McKissick v. S. O . A. Inc.

Genuine issues of material fact remained as to probable cause and malice in the plaintiff's suit alleging malicious prosecution and malicious arrest, arising after he was arrested for allegedly ordering electrical materials on the first defendant's account, which were not delivered to the first defendant's jobsite.

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Timothy McKissick filed suit alleging malicious prosecution and malicious arrest against S. O. A, Inc. “SOA”, and its president, Steven Aydelott. The trial court granted summary judgment to SOA and Aydelott on McKissick’s claims. McKissick appeals, arguing that there was no probable cause to support his prosecution for theft by deception. Because we find that genuine issues of fact remain as to the issues of probable cause and malice, we reverse the grant of summary judgment. “On appeal from the grant of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law.”1 So viewed, the record shows that in the late summer of 2003, McKissick was employed as a project estimator with Allgood Electrical Company, Inc. “Allgood”. Allgood was hired as an electrical subcontractor by SOA, which was the general contractor for the construction of the Perry High School Multi-Purpose Facility the “Project”. During the fall of that year, Allgood left the Project due to a dispute over payment with SOA and Aydelott. McKissick averred that he worked out an agreement with Aydelott to complete the electrical work on the Project for which he would be paid $1,000 weekly plus the cost of materials. Because McKissick was not a licensed electrician, he arranged for his father-in-law, Albert Wayne Davis, who was a licensed electrician, to visit the site each week to inspect McKissick’s work. McKissick further averred that Aydelott knew about the arrangement with Davis and did not object to it.

Eleven weeks after he began working on the Project, McKissick was terminated by Aydelott. On June 2, 2004, McKissick demanded payment for work performed in the amount of $9,373.94 and filed a lawsuit against appellees in the Magistrate Court of Houston County in June of 2004.

McKissick v. S. O . A. Inc.

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