Browning-Ferris Industries, Inc. v. Zavaleta

• Decision Date: 10 October 1991
• Docket Number: BROWNING-FERRIS,No. 13-90-215-CV,13-90-215-CV
• Citation: 827 S.W.2d 336
• Parties: INDUSTRIES, INC. and Jim Meszaros, Appellants, v. Tony ZAVALETA, Appellee.
• Court: Texas Court of Appeals

Page 336

827 S.W.2d 336

BROWNING-FERRIS INDUSTRIES, INC. and Jim Meszaros, Appellants, v. Tony ZAVALETA, Appellee.

No. 13-90-215-CV.

Court of Appeals of Texas,

Corpus Christi.

Oct. 10, 1991.

On Motion for Rehearing Feb. 13, 1992.

Rehearing Overruled March 5, 1992.

Lisa D. Powell, Gary L. Gurwitz, Charles C. Murray, Atlas & Hall, McAllen, Professor William Powers, The University of Texas, School of Law, Austin, Roger Townsend, Fulbright & Jaworski, Houston, for appellants.

Jeffrey D. Roerig, Black, Hamilton, Roerig & Yanez, Brownsville, Neil Norquest, Keith C. Livesay, Law Office of Neil Norquest, McAllen, for appellee.

Before the Court En Banc.

OPINION

SEERDEN, Justice.

This is an appeal from a judgment based upon a jury verdict finding appellants guilty of malicious prosecution and awarding appellee actual and exemplary damages. Appellants bring twenty-eight points of error. We reverse and remand to the trial court.

By points of error one, two, and three, appellant complains that there is either no evidence, no positive, clear and satisfactory evidence, or insufficient evidence to support the jury's findings in special question number one that Meszaros, acting without probable cause and with malice, caused, aided or cooperated in causing a criminal prosecution of Zavaleta. Issues four, five, six, seven, eight, and nine deal with the trial court's failure to instruct concerning the relationship of full and fair disclosure to probable cause and the evidence relating to probable cause. Because these points are interrelated and dispositive of the case, we will discuss them together.

Malicious prosecution actions, because of their inherent characteristics, have never been favored in law. Sebastian v. Cheney, 86 Tex. 497, 25 S.W. 691, 694 (1894); ¹ Diamond Shamrock Corp. v. Ortiz, 753 S.W.2d 238, 241 (Tex.App.--Corpus Christi 1988, writ denied).

In order to maintain a malicious prosecution action, a plaintiff must prove: 1) the commencement of a criminal prosecution against the plaintiff; 2) which has been caused by the defendant or through the defendant's aid or cooperation; 3) which terminated in the plaintiff's favor; 4) that the plaintiff was innocent; 5) that there was no probable cause for the proceedings; 6) that it was done with malice; and 7) that it damaged the plaintiff. Euresti v. Valdez, 769 S.W.2d 575, 578 (Tex.App.--Corpus Christi 1989, no writ); Ellis v. Sinton Savs. Ass'n, 455 S.W.2d 834, 836 (Tex.Civ.App.--Corpus Christi 1970, writ ref'd n.r.e.). The gravamen of a malicious prosecution action is improperly making a party the subject of legal process to his detriment. Martin v. Trevino, 578 S.W.2d 763, 766 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.); Daniels v. Conrad, 331 S.W.2d 411, 415 (Tex.Civ.App.--Dallas 1959, writ ref'd n.r.e.).

The undisputed evidence in this case shows that on January 30, 1987, appellee was indicted by the Cameron County grand jury. The indictment charged that Zavaleta, who was an elected member of the Brownsville City Commission, had unlawfully solicited Browning-Ferris Industries (B.F.I.) and their manager, James Meszaros, to deposit money in the International Bank of Commerce (I.B.C.) to confer a benefit on Hector Silva, an officer of I.B.C. and a person in whose welfare Zavaleta was interested. The offense charged is a class A misdemeanor under Tex.Penal Code Ann. § 36.08(e) and (g).

After being indicted, appellee was arrested, booked, arraigned and released on bond. The indictment was subsequently dismissed pursuant to a motion filed by a special prosecutor appointed to handle the case. The motion requested that the case be dismissed because the evidence was insufficient. The motion contains the following handwritten statement of the Special Prosecutor:

"After interviewing all the witnesses in the above styled and numbered cause, Counsel for the State is of the opinion that the evidence would be insufficient to prove beyond a reasonable doubt the allegations in the indictment and that the interest of justice would best be served by dismissing this prosecution."

