Strong v. Nicholson, 07-CA-59407

• Decision Date: 15 May 1991
• Docket Number: No. 07-CA-59407,07-CA-59407
• Citation: 580 So.2d 1288
• Parties: Harold J. STRONG and Terryl M. Ladner v. Dorothy NICHOLSON and Edward Ellis.
• Court: Mississippi Supreme Court

Page 1288

580 So.2d 1288

Harold J. STRONG and Terryl M. Ladner v. Dorothy NICHOLSON and Edward Ellis.

No. 07-CA-59407.

Supreme Court of Mississippi.

May 15, 1991.

Joseph W. Gex, Gex Gex & Phillips, Bay St. Louis, for appellants.

Thomas D. Berry, Jr., Gulfport, for appellees.

Before HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This is a malicious prosecution case. One of the Plaintiffs sold her shrimping boat on time and repossessed the boat when the buyer failed to pay. Some five months later the dispossessed buyer and another went before a Justice Court Judge and swore out affidavits charging Plaintiffs with two counts of grand larceny, said to relate to disputes over certain equipment on board the boat. The jury held Defendants' actions without rhyme or reason and returned tort verdicts for Plaintiffs. We affirm.

II.

A.

Dorothy Ellis Nicholson, 44, a widow with five children, lives in Bay St. Louis, Mississippi. She owned a shrimp boat named "The Terry." In the Fall of 1984, Nicholson found herself in extremis, charged with a felony under our Controlled Substances Law and was incarcerated in the Hancock County Jail where, it appears from the record, she remained until January 28, 1985, following conviction and service of a brief sentence.

Back in September of 1984, Nicholson's future was uncertain, and she was in great need of funds with which to address her problems with the law. Harold J. Strong, one of the Defendants below and one of the Appellants here, approached Nicholson in jail and offered to buy "The Terry" for $18,500.00. Strong would pay no money down but was to make a first payment of $6,000.00 by November 15, 1984, and was to obtain immediate use of the vessel. Nicholson executed an "As Is" Bill of Sale and, in return, Strong gave a ship mortgage reciting the debt and, of course, giving Nicholson repossession rights in the event of non-payment.

It is not at all clear that the vessel was seaworthy nor whose fault this was. Nicholson was indisposed at the time and without ability to do much about the vessel's condition; hence, the "As Is" sale. The vessel's equipment included a net, boards, a pump, two dredges, a dredge table, two trawl blocks, a cable and a winch, but much of this equipment was in ill repair. For reasons neither clear nor legally important, "The Terry" sank on Thanksgiving Day.

What is important is that November 15, 1984, came and went, and Strong paid not a penny. Insofar as the record reflects, Strong has never paid Nicholson anything toward his purchase of "The Terry." When it became apparent that Strong's default would continue, Nicholson contacted her brother, Edward Lawrence Ellis, another of the Plaintiffs below and an Appellee here, and asked him to repossess the boat. Ellis approached an Assistant District Attorney who instructed him to "go do it the legal way." Ellis claims this is what he did. Strong does not contest that Nicholson had the right, upon his default in making the November 15 payment, to repossess the vessel and its contents.

To be specific, on December 2, 1984, acting at his sister's instance, Edward Ellis, with George McNeil, a Harrison County Deputy Sheriff and Constable, in tow, approached the vessel which was docked at Henderson Point. At this time, Strong appeared with two other men and removed some personal equipment--clothing, a television set, a shortwave marine radio and a dozen sacks of oysters. Ellis then took possession of the vessel, Strong acquiescing, although he claimed that various items of his property remained onboard. Subsequently, Terryl M. Ladner charged that he, too, had items of personal property onboard "The Terry" and asked Ellis if he might remove them. Ellis refused, saying everything on the boat was staying put until the question of ownership could be settled in court. Ellis secured the boat by placing "No Trespassing" signs on it.

Strong appears to have remained of the view that certain items of personal property belonging to him were still onboard "The Terry." He talked to at least three attorneys to see what he should do. Apparently one told him to file a civil suit. Another advised him to file criminal charges. In the end, on May 16, 1985, without benefit of counsel, Strong and Ladner went before the Clerk of the Justice Court of Hancock County, and each made two affidavits, one charging Nicholson with grand larceny and the other charging Ellis with grand larceny. ¹ Strong says his motive was he wanted to get his property back, and he heard Nicholson was going to sell the property. Ladner said he had heard of a newspaper article stating Nicholson was going to sell his property and had been advised by Delbert Seay, an Investigator for the Hancock On the night of May 16, 1985, Hancock County Deputy Sheriff Glen Strong--the brother of Defendant Harold J. Strong--arrested Nicholson and Ellis in their homes. Each was taken to jail, booked, fingerprinted, and photographed. Each was then placed in a jail cell and forced to obtain the services of an attorney and to post bond to secure release from custody.

