Alabama Supreme Court 1981296.
On Applications for Rehearing
The opinion of December 11, 1998, is withdrawn and the following is substituted therefor.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.,
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).
American Nat'l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1366-67 (Ala.1993). "`[O]nly where there is a complete absence of proof on a material issue or where there are no controverted issues of fact on which reasonable people could differ'" should a judgment as a matter of law be granted. Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162 (Ala.1988) (quoting Deaton, Inc. v. Burroughs, 456 So.2d 771 (Ala. 1984)).
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.
King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So.2d 714, 716 (Ala.1987) (citation omitted).
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.
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
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, 621 So.2d 253, 256 (Ala.1993). Hunter concedes that the proceedings terminated in Barnett's favor and that Barnett incurred damage. She argues that Barnett failed, however, to prove two of the elements of malicious prosecution: that she instituted the action against him and that she did not have probable cause to do so. We disagree.
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
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, 402 So.2d 958, 962 (Ala.1981) (quoting Birwood Paper Co. v. Damsky, 285 Ala. 127, 229 So.2d 514 (1969)). Hunter is correct in arguing that
Neighbors, 402 So.2d at 962.
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, 217 Ala. 244, 247, 115 So. 176, 179 (1927) (emphasis added in Neighbors)). Likewise, giving information concerning a possible crime to the police is not initiating an action "`unless such information was a misrepresentation of the facts in order to induce action, or there was a suppression of known material facts.'" Id. at 964 (quoting Dismukes v. Trivers Clothing Co., 221 Ala. 29, 32, 127 So. 188, 190 (1930)) (emphasis added). In short, if one "corruptly or oppressively brings about the indictment or prosecution of another maliciously and without probable cause ... by [method of] fraud, perjury, subornation, or by the willful suppression of known material facts, the intentional thwarting of a fair investigation," id. at 965, she is the initiator of the judicial proceeding against the malicious prosecution plaintiff.
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, 624 So.2d at 1366-67.
2. Probable Cause
Hunter argues that the investigation of the burglary by Detective William Byess of the Bessemer Police Department,
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, 348 So.2d 484, 488 (Ala.1977) (quoting Birwood Paper Co. v. Damsky, 285 Ala. 127, 134, 229 So.2d 514, 521 (1969)). "The question in an action for malicious prosecution arising from a criminal charge is whether the [malicious prosecution] defendant, at the time ... she instituted the proceeding, had probable cause to believe that the accused was guilty." Ruby, 348 So.2d at 488. There-fore, the question is whether Hunter had cause to believe, based upon what she saw at the store after the burglary and what she knew from any conversations she might have had the night before, that Barnett was guilty of burglarizing the store.
As Hunter correctly notes, the general rule is that a grand jury indictment is itself prima facie evidence of the existence of probable cause.
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, 711 So.2d 947 (Ala.1998). The elements are (1) the existence of an ulterior purpose; (2) the wrongful use of process; and (3) malice. Hagood, 711 So.2d at 950. The tort of abuse of process differs from the tort of malicious prosecution; the tort of abuse of process is concerned with "the wrongful use of process after it has been issued," while the tort of malicious prosecution is concerned with "the wrongful issuance of process." Id.
1. Ulterior Purpose
The first element of the tort of abuse of process is the existence of an
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.
Hagood, 711 So.2d at 951 (quoting W. Page Keeton et al., Prosser and Keeton on Torts, § 121, at 898 (5th ed.1984)). As the supreme court explained, the plaintiff in an abuse of process case must prove that the defendant "somehow acted outside the boundaries of legitimate procedure after the [initiation of the proceeding]." Id. The supreme court discussed the interplay of ulterior motive and wrongful use of process: "`[T]he [ulterior purpose] must culminate in an actual abuse of the process by perverting it to a use to obtain a result which the process was not intended by law to effect....'" Dempsey v. Denman, 442 So.2d 63, 65 (Ala.1983) (quoting 72 C.J.S. Process § 120, at 1190-91 (1951)).
