Carl Hambrick appeals from a summary judgment entered by the Jefferson Circuit Court in favor of Spire Alabama, Inc. (“Spire”), on, among other claims, his claims of malicious prosecution, defamation, and trespass. We affirm in part, reverse in part, and remand.
The facts, inasmuch as they were revealed by the parties’ evidentiary submissions, are as follows. On July 3, 2019, Hambrick, who was looking after a neighbors property during the neighbors hospitalization, noticed an odor that he believed to have been caused by a natural-gas leak on the neighbors property. Hambrick telephoned Spire to request an inspection of the gas-supply lines to the neighbors property. Spire then sent one of its employees, Reggie Smith, to investigate the reported condition.
Smith arrived at Hambricks neighbors property at about 5:00 p.m., where he met Hambrick. Hambrick identified himself and indicated where he had perceived the odor. After an inspection, Smith discovered that the odor, rather than resulting from a gas leak, was instead the result of a decaying animal carcass under the neighbors front porch; however, in doing so, Smith noticed that the gas meter on the neighbors property was old, and he undertook to replace the meter. After Smith had begun his work to replace the gas meter on the neighbors property, Hambrick informed Smith that he was going back to his home and advised Smith to notify him if he was needed further.
At around 8:45 p.m., Hambricks wife noticed motor-vehicle lights on Hambricks neighbors property. Because there had been recent thefts and criminal activity in the area, Hambrick, carrying a pistol, investigated the presence of the vehicle on the neighbors property. Upon approaching the vehicle, Hambrick discerned that Smith had returned to the neighbors property, and Hambrick then stored his pistol in the back pocket of his pants. However, Hambrick was visibly upset upon learning that Smith was locking his neighbors gas meter, and he demanded that Smiths supervisor be summoned to explain why Smith had returned to lock the gas meter. As Smith finished locking the gas meter in Hambricks presence, Smiths supervisor and police officers arrived. Hambrick was then arrested on a charge of tampering in the first degree (see generally Ala. Code 1975, § 13A-7-25(a)(2)). At a probable-cause hearing, that charge of criminal tampering was terminated by a nolle prosequi.
On January 2, 2020, Hambrick commenced a civil action against Spire, asserting claims of malicious prosecution, defamation, trespass, and negligence and seeking to hold Spire liable, at least in part, under the doctrine of respondeat superior. After having answered Hambricks complaint, Spire filed a motion seeking a summary judgment, to which motion Hambrick filed a response; Spire then moved to strike Hambricks response and filed a reply thereto. After holding a hearing via videoconferencing technology, the trial court entered a summary judgment in favor of Spire on all of Hambricks claims on August 17, 2021. Hambrick timely appealed; his appeal was transferred to this court pursuant to Ala. Code 1975, § 12-2-7(6).
Standard of Review
An appellate court reviews a summary judgment de novo. Potter v. First Real Estate Co., 844 So. 2d 540, 545 (Ala. 2002). “Summary judgment is appropriate only when there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law.” Hooper v. Columbus Regl Healthcare Sys., Inc., 956 So. 2d 1135, 1139 (Ala. 2006) (citing Rule 56(c)(3), Ala. R. Civ. P.).
“Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989). ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw. Jefferson County Commn v. ECO Preservation Servs., L.L.C., [788 So. 2d 121, 127 (Ala. 2000)] (citing Renfro v. Georgia Power Co., 604 So. 2d 408 (Ala. 1992)).”
Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So. 2d 369, 372 (Ala. 2000). “[O]nly the evidence before the trial court at the time it ruled upon the motion for a summary judgment” can be considered in assessing whether a genuine issue of material fact exists. Smith v. Fisher, 143 So. 3d 110, 124 (Ala. 2013).
Analysis
On appeal, Hambrick raises several issues regarding the summary judgment in favor of Spire. Specifically, Hambrick argues that the trial court erred in entering a summary judgment on the malicious-prosecution claim, the defamation claim, and the trespass claim. Because Hambrick has not argued that the trial court erred in entering a summary judgment on his negligence claim, we affirm the judgment as to that claim. See Ramson v. Brittin, 62 So. 3d 1035, 1037 n.2 (Ala. Civ. App. 2010).