County Sheriff's Department, to file charges. Each admitted that he did not know if Nicholson or Ellis did, in fact, steal the property.

On June 12, 1985, the charges were set before Justice Court Judge Horatio Frierson, apparently for a preliminary hearing. Neither Strong nor Ladner appeared to prosecute the case, and the Justice Court dismissed the charges. Strong later said that he was too busy to come to court.

B.

On December 13, 1985, Dorothy Ellis Nicholson and Edward Lawrence Ellis commenced this civil action by filing their complaint in the Circuit Court of Hancock County, Mississippi. Nicholson and Ellis named Harold J. Strong and Terryl M. Ladner as Defendants. Nicholson and Ellis sued on alternative tort theories of false imprisonment and malicious prosecution and demanded compensatory and punitive damages.

With all deliberate speed, the case was called for trial. Nicholson and Ellis abandoned their claim of false imprisonment, and the case was submitted to the jury solely upon the theory of malicious prosecution. In due course, the jury returned verdicts for the two Plaintiffs, finding for Nicholson in the amount of $10,000.00 and Ellis in the amount of $20,000.00. The Circuit Court thereupon entered final judgment in favor of Nicholson in the amount of $10,000.00 and against Strong and Ladner, jointly and separately, and, independently, in favor of Ellis in the amount of $20,000.00 and against Strong and Ladner, jointly and severally.

Strong and Ladner timely moved for judgment notwithstanding the verdicts. On February 10, 1988, the Circuit Court denied these motions. This appeal has followed.

III.

A.

Strong and Ladner first argue that the Circuit Court erred when it denied their motions for judgment notwithstanding the verdict. See Rule 50(b), Miss.R.Civ.P. In substance, they charge that the evidence was legally insufficient to sustain judgments against them for the tort of malicious prosecution.

At the outset, we must be clear of our scope of review. When considering the appeal of an issue such as that Strong and Ladner present, we must look at all of the evidence--not just that which supports the Appellees' case--in the light most favorable to Appellees, Nicholson and Ellis. The credible evidence tending to support Appellees' case must be taken as true. Appellees must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Evidence favorable to the Appellants must be disregarded if it is contradicted or its credibility is otherwise called into question. If the facts and inferences, so considered, point so overwhelmingly in favor of the Appellants that reasonable persons could not have arrived at a contrary verdict, we must reverse. On the other hand, if there is substantial evidence supporting the verdict, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the jury verdict and the judgment entered thereon must be allowed to stand, and we, accordingly, have no authority to interfere.

These principles have been stated in cases too numerous to cite. We have enforced them in malicious prosecution cases the same as in any other context where an appellant challenges a jury verdict in a civil action. See, e.g., Benjamin v. Hooper Electronic Supply Co., 568 So.2d 1182, 1187 (Miss.1990); Royal Oil Co., Inc. v. Wells, 500 So.2d 439, 442-43 (Miss.1986). We do so again today.

B.

The substantive contours of the tort of malicious prosecution are well settled. To recover, a plaintiff must show (1) the institution of a criminal proceeding; (2) by, or at the instance of, the defendant; (3) termination of such proceedings in plaintiff's favor; (4) malice in instituting the proceeding; (5) want of probable cause for the proceeding; and (6) the plaintiff's suffering of injury or damage as a result of the prosecution. See, e.g., Benjamin v. Hooper Electronic Supply Co., 568 So.2d at 1188; Parker v. Mississippi Game and Fish Commission, 555 So.2d 725, 728 (Miss.1989); Royal Oil Co., Inc. v. Wells, 500 So.2d at 442; Woolfolk v. Tucker, 485 So.2d 1039, 1043 (Miss.1986); Owens v. Kroger Co., 430 So.2d 843, 846 (Miss.1983); and Gandy v. Palmer, 251 Miss. 398, 414, 169 So.2d 819, 826 (1964).

To succeed in such an action, a plaintiff must produce evidence of each of these six elements and must persuade the jury on each point that the evidence preponderates in his favor. The proof must be sifted and tested, each element independent of the others, and, on appeal, we must reverse if we find the proof legally insufficient on any one of the six points.

C.

Nicholson's and Ellis' judgments seem quite secure on elements (1), (2), and (6). Without dispute, Strong and Ladner each brought criminal charges--grand larceny--against Nicholson...