Duncan v. Kent
| Decision Date | 27 April 1979 |
| Citation | 370 So.2d 288 |
| Parties | Shelley O. DUNCAN v. Michael I. KENT, et al. 78-202. |
| Court | Alabama Supreme Court |
Leon Garmon, Gadsden, for appellant.
W. F. Horsley, of Samford, Denson, Horsley & Pettey, Opelika, for appellees.
Shelley O. Duncan filed suit against Michael I. Kent, Carl E. Maye, Thomas S. Melton and Guy F. Gunter, III (lawyers), and Morris T. Acreman claiming abuse of process in connection with the prosecution of a suit by Acreman against Duncan in which Acreman was represented by the lawyer defendants.
Defendants' motion for summary judgment, supported by the affidavit of Michael Kent, was granted; hence, this appeal.
Because Plaintiff relies upon his complaint and the affidavits attached thereto in opposition to Defendants' motion, an examination of the complaint and the counter-affidavits is essential to the disposition of the single issue presented: Whether the pleadings and affidavits raise a genuine issue of material fact.
On February 18, 1974, Michael Kent, as attorney for Acreman (and a member of the law firm of Maye, Melton, Kent & Gunter), filed suit against Phillip Duncan, alleging that Acreman was injured in an automobile accident caused by the negligence of Phillip Duncan.
On May 1, 1974, Kent amended Acreman's complaint by adding Shelley Duncan as a party defendant, alleging that Phillip Duncan was the son of Shelley Duncan; that Shelley Duncan entered into an agreement with Acreman to pay the expenses and damages incurred by Acreman as a result of Phillip Duncan's negligence. Appellant says the act of Kent and Acreman in amending the lawsuit to add Shelley Duncan as a party defendant was malicious, wrongful, and without probable cause.
By affidavit attached to his complaint, Shelley Duncan denies being personally served with a copy of the complaint making him a party defendant to the Acreman lawsuit.
Plaintiff contends it was a perversion of process to make him a party defendant in the lawsuit by Acreman because the contract made the basis of the suit was not in writing, and thus was void as violative of the Statute of Frauds. In furtherance of this contention, Plaintiff alleges that default judgment was entered against Duncan in the suit brought by Acreman on December 13, 1974; that Acreman proved damages and judgment was entered in the amount of $2,236.70; that a writ of execution was issued to enforce the judgment against Duncan on July 25, 1977; and that later Duncan's automobile was seized. Plaintiff also alleges that taking the default judgment on December 13, 1974, was a perversion of process, and Kent's refusal to "drop" the writ of execution against Duncan was willful, intentional, and wanton.
Affidavits on behalf of Plaintiff's claim disclose:
Shelley Duncan, in addition to denying receipt of service of a copy of the complaint in the lawsuit against him by Acreman, also testified that he never entered into a Written agreement with Acreman to pay the expenses and damages suffered by Acreman as a result of the accident involving Acreman and Phillip Duncan.
Danny Tilley testified that he is deputy sheriff of Etowah County, Alabama. He says that one Ronnie Cox was a process server for the Etowah County Sheriff's Department in 1974, and he succeeded Cox as a process server. He says that he found a number of papers in Cox's car which had allegedly been served by Cox, when in fact no service had been perfected. (He does not identify the Acreman suit as one of those not served.)
Bill Willis testified that he is employed in the Security Department of Republic Steel Corporation, and he is a qualified deputy sheriff authorized to serve summonses and complaints on employees of Republic Steel Corporation. He says that he can find no record reflecting service of any summons and complaint on Shelley Duncan during the month of May, 1974. Willis has no knowledge of whether Duncan was served at some place other than Republic Steel Corporation.
The Defendant Kent's affidavit is the only evidence in support of Defendants' Motion for summary judgment. Kent testified that he is an attorney practicing in Opelika, Alabama. Acreman employed Kent in February of 1974 to recover damages he sustained in an automobile accident with Phillip Duncan. Kent filed suit against Phillip Duncan in the Circuit Court of Lee County, Alabama, on February 18, 1974. On May 1, 1974, Kent amended the complaint, adding Shelley Duncan as a party defendant stating a cause of action against Shelley Duncan in contract and alleged that Shelley Duncan entered into an agreement to pay the damages sustained by Acreman in his accident with Phillip Duncan. The sheriff's return shows that personal service was perfected on Shelley Duncan on May 14, 1974.
Shelley Duncan made no appearance in the lawsuit, and default judgment was taken on December 13, 1974. Kent appeared with Acreman...
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Davis v. Self
...issued process to accomplish a purpose whereby a result not lawfully or properly obtainable under it is secured.” Duncan v. Kent, 370 So.2d 288, 290 (Ala.1979). “Malice” exists when the process is used “for an end not germane” to its issuance. Willis v. Parker, 814 So.2d 857, 866 (Ala.2001)......
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Drill Parts and Service Co., Inc. v. Joy Mfg. Co.
...of process. See Reynolds v. McEwen, 416 So.2d 702 (Ala.1982); Farm Country Homes, Inc. v. Rigsby, 404 So.2d 573 (Ala.1981); Duncan v. Kent, 370 So.2d 288 (Ala.1979); Wilson v. Brooks, 369 So.2d 1221 (Ala.1979). This Court did refer to Tarver in Tapscott v. Fowler, 437 So.2d 116, 119 (Ala.19......
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Haynes v. Coleman, 2070959.
...action is confined to its regular and legitimate function in relation to the cause of action stated in the complaint."' Duncan v. Kent, 370 So.2d 288 at 290 (Ala. 1979) (quoting 1 Am.Jur.2d Abuse of Process, § 13 (1962)). However, liability attaches `"if the suit is brought, not to recover ......
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Bosler v. Shuck
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