Danielson v. Hess

#25879-a-SLZ
2011 S.D. 82IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
TRENTON JAY DANIELSON, Plaintiff and Appellant,
v.
JAMES I. HESS, JAKE J. JANSEVICS,
and MINITMAN, INC., A SOUTH
DAKOTA CORPORATION, Defendants and Appellees.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA
****
THE HONORABLE JOHN W. BASTIAN
Judge
****
JON J. LAFLEUR of
Abourezk & Zephier, PC
Rapid City, South Dakota Attorneys for plaintiff
and appellant.
THOMAS E. BRADY
RICHARD A. PLUIMER of
Brady Pluimer, PC
Spearfish, South Dakota Attorneys for defendants
and appellees.
****
CONSIDERED ON BRIEFS
ON AUGUST 23, 2011
OPINION FILED 12/07/11
#25879
ZINTER, Justice
[¶1.] Trent Danielson was prosecuted for theft from his employer’s auto
repair business, but he was acquitted by a jury. He later commenced this action for
malicious prosecution against his employer. The circuit court granted summary
judgment in favor of the employer. The court ruled that Danielson did not establish
legal causation between the employer’s report of theft and the criminal prosecution.
The court also concluded that Danielson failed to establish the absence of probable
cause to prosecute. On appeal, Danielson acknowledges that the decision to
prosecute was made by the state’s attorney and grand jury following investigations
by the police and state’s attorney. Nevertheless, Danielson contends that his claim
is actionable because his employer did not give full and correct information to the
authorities. We affirm the circuit court.
Facts and Procedural History
[¶2.] In 2006, Danielson was employed as a mechanic and auto painter at
Rocket Lube, a vehicle lubrication and repair business owned by Minitman, Inc. Dr.
Thomas Cox was a customer of Rocket Lube and minority shareholder of Minitman,
Inc. In early September 2006, Dr. Cox complained to James Hess – the President
and majority shareholder of Minitman, Inc. – about poor workmanship on his cars
and about being overbilled. The dispute was resolved, and it was agreed that Dr.
Cox’s cars would be fixed at the expense of Rocket Lube.
[¶3.] Sometime after this agreement, Danielson went to Dr. Cox’s residence
and requested a $300 check for repair work done on one of Dr. Cox’s cars. Dr. Cox
acquiesced, but he complained to Hess in light of the agreement that Rocket Lube
-1-
#25879
would fix Dr. Cox’s cars at Rocket Lube’s expense. Hess subsequently learned that
Danielson had obtained a total of seven checks from Dr. Cox over sixteen months
but had not remitted the checks to Rocket Lube. Hess suspected that Danielson
was stealing from Rocket Lube. Days later, Hess fired Danielson because Danielson
did not turn over Dr. Cox’s $300 check. Hess and Jake Jansevics, the manager of
Rocket Lube, then reviewed Rocket Lube’s records. They compiled a report of parts,
tools, and money they believed Danielson had stolen from Rocket Lube during his
employment.
[¶4.] Hess and Jansevics turned their report over to Spearfish Police
Department Officer Darin Pedneau. Pedneau subsequently conducted his own
investigation, which included interviews of Danielson, Hess, Jansevics, Dr. Cox,
employees of auto-part stores, and employees of Rocket Lube. Pedneau also
collected invoices from auto-part stores that had done business with Rocket Lube
and Danielson. Upon completion of his investigation, Pedneau concluded that theft
had been committed, and he requested the Lawrence County State’s Attorney’s
Office to issue a warrant for Danielson’s arrest. Lawrence County State’s Attorney
John Fitzgerald made the decision to prosecute. Fitzgerald presented his case
against Danielson to a grand jury. The grand jury indicted Danielson for felony
grand theft.
[¶5.] Months later, Danielson’s private investigator informed Pedneau and
Fitzgerald that he thought Hess and Jansevics retained auto parts at Rocket Lube
that they had previously alleged were stolen by Danielson. Pedneau and Fitzgerald
-2-
#25879
both investigated the private investigator’s allegation. Following the investigation,
Fitzgerald decided to proceed with the prosecution.
