MEMORANDUM OPINION
No. 04-09-00817-CV
Darrinton Dante DANIELS,
Appellant
v.
Dennis KELLEY and William Sutton,
Appellees
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2009-CI-17255
Honorable Karen H. Pozza, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: July 28, 2010
REVERSED AND REMANDED
Appellant Darrinton Dante Daniels appeals the trial court’s order granting summary
judgment in favor of appellees Officer William Sutton and Officer Dennis Kelley. On appeal,
Daniels contends the trial court erred in granting summary judgment in favor of Sutton and
Kelley on his claims for malicious prosecution, intentional infliction of emotional distress, and
negligence. We reverse the trial court’s judgment and remand for further proceedings consistent
with our opinion.
04-09-00817-CV
BACKGROUND
This case arises from events that occurred in the parking lot of Regal Cinemas Live Oak
18 movie theatre (“Live Oak Cinema”). The following facts are undisputed:
• Daniels owned a white Cadillac, California license plate number 5TVD281, which he
drove to the Live Oak Cinema on the date of the incident in question.
• Daniels was accompanied by an unknown female named “Kelly” as he drove through the
parking lot of the Live Oak Cinema.
• While driving the white Cadillac, Daniels pulled alongside a black Cadillac.
• Daniels exited the cinema parking lot.
• Sutton, an officer with the Schertz Police Department, and Kelley, an officer with the
Alamo Heights Police Department were licensed peace officers in the State of Texas.
Both officers were working off-duty as security guards for Live Oak Cinema on the night
of the incident.
• Sutton and Kelley wrote reports for the Live Oak Police Department regarding the
incident.
• Daniels was arrested and charged with assault on a public servant and evading arrest.
• Daniels was acquitted by a jury of assault on a public servant, and the Bexar County
District Attorney dismissed the charge of evading arrest for lack of evidence.
Beyond these facts, the parties provide different versions of the events leading up to
Daniels’s arrest and prosecution. No independent witnesses corroborated either version. Sutton
and Kelley stated in their depositions that they saw Daniels driving his white Cadillac erratically
in the cinema parking lot. According to the officers, they approached the white Cadillac when it
temporarily stopped in the fire lane near the theatre. It appeared to the officers that Daniels was
conversing with the driver of a black Cadillac, which had stopped in the opposite, adjacent lane.
As Sutton and Kelley walked toward the white Cadillac, two couples told them the white
Cadillac almost struck them as it drove through the theatre parking lot. Kelley motioned for the
black Cadillac to move on, which it did. Sutton approached the passenger-side window of the
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white Cadillac and attempted to identify the driver. Inside the passenger compartment, Sutton
saw an unknown female passenger, two tall-boy beers, and smelled alcohol on Daniels’s breath.
Sutton testified that at this point he consciously assumed the powers of an on-duty police officer.
The officers stated that after refusing to provide identification, Daniels cursed and suddenly
accelerated, causing the vehicle to pull away. According to Sutton, his left hand became
entangled where the seat belt is secured to the door frame, and he was dragged forty to fifty feet
through the parking lot. Sutton stated that after he broke free of the moving vehicle, the right
rear tire ran over his left foot. Kelley said he ran behind the white Cadillac and copied down the
license plate number.
In contrast, in Daniels’s deposition, he denied driving erratically through the parking lot
or ever communicating with Sutton and Kelley. Daniels claimed he was driving slowly through
the fire lane when the driver of a black Cadillac, approaching from the opposite direction, used
aggressive gestures and speech towards Daniels and his female companion. Daniels testified he
felt uncomfortable, so he left the parking lot at a reasonable speed. Daniels denied having
alcohol in his vehicle as well as ever seeing Sutton and Kelley, much less cursing at or dragging
Sutton.
After the alleged encounter, Sutton provided an incident report to the Live Oak Cinema.
