SHONEY'S, INC., et al.
v.
Michael L. BARNETT.
Michael L. Barnett
v.
Shoney's, Inc., et al.
Court of Civil Appeals of Alabama.
*1019 David W. Proctor and Brian R. Bostick of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham, for appellants/cross appellees Shoney's Inc., and TPI Restaurants, Inc.
William T. Mills II, Mark E. King, and W. Perry Webb of Porterfield, Harper & Mills, P.A., Birmingham, for appellant/cross appellee Rebecca Lawrence Hunter.
J. Gusty Yearout, John G. Watts, and D. Dirk Thomas of Yearout, Myers & Traylor, P.C., Birmingham; and Mac Parsons and Jonathan Tindle, Bessemer, for appellee/cross appellant Michael L. Barnett.
Alabama Supreme Court 1981296.
*1020 On Applications for Rehearing
CRAWLEY, Judge.
The opinion of December 11, 1998, is withdrawn and the following is substituted therefor.
I. Procedural History
Michael L. Barnett was the kitchen manager at a Shoney's restaurant operated by TPI, Inc., a restaurant management company, in Bessemer. When the store was burglarized in January 1995, the managers reported the theft and named Barnett as a suspect. Barnett was subsequently arrested and was incarcerated for 32 days. The criminal case against Barnett was submitted to a grand jury after a judge, at a preliminary hearing, found probable cause to indict; that finding of probable cause was based, in part, on the testimony of the executive manager of the restaurant, Rebecca Lawrence Hunter. The grand jury returned an indictment. However, the police detective assigned to the case had significant doubts about the testimony of one of the Shoney's employees and recommended that the case be nolprossed, and it was.
Barnett then sued Hunter, who had sworn out the warrant and had testified at his preliminary hearing; Shoney's, Inc; and TPI, Inc.,[1] alleging negligence, slander, abuse of process, and malicious prosecution. Barnett voluntarily dismissed the slander count at trial. Shoney's and Hunter moved for a judgment as a matter of law on the negligence, malicious prosecution, and abuse of process claims at the close of Barnett's evidence and again at the close of all the evidence. The trial court granted Shoney's and Hunter's motions for a judgment as a matter of law on the negligence claims; however, it denied those motions as to the malicious prosecution and abuse of process claims. The case was then submitted to the jury.
The jury returned a general verdict in favor of Barnett, awarding him $5,500 in compensatory damages and $250,000 in punitive damages. The trial court denied Shoney's and Hunter's motions for new trial, but ordered a remittitur of the punitive damages award to $99,000. Shoney's and Hunter appealed to the Alabama Supreme Court, arguing that they had been entitled to a judgment as a matter of law on both the malicious prosecution claim and the abuse of process claim; that juror misconduct required a reversal; that the trial court erred by excluding evidence of Barnett's conviction for sexual abuse in the second degree; and that the award was excessive. Barnett cross-appealed, arguing that the trial court should not have reduced the punitive damages award. The supreme court transferred the case to this court pursuant to Ala.Code 1975, § 12-2-7(6).
II. Standard of Review
"[I]n reviewing the trial court's ruling on [a] motion [for a judgment as a matter of law], we review the evidence in a light most favorable to the nonmovant, Ritch v. Waldrop,428 So.2d 1 (Ala. 1982), and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination. Macon County Comm'n v. Sanders,555 So.2d 1054 (Ala.1990).
". . . .
"... In ruling on a motion for [a judgment as a matter of law], the trial court is called upon to determine whether the evidence was sufficient to submit a question of fact to the jury; for the court to determine that it was, there must have been `substantial evidence' before the jury to create a question of fact. See, § 12-21-12(a), Ala.Code 1975. `[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' *1021 West v. Founders Life Assur. Co. of Florida,547 So.2d 870 , 871 (Ala.1989)."
American Nat'l Fire Ins. Co. v. Hughes,
This case involves multiple theories of liability and multiple defendants. This court must consider whether the jury's verdict would be referable to a "good" count, or whether, if any of Barnett's claims are "bad," the judgment would have to be reversed and the case remanded for a new trial on the remaining "good" counts. To make that determination, we must review the motions for a judgment as a matter of law made by Hunter and Shoney's.
