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Attorney Managing Estate Sued For Malicious Prosecution

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Non-lawyers often think of legal proceedings as a sort of chess game played with legal theories. Lawyers, unfortunately, sometimes fall into the same pattern of thinking. Pleadings can be filed and arguments made not on the basis of the evidence, but in pursuit of tactical advantage or improved bargaining position.

S. Felton Mitchell, Jr., a lawyer and CPA in Mobile, Alabama, should probably have known better than to file the pleadings he did. He had been appointed administrator of the estate of William M. Cagle, Jr., who had died in 1997. Mr. Cagle and two other men had been a developer and manager of shopping centers, and his estate included a partnership interest in that business. It also included over $400,000 of debt to the partnership.

After Mr. Cagle’s debt had been satisfied (by withholding his share of distributions for a period of time), Mr. Mitchell filed an objection to the claim by the partnership. He also filed a lawsuit against the business, arguing that a partnership amendment signed by Mr. Cagle before his death had been procured by fraudulent means.

Mr. Mitchell filed this action, as he later admitted, without any actual knowledge of or information about Mr. Cagle’s mental condition at the time, or of any promises or misrepresentations that might have been made. In other words, he apparently filed the action just to preserve the estate’s options until he could obtain information about the events, or to improve the estate’s negotiating position.

The problem with taking such a step is that it can be construed as malicious prosecution—a lawsuit filed for harassment or other purposes rather than to recover on a legitimate claim—and that’s just what happened in this case. A jury awarded the partnership $51,918.40 in damages (the amount of their costs and attorney’s fees), plus an additional $103,836.80 in punitive damages—the latter intended to punish Mr. Mitchell for filing the unsupported lawsuit.

The Alabama Supreme Court agreed that Mr. Mitchell should be responsible to pay the entire judgment. There is a strong legal bias against the validity of malicious prosecution suits, based on the notion that legitimate claimants should not be scared away from the courthouse by concern about the possibility of being counter-sued for malicious prosecution. In this case, however, the jury found that Mr. Mitchell knew that his claims were baseless for months before the trial, and the state’s high court saw no reason to let him off the hook. Mitchell v. Folmar & Associates, LLP, January 10, 2003.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.