He also provided a handwritten witness statement to the Live Oak Police Department, and later
identified Daniels from a photo array. Kelley prepared an “affidavit of fact” at the Alamo
Heights Police Department, describing the events for the Live Oak Police Department. Daniels
was subsequently arrested and charged with aggravated assault of a police officer and evading
arrest. A jury acquitted Daniels of aggravated assault of a police officer. The Bexar County
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District Attorney’s Office later filed a motion to dismiss the evading arrest charge, citing
insufficient evidence. Daniels was unable to post bail during this time and spent 573 days in jail.
Daniels brought suit against Regal Cinemas, Sutton, and Kelley, alleging malicious
prosecution, intentional infliction of emotional distress, and negligence. Sutton and Kelley filed
traditional motions for summary judgment, which the trial court granted. See TEX. R. CIV. P.
166a(c). The trial court also granted a severance as to the claims asserted against Sutton and
Kelley, rendering the summary judgment final and appealable.
In their motions for summary judgment, the officers asserted official immunity as to all
of Daniels’s claims. They also claimed they were entitled to judgment as a matter of law as to
the malicious prosecution claim, asserting there were no fact issues as to several elements of that
claim. Finally, they contended Daniels’s intentional infliction of emotional distress claim was
nothing more than a recasted version of malicious prosecution claim, and is not permitted under
Texas law. After the trial court granted the motions for summary judgment and severed his
claims against the officers, Daniels perfected this appeal.
ISSUES ON APPEAL
Daniels claims a genuine issue of material fact exists as to whether Sutton and Kelley
ever became on-duty police officers during the events in question, or acted in good faith, thereby
challenging their entitlement to the affirmative defense of official immunity. Daniels also
contends that genuine issues of material fact exist regarding his causes of action for malicious
prosecution, intentional infliction of emotional distress, and negligence.
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04-09-00817-CV
STANDARD OF REVIEW
We review a trial court’s ruling on a traditional motion for summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In reviewing the
traditional motion for summary judgment, we must indulge every reasonable inference in favor
of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts
in favor of the nonmovant. Id. In the event the summary judgment does not specify the grounds
upon which it was granted, we must affirm the judgment so long as any one of the theories
advanced in the motion is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150,
157 (Tex. 2004).
A trial court may properly grant a traditional motion for summary judgment if the movant
establishes there is no genuine issue of material fact and the movant is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911
(Tex. 1997). Once a movant has carried its burden, the burden shifts to the nonmovant to raise a
material fact issue precluding summary judgment. Va. Indonesia Co. v. Harris County Appraisal
Dist., 910 S.W.2d 905, 907 (Tex. 1995). A defendant is entitled to summary judgment if the
evidence disproves, as a matter of law, at least one element of plaintiff’s cause of action. Lear v.
Siegler, 819 S.W.2d 470, 471 (Tex. 1991). To obtain summary judgment on the affirmative
defense of official immunity, a governmental employee must conclusively prove each element of
the defense. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000).
OFFICIAL IMMUNITY
Sutton and Kelley contended in their motions for summary judgment that they are
entitled to judgment as a matter of law based on official immunity. More specifically, they
asserted official immunity entitled them to judgment because at the time of the alleged incident
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they were police officers, acting in good faith, and performing discretionary duties in the course
and scope of their authority. A governmental employee is entitled to official immunity for (1)
the performance of discretionary duties (2) that are within the scope of the employee’s authority
(3) provided that the employee acts in good faith. Telthorster v. Tennell, 92 S.W.3d 457, 461
(Tex. 2002). To obtain summary judgment on the affirmative defense of official immunity,
Sutton and Kelley must conclusively prove each element of the defense. See Univ. of Houston,
38 S.W.3d at 580.
Official immunity is an affirmative defense that shields governmental employees from
personal liability so that they may vigorously perform their official duties. Telthorster, 92
S.W.3d at 461-62. Even if Sutton and Kelley established they were performing discretionary
duties as police officers in the course and scope of their employment, they would still not be
entitled to judgment as a matter of law based on official immunity unless they proved they were
acting in good faith. To establish the element of good faith as a matter of law, Sutton and Kelley
had to prove that reasonably prudent officers, under the same or similar circumstances, could
have believed their actions were justified. See City of Lancaster v. Chambers, 883 S.W.2d 650,
656 (Tex. 1994). This test for good faith in the context of official immunity cases is one of
objective legal reasonableness, without regard to whether the government official involved acted
with subjective good faith. Id.; Vela v. Rocha, 52 S.W.3d 398, 404 (Tex. App.—Corpus Christi
2001, no pet.).
