Compton v. Calabria, 05-90-00988-CV

• Citation: 811 S.W.2d 945
• Decision Date: 13 May 1991
• Docket Number: No. 05-90-00988-CV,05-90-00988-CV
• Parties: Deborah COMPTON, Appellant, v. Meriam CALABRIA and J.L. Huffines, Appellees.
• Court: Texas Court of Appeals

Page 945

811 S.W.2d 945

Deborah COMPTON, Appellant, v. Meriam CALABRIA and J.L. Huffines, Appellees.

No. 05-90-00988-CV.

Court of Appeals of Texas,

Dallas.

May 13, 1991.

Rehearing Denied June 17, 1991.

Gary D. Jackson and Gloria A. Jackson, Jackson, Jackson, Loving & Kindred, Dallas, for appellant.

Christopher Stokes, Newman & Davenport, P.C., David C. Kent and Mary Ann Joerres, Hughes & Luce, Dallas, for appellees.

Before ROWE, LAGARDE and OVARD, JJ.

OPINION

ROWE, Justice.

This appeal arises from a take nothing partial summary judgment granted in favor of Meriam Calabria and J.L. Huffines with respect to Deborah Compton's malicious prosecution and civil conspiracy claims against them. Asserting four points of error, Compton exhorts us to correct trial court error by reversing the judgment. We do so and remand the cause for trial on the merits.

The following events establish the relevant procedural history of this case: In June 1987, Compton sued Calabria for breach of a condominium remodeling/renovation contract. Calabria counterclaimed for breach of contract, negligence, fraud, and deceptive trade practices. Also in June 1987, the Dallas County Grand Jury indicted Compton for theft arising out of her conduct in performing the contract. The criminal case was tried in January 1989, at which time Compton was acquitted.

Immediately after her acquittal, Compton amended her petition in the civil suit against Calabria to add counts for malicious prosecution and civil conspiracy. She also added Huffines as an additional party defendant on those counts. Calabria and Huffines each filed a motion for summary judgment based, inter alia, on the fact that each had probable cause to complain to the district attorney. The trial court denied these motions. Subsequently, Calabria and Huffines jointly filed a renewed motion for summary judgment and supplemented their summary judgment evidence already on file. Compton then filed a cross-motion for summary judgment. The trial court granted Calabria and Huffines's joint motion for summary judgment and granted Compton's motion to sever, thereby making the malicious prosecution and conspiracy aspects of the underlying lawsuit ripe for appeal.

The following facts are relevant to this appeal: In August 1986, Compton entered into a $187,000 contract with Calabria to extensively remodel and renovate Calabria's condominium. Huffines, a friend and advisor of Calabria, executed the written contract on Calabria's behalf. The contract called for Calabria to pay Compton the $187,000 on a draw schedule based upon the completion of certain percentages of the work.

By the beginning of November 1986, a dispute had arisen between Calabria and Compton as to how much work Compton had completed and how much money she had spent in connection with the remodeling project. This dispute resulted in the payment schedule being rearranged by agreement so that Compton would have to complete four specific items of work in the condominium in order to receive the next payment, the "third draw payment." The parties disagree, however, as to whether they orally agreed that Compton would bring Calabria invoices for items that she had already ordered and paid for with respect to the project. Calabria and Huffines claim that the presentment of the receipts was a condition precedent to the $14,400 third draw payment. Compton denies this, urging that the third draw payment was only conditioned upon her completing the four items listed in the amended contract.

Calabria had become suspicious of Compton's representations that work had been done and goods and appliances purchased because she could not verify that the work had in fact been done and that the goods and appliances had in fact been ordered and paid for. On December 1, 1986, Calabria, Huffines, and Compton met to consider Compton's progress on the project and Compton's demand for more money. According to Calabria and Huffines, in order to induce payment from Calabria, Compton presented them with two invoices from Bergeron's TV, Appliance & Video store, which purported to represent that Compton had paid for several items that were intended to be installed in Calabria's condominium. Both invoices were later proved to be forged. Calabria contends that, based upon these invoices, she issued Compton a check for $14,400. Compton, on the other hand, admits that she forged the Bergeron invoices, but she denies that she gave them to Calabria on December 1, 1986, in order to induce Calabria to pay her the third draw payment. Compton claims that she gave Calabria the invoices on December 31, well after she had received the third draw, in response to a subsequent request from Calabria for them. Compton maintains that the $14,400 check was delivered as a progress payment due under the amended agreement, not for the items listed on the Bergeron invoices.