"In a multiple-theory case, ... if the [motion for a judgment as a matter of law] is addressed to one or more of the theories, separately and severally, specifying as a ground that the evidence is insufficient as to each theory so challenged, then the jury's general verdict is due to be sustained on a timely filed post-judgment motion for a [judgment as a matter of law], specifying the same ground, only if each of the challenged theories is supported by the evidence. If one or more of the challenged theories is not supported by the evidence, the movant is entitled to a [judgment as a matter of law] on the unsupported theory or theories and to a new trial on the remaining theories; in this event, the verdict is not referable to the `good' theory."
King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc.,
After reviewing the motions for a judgment as a matter of law, we are convinced that those motions raised a question of the sufficiency of the evidence as to all of Barnett's claims. Therefore, if Hunter or Shoney's was entitled to a judgment as a matter of law on any of Barnett's claims, then the judgment must be reversed as to those claims and the case remanded for a new trial on any remaining claims.
III. Facts
Many of the facts of this case are disputed. Barnett's last day of work was Saturday, January 14, 1995. According to Barnett, he resigned his position that evening by giving the other manager working that evening, Sylvia Wilkerson, a letter of resignation and his keys. Barnett testified that he quit his job because of transportation problems; he lived in Tuscaloosa and did not have reliable transportation. He said that he accepted a ride back to Tuscaloosa with a frequent customer, Allen Bennett. Barnett testified that he returned to Shoney's on January 20, to pick up his last paycheck; he said he spoke with Hunter, but that she did not give him his check. He also said he was told that he would need to contact Steve Brown at the corporate headquarters in Nashville to get his check because "some things were missing." He testified that Hunter did not tell him about the theft or that he was a suspect.
Wilkerson testified that Barnett had given her his letter of resignation and his set of keys on January 14; she said she placed both in the store safe. She also testified that she spoke with Hunter, the store's executive manager; she said that she told Hunter that Barnett had resigned, read the letter of resignation to Hunter over the telephone, and placed the letter back in the safe. She said that she then closed up the store for the night and went home. She testified that she came to work around 3:00 p.m. on Sunday, January 15. According to Wilkerson, she saw a policeman in the office and Hunter "made a gesture to me as [if] I hadn't seen any keys." Wilkerson says she never spoke to the area manager, Don Davis, about the theft or *1022 about Barnett's resignation and that no one asked her any questions about the night before. Wilkerson admitted that she later became aware that Barnett was suspected of the theft, but she said that she never attempted to contact Barnett, never mentioned to Hunter or the police that Barnett had resigned and given her his keys, and never attempted to contact Davis about Barnett's resignation.
Hunter testified that the morning manager, Cathy Anderson, told her that when she arrived at the store on Sunday, January 15, she found the safe open, discovered money and frozen food missing, and found the back door open with a set of manager's keys in the lock. Hunter also testified that she telephoned the area manager, Don Davis, after speaking to Anderson about the theft. She said that Davis instructed her to meet him at the store. She also testified that she had not spoken to Wilkerson or Barnett the night before about his alleged resignation, and she denied that Wilkerson had read a letter of resignation to her over the telephone.
Davis testified that, after speaking with Hunter, he telephoned the regional director, Mike Johnson, and that Johnson instructed him to telephone TPI's in-house counsel, Steve Brown. Davis also testified that he met Hunter and Anderson at the store, and spoke there with both of them about what had occurred. According to Davis, both told him essentially the same story: that Anderson had opened the store to find the safe open, money and frozen food missing, and a set of manager's keys in the lock of the back door. He also said that he was told that the keys in the door were the set that belonged to Barnett. Davis said he asked how Anderson and Hunter knew that the keys in the door were Barnett's; he said he was told by both of them that the keys belonged to Barnett, the kitchen manager, because his set of keys was missing one particular key that operated the cash register, known as the "M101 key." Davis testified that he telephoned the police to report the theft and that he called Brown with this information. He said that Brown instructed him to have a warrant issued for Barnett. Davis said that he authorized Hunter to swear out a warrant for Barnett. He testified that he also spoke with Sylvia Wilkerson when she arrived at work, and he said she told him nothing of Barnett's alleged resignation the evening before.
