Martin v. Trevino

• Decision Date: 29 August 1978
• Docket Number: No. 1287,1287
• Citation: 578 S.W.2d 763
• Parties: Thomas L. MARTIN, Appellant, v. Maria R. TREVINO et al., Appellees.
• Court: Texas Court of Appeals

Page 763

578 S.W.2d 763

Thomas L. MARTIN, Appellant, v. Maria R. TREVINO et al., Appellees.

No. 1287.

Court of Civil Appeals of Texas, Corpus Christi.

Aug. 29, 1978 Rehearing Granted Nov. 29, 1978 Second Motion for Rehearing Granted in Part, and Denied in Part Feb. 28, 1979 Appellant's Third Motion for Rehearing Denied March 22, 1979.

O. F. Jones, III, Victoria, Michael G. Mullen, Will G. Barber, Brown, Maroney, Rose, Baker & Barber, Austin, for appellant.

R. D. Cullen, Cullen, Carsner & Williams, Victoria, for appellees.

Thomas R. Beech, Houston, for Malpractice Defense Committee as amicus curiae.

OPINION

NYE, Chief Justice.

This is a suit by a doctor against an attorney and his client. Originally, Maria R. Trevino, filed a medical malpractice suit against Dr. Thomas L. Martin. Dr. Martin filed a counterclaim against Mrs. Trevino and instituted a third-party action against Mrs. Trevino's attorneys for filing the malpractice suit against him without just cause. The trial court granted the attorney and his client's motion for summary judgment predicated on the sole ground that the doctor's pleadings "fail(ed) to state a legal cause of action under the laws of the State of Texas, upon which relief can be granted." Dr. Martin perfected his appeal to this Court.

Attorney J. Manuel Banales filed suit on behalf of his client, plaintiff Trevino, against defendant Dr. Martin for medical malpractice. Dr. Martin filed a general denial and a counterclaim against Mrs. Trevino and a third-party action against Attorney Banales and his law firm, Huerta, Pena, Beckman, Rodriguez & Alfaro (hereinafter "attorneys") alleging, in substance, that plaintiff Trevino and her attorneys negligently filed the medical malpractice suit without just cause and without proper investigation to determine whether or not such suit could be legally or factually justified. Dr. Martin alleged that the filing of the medical malpractice suit resulted in "actual expenses and damages" and that "he had lost, and will in all reasonable probability lose in the future, revenue from his medical practice because of such unfounded claims and assertions against him . . . " The doctor further alleged that he was entitled to exemplary damages because the medical malpractice action had been filed by the attorneys "wantonly and with malice of forethought." The plaintiff Trevino and the third-party defendant attorneys filed a general denial to Dr. Martin's counterclaim and third-party action and in addition filed a third-party cross-action against Dr. Martin and his attorney which, in essence, duplicated the negligence allegations contained in Dr. Martin's cross-action against them.

Plaintiff Trevino's attorneys filed a motion for summary judgment predicated on the ground that the counterclaim and third-party action of Dr. Martin against them failed to state a cause of action. Shortly thereafter, plaintiff Trevino and third-party defendant attorneys filed a motion to "take a non-suit as to all affirmative actions for relief and damages heretofore asserted by each and all of them against Thomas L. Martin." Dr. Martin then filed a supplemental counterclaim and third-party action against Mrs. Trevino and her attorneys which added the following counts to his prior negligence cause of action: 1) malicious prosecution, 2) abuse of process, 3) prima facie tort, and 4) breach of the Texas Code of Professional Responsibility (against the attorneys alone). Dr. Martin prayed for the same damages as originally alleged in his negligence counterclaim and third-party action.

Shortly thereafter, Dr. Martin and his attorney also filed a motion for summary judgment which, in essence, requested the court to grant a summary judgment in their favor in the event that the trial court granted plaintiff Trevino's and third-party defendant attorneys' motion for summary judgment. The trial court held a hearing on both motions. Based on the parties' pleadings and stipulations ¹, the trial court granted plaintiff Trevino's and attorneys' motion for non-suit and also granted her attorneys' motion for summary judgment because the "Counter Claim and Supplemental Counter Claim on file herein fails to state a legal cause of action under the laws of the State of Texas upon which relief can be granted." The trial court also granted Dr. Martin's and his attorney's motion for summary judgment on the same grounds.

