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Lane v. Terry H. Pillinger6/10/1997
THOMPSON, Presiding Judge
Shephard Lane (Lane) appeals from the trial court's grant of summary judgment in favor of Terry Pillinger (Pillinger). Lane filed an action for wrongful institution of civil proceedings against Pillinger for a lawsuit Pillinger filed on behalf of a former client. The trial court concluded that Lane failed to show the previous action terminated in his favor and granted Pillinger's motion for summary judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Pillinger is an attorney practicing in Arizona. In 1990, Pillinger represented Gregory Rasko (Rasko) in an underinsured motorist claim against Prestige Casualty Company (Prestige). Prestige ultimately paid Rasko the underinsured policy limits of $15,000 in June of 1992.
In November 1992 Rasko, represented by Pillinger, filed a bad-faith action against Prestige (Rasko v. Prestige) for its handling of his underinsured motorist claim. During the pendency of Rasko v. Prestige, Rasko filed a second action, again through Pillinger, against several Prestige officers, directors, and shareholders--including Lane--for breach of contract, fraud, and bad-faith (Rasko v. Lane). Pillinger voluntarily dismissed Rasko v. Lane approximately four months after filing the complaint. Pillinger's supporting affidavit states that the suit was dismissed after he concluded that prosecuting the case would be extremely difficult, time consuming and expensive, and any damages would be difficult to collect given that the defendants were numerous and dispersed across the country. Lane was never served with the complaint. Lane's claim for wrongful civil proceedings arises out of Rasko v. Lane. Pillinger filed a motion for summary judgment arguing that, based on the undisputed facts, Lane could not establish that the voluntary dismissal of Rasko v. Lane was a termination in Lane's favor or that Lane had sustained any damages. The trial court granted the motion, finding that "reasonable minds could not differ on the fact that the dismissal of the action on which plaintiff bases his malicious prosecution claim did not 'reflect on the merits of the action.'" Lane timely appealed. We have jurisdiction over this matter pursuant to Ariz. Rev. Stat. Ann. (A.R.S.) § 12-2101(B).
Discussion
A plaintiff in an action for wrongful civil proceedings must prove the following five elements: (1) that a prior action terminated in favor of the plaintiff, (2) that the defendant initiated the prior action, (3) with malice, (4) without probable cause, and (5) that damages were sustained. Frey v. Stoneman, 150 Ariz. 106, 109, 722 P.2d 274, 277 (1986); Smith v. Lucia, 173 Ariz. 290, 842 P.2d 1303 (App. 1992). Pillinger's motion below attacked the sufficiency of Lane's evidence as to two elements: proof of damages and favorable termination. The trial court granted the summary judgment on the favorable termination element without addressing damages. Because it is dispositive, we also limit our review to the favorable termination element.
Favorable Termination
A judgment on the merits for the defendant after a trial is always a favorable termination. Frey, 150 Ariz. at 110, 722 P.2d at 278; Restatement (Second) of Torts section 674 comment j (Restatement § 674 cmt. j). However, here we have no trial--only a voluntary dismissal by Pillinger.
While a plaintiff's dismissal of a civil action may under some circumstances be considered a termination of the action in favor of a defendant, not all voluntary dismissals constitute favorable termination. See Frey, 150 Ariz. at 110, 722 P.2d at 278; Restatement § 674 cmt. j. "When a termination or dismissal indicates in some fashion tha
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