*2 less than 75 accounts receivable STONE, Before GREEN old, approved by days unless otherwise ANGELINI, JJ. (2) Thrift, other assets. all of Peerless’s *3 pledge agreement There was also stock 19, 1986, whereby February effective OPINION pledged half of their stock to Hubbards ANGELINI, Justice. in of the loan. Thrift further satisfaction verdict in appeal This is an from 1986, Thrift notified the In of October in favor of her suit Sandra was insol- writing in that Peerless Hubbards Terry prosecution. In Thrift for malicious debts, employ- unpaid back vent because of error, points of Thrift contends that the four taxes, pay on the and failure to interest ment factually legally both and insuffi- evidence is payment in Thrift demanded line of credit. jury’s findings of mali- cient to laid claim to full on the line of credit and reputation, prosecution, damaged cious emo- security pursuant assets of Peerless’s distress, earning capacity. In tional and lost the Hubbards agreement. He instructed error, contends point an additional of any perma- they buy could not sell jury charge contained an erroneous that the they company, nor could nent asset of theory judgment of law. We affirm consent. pay corporate officers without his the trial court. oper- up accurate and to date He demanded statements, statements, and ating financial Background Factual and Procedural and cash needs. an estimate of sales complex began of facts in 1985 This set Thrift also Hubbard testified Sandra Hubbard were when Victor1 and Sandra stock that half of the Hubbards’s demanded compa- seeking for a new software investors company name on the be transferred starting. ny they The Hubbards had were agree- pledge pursuant to the stock books in the employees been software division records indi- Peerless’s stock transfer ment. (“PECO”) Equipment Company Peerless 600,000 of Peerless stock cate that shares they program developed a software when from the Hubbards were transferred of atten- that attracted a tremendous amount making him the January Thrift on agreed that tion. PECO and the Hubbards Thrift tes- majority of Peerless. shareholder spin PECO’s software the Hubbards would possession of the requested tified that he independent company, Peer- received, into an stock, division but that pledged which he (“Peerless”), Corporation Technologies less in to him transferred the stock the Hubbards develop the new and market order company their own volition. books on (“EMIS”). retained the program PECO in dire that Peerless was testified Sandra soft- inventory, equipment, and the rights to straits, promising had but that financial Hubbards current level. The ware at its payment behind prospects. Peerless was holders, officers, majority stock were taxes, rent, employee employment employees Peerless. that, from the wages. Sandra transfer, PECO, her husband she and of the stock spun off from Peerless When majority share- company Thrift to be capital get the considered needed Therefore, she claims intro- holder Peerless. ground. The Hubbards were off the fully Thrift, financial condition agreed to invest that Peerless’s Terry who duced to that, per Thrift. claims disclosed to She receiving assurances that after in Peerless reports request, prepared status pledged was not the Hubbards’s stock weekly for progress almost capped. of Peerless’s salaries the Hubbards’s acknowledges re- Thrift’s review. company over to invest He continued receiving these status February questing but denies of several months. the course in- away. his estate have been Neither he nor factual is essential to the While Victor Hubbard 1. case, prosecution case. passed volved in the malicious since development he has because of threatening to lock the doors reports. requested He testified that he them was meeting in a he want- She claims unpaid so he could determine whether rent. Thrift, given Hubbards to ed to extend the line of credit he had he instructed the Hubbards, knowing space. Peerless. reduce office its lease needed be current Peerless Sandra Hubbard December offices, agreed to its it could move before engaged Thrift and Peerless $21,227.64 Wrigley account re- assign loan, swap” whereby gave a “check in satisfaction landlord ceivable Peerless in a hard- cheek to for use lease. This obligations under the purchase gave ware Peerless January of assignment made post-dated repayment. check in Thrift was Hubbard testified that enough money There in the account assignment. aware of this *4 cheek, but, to cover Peerless’s because Peer- coverage protection, less had overdraft 19, 1987, February Thrift and Peerless On anyway. paid bank the check line in the amount another of credit executed Also neces- in December it became $109,776.10. This line of credit extended sary rights for obtain to the Peerless to original 1986 line credit and included EMIS that retained software PECO had unpaid interest on the 1986 note. sec- when Peerless was formed. The evidence was collateralized with Peerless’s ond note disputed regarding impetus trans- of this However, party receivable. neither accounts action. Thrift contends Victor made for assets disputes that credit was purchase him to interest beseeched PECO’s already already appropriated and stock taken in the could EMIS software