IV. The Claims Against Hunter
Barnett sued Hunter in her individual capacity, alleging malicious prosecution and abuse of process. The jury returned a general verdict in Barnett's favor. Hunter argues that the trial court should have entered a judgment as a matter of law on both counts because, she says, Barnett failed to establish the requisite elements of those counts.
A. Malicious Prosecution
The elements of malicious prosecution are well settled. As plaintiff, Barnett was required to prove that Hunter initiated judicial proceedings against him, without probable cause and with malice, and that those proceedings terminated in his favor, yet caused him damage. Fina Oil & Chemical Co. v. Hood,
1. Initiation of the Action
Hunter argues that, because Shoney's was the "victim" of the alleged burglary and that she signed the warrant only at the instruction of her superiors, she did not initiate the action against Barnett. She also argues that the State of Alabama was the true initiator of the action against Barnett and that the Bessemer Police Department investigated the crime, thereby preventing her from assuming the role of *1023 initiator. On both arguments, Hunter fails.
Malicious prosecution actions are disfavored in the law for the very reason that "`anyone who has reasonable cause to believe that there is reasonable cause for legal redress and protection has a lawful right to seek such redress without risk of being sued and having to respond in damages for seeking successfully to enforce his rights.'" Alabama Power Co. v. Neighbors,
"[i]f a defendant [in a malicious prosecution action] merely gives the district attorney's office information regarding an alleged crime, leaving the decision to prosecute entirely to the uncontrolled discretion of the district attorney, who thereafter makes his own independent investigation and thereupon takes the information to the grand jury which returns indictments against the suspects, the defendant ... is not regarded as having instigated the criminal proceeding."
Neighbors,
However, giving information to the district attorney's office shields the malicious prosecution defendant only if she "`states all the material facts bearing thereon within [her] knowledge'" and if "`the finding and return of the indictment [is] not ... induced by fraud, subornation of witnesses, suppression of testimony, or other like misconduct on the part of the defendant.'" Id. at 962 and 963 (quoting American Surety Co. v. Pryor,
The facts concerning the events of the night of January 14, 1995, are in sharp dispute. Barnett said that he resigned and turned in his keys that evening. Wilkerson's version of the evening's events is essentially the same as Barnett's; she said that she locked his keys in the safe after he resigned. She also testified that she reported Barnett's resignation to Hunter, that she read the resignation letter to Hunter over the telephone, and that she told Hunter that Barnett's keys were locked in the safe. Hunter denies any knowledge of Barnett's alleged resignation the night before the burglary and she denies that she was told that his keys were locked in the safe. If the police had been told that Barnett's keys had been locked in the safe the night before the burglary, they would likely have focused their attention on someone other than Barnett or at least would have been more cautious in deciding to prosecute Barnett. The conflicting testimony in this case raises the question whether Hunter told the police all the material facts concerning the theft and Barnett's possible involvement. Such a conflict in the evidence raises a question whether Hunter "suppress[ed] ... known material facts." That question of fact is sufficient reason to submit to the jury the question whether Hunter initiated the criminal proceeding. See Hughes,
2. Probable Cause
Hunter argues that the investigation of the burglary by Detective William Byess of the Bessemer Police Department, *1024 the district attorney's determination to issue a warrant, the judge's determination at Barnett's preliminary hearing that probable cause existed, and Barnett's indictment by the grand jury prove that probable cause existed in this case. Thus, she concludes, there was probable cause to arrest and charge Barnett with the burglary and Barnett failed to present substantial evidence that she initiated the proceedings against him without probable cause. We disagree.
