IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-00352-COA ROBERT STRATTON APPELLANT

v. JUDY STRATTON USSING APPELLEE

DATE OF JUDGMENT: 02/28/2014 TRIAL JUDGE: HON. FORREST A. JOHNSON JR. COURT FROM W HICH APPEALED: AMITE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: W I LLIAM D. BOERNER ATTORNEY FOR APPELLEE: CAREY R. VARNADO NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN FAVOR OF APPELLEE DISPOSITION: AFFIRMED - 10/13/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE AND MAX WELL, JJ.
MAX WELL, J., FOR THE COURT: ¶1. Under M ississi p p i R u l e o f E vidence 4 08, evidence of an of f e r t o settle a disputed claim i s inadm issible when the purpose of the e vidence is to prove t he validity or i nvalidity of the claim or its am ount. But the rule is clear that s ettlem ent evidence is adm issible “when it i s o f f e red f or another purpose.” M.R.E. 408. H e r e, Judy Stratton Ussing of f ered evidence that her brother, Robert Stratton, paid her $10,000 f or her to release him

f rom “any and all claim s” she had a gainst him —including a pending crim inal charge. The p urpose of this settlem ent evidence was not to prove the validity or am ount of any claim Judy had againstRobert. Rather, it was to def e nd herself f

rom the m alicious-prosecution lawsuit Robert f iled against h er. Because Judy of f ered the r elease f

or “another p urpose,” the circuit court did not abuse its discretion by

adm itting it. ¶2. But one of the elem ents Robert m ust p rove to establish m alicious p rosecution is that the proceedings were term inated in his f avor. And on de novo review, we f ind Robert cannot do s o . Though the em

b ezzlem ent charge against Robert w as dism issed, the dism issal was
not on the m erits. It was instead n e gotiated by a voluntary m onetary settlem ent between Judy and R obert—an obvious com prom ise de s c r i b e d in the r elease. W e f ind t he nature of this dism issal is f

a tal to Robert’s m a licious-prosecution c laim, since “ dism issal reached as a result o f a voluntary settlem ent or com prom i se does not constitute a t erm ination in f avor of the accused.” 1 Because R obert c annot raise a genuine f a ct issue on this required elem ent of his m alicious-prosecution claim , sum m ary judgm ent was proper. ¶3. W e thus af

f irm

. B ackground Facts and Procedural History ¶4. Years bef

ore Robert sued his sister Judy in circuit court f or m a l icious prosecution, she sued him in chancery court f or breach of f

iduciary duty

. The chancery action was based on Robert’s alleged m ishandling of p roceeds f rom tim ber c ut o n property in Am ite County in which Judy

owned an interest. ¶5. On July

13, 2009, while the chancery action was still pending, Judy f iled a crim inal

1 V a n v. G ra n d

C a sin o o f M iss., In c. , 7 2 4 S o . 2 d 8 8 9 , 8 9 2 (¶1 1 ) (M iss. 1 9 9 8 ). 2af

f idavit in m

unicipal court. This af

f idavit accused R obert of c rim i nal em b ezzlem ent of the tim ber proceeds. See Miss. Code Ann. § 97-23-19 (Rev. 2014). A week af ter pleading not guilty to the em

bezzlem ent charge, Robert entered into a “m utual and f

ull and f inal release” with Judy

. Contrary to i t s t i t l e , t h e release w as prim a r ily one sided. Robert agreed to pay Judy $10,000 f

or her prom ise to “ releas e a n d d i s c h arge [ Robert] f rom any a n d all claim s, dem ands, actions, causes of a ction[ ], suits and d am ages of every kind and nature w hatsoever,
f or the cutting of tim

ber and receipt of tim

b er proceeds[ .]” (The only exception was Judy ’s chancery action—an a ction the release expressly perm itted to continue.) B ut “[ b]oth parties” did m utually “agree not to pursue any of the p ending crim inal charges f iled by either against the other in the State of

Mississippi.” ¶6. The release w a s e x e c u t e d o n A u g u st 25, 2009. More than three y ears later, in
Decem ber 2012, the em

bezzlem ent charge against Robert was f inally dism issed. ¶7. Six m onths later, in May 2013, Robert sued Judy in circuit court. He alleged Judy ’s f iling of the crim i nal af

f idavit m ade her liable f

or m alicious prosecution. 2 Soon a f ter f iling

2 In h is c o m

p lain t, R o b e rt also asserted in ten tio n al-to rt claim s (lib el, d ef am atio n , slan d er, an d in ten t io n al in f lictio n o f em o tio n al d istress) an d a g en eral n eg lig en c e c laim

. B u t as J u d y s u ccessf

u lly arg u ed to th e circu i t co u rt, o n ly th e m alicio u s-p ro secu tio n w as tim ely

. T h is is b ecau se a m a licio u s-p ro s ecu tio n claim d o es n o t accru e u n til th e crim in al p r o ceed in g s are d ism issed

. E .g ., C ity o f M o u n d B a yo u v. J o h n so n , 5 6 2 S o . 2 d 1 2 1 2 , 1 2 1 7 (M i ss. 1 9 9 0 ). H e re, d esp ite R o b ert an d Ju d y ’s settlem en t in A u g u st 2 0 0 9 , th e p e n d i n g em b ezzlem en t ch arg e w as n o t d ism issed u n til D ecem b er 2 0 1 2

. S o h is M ay 2 0 1 3 co m p lain t f ell w ith in th e o n e-y e ar statu te o f lim itatio n s. S ee id

. B u t R o b ert’s o th er claim s accru ed w h en Ju d y f i led th e crim in al af

f id a v it in Ju ly 2 0 0 9

. S o w h eth er th ese c l aim s f ell u n d er a o n e-y ear statu te o f lim itatio n s f

o r in ten tio n al to rts o r th e g en eral th ree-y ear statu te o f l im itat io n s, th eir lim itatio n s p erio d s h ad ru n b y M ay 2 0 1 3

. M o r eo v er, R o b ert co n ced ed J u d y i n t e n t io n ally 3her answer, bef ore any discovery had been com pleted, Judy m oved f

o r sum m ary j udgm ent. She argued the release proved there was no genuine issue o f m aterial f act a nd that she was entitled to a judgm ent in her f avor as a m atter of law. ¶8. For Robert to recover f or m alicious p rosecution, he h ad to show “(1) the institution of a crim inal proceeding; (2) by , or at the instance of , the def e n dant; (3) term ination of such proceedings in [ the] p laintif f ’s f avor; (4) m alice in instituting the pr o c e e d i n g; (5) want of probable cause f

or the p roceeding; and (6) the plaintif f ’s suf f ering o f injury or d am age a s a result of the prosecution.” Strong v. Nicholson , 580 So. 2d 1288, 1293 ( M i ss. 1991) (citations om i t ted). Specif ically , Judy argu e d R obert c ould not prove want of probable because of t he release, w hich s he cla i me d w a s conclusive evidence that probable cause existed to f

ile the crim inal a f

f idavit. W hy else, s h e suggested, would Robert pay her $10,000 other than to stop her f

rom pursuing the em

b ezzlem ent charge? ¶9. Robert responded by arguing sum m ary judgm ent was prem ature, given neither side had y et to respond to discovery

. B ut he consented to go f orward with the sum m ary -judgm ent hearing on the sole issue of whether the release entitled Judy t o sum m ary j udgm ent. Robert argued t he release was not even adm issible, but instead was precluded by Mississippi Rule of Evidence 408. H e claim ed the releas e w a s e v idence of him f urnishing valuable consideration to settle the em bezzlem ent charge. So as he saw it, Judy could n ot rely on the release to support her sum m ary - judgm ent m o tion. See M.R.E. 408.

