Opinion
NO. 09-19-00136-CV
11-12-2020
KEVIN REED AND ELIZABETH CRAWFORD, Appellants v. KATHY L. CLEVELAND INDIVIDUALLY AND D/B/A KELLER WILLIAMS REALTY-BEAUMONT, ET AL, Appellees
On Appeal from the 172nd District Court Jefferson County, Texas
Trial Cause No. E-197,044-A
MEMORANDUM OPINION
Kevin Reed and Elizabeth Crawford appeal the trial court's grant of a partial summary judgment in favor of Kathy L. Cleveland, Excelsior Real Estate and Property Management Company, LLC and Keller Williams dismissing Reed's and Crawford's claim for malicious prosecution. Appellants raise two issues asking: (1) whether the trial court erred by relying on inadmissible summary judgment evidence to find there was probable cause and causation for the underlying criminal charges; and (2) whether the trial court erred in granting the motion for partial summary judgment in favor of Appellees. We affirm.
Reed also sued for breach of contract, but after granting the partial summary judgment, the trial court severed the malicious prosecution claim.
I. Background
Reed previously worked as a realtor for Keller Williams in Beaumont, and Crawford had been employed as the Keller Williams Market Center Administrator (MCA). The parties described the MCA as a "chief financial officer," and part of Crawford's job duties included bookkeeping, accounting, and accepting payments from realtors for the broker. Cleveland was the broker and the Keller Williams franchise owner. Per the terms of Reed's contract as a realtor with Keller Williams, he was to pay monthly rent and expenses for use of the office. In 2012, Reed fell behind and missed several monthly rental payments.
Crawford could not recall the exact date but testified that beginning in 2013, Cleveland wanted to know from her how much money each realtor was paying and how much of that amount was for rent. In May 2013, allegedly unbeknownst to Reed, Crawford entered a credit in his account for $2,836.60. Crawford explained that by doing so, the records would show his balance due, less the rent. In her sworn deposition, Crawford admitted to entering the credit and agreed that it was unusual. Crawford also described how the books "transmitted" at the end of the month, at which point she could no longer edit that particular month. She testified that when she ran a report in the beginning of June, she noticed the error, and in an attempt to correct the error, she debited the amount to "back out" the credited entry. Crawford explained it had to be done in June since the May books were already closed. She explained the credit was a mistake, and she was not trying to deceive anyone by allowing Reed to not pay several monthly invoices for 2012.
Crawford testified that Cleveland wanted to know each month which realtors had not paid their expenses and rent, but the reports were not historical. When Crawford ran the reports, it only showed who had not paid that particular month, so Cleveland was unaware that Reed had an unpaid balance for rent due from 2012, even though he was current for 2013. Crawford explained during her deposition that she did not bring this to Cleveland's attention because she was trying to help Reed out. Crawford testified that Cleveland knew of Reed's financial difficulties and had assisted him in the past, even paying his realtor dues.
Crawford's sworn statement to police admitted an "error in judgment," and she explained in her deposition the error in judgment was "[t]hat I didn't let Kathy know every month that he owed this money." Crawford also testified that she left Reed's name off the report believing he would pay the money; she knew Reed and Cleveland "didn't get along very well[,]" and she "figured that Kathy would blow a gasket because [she] and Kevin had had multiple rounds of issues." Crawford testified that she did not feel as if keeping the information from Cleveland was the right thing. Crawford admittedly felt bad about this but said she was trying to help Reed. Both Reed and Crawford testified that Reed never asked Crawford to post this credit or hide the 2012 amounts he owed from Cleveland. Reed also testified that once he made a payment, he had no idea how it was applied.
Cleveland terminated Crawford on or about June 17, 2013, and would not allow Crawford to retrieve her personal belongings. Crawford testified that because Cleveland would not allow her to do so, she refused to give Cleveland the passcodes for the bookkeeping system. According to Crawford, within a few days and upon demand from Cleveland's attorney, Crawford provided the codes.
