French v. French

• Decision Date: 19 September 2012
• Docket Number: No. 10–11–00002–CV.,10–11–00002–CV.
• Citation: 385 S.W.3d 61
• Parties: Lisa and Roger FRENCH, Appellants v. Marco FRENCH, G.T. Morton, and Judy McCollum, Appellees.
• Court: Texas Court of Appeals

385 S.W.3d 61

Lisa and Roger FRENCH, Appellants

v.Marco FRENCH, G.T. Morton, and Judy McCollum, Appellees.

No. 10–11–00002–CV.

Court of Appeals of Texas,

Waco.

July 19, 2012.

Rehearing Overruled Sept. 19, 2012.

Andy McSwain, Fulbright Winniford PC, Waco, TX, for Lisa and Roger French.

Constance McGuire, J. Kent McGuire, Waxahachie, TX, Sean R. Cox, Kelly Curham & Pittard LLP, Dallas, TX, Stephen L. Daniel, Jenkins & Jenkins, PC, Waxahachie, TX, for Marco French, G.T. Morton, and Judy McCollum.

Before Chief Justice GRAY, Justice DAVIS, and Justice SCOGGINS.

OPINION

REX D. DAVIS, Justice.

Lisa French was arrested for felony theft but was later “no-billed” by a grand jury. She and her husband Roger then sued Judy McCollum, G.T. Morton, and Marco French for malicious prosecution and defamation.¹ The trial court granted the defendants' (Appellees') traditional and no-evidence joint motion for summary judgment. The Frenches appeal, asserting in their sole issue that the trial court erred in granting summary judgment. We review a trial court's summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003).

Background

The Frenches lived near Judy and her husband Wayne McCollum in Waxahachie. The McCollums had known Roger and his parents for many years. Lisa helped out the McCollums and had a key to their home.

In January 2009, the McCollums reported to Lt. Jason Westmoreland of the Ellis County Sheriff's Office that approximately $83,000 in cash, which had been kept in a safe, had been stolen from their home. G.T. Morton, a close friend of the McCollums, was present when Lt. Westmoreland interviewed the McCollums, and they and Morton related that they suspected that Lisa had stolen the cash. After further investigation, including an examination of the Frenches' bank records, Lt. Westmoreland sought and obtained an arrest warrant for Lisa for third-degree felony theft (over $20,000 and under $100,000). Lisa was arrested and jailed in Arkansas (the Frenches had subsequently moved there) before being released on bail. An Ellis County Grand Jury “no-billed” Lisa in November 2009.

Roger's Claims

Digressing briefly, we hold that the trial court properly granted the no-evidence motion for summary judgment on Roger's claim for malicious prosecution. There is no evidence that Roger was prosecuted at all; only Lisa was charged and arrested. The trial court also properly granted the no-evidence motion for summary judgment on Roger's claim for defamation. There is no evidence that any defamatory statements were made about Roger.

Malicious Prosecution

The elements of malicious prosecution are:

(1) commencement of a criminal prosecution against the plaintiff;

(2) the defendant's initiation or procurement of that prosecution;

(3) termination of the prosecution in the plaintiff's favor;

(4) the plaintiff's innocence;

(5) lack of probable cause to initiate or procure the prosecution;

(6) malice in filing the charge; and

(7) damage to the plaintiff.

Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 793 n. 3 (Tex.2006).

Probable Cause

In their traditional motion for summary judgment, the Appellees moved for summary judgment on the probable-cause element. In reviewing a traditional motion for summary judgment, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007). We must consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the motion. See id. at 756.

Under the probable cause element, we consider “whether a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed them to be before the criminal proceedings were instituted.” Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex.1997); Kroger, 216 S.W.3d at 792–93. A presumption exists that the “defendant acted reasonably and had probable cause to initiate criminal proceedings.” Kroger, 216 S.W.3d at 793. “To rebut this presumption, the plaintiff must produce evidence that the motives, grounds, beliefs, or other information upon which the defendant acted did not constitute probable cause.” Id. Such evidence includes, for example, prior bad relations, preexisting debt, or any private motivation to harm the plaintiff. Id. at 795.

