
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-04-00169-CV


Evans P. Weaver, Appellant

v.

Nicole Bell, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. GN-304677, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N


	Appellant Evans P. Weaver appeals from the trial court's granting of summary
judgment in favor of appellee Nicole Bell in his suit filed after a dispute arose related to Weaver's
work on a remodeling project at Bell's home.  Weaver complains on appeal that the trial court erred
in granting summary judgment for Bell because: (1) Bell's motion addressed only one of Weaver's
causes of action; (2) Bell did not show her entitlement to judgment as a matter of law and issues of
material fact exist; and (3) Weaver did not have adequate time to conduct discovery before summary
judgment was granted.  We affirm the trial court's judgment.

Factual Background

	According to Weaver's recitation of the underlying facts set out in his petition, in
August 2001, Weaver's neighbor, Jason Near, asked if Weaver would do some construction work
on a house owned by Near's girlfriend, Nicole Bell.  Weaver agreed and entered into a contract with
Bell for the remodeling project, which was to include interior and exterior repair and construction
work. (1)  Shortly after Weaver began work, Bell's neighbors complained to the City of Austin,
concerned about an old tree in Bell's front yard, resulting in a delay while permits were obtained. 
In September, about a month after the contract was signed, disputes began to arise related to payment
under the contract.  On October 3, 2001, Bell and Weaver signed an amendment to the contract under
which Bell was to pay Weaver almost $17,000 and Weaver was to complete his work on Bell's
house by October 15.  On October 5, the City issued a permit under which Weaver was allowed to
construct the contemplated driveway.  On October 11, Bell sued Weaver, alleging that he had not
completed work as contemplated by the October 3 amendment. (2)  Bell also alleged problems and
defects with Weaver's work, including a failure to seal cuts on trimmed trees.
	On December 7, Weaver met his subcontractor, Tony Rangel, at Bell's residence to
inspect the trees and seal any exposed cuts.  When Weaver arrived, five or six men, employees of
the company Bell hired to complete the project, were working on the driveway.  Weaver believed
that the men were cutting the roots of the old tree specifically protected by the permit issued in
Weaver's name.  Concerned that he would be held responsible for any damage to the tree, Weaver
called the City.  While waiting for the City's inspector to arrive, Weaver took pictures of the workers
and the work site.  When the inspector arrived, he and Weaver walked around Bell's property
together.  Weaver asserted that he left before the inspector, who stayed behind and issued a stop-work citation, and that he did not enter Bell's home.
	On the afternoon of December 7, Bell contacted the Austin Police Department to
report that Weaver had come onto her property without her permission.  In an affidavit provided to
Detective Christopher Harkins on December 19, Bell stated that on December 7 she was called at
work by Chris Mele, owner of the construction company hired to finish the job started by Weaver. 
Mele told her that Eladio Mendoza, foreman of the project, had reported that a man was in Bell's
yard yelling and taking photographs.  Mele called back later and "said that it was Mr. Weaver that
was on [Bell's] property."  Bell averred that she spoke to Mendoza, who said Weaver had been in
Bell's front and back yards and had briefly entered her home.  Bell stated that she had revoked
Weaver's permission to enter onto her property and communicated that fact through her attorney and
to Rangel at least as early as October 16 and that he had never had permission to enter her house. 
She further averred that Weaver had been instructed to contact Bell only through her attorney.
	Harkins spoke to Bell and Mendoza and on January 3, 2002, executed an affidavit and
obtained a warrant for Weaver's arrest for criminal trespass.  However, Bell later wrote a letter to
the county attorney stating that she did not wish to punish Weaver and only made her report because
she was concerned about her safety.  In June 2002, the charges were dismissed.
	On June 17, 2003, Weaver sued Bell, Near, Harkins, the City of Austin, Mendoza,
and several other defendants, asserting claims for malicious prosecution, defamation, false
imprisonment, and false arrest.  Bell moved for summary judgment on August 14, asserting that
Weaver would be unable to show that Bell acted with malice or without probable cause, that she
procured the criminal proceeding, that the criminal proceeding terminated in Weaver's favor, or that
he was innocent.  Weaver filed a motion for continuance on September 2, stating that his recently
retained attorney needed time to become familiar with the case and that there had not been adequate
time for discovery; the trial court denied Weaver's motion for continuance.  Weaver filed a response
to Bell's motion on September 3, but the trial court granted Bell's motion on September 10 and in
December severed the claims against her into a separate cause number and rendered a final judgment
in Bell's favor.

