For=20 The
MIKE =
MUSSELWHITE,=20
MIKE'S POOLS AND SPAS, PAT STALSBY, and AMANDA WATSON,=20
Appellants JOHN =
HOWARD,=20
Appellee
On =
Appeal from the=20
269th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2002-47293
Appellants, Mike Musselwhite, =
Mike's=20
Pools and Spas, Pat Stalsby, and Amanda Watson, appeal from the =
trial=20
court's judgment that found them liable for negligence, gross =
negligence,=20
libel and slander, business libel and slander, malicious =
prosecution and=20
conspiracy against appellee John Howard. The case was tried before =
the=20
bench, and the trial court awarded Howard $20,000 in damages. In =
four=20
issues concerning the claim for malicious prosecution, appellants =
contend=20
that the evidence is legally and factually insufficient to support =
the=20
trial court's findings (1) that a malicious prosecution was caused =
by or=20
through the aid and cooperation of appellants, (2) that a =
malicious=20
prosecution "terminated in favor" of Howard, (3) that appellants =
had no=20
probable cause to report a crime to law enforcement, and (4) that=20
appellants' reporting of a crime was founded in malice. =
Appellants' three=20
remaining issues challenge the legal and factual sufficiency of =
the=20
court's finding of negligence, libel and slander, and conspiracy. =
We=20
conclude that the evidence is legally and factually sufficient to =
support=20
Howard's malicious prosecution claim. We therefore do not reach =
the=20
appellant's assertions that relate to Howard's other causes of =
action. We=20
affirm. Appellee=20
John Howard co-owned Planet Recreation, a business similar to =
Mike's Pools=20
and Spas, with his live-in girlfriend Terry Watson, Amanda's =
husband's=20
sister. Terry became angry with appellants when they located =
Mike's Pools=20
and Spas within 25 miles of Planet Recreation and entered into =
business=20
relationships with many of Planet Recreation's =
vendors. On January 3, 2003, a flat-bed =
trailer=20
was stolen from Mike's Pools and Spas. That March,=20
after hearing testimony from appellants, a grand jury returned =
indictments=20
for felony theft against Howard and Terry. When informed of the=20
videotape's existence, Terry admitted that she stole the trailer =
with=20
Johnson's help. She eventually accepted a plea bargain in exchange =
for=20
deferred adjudication community supervision, and the charges =
against=20
Howard were later dropped. No charges were ever filed against=20
Johnson. The present=20
case was initially brought by Terry, who later took a non-suit, =
and=20
Howard. Neither Terry nor any appellants were present at trial; =
appellants=20
were represented by counsel. Howard was the only person to =
testify. In=20
addition to attesting to the facts above, he stated that he was =
with=20
Amanda's husband at the time of the theft. Howard testified that =
Amanda=20
should have known his alibi was true because she saw him twice the =
night=20
of the theft, first when she picked up her husband, and later when =
she=20
returned to pick up a coat that her husband had left behind. He =
testified=20
that Stalsby knew Johnson was involved because she went to =
Johnson's house=20
and photographed the truck. Howard also testified that he and =
Terry told=20
Stalsby, Musselwhite, and Amanda that Terry had taken the trailer =
without=20
Howard's involvement. Howard=20
related that he did not think the District Attorney wanted to file =
charges=20
in the case, but did so under pressure from Stalsby, Musselwhite, =
and=20
Amanda. He stated that after he and Terry posted bond, he learned =
that=20
appellants "said they had me on the videotape." Howard reported =
that the=20
District Attorney dropped the charges due to the videotape's =
failure to=20
show Howard. He also testified that he was allowed to listen to an =
audio=20
tape in which appellants pressured the District Attorney to =
re-open the=20
case after it had been dismissed. After=20
Howard was excused, the trial court viewed the videotape, and the =
parties=20
rested. The trial court found for Howard and awarded him=20
$20,000. Each of=20
appellants' seven issues on appeal includes a complaint that the =
evidence=20
at trial was legally and factually insufficient to support a =
finding of=20
liability for the various claims brought by Howard. A.=20
Standard of Review Appellants=20
first raised evidentiary complaints in a motion for new trial, the =
denial=20
of which is not before this Court. The issues before us on appeal =
are=20
