Summary
finding the filing of employee's civil suit against former employer for defamation, while underlying criminal trial for theft where he was found not guilty by a jury was resolved, would not have forced employee to adopt inconsistent positions in criminal and civil actions
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No. 04-04-00780-CV
Delivered and Filed: February 15, 2006.
Appeal from the 229th Judicial District Court, Jim Hogg County, Texas, Trial Court No. CC-03-148, Honorable Alex W. Gabert, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Vidal Palacios brought a civil suit against Baltazar Ramos and/or Balt Ramos, Inc. d/b/a Casa Blanca Golf Course ("Ramos") for defamation, malicious prosecution, wrongful discharge, and false imprisonment. Ramos filed a motion for summary judgment; the trial court granted the motion in part, dismissing Palacios's claims for defamation, malicious prosecution, and wrongful discharge. The trial court, however, denied the motion with respect to the false imprisonment claim. Ramos then filed a motion to change venue. The trial court granted the motion and transferred the case from Webb County to Jim Hogg County. In Jim Hogg County, Ramos filed traditional and no-evidence motions for summary judgment on the remaining false imprisonment claim. The trial court granted the motion, dismissing Palacios's false imprisonment claim. Palacios appeals, arguing that his claims should not have been summarily dismissed and that the case should not have been transferred to Jim Hogg County. We affirm the judgment of the trial court.
Background
From February of 1994 until July of 1996, Palacios worked at the Casa Blanca Golf Course ("Casa Blanca") in Laredo, Texas. Casa Blanca is operated by Balt Ramos, Inc., of which Baltazar Ramos is president. Palacios was one of four employees with access to the golf course's office; as one of the employees with access, he was required to account for funds he received. Each employee with access to such funds maintained a separate money bag.
On July 9, 1996, it rained heavily in Laredo, causing Casa Blanca to become unusable. The next morning, Palacios went to Casa Blanca; he claimed that he was there to see whether the golf course could reopen for business. Later that day, Ramos discovered that Palacios's money bag, containing approximately $1,300.00, was missing. On July 13, 1996, Ramos requested Palacios to meet with him and another employee, George Gomes, about the missing money. The meeting lasted approximately five hours. Because Palacios did not provide an adequate explanation for the missing money, refused to replace the missing money, or work it off, he was fired. Subsequently, Ramos filed a report of the incident with the police department. Palacios was later prosecuted for theft, but was found not guilty by a jury.
After he was acquitted, Palacios brought this civil lawsuit against Ramos alleging defamation, malicious prosecution, wrongful discharge, and false imprisonment.
Standard of Review
To obtain a traditional summary judgment, a party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the grant of a summary judgment, we must indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 549. In addition, we must assume all evidence favorable to the nonmovant is true. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 548-49. A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of the plaintiff's cause of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). Once the movant has established a right to summary judgment, the burden shifts to the nonmovant to present evidence that would raise a genuine issue of material fact on the challenged element. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
Under Rule 166a(i), a party may move for a no-evidence summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). We review a no-evidence summary judgment de novo by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no pet.). A no-evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact on the challenged element. Tex. R. Civ. P. 166a(i); Huff, 21 S.W.3d at 512. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion." Huff, 21 S.W.3d at 512. When the trial court does not state the specific grounds on which it granted summary judgment, we will affirm if any of the theories advanced is meritorious. State Farm Fire Cas. Co. v. S.S. G.W., 858 S.W.2d 374, 380 (Tex. 1993).
Here, the trial court did not state the specific grounds on which it granted summary judgment.
Defamation
In his first issue, Palacios argues that his defamation claim for slanderous and libelous statements should not have been dismissed. Slander is a defamatory statement that is orally communicated or published to a third person without legal excuse. Johnson, 891 S.W.2d at 646. "A libel is a defamation expressed in written or other graphic form that . . . tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation. . . ." Tex. Civ. Prac. Rem. Code Ann. § 73.001 (Vernon 2005). Article 16.002(a) of the Texas Civil Practice and Remedies Code provides that "[a] person must bring suit for . . . libel [and] slander . . . not later than one year after the day the cause of action accrues." Id. § 16.002(a) (Vernon 2002).
In his motion for summary judgment, Ramos argued that Palacios's defamation claim was barred by the one-year statute of limitations because suit was filed almost two years after the statements were initially made. Palacios, however, contends that the statute of limitations does not bar his claim because he "could not bring the pending cause of action until there was a resolution of the underlying criminal case and a finding in [his] favor." We disagree.
Allegedly, Ramos made defamatory statements to the District Attorney's Office, the Sheriff's Office, and to the Texas Employment Commission in August of 1996. Palacios was arrested for theft on September 20, 1996, and was found not guilty on May 1, 1998. Palacios filed his lawsuit on July 10, 1998.
In support of his argument, Palacios relies on Rogers v. Ricane Enterprises, Inc., 930 S.W.2d 157, 166 (Tex.App.-Amarillo 1996, writ denied), which examined when a statute of limitations is tolled. In Rogers, the court relied on Hughes v. Mahaney Higgins, 821 S.W.2d 154, 156 (Tex. 1991), in which the Texas Supreme Court held that when an attorney commits malpractice in the prosecution or defense of a claim that results in litigation, the statute of limitations on the malpractice claim against the attorney is tolled until all appeals on the underlying claim are exhausted. Hughes, 821 S.W.2d at 157. According to the supreme court, if the statute was not tolled, the client could be forced into adopting inherently inconsistent litigation postures in the underlying case and in the malpractice case. Id. at 156-57. In Rogers, the court of appeals applied this holding, stating that "[t]he teaching of the [ Hughes v.] Mahaney case, and its progenitors, is that a statute of limitations is tolled for a second cause of action in instances where the viability of the second cause of action necessarily depends upon the outcome of the first case and the pursuit of the second suit prior to that outcome would either be improper or result in judicial complications." Rogers, 930 S.W.2d at 167.
Palacios, however, does not cite any authority, and we are unaware of any, that extends Hughes's holding to defamation claims. On the contrary, instead of extending Hughes's holding, the supreme court has held that it should be limited in scope. In Murphy v. Campbell, 964 S.W.2d 265, 272 (Tex. 1997), the supreme court clarified its holding by stating that it had "expressly limited the rule in Hughes to attorney malpractice in the prosecution or defense of a claim that results in litigation." Id. at 272.
In such circumstances, to require the client to file a malpractice claim against the lawyer representing him in another case would necessarily make it virtually impossible for the lawyer to continue his representation. The client's only alternative would be to obtain other counsel. That consideration, coupled with the necessity of taking inconsistent positions, persuaded us to adopt a tolling rule in Hughes. We restricted it to the circumstances presented.
Id. As such, some courts of appeals, including the one that issued Rogers, have interpreted Hughes narrowly. See Dunn v. Murrin, No. 05-04-00438-CV, 2005 WL 2038057, at *2 (Tex.App.-Dallas Aug. 25, 2005, no pet. h.) (memorandum op.); Vacek Group, Inc. v. Clark, 95 S.W.3d 439 (Tex.App.-Houston [1st] 2002, no pet.); Rogers, 930 S.W.2d at 167; Hoover v. Gregory, 835 S.W.2d 668, 675 (Tex.App.-Dallas 1992, writ denied). We also interpret Hughes narrowly and hold that it is inapplicable here.
Moreover, here, unlike in Hughes, Palacios could have filed his civil suit timely without taking inconsistent positions. Palacios always maintained his innocence. He, therefore, would not have been forced to adopt inherently inconsistent positions by filing suit timely.
We hold that the statute of limitations was not tolled. As such, by failing to timely file suit, Palacios is barred from bringing his defamation claim.
Having determined that Palacios's claim is barred by the statute of limitations, we need not consider Palacios's other issue of whether the alleged defamatory statements were privileged.