Did Bell Establish Her Right to Summary Judgment?

	In his fourth, fifth, sixth, seventh, and eighth issues, (3) Weaver asserts that fact
questions remained as to whether: Bell established probable cause, procured the prosecution, and
acted with malice; the prosecution terminated in Weaver's favor; and Weaver established his
innocence.  If Bell disproved as a matter of law any one element of Weaver's malicious prosecution
claim, summary judgment was properly granted as to that cause of action.

Standard of Review

	A defendant seeking summary judgment must negate as a matter of law at least one
element of each of the plaintiff's theories of recovery or plead and prove as a matter of law each
element of an affirmative defense.  Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). 
In reviewing the grant of summary judgment, we view the evidence in the light most favorable to
the nonmovant, disregarding contrary inferences and resolving all doubts in the nonmovant's favor. 
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Centeq Realty, 899 S.W.2d at 197. 
Summary judgment may only be based on an interested witness's affidavit if it is clear, positive,
direct, credible, free from contradiction, uncontroverted, and susceptible to being controverted.  Tex.
R. Civ. P. 166a(c); Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997).
	Malicious prosecution actions are disfavored by the law because they tend to have
a chilling effect on the reporting of possible crimes.  Smith v. Sneed, 938 S.W.2d 181, 183 (Tex.
App.--Austin 1997, no writ).  "What is distinctive about malicious prosecution is that there is little
room for error in applying the law.  Even 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).  To prevail on a malicious prosecution action, a plaintiff must show that the defendant caused
the commencement of a criminal prosecution against the plaintiff, the defendant lacked probable
cause and acted with malice, the prosecution terminated in the plaintiff's favor, and the plaintiff was
innocent of the charge and suffered damages as a result.  Richey v. Brookshire Grocery Co., 952
S.W.2d 515, 517 (Tex. 1997).  Criminal trespass, the charge for which Weaver was arrested, occurs
when someone enters onto property without the owner's consent, knowing that his entry is forbidden. 
Tex. Pen. Code Ann. § 30.05(a) (West Supp. 2004-05).
Summary Judgment Evidence

	Bell's motion for summary judgment urged that she did not lack probable cause, act
with malice, or procure the criminal proceedings.  Bell attached as evidence her affidavit prepared
in support of her motion; the affidavit she provided to the police on December 19; the undated letter
she wrote to the Travis County Attorney's Office, in which she stated that she did not wish to press
charges and only made her report out of concern for her safety; Weaver's petition; Mendoza's
deposition; and the October 3 amendment to the construction contract.
	In her police affidavit, Bell averred that Weaver never had permission or cause to go
into her house.  She further stated that although she had earlier revoked permission for Weaver to
enter onto her property, Mele called her at work on December 7 and informed her that workers at her
house had seen Weaver come onto her property and briefly go into her house. (4)  Bell went home after
getting Mele's calls, but Weaver had already left.  Bell spoke to Rangel, telling him that he and
Weaver had trespassed on her property, and Rangel apologized and said he was only following
Weaver's instructions.  Bell averred that Weaver had vowed to make her life difficult and that she
feared for her safety.  In her summary judgment affidavit, Bell averred that after being told that
Weaver had been at her house, she contacted her attorney, who advised her to call the police.
	Weaver filed a response, attaching as evidence an affidavit in which he stated that
Bell procured the criminal proceedings, lacked probable cause, and acted with malice and with
reckless disregard for his rights and that he was innocent of the charges.  He also attached as
evidence excerpts from the depositions of Bell, Mendoza, the city inspector, and Jeff Ransom, who
was working inside Bell's house on December 7. 
	The inspector stated that he was at Bell's residence for about thirty minutes and that
Weaver left shortly before the inspection was finished.  The inspector did not see Weaver go into
Bell's house and did not believe Weaver returned to the scene after the inspector left.  In Mendoza's
deposition, he said he saw a man taking pictures on December 7 and that the same man entered
Bell's house briefly.  Mendoza had not seen the man since and did not think he would recognize the
man if he saw him again, but when asked stated that Weaver, who was present at the deposition, was
not the man he saw.  Ransom testified that on December 7 a man he did not know came through
Bell's house.  When Bell asked that same day if he had seen anyone in the house, he told her he had. 
Ransom said that "[l]ater on" Bell asked Ransom to describe the man and then said it sounded like
one of her friends; Ransom did not state how long after their initial conversation Bell asked him to
describe the man who entered the house.  Ransom did not hear any yelling, but explained that he was
working in the back of the house and could not hear what was happening outside.  Finally, Weaver
attached a page from Bell's deposition, in which she was asked what Ransom told her he had seen. 
Bell answered, "I asked him if he heard anyone in the front, back, inside the house, outside the
house.  He said he did not see anyone in--well, he didn't hear anyone yelling out front."  When she
spoke to Ransom immediately after she got the call at work and came home, he told her he had not
seen anyone.  At the end of the day, Bell spoke to Ransom again, who said that since their first
conversation, a man about six feet tall with dark hair had come through the house.  Weaver averred
that he does not match Ransom's description of the man he saw in the house.
Probable Cause