[¶6.] A jury trial was held in July 2008. Danielson moved for judgments of
acquittal at the close of the State’s case and after all the evidence had been
submitted. Both motions were denied. The court ruled that there was sufficient
evidence to submit the case to the jury. The jury, however, acquitted. See State v.
Danielson, 2010 S.D. 58, 786 N.W.2d 354 (providing further background).
[¶7.] Danielson then commenced this suit against Hess, Jansevics, and
Minitman, Inc. for malicious prosecution, defamation, and retaliatory discharge
(involving a workers’ compensation claim). Appellees moved for summary judgment
on all claims. The circuit court granted summary judgment against Danielson on
the malicious prosecution and defamation claims. Danielson appeals the dismissal
of his claim for malicious prosecution.
Decision
[¶8.] “In reviewing a grant or a denial of summary judgment under SDCL
15-6-56(c), we determine whether the moving party has demonstrated the absence
of any genuine issue of material fact and showed entitlement to judgment on the
merits as a matter of law.” Lindskov v. Lindskov, 2011 S.D. 34, ¶ 7, 800 N.W.2d
715, 717-18. “The circuit court’s conclusions of law are reviewed de novo.” Johnson
v. Sellers, 2011 S.D. 24, ¶ 11, 798 N.W.2d 690, 694. “All reasonable inferences
drawn from the facts must be viewed in favor of the non-moving party.” Gail M.
Benson Living Trust v. Physicians Office Bldg., Inc., 2011 S.D. 30, ¶ 9, 800 N.W.2d
340, 342-43. However, “[e]ntry of summary judgment is mandated against a party
-3-
#25879
who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof
at trial.” Dakota Indus., Inc. v. Cabela’s.com, Inc., 2009 S.D. 39, ¶ 11, 766 N.W.2d
510, 513.
[¶9.] There are six elements required to prove malicious prosecution:
(1) The commencement or continuance of an original criminal or
civil judicial proceeding; (2) its legal causation by the present
defendant against plaintiff, who was defendant in the original
proceeding; (3) its bona fide termination in favor of the present
plaintiff; (4) the absence of probable cause for such proceeding;
(5) the presence of malice therein; (6) damage conforming to
legal standards resulting to plaintiff.
Heib v. Lehrkamp, 2005 S.D. 98, ¶ 21 n.8, 704 N.W.2d 875, 884 n.8. A plaintiff
must prove all six elements. Miessner v. All Dakota Ins. Assocs., Inc., 515 N.W.2d
198, 200 (S.D. 1994). In this case, it is only necessary to discuss the question of
legal causation.
[¶10.] “If the defendant is not ‘the proximate and efficient cause of
maliciously putting the law in motion,’ but rather the state’s attorney or an officer
of the law pushes the prosecution forward, that defendant is not liable.” Leisinger
v. Jacobson, 2002 S.D. 108, ¶ 14, 651 N.W.2d 693, 698 (quoting Malloy v. Chi., M &
St. P. Ry. Co., 34 S.D. 330, 337, 148 N.W. 598, 600 (1914)), overruled on other
grounds by State v. Martin, 2004 S.D. 82, 683 N.W.2d 399. Danielson acknowledges
this rule but alleges that Appellees knew or should have known that their reports of
theft were not “full and correct.”1 “This Court and many other jurisdictions have
1. Danielson specifically contends that: (1) Appellees reported that Danielson
stole auto parts when, in fact, the parts were still at Rocket Lube, were in
(continued . . .)
-4-
#25879
held that defendants cannot insulate themselves from a malicious prosecution in
reporting crimes to the authorities unless they have given ‘full and correct’
information to those authorities.” Sabag v. Cont’l S.D., 374 N.W.2d 349, 355 (S.D.
