Rosenthal v. County of Madison

Decision Date23 October 2007
Docket NumberNo. 05-252.,05-252.
Citation170 P.3d 493,2007 MT 277
PartiesReid Lance ROSENTHAL, Plaintiff and Appellant, v. COUNTY OF MADISON, State of Montana, Roberta Zenker, f/k/a Robert Zenker, Individually and as former County Attorney for the County of Madison, et al., Defendants and Appellees.
CourtMontana Supreme Court

For Appellant: Quentin M. Rhoades, Sullivan, Tabaracci & Rhoades, P.C., Missoula, Montana.

For Appellees: Mike McGrath, Attorney General; Paul D. Johnson, Assistant Attorney General, Helena, Montana. Richard Larson, Harlen, Chronister, Parish & Larson, P.C., Helena, Montana (for Madison County).

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Plaintiff Reid Rosenthal (Rosenthal) appeals the District Court's entry of summary judgment in favor of the Defendants Madison County (County), the State of Montana (State), and Madison County Attorney Zenker (Zenker). Rosenthal also appeals the denial of his M.R. Civ. P. 56(f) motion requesting further discovery filed after the Defendants filed their summary judgment motion, as well as the District Court's denial of his request to add a claim for attorney's fees under the private attorney general doctrine. We affirm.

¶ 2 Rosenthal filed a malicious prosecution claim and later amended it to include claims for intentional and negligent emotional distress, alleging that he suffered injuries to his reputation and business as a result of a misdemeanor complaint filed but later dismissed by Zenker. The District Court granted summary judgment in favor of all defendants after determining that Zenker's conduct was within the scope of the County Attorney's statutory authority and, therefore, was entitled to absolute prosecutorial immunity, barring an action against all defendants. Rosenthal argues Zenker's conduct is not entitled to absolute immunity, but rather is entitled at best to only qualified immunity, because Zenker acted outside the quasi-judicial function by accusing Rosenthal of a violation of the Montana Streambed Preservation Act, advising the Madison County Sheriff about investigating Rosenthal, and compiling a file of reports about Rosenthal's alleged harassment to send to the Attorney General's office.


¶ 3 Rosenthal raises four issues on appeal:

¶ 4 (1) Did the Montana Tort Claims Act, § 2-9-305(1), MCA, abrogate the common law doctrine of prosecutorial immunity;

¶ 5 (2) Did the District Court correctly conclude that Defendants were entitled to summary judgment as a matter of law;

¶ 6 (3) Did the District Court correctly deny Rosenthal's M.R. Civ. P. 56(f) motion for additional discovery to allow investigation into Zenker's role as an investigator and legal advisor before ruling on summary judgment; and

¶ 7 (4) Did the District Court err in denying Rosenthal's request to add a claim for attorney's fees under the private attorney general doctrine.


¶ 8 On December 6, 2001, the Ruby Valley Soil Conservation District (RVSCD) sent County Attorney Zenker reports of a potential violation of the Montana Streambed Preservation Act, §§ 75-7-101-125, MCA, by Reid Rosenthal ("310 violation"). Along with the reports was a letter from the RVSCD chairman requesting prosecution of these violations and a copy of the letter from Fish, Wildlife and Parks biologist Richard Oswald to RVSCD indicating that Rosenthal's log and utility line project along Wisconsin Creek was a 310 violation. On January 3, 2002, Zenker received a letter from the RVSCD Board of Supervisors requesting prosecution of Rosenthal and stating that Don McIntyre, attorney for the Department of Natural Resources and Conservation, advised that Rosenthal's project was a 310 violation.

¶ 9 These reports and letters indicated that Rosenthal, as manager of the Three Creeks Ranch, LLC, had begun a bridge project by placing a log across Wisconsin Creek. A utility line ran under the log. Neighboring property owners who had seen the log grew concerned that it was an unauthorized project contributing to environmental degradation of the Creek. Six people reported it to the RVSCD. Prior to filing a complaint Zenker wrote to Rosenthal, informing him of the potential violation and offering him an opportunity to acquire the requisite permit or remove the log and utility line. Through a number of correspondences, Rosenthal responded that his project was legal, that he had the requisite permit, and that he would not remove the project.

¶ 10 On January 24, 2002, Zenker filed a misdemeanor complaint charging Rosenthal with a 310 violation. On June 7, 2002, the District Court granted Rosenthal's request to allow an expert to testify on his behalf. The State retained its own expert. Upon learning that the State's expert was not confident there was a 310 violation beyond a reasonable doubt, Zenker moved to dismiss the complaint against Rosenthal on July 8, 2002.

