Pettit v. Maxwell

• Decision Date: 31 August 2016
• Docket Number: No. 08-14-00241-CV,08-14-00241-CV
• Citation: 509 S.W.3d 542
• Parties: Elia PETTIT, Formerly Known as Elia Rich, Appellant, v. Barbara MAXWELL, Formerly Known as Barbara Pettit, Appellee.
• Court: Texas Court of Appeals

509 S.W.3d 542

Elia PETTIT, Formerly Known as Elia Rich, Appellant,

v.Barbara MAXWELL, Formerly Known as Barbara Pettit, Appellee.

No. 08-14-00241-CV

Court of Appeals of Texas, El Paso.

August 31, 2016

James D. Lucas, for Appellant.

Brock Benjamin, for Appellee.

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

This appeal arises from a summary judgment in a malicious prosecution case. The issue before us is whether the defendant below, Barbara Maxwell, disproved as a matter of law the "probable cause" element of Elia Pettit's malicious prosecution claim. We conclude that she did not and reverse the summary judgment which was granted below.

PROCEDURAL AND FACTUAL SUMMARY

The genesis of this lawsuit is the 2008 indictment of Elia Pettit for theft of property over $200,000.00. At the time of the indictment, Elia Pettit was married to Eugene Pettit. Eugene had divorced Barbara Maxwell in 2006. The divorce decree awarded Barbara a house in El Paso, as well as any household furniture, furnishings, art objects, and collectibles in her possession or control. Similarly, Eugene was awarded any of the same items which were in his possession or control. Barbara was deployed to Iraq as a part of her duties with the United States Army from July 2006 to December 2007. Eugene at that time was still living, with Barbara's permission, in the house that Barbara was awarded under the divorce decree.

When Maxwell returned from her tour of duty, she noticed her personal effects from the house were missing. Maxwell claims that a neighbor, Elisa Ramirez, told her that Elia Pettit and Eugene Pettit sold "my belongings ... at a garage sale in May 2007." Ramirez executed an affidavit recounting that Eugene Pettit and "a woman whose name I do not know" were present at a yard sale in May 2007. In December 2007 or January 2008, Maxwell reported the matter to the police. In July 2008, an assistant district attorney presented the case to a grand jury which indicted both Eugene and Elia Pettit for theft of property over $200,000.00, which is a first degree felony. Elia's indictment charges her with unlawfully appropriating furniture, household appliances, housewares, dishes, baseball cards, jewelry vases, and several specific types of figurines, all of which were collectively worth $200,000.00 or more. The district attorney's office dismissed the charge in 2010 because a witness, not identified in our record, had died. Thereafter Elia filed this suit against Maxwell asserting a claim for malicious prosecution.

Maxwell moved for summary judgment under TEX.R.CIV.P. 166a(c). The motion, supported by an affidavit from Maxwell, Ramirez, and Assistant District Attorney Cheri Shapleigh, contended that: (1) Maxwell did not initiate or procure the prosecution; (2) Maxwell had probable cause to alert the police; and (3) Maxwell did not act with malice. In the Rule 166a(c) motion, Maxwell properly acknowledged that she assumed the burden to show that there was no genuine issue of material fact for the elements that she challenged.

Pettit filed a response which included her own affidavit and that of Eugene. Both swore that Maxwell told the police not only that Elia had assisted in stealing property which belonged to her, but also that the property had a cumulative value of $200,000.00 or more. They averred that both claims were false. Eugene stated that Barbara Maxwell was awarded personal and real property worth at least $400,000.00 in the divorce. He further claimed, however, that prior to being deployed to Iraq, Barbara Maxwell came by the house and took a load of "clothing, jewelry, savings bonds, and numerous other items of personal property" to her new residence in Killeen, Texas. He swore that Maxwell "loaded up most of the valuable personal items which were in the residence and took them with her." Eugene agreed that he did have a yard sale, but all the items sold were his own and did not have a collective market value of more than $500.00. Elia swore that she did not assist in selling any personal property which had a cumulative value of more than $500.00 during the relevant time period.

In her response to the summary judgment, Elia also raised hearsay objections to some of the evidence submitted with Maxwell's motion. The trial court overruled the evidentiary objections and granted the motion for summary judgment, stating specifically in its order that the court "finds that there was probable cause as a matter of law for the issuance of the capias ordering the arrest of Plaintiff for the offense of theft over $200,000.00 ...."