Malicious Prosecution
On appeal, Hambrick first asserts that the summary judgment on the malicious-prosecution claim was erroneous because, he says, there is substantial evidence demonstrating that there is at least one genuine issue of material fact regarding that claim to be resolved by the finder of fact. We disagree.
“The elements of malicious prosecution are: (1) a judicial proceeding initiated by the defendant, (2) the lack of probable cause, (3) malice, (4) termination in favor of the plaintiff, and (5) damage.” Cutts v. American United Life Ins. Co., 505 So. 2d 1211, 1214 (Ala. 1987). Although Hambrick argues that there is substantial evidence to support the malicious-prosecution claim, Spire contends that Hambrick cannot meet the first four listed elements of such a claim.
Hambrick relies on the fact that the criminal-tampering charge against him was initially resolved in his favor based upon an ostensible lack of probable cause. However, after Hambrick commenced his action against Spire, a grand jury indicted Hambrick on a charge of criminal tampering in the first degree, essentially reviving the original criminal charge. We note that, although “[t]he entry of a nolle prosequi in a criminal case is a termination of the particular prosecution for that charge,” Williams v. State, 494 So. 2d 819, 821 (Ala. Crim. App. 1986) (citing Walker v. State, 61 Ala. 30, 32 (1878)), the initial termination in that manner of the criminal-tampering charge against Hambrick “does not bar further proceedings on that charge at a later time.” Williams, 494 So. 2d at 821 (citing Walker, supra, and State v. Blackwell, 9 Ala. 79, 82 (1846)) (emphasis added).
“Jeopardy only attaches when a jury has been empanelled and sworn and the indictment has been read. Scott v. State, 110 Ala. 48, 20 So. 468 (1896); Elmore v. State, 445 So. 2d 943 (Ala. Crim. App. 1983), cert. denied, 445 So. 2d 943 (Ala. 1984) (defendant was not placed twice in jeopardy when his case was nolle prossed in the district court [followed by] indictment with trial thereon in the circuit court). When a case is nolle prossed before jeopardy attaches, further prosecution may be had for that same offense. Elmore, supra; Whitaker v. State, 21 Ala. App. 114, 105 So. 433 (1925); Boswell v. State, 290 Ala. 349, 276 So. 2d 592 (1973).”
Williams, 494 So. 2d at 821.
“[I]n malicious prosecution cases the finding of an indictment by a grand jury, against a defendant in a prior judicial proceeding, constitutes prima facie evidence of the existence of probable cause.” Whitlow v. Brunos, Inc., 567 So. 2d 1235, 1237 (Ala. 1990). In his response to the summary-judgment motion filed by Spire in the trial court, Hambrick did not challenge the applicability of that principle, nor did he try to rebut its force by invoking the exception that the prima facie showing of probable cause arising from such an indictment can be “ ‘overcome by a showing that the indictment “was induced by fraud, subornation, suppression of testimony, or other like misconduct of the party seeking the indictment.” ’ ” Whitlow, 567 So. 2d at 1238 (quoting Lumpkin v. Cofield, 536 So. 2d 62, 64 (Ala. 1988)).
1
On appeal, for the first time, Hambrick suggests that Spire withheld evidence from the prosecutor and/or the grand jury; however, it is well settled that a party cannot obtain reversal of a judgment on appeal based upon an argument not first made in the trial court. Vesta Fire Ins. Corp. v. Milam & Co. Constr., 901 So. 2d 84, 104 (Ala. 2004) (noting that “an appellate court will not reverse a summary judgment on the basis of a law or legal principle not first argued to the trial court by the nonmoving party”). Therefore, the summary judgment in favor of Spire on the malicious-prosecution claim was proper because Hambrick, as a matter of law, cannot prove at least one essential element of a malicious-prosecution claim.
2
Defamation
Hambrick next argues that the summary judgment as to his defamation claim was erroneous because, he says, Spire failed to make a prima facie showing that were was no genuine issue of material fact regarding that claim. We again disagree.
