Koski v. Vohs

395 N.W.2d 226, 426 Mich. 424
CourtMichigan Supreme Court
DecidedNovember 10, 1986
Docket75140, (Calendar No. 17)
StatusPublished
Cited by19 cases

This text of 395 N.W.2d 226 (Koski v. Vohs) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Koski v. Vohs, 395 N.W.2d 226, 426 Mich. 424 (Mich. 1986).

Opinions

Boyle, J.

In this case we are asked to decide whether the trial court correctly determined that the plaintiff had not proven the element of lack of probable cause in this malicious prosecution suit. As the Court of Appeals noted, ”[t]he basis for the trial court’s ruling was a finding that as a matter of law defendants had probable cause to initiate criminal prosecution against plaintiff.” We find that this determination was correctly made by the trial court as to all defendants, and we reverse that portion of the opinion of the Court of Appeals which had remanded the case for a jury determination of this question.

Basically, the record in this case reveals the following facts. Aldred Koski, as agent for Monitor Publications, Ltd., entered into a contract with the Madison Heights Police Officers Association to publish a police magazine. The contract provided that advertisements would be sold to local businesses and that all advertising revenues would be deposited in the mhpoa account. Mr. Koski would then be paid a certain amount for expenses and a share of the profits (see n 6).

Approximately two years later, several Madison [427]*427Heights police officers met with the Oakland County Prosecutor’s Office to discuss allegations that Mr. Koski was converting checks made out to the mhpoa. An investigation was undertaken by Mr. Danny Daniel of the prosecutor’s office and charges were later authorized. At the preliminary examination, Mr. Koski was discharged when the Secretary-Treasurer of the mhpoa failed to appear to testify.

Mr. Koski began the instant suit for malicious prosecution against seven defendants: five Madison Heights police officers, the Oakland County Prosecutor, and Mr. Daniel. At trial, after the plaintiff had completed his proofs, the court granted defendants’ motion for a directed verdict, finding as a matter of law that defendants had probable cause to initiate criminal prosecution against Mr. Koski.1

Mr. Koski appealed to the Court of Appeals which affirmed as to all defendants except Mr. Daniel. It then remanded to the trial court for a new trial as to the remaining defendant. We granted Mr. Daniel leave to appeal.

It is well-settled in this state that, in a malicious prosecution action, absent a dispute of fact, the question of probable cause is a question of law to be determined by the court. Modla v Miller, 344 Mich 21; 73 NW2d 220 (1955); Baker v Barach, 197 Mich 219; 297 NW 472 (1941). The Court of Appeals in this case found that there was a disputed question of fact as to whether Mr. Koski had a claim of right to the funds and, on this basis, concluded that it became a question for the jury whether Mr. Daniel had probable cause to believe [428]*428that the plaintiff had committed an offense.2 It was undisputed, however, that Mr. Daniel had knowledge of Mr. Koski’s claim.3 Therefore, the issue of probable cause in this case was a question of law for the judge to be determined on the basis of what Mr. Daniel ascertained during his investigation.4 Prosser & Keeton, Torts (5th ed), § 119, p 876. The record reflects that at the time Mr. Daniel was authorized to request a warrant, he had taken the following steps and developed the following facts.

Mr. Daniel met initially with Assistant Prosecutor Richard Thompson, Madison Heights Chief of Police Joseph Whitefield, mhpoa President Kenneth Vohs, and two other police officers to discuss allegations that Mr. Koski was converting funds to his own use. Mr. Daniel was advised that the contract between the mhpoa and Mr. Koski provided that all advertisement revenues were to be paid to the mhpoa and that mhpoa was then to pay Mr. Koski’s expenses and a profit, if any, of seventy percent of all monies received after the first $5,000. He then interviewed Elsie Keil, secretary to the Chief of Police, who stated that Mr. Koski had picked up checks made out to the mhpoa and that she had only given them to him after Lieutenant Sloan, who was not authorized to [429]*429release the checks, ordered her to do so. Mr. Daniel subsequently interviewed Richard Jackson of Spalding, DeDecker & Associates who stated that a man described as sixty years old, small frame with gray hair, had entered his office and requested payment for an advertisement in the Monitor magazine. Mr. Jackson further stated that, when he pointed out that the invoice required checks to be made out to the mhpoa, the person identified himself as Dennis Carley and suggested that it be made out to Monitor/mhpoa. Mr. Daniel then talked to Dennis Carley, the Secretary-Treasurer of the mhpoa who stated that he routinely paid Mr. Koski from monies received and under no circumstances was Mr. Koski authorized to have any money from the advertisements without it first being deposited in the association account. Officer Carley showed Mr. Daniel the record books, and Mr. Daniel instructed him to balance all names of advertisers listed in the magazine against those who had paid the association and provide a list of those who were in the magazine but for whom there was no record of payment to the mhpoa. Mr. Daniel then received a list of eight checks.

After receiving the list, Mr. Daniel interviewed the manager of Howard Johnson’s who stated that he had not paid because he never authorized the advertisement. Mr. Daniel then talked to Tony Brenza, the General Manager of Oakland Dodge, Inc., who produced a cancelled check for $420 made payable to the mhpoa and endorsed by Mr. Koski. Mr. Brenza stated that the check would not have been written until the requesting agency arrived to pick it up. Thereupon, Mr. Daniel talked to Edward Hellner, the comptroller, who verified his signature, and to George Hensely, the Sales Manager, who identified a picture of Mr. [430]*430Koski as the man who had made the request for the check.

Mr. Daniel then obtained a search warrant authorizing a search of all bank accounts for Monitor magazine at Michigan National Bank. This search turned up the fact that the $100 check from Spalding, DeDecker & Associates was not deposited in either the mhpoa account or the Monitor account, but cashed for Mr. Koski by Rick Dowell, one of the tellers.

Lieutenant Gerald Sloan was then interviewed, and he stated that he had known Mr. Koski for ten years, had filed corporation papers for Mr. Koski, and had named himself as resident agent because a permanent address was needed. Lieutenant Sloan further stated that he only authorized the release of checks because Mrs. Keil had read the address on the envelopes to him on the phone and they were addressed to the Monitor magazine. Mrs. Keil was again interviewed and denied that she had read the envelopes to Lieutenant Sloan, and, further, she again verified that they were addressed to the mhpoa.

Mr. Daniel next interviewed Rick Dowell, the bank teller who had cashed the Spalding, DeDecker check, who stated that he thought it was unusual that Mr. Koski was cashing checks for the police department, but that he had assumed it was all right because Mr. Koski was friends with the bank manager.

Later, Mr. Daniel requested an audit of the mhpoa books and interviewed Mr. Koski informally and then formally, with Mr. Koski’s attorney, in the prosecutor’s office.

As this Court stated in Clanan v Nushzno, 261 Mich 423, 427; 246 NW 168 (1933):

When the material facts are undisputed and in [431]

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Koski v. Vohs
395 N.W.2d 226 (Michigan Supreme Court, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
395 N.W.2d 226, 426 Mich. 424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koski-v-vohs-mich-1986.