EX PARTE JOSE FELIX URIBE (Other)

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State: Texas

Court: Criminal Court of Appeals

Docket No: WR-72,960-01

Case Date: 11/18/2009

Plaintiff: MICHAEL CLIFFORD

Defendant: THE STATE OF TEXAS--Appeal from 94th District Court of Nueces County

Preview:Julie Bertuca & Mike Gonzalez a/k/a Mike Chapa v. David Martinez, Elite C Security, Inc., RFS Hotel Investors, Inc. and RFS Partnership, L.P.--Appeal from 341st Judicial District Court of Webb County
MEMORANDUM OPINION

No. 04-04-00926-CV

Julie BERTUCA and Mike Gonzalez a/k/a Mike Chapa Appellants

v.

David MARTINEZ, Elite C Security Inc., RFS Hotel Investors, Inc. and RFS Partnership, Appellees

From the 341st Judicial District Court, Webb County, Texas Trial Court No. 2002-CVQ-001305-D3 Honorable Elma T. Salinas Ender, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Sarah B. Duncan, Justice Karen Angelini, Justice Sandee Bryan Marion, Justice Delivered and Filed: February 22, 2006

AFFIRMED

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Julie Bertuca and Mike Gonzalez brought suit against David Martinez, // Elite C. Security, Inc., RFS Hotel Investors, Inc., and RFS Partnership, L.P., alleging seven causes of action. RFS Hotel Investors, Inc. and RFS Partnership, L.P. (collectively RFS ) filed a traditional and no-evidence motion for summary judgment. The trial court granted the motion. Bertuca and Gonzalez appeal. Background On September 29, 2000, Gonzalez checked into a room at the Hampton Inn in Laredo, Texas. Because he was in the process of studying for his Texas Import/Export examination, he requested the front desk not to disturb him after 9:00 p.m. That evening, at sometime past 10:00 p.m., Gonzalez s mother, Julie Bertuca, attempted to call Gonzalez in his hotel room. After being unable to contact him, she called the front desk, requesting that somebody check on her son s well-being. The front desk clerks did not mention to Bertuca that Gonzalez had requested not to be disturbed. Upon Bertuca s request, the hotel dispatched David Martinez, the security guard on duty, to check on Gonzalez in his room. Martinez knocked on Gonzalez s hotel room door several times. Gonzalez did not open the door or acknowledge Martinez s presence. Martinez did, however, hear the sound of breaking glass coming from inside the room. He could also hear the television set because it had been turned up to a high volume. When Martinez returned to the front desk, he explained what had happened to the hotel s staff and told them that he suspected that Gonzalez was causing damage to the room and that he was concerned for Gonzalez s and the other guests safety and well-being. In response, the hotel staff called the police. When two police officers responded to the call, Martinez escorted them to the door of Gonzalez s hotel room where they found a disconnected telephone lying on the floor along with one or two broken beer bottles. The officers knocked on the door and announced that they were with the Laredo Police Department and that they wanted to check on Gonzalez s well-being. Not believing that the people at the door were police officers, Gonzalez refused to open the door. After failed attempts to open the door with a key and with the permission of the hotel, the officers broke down the door and entered the room. An altercation then allegedly arose between Gonzalez and the officers. Gonzalez was handcuffed and arrested for criminal mischief and resisting arrest. Criminal charges were brought against Gonzalez; however, because restitution had been paid to RFS and because the State recommended that the charges be dismissed, the trial court dismissed the charges. Subsequently, Bertuca and Gonzalez brought a civil action against RFS. Standard of Review Under Rule 166a(i), a party may move for a no-evidence summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). We review a no-evidence summary judgment de novo by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex. App. San Antonio 2000, no pet.). A no-evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact on the challenged element. Tex. R. Civ. P. 166a(i); Huff, 21 S.W.3d at 512. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion. Huff, 21 S.W.3d at 512. When the trial court does not state the specific grounds on which it granted summary judgment, we will affirm if any of the theories advanced is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). To obtain a traditional summary judgment, a party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the grant of a summary judgment, we must indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 549. In addition, we must assume all evidence favorable to the nonmovant is true. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 548-49. A

