Opinion issued March 30, 2017




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-16-00499-CV
                           ———————————
                        DUANE R. YOUNG, Appellant
                                       V.
                     JEANNE LYNN PARENT, Appellee


                   On Appeal from the 400th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 15-DCV-224635


                         MEMORANDUM OPINION

      The State filed charges against Duane R. Young for assault, family violence.

The charges were later dropped. Young filed suit against Jeanne Lynn Parent, the

complainant in the offense. Young asserted claims for malicious prosecution, abuse

of process, and defamation. The trial court granted Parent’s motion for summary
judgment on all claims. In three issues on appeal, Young argues the trial court erred

by granting summary judgment on his claims.

      We affirm, in part, and reverse and remand, in part.

                                    Background

      Before April 19, 2015, Young and Parent had been dating and living together.

Shortly before April 19, the two ended their relationship, and Parent began looking

for a new place to live. On April 19, Parent had been out looking for an apartment

when she got a call to come into work. Parent returned to the house to retrieve a bag

she needed for work.

      At the house, Young and Parent got into an argument regarding who owned

the bag. Young later alleged that Parent assaulted him during the argument. Parent

alleged that Young assaulted her. Both parties agree that, in the process, the door to

the closet fell off its hinges, and Parent scraped her right arm on some clothes

hangers.

      Young called 911, alleging Parent had threatened, “I’m going to get my gun.”

Deputy Kyle Cornell was dispatched to the scene.             Deputy Cornell wore a

microphone, which recorded his conversations with Young and Parent.

      Deputy Cornell spoke with Young first, outside the house. Young described

the two getting into an argument over the bag. Young told Deputy Cornell that

Parent had become violent and that “the level of violence rose” during the argument,


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culminating in Parent threatening to get a gun. Deputy Cornell observed that

emotions were high between the two and that he could smell alcohol on Young.

      Deputy Cornell next went into the house and spoke to Parent. Parent likewise

described an argument over the bag. She told Deputy Cornell that Young shoved

her into the closet. She explained that the door came off the hinges in the process

and indicated the injury she had suffered on her arm, saying the injury hurt.

      After the brief exchange with Parent, Deputy Cornell returned outside to talk

to Young. Deputy Cornell observed that Parent had marks on her and Young did

not. He also observed that Young had been drinking. Deputy Cornell then told

Young that he was going to charge him with assault, family violence. Deputy

Cornell arrested Young and placed him in the patrol car. Deputy Cornell continued

to talk to Parent, took pictures, and filled out various paperwork.

      After Young was released from jail on bail, Parent recanted.              In later

conversations with Young, Parent asserted that Young was trying to pull her out of

the closet, not push her into it. Ultimately, the Fort Bend District Attorney’s office

filed a notice of dismissal of the charges.

      In July 2015, Young filed the underlying suit against Parent. Young asserted

claims for malicious prosecution, abuse of process, and defamation. Parent later

filed a motion for summary judgment, arguing the evidence disproved at least one




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element for each of Young’s claims. The trial court granted the motion for summary

judgment.

                                 Standard of Review

      The summary-judgment movant must conclusively establish its right to

judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.

1986). Because summary judgment is a question of law, we review a trial court’s

summary judgment decision de novo. See Mann Frankfort Stein & Lipp Advisors,

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

      To prevail on a “traditional” summary-judgment motion asserted under Rule

166a(c), a movant must prove that there is no genuine issue regarding any material

fact and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c);

Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A matter

is conclusively established if reasonable people could not differ as to the conclusion

to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816

(Tex. 2005).

      A party moving for traditional summary judgment on a claim for which it does

not bear the burden of proof must either (1) disprove at least one element of the

plaintiff’s cause of action or (2) plead and conclusively establish each essential

element of an affirmative defense to rebut the plaintiff’s cause. See Am. Tobacco

Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). If the movant meets its burden,


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the burden then shifts to the nonmovant to raise a genuine issue of material fact

precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195,

197 (Tex. 1995).

      To determine whether there is a fact issue in a motion for summary judgment,

we review the evidence in the light most favorable to the non-movant, crediting

favorable evidence if reasonable jurors could do so, and disregarding contrary

evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848 (citing

City of Keller, 168 S.W.3d at 827). We indulge every reasonable inference and

resolve any doubts in the non-movant’s favor. Sw. Elec. Power Co. v. Grant, 73

S.W.3d 211, 215 (Tex. 2002).

                               Malicious Prosecution

      In his first issue, Young argues that the trial court erred by granting summary

judgment on his malicious prosecution claim.             The elements of malicious

prosecution are (1) a criminal prosecution was commenced against the plaintiff, (2)

the defendant initiated or procured the prosecution, (3) the prosecution terminated

in the plaintiff’s favor, (4) the plaintiff is innocent of the charges, (5) the defendant

lacked probable cause to initiate or procure the prosecution, (6) the defendant acted

with malice, and (7) the plaintiff suffered damages. Espinosa v. Aaron’s Rents, Inc.,

484 S.W.3d 533, 542 (Tex. App.—Houston [1st Dist.] 2016, no pet.).




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       In her motion for summary judgment, Parent argued the evidence disproved

the second, fourth, and fifth issues. For the second element, a defendant is not liable

if the decision to prosecute is left to the discretion of another party, such as a police

officer. King v. Graham, 126 S.W.3d 75, 76 (Tex. 2003). This rule applies, unless

the defendant provides false information to the officer and, but for the false

information, the decision to prosecute would not have been made. Id.

