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Heining v. Abernathy

Supreme Court of Alabama

August 16, 2019

Ronald HEINING and Tyler Heining
Darryl ABERNATHY and Robert J. Dean, Jr.

         Rehearing Denied October 11, 2019.

Page 1033

         Appeal from Calhoun Circuit Court (CV-17-900555)

         Donald W. Stewart of Stewart & Stewart, P.C., Anniston; and Scott P. Hooker of Stewart & Stewart, P.C., Bessemer, for appellants.

          C. David Stubbs of Stubbs, Sills & Frye, P.C., Anniston, for appellees.

         SELLERS, Justice.

         Ronald Heining and his son, Tyler Heining, appeal from a summary judgment entered by the Calhoun Circuit Court in favor of Robert J. Dean, Jr., Public Works

Page 1034

          Director of the City of Anniston, and Darryl Abernathy, a supervisor in the Public Works Department, in the Heinings' action seeking damages for false arrest, false imprisonment, malicious prosecution, and conspiracy. We affirm.

         Facts and Procedural History

         The evidence, viewed in the light most favorable to the Heining as the nonmovants for a summary judgment, reveals the following relevant facts: In June or July 2012, Ronald Heining discovered a sealed envelope that had been slipped underneath the door at his place of employment, B & T Supplies, which was owned by Ronald's son Tyler; B & T at the time sold janitorial supplies to the City of Anniston ("the City"). Ronald was the contact person for those sales. The envelope stated on the outside "Deliver Ben Little" and contained two or three pages of ethical violations allegedly committed by several employees of the Public Works Department, including Dean and Abernathy. Little was a councilman for the City. After reviewing the contents of the envelope, Ronald took the envelope and its contents to Councilman Little, who he claimed he did not know. Ronald and Councilman Little, in turn, took the information to Don Hoyt, the city manager, who conducted an extensive investigation into the alleged ethical violations.[1]

         Meanwhile, Councilman Little presented the allegations of ethical violations at a city-council meeting. Ronald Heining was present at that council meeting, during which he sat next to James Fluker, an employee in the Public Works Department. At that meeting, Fluker confided in Ronald that he had put "coolant seal" belonging to the City on the truck Abernathy used for his personal business. After the council meeting concluded, Ronald introduced Fluker to Councilman Little as "the guy that put coolant seal" on Abernathy's truck. Apparently, at that time, Councilman Little ordered Fluker to obtain from Abernathy's office a copy of a surveillance video allegedly depicting the theft of two city-owned utility trailers. Fluker informed Abernathy of Councilman Little's instructions; because Abernathy thought that stealing a surveillance video would violate the City's council-manager act and would also constitute theft, this information was provided to the Anniston Police Department and was investigated by Lt. Allen George, an investigator with the department. Lt. George monitored a telephone call from Fluker to Councilman Little, which confirmed Councilman Little's instruction to Fluker to obtain the surveillance video. Subsequently, Councilman Little was arrested and was charged with violating the City's council-manager act; Fluker was a witness in that case.

         Sometime after Councilman Little's arrest, Fluker told Abernathy that Ronald Heining had tried to bribe him not to testify against Councilman Little. Abernathy telephoned Lt. George and reported that conversation. The next day, Abernathy accompanied Fluker to the police department to report the bribery and witness-intimidation allegations.

         On August 24, 2012, the Heinings were arrested for attempting to bribe and intimidate Fluker. The details of the alleged bribery and intimidation are set forth in the Alabama Uniform Incident/Offense Report, prepared by Lt. George and dated August 23, 2012:

Page 1035

"Fluker ... is a witness in a case against Councilman Benjamin Little.... For the last several weeks, he has received threats by phone ... and was followed for an extended period of time on August 14, 2012 by Ronald Heining. Fluker feels that all of these actions are because of him coming forward against Councilman Little.

"On August 18, 2012, at approximately 7pm, Fluker and his wife Amy Fluker drove to Scott's Grocery ... to purchase fuel. While they were at the fuel pumps... Ronald Heining and a [white male] Fluker believed to be [Ronald] Heining's son pulled up in a small black SUV (4 Door). Fluker said that the [white male] with Ronald Heining stated `I have $1,000 cash if you don't go to trial with Ben Little and keep your mouth shut.' Fluker said that the [white male] held up what appeared to be a roll of $100 bills. Fluker said to his wife `something is fishy about this, this is a set up.' He said that Ronald Heining kept saying `Take the money; you know you need the money, just take it.' Fluker said that Ronald told him, `I will be at Ben Little's trial and will be on his side and testify about all of this crap.' He said that Ronald Heining then got into his vehicle and left the parking lot at a high rate of speed like he was mad.

"On August 23, 2012, I met with Mr. Fluker and showed him six separate photos in a stapled packet that contained a photo of Tyler Heining and five other similar white males. Mr. Fluker identified photo number four as being the individual that offered him the money to not testify. Photo number four is a photo of Tyler Heining....

"At approximately 4pm, I met with Amy Fluker and asked her what she had observed. She stated that she and [Mr. Fluker] were at the fuel pumps at Scott's grocery when a small black SUV pulled up beside them. She said that the driver exited the vehicle and she saw the passenger holding up a roll of money. She said that she heard the driver who she believed was Ronald Heining, offering [Mr. Fluker] money. She said that she asked [Mr. Fluker] why he was offering him money and when he told her, she said that she told [Mr. Fluker] `you better not take that money.' [Mrs. Fluker] said that after a few minutes, the vehicle sped away. Mrs. Fluker stated that at some point, the vehicle ended up behind them and began following them for a short distance before turning off. I asked Mrs. Fluker if she ever saw the individual holding up the money and she said that she couldn't see them real well. I showed Mrs. Fluker a photo packet containing the same photos that I showed Mr. Fluker, but in a different order. Mrs. Fluker was unable to identify the suspect from the array, saying that she didn't get a good enough look to be able to identify them.

"Mr. Fluker will come to [the Anniston Police Department] on August 24, 2012, to be escorted to the District Attorney's office to seek warrants."

         The bribery and witness-intimidation charges against the Heinings were ultimately nolle prossed.[2] The Heinings, thereafter, sued Dean and Abernathy, asserting claims of false arrest, false imprisonment, malicious prosecution, and conspiracy.[3] ...

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