DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2008 MT 203N

Similar documents
IN THE SUPREME COURT OF THE STATE OF MONTANA

IN THE SUPREME COURT OF THE STATE OF MONTANA

Eagle Bend West Community Association, Inc. In the greater Harbor Village community- a great place to live! Memo

IN THE SUPREME COURT OF THE STATE OF MONTANA

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2010 MT 202N

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2012 MT 107N

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 257

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2014 MT 228N

IN THE SUPREME COURT OF THE STATE OF MONTANA

IN THE SUPREME COURT OF THE STATE OF MONTANA

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2014 MT 103N

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2014 MT 105

IN THE SUPREME COURT OF THE STATE OF MONTANA

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2010 MT 243N

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2011 MT 79

IN THE SUPREME COURT OF THE STATE OF MONTANA

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2010 MT 35

IN THE SUPREME COURT OF THE STATE OF MONTANA

IN THE SUPREME COURT OF THE STATE OF MONTANA

No IN THE SUPREME COURT OF THE STATE OF MONTANA 2004 MT 245

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2010 MT 57

No IN THE SUPREME COURT OF THE STATE OF MONTANA 2004 MT 328

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2014 MT 196

No IN THE SUPREME COURT OF THE STATE OF MONTANA 2004 MT 263N

No. DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 130

IN THE SUPREME COURT OF THE STATE OF MONTANA

No IN THE SUPREME COURT OF THE STATE OF MONTANA 2001 MT Mont P.3d 441 STATE OF MONTANA, Plaintiff and Respondent,

No IN THE SUPREME COURT OF THE STATE OF MONTANA 2001 MT 251. ROBERT D. DuBRAY, Plaintiff and Appellant, FARMERS INSURANCE EXCHANGE and

No IN THE SUPREME COURT OF THE STATE OF MONTANA 2005 MT 255

IN THE SUPREME COURT OF THE STATE OF MONTANA

No IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 248

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2009 MT 47

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2012 MT 282

IN THE SUPREME COURT OF THE STATE OF MONTANA

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 122

No IN THE SUPREME COURT OF THE STATE OF MONTANA 2004 MT 15

No IN THE SUPREME COURT OF THE STATE OF MONTANA 2000 MT 202

IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MICHIGAN COURT OF APPEALS

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 255

NO IN THE SUPREME COURT OF THE STATE OF MONTANA

No IN THE SUPREME COURT OF THE STATE OF MONTANA 2000 MT Mont P. 3d 342 FOUR RIVERS SEED COMPANY.

1 Karl Eric Gratzer, who was convicted of deliberate homicide in 1982 and who is

Zirkelbach Constr., Inc. v. DOWL, LLC

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 78

Summary: This case supports the definition of an irrigation district as a "unit of local government. See highlighted portions.

STATE OF MICHIGAN COURT OF APPEALS

On July 11, 2006, Petitioners filed their Verified Petition for Injunctive Relief and

COLORADO COURT OF APPEALS 2013 COA 97

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Court of Appeals. First District of Texas

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2010 MT 275

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO. v. No. 31,751

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS. Division III Opinion by: JUDGE TAUBMAN Loeb and Hawthorne, JJ., concur. Announced: March 20, 2008

NO IN THE SUPREME COURT OF THE STATE OF MONTANA 1995

Hill Cnty. High Sch. Dist. No. A v. Dick Anderson Constr., Inc.

No IN THE SUPREME COURT OF THE STATE OF MONTANA 2001 MT 30 ORLAN AND TRINA STROM, Plaintiffs and Respondents,

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY. Trial Court No. CI City of Toledo

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

IN THE SUPREME COURT OF THE STATE OF MONTANA

Third District Court of Appeal State of Florida

STATE OF MICHIGAN COURT OF APPEALS

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Court of Appeals Ninth District of Texas at Beaumont

Morrow, Gordon & Byrd, Ltd 10 West Broad Street, Suite W. Main Street, P.O. Box 4190 Columbus, OH Newark, OH

NO. CAAP IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI'I

THE UTAH COURT OF APPEALS

NO IN THE SUPREME COURT OF THE STATE OF MONTANA

NO CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS. CITY OF DALLAS, Defendant/Appellant,

STATE OF MICHIGAN COURT OF APPEALS

IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Superior Court in Maricopa County

Certiorari Not Applied For COUNSEL

-vs- NO IN THE SUPREME COURT OF THE STATE OF MONTANA. STATE OF MONTANA, Plaintiff and Appellant,

IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DA IN THE SUPREME COURT OF THE STATE OF MONTANA 2017 MT 12

I N T H E COURT OF APPEALS OF INDIANA

Follow this and additional works at:

