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Sherner v. National Loss Control Services Corp.11/15/2005
;
(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;
(4) the defendant was actuated by malice;
(5) the judicial proceeding terminated favorably for plaintiff; and
(6) the plaintiff suffered damage.
Plouffe v. Montana Dept. of Public Health and Human Services, 2002 MT 64, 16, 309 Mont. 184, 16, 45 P.3d 10, 16 (citations omitted). If the plaintiff fails to offer proof of any one of these elements, the action fails, and summary judgment in favor of the defendant is proper. See White v. Murdock (1994), 265 Mont. 386, 389-90, 877 P.2d 474, 476 (citation omitted). The District Court concluded the Sherners had not offered evidence to support the elements of malicious prosecution, and granted summary judgment for the defendants.
There is no question that the first element necessary to establish malicious prosecution is present in this case. A criminal case was commenced against Peter.
We have already discussed the facts of this case relating to the second element of malicious prosecution. The State Auditor and prosecutor acted independently on the basis of their investigations and the defendants were not responsible for instigating, prosecuting or continuing the criminal proceeding.
Similarly, with regard to the fourth element required for a malicious prosecution action, we have discussed the absence of malice in resolving the immunity statute issue, above. We concluded the Sherners failed to present evidence that the defendants acted with malice.
Because the Sherners have not come forward with sufficient evidence to raise issues of material fact concerning whether the defendants were responsible for instigating, prosecuting or continuing the prosecution of Peter, or whether the defendants were actuated by malice, we need not consider the other elements of malicious prosecution.
We hold that the District Court did not err in granting summary judgment to all defendants on the malicious prosecution claim.
ISSUE FOUR
Did the District Court err in setting the amount of costs awarded to three defendants?
On December 9, 2003, the District Court entered its order granting summary judgment in favor of the defendants, with the defendants awarded their costs. The Clerk of the District Court mailed copies of this order to all parties that same day and, pursuant to ยง 25-10-501, MCA, each defendant had 5 days to file what is commonly called a bill of costs--expressed in the statute as "a [verified] memorandum of the items of his costs and necessary disbursements in the action"--and serve notice of such filing upon the Sherners. National, Conoco and Crawford each filed bills of costs on December 16, 2003, and mailed notice of their claimed costs to the Sherners. On December 17, 2003, the District Court entered judgment in favor of the defendants. Handwritten into blanks in the judgment form were the following cost amounts, replicating the amounts stated in the bills of costs filed the previous day: $4,928.20 to National; $8,150.18 to Conoco; and $2,183 to Crawford. Later, on January 6, 2004, the District Court filed a document entitled "Notice," wherein it stated that on December 31, 2003, it had taxed costs as requested by defendants after noting no objection by the Sherners. The court attached a copy of the December 17, 2003 Judgment to the "Notice." In this latter regard, we observe in passing that nothing of record supports the statement in the court's "Notice" that it taxed costs on December 31 after noting no objec
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