f iled th e af

f i d av it ag ain st h im , so h e ab an d o n e d h is n eg lig en ce-b ased to r t th eo ries. 4¶10. T h e trial judge disagreed. Not only d id the j udge f ind the release was a d mi s s i b l e under Rule 408, but also the judge f ound t he release e ntitled Judy to sum m ary judgm ent. He granted Judy ’s m otion and entered a judgm e nt in her f avor. Robert appealed.
Discussion ¶11. On appeal, Robert argues there were genuine m aterial f act issues precluding sum m ary judgm ent and urges the release was inadm issible.
I. Adm ission of Release ¶12. W e begi n w i t h R o b e r t ’ s c h a l lenge to the release. Under Rule 408, evidence of
f urnishing “a valuable c onsideration in com prom ising or attem

pting t o com

prom ise a claim which was disputed a s t o either validity or am ount, is not adm i ssible t o prove l iability f or or invalidity of the claim or i t s a mo u n t

. ” M.R.E. 408. According to Robert, Rule 408 keeps Judy f rom of f ering the $10,000 settlem ent as proof the em b ezzlem ent charge was valid. ¶13. But Rule 4 08 is not a b lanket ban on settlem ent o f f e r s . I n s t e a d , t h e rule “only excludes of

f ers when the purpose is proving the validity or inval i d i t y o f the claim or

am ount.” M.R.E. 408 cm t. “This rule

. . . does not require exclusion when the evidence is of f ered f o r another purpose [ .]” M.R.E. 4 08 (em phasis added). And we f ind Judy of

f ered the release f

or “another purpose.” ¶14. The release represents Robert’s of f er to pay Judy $10,000 to release him f rom “any and all claim s” Judy had against him —including the pending crim inal c harge. J udy did not of f er the release to prove Robert was l iable and/or guilty of a ny of the released claim s. She

5merely o f

f ered it in Robert’s separately f iled civil lawsuit to def e n d against Robert ’ s

m alicious-prosecution claim

. See W i lbourn v. W

ilbourn , 106 So. 3d 360, 373 (¶44) (Miss.
Ct. App. 2011) ( citation om itted) ( h o l d i n g R u l e 408 did not bar adm itting a letter, which allegedly contained a settlem ent of f er, because the settlem ent of f er was f or a claim other than the one being litigated). So the scenario Rule 408 is m eant to prohibit is not in play here. ¶15. Neither do e s t h i s case square with the s t ated policy behind the rule. Rule 408 was specif ically designed to prom ote com prom ises in c i v il litigation. M.R.E. 408 cm t. (noting “public p olicy f

avors the out-of

-court com

p rom ises and settlem e n t of disputes”). A nd here,

t h e p urpose of the release was not to “am icably resolv[ e]” a civil lawsuit b etween t h e siblings. Parmley v. 84 Lumber Co. , 9 1 1 S o . 2 d 569, 573 (¶22) (Miss. Ct. App. 2005). Rather, as Judy s e es it, the release was t o stop her f rom pursuing criminal charges against her b rother. So deem i ng the release i nadm issible under Rule 408 w ould not pr o m ote the public policy

behind the rule. See M.R.E. 408 cm t. ¶16. Policy issues a side, the rule is clear t h a t e v i d e n c e o f a settlem ent is adm issible if of f ered f or “another purpose.” M.R.E. 408. J udy o f f ered the release to prove she was not liable f or m alicious prosecution—not that R obert w as g uilty of em bezzlem ent. W e thus f

ind

no abuse of discretion i n the circuit judge’s decision to adm it the r elease. See Armistead v. State , 805 So. 2 d 5 92, 596 (¶14) (Miss. Ct. App. 2001) (acknowledging d ecisions about the adm ission of

evidence f

all within the trial court’s discretion).
II. Sum m ary Judgm ent

6¶17. W h ile we review evidentiary decisions f or a buse of d iscretion, we review g r a n ts of

sum m ary judgm ent de novo. S mith v. W aggoners Trucking Corp. , 69 So. 3d 773, 776 (¶14) (Miss. Ct. App. 2011) (citation o m itted). Mississippi Civil Procedure Rule 56 directs a trial

court to render judgm ent “f orthwith if the pleadings, depositions, answers to interrogatories and a dm issions on f

ile, together with the af

f idavits, if any , show that t here is no genuine issue as to any

m a terial f

act and that the m oving party is entitled to a judgm ent as a m atter of law.” M.R.C.P. 56(c )

