Gamble v. Webb Quarterback Club

• Court: Alabama Court of Civil Appeals
• Citation: 386 So.2d 455
• Parties: Robert GAMBLE and Annette Gamble v. WEBB QUARTERBACK CLUB et al. Civ. 2069.
• Decision Date: 02 April 1980

Page 455

386 So.2d 455 Robert GAMBLE and Annette Gamble
v.
WEBB QUARTERBACK CLUB et al. Civ. 2069. Court of Civil Appeals of Alabama. April 2, 1980.
Rehearing Denied April 30, 1980.

Page 456

Myron H. Thompson, Dothan, for appellants.

James D. Farmer, of Farmer & Farmer, Dothan, for appellees.

HOLMES, Judge.

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.

Page 457

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,...