Probable cause has been defined as "`such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.'" S.S. Kresge Co. v. Ruby,
As Hunter correctly notes, the general rule is that a grand jury indictment is itself prima facie evidence of the existence of probable cause.[2]National Sec. Fire & Cas. Co. v. Bowen,
B. Abuse of Process
Hunter also argues that Barnett failed to present sufficient evidence of the elements of abuse of process. Therefore, she concludes, that claim should not have been presented to the jury. After considering the elements of the tort of abuse of process, its distinction from the tort of malicious prosecution, and the evidence presented in this case, we agree that the abuse of process claim should not have been submitted to the jury.
The tort of abuse of process has been discussed recently by our supreme court. See C.C. & J., Inc. v. Hagood,
1. Ulterior Purpose
The first element of the tort of abuse of process is the existence of an *1025 ulterior purpose. Abuse of process has been defined as "the malicious perversion of a regularly issued process to accomplish a purpose whereby a result not lawfully or properly obtainable under it is secured." Duncan v. Kent,
Hunter argues that Barnett produced no evidence that she had an ulterior purpose in swearing out the warrant against him. Indeed, from all that appears in the testimony at trial, Hunter's only purpose in pursuing a criminal prosecution against Barnett was the legitimate end of prosecuting someone for the burglary of the restaurant. Barnett produced no evidence to the contrary.
2. Wrongful Use of Process
In an abuse of process case, the plaintiff must also prove that the defendant wrongfully used process to achieve the intended ulterior purpose.
"`[T]here is no liability where the defendant has done nothing other than carry out the process to its authorized conclusion, even though with bad intentions.... [I]t is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.'"
Hagood,
Barnett argues that Hunter's testimony at the preliminary hearing, which he contends was perjured, amounted to wrongful use of process; we disagree. A wrongful use of process is quite simply the use of a lawful process for a purpose for which it was not designed. See Dempsey,
3. Malice
The final element of the tort of abuse of process is malice. When attempting to determine whether a plaintiff has *1026 proven malice in an abuse of process case, the focus is "not [on whether the defendant holds] ill will [against the plaintiff], or [is acting out of] spite, but rather, [whether] the [defendant] employ[ed] the process... for an end not germane thereto, for achievement of a benefit totally extraneous to or of a result not within its legitimate scope[.]" Stuart M. Speiser et al., The American Law of Torts, § 28:34, at 218 (1991). Once the plaintiff establishes an ulterior purpose and a wrongful use of process, "malice is made to appear in the eyes of the law." Clikos v. Long,
Barnett also argues that he produced sufficient evidence of malice. However, despite his argument that "it is certainly logical and reasonable to presume that if [Hunter] ha[d] no probable cause ... [yet she] persist[ed] in having [Barnett] arrested and incarcerated, this must be from malice," malice in an abuse of process case involves not ill will or meanness, but the goal of achieving some result not properly achieved by the process undertaken. See Speiser, supra, § 28:34, at 218; see also Clikos,
4. Summary
Despite Barnett's argument that he produced sufficient evidence of each element of abuse of process and that the trial court properly submitted the claim to the jury, our review of the elements of abuse of process and the evidence presented at trial indicates otherwise. The evidence does not support the trial court's decision to submit this claim to the jury. Without evidence of any element of his abuse of process claim, Barnett's abuse of process claim fails. Hunter was entitled to a judgment as a matter of law on the abuse of process claim.
V. Malice and the Punitive Damages Award
Hunter argues that we should reverse the trial court's denial of the motion for a judgment as a matter of law on the issue of punitive damages. She argues that, before punitive damages may be awarded, malice must be proven by clear and convincing evidence. See Ala.Code 1975, § 6-11-20(a). Hunter contends that the only evidence of malice presented at trial was the inference of malice afforded by the lack of probable cause; this, she argues, is not clear and convincing evidence. We disagree.
Section 6-11-20(a) reads, in part: "Punitive damages may not be awarded in any civil action, ... other than in a tort action where it is proven by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice in regard to the plaintiff." (Emphasis added.) Malice, as used in § 6-11-20(a), is defined as "[t]he intentional doing of a wrongful act without just cause or excuse, either: a. [w]ith an intent to injure the person or the property of another person or entity, or b. [u]nder such circumstances that the law will imply an evil intent." § 6-11-20(b)(2).
