Opinion
No. 05-14-00939-CV
01-21-2016
JACK LAGOS, Appellant v. PLANO ECONOMIC DEVELOPMENT BOARD, INC. AND SALLY BANE, Appellees
On Appeal from the 429th Judicial District Court Collin County, Texas
Trial Court Cause No. 429-00663-2013
MEMORANDUM OPINION
Before Justices Lang-Miers, Brown, and Schenck
Opinion by Justice Brown
Appellant Jack Lagos sued appellees Plano Economic Development Board, Inc. (the Board) and its executive director Sally Bane for malicious civil prosecution. The trial court granted a take-nothing summary judgment in favor of appellees. In his sole point of error, Lagos contends the trial court erred in doing so. For the following reasons, we affirm.
In 2009, appellees sued Lagos seeking a permanent injunction. Appellees asserted Lagos had engaged in confrontational, erratic, and threatening behavior at the Board's offices and that his behavior constituted a nuisance and tortious interference with contract. The trial court granted summary judgment in favor of appellees on the tort claims and entered a five paragraph injunction. The first two paragraphs of the injunction enjoined Lagos from going within 500 feet of the Board's office or any of its future offices. The third paragraph of the injunction enjoined Lagos from going within 500 feet of, making telephone calls to, or emailing various members and employees of the Board. The final two paragraphs enjoined Lagos from going within 500 feet of Plano's Mayor or City Attorney unless they were appearing at a public event.
Lagos appealed to this Court complaining there was no evidence to support the last three paragraphs of the injunction. See Lagos v. Plano Economic Dev. Bd., 378 S.W.3d 647, 650 (Tex. App.—Dallas 2012, no pet.). We agreed with Lagos and concluded the trial court abused its discretion in enjoining Lagos's conduct with respect to the individuals because there was no evidence that he "posed an imminent harm or irreparable injury" to them. Id. at 652. We dissolved those three paragraphs of the injunction. Id.
Lagos then sued appellees for malicious civil prosecution. Appellees moved for summary judgment asserting they were entitled to judgment as a matter of law because their suit did not terminate in Lagos's favor.
A party moving for traditional summary judgment must establish that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant is entitled to summary judgment if it conclusively disproves at least one essential element of the plaintiff's claim. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Bertrand v. Bertrand, 449 S.W.3d 856, 865 (Tex. App.—Dallas 2014, no pet.).
The gist of an action for malicious prosecution is that the plaintiff has improperly been made the subject of legal process. Daniels v. Conrad, 331 S.W.2d 411, 415 (Tex. Civ. App.—Dallas 1959, writ ref'd n.r.e.). To prevail, the plaintiff must establish: (1) the institution or continuation of civil proceedings against him; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceeding; (5) termination of the proceeding in his favor; and (6) special damages. Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996).
Here, Lagos's claim is based on his contention that appellees sued him and sought a permanent injunction with actual malice and without probable cause. In the prior suit, the trial court rendered judgment in favor of appellees on their claims for nuisance and tortious interference and granted them permanent injunctive relief. According to Lagos, however, appellees' suit later terminated in his favor when this Court dissolved three paragraphs of the injunction. We disagree.
In that appeal, we did not reverse the trial court's liability determination, its decision to grant injunctive relief, or two paragraphs of the injunction. See Lagos, 378 S.W.3d at 650-652; Cf. Cooper v. Litton Loan Servicing, LP, 325 S.W.3d 766, 769 (Tex. App.—Dallas 2010, pet. denied) (permanent injunction is an equitable remedy based on another cause of action). Thus, notwithstanding our dissolution of portions of the injunction, appellees' suit nevertheless resulted in a final judgment in favor of appellees. Cf. Foster v. Howeth, 112 S.W.3d 773, 774 (Tex. App.—Beaumont 2003, no pet.) (the plaintiff's prosecution for robbery did not terminate in his favor when he was found guilty of the lesser included offense of robbery). We conclude appellees disproved an essential element of Lagos's claim for malicious prosecution. Therefore, we affirm the trial court's judgment.
/Ada Brown/
ADA BROWN
JUSTICE 140939F.P05
JUDGMENT
On Appeal from the 429th Judicial District Court, Collin County, Texas
Trial Court Cause No. 429-00663-2013.
Opinion delivered by Justice Brown. Justices Lang-Miers and Schenck participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees PLANO ECONOMIC DEVELOPMENT BOARD, INC. AND SALLY BANE recover their costs of this appeal from appellant JACK LAGOS. Judgment entered this 21st day of January, 2016.