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.