Springfield v. Members 1st Cmty. Fed. Credit Union

• Decision Date: 24 January 2013
• Docket Number: No. 2010–CA–00359–COA.,2010–CA–00359–COA.
• Citation: 106 So.3d 826
• Parties: Norma SPRINGFIELD, Appellant v. MEMBERS 1ST COMMUNITY FEDERAL CREDIT UNION, Appellee.
• Court: Mississippi Court of Appeals

106 So.3d 826

Norma SPRINGFIELD, Appellant

v.MEMBERS 1ST COMMUNITY FEDERAL CREDIT UNION, Appellee.

No. 2010–CA–00359–COA.

Court of Appeals of Mississippi.

May 29, 2012.

Rehearing Denied Oct. 30, 2012.

Certiorari Denied Jan. 24, 2013.

Luanne Stark Thompson, Aberdeen, T. Kilpatrick, attorneys for appellant.

Timothy Michael Peeples, Oxford, attorney for appellee.

Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.

BARNES, J., for the Court:

¶ 1. Norma Springfield filed a complaint in the Monroe County Circuit Court for malicious prosecution against her former employer, Members 1st Community Federal Credit Union's (Members 1st) and others, after embezzlement charges were brought against her and later dismissed. The trial court granted the defendants' second motion to dismiss, finding that Norma failed to establish “want of probable cause.” Norma now appeals. Finding error with the trial court's dismissal, we reverse and remand for proceedings consistent with this opinion.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. In May 2009, Norma sued Members 1st, Pollan & Associates, Chris Pollan, and Mitchell Springfield for malicious prosecution. The complaint alleged that in approximately November 2005, Chris Pollan (Pollan), an agent of Members 1st, “armed with certain false information attempted to secure an indictment against [Norma].” When these efforts failed, in January 2006 Pollan:

reappeared before the Grand Jury of Lowndes County ... and repeated his efforts to have the former employee [Norma] indicted but this time ... Pollan included an affidavit signed by Defendant Mitchell Springfield, the former husband of [Norma], alleging criminal conduct by [Norma] to have occurred during the marriage of the parties with regard to marital property and marital liabilities.

The complaint stated Norma was later “arrested, booked, and processed” for embezzlement, but in May 2008, the trial court entered an order of nolle prosequi on the charge.

¶ 3. In November 2009, Pollan & Associates and Pollan filed a motion to dismiss under Mississippi Rules of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted, claiming that Norma could not, as a matter of law, satisfy the element of “want of probable cause” under her malicious prosecution claim because Norma had been indicted for embezzlement, and indictments are based on probable cause. Members 1st joined this motion to dismiss. The trial court granted the motion to dismiss as to Members 1st and Pollan & Associates.¹ Norma appealed.

¶ 4. At the end of the hearing on the motions to dismiss, the trial court noted that there was one remaining defendant in the action, Mitchell. A docket entry in October 2009 reflected that Mitchell was served with process; however, the record did not indicate any final adjudication as to him. Nor was there any Mississippi Rule of Civil Procedure 54(b) certification on either of the January 2010 orders granting dismissal to the other defendants. Therefore, we issued an order asking the parties to brief whether this Court has jurisdiction, as the circuit court action appeared to be still pending against Mitchell Springfield. Norma responded by providing this Court with an order signed September 5, 2011, by the trial judge granting a motion for voluntary dismissal of Mitchell Springfield, thereby closing the case. Norma argues the jurisdictional issue is now moot. In its supplemental brief, Members 1st also argues for this Court to maintain jurisdiction. We find appellate jurisdiction is now proper.

STANDARD OF REVIEW

¶ 5. An appellate court “applies a de novo standard of review when examining a trial court's grant or denial of a motion to dismiss.” Saul ex rel. Heirs of Cook v. S. Cent. Reg'l Med. Ctr., Inc., 25 So.3d 1037, 1039 (¶ 6) (Miss.2010) (citing Burleson v. Lathem, 968 So.2d 930, 932 (¶ 7) (Miss.2007)). “When considering a motion to dismiss, the allegations in the complaint must be taken as true[,] and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Id. A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Rose v. Tullos, 994 So.2d 734, 737 (¶ 11) (Miss.2008) (citing Cook v. Brown, 909 So.2d 1075, 1077–78 (¶ 8) (Miss.2005)).

ANALYSIS OF THE ISSUE

¶ 6. Norma raises one issue: whether the trial court improperly granted Pollan & Associates and Members 1st's second motion to dismiss. Norma's argument is two-fold: (1) the trial court improperly converted the motion to dismiss into a motion for summary judgment, and (2) the trial court improperly ruled that she could not meet her burden of proof on the “want of probable cause” element of her malicious prosecution claim. We find Norma's second contention has merit and is dispositive; therefore, we decline to discuss her first contention.