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defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of the plaintiff s cause of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). Once the movant has established a right to summary judgment, the burden shifts to the nonmovant to present evidence that would raise a genuine issue of material fact on the challenged issue. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Breach of Contract In their first issue, Bertuca and Gonzalez argue that the trial court erred in entering summary judgment on their breach of contract claim. According to Bertuca and Martinez, Gonzalez s eviction from the hotel prior to his checkout time . . . constitute[d] a breach in the rental of that space. However, the few authorities that Bertuca and Gonzalez cite in support of their claim do not stand for such a proposition. Citing Vernon s Civil Statute Annotated Title 73, Article 4592 through 4596c, Bertuca and Gonzalez contend that Texas statutes specifically recognize hotel vs. tenant obligations/legal relationships. However, such innkeeper laws were repealed in 1999. There is no landlord-tenant relationship between a hotel and its guest. See McBride v. Hosey, 197 S.W.2d 372, 374 (Tex. Civ. App. El Paso 1946, writ ref d n.r.e.). Furthermore, an innkeeper has no duty to keep a guest indefinitely and has the right to evict a guest. Id. at 375. [W]hen a guest is obnoxious for some reason, he may be forcibly removed without resort to legal process, provided no more force is used than necessary. Id. Here, Gonzalez was arrested by police officers for his own misconduct. There is no Texas law which, regardless of his conduct or behavior, allows a person to stay in a hotel room merely because the rate for the room has been paid. Bertuca and Gonzalez further argue that the tenant can sue for the failure to return monies or valuables falsely held by the landlord, calling such act an embezzlement. In support, they rely on Johnson v. State, 159 S.W. 849 (Tex. Crim. App. 1913). In Johnson, a boarder at a boarding house deposited seventy dollars with the keeper of the boarding house for safe-keeping. Id. at 850. The keeper later refused to return the money to the boarder and was subsequently convicted of embezzlement. Id. The court affirmed the conviction, noting that when a boarder deposits money for safekeeping with an owner of a boarding house, [t]here are necessarily implied contractual relations between them. Id. at 850-51. For support, the court cited to article 5663 of the Revised Civil Statutes which gave the landlord a lien on all the property of his boarders deposited with him to secure him in the payment of his board bill. Id. at 851. The court explained that [t]he custom and usage of all hotels and boarding houses are well known, not to be responsible for valuables carried to the rooms by the boarders or guests, but to be responsible if the valuables are deposited with the owner or clerk of the boarding house. Id. Johnson is distinguishable from the facts presented here. First, Johnson was not a civil case involving beach of contract; it was a case involving the criminal prosecution of a defendant for embezzlement. Second, unlike in Johnson, here, RFS was not holding any property for Gonzalez. Third, here, Gonzalez was removed from the hotel room because of his behavior and the property he damaged. We overrule this issue. Malicious Prosecution Bertuca and Gonzalez argue that the trial court erred in granting summary judgment in favor of RFS because they can prove a complete cause of action for malicious prosecution. We disagree. In order to prevail in a malicious prosecution case, the following elements must be established: (1) a criminal prosecution was commenced against the plaintiff; (2) the prosecution was initiated or procured by the defendant; (3) the prosecution terminated in favor of the plaintiff; (4) the plaintiff was innocent; (5) the defendant lacked probable cause to instigate the prosecution; (6) the defendant acted with malice in bringing about the prosecution; and (7) the plaintiff suffered damages as a result of the prosecution. Thrift v. Hubbard, 974 S.W.2d 70, 77 (Tex. App. San Antonio 1998, pet. denied). A. Favorable Termination in Prior Proceedings Bertuca and Gonzalez argue that Gonzalez obtained a favorable termination in the prior proceeding because the case was dismissed by the District Attorney s Office. The record shows, however, that during the criminal proceedings the
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following occurred: State: The State moves to dismiss based on sufficient punishment and Defendant [Gonzalez] having paid restitution.