somewhat broader than the contentions in appellants' motion for =
new trial.=20
However, when, as here, trial is held without a jury, complaints =
of legal=20
and factual insufficiency of the evidence may be raised for the =
first time=20
on appeal. Tex. R. App. P. 33.1(d); see also Nelson v. =
Najm, 127=20
S.W.3d 170, 176 (Tex. App.--Houston [1st Dist.] 2003, pet. =
denied). We=20
therefore address appellants' sufficiency issues as briefed. =
"The final=20
test for legal sufficiency must always be whether the evidence at =
trial=20
would enable reasonable and fair-minded people to reach the =
verdict under=20
review." City of Keller v. Wilson, 168 S.W.3d 802, 827 =
(Tex.=20
2005). We must credit favorable evidence if a reasonable =
fact-finder=20
could, and disregard contrary evidence unless a reasonable =
fact-finder=20
could not. See id. The evidence is legally sufficient if =
it=20
"would enable reasonable and fair-minded people to differ in their =
conclusions." See id. at 822. As long as the evidence =
falls=20
within the zone of reasonable disagreement, "[a] reviewing court =
cannot=20
substitute its judgment for that of the trier-of-fact." =
Id.=20
Although the reviewing court "must consider evidence in the light =
most=20
favorable to the verdict, and indulge every reasonable inference =
that=20
would support it[,] . . . if the evidence allows of only one =
inference,=20
neither jurors nor the reviewing court may disregard it."=20
Id. In=20
determining factual sufficiency, this Court weighs all the =
evidence, both=20
supporting and conflicting, and may set the finding aside only if =
it is so=20
contrary to the overwhelming weight of the evidence as to be =
clearly wrong=20
and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 =
(Tex.=20
1986); Comm'n of Contracts v. Arriba Ltd., 882 S.W.2d =
576, 582=20
(Tex. App.--Houston [1st Dist.] 1994, no writ). In reviewing this=20
challenge, we again examine the evidence to determine whether some =
evidence supports the trial court's finding. See Lewis v. =
United=20
Parcel Serv., Inc., 175 S.W.3d 811, 817 (Tex. App.--Houston =
[1st=20
Dist.] 2004, pet. denied). If some evidence supports the finding, =
we=20
determine, in light of the entire record, whether the finding is =
so=20
contrary to the great weight and preponderance of the evidence =
that the=20
finding is clearly wrong and manifestly unjust, or whether the =
great=20
weight and preponderance of the evidence supports nonexistence of =
the=20
finding. Id. In an appeal from a bench trial, we may not =
invade=20
the fact-finding role of the trial court, which alone determines =
the=20
credibility of the witnesses, the weight to give their testimony, =
and=20
whether to accept or reject all or any part of that testimony.=20
Nordstrom v. Nordstrom, 965 S.W.2d 575, 580-81 (Tex.=20
App.--Houston [1st Dist.] 1997, pet denied). When, as=20
here, the trial court issues findings of fact and conclusions of =
law, we=20
may review the findings of fact on legal and factual sufficiency =
grounds=20
and review the conclusions of law de novo as a legal question. =
See BMC=20
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. =
2002).=20
Although we may not review the conclusions of law for factual=20
insufficiency, we may review the trial court's legal conclusions =
drawn=20
from the facts to determine their correctness. =
Id. B.=20
Malicious prosecution In their=20
first four issues, appellants assert that Howard presented legally =
and=20
factually insufficient evidence to prove liability for malicious=20
prosecution. To recover=20
on a claim of malicious prosecution, the plaintiff must=20
establish: =95 the=20
commencement of a criminal prosecution against the=20
plaintiff; =95 causation=20
(initiation or procurement) of the action by the =
defendant; =95=20
termination of the prosecution in the plaintiff's =
favor; =95 the=20
plaintiff's innocence; =95 the=20
absence of probable cause for the proceedings; =95 malice in=20
filing the charge; and =95 damage to=20
the plaintiff. Richey=20
v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). A =
plaintiff is required to prove these elements by a preponderance =
of the=20
evidence. Ellis County State Bank v. Keever, 888 S.W.2d =
790, 793=20
(Tex. 1994). Appellants contend that the evidence is legally and =
factually=20
insufficient to show that they initiated or procured the action, =
that the=20
prosecution terminated in Howard's favor, that they lacked =
probable cause,=20
and that they acted with malice in bringing charges. In their=20
