Brown v. Parnell

• Decision Date: 08 August 1980
• Citation: 386 So.2d 1137
• Parties: Cleveland L. BROWN v. Charles N. PARNELL, III, et al. 79-140.
• Court: Alabama Supreme Court

Page 1137

386 So.2d 1137

Cleveland L. BROWN v. Charles N. PARNELL, III, et al.

79-140.

Supreme Court of Alabama.

Aug. 8, 1980.

Richard S. Jaffe and Marion F. Walker of Walker, Jaffe & Burton, Birmingham, for appellant.

Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.

FAULKNER, Justice.

This is an appeal from a summary judgment granted in favor of defendant attorneys in a malicious prosecution and abuse of process action. We affirm.

Cleveland Brown is president and 98% shareholder in Auto Sound and Distributors, Inc., a corporation. On the advice of his attorney, he filed complaints in small claims court to collect three bad debts. Brown, who was not an attorney, appeared in small claims court on behalf of his corporation and obtained two judgments. While he was in court he was observed by at least three of the defendant attorneys, Gatewood Walden, Nick Parnell and Horace Lynn. After the court session, Walden, Parnell, Lynn and Collier Carlton, who was also in court when Brown appeared, went into the coffee shop and discussed Brown's appearance in the small claims court representing his corporation and that he was not an attorney. The contents of this conversation and the defendants' subsequent actions leading to issuance of a warrant for Brown's arrest are in dispute. Apparently, there was some concern about Brown's unauthorized practice of law and the legal and ethical considerations confronting the defendant attorneys if they did not act to report and stop this violation. Among these defendants and others there was some discussion about a conflict between the Small Claims Court Rules which seemed to allow Brown to represent his corporation and 1942 Alabama case law which would not allow a private individual to represent his corporation in court.

Members of this group contacted J. O. Sentell, Clerk of the Supreme Court and the local bar association to determine if Brown was a licensed attorney. They also consulted the Secretary of State's office to learn if Brown's business was incorporated.

Parnell, Harry Perdue, Donald Harrison, Lynn, and Walden signed a warrant for Brown's arrest for the unauthorized practice of law pursuant to Title 46, § 42, Code of Alabama 1940 (now Code 1975, § 34-3-7). Brown was arrested and was subsequently tried and convicted of the charges in district court. He appealed to the circuit court where the district attorney nol-prossed the case.

Brown then filed a complaint for malicious prosecution and abuse of process against the defendants, who moved for summary judgment. He also filed a motion in opposition to the summary judgment along with briefs and affidavits. The parties dispute whether there was ever a hearing on this motion. The motion for summary judgment was granted with no grounds specified as the basis for that ruling. After denial of his motion for reconsideration, Brown appeals.

We are presented with two issues on appeal: first, whether the trial court erred in granting the defendant's motion for summary judgment where there were genuine issues as to material facts regarding elements of malicious prosecution, i. e., malice, probable cause, and a termination favorable to Brown; and second, whether defendants were guilty of abuse of process.

To successfully maintain an action for malicious prosecution the plaintiff has the burden of providing the following essential elements: (1) a prior judicial proceeding; (2) instigated by the defendant; (3) without probable cause; (4) with malice; (5) which was terminated in favor of the plaintiff; and (6) damages. Gosnell v. Slaughter, 364 So.2d 1154 (Ala.1978); Jordan v. Empiregas, Inc. of Belle Mina, 337 So.2d 732 (Ala.1976). A different standard is used to determine whether there was a "want of probable cause" in a malicious prosecution suit when the prior action was a criminal case as opposed to a civil case. Compare Republic Steel Corp. v. Whitfield, 260 Ala. 333, 70 So.2d 424 (1953), (contributing to the delinquency of a minor) with Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So.2d 555 (1959), (nonpayment of rent under a lease). The rule where the prior conviction occurred in a criminal case is that "the judgment of conviction, though later vacated and accused discharged, is prima facie evidence of the existence of probable cause for instituting the prosecution 'which may be rebutted by any competent evidence which clearly overcomes the presumption arising from the fact of defendant's conviction in the first instance.' " Jordan v. Wilson, 263 Ala. 625, 626, 83 So.2d 340, 342 (1955), quoting from Republic Steel Corp. v. Whitfield, 260 Ala. at 337, 70 So.2d at 426 (emphasis added). The reasoning behind that rule was expressed thusly:

"The true and logical reason why a conviction reversed on appeal and the defendant discharged is relevant evidence on the issue of probable cause is, not that the judgment imports absolute verity; for after the reversal and discharge there is in fact and law no judgment. The true reason, as stated in the case of Nehr v. Dobbs, 47 Neb. 863, 66 N.W. 864, is the fact that ordinarily, if a court having jurisdiction has upon a full and fair trial proceeded to conviction, it must have had before it such evidence as would convince a prudent and reasonable man of the guilt of the accused. Therefore, while a subsequent reversal may show that the accused was in fact innocent, yet it does not show that there was no probable cause for believing him guilty."

Ex parte: Kemp, 202 Ala. 424, 424-25, 80 So. 809-10 (1919) (malicious prosecution action instituted after nolle prosequi of plaintiff's appeal to circuit court, quoting from Skeffington v. Eylward, 97 Minn. 244, 105 N.W. 638 (1906).

In the case before us, we must determine whether there was sufficient competent evidence to clearly overcome the prima facie presumption of probable cause arising from Brown's conviction in district court. Brown contends that probable cause was lacking for several reasons: the discussion of the apparent conflict between the Small Claims Rules pamphlet and Alabama case law led to the idea that a warrant be sworn out against Brown to institute a test case, the proportion of collection work done by some of the defendant attorneys, and the individual defendants' failure to act as prudent and competent attorneys would have done investigating the Small Claims Rules and determining whether Brown was an attorney and his business a corporation.

Harry Perdue handles collections amounting to...