Good faith may be established by a governmental employee’s own testimony. Vela, 52
S.W.3d at 405. And here, Kelley testified that based on his seven-years experience as a training
instructor for the City of Alamo Heights Police Department, his actions and the actions of Sutton
were reasonable and within the acceptable standard of care for peace officers in Texas.
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However, Kelley’s opinion as to whether he and Sutton acted in good faith with regard to the
incident upon which this case is based was based on his subjective view of the facts. These facts
were disputed by summary judgment evidence produced by Daniels. In a case discussing
whether an officer established good faith as a matter of law, this court has held that where the
underlying facts are in dispute, we need not even consider whether the officer’s evidence
conclusively established good faith because the disputed fact issues preclude summary judgment.
Saenz v. Gonzalez, 94 S.W.3d 659, 663 (Tex. App.—San Antonio 2002, pet denied) (citing City
of San Antonio v. Garcia, 975 S.W.2d 756, 758 (Tex. App.—San Antonio 1998, no pet.);
Martinez v. Mikel, 960 S.W.2d 158, 160 (Tex. App.—San Antonio 1997, no pet.)). Given that
the underlying facts in this case are disputed, we hold Sutton and Kelley failed to establish the
element of good faith as a matter of law, and they were therefore not entitled to summary
judgment based on the affirmative defense of official immunity. See Sci. Spectrum, Inc., 941
S.W.2d at 911.
MALICIOUS PROSECUTION
Sutton and Kelley also contended no genuine issue of material fact existed concerning
several elements of Daniels’s malicious prosecution claim, and they were therefore entitled to
judgment as a matter of law on that claim. A plaintiff in a malicious prosecution case must
establish (1) the commencement of a criminal prosecution against the plaintiff; (2) causation
(initiation or procurement) of action by the defendant; (3) termination of the prosecution in the
plaintiff’s favor; (4) 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). In their motions, Sutton and Kelley claimed there was no
genuine issue of material fact with regard to Daniel’s innocence, the absence of probable cause,
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and malice. Sutton and Kelley also challenged the procurement of criminal prosecution against
Daniels by insisting that his indictment by a Bexar County Grand Jury “broke the chain of
causation.”
a. Causation
A person procures a criminal prosecution if his actions were enough to cause the
prosecution, and but for his actions the prosecution would not have occurred. Browning-Ferris
Industries, Inc. v. Leick, 881 S.W.2d 288, 293 (Tex. 1994); King v. Graham, 126 S.W.3d 75, 77
(Tex. 2003). A criminal prosecution may be procured by more than one person. Id. The
plaintiff has the burden of proving that the decision would not have been made but for the false
information supplied by the defendant. Id. In Browning-Ferris Indus., Inc. the supreme court
held:
A person does not procure a criminal prosecution when the decision whether to prosecute
is left to the discretion of another, including a law enforcement official or the grand jury,
unless the person provides information which he knows is false.
881 S.W. at 299. Sutton and Kelley contend a Bexar County Grand Jury’s indictment of Daniels
interrupted the causation necessary to establish they procured a criminal prosecution. However,
as previously noted, Daniels provided summary judgment evidence that he never even
encountered Sutton or Kelley. This evidence creates a fact issue as to whether Sutton and Kelley
provided false information to the Live Oak Police Department and the Bexar County District
Attorney’s Office, which resulted in the prosecution of Daniels. The Texas Supreme Court
recently revisited the exception acknowledged in Browning-Ferris Indus., stating that “a person
who provides false information cannot complain if a prosecutor acts on it; he cannot be heard to
contend that the prosecutor should have known better.” King, 126 S.W.3d at 78. Accordingly,
Sutton and Kelley failed to negate the causation element of Daniel’s malicious prosecution
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claim, and therefore, they were not entitled to summary judgment. See Sci. Spectrum, Inc., 941
S.W. at 911; Va. Indonesia Co., 910 S.W.2d at 907.
