Zamora v. Creamland Dairies, Inc.
| Decision Date | 01 December 1987 |
| Docket Number | Nos. 8977,9014 and 9774,s. 8977 |
| Parties | Adolfo E. ZAMORA and Adeline C. Zamora, Plaintiffs-Appellants, v. CREAMLAND DAIRIES, INC., a New Mexico corporation, and Professional Security Service, Inc., et al., Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
Plaintiffs Adolfo E. Zamora (Zamora) and Adeline C. Zamora (Zamora's wife) appeal the granting of summary judgment to all defendants. We hold summary judgment was proper and affirm the trial court.
Two of these appeals arise from a complaint filed against Creamland Dairies, Inc. (Creamland) and the other is from a claim against Professional Security Service, Inc. (PSS) and Phillip A. Caristo (Caristo) arising from the same facts.
Zamora filed suit against Creamland alleging (1) malicious prosecution; (2) abuse of process; and (3) negligence. Creamland responded with a motion for summary judgment. The trial court granted the motion on the claim of malicious prosecution and took the motion under advisement on the other claims. Zamora appealed this judgment in Cause No. 8977. Subsequently, summary judgment was entered on all counts. This was also appealed and became Cause No. 9014.
Meanwhile, Zamora filed a complaint against PSS and Caristo (the PSS suit), alleging (1) malicious prosecution; (2) abuse of process; (3) false imprisonment; (4) slander and defamation; (5) negligence; (6) negligent hiring; and (7) negligent infliction of emotional distress. PSS and Caristo moved for summary judgment. After a hearing on the motion, Zamora submitted additional depositions to the trial court.
In the PSS suit, after the trial court wrote to the parties proposing to grant summary judgment to defendants, Zamora filed a motion to reconsider the proposed disposition, citing to the additional depositions he had submitted. The trial court issued a second letter denying the motion to reconsider and summary judgment was entered for defendants. Appeal from this judgment is Cause No. 9774. We granted Zamora's motions to consolidate the three appeals.
In February 1983, Creamland received information that its milk was being sold out of a private residence in Albuquerque without Creamland's knowledge or any authorized wholesale milk deliveries having been made. Creamland's manager, Dale Finch (Finch), contacted PSS, a private investigation firm, and requested an investigation of the facts surrounding the alleged sales. Caristo undertook the investigation for PSS.
Caristo conducted surveillance of the house from which the sales were allegedly made and identified its owners as Herman and Ruby Sanchez. Caristo observed various individuals apparently purchasing milk from the Sanchez residence at different times. He also observed Zamora, who was a route driver for Creamland, loading ten cases of Creamland milk into a pickup truck driven by Ruby Sanchez in a lot behind Eddie's Market. He further identified Zamora as the driver that unloaded cases of milk in the driveway of the Sanchez residence. Caristo prepared a report of his investigation, accompanied by photographs implicating Zamora. Meanwhile, Finch was also told by another Creamland employee that Zamora had been improperly disposing of Creamland products.
Finch confronted Zamora with these allegations and asked him to take a stress analyzer test. The test indicated Zamora was not being truthful. Finch then asked Caristo to turn over the investigation results to law enforcement officials.
Caristo contacted Santos Baca (Baca), Chief of Investigations for the Second Judicial District Attorney's Office. Baca informed Caristo that, before the district attorney's office could act, Caristo would have to report the matter to the Albuquerque Police Department. Caristo did so by filing an "Offense and Incident Report" with the police. At Baca's request, Caristo prepared a summary of the investigation he had done for PSS and submitted it to Baca. Baca then conducted his own investigation, during which he took statements from several persons, including PSS employees and several employees of Creamland.