We consider “only whether the complainant reasonably believed that the elements of a crime had been committed based on the information available to the complainant before criminal proceedings began.” Richey, 952 S.W.2d at 519. The question is not what the actual facts were, but what the defendant honestly and reasonably believed the facts to be. Kroger, 216 S.W.3d at 792–93. When the facts are disputed, the jury “must weigh evidence and resolve conflicts to determine if probable cause exists, as a mixed question of law and fact.” Richey, 952 S.W.2d at 518.

Braneff v. Troutmen, No. 10–08–00203–CV, 2010 WL 4644495, at *3 (Tex.App.-Waco Nov. 17, 2010, pet. denied) (mem. op.); see also Richey, 952 S.W.2d at 517 (“there is an initial presumption in malicious prosecution actions that the defendant acted reasonably and in good faith and had probable cause to initiate the proceedings”).

As summary-judgment evidence on probable cause, the Appellees relied on the report and arrest-warrant affidavit of Lt. Westmoreland, the investigating officer. They contend that, because he found probable cause to request an arrest warrant for Lisa and a judge issued the arrest warrant, probable cause on the Appellees' part was conclusively established.

The subsequent probable-cause determinations of the investigating officer and the judge who issued the arrest warrant are irrelevant to whether Judy and Morton reasonably believed that Lisa had stolen money from the McCollums at the time they reported the theft. See id.; see also Akin v. Dahl, 661 S.W.2d 917, 920 (Tex.1983); Digby v. Tex. Bank, 943 S.W.2d 914, 920–21 (Tex.App.-El Paso 1997, writ denied); Turner v. Roadway Express, Inc., 911 S.W.2d 224, 226–27 (Tex.App.-Fort Worth 1995, writ denied). Accordingly, the trial court erred in granting the traditional motion for summary judgment on the probable-cause element of Lisa's claim of malicious prosecution.

We turn to the Appellees' no-evidence motion for summary judgment and examine Lisa's summary-judgment evidence to determine if she rebutted the probable-cause presumption and raised a fact issue on probable cause. A no-evidence motion for summary judgment is essentially a motion for pretrial directed verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex.2006); see also Humphrey v. Pelican Isle Owners Ass'n, 238 S.W.3d 811, 813 (Tex.App.-Waco 2007, no pet.). Once such a motion is filed, the burden shifts to the nonmoving party to present evidence raising an issue of material fact as to the elements specified in the motion. Tamez, 206 S.W.3d at 583. The nonmovant must produce “summary judgment evidence raising a genuine issue of material fact.” Tex.R. Civ. P. 166a(i); see id. Comment 1997 (“To defeat a motion made under paragraph (i), the respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.”). A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003). More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). On the other hand, the evidence amounts to no more than a scintilla if it is “so weak as to do no more than create a mere surmise or suspicion” of fact. Id. When determining if more than a scintilla of evidence has been produced, the evidence must be viewed in the light most favorable to the nonmovant. Ridgway, 135 S.W.3d at 601.

Lisa relies on her affidavit to raise a genuine issue of fact and to rebut the probable-cause presumption (and also to rebut Lt. Westmoreland's affidavit). Lt. Westmoreland's probable-cause affidavit states that the McCollums told him that Lisa, who lived on the same street, had befriended them in 2008, that she drove for them and did odd jobs and errands for them, and that they often paid Lisa “hundreds of dollars for minor tasks.” Judy told Lt. Westmoreland that Lisa pressured her to put Wayne in a retirement home and that she “felt as though Lisa wanted to get Wayne away from home for a specificpurpose.” Judy also said that when Lisa would drive them somewhere, once the McCollums were in the car, Lisa “would always have an excuse to go back into the residence for something.” Judy also said that Lisa was the only person with unsupervised access to the McCollum's home.

Lisa's affidavit states that, while she did live down the street and did jobs for the McCollums, that was “not the entire story.” The McCollums knew Lisa well, and she did far more than odd jobs for them. She was their attorney-in-fact, with Judy and Wayne giving her powers of attorney in 2002. Lisa also had a medical power of attorney for Wayne dated in 2002. Copies of these powers of attorney were attached to Lisa's affidavit. Lisa also states that she and Roger were beneficiaries of two-thirds of the McCollum estate under the McCollums' wills.

Lisa states while she did have a key to the McCollums' home, she did not have unsupervised access. The McCollums “were forgetful” and “very often left their home unlocked when they were away.” As for the allegedly missing money, Lisa states that she is innocent, that she did not take the money, and that she believes that Judy and...