                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                      FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                               U.S.
                       ________________________ ELEVENTH CIRCUIT
                                                            MAY 11, 2011
                              No. 10-15807                   JOHN LEY
                          Non-Argument Calendar                CLERK
                        ________________________

                     D.C. Docket No. 2:09-cv-01697-JEO

ISSAC DAVID,
an individual,

                                                           Plaintiff - Appellant,

                                   versus

SAURIN SHAH, M.D.,
VALERIE SHAH,

                                                       Defendants - Appellees.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                        ________________________

                               (May 11, 2011)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:

     Issac David appeals the summary judgment in favor of Saurin and Valerie
Shah and against David’s complaint of malicious prosecution. The district court

ruled that the Shahs had probable cause to sue David individually. We affirm.

      The Shahs filed in an Alabama court a complaint against David and his

construction company, The David Group, Inc. The Shahs alleged that David and

his company had breached their contract to construct a new home for the Shahs

and had concealed “severe structural defects” in the house. The parties submitted

the dispute to binding arbitration. The arbitrator found that the Shahs “failed to

prove specifically any defects in the home other than some minor damage” and

were “not entitled to recision of the contract,” but the arbitrator awarded to the

Shahs “damages against the David Group, Inc.” The arbitrator also found that

“Isaac David [was] not personally liable” to the Shahs.

      After David filed in the district court a complaint that alleged that he had

been prosecuted maliciously by the Shahs, the Shahs answered with a denial that

they had acted tortiously. The Shahs moved for summary judgment on the ground

that they had probable cause to sue David because he had signed various

documents in his own name, and the Shahs attached to their motion a homebuyer

agreement and six addenda that David had signed. The homebuyer agreement and

Addendum E did not mention The David Group. The agreement, which was a

standard form provided by Remax Realty, used the terms “Homebuilder” and

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“Builder” interchangeably and, although the signature block provided for “The

Builder” to sign in his representative capacity, David signed the agreement in his

individual capacity. On Addendum E, a Plan Review/Change Order, David signed

his own name as “Homebuilder.” The Shahs also attached to their motion addenda

that David could have, but failed to, sign in a representative capacity. Addendum

B, the Limited New Home Warranty, listed The David Group, Inc., as the seller

and contained a signature block for the “Builder” to sign in his representative

capacity, but David signed the addendum in his own name. Two addenda, the

Closing/Pool/Punch List and the Final Punch List, listed “The David Group, Inc.”

as the seller, but David signed the addenda in his own name. Although two other

addenda, the pool cost breakdown and a schedule of allowances, were captioned

“The David Group Inc,” David also signed those addenda in his own name.

      David responded that the Shahs and their attorney lacked a reasonable basis

to sue David individually. David argued that the agreement and addenda should

be interpreted according to the rules governing negotiable instruments, which

provide that an agent will not be held liable on an instrument that the parties know

the agent signed on behalf of his principal. Applying that rule, David argued that

he could not be held liable individually because the Shahs knew “throughout the

relationship that the entity identified as the represented part[y] and as the only

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party liable was The David Group, Inc.,” and David submitted numerous addenda

and other documents that stated he was a representative of The David Group and

that company was the “seller” and “builder” of the Shahs’ home.

      The district court entered summary judgment in favor of the Shahs. The

district court rejected David’s argument that the contract was akin to a negotiable

instrument. The district court found that the agreements that David signed in his

own name, coupled with evidence that the Shahs had made checks payable to

David, provided probable cause for the Shahs to sue David individually. The

district court also found that “nothing in the record counter[ed] the allegations . . .

that David . . . possessed information concerning the condition of the home and

property which was not disclosed.” The district court ruled that neither “[t]he

presence of other, contrary evidence” nor the determination of the state court that

David was not liable personally “alter[ed] the fact that there is no evidence” that

the Shahs “lack[ed] . . . probable cause to support the claims for misrepresentation,

fraud and suppression against David in his individual capacity.”

      We review a summary judgment de novo and view the evidence in the light

most favorable to the nonmoving party. Moore ex rel. Moore v. Reese, No.

10–10148, slip op. at 21 (11th Cir. Apr. 07, 2011). Summary judgment should be

entered when there is no genuine issue of material fact and the moving party is

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entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

      Under Alabama law, which the parties agree applies, “to prevail on a

malicious prosecution claim, a plaintiff . . . must show: (1) a prior judicial

proceeding was instituted by the defendant . . .; (2) the defendant acted without

probable cause in the prior proceeding; (3) the defendant acted with malice in

instituting the prior proceeding; (4) the prior proceeding ended in favor of the

plaintiff; and (5) the plaintiff was damaged.” U.S. Steel, LLC, v. Tieco, Inc., 261

F.3d 1275, 1290 (11th Cir. 2001). Probable cause existed for the defendant to

initiate the prior judicial proceeding if he had “‘a reasonable ground for suspicion,

supported by circumstances sufficiently strong in themselves to warrant a cautious

man in the belief that the person accused is guilty of the offense charged.’” Id. at

1291 (quoting Simpson v. Life Ins. Co. of Ga., 614 So. 2d 994, 996 (Ala. 1993)).

“[I]f there are undisputed facts in the record establishing that the defendant had

probable cause to pursue the [litigation], the plaintiff cannot recover for malicious

prosecution.” Id.

      The district court correctly entered judgment in favor of the Shahs. To

determine the capacity in which a party signs an agreement, Alabama courts

“look[] to the consistency between the body of the contract and the signature

block.” Marriott Int’l, Inc. v. deCelle, 722 So. 2d 760, 763 (Ala. 1998). Although

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David signed some agreements in his individual capacity and others in a

representative capacity, “the fact [David] signed [some] [documents] in his own

name could in itself create personal liability on his part.” B & M Homes, Inc. v.

Hogan, 376 So. 2d 667, 676 (Ala. 1979). The Shahs had probable cause to sue

David individually.

      We AFFIRM the summary judgment against David.




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