. “ R u l e 56 r equires that we view the evidence in the light m ost f avorable to the party against whom the m otion has been m ade.” Smith , 69 So. 3d at 776-77 (¶14) (citing H

arrison v. Chandler-Sampson Ins. , 891 So. 2d 224, 228 (¶11) ( Miss. 2005)).
“If any t riable issues of [ m aterial] f act exist, we m

ust r everse.” Id. at 777 (¶14). But “when the nonm o ving party ‘f

ails to m ake a showing suf f icient to establish the existe nce of an elem ent essential to his case and on which he bears the burden of p roof a t trial,’” we m ust af f irm sum m ary judgm ent. Kitchens v. Dirtworks, Inc. , 50 So. 3 d 388, 389 (¶4) (Miss. Ct. App. 2010) (quoting Borne v. Dunlop Tire Corp. , 12 So. 3d 5 65, 570 (¶16) (Miss. Ct. App. 2009)). ¶18. Here, t he record does n ot contain a f ull a rray of “depositions, answers to interrogatories and adm issions on f ile, together with the af

f idavits.” Instead, Judy f

iled her

sum m ary -judgm ent m otion bef ore any d iscovery was com plete, b ased on her argum ent that the release was enough to entitle her to a judgm ent as a m atter of law.

A. W ant of Probable Cause to Initiate Criminal Proceeding

7¶19. One of the elem ents Robert m

ust prove in his m alicious-prosecution claim is “want of probable cause” to initiate the crim inal em bezzlem e nt proceeding. Strong , 5 80 So. 2d at 1293. Accordin g t o J u d y , t h e release is proof positive she had probable cause. But under Rule 5 6, we m

u s t view the r elease in the light m ost f avorable to Robert, t he n onm ovant. And doing so, we do not f

ind the release conclusively resolves the probable-cause issue. ¶20. “Probable cause is d e term ined f r o m t h e f

acts apparent t o the observer when prosecution is initiated .” Miles v. Paul Moak of R idgland, I nc. , 113 So. 3d 580, 585 (¶11) (Miss. C t. App. 2 0 12) (em phasis added) (quoting V

an v. Grand Casinos of Miss., Inc. , 767
So. 2d 1 0 14, 1019-20 ( ¶14) (Miss. 2000)). Here, J u dy initiated the crim inal prosecution against her brother o n July 13, 2009—f orty day s bef

ore the r elease w as entered. The release
say s nothing about t he o bservable f acts as of July 1 3, 2009, let alone conclusively establishes that on t hat date there existed both a subjective, honest belief by Judy that her brother was guilty of em

bezzlem ent as well as an objectively reasonable basis f or that belief

. See id. (“To establish ‘ probable cause r equires the concurrence o f ( 1 ) a subjective elem ent—an honest belief in t he guilt o f the person a ccused, and (2) an objective e lem ent—reasonable grounds
f or such belief

s.’” (quoting Strong , 580 So. 2d at 1294)). ¶21. That Robert was willing to of f er $10,000 f

or Judy to s top pursuing the e m bezzlem ent charge m ay , as J udy asserts, corroborate her honest, r easonable belief Robert em bezzled the tim ber f unds. Or it m ay prove the op p o site—that she l acked an honest, reasonable belief , which i s why she was so willing to accept m oney to back of f the c rim i nal c harge. Or