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, 442 So.2d at 65. Barnett was required to prove that Hunter did something other that "`carry out the process to its authorized conclusion.'" Hagood, 711 So.2d at 951 (citation omitted). As discussed above, prosecuting someone for a crime without probable cause is malicious prosecution, not abuse of process. See Prosser, supra, § 121, at 857. It is the use of the process for something other that its intended result, for example, to extort payment for a debt, that results in liability for abuse of process. Id.
The final element of the tort of abuse of process is malice. When attempting to determine whether a plaintiff has
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, 231 Ala. at 428, 165 So. at 397.
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, 348 So.2d 484, 489 (Ala.1977). "Whatever is done willfully and purposely, whether the motive be to injure the accused, to gain some advantage to the prosecutor, or through mere wantonness or carelessness, if at the same time wrong and unlawful within the knowledge of the actor, is within legal contemplation maliciously done." Ruby, 348 So.2d at 489.
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 &
VI. The Claims Against Shoney's
Barnett argues that Shoney's is liable for Hunter's actions.
Joyner v. AAA Cooper Transp., 477 So.2d 364, 365 (Ala.1985) (citations omitted); see also Potts v. BE & K Constr. Co., 604 So.2d 398, 400 (Ala.1992). As our supreme court stated in Potts, an employer's vicarious liability results when the tortious act of the employee was done for the employer's benefit by virtue of being performed in the line and scope of the employee's employment or performed for the furtherance of the employer's business. Potts, 604 So.2d at 400. The employer is directly liable when it either authorizes or participates in the employee's tortious conduct or when, after learning of the employee's conduct, it ratifies that conduct. Id.
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, 579 So.2d 580, 583 (Ala.1990). The major focus of such a determination is whether the actions of the employee are "in promotion of the business of the employment." Chamlee, 579 So.2d at 582.
Because the facts in this case are disputed, whether Hunter was acting in the line
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, 604 So.2d at 400. To prove that Shoney's "either expressly adopted ... or implicitly approved of [Hunter's conduct]," Barnett must show that Shoney's (1) had actual knowledge of Hunter's alleged tortious conduct; (2) knew or should have known that this conduct constituted a tort; and (3) armed with this knowledge, failed to take adequate steps to remedy the situation. Id. Nothing in the evidence presented at trial indicates that any of Hunter's superiors knew she was concealing material facts about Barnett's alleged resignation from them. Without actual knowledge of Hunter's deception, Shoney's could not have ratified her conduct. See Moman v. Gregerson's Foods, Inc., 570 So.2d 1215, 1216 (Ala. 1990).
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:
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
A. Rule 609
Rule 609 states:
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, 995 F.2d 982 (10th Cir.), cert. denied, 510 U.S. 927, 114 S.Ct. 334, 126 L.Ed.2d 279 (1993); Cree v. Hatcher, 969 F.2d 34 (3d Cir.1992); United States v. Brackeen, 969 F.2d 827 (9th Cir.1992); and United States v. Smith, 551 F.2d 348 (D.C.Cir.1976). See also United States v. Farmer, 923 F.2d 1557 (11th Cir.1991) (holding that theft convictions are usually not admissible under Rule 609).
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, 969 F.2d at 829 (citation omitted). In construing the term "dishonesty" narrowly, the Brackeen court, like many of its counterparts, relied upon the legislative history of Rule 609(a)(2), Fed.R.Evid. Id. at 830. The House Conference Committee Report, quoted by the Brackeen court, stated:
The crime for which Barnett was convicted was sexual abuse in the second degree. See Ala.Code 1975, § 13A-6-67. That statute reads:
§ 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.
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., 518 So.2d 714, 716 (Ala.1987), we need not address. Therefore, we will not address the allegations of juror misconduct, the excessiveness of the damages award, or the propriety of the remittitur.
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., 518 So.2d at 716.
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.
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., 604 So.2d 398, 400 (Ala.1992). However, under the specific facts of this case, I must conclude that Barnett failed to prove any of these requirements.
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, 711 So.2d 947, 951 (Ala.1998) ("any question about the initiation of a judicial proceeding is encompassed in a malicious prosecution claim, not an abuse-of-process claim"). That being the case, if there was any error in sending the abuse-of-process claim to the jury, it was harmless error and does not require reversal. Rule 45, Ala. R.App. P.
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.