Opinion
No. 04-07-00007-CV
Delivered and Filed: December 28, 2007.
Appeal from the 131st Judicial District Court, Bexar County, Texas, Trial Court No. 2006-CI-08592, Honorable Michael P. Peden, Judge Presiding.
AFFIRMED
Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
Appellant Richard Branson appeals the decision of the trial court to grant a no evidence summary judgment in favor of appellee Spiros Partners Ltd. (Spiros). We affirm the decision of the trial court.
FACTUAL BACKGROUND
On July 2, 2006, Branson went to the Penthouse Club, owned by Spiros, and purchased an alcoholic beverage known as a Long Island Iced Tea. Branson alleges his drink was intentionally laced with drugs by Spiros employees so that they could charge services to his credit card. Branson also alleges that, although he had not consumed any alcoholic beverages prior to entering the club, he felt intoxicated almost immediately after finishing the drink. By the end of the night, Branson had a bar tab of $83.50 and a tab of $672.50 dollars for dancing services. He refused to pay the tabs. Consequently, Spiros employees called the police. When police arrived, Branson explained that he had paid a previous tab and refused to pay more. Branson was arrested for theft of services between $500 and $1500.
After the incident, charges against Branson were instituted and then dropped by the Bexar County District Attorney's office. Branson filed suit against Spiros for assault, fraud, invasion of privacy, and malicious prosecution. Branson primarily alleged that he was drugged by Spiros for the purpose of charging services to his credit card. Spiros filed a no evidence motion for summary judgment contending Branson had no credible evidence: 1) that he was drugged; 2) that Spiros caused the intoxication by placing a drug in his beverage; or 3) that Spiros lacked probable cause and had malice sufficient to support the malicious prosecution claim. To contest the motion, Branson filed an affidavit in which he asserted his experience as a physician's assistant qualified him to know that he had been drugged. He also filed an expert affidavit from Robert Huel, a certified drug and alcohol master instructor. Huel attested that he is familiar with the effects drugs have on people, that he has investigated date rape drugs, and that a lack of corroborating evidence is common in involuntary date rape drugging cases.
The trial court held a hearing on December 13, 2006, and Judge Peden signed an order (1) sustaining Spiros's objections to Branson's evidence attached to his response to the motion for summary judgment, and (2) granting the no evidence motion for summary judgment in its entirety. For reasons not apparent from the record, Judge Mireles signed a "Final Summary Judgment" on January 11, 2007. This order did not mention the objections to Branson's summary judgment evidence.
Trial Court Ruling on Branson's Summary Judgment Evidence
We note initially that Spiros contends most of Branson's summary judgment evidence cannot be considered because the trial court sustained Spiros's objections to that evidence. On the other hand, Branson contends the evidence should be considered because the subsequent "Final Summary Judgment," which was silent about the evidentiary objections, superseded and vacated the earlier order granting both the objection and the summary judgment. See Owens-Corning Fiberglas Corp. v. Wasiak, 883 S.W.2d 402, 411 (Tex.App.-Austin 1994, no pet.). We need not resolve the dispute about this specific issue because we hold that even when all summary judgment evidence is considered, Branson failed to bring forth more than a scintilla of evidence that he was drugged by an employee of Spiros.
No Evidence Summary Judgment
The rules of civil procedure authorize a no evidence motion for summary judgment. Tex. R. Civ. P. 166a(I). After adequate time for discovery, a party may move for summary judgment on the ground that 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. Id. The movant need not produce any proof in support of its no evidence claim. Id.; see also Judge David Hittner Lynne Liberato, Summary Judgments in Texas, 34 Hous. L. Rev. 1303, 1356 (1998). The motion must allege with specificity a lack of evidence on an essential element of a cause of action. Denton v. Big Spring Hosp. Corp., 998 S.W.2d 294, 298 (Tex.App.-Eastland 1999, no pet.). Once a no evidence motion has been filed in accordance with Rule 166a(I), the burden shifts to the non-movant to bring forth evidence that raises a fact issue on the challenged element. Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 316-17 (Tex.App.-Houston [1st Dist.] 1999, no pet.). A no evidence motion is properly granted if the non-movant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the non-movant's claim on which the non-movant would have the burden of proof at trial. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact; the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). In determining whether the non-movant has met his burden, we consider the evidence in the light most favorable to the non-movant. Gen. Mills Rests. Inc v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (Tex.App.-Dallas 2000, no pet.).
Branson's Causes of Action Based on Drugging Claim
Central to Branson's claims of assault, fraud, and invasion of privacy is the contention that Branson was drugged by Spiros's employees. Spiros contended in the trial court that Branson failed to produce more than a scintilla of competent summary judgment evidence supporting this contention. We agree. The summary judgment evidence produced by Branson in response to the no evidence motion for summary judgment consists of Branson's affidavit and Huel's affidavit. Huel's affidavit merely addresses the general effects of date-rape drugs. It does not even purport to address the issue of whether Branson was actually drugged, or if drugged, by whom. Likewise, Branson's affidavit simply states that based on his knowledge as a physician's assistant, and based on his unusual conduct that evening, he is "certain a drug was placed into my drink which caused me to lose all my mental acuity...." The supreme court has long held that a fact is not established merely because a witness — even an expert witness — says so. Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999) (holding that a claim will not stand or fall on the mere ipse dixit of a credentialed witness). Other than conjecture and speculation, Branson has presented no evidence that he was drugged by Spiros's employees or anyone else. Since conjecture and speculation are not evidence, Branson has failed to present competent evidence to rebut the no evidence motion for summary judgment. The trial court properly granted Spiros's motion as to those claims.
Malicious Prosecution
To support his cause of action for malicious prosecution Branson must prove that 1) Spiros commenced criminal proceedings against him, 2) he is innocent of the crime charged, and 3) Spiros lacked probable cause and harbored malice toward him. Kroger Tex. Ltd. P' ship v. Suberu, 216 S.W.3d 788, 792-93 (Tex. 2006). It is assumed that a person reporting a crime has acted reasonably, in good faith, and had probable cause to do so. See Lloyd v. Meyers, 586 S.W.2d 222, 227 (Tex.App.-Waco 1979, writ ref'd n.r.e.). Branson has not alleged that Spiros lacked the probable cause to report the crime. Because Branson has not presented evidence that Spiros lacked probable cause to call the police, we hold this cause of action was properly disposed of by the trial court.
Conclusion
We overrule Branson's points of error and affirm the judgment of the trial court.