Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case1:04-cv-00913-GIVIS Document 42-13 Filed O3/O1/2006 Page1 0f3
EXHIBIT L

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A LEXSEE 1990 DEL LEXIS 340 .
GERTRUDE MEGENHARDT, Appellant, v. DOROTHY N OLAN , Appellee
I N o. 216, 1990
Supreme Court of Delaware
1990 Del. LEXIS 340
September 28, 1990, Submitted
October 18, 1990, Decided
NOTICE: THIS OPINION HAS NOT BEEN Nolan told the police she suspected Megenhardt, her
RELEASED FOR PUBLICATION IN THE former housekeeper, as a participant in the theft. The
PERMANENT LAW REPORTS. UNTIL RELEASED police then questioned the operator of the U-Store facil-
IT IS SUBJECT TO REVISION OR WITHDRAWAL. ity who reported seeing a man and a woman outside the
shed rented by Nolan. Based on information supplied by
SUBSEQUENT IHSTORY: Released for Publication Nolan and an independent investigation conducted [*2]
November 7, 1990 Mandate. 2 by the police, the investigating officer secured a warrant
. for Megenhardt's arrest from a Justice of the Peace. Sub-
PRIOR HISTORY: [.*1] sequently, the Attomey General filed an Information in
the Superior Court charging Megenhardt with felony
Court Below: Superior Court of the State of Delaware in theft. The day before the scheduled trial date the Attor-
and for Sussex County C.A. No. 88C-AU—38. ney General terminated the prosecution by a Nolle
Prosequi. Megenhardt then initiated a malicious prosecu-
tion action in the Superior Court against Nolan.
GES: At trial, a series of witnesses testified as to Megen-
Moore, Joseph T. Walsh, and Holland, Justices. hardt‘s good character. The only evidence concerning
` . I Megenhardt's claim of malicious prosecution consisted
OPINIONBY: · of Megenhardt's denial of any involvement in the theft.
W ALSH As part of her case, plaintiff entered as an exhibit the
_ affidavit executed by the arresting officer and presented
OPINI0N_ to the Justice of the Peace which set forth his investiga-
’ tion including Nolan's accusation against Megenhardt. At
ORDER the close of the plaintiffs case, the defendant moved for
. . . a directed verdict. The trial court ruled that Megenhardt,
fthT*¤S *2121 jay 02 Qctibeg, 19g(;il“P°“ jjnildcegon as 1 mm of raw, had failed to mem sufficient
F fi, appc an S (gqcnglg nc ag Clgpfc gc S OH dence to support her claim. Megenhardt now appeals the
0 a Hm pmsuan O uprcme Om u 6 (a)’ I ap` granting of the motion for a directed verdict.
pears that:
. . . . (2) There are six elements in an action for malicious
d€1gT2{;1S;¤ apvcalcfmm **§tg¤·¤¤¤gl¤f.¤ dugcgjd [*3] Stidham V. Diamond Sm Brewery,
Qiiriéfr? c.?d..1*2°‘5§Z ZF§£ZS§L‘L“ §’..r...° 222 Super-· 22 222 222 284 (2222* also Bm V-
‘ l l. ., 79 . d .
Appellant, Gertrude Megenhardt ("Megenhardt"), Clu ey' De Super 1 A 2 93 (1962)
brought the action for malicious prosecution against the (1) There must have been a prior institution or con-
appellee, Dorothy Nolan ("Nolan"), as the result of tinuation of . . . [a criminal] proceeding against the plain-
Meger1hardt's arrest on a felony theft charge. In Decem— tiff . . .
ber of 1987, Nolan reported to the Delaware State Police
the theft of several personal items from a storage shed
she rented at the U-Store facility in Rehoboth, Delaware.

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" - Page 2
1990 Del. LEXIS 340, *
F (2) Such former proceedings must have been by, or prima facie evidence of probable cause. Megenhardt
at the instance of the defendant in [the] action for mali— must then prove that Nolan withheld information from
cious prosecution. the police or failed to state all material facts. See Brown,
. . . . 179 A.2d at 97. At trial, Megenhardt failed to produce
(3) The former proceedmgs must have terminated m . . . . .
f . . . . . evidence which would show Nolan withheld mfomiation
avor of the defendant therein, the plamtrff in the action . .
. . . or failed to state all material facts. The mere fact that
( for mallclcus pmsccutloll Nolan may have been mistaken in her suspicions does
(4) There must have been malice in instituting the not establish lack of probable cause since the information
former proceedings. providedby Nolan was merely part of themix of infor-
(5) There must have been want of probable cause for ;;/;O:f;;b;I1@iiE é tlégagglic Officer to Secure the lssu-
the institution of the former proceedings. '
(6) There must have been injury or damage resulting C U (4) Mcgénhardt also contends. that . the Supclllll
. . . ourt erred m applymg a substantial evidence test m
to the plamtlff Hom the fomlél pl0ccCdmgS' granting the motion for a directed verdict. The appropri-
. ate test for measuring the quantum of evidence which a
Slldham 21 A`2d at 289 ` plaintiff must produce to successfully resist a motion for
(3) The trial court found three ef these elements te a directed verdict is whether under any reasonable view
be lacking and we agree. First, the criminal proceeding of the evidence the jury could justifiably find in favor of
for felony theft was not brought "by, or at the instance of the plaintiff Ebersole v. Lowengrub, Del. Supr., 208
the defendant." Nolan reported the theft to the police and A.2d 495 (1965). We agree that the trial judge's use of a
informed the peliee ef her suspicion; The peliee ther] substantial €Vld€I1CC lI€St was CITOHCOUS. We COI1ClLldC,
conducted an independent investigation into the alleged however, that such error was harmless. Even if the less .
I ernne_ Based on jnfemqatign [*4] received Kem Nelan exacting test of Ebersole is applied, it is clear that plain-
and on infomiation uncovered during the investigation, tiffs evidence, if reasonably viewed, particularly on the
the peliee Obtained an arrest warrant fer Megenhardt I issue of probable cause, did not provide a factual basis
Second, there is no evidence of malice on the part of for all elements of a claim for malicious prosecution.
` N0lall’ although she apparently was Stakcll lll hcl be- (5) It is manifest on the face of the appellant's brief
llcf that Mcgcllllaldg who accompamcd hcl when Nolan that- the appeal is without merit because the issues on
m¤g¤d for the mags Sh<=d»W¤Si¤1P*i¤¤t¤di¤th¤ Sub- a at awt controlled b sailed Delaware law
sequent theft. In reporting the theft to the police, Nolan pp y y _ ° `
reacted reasonably. Finally, there was probable cause for NOW, THEREFORE, IT IS ORDERED that the
the institution of the criminal proceeding. In the present motion to affum the judgment of the Superior Court is
case, the magistrate issued a warrant for Megenhardt GRANTED and the judgment ofthe Superior Court is,
based on information supplied by the police. This is AFFIRMED