According to Calabria and Huffines, after the $14,400 payment was made, they continued to question whether Compton was actually doing work and paying subcontractors. While making inquires, Huffines discovered for the first time that the Bergeron invoices in fact were false in that many of the items listed had not been paid for or even ordered. About the same time, Huffines demanded that Compton turn over an accounting of her expenditures, but Compton refused to do so. Fearing that Compton was defrauding her, Calabria discussed the matter with her attorney, J. Harris Morgan. Her attorney believed that the matter should be directed to the attention of the Dallas County District Attorney's office.

On February 16, 1987, attorney Morgan accompanied Calabria and Huffines to the District Attorney's office. At the District Attorney's office, they spoke with Gerald Mann, an assistant district attorney responsible for criminal case intake. Calabria and Huffines told Mann about the problems, delays, and disputes relating to Compton's performance and lack of performance, including their belief that Compton had submitted false invoices to Calabria. More specifically, Calabria stated, "I fully disclosed to Assistant D.A. Gerald Mann all of the facts and circumstances relating to the forged Bergeron invoices and additionally how I had been induced to pay Compton $14,400 based upon her tendering to me those forged invoices." Mann requested that Calabria and Huffines obtain an affidavit from Bergeron evidencing the false invoices. Pursuant to that request, on February 23, 1987, attorney Morgan met with Robert Bergeron, Jr. and obtained an affidavit. Morgan forwarded Bergeron's affidavit to Mann. Robert Bergeron, Jr. swore to the fact that the Bergeron invoices presented by Compton to Calabria were indeed false, that Compton had not paid for many of the items presented by the invoices, and that Compton had later asked him to lie about these facts, which he refused to do.

Importantly, whereas Calabria had told Mann that Compton had presented the fraudulent invoices on December 1, 1986, Bergeron's affidavit stated that Compton did not pick up the blank invoices until about December 31, 1986. This conclusion was based upon company records of the use-date of surrounding invoices. Some months after receiving the Bergeron affidavit, Mann accepted the case and prepared a handwritten case summary dated May 11, 1987. The case summary was prepared to be submitted to the grand jury for its consideration. In reviewing the Bergeron affidavit, Mann noted that although Calabria and Huffines had indicated that Compton delivered the invoices on December 1, 1986, Bergeron believed that the invoices were picked up by Compton about December 31, 1986. Mann noted the variance in the dates by marking on the typewritten copy of the affidavit attached to the case summary, "Affiant is confused on dates." Mann explained that he noted the variance in dates in order to call the grand jury's attention to it.

Mann determined that there was probable cause to initiate a criminal proceeding against Compton and recommended in mid-May 1987 that the matter be submitted to the grand jury for indictment on the charge of felony theft relating to the invoices. Mann believed that "Ms. Compton was guilty of a crime, a more serious crime than what we filed." He was concerned, however, that it would be too difficult, time-consuming, and expensive to ferret out all of Compton's wrongdoings. Mann stated:

There is just too much. The grand jury would never be able to--without weeks and weeks and months of analysis and study on the part of an accounting firm, which we couldn't employ and I am sure Ms. Calabria didn't feel like they could either. So I felt like that this was a case that the grand jury could easily understand. There wasn't any question in my mind that there had been a violation of law and the theft of $7,000 worth of property.

Thus, it was Mann, not Calabria or Huffines, who made the decision to base the official complaint on the invoices rather than on some of the other aspects of the transaction.

The grand jury indicted Compton on a charge of felony theft in June 1987, specifying the date of the theft as December 1, 1986. This criminal case was tried in January 1989. Compton argued at trial that she presented the fraudulent invoices to Calabria on December 31, 1986, whereas the indictment said she did so on December 1, 1986. The jury acquitted Compton of the felony theft charge. Immediately after her acquittal, Compton amended her pending lawsuit against Calabria and added Huffines as a defendant under malicious prosecution and conspiracy causes. This appeal involves a summary judgment subsequently granted in Calabria and Huffines's favor as to these causes of action.

In her first point of error, Compton asserts that the trial court erred in granting Calabria's and Huffines's joint motion for summary judgment. We agree and sustain this point of error.

Summary judgment is proper if the summary judgment record shows that there is no genuine issue...