because Peerless the 1986 Thrift foreclosed on note. when payments. Conversely, not afford the lease Thrift contends that the Hubbards listed ap- Sandra Hubbard testified that Thrift $140,- of the accounts receivable the value proached personally the Hubbards about him Thrift to extend the in order to induce rights through to obtaining the software that, undisputed except for the loan. It is he would Peerless so that not be identifiable $10,000 of the Wrigley account another purchaser. as Sandra Hubbard further receivable, remaining accounts accounts company attorney testified that the advised days at the time older than 75 listed were purchase rights Thrift on his software agreement signed. The securi- security was own, doing but that Thrift insisted on it note indicates ty agreement on the second through Peerless. not include accounts that the collateral does event, any gave Peerless the days than older absent receivable $100,000 asking price purchase the EMIS consent. Sandra Hubbard rights from PECO. software gave a list of receivable the accounts $87,122.85 was an levy IRS on Peerless’s acknowledges regular basis. Thrift re- on a account deposited, Thrift’s check when showing one lists ceiving at least of these $87,122.55 $100,000 so intended to be January up receivable accounts purchase rights used to the EMIS was taken age included of each account. This list by deposit- as the IRS as soon check was Hubbard, by agreeing According to Sandra ed. she was Sandra Hubbard testified that accounts as collateral to use the receivable levy the check not aware of the IRS when note, Thrift not intend to for the either did deposited. The evidence reflects old or he con- receivables collateralize $100,000, repay Thrift his Peerless order to pursuant them sented to use as collateral $87,- a note in the issued Thrift amount security agreement. Sandra the terms $12,877.15 paid 122.55 him the difference only impression under the Hubbard was eventually purchased cheek. Thrift days old less than 75 were the receivables $75,000. his own for rights EMIS collateralized. Compa- to Wrigley of a sale As the result also that several ny, contends Peerless was due collect by the Hubbards receivable listed spring Sandra Hubbard testified accounts of 1987. fictitious, particularly a reeeiv- landlord January that in barely keep money just enough to that he able from NACO. Thrift company judgment I made a call money from afloat. discovered that no was due necessary company. funds —one NACO when he later took over the with these (and pro- of Peerless therefore to Hubbard testified that the receivable survival Sandra us). may agreed accurately the list was tect all of You not have was listed at the time it, made, right thing through. later fell but it seemed to be the but that the deal the time. do at February Thrift made Also Peerless another loan. Peerless needed money purchase hardware order to calling you time but thought I about at the. complete Wrigley contract. wrote make no myself that it would reasoned $17,981, indicating a check for Peerless difference, badly things considering how date, day it was a loan. On the same very thing best had deteriorated —and $17,981, Thrift a Peerless wrote check your you protect I was to could do post-dating days. it 11 Hubbard tes- trying keep Peerless total investment
tified that this transaction was another long enough alive to reduce the overheads. swap” post- “check loan. She stated that she overhead, if could not a reduced With days dated the check 11 because she was cash, it could at it on its own then make expecting some receivables and she felt sure *5 long enough sold tread water to be least money be to cover the check would else) (and everyone you whole. and leave Thrift the Peerless account within that time. not a testified that this transaction was letter, Hubbard noti- Also in this Sandra swap” that he “check loan. He contends and had fied Thrift Victor Hubbard the loan on assurances that he would made self-employed agents for one of Peer- become paid Wrigley out of the account. be back major stated account resellers. She less’s Hubbard testified that she never Sandra large they to take a had done this order pay the back stated Peerless would over- part of their out of Peerless’s salaries money Wrigley account. The from the receipt this let- Following Thrift’s head. complete buy was to hardware to loaned part May, Thrift and ter in the latter Wrigley stated that there is contract. She meetings regard- had several the Hubbards way purchased no Peerless could have ing Peerless. Thrift asked hardware, contract, invoiced completed enable sign documents which would several paid in 11 Wrigley Company, and been invest- him what he could of his to recover days. himself presented Thrift letters to ment. on Victor and others that he had drafted In March of Thrift had still de- Hub- asked Victor Hubbard’s behalf. Thrift $17,981 check, posited apparently on the letters, sign the all of which were bard to 9, 1987, In a March advice of the Hubbards. into The first letter introduced evidence. report, notified status Sandra Hubbard any receive and cash authorized Thrift waiting on mon- that Peerless was still Thrift The came Peerless. second checks that into large (e.g.Wrig- ey “from several accounts customers to make letter all Peerless notified you your I’ll as as ley’s) let know soon —so directly Thrift. Hubbard payments Victor go through!” In another status check can signed of these letters. both May Hubbard report dated Sandra Wrigley Thrift receivable notified effectually give operated A letter third in. letter stated that had come The equipment to Thrift assets and Peerless pay pursuant money was used to the landlord creditors. It stat- clear of all other free and assignment, wages (including back operation could not continue ed that Peerless Hubbards), operat- and critical those due the insolvency,” gave and it of severe “because explanation, the letter contin- ing bills. equipment Thrift access to all of ued: also stated that the and records. The letter equipment was not money pay company furniture and does not have the
Peerless Finally, supposed to be. you. it it owes where was you right now the allow the Hubbards letter asked Thrift to money the Bank One Wrigley not want Hubbard he did company, because soft- working agents him as continue with testified company. Schaefer working Thrift that he felt ware writers. to learn that disentangle surprised simple way to seemed be a that Thrift letter would being too hard else working somewhere himself from Peerless without the Hubbards on the Hubbards. Sandra Shaefer told marketing EMIS. sign the third refused they’re that she and Victor who don’t know Hubbards] “[The untrue they felt it contained letter because with them get I’ll even messing with. and was unethical. statements Thrift continued it takes.” long how matter Software, Inc. EMIS company as acknowledges that he threatened to eventually it. sold years and several charges against Hubbards be- file fraud they comply his wishes. cause refused 26, 1987, the Hubbards May Thrift and On said, “I Hubbard testified that regard- agreement separation entered into friends, making I it” have can do when things, Among other ing Peerless. threat was threat. Thrift claims that the regain Thrift would provided that agreement merely negotiation tool. as a idle used equipment, receive company possession of 22, 1987, May dated the Hub- a letter receivable, and obtain all accounts title to resigned company. from the The let- bards company offices. possession acknowledged majority interest ter that Thrift provided further agreement to transfer company and his desire employee responsibility for would assume by stating that company It continued assets. obligations. The Hubbards wages rent part to be a the Hubbards did not want “major right sell EMIS as retained the they had a activity because felt Peerless such the fixed assets and to use account reseller” if paying creditors good chance of its other Fi- doing so. already possession in their operate. continued to provided that nally, agreement *6 22, 1987, May Thrift turned over Also on charges against the pursue fraud not would company Peerless stock to the of his the Hubbards would Hubbards and that attorney. contends he did this before he He any Thrift assumed represent anyone that resignation. the Hubbards’s letter of received a share- liability or that he was of Peerless contends that he turned Sandra Hubbard holder, officer, employee or of Peer- director after he received their letter. San- the stock included this that he less. Thrift testified that she believes dra Hubbard testified the agreement because provision the last in his stock because he did not Thrift turned un- referring creditors and were compa- totally responsible for the want to.be him, claiming that he happy customers resigned. ny’s after the Hubbards liabilities “in company and was the software owned Thrift claims he returned the stock because charge.” the Hubbards it was worthless and because abdicating responsibility for Peerless appar- provided that “It is agreement The majority by claiming Thrift the that was immediately funds there are no ent that stockholder. enough to adequate be available that would demands_” Neverthe- satisfy [Thrift’s] thereafter, Shortly Thrift took over the 4, 1987, less, deposited the Thrift on June Shaefer, chief Bill Peerless’s Peerless office. Predictably, would the bank check. that Thrift entered operating officer testified that he Thrift testified not honor the check. Friday morning intro- the office on knowledge spite cheek in of his deposited the majority stockholder. as the duced himself “hop- insolvency because he was jobs and employees their He offered money in the ac- ing might [some be they wages if would agreed pay them back hand, Hub- Sandra the other However, count].” On Thrift for him. continue to work deposited Thrift that bard contends he employees that explained later money in the knowing there was no check wages back because pay could with a a check in order to obtain account for other Peer- him to be liable would cause up for the Hubbards stamp and set to fire NSF Schaefer Thrift instructed less debts. son, charges. working for the fraud was who the Hubbards’s 9, 1997, independent July complaint conducted an
