Ellis v. Sinton Savings Association

• Decision Date: 14 May 1970
• Docket Number: No. 505,505
• Parties: R. K. ELLIS, Appellant, v. SINTON SAVINGS ASSOCIATION, Appellee.
• Court: Texas Court of Appeals

Page 834

455 S.W.2d 834

R. K. ELLIS, Appellant, v. SINTON SAVINGS ASSOCIATION, Appellee.

No. 505.

Court of Civil Appeals of Texas,

Corpus Christi.

May 14, 1970.

Rehearing Denied June 11, 1970.

House, Mercer, House & Brock, Franklin D. Houser, San Antonio, for appellant.

Burnett, Burnett & Joseph, William Burnett, Sinton, for appellee.

OPINION

SHARPE, Justice.

The original opinion herein is withdrawn and the following is substituted therefor.

This is a malicious prosecution suit brought by appellant claiming damages because appellee had allegedly caused him to be indicted in several criminal cases by the grand jury of San Patricio County, Texas. The trial court rendered summary judgment that appellant take nothing from appellee, from which this appeal has been taken.

The criminal cases arose out of the connection of appellant Ellis with appellee Sinton Savings Association, of which he was an organizer and president for a period of time, the indictment having been returned after cessation of appellant's association with appellee. Appellant was tried on one of the indictments (cause number 3100) and a hung jury resulted. He was retried in the same case and acquitted. While the original indictments were pending, appellee filed a civil suit in the U. S. District Court at Corpus Christi, Texas, against Westchester Fire Insurance Co., which had issued a fidelity bond covering appellant, seeking to recover $467,622.85. The civil case was based generally upon allegations that appellant had engaged in a number of dishonest or fraudulent acts while connected with appellee, resulting in losses to appellee for which the bonding company was liable. The said civil suit was filed before the first criminal case was tried, was still pending after the second trial thereof, and was subsequently settled for an amount not disclosed by the record. Thereafter, the remaining criminal indictments against appellant were dismissed on motion of the district attorney. A civil suit was also filed by appellee in a state district court and is still pending. However, appellant has withdrawn any claim for damages based upon filing of the said civil suits.

Appellant's single point of error reads as follows: 'The trial Court erred in granting Appellee's Motion for Summary Judgment for the reason that a fact issue was created by Appellant's Counter Affidavits.'

Appellee's motion for summary judgment had attached to it various exhibits and supporting summary judgment evidence including the affidavit of John H. Flinn, District Attorney of the 36th Judicial District, and Kenneth W. Duke who was then the president of Sinton Savings Association. Appellant opposed appellee's motion for summary judgment and filed four counter-affidavits, one made by him and three by attorneys who had represented him or the above-mentioned bonding company in connection with either the civil or criminal cases heretofore and hereafter referred to.

The elements necessary for a malicious prosecution action are: 1) The commencement of a criminal prosecution against plaintiff, 2) which has been caused by the defendant or through defendant's aid or cooperation, 3) which terminated in favor of the plaintiff; 4) that plaintiff was innocent; 5) that there was no probable cause for such proceeding; 6) that it was done with malice; and 7) resulted in damage to plaintiff. Yianitsas v. Mercantile National Bank at Dallas, 410 S.W.2d 848, 850 (Tex.Civ.App., Dallas, 1967, n.w.h.); Flowers v. Central Power & Light Co., 314 S.W.2d 373, 375 (Tex.Civ.App., Waco, 1958, wr. ref. n.r.e.).

Appellant's petition alleged these essential elements of a cause of action for malicious prosecution. However, under applicable summary judgment rules we must hold that the record here establishes as a matter of law that there is no genuine issue of fact at least as to the second, third (with the one exception hereafter noted) and fifth of the above-mentioned essential elements of appellant's cause of action. Rule 166--A, Texas Rules of Civil Procedure; Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup.1965); Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958). In McBride, the Supreme Court held in part as follows:

'When a motion for summary judgment is supported by affidavits, depositions, stipulations or other extrinsic evidence sufficient on its face to establish facts, which, if proven at the trial, would entitle the movant to an instructed verdict the opponent must show opposing evidentiary data which will raise an issue as to a material fact, or must justify his inability to do so and seek appropriate relief under subdivision (f) of Rule 166--A * * *' 322 S.W.2d 500.