The elements of a defamation claim are the following: “1) a false and defamatory statement concerning the plaintiff; 2) an unprivileged communication of that statement to a third party; 3) fault amounting at least to negligence on the part of the defendant; and 4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication of the statement.” McCaig v. Talladega Publg Co., 544 So. 2d 875, 877 (Ala. 1989) (citing Restatement (Second) of Torts § 558 (Am. L. Inst. 1977)). “There are two types of defamation: libel, which involves the use of print media to publish the defamatory comment, and slander, which involves the oral expression of a defamatory comment.” Blevins v. W.F. Barnes Corp., 768 So. 2d 386, 390 (Ala. Civ. App. 1999) (citing Michael L. Roberts & Gregory S. Cusimano, Alabama Tort Law § 24.0.1 (1996)). Because the statement at issue was an oral statement by an agent of Spire to police officers, Hambricks claim against Spire sounds in slander and not libel. “In an action for libel or slander, the plaintiff must prove, unless it shall be admitted by the defendant, the facts showing that the alleged defamatory matter was published or spoken of the plaintiff.” Ala. Code 1975, § 6-5-182 (emphasis added). In Foley v. State Farm Fire & Casualty Insurance Co., 491 So. 2d 934 (Ala. 1986), the alleged defamatory statement made by the defendant was: “ ‘[W]e found a mysterious liquid in your sons bedroom. The insurance company does not pay for anyone burning their property. That is called arson.’ ” 491 So. 2d at 937. The defendant in that case argued that the alleged defamatory statement was not spoken “of the plaintiff.” The trial court agreed with the defendant, and our supreme court affirmed the trial courts judgment in that case.
Hambrick argues that Smith made a false statement to the police officers. Although Hambrick reported to the officers that Smith had left Hambricks neighbors property and then returned later, Smith reported to the officers that he had never left the neighbors property. Hambrick contends that Smiths statement was not only false, but also defamatory concerning Hambrick. Even assuming, however, that Smiths statement was false, the statement was not a statement concerning Hambrick himself. Similar to the alleged defamatory statement in Foley, Smiths oral statement in no way names or describes Hambrick. Therefore, Hambrick cannot satisfy the first element of the defamation claim, and the summary judgment in favor of Spire as to that claim is correct.
Trespass
Hambrick lastly argues that the trial court erred in entering its summary judgment as to the trespass claim because, he says, there is a genuine issue of material fact as to whether there was consent for Smith, as Spires agent, to enter Hambricks property. We agree.
To be liable for trespass, the transgressor must have intentionally entered the land in the possession of another. Born v. Exxon Corp., 388 So. 2d 933, 934 (Ala. 1980). It is also well-settled law that the owners consent is a full defense to an alleged trespass. Sims v. Alford, 218 Ala. 216, 216, 118 So. 395, 396 (1928). However, even a person who enters on property with the owners consent will become a trespasser “from the time when he goes beyond the purpose for which he was permitted to enter.” Snedecor v. Pope, 143 Ala. 275, 287, 39 So. 318, 323 (1905).
Hambrick alleges that Smith entered Hambricks property and peered through the windows of the recreational vehicles Hambrick had for sale on his property. Hambrick also testified that he had told Smith that “if [Smith] needed anything to give [him and his wife] a holler.” Although Smith testified that he had had Hambricks consent to enter Hambricks property, Hambrick argues that the consent extended only to the point when, he alleges, Smith left the neighbors property earlier that day. A fair-minded person in the exercise of impartial judgment could reasonably infer from the facts of this case that Smith, by allegedly returning to Hambricks property after having left Hambricks neighbors property, exceeded the scope of Hambricks consent, yielding a genuine issue as to a material fact with respect to the trespass claim. Therefore, the summary judgment as to the trespass claim was not proper.
Conclusion
Based on the foregoing, we conclude that the trial court erred in entering the summary judgment in favor of Spire as to the trespass claim; we reverse as to that claim. The summary judgment is otherwise affirmed. The case is remanded for further proceedings.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
FOOTNOTES
1
. Hambrick instead suggested that an abuse-of-process claim might lie under the facts as presented; however, he did not take steps to amend his complaint to state such a claim.
2
. We express no opinion regarding any potential claims that Hambrick might be able to assert if the proceeding initiated as a result of the grand jurys indictment also terminates in favor of Hambrick.
HANSON, Judge.
Thompson, P.J., and Moore, J., concur.
Edwards, J., concurs in the result, without opinion.
Fridy, J., recuses himself.