Malicious Prosecution
In his next issue, Palacios argues that the trial court erred in summarily dismissing his malicious prosecution claim. In order to prevail in a malicious prosecution case, a plaintiff must establish the following elements: (1) a criminal prosecution was commenced against the plaintiff; (2) the prosecution was initiated or procured by the defendant; (3) the prosecution terminated in favor of the plaintiff; (4) the plaintiff was innocent; (5) the defendant lacked probable cause to instigate the prosecution; (6) the defendant acted with malice in bringing about the prosecution; and (7) the plaintiff suffered damages as a result of the prosecution. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997); Thrift v. Hubbard, 974 S.W.2d 70, 77 (Tex.App.-San Antonio 1998, pet. denied). Specifically, Palacios contends that the trial court erred in determining that there was no genuine issue of material fact with respect to the fifth and sixth elements: probable cause and malice.
In the context of a malicious prosecution claim, probable cause is defined as the existence of such facts and circumstances as would excite belief in a reasonable person, acting on the facts within his knowledge, that the person charged was guilty of the crime for which he was prosecuted. Richey, 952 S.W.2d at 517; San Antonio Credit Union v. O'Connor, 115 S.W.3d 82, 94 (Tex.App.-San Antonio 2003, pet. denied). The question is not what the actual facts are, but what the defendant honestly and reasonably believed the facts to be. Richey, 952 S.W.2d at 517; O'Connor, 115 S.W.3d at 94. "Malicious prosecution actions involve a delicate balance between society's interest in the efficient enforcement of the criminal law and the individual's interest in freedom from unjustifiable and oppressive criminal prosecution." Richey, 952 S.W.2d at 517. "Accordingly, there is an initial presumption in malicious prosecution actions that the defendant acted reasonably and in good faith and had probable cause to initiate the proceedings." Id.; see also O'Connor, 115 S.W.3d at 94. "That presumption disappears once a plaintiff produces evidence that the motives, grounds, beliefs, and other evidence upon which the defendant acted did not constitute probable cause." Richey, 952 S.W.2d at 518; see also O'Connor, 115 S.W.3d at 94-95. The burden then shifts to the defendant to offer proof of probable cause. Richey, 952 S.W.2d at 518; see also O'Connor, 115 S.W.3d at 95.
Here, Palacios argues that Ramos did not disclose all material information to the authorities and had he done so, the information would have shown that Palacios was not involved with the theft. For support, Palacios cites to page ninety-seven of the clerk's record. Page ninety-seven of the clerk's record is a page of his response to Ramos's motion for summary judgment. On that page of his response, Palacios argues the following:
In the case herein, [Ramos] did not disclose to the authorities all material relevant to this case, the omissions by [Ramos] would show that no taking or theft had been done by Plaintiff, Vidal Palacios. (See attached Exhibit "A").
Exhibit "A" is Palacios's affidavit. His affidavit fails to state what information Ramos allegedly did not disclose. Thus, Palacios has failed to present evidence that would rebut the presumption that Ramos's motives, grounds, or beliefs were reasonable. And, because there is no genuine issue of material fact with respect to the probable cause element, the trial court did not err in granting summary judgment on Palacios's malicious prosecution claim.
Alternatively, the trial court did not err in granting summary judgment, because there is no issue of material fact with respect to the malice element of Palacios's malicious prosecution claim. "Malice is generally defined as ill will, evil motive, gross indifference, or reckless disregard of the rights of others." Thrift, 974 S.W.2d at 80. It may be established by either direct or circumstantial evidence. Id.
In his motion for summary judgment, Ramos argued that he did not initiate or procure the criminal action against Palacios with malice. For support, he pointed to Palacios's deposition and Baltazar Ramos's affidavit. In his deposition, Palacios testified that Baltazar Ramos was just doing his job in reporting the theft to the sheriff and that it was Ramos's responsibility to call the sheriff. Baltazar Ramos affirms in his affidavit that he reported the incident to the sheriff "to investigate the matter because the Corporation owes a duty of accounting to the County [and] because a portion of the missing money belongs to the County." According to Ramos, Ramon Riojas, an investigator with the District Attorney's Office, told him that the office did not normally prosecute "internal theft cases." However, according to Ramos's affidavit,
[B]ecause the County had a vested interest he would undertake the investigation with the condition that I file criminal charges against the person they determined was the indicated party, even if that party was my wife. I agreed. After [Riojas] conducted his investigation, he presented me with a complaint form to sign, indicating that Vidal Palacios was the person responsible.
As such, Ramos presented some evidence that he did not act with malice in bringing about the prosecution.
Palacios, however, argues that he also presented more than a scintilla of evidence that Ramos acted with malice. According to Palacios,
[M]alice can be inferred from a wrongful act done in reckless disregard of the rights of another with conscious indifference to the resulting injury to that person. J.C. Penney Co. v. Ruth, 982 S.W.2d 586, 590 (Tex.Civ.App.-Texarkana 1998, n.w.h.). Such that when [Ramos] failed to investigate this matter adequately, the basis for the criminal complaint being filed against [Palacios] was solely circumstantial in nature.
As evidence in support of this assertion, Palacios points to the testimony of investigator Brijido Zavala, who testified that after receiving his initial report of the investigation concerning Palacios, the District Attorney's Office determined not to prosecute Palacios because there was no physical evidence or eyewitness testimony linking Palacios to the offense. However, whether the District Attorney's Office initially decided not to prosecute Palacios is not evidence that Ramos acted with malice in bringing about the prosecution. Moreover, later, the District Attorney's Office did determine that there was sufficient evidence to prosecute Palacios. Palacios was charged and prosecuted for theft.
Wrongful Discharge
In his next issue, Palacios argues that the trial court abused its discretion in finding that there were no genuine issues of material fact regarding his wrongful-discharge claim.
The general rule in Texas is that "absent a specific agreement to the contrary, employment may be terminated by the employer or employee at will, for good cause, bad cause, or no cause at all." Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998). For a contract to exist beyond employment at will
the employer must unequivocally indicate a definite intent to be bound not to terminate the employee except under clearly specified circumstances. General comments that an employee will not be discharged as long as his work is satisfactory do not in themselves manifest such an intent. Neither do statements that an employee will be discharged only for "good reason" or "good cause" when there is no agreement on what those terms encompass. Without such agreement the employee cannot reasonably expect to limit the employer's right to terminate him. An employee who has no formal agreement with his employer cannot construct one out of indefinite comments, encouragements, or assurances.
Id.
In his motion for summary judgment, Ramos pointed to Palacios's deposition testimony in which Palacios testified that he was an employee at-will and that he did not have a signed contract of employment.
In response, Palacios pointed to his own affidavit, which affirmed the following:
With regards to my employment with Balt Ramos at the golf course, I could say that I was held in high regard by Mr. Ramos, such that I was even trusted by Mr. Ramos in running the operations of the golf course in his absence. This trust resulted in an understanding between us that I would be employed for so long as I satisfactorily performed my duties and felt, this [sic] through actions of Mr. Ramos, that I could not be discharged by Mr. Ramos, without there being a showing of honest dissatisfaction by him with my work, which never occurred."
This alleged general comment by Ramos that Palacios could not be fired as long as he satisfactorily performed his duties does not "unequivocally indicate a definite intent to be bound not to terminate [Palacios] except under clearly specified circumstances." Id. Therefore, the trial court did not err in summarily dismissing Palacios's wrongful-discharge claim.
False Imprisonment
Palacios also argues that the trial court erred in granting summary judgment with regard to his false imprisonment claim. The essential elements of false imprisonment are (1) willful detention, (2) without consent, and (3) without authority of law. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). In his no-evidence motion for summary judgment, Ramos argued that there was no evidence of all three elements. In his traditional motion for summary judgment, he also argued that he had disproved all three elements.
With respect to the third element, "without authority of law," an employer has a common-law privilege to investigate reasonably credible allegations of employee dishonesty. Randall's Food Mkts. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Cuellar v. Walgreens Co., No. 13-00-594-CV, 2002 WL 471317, at *2 (Tex.App.-Corpus Christi 2002, no pet.). In his traditional motion for summary judgment, Ramos pointed to Palacios's own deposition testimony:
Q: So, in other words, when only one bag is missing is yours, okay, don't you think it's a logical conclusion that you took it?
A: That's what they claim, but that's not what happened.
Q: No. No. No. The question is: don't you think — looking at it from a third party, not from your point of view, a third party looking at those circumstances, don't you think it's logical that you took it?
A: Very suspicious, yes.
Q: Okay. So, when you look at Balt [Ramos] looking at those circumstances, you'd say, "Well, Balt, I don't blame you for thinking that way, it looks logical," right?
A: Yes.
(emphasis added). Thus, in his motion for summary judgment, Ramos presented some evidence that he acted with authority of law.
However, on appeal, Palacios has neither argued that a genuine issue of material fact exists with respect to this third element, nor has he pointed to some evidence that Ramos acted without authority of law. As such, at least with respect to this third element of false imprisonment, Palacios has not shown that the trial court erred in granting summary judgment.
The trial court's order states that the "motion for summary judgment" is granted. Thus, it is unclear whether the trial court granted both motions for summary judgment, whether it granted only the traditional motion for summary judgment, or whether it granted only the no-evidence motion for summary judgment. However, because Ramos attacked all three elements in both motions, and because Palacios has not argued or presented evidence with respect to the third element, for purposes of our analysis, it does not matter whether the trial court granted both motions or only one of the motions.
Change of Venue
In his last issue, Palacios argues that the trial court erred in granting Ramos's motion for change of venue. Ramos attached to his motion four affidavits: one affirmed by himself, and the other three affirmed by residents of Webb County. Palacios filed a response to the motion, attaching his own affidavit. On February 14, 2000, the trial court held an evidentiary hearing on the motion. See Tex. R. Civ. P. 258 (providing that if the motion to transfer venue is attacked by the affidavit of a credible person, the issue must be tried by the judge). Ramos presented three witnesses: himself, David Trevino, a resident of Webb County, and William Polumbo, another resident of Webb County. Through these witnesses, Ramos presented evidence that Ramos and the golf course had suffered from adverse publicity in Webb County. At the hearing, Ramos argued that such adverse publicity precluded him from obtaining a fair trial in Webb County. Palacios did not present any witnesses. After hearing the evidence, the trial court granted Ramos's motion to change venue and transferred the case to Jim Hogg County.
In the absence of abuse of discretion, an order denying or changing venue will not be disturbed on appeal. Hallmark v. Wetz, No. 04-04-00430-CV, 2005 WL 763264, at *1 (Tex.App.-San Antonio 2005, no pet.). On appeal, Palacios argues that the trial court abused its discretion in transferring the case because there was no evidence that the case had been "so widely discussed throughout the county that a fair and impartial trial could not be had by" Ramos. According to Palacios, any prejudice "mentioned by the witnesses that they had gleaned from conversations with other individuals regarding [Ramos] and the references to [Ramos] in the media, did not specifically concern this case."
The issue before the trial court, however, was not whether there was prejudice against Ramos with regard to this specific case. Texas Rule of Civil Procedure 257 allows a trial court to transfer venue if there is so great a prejudice against the party bringing the motion that he cannot obtain a fair and impartial trial or if an impartial trial cannot be had in the county where the action is pending:
A change of venue may be granted in civil causes upon motion of either party, supported by his own affidavit and the affidavit of at least three credible persons, residents of the county in which the suit is pending, for any following cause:
(a) That there exists in the county where the suit is pending so great a prejudice against him that he cannot obtain a fair and impartial trial.
(b) That there is a combination against him instigated by influential persons, by reason of which he cannot expect a fair and impartial trial.
(c) That an impartial trial cannot be had in the county where the action is pending.
(d) For other sufficient cause to be determined by the court.
Tex. R. Civ. P. 257 (emphasis added). Here, Ramos presented evidence that there was prejudice against him in Webb County so that he could not obtain a fair and impartial trial. The witnesses at the hearing testified about the adverse publicity against Ramos for his alleged mismanagement of the golf course and how they had heard people discuss the allegations. Ramos admitted in evidence fourteen different articles from newspapers located within Webb County discussing the allegations against him. According to the articles, the Webb County Auditor believed that Ramos owed the County more than $200,000.00. Another article refers to a lawsuit brought by Voices in Democratic Action; its president claimed that the taxpayers of Webb County were owed $1 million. Given this evidence presented to the trial court, we find no abuse of discretion.
Conclusion
Because Palacios's issues lack merit, we affirm the judgment of the trial court.