The rule stated in McBride is applicable here. The summary judgment evidence offered by appellee in support of its motion conclusively established its right to a favorable summary judgment in the absence of production by appellant of opposing summary judgment evidence legally sufficient to raise an issue or issues of fact concerning essential elements numbers two, three (with an exception to be discussed) and five of appellant's cause of action. These elements will be discussed in the order mentioned.

WHETHER THE CRIMINAL PROSECUTIONS WERE CAUSED BY APPELLEE OR

THROUGH APPELLEE'S AID OR COOPORATION

It is agreed that certain criminal prosecutions, by way of grand jury indictments, were instituted against appellant, and essential element No. 1 is established in his favor. However, as to essential element number 2, appellant contends that the summary judgment record does not establish as a matter of law that there was no genuine issue of fact as to whether the criminal prosecutions were caused by appellee or through its aid or cooperation. One of the affidavits filed by appellee in support of its motion for summary judgment was that of John H. Flinn, District Attorney for the 36th Judicial District of Texas, reading as follows:

THE STATE TEXAS

COUNTY OF SAN PATRICIO

BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on this day personally appeared John H. Flinn, known to me to be a credible person and who, after having been by me first duly sworn, stated and deposed upon oath as follows, to-wit:

My name is John H. Flinn and I am a resident of Sinton, San Patricio County, Texas. I am over 21 years of age, am of sound mind, have never been convicted of any crime or offense and have personal knowledge of every statement herein made and am fully competent to testify to the matters stated herein.

I am a licensed and practicing attorney at law. I was elected District Attorney of the 36th Judicial District of Texas in the year 1958 and have been re-elected District Attorney continually from that year to the present time.

During the time that I have been District Attorney there have been seven criminal actions in the District Courts of San Patricio County, Texas, in which one R. K. Ellis, who was formerly president of Sinton Savings Association of Sinton, Texas, was defendant. Each of these cases was styled 'The State of Texas vs. R. K. Ellis,' each was on the docket of the District Court of the 36th Judicial District in and for San Patricio County, Texas, and the seven cases were numbered 3079, 3080, 3081, 3097, 3098, 3099 and 3100, respectively, on the docket of that Court.

The investigation and prosecution of each of the cases was performed by me as District Attorney and I am well acquainted with all facts and circumstances involved in each of the cases from their commencement through their termination.

Each of the cases was commenced during the session of the Grand Jury of San Patricio County, Texas, of the February, 1964, term of said District Court, at which time I initiated an investigation into acts of R. K. Ellis as president of Sinton Savings Association. No officer, director, agent or employee of Sinton Savings Association requested the investigation. No officer, director, agent or employee of Sinton Savings Association voluntarily furnished information to me which caused me to initiate the investigation. No complaint against R. K. Ellis was filed by any officer, director, agent or employee of Sinton Savings Association. No information against R. K. Ellis was filed by any officer, director, agent or employee of Sinton Savings Association. No officer, director, agent or employee of Sinton Savings Association communicated to me in any manner any accusation that R. K. Ellis had committed any crime. No officer, director, agent or employee of Sinton Savings Association suggested to me that R. K. Ellis should be charged with any crime. The investigation was an independent investigation of the Grand Jury and myself.

During the course of the investigation no information was voluntarily furnished to me by any officer, director, agent or employee of Sinton Savings Association. The information which I obtained and presented before the grand jury was obtained through my own efforts and through subpoenas which I had issued.

After consideration of the evidence presented before it by me, the Grand Jury returned seven indictments against R. K. Ellis and they were filed and docketed in said court as the cases I have mentioned above.

During the time the cases were pending, no officer, director, agent or employee of Sinton Savings Association suggested that any of the cases be kept pending. During the time the cases were pending, no officer, director, agent or employee of Sinton Savings Association requested that any of the cases be kept pending. During the time the cases were pending, no officer, director, agent or employee of Sinton Savings Association suggested that any of them should not be dismissed. During the time the cases were pending, no officer, director, agent or employee of Sinton Savings Association requested that any of them not be dismissed. During the time the cases were pending no officer, director, agent or...