Gulf States Paper Corp. v. Hawkins

CourtSupreme Court of Alabama
Writing for the CourtMADDOX; TORBERT
Citation444 So.2d 381
Decision Date22 December 1983

Page 381

444 So.2d 381

Robert V. HAWKINS.
Supreme Court of Alabama.
Dec. 22, 1983.

Page 382

William J. Donald and Herschel T. Hamner, Jr. of Zeanah, Donald & Hust, Tuscaloosa, for appellant.

Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellee.

MADDOX, Justice.

The question presented by this appeal is whether the element of probable cause in this action for malicious prosecution was an issue for the jury's consideration. Because we reverse and render, a detailed version of the facts is appropriate.

Plaintiff Robert Hawkins is a resident of Tuscaloosa County. On September 17, 1973, Hawkins went to work for Gulf States Paper Corporation (Gulf States), defendant, as the timber engineering director. He then became the forest engineering director. From 1975 or 1976 to the date of his termination on April 21, 1981, Hawkins was director of Gulf States' Land Engineering Department. His duties generally were to oversee Gulf States' two survey crews and the road- and bridge-building crew. Commencing in 1975 or 1976, the Land Engineering Department began doing external survey and road-building work for parties other than Gulf States, who paid Gulf States for the external work.

From 1976 through May 1981, Gulf States operated on a fiscal year basis, each fiscal year extending from near the end of May of one year until roughly June 1 of the next year. Hawkins had the responsibility of planning the amount of work that his particular operation would do for a given fiscal year, and projecting the amount of money that his department would make from external work during each fiscal year. Hawkins likewise had the duty and responsibility to bill for external work performed by the Land Engineering Department.

From all accounts, Gulf States' policy required that an external customer be billed by invoice, with the Land Engineering Department retaining a file copy and Gulf States' accounting office receiving a copy. External customers were directed to make payment to "cashier Gulf States Paper Corporation," while checks for company debts made payable to Gulf States' employees were to be indorsed and turned over to the cashier with an invoice. Likewise, an employee receiving cash due Gulf States was required to deliver that money as soon as possible to the cashier, with an

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invoice or writing to identify it. Hawkins testified that he understood this to be Gulf States' policy and practice.

Prior to June 1979, an external customer, Ed Montgomery, employed Gulf States to do survey work and prepare plats on subdivision lots that he owned. The record indicates that Hawkins talked with Montgomery about this work, and that an agreement was reached whereby Gulf States would be paid $80 for each plat prepared.

On June 18, 1979, Gulf States prepared two plats for Montgomery. On June 20, 1979, the Tuscaloosa law firm of Rosen, Wright, Harwood & Albright issued a check for $80 in payment for one plat, and on August 15, 1979, issued a check for $80 in payment for the other plat. These checks were made payable to Robert V. Hawkins and were mailed to him at his home. Hawkins testified that he did not know why the checks were made payable to him personally or mailed to his house. He, however, indorsed these checks and turned them in to Gulf States, with an invoice, sometime in September 1979.

The facts show that between October 18, 1979, and March 25, 1981, a period of approximately a year and a half, twenty-six additional checks were issued, four by Rosen, Wright, Harwood & Albright, and twenty-two by Tuscaloosa Title Company. Each check was in the amount of $80, and each was payable to Robert V. Hawkins. On April 7, 1981, a twenty-seventh check, in the amount of $110, was issued by Tuscaloosa Title Company, payable to Hawkins. These twenty-seven checks were issued as payment for twenty-seven plats prepared by Gulf States' employees. The first twenty-six checks were for plats for Ed Montgomery, and the twenty-seventh check was for a plat for Richard Montgomery. The four checks issued by the law firm were mailed to Hawkins's home, while the twenty-three checks issued by Tuscaloosa Title Company were sent to his office at Gulf States.

Hawkins testified that he decided to cash the checks and keep the money and use it to meet his external goal. The money was kept inside a daily planner or calender in an unlocked desk drawer at his office. Hawkins stated that as the $20 bills accumulated, he would change them out for $100 bills.

The twenty-seventh, and last, check cashed by Hawkins was issued on April 7, 1981, by Tuscaloosa Title Company, for survey work done for Richard Montgomery. It was made payable to Hawkins in the amount of $110, and was sent to his office. Hawkins cashed the check on the day he left for vacation in North Carolina and carried the money with him, but he testified that he did not spend any of it.