STANDARD OF REVIEW

We review a trial court's decision to grant summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex.2010). Where, as here, the trial court's order specifies the grounds on which it granted summary judgment, the summary judgment can be affirmed only on the grounds specified in the trial court's order. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625–26 (Tex.1996). In the interest of judicial economy, we may consider other grounds that were raised and preserved by the movant but not ruled on by the trial court to decide if they support summary judgment. Id. ; Hernandez v. Porter , 406 S.W.3d 789, 792 (Tex.App.–El Paso 2013, pet. denied) ; Hernandez v. Mendoza , 406 S.W.3d 351, 354 (Tex.App.–El Paso 2013, no pet.).

Maxwell asserted a traditional summary judgment under TEX.R.CIV.P. 166a(c). Under a traditional motion, the moving party carries the burden of showing that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Diversicare General Partner, Inc. v. Rubio , 185 S.W.3d 842, 846 (Tex.2005) ; Nixon v. Mr. Property Mgmt. Co., Inc. , 690 S.W.2d 546, 548 (Tex.1985). Stated otherwise, the defendant must conclusively negate one of the elements of the plaintiff's claim. Phan Son Van v. Pena , 990 S.W.2d 751, 753 (Tex.1999). Evidence favorable to the non-movant will be taken as true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic Hospital, Inc. v. Reese , 148 S.W.3d 94, 99 (Tex.2004) ; Tranter v. Duemling , 129 S.W.3d 257, 260 (Tex.App.–El Paso 2004, no pet.). All reasonable inferences, including any doubts, must be resolved in favor of the non-movant. Fort Worth Osteopathic Hospital , 148 S.W.3d at 99. Once the movant establishes its right to summary judgment, the burden then shifts to the non-movant to present evidence which raises a genuine issue of material fact, thereby precluding summary judgment. See City of Houston v. Clear Creek Basin Authority , 589 S.W.2d 671, 678 (Tex.1979).

A genuine issue of material fact is raised when the non-movant produces more than a scintilla of evidence regarding the challenged element. Neely v. Wilson , 418 S.W.3d 52, 59 (Tex.2013).

More than a scintilla of evidence exists when reasonable and fair-minded individuals could differ in their conclusions. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex.2003). There is less than a scintilla of evidence when the evidence is so weak as to do no more than create a mere surmise or suspicion of material fact. Wade Oil & Gas, Inc. v. Telesis Operating Co., Inc. , 417 S.W.3d 531, 540 (Tex.App.–El Paso 2014, no pet.).

MALICIOUS PROSECUTION

A malicious prosecution plaintiff must prove: (1) commencement of a criminal prosecution against the plaintiff; (2) the defendant initiated or procured 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 Texas Ltd. Partnership v. Suberu , 216 S.W.3d 788, 793 n. 3 (Tex.2006) ; Richey v. Brookshire Grocery Co. , 952 S.W.2d 515, 517 (Tex.1997).

We strictly apply these elements as they reflect a delicate balance of societal values. Browning – Ferris Industries, Inc. v. Lieck , 881 S.W.2d 288, 291 (Tex.1994) ("Even a small departure from the exact prerequisites for liability may threaten the delicate balance between protecting against wrongful prosecution and encouraging reporting of criminal conduct."). Citizens must be encouraged and free to report possible crimes to the authorities. Id . citing, Sebastian v. Cheney , 86 Tex. 497, 25 S.W. 691, 694 (1894) and RESTATEMENT (SECOND) OF TORTS ch. 29, intro. note, at 405 (1977). At the same time, the consequences of arrest and prosecution for an offense are considerable, and every citizen should be protected from a prosecution based on false claims arising from some malicious intent. Id .

The trial court's order granting the summary judgment specified the element upon which the motion was granted—probable cause—and accordingly we begin there. Our focus under the probable cause element is "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, 952 S.W.2d at 517, citing Akin v. Dahl, 661 S.W.2d 917, 920 (Tex.1983). A malicious prosecution plaintiff carries the burden of disproving probable cause. This shifting of the burden reflects the presumption that "the defendant acted reasonably and had probable cause to initiate criminal proceedings." Suberu , 216 S.W.3d at 792–93 ("The civil law presumes Kroger's good faith and requires Suberu to rebut this presumption, because it is more important that a private citizen report an apparent subversion of our laws than for the wrongly accused to attain monetary redress from the accuser."). To rebut the presumption, the plaintiff must produce evidence that the motives, grounds, beliefs, or other information upon which the defendant acted did not constitute probable cause. Richey, 952 S.W.2d at 518. If the plaintiff rebuts that presumption, the defendant is then required to carry the burden of proving the existence of probable...