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SouthTrust Bank v. Jones3/18/2005
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"Malice is an inference of fact and may be inferred from the lack of probable cause or from mere wantonness or carelessness. Personal ill will or a desire for revenge is not essential to the existence of malice."
Delchamps, Inc. v. Larry, 613 So. 2d at 1239 (citation omitted). We have already determined that there was no probable cause for the Bank's lawsuit against Greene. We have also decided that there is a disputed question of material fact as to whether the Bank -- based on its own conduct or the conduct of its lawyers -- was negligent in commencing that lawsuit. Even if that question of fact were resolved by finding the Bank negligent, an inference of malice could not be drawn from that finding of negligence alone because the good faith of the Bank or the lawyers might be a defense. See Delchamps, Inc. v. Bryant, 738 So. 2d 824 (Ala. 1999); Wal-Mart Stores, Inc. v. Goodman, supra. Nevertheless, "going forward carelessly or recklessly with previously commenced proceedings after receiving notice of a problem may be inconsistent with good faith." Delchamps, Inc. v. Bryant, 738 So. 2d at 834 (emphasis added).
In Delchamps, Inc. v. Bryant, Delchamps had a customer arrested as a result of the mistaken identity of a shoplifter. The store continued to proceed with the criminal charges against the customer despite "notice of [the customer's] potentially unassailable alibi." 738 So. 2d at 827. After the criminal case was nol prossed, the customer sued the store, alleging malicious prosecution; a jury rendered a verdict in favor of the customer, and the trial court entered a judgment on that verdict. The store appealed to the Alabama Supreme Court from the denial of its postjudgment motion for a JML. Our supreme court held that the evidence was sufficient, when viewed in the light most favorable to the customer, for a jury to find the store liable for malicious prosecution.
In explaining that the evidence was sufficient for a jury to have found that Delchamps was merely negligent in commencing the prosecution, but that it was malicious in continuing the prosecution, the court relied on two early Alabama cases, Glidden Co. v. Laney, 234 Ala. 475, 175 So. 296 (1937)("Glidden I"), and Laney v. Glidden Co., 239 Ala. 396, 194 So. 849 (1940)("Glidden II"). The court summarized those cases as follows:
"Glidden I dealt with whether commencing a proceeding against a party sued by mistake was actionable, while Glidden II dealt with whether going forward with the proceeding against that party after learning of the mistake was actionable. In Glidden I, an attorney brought an action against the wrong party under circumstances where he had no basis to know that there were two people with similar names. His failure to appreciate that fact before commencing the action was found to be a 'natural mistake' insufficient to support an action based on [malicious prosecution]. ...
"The same parties returned to this Court in Glidden II after the trial court sustained demurrers to a complaint charging malicious prosecution in the continuation of the action after the plaintiff learned of the mistake. In Glidden II, this Court reversed the ruling of the trial court, holding that the allegation that an action was negligently brought, but wrongfully, intentionally, maliciously, and without probable cause maintained after the plaintiff learned of the mistake, stated a claim for malicious prosecution. On the other hand, when a case of mistaken identity is discovered and the error is corrected by striking the improperly sued party, there is no inference of malice. Dixon v. Nix, 55 Ala. App. 611, 318 So. 2d 308 (Ala. Civ. App. 1975)."
Delchamps, Inc. v. Bryant, 738 So. 2d a
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