                           NUMBER 13-12-00491-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

SHARON HARTON,                                                           Appellant,

                                          v.

FIRST VICTORIA NATIONAL BANK,                                             Appellee.


                  On appeal from the 135th District Court
                       of Jackson County, Texas.


                        MEMORANDUM OPINION
           Before Justices Rodriguez, Benavides and Longoria
              Memorandum Opinion by Justice Benavides

      Appellant, Sharon Harton (Sharon), was indicted for hindering a secured creditor,

First Victoria National Bank (the Bank). See TEX. PENAL CODE ANN. § 32.33 (West 2011).

The four indictments against her were ultimately dismissed by the Jackson County
District Attorney’s Office due to insufficient evidence.   Sharon subsequently brought this

malicious prosecution action against the Bank. The Bank moved for traditional and

no-evidence summary judgments on Sharon’s claims.              The trial court granted the

summary judgment in favor of the Bank and dismissed Sharon’s suit.        By a single issue,

Sharon contends that the trial court erred by granting the Bank’s summary judgment

because contradictory evidence exists regarding the Bank’s role in causing a criminal

prosecution. We affirm.

                                      I. BACKGROUND

       In 2008, the Bank made six loans to Gary Harton (Gary), Sharon’s husband—five

to   his   business,   Jackson    County    Equipment      Company,    and   one   to   him

individually—which were secured by farm equipment.            Gary’s company went out of

business the next year and sold some of the security for the Bank’s notes.           Gary’s

company did not apply the proceeds from the sale to pay down the Bank’s debt.

       Mark Stewart, vice president of the Bank, eventually communicated to Gary and

explained that the Bank intended to pursue “[Gary], and possibly others” unless both

parties could reach a settlement on the company’s debt in a timely manner. When the

Bank could not reach an agreement with Gary, Stewart contacted Edna Police

Department Officer Kent Bubela and informed him that Gary might be committing the

felony crime of hindering a secured creditor.        See TEX. PENAL CODE ANN. § 32.33.

Stewart also advised Officer Bubela that Sharon, whom the Bank thought was the vice

president and a bookkeeper for Jackson County Equipment Company, may have been




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involved in the offense as well.    Sharon was a fourth-grade teacher and served as

secretary and treasurer of Jackson County Equipment Company.

       After conducting a criminal investigation and reviewing the loan paperwork,

Officer Bubela determined that Gary and Sharon had potentially committed the felony of

hindering a secured creditor.      Officer Bubela reported his findings to the Jackson

County District Attorney’s Office, which then presented the case to the grand jury.

Officer Bubela and two of the Bank’s representatives testified before the grand jury,

which returned four indictments against Gary and Sharon for hindering a secured

creditor.   See id.   Following her indictment, Sharon was arrested and detained in the

Jackson County jail for a few hours, but the Jackson County District Attorney’s Office

dismissed her charges on the basis of insufficient evidence.

       Sharon subsequently filed a malicious prosecution action against the Bank, which

moved for a traditional and a no-evidence summary judgment.        See TEX. R. CIV. P.

166a(c), (i). The trial court granted the Bank’s motion and dismissed Sharon’s lawsuit.

This appeal followed.

                          II. CHALLENGE TO SUMMARY JUDGMENT

       By one issue, Sharon contends that the trial court erred in granting the Bank’s

summary judgment because there is evidence that the Bank knowingly provided false

information and failed to make a full disclosure of exculpatory evidence to a prosecutor

who relied and acted on that false information.      Sharon asserts that the summary

judgment evidence establishes a fact issue as to whether the Bank’s alleged acts were

the cause in fact of the criminal prosecution.




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   A. Standard of Review and Applicable Law

         This Court reviews de novo the trial court’s granting of a summary judgment.

Valence Op. Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a party moves for

summary judgment on both no-evidence and traditional grounds, we first review the trial

court's judgment under the no-evidence standards.       Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 600 (Tex. 2004). If an appellant failed to meet the lesser no-evidence

standard, then there is no need to analyze whether an appellee's summary judgment

proof satisfied the burden related to traditional summary judgment motions.    Id.

         A movant is entitled to summary judgment under rule 166a(i) if 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).    When the

evidence offered to prove an essential element is so weak that it does nothing more than

create a mere surmise or suspicion of a fact, the evidence is no more than a scintilla and,

in legal effect, is no evidence.   Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.

1983). More than a scintilla of evidence exists when the evidence creates more than

mere suspicion and would enable reasonable and fair-minded people to reach different

conclusions.    See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008); Ford Motor

Co., 135 S.W.3d at 601.    In our no-evidence review, we view the evidence presented in

the light most favorable to the non-movant when the non-movant presents more than a

scintilla of evidence that raises a genuine issue of material fact, no evidence summary

judgment is improper. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex.

2006).




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         A claim for malicious criminal prosecution requires the plaintiff to prove by a

preponderance of the evidence that:           (1) a criminal prosecution was commenced

against plaintiff; (2) defendant initiated or procured that prosecution; (3) the prosecution

terminated in plaintiff's favor; (4) plaintiff was innocent of the charges; (5) defendant

lacked probable cause to initiate the prosecution; (6) defendant acted with malice; and

(7) plaintiff suffered damages.     Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793

(Tex. 2006).     In malicious prosecution claims, “there is little room for error in applying

the law [and] [e]ven a small departure from the exact prerequisites for liability may

threaten the delicate balance between protecting against wrongful prosecution and

encouraging reporting of criminal conduct.” Browning-Ferris Indus., Inc. v. Lieck, 881

S.W.2d 288, 291 (Tex. 1994).

