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Moore v. Novark9/28/1995
ction on "aid or cooperate" in causing a prosecution, the court's failure to add an instruction on full and fair disclosure could have led the jury to find against appellants for merely furnishing information to the federal authorities. The instructions on malice and probable cause do not completely alleviate this problem. We conclude that the error in the court's charge probably led to the rendition of an improper verdict on malicious prosecution. TEX. R. APP. P. 81(b)(1). We sustain the deputies' fifth point of error.
Novark also received favorable findings on conspiracy and intentional infliction of emotional distress, however. When the jury returns favorable findings on alternative theories, the prevailing party is entitled to seek recovery under an alternative theory if the judgment based on one theory is reversed on appeal. Boyce Iron Works, Inc. v. Southwestern Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988). The fact that Novark's malicious prosecution theory was erroneously submitted does not preclude his other claims if supported by the evidence. See Hughes v. Houston Northwest Medical Center, Inc., 680 S.W.2d 838, 841-42 (Tex. App. -- Houston [1st Dist.] 1984, writ ref'd n.r.e.). Therefore, we must consider whether liability may be supported under any theory submitted to the jury. See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 274 (Tex. 1995).
Sufficiency of the Evidence
1. Conspiracy
In their seventh point of error, the deputies contest the sufficiency of the evidence to support the jury's finding of conspiracy. The deputies claim they cannot be liable for conspiracy because they are protected by the "intracorporate conspiracy" defense. The general rule is that a corporation cannot conspire with its employees because the acts of a corporation's agents are deemed to be the acts of the corporation itself. Fotjik v. First Nat'l Bank of Beeville, 752 S.W.2d 669, 673 (Tex. App. -- Corpus Christi 1988), writ denied per curiam, 775 S.W.2d 632 (Tex. 1989); see also Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952), cert. denied, 345 U.S. 925 (1953). The deputies argue that as deputies of the Harris County Precinct 4 Constable's office, they are agents of a single governmental entity and their actions are those of that entity. We find the intracorporate conspiracy exception inapplicable under these facts. Here, the deputies were also sued in their individual capacities. Therefore, the suit alleged "two or more persons" conspired against Novark. Nelson v. Fontenot, 784 F.Supp. 1258, 1261 (E.D. Tex. 1992); see also Dussouy v. Gulf Coast Inv. Corp, 660 F.2d 594, 603 (5th Cir. 1981) (recognizing an exception to intracorporate conspiracy defense when officers act for their own personal purposes). We next address Novark's assertion that the evidence supports a finding of a conspiracy to interfere with civil rights under The Ku Klux Klan Act, 42 U.S.C. Section(s) 1985 (1994). While Novark pled a cause of action under the federal statute, he failed to specify which subpart of the Act appellants allegedly violated, and we cannot discern which, if any, part of the Act is applicable to these facts. Moreover, Novark failed to submit a violation of the federal statute to the jury.
In Question No. 2, the jury in this case was asked whether each of the defendants "did conspire to wrongfully or falsely accuse Mr. Novark of violating an individual's civil rights?" This question was accompanied by numerous instructions and definitions, including the elements of common law civil conspiracy. These essential elements of a civil conspiracy are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds on the o
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