1. Malicious Prosecution “Want of Probable Cause” Element

¶ 7. In order to establish a claim of malicious prosecution, the plaintiff must prove, by a preponderance of the evidence:

(1) The institution [or continuation] of a criminal proceeding; (2) by, or at the insistence of, the defendant; (3) the termination of such proceedings in plaintiff's favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; (6) the suffering of injury or damage as a result of the prosecution.

Condere Corp. v. Moon, 880 So.2d 1038, 1042 (¶ 13) (Miss.2004).

¶ 8. The legal issue raised on appeal is whether the return of an indictment by the grand jury means Norma cannot, as a matter of law, prove the element of “want of probable cause.” Norma contends that the trial court equated the “want of probable cause” element in a malicious prosecution claim with the probable cause needed to return an indictment in a criminal case, thereby improperly dismissing her claim. We agree and find the trial court's ruling was error.

¶ 9. Regarding the element of “want of probable cause,” a court must look “to the facts reasonably available to each [d]efendant at the time” the malicious prosecution was initiated. Strong v. Nicholson, 580 So.2d 1288, 1294 (Miss.1991) (citing Benjamin v. Hooper Elec. Supply Co., 568 So.2d 1182, 1190 (Miss.1990); Royal Oil Co. v. Wells, 500 So.2d 439, 443 (Miss.1986); Owens v. Kroger Co., 430 So.2d 843, 846 (Miss.1983)). “Probable cause requires the concurrence of (1) a subjective element—an honest belief in the guilt of the person accused, and (2) an objective element—reasonable grounds for such belief[s].” Id. (citing Benjamin, 568 So.2d at 1190;Royal Oil, 500 So.2d at 443;Harvill v. Tabor, 240 Miss. 750, 755, 128 So.2d 863, 865 (1961)). “One is as essential as the other.” Harvill, 240 Miss. at 755, 128 So.2d at 865. “The question in the end is not whether the defendant thought he had probable cause, but whether the fact-finder thinks he did.” Strong, 580 So.2d at 1294.

¶ 10. Members 1st claims that under Mississippi law, the existence of an indictment establishes probable cause as a matter of law, citing Rogers v. State, 881 So.2d 936 (Miss.Ct.App.2004), a criminal case that had nothing to do with the tort of malicious prosecution. In Rogers, probable cause was discussed in relation to the criminal defendant's argument that he was improperly denied a preliminary hearing. Id. at 940 (¶ 16). We cannot agree with Members 1st or the trial court that “probable cause” found in the grant of preliminary hearings or the return of indictments conclusively establishes probable cause preventing a subsequent action for malicious prosecution.

¶ 11. While there are no Mississippi state cases exactly on point regarding the impact of an indictment on the “want of probable cause” element of malicious prosecution, legal encyclopedias on the issue explain that the impact has been considered in one of two ways. The American Law Reports encyclopedia states some courts have recognized that an indictment by a grand jury against the plaintiff is “evidence tending to show that the defendant had probable cause for his alleged part in the prosecution” but does not constitute prima facie evidence. 28 A.L.R.3d 748, 753 (1969) (emphasis added). However, the majority of courts take the view that an indictment is prima facie evidence “that the defendant had probable cause for his alleged part in the prosecution, but that such evidence is not conclusive on the issue.” ²Id. Prima facie evidence may be contradicted by other evidence. Id. at n. 5. Thus, when a complaint for malicious prosecution shows on its face that a grand jury indicted the plaintiff, the plaintiff must “plead facts showing fraud or other improprieties in his prosecution to overcome this prima facie probable cause....” Id. at 754.

¶ 12. Similarly, Corpus Juris Secundum acknowledges that “[w]hile there is some authority to the contrary,” generally, the return of an indictment by a grand jury is “prima facie, but not conclusive, evidence of probable cause” in malicious prosecution cases. 54 C.J.S. Malicious Prosecution § 48 (2010) (emphasis added). It further explains:

Once an indictment has been returned by a grand jury, the plaintiff in a malicious prosecution action has the burden of producing evidence to establish lack of probable cause. The plaintiff must produce evidence that the return of the indictment resulted from perjured testimony or that the grand jury proceedings were otherwise significantly irregular. The plaintiff may show that the indictment was obtained by failing to make a full and complete statement of facts to the grand jury or district attorney, by the withholding of information by the prosecutor which might have affected the result, or by showing that the indictmentwas produced by the misconduct of the party seeking indictment.

Id.

¶ 13. Moreover, the American Jurisprudence encyclopedia states that an indictment is prima facie evidence of probable cause, but it is not conclusive evidence, and may be overcome by proof that...