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

No IN THE SUPREME COURT OF THE STATE OF MONTANA

SUPREME COURT OF ALABAMA

DANTAN SALDAÑA, Plaintiff/Appellant, No. 2 CA-CV Filed July 21, 2017

Fourteenth Court of Appeals

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

STATE OF MICHIGAN COURT OF APPEALS

Case 5:12-cv FPS-JES Document 117 Filed 05/15/14 Page 1 of 12 PageID #: 1973

STATE OF OHIO ) IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) DECISION AND JOURNAL ENTRY INTRODUCTION

v No Genesee Circuit Court GENESEE COUNTY, CHRISTOPHER LC No CZ SWANSON, and SHERIFF ROBERT PICKELL,

DEFENDANT S COUNTERCLAIM. Cause No COUNTY OF BASTROP ET AL IN THE 21 ST Plaintiff and counter-defendant,

IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) Appeal from the Superior Court in Maricopa County

COLORADO COURT OF APPEALS 2013 COA 176

MARC E. JOHNSON JUDGE

TERRON TAYLOR AND OZNIE R. MANHERTZ, Petitioners, Respondent, and. No. 2 CA-SA Filed September 25, 2014

NO IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

Campbell v. West Pittston Borough

Transcription:

June 10 2008 DA 07-0401 IN THE SUPREME COURT OF THE STATE OF MONTANA 2008 MT 203N DAVID WHITE and JULIE WHITE, v. Plaintiffs and Appellants, STATE OF MONTANA, Barbara Harris, individually and as Special Prosecutor for Madison County, Montana, and as Assistant Attorney General for the State of Montana, MADISON COUNTY SHERIFF DAVE SCHENK, MADISON COUNTY DEPUTY SHERIFF DAN BIRDSILL, MADISON COUNTY DEPUTY SHERIFF EVAN ANDREN, CURTIS KRUER, STEPHANIE KRUER, and DOES I-X, Defendants and Appellees. APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Madison, Cause No. DV 29-2005-43 Honorable Wm. Nels Swandal, Presiding Judge COUNSEL OF RECORD: For Appellant: F. Ron Newbury, Attorney at Law, Helena, Montana For Appellee State of Montana and Barbara Harris: Hon. Mike McGrath, Montana Attorney General, Paul D. Johnson, Assistant Attorney General, Helena, Montana For Appellees Madison County Sheriff Dave Schenk and Madison County Deputy Sheriffs Dan Birdsill and Evan Andren: Richard Larson, Harlen, Chronister, Parish & Larson, P.C., Helena, Montana For Appellees Stephanie and Curtis Kruer: Patrick M. Sullivan, Attorney at Law, Butte, Montana

Submitted on Briefs: April 24, 2008 Decided: June 10, 2008 Filed: Clerk 2

Justice Patricia O. Cotter delivered the Opinion of the Court. 1 Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following memorandum decision shall not be cited as precedent. Its case title, Supreme Court cause number and disposition shall be included in this Court s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. 2 On August 23, 2005, David and Julie White (Whites) filed a seven count complaint against the above-named appellees in the District Court of the Fifth Judicial District, Madison County. The Whites now appeal five orders of the District Court granting three motions to dismiss and two motions for summary judgment, which resulted in the dismissal of all counts in their complaint against all appellees. We affirm. 3 On September 26, 2003, Madison County Deputy Sheriff Dan Birdsill (Birdsill) issued two misdemeanor citations to David White one for criminal trespass to property, the other for criminal mischief. The events leading to the issuance of the citations are briefly described as follows. David White was employed by Three Creeks Ranch, L.L.C. (Three Creeks). Curtis and Stephanie Kruer (Kruers) are owners of lots in the Three Creeks Ranch Subdivision which is located in Madison County. During the irrigation season of 2003, David White was responsible for irrigating some land owned by Three Creeks. In the course of performing his work for Three Creeks, he and the Kruers became embroiled in a dispute over water usage. This dispute ultimately led Curtis Kruer to place a lock on a panel box which controlled an irrigation pump system on September 26, 2003. Later that day, David White removed the lock so that he could access the panel 3

box. After David White cut the lock, Curtis Kruer reported this incident to the Madison County Sheriff s Department, leading to the two misdemeanor citations against David White. 4 In April 2004, the Madison County Justice Court dismissed the criminal trespass charge against David White, but convicted him on the criminal mischief charge. David White appealed his conviction to the District Court, which dismissed the charge in August 2004. On August 23, 2005, the Whites filed their complaint against appellees containing the following seven counts: Count I, seeking attorneys fees and costs against all appellees under the secondary easement statute, 70-17-112, MCA; Count II, malicious prosecution as against all appellees; Count III, intentional infliction of serious emotional distress as against all appellees; Count IV, negligent infliction of serious emotional distress as against all appellees; Count V, abuse of process, as against all appellees; Count VI, defamation, as against the Kruers; and Count VII, tortious interference with contract, as against all appellees. 5 On November 8, 2005, the District Court granted a motion filed by the Kruers to dismiss Count I of the complaint. On November 21, 2005, the District Court granted a motion filed by the state of Montana and Madison County Prosecutor Barbara Harris (Harris) to dismiss all counts of the Whites complaint as against them. On December 15, 2005, the District Court granted a motion to dismiss Count I of the Whites complaint filed by Madison County Sheriff Dave Schenk (Schenk), Madison County Deputy Sheriff Evan Andren (Andren), and Birdsill. On May 18, 2007, the District Court granted summary judgment to the Kruers on the remaining counts of the Whites complaint. That 4

