Sisler v. City of Centerville

• Decision Date: 31 July 1985
• Docket Number: No. 83-1545,83-1545
• Parties: Ronald G. SISLER and Darlene Sisler, Appellants, v. CITY OF CENTERVILLE, Iowa, Dennis West, Joseph B. Treloar and Rick Hackert, Appellees.
• Court: Iowa Supreme Court

Page 248

372 N.W.2d 248

Ronald G. SISLER and Darlene Sisler, Appellants, v. CITY OF CENTERVILLE, Iowa, Dennis West, Joseph B. Treloar and Rick Hackert, Appellees.

No. 83-1545.

Supreme Court of Iowa.

July 31, 1985.

Marvin V. Colton, Albia, for appellants.

C.K. Pettit, Bloomfield, for appellees City of Centerville, West and Treloar.

Considered by UHLENHOPP, P.J., and HARRIS, McCORMICK, McGIVERIN, and WOLLE, JJ.

McCORMICK, Justice.

This appeal involves a malicious prosecution claim arising out of the prosecution of plaintiff Ronald G. Sisler for the alleged theft of a coonhound named Ralph. Ronald and his wife, plaintiff Darlene Sisler, contend the trial court erred in overruling their motion to amend their petition shortly before trial and in directing a verdict for defendants at trial. The court of appeals reversed the trial court and we granted further review. Because we find no merit in plaintiffs' contentions, we vacate the decision of the court of appeals and affirm the district court.

Plaintiffs' petition was in three divisions. In the first division, Ronald sought recovery of actual and punitive damages on a theory of malicious prosecution. In the second division, Ronald and Darlene sought recovery of actual and punitive damages on a theory of wrongful search of their home. In the third division, they sought recovery of actual and punitive damages for abuse of process. Defendants Dennis West and Joseph D. Treloar were police officers for defendant City of Centerville at the time of the material events, and defendant Rick Hackert was owner of the coonhound.

At trial plaintiffs' counsel characterized the first two divisions of the petition as being based on malicious prosecution. In ruling on defendants' motion for directed verdict, the trial court treated both divisions as asserting that basis for recovery. Plaintiffs now contend that the second division was based on "deprivation of rights."

By identifying the theory of the second division at trial as malicious prosecution, plaintiffs are now precluded from relying on a different theory, and we will not attempt to determine whether the second division might have stated a separate cognizable cause of action. Moreover, even under plaintiffs' present contention, our disposition of the question relating to the first division answers their contention relating to the second division. The third division of the petition is not involved in this appeal, because plaintiffs concede the evidence did not support it. Nor do plaintiffs raise any issue concerning defendant Hackert. This appeal thus involves only the trial court's ruling denying plaintiffs' motion to add a new claim against defendants West, Treloar and City of Centerville and the court's ruling directing a verdict for them on the malicious prosecution claim.

I. The motion to amend. Fourteen minutes before trial was scheduled to begin, plaintiffs filed a motion for leave to amend their petition to add a claim against defendants under 42 U.S.C. section 1983 (1981). The trial court overruled the motion, and plaintiffs contend the court abused its discretion in doing so. The court of appeals agreed with plaintiffs, but we do not.

The present action was commenced in April 1981. Plaintiffs brought a separate action against defendants West and Treloar in federal court under 42 U.S.C. section 1983 in October 1982. Upon motion by the defendants, the federal district court, 570 F.Supp. 1, dismissed the federal action in February 1983 on abstention grounds, noting the pendency of the state court case in which the federal statutory claim could be joined. Instead of then seeking amendment of their state petition, plaintiffs appealed the federal district court decision. The decision was affirmed by the United States Court of Appeals for the Eighth Circuit on September 2, 1983. Plaintiffs finally proffered their amendment in the present case just before commencement of trial on September 27, 1983.