The facts indicate that Hawkins returned to Tuscaloosa on April 19, 1981, and reported for work on April 20, 1981, a Monday. At that time, $2,080 in cash was in his middle desk drawer. He put a $100 bill in and withdrew four $20 bills to pay for some gas. Hawkins testified that he had two or three $100 bills on him when he returned to work on April 20, 1981.

On April 21, 1981, Hawkins returned to work with the intention of putting $90 into the cash fund in his desk; however, he was met at the door by Louis Lombardy, security director of Gulf States. Lombardy took Hawkins upstairs, where John Watkins of the Tuscaloosa Police Department then came in and met with Hawkins alone. Watkins testified that he identified himself as a city detective and that he said that he was investigating irregularities that involved checks from Tuscaloosa Title Company and that he told Hawkins he was suspected of taking money from Gulf States. This meeting between Detective Watkins and Hawkins was precipitated by the following events as they appear from the record.

Joe Mullins, who worked under Hawkins in the Land Engineering Department, noticed that several checks came into the Gulf States office made out to Hawkins. He testified that in December 1980, an envelope from Tuscaloosa Title Company addressed to Hawkins came to the office, and that he could tell there was a check made to Hawkins in the envelope. Mullins stated

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that he knew that Gulf States was doing work for Ed Montgomery at that time.

Mullins testified that another envelope addressed to Hawkins arrived in February 1981, and there was a check made to Hawkins in the envelope. Mullins stated that he told Mrs. B.C. Watson, who was the personnel director, that a check made payable to Hawkins had come in. A couple of days later in a telephone conversation with Ed Montgomery, Mullins associated the check received with some work that Gulf States had done for Ed Montgomery. Mullins stated that he checked to see if Gulf States had made an invoice for the Montgomery work, but discovered that there was no invoice in the invoice book. He also checked the number of survey plats against the invoices for the Montgomery work and found a discrepancy in the number of invoices as compared to the number of plats that Gulf States had done.

Mullins testified that he saw another check payable to Hawkins arrive in April after they had done some survey work for Richard Montgomery. He asked Mrs. Watson to check to see if the company received payment for it, and she told him that the company had not received payment. He testified that he then looked through the invoice file and examined the survey plat file and found that there was a discrepancy of twenty-seven to twenty-nine invoices which were not in the invoice file for corresponding plats that were in the survey file.

Mullins said he talked to Mrs. Watson about the discrepancy between the plats and invoices, and next talked to Mr. John Warner, who was executive vice-president of Gulf States. He explained to Warner that he had found a discrepancy in the plats and invoices, that the company did not have invoices to show for work that had been done by company survey crews, and that he had seen a check come in concerning the survey work.

On Thursday, April 16, 1981, Mullins attended a meeting at company headquarters called by Warner. Charles Allison, who was vice-president, secretary, and general counsel of Gulf States, attended the meeting. At the meeting Mullins told the company representatives about the checks and the discrepancies in plats and invoices.

The record indicates that Mullins was excused from the meeting, whereupon Allison asked Paul Hubbard, the company accountant, to go through accounting records to see if he could find any indication that the company had received payment for this series of plat plans for Ed Montgomery. He also asked Louis Lombardy, security director, to go through the drawing records and invoice books to confirm that there was a mismatch between the drawings and the invoices and to look through any other records downstairs to see if he could find any other information that might bear on the question of these plats and payment for them. Allison instructed Lombardy to check Hawkins's work area and desk. The meeting broke up at 6:30 p.m.

Shortly after the meeting, Lombardy went down to Hawkins's office and in Joe Mullins's presence looked in Hawkins's desk drawer. He found a pocket calendar with twenty $100 bills and four $20 bills, $2,080 in cash. Lombardy also looked at some papers that were in the desk and on top of the desk. He checked the invoice book to see if there were any invoices corresponding to the subdivisions that Gulf States had done survey work for, and found there were no invoices corresponding to that survey work. Since Lombardy's investigation occurred about 7 p.m., and he was concerned about leaving the money overnight in an unlocked desk drawer, he took it home.

The facts indicated that on the next day, April 17,...

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