X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:A debtor violates the Texas Penal Code if he removes, conceals or sells secured property with intent to appropriate it. In this case, a jury found that Sam Martin owed $50,000 to First Valley Bank of Los Fresnos, and he admits he sold a substantial part of the collateral and kept the money for himself. Yet Martin claims the bank maliciously prosecuted him by complaining to the authorities, who indicted him but later dismissed the charges. A Cameron County judge and jury agreed, awarding Martin more than $18 million. The court of appeals affirmed, but reduced the damages award to $4.33 million. HOLDING:Reversed and remanded. Martin’s admissions establish all the objective elements of the crime. When the objective elements of a crime reasonably appear to have been completed, a private citizen has no duty to inquire whether the suspect has some alibi or explanation before filing charges. Accordingly, as a matter of law Martin cannot establish the absence of probable cause, as he must do to prove malicious prosecution. The court of appeals found to the contrary for three reasons. First, the court of appeals found the evidence of malicious prosecution legally sufficient because the bank reported it could not find any of Martin’s cattle, when in fact it had found and sold 20. But this statement was immaterial to the indictment that ultimately issued � Martin was indicted for the cattle he sold, not for cattle the bank found and sold. Second, the court of appeals found the bank could be liable for failing to disclose material facts, even if it made no false statements. As Martin admitted the objective elements of the crime, he could not prove the bank lacked probable cause by pointing to omissions from its report. Finally, the court of appeals held the bank waived its lien on the 58 cattle Martin sold, because a director of the bank helped move them for the sale. While recognizing that a director is usually not an agent of a corporation, the court of appeals nevertheless held the director had apparent authority because of the Bank’s ostensible acquiescence to the director’s involvement with Martin’s loan. “This is wrong on several levels. First, apparent authority must be based on the acts of the principal . . . . Second, apparent authority is limited to the scope of responsibility that is apparently authorized. . . . Third, there is no evidence the director ever waived any of the bank’s rights expressly.” Martin claimed there was an oral agreement the loan would be secured by only 75 head of cattle, pointing for support to a notice of the security interest and a pre-loan appraisal. It is elementary that none of these could alter or amend the bank’s security agreement. No pre-loan discussions or appraisal could survive the security agreements the parties actually signed. Nor could the notice to third parties amend the loan documents between the first two. As a matter of law Martin pledged all his livestock. Nothing the bank reported or failed to report caused the indictment relating to Martin’s cattle sale. The documents Martin signed required him to pay the loan when it came due and assemble the cattle at the Bank’s request if he did not; he makes no apology for failing to do either. As a matter of law, Martin owes the bank, not the other way around. OPINION:Brister, J.; Phillips, C.J., Hecht, Owen, O’Neill, Jefferson, Smith, and Wainwright, JJ., join. Schneider, J., did not participate in the decision. CONCURRENCE: Wainwright, J., filed a concurring opinion. “Under a common sense application of Rule 274, First Valley preserved its complaint that the trial court’s instruction on procurement misstated the law. I would overrule Hernandez [Hernandez v. Montgomery Ward, 652 S.W.2d 923, 925 (Tex. 1983)] to the extent that any vestige of its statement that”[a] request for another charge is not a substitute for an objection’ still casts a shadow over this issue.”

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.