May 22, 2015
Kenneth Cory Hughes
Christopher Allen Wallace
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, telling
Chris he needed to leave and not come back. Kimberly
testified that Chris then placed the child in the car seat,
got into the driver's seat, backed out of the driveway
real fast, stopped just short of the street, yelled at
Kimberly " You'll never bleed me dry," and then
" peeled off."
testified that, while he was in the bathroom, he heard a male
voice screaming in the front yard, that he walked to the
front door of the house, and that, upon opening the door, he
observed Chris, who, Cory said, was inches from
Kimberly's face, yelling while holding the child in his
left arm and pointing a right finger in Kimberly's face.
According to Cory, Chris noticed Cory and took two steps back
Cory then got in between Chris and Kimberly, after which
Chris took another step back. Cory stated that, without
raising his voice, he suggested that Chris leave the
property, but, Cory said, Chris continued to argue that
Kimberly was in contempt of court and that he could do
whatever he wanted to do. According to Cory, some minutes
later, Chris finally walked to his automobile and placed the
upset child in the safety seat. Cory testified that Chris
then emerged from the automobile, at which point, Cory said,
he again told Chris to leave and they " faced off"
with Cory repeating that Chris needed to leave. Cory
testified that Chris ultimately got into his automobile and
left in the manner described by Kimberly.
August 12, 2014, Chris filed a motion for a summary judgment.
Cory filed a response to the motion on September 10, 2014.
The trial court conducted a hearing on the motion on
September 12, 2014, and granted the motion that same date. On
October 12, 2014, Cory filed a motion to alter, amend, or
vacate the summary judgment, which the trial court denied on
October 27, 2014. Cory timely appealed on November 7, 2014.
appeal, Cory argues that the trial court erred in entering a
summary judgment for Chris because, he says, he presented
sufficient evidence of malicious prosecution. We review the
summary judgment de novo and determine for ourselves whether
Chris was entitled to the judgment; in making that
determination, we use the same standard applied by the trial
court under Rule 56, Ala. R. Civ. P., without affording the
trial court's judgment any presumption of correctness.
See Ravenel v. Burnett, 5 So.3d 592, 597
order for a claim of malicious prosecution to be submitted to
a jury, the plaintiff must present substantial evidence
" (1) that a prior judicial proceeding was instituted by
the present defendant, (2) that in the prior proceeding the
present defendant acted without probable cause and with
malice, (3) that the prior proceeding ended in favor of the
present plaintiff, and (4) that the present plaintiff was
damaged as a result of the prior proceeding."
Delchamps, Inc. v. Bryant, 738 So.2d 824, 831-32
(Ala. 1999). At this juncture, the parties do not dispute the
first, third, and fourth elements, but they disagree as to
the second element.
" 'Probable cause is defined as " '[a]
reasonable ground for suspicion, supported by circumstances
sufficiently strong in themselves to warrant a cautious man
in the belief that the person accused is guilty of the
offense charged.'" ' Eidson v. Olin
Corp., 527 So.2d 1283, 1285 (Ala. 1988) (quoting
Parisian Co. v. Williams, 203 Ala. 378, 383, 83 So. 122,
127 (1919)). '" The question is not whether the
[malicious prosecution] plaintiff was guilty of the thing
charged, but whether the [malicious prosecution] defendant
acted in good faith on the appearance of things." '
Eidson, 527 So.2d at 1285 (quoting Birwood Paper
Co. v. Damsky, 285 Ala. 127, 134-35, 229 So.2d 514, 521
(1969)). Our supreme court has stated:
" 'The test that this Court must apply when
reviewing the lack-of-probable-cause element in a malicious
prosecution case in which summary judgment has been granted
to a defendant is as follows: Can one or more undisputed
facts be found in the record below establishing that the
defendant acted in good faith on the appearance of things as
they existed when suit was filed, based upon
direct evidence, or upon circumstantial evidence and
inferences that can reasonably be drawn therefrom? If so,
then summary judgment in favor of the defendant on
plaintiff's malicious prosecution count would be
" Eidson, 527 So.2d at 1285-86. In other words,
'[i]f there are any undisputed facts of record
establishing that [the defendant] had probable cause to bring
the former action ... against [the plaintiff], then [the
plaintiff] cannot recover for malicious prosecution and
summary judgment is appropriate.' Eidson, 527
So.2d at 1285."