	In his fourth issue, Weaver argues that the trial court could not have found that Bell
showed she had probable cause for her police report.
	In a malicious prosecution suit, the probable cause inquiry is very narrow and asks
only whether a reasonable person would believe that an offense had been committed, given the facts
as the defendant honestly and reasonably believed them to be.  Forbes v. Lanzl, 9 S.W.3d 895, 899
(Tex. App.--Austin 2000, pet. denied) (citing Richey, 952 S.W.2d at 519).  The defendant need not
have inquired as to whether the plaintiff had some explanation for his actions before reporting the
believed offense.  First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466, 470 (Tex. 2004)
("When the objective elements of a crime reasonably appear to have been completed, a private
citizen has no duty to inquire whether the suspect has some alibi or explanation before filing
charges."); Forbes, 9 S.W.3d at 899.  Even if a defendant withholds some evidence in making her
report, such withholding does not defeat her probable cause but instead goes to the issue of malice. 
Martin, 144 S.W.3d at 470; Forbes, 9 S.W.3d at 899.
	Bell averred that she informed Weaver through at least two sources that he was not
permitted on her property.  She further averred that she was told by the new construction company
that Weaver had come onto her property (5) and in fact entered her house.  Those two facts, if true,
mean that Weaver committed trespass on December 7.  See Tex. Pen. Code Ann. § 30.05(a).
	Although Weaver stated in his petition that he did not enter Bell's house and that his
permission to come onto Bell's property had not been revoked, pleadings are not summary judgment
proof.  Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660-61 (Tex. 1995)
("Generally, pleadings are not competent evidence, even if sworn or verified."); Hidalgo v. Surety
Sav. & Loan Ass'n, 462 S.W.2d 540, 543-45 (Tex. 1971) (discussing whether sworn pleadings may
be considered summary judgment proof and holding "that orderly judicial administration will be
better served in the long run if we refuse to regard pleadings, even if sworn, as summary judgment
evidence"); Reynosa v. Bexar County Hosp. Dist., 943 S.W.2d 74, 76 (Tex. App.--San Antonio
1997, writ denied); Robbins v. HNG Oil Co., 878 S.W.2d 351, 354 (Tex. App.--Beaumont 1994,
writ dism'd w.o.j.).  Weaver stated in his affidavit, "I was innocent of the charges," and asserted that
Bell lacked probable cause and acted with malice, but did not support those assertions with
statements of fact.  Such conclusory statements are not proper summary judgment evidence.  See
Texas Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994).  Weaver admits that he was
on Bell's property on December 7.  He focuses only on whether he went into the house, pointing to
the deposition excerpts that he argues show that at the time she made her statement to the police, she 
knew it was not he who entered the house.
	We note that Bell did not aver to the police that she had actual knowledge of
Weaver's entry onto her property, but instead related only what she was told by those present at the
time.  It was only after additional investigation that Harkin decided to swear out an affidavit asserting
that Weaver had committed trespass.  It is undisputed that Weaver entered onto Bell's property on
December 7, and in his affidavit, Weaver did not deny that Bell had revoked her permission for him
to be on her property; in fact, he did not even deny entering her home, although that is implied by
his assertion that he was innocent of the charges.  Further, the deposition excerpts do not show that
at the time Bell made her statement to the police she knew or believed that Weaver had not gone into
her house.  At the time of his deposition, Mendoza did not believe it was Weaver he had seen, (6) and
Ransom "later" described someone who Bell believed was a friend.  However, Weaver's evidence
does not show that Bell had that information at the time she made her report, nor does it contradict
Bell's evidence that she had earlier revoked Weaver's right to enter onto her property.  Thus, Bell
established as a matter of law that she had probable cause to make her report to the police.
	Even if we were to consider Weaver's pleadings as proof and assume that Weaver's
right to enter onto Bell's property had not been explicitly revoked and that Bell initially gave him
permission to enter into the house when necessary for interior work, nothing in Weaver's recitation
of the events of the day would require him to enter into Bell's house.  Bell did not state that she knew
Weaver had in fact entered the house, only that she had been told he had.  Although Weaver points
to inconsistencies and a possible language barrier related to Mendoza's involvement in the incident, (7)
Weaver did not rebut that Bell believed or had cause to believe he had entered her home when she
made her report.
	Bell established as a matter of law that she had probable cause to make her report to
the police, and Weaver did not produce any evidence to raise a fact issue as to probable cause.  We
overrule Weaver's fourth issue.