*** Court: Something about damages done to a telephone there at the Hampton Inn. Defense: Yeah. The restitution was made. Court: You don t know how much? Defense: Two hundred and something dollars. *** Court: All right. On the recommendation of the District Attorney, the motion to dismiss that the restitution has been made to the Hampton Inn for damages done to a telephone. The court will sign the order to dismiss. Gonzalez argues that the fact that the District Attorney coined the phrase damages paid does not mean that was the intent of the Plaintiff Gonzalez. He has always maintained his innocence and will prove it at the of trial. However, a criminal prosecution that is dismissed by the accused s compromise, agreement or settlement does not end the proceedings in the accused s favor and, thus, will not warrant a malicious prosecution action. Ellis v. Sinton Savs. Ass n, 455 S.W.2d 834, 842 (Tex. Civ. App. Corpus Christi 1970, writ ref d); Sullivan v. O Brien, 85 S.W.2d 1106, 1115 (Tex. Civ. App. San Antonio 1935, writ ref d). Here, Gonzalez s criminal case was dismissed because the State felt that Gonzalez having paid restitution was sufficient punishment and because the court agreed. Thus, the prosecution of the criminal action was not terminated in Gonzalez s favor. See Davidson v. First State Bank, 310 S.W.2d 678, 681 (Tex. Civ. App. El Paso 1958, no writ) ( Certainly the facts here establish that upon payment of the sum of $19,295, the motion was immediately presented to dismiss, and the court, presumably being in possession of the facts, undoubtedly considered the matter carefully and granted such motion. Therefore, there was no termination in favor of the plaintiff. ). B. Innocence As noted above, to successfully bring a malicious prosecution claim, Gonzalez must show that he was innocent. It does not follow . . . that when the court consents to a dismissal order for whatever reasons stated in the State s motion to dismiss, the court is finding the accused is innocent of the crime charged . . . . Bailey v. State, 531 S.W.2d 628, 631 (Tex. Crim. App. 1976) (Onion, J., concurring). Here, although Gonzalez s criminal case was dismissed, the record does not reflect that the case was dismissed because Gonzalez was innocent. In addition, we are unaware of any authority that stands for the proposition that payment of restitution is supportive of a defendant being innocent. On the contrary, if anything, such a restitution payment would indicate Gonzalez s guilt. See Allen v. State, No. 13-95-00245CR, 1999 WL 33755854, at *4 (Tex. App. Corpus Christi 1999, no pet.) (holding in context of speedy trial appeal that paying restitution does not support defendant s claim of innocence and if anything, it would indicate defendant s guilt). Also with regard to the innocence element, Gonzalez relies on his own affidavit, stating that he committed no mischief and no property of [RFS] was damaged. Gonzalez further contends that RFS is incorrect in asserting to the Court that the Plaintiff must be found innocent (at the criminal proceeding) in order to plead and prove a cause of action for malicious prosecution. The plaintiff is to prove his innocence at the time of the trial of the civil case. However, according to the Third Restatement of Torts, proof of the fact that [a party] was innocent of the crime charged against him will not support an action under that section unless his innocence has been established by the termination of the proceedings in his favor. It follows that if

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the proceedings have terminated adversely to him, he will not be permitted to prove that newly discovered evidence has shown his conviction to be unjust or even that the conviction was obtained by fraud or perjury.

Restatement (Third) of Torts 658 cmt. c (2005) (emphasis added). Therefore, because termination of the criminal proceedings were not in Gonzalez s favor, Gonzalez cannot now prove his innocence with new evidence. Because summary judgment was properly granted on the favorable termination and innocence elements of the malicious prosecution claim, we need not consider the other elements of the claim. False Arrest and False Imprisonment In their next issue, Bertuca and Gonzalez argue that the trial court erred in granting RFS s motion for no-evidence summary judgment because there is ample evidence in support of their false imprisonment claim. They argue that their evidence consists of the following: (1) willful detention of Gonzalez when he was taken into custody brought about by RFS; (2) lack of good cause to arrest because finding of the broken bottle and an explanation of no contact (phone) reasonably cancels out any propriety to enter the room forcibly or to detain [Gonzalez]; and (3) lack of Gonzalez s consent.