Hunter bases her argument that Barnett failed to present clear and convincing evidence of malice on the fact that Barnett testified that he knew of no motive for Hunter's lying about his resignation and on the fact that Hunter herself denied any ill will between her and Barnett. Apparently, Hunter believes that malice is typified by ill will or by a desire for revenge. However, neither of those is essential to prove malice. S.S. Kresge Co. v. Ruby,
In a malicious prosecution action, malice may be inferred from the lack of probable cause. Id. In addition, "inducing an indictment by procuring and giving false evidence before a grand jury shows a malicious motive." National Sec. Fire & *1027 Cas. Co. v. Bowen,
VI. The Claims Against Shoney's
Barnett argues that Shoney's is liable for Hunter's actions.[3] Shoney's first argues that Hunter's actions were not within the line and scope of her duty or in furtherance of Shoney's business and that, therefore, it cannot be vicariously liable for Hunter's actions. Shoney's also argues that it did not ratify Hunter's conduct and that it therefore cannot be held directly liable.
"For [Shoney's] to become liable for [the] alleged intentional torts of its agent, [Barnett] must offer evidence that the agent's wrongful acts were in the line and scope of [her] employment; or that the acts were in furtherance of the business of [Shoney's]; or that [Shoney's] participated in, authorized, or ratified the wrongful acts."
Joyner v. AAA Cooper Transp.,
A. Vicarious Liability
To hold Shoney's vicariously liable for Hunter's alleged malicious prosecution Barnett must prove that what Hunter did was in the line and scope of her employment or was in furtherance of Shoney's business. Certainly, as manager, Hunter was required to respond to a theft by going to the store and reporting the theft to her superiors. However, the true test of whether an employee is acting in the line and scope of her employment is not simply whether the employee was at work when the incident occurred.
A determination that an employee is acting within the line and scope of her employment is generally a question of fact to be decided by a jury. Chamlee v. Johnson-Rast & Hays,
"[W]here an employee abandons [her] employer's business for personal reasons the employment is suspended.... [T]he conduct of the employee ... must not be impelled by motives that are wholly personal, or to gratify [her] own feelings or resentment...."
Id.
Because the facts in this case are disputed, whether Hunter was acting in the line *1028 and scope of her employment must be left to the jury. The malicious prosecution claim against Hunter is the only claim to be submitted to the jury on a retrial of this case. Therefore, Shoney's can be vicariously liable for Hunter's alleged malicious prosecution of Barnett only if her conduct was "not ... impelled by motives that are wholly personal, or to gratify [her] own feelings or resentment...." Id.
B. Direct Liability
Shoney's may be held liable for its own conduct if it participated in, authorized, or ratified Hunter's alleged wrongful conduct. Potts,
VII. Shoney's Liability for Punitive Damages Under Ala.Code 1975, § 6-11-27
Alabama law provides that a principal is liable for punitive damages awarded as a result of acts of its agent that amount to intentional wrongful conduct or conduct involving malice only under certain circumstances. Ala.Code 1975, § 6-11-27(a). The provision reads as follows:
"A principal, employer, or other master shall not be liable for punitive damages for intentional wrongful conduct or conduct involving malice based upon acts or omissions of an agent, employee, or servant of said principal, employer, or master unless the principal, employer, or master either: (i) knew or should have known of the unfitness of the agent, employee, or servant, and employed him or continued to employ him, or used his services without proper instruction with a disregard of the rights or safety of others; or (ii) authorized the wrongful conduct; or (iii) ratified the wrongful conduct; or unless the acts of the agent, servant or employee were calculated to or did benefit the principal, employer or other master, except where the plaintiff knowingly participated with the agent, servant, or employee to commit fraud or wrongful conduct with full knowledge of the import of his act."
§ 6-11-27.