Procurement of the Criminal Proceedings

	In his fifth issue, Weaver argues the trial court erred if it granted summary judgment
on the ground that Bell did not procure the criminal proceeding.
	"Procurement" in a malicious prosecution suit means more than simply providing
false information to law enforcement authorities.  King v. Graham, 126 S.W.3d 75, 78 (Tex. 2003). 
In a case where the defendant did not make the decision to prosecute, the plaintiff must show that
the defendant knowingly provided false information and that the decision to prosecute would not
have been made without the false information.  Id.
	Harkins investigated the incident and decided to swear out a warrant.  Bell argued that
because she merely made a report to the police, she did not procure the criminal proceeding.  Bell
told the police that Weaver did not have her permission to be on her property and that she had been
told he had come onto her property, which Weaver admits, and entered her house; she did not assert
personal knowledge that Weaver had in fact entered the house. 
	We must read the procurement requirement narrowly, cleaving to "the exact
prerequisites for liability."  Lieck, 881 S.W.2d at 291.  The evidence shows that the police
investigated and interviewed other witnesses before deciding to arrest Weaver and that the decision
was not based solely on Bell's statement to the police.  Weaver did not produce evidence raising a
fact question as to whether Bell gave false testimony to the police.  Further, Bell did not purport to
have actual knowledge as to all of the elements of trespass.  She merely relayed what she was told
about Weaver's presence on her property and averred that Weaver lacked permission to be on her
property.  Therefore, we hold that Bell showed she did not procure the prosecution and Weaver did
not rebut that showing.  We overrule Weaver's fifth issue.

Malice

	In his sixth issue, Weaver argues that the trial court could not properly have granted
summary judgment based on the ground that Bell did not act with malice.
	"Malice" is ill will, evil motive, or gross indifference or reckless disregard of
another's rights.  J.C. Penney Co. v. Ruth, 982 S.W.2d 586, 590 (Tex. App.--Texarkana 1998, no
pet.).  A showing of personal spite is not required; malice may be found if the defendant acted
wrongfully in reckless disregard of the plaintiff's rights and with indifference as to whether the
plaintiff would be harmed.  Id.  Malice may be shown by circumstantial or direct evidence and may
be inferred from a defendant's lack of probable cause.  Id.
	Bell averred that she was told that Weaver was on her property, "yelling and
screaming" and taking photographs.  In her summary judgment affidavit, she stated that she
contacted her attorney, who advised her to call the police.  In her affidavit to the police, Bell stated
that Weaver had been told not to contact her except through her attorney and not to come onto her
property.  She said Weaver had vowed to make her life difficult and that he "invaded [her] privacy
and sense of safety."  Bell averred, "I personally fear for my safety, and the intent that Mr. Weaver
may have."
	Bell swore that Weaver had been told not to come onto her property, and the
relationship between Weaver and Bell had deteriorated to the point that they were embroiled in a
lawsuit against each other.  Weaver did not produce evidence contradicting Bell's averments that he
had been told not to come onto her property.  Furthermore, Bell did not tell the police that she knew
firsthand that Weaver had entered her house; she told them that she had been informed that Weaver
was on her property and had entered her home.  Bell established that she believed that Weaver had
notice that his entry was forbidden and yet still came onto her property and perhaps entered into her
house and that she was alarmed and concerned for her safety.  This is evidence that she acted without
malice, and Weaver produced no evidence raising a fact issue as to whether Bell acted maliciously
in making the report.  We overrule Weaver's sixth issue. (8)