same day, the District Court granted Birdsill, Schenk, and Andren summary judgment on the remaining counts of the Whites complaint as well. 6 A complaint should not be dismissed for insufficiency under M. R. Civ. P. 12(b)(6), unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Cowan v. Cowan, 2004 MT 97, 10, 321 Mont. 13, 10, 89 P.3d 6, 10. Here, the District Court did not err in dismissing Count I as against all appellees. Because David White was only an employee of Three Forks and not a holder of a ditch or easement, he could not seek attorney s fees and costs under 70-17-112, MCA. Thus, the Whites simply failed to state a claim for which relief could be granted under Count I and dismissal was proper under M. R. Civ. P. 12(b)(6). 7 Similarly, the District Court did not err in dismissing Counts II through VII of the Whites complaint as against the state of Montana and Harris. As the District Court correctly noted, these appellees enjoy prosecutorial immunity from suit for action taken in the course of their prosecutorial duties. State ex rel. Dept. of Justice v. Dist. Ct. of the Eighth Jud. Dist., 172 Mont. 88, 91-93, 560 P.2d 1328, 1329-31 (1976). Because the Whites complaint seeks relief against these appellees based on conduct taken in the course of their prosecutorial duties, the District Court was correct to grant the motion to dismiss filed by Harris and the state of Montana. 8 Additionally, we conclude the District Court did not err in granting summary judgment to the Kruers, Schenk, Birdsill, and Andren. We review a district court grant of summary judgment de novo, employing the standards set forth in M. R. Civ. P. 56(C). 5

Flathead Citizens for Quality Growth, Inc. v. Flathead Co. Bd. of Adjustment, 2008 MT 1, 31, 341 Mont. 1, 31, 175 P.3d 282, 31. Summary judgment is only appropriate when the moving party has met its initial burden by showing that no genuine issue of material fact exists, the non-moving party has failed to demonstrate that a genuine issue of fact exists precluding summary judgment, and the moving party has demonstrated that it is entitled to judgment as a matter of law. Flathead Citizens, 31. We review a district court s conclusions of law for correctness. Flathead Citizens, 31. 9 As noted by the District Court, the Whites did not argue below that Birdsill, Schenk, and Andren, failed to meet their burden on summary judgment with respect to Counts III, IV, V, and VII. Further, the Whites did not argue that the Kruers failed to meet their burden on summary judgment with respect to Counts III through VII. On appeal, the Whites have similarly failed to demonstrate that the District Court erred in granting summary judgment to the appellees on these counts of their complaint. 10 The Whites have also failed to demonstrate that the District Court erred in granting summary judgment to these appellees on Count II. Count II of the Whites complaint alleged malicious prosecution against the Kruers, Birdsill, Andren, and Schenk. As the District Court correctly noted, malicious prosecution has the following necessary elements: (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 a lack of probable cause for the defendant s acts; 6

(4) the defendant was actuated by malice; (5) the judicial proceeding terminated favorably for plaintiff; and (6) the plaintiff suffered damage. Plouffe v. Mont. Dept. of Pub. Health and Human Servs., 2002 MT 64, 16, 309 Mont. 184, 16, 45 P.3d 10, 16. If one of these elements is not proven by prima facie evidence, judgment as a matter of law may be entered for the defendant. Plouffe, 16. 11 With respect to the Kruers, the District Court noted that, at best, the Whites could only prove elements (1), (5) and (6), insofar as the charges against David White were commenced and prosecuted, ultimately dismissed, and he incurred attorney s fees in defending himself against those charges. On appeal, the Whites have not demonstrated that the District Court erred in this conclusion, and have not presented any evidence or argument showing that they can make the required prima facie showing with respect to the other elements as set forth in Plouffe. Thus, the District Court did not err in granting summary judgment to the Kruers on Count II of the Whites complaint. 12 Further, the District Court did not err in granting summary judgment to Birdsill, Schenk, and Andren on Count II of the Whites complaint. As noted by the District Court, the Whites presented no allegations that Schenk and Andren had anything to do with prosecuting David White, nor that they acted with malice. While Birdsill did issue citations against David White to instigate the proceedings, he had probable cause to do so based on the information provided by Curtis Kruer. The fact that the charges were later dismissed does not automatically imply that there was not probable cause to issue the 7

citations in the first place. Moreover, the Whites failed to demonstrate before the District Court, or now on appeal, that Andren acted with malice in issuing the citations. Thus, the District Court did not err in granting summary judgment to appellees Birdsill, Schenk, and Andren. 13 For these reasons we affirm the District Court. However, we decline to grant an award of attorney s fees against the Whites as requested by the appellees. /S/ PATRICIA COTTER We concur: /S/ W. WILLIAM LEAPHART /S/ JOHN WARNER /S/ JIM RICE /S/ BRIAN MORRIS 8