Malicious prosecution: CRAYCROFT V. PIPPIN (COA 1/18/2008)

TORTS: Malicious prosecution
DATE RENDERED: 01/18/2008

CA vacates and remands the TC entry of SJ dismissing this malicious prosecution claim. (Jefferson Cir. Ct., Hon. Lisabeth Hughes Abramson, judge, presiding).

Craycroft lived in a house formerly owned by Pippin and his ex-wife with Pippin’s ex-wife. The home went into foreclosure and Pippin bought it back. Upon taking possession, Pippin discovered extensive, and apparently malicious, damage estimated at $85,000. A neighbor told Pippin that he witnessed Craycroft intentionally damaging the property after Pippin’s foreclosure purchase, but before Pippin was deeded the property. Pippin executed a criminal complaint against Craycroft. The county attorney recommended that Craycroft be charged with theft by unlawful taking over $300.00 and criminal mischief in the first degree. The court determined that probable cause existed; the case was presented to the grand jury; and Craycroft was indicted for first-degree criminal mischief. The circuit court ultimately dismissed the indictment reasoning that Pippin had not acquired title when the damage was inflicted; Pippin was not the owner at the time of the crime.

Craycroft sued Pippin for malicious prosecution; Pippin moved for summary judgment, arguing that, since the district court found probable cause, the malicious prosecution claim must fail. The circuit court agreed.

On appeal, the CA holds that Craycroft must prove Pippin was without probable cause; the circuit court found, as a matter of law, that probable cause existed based on the district court finding. But, because the facts in this case were undisputed, the question of probable cause is a question of law for the court. The circuit court erred in that the prior finding of probable cause at a preliminary district court hearing merely raises a rebuttable presumption that probable cause exists in the defense of a malicious prosecution claim. The circuit court erroneously concluded that the district court finding was conclusive.

John E. Hamlet
Sitlinger, McGlincy, Theiler & Karem

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