8Robert’s $10,000 of f e r m ay , as Robert argued at the sum m ary -judgm ent hearing, have been

m uch m ore about the ongoing c i v i l f eud between the s iblings. The p oint b eing, at the

sum m ary -judgm en t s t a g e , it is not this court’s role to determ ine the r eal explanation. W e

m ust m e rely decide if this issue is triable. S ee M .R.C.P. 5 6 c m t. A n d viewing the release
in the light m ost f

avorable to R o b e r t , the n onm o ving party , we cannot s ay the release

rem oved all d ispute over whether J u d y , f orty day s p rior to executing t he release, had probable cause to f

ile the crim inal af

f idavit against her brother.
B. Proceedings Must Terminate in Plaintiff’s Favor ¶22. But w hile the release d oes not f actually resolve the probable-cause elem ent, it does “show t hat there is no genuine issue as to [ another] m a terial f a c t.” M.R.C.P. 56(c). Another
necessary elem ent Robert m u st p rove is t hat the crim i nal proceedings term inated in his f avor. See Strong , 580 So. 2d at 1293. ¶23. At f

irst blush it appears this elem ent i s m et, as the em bezzlem e nt af

f i davit against Robert was i n f

act dism issed. H owever, not all dism issals are deem ed f avorable term inations
f or purposes of m alicious-p r o s e c ution actions. Stewart v. Se. Foods, I nc. , 6 88 S o. 2d 733, 737 n.2 (Miss. 1996). T o be c oined “f avorable t erm ination” in this context, “the dism issal of crim inal proceedings m u st r ef lect on the m erits of the crim inal a c t i o n . ” B e arden v. BellSouth Telecomms., Inc. , 29 So. 3d 761, 764 (¶10) (Miss. 2 010) ( c i t i n g V an v. Grand
C a s i n o s of Miss., Inc. , 724 So. 2d 889, 8 93 ( ¶15) (Miss. 1998)). Generally , a cri mi n a l proceeding t erm inates in the accused’s f avor “only when [ the] f

inal disposition is such as to

9indicate [ his] innocence.” Id. at 7 64 (¶11) (quoting Restatem ent (Secon d ) o f Torts § 660

cm t. a ( 1977 ) )

. A n d mo st im portant to this particular case is that, u nder Mississippi law, “dism i ssal reac h ed as a result of a voluntary settlem ent or c om prom ise does not c onstitute

a term ination in f

avor of the accused.” Van , 724 So. 2 d at 892 (¶11) (citing Jones v
. Donald
Co. , 137 Miss. 602, 602, 102 So. 540, 540 (1925)); see also S tewart , 688 So. 2d at 737 n.2. ¶24. S o no m atter how a jury m ight decide the probable-cause issue, Robert’s c l a i m i s snagged on the f

avorable-term ination elem ent. That i s because the release he negotiated with
J u d y unquestionably resulted f rom a voluntary m onetary settlem ent f or dism issal of th e

em bezzlem e nt af

f idavit against Robert. 3 This m uch is undisputed. ¶25. Becaus e o f the com prom ise-based dism issal, Robert cannot s how the crim inal proceedings term inated in his f avor. Thus, he is unable to create a triable f act issue on this required elem ent of m alic i o us p rosecution. See Kitchens , 50 S o. 3 d at 389 (¶4). For this reason, we af

f irm the circuit judge’s order granting sum m ary judgm ent to Judy

. ¶26. T H E J U D G M E N T O F T H E A M I T E C O U N T Y C I R C U I T C O U R T I S AFFIRMED. A LL COSTS OF THIS APPE A L ARE ASSESSED TO THE APPELLANT. LEE, C .J., IRVING AND GRIFFIS, P .JJ., BARNES, ISH E E , FAIR, JAMES AND WILSON, J J., CONCUR. CARLTON, J., CONCURS IN R ESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

3 T h e release states, “B o th p arties ag r ee n o t to p u rsu e a n y o f th e p e n d in g crim i n al ch arg es f iled b y eith e r ag ain st th e o t h er in th e S tate o f M ississip p i.” 1 0