*1 by Tiffany and owned “Leaves” necklace title to the establishes its dence thus most, affi- in At Grabhorn’s stolen 1994. amethyst “Leaves” unique Schlumberger replicate to possible it is 1994; davit establishes necklace; identity in and its theft its design, its overall in terms of the necklace in this case. the necklace at issue as Nowhere materials, workmanship. motion, TDI Tiffany’s to response words, that, Joseph’s in challenge does he vice presi- the affidavit of its submitted virtually impossible even it would be Grabhorn, dent, lapidary Ivan Frederick another necklace Tiffany & Co. to create thirty years experience. than of with more accurately photo- match the “so that would in at issue admits the necklace Grabhorn necklace], especially graphs the stolen [of very to the Schlumber- this case is similar amethysts, placement shape of necklace, although ger amethyst “Leaves” amethysts.” on the of thе diamonds amethyst drop; ameth- it has one more Tiffany neck- type used on ysts available; com- readily are customers
lace jewelers jewelry
monly replicate ask to catalogs or or worn magazines
seen possible to person;
another it would amethyst
replicate Schlumberger necklace; possible it “Leaves” Holley, KING, E. Donald Allan R. amethyst drops on the identify the Barker, Appellants, F. Edward Schlumberger amethyst “Leaves” necklace Tiffany’s 1988-89 photograph from the v. microscopic photographs, catalog; without Philip and Thomas E. GRAHAM to tell if a diamond is a impossible
it is Wren, Appellees and Michael Schlumberger amethyst diamond Cross-Appellants, necklace; jewelers “Leaves” know not v. and it marking proof origin trust a as sent was for that reason the necklace was Berlanga, Dorsey Hugo Bonner J. evaluation; Tiffany’s for it is not diffi- Cross-Appellees. amethysts holes in without cult to drill No. 04-98-00464-CV. holes; produce” tell-tale white “difficult to “unique only not mean achievable does Texas, Appeals Court Depart- by Tiffany Schlumberger or its Antonio. San ment”; jewelers making the capable of Feb. many major cit- necklace can be found Antonio; diamond, ies, including pavé San motifs, connections
leaf and articulated common; on the clasp neither the
are amethysts caps nor the on the
necklace ameth- unique; Schlumberger
are and the reproduced for
yst “Leaves” could be
$21,000 plus labor. evidence, I would affirm the
Given this conclu-
summary Tiffany & Co. judgment. at issue is
sively established the necklace amethyst Schlumberger
the one-of-a-kind *6 hunt on land leased Sundermann, booked hunters to Corpus Deborah R. Kenedy Ranch. Sarita Safaris Small, Antonio, from the Christi, for Jeffrey D. San Kenedy hunting lease after the lost its Appellant. other uses of pursue decided to ranch Mann, Peeler, Cartwright E. & Douglas lost, hunting lease was land. Because Hewins, Mann, P.C., & Jo Ellen Canales Holley, King, and dissolved Sarita Safaris Simonson, Christi, Ri- P.C., Darby Corpus Barker, Safari Dorsey decided to form and Riley, Anto- ley, Darby Law Office of San (“SSI”). SSI, based Specialities, Inc. Christi, nio, for Dorsey, Corpus Bonner J. Christi, to book Corpus was established Appellee. hunting trips “full-service” hunters ac- hunting guides and nice complete with HARDBERGER, Sitting: PHIL Chief commodations. Justice, Justice, RICKHOFF, TOM Justice, LÓPEZ, ALMA L. CATHERINE only had Although the shareholders ex- GREEN, STONE, Justice, W. PAUL Texas, perience booking hunts South Justice, Justice, DUNCAN, and SARAH hunting trips to book shareholders decided ANGELINI, Justice. KAREN and exotic animals in the for whitetail deer Country.
Hill contacted SSI Graham OPINION Wren, Kerrville, about the who lived hunting guides for possibility becoming RICKHOFF, TOM Justice. Country. According to in the Hill grant appellees cross-appel- We testimony, indicated Graham’s rehearing motion for en banc. Our lants’ and 400 exotic animals 50 whitetail deer 12, opinion judgment January hunters would be needed to accommodate appellants’ rehearing on motion for is with- May booked SSI. drawn, following opinion judg- and the Holley met and Wren Kerrville ment are substituted. and to visit some of the plan to discuss might hunting for the ranches that be used NATURE OF THE CASE . accompanied trips. Graham Holley to the Colbath Ranch. King and King, Holley, Allan R. Donald E. and F. *7 talked to Mr. Colbath Graham and Wren appeal Edward Barker from a verdict reserving twenty whitetail deer. about Phillip rendered in favor of E. Graham and thаt a deal was made Graham testified appeal, King, Thomas Michael Wren. On Mr. and that he and Wren with Colbath Holley argue and Barker that evidence a responsible twenty were for deer at legally factually sup- $850 and insufficient to deposit that a piece. Graham also testified port jury’s findings prose- of malicious $15,000 was dis- guiding for services damages and and assert that Gra- cution cussed, King Holley testified but ham and Wren did not establish basis concerning a was no discussion there liability. cross-appeal, for individual On $15,000deposit guiding for services. allege the trial court Graham Wren granting directed verdicts favor erred Christi, returning Corpus to Hol- After Dorsey Hugo Berlanga. of J. Bonner ley agreement a letter on behalf of sent According to and Wren.
