Gamble v. Webb Quarterback Club
| Decision Date | 02 April 1980 |
| Citation | 386 So.2d 455 |
| Parties | Robert GAMBLE and Annette Gamble v. WEBB QUARTERBACK CLUB et al. Civ. 2069. |
| Court | Alabama Court of Civil Appeals |
Myron H. Thompson, Dothan, for appellants.
James D. Farmer, of Farmer & Farmer, Dothan, for appellees.
The plaintiff sued the defendant for malicious prosecution and abuse of process. The trial court, after an ore tenus hearing, entered a judgment in favor of the plaintiff in the amount of $5,000. The judgment did not specify upon which theory judgment was entered. The defendant appeals and we affirm.
The defendant contends the evidence does not support a judgment for malicious prosecution. Additionally, the defendant urges error in the trial court's action striking certain defenses and in refusing to allow certain evidence to be admitted.
We do not deem it necessary to set out in detail the facts as revealed by the record. Suffice it to say that the following is pertinent.
In the late summer of 1976, Ray Snellgrove, a member of the plaintiff, Webb Quarterback Club, was defeated by defendant, Annette Gamble, in a city council election. The club sponsored children's football teams in an area league. In January, 1977, Snellgrove proposed an eligibility rule to the club which was thereafter adopted by an affirmative vote of the club members. The rule provided that only those children who attended the Webb public school would be allowed to play on the club sponsored football teams. The defendant's child had played on one of the teams but attended a private school and was therefore ineligible to play after the rule was adopted.
In June, 1978, after consulting an attorney, the defendant filed a U.S.C., Tit. 42, § 1983, action against the club and some of its members, individually, in federal district court. In her suit, the defendant claimed the eligibility rule was adopted solely as a result of the city council election to punish her for criticizing and defeating Snellgrove. The district court dismissed the suit, finding that there was a lack of jurisdiction because no "state action" was involved. No appeal was taken from this decision. The plaintiff then instituted the instant action.
At the outset, we note that the essential elements necessary to recover in a malicious prosecution suit are (1) a judicial proceeding, (2) initiated by the defendant, (3) without probable cause, (4) malice on the part of the defendant, (5) termination of the judicial proceedings favorable to the plaintiff, and (6) damages. King v. Farrell, 55 Ala.App. 147, 314 So.2d 68 (1975). If any of these elements is lacking, the result is fatal to the action. Ford Ins. & Real Estate Co. v. Thrasher, 45 Ala.App. 592, 234 So.2d 590 (1970).
The defendant, through able counsel, first contends that she did have probable cause to bring the prior federal action against the plaintiff. Specifically, she raises the defense of advice of counsel and further alleges that probable cause existed factually. As indicated above, the federal district court dismissed the prior action for want of jurisdiction because no "state action" was involved. Thus, we find our determination is limited to whether probable cause existed as to the presence of "state action."
We first note that for the defense of advice of counsel to prevail, there must be a full and fair disclosure to counsel of all the facts and circumstances known to the defendant. Whether such a disclosure was made is, in this instance, a question for the trier of fact to determine. Broussard v. Brown, Ala.Civ.App., 353 So.2d 804 (1978).
The defendant contends that she made a full and fair disclosure of the facts as she knew them to her attorney, who recommended filing the prior suit.
However, the record reveals that the defendant's attorney wrote a letter to the plaintiff club, stating that the club had used "revenue sharing monies over the past several years" for uniforms, bleachers, concession stands and upkeep of the football field. This alleged use of revenue sharing funds was materially relied upon in the defendant's prior complaint to prove "state action." The record further indicates that no such use existed and that the defendant knowingly misled her attorney with respect to the facts about revenue sharing funds as she had complete access to the city financial records and knew revenue sharing funds were not used by the club. Thus, the trier of fact could have concluded from the evidence that a full and fair disclosure was not made by the defendant to her attorney. Therefore, as a matter of law, advice of counsel was not, in this instance, a defense.
The defendant also contends, as indicated above, that probable cause existed factually. For this defense to prevail, the malicious prosecution defendant must have reasonably entertained the opinion that, upon adjudication, the claims put forth in the prior suit would prevail. Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So.2d 555 (1959). Furthermore, in determining the existence of probable cause, this court must weigh the defendant's actions in light of the facts as they appeared at the time the claim was filed. Dodson v. Ford Motor Credit Co., 46 Ala.App. 387, 243 So.2d 43 (1971).
As we understand the defendant's argument in this regard, she contended that the plaintiff-club had complete control and supervision of the public football field, except during school hours. Additionally, she contended that the plaintiff's football program was the only organized football activity in the community. The defendant further cited a donation of $400 to the club by the City of Webb which was later returned to the city. Based upon the above, the defendant concludes that probable cause existed to believe that the club's use of the football field and receipt of city financial help constituted "state action."
However, the record indicates that the football field involved was not in fact used exclusively by the plaintiff. In fact, there is testimony that the school principal informed the defendant, before she filed the prior action, that others could use the field and that the school exercised authority over the use of the field. The principal also related the procedure to be followed to get permission to use the field. As indicated above, there is evidence in the record that the defendant had knowledge that no city funds were being used by the plaintiff.
Whether probable cause existed factually when the evidence is in dispute is also for the trier of fact. S.S. Kresge Co. v. Ruby, Ala., 348 So.2d 484 (1977). Looking to the above, we are not prepared to say the trial court's finding was in error when there was evidence the defendant knew, before filing the suit, that the plaintiff did not have exclusive use and control of the field and did not use public funds. Put another way, it was not error to rule that the defendant, in light of the facts as they existed prior to the filing of the suit, could not have reasonably entertained the opinion that her assertions would prevail.
The defendant next contends that the presence of malice was not shown and concludes the action must fail. We do not agree.
Malice may be inferred from want of probable cause or from the...
To continue reading
Request your trial
-
Rennie v. Freeway Transport
...cert. den. 406 U.S. 930, 92 S.Ct. 1776, 32 L.Ed.2d 132 (1972); Terrell v. City of Bessemer, 406 So.2d 337 (Ala.1981); Gamble v. Webb Quarterback Club, 386 So.2d 455, 458 (Ala.Civ.App.) cert. den. (1980); Penn Mart Realty Co. v. Becker, 298 A.2d 349, 352 (Del.1972). But see Mattson v. City o......
-
Tarkowski v. Lake County
...on the authority of such cases as Excel Handbag Co. v. Edison Bros. Stores, Inc., 428 So.2d 348 (Fla.App.1983); Gamble v. Webb Quarterback Club, 386 So.2d 455 (Ala.Civ.App.1980); Roy v. Landers, 467 S.W.2d 924 (Mo.1971), and White v. Towers, 37 Cal.2d 727, 235 P.2d 209 (1951)--all cases whe......
-
First Shelby Nat. Bank v. Mitchell
...defendant, (5) termination of the judicial proceedings in plaintiff's favor, and (6) damages as a result of the action. Gamble v. Webb Quarterback Club, 386 So.2d 455 (Ala.Civ.App.), cert. denied, 386 So.2d 459 (Ala.1980). The defendant contends the plaintiff presented insufficient proof to......
-
Miami Nat. Bank v. Nunez
...1987), review denied, 531 So.2d 167 (Fla.1988); Brinson v. Southeastern Util. Serv. Co., 72 So.2d 37 (Fla.1954); Gamble v. Webb Quarterback Club, 386 So.2d 455 (Ala.App.), writ denied, 386 So.2d 459 (Ala.1980); Vandersluis v. Weil, 176 Conn. 353, 407 A.2d 982 In the instant case, however, M......