Opinion issued June 10, 2004
In The
Court of Appeals
For The
First District of Texas
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NO. 01-03-00399-CV
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BERWIN MCCURDY JR., Appellant
V.
ROWAN DRILLING COMPANY, INC. and EDWARD THIELE, Appellees
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2001-28805
MEMORANDUM OPINION
Appellant, Berwin McCurdy Jr., appeals from a take-nothing judgment rendered upon the summary judgment motion of appellees, Rowan Drilling Company, Inc. (“RDC”) and Edward Thiele (together, “the RDC parties”). We determine whether genuine issues of material fact precluded summary judgment for the RDC parties on McCurdy’s claim for malicious prosecution. We affirm.
Background
In January 1996, Texas Ranger Matt Andrews met with Wayne Wicks, an investigator whom RDC had hired to perform an audit at RDC’s yard in Odessa, Texas; appellee Edward Thiele, who was RDC’s Chief Financial Officer; and Bill Person, who was RDC’s Vice-President, about investigating the Odessa yard. The reason for requesting the Texas Rangers’ investigation was that Wicks’s audit had uncovered suspected irregularities at, and significant amounts of property missing from, the Odessa yard. Wicks’s initial audit indicated that retired drilling superintendent, Ernest Doyle Robinson, and a former vice-president and current tool pusher, Paul Warren Hopkins, might have sold or stolen a large amount of the missing property. McCurdy was one of the workers at RDC’s Odessa yard when Robinson and Hopkins were there.
The Texas Rangers conducted an approximately 18-month-long investigation, toward the end of which they conferred with the Ector County District Attorney. A grand jury eventually indicted several individuals, including Robinson, Hopkins, and McCurdy, for offenses including misapplication of fiduciary property, theft of property in varying amounts, and engaging in organized crime. McCurdy, along with four others, was indicted for organized criminal activity in the theft of paint, lumber, a welding machine, and certain bolts, nuts, and washers. The indictments were later dismissed because Robinson, whom the Assistant District Attorney considered to be “pivotal” and “necessary” to the cases, had died.
In June 2001, McCurdy sued the RDC parties for malicious prosecution. The RDC parties moved jointly for both traditional and no-evidence summary judgment. The trial court granted their motion without specifying grounds or indicating whether the motion was granted on traditional or no-evidence grounds and dismissed McCurdy’s claims with prejudice. McCurdy moved for new trial, which motion was denied by operation of law.
Standard of Review and Burden of Proof
Traditional summary judgment under Rule of Civil Procedure 166a(c) is proper only when a movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); see Tex. R. Civ. P. 166a(c). A defendant is entitled to a traditional summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff’s causes of action or if the evidence conclusively establishes all elements of an affirmative defense. Johnson, 891 S.W.2d at 644.
A party may move for a “no-evidence” summary judgment under Rule of Civil Procedure 166a(i) “if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.” Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.); see Tex. R. Civ. P. 166a(i). A no-evidence summary judgment is, therefore, like a directed verdict. See Flameout Design, 994 S.W.2d at 834. “The trial court must grant the motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements.” Id.
In reviewing either type of summary judgment, we indulge every reasonable inference in favor of the nonmovant, resolve any doubts in its favor, and take as true all evidence favorable to it. Johnson, 891 S.W.2d at 644; Flameout Design, 994 S.W.2d at 834. When, as here, an order granting summary judgment does not specify the grounds upon which the trial court ruled, we must affirm to the extent that any of the summary judgment grounds is meritorious. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
Malicious Prosecution
In his sole issue, McCurdy argues that the trial court erred in rendering summary judgment for the RDC parties on his claim for malicious prosecution because genuine issues of material fact existed.
A. The Cause of Action
The elements of a malicious-prosecution claim are as follows:
1.the commencement of a criminal prosecution against the plaintiff,
2.initiation or procurement (causation) of the action by the defendant,
3.termination of the prosecution in the plaintiff’s favor,
4.the plaintiff’s innocence,
5.the absence of probable cause for the proceedings,
6.malice in filing the charge, and
7.damage to the plaintiff.
Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997).
The RDC parties’ summary judgment motion attacked only the elements of causation, probable cause, and malice. Specifically, they asserted that (1) they did not initiate or procure the criminal investigation against McCurdy, (2) probable cause existed to support McCurdy’s indictment, and (3) the existence of probable cause negated the malice element of McCurdy’s claim.
B. Probable Cause
1. The Summary Judgment Grounds
The RDC parties moved for rule 166a(c) summary judgment on the ground that probable cause existed. Specifically, they argued, among other things, that the objective evidence available to Assistant District Attorney Cadra fully supported the decision to charge McCurdy. The RDC parties also moved for rule 166a(i) summary judgment on the ground that “McCurdy has produced no evidence negating the existence of probable cause against him.”
2. The Law
“Malicious prosecution actions involve a delicate balance between society’s interest in the efficient enforcement of the criminal law and the individual’s interest in freedom from unjustifiable and oppressive criminal prosecution.” Id. Accordingly, in these types of cases, “there is little room for error in applying the law” because “even a small departure from the exact prerequisites for liability may threaten the delicate balance” noted above. Browning-Ferris v. Lieck, 881 S.W.2d 288, 291 (Tex. 1994). “To encourage reporting of crimes, and to ensure that citizens who do so in good faith will not suffer for their actions, plaintiffs must present clear, positive, and satisfactory proof in order to succeed.” Digby v. Tex. Bank, 943 S.W.2d 914, 919 (Tex. App.—El Paso 1997, writ denied).
Because of the “delicate balance” involved in malicious-prosecution cases, “there is an initial presumption . . . that the defendant acted reasonably and in good faith and had probable cause to initiate the proceedings.” Richey, 952 S.W.2d at 517. “This presumption disappears once a plaintiff produces evidence that the motives, grounds, beliefs, and other evidence upon which the defendant acted did not constitute probable cause.” Id. at 518. “The burden then shifts to the defendant to offer proof of probable cause.” Id.
“The probable-cause determination asks 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.” Id. at 517. Probable cause is a mixed question of law and fact if the underlying facts are disputed; the determination is a question of law if there is no factual dispute. Id. at 518. “Texas courts have consistently held that probable cause should be evaluated from the perspective of the person or entity who made the report to law enforcement authorities, at the time that the report was made. After-the-fact judgments made by third parties cannot serve to confirm or deny the existence of probable cause.” Digby, 943 S.W.2d at 920.
3. Discussion of McCurdy’s Appellate Challenges
We need consider only the portion of the RDC parties’ summary judgment motion that asserted that McCurdy could produce no evidence of the lack of probable cause.
McCurdy first argues that a fact issue concerning lack of probable cause exists because the RDC parties “did not disclose very much information at all regarding McCurdy, but rather stood by and watched as he was wrongly arrested.” The information that McCurdy claims that the RDC parties failed to disclose to law enforcement personnel was the “lack of inventory control at [RDC],” which was allegedly a “material omission.”
By not having expressly raised it in his summary judgment responses, McCurdy waived any argument that probable cause was lacking because the RDC parties withheld material information from or did not disclose all material facts to the authorities. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341, 343 (Tex. 1993) (requiring that non-movant present issues defeating summary judgment in answer or response, with sole exception’s being that non-movant may always argue on appeal that movant’s grounds were legally insufficient to support summary judgment). Even if this appellate argument could somehow be implied in McCurdy’s summary judgment responses, we note that whether a malicious-prosecution defendant did not disclose all known material facts in good faith to law enforcement officials has no bearing on probable cause. See Richey, 952 S.W.2d at 519. Rather, these matters are relevant to the malice and causation elements of a malicious-prosecution cause of action. See id. Therefore, such evidence would be no evidence of the lack of probable cause. Additionally, we note that McCurdy’s own summary judgment response below relied on evidence showing that Assistant District Attorney Cadra knew of the lack of inventory control at RDC, and McCurdy does not point, in his appellate brief’s probable-cause discussion, to any summary judgment evidence showing that that information was ever hidden from Cadra.