first issue, appellants contend that there is no evidence or the =
evidence=20
is legally and factually insufficient to support a finding of =
liability=20
based on the second element of Howard's malicious prosecution =
claim,=20
initiation or procurement of the action. Specifically, they state =
that=20
Howard has not presented sufficient evidence that they made any =
false=20
statements to the District Attorney, or that the District Attorney =
relied=20
on any such statements in proceeding with Howard's prosecution. =
See=20
Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 294 =
(Tex.=20
1994). Appellants contend that Howard's only evidence that they =
knew their=20
report to the District Attorney was false was that Terry told =
appellants=20
and others that she stole the trailer without Howard's =
participation, a=20
statement which they contend appellants and the District Attorney =
were=20
entitled to disbelieve. They further contend that because the =
District=20
Attorney did not testify at the trial, there was no evidence that=20
appellants made false statements to the District Attorney or that =
the=20
District Attorney relied on any false statements that may have =
been=20
made. Howard=20
responds that the evidence showed that the appellants knew that he =
did not=20
take the trailer. Regarding appellants' knowledge that the =
statements to=20
the District Attorney were false, Howard states that the evidence =
shows=20
that: =95 Amanda=20
Watson knew Howard did not steal the trailer because she picked up =
her=20
husband at Howard's house on the night the trailer was taken, =
returning=20
later for a coat her husband had left behind; =95 Stalsby=20
knew Howard did not steal the trailer because Johnson's truck was =
clear on=20
the videotape, and Stalsby would have recognized the =
truck; =95=20
appellants all knew Howard did not steal the trailer because =
Terry, who=20
did take the trailer, told appellants that Howard did not commit =
the=20
offense with her. Howard=20
further contends that the evidence shows that the charges against=20
him--brought two months after the theft--were filed solely because =
appellants claimed the security camera videotape clearly showed =
Howard=20
taking the trailer, a statement that they knew to be =
false. For a=20
finding that a plaintiff has met the initiation-or-procurement =
element of=20
a malicious prosecution claim where the decision to prosecute is =
left to a=20
law enforcement official or the grand jury, the evidence must show =
that=20
the defendant knowingly provided false information, and also that =
the=20
false information caused a criminal prosecution. King v. =
Graham,=20
126 S.W.3d 75, 76 (Tex. 2003). "[T]he plaintiff has the burden of =
proving=20
that that decision would not have been made but for the false =
information=20
supplied by the defendant." Id. at 78. We may not=20
invade the fact-finding role of the trial court in a trial before =
the=20
bench. See Lilley v. Lilley, 43 S.W.3d 703, 705-06 (Tex.=20
App.--Austin 2001, no pet.). The trial court's fifth finding of =
fact=20
states that "The defendants . . . filed a criminal =
complaint for=20
the theft of a trailer with the Liberty Couny, Texas District =
Attorney=20
against . . . Howard." In its sixth finding of fact, the =
trial=20
court found that "The Liberty County, Texas Grand Jury, after =
hearing=20
testimony from [appellants], returned a true bill indictment of=20
. . . Howard for said theft." In its thirteenth finding =
of fact,=20
the trial court stated that "The court finds by a preponderance of =
the=20
evidence that [appellants] . . . commenced a criminal=20
prosecution against John Howard." In the light most favorable to =
the=20
verdict, we conclude that the evidence shows that the defendants =
initiated=20
or procured the accusations against Howard by knowingly using =
false=20
information. Howard testified that Amanda knew he was not at the =
crime=20
scene on the night the trailer was taken; that Stalsby recognized =
the=20
truck on the security video as belonging to Johnson; and, that =
each=20
defendant was told by Terry that Howard did not participate in the =
theft.=20
The trial court, in accordance with Howard's testimony that the =
District=20
Attorney only filed charges after appellants "started making =
accusations=20
that they were going to file charges," found that appellants filed =
a=20
criminal complaint against Howard. The trial court further found, =
in=20