The record is unclear regarding the precise reason for the termination.
After terminating Crawford, Cleveland called her friend and prior MCA, Tami Peacock, to help with the books. Peacock discovered "irregularities" in the entries for Reed's account. She observed a credit for $2,836.60, which he had not paid, and Peacock claimed that she had to correct the entry. Peacock testified that she was the only one who attempted to "correct" this credit; she could not find any other entry where anyone else attempted to "back out" this credit. Peacock also testified that Cleveland was unaware of this credit until she advised Cleveland of it.
This contradicted Crawford's deposition testimony that Crawford attempted to "back out" the entry when she realized the error.
During this time, Reed had several properties in closing from which he would be paid commissions totaling approximately $9,640. Additionally, the day before Cleveland terminated their agreement, he had "capped out" the money he had to pay Keller Williams when his properties closed, so for the remainder of the year, he would receive all the money from his closings. Reed did not dispute that he owed Cleveland past due rent for 2012. In the days leading up to these events, he paid an extra $1,000 on his balance. He testified that even if they had taken the money owed for rent out of his pending commissions, Keller Williams and Cleveland would still owe him money from these commissions. Reed testified he knew he owed the rent and attempted to pay it, but instead of resolving it with him, Cleveland went to the police.
The contract between Reed and Keller Williams contained the phrase "a late fee of $25" but did not specify that it was a daily fee. Rather, the Keller Williams policy and procedures manual showed that it was a daily fee. Crawford explained that the daily late fee policy was changed in early 2013, and prior to that, it was not enforced. Reed also testified that he disagreed with the late fee amount, because for the 2012 period that he owed rent, there was not a daily late fee policy.
In early July 2013, Cleveland and Peacock went to the Beaumont Police Department with allegations that Reed and Crawford conspired to hide how much money Reed owed. They conveyed their belief that Reed and Crawford had committed theft and told police that on top of the rent, Reed owed late fees that totaled over $50,000.
In the months before this occurred, Cleveland and Crawford's relationship soured. Cleveland's primary complaint was that Crawford overstepped her bounds as MCA and tried to work with realtors on payment arrangements. Crawford admitted Cleveland reprimanded her and even threatened to dock her pay over these complaints. Cleveland and Reed also experienced difficulties in their working relationship in the months leading up to the termination of his contract. After Cleveland terminated Crawford's employment and Reed's contract, one co-worker averred in an affidavit that Cleveland told her Reed and Crawford stole from the company and another averred Cleveland told her Reed and Crawford were having an affair. These same witnesses stated in their affidavits that Cleveland kept two sets of books, improperly spent money from their advertising accounts and E&O accounts on her personal expenses, and transferred money back and forth between Keller Williams's accounts and her husband's business.
After Cleveland reported Crawford and Reed to the police for theft and provided affidavits, Detective Kokenes completed a probable cause affidavit, and a grand jury subsequently indicted them for felony theft in an amount greater than $1500 but less than $20,000. The State ultimately dropped the charges citing a lack of evidence of criminal intent. An affidavit from an Assistant District Attorney specified that the "cases against Kevin Reed and Elizabeth Crawford were not dismissed because of a lack of probable cause . . . [or] based upon any untrue or incomplete facts provided . . . by Kathy Cleveland or any other witness." The record further showed that the District Attorney's office felt it should not have accepted the case and "[b]asically, this is a civil dispute." Reed and Crawford then sued Cleveland.
II. Procedural History
A. Partial Summary Judgment Motion and Evidence
Appellees filed a combined traditional and no-evidence partial summary judgment motion addressing the malicious prosecution claim. In that motion, they asserted there was no evidence of certain requisite elements of Reed and Crawford's malicious prosecution claim. Specifically, they argued there was no evidence Appellees (1) acted with malice, (2) that Cleveland lacked probable cause, or (3) provided false information that caused a criminal prosecