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Parker v. City of Midwest City3/23/1993
973), we held that to show malice in a malicious prosecution claim, the defendant must have acted because of ill-will or hatred, or willfully in a wanton manner. Malice is a "condition of mind which prompts a person to do a wrongful act willfully. . . ." Black's Law Dictionary (5th Ed.).
To the contrary, if a party fully discloses all facts within his or her knowledge to a competent attorney and acts honestly and in good faith upon the advice given by the attorney, absence of malice is established. Ellison v. Gray, 702 P.2d 360, 366 (Okla. 1985); Moore v. York, 371 P.2d 469, 472 (Okla. 1962). If the actions are made without malice or without ill-will there is necessarily a finding of good faith. In those cases dealing with disclosure to a prosecutor we have stated that acts in good faith after a full and fair disclosure establish absence of malice. Id.; see also Powell v. LeForce, 848 P.2d 17 (Okla. 1992).
Parker cannot recover damages from the City on the theory of malicious prosecution. If Officer Strong's actions were in bad faith he was acting outside his scope of employment, and thus the City is not liable. 51 O.S. 1991 § 153 . If, however, Strong was acting in good faith and hence within the scope of employment, Parker cannot prove his case because he cannot establish the necessary element of malice. Page v. Rose; Young v. First State Bank, both supra. If this seems strange we can only say that the Legislature, after this Court abrogated common-law sovereign immunity in Vanderpool v. State, 672 P.2d 1153, 1156 (Okla. 1983), readopted sovereign immunity statutorily, "waiving such immunity only to the extent and in the manner provided in this act." 51 O.S. 1991 § 152.1 . It is a simple reading of the Act itself that compels our conclusion.
We do not address the basis for the order of the District Court granting summary judgment, because it is unnecessary. The order of a trial court will be affirmed on appeal if there is sound legal reason for doing so, whether or not that reason coincides with the rationale employed below. In re Bartlett, 680 P.2d 369, 374 (Okla. 1984). The Court of Appeals' opinion is vacated and the trial court's summary judgment for the Defendant City of Midwest City is affirmed.
HODGES, C.J., LAVENDER, V.C.J., and SIMMS and HARGRAVE, JJ., concur.
OPALA, J., concurs in judgment.
KAUGER, J., concurs in part; dissents in part.
ALMA WILSON and WATT, JJ., dissent.
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