On Thrift sent the Hubbards agreement that, during separation declaring letter testified evaluation. Sifuentes null an investigation, operating and void. He the Hub- he under claimed was Thrift, regarding by him assumption, bards deceived the collectabili- created receivable, ty accounts re- attempting purchase and existence of Peerless when company equipment, and fused to return alleged place. The took case was acts by agreement. failed to otherwise abide eventually transferred to Assistant District 13, that, July Sandra Hubbard testified Attorney Davis Jane who also conducted 1987, sent Thrift a she Victor Hubbard investigation. Davis testified rebutting allegations July in his letter thought against that the ease the Hubbards informing Thrift if the letter and later, very good. years Three in March void, separation they agreement was would grand jury Victor Hub- indicted place. compete with him in the market Hub- bard. December of mis- bard was also indicted on two counts 20, 1997, July a complaint On Thrift filed fraud, funds, application of one count Attorney’s County Bexar with the District reset a one count of theft. The case was Hubbards, against alleging theft of Office years. next number times over the three he accounts receivable. testified that time, passed During that Victor Hubbard complaint pursuant filed the directions away. Attorney of Assistant Ben Sifuentes. District He he does not remember what documents During prosecution, course of complaint, repeatedly attached to but he again reassigned, to Assis- case was this time complaint.” “stand[s] [his] testified he Attorney Chumbley. Dwight tant District provided complaint was not Chumbley that the case was old actually copy filed as had thrown his it, stayed got he the time but that away and the D.A.’s office could not locate its meticulously involved, provide offering to him copy complaint file. A from obtained kept He that he be- documents. attorney in a related civil suit was enough lieved there was instructed admitted trial. an indictment. Sandra Hubbard regarding the situation and allowed to make affidavit, testified, he also via regarding veracity its decision own there was insufficient evidence convict actually complaint admitted. beyond prove allegations a rea- otherwise *7 6,1993, sonable doubt. On December Chum- (1) complaint, alleged In he the bley filed a to the case. The motion dismiss gave note against the Hubbards a Peerless’s Chumbley’s to reflects that motion dismiss in the of accounts receivable amount dismissing was: explanation for the case previous note an effort to refinance a of In the interest “[co-defendant] deceased. (2) due; of scheduled to come a list receiv- justice.” $140,392.75 in the amount of was ables by pledged exchange the for Hubbards 1994, 26, August sued On Sandra (3) note; this check for added a Terry prosecution. Thrift for malicious note; (4) principle amount of the the the jury. a returned case was tried to reported progress never Hubbards Hubbard, finding a verdict favor (5) requested; as had he went to their he damaged had in the amount that she been they gone and had office and found that trial, $524,760. filed a motion for new agent as of Peer- started a new business jury findings, and a disregard a the motion they siphon profits less from Peer- so could notwithstanding the judgment motion (6) less; un- purposefully the and verdict, trial all denied the of which were $7,887.25; lawfully reduced the receivables reflecting jury’s the ver- judgment A court. (7) included a ficti- and the Hubbards had appeal and ensues. dict was entered (NACO) origi- account receivable tious pledged nal receivables. list AND ARGUMENT AUTHORITY error, Thrift points of Attorney In his first four Ben Sifuentes Assistant District sufficiency legal challenges and factual assigned ease. He reviewed the the to the
77 op- unjustifiable and from pertains in freedom jury’s verdict as to both liabili vidual charges. ty legal litigation in damages. considering pressive In of criminal and Lieck, pro- only sufficiency point, we the evi order consider 881 S.W.2d balance, must dence favorable to the decision of the trier courts re- delicate tect this disregard fact and infer proof evidence of each element quire strict contrary. City ences San Davis v. action. Id. at 291. as cause of (Tex.1988). Antonio, 518, action, 522 If 752 S.W.2d if the ele- any other cause of there than a is more scintilla of evidence liability established. proved, are is ments support finding, Keever, chal no evidence Id.; County v. Bank see Ellis State lenge Stafford, (Tex.1994). fails. v. 726 S.W.2d 790, 793 888 S.W.2d Stafford 14, (Tex.1987). considering a factual 16 A. and Causation Commencement sufficiency point, we must the evi assess all only for a if the dence and reverse trial new a criminal dispute There is conscience, challenged shocks the prosecution against was commenced Hub bias, clearly against demonstrates or is so bard, thereby establishing the first element great weight preponderance of the prosecution cause of action. of a malicious manifestly unjust. that it is Pool v. evidence However, Thrift that Hubbard contends Co., (Tex. Ford Motor 715 S.W.2d 635 pro prove that Thrift initiated or failed Bain, 1986); Cain S.W.2d prosecution. cured the commencement (Tex.1986). analysis, Under this are not we if prosecution person A initiates criminal he finders, pass fact upon we do not the credibil charge a formal to law enforcement makes witnesses, ity of nor do our we substitute Lieck, at 292. A authorities. 