Propriety of Bell's Motion for Summary Judgment

	In his second issue, Weaver asserts that the trial court could not have properly granted
Bell's motion on three of her five grounds, which asserted that Weaver "fail[ed] to establish" certain
elements of malicious prosecution.  This, he argues, improperly attempted to shift the burden to
Weaver or were premature "no-evidence" grounds.  In his third issue, Weaver asserts that if Bell's
motion is considered a "no-evidence" motion for summary judgment, the trial court erred in granting
the motion because Weaver did not have adequate time to conduct discovery, as required by rule
166a(I) of the rules of civil procedure.
	In her motion for summary judgment, Bell argued that Weaver could not establish that
she acted with malice or lacked probable cause in making her report to the police, noting a general
presumption that a person acts with probable cause in making police reports.  Richey, 952 S.W.2d
at 517.  She further argued that she did not procure the criminal proceedings.  Although the language
of Bell's arguments related to malice and probable cause rings of a no-evidence motion for summary
judgment, see Tex. R. Civ. P. 166a(I), Bell attached evidence in the form of her affidavit and other
documents and pointed to that evidence to support her arguments.  As we have discussed, Bell
established her entitlement to summary judgment through her evidence, (9) and thus there was no
improper shifting of the evidentiary burden, nor need we examine whether adequate time for
discovery had passed so as to make a no-evidence motion appropriate.  A traditional motion for
summary judgment may be filed at any time, without the need to allow adequate time for discovery. 
Tex. R. Civ. P. 166a(b).  We overrule Weaver's second and third issues.

Did the Trial Court Grant More Relief Than Was Requested?

	In his first issue on appeal, Weaver argues that the trial court erred in granting
summary judgment for Bell because her motion only addressed malicious prosecution, and not his
remaining three causes of action.  Bell responds that Weaver sued her only for malicious prosecution
and that she could not have committed false arrest or false imprisonment because it was the police,
not she, who arrested and detained Weaver.
	In his petition, Weaver sets out the facts underlying his suit at length.  He then states
in section "(1.) As to Bell" of the "Causes of Action" portion of his petition that Bell initiated and
procured the criminal proceedings against him.  Weaver states that Bell was the cause in fact of the
criminal charges, that the proceedings terminated in his favor, that he was innocent of the charges,
and that Bell lacked probable cause and acted with malice and with reckless disregard to Weaver's
rights, resulting in harm to Weaver.  Weaver goes on to set out similar allegations and to recite the
elements of malicious prosecution "[a]s to Near," Harkins, the Austin Police Department, and the
other defendants.  In four lines at the conclusion of the "Causes of Action" portion of his petition,
Weaver states that he was "falsely arrested and charged with Criminal Trespass" and "detained for
a false reason," and then lists false imprisonment, defamation, and malicious prosecution.
	In her motion for summary judgment, Bell addressed the elements of malicious
prosecution, closing by asking that Weaver's claims against her be dismissed.  In Weaver's pleadings
and responses, he discussed only the elements of malicious prosecution and only alleged facts
supporting that claim.  In his response to Bell's motion for summary judgment, Weaver stated that
he "sued defendant Nicole Bell for Malicious Prosecution."  After the trial court granted her motion
for summary judgment, Bell filed a motion to sever the claims against her into a separate cause.  Bell
recited that she had prepared and circulated a proposed agreed severance and final judgment to
Weaver and argued that severance was proper because Bell had "obtained a Summary Judgment
against [Weaver] on all of [Weaver's] claims against [her]."  In his objection to the motion to sever,
Weaver did not mention any other causes of action, stating instead that the cause "is a suit for
Malicious Prosecution" and that "[t]he controversy does not involve more than one cause of action." 
Nowhere in his trial court pleadings did Weaver complain that Bell's motion failed to address other
claims raised against her.
	The general rule is that a trial court may not grant more relief than is requested by a
motion for summary judgment.  Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.
1983).  Under these particular facts, we hold it was not error for the trial court to dismiss Bell from
the lawsuit.  Weaver's pleadings only allege facts related to malicious prosecution in the subsection
titled, "As to Bell."  Weaver did not allege that Bell in any way detained him or restricted his
movement, and thus she could not be guilty of false imprisonment or false arrest. (10) See Randall's
Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995) (elements of false imprisonment);
City of San Antonio v. Dunn, 796 S.W.2d 258, 262 (Tex. App.--San Antonio 1990, writ denied)
(elements of false arrest).  On appeal, Weaver states that Bell "might have committed defamation"
by her police affidavit because she averred that Weaver had stolen materials from her property, but
he never referred to that statement or other possible defamation at the trial court level.  Weaver also
states that his intention to plead all four causes of action against all the defendants, including Bell,
"is clear when one looks at the structure of the petition," outlining the numbering system used in his
petitions.  When outlined as Weaver has done on appeal, the other three causes of action are easier
to trace.  However, Weaver's outline condenses eighteen pages, all related to the elements of
malicious prosecution, into fourteen lines.  Bell sought dismissal of Weaver's claims against her,
although her argument, like Weaver's, addressed only malicious prosecution.  Bell moved to have
the claims against her severed and a final judgment rendered, providing Weaver with a proposed
final judgment before filing her motion.  Weaver never complained that he had other claims pending
against Bell, and in fact stated only that he was suing her for malicious prosecution.
	Bell disputed and the trial court properly dismissed the claim Weaver leveled against
her--malicious prosecution.  Bell sought dismissal of all claims against her, and Weaver did not
produce any evidence to raise a fact issue as to any other theories.  We overrule Weaver's first issue.

