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, 

Flon tana 

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 19, 1984 

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 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 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 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 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 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 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 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 prosecution 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 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 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 ~.2d 

Second, the University defendants in furnishing information 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~ of the State of Montana.. Defendants 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 ~.2d 194; 

Restatement (Second) of Torts, $5 653, comment g (1977). 

A second essential element required by Reece is lacking: the criminal proceedings did not terminate favorably 

for Vehrs. The facts show a single investigation was forwarded 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 proceedings 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 (1980), 172 N.J.Super. 

379, 412 A.2d 447, an appellate court of New Jersey found an 

indecisive termination did not support a malicious prosecution 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 commented 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; we' need not decide whether the Reece elements of 

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 defendants' 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 included 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 discovery 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 cosmetic manufacturer. Only after these orders were ignored and 

a hearing was held, did the District Court invoke the discovery 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 requesting 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 disclosed, as opposed to facts withheld. The result is equitable 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: