Lisa and Roger French v. Marco French, G.T. Morton, and Judy McCollum
385 S.W.3d 61
Tex. App.2012Background
- Frenches sued Judy McCollum, G.T. Morton, and Marco French for malicious prosecution and defamation after Lisa French was arrested for third-degree felony theft and later no-billed by a grand jury.
- Trial court granted summary judgment for defendants on traditional and no-evidence grounds; Frenches appeal the grant.
- Lisa’s arrest stemmed from McCollums’ report to law enforcement and Morton’s involvement; Lisa claimed false statements and lack of probable cause.
- Court analyzes probable-cause presumption, Lisa’s rebuttal evidence, and whether Judy and Morton procured or caused the prosecution.
- Court also addresses defamation claims against Judy and Morton, including fault, falsity, and negligence, and whether privilege applies.
- Procedural posture: appeal from summary judgment; court’s review is de novo on the probable-cause elements and related claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable-cause element in Lisa’s malicious-prosecution claim | Frenches argue Lisa raised fact issue rebutting presumption of probable cause | Appellees contend probable cause established by officer/judge findings | Probable cause issue triable as to Judy; material disputes exist |
| Malice element and Lisa's evidence of malice | Lisa contends Judy’s and Morton’s motives show malice | Appellees argue absence of prob. cause precludes malice; Morton's statements are conclusory | Malice issue exists as to Judy; Morton’s acts insufficient for malice |
| Initiation or procurement of prosecution | Judy/Morton allegedly procured by providing false information; Lisa raises genuine issue | Procurement requires decisive influence by the defendant; evidence insufficient for Morton | Judy’s procurement issue creates fact question; Morton lacks sufficient evidence |
| Favorable termination and innocence | No-bill and innocence asserted through Lisa’s affidavit and CPAs’ analysis | No-bill not necessarily required to show termination in plaintiff's favor | Genuine issue on innocence; termination in favor found for some defendants, but not all |
| Defamation negligence and factual falsity | Statements to Lt. Westmoreland about Lisa’s theft were false and negligent | Defendants argue no malice and privilege defenses, or insufficient faults shown | As to Judy, genuine issue on negligence; as to Morton, no factual support for negligence |
Key Cases Cited
- Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788 (Tex. 2006) (probable-cause presumption and burden-shifting in malicious prosecution)
- Richey v. Brookshire Grocery Co., 952 S.W.2d 515 (Tex. 1997) (probable cause as mixed question of law and fact; defendant’s beliefs before proceedings)
- All Am. Tel., Inc. v. USLD Commun’s., Inc., 291 S.W.3d 518 (Tex. App.—Fort Worth 2009) (malice and fault in defamation; standard for nonmedia defamation)
- Davis v. City of San Antonio, 752 S.W.2d 518 (Tex. 1988) (termination in plaintiff’s favor not strictly required; not guilty verdict not necessary)
- Lieck v. Browning-Ferris Indus., 881 S.W.2d 288 (Tex. 1994) (initiation—formal charge concept and reliance on prosecutor’s discretion)
- Tranum v. Broadway, 283 S.W.3d 403 (Tex. App.—Waco 2008) (no-billed grand jury recognized as commencing prosecution (plurality))