In considering Dr. Martin's points of error, we will keep in mind the familiar rules governing our review of summary judgments. Rule 166-A, Texas Rules of Civil Procedure, provides that a summary judgment is proper only upon a showing that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." One of the purposes of our summary judgment practice is to eliminate "unpatently, unmeritorious or untenable defenses". Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). Such a judgment is proper only where it clearly appears that only a question of law is involved and that there is no genuine issue of fact. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962). Virtually all burdens are on the movant and the non-movant must be given the benefit of every reasonable inference which properly can be drawn in favor of his position. Gulbenkian v. Penn, supra; Valley Stockyards Company v. Kinsel, 369 S.W.2d 19, 20 (Tex.Sup.1963). Where the movant makes no attempt to negate the allegation in the non-movant's pleadings, we must presume such allegations to be true for the purposes of our review. Jacobs v. Theimer, 519 S.W.2d 846, 847 (Tex.Sup.1975). Here the movant's motion in effect challenges the sufficiency of the non-movant's pleadings to raise a genuine issue of material fact which would constitute a cause of action; the operation of such a motion for summary judgment is closely analogous to a special exception challenging the sufficiency of the non-movant's pleadings as a matter of law. In such a case, the petition to which the motion is directed must be construed most liberally in favor of the pleader. Such a petition is entitled to the benefit of every reasonable inference which can properly be drawn in its favor. Garza v. Perez, 443 S.W.2d 855 (Tex.Civ.App. Corpus Christi 1969, no writ). It must appear that the facts alleged by the non-movant established the absence of a right of action or of an insuperable barrier to a right of recovery. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.Sup.1972). See Smart v. Carlton, 557 S.W.2d 553, 555 (Tex.Civ.App. Beaumont 1977, writ ref'd n. r. e.); Garza v. Perez, supra.

Dr. Martin brings forward a number of points of error generally contending that the trial court's granting of the motion for summary judgment was erroneous because Dr. Martin pled valid causes of action as to each theory he relied upon.

In point of error 3A, Dr. Martin contends that his pleadings allege a viable cause of action based upon malicious prosecution. Dr. Martin's supplemental counter-claim and third-party cross-action stated, in relevant part, as follows:

"The filing of this suit by Maria R. Trevino, and her attorneys, was unjustified and improperly investigated, and the Plaintiffs have now filed a Motion to Dismiss said cause. Accordingly, it is shown to the Court that the Defendant's cause of action is now additionally founded upon the principles of a suit for malicious prosecution, in that, the original suit filed by the Plaintiff herein has been terminated in favor of this Defendant, there was an absence of probable cause for instituting the same, the Plaintiff and her attorneys instituted the same with malice, and such action resulting in damage to Dr. Martin."

In order to maintain an action for malicious prosecution in Texas, a party must plead and prove that: 1) a civil judicial proceeding was previously filed; 2) the defendant in the malicious prosecution case caused the original suit to be filed; 3) the commencement of the original proceeding was malicious; 4) no probable cause existed for the filing of the original proceeding; 5) termination of the original suit in favor of the party prosecuting the later malicious prosecution action, and 6) damages conforming to the legal standards under Texas law. J. C. Penney Company v. Gilford, 422 S.W.2d 25, 28 (Tex.Civ.App. Houston (1st Dist.) 1967, writ ref'd n. r. e.); Morris v. Taylor, 353 S.W.2d 956, 958 (Tex.Civ.App. Austin 1962, writ ref'd n. r. e.), cert. den., 371 U.S. 842, 83 S.Ct. 71, 9 L.Ed.2d 78 (1962). The gravamen of an action for malicious prosecution is improperly making a party the subject of legal process to his detriment. Daniels v. Conrad, 331 S.W.2d 411, 415 (Tex.Civ.App. Dallas 1959, writ ref'd n. r. e.). Texas adheres to the rule that an award of damages for prosecution of civil suits with malice and without probable cause cannot be recovered unless the party sued, suffers some interference, by reason of the suit, with his person or property. Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153 (1920); Salado College v. Davis, 47 Tex. 131 (1877); Louis v. Blalock, 543 S.W.2d 715 (Tex.Civ.App. Amarillo 1976, writ ref'd n. r. e.); Morris v. Blangger, 423 S.W.2d 133 (Tex.Civ.App. Austin 1968, writ ref'd n. r. e.). A pleading which does not allege some interference with the complainant's person or property fails to state a cause of action for malicious prosecution and is fatally defective. Smart v. Carlton, 557 S.W.2d 553 (Tex.Civ.App. Beaumont 1977, writ ref'd n. r. e.); Morris v. Taylor, 353 S.W.2d 956 (Tex.Civ.App. Austin 1962, writ ref'd n. r. e.), cert. den., 371 U.S. 842, 83 S.Ct. 71, 9 L.Ed.2d 78 (1962); Mosley v. Harkins, 147 S.W.2d 309 (Tex.Civ.App. Amarillo 1941, no writ); Shapleigh Hardware Co. v. Keeland Bros., 60 S.W.2d 510 (Tex.Civ.App. Galveston 1933, no writ).

The primary dispute between the parties concerning Dr. Martin's alleged cause of action for malicious prosecution is whether or not Dr. Martin has pled special...