accordance with appellants' counsel's concession at trial, that =
appellants=20
testified before a grand jury that then returned an indictment for =
theft=20
against Howard. Viewing this evidence in a light most favorable to =
the=20
trial court's judgment, we conclude that the evidence is legally=20
sufficient to establish the element of initiation or=20
procurement. Concerning=20
our factual sufficiency of the evidence review, weighing all the =
evidence=20
both for and against a finding on the element of initiation or=20
procurement, we conclude that the finding of liability is neither =
clearly=20
wrong nor manifestly unjust. As stated above, there is some =
evidence in=20
support of the court's finding that appellants knowingly made =
false=20
statements to the District Attorney and that the District Attorney =
would=20
not have proceeded against Howard but for those statements. =
Because=20
appellants direct us to no evidence in the record against the =
finding, and=20
because we have found none, we cannot conclude that the finding is =
contrary to the overwhelming weight of the evidence. We hold that =
the=20
evidence is both legally and factually sufficient to sustain the =
trial=20
court's finding on the second element of malicious prosecution. We =
overrule appellants' first issue. In their=20
second issue, appellants contend that there is no evidence or the =
evidence=20
is legally and factually insufficient to support a finding of =
liability=20
based on the third element of Howard's malicious prosecution =
claim, that=20
the prosecution terminated in his favor. They contend that Howard =
had the=20
burden to show that he was no longer in jeopardy of further =
prosecution.=20
Citing the supreme court's opinion in Davis v. City of San=20
Antonio, they assert that to prove this element, Howard was =
required=20
to show that the criminal action terminated in his favor on the =
merits, or=20
that the prosecution cannot be revived. 752 S.W.2d 518, 523 (Tex. =
1988).=20
They state that the only evidence Howard presented was his own =
testimony=20
that the District Attorney dismissed the charges against him, and =
that=20
this evidence, without more, does not prove this element of the =
cause of=20
action. Howard,=20
citing the Restatement of Torts, responds that proceedings were =
terminated=20
in his favor when the prosecutor formally abandons those =
proceedings.=20
See Restatement (Second) of Torts =A7 659 (1977) =
("Criminal=20
proceedings are terminated in favor of the accused by =
. . . (c)=20
the formal abandonment of proceedings by the public prosecutor."). =
Here,=20
he asserts, the indictment was dismissed and the charges dropped =
because=20
of insufficient evidence. Appellants=20
present an incomplete statement of the law as presented in =
Davis.=20
In that case, the supreme court said: The City=20
has not cited, nor have we found, any case absolutely requiring a=20
termination on the merits, e.g., a verdict of "not guilty," as a =
necessary=20
element of a cause of action for malicious prosecution. Instead, =
the=20
essential question seems to be whether "the proceedings have =
terminated in=20
favor of the accused." Restatement (Second) of Torts =A7 653(b) =
(1977). Even=20
when the termination is indecisive as to the accused's guilt, it =
is=20
nevertheless favorable if the prosecution cannot be revived. =
Id.=20
at =A7 660, cmt. g. An exhibit admitted at trial indicates that =
the=20
prosecuting attorney formally requested dismissal of all charges =
against=20
Davis because of limitations problems. Viewing the=20
evidence in a light most favorable to the trial court's verdict, =
Howard's=20
testimony established that the prosecutor abandoned the charge =
brought=20
against him, and not merely "particular proceedings." We hold that =
the=20
evidence is legally sufficient to support the trial court's =
finding in=20
Howard's favor on the element that requires proof that the =
termination of=20
the proceedings was in Howard's favor. Furthermore, because =
appellants=20
direct us to no evidence in the record against the finding, and =
because we=20
have found none, we cannot conclude that the finding is contrary =
to the=20
overwhelming weight of the evidence. We hold that the evidence is =
also=20
factually sufficient to sustain the trial court's finding on the =
third=20
element of malicious prosecution. We overrule appellants' second=20
issue. In their=20
third issue, appellants contend that there is no evidence or the =
evidence=20
is legally and factually insufficient to support a finding of =
liability=20
based on the fifth element of Howard's malicious prosecution =
claim, that=20
appellants lacked probable cause to bring proceedings against =
Howard. They=20
contend that "[i]t is undisputed that Appellants['] truck had been =
stolen=20
and that the video revealed that Terry Watson (the girlfriend of =
Appellee)=20
was involved along with another male who Appellants believed to be =
Appellee." They further contend that they were under no duty to =
inquire=20
into Howard's alibi. See Richey, 952 S.W.2d at 518 =
(quoting=20
Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 627 (Tex. =
App.--Houston=20
[1st Dist.] 1984, writ ref'd n.r.e.) ("A private citizen has no =
duty to=20
inquire of the suspect whether he has some alibi or explanation =
before=20
filing charges.")). They again point out that Howard did not call =
the=20
District Attorney "to establish what facts offered by Appellants =
that he=20
relied on, if any, in establishing whether there was probable =
cause that a=20
crime had been committed." Howard=20
responds that Amanda had no probable cause to believe he took the =
trailer,=20
because she knew he was home that night. He further contends that=20
appellants as a group had no probable cause to believe he took the =
trailer=20
because Terry Watson told them the next day that she had taken it =
with=20
Johnson's help. Finally, Howard points to the videotape, where =
Johnson's=20
truck was recognizable but where he could not be seen. Taken =
together,=20
Howard argues, "the beliefs and evidence Appellants acted on did =
not=20
amount to probable cause." Probable=20
cause is defined as "'the existence of such facts and =
circumstances as=20
would excite belief in a reasonable mind, acting on the facts =
within the=20
knowledge of the prosecutor [complainant], that the person charged =
was=20
guilty of the crime for which he was prosecuted.'" =
Richey, 952=20
S.W.2d at 517 (quoting Akin v. Dahl, 661 S.W.2d 917, 921 =
(Tex.=20
1983), cert. denied, 466 U.S. 938, 104 S. Ct. 1911=20
(1984)). In=20
malicious prosecution actions, we are to presume that the =
defendant acted=20
reasonably and in good faith and had probable cause to initiate =
the=20
proceedings. Richey, 952 S.W.2d at 517. "That presumption =
disappears once a plaintiff produces evidence that the motives, =
grounds,=20
beliefs, and other evidence upon which the defendant acted did not =
constitute probable cause." Id. at 518. The burden then =
shifts to=20
the defendant to offer proof of probable cause. Id. In=20
determining probable cause for the purposes of a malicious =
prosecution=20
claim, "[i]t is the events prior to the institution of the =
proceedings=20
which must be examined, and only those events, to determine if the =
defendants had probable cause to act." Akin, 661 S.W.2d =
at 920.=20
When, as here, the facts and events leading up to the initiation =
of=20
prosecution are undisputed, probable cause is therefore a question =
of law.=20
Richey, 952 S.W.2d at 518. The issue before this Court is =
therefore whether the undisputed facts underlying the decision to=20
prosecute support a reasonable belief that Howard was guilty of =
theft.=20
See id. Here,=20
Howard presented legally and factually sufficient evidence to =
rebut the=20
presumption that appellants acted with probable cause. Viewing the =
evidence in the light most favorable to the verdict, the trial =
court could=20
reasonably have believed that Howard's absence from the videotape =
and=20
Terry's repeated statements declaring Howard's innocence were =
facts and=20
circumstances that would not excite belief that Howard committed =
theft.=20
The burden therefore shifted to appellants to present evidence of =
probable=20
cause. Appellants'=20
assertion that they had no duty to inquire into Howard's alibi =
misstates=20
the law. The supreme court has stated, "When the objective =
elements of=20
a crime reasonably appear to have been completed, a private =
citizen=20
has no duty to inquire whether the suspect has some alibi or =
explanation=20
before filing charges." First Valley Bank of Los Fresnos v.=20
Martin, 144 S.W.3d 466, 470 (Tex. 2004) (emphasis added). =
Appellants=20
presented no evidence that Howard was guilty of the objective =
elements of=20
a crime. Finally, despite their assertion in their appellate =
brief, there=20
is no evidence in the record before us that appellants believed =
that=20
Howard was one of the persons on the tape. We hold that the =
evidence is=20
legally and factually sufficient to support the trial court's =
finding that=20
appellants lacked probable cause to initiate proceedings against =
Howard.=20
We overrule appellants' third issue. In their=20
fourth issue, appellants contend that there is no evidence or the =
evidence=20
is legally and factually insufficient to support a finding of =
liability=20
based on the sixth element of Howard's malicious prosecution =
claim, malice=20
in initiating or procuring the theft charge against Howard. They =
state=20
that Howard presented no evidence or legally and factually =
insufficient=20
evidence to show malice because they were under no duty to inquire =
into=20
Howard's alibi, and because they were free to disbelieve Terry's=20
statements that Howard did not participate in the =
theft. In=20
response, Howard reiterates that: =95 Terry=20
confessed to the crime, and stated that Howard was not=20
involved; =95 Howard=20
did not appear on the security videotape; =95 Stalsby=20
would have recognized Johnson's truck from the videotape;=20
and =95 Amanda=20
knew Howard was home on the night of the theft. He states=20
that appellants pressured the District Attorney to bring charges =
despite=20
the above knowledge, and that they tried to get the District =
Attorney to=20
re-open the case after charges were dismissed. Malice is=20
defined as "ill will or evil motive, or such gross indifference =
for the=20
rights of others as to amount to a knowing, unreasonable, wanton, =
and=20
willful act." Luce v. Interstate Adjusters, Inc., 26 =
S.W.3d 561,=20
566 (Tex. App.--Dallas 2000, no pet.). Howard stated that at the =
District=20
Attorney's office, he was allowed to listen to phone calls and =
audio tapes=20
in which Stalsby and Amanda stated that they did not care whether =
he was=20
guilty or not. The trial court entered a finding of fact that =
states, "The=20
court finds that with regard to the truth of the statement, =
[appellants]=20
were acting with malice." Viewing the=20
evidence in a light most favorable to the trial court's judgment, =
the=20
evidence supports the contention that the bringing of theft =
charges=20
against Howard was a knowing, unreasonable, wanton, and willful =
act.=20
Furthermore, fair disclosure is relevant to the question of =
malice.=20
Martin, 144 S.W.3d at 470. Howard's testimony (1) that =
appellants=20
knew or had been told that he had not committed the crime, (2) =
that the=20
District Attorney only brought charges after appellants started =
making=20
accusations, (3) that appellants based their accusations on a =
videotape on=20
which Howard does not appear, and (4) that the District Attorney =
played=20
Howard a tape where appellants asked that the case be reopened =
after it=20
was dismissed, all lends further support a finding of malice. =
We hold=20
that Howard presented legally sufficient evidence to support the =
trial=20
court's finding that appellants acted with malice in initiating or =
procuring theft charges against Howard. Furthermore, because =
appellants=20
direct us to no evidence in the record against the finding, and =
because we=20
have found none, we cannot conclude that the finding is contrary =
to the=20
overwhelming weight of the evidence. We hold that the evidence is =
also=20
factually sufficient to sustain the trial court's finding on the =
third=20
element of malicious prosecution. We overrule appellants' fourth=20
issue. C.=20
Remaining claims If, as=20
here, a case is tried on more than one alternative theory of =
recovery, and=20
the fact-finder returns favorable findings on more than one of =
those=20
theories, then if one of the theories is declared invalid on =
appeal, then=20
the plaintiff may still recover under the alternative theory. =
See=20
Durban v. Guajardo, 79 S.W.3d 198, 207 (Tex. App.--Dallas =
2002, no=20
pet.) (citing Boyce Iron Works, Inc. v. Sw. Bell Tel. =
Co., 747=20
S.W.2d 785, 787 (Tex. 1988)). Having overruled appellants' =
sufficiency of=20
the evidence complaints relating to Howard's malicious prosecution =
claim,=20
we need not reach appellants' remaining issues, because even if we =
invalidated all of Howard's remaining claims, we would still =
affirm the=20
trial court's award of damages under his valid claim.
We affirm=20
the judgment of the trial court. Elsa=20
Alcala Panel consists of Justices =
Taft, Alcala,=20
and Hanks.=20
1. The trailer was recovered a few weeks =
later,=20
apparently undamaged, after an unidentified person called police =
and told=20
them where it was located. =