Barnett does not address the application of § 6-11-27 in his brief. He argues instead that Hunter's knowledge of his resignation and the knowledge that his keys had been placed in the safe must be imputed to Shoney's and that, therefore, Shoney's is liable for punitive damages. We disagree. The statute requires that Barnett prove that Shoney's either (1) knew or should have known of Hunter's incompetence but continued to employ her without proper instruction; (2) authorized the wrongful act; or (3) ratified the wrongful act; or that (4) Hunter's conduct was calculated to or did benefit Shoney's in some way. Barnett did not allege that Hunter was incompetent; he did not present evidence that Shoney's ratified or authorized Hunter's conduct; and he did not present evidence that Hunter's actions benefited Shoney's. Therefore, we conclude that, under § 6-11-27, Barnett is not entitled to recover punitive damages from Shoney's if on retrial it is determined that Hunter engaged in malicious prosecution.
VIII. The Exclusion of Barnett's Plea of Guilt to Sexual Abuse in the Second Degree
Shoney's and Hunter argue that the trial court erred by excluding evidence of Barnett's conviction of sexual misconduct *1029 in the second degree. They argue that the conviction is admissible under Rule 609(a)(2), Ala. R. Evid., to impeach Barnett's credibility and that it is also admissible to mitigate Barnett's claim for damages for mental anguish. Barnett argues that the conviction was properly excluded because, he says, it is not admissible under Rule 609(a)(2) or on the issue of damages. A trial court has wide discretion in determining the relevancy of evidence and whether to exclude or admit evidence. Floyd v. Macon County Comm'n,
A. Rule 609
Rule 609 states:
"(a) General Rule. For the purpose of attacking the credibility of a witness,
". . . .
"(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment."
Rule 609(a)(2) is modeled after the same rule in the Federal Rules of Evidence, and cases construing the federal rules are to be considered authority for this state's courts when construing the Alabama rules. Rule 102, Ala. R. Evid., Advisory Committee's Notes. Under the plain language of the rule, only a conviction involving dishonesty or a false statement is admissible for impeachment purposes. However, the "plain" language of the rule has been the subject of much debate in the federal circuits. Many federal circuits have held that the language of the rule is to be given a restricted meaning, thereby limiting the convictions admissible under the rule. See, e.g., United States v. Mejia-Alarcon,
The federal cases that have narrowly interpreted "dishonesty" and "false statement" have pointed out the differences in the more liberal definition of those terms, which include a "breach of trust," a "`lack of fairness,'" and a "`disposition to ... betray,'" and the more restrictive definitions including "deceitful behavior" and a "`disposition to lie, cheat, or defraud.'" Brackeen,
"`By the phrase "dishonesty and false statement" the Conference means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification, bearing on the accused's propensity to testify truthfully.'"
*1030 Id. Therefore, the Brackeen court concluded that the drafters of the federal rule intended Rule 609(a)(2) "to apply only to those crimes that factually or by definition entail some element of misrepresentation or deceit, and not to `"those crimes which, bad though they are, do not carry with them a tinge of falsification."'" Id. at 831 (quoting United States v. Glenn,
The crime for which Barnett was convicted was sexual abuse in the second degree. See Ala.Code 1975, § 13A-6-67. That statute reads:
"(a) A person commits the crime of sexual abuse in the second degree if:
". . . .
"(2) He, being 19 years old or older, subjects another person to sexual contact who is less than 16 years old, but more than 12 years old."
§ 13A-6-67. None of the elements of the crime involve dishonesty or false statement. Therefore, the trial court did not err by excluding evidence of Barnett's conviction under Rule 609.