Based on Baca's investigation, assistant district attorney Joe Lally (Lally) decided to bring the case before the grand jury. Indictments were returned against Zamora and against Herman and Ruby Sanchez for embezzlement, or in the alternative, larceny, and for conspiracy to commit embezzlement, or in the alternative, conspiracy to commit larceny. Herman and Ruby Sanchez pled guilty to conspiracy to commit larceny and the remainder of the charges against them were dismissed. Zamora was tried by a jury. At the close of the state's case, the trial court directed a verdict in Zamora's favor. Delivery of Caristo's report to the district attorney's office and Zamora's indictment and acquittal formed the basis for his claims of malicious prosecution against all defendants.
We discuss: (1) the preliminary issue of whether depositions filed after the hearing on the motion for summary judgment may be considered on appeal; (2) whether the trial court erred in granting summary judgment to defendants on the malicious prosecution claims; and (3) generally, the remaining claims in Zamora's complaints.
After the hearing on summary judgment, Zamora submitted additional depositions to the trial court, apparently in anticipation of the case going to trial. These depositions were not made part of the record proper on appeal, nor is there any indication they were ever admitted as exhibits in the trial court. They were, however, sent to this court with the record on appeal. It is not clear whether the trial court considered this evidence before granting summary judgment to defendants. It may be that because the depositions were not before the trial court at the time of the hearing on summary judgment, they should not be considered by this court on appeal. See Schmidt v. St. Joseph's Hosp., 105 N.M. 681, 736 P.2d 135 (Ct.App.1987). However, we need not decide this issue, because we have reviewed the depositions and conclude that, in any event, they do not establish the existence of a genuine issue of material fact and would not alter this appeal's disposition.
Whether the Trial Court Erred in Granting Summary Judgment on the Malicious Prosecution Claims.
Under this issue, Zamora raises identical contentions against all defendants:
(1) Whether affidavits submitted by defendants in support of their motions for summary judgment should have been stricken in whole or in part;
(2) Whether defendants made a prima facie showing of entitlement to summary judgment; and
(3) If defendants did make a prima facie showing, whether it was overcome by Zamora's proof that there existed genuine issues of material fact.
We discuss each of these contentions separately.
(1) Whether Defendants' Affidavits Should Have Been Stricken
SCRA 1986, 1-056(E) states in part: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Zamora argues the affidavits filed by Finch should be stricken because they are based on hearsay. Finch testified on matters that he had been told during the course of his investigation by an informant, by employees of Creamland, and by Caristo. However, Zamora overlooks the fact that these statements were not introduced to prove the truth of the matter asserted, that is, that Zamora had engaged in the conduct reported to Finch. Rather, they were introduced to show that Finch had probable cause to believe Zamora had committed criminal acts and therefore acted reasonably in directing Caristo to report the investigation results to authorities. Finch's statements, therefore, were not hearsay. See SCRA 1986, 11-801(C). Further, even hearsay evidence may be used to establish probable cause. Seelig v. Harvard Coop. Soc'y, 355 Mass. 532, 246 N.E.2d 642 (1969). See State v. Deltenre, 77 N.M. 497, 424 P.2d 782 (1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967).
Zamora also contends Caristo's affidavit does not meet the requirements of Rule 1-056(E). He objects to Caristo's statements that he acted honestly and in good faith, that he had no ulterior motive, and that he believed he had probable cause to report the matter. Zamora alleges these claims are self-serving and conclusory and lack a factual base. However, the affidavit contains numerous facts upon which Caristo based his good faith belief that Zamora was engaged in criminal activity.
Zamora next argues that the affidavits of Baca and Lally should be stricken because they rendered expert opinion in that they testified based on their training and experience. We disagree. Neither Baca nor Lally was qualified as an expert witness in the trial court. Besides, the issue was not whether they believed Caristo and Creamland had probable cause to make a report to them, but whether, based upon the information given to them and their own independent investigation, they made an independent decision to submit the case to the grand jury.
We conclude the trial court properly considered the affidavits submitted by defendants in support of their respective motions for summary judgment.
(2) Whether Defendants Made a Prima Facie Showing That They Were Entitled to Summary Judgment
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