DA 07

- 0401 IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 203N DAVID WHITE and JULIE WHITE, Plaint iffs and Appellants,
v. STATE OF MONTANA, Barbara Harris, individually and as Special Prosecutor fo r Madison County, Montana, and as Assistant Attorney General f or 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 Fift h 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, A

ttorney at Law, Helena, M ontana For AppelleeState of Montana and Barbara Harris : Hon. Mike McGrath, Montana Attorney General, Paul

D. Johnson, Assistant Attorney

General, Helena, Montana For Appellees Madison Count y Sheriff Dave Schenk and Mad ison Count y Deput y 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, Mon

tana June 10 20082 Submitted on Briefs: April 24, 2008 Decided: June 10, 2008 Filed:

__________________________________________ Clerk3

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 me morandum 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 o f noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 On August

2 3 , 2005, David and Julie White (Whites) filed a sevenc ount 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 grantingthree motions to dismiss and two motions f or summary judgment, which
resulted in the dismissal of all counts in the ir complaint against all appellees. We affirm. ¶3 On September 26, 2003, Madison County Deputy Sheriff Dan Birdsill (Birdsill) issued tw o 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 theThree Creeks Ranch Subdivision which is located in Madison County. During the irrigation
season of 2003, David White was responsible for irrigating s ome land owned by Three Creeks. In the course of performing his wo rk 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 panel4

box. After David White cut the lock, Curtis Kruer reported this incident to the Madison County S heriff’s Department, leading to the two mi sdemeanor citations against David White. ¶4 In April 2004, the Madison County Justice Court dismissed the criminal trespass chargea gainst David White , but convicted him on the criminal mischief charge

. D avid White appealed his conviction to the Di strict Court , which dismissed the chargein August 2004. O n August 23 , 2005, the Whites filed their complaint against appellees containing the following sevenc ounts: Count I, seeking attorneys fees and costs against all appellees under the secondary easement stat ute, § 70

- 17

- 112, MCA; Count II, malicious prosecution as against all appellees; Count III, intentional infliction of s erious
emotion al distress as against all appellees; Count IV, n egligent i nfliction of s erious
emotional distress as against all appellees ; C ount V, abuse of p rocess, as against all appellees; Count VI, defamation, as against the Kruers; and Count VII, tortious interference with c ontract, as against all appellees. ¶5 On November 8, 2005, the District Court granted a motion filed by the Kruers t o dismiss Count I of the complaint

. O n November 21, 2005, the District Court granted a motion filed by the s tate of Montana and Madison County Prosecutor Barbara Harris (Harris) to dismiss all counts of the White s ’ c omplaint as against them. O n December 15, 2005, the District Court granted a motion to dismiss Count I of the White s ’ complaint filed by Madison County Sheriff Dave Schenk (Schenk), Madison County Deputy Sheriff Evan Andren (A

ndren) , and Birdsill

. O n May 18, 2007, the District Court granted
summary judgment to the Kruers on the remaining counts of the Whites’ complaint. That5

same day, the District Court granted Birds i ll, 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. Cow an 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 . B ecause 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, M CA. Thus, the Whites simplyf ailed 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 Si milarly, the District Court did not err in dismissing Counts II through VII of the Whites’ complaint as against the s tate of Montana and Harris. A s 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. 8 8, 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 motio n to dismiss filed by Harris and the s tate 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, em ploying the standards set forth in M. R. Civ. P. 56(C).6

Flathead Citizens for Quality Growth, Inc. v. Flathead Co. Bd. o f Adjustment, 2008 MT 1, ¶ 31, 341 Mont. 1, ¶ 31, 175 P.3d 282, ¶ 31. Summary judgment is only appropriate when the mo ving party has met it s initial burden by showing that no genuine issue of material fact exists, the non - mo ving party has failed to demonstrate that a genuine issue of fact exists precl uding

summary judgment, and the mo ving party has demonstrate d that it i s entitled to judgment

a s a matter of law. Flathead Citizens , ¶ 31. W e 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, andA

ndren, failed to meet thei r burden on summary judgment with respect to Counts III, IV, V, and VII. F urther, 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 demonstratethat the District Court erred in granting summary judgment to the appellees on these c ountsof their complaint. ¶10 The Whites have also failed to demonstrate that the District Court erred in granting summary judgment to the seappellees on C ount I I. Count IIo f the Whites’ complaint alleged malicious prosecution against the Kruers, Birdsill, Andren, and Schenk. As the District Court correctly noted, malicious prosecution h as 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;7

(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 S ervs. , 2002 MT 64, ¶ 16, 309 Mont. 184, ¶ 16, 45 P.3d 10, ¶ 16. “I f one of these elements is not provenb y 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 again st David White were commenced and prosecuted, ultimately dismissed , and he incurred attorney’s fees in defending himself against those charges

. O n appeal, the Whites have not demonstrated that the District Court erred in this conclusion, and have not pres ented 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 summaryjudgment to the Kruers on Count II of the White s’ complaint. ¶12 Further, the District Court did not err in granting summary judgment to Birdsill, Schenk, and Andreno n Count II of the Whites’ complaint

. A s noted by the District Court, the Whites presented no allegations that Schenk and Andren had anythin g 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 th e charges were later dismissed does not automatically imply that there wasnot probable cause to issue the8

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. H owever, we decline to grant an award of attorney’s fees against the Whitesas requested by the appellees.

/S/ PATRICIA COTTER

We concur: /S/ W. WILLIAM LEAPHART /S/ JOHN WARNER /S/ JIM RICE /S/ BRIAN MORRIS