McCurdy also argues that the RDC parties made material misrepresentations to law enforcement personnel, raising a fact issue on lack of probable cause. Specifically, McCurdy claims that the RDC parties misled prosecutors by claiming that an “executive privilege” (discussed below) did not exist and by making “significant misrepresentations to the Texas Rangers.” Again, by not having raised it in his summary judgment responses, McCurdy waived any argument that the RDC parties’ material misrepresentations to prosecutors or to the Texas Rangers demonstrated a lack of probable cause. See McConnell, 858 S.W.2d at 341, 343. Additionally, even if we could somehow construe McCurdy’s summary judgment pleadings to include this argument, we note that whether the RDC parties made a material misrepresentation to law enforcement personnel, like whether they failed in good faith to disclose all material facts to the authorities, has no bearing on probable cause. See Richey, 952 S.W.2d at 519. Moreover, with respect to his claim that his deposition testimony raised a fact issue concerning the RDC parties’ “significant misrepresentations to the Texas Rangers,” McCurdy provides no record references in support within his brief’s probable-cause discussion, despite the fact that his deposition was approximately 133 pages long. We also note that the few pages of his deposition to which McCurdy cited in his summary judgment responses do not support his appellate claim of misrepresentation, either.
McCurdy next argues, in a footnote in his brief, that deposition testimony showed the existence of what he describes as an “executive privilege,” which he claims was an informal, unwritten policy at RDC allowing supervisors like Hopkins to sell themselves RDC property with only informal, verbal authorization. McCurdy argues that, because executive privilege would have allowed Hopkins to buy the property that McCurdy transported to Colorado, McCurdy would not necessarily have known that Hopkins was stealing and thus McCurdy’s guilt cannot be assumed simply because he helped move this property. McCurdy’s argument concerns his state of mind. However, RDC’s failure to investigate further into McCurdy’s mental state would not preclude probable cause if all of the objective elements of a crime reasonably appeared to have been completed. See Richey, 952 S.W.2d at 518. Therefore, this evidence is no evidence of the lack of probable cause.
Finally, McCurdy asserts that the Texas Rangers’ reports mention him “only a few times,” instead focusing on Robinson and Hopkins, and that, after having contacted McCurdy once, the investigators did not contact him again for about three months and then did not interview him for another month still. McCurdy comments, “This does not sound like the hot pursuit of a hardened criminal,” and he argues that the “[l]ack of references to [McCurdy] by interviewees and lack of references to him in documents collected by the law enforcement officials, raise serious doubts as to what information Rowan executives could have possibly had as early as the year 1996 [when] they contacted the Texas Rangers.”
Once again, McCurdy did not make these arguments below and has thus waived them. See McConnell, 858 S.W.2d at 341, 343. Even had the arguments been preserved, we would nonetheless conclude that they are without merit and that the evidence on which McCurdy relies in support is no evidence of the lack of probable cause. First, the Texas Rangers’ reports expressly mentioned McCurdy or his participation in the Colorado trip 13 times, even though Robinson and Hopkins appear to have been the investigation’s main targets. Contrary to McCurdy’s view, this is not a “lack” of references to him. Accordingly, one cannot reasonably infer from the reports’ discussion of McCurdy that, as he claims, there were “doubts as to what information Rowan executives could have possibly had as early as the year 1996 they contacted the Texas Rangers.”
On appeal, McCurdy points to no evidence other than that discussed above to support his argument that the RDC parties lacked probable cause to report him to the Texas Rangers.
Accordingly, we hold that the trial court did not err if it rendered summary judgment on the ground that, as a matter of law, probable cause was not lacking. Because of our disposition of this issue, we need not reach McCurdy’s remaining arguments concerning the other elements of his claim.
We overrule McCurdy’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Hanks, and Higley.