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Haygood v. Chandler10/31/2003
ainst 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 resulting from some physical interference with a party's person or property in the form of an arrest, attachment, injunction, or sequestration.
Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207-09 (Tex.1996). With regard to special damages or special injury , it is insufficient that a party has suffered the ordinary losses incident to defending a civil suit, such as inconvenience, embarrassment, discovery costs, and attorney's fees. Id. at 209. The mere filing of a lawsuit cannot satisfy the special injury requirement. Id. There must be some physical interference with a party's person or property in the form of an arrest, attachment, injunction, or sequestration. Id. But once the special injury hurdle has been cleared, that injury serves as a threshold for recovery of the full range of damages incurred as a result of the malicious litigation. Id. The Green court also noted that
Texas law has long recognized that everyone is liable to be harassed and injured in his property and feelings by unfounded suits, but that this is not an injury for which the one sued can have legal redress, except to visit the costs upon the party suing, unless there is the wrongful suing out of some process by which property is seized and damage sustained.
Id. (citing Louis v. Blalock, 543 S.W.2d 715, 718-19 (Tex. Civ. App.-Amarillo 1976, writ ref'd n.r.e.)).
In its motion for summary judgment, Nichols, Khoury, the Nichols firm, Bishop, and the Bishop firm argued that they were entitled to summary judgment as a matter of law because the Association did not sustain any special damages. In response, the Association attached 1) one page from Chandler's medical records, compiled the day Dr. Haygood treated Chandler, and 2) Chandler's responses to the Association's requests for admissions. The Association also argued that Appellees' contentions were incorrect and that his claims "would be substantiated by testimony before a jury." After a thorough review of the record and indulging every reasonable inference in favor of the Association, we hold that the Association has failed to raise a genuine issue of material fact on its malicious prosecution claim against Nichols, Khoury, the Nichols firm, Bishop, and the Bishop firm. The only evidence of any damages sustained by the Association arising out of the earlier litigation are lost fees, increased malpractice insurance costs, lost employment contracts, embarrassment, and mental anguish. Dr. Haygood testified at his deposition that 1) the Association had no basis for a claim that Appellees interfered with his person and/or the property of the Association, 2) he was not arrested or detained, and 3) no property of the Association was in receivership or had been the target of an injunction. This testimony negates any claim that the Association sustained any special injury as a result of the previous litigation. Furthermore, the record is devoid of any proof of malice or lack of probable cause in filing the previous lawsuit that is necessary to raise a fact issue on the Association's malicious prosecution cause of action. Therefore, the trial court was correct in granting both the traditional and no-evidence summary judgments on the Association's cause of action for malicious prosecution against Nichols, Khoury, the Nichols firm, Bishop, and the Bishop firm.
The instant case is much akin to that of Butler v. Morgan, 590 S.W.2d 543 (Tex.
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