Lang v. City of Nacogdoches

• Decision Date: 27 March 1997
• Docket Number: No. 12-94-00249-CV,12-94-00249-CV
• Citation: Lang v. City of Nacogdoches, 942 S.W.2d 752 (Tex. App. 1997)
• Parties: Ben S. LANG, et al, Appellants, v. CITY OF NACOGDOCHES, et al, Appellees.
• Court: Texas Court of Appeals

Page 752

942 S.W.2d 752

Ben S. LANG, et al, Appellants, v.CITY OF NACOGDOCHES, et al, Appellees.

No. 12-94-00249-CV.

Court of Appeals of Texas Tyler.

March 27, 1997.

Sean W. Hester, Tyler, for appellants.

Catherine L. Kyle, James S. Ludlum, Austin, Tom D. Rorie, Nacogdoches, for appellees.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

OPINION AFTER MOTIONS FOR REHEARING

HADDEN, Justice.

Appellants, Ben S. Lang and his wife, Marjorie S. Lang, and Appellee, Mary Jo Shepherd, have filed motions for rehearing.We overrule the motions, but for clarification our original opinion dated January 31, 1997 is withdrawn and the following opinion substituted:

This is an appeal of a summary judgment.Ben S. Lang and his wife, Marjorie S. Lang("Ben" and "Marjorie"), brought suit against William H. Lang and his wife, Ethelyne Lang("William" and "Ethelyne," and sometimes called the "Lang Defendants"), the City of Nacogdoches("the City"), Nacogdoches Police Chief John Walton("Chief Walton"), Nacogdoches Police Officers Tommy Hinton and Eddie Upshaw("Hinton" and "Upshaw"), the County of Nacogdoches("the County"), Nacogdoches County SheriffJoe Evans("Sheriff Evans"), and Nacogdoches County Jail employee Mary Jo Shepherd("Shepherd")(sometimes collectively called the "Nacogdoches Defendants") claiming malicious prosecution, intentional infliction of emotional distress, and various violations of their civil rights arising out of an incident whereby they were arrested.Motions for summary judgment were granted as to all defendants.Ben and Marjorie appeal to this Court assigning four points of error with several subpoints.We will affirm in part and reverse and remand in part.

BACKGROUND

The record reflects that Ben and William were brothers.At the time of the incidents herein described, their mother, Vira Lang("Vira"), was 91 years of age and resided in her home in Nacogdoches, Texas.William also resided in Nacogdoches, Texas; however Ben resided in San Antonio, Texas, but he and Marjorie occasionally traveled to Nacogdoches to visit Vira.Because of Vira's advanced age, William was entrusted by Vira to collect and manage her monthly social security checks and other funds.After several years under this arrangement, a dispute arose between Ben and William regarding the care of Vira and the handling of her funds.Ben began to investigate into the matter, and an atmosphere of mutual distrust arose between the brothers.

According to the allegations of William, Vira began to complain to him that she was being harassed by Ben and Marjorie, and that she did not want them bothering her anymore.William, therefore, advised Ben not to go on her premises and visit Vira without first contacting him.Vira also gave William her power of attorney authorizing him to file complaints against trespassers.A portion of the power of attorney reads as follows:

KNOW ALL MEN BY THESE PRESENTS:

That VIRA LANG of Nacogdoches, County of Nacogdoches, and State of Texas has this day Made, Constituted and Appointed and by these presents does Make, Constitute and Appoint my son, WILLIAM H. LANG, of 623 Tower Road, Nacogdoches, in the County of Nacogdoches, and State of Texas, true and lawful Attorney for and in my name, place and stead, to exercise, do or perform any act, right, power, duty, or obligation whatsoever that I now have or may acquire the legal right, power or capacity to exercise, do, or perform in connection with, arising out of, or relating to the filing or prosecution of any complaint in my behalf which might arise from trespass, harassment, threat, disorderly conduct, simple assault or any other misdemeanor which might occur on or about my property as might effect me or any other member of my family, limited to the jurisdiction of the City of Nacogdoches, Texas Municipal Court or Nacogdoches County Court at Law.

