McConico v. Patterson

• Decision Date: 11 March 2016
• Docket Number: 2140939.
• Citation: 204 So.3d 409
• Parties: Fernessa McCONICO v. Eric PATTERSON and Brandon Falls.
• Court: Alabama Court of Civil Appeals

204 So.3d 409

Fernessa McCONICO

v.Eric PATTERSON and Brandon Falls.

2140939.

Court of Civil Appeals of Alabama.

March 11, 2016.

Chevene Hill, Homewood, for appellant.

J. Patrick Lamb and Robert A. Drake, deputy dist. attys., Office of the District Attorney, Birmingham, for appellee Brandon K. Falls; brief on application for rehearing of appellee Brandon Falls filed by Luther Strange, atty. gen., and Bettie J. Carmack, asst. atty. gen.

Timothy P. Donahue, Sr., and Eleanor G. Jolley of Donahue & Associates, LLC, Birmingham, for appellee Eric Patterson.

On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of January 8, 2016, is withdrawn, and the following is substituted therefor.

Fernessa McConico appeals from a judgment of the Jefferson Circuit Court ("the trial court") dismissing her action against Eric Patterson, the former mayor of the City of Leeds ("the city"), and Brandon Falls, the district attorney for Jefferson County.¹ In her second amended complaint —the complaint that was before the trial court at the time the action was dismissed—McConico made the following assertions.

McConico had worked as a municipal-court magistrate for the city for approximately 10 years when, on August 10, 2008, she was placed on administrative leave while the financial records of the municipal court were audited. The audit, which McConico said had been commissioned by Patterson and conducted by an "unknown third party," concluded that $94,861.72 had been taken from the municipal court. McConico asserted that a second independent audit was conducted by Ronald L. Jones of the "Alabama Public Accountants Office."² That audit, too, "presumably discovered" that $94,861.72 had been taken or "misappropriated" by McConico. On September 11, 2009, the city terminated McConico's employment.

In her complaint, McConico stated that, in November 2009, she learned she was pregnant. On January 15, 2010, she said, she suffered a miscarriage approximately five months into the pregnancy.

McConico asserted that on January 7, 2010, a week before the miscarriage, she filed an action against the city alleging claims of wrongful termination and discrimination. On April 1, 2010, McConico said, Falls "charged and prosecuted" her for second-degree theft of property and "several other charges." On May 23, 2013, the complaint stated, all the criminal charges against McConico were dismissed by an assistant district attorney.

On September 30, 2014, McConico filed her initial complaint in this action. Ultimately, she alleged claims against Patterson and Falls, in their individual capacities, of negligence/malice, wrongful death of her unborn child, malicious prosecution, libel/defamation, and conspiracy. McConico sought compensatory and punitive damages against Patterson and Falls. Patterson and Falls each filed a motion to dismiss the action, arguing, among other things, that the claims against them were time-barred. On June 23, 2015, the trial court granted the motions to dismiss, finding that the claims, "with the possible exception of the malicious prosecution claim," were time-barred. The trial court also dismissed the malicious-prosecution claim, stating that because a Jefferson County grand jury had indicted McConico, "[t]hat, in and of itself, defeat[ed McConico's] malicious prosecution claim." McConico timely filed a notice of appeal to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12–2–7(6), Ala.Code 1975.

The standard that appellate courts use in reviewing a judgment dismissing an action based on the plaintiff's failure to state a claim for which relief can be granted, see Rule 12(b)(6), Ala. R. Civ. P., is well settled.

" ‘In considering whether a complaint is sufficient to withstand a motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P., a court "must accept the allegations of the complaint as true." Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002) (emphasis omitted). " ‘The appropriate standard of review under Rule 12(b)(6) [, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [it] to relief.’ " Smith v. National Sec. Ins. Co., 860 So.2d 343, 345 (Ala.2003) (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993) ). In determining whether this is true, a court considers only whether the plaintiff may possibly prevail, not whether the plaintiff will ultimately prevail. Id. Put another way, " ‘a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’ " Id. (emphasis added).' "

Walter Energy, Inc. v. Audley Capital Advisors LLP, 176 So.3d 821, 824–25 (Ala.2015) (quoting Crosslin v. Health Care Auth. of Huntsville, 5 So.3d 1193, 1195 (Ala.2008) ). Furthermore, a trial court's order of dismissal is afforded no presumption of correctness, and an appellate court reviews the sufficiency of the complaint de novo. DGB, LLC v. Hinds, 55 So.3d 218, 223 (Ala.2010) (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993) ) (" ‘On appeal, a dismissal is not entitled to a presumption of correctness.’ ").

