Opinion
No. 05-05-01552-CV
Opinion Filed July 26, 2006.
On Appeal from the 44th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 04-11321-B.
Affirm.
Before Justices MOSELEY, O'NEILL, and MAZZANT.
MEMORANDUM OPINION
Appellant Errol Woodberry filed a malicious prosecution claim against appellees J.C. Penney for Eckerd Drug ("Eckerd"), Sheryl Moses, and C. Cuningham. The trial court granted a no-evidence summary judgment motion in favor of Eckerd and Moses. The trial court subsequently dismissed the case for want of prosecution against Cuningham. On appeal, appellant argues he provided evidence to support his malicious prosecution claim, and the trial court abused its discretion in dismissing his case for want of prosecution without ruling on several motions. We affirm. An Eckerd employee accused appellant of theft after he sought a refund for a blood pressure machine. The police later arrested appellant, but he was subsequently acquitted of the offense. He then filed a malicious prosecution claim against appellees. Eckerd and Moses filed a no-evidence motion for summary judgment, which the trial court granted. The trial court later dismissed the case for want of prosecution against Cuningham. This appeal followed.
The caption in the underlying pleadings refer to "J.C. Penny," rather than "J.C. Penney."
A no-evidence motion for summary judgment asserts there is no evidence of one or more essential elements of a claim upon which the opposing party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). A no-evidence motion for summary judgment is properly granted only 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 the challenged element. McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548, 553-54 (Tex.App.-Dallas 2006, no pet.); Mulvey v. Mobil Producing Tex. N.M. Inc., 147 S.W.3d 594, 605 (Tex.App.-Corpus Christi 2004, pet. denied).
To prevail in a malicious prosecution suit, the plaintiff must establish: (1) the initiation of a criminal prosecution against the plaintiff; (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 plaintiff's favor; and (6) special damages. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996).
Here, Eckerd's and Moses's no-evidence motion asserted there was no evidence they initiated a prosecution and no evidence they lacked probable cause for the proceeding, or malice, or damages resulting from the prosecution. Appellant did not attach any evidence to his response. Although he referenced certain exhibits attached to his original petition, documents attached to pleadings are not proper summary judgment evidence. See Artco-Bell Corp. v. City of Temple, 603 S.W.2d 384, 386 (Tex.Civ.App.-Austin 1980) (holding that charter provision attached to an answer, but not summary judgment motion, was part of a pleading and not proper summary judgment evidence), rev'd on other grounds, 616 S.W.2d 190 (Tex. 1981); Sugarland Bus. Ctr., Ltd. v. Norman, 624 S.W.2d 639, 642 (Tex.App.-Houston [14th Dist.] 1981, no writ) (holding that affidavit attached to a pleading, but not summary judgment motion, was not proper summary judgment evidence). We conclude appellant failed to present the trial court with summary judgment evidence. Further, even if we considered the exhibits attached to appellant's original petition, he provides no evidence of a lack of probable cause to support his malicious prosecution claim.
The probable cause element asks whether a reasonable person would believe that a crime has been committed given the facts as the complainant honestly and reasonably believed them to be before the criminal proceedings were instituted. Kroger Tex. Ltd. P'ship v. Suberu, 49 Tex. Sup. Ct. J. 592, 2006 WL 1195331, at *2 (Tex. May 5, 2006); Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). Courts must presume that the defendant acted reasonably and had probable cause to initiate criminal proceedings. To rebut this presumption, the plaintiff must produce evidence that the motives, grounds, beliefs, or other information upon which the defendant acted did not constitute probable cause. Suberu, 49 Tex. Sup. Ct. J. 592, 2006 WL 1195331, at *2.
Appellant relies entirely on his claim that Moses gave "false" information to the police. This is not sufficient to raise a fact issue on probable cause. Id. There is no evidence to establish what motives, grounds, or beliefs Moses acted upon, much less to show she lacked probable cause. Accordingly, appellant failed to present sufficient evidence to raise a fact issue that Moses lacked probable cause. Appellant's issue is overruled.
In his "supplement brief," appellant argues that the trial court abused its discretion by failing to rule on several motions prior to dismissing his cause of action against Cuningham for want of prosecution. Throughout his summary of the argument, appellant states that the court ignored his timely filed "motions" and that the court should have conducted hearings on the motions. However, appellant fails to adequately inform this Court which motions the court should have considered.
Even if we could determine which motions appellant is referring to, the issue would still not be properly preserved for review. Texas Rule of Appellate Procedure 33.1(2) requires the record show that the trial court ruled on a request, objection, or motion either expressly or implicitly or that the trial court refused to rule on the request, objection, or motion, and the complaining party objected to the trial court's refusal to rule. Tex.R.App.P. 33.1(2). The record is devoid of any such evidence.
Further, rule of appellate procedure 38.1 requires that an appellant's brief contain "a clear and concise argument for the contention made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(h); Mayhew v. Dealey, 143 S.W.3d 356, 368 (Tex.App.-Dallas 2004, pet. denied) (holding issue inadequately briefed when appellant failed to identify which damages were excessive). The appellant bears the burden of discussing his assertion of error and pointing the appellate court to the portions of the record that support the complaint. Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877, 900 (Tex.App.-Dallas 2000, pet. denied); see also Thomas v. Olympus/Nelson Prop. Mgmt., 148 S.W.3d 395, 401 (Tex.App.-Houston [14th Dist.] 2004, no pet.). We do not have a duty to perform an independent review of the record and applicable law to determine whether the error complained of occurred. Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 678 (Tex.App.-Dallas 2004, pet. denied); Shelton v. Sargent, 144 S.W.3d 113, 129 (Tex.App.-Fort Worth 2004, pet. denied).
Because appellant has not provided citations to which motions the trial court should have considered before dismissing his case for want of prosecution and the record is devoid of any evidence establishing he properly preserved the issue under rule 33.1(2), he has waived the issue. Likewise, appellant has also waived any complaint about the actual dismissal order. Dismissal of a case is reviewed under an abuse of discretion standard. Hosey v. County of Victoria, 832 S.W.2d 701, 704 (Tex.App.-Corpus Christi 1992, no writ). The well-settled standard we apply to determine abuse of discretion is whether the court acted without regard for guiding rules and principles. Id. The burden rests upon the party asserting an abuse of discretion to affirmatively show the abuse, as the trial court is presumed to have acted properly. Id. When the face of the record does not show an abuse of discretion, the appellant has failed to meet its burden of proof. Id.
Appellant has provided no authority or evidence to support his claim that the trial court abused its discretion in dismissing his case other than a failure to rule on certain "motions." Since we have determined that argument lacks merit and he has provided no other evidence, appellant has not sustained his burden. Thus, we overrule appellant's issue.
Although a motion for reinstatement may not be a prerequisite to challenging a dismissal on appeal, if facts outside the existing record are necessary to establish that dismissal was improper, then a motion to reinstate and a hearing would be required to develop those facts. Hosey, 832 S.W.3d at 703. Because appellant did not file a motion for reinstatement, we do not have any further evidence before us to determine if the trial court abused its discretion.
Having overruled all of appellant's issues, we affirm the trial court's judgment.