Wednesday, November 30, 2011

The Elements of Malicious Prosecution as a Tort

Texas courts have long recognized a cause of action for those unjustifiably subjected to criminal proceedings, but has made it clear that such a cause of action, known as malicious prosecution, must sometimes yield to society’s interest in encouraging its citizens to report crimes whether real or merely perceived. Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 792 (Tex. 2006).
The elements necessary to recover for malicious prosecution reflect a balance of these interests. Id. To recover for malicious prosecution, a plaintiff must prove: (1) a criminal proceeding was commenced against the plaintiff; (2) the defendant initiated or procured the proceeding; (3) the proceeding was terminated in the plaintiff’s favor; (4) the plaintiff was innocent of the crime charged; (5) the defendant lacked probable cause to initiate the criminal proceeding; (6) the defendant acted with malice; and (7) the plaintiff suffered damages. Id. (citing Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997)). The fifth and sixth elements protect a defendant from a jury’s “natural inclination” to punish a defendant who erroneously, but with cause and no malice, commenced criminal proceedings that resulted in an exoneration. Suberu, 216 S.W.3d at 792.
According to the Texas Supreme Court, procurement, which is the causation element of a malicious prosecution action, occurs when a person’s actions are enough to cause the prosecution, and but for the person’s actions the prosecution would not have occurred. Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 293 (Tex. 1994). A person does not procure a prosecution, however, when the decision to prosecute is left to the discretion of a law enforcement official or grand jury unless the person provides information he knows is false. Id.; King v. Graham, 126 S.W.3d 75, 78 (Tex. 2003).
A person does not procure a prosecution when the decision to prosecute is left to the discretion of a law enforcement official or grand jury. Id.; King v. Graham, 126 S.W.3d 75, 78 (Tex. 2003). However, if a person knowingly provides false information to those responsible for procuring the prosecution, the person has procured the prosecution for purposes of a malicious prosecution action. Id. This exception is satisfied not only when actual false information is provided, but when the reporting person fails to report facts that might establish the accused is not guilty of any offense. Eans, 580 S.W.2d at 20 (holding circumstantial evidence was sufficient for jury to have concluded corporation procured prosecution where reporting persons failed to disclose material facts favorable to accused).
A person acts with malice in a malicious prosecution case when he acts with ill will or evil motive to the injury of another, or acts in reckless disregard of the rights of another and with indifference as to whether the other person is injured so as to amount to wanton and willful action knowingly and unreasonably done. Id. Malice can be established by either direct or circumstantial evidence and may be inferred from a lack of probable cause. Thrift, 974 S.W.2d at 80.
Of course a person has the legal right to report a crime. See Closs, 874 S.W.2d at 878. However, if a person reports a crime with an improper purpose, or in reckless disregard of the rights of another in a knowing and unreasonable manner, that is malice. Id.
Richey, 952 S.W.2d at 519-20 (holding that in malicious prosecution action, failing to fully and fairly disclose all relevant facts or knowingly providing false information to police is relevant to malicious intent of defendant); Thrift, 974 S.W.2d at 80 (holding defendant’s failure to disclose exculpatory facts was sufficient to demonstrate malice).
A malicious prosecution action against a corporate entity may be based on an agent taking action to procure a prosecution. See Eans v. Grocery Supply Co., 580 S.W.2d 17, 21-22 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (malicious prosecution judgment upheld against corporation based on actions of corporate employees).
SOURCE: SAN ANTONIO COURT OF APPEALS - 04-10-00602-CV – 11/23/11 

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