B. Relevance as to Damages
Shoney's and Hunter also argue that evidence of Barnett's conviction should have been admitted to mitigate the damages Barnett claimed for mental anguish suffered as a result of his incarceration.[5] Their argument appears to be that Barnett's conviction would tend to prove that Barnett could not have suffered mental anguish over his incarceration for 32 days on the burglary charge because he was later incarcerated for one day on the sexual abuse charge. However, Barnett was not arrested on the charge of sexual abuse until February 1996, nine months after his arrest and incarceration on the burglary charge. The trial court apparently did not see the relevance of the conviction in mitigating damages; it pointed out that it had found no Alabama cases allowing a later conviction to be used to mitigate damages. We also fail to see the relevance of a later incarceration or conviction; it does not tend to show that Barnett did not suffer mental anguish from being placed in jail before for a burglary he did not commit. See Rule 401, Ala. R. Evid.[6] Therefore, we affirm the trial court's exclusion of Barnett's conviction.
Pretermission of Other Issues
Shoney's, Hunter, and Barnett raise other issues that, in light of our decision to reverse the judgment and remand the case under King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc.,
Conclusion
Because Barnett failed to present sufficient evidence of the elements of the tort of abuse of process, and because the jury returned a general verdict, we must reverse the judgment of the trial court and remand this cause for a new trial on the malicious prosecution claim. See King Mines Resort, Inc.,
OPINION OF DECEMBER 11, 1998, WITHDRAWN; OPINION SUBSTITUTED; APPLICATIONS OVERRULED; RULE 39(k) MOTIONS DENIED; REVERSED AND REMANDED.
ROBERTSON, P.J., and YATES, J., concur specially.
*1031 THOMPSON, J., concurs in the result.
MONROE, J., dissents.
YATES, Judge, concurring specially.
I concur in the denial of the rehearing applications. I write specially to note that I agree with that portion of Judge Monroe's dissent wherein he states that Judge Crawley's opinion should not be read to bar in all cases a recovery of punitive damages from a principal based on the acts of his agent. A principal may be liable for punitive damages if (1) he either knew or should have known of the agent's incompetence but continued to employ the agent without proper instruction; (2) he authorized the agent's wrongful act; (3) he ratified the wrongful act; or (4) the agent's conduct was calculated to, or did, benefit the principal in some way. § 6-11-27, Ala. Code 1975; Potts v. BE & K Constr. Co.,
ROBERTSON, P.J., concurs.
MONROE, J., dissenting.
Because I would affirm the judgment of the trial court, I must respectfully dissent. I believe that in this case the abuse-of-process claim is encompassed within the malicious-prosecution claim, so that sending the case to the jury on the issue of abuse of process was merely superfluous. See, C.C. & J., Inc. v. Hagood,
Furthermore, I would like to make it clear that even though a majority of this court has determined that the claim alleging abuse of process should not have gone to the jury, Judge Crawley's opinion does not stand for the proposition that a principal cannot be held liable for punitive damages based on the acts of its agent. A plaintiff may recover punitive damages from the principal based on the acts of the agent provided the plaintiff proves that the principal either knew or should have known of the agent's incompetence but continued to employ the agent without proper instruction; that the principal authorized the wrongful act or ratified the wrongful act; or that the agent's conduct was intended to, or did, benefit the principal. We found only that Barnett failed to show any of those requirements as regards the abuse-of-process claim, and, therefore, he could not recover from Shoney's on that claim.
NOTES
Notes
[1] TPI, Inc., was bought out by Shoney's, Inc., in September 1996. For ease of reading, we will refer to TPI, Inc., and Shoney's, Inc., collectively as "Shoney's."
[2] Neither an acquittal nor a decision to nolpros the case creates an inference that probable cause was lacking. Neighbors,
[3] Because we have determined that Hunter was entitled to a judgment as a matter of law on the abuse of process claim and that claim will not be submitted to a jury on the retrial of this case, Shoney's can be liable, if at all, only for Hunter's alleged malicious prosecution of Barnett.
[4] However, the Alabama Court of Criminal Appeals has stated that it will use a broader interpretation of the term "dishonesty," under the new rules of evidence, apparently to include evidence of the convictions previously allowed for impeachment purposes under the former "moral turpitude" rule. Huffman v. State,
[5] Shoney's and Barnett also argue that evidence of the conviction was admissible to counter Barnett's claim of slander; however, Barnett withdrew that claim at trial.
[6] Rule 401 reads: "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence."