Jim Tranum v. David Broadway--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00308-CV

Jim Tranum,

Appellant

v.

David Broadway,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court No. COT-01-33,453

DIssenting Opinion

I respectfully dissent.[1] Tex. R. App. P. 47.5.

SLANDER

I fully agree to affirm the trial court s judgment concerning Broadway s slander claim.

MALICIOUS PROSECUTION

I also agree with the deletion of the award of mental anguish damages for malicious prosecution, concluding that the evidence is legally insufficient to support that award, but I would not reach that issue in light of my disagreement about the evidentiary support for the claim itself. I would hold that Broadway failed to produce legally sufficient evidence of at least two of the necessary elements to recover for malicious prosecution.

initiation or procurement of prosectuion

There is no evidence that a prosecution was commenced, as I understand that term.[2] The evidence conclusively shows that Tranum presented information to the District Attorney, the District Attorney reviewed the information and talked to potential witnesses, and the District Attorney (not Tranum) exercised his own discretion in making the decision to present the information to the grand jury. The record does not show that Tranum signed a criminal complaint, that Broadway was ever arrested, or that he was required to make bond. The evidence shows that the first step towards a formal criminal charge was presentation of the results of the investigation to the grand jury by the District Attorney, and that action resulted in a no-bill.

I find no evidence that Tranum filed formal charges against [the] plaintiff. Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 293 (Tex. 1994) (grand jury indicted Lieck). In Lieck, the Supreme Court said:

Initiation would not ordinarily need to be defined, as it would be demonstrated by evidence that defendant filed formal charges against plaintiff, but procurement should be defined as follows:

A person procures a criminal prosecution if his actions were enough to cause the prosecution, and but for his actions the prosecution would not have occurred. A person does not procure a criminal prosecution when the decision whether to prosecute is left to the discretion of another, including a law enforcement official or the grand jury, unless the person provides information which he knows is false. A criminal prosecution may be procured by more than one person.

Id.(emphasis added). So, Tranum did not initiate a criminal prosecution, but did he procure one?

The opinion relies on the notion that the evidence shows that Tranum provided [District Attorney] Simpson with material information that he knew to be false and that Simpson s decision to prosecute Broadway would not have been made but for this false information. The problem with that analysis, as I see it, is that Simpson did not file formal charges he left that decision to the grand jury, and the grand jury returned a no-bill. If the grand jury or other official would have made the same decision with or without the false information, the complainant did not cause the prosecution by supplying false information. See King v. Graham, 126 S.W.3d 75, 78 (Tex. 2003) (grand jury indicted Graham for felony theft) ( a person who knowingly provides false information to the grand jury or a law enforcement official who has the discretion to decide whether to prosecute a criminal violation cannot be said to have caused the prosecution if the information was immaterial to the decision to prosecute ). Here, the grand jury s decision not to prosecute would have been no different without the information that Broadway claims was false; thus, that information, false or not, was immaterial to the decision that the grand jury made.

Finally, to recover for malicious prosecution when the decision to prosecute is within another's discretion, the plaintiff has the burden of proving that that decision would not have been made but for the false information supplied by the defendant. Id. at 78. The memo described below, prepared at Simpson s direction prior to the presentation of the matter to the grand jury, dispels the idea that any false information Tranum gave was material to Simpson s decision to present the matter to the grand jury.

There is no evidence that a criminal prosecution was commenced and no basis for the finding that Tranum initiated or procured a prosecution.

lack of probable cause

Courts must be especially careful in malicious prosecution cases to ensure that sufficient evidence supports each element of liability. Kroger Texas Ltd. Partnership v. Suberu, 216 S.W.3d 788, 795 (Tex. 2006) (Suberu spent four hours in jail after arrest; jury acquitted her of misdemeanor theft). However, an acquittal does not establish the absence of probable cause. Id. at 794. [I]t is well settled that a private citizen has no duty to investigate a suspect's alibi or explanation before reporting a crime. Id. If the acts or omissions necessary to constitute a crime reasonably appear to have been completed, a complainant's failure to investigate does not negate probable cause. Id. Further, any failure to fully disclose all relevant information to the District Attorney is immaterial to the probable-cause inquiry. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 519 (Tex. 1997).

Included in exhibit 14 is a memorandum from Bruce Beals, a legal assistant to District Attorney Simpson, stating as a conclusion:

Based on the interview with Niemeier (the accountant), a review of the report he provided, Broadway s employment contract, the statement provided by Ms. B. J. Shaw, and the applicable portions of the Texas Penal Code, it is my conclusion that there is reason to believe that David C. Broadway intentionally misrepresented the amount of annual net profit of Tranum Ford-Mercury in order to obtain a yearly bonus, thereby unlawful (sic) appropriating funds (property) from Tranum. These bonuses totaled more than $20,000 but less than $100,000 during the period 1995 2000.

Beals recommended that an indictment be prepared, naming Broadway as the defendant, that the case be presented to the grand jury, and that Niemeier and Ms. Shaw be called as witnesses.

The opinion discusses Tranum s decision to prosecute, but the decision to present the information to the grand jury was Simpson s, and according to Beals s memo, the decision was based on Niemeier s interview and report, the employment contract, and Ms. Shaw s statement. The memo demonstrates conclusively that the District Attorney found that probable cause existed to exercise his discretion to present the information to the grand jury. If probable cause existed for presentation to the grand jury, then probable cause existed for Tranum to ask Simpson to investigate Broadway s actions.

EXEMPLARY DAMAGES

Finally, based on my view of the malicious prosecution claim, I must disagree with the decision about the exemplary damages award.

The jury found (1) $75,000 for reputation damages and $500,000 for mental anguish damages for malicious prosecution, (2) $250,000 for mental anguish damages for slander, and (3) $750,000 for exemplary damages. We all agree that the $500,000 is not recoverable but disagree about the $75,000. Eliminating the reputation damages and mental anguish damages would reduce the exemplary damages to $250,000 under Justice Reyna s analysis, with which I agree.

SUMMARY

I would reform the trial court s judgment to delete the amounts awarded by the jury for compensatory damages for malicious prosecution. I would therefore also reform the judgment to limit the award of exemplary damages to $250,000.

I respectfully dissent from the judgment.

BILL VANCE

Justice

Dissenting opinion delivered and filed July 2, 2008

[1] Chief Justice Gray does not join Justice Reyna s opinion.

[2] I have not found a case in which the plaintiff who asserted a malicious prosecution claim was never formally charged with a crime.