     Case: 10-50922 Document: 00511500837 Page: 1 Date Filed: 06/07/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 7, 2011

                                     No. 10-50922                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



JOSE MANUEL CAMPA GONZALEZ,

                                                          Plaintiff - Appellant

v.

NATIONAL INSURANCE CRIME BUREAU; PROGRESSIVE CASUALTY
INSURANCE CO,

                                                          Defendants - Appellees




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 3:09-CV-323


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Jose Manuel Campa Gonzalez (“Gonzalez”) was
arrested and incarcerated for eleven days in Mexico for hawking a car that the
Mexican authorities erroneously believed was stolen. Gonzalez later filed suit
against the defendant-appellees National Insurance Crime Bureau (“NICB”) and


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-50922 Document: 00511500837 Page: 2 Date Filed: 06/07/2011



                                   No. 10-50922

Progressive Casualty Insurance Co. (“Progressive”), claiming that they were
legally liable for the actions of the Mexican police. While Gonzalez’s arrest and
imprisonment were traumatic and, on hindsight, unnecessary, we nevertheless
agree with the district court that the appellees cannot be held liable for
Gonzalez’s suffering. We therefore AFFIRM.
                                BACKGROUND
      In 2005, a Cadillac Escalade was stolen in Queens, New York. Progressive
insured the vehicle and compensated the owner for the loss; Progressive in turn
took the vehicle’s title. The NICB investigated the theft and found that the
Escalade had been recovered in New Mexico. Progressive placed the Escalade
for auction with Copart, an online auto auctioneer.
      Gonzalez saw the Escalade on the Copart web site and decided to purchase
it. Because he did not have a Copart purchasing license, he instructed one of his
friends with a license to purchase the Escalade on his behalf. The friend won the
auction, paid Copart a cashier’s check and took title to the Escalade. The friend
gave Gonzalez the Escalade and the relevant purchase documents, but Gonzalez
never officially took title to the Escalade.
      Although Gonzalez intended to use the Escalade as a family car, he
discovered that the transfer document from Copart was stamped “for export
only,” and therefore, he could not register the car in his home of El Paso, Texas.
In an effort to recoup his losses, Gonzalez took the Escalade across the border
to Juarez, Mexico, where he attempted to sell it at a swap meet for cars. In
doing so, Gonzalez attracted the attention of Mexican law enforcement officers,
who ran a routine background check on the vehicle’s VIN. The database on
which the background check was conducted, however, apparently had not been
updated in some time, and the Escalade was still on file (erroneously) as stolen.
Even though Gonzalez presented the sales documents from Copart, the Mexican
officials arrested him, and he was prosecuted in Juarez for possession of a stolen

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                                  No. 10-50922

vehicle. He spent approximately eleven days in jail before posting bond. The
record is unclear as to whether Gonzalez was acquitted or convicted, or whether
the charges were dismissed.
      Meanwhile, in reliance on an NICB report, the American Consulate in
Juarez requested that the Escalade be returned to the United States because it
was stolen; Mexican authorities complied. A month or two after his arrest,
Gonzalez went to an NICB office to retrieve the Escalade. The NICB agent with
whom he met apparently became confused as to the Escalade’s status as a stolen
vehicle. She contacted her superiors and, after some discussion, apparently was
told to hand over the Escalade to Gonzalez. However, before she could do so,
Gonzalez became “overwhelmed” by the process, and he decided to leave empty-
handed. Later, on July 25, 2007, Progressive notified the NICB by letter that
the Escalade was no longer stolen at the time of Gonzalez’s arrest.
      By that point, however, Gonzalez claims he no longer wanted the vehicle;
instead, he wanted compensation for the harm he suffered during his arrest and
prosecution in Mexico. Gonzalez sued Progressive and the NICB in Texas state
court, alleging a host of claims arising under Texas state law, including breach
of contract, breach of warranty, fraud, defamation, malicious prosecution,
negligence, and conversion. Defendants removed to federal court on the basis
of diversity jurisdiction.    Following discovery, the district court granted
defendants’ motions for summary judgment, and Gonzalez appealed.
      This court has appellate jurisdiction pursuant to 28 U.S.C. § 1291, and we
review a grant of summary judgment de novo, applying the same standards as
the district court. See Depree v. Saunders, 588 F.3d 282, 286 (5th Cir. 2009).
      While the district court granted the appellees summary judgment on
Gonzalez’s seven causes of action, Gonzalez discusses only four causes of action
on appeal: malicious prosecution, conversion, negligence and fraud. Appellees
suggest that the other claims on which the trial court granted summary