1985) (citations omitted). However, it is also well established that it is not
sufficient to only show that information was withheld or false. The withheld or
false information must be the legal cause of the prosecution. “[I]f the State’s
prosecutors do their own investigation, prepare the complaint, or if an informer only
tells law enforcement about a possible offense, the informant is not liable for
malicious prosecution.” Leisinger, 2002 S.D. 108, ¶ 14, 651 N.W.2d at 698. See also
Miessner, 515 N.W.2d at 201 (“If the defendant merely states what is believed,
leaving the decision to prosecute entirely to the uncontrolled discretion of the
officer, or if the officer makes an independent investigation, . . . the latter is not
regarded as having instigated the proceeding.” (emphasis added) (quoting W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 119, at 872-73 (5th ed.
1984))).
[¶11.] In Malloy, this Court specifically addressed the necessity of proving
legal causation when false or withheld information is involved. 34 S.D. 330, 148
N.W. 598. We affirmed a directed verdict on a cause of action for malicious
prosecution where one of the employees of the defendant who had reported the theft
________________________
(. . . continued)
customers’ vehicles, or were properly paid for; (2) Appellees reported that
Danielson stole tools when, in reality, the tools were replacements Rocket
Lube was supposed to provide for Danielson’s broken tools; and (3) Appellees
reported that Danielson misappropriated Dr. Cox’s funds when Danielson
was legitimately using Dr. Cox’s checks to buy parts for Dr. Cox’s vehicles.
-5-
#25879
indicated that the prosecution was being sought for reasons unrelated to the
plaintiff’s guilt and another of the defendant’s employees had said “we know you
[the plaintiff] are innocent.” Id. at 336, 148 N.W. at 599. Those facts were of no
consequence because after the allegation of theft was made, “the evidence showed
without dispute that the state’s attorney, after having made a full and personal
investigation of the matter, prepared the complaint and advised [the defendant’s
employee] to father it, thus eliminating any question as to the liability of the
defendant . . . .” Id. at 337, 148 N.W. at 600. We reasoned that the state’s attorney
did not rely upon the allegedly false or incomplete information. Rather, “[the state’s
attorney] made an independent investigation and it can be fairly deduced from the
evidence that it was because of such investigation, and not because of [the
defendant’s employee’s] representations, that the state’s attorney advised the
prosecution.” Id.
[¶12.] The rule requiring proof of legal causation where there has been false
or incomplete reporting is also recognized in other jurisdictions. See, e.g., King v.
Graham, 126 S.W.3d 75 (Tex. 2003). Like our decision in Sabag, Texas applies the
rule that “a person cannot be liable for malicious prosecution if ‘the decision
whether to prosecute is left to the discretion of another, including a law enforcement
official or the grand jury, unless the person provides information which he knows is
false.’” King, 126 S.W.3d at 76 (citation omitted). But providing proof of false
information is not by itself sufficient. There must also be “proof that the false
information ‘cause[d] a criminal prosecution.’ In other words, there must be proof
that the prosecutor acted based on the false information and that but for such false
-6-
#25879
information the decision would not have been made.” Id. (alteration in original)
(citation and footnote omitted). Thus, “[i]f the decision to prosecute would have
been made with or without the false information, the complainant did not cause the
prosecution by supplying false information.” Id. at 78. See also Matthews v. Blue
Cross & Blue Shield of Mich., 456 Mich. 365, 385, 572 N.W.2d 603, 613 (1998)
(“Unless the information furnished was known by the giver to be false and was the
information on which the prosecutor acted, the private person has not procured the
prosecution.”) (second emphasis added). This independent causation requirement
has also been adopted in the Restatement (Second) of Torts § 653 cmt. g (1977):
In order to charge a private person with responsibility for the
initiation of proceedings by a public official, it must therefore
appear that his desire to have the proceedings initiated,
expressed by direction, request or pressure of any kind, was the
determining factor in the official’s decision to commence the
prosecution, or that the information furnished by him upon
which the official acted was known to be false.
(Emphasis added.) “Therefore, to recover for malicious prosecution when the
decision to prosecute is within another’s discretion, the plaintiff has the burden of
proving that that decision would not have been made but for the false information
supplied by the defendant.” King, 126 S.W.3d at 78.