Conclusion

	Having overruled Weaver's issues on appeal, we affirm the trial court's judgment.


					__________________________________________
					David Puryear, Justice
Before Chief Justice Law, Justices Patterson and Puryear:  Opinion by Justice Puryear;
       Dissenting Opinion by Justice Patterson
Affirmed
Filed:   June 10, 2005
1.   Bell told the police that Weaver never had permission or reason to enter her house.  Weaver
asserts that the original agreement contemplated that he would be doing interior work and that Bell
gave him a house key so he could do interior work when she was not home.
2.   Bell's lawsuit against Weaver is unrelated to this appeal.
3.   Weaver structures his brief to advance only one "issue" on appeal--whether the trial court
erred in granting summary judgment in Bell's favor.  He then sets out eight "sub-issues," attacking
the summary judgment on different grounds.  For clarity, we will refer to the "sub-issues" as if they
were eight independent issues on appeal.
4.   Bell further averred that in mid-October Weaver or one of his employees had come onto
her property and stolen materials.
5.   Weaver admits that he entered onto Bell's property, denying only that he entered the house.
6. 	Weaver argues that Mendoza's deposition testimony proves that it was not Weaver seen
entering Bell's house.  However, Mendoza said that the same man he saw taking pictures of the
construction work went into the house, and Weaver admits to being at Bell's house and taking
pictures.  Although Mendoza said Weaver was not the man he saw, he also said he did not think he
would recognize the man if he saw him again.
7. 	Weaver argues that a language barrier may have been an issue when Mendoza was
interviewed by the police.  However, such inconsistencies or uncertainties do not have bearing on
Bell's beliefs at the time she called the police.  Bell averred that she was told that Weaver had come
onto her property and entered her home, despite being told to stay away from her property.  Whether
it was certain that Weaver was the man described by Mendoza or whether Weaver actually entered
the house makes no difference as to Bell's state of mind.
8.   Having held that Bell established her right to summary judgment by disproving not only
one but three elements of malicious prosecution, we need not decide Weaver's seventh and eighth
issues related to innocence and termination of the criminal proceedings in his favor.
9.   See Carr v. Mobile Video Tapes, Inc., 893 S.W.2d 613, 618 (Tex. App.--Corpus Christi
1994, no writ) ("We agree with the Carrs that their affidavits controvert certain facts from Stout's
affidavit and complaint.  But the Carrs have failed to controvert evidence that Stout acted on his
actual and reasonable belief when he filed the cruelty-to-animals complaint against Carr."); Closs
v. Goose Creek Consol. Indep. Sch. Dist., 874 S.W.2d 859, 877-78 (Tex. App.--Texarkana 1994,
no writ) (defendant's affidavit established that he turned over all information gathered to district
attorney, and summary judgment evidence established that reasonable person could have believed
plaintiff committed crimes).  In this case, Weaver did not rebut Bell's evidence that she acted with
probable cause and without malice in reporting the facts as they were related to her.
10.   False imprisonment and false arrest are essentially the same cause of action and require
a showing of:  (1) willful detention; (2) without consent; and (3) without authority of law.  Randall's
Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995) (false imprisonment); City of San
Antonio v. Dunn, 796 S.W.2d 258, 262 (Tex. App.--San Antonio 1990, writ denied) (false arrest). 