General principles governing our review of the trial court's ruling are well settled. They are summarized in Johnston v. Percy Construction, Inc., 258 N.W.2d 366, 370-71 (Iowa 1977). In arguing that an abuse of discretion should be found here, plaintiffs allege that the amendment would not materially change the issues and would not have surprised defendants. They assert that only one new element of proof would be introduced, their duty under their section 1983 claim to prove the officers acted under color of state law. They also note that defendants had notice they intended to pursue the federal statutory claim because of the federal litigation. Through this argument they seek to establish an exceptional situation in which a trial court would be held to have abused its discretion in denying an amendment adding a new theory of action on the eve of trial.

We believe the ruling was within the court's discretion. Two pretrial conferences were held in this case. At the first, it was ordered that pleadings would be closed on February 28, 1983. The federal district court dismissed plaintiffs' federal action on February 23, 1983, several days before the close of pleadings in the state case. The second pretrial conference was held on September 1, 1983, and the first pretrial order was confirmed. Plaintiffs waited until after the federal court of appeals decision before offering the amendment. Thus they deliberately waited to file the proposed amendment until more than six months after the deadline for amending their petition despite the federal district court decision advising them before the deadline that the claim should be joined with their state action.

Moreover, the amendment would have created a problem greater than merely introducing one new element in their case against the officers. Plaintiffs sought judgment against the city as well as the officers in the proffered amendment. In order to recover from the city, plaintiffs would have to prove the city had a forbidden rule or procedure which was "the moving force of the constitutional violation...." Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2038, 56 L.Ed.2d 611, 618 (1978). The city could not be held liable merely on a theory of respondeat superior. See Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509, 521 (1981); Cunha v. City of Algona, 334 N.W.2d 591, 596 (Iowa 1983). In this situation, the officers and city might urge conflicting defenses. Because they were represented by the same attorney, their attorney would have an obvious conflict of interest.

We find no abuse of discretion in the trial court's ruling denying the amendment.

II. The directed verdict. The elements of a malicious prosecution claim are (1) a previous criminal prosecution, (2) instigation of the prosecution by the defendant, (3) termination of the prosecution favorably to plaintiff, (4) want of probable cause, (5) malice of defendant in bringing the prosecution, and (6) damage to the plaintiff. Mills County State Bank v. Roure, 291 N.W.2d 1, 3 (Iowa 1980). In this case the trial court questioned whether the evidence would support the third element but directed the verdict based on lack of substantial evidence on the fourth and fifth elements. We rest our affirmance on the existence of probable cause for the prosecution and thus consider only the fourth element.

Probable cause exists when " 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879, 1890 (1949). In the context of a civil action for malicious prosecution the existence of probable cause is determined under the following standard:

One who initiates or continues criminal proceedings against another has probable cause for doing so if [the accuser] correctly or reasonably believes

(a) that the person [accused] has acted or failed to act in a particular manner, and

(b) that those acts or omissions constitute the offense that [the accuser] charges against the accused, and

(c) that [the accuser] is sufficiently informed as to the law and the facts to justify [the accuser] in initiating or continuing the prosecution.

Restatement (Second) of Torts § 662 at 423 (1977). In reviewing a directed verdict for the defendants, we view the evidence in the light most favorable to plaintiffs. See Kraft v. City of Bettendorf, 359 N.W.2d 466, 469 (Iowa 1984). We recite the relevant evidence.

On Sunday evening, October 26, 1980, Rick Hackert and his brother-in-law Robert Schwab discovered that Hackert's "Blue Tick Walker" coonhound named Ralph was missing from the yard of the Hackert home in Centerville where he had been chained. Ralph was full grown, black and white, with a white spot on his left ear and scars on his nose and ears. Hackert checked with the dogcatcher on Monday and found he did not have the dog. Then he placed an ad for the dog in the lost-and-found section of the Centerville newspaper.

On Tuesday, October 28, Robert G. Clark of Centerville came to Hackert's home in response to the ad. He told Hackert he had seen a dog answering Ralph's description running loose at a flea market in the Pamida parking lot in Centerville on Sunday afternoon. The Sislers, who lived in Albia, had a display at the flea market. Clark, who knew the Sislers, said he saw the son of the Sislers put a rope around the dog's neck and later heard Ronald Sisler tell the boy to tie the dog to the truck. When Clark left the...