Opinion

Kmart, Inc. v. Asaro

  • 751 So. 2d 513
  • 1999 Ala. Civ. App. LEXIS 270
  • 1999 WL 254685
Court
Court of Civil Appeals of Alabama
Filed
Apr 30, 1999
Status
Published
Author
Crawley
On the bench
Beatty, Crawley, Robertson, Yates, Monroe, Thompson
Cited by
2 cases
Authority
More cited than 0.7%

explaining that the elements of malicious prosecution are "`(1) a judicial proceeding initiated by the defendant [in the later malicious-prosecution action], (2) the lack of probable cause, (3) malice, (4) termination in favor of the plaintiff [in the later malicious-prosecution action], and (5) damage'" (quoting Cutts, 505 So.2d at 1214)

How later courts described this case

  • explaining that the elements of malicious prosecution are "`(1) a judicial proceeding initiated by the defendant [in the later malicious-prosecution action], (2) the lack of probable cause, (3) malice, (4) termination in favor of the plaintiff [in the later malicious-prosecution action], and (5) damage'" (quoting Cutts, 505 So.2d at 1214)

Written by the judges who cited it.

The opinion

CRAWLEY, Judge,

dissenting.

Cutts v. American United Life Ins. Co., 505 So.2d 1211 (Ala.1987), holds that all claims “arising out of facts within the ambit of malicious prosecution but couched in other terms, especially general allegations of negligence, willfulness, or wantonness,” must be treated as claims for malicious prosecution. 505 So.2d at 1214 . I believe the allegations underlying Asaro’s fraud claim arise out of facts within the ambit of malicious prosecution. Therefore, I would hold that Cutts forecloses Asaro’s fraud claim in addition to her false-imprisonment and abuse-of-process claims.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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