881 S.W.2d judgment fact, that of the if trier of even person if procures prosecution a criminal conflicting upon is which enough prosecution, actions are cause the supported. different conclusion be could actions, prosecution and but for his would Clancy Corp., v. Zale S.W.2d person not have occurred. Id. A does not n.r.e.). (Tex.App. writ ref 'd — Dallas prosecution criminal when the procure a de prosecute left to cision whether I. Malicious Prosecution another, including a law en discretion of error, In his first Thrift con jury, grand official or forcement unless tends legally that the evidence is both person provides which information he jury’s factually insufficient to Id. that be knows is false. prosecution. finding of malicious This court arrest cause he did not direct Hubbard’s recently has that in prevail noted order to Attorney’s District because the Office and case, prosecution following malicious grand exercised sole discretion (1) elements must be established: a criminal Hubbard, deciding prosecute he could prosecution commenced pros procured initiated have neither nor (2) plaintiff; prosecution was initiated ecution. (3) procured defendant; prosecu *8 case, sworn, a present In the Thrift filed (4) tion in favor plaintiff; terminated of the complaint with the District notarized form (5) innocent; plaintiff the the defendant Attorney’s complaint office. The itself states probable instigate prose cause to the lacked purpose of insti- that it is made the sole (6) cution; in the defendant acted with malice tuting prosecution criminal where the inves- (7) prosecution; the bringing about the activity. tigation indicates criminal damages plaintiff a of the suffered as result 92, complaint lists Sandra Hubbard as co-de- Funke, prosecution. v. Zess 956 S.W.2d repeatedly accuses her of nu- 1997, n.w.h.); fendant (Tex.App. 93 Antonio see — San Indus., Lieck, illegal acts. merous While Browning-Ferris v. 881 Inc. (Tex.1994). filing complaint 288, mere of a does not that the 292-93 In cases S.W.2d prose- the initiation of a criminal prosecution, a balance constitute malicious delicate cution, unnecessary it address we find to this must between interest of soci be struck the because, though the decision ety good reporting suspect faith even contention ultimately prosecute indi- Hubbard was made criminal conduct and interest of the to 78 Hubbard, office,- charges against
by Attorney’s lying the criminal the District that had sufficient to that Thrift should not have concluded evidence believe intentionally misleading included false in her prosecution ended favor. Thus, complaint. information evi- in his However, issue, addressing the same support finding dence is sufficient to that courts, including supreme our Texas several procured prosecution of Sandra Davis, court, 752 have held otherwise. See Hubbard. 523; v. Nat. Ins. at Leal American S.W.2d Specifically, Thrift in his com- indicated Co., 592, (Tex.App —Corpus S.W.2d . $17,- plaint Attorney District that denied); 1996, writ Closs v. Goose Christi part 981 check line of was a the second Dist., Ind. School 874 S.W.2d Creek Consol. credit he to extended Peerless. 1994, 859, (Tex.App. — Texarkana trial evidence indicates that the writ); City Lang Nacogdoches, see also separate independent awas loan. Thrift (Tex.App. Tyler 942 S.W.2d — Attorney also told the District that the Hub- denied) (implying dismissal writ favorable pledged bard’s himto accounts receivable in dismissed). charges were where criminal $140,392.75, the amount of there when is Davis, reject supreme specifically court evidence that he knew this untrue. to be He Thrift’s, argument holding ed an similar up kept further claimed that he neces on the merits is not a that termination operations date on the Howev- Peerless. sary requirement prosecution of a malicious er, reports Sandra Hubbard testified that Davis, 752 at cause of action. S.W.2d 523. fact, given weekly. were Thrift almost “even the termi The court held that when reports several those were admitted into guilt, is as to the accused’s nation indecisive evidence. prosecution is favorable if the it nevertheless Further, implied complaint in his Likewise, Leal, Id. cannot be revived.” May surprised he was court that dismissal of the criminal held learn that Thrift’s had another “started charges against the accused ter constituted siphon profits. business” order Peerless prosecutor mination on the merits where the Conversely, evidence reveals that Thrift criminal testified that he concluded that the major acting as knew Leal, prosecution might not be successful. for Peerless and that he account resellers 597; Closs, 874 928 S.W.2d at see also Finally, acting As- agreed to them as such. S.W.2d Attorney testi- Ben sistant District Sifuentes case, present In the At- Assistant District investigation he fied that conducted torney Chumbley that Dwight he upon informa- Hubbards and Peerless based pros- conducting dismissed case after untrue, given to him Thrift that was tion conclud- eight ecution to ten months and pur- attempting that is Thrift was ing longer a good that was no case. He theft took alleged when the chase Peerless acknowledged probable cause