   B. The Bank Did Not Procure the Prosecution

         “Procurement,” the second element, occurs when a person’s actions are enough

to cause the prosecution, and but for the person’s actions, the prosecution would not

have occurred.      Id.   “But for” causation is legally insufficient to establish procurement,

however, when the decision to prosecute is left to the independent discretion of a law

enforcement official or grand jury, unless the person provided information he knows to be

false.   King v. Graham, 126 S.W.3d 75, 78 (Tex. 2003).           “If the decision to prosecute

would have been made with or without the false information, the complainant did not

cause the prosecution by supplying false information.” Id.

         In order to establish the “false information” exception to this rule, the plaintiff must

prove that the defendant either knowingly provided the authorities with actual false




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information or failed to report known material facts.    Eans v. Grocer Supply Co., 580

S.W.2d 17, 20 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ).        The plaintiff must

also prove that (1) the prosecutor acted based on the false information and (2) but for

such false information, the decision to prosecute would not have been made.             First

Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466, 470 (Tex. 2004).

      Here, because the ultimate decision to prosecute was made by an independent

source—Officer Bubela and the Jackson County Grand Jury—the burden of proof was

on Sharon to show some evidence that the Bank knowingly provided false information

and that it was a “but for” cause of the prosecution. See Eans, 580 S.W.2d at 20; Lieck,

881 S.W.2d at 292.      The record shows that the Bank provided Sharon’s name to Officer

Bubela as the vice president and a bookkeeper of Jackson County Equipment Company,

even though it did not have any evidence to support these beliefs. However, Officer

Bubela’s deposition shows that this particular information from the Bank did not cause

him to present the matter to the grand jury:

      Q:     Officer Bubela, I just want to clarify one thing, and just in connection
             with your conversations with the bank officers, Mr. Stewart, and Mr.
             Kucera, or Mr. Zacek, did any three—any one of those three
             gentlemen ever accuse Sharon Harton of committing a crime?

      A:     They did not accuse. They said she could be involved.

      Q:     Did the Bank or any representatives of the Bank at any time indicate
             to you that they had no belief that [Sharon] had committed any
             criminal act?

      A:     No, sir.

      Q:     And other than providing you facts and the paperwork, the loan
             paperwork, did First Victoria National Bank, or any of those three
             gentlemen… have any part in your decision to present the matter to



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              the grand jury?

       A:     No, sir.

       Q:     If [Stewart] had told you that he did not think [Sharon] had
              committed any crime, how would that have affected your
              investigation?

       A:     If somebody would have said that they didn’t think she did anything
              wrong or had no bearing on the case, she wouldn’t have been listed
              as a suspect.

       Q:     Was any of the information provided to you by the bank officials
              false, as far as you know?

       A:     As far as I know, no, sir.

       Q:     Okay. In your investigation, did you determine anything that was
              provided to you that was false?

       A:     No, sir.

       We conclude that while Stewart’s tip could have been the initial cause of Officer

Bubela’s decision to investigate Sharon, Officer Bubela had an opportunity to

independently confirm the validity of the information before he sent the case to the

district attorney to begin the prosecution process.

       Furthermore, the deposition of Jackson County District Attorney Robert E. Bell

also shows that the Bank did not influence the District Attorney’s decision to send the

case to the grand jury.

       Q:     Did Mr. Stewart or Mr. Kucera or Mr. Zacek have anything to do, or
              influence you in any way on your decision to present this matter—

       A:     No.

       Q:     —to the grand jury?

       A:     No, sir.



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       Q:     So your decision to present to the grand jury was based upon what
              would have been presented to you by Officer Bubela?

       A:     That’s correct. And I—I don’t really make the decision on the
              strength or weaknesses of the case as to whether I’m gonna present
              it. I think fundamental fairness requires that anything that may
              potentially be a felony is taken to a grand jury.

       Therefore, our review of the record shows that there is less than a scintilla of

evidence that the Bank knowingly provided false information.      See King, 126 S.W.3d at

78; Eans, 580 S.W.2d at 20.       Even assuming without deciding that the Bank’s tip failed

to include known material facts, this was still not sufficient to meet the burden to show

the procurement element because Sharon cannot prove that but for the withheld or false

information, the decision to prosecute would not have been made.           See Martin, 144

S.W.3d at 470.

       Sharon contends that the Bank procured the criminal prosecution against her by

failing to report a known material fact to Officer Bubela, that it did not have any evidence

to support its belief of Sharon’s involvement in the crime.   See Eans, 580 S.W.2d at 20.

This case, however, is distinguishable from Eans. The First Court of Appeals decided

in Eans that the defendant intentionally procured the prosecution when he arbitrarily

refused to inquire of the gate guard or the plaintiff’s fellow employees with respect to the

plaintiff’s whereabouts during the evening in question and also failed to disclose this to

the District Attorney’s Office.   Id. The gate guard or the fellow employees in that case

should have known whether the plaintiff was in the vicinity at the time of the incident.   Id.

Unlike in Eans, Officer Bubela’s duty to independently investigate Sharon would have

remained even if the Bank had revealed its lack of evidence to supports its suspicion.



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The missing information, therefore, was not exculpatory because it would not have been

dispositive of her involvement in the crime. The lack of evidence was precisely why an

investigation by Officer Bubela was necessary before sending the case to the district

attorney.

       Sharon failed to produce more than a scintilla of evidence that the Bank knowingly

provided false information to Officer Bubela and therefore failed to raise a fact issue as to

the procurement element.       See Kindred, 650 S.W.2d at 63; see also TEX. R. CIV. P.

166a(i).    Accordingly, we conclude that the trial court did not err in granting the Bank’s

no-evidence summary judgment and overrule her sole issue on appeal.

                                      III. CONCLUSION

       We affirm the trial court’s judgment.



                                                         __________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


Delivered and filed the
3rd day of July, 2013.




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