Constable v. Lambert
MEMORANDUM OPINION AND ORDER As outlined and for the reasons discussed within, the court GRANTS IN PART and DENIES IN PART the Plaintiff's motion to strike and GRANTS IN PART and DENIES IN PART the Defendants motion for summary judgment. This matter will proceed regarding the Plaintiff's malicious prosecution claim. Signed by Chief Judge Karon O Bowdre on 3/14/16. (SAC )
2016 Mar-14 AM 10:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ARTHUR WILLIS CONSTABLE,
DEORTHA JO LAMBERT,
MEMORANDUM OPINION AND ORDER
This matter comes before the court on the Defendant’s “Motion for Summary Judgment,”
(doc. 16), and “Plaintiff’s Motion to Strike” (doc. 18). Plaintiff Arthur Constable sued Deortha
Jo Lambert asserting claims for malicious prosecution and abuse of process. The court held a
hearing on Defendant’s motion for summary judgment and Plaintiff’s motion to strike on
Thursday, March 10, 2016. For the reasons stated on the record of the hearing and summarized
below, the court FINDS as follows.
As to the Plaintiff’s motion to strike, (doc. 18), the court GRANTS the motion by
agreement as to Item 1 regarding the lease agreement. The court DENIES the remainder of the
As to the Defendant’s motion for summary judgment (Doc. 16), the court GRANTS IN
PART and DENIES IN PART. Defendant’s motion for summary judgment as to Count I of
Plaintiff’s complaint for malicious prosecution is due to be DENIED. “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.” McConico v. Patterson, 2016 WL 103987 at *2 (Ala. Civ. App. January 8,
2016)(citing Eidson v. Olin Corp., 527 So. 2d 1283, 1284 (Ala. 1998)); Alabama Power Co. v.
Neighbors, 402 So. 2d 958 (Ala. 1981). The court finds genuine issues of material fact exist
regarding whether Defendant initiated the criminal proceeding against the Plaintiff; whether
Defendant initiated the judicial proceeding without probable cause; and whether Defendant
initiated the judicial proceeding with malice.
Defendant’s motion for summary as to Count II of Plaintiff’s complaint for abuse of
process is due to be GRANTED. “The elements of the tort of abuse of process are 1) the
existence of an ulterior purpose, 2) a wrongful use of process, and 3) malice.” C.C. & J. Inc. v.
Hagood, 711 So. 2d. 947, 950 (Ala. 1998) (citing Triple J Cattle, Inc. v. Chambers, 621 So. 2d
1221, 1225 (Ala. 1993)). The court finds that Plaintiff failed to establish the second element of
the cause of action because Plaintiff fails to present evidence that Defendant wrongfully used
process after the initiation of the proceeding. See Shoney’s, Inc. v. Barnett, 773 So. 2d 1015,
1025 (Ala. Civ. App. 1999) (“[Plaintiff] was required to prove that [Defendant] did something
other tha[n] ‘carry out the process to its authorized conclusion.”). “[P]rosecuting someone for a
crime without probable cause is malicious prosecution, not abuse of process.” Id.
Accordingly, for the reasons discussed above, the court GRANTS IN PART and DENIES
IN PART the Plaintiff’s motion to strike and GRANTS IN PART and DENIES IN PART the
Defendant’s motion for summary judgement. This matter will proceed regarding the Plaintiff’s
malicious prosecution claim.
DONE and ORDERED this 14th day of March, 2016.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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