[¶13.] Because Danielson carried the trial burden of proving causation, the
question is whether he identified any specific facts suggesting that Fitzgerald’s
decision to prosecute would not have been made but for the allegedly false and
incomplete information. In All American Telephone, Inc. v. USLD Communications,
Inc., the appellants asserted that the appellees procured criminal prosecutions by
“providing false information and withholding material information from the
-7-
#25879
government.” 291 S.W.3d 518, 534 (Tex. App. 2009). However, the Texas court
observed that the appellants did not provide transcripts or filings from their
criminal cases to indicate how the prosecution relied on the appellees’ alleged
untrue statements and non-disclosures. Id. at 535. Also, there was evidence that
the prosecution relied on information other than the allegedly false information
provided by the appellees. Therefore, the court held that the appellants’ showing
was insufficient to overcome the summary judgment burden of showing that the
appellees’ alleged misrepresentations were the but-for cause of the prosecutions
against the appellants. Id. at 534-35.
[¶14.] In the case we consider today, Danielson focuses on evidence relating
to falsity and incompleteness of the report given to the police and state’s attorney.
But even if the information provided by Hess and Jansevics was not full and correct,
Danielson failed to present any evidence that he would not have been prosecuted
but for Hess and Jansevics’s allegedly false and incomplete information. All of the
evidence is to the contrary. There is no dispute that Officer Pedneau and State’s
Attorney Fitzgerald performed an independent investigation that considered much
more than the information provided by Hess and Jansevics. Pedneau’s
investigation included interviews of the individuals with first-hand information
independent of that given by Hess and Jansevics.2 Pedneau also obtained copies of
the parts invoices at issue from the auto-part stores. Furthermore, Fitzgerald
stated in his unrefuted affidavit that he reviewed Pedneau’s investigative report in
2. Those witnesses included Josh Walker, Caleb Schipke, Dr. Cox, Robert
Kemp, Peter Miller, Rich Rivers, and Larry Harding.
-8-
#25879
deciding to prosecute Danielson. In addition, Fitzgerald hired an expert to examine
work that Danielson claimed he had performed on Dr. Cox’s vehicles. The expert
was also retained to provide an opinion regarding vehicle parts, including how such
parts would be used and if such parts were used for Rocket Lube’s vehicles.
[¶15.] It is also significant that Danielson’s investigator informed Officer
Pedneau of Danielson’s defenses, including evidence that allegedly showed Rocket
Lube had falsely reported. Thereafter, Pedneau and Fitzgerald reviewed
Danielson’s investigator’s information, went to Rocket Lube, and investigated
Danielson’s defenses. Fitzgerald also met with Danielson’s attorney and reviewed
the exculpatory information Danielson’s attorney provided. Ultimately, the police
and the prosecutor were presented with the same evidence of false and incomplete
information that Danielson presents to this Court today. Nevertheless, following
their own independent investigations, the police and state’s attorney made an
independent decision to move forward with the prosecution.3
[¶16.] We conclude that the summary judgment facts only point to one
inference: Appellees’ report was not the legal cause of the prosecution. Even if we
assume that Danielson identified facts from which an inference could be drawn that
full and complete information was not provided by the principals of Rocket Lube,
3. Danielson’s reliance on Chien ex rel. Chien v. City of Sioux Falls, 393 F. Supp.
2d 916 (D.S.D. 2005), is misplaced. Chien is distinguishable because there
was no evidence in that case that the highway patrolman and prosecutor
performed a full and independent investigation. On the contrary, the
highway patrolman that came to the scene of the accident in Chien was
unable to speak with the on-the-scene witnesses because of the defendants’
conduct. The patrolman was only able to talk to the defendants and the
plaintiff.
-9-
#25879
Danielson identified no facts suggesting that the prosecution was based on such
information and that but for such information the decision to prosecute would not
have been made by the prosecutor. We therefore affirm.
[¶17.] GILBERTSON, Chief Justice, KONENKAMP and SEVERSON,
Justices, and MEIERHENRY, Retired Justice, concur.
[¶18.] WILBUR, Justice, did not participate.
-10-