Carmical v McAfee

• Decision Date: 22 December 1999
• Docket Number: 99-430
• Citation: 7 S.W.3d 350
• Parties: Marvin CARMICAL and Margaret E. Carmical v. David McAFEE CA 99-430 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Court of Appeals

Marvin CARMICAL and Margaret E. Carmical v David McAFEE

CA 99-430 ___ S.W.3d ___

Opinion delivered December 22, 1999

Court of Appeals of Arkansas

Division II

Appeal from White Circuit Court; William Picken Mills, Judge; affirmed.

1. Judgment -- summary judgment -- when granted. -- Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and that the party is entitled to judgment as a matter of law; once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact.

2. Judgment -- summary judgment -- standard of review. -- On review, the appellate court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered; the appellate court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party; the court's review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties; after reviewing undisputed facts, summary judgment should be denied if under the evidence reasonable men might reach different conclusions from the undisputed facts.

3. Judgment -- summary judgment -- essential fact lacking. -- A trial court should grant summary judgment to a defendant if he or she conclusively shows that some fact essential to the plaintiff's cause of action is lacking and the plaintiff is unable to offer substantial evidence to the contrary.

4. Judgment -- summary judgment -- circuit court did not err in granting. --The circuit court did not err in granting summary judgment on appellants' claim that appellee committed an act of malicious prosecution by filing a complaint against them and the city; appellants could not prove the lack of probable cause, an essential element of malicious prosecution.

5. Torts -- malicious prosecution -- essential elements. -- To prove malicious prosecution, the plaintiff must establish each of the following elements: (1) an earlier proceeding instituted or continued by the defendant against the plaintiff; (2) termination of the proceeding in favor of the plaintiff; (3) absence of probable cause for the proceeding; (4) malice on the part of the defendant; and (5) damages; proof of absence of probable cause is an essential element in a claim for malicious prosecution.

6. Torts -- malicious prosecution -- civil proceeding. -- An allegedly malicious prosecution can be a civil proceeding.

7. Torts -- malicious prosecution -- probable cause. -- In the context of malicious prosecution, probable cause means such a state of facts or credible information that would induce an ordinarily cautious person to believe that his lawsuit would be successful; probable cause is to be determined by the facts and circumstances surrounding the commencement and continuation of the legal action; to have a probable-cause basis to file a lawsuit, a person need only have the opinion that the chances are good that a court will decide the suit in his favor; he question is not whether the person is correct in believing that his complaint is meritorious, but whether his opinion that his complaint is meritorious was a reasonable opinion; a person need have only a reasonable opinion that his complaint is meritorious because to hold that the person initiating civil proceedings is liable unless the claim proves to be valid would throw an undesirable burden upon those who, by advancing claims not heretofore recognized, nevertheless aid in making the law consistent with changing conditions and changing opinions; a person's refusal to believe an improbable explanation from someone that he subsequently sues does not amount to substantial evidence that he lacked probable cause to file the lawsuit.

8. Torts -- malicious prosecution -- when lack of probable cause may be decided as matter of law. -- The issue of lack of probable cause in a malicious prosecution case may be decided as a matter of law on summary judgment only if both the facts relied upon to create probable cause and the reasonable inferences to be drawn from the facts are undisputed.

9. Zoning & planning -- zoning ordinances -- strict construction. -- Because zoning ordinances are in derogation of the common law, the appellate court strictly construes them in favor of the property owner; however, this rule does not compel a contrived result when common sense points elsewhere.

10. Statutes -- construction -- basic rule. -- The basic rule of statutory construction is to give effect to the intent of the legislative body that enacted the statute; where the language of a statute is plain and unambiguous, the appellate court determines legislative intent from the ordinary meaning of the language used; in considering the meaning of a statute, the appellate court construes it just as it reads, giving the words their ordinary and usually accepted meaning in common language; the court construes statutes so that no word is left void, superfluous, or insignificant and that meaning and effect are given to every word in the statute if possible.

11. Zoning & planning -- "same lot" restriction -- circuit court did not err in finding probable cause for appellee's complaint. -- The "same lot" restriction is a common part of the definition of "accessory building" in municipal zoning ordinances; in interpreting municipal zoning ordinances, some jurisdictions give the "same lot" restriction on accessory buildings a strict interpretation; given the weight of authority, the appellate court concluded that the circuit court did not err in determining that there was probable cause for appellee's complaint against appellants insofar as it was reasonable for appellee to believe that a court would interpret the pertinent provisions of a city's zoning ordinance to prohibit appellants from erecting a storage building on their vacant lot.

12. Zoning & planning -- applications -- circuit court properly found appellee had probable cause to believe appellants would not erect main building on vacant lot. -- The appellate court concluded that the circuit court did not err in concluding that appellee had probable cause to believe that appellants would not construct a main building on their vacant lot.

13. Zoning & planning -- appeals to circuit court -- trials de novo. --Pursuant to Arkansas Code Annotated section 14-56-425 (Repl. 1998), appeals to circuit court from final action taken by municipal zoning boards of adjustment are not limited proceedings where the circuit court merely conducts a substantial-evidence review but are, instead, trials de novo.

14. Torts -- malicious prosecution -- when question of full disclosure of material facts addressed. -- Whether the defendant in a malicious-prosecution case made a full, fair, and truthful disclosure to an attorney of the material facts known to him and then acted in good faith upon his attorney's advice in prosecuting his suit need be addressed only if the defendant lacked probable cause to prosecute his lawsuit.

15. Torts -- malicious prosecution -- elements. -- The elements of lack of probable cause and malice are not equivalent, and neither necessarily flows as a legal presumption from the establishment of the other; proof of malice does not, of itself, give rise to an inference of lack of probable cause; if probable cause to support the filing of the lawsuit is present, a subsequent action for malicious prosecution will fail even if the initial suit was prosecuted in a spirit of ill will or with malice; the appellate court concluded that appellants' proof of appellee's alleged malice was simply irrelevant.

16. Torts -- outrage -- circuit court did not err in granting summary judgment on appellant's outrage allegation. -- Appellants' inability to prove that appellee lacked probable cause also established that the circuit court did not err in granting summary judgment regarding their allegation of outrage; to succeed on an outrage claim, the plaintiff must prove four elements, one of which is that the defendant's conduct was extreme and outrageous and utterly intolerable in a civilized community; where appellee had probable cause, as a matter of law appellants could not prove that appellee's conduct in filing the complaint was utterly intolerable in a civilized community.

17. Torts -- intentional interference -- no case cited recognizing claim with regard to use & enjoyment of property. -- The circuit court did not err in granting summary judgment on appellants' claim that appellee committed the tort of intentional interference with use and enjoyment of property where appellants failed to cite any decision by the court of appeals or the supreme court that recognized the tort of intentional interference with the use and enjoyment of property; because appellants could not show that appellee lacked probable cause to file his complaint, they could not prove that appellee's conduct was improper.

18. Judgment -- summary judgment -- no error in granting on civil-rights claim. -- The circuit court did not err in granting summary judgment regarding appellants' claim that appellee had violated a right guaranteed to them by the Arkansas Civil Rights Act of 1993, Ark. Code Ann. §§ 16-123-101--108 (Supp. 1999) because appellants had no civil right to be free from a lawsuit filed against them if the lawsuit was based on probable cause.

19. Judgment -- summary judgment -- mere suspicion will not create issue of material fact. -- A mere suspicion in the mind of the party against whom summary judgment is sought will not create a genuine issue of material fact.

20. Torts -- abuse of process -- elements. -- A litigant commits the tort of abuse of process when he or she uses a judicial process to...