SSI to Graham BACKGROUND FACTUAL agreement, guides would the letter Barker, expenses all fees and asso- Dorsey, Berlanga responsible for Holley, and the costs of ani- corporation guiding ciated with had served as directors of further stated agreement mals. The letter as Sarita Safaris. Sarita Safaris known 602 guides fifty executing agreement, percent would receive After the letter payment guiding
of their four- services $15,000 deposit Graham discussed the with hunt days teen before the with the remain- Holley. Holley told Graham that he need- being paid der after the hunt. The letter purpose ed an invoice show to agreement twenty-eight also stated that Graham, According funds. to told had whitetail deer been secured and re- $12,050 only him that had in the SSI bank quested Graham and use their Wren to $15,000 provide and therefore could not twenty-two best efforts to secure addition- 12, 1991, deposit. On wired June al whitetail deer. Wren $12,050 to Graham’s account at the Bank signed agreement pricing the letter and a of Kerrville. The invoice contained Gra- sheet hunt- which showed the allocation of signature ham’s and reflеcted address ing fees between SSI and Graham and following: Wren. @ Bucks 30" Axis or better 6300.00 5600.00 $900. $ $ (18" @up) Buck . 8 Black $700
$11900.00 (Colbath) Deposit Tail Deer No -0- White (Ponderosa) @ $ Tail 8 White Deer 3200.00 $15,100.00 TOTAL. = 12,050.00 $ ON ADVANCE DEPOSIT ABOVE
Wire Instructions:
For to: BANK OF KERRVILLE Credit ABA 114-907798 For further Credit
to Account # 0-767-089-6 July, talked to about an served animals and were accountable Wren immediately additional needed to se- $7500 the ranchers for the cost of the animals cure 25 whitetail deer on the Scheffield regardless of whether SSI booked hunters. only Holley authority Ranch. Because had Wren, the de According Graham and sign checks on behalf of SSI and he was when the men met in posit was discussed town, King out of sent a check writ- customary in and it was Kerrville firm King’s ten from Barker and law ac- *8 guide depos a hunting give business to by overnight mail. later count SSI reim- if it. Graham and Wren testified that SSI firm. bursed the law hunts, amount of had booked the de in The central issue this case involves posits would have been subtracted from deposits. King, of these aрplication guiding their fees. Graham and Wren tes Barker, testified that it was they paid to the tified Scheffield $2500 money was to understanding their that the they any no paid Ranch but that funds ranchers to reserve the paid to the of the ranches. other types of animals reflected on invoice. had progressed, summer SSI As the money that the Graham and Wren testified whitetail deer hunts. had re booked no exotic or paid they was to them because money paid to Graham and testimony, to the exotic animals Because the According paid to ranches as Wren had not been throughout year can be hunted where- animals, deposits King reported for only as whitetail deer can be hunted dur- County De- to the Kerr Sheriffs matter season, in ing begins deer which sometime 1, The on November partment game Having expected November. exotic King asked to ex- Department Sheriffs months, during hunters the summer Gra- sent writing King plain the situation phone ham and numerous calls Wren made letter, 6. In the a letter dated November any being if to SSI to find out hunts were and Wren com- King alleged that Graham part-time secretary, Patty booked. SSI’s animals mitted theft and fraud because no faxed Coplin, testified she Graham at the had been reserved on behalf of SSI and Wren names of had hunters who in the invoice. The letter ranches named through booked hunts Al- Sarita Safaris. Holley, listed the of SSI as shareholders though Graham and Wren testified that Barker, Berlanga, King. As a Dorsey, hunts, responsible booking was for SSI Alford, complaint, Brad result of the phone Wren nevertheless made numerous sheriff, County deputy began a theft Kerr people calls to the on list in an SSI’s investigation. attempt to secure hunters for the animals complaint, Alford investigating After that had been reserved. Wren testified supervisor and his decided that had that the he called not people werе interest- to send the case to the enough evidence hunting Country ed in Hill and that Attorney. Attorney, District The District the hunts were overpriced. Sutton, that the Ronald decided case neared, As deer season Graham and ready presentment grand jury. for to the Wren came to the conclusion that SSI was January presentment After going to book According hunters. grand indicted Graham and Wren King, day he contacted felony Subsequent theft. to the indict- before deer season to tell him that a hunt- ment, Sutton filed a motion to dismiss the King er had been booked. Graham told that he dis- indictment. Sutton testified contact Wren but Wren was not available the letter missed the indictment because King when called hunting, because he was agreement between and Graham and King message 1, 1992, so left a with Wren’s wife. February Wren until was effective King’s King Wren never returned call. which the date of the indictment. was after Thus, believed there could be no then cоntacted some of the whom Sutton ranchers theft because Graham and Wren still had King paid deposits by believed had been perform time to under the terms of the Graham and Burch Wren. Jack agreement. letter Graham and Ponderosa Ranch told that no deer were never re-indicted. had been reserved SSI’s name. Burch talking during recalled to Wren the sum- King’s Because of letter to the Kerr mer that Wren him told that the com- County Department, Sheriffs Graham and pany working that he was for had backed against King, Holley, Wren filed suit Bark- plenty out of the deal but that he had er, mali- Dorsey, Berlanga alleging eight hunters to hunt the reserved deer. granted prosecution. cious court *9 Holley called one of the other ranches Dorsey directed on behalf of and verdict deliberations, where had been reserved and was jury animals Berlanga. After the Barker, told that no animals had been reserved for and had King, found аnd maliciously prosecuted SSI. Graham Wren. 604 legally factually was and insufficient
