Opinion
No. 04-02-00340-CV.
Delivered and Filed: April 9, 2003.
Appeal From the 408th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CI-11862, Honorable John D. Gabriel, Jr., Judge Presiding.
AFFIRMED.
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Crecencio T. Fragozo appeals a summary judgment granted in favor of Alfred Castellano. Fragozo contends that the summary judgment was prematurely granted because insufficient discovery had been ordered and genuine issues of material fact had yet to be resolved. We affirm the trial court's judgment.
Background
A jury awarded Castellano $3.5 million in damages against Fragozo and another person in a federal district court after finding that Fragozo, a San Antonio police officer, conspired with Maria Sanchez to maliciously prosecute Castellano for an arson he did not commit by fabricating evidence and giving perjured testimony. See Castellano v. Fragozo, 311 F.3d 689 (5th Cir. 2002). In response to the jury's verdict against him, Fragozo filed the underlying suit in state court alleging fraud, conspiracy, and malicious prosecution.
Collateral Estoppel
We review an order granting a motion for a traditional summary judgment under well-established standards. Am. Broad. Cos. v. Gill, 6. S.W.3d 19, 27 (Tex.App.-San Antonio 1999, pet. denied). To determine the true nature of a lawsuit we look to the pleadings and the relief sought, and not the terms used to describe the cause of action. See Kale v. Palmer, 791 S.W.2d 628, 631 (Tex.App.-Beaumont 1990, writ denied). Although Fragozo alleges the elements of fraud and conspiracy in his petition, he states that the purpose of the conspiracy was to prosecute a groundless theory of recovery against him. The gravamen of an action for malicious prosecution is improperly making a party the subject of legal process to his detriment. Id. at 632. Accordingly, the true nature of Fragozo's lawsuit is a claim for malicious prosecution regardless of other words or phrases used by Fragozo in his pleadings.
In order for Fragozo to recover on a claim for malicious prosecution, one of the elements he is required to prove is that the original lawsuit terminated in his favor. See id. at 633. Fragozo cannot meet this requirement because the federal lawsuit did not terminate in Fragozo's favor, and Fragozo is collaterally estopped from relitigating the validity of the claims asserted by Castellano in federal court. See id.
Summary Judgment Evidence
Fragozo argues that Castellano failed to submit summary judgment evidence establishing that he was entitled to summary judgment as a matter of law. Specifically, Fragozo contends that the motion for summary judgment required certified copies of the federal judgment to be attached, and that the absence of this attachment precluded grant of summary judgment. Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party. TEX. R. CIV. P. 166a(f); see Watts v. Hermann Hosp., 962 S.W.2d 102, 105 (Tex.App.-Houston [1st Dist.] 1997, no pet.). Because Fragozo did not object to the attachment, any defect in form was waived.
Continuance
Fragozo further contends the trial court erred in denying his motion for continuance. The granting or denial of a motion for continuance is within the trial court's sound discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). Fragozo sought a continuance on the ground that he needed additional time to depose three witnesses. Because Fragozo's motion did not state what he expected the deposition testimony to prove or why the testimony would be material, see TEX. R. CIV. P. 252, the trial court did not abuse its discretion in denying the motion.
The judgment of the trial court is affirmed.