Gonzalez further contends that there is virtually no dispute as to the essential elements in this cause of action with the exception as to the propriety and color of law in the entry and arrest of [Gonzalez]. These are fact questions for the jury and disqualify a summary judgment motion in this regard. The essential elements of false imprisonment or false arrest are (1) willful detention, (2) without consent, and (3) without authority of law. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). An employer can be held vicariously liable for a wrongful detention or arrest made by an employee or agent acting within the scope of employment. See id. Here, no hotel employee participated in Gonzalez s actual arrest and detention. Nevertheless, liability for false imprisonment may extend beyond those who willfully participate in detaining the complaining party to those who request or direct detention. Id. False imprisonment s first element may be satisfied by conduct that is intended to cause one to be detained, and in fact causes the detention, even when the actor does not participate in the detention Id. To prove such an instigation, a plaintiff must show that the defendant clearly directed or requested the arrest. Id. It must be the equivalent, in words or conduct, of Officer arrest that man! Id. (quoting Restatement (Second) of Torts 45A cmt. c). Accordingly, to hold a third party liable for instigating a detention, the act of arrest [must be] made by the officer, not of his or her own volition, but to carry out the request of the defendant. Id.(quoting 32 Am. Jur.2d False Imprisonment 41 (1995)) (alteration in original). It is not enough for instigation that the actor has given information to the police about the commission of a crime, or has accused the other of committing it, so long as he leaves to the police the decision as to what shall be done about any arrest, without persuading or influencing them. Id. at 507-08 (quotingRestatement (Second) of Torts 45A cmt. c). Bertuca and Gonzalez argue that the police had no probable cause to arrest him because [t]here never was any damage to the room and no reasonable person would expect Mike Gonzalez to be arrested, jailed, and prosecuted for fifteen months on the charge of malicious mischief-destruction of property without any mischief or damaged property! Here, there is no evidence of instigation. The hotel personnel never requested or directed the police officers to arrest Gonzalez. After Gonzalez refused to answer his mother s call, she asked hotel staff to check on him. When the hotel security guard knocked on Gonzalez s room, Gonzalez did not answer the door, and the guard heard breaking glass coming from inside the room. Thus, the hotel had ample reason to call for the police to investigate Gonzalez s wellbeing. The hotel staff did not request or direct the police to arrest Gonzalez. Once the police officers forcefully broke

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into Gonzalez s room, Gonzalez became aggressive. Thus, the police officers had probable cause to arrest Gonzalez. Because there is no evidence of instigation, the trial court did not err in dismissing Gonzalez s claim. Abuse of Process In their final issue, Bertuca and Gonzalez argue that the trial court erred in granting RFS s motion for summary judgment with respect to abuse of process. Without citing any authority, they argue the following: (1) [RFS s] illegal, improper or perverted use of the legal process . . . was neither warranted nor authorized by the process; (2) RFS s ulterior motive in using the police as eviction agents . . . was the desire to avoid due process and evict someone they suspected of criminal mischief; and (3) Damage to [Gonzalez] by this abuse of legal process is clearly proven.

In response, RFS argues that the abuse of process claim was specifically identified by agreement of the parties during an April 5, 2004 proceeding in open court. According to RFS, at that proceeding, Bertuca and Gonzalez agreed to drop their Deceptive Trade Practices Act claim and all other claims other than their claims for false imprisonment, malicious prosecution, and the $291.00 breach of contract claim. As such, RFS maintains that the trial court did not err in dismissing it. We agree. To nonsuit a cause of action, a party can file either a written motion to dismiss (sometimes called a notice of nonsuit) or make an oral announcement of the nonsuit in open court. Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982) (orig. proceeding). Here, at a hearing held on April 5, 2004, RFS s attorney stated, Plaintiffs are going to drop their DTPA claim and any other claims that they pled other than false imprisonment, malicious prosecution, and this contract claim for reimbursement of these expenses, to which Gonzalez counsel responded, That is correct, Your Honor. Thus, Bertuca and Gonzalez made an oral announcement in open court that they wished to nonsuit their abuse of process claim. The trial court dismissed that claim in its order granting summary judgment by stating the following: This is a final judgment disposing of all claims and all parties in this case. Because Bertuca and Gonzalez made an oral announcement in open court that they wished to nonsuit their abuse of process claim, the trial court did not err in dismissing it. Conclusion Because Bertuca and Gonzalez s issues lack merit, we affirm the judgment of the trial court. Karen Angelini, Justice

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