Browning-Ferris Industries, Inc. v. Lieck

• Decision Date: 08 September 1994
• Docket Number: No. D-3616,BROWNING-FERRIS,D-3616
• Citation: 881 S.W.2d 288
• Parties: INDUSTRIES, INC. and James Meszaros, Petitioners, v. Kenneth LIECK and Nydia Hinojosa Lieck, Respondents.
• Court: Texas Supreme Court

Page 288

881 S.W.2d 288

BROWNING-FERRIS INDUSTRIES, INC. and James Meszaros, Petitioners, v. Kenneth LIECK and Nydia Hinojosa Lieck, Respondents.

No. D-3616.

Supreme Court of Texas.

Argued Oct. 13, 1993.

Decided June 2, 1994.

Rehearing Overruled Sept. 8, 1994.

Roger Townsend, Houston, William Powers, Jr., Austin, Lisa Powell, Charles C. Murray, McAllen, for petitioners.

Neil E. Norquest, McAllen, Norton A. Colvin, Jr., Brownsville, Gordon L. Briscoe, Harlingen, for respondents.

HECHT, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and HIGHTOWER, CORNYN, GAMMAGE, ENOCH, and SPECTOR, Justices, join.

We address three questions in this malicious prosecution action: first, whether the trial court properly instructed the jury concerning the causal connection a plaintiff must prove between defendant's conduct and plaintiff's criminal prosecution to establish liability; second, whether a defendant can ever be liable for making statements to law enforcement officials which he did not actually know were false; and third, whether damages for loss of consortium can be awarded for harm to a spouse that involves no physical injury? For reasons that follow, we answer the first and third questions "no", and the second question "yes". The district court rendered judgment against defendants, which a sharply divided court of appeals, 845 S.W.2d 926, en banc, affirmed with some modifications. 845 S.W.2d at 950. We reverse and remand the case for further proceedings.

I

A detailed account of the evidence in this case has been made by the court of appeals in assessing the sufficiency of the evidence to support the judgment. As we have not been asked to review the method or standard used in that assessment, we need not recapitulate the entire record. We focus instead on the circumstances directly relevant to the legal issues raised here.

When James Meszaros, an employee of Browning-Ferris Industries, Inc., heard that the Texas Rangers were investigating the purchasing practices of the City of Brownsville, he became concerned that they might question his attempt to make a financial contribution to the reelection campaign of one of the members of the City Commission at a time when BFI was bidding on the City's garbage collection business. Meszaros asked another BFI employee and former Ranger, Dan North, to contact his friends among the Rangers and try to determine the scope of the investigation. North did so, and arranged for Meszaros to meet with two officials involved in the investigation.

At that meeting, Meszaros brought up the subject of the bidding on the City's garbage collection business. BFI had submitted its bid on its standard form contract, which was similar to the ones it, and its competitors, used with other Texas cities. Garbage Management Services also bid on the City's business. The terms of the bids were summarized by Brownsville's City Manager, Kenneth Lieck, distributed to members of the City Commission and to the press, and discussed at several City Commission meetings which were open to the public. After the Commission voted to award the business to GMS, Lieck gave GMS' representative, Robert Torres, a slightly modified form of the contract BFI had submitted, and that proposed contract became the basis of the final negotiations between the City and GMS. Meszaros complained to the investigators that the contract Lieck had given Torres was confidential information. North showed the two investigators a statute from which they concluded, after reading it, that Lieck had violated the law.

At the request of various other law enforcement officials, Meszaros and an attorney for BFI provided additional statements and affidavits. Two City Commissioners also told officials that Lieck had given Torres confidential information. Meszaros, by his own admission at trial, never told officials that the terms of BFI's contract had been made public during the City Commission's consideration of the bids, even though he knew that was true, nor did he tell officials that he believed Lieck had not committed a crime, even though that was his belief. From these admissions it may thus be fairly said that Meszaros withheld from law enforcement officials information which they might well have considered important in deciding whether to prosecute Lieck.

An assistant district attorney reviewed the matter and presented it to the grand jury, which indicted Lieck for giving Torres confidential information, specifically, the contract BFI had submitted to the Brownsville City Commission. The indictment alleged a misdemeanor, although it did not state what statute had been violated. The indictment was dismissed about two months later because the grand jury had been improperly constituted. A second grand jury refused to indict Lieck, and the prosecution was then terminated.

Lieck and his wife Nydia sued BFI and Meszaros for malicious prosecution. The jury rendered a verdict favorable to the Liecks on all issues and found actual damages of $706,500 for Lieck ¹ and $250,000 for his wife for loss of consortium, and punitive damages against BFI of $1,500,000. The trial court rendered judgment awarding Lieck his actual damages against BFI and Meszaros, jointly and severally, and his punitive damages against BFI, but rendered judgment non obstante veredicto that Nydia Lieck take nothing. The court of appeals reversed in part, awarding Nydia the consortium damages found by the jury, then modified the punitive damages, apportioning them between Nydia and Kenneth, and otherwise affirmed the judgment. 845 S.W.2d 926.

II

Before we turn to petitioners' complaints, it is necessary to recognize the important societal interests in tension in the tort of malicious criminal prosecution. A century ago this Court wrote:

It is important that every citizen should be protected against malicious prosecutions, and it is equally important that crimes should be punished, in order that the law-abiding citizen may be secure in life, liberty, and property. To make the citizen liable to be mulcted in damages for an honest discharge of duty is to give immunity to crime, and to weaken the restraining power of the criminal law, thereby endangering the security of law-abiding people.

Sebastian v. Cheney, 86 Tex. 497, 25 S.W. 691, 694 (1894). The Restatement (Second) of Torts describes these competing interests similarly:

The first is the interest of society in the efficient enforcement of the criminal law, which requires that private persons who aid in the enforcement of the law should be given an effective protection against the prejudice that is likely to arise from the termination of the prosecution in favor of the accused. The second is the interest that the individual citizen has in being protected against unjustifiable and oppressive litigation of criminal charges, which not only involve pecuniary loss but also distress and loss of reputation.

RESTATEMENT (SECOND) OF TORTS ch. 29, intro. note, at 405 (1977) [hereinafter "the RESTATEMENT"]. These interests are balanced by carefully defining the elements of an action for malicious prosecution, and the balance is maintained by strictly adhering to these elements.

It is frequently said that actions for malicious prosecution are not favored in the law. E.g., Sullivan v. O'Brien, 85 S.W.2d 1106, 1112 (Tex.Civ.App.--San Antonio 1935, writ ref'd); Diamond Shamrock Corp. v. Ortiz, 753 S.W.2d 238, 241 (Tex.App.--Corpus Christi 1988, writ denied); Parker v. Dallas Hunting & Fishing Club, 463 S.W.2d 496, 499 (Tex.Civ.App.--Dallas 1971, no writ); Montgomery Ward & Co. v. Kirkland, 225 S.W.2d 906, 909 (Tex.Civ.App.--San Antonio 1949, writ ref'd n.r.e.); Deaton v. Montgomery Ward & Co., 159 S.W.2d 969, 972 (Tex.Civ.App.--Beaumont 1942, writ ref'd w.o.m.); Reed v. Lindley, 240 S.W. 348, 351 (Tex.Civ.App.--Ft. Worth 1922, no writ); 54 C.J.S. Malicious Prosecution § 4, at 524-25 (1987); 52 AM.JUR.2 D Malicious Prosecution § 5, at 188 (1970). This aphorism is far too vague to serve as an analytical tool. As with any other cause of action, if the elements of malicious prosecution are proved, liability is established. What is distinctive about malicious prosecution is that there is little room for error in applying the law. Even a small departure from the exact prerequisites for liability may threaten the delicate balance between protecting against wrongful prosecution and encouraging reporting of criminal conduct. It is in this context that we consider the issues raised.

III

A

Petitioners complain that the trial court erred in refusing to require the jury to find whether Meszaros' actions actually caused the indictment of Lieck. The trial court asked instead:

Did James R. Meszaros, acting without probable cause and with malice, cause, or aid or cooperate in causing, a criminal prosecution to be commenced against Kenneth J. Lieck?

(Emphasis added.) The trial court did not define "cause, or aid or cooperate in causing" in the jury charge. Giving these words their plain meaning, the jury could have concluded that it was enough for Meszaros to have aided or cooperated with law enforcement officials in bringing about Lieck's prosecution. Petitioners argue that this does not satisfy the requirements for liability.

The court of appeals rejected petitioners' argument in a single sentence: "The courts of this State have repeatedly stated that the causation issue submitted in this case is the proper question for malicious prosecution cases." 845 S.W.2d at 943. The court cited four cases in support of this statement. In Davis v. City of San Antonio, 752 S.W.2d 518 (Tex.1988), this Court held that there was evidence to support a finding that defendant caused, aided or contributed to a criminal prosecution, but did not consider--because it was not questioned by the parties--whether such a finding was sufficient for liability. In Bass v. Metzger, 569 S.W.2d 917, 924 (Tex.Civ.App.--Corpus Christi 1978,...