McConico first contends that the trial court erred in dismissing her claim of malicious prosecution because, she says, she was not given the opportunity to rebut the presumption of probable cause to prosecute created by the grand jury's indictment. The elements of a claim of malicious prosecution are: (1) that a judicial proceeding was initiated by the defendants, (2) that the judicial proceeding was instituted without probable cause, (3) that the judicial proceeding was instituted by the defendants maliciously, (4) that the judicial proceeding was terminated in favor of the plaintiff, and (5) that the plaintiff suffered damage as a proximate cause of the judicial proceeding. Eidson v. Olin Corp., 527 So.2d 1283, 1284 (Ala.1988) (citing Smith v. Wendy's of the S., Inc., 503 So.2d 843, 844 (Ala.1987) ).

In entering the judgment dismissing McConico's malicious-prosecution claim, the trial court properly noted that

"such a claim must be predicated on a showing, inter alia, that the defendant initiated a prior action without probable cause. See, e.g., Delchamps, Inc. v. Bryant, 738 So.2d 824, 831 (Ala.1999). Here, we have an indictment against the plaintiff, endorsed by the foreman of a Jefferson County grand jury as a True Bill. That, in and of itself, defeats the plaintiff's malicious prosecution claim."

It is true that

" ‘[i]n malicious prosecution the general rule is that the finding of an indictment by a grand jury against one charged with crime is prima facie evidence of the existence of probable cause, and that the acquittal of a defendant upon the trial does not tend to show a want of probable cause for believing him guilty of the offense charged when the arrest [was] made or prosecution initiated....’ "

Alabama Power Co. v. Neighbors, 402 So.2d 958, 967 (Ala.1981) (quoting Union Indem. Co. v. Webster, 218 Ala. 468, 478, 118 So. 794, 803 (1928) ). However,

"[t]his prima facie showing of the existence of probable cause created by an indictment by a grand jury can be overcome by a showing that the indictment was ‘induced by fraud, subornation, suppression of testimony, or other like misconduct of the party seeking the indictment.’National Security Fire & Casualty Co. v. Bowen, 447 So.2d 133, 140 (Ala.1983)."

Smith, 503 So.2d at 844.

In their respective briefs to this court, Patterson and Falls argue that the malicious-prosecution claim was due to be dismissed because, they say, McConico "failed to prove" Falls acted without probable cause or failed to provide "reasonable and competent evidence" to rebut the presumption of probable cause based upon a grand-jury indictment. The case cited in Patterson's brief for the latter proposition, Johnson v. Haynie, 414 So.2d 946 (Ala.1982), involved the appeal of a judgment entered on a jury verdict in favor of a plaintiff in a malicious-prosecution case. However, this appeal is from a judgment granting a motion to dismiss for failure to state a claim for which relief can be granted, and the quantum of proof necessary to sustain a jury verdict is irrelevant. Instead, we are required to view McConico's complaint most strongly in her favor, and dismissal of her malicious-prosecution claim would be proper only if it "appears beyond doubt" that she can prove no set of facts to support her claim that would entitle her to relief. Walter Energy, Inc., 176 So.3d at 825. We note that the record indicates that the parties did not include any exhibits to their respective pleadings that might have converted the motions to dismiss to motions for summary judgments. See Hoff v. Goyer, 160 So.3d 768, 770 (Ala.Civ.App.2014). At this stage of the litigation, McConico is not required to present any evidence to support her contentions. We consider only whether she could prove any set of circumstances that would entitle her to relief. Nance, 622 So.2d at 299.

In her complaint, McConico alleged that Patterson and Falls "knew or should have known there was no misappropriated money and used the unlawful and malicious prosecution as an attempt to mete out summary punishment on the plaintiff," presumably because she had filed a civil action against the city alleging wrongful termination and discrimination. If she can prove that the grand-jury indictment was " ‘induced by fraud, subornation, suppression of testimony, or other like misconduct of the party seeking the indictment,’ " Alabama Power Co., 402 So.2d at 967, McConico can overcome the presumption that probable cause existed to prosecute her. She is entitled to an opportunity to overcome that presumption. Thus, we conclude that the trial court erred in dismissing McConico's claim of malicious prosecution under the facts of this case as they are...