 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Moore v. Novark9/28/1995
es. See WalMart Stores, Inc. v. Medina, 814 S.W.2d 71, 72-74 (Tex. App. -- Corpus Christi 1991, writ denied); Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 628 (Tex. App. -- Houston [1st Dist.] 1984, writ ref'd n.r.e.). We hold there is no evidence that Constable Moore, having made a full and fair disclosure, acted without probable cause.
Novark claimed that the appellants conspired to devise a plan to get rid of him in retaliation for actions he took that he believed Constable Moore opposed. First, Novark claimed the motivation behind this conspiracy was his investigation of a suspected prostitution operation. Novark was told to stop his investigation. Novark later admitted that an injunction had been filed against Precinct 4 prohibiting all officers from investigating these activities. Secondly, at his supervisor's instruction, Novark confiscated the honorary deputy's commission of one of Constable Moore's political supporters who was intoxicated in public. The supporter threatened Novark that this action would cost him his job . Novark's allegations concerning Constable Moore's motives are only speculative. Mere surmise or suspicion amounts to no more than a scintilla of evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). In any event, Novark's contention that Constable Moore acted with malice is of no consequence in view of the fact that he acted with probable cause in furnishing the deputies' reports to the federal authorities. Dominguez v. Kelly, 786 S.W.2d 749, 752 (Tex. App. -- El Paso 1990, writ denied). While malice may be inferred from the lack of probable cause, lack of probable cause can never be inferred from proof of malice. Salazar, 682 S.W.2d at 628.
As noted earlier, the jury did not find that Constable Moore was part of a conspiracy, and Novark has raised no complaint on appeal about this failure to so find. Thus, the actions of the deputies which may support the elements of malicious prosecution are not imputed to Constable Moore. See Akin v. Dahl, 661 S.W.2d 917, 921 (Tex. 1983), cert. denied, 466 U.S. 938 (1984).
If the plaintiff fails to prove one or more of the elements of a cause of action for malicious prosecution, the claim fails as a matter of law. Dominguez, 786 S.W.2d at 752. Because Novark failed to show that Constable Moore acted without probable cause, we conclude that his claim of malicious prosecution by Constable Moore must fail as a matter of law. We sustain Constable Moore's points of error one, two, and four complaining of the legal sufficiency of the evidence to support the jury's finding of the elements of malicious prosecution.
Intentional Infliction of Emotional Distress
To support a claim of intentional infliction of emotional distress, the plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the conduct was "extreme and outrageous;" (3) the defendant's actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993); Tidelands Auto. Club v. Walters, 699 S.W.2d 939, 942 (Tex. App. -- Beaumont 1985, writ ref'd n.r.e.). The conduct reaching the level of "outrageousness" necessary for liability for intentional infliction of emotional distress is described as being "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993) (citing RESTATEMENT (SECOND) OF TORTS Section(s) 46 cmt. d (1965)).
As a matter of law, Constable Moore's actions in connection with Novark's investigation, discharge, and sub
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|