Vehrs v. Piquette, No. 83-471

• Docket Nº: No. 83-471
• Citation: 684 P.2d 476, 210 Mont. 386, 41 St.Rep. 1110
• Case Date: August 02, 1984
• Court: United States State Supreme Court of Montana

Page 476

684 P.2d 476 210 Mont. 386, 18 Ed. Law Rep. 1067 Carson H. VEHRS, Jr., Plaintiff and Appellant,
v.
John PIQUETTE, George H. Mitchell, et al., Defendants and Respondents. No. 83-471. Supreme Court of Montana. Submitted April 19, 1984.
Decided June 8, 1984.
Rehearing Denied Aug. 2, 1984.

[210 Mont. 387] Moses Law Firm, Charles F. Moses argued, Billings, for plaintiff and appellant.

Boone, Karlberg & Haddon, Sam Haddon argued, Missoula, and Johnson & Johnson; Lawrence Johnson argued, Hamilton, for Piquette.

Dexter Delaney argued, Missoula, for Mitchell.

Page 477

HASWELL, Chief Justice.

Plaintiff Carson Vehrs appeals an order of the Missoula County District Court granting defendants summary judgment dismissing his malicious prosecution suit. The order has been certified to this Court under Rule 54(b), M.R. [210 Mont. 388] Civ.P., as a final judgment. We affirm.

Vehrs's present action and appeal arose out of events transpiring when Vehrs was food service director at the University of Montana in 1977-1978. Vehrs engaged in questionable accounting practices and use of petty cash received by the food service department. Allegedly, Vehrs diverted concession revenue to a cash travel fund, colluded with a meat supplier to bill the cost of a staff luncheon to the food service as meat supplied to the University, used University equipment and food stuffs for private wine tasting parties and resold wine purchased for these parties to participants without a liquor license.

The above allegations led to an internal investigation of Vehrs's handling of University funds. This investigation was initiated by an employee of Vehrs, John Piquette, and conducted by University counsel, George Mitchell. These individuals and the president of the University at that time, Richard Bowers, are named defendants in this action and respondents on appeal.

Results of the internal investigation were forwarded to the Legislative Auditor and, in turn, to the Attorney General and County Attorney. Reviewing the information provided by respondents, Missoula County Attorney Robert Deschamps decided to prosecute Vehrs.

The original information filed March 13, 1978, alleged three criminal counts: (1) felony theft; (2) official misconduct; and, (3) felony sale of alcoholic beverages without a license. On the first charge, a jury acquitted Vehrs of felony theft for his involvement with the cash travel fund and a lesser included offense of official misconduct arising out of the same facts. The second count of felony official misconduct (arising out of the alleged false meat bill Vehrs submitted) and the third count were dismissed by the trial court at the request of the County Attorney. This request was made in conjunction with a plea bargaining agreement whereby Vehrs pled guilty to misdemeanor sale of alcohol without a license and the State agreed to drop the other [210 Mont. 389] charges. Vehrs retained counsel in these matters and incurred legal fees of $49,239.05.

Vehrs filed the present complaint on February 27, 1981. The complaint consisted of four counts. The first count alleged a right of recovery of attorney fees based on statute, section 2-9-305, MCA. This count was dismissed by the trial court as barred by the two-year period of limitations of section 27-2-211, MCA. The dismissal of this count is not being appealed.

Count II alleges a right of recovery of attorney fees based on Vehrs's employment contract, and Count III seeks recovery based on a "policy" of reimbursement. Count IV alleges that the named defendants are accountable for the malicious prosecution of Vehrs.

Affidavits and interrogatories were filed with the court supporting Vehrs's allegations. Missoula County Attorney Deschamps filed an affidavit in which he stated the investigation of the County Attorney's office was "conducted independent of the investigation previously carried out by the University of Montana." The affidavit also stated that the investigation was not participated in or controlled by any University employee: "The decision to prosecute Carson H. Vehrs was one arrived at by the Department of Justice and my office, and was based upon our independent investigation. No employee of the University of Montana caused the criminal proceedings to be instituted."

In June and July of 1983, motions for summary judgment were filed by defendants seeking dismissal of Counts II, III and IV of Vehrs's complaint.

By order of the District Court dated July 19, 1983, partial summary judgment as to Count IV was granted and denied as to

Page 478

Counts II and III. The court ordered that defendants Piquette, Mitchell and Bower be dismissed from the proceeding and plaintiff Vehrs be limited at trial on Counts II and III to proof established by documents previously produced by discovery or readily accessible to both parties.

Vehrs appeals the dismissal of his malicious prosecution [210 Mont. 390] suit and the limitation of proof placed on his remaining claims.

I

The trial court dismissed the malicious prosecution claim as the evidence and affidavits failed to demonstrate proof of all the recognized elements of malicious prosecution. These elements are set forth in Reece v. Pierce Flooring (Mont.1981), 634 P.2d 640, 38 St.Rep. 1655, and both parties agree that these criteria control. The six elements are:

(1) a judicial proceeding was commenced and prosecuted against the plaintiff;

(2) the defendant was responsible for instigating, prosecuting or continuing such proceeding;

(3) there was lack of probable cause for defendant's acts;

(4) defendant was actuated by malice;

(5) the judicial proceeding terminated favorably for plaintiff; and,

(6) the plaintiff suffered damage.

We hold that Vehrs failed to present a prima facie case of malicious prosecution as the University defendants, Piquette, Mitchell and Bowers, were not responsible for instigating, prosecuting or continuing Vehrs's prosecution. Additionally, the proceedings did not terminate favorably for Vehrs.

Counsel for Vehrs contended that there were genuine issues of material fact present and summary judgment was therefore improper. For instance, in his affidavit Vehrs alleges that Mitchell and Bowers forwarded results of...