b. Innocence
In response to Sutton’s and Kelley’s motion for summary judgment, Daniels presented
summary judgment evidence showing he was acquitted by a jury on the charge of assault on a
public servant, and the remaining charge against him, evading arrest, was dismissed on the
State’s motion based on insufficient evidence. This evidence was undisputed. Moreover,
Daniels presented evidence that he never engaged in any criminal act or suspicious activity. We
hold this evidence is sufficient to raise a fact issue on the innocence element of the malicious
prosecution, precluding summary judgment on this ground. See Va. Indonesia Co., 910 S.W.2d
at 907; cf. Delese v. Albertson’s Inc., 83 S.W.3d 827, 831-32 (Tex. App.—Texarkana 2002, no
pet.) (holding that in malicious prosecution action, guilty plea precluded relitigation of innocence
element).
c. Probable Cause
“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.” Richey v. Brookshire Grocery Co.,
952 S.W.2d 515, 517 (Tex. 1997); see Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 792-
93 (Tex. 2006). Malicious prosecution actions involve a delicate balance between society’s
interest that crimes be reported and the individual’s interest in recovering from unjustified
criminal prosecution. Richey, 952 S.W.2d at 517. Accordingly, there is an initial presumption in
malicious prosecution cases that the defendant had probable cause to initiate proceedings. Id. A
plaintiff must then produce evidence that the motives, grounds, beliefs and other evidence upon
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which the defendant acted did not constitute probable cause. Id. at 518. When the facts
underlying the defendant’s decision to prosecute are disputed, the trier of fact must weigh
evidence and resolve conflicts to determine if probable cause exists, as a mixed question of law
and fact. Id. In a motion for summary judgment, the issue for the court is whether the
undisputed facts underlying the decision to prosecute establish probable cause as a matter of law.
Summerville v. Allied Barton Sec. Servs., 248 S.W.3d 333, 338 (Tex. App.—Houston [1st Dist.]
2007, no pet.).
Here, Daniels has at least raised a fact issue as to whether Sutton and Kelley had probable
cause to initiate criminal proceedings against him for assault on a public servant and evading
arrest. As previously noted, Daniels produced evidence that he never drove erratically, never
had beer in his vehicle, never cursed at Sutton, and never dragged Sutton through the parking lot.
In his deposition, Daniels denied any encounter with the officers, thereby creating a fact issue on
probable cause. See Va. Indonesia Co., 910 S.W.2d at 907.
This case is distinguishable from other summary judgment cases where the undisputed
facts established as a matter of law that the defendant had probable cause before initiating
criminal prosecution against the plaintiff. See Summerville, 248 S.W.3d at 339 (plaintiff never
disputed entering area of mall without effective consent, which established probable cause for
criminal trespass); Ogg v. Dillard’s Inc., 239 S.W.3d 409, 419 (Tex. App.—Dallas 2007, pet
denied) (plaintiff never denied Dillard’s had reasonable suspicion to investigate her for credit
card fraud, insisting instead that Dillard’s security guard served in private capacity only);
Gunnels v. City of Brownfield, 153 S.W.3d 452, 459 (Tex. App.—Amarillo 2003, pet. denied)
(plaintiff who posted flyers in violation of handbill ordinance never denied her actions
constituted probable cause); Richey, 952 S.W.2d at 518-19 (jury verdict in favor of plaintiff
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overturned because plaintiff never denied walking out of grocery store without paying for
cigarettes in his pocket which created probable cause for store to believe he was shoplifting).
