No. 83-471
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
CARSON H. VEHRS, JR.,
Plaintiff and Appellant,
JOHN PIQUETTE, GEORGE H. MITCHELL,
et al.,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Moses Law Firm; Charles F. bloses argued, Billings,
Flontana
For Respondents:
Boone, Karlberg 8, Haddon; Sam Haddon argued for
Piquette, Missoula, Montana
Johnson 8, Johnson; Larry Johnson argued for Piquette,
Hamilton, Montana
Dexter Delaney argued for Mitchell, blissoula,
Montana
Submitted: April 1 9 , 1 9 8 4
Decided: June 8 , 1984
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
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.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 1 9 7 7 - 1 9 7 8 . Vehrs engaged in ques-
tionable 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 Univer-
sity equipment and food stuffs for private wine tasting
parties and resold wine purchased for these parties to par-
ticipants 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 Rowers, 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 decid-
ed 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 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 stat-
ute, section 2-9-305, MCA. This count was dismissed by the
trial court as barred by the two-year period of lirni-tations
of section 27-2-211, MCA. The dismissal of this count is not
being appealed.
Count I1 alleges a right of recovery of attorney fees
based on Vehrs's employment contract, and Count I11 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 Attor-
ney 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 Monta.na 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 11, I11
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 Counts I1 and 111. The court ordered that
defendants Piquette, Mitchell and Bower be dismissed from the
proceeding and plaintiff Vehrs be limited at trial on Counts
I1 and 111 to proof established by documents previously
produced by d-iscovery or readily accessible to both parties.
Vehrs appeals the dismissal of his malicious prosecu-
tion suit and the limitation of proof placed on his remaining
claims.
The trial court dismissed the malicious prosecution
claim as the evidence and affidavits failed to demonstrate
proof of all the recognized elements of malicious prosecu-
tion. These elements are set forth in Reece v. Pierce Floor-
ing (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 da-mage.
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.
Add.itionally, the proceedings did not terminate favora.bly for
Vehrs.
Counsel for Vehrs contended that there were genuine
issues of materia.1 fact present and summary judgment was
therefore improper. For instance, in his affidavit Vehrs
alleges that Mitchell and Bowers forwarded results of their
investigation to the Legislative Auditor without accepting
recommendations by the University internal auditor that no
outside action be taken. Vehrs alleges this caused the
filing of the information and of prosecution.
Appellant's arguments are without merit. First, the
bald assertion in an affidavit that defendants caused the
malicious prosecution of plaintiff does not raise a genuine
issue as to who was responsible for the initiation of the
prosecution. Conclusionary or speculative statements are
insufficient to raise a genuine issue of material fact.
Fauerso v. Maronick Construction Co. (Mont. 1983), 661 ~ . 2 d
Second, the University defendants in furnishing infor-
mation to the Legislative Auditor were fulfilling a statutory
duty. Section 5-13-309(3), MCA, provides:
"The head of each state agency shall
immediately notify both the attorney
general and the legislative auditor in
writing upon the discovery of any theft,
actual or suspected, involving state
moneys or property under his control or
for which he is responsible."
By the time defendants forwarded their investigation to the
auditor, Vehrs's own admissions ha.d raised a suspicion of
theft. Our opinion in Wheeler v. Moe (1973), 163 Mont. 154,
515 P.2d 679, addresses the situation:
"It is the duty of defenda.nts to enforce
the 1a.w~ the State of Montana.. Defen-
of
dants cannot be held accountable in civil
liability for carrying out this official
duty within the authority and. means
prescribed by law. Plaintiff's complaint
alleges nothing more than the defendants
acted within their duties and authority
and pursuant to law." 163 Mont. at 163,
515 P.2d at 684.
Finally, the decision to prosecute came from the
Missoula County Attorney's office. All respondents did was
furnish information to the prosecutor. The act of providing
information to authorities without more is not actionable.
See, Rose v. Whitbeck (1977), 277 Or. 803, 562 ~ . 2 d194;
Restatement (Second) of Torts, $5 653, comment g (1977).
A second essential element required by Reece is lack-
ing: the criminal proceedings did not terminate favorably
for Vehrs. The facts show a single investigation was for-
warded to the proper authorities. These authorities decided
how to charge Vehrs. The end result was that Vehrs was
acquitted of one count and plea bargained his way out of the
two other counts by pleading guilty to a criminal charge
arising from the same investigation. Examining the entire
circumstances, Vehrs cannot be heard. now to claim the pro-
ceedings terminated in his favor.
A proceeding that terminates indecisively because of a
settlement or plea negotiation agreement does not meet the
requirements of a cause of action for mal.icious prosecution.
Restatement (Second) of Torts, S 660 (1977) . In Joiner v.
Benton Community Ba.nk (1980), 82 I11.2d 40, 411 N.E.2d 229,
the Illinois Supreme Court held that a malicious prosecution
action is barred if it is predicated upon an action that did
not conclusively show the innocence of the accused. In
Joiner the plaintiff had been previously indicted for theft,
but the action was dismissed when full restitution had been
made. The decision is procedurally analogous to the case at
bar as the Illinois trial court dismissed the plaintiff's
malicious prosecution suit by granting defendant summary
jud-gment. The Supreme Court affirmed and noted that summary
judgment was a means of disposing of cases which did not have
any factual disputes.
