was called to the scene to conduct an investigation. After looking at the fire damage, Nelson concluded that it wasn't consistent with an electrical fire originating in the light fixture. Nelson subsequently had Detective Haney and Bob Holmberg assist him in further investigation. Their investigation revealed a "pour pattern" on the floor, some burning behind a board against the doorway as well as some burning underneath the doorway threshold. These and other facts led the investigators to believe that a flammable liquid had been used.

An investigation was conducted by Matthew Schwartz of SSR Engineers, Inc., apparently at the request of the insurance carrier, to determine whether or not the fire had an electrical source. Haney and Nelson accompanied Schwartz in his investigation and were given a copy of his final report which concluded that it was unlikely that the fire had an electrical origin.

Officer Haney later learned that Richmond had been in contact with the insurance carrier. These and other facts were eventually brought to the attention of Bruce Haskell of the Burleigh County States Attorney's Office. Haskell, upon discussing the case with Haney and reviewing the investigators' reports, concluded that probable cause existed to believe Richmond had committed the crime of arson. A criminal complaint alleging the charge of arson against Richmond was subsequently drafted and signed by Burleigh County Judge Riskedahl. At the request of Calvin Rolfson, Richmond's attorney in the case at that time, Richmond was apparently allowed to appear on the charge without first being arrested. Prior to the probable cause hearing, Haskell moved to have the complaint dismissed. In his affidavit explaining his action he, in relevant part, said:

"9. ... on May 11, 1988, I filed a motion to dismiss the arson charge against Mr. Richmond. The motion to dismiss was based upon my conversation with a representative of Allstate Insurance Company. I was informed that a proof of loss form had been submitted to the company, but that the form was apparently unsigned and that no other action had been taken to pursue the claim. It was my belief at that time that the failure to pursue the insurance claim would make it difficult to prove that Donald Richmond set the fire for the purpose of collecting insurance proceeds, therefore dismissal was appropriate."

Initially, we note the standards regarding the granting of a motion for summary judgment. Under Rule 56, N.D.R.Civ.P., summary judgment is appropriate when, after viewing the evidence in a light most favorable to the party opposing the motion, there are no genuine issues of material fact, or any conflicting inferences which can be reasonably drawn from such facts. Matter of Estate of Stanton, 472 N.W.2d 741, 743 (N.D.1991); Miller Enterprises v. Dog N' Cat Pet Centers, 447 N.W.2d 639 (N.D.1989). Additionally, even when there are factual disputes, summary judgment is proper if the resolution of the factual disputes will not change the outcome. Stensrud v. Mayville State College, 368 N.W.2d 519, 521 (N.D.1985). Although the summary judgment movant has the burden of establishing the absence of any genuine issues of material fact, Binstock v. Tschider, 374 N.W.2d 81, 83 (N.D.1985), a party opposing the motion "may not rest upon the mere allegations or denials" of his or her pleadings. See N.D.R.Civ.P., Rule 56(e). ³ Rather, as we said in Binstock, quoting First National Bank of Hettinger v. Clark, 332 N.W.2d 264, 267 (N.D.1983):

"A party resisting a motion for summary judgment has the responsibility of presenting competent admissible evidence by affidavit or other comparable means, NDRCivP 56(e); Spier v. Power Concrete, Inc., 304 N.W.2d 68 (N.D.1981); and, if appropriate, drawing the court's attention to evidence in the record by setting out the page and line in depositions or other comparable document containing testimony or evidence raising a material factual issue, or from which the court may draw an inference creating a material factual issue.

"In summary judgment proceedings the trial court has no legal obligation, judicial duty, or responsibility to search the record for evidence opposing the motion for summary judgment. This principle and legal concept applies equally well, or more so, to appellate proceedings involving an appeal from the granting of a summary judgment for the further reason that the appellate court, except for jurisdictional matters and taking judicial notice, generally considers only those issues raised in the trial court."

374 N.W.2d at 83-84.

Although Richmond's complaint is vague and difficult to understand, he does assert that the actions of Officer Haney and the actions of Bruce Haskell, the Burleigh County States Attorney who approved the criminal complaint against him, constituted a malicious prosecution. The City and the County were named as the respective employers of Haney and Haskell.

In order to maintain an action for malicious prosecution one must establish, at a minimum, the following elements:

"1. A criminal proceeding instituted or continued by the defendant against the plaintiff.

2. Termination of the proceeding in favor of the accused.

3. Absence of probable cause for the proceeding.

4. 'Malice,' or a primary purpose other than that of bringing an offender to justice."

Prosser and Keeton, The Law of Torts, 5th ed., p. 871 (1984); Larson v. Baer, 418 N.W.2d 282 (N.D.1988). ⁴ The crucial question we must decide in this case is whether or not probable cause existed.

When there has been a prior judicial determination of probable cause, such a finding usually constitutes prima facie evidence of probable cause in a subsequent malicious prosecution suit. See Weisenberger v. Mueller, 89 N.W.2d 559, 564 (N.D.1958); see also Watkins v. Spring Creek Colony, 188 Mont. 467, 614 P.2d 508, 510 (1980); 54 C.J.S., Malicious Prosecution, section 32 (1987). Generally, to defeat such a determination, the acts or omissions of the defendant must have tainted the proceeding or the evidence considered in the proceeding. See generally Wigger v. McKee, 809 P.2d 999, 1005 (Colo.App.1990). ⁵

Whether or not probable cause exists depends on the...