On February 4, 1990, without William's permission, Ben and Marjorie drove to Nacogdoches and visited with Vira at her home for approximately two hours.When they left, Vira called William to inform him that Ben and Marjorie were in town, had been at her home, and were disturbing her.According to William, he took no action at that time, hoping Ben and Marjorie would leave town.The next morning, Ben and Marjorie again went to see Vira at her home.Upon learning of their return, William called the Nacogdoches Police Department.Officers Hinton and Upshaw met William and Ethelyne at Vira's home.William advised the officers that Ben and Marjorie were not supposed to be on the premises and showed the officers the power of attorney.William told Officer Hinton that Ben and Marjorie had been told not to come upon the premises of Vira, and that he wanted to file charges against Ben and Marjorie for criminal trespass.Hinton called his police department headquarters and discussed this matter with the desk sergeant. The officers placed Ben and Marjorie under arrest, but allowed them to follow the officers in their own car to the county jail.William thereafter signed a complaint against them for criminal trespass.Marjorie was released on bond around 6:30 p.m. the same day, and Ben was released on bond the following morning.

Ben and Marjorie retained a Nacogdoches attorney to represent them in connection with the criminal charges, but nothing transpired until the charges were dismissed on May 21, 1990.Although Ben and Marjorie were in regular contact with their attorney, it was not until December 5, 1991, that they discovered that the pending charges against them had been dismissed.Suit was then filed by Ben and Marjorie on February 3, 1992.They filed an amended petition on June 28, 1993, to include civil rights charges pursuant to 42 U.S.C. § 1983(1981).All defendants filed motions for summary judgment based on the applicable statutes of limitations, probable cause, and official immunity.The trial court granted summary judgment as to all defendants.

In their first point of error, Ben and Marjorie complain generally that the court erred in granting the motions for summary judgment.Point of error two asserts more specifically that the court erred in granting the motion for summary judgment in favor of the Nacogdoches Defendants because: 1) the statute of limitations on malicious prosecution had been tolled until Ben and Marjorie discovered the charges against them had been dismissed; 2) Ben and Marjorie's claims under the Federal Civil Rights Act42 U.S.C. § 1983(1981) were not barred by limitations; and 3) a fact question existed as to whether the Nacogdoches Defendants were entitled to immunity from suit, thus precluding summary judgment on this issue.Point of error three asserts that the court erred in granting the motion for summary judgment in favor of the Lang Defendants because: 1) the statute of limitations for malicious prosecution had been tolled until Ben and Marjorie discovered the charges against them had been dismissed; 2) Ben and Marjorie's claim for intentional infliction of emotional distress was not time barred because it was separate and distinct from their claim for malicious prosecution, and was not subject to the same period of limitations; 3) the summary judgment evidence created a fact issue as to Ethelyne's involvement in the incident giving rise to the suit; and 4) the affidavit of William was defective.Point of error four asserts that the trial court erred in signing a "general" order granting the motions for summary judgment over Ben and Marjorie's objections.We will address all four points together.

STANDARD OF REVIEW

The function of summary judgment is to "eliminate patently unmeritorious claims and untenable defenses."Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931(1952);Mayhew v. Town of Sunnyvale, 774 S.W.2d 284, 286(Tex.App.--Dallas1989, writ denied), cert. denied, 498 U.S. 1087, 111 S.Ct. 963, 112 L.Ed.2d 1049(1991).The purpose of allowing summary judgment is to "provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine issue of fact."Mayhew, 774 S.W.2d at 287.

The standard for appellate review of a summary judgment in favor of a defendant is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action.Gibbs v. General Motors Corp., 450 S.W.2d 827, 828(Tex.1970).The movant has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49(Tex.1985).Evidence favorable to the nonmovant will be taken as true in deciding whether there is a disputed material fact issue.Id.Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.Montgomery v. Kennedy, 669 S.W.2d 309, 310-11(Tex.1984).The court did not specify the grounds upon which it granted summary judgment on each of the causes of action, and therefore summary judgment will be affirmed if any of the theories advanced are meritorious.Insurance Co. of N. Am. v. Security Ins. Co., 790 S.W.2d 407, 410(Tex.App.--Houston[1st Dist.]1990, no writ).We will review the summary judgment in light of these admonitions.

MALICIOUS PROSECUTION

In their motions for summary judgment, all defendants alleged, inter alia, that Ben's and Marjorie's cause of action for malicious prosecution was time barred because suit for malicious prosecution must be brought within one year after the cause of action accrued.The elements of a cause of action for malicious prosecution are outlined in Thomas v. Cisneros, 596 S.W.2d 313, 316(Tex.Civ.App.--Austin1980, writ ref'd n.r.e.), and include the termination of the criminal prosecution in favor of the plaintiff.Limitations begin to run when the prosecution ends, and suit for malicious prosecution...