Sherner v. National Loss Control Services Corp.11/15/2005
s conclusion to the contrary, see 45, is simply not supported by the evidence. Instigation is sufficient to satisfy an element of malicious prosecution. Opinion, 41, and Plouffe, 16. I submit that, at a minimum, the Plaintiffs presented sufficient evidence to suggest that the referral of Sherner (as opposed to Bernice) for prosecution was not supported by probable cause, and was in fact actuated by malice--by a wish to annoy or injure Sherner--and with the intent to both harm Sherner by terminating his domiciliary care, and to benefit the Defendants by terminating their financial responsibility for that care. As we said in Reece v. Pierce Flooring (1981), 194 Mont. 91, 96, 634 P.2d 640, 643, if the evidence in a malicious prosecution case, including the reasonable inferences to be drawn therefrom, is susceptible to different conclusions by reasonable men, then the issue of probable cause to support the underlying action should be submitted to a jury. By affirming the entry of summary judgment, we have ignored this rule.
For the foregoing reasons, I would reverse the entry of summary judgment on Issues One through Three, and remand for trial on the merits. I dissent from our refusal to do so.
PATRICIA O. COTTER
Justice James C. Nelson joins in the concurrence and dissent of Justice Patricia O. Cotter.
JAMES C. NELSON
Justice John Warner dissenting.
I agree with the Court's decision that the Sherners' claims for relief must fail and this action be dismissed. I strenuously dissent from the Court's remand of this case to re-tax costs.
In two brief paragraphs for no logical reason, and with no citation to authority, the Sherners state that the judgment of December 17, 2003, was signed in violation of § 25-10-502, MCA, which provides for an objection to the costs sought by defendants. Based on this simple, unsupported statement, the Sherners argue, without any analysis, that the District Court erred by violating § 25-10-502, MCA. Even though Sherners did not come up with a reason for their argument, the Court supplies them with one by misapplying a statute, and turns the application of simple cost statutes on its head.
Section 25-10-502, MCA, states:
A party dissatisfied with the costs claimed may, within 5 days after notice of filing of the bill of costs, file and serve a notice of a motion to have the same taxed by the court in which the judgment was rendered or by the judge thereof at chambers.
The Court, as its thesis, states in 50 that by inserting in the judgment the amounts claimed by National, Conoco and Crawford, the District Court deprived the Sherners of their opportunity to object to such costs. No logical reason for this addition to the statutes is given. Nowhere in either §§ 25-10-501 or 25-10-502, MCA, is it said, or even hinted, that entering a judgment which contains the amount of costs claimed by the successful parties deprives parties against whom costs are awarded of the opportunity to object to the amount claimed. The statute most certainly does not say that if blanks in a judgment form are filled in with the amounts of costs claimed, as is the case in this instance, any party dissatisfied with the costs claimed is relieved of the obligation to file the required notice of intent to have costs taxed by the court. Girson, 112 Mont. at 188, 114 P.2d at 277, is not authority for the proposition that entry of judgment automatically precludes the filing of a notice of a motion to have the court tax costs. The decision gives no facts concerning costs at all, much less any legal analysis. It does not say whether in that case a bill of costs was timely filed.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Montana Employee Leasing Services
Employee Leasing Services
|