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                                 No. 10-50922

judgment – defamation, breach of warranty, and breach of contract – are waived.
We agree. See Fed. R. App. P. 28(a)(9)(A); United States v. Thames, 214 F.3d
608, 611 n.3 (5th Cir. 2000). We discuss each non-waived issue in turn.
I.     Malicious Prosecution
       Gonzalez argues that the NICB and Progressive caused his arrest and
incarceration in Mexico because “but for [their] actions the prosecution would
not have occurred.” See Browning-Ferris Industries, Inc. v. Lieck, 881 S.W.2d
288, 293 (Tex. 1994). He argues further that his prosecution in Mexico was
“clearly foreseeable” to Progressive and the NICB, and their claims of ignorance
are unfounded.
       Although the actions of Progressive and the NICB might have been a
cause-in-fact of Gonzalez’s arrest, more is required to hold them liable for
malicious prosecution.    As the district court correctly noted, a malicious
prosecution claim under Texas law requires a showing of, among other things,
“the absence of probable cause for the proceedings” and “malice in filing the
charge.” See Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 518 (Tex. 1997).
That the Mexican officials’ information turned out to be outdated does not defeat
the fact that they had probable cause at the time of the arrest, in part because
Gonzalez had no documents proving his title to the vehicle. Moreover, Gonzalez
offered no evidence that Progressive or the NICB acted with “malice” as the law
requires. Gonzalez’s claim for malicious prosecution cannot survive summary
judgment.
II.    Conversion
       Gonzalez asserts that Progressive and the NICB wrongly exercised
dominion and control over the Escalade, and that as a result, he is entitled to
recover for conversion. We disagree. First, the evidence shows that Progressive
has not exercised control over the Escalade since it was sold through the Copart
auction. There is also no evidence that the NICB obtained the Escalade on

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                                   No. 10-50922

behalf of Progressive after Gonzalez’s arrest.        Progressive is not liable for
conversion.
        NICB admittedly retrieved the vehicle after Gonzalez’s arrest, but the
NICB has never refused to return it to Gonzalez. Gonzalez did not wait to obtain
the vehicle from the NICB office and indicated in his deposition that he no longer
wants the Escalade.      Thus, Gonzalez has not shown that the NICB took
“unauthorized and unlawful exercise of dominion and control” over the Escalade
“to the exclusion of, or inconsistent with, [Gonzalez’s] rights.” See Almance v.
Shipley Bros., Inc., 247 S.W.3d 252, 254 (Tex. App. 2007).
III.    Negligence
        Gonzalez argues generally that the NICB and Progressive were negligent
in failing to disclose the stolen vehicle report for the Escalade at its auction sale.
Gonzalez believes further that Progressive and the NICB should have, among
other things, reported to other government agencies that the vehicle had been
recovered.
        To succeed on a negligence claim, Gonzalez must show that Progressive
and the NICB owed him a legal duty, that they breached that duty, and that he
suffered damages actually and proximately caused by the breach. See, e.g.,
Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
Gonzalez cannot satisfy these elements because he has not demonstrated that
Progressive or the NICB owed him any duty. The record indicates that the
National Crime Information Center – not the NICB – may have been the
ultimate source of the report that led the Mexican authorities to believe the
Escalade was stolen. Neither Progressive nor NICB had any legal duty to
prevent a law enforcement agency from mistakenly arresting Gonzalez. Apart
from malicious prosecution or defamation, which are intentional torts, Texas
does not recognize a negligence claim for arrest under these circumstances.
Gonzalez cannot prevail on a negligence claim against these two appellees.

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                                 No. 10-50922

IV.    Fraud
       Finally, Gonzalez claims that Progressive and the NICB committed fraud
in failing to disclose to Gonzalez that the Escalade had been stolen. A claim of
fraud for failing to disclose information requires a plaintiff to show that the
defendant had a duty to disclose to him the information at issue. See Bradford
v. Vento, 48 S.W.3d 749, 755 (Tex. 2001).       Generally, such a duty arises
pursuant to a fiduciary relationship.      See Ins. Co. of N. Am. v. Morris,
981 S.W.2d 667, 674 (Tex. 1998). The district court concluded correctly that the
sale of the vehicle from Progressive to Gonzalez’s friend occurred in an arms-
length transaction through an auctioneer; no fiduciary relationship existed.
Gonzalez has not explained why NICB had a duty to inform an auction winner
with whom it had no dealings that a vehicle had been stolen. NICB made no
false disclosures. Thus, Gonzalez cannot demonstrate that either Progressive
or the NICB defrauded him.
                               CONCLUSION
       Gonzalez’s arrest and incarceration in Mexico undoubtedly caused him
great harm, and while we understand the desire to be made whole, the law does
not allow Progressive and the NICB to be held liable on these facts.        The
judgment of the district court is therefore AFFIRMED.




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