      Parent told Deputy Cornell that Young pushed her into the closet. In contrast,

Young described Parent as the one who became violent during the argument. In his

affidavit attached to his response to the motion for summary judgment, Young

averred that he did not touch Parent and that the only contact occurred when Parent

pushed him. Parent’s allegation that Young pushed her into the closet formed the

basis of the assault charge filed against Young. Because Young has disputed

pushing Parent, there is a fact issue over whether Parent provided Deputy Cornell

with false information that formed the decision to prosecute. See id.

      The same is true of the fourth and fifth elements: that the plaintiff is innocent

of the charges and that the defendant lacked probable cause to procure the

prosecution. See Espinosa, 484 S.W.3d at 542. Because Young has alleged that he

did not push Parent, there is a fact issue on whether Young is innocent of the charges

and whether Parent lacked probable cause to procure the prosecution.




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      We sustain Young’s first issue.1

                                  Abuse of Process

      In part of his third issue, Young argues the trial court erred by granting

summary judgment on his abuse of process claim. The elements of an abuse-of-

process claim are (1) the defendant misused a regularly issued process for a purpose

not lawfully warranted by that particular process; (2) the defendant had an ulterior

motive or purpose for misusing the process; and (3) the plaintiff sustained damage

from the irregularity. Davis v. West, 433 S.W.3d 101, 110 (Tex. App.—Houston

[1st Dist.] 2014, pet. denied). An ulterior motive is not enough. See id. “The process

must be used to ‘compel[] a party to do a collateral thing which he would not be

compelled to do’ otherwise.” Id. at 111 (quoting Detenbeck v. Koester, 886 S.W.2d

477, 480 (Tex. App.—Houston [1st Dist.] 1994, writ dism’d)).

      Parent argued that she only made the complaint and was not otherwise

involved in the process of prosecuting Young. Young responds that Parent made a

false statement to Deputy Cornell and had an ulterior motive to do so. An ulterior

motive is not enough for an abuse of process claim. Id. at 110. Parent was not

involved in the prosecution once it was initiated. See Preston Gate, LP v. Bukaty,

248 S.W.3d 892, 897 (Tex. App.—Dallas 2008, no pet.) (“The critical aspect of this


1
      Young’s second point of error concerns a statement by the trial court pertaining to
      Young’s malicious prosecution claim. Because it would not result in greater relief,
      we do not reach it. See TEX. R. APP. P. 47.1.
                                           7
tort is the improper use of the process after it has been issued.”). Accordingly, the

evidence shows Young cannot prevail on his abuse of process claim.

      We overrule the first part of Young’s third issue.

                                    Defamation

      In the second part of his third issue, Young argues the trial court erred by

granting summary judgment on his defamation claim. In a suit by a private person

against a non-media defendant, the elements for a defamation claim are (1) the

publication of a statement of fact to a third party, (2) that was defamatory concerning

the plaintiff, (3) with the requisite degree of fault,2 and (4) damages, in some cases.

See In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015) (identifying elements, but

including burden of proving statement is false); Randall’s Food Markets, Inc. v.

Johnson, 891 S.W.2d 640, 646 (Tex. 1995) (holding, for private-individual plaintiff

against a non-media defendant, falsity of statement is generally presumed and truth

of statement is affirmative defense).

      In her motion for summary judgment, Parent argued Young’s defamation

claim must fail because her statements were true. We review the record to determine



2
      Typically, the requisite degree of fault for a private-individual plaintiff is
      negligence. See In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015). However, a
      qualified privilege applies to statements made to law enforcement. Espinosa v.
      Aaron’s Rents, Inc., 484 S.W.3d 533, 544 (Tex. App.—Houston [1st Dist.] 2016,
      no pet.). To defeat the qualified privilege, the plaintiff must establish that the
      defendant acted with actual malice. Randall’s Food Markets, Inc. v. Johnson, 891
      S.W.2d 640, 646 (Tex. 1995).
                                           8
whether her affirmative defense was established as a matter of law. See Randall’s

Food Market, 891 S.W.2d at 646. (holding, for private-individual plaintiff against a

non-media defendant, falsity of statement is generally presumed and truth of

statement is affirmative defense); Am. Tobacco, 951 S.W.2d at 425 (holding

defendant seeking summary judgment on affirmative defense must conclusively

establish its elements).

      Parent argues that she was substantially correct in telling Deputy Cornell that

Young pushed her into the closet. In contrast, Young described Parent as the one

who became violent during the argument. In his affidavit attached to his response

to the motion for summary judgment, Young averred that he did not touch Parent

and that the only contact occurred when Parent pushed him. We hold Young’s

statements to Deputy Cornell and his affidavit create a fact issue on whether Parent

was substantially truthful in telling Deputy Cornell that Young pushed her into the

closet.

      We sustain the second part of Young’s third issue.




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                                   Conclusion

      We affirm the trial court’s grant of summary judgment on Young’s abuse of

process claim. We reverse the trial court’s grant of summary judgment on Young’s

malicious prosecution claim and defamation claim and remand for further

proceedings.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Jennings, Higley, and Massengale.




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