Ravenel, 5 So.3d at 598.
motion for a summary judgment, Chris asserted that Cory's
manner of speaking and " nonverbal cues" led Chris,
acting as " a man of ordinary caution and prudence to
entertain an honest suspicion that [Cory] was threatening or
about to do [him] harm," Birwood Paper Co. v.
Damsky, 285 Ala. 127, 135, 229 So.2d 514, 521 (1969),
thus giving him probable cause to file his complaint against
Cory for criminal harassment. Cory further argued that it was
not him, but the Mobile City magistrate, who determined that
probable cause existed to charge Cory with the particular
crime of criminal harassment " based upon [Chris's]
recitation of the facts."
Chris overlooks that the testimony of Cory and Kimberly
disputes some of the material facts upon which the
criminal-harassment charge was based. In their version of the
confrontation, Chris became belligerent with Kimberly,
leading Cory to step in between the two to protect Kimberly
by directing Chris, in a calm, but unwavering, manner, to
leave the premises. According to Cory and Kimberly, Chris was
the antagonist and Cory did nothing of a nature that would
lead a reasonable person to believe that he was threatening
Chris with harm by merely firmly assuring that Chris would
leave the premises. Although a jury could believe Chris's
testimony that Cory acted threateningly, a jury could also
believe Cory's and Kimberly's testimony that Cory did
nothing, either verbally or nonverbally, to harass Chris as
Chris claimed but, rather, that Cory merely acted defensively
to show Chris that he and Kimberly would not suffer any
intimidation. If so, the jury could find that Chris had
misrepresented or suppressed the facts to the magistrate in
order to obtain the arrest warrant. See Cutts v. American
United Life Ins. Co., 505 So.2d 1211, 1215 (Ala. 1987)
(quoting Alabama Power Co. v. Neighbors, 402 So.2d
958, 964 (Ala. 1981), quoting in turn Dismukes v. Trivers
Clothing Co., 221 Ala. 29, 32, 127 So. 188, 190 (1930))
( " '" Giving information of a crime to
officers, or a request that the officers investigate a crime
is not aiding or abetting or instigating a prosecution,
unless such information was a misrepresentation of the facts
in order to induce action, or there was a suppression of
known material facts." '" ).
that same evidence, the jury could reasonably infer that
Chris acted with malice in bringing the criminal charges
" Malice in a malicious prosecution action has been
defined as whatever is done willfully and purposely, whether
the motive is to injur[e the] accused, to gain some advantage
to the prosecutor, or through mere wantonness or
carelessness, if at the same time wrong and unlawful within
the knowledge of the actor. Gulsby v. Louisville &
Nashville RR Co., 167 Ala. 122, 52 So. 392
Dillon v. Nix, 55 Ala.App. 611, 613-14, 318 So.2d
308, 310 (Civ. App. 1975). A jury may infer legal malice from
substantial evidence indicating that the defendant
the facts to procure the prosecution of the civil plaintiff.
See National Sec. Fire & Cas. Co. v. Bowen, 447
So.2d 133, 140 (Ala. 1983). Likewise, a jury may infer legal
malice from substantial evidence indicating that the
defendant instituted a criminal action against the civil
plaintiff without probable cause. See Grantham v.
Bynum, 48 So.3d 657, 662 (Ala.Civ.App. 2010).
argues that the record contains no evidence indicating that
he falsified his report to the magistrate; rather, he says,
all of the evidence shows that he told the truth because, he
says, he repeated the exact statement when he testified in
the criminal trial and Cory and Kimberly verified his
account. However, just because Chris has consistently stated
his version of events does not mean that he must be telling
the full truth, and, as set out above, Cory and Kimberly do
not agree with Chris on the most salient point -- that Cory
was verbally or nonverbally threatening Chris. A jury
reasonably could give credence to their conflicting accounts
of the events and conclude that Chris, although he has
consistently told the same story, embellished certain facts
in order to paint Cory as an aggressor. As Chris himself
appears to acknowledge in his brief to this court, the
parties are involved in a " swearing match" as to
the material events of February 23, 2012. Hence, the question
whether Chris acted with probable cause and without malice
essentially amounts to a question regarding the credibility
of the witnesses, making the summary judgment improper.
See Ravenel, 5 So.3d at 600 (holding that a court
may not make a credibility determination on a motion for a
summary judgment in a malicious-prosecution action).
foregoing reasons, the summary judgment is reversed and the
cause is remanded for further proceedings consistent with
P.J., and Pittman, Thomas, and Donaldson, JJ., concur.