Here, Daniels provided summary judgment evidence challenging all the facts that would
establish probable cause for a prosecution based on the offenses of assault on a public servant
and evading arrest, precluding summary judgment on this ground. See Sci. Spectrum, Inc., 941
S.W. at 911; Va. Indonesia Co., 910 S.W.2d at 907.
d. Malice
Malice is defined as ill will, evil motive, gross indifference, or reckless disregard of the
rights of others. Thrift v. Hubbard, 974 S.W.2d 70, 80 (Tex. App.—San Antonio 1998, pet.
denied). Malice may be established by direct or circumstantial evidence and may be inferred
from lack of probable cause. Id. Although probable cause cannot be inferred from proof of
malice, malice may be inferred from a lack of probable cause. Gunnels, 153 S.W.3d at 458.
Daniels produced some evidence about whether Sutton and Kelley lied about the facts that might
have created probable cause to believe Daniels assaulted a public servant and evaded arrest. In
the absence of any criminal act by Daniels, Sutton and Kelley’s decision to report Daniels to the
authorities could have been based on ill will, evil motives, gross indifference, or made in reckless
disregard of Daniels’s rights. Daniels also provided expert testimony in an attempt to show
Sutton could never have been dragged as he described, and therefore he must have fabricated the
event. Accordingly, Sutton and Kelley were not entitled to summary judgment on the ground
there was no evidence of malice. See Sci. Spectrum, Inc., 941 S.W. at 911; Va. Indonesia Co.,
910 S.W.2d at 907.
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INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Sutton and Kelley assert Daniels’s claim for intentional infliction of emotional distress is
nothing more than a revamped claim for malicious prosecution. Sutton and Kelley quote the
supreme court in describing the tort of intentional infliction of emotional distress as a “gap filler
tort” available when “the victim has no other recognized theory of redress.” Hoffman-LeRoche,
Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). Accordingly, the officers claim that
because Daniels has other recognizable causes of action, he may not bring a claim for intentional
infliction for emotional distress as a matter of law. We disagree. The supreme court recently
held that knowingly providing false information to police so that an innocent person is
prosecuted is extreme and outrageous behavior that will support a claim for intentional infliction
of emotional distress. Suberu, 216 S.W.3d at 796. In fact, that is exactly what the Suberu
plaintiff did—brought a suit for malicious prosecution and intentional infliction of emotional
distress. See id. at 791-97. Sutton and Kelley have not cited any authority suggesting that by
bringing a malicious prosecution claim a plaintiff is precluded as a matter of law from bringing
an intentional infliction of emotional distress claim, and Suberu belies such a contention.
Therefore, Sutton and Kelley were not entitled to summary judgment as to Daniels’ claim for
intentional infliction of emotional distress. See id.
NEGLIGENCE
Sutton and Kelley contended they were entitled to judgment as a matter of law on
Daniels’s negligence claim based on the affirmative defense of official immunity. As previously
stated, issues of fact preclude Sutton and Kelley from obtaining judgment as a matter of law on
the defense of official immunity because only on-duty police officers performing official duties
are entitled to official immunity, and Daniels presented summary judgment evidence that he
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never acted in such a way so as to permit the officers to step into the role of a governmental
employee. See Telthorster, 92 S.W.3d at 461-62; see also Va. Indonesia Co., 910 S.W.2d at 907.
We therefore hold the trial court erred in granting summary judgment in favor of Sutton and
Kelley as to Daniels’s negligence claim. See Sci. Spectrum, Inc., 941 S.W. at 911; Va. Indonesia
Co., 910 S.W.2d at 907.
CONCLUSION
Having determined Sutton and Kelley were not entitled to summary judgment based on
the affirmative defense of official immunity, that genuine issues of material fact exist concerning
Daniels’s claim for malicious prosecution, and Daniels was entitled to assert an intentional
infliction of emotion distress claim, we hold the trial court erred in granting Sutton’s and
Kelley’s motions for summary judgment. We reverse the trial court’s judgment and remand this
matter for further proceedings consistent with this court’s opinion.
Marialyn Barnard, Justice
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Darrinton Dante Daniels v. Dennis Kelley and William Sutton
Combined Opinion