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Rouse v. Anaconda-deerlodge County9/11/1991
t Court held that Rouse's claims of assault and malicious prosecution were barred by subsection (3), stating:
"The Court has already concluded that the assault . . . was not a lawful act committed in the lawful discharge of an official duty. Therefore, the specific two year statute for assault still applies even if the claim presented to Anaconda-Deer Lodge County was never acted upon. This same logic applies to the malicious prosecution claims which stem from allegations of false reports by the Officers involved. The statute of limitations for fraud is also two years as set out in Section 27-2-203, MCA." (Emphasis added.)
Thus the District Court held that Rouse's claim of malicious prosecution was based on fraud and the two year limitation period, rather than the three year residual limitation period, applies. See § 27-2-203, MCA.
We need not determine in this case whether a cause of action for malicious prosecution is governed by the two year rather than the three year statute of limitations.
" claim or cause of action accrues when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action. . . . Unless otherwise provided by statute, the period of limitation begins when the claim or cause of action accrues."
Section 27-2-102, MCA; Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 161-62, 789 P.2d 567, 571; see also Heckaman v. Northern Pac. Ry. Co. (1933), 93 Mont. 363, 375-76, 20 P.2d 258, 261. The elements of the tort of malicious prosecution are:
"1. A judicial proceeding commenced against the party alleging malicious prosecution;
"2. the other party's responsibility for instigating the proceeding;
"3. a want of probable cause for the other party's action;
"4. the existence of malice as the motivator behind the other party's action;
"5. the termination of the proceeding in favor of the alleging party; and
"6. damages suffered by the party alleging malicious prosecution." (Emphasis added.)
First Bank (N.A.) Billings v. Clark (1989), 236 Mont. 195, 204-05, 771 P.2d 84, 90. The complaint alleges that Rouse was tried by a jury on March 13 and 14, 1986 and acquitted of the assault charge. The judgment is not part of the record. Assuming Rouse's allegations are true, his cause of action for malicious prosecution did not accrue until the acquittal. Rouse filed his cause of action in District Court on October 22, 1987. Assuming he was acquitted in March of 1986, his claim of malicious prosecution falls within either a three or two year statute of limitation and thus would not be barred.
B. Assault Claim Against Officer Martelli
The District Court ruled that the assault cause against the individual defendants was barred by § 27-2-204(3), MCA, the two year statute of limitation for assault claims. Rouse argues that because the defendants are law enforcement officers of Anaconda-Deer Lodge County, his cause of action is governed by a different statute, namely § 27-2-209(1), MCA. The latter provides:
"27-2-209. Actions against local government or local government official. (1) The period prescribed for the commencement of an action against a sheriff, coroner, or constable upon a liability incurred by the doing of an act in his official capacity and in virtue of his office or by the omission of an official duty, including the nonpayment of money collected upon an execution, is within 3 years; but this subsection does not apply for an action for an esca
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