¶ 11 On July 21, 2003, Mr. Curtis Kruer sent a letter to the Madison County Sheriff asking that Rosenthal be investigated and punished for threatening behavior towards Stephanie Kruer. Sheriff David Schenck notified Zenker of these complaints, seeking Zenker's input, and Zenker responded by suggesting a more thorough investigation. Zenker then contacted the Attorney General's Office regarding its possible prosecution of Rosenthal because Zenker perceived a potential conflict of interest between the parties. The victim in the case, a local public defender, had worked with Zenker in the past, creating a potential conflict. Additionally, Zenker believed Rosenthal held a grudge against the Madison County Attorney's Office because of the 310 case, and further involvement by Zenker would only inflame that grudge.

¶ 12 The Attorney General assigned the case to Barbara Harris, who charged Rosenthal with stalking and, in the alternative, trespass to property. According to Harris, a copy of the investigative file sent to her by Zenker was in turn copied and sent to Rosenthal on November 10, 2003, and April 9, 2004. Eventually, a trial was held and Rosenthal was found not guilty.

¶ 13 On May 14, 2004, Rosenthal filed his original malicious prosecution complaint against the Defendants herein. The court set October 15 as the deadline for amended pleadings. On October 22, Rosenthal requested leave to amend the pleadings, which Defendants opposed. On January 3, 2005, the District Court granted Rosenthal's motion to amend all counts but Count VI, which was a request for attorney's fees under the private attorney general doctrine.

¶ 14 On December 8, 2004, seven months after filing the complaint, Rosenthal's attorney sent a letter to Defendants' attorneys asking to arrange depositions for 19 people. On December 21, Paul Johnson, Attorney for the State and Zenker, responded to the request with deposition dates. On December 28, Rosenthal filed a notice of service of the first set of discovery requests sent to Defendant Zenker.

¶ 15 On January 14, 2005, Defendants filed a motion for summary judgment based on absolute immunity. They filed a brief and the supporting affidavits of Zenker and Harris five days later.

¶ 16 On January 25, 2005, Rosenthal filed his amended complaint and jury trial demand. The amended complaint set forth no additional facts, but added causes of action for intentional and negligent infliction of emotional distress, based on "Defendants' intentional acts" without specifying those acts. The Defendants filed a motion for protective order the next day, a renewed motion for summary judgment on January 31, and an answer to the first amended complaint on February 4.

¶ 17 Between February 4 and 11, Rosenthal filed notices of depositions and subpoenas duces tecum for nine individuals. On February 11, Zenker filed an emergency motion to quash and the court granted it that day, forbidding the parties from conducting depositions before determination of summary judgment. On February 15, Rosenthal filed his "refusal" of summary judgment and a request for more time for discovery. On February 16, Rosenthal's attorney filed an affidavit in opposition to the motion for summary judgment, asserting personal knowledge of the facts at issue. Rosenthal's own affidavit was not filed until March 3.

¶ 18 On March 14, Defendants filed a response to Rosenthal's request for more time to conduct discovery, treating it as a M.R. Civ. P. 56(f). Defendants argued that Rosenthal failed to present a sufficient affidavit to meet the movant's burden under M.R. Civ. P. 56(f). Additionally, Defendants argued that further discovery would undermine the purpose of prosecutorial immunity.

¶ 19 On March 25, the District Court granted Zenker and the State's motion for summary judgment and dismissed the case with prejudice, later clarifying that the summary judgment was granted in favor of Madison County as well. After finding that summary judgment was appropriate, the District Court declined to address the additional motions of the parties because they were moot. On April 4, Rosenthal filed a timely notice of appeal.

¶ 20 In April, May and June, Rosenthal's attorney conducted depositions of Zenker, Harris, David Schenck, the Madison County Sheriff, and Evan Andren, the Madison County Undersheriff, in a separate unrelated matter involving a property dispute. During the deposition of Zenker, Rosenthal's attorney tried to ask Zenker questions regarding the malicious prosecution case. Zenker objected. In addition, during the deposition of Andren, Harris, and Schenck, Rosenthal asked questions relating to the malicious prosecution case. These questions were answered without objection.

¶ 21 Based upon what he learned in the depositions, Rosenthal filed a M.R. Civ. P. 60(b)(2) motion for relief, asserting newly discovered evidence that defeated Zenker's claim of absolute prosecutorial immunity, followed a week later by another motion for leave to file a second amended complaint. However, ...

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