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Click here for the full text of this decision FACTS:Providian National Bank sued George Ebarb and Kerri Ebarb in April 1999 to recover amounts allegedly owed on a credit card. A month after the suit was filed, the Ebarbs were divorced. The bank nonsuited the defendants, but in 2001 filed suit against them on the same debt. Providian obtained a default judgment against Kerri Ebarb. She did not appeal. George Ebarb counterclaimed against the bank for malicious prosecution. After a bench trial, the court awarded $24,000 in damages to George Ebarb and denied the bank’s claim against George on the debt. The bank appeals. HOLDING:Affirmed in part; reversed and rendered in part. The bank argues the evidence was legally insufficient to support Ebarb’s malicious prosecution claim. In a suit alleging the malicious prosecution of a civil claim, the plaintiff must establish special damages. The Texas Supreme Court has held there “must be some physical interference with a party’s person or property in the form of an arrest, attachment, injunction, or sequestration” to satisfy this element of the claim. Texas Beef Cattle Co. v. Green, 921 S.W.2d 203 (Tex. 1996). The reference to a report to credit agencies does not describe any interference with Ebarb’s person or property that falls within the strict definition of “special damages.” Furthermore, no evidence was presented of any harm George Ebarb may have suffered. The bank’s challenge to the legal sufficiency of the evidence is sustained. The court reverses the judgment rendered in favor of George Ebarb on the malicious prosecution claim and renders judgment that he take nothing. The bank challenges the legal sufficiency of the evidence to support the trial court’s adverse finding on the bank’s claim. The bank did not present evidence that George Ebarb signed any document making him personally liable on the account. The bank relied on evidence that George was “listed secondary” by the bank on the account, and both spouses’ names were on the credit card and the monthly statement issued by the bank. There is also evidence George Ebarb became aware of the debt and made some payments on it. Providian argues George Ebarb’s subsequent awareness of the debt and payment of some of the monthly bills establish his liability, although there is no contract or other evidence setting out the agreement and responsibilities of the parties, no evidence Kerri was acting as George’s agent, and no evidence George agreed to be responsible for the debt. The bank argues the evidence nevertheless establishes George’s ratification of the debt. The trial judge reasonably may have concluded George’s subsequent awareness of the credit card account and payment of some of the monthly bills did not establish his approval, full knowledge or intent to assume personal liability for the debt Kerri had incurred. “Based on the sparse record before us, we cannot conclude the bank established ratification or its entitlement to that judgment as a matter of law.” The bank argues the trial court erred in applying Texas Family Code �3.201. Section 3.201 governs a person’s liability for the acts of his or her spouse. In applying �3.201, the trial court concluded that, under the circumstances, George was not liable for Kerri’s acts in incurring the debt with the bank. The bank relies on Cockerham v. Cockerham, 527 S.W.2d 162 (Tex. 1975), and argues there is a presumption that debts incurred during marriage are “community debts” unless the creditor agreed to look solely to the contracting spouse’s separate estate for satisfaction of the debt. However, that argument does not answer the question of whether a spouse is personally liable under �3.201 on a particular debt. Subsequent to the holding in Cockerham, the Legislature amended the Family Code by adding former �4.031, now �3.201. The trial court properly looked to the provisions of that statute to determine whether George Ebarb was liable for the debt incurred by Kerri. The bank argues, regardless of �3.201, community property is reachable by creditors under �3.202. The two sections of the Family Code relate to two distinct liability concepts. Section 3.201 governs a spouse’s personal liability for the acts of his or her spouse, and �3.202 sets out rules of marital property liability. The court disagrees that �3.202 controls the claim here regardless of �3.201. This is a suit in which the bank sought to hold George Ebarb personally liable on the debt. The bank was not attempting to take community property to satisfy the judgment against Kerri. The trial court found the bank failed to establish George Ebarb is personally liable for the debt, either through Kerri’s acts or through his own acts. The court sees no error in the trial court’s application of �3.201 based on the pleadings and evidence presented in this case. OPINION:Gaultney, J.; McKeithen, CJ, Gaultney and Kreger, JJ.

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