After the criminal case was dismissed, this suit for malicious prosecution was instituted by appellee, Dr. Tony Zavaleta.

The remainder of our discussion of the evidence will be done within the context of appellants' first three points of error. In considering "no evidence," "insufficient evidence" or "against the great weight and preponderance of the evidence" points of error, we follow the well-established tests set forth in Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1989); Dyson v. Olin Corp., 692 S.W.2d 456, 458 (Tex.1985); Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401-02 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Allied Fin. Co. v. Garza, 626 S.W.2d 120, 125 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.); and Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960).

Question one, which the jury answered affirmatively, included definitions of both probable cause and malice. "Probable cause" was defined as "the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the actor, that the person charged was guilty of the conduct for which he was prosecuted." "Malice" was defined as "intentional wrongful acts done willfully and purposely with ill will or evil motive to the injury of another or done in reckless disregard of the rights of another and indifferent as to whether the other person is injured or not as to amount to wanton and willful action knowingly and unreasonably done." The appropriateness of the definition of probable cause will be discussed under points four through nine.

In discussing point one, the no evidence point, we consider only the evidence and inferences tending to support the finding of the trier of facts and disregard all evidence and inferences to the contrary. Responsive Terminal Sys., Inc. v. Boy Scouts of America, 774 S.W.2d 666, 668 (Tex.1989).

In this context, there was evidence that at all material times, appellee was an instructor at Texas Southmost College and an elected member of the Brownsville City Commission. In 1984, the Commission, in large measure through the efforts of Zavaleta, began exploring and negotiating proposals to "privatize" the commercial garbage and refuse collection service of the city. Among the companies that proved interested in bidding on the service was appellant, Browning-Ferris Industries (B.F.I.). During the contract negotiating process, B.F.I. was represented primarily by appellant James Meszaros; however, there were other B.F.I. officials and employees engaged in the process. Dr. Zavaleta testified that the B.F.I. people would stop by his office, invite him to lunch, had offered him a hunting trip and told him he would not "have any financial worries during any subsequent election campaigns" if he supported their proposal in the waste collection contract vote. The evidence indicated that B.F.I. was the company likely to get the contract.

The events giving rise to the criminal indictment occurred on September 10, 1985, shortly before a meeting of the City Commission at which, in addition to other matters, the waste collection contract was to be discussed. Meszaros and two other B.F.I. employees, Alec Young and Juan Gonzales, were standing outside the Commission chambers. Standing nearby was Fred Rusteberg, President of the International Bank of Commerce and Hector Silva, the bank's Executive Vice-President. Dr. Zavaleta came up and introduced the two groups to each other. The substance of this introduction and the ensuing conversation formed the basis of the indictment and this lawsuit.

At a later meeting, the City Commission instructed the city manager to negotiate a final contract with B.F.I.; however, Bob Torres, a representative of a new company, GMS, who had not previously been involved in any of the negotiations, appeared at the meeting, stated it was locally owned, could save the City some money and requested that the commission re-open the negotiations. Instead of awarding the contract to B.F.I., the commission voted to re-open the process. Zavaleta concurred in the vote to re-open, which he testified would "cost (B.F.I.) several millions dollars." He further testified that after this vote, Meszaros made eye contact with him and shook and wagged his finger at him. On May 6, 1986, Dr. Zavaleta and the City Commission accepted the GMS proposal.

The evidence further shows that the Brownsville City Commission, at some time prior to the indictment of appellee, requested the Texas Rangers and other law enforcement agencies to institute an independent investigation of the city's operations. This request was completely independent of the negotiations for the contract to collect refuse and was prompted by television and newspaper accounts alleging improper activities within the government of the city of Brownsville.

The Rangers, in conjunction with the Cameron County District and County attorney's office, conducted what apparently was a broad investigation of city offices and officials. Because of his friendship and association with many of those being investigated, and to avoid the appearance of impropriety, the elected District and County attorney removed himself from the investigation and turned supervision of same over to his chief assistant, Mervin M. Mosbacker, Jr. The primary enforcement officers connected with the investigation were the District Attorney's investigator Joe V. Garza and Texas Ranger Rudy Rodriguez.

In December 1986, James R. Meszaros, the B.F.I. employee who directed the bid for the Brownsville waste disposal contract, became aware of the Texas Rangers' investigation. Dan North, a former Texas Ranger and head of B.F.I. security, contacted Ranger Rodriguez. Rodriguez and Detective Garza went to Houston and obtained a written statement from...