Rivera-Marcano v. Normeat Royal Dane Quality

• Citation: 998 F.2d 34
• Decision Date: 07 January 1993
• Docket Number: No. 92-1662,RIVERA-MARCANO,92-1662
• Parties: Jose A., et al., Plaintiffs, Appellants, v. NORMEAT ROYAL DANE QUALITY A/S, (formerly Normeat-Holding & Export), Defendant, Appellee. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 34

998 F.2d 34

Jose A. RIVERA-MARCANO, et al., Plaintiffs, Appellants, v. NORMEAT ROYAL DANE QUALITY A/S, (formerly Normeat-Holding &amp Export), Defendant, Appellee.

No. 92-1662.

United States Court of Appeals First Circuit.

Heard Jan. 7, 1993.

Decided July 13, 1993.

Hector Cuebas Tanon with whom Vicente & Cuebas was on brief, for plaintiffs, appellants.

Ivan R. Fernandez-Vallejo with whom Raymond E. Morales and Brown Newsom & Cordova were on brief, for defendant, appellee.

Before TORRUELLA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

The district court granted summary judgment for appellee on appellants' claim of malicious prosecution. Finding no error, we affirm.

I.

Appellant Jose A. Rivera-Marcano ("Rivera") is the sole owner and operator of J.A.R. Enterprises, Inc. ("J.A.R."), a brokerage and distribution firm in Puerto Rico. Beginning in 1983, J.A.R. served as the exclusive broker in Puerto Rico of the luncheon meat and other food products manufactured by appellee Normeat Royal Dane Quality A/S ("Normeat"), a corporation with its principal place of business in Denmark. Normeat normally shipped merchandise to J.A.R. on a credit basis. J.A.R. would then transport the merchandise to customers in Puerto Rico and bill them directly. After customers paid J.A.R.--usually by means of checks made payable to either Normeat or J.A.R.--J.A.R. would deposit the money in its bank account, keep three percent of the amount as a sales commission, and remit the balance to Normeat. Ordinarily, J.A.R. had an account payable to Normeat with an outstanding balance of hundreds of thousands of dollars.

Sometime in 1987, Normeat's new management informed Rivera that it would no longer extend credit for shipments to J.A.R. and demanded immediate payment of J.A.R.'s outstanding account balance of approximately $500,000. Rivera protested the change, informing Normeat that the new policy contradicted long-standing practice and created financial difficulties for J.A.R. Negotiations between the parties failed to resolve the dispute, and Normeat notified Rivera in October 1987 that it would cease shipping merchandise to J.A.R. and would proceed to collect all sums due through appropriate legal channels.

Two years later, in June 1989, Ken Rasmussen, deputy managing director of Normeat, gave a sworn statement to a state prosecutor in the Puerto Rico Department of Justice regarding Rivera's failure, as owner and operator of J.A.R., to turn over one or more customer payments allegedly belonging to Normeat. The record contains neither a copy of Rasmussen's sworn statement nor anything else showing what Rasmussen told the prosecutors. The Puerto Rico Department of Justice conducted an investigation of the accusations, although the extent of the investigation is not clear from the record.

In September 1989, a Department of Justice attorney filed criminal charges against Rivera in the Superior Court of Puerto Rico, alleging six separate counts of aggravated unlawful appropriation--in violation of Article 166 of the Puerto Rico Penal Code, 33 L.P.R.A. § 4272 ¹--and two counts of forgery of documents--in violation of Article 271, 33 L.P.R.A. § 4591 ²--all felonies. The charges accused Rivera, in essence, of depositing in the J.A.R. bank account six checks written by customers as payment for Normeat merchandise and not transferring the payments, minus J.A.R.'s sales commission, to Normeat. ³ A Superior Court judge found probable cause to issue an arrest warrant for Rivera on all eight charges, and referred the case to three different courts for preliminary hearings because the alleged crimes took place in three different jurisdictions. Three magistrates separately considered the charges and found probable cause to proceed to trial on six of the eight charges. One aggravated unlawful appropriation count and one forgery count, both relating to a November 12, 1986 check for $59,274.12 from a company called Mister Price, were dismissed for lack of probable cause. ⁴

The remaining counts were consolidated for trial at the San Juan Superior Court. After one day of testimony on February 21, 1990, the main prosecution witness, Rasmussen, left Puerto Rico for Denmark and never returned to the island. The prosecutor moved for dismissal of the criminal charges, and the court granted dismissal with prejudice on February 26, 1990. The dismissal is now final and unappealable.