Having prosecution, found malicious the dence jury anguish damages jury’s finding awarded mental in the of malicious support $150,000 following the amount of for Wren and The elements must prosecution. $50,000 jury prosecution for also award- in a malicious Graham. be established (1) damages injury prosecution ed to business and a criminal was com action: (2) prose in reputation standing against plaintiff; social the menced the the $100,000 by procured amount of for both Wren and was initiated or the cution (3) defendant; anguish prosecution In addition to mental the terminated Graham. (4) injury reputation damages, the plaintiff; plaintiff of the favor (5) innocent; also awarded Graham and Wren the defendant lacked $3250 attorney’s fees bond fees probable instigate prosecu each for cause to (6) tion; defending charges. incurred in the criminal with maliсe the defendant acted (7) bringing prosecution; about damages as a plaintiff suffered result STANDARD OF REVIEW Id.; Funke, v. prosecution. of the Zess appeal, King, Holley, and On 92, (Tex.App. 93 Antonio 956 S.W.2d — San legal and factual challenge Barker suf writ). 1997, prosecution In no malicious ficiency jury’s liability of the verdict as to actions, strike a balance the court must damages. To determine whether good faith society’s between interest evidence, all the legally there is sufficient reporting of crimes and the interest record evidence and inferences must be in being protected wrong individuals from light viewed most favorable to the Indus., prosecution. Browning-Ferris ful Corp. Plastics v. finding. Formosa USA (Tex. Lieck, 288, 290-91 Inc. v. 881 S.W.2d Contractors, Inc., Engineers Presidio & 1994); pro at 77. To Thrift, 974 S.W.2d (Tex.1998). 41, Anything 960 48 S.W.2d balance, require tect the court must this legally more than a scintilla of evidence is proof of each element of the cause strict support finding. Id. In sufficient to Liеck, 291; Thrift, action. 881 at S.W.2d issues, sufficiency the re reviewing factual If mali 974 at 77. the elements of S.W.2d viewing court considers all of the evidence however, lia prosecution proven, cious are findings are so to determine whether bility is established. against weight preponder great manifestly ance of the evidence as to be undisputed prosecu- It that a criminal Bain, 175, unjust. Cain v. 709 176 against S.W.2d tion was commenced Graham and Estate, (Tex.1986); King’s In re 150 Tex. ultimately terminated in their Wren that (1951). 662, 660, however, 244 661 Under S.W.2d contest appellants, favor. The upon the analysis, pass this we do not remaining required of the ele- proof witnesses,' credibility nor do we prosecution. ments of malicious fact judgment substitute our for that of the A.
finder, Procurement conflicting if even there is evidence could be upon which a different conclusion malicious prove In order Hubbard, v. supported. See Thrift plaintiff must establish prosecution, (Tex.App. Antonio S.W.2d — San pro that the initiated prosecution was denied). 1998, pet. A initiates person cured the defendant. prosecution
a criminal if he makes a formal PROSECUTION MALICIOUS Lieck, 881 charge to law enforcement. 292; Thrift, 974 at 77. King, on S.W.2d at S.W.2d appeal, the first issue criminal person procures A Holley, allege and Barker the evi-
605 legally if Ms actions are cause the hunt. TMs evidence is and enough to factual- and, actions, ly support jury finding a that prosecution but for his the sufficient in the that hunt- the statement made letter prosecution would not have occurred. booked was false. A ers had been person procure prosecution does not prosecute when the decision whether to Along with the statement that another, including left to the discretion of booked, hunts had been Graham and Wren grand a law enforcement officer or the allege King’s also statement that Gra jury, person provides unlеss the informa- ham and Wren had not reserved ani tion that he knows is false. Id. testi mals was false. Graham King’s calling actions of the Kerrville had whitetail they fied that reserved 53 County Department sending Sheriffs with Having agreements deer. made the 6, enough deer, the November 1991 letter were ranchers to reserve the whitetail However, prosecution. to cause the they testified that were Graham and Wren prosecute up decision whether to was left responsible price for the of the reserved deer, therefore, Depart- to the discretion of the required deposit Sheriffs ment, Attorney, grand guiding King Holley District and the services. testi jury. prosecute they they Because the fied with decision to checked ranchers who others, given money up was left to the discretion of believed had been to reserve deer, King found out that procured could have but no deer had been Having reserved for checked with the only provided if he SSI. information to the ranchers, King made the statement that no Department Sheriffs that he knew was hunts had been reserved. Graham and false. Wren, however, testified that had re argue King’s Graham and Wren and, therefore, personally served the deer complaint letter contained false statements the hunts were not in the name of SSI. such as assertion that several hunters Although conflicting evidence exists as to were during booked to hunt SSI statement, falsity of the must final of Coplin, week October. sec- SSI’s testimony have believed the of Graham retary, testified that she did not know of concerning deposit and Wren and res any hunts that through had been booked deer, do not ervation we substitute that, although SSI. testified he did finder, judgment our for that of the fact hunters, identity not know the Hol- if conflicting upon even there is evidence ley him told several hunters were booked sup which a different conclusion could during final Holley week of October. Thrift, See 974 at 77. ported. S.W.2d testified that it had six years been and he did the identity not know of the hunters and Wren further during complain who were booked the final week in about the omission of material opinion October but that was not able to com- information that would their booking process plete given portrayal because SSI was have a more accurate relationship unable to contact Graham and Wren. On the between them and SSI. trial, day Supreme the next testified that The Texas has held that Court fully he failing fairly had looked over the list of names and disclose all mate hunter, knowingly providing- remembered one Mr. Anderson. rial information and According Holley, Mr. are Anderson and his false information relevant to the causa group prosecution. of hunters were booked the of malicious last tion element See Co., Richey Grocery week October but he did not know the v. Brookshire (Tex.1997). with paperwork documenting Along location of the S.W.2d *11 must be statements, jury that false information the alleged the false Graham Lieck, Supreme to disclose the Court contend that the failure material. - defined phone the of 99 calls Graham should be procurement existence found that to contributed to the jury charge and Wren made SSI in as follows: the and Wren also false statements. Graham procures prosecu- a criminal person A (1) price sheets complain of: omission enough were to tion if his actions (2) agreement; inclu- attached to the letter but for his prosecution, cause the as a share- Berlanga’s sion of name not the would prosecution actions (3) holder; corporate of the name use person A does not have occurred. successfully that had not been filed of SSI when procure prosecution a criminal Secretary of with the State. prosecute whether to the decision reasonably conclud- jury The could have another, in- the left to discretion phone that the failure to disclose the 99 ed official or cluding a law enforcement prosecution. calls contributed to the jury, person pro- unless the grand the and Wren took implies letter that Graham which he knows is vides information ran, heard from money the never be prosecution may A criminal be false. that and Wren again. Evidence by person. more than one procured to SSI de- phone made numerous calls Lieck, at 293. Because See 881 S.W.2d they intended to the likelihood that creases Lieck, in jury charge language mirrors the proved Because the evidence defraud SSI. require not false information to which does in a shareholder Berlanga that was never material, the court did not err its be SSI, reasonably jury cоuld have con- procure- submission of the definition Berlanga, inclusion of who cluded that the ment. an served as Representative, was a State more credi- attempt give complaint Holley and Barker contend bility. procure that did letter. King complaint because wrote any Holley, argue and Barker King, however, procured A can prosecution, patently King’s inaccuracies in letter were testi person. more than one the deci- and had no effect on immaterial that he conferred with before fied prosecute. Alford and Sutton testi- sion to and, Department contacting the Sheriffs price sheet and fied that omission fact, from information obtained included Berlanga’s played part name no the use of as Barker’s Holley in the letter. As far regard investigate. in the With decision involvement, that Barker King testified that hunts had been to the statement the Kerr conversation with knеw about the booked, that the issue was Sutton testified Although Department. County Sheriffs money particular was taken for a whether he saw the Barker was unsure whether purpose, to that purpose applied and not mailed, absolutely he it was letter before hunters had been booked. not whether it was a thought of the letter approved Alford testified Although Sutton facts. fair rendition of the and omissions any alleged false statements investigation, had no effect on light most Viewing the evidence conclusions as to free to draw its own verdict, legal- we find that to the favorable falsity of the statements. establish the exists to ly sufficient evidence reviewing After Further, procurement. element of argue the defendants evidence, jury’s finding of submitting the defi all of the court erred that the great against so informing was not procurement without procurement nition of *12 weight preponderance and weigh of the evidence er of fact must evidence and resolve manifestly unjust. as to be probable conflicts to determine whether exists, question
cause as a mixed of law B. Probable Cause and fact. Id.
King, Holley, and Barker al
Because the facts
the
underlying
lege that the evidence
legally
and factu
prosecute
disputed,
decision to
are
the
ally insufficient
support
finding
the
that
jury
weigh
must
the evidence and resolve
they
probable
instigate
lacked
cause to
the
prosecution
Although
begin
the conflicts.
we
with the
of Graham and Wren. Proba
ble
presumption
cause is the “existence of
that the defendant acted with
such facts
cause,
and
probable
circumstances as would excite
belief
Graham and Wren offered
mind,
a reasonable
acting on the facts
evidence that
the defendant’s version of
within
knowledge
the
prosecutor
the
the facts was inaccurate.
Graham
[complainant],
person
that
charged
the
was Wren
they
testified that
discussed the ad
guilty of the crime for which
prose
he was
deposits
vance
with King
Holley
when
Richey,
cuted.”
952
517 (citing
S.W.2d at
the men met in Kerrville
all parties
Dahl,
(Tex.
Akin v.
661 S.W.2d
that
deposits
understood
the
were for Gra
1988)). In determining
probable
whether
Graham,
ham
According
and Wren.
he
exists,
cause
the trier of fact must deter
prepared
Holley
the invoice because
said
mine
“whether
reasonable person would he needed a record of the reserved ani
believe that a crime had been committed
Although King, Holley,
mals.
and Barker
given the
complainant
facts as the
honestly
deposit
contend that the
was intended to
reasonably
believed them to be before
animals,
paid
to ranchers to reserve
the criminal proceedings were instituted.”
jury apparently believed
Id.;
Thrift,
Thus,
see
An initial presumption exists phone had no records to substanti malicious cases that the defen ate his claim that he tried to contact Gra dant acted reasonably good and in faith ham Septem and Wren numerous times in probable and had pro cause to initiate the likelihood, jury ber. In all felt ceedings. Richey, 952 at S.W.2d hastily reporting acted too his rebutted, however, This presumption is suspicions County to the Kerr Sheriffs plaintiff рroduces when the evidence motives, beliefs, Department. It grounds, possible is also that the and other jury upon up evidence which believed that SSI had not held the defendant acted bargain their end probable did not constitute of the because cause. Id. at 518. The burden then shifts failed to book hunters for the Hill to the defen that, Country. dant proof probable argue to offer Graham and Wren cause. underlying When the facts the defendant’s because SSI had no civil recourse for re prosecute disputed, decision to are covery money, the tri- SSI filed a criminal money jury’s finding Although back of malice. complaint get in order their appel- also that the through restitution. could have concluded malice, act we do did not lants with Viewing light the evidence most that of judgment substitute our verdict, than a to the more scin- favorable find that Accordingly, fact-finder. we jury’s support the tilla of evidence exists to great finding against malice was not so Al- finding probable of lack of cause. *13 the weight preponderance and of evidence conflicting upon exists though evidence manifestly unjust. as to be sup- be which a different conclusion could judgment we cannot our ported, substitute Therefore,
for that of the fact-finder. the D. Innocence lack jury’s finding probable of of cause was King, argue Barker Holley, and pre- the and against great weight not so and that Graham were innocent Wren the be mani- ponderance of evidence as to charges. the theft and Wren of Graham unjust. festly for deposits testified that the were their and not the ranchers. The services for Malice C. and, testimony of fact their trier believed ar King, and Barker Holley, therefore, believed that were innocent legally that the and factu gue evidence is Thus, legally suffi charges. of the theft ally finding to the 'Of support insufficient the support jury’s cient to evidence exists may by di malice. Malice established be Having of reviewed all finding innocence. may rect or circumstantial evidence and be evidence, finding of jury’s of the inno from lack probable inferred cause. against great weight was not so cence Thrift, at Malice is defined 974 S.W.2d as preponderance of the evidence to and will, indifference, motive, ill gross as evil manifestly unjust. Having legal found be disregard rights of the of oth or reckless factually evidence of the ly and sufficient ers. prosecution, of malicious we elements cause, a Having probable found lack of the first overrule issue. may malice Because the de- inferred. never demanded a refund fendants DAMAGES De-
money the Sheriffs contacting before from sufficient evidence exists partment, allege that King, Holley, Barker and jury could that SSI which the have found factually insuffi- legally evidencе was disregard for acted with reckless damages support to the award of for cient Further, Gra- rights of Graham and Wren. anguish injury to business and mental of over ham and introduced evidence Wren The reputation standing. jury social that phone calls made to SSI shows 99 damages anguish mental awarded to trying and Wren make Graham were $50,000 $150,000 amount Wren agreement work. Evidence exists The awarded dam- jury for Graham. also from which a could find that injury repu- to and social ages for business bargain up to hold its end of the failed in the amount of standing tation and reported the theft without hastily alleged $100,000 for both and Graham. with really trying problem to work out the argue the evidence does that defendants and Wren. Graham rises any anguish mental not show that Graham and light compensable in the level and Viewing the evidence most verdict, failed to harm business find the evi- Wren show favorable to the we reputation. support or social legally dence sufficient Anguish A. Mental Graham testified that the incident him caused humiliation and embarrass An anguish award of mental although ment when asked about emotion damages supported by must be direct evi distress, al did not know what nature, duration, dence of severity that was. Graham’s wife testified that anguish, thereby of the mental establishing very Graham was embarrassed and upset disruption daily substantial in the rou According about the indictment. to Gra Parkway tine. Woodruff, See Co. v. wife, ham’s she became upset with him (Tex.1995). 434, 444 S.W.2d When because she could not understand how he plaintiff present fails to direct evidence of mess, got into such a which put a strain on nature, duration, severity marriage. their Graham’s wife testified anguish, apply we traditional no evidence thought she the indictment contribut standards to ed to high pressure determine whether the record Graham’s blood prob *14 lems, any but admitted that reveals evidence of “a she did knоw high degree of whether high pressure Graham had blood pain mental and distress” that is “more before the indictment because he had not worry, vexation, than mere anxiety, em been checked before the indictment. Ac barrassment, anger.” (quoting Id. J.B. wife, cording to Graham’s Graham’s Design Clawson, Custom Bldg. & v. 794 daughter suffered embarrassment at 38, S.W.2d 43 (Tex.App. [1st — Houston school, which upset Graham. The testimo writ)). 1990, no Dist.] Mental anguish has ny of Graham and Wren and their wives also been defined including as “a mental nature, duration, demonstrated the and se sensation of pain resulting pain from such verity anguish of the mental suffered aas ful grief, emotions as disappoint severe result of felony the indictment for theft. ment, indignation, pride, shame, wounded Therefore, the evidence legally was despair public humiliation.” and/or factually support jury’s sufficient to (citing Trevino v. Southwestern Bell Tel. damages award of for mental anguish. Co., 582, 582 S.W.2d (Tex.Civ.App.— 584 1979, writ)). Corpus Christi nо The indict Injury Reputation B. ments made page the front of the Kerrville awarding addition to dam Mountain headline, Sun with the “Locals ages anguish, for mental also scam legal eagles Corpus.” from The arti awarded damages injury to business cle identified Graham and gave Wren and reputation. and social Because Wren a short allegations. rendition of the Wren made living hunting his as a guide, the testified that the ordeal him made mad allegations directly went to his business because he had not anything done wrong reputation. Wren, According to some people but that talking were him all about ranchers skeptical became of him while over town. Wren felt had like he been explanation. others asked for an Al convicted and had prove his innocence though longer Graham no works to people. Wren thought testified he business, hunting he testified that the felo about the every day. indictment Wren’s ny ability indictment hinders his to be wife testified that the indictment caused awarded government contracts. Before humiliation, embarrassment, and emotional indictment, gener Graham had been a distress to the whole family. According to al contractor but must now abe subcon wife, Wren’s many Wren had nights that tractor because he cannot meet the bond sleep he did not always and he was on ing requirements for a contractor as a edge about the indictment. result of his indictment. Graham also tes- persons though performed that he unable to obtain a Small even he
tifíed was See agent corporation. acts as an loan was Business Administration while he Jurica, 116, Kinkler v. 84 Tex. 19 S.W. Holley and ar- under indictment. Barker Products, (1892); Sporting Inc. v. U.S. presented any gue that no evidence was Calls, Inc., 865 Johnny Game Steiuart upon which government contract 1993, 214, 221 (Tex.App. S.W.2d rejected a bid or the made — Waco denied) (holding agent ha- corporate writ also amount loan. defendants knowing participation misappro ble for speculative. are allege damages v. priation); Escrow Co. Commercial Because Graham and Wren are bur- Rebel, Inc., 532, 541 RockpoH 778 S.W.2d socially with the professionally dened 1989, writ de Christi (Tex.App. Corpus — social of an indictment for gross stigma nied) corporate liable for (holding agent theft, jury reasonably concluded that violations); DTPA v. knowing Grierson damage Graham and suffered PaHners, 375, Energy Parker 737 S.W.2d reputation in the business and social (Tex.App. Dist.] [14th 377-78 —Houston Thus, $100,000. legally we amount find writ) 1987, (holding agent can corporate no factually support sufficient evidence to knowing liable if personally agent be held jury’s damages. award of We overrule ly fiduciary duty); Barclay v. breached the second issue. (Tex. Johnson, 686 S.W.2d 336-37 *15 wiit) 1985, no App. [1st Dist.] — Houston LIABILITY INDIVIDUAL agent liable (holding corporate personally argue The defendants that corpo If representations). for false the let individually are not liable because the in the knowingly participates rate agent of SSI and later ter was written on behalf act, corporate the need not be tortious veil of Be by ratified the shareholders SSI. liability. Id. pierced impose to individual amending cause SSI was unsuccessful appellants In that response, argue the State, Secretary of name with the Gra its impliedly recent Supreme Court cases that not a argue ham and Wren SSI was by cited Graham and Wren. overrule cases and, therefore, qualified corporation Texas Hornsby, Supreme In Texas Leitch v. the held defendants should be hable as the an not liable Court found that officer was joint doing tortfeasors business as SSI.1 indepen- he for unless owed an negligence that a failed name Appellants contend injured duty dent reasonable care to the corporate change does alter the status not duty. party employer’s from his apart Tex. Bus. Safaris. See Sarita Corp. Act. 114, 117 Hornsby, 935 Leitch v. S.W.2d 1980).2 (Vernon 4.06, § Ann. art. B (Tex.1996). Leitch, however, a negli- was and, therefore, language Alternatively, gence Graham and Wren its case torts. apply that a officer who know does intentional argue corporate not recent point also to another ingly participates in tortious fraudulent defendants Investors, Supreme case. See ACS individually to third Court may acts be held liable Thus, Secretary the State. was not sent to Barker filed an amendment the articles of 1. Safaris, change Safari the was not effective and name incorporation Inc. with the of Sarita registered corpora- Specialities was not as a Secretary changing the of State name Secretary tion of State. with Specialities, corporation Inc. How- to Safari еver, mistakenly signature line referred Specialties, provides corporation 4.06 that no amendment as Sarita Inc. Article any existing action in cause of Secretary carried the name as shall affect of State Further, against corporation. required such Specialties. fee favor of or Sarita Inc. v. McLaughlin, 943 432 recovery, S.W.2d a directed verdict is improper (Tex.1997). ACS, a tortious interfer- and the case must be reversed and re- case, ence the court corporate held that “a manded for determination of that is- may officer or director not be held liable Id. sue. inducing corporation to violate a Dorsey A. obligation
contractual long as as he or she good acts in faith corporations’s on the argue Graham and Wren that impose behalf.” Id. To liability, individual Dorsey participated approved plaintiff must show that the officer investiga maliciоus while the in a contrary acted manner so to the cor- tion As pending. evidence that Dor poration’s interests best that his actions sey participated in the malicious prosecu only could by have been person- motivated tion, point Graham and Wren to the fact al interest. complaint Because the let- Dorsey was told after the letter was ter was sent in SSI’s best interest and not sent that his name was listed as a share interest, motivated personal appel- holder of Dorsey SSI and approved the argue lants they are not personally letter at a meeting. Dorsey director’s as however, agree, liable. We with Graham serts that he had no knowledge of the and Wren that language in ACS does and, letter until after it had been sent apply because it is limited to tortious therefore, could procured not have interference with contract cases. prosecution. presented Graham and Wren no Dorsey’s further evidence of involve
Accordingly, Barker, King, we find that ment. are individually liable because they knowingly participated a tortious Because we find no any pro- evidence of Therefore, act. we need not determine bative value to raise fact issue on Dor- legal and, whether SSI was a corporation involvement, sey’s the court did not err in *16 not, if whether the defendants were part- a granting directed verdict. We overrule ners. We overrule the third issue. the first issue. Berlanga B.
DIRECTED VERDICT In their cross-appeal, Graham Although Berlanga had been a allege and Wren that the Inc., court erred in Safaris, shareholder in Sarita he had granting a directed in verdict favor of Dor no involvement with King SSI. testified sey and Berlanga. reviewing When that he Dorsey going believed that to verdict, granting of a directed give we must some shares of SSI to Berlanga. Be determine whether thеre is any belief, evidence cause of this testified that he of probative force to raise a fact issue on Berlanga listed as a in shareholder of SSI the material questions presented. See County his letter to the Kerr Sheriffs Navarro, v. 65, Collora 574 S.W.2d Department. 68 According testimony, to (Tex.1978). We consider all of Dorsey the evi gave Berlanga any never shares of light dence in a most to favorable the SSI. Graham and Wren admit that Berlan- party against whom the verdict was direct ga did not in participate the malicious disregard ed and all contrary evidence prosecution argue but that he should be inferences., Szczepanik See v. First partner liable as a or an implied partner. Co., 648, Southern Trust 883 S.W.2d 649 Berlanga Because never a filed verified (Tex.1994). If any there is conflicting evi denial allegation partnership, to the of dence probative any of value theory on of allege Graham and Wren that Berlanga
612 GREEN, J., dissenting. status. In re- partnership
admitted his PAUL W. deny partnership sponse to the failure to for frequently It said that actions is status, argues that Graham and in Berlanga prosecution not favored malicious are they vague far too allegation aphorism Wren waived this because law. This is analytical As with to serve as an tool. complaint during pres- not raise did this action, of if the elements other cause entment of motion for directed verdict. lia- prosecution proved, are malicious participate Because did not Berlanga distinctive bility is established. What is in its operation, the formation of SSI or that there about malicious is is no that he was a there evidence show applying is little room for error even if was found to be a partner, law. a from the departure Even small corporation. a partnership rather than may liability prerequisites exact we of any prо- Because find no evidence the delicate between threaten balance on bative value raise a fact issue Berlan- protecting against wrongful prosecution involvement, the court did err ga’s criminal encouraging reporting granting a verdict. We overrule directed conduct. the second issue. Indus., Lieck, Inc. v. 881 Browing-Ferris (Tex.1994) (citations 288, omit S.W.2d APPEAL FRIVOLOUS ted). are thus admonished to exercise We facts to Dorsey argue ap applying that the extreme care when Berlanga malicious multiple legal was frivolous elements of peal of directed verdicts The prosecution cases. “delicate balance” they request attorney’s the award of Tex.R.App.P. can even a element of the single teeter on fees and expenses. See and, whether depending cause of action on contend Dorsey Berlanga law, already applies an strictly court thе malicious had no involvement with get can worse. As bad situation even should prosecution and Graham Wren an grievous person as it is for innocent find have dismissed them. We decline to crime, that harm accused wrongly Campos v. In appeal frivolous. See compensated by holding the fairly is not Inc., Mgmt. Props., vestment 917 S.W.2d good acted in faith liable for accuser who 1996, (Tex.App. Antonio — San protec wrongful legal prosecution. denied) damages (finding that for friv writ good tion afforded the faith accuser imposed only if record appeal olous will be *17 plaintiff the that we hold the requirement appellant expec has no reasonable shows Otherwise, a of proof. to strict burden pursued has not the tation of reversal and the innocent sympathy favoring overriding faith). good in appeal an verdict. may unjust lead to plaintiff in this happened That I is what believe has CONCLUSION case. legally Bеcause we find the evidence support jury’s factually to the sufficient
finding prosecution of and dam- malicious most good policy, of As a matter social judgment of the court. ages, we affirm the discour- agree would citizens should not be Further, as we affirm the directed verdicts to be aged reporting what is believed from Dorsey Berlanga. to in But are risks criminal conduct. there they will the is that
doing One of risks so. subject criminal GREEN, by the joined J. be sued Dissenting opinion by is DUNCAN, ANGELINI, reporting the criminal report. When JJ. by malicious, provides procured prosecution or have the reckless the law dant cannot remedy. But provided what about cases where the unless the defendant information faith, is complainant acting good in al- he false and knew to be the false informa- though misguided or How misinformed? determining tion was a the deci- factor society weigh of re- does the social value at In prosecute. sion to See id. 293-94. crime porting against damage the done to words, any false must other information target the innocent of a misinformed crimi- upon by the way have been relied some complaint? supreme says nal The court person making prosecute; the decision to competing these interests are balanced otherwise, procurement. there is no through careful elements definition of the procurement There is no this case. prosecution of the malicious cause of ac- assuming King’s complaint Even letter See tion. id. in- attorney purposely the district omitted any the formation contained information known
One of basic elements of tort or false, clearly is causation. to be the evidence demon- action The same is true with attorney prosecution malicious at 292. strates the district did not base cases. Id. the prosecute any his on of supreme adopted But the court decision has allegedly that or omitted information. procurement,” view “initiation false than the general concept rather more of Wren Graham and contend the com- causation, is better malicious suited to Attorney plaint King letter sent to District prosecution cases. Id. at That is to 293. falsely had Sutton asserted that hunters say, question is not whether defen- during been booked SSI the final week dant “caused” the proceedings, criminal had of and that Graham and October but whether the defendant “initiated” Moreover, any not reserved animals. “procured” prosecution. this failure argue King’s to disclose the exis- case, question is whether and his phone tence of 99 calls Graham and Wren co-defendants (collectively referred as pros- had made to contributed to their “King”), “procured” against the indictment They say price ecution. also sheets Graham and Wren. agreement letter attached to the between concept procurement parties not have is essential- should been omitted letter, complaint ly Hugo the same as the from the Ber- cause-in-fact element of cause, proximate langa’s should not but it not include name have been shown does shareholder, corpo- foreseeability component proximate as a SSI and that the Id. at SSI should not cause. rate name of have been successfully used it had not been because A person procures prosecu- a criminal Secretary filed with State. if his tion actions were to cause enough prosecution, and but for his actions However, the evidence undisputed have would not oc- inaccuracies or omissions person A procure curred. does not were King’s determining not a factor letter *18 prosecution criminal decision when the prоsecute. DA decision to Sutton’s prosecute to the dis- whether is left and Deputy Both Sutton Sheriff Alford another, cretion of a law en- including sheet, price omission of testified the jury, official or un- grand forcement name, Berlanga’s the use of and the use person provides less the information played name in the corporate part SSI’s no he knows which is false. investigate prosecute. decision to And Thus, had 293. the statement prosecutor regarding Id. at when a exer- hunts booked, discretion in Sutton said the deciding cises whether to been issue prosecute, money par- malicious defen- whether had been taken purpose applied ticular and not to that
purpose, not whether hunters had
been booked. light
In and Alford’s testimo- of Sutton it
ny, reasonably cannot be concluded not
prosecution would have occurred but in King’s
for the false allegedly statements to say
letter. To hold otherwise is regardless is of whether the liable
complaint knowingly contained false letter
information. nexus between conduct and, missing consequently, harm is fail.
Graham and Wren’s case must More-
over, verdict, by jury upholding the find,
majority permits evidence, contrary
absence of exact testimony. and Alford’s
opposite of Sutton clearly wrong.
This is short, jury’s sup- verdict by
ported failing the evidence. And
pay prerequi- strict attention to the “exact liability,” majority
sites for has fallen
into error warned about Lieck. I
Consequently, dissent. HONDA MOTOR
AMERICAN INC.,
CO., Appellant,
v. DEPARTMENT TRANS
TEXAS OF
PORTATION-MOTOR VEHICLE Board;
DIVISION; Motor Vehicle Inc., Automotive, Appel Dupriest
lees.
No. 03-00-00557-CV. Texas, Appeals
Court
Austin. 15,
March 2001. May
Publication Ordered