place. Accordingly, the evidence sufficient indictment, support original but that prosecution of to establish that the criminal enough there was to obtain a not have occurred Hubbard would clearly conviction. This evidence is sufficient Terry filed Thrift. complaint but for the support finding prosecution Favor B. in Hubbard’s Resolution case terminated Sandra Hubbard’s favor. the ev Thrift further contends is insufficient
idence C. Probable Cause *9 in prosecution in this case ended the Finally, Thrift contends that the Thrift Particularly, Hubbard’s favor. insufficient, in respects, is evidence in favor of the that an action terminates support finding probable a that Thrift lacked acquit only there accused where has been prosecution a cause initiate criminal all of the and a of some or tal resolution against cause Sandra Hubbard. Probable present In the of the case. factual elements prosecution a criminal case, for the initiation of that because there was no Thrift claims when relevant facts and circum- adjudication facts under- exists the the resolution or
79 Wrig- priating money the received from the in the mind of a stances would excite belief person ley list of accounts receivable reasonable that the individual accused account. The misrepresented to him guilty prose alleges is of the crime which he is Thrift Dahl, 917, 921 The clearly age cuted. Akin 661 S.W.2d of each account. shows (Tex.1983), denied, 938, 104 agreement cert. 466 U.S. to the fine security relevant (1984). provides 80 460 he specifically S.Ct. L.Ed.2d that credit he issued any re- accept as collateral did not have determining probable whether days. The could ceivable older than 75 case, prosecution in a exists malicious cause reasonably that receiv- concluded have of fact determine “whether the trier must honestly represented Thrift ables were complainant reasonably believed that the ele he the conscious decision and that made of a crime based ments had been committed spite large the line of credit of the issue on the information available before the crimi percentage of old receivables contained Richey proceedings began.” nal v. Brook certainly supports The the list. evidence Co., (Tex. Grocery shire 952 S.W.2d 519 not have believed that fact that could 1997). is, therefore, important It that personally pledged the old Sandra Hubbard probable inquiry only cause focus on the security agree- their own receivables because complainant, upon of the his actions based doing without prevented ment her from so perspective report of the facts at the time the approval. Thrift’s made, subsequent not on the actions third-parties information af $17,981 discovered Thrift himself testified Akin, 921; Digby ter fact. at 661 S.W.2d part the line of as he note was not credit Bank, (Tex. v. Texas 943 S.W.2d 920 in his At- complaint claimed District denied). App. Paso writ deposit- torney. He further testified that he — El $17,981 check he knew ed Peerless’s when in a defendant malicious he Peerless was insolvent and account prosecution pre case is afforded the initial why. knew There is he sumption reasonably acted and in portion Wrig- large that a was aware good initiating proceeding faith in a criminal already ley pledged receivable had been against plaintiff. Richey, at S.W.2d he that his Peerless’s landlord before claimed Keever, 517; 794; Akin, at S.W.2d by Wrig- loan was collateralized However, presumption at 920. this is S.W.2d a ley supports account. The evidence also plaintiff produces rebutted when the evi finding that Thrift was aware that his motives, beliefs, grounds, dence that the Wrigley might paid not out loan be upon other evidence which the defendant act complaint. receivable as he stated his probable ed did not constitute to com cause Hubbard Thrift also Letters from Sandra proceeding. then mence Id. burden finding a was aware prove shifts to the defendant to he acted with he the Hub- the Peerless receivables claimed probable cause. Id. When facts sur legitimate bards stole were used for business rounding impetus defendant’s deci purposes. instigate a prosecution sion to criminal are dispute, probable the issue of cause becomes testimony good concerning his question re mixed of law and fact to be faith belief that the Hubbards had stolen jury. Richey, by the solved S.W.2d compelling. is the evi- investment Akin, 518; at 920. 661 S.W.2d supports finding also that Thrift was dence gambled and lost disappointed investor who may jury’s agree we with the While keep fledgling company that ease, on a could probable lack of cause in above Where the evidence its head water. certainly sup- evidence to sufficient conclusions, supports differing we must defer port finding. such accused Sandra jury’s It is verdict. reasonable of theft of accounts receivable. proving interpret the evidence this case as Specifically, misrepresent- he her of accused complaint criminal that Thrift filed his ing accounts receiv- the value Hubbards, able, knowing spe- repayment him a it was giving “bad check” *10 Peerless, cious, avenge invest- misappro- attempt made in an his lost of a loan he findings jury’s of advantage supporting in the evidence gain ment or to civil $437,- damages. from Hubbard litigation stemming these same facts. awarded fact, fees, $2,500 attorney attorney’s in damages: In Thrift testified that his own in $150,000 against charges against $275,000 injury reputation; filing advised him distress; do for lost when he threatened to so. for emotional manner, in this the evidence wages. When viewed is support finding sufficient a that did Reputation Injury A. reasonably believe the Hubbards had him, and, therefore, money from stolen error, point of his second probable instigate cause to criminal lacked support contends that the evidence does
proceedings against Sandra Hubbard. damages injury to jury’s of award D. Malice there reputation. argues He that Hubbard’s possessed that Hubbard a is no evidence respect element With of community respect in the certain amount of malice, that the evidence is a x’esult the criminal that she lost as support finding that he insufficient to acted that charges against her. He further claims reporting with malice in Hubbard’s conduct there was is insufficient because evidence Attorney’s may Malice to the District Office. no evidence that Hubbard’s indictment by either direct or circumstan be established publicized. ever may tial evidence and be inferred from lack 922; Digby, probable at cause. 943 S.W.2d trial, that she was At Hubbard testified (Tex. Beach, Fisher S.W.2d extremely computer software involved writ). gen App. Malice is — Dallas had prior to her indictment. She business will, motive, erally gross as ill defined evil coi’po- large been and continued to work with indifference, disregard of or reckless designing agencies and government rations 922; Digby, at rights of others. 943 S.W.2d she had computer opinion, her software. Closs, 874 S.W.2d reputation” in the technol- “quite very good case, that ogy industry. Hubbard present In the there is sufficient also heavily involved church activities evidence Thrift acted she was to demonstrate that Sunday taught grade that fifth filing complaint accusing she with malice of theft. There is evidence school. Sandra Hubbard exculpatory that Thrift aware of facts After indictment returned Attor- that he not disclose the District did her, not to she chose ney, specifically regard his exercise of op- promising employment seeking continue operations, the circum- control over Peerless portunities government agencies be- with loan, pri- surrounding stances she have had to disclose cause would knowledge collectability ac- her. pending against was an there indictment receivable, regarding and his counts beliefs attempt to technol- also chose not to sell She Moreover, is evi- Wrigley account. industry-wide ogy developed she had because Hubbards with dence that he threatened the diligence requirements mandated due “get even” charges and criminal vowed indictment. Because she disclose the Hubbards. record, contin- is still on her she indictment conclude, upon thorough based re- We required to be to disclose its existence ues record,
view the Likewise, will dealings. her business jury’s affir- is case sufficient always the indictment have to disclose regarding element mative each asking for applications official forms and first prosecution. malicious Hubbard, “it According to such information. is eiTor oveiruled. reputa- “it poison pill” killed [her] is stated, stepdaughter Her and the tion.” Damages II. “nobody going to apparently agreed, that somebody ... with through points want to work with fourth In his second error, sufficiency reputation.” kind of disputes *11 they activities, Horn, ... I mean everything and Jerry thoughts As for her church were, they testi- of Hubbard’s friends from church and get one where worked hard relinquished responsibil- her that Sandra fied away.” gone, was all taken her ities and decreased involvement of dam- that the award Thrift’s contention infor- activities. He testified if church required evidence distress ages for emotional regarding her indictment had been mation eat, sleep required or not that Hubbard could known, it her widely have discredited would care, experienced psychiatric ministry. medication abuse as or fell into substance depression, any of Thrift did counter this evidence. unfound- charges against her is result circumstances, Under these reason- supports in this case The evidence ed. ably Hubbard suffered concluded that had daily was sub- finding that Hubbard’s routine her damage reputation amount $275,000. disrupted by anxiety and relat- stantially is fear Such a reasonable light gross stigma her, social attached charges pending ed charges criminal that Hubbard be bur- will surrounding by the strain mention emotional socially professionally both dened with at over preparation her for and attendance long as her as indictment remains on proceedings as a criminal defendant. 15 court point Thrift’s is record. second of error jury’s for mental an- award of overruled. was, therefore, guish appropriate. B. Emotional Distress point of error is overruled. third error, point In his third Wages Lost C. contends that evidence is insufficient jury’s support damages award of for error, In her fourth emotional distress neces because award that the evidence insufficient contends sitates an inference of humiliation. We dis jury’s past for support damages award of agree. The evidence reflects Hubbard at trial wages. evidence introduced lost grand indicted counts was four wage support claim for lost Hubbard’s activity reflecting negatively of criminal damages consists of Hubbard’s estimation character, her and that she remained under pre spent approximately hours that she years. indictment over three to, for, paring traveling making seven testified that she had to sit with other crimi ten- appearances court and seven four-hour nal defendants who were chained and attend appearances indictment hour court while the ed guards during appear her fifteen court had pending. testified that if she was She that, during ances. further testified She making appear traveling court not been hearings, “glossy eyed” these she endured ances, working. asking why she would have been She “pawing” on-lookers at her spent years billing was there. over She three her further testified that standard assisting fearing in her defense and a convic hour. programming $100 rate charges. tion unfounded She testified insuffi- that the evidence is it was “terrible.” wages support the award of lost cient to that she Hubbard testified discontinued testimony constituted because Hubbard’s her church activities because she feared mis- object speculation. did not leading people they her faith if about discov- testimony at allegedly speeulatory to this ered that she was under indictment. She any controverting he evi- trial nor did offer dealings and about her business also worried clear, testimony de- dence. Hubbard’s projects applying for certain because feared finitive, personal knowledge— and within her compelled be to disclose the indict- she would evi- speculative. Accordingly, the it was not attorney ment. Hubbard’s criminal jury’s is sufficient dence times, “crying, many a nervous that she wage damages lost the amount award of stepdaughter wreck.” Hubbard’s $9,800. point of is over- Thrift’s fourth error up the Hubbards’s criminal defense took all time and of their ruled. “pretty much of their
82 Juey Charge bringing an offender to than of
III. other justice. error, In his final of complains that the erred in over trial court (Second) § Torts 668 Restatement objection ruling jury his instruction Page (1997); al., W. see et PROSSER Keeton regarding actu jury malice. instruction § 119 at torts on the law of and Keeton ally given an jury allowed the to make affir (5th ed.1984) (citing Nesmith v. & n. 65 883 finding malice element regarding mative Cir.1963), (5th cert. Alford, F.2d 110 318 prosecution of malicious if it determined: 489, denied, 975, 11 U.S. 84 S.Ct. 375 (1964) Thrift, proposition mal L.Ed.2d 420 Terry malice in acted with Jr. pri the defendant’s where
initiating
prose
ice is established
procuring
or
the criminal
something other than the
cution,
mary purpose was
procured
or that he
or
it
initiated
justice).
bringing an offender to
primarily
purpose
bring
for a
other than to
justice;
an offender to
that he
Thrift’s burden to establish
It is
“Malice” is ill
motive or such
will or evil
by the trial court’s submission of
was harmed
disregard
gross
or reckless
indifference
malice issue to such
allegedly erroneous
rights
for the
as to amount to
others
caused
degree
probably
that the error
a
action, knowingly
wanton
willful
judgment.
improper
an
rendition of
Tex.
unreasonably done.
Tex.R.App.
44.1(a) (formerly
R.App.
P.
P.
81(b)(1)).
contention,
Contrary
above,
finding
discussed
a
of malice is
As
upon
jury may
that the
have relied
the fact
necessary
prosecu
ato
successful malicious
theory
does not nec
legal
submitted
error
consistently
tion case. Malice has been
de
essarily require
it does
reversal because
not
Texas
it was defined
fined
courts as
affirmatively
demonstrate that
error
will,
charge
case: ill
evil
the court’s
in this
improper
an
probably caused rendition of
motive,
indifference,
gross
or reckless disre
Co.
Fisher,
67;
judgment. Provident American Ins.
v.
Dahl
gard. See
671
v.
S.W.2d
Castaneda,
273,
(Tex.App.—
914 S.W.2d
277
Akin,
506,
(Tex.App.
645 S.W.2d
515
ari — Am
1996,
granted).
El Paso
writ
1982),
(Tex.1983),
aff'd,
llo
661
917
S.W.2d
1911,
denied,
466
104
80
cert.
U.S.
S.Ct.
showing
order make a sufficient
(1984). However,
460
the court’s
L.Ed.2d
harm,
no
must
that there is
show
charge
goes beyond
in this case
the common
finding
insufficient evidence to
and allows an affir
law definition malice
upon
portion
of the malice
correct
based
upon
mative
of the malice element
jury.
submitted to
Ford Motor Co.
issue
prosecution
sought “pri
proof that
Pool,
(Tex.App.—
688 S.W.2d
bring
marily
purpose
for a
other than to
1985),
part
Texarkana
and rev’d in
aff’d
justice.”
offender
(1986) (affirming
part,
error we find that Thrift suffered
Because a result of the inclusion
harm as definition of malice in
Restatement *13 propri-
charge, pass will not on the actual we
ety charge. Thrift’s fifth
error overruled. judgment affirmed. trial court is Justice,
GREEN, dissenting on motion for
rehearing. rehearing should be
Appellant’s motion
granted damages Because the issues. motion, majority deny
panel has voted to respectfully
I dissent. INC., STORES, Appellant,
WAL-MART GARCIA,
Enriqueta Appellee.
No. 04-96-00592-CV. Texas, Appeals of
Court of
San Antonio.
Feb. 1998.
Rehearing April Overruled