Rivera, along with his wife and their conjugal partnership, brought this diversity action against Normeat on November 26, 1990, in the United States District Court for the District of Puerto Rico, seeking damages pursuant to Puerto Rico tort law for the alleged malicious prosecution of Rivera by Normeat. Normeat moved to dismiss for failure to state a claim. See Fed.R.Civ.P. 12(b)(6). Because it had numerous exhibits before it from both parties, the district court treated Normeat's motion as one for summary judgment and granted it on April 21, 1992. See Fed.R.Civ.P. 56. Appellants now appeal from that final judgment. ⁵

II.

We review summary judgment grants de novo, reading the record in the light most favorable to the nonmoving party. August v. Offices Unlimited, Inc., 981 F.2d 576, 580 (1st Cir.1992). To demonstrate the existence of a genuine issue of material fact, plaintiffs must point to concrete, admissible evidence. Id. Mere allegations, or conjecture unsupported in the record, are insufficient. Id.

Under Puerto Rico law, a plaintiff, such as appellant, alleging malicious prosecution bears the burden of proof. Vince v. Posadas de Puerto Rico S.A., 683 F.Supp. 312, 315 (D.P.R.1988); Pares v. Ruiz, 19 P.R.R. 323, 327 (1913). The four essential elements of the tort are: (1) the criminal action was initiated and instigated by the defendant; (2) the criminal action terminated in favor of the plaintiffs; (3) the defendant initiated the action with malice and without probable cause; and (4) as a consequence, the plaintiffs suffered damages. Ocasio v. Rosa, 88 J.T.S. 42 (P.R.1988); Pares, 19 P.R.R. at 327. The third element may also be described as two separate elements because plaintiffs must show both that the defendant acted with malice and that he acted without probable cause. Vince, 683 F.Supp. at 315 & n. 4. Failure to prove any element bars recovery. Id. at 315-16; Torres v. Marcano, 68 P.R.R. 813, 817 (1948); Pares, 19 P.R.R. at 332.

The district court granted summary judgment for appellee Normeat on the ground that nothing in the record supports a finding that Normeat acted without probable cause. "[P]robable cause for imputing the commission of a crime consists in the fact that there are reasonable grounds therefor, supported by circumstances which are sufficient to warrant a reasonable belief that the defendant is the author of the crime." Jimenez v. Sanchez, 76 P.R.R. 347, 352 (1954); see Vince, 683 F.Supp. at 316; Pares, 19 P.R.R. at 331. Probable cause does not depend on the actual guilt or innocence of the accused, but simply on whether the circumstances are "sufficient to produce in the mind of a reasonable person the belief that the charge he makes is true." Pares, 19 P.R.R. at 331.

In respect to five of the six transactions, appellants pointed to no evidence tending to establish that Normeat lacked probable cause to accuse Rivera of misappropriating and forging the alleged checks. The record indicates that Rivera received those five checks from customers and deposited them in the J.A.R. bank account, but nothing shows that he forwarded the paid amounts, minus his commission, to Normeat. In addition, the record shows that the Department of Justice attorney, after an investigation, found probable cause sufficient to file the charges against Rivera, and a Superior Court judge found probable cause on all eight charges sufficient to issue an arrest warrant for Rivera. Three different magistrates, in separate preliminary hearings, found that evidence on the counts related to these five transactions was sufficient to send the case to trial. Because appellants failed to produce any evidence that Normeat lacked probable cause to prosecute Rivera based on those five checks, appellants would not be able to maintain a claim for malicious prosecution based on those charges.

Appellants instead focus on the two charges dismissed after a preliminary hearing before a magistrate, both of which were related to the November 12, 1986 check from the Mister Price company in the amount of $59,274.12. Appellants argue that Normeat lacked probable cause to accuse Rivera of misappropriating and forging this particular check. The record contains a cancelled check purportedly showing that on February 13, 1987, J.A.R. paid Normeat $57,495.90, the balance due for the shipment of goods to the Mister Price company, and a sworn statement from Rivera asserting that J.A.R. paid Normeat for the Mister Price shipment.

Whether and in what circumstances a plaintiff may maintain a malicious prosecution action based on one groundless accusation, when probable cause existed for one or more other accusations made concurrently, has never been addressed by the Puerto Rico Supreme Court. In other jurisdictions, courts have permitted such actions if the charges stem from different sets of facts and if all the other elements of a malicious prosecution claim are fulfilled. See, e.g., Posr v. Doherty, 944 F.2d 91, 100 (2d Cir.1991) (holding that plaintiff could maintain malicious prosecution claim based on groundless charges of resisting arrest and assault even if probable cause existed for disorderly conduct charge); Singleton v. Perry, 45 Cal.2d 489, 289 P.2d 794, 799-800 (1955) ("[P]laintiff, having shown that defendant maliciously joined an unjustified charge with a justified charge, does not have the further burden of showing that her damage was specifically attributable to the malicious prosecution...