Similarly, in Mondrow v. Selwyn ( 1 9 8 0 ) , 172 N.J.Super.
379, 412 A.2d 447, an appellate court of New Jersey found an
indecisive termination did not support a malicious prosecu-
tion cause of action. The plaintiff in Mondrow was charged
with assault, but the charge was withdrawn pursuant to an
agreement between the parties' attorneys. This outcome was
held not to be sufficiently favorable to constitute malicious
prosecution. In Mondrow, as in this case, the prosecution
dropped one charge and replaced it with another arising out
of the same factual situation. The New Jersey court comment-
ed that the defendant should not be placed in peril of civil
liability for an improper charge selection when the police
were involved in filing the complaint.
The reasoning of these jurisdictions is persuasive and
can be applied to the present situation. The Missoula County
Attorney's office decided how to initially charge Vehrs.
Defendants cannot be held accountable for the particular
charges filed. The investigation and. subsequent prosecution
must be viewed in its entirety. Where three charges are
made, the defendant is acquitted of one, two are dismissed
pursuant to a plea agreement, and a guilty plea is entered to
a substituted charge, the prosecution cannot be said. to have
terminated favorably for the defendant.
For the foregoing reasons, Vehrs failed to establish
the prima facie elements of malicious prosecution. There was
no factual dispute as to who initia.ted the prosecution and
its unfavorable outcome. The summary judgment was properly
granted; w ' need not decide whether the Reece elements of
e
probable cause or malice were present.
The second issue before this Court is whether the
District Court properly limi.ted the plaintif f ' s proof on
remaining counts to evidence contained in discovery documents
and documents readily accessible to both parties. Judge
Wheelis issued this limitation order upon motion of defen-
dants' attorneys. The rationale expressed by the trial judge
in the order was that this was "in keeping with Montana's
strict position on discovery--as set forth in Owen v. F. A.
Buttrey Co. [(Mont. 1981), 627 P.2d 1233, 38 St.Rep. 7141."
The abuse of discovery precipitating this order includ-
ed late filing of interrogatories, unverified answers and
incomplete responses. Vehrs's counsel was served with two
sets of interrogatories May 13, 1983. Answers were not
returned within the thirty-day time period set forth by Rule
33 (a), M.R.Civ.P. The answers were filed late on June 21,
1983. When they were returned, the answers were not signed
by Vehrs, the party making them--a further derogation of Rule
33(a). Finally, the interrogatories were not fully answered.
Numerous answers were nonresponsive; appellant objected that
the information was a.lready known or available to defendants.
Reference was made in the District Court order to our
decision in Owen v. F. A. Buttrey Co., supra. Owen was a
products liability case in which the defendant, cosmetic
manufacturer Revson, repeatedly failed to respond to discov-
ery requests. The Missoula County District Court issued
several orders to Revson to answer questions concerning prior
knowledge of allergic reactions by its customers. Finally
Judge Wheelis ordered Revson's answers to admissions be
stricken, and the company was deemed to have prior knowledge
that the product was defectively designed. A judgment in
favor of the consumer plaintiff resulted.
Appellant argues that this case is distinguishable from
the Owen situation. In Owen there were specific orders by
the court compelling discovery issued to the defendant cos-
metic manufacturer. Only after these orders were ignored and
a hearing was held, did the District Court invoke the discov-
ery sa-nctions of Rule 37, M.R.Civ.P. Specifically, it is
argued that Rule 37(b) provides that a party must fail to
obey a court order compell-ing answers before the party not
answering can be sanctioned. Here, there was no order issued
prior to the limitation being placed on allowable proof at
trial.
Appellant fails to recognize that Rule 37 (d), not
37(h), was the basis of our decision in Owen affirming Judge
Wheelis' discovery sanction in that case. Rule 37(d),
M.R.Civ.P., addresses a "failure of party to attend at own
deposition or serve answers to interrogatories or respond to
request for inspection." The rule provides that the District
Court "may make such orders in regard to the failure as are
just . . ." Certain sanctions are specifically enumerated
including a prohibition against introducing certain evidence
at trial.
Rule 37(d), M.R.Civ.P., and Owen control disposition of
this case. The District Court was acting well within the
confines of its discretion when it imposed the discovery
sanctions at issue. Respondents filed. their motion request-
ing the discovery limitation because they felt appellant was
attempting to withhold information. They felt their cause
would be prejudiced if appellant was allowed to surprise them
at trial with evidence of damages and the contractual hasis
of Vehrs's reimbursement claim. It was the interrogatory
answers addressing these areas that were nonresponsive.
Recognizably the facts of this case do not rise to the
level of abuse present in Owen or other landmark cases in
which sanctions of Rule 37 have been invoked. See, National
Hockey League v. Metro. Hockey Club, Inc. (1976), 427 U.S.
639, 96 S.Ct. 2778, 49 L.Ed.2d 747. However, all the trial
judge did here was limit proof at trial to matters which had
been disclosed through discovery. The more draconian step of
deeming certain matters admitted by Vehrs was not taken. The
sanction was well-tailored to the discovery abuse present.
The trial of this case has been limited to facts dis-
closed, as opposed to facts withheld. The result is equita-
ble in that the limitation was brought about by the actions
of Vehrs and his attorney in responding to discovery.
The decision is affirmed.
3!&4* gw&
Chief Justice
We concur: