Lead Opinion
This is a suit for malicious prosecution, false imprisonment and abuse of process. Donald L. McGregor (plaintiff) appellee brought suit against appellant (defendant) Tandy Corporation, d/b/a Radio Shack and Radio Shack, A Tandy Corporation Company (hereinafter referred to as Tandy) seeking a recovery of damages for his having been incarcerated in the Dallas County Jail on a charge of passing a worthless check in the sum of $104.20 to appellant. The jury found in favor of McGregor on his counts of false imprisonment and abuse of process, but found in favor of Tandy on the malicious prosecution count. The trial court entered judgment upon the jury verdict and awarded McGregor the sum of $10,000.00 actual damages and $15,000.00 exemplary damages. The trial court overruled Tan-dy’s motions for directed verdict, judgment non obstante verdicto, remittitur and motion for new trial. Appellant has perfected its appeal to this court and submits twenty-two points of error for our consideration.
Appellant’s points of error 4, 7, 8, 9, 10, 13 and 15 related to objections to the court’s charge, will not be considered because such objections were not reduced to writing and presented to the trial court in compliance with Rules 272 and 386, Tex.R. Civ.P. Tandy’s failure to present such objections in writing to the trial judge for endorsement of his rulings and official signature within sixty days after rendition of judgment or date of order overruling motion for new trial was fatal to having the appellate court consider Tandy’s points of error related thereto because the trial court had lost jurisdiction of the case. Further, appellant has not shown good cause for its failure to timely file its written objections to the court’s charge. Commercial Standard Insurance Company v. Southern Farm Bureau Casualty Insurance Company,
The pertinent facts related to the disposition of this case are as follows:
On December 17, 1969, a worthless check in the sum of $104.20 bearing the printed name of Don McGregor, his Dallas address and signed “Don McGregor” was issued to Radio Shack, one of Tandy’s stores. When the check was presented for the payment of merchandise to the salesperson at the Radio Shack store, the temporary driver’s license of a Don McGregor was presented for identification and that number was recorded on the back of the check along with a description of the person passing the check. The salesperson accepting the check, Kendall Tatum, verified the authenticity of the signature on the check by comparing it with that on the temporary driver’s license and then took the check to the store manager for his approval. The check was approved by the store manager, Richard I. Ware, and accepted as payment for the merchandise. McGregor testified that on the Monday following the theft of his checks and wallet, he called the Northwest National Bank and reported the theft and asked the bank not to honor any checks not authorized or executed by him. The check in question was deposited for collection on more than one occasion and each time the check was re
On April 30, 1970, Mr. Ware received a letter from Tim Banner, an attorney representing McGregor, advising Mr. Ware that McGregor’s checkbook was stolen from him on the 6th day of December 1969 and that McGregor did not write a check to Radio Shack. On the same date, Mr. Ware forwarded Banner’s letter- to the District Attorney’s Office with the notation, “This is for your information. If it is necessary for me to come to your office personally to file the charges .please notify me of same. Thanks.” The Dallas County Grand Jury in June 1970 indicted McGregor and a warrant was issued for his arrest. McGregor was arrested in August 1970 and was placed in jail until he could make bond some six days later. On March 22, 1972, the case against McGregor was dismissed on motion of the District Attorney when it was determined that McGregor could not be identified by any of appellant’s employees as the person who actually passed the worthless check. After the criminal charges were dismissed, McGregor filed suit against appellants.
Nowhere does appellee McGregor complain that the warrant by which he was arrested was insufficient in form or was not issued by a court or official having jurisdiction to issue it. “It is a complete defense to an action for false imprisonment that the arrest or detention was by virtue of process, legally sufficient in form, and duly issued by a court or official having jurisdiction to issue it.” 35 C.J.S. False Imprisonment Sec. 27, p. 660. The presumption is that the warrant under which McGregor was arrested was valid in form, issued by competent authority on a sufficient complaint. The burden of proof was upon McGregor on his count of false imprisonment to show by a preponderance of the evidence that his detention was not under valid process. 35 C.J.S. False Imprisonment Sec. 27, supra; 25 Tex.Jur.2d, False Imprisonment, Sec. 33, p. 266; 32 Am.Jur.2d, False Imprisonment, Sec. 37, p. 102; Pate v. Stevens,
In J. C. Penney Company v. Duran,
An action for abuse of process presupposes an originally valid and regular process, duly and properly issued. 72 C.J.S. Process Sec. 120(c), p. 1194. In J. C. Penney Company v. Gilford,
It was then stated in Gilford, supra, that “While it might be argued on respected authority that procuring the issuance of a warrant of arrest and the subsequent arrest of one for the purpose of extorting the payment of money to the one so procuring the warrant by the one arrested would constitute a sufficient basis for the action of abuse of process, ibid., Sec. 12, we are committed to the view that an action for abuse of process cannot be maintained where the process was employed to perform no other function than that intended by law. The mere issuance of process is not actionable as an abuse of process. There must be use of the process, and that use must of itself be without the scope of the process, and, hence, improper. Blackstock v. Tatum,
We have concluded that the trial court did not submit any special issues related to abuse of process, nor was abuse of process established as a matter of law. On the contrary, the evidence fails to support any judgment for abuse of process. There being no evidence of abuse of process, the trial court should have granted appellant’s motion for instructed verdict and its motion for judgment notwithstanding the verdict.
The judgment of the trial court is reversed and judgment is here rendered that appellee Donald L. McGregor, take nothing.
Lead Opinion
ON MOTION FOR REHEARING
This case was transferred from the Court of Civil Appeals for the Fifth Supreme Judicial District at Dallas to the Court of Civil Appeals for the Sixth Supreme Judicial District at Texarkana on an equalization of dockets by the Supreme Court of Texas pursuant to Article 1738, Tex.Rev.Civ.Stat.Ann. Appellee, Donald L. McGregor, filed his motion to dismiss the appeal in the Court of Civil Appeals for the Fifth Supreme Judicial District asserting that appellant Tandy had not properly perfected its appeal because the transcript of the record did not include Tandy’s original motion for new trial. The motion was overruled by the Court of Civil Appeals for the Fifth Supreme Judicial District at Dallas. This Court concurs in that ruling. We hold that appellant timely perfected its appeal. The transcript contains Tandy’s amended motion for new trial which bears a notation
We have examined appellee’s other assignments of error and find them unpersuasive.
Appellee’s motion for rehearing is overruled.