from Mobile Circuit Court. (CV-13-902675).
Judge. Thompson, P.J., and Pittman, Thomas, and Donaldson,
Cory Hughes (" Cory" ) appeals from a summary
judgment entered by the Mobile Circuit Court (" the
trial court" ) in his malicious-prosecution action
against Christopher Allen Wallace (" Chris" ).
Because we find that genuine issues of material fact exist as
to whether Chris had probable cause to prosecute a
criminal-harassment charge against Cory and whether Chris
acted with malice in prosecuting that charge, we reverse the
summary judgment and remand the case.
and Procedural Background
time, Chris was married to Kimberly Michelle Hughes ("
Kimberly" ), Cory's current wife. A court awarded
Chris sole physical custody of the children from his marriage
to Kimberly. Kimberly exercised overnight visitation with one
of the children of that marriage, a two-year-old son, at her
home on February 22, 2012. The next afternoon, Chris drove to
Cory and Kimberly's home to pick up the son. Kimberly
carried the son out to the front yard to meet Chris.
to Chris, during the exchange of their son, Chris questioned
Kimberly as to why she had failed to answer her telephone the
night before when Chris had called. While the two were having
what Chris described as a " civil conversation,"
Chris testified, Cory suddenly burst
through the front door of the house, came out into the front
yard, got between Chris and Kimberly, and ordered Chris to
leave. Chris testified that, at that point, Kimberly implored
Cory to leave Chris alone, but Cory persisted to direct Chris
to leave the premises in a threatening manner, causing the
two-year-old child to become upset and to start crying. Chris
stated that he immediately took his son to his automobile and
placed him in a safety seat with much effort due to the
child's being upset and panicked. Meanwhile, according to
Chris, Cory followed him every step to the automobile and
stood over him in close proximity while Chris struggled to
secure the child in the safety seat. Chris testified that
Cory presented himself in " a very threatening
uncontrollable manner," which Chris interpreted as an
attempt by Cory to antagonize him and which, Chris said,
caused him to fear for his and his child's safety.
filed a complaint with the City of Mobile's magistrate,
who, based purely on Chris's summary of the events,
issued a writ of arrest for Cory pursuant to Ala. Code 1975,
§ 13A-11-8. That Code section provides, in pertinent
" (2) For purposes of this section, harassment shall
include a threat, verbal or nonverbal, made with the intent
to carry out the threat, that would cause a reasonable person
who is the target of the threat to fear for his or her
criminal trial on May 21, 2013, the Mobile City Court judge
received testimony solely from Chris that was consistent with
the summary set forth above; she subsequently granted
Cory's motion for a judgment of acquittal based on there
being a lack of evidence that Cory had intended to harm
filed a civil action against Chris alleging malicious
prosecution on October 1, 2013. On June 5, 2014, Chris took
the depositions of Cory and Kimberly. Kimberly testified
that, after she gave the child to Chris, Chris accused her of
intentionally violating a court order requiring her to allow
Chris telephone access to the child during visitations. She
testified that, as Chris was " going on and on,"
she had stood there listening with her arms across her chest
and that, at that point, Cory came out of the house and told
Chris he needed to be more respectful, that he needed to quit
yelling at Kimberly, and that he needed to leave. Kimberly
said that she asked Cory to go back inside the house but that
he did not do so. According to Kimberly, Chris did not
immediately leave but, rather, continued to accuse Kimberly
of being in contempt of court and of lying, leading Cory to
reiterate that Chris needed to leave the premises. At that
point, Kimberly testified, she went inside the house. A few
minutes later, Kimberly said, she returned to the front yard
and observed Chris carrying their crying child toward
Chris's automobile, which was parked in the driveway.
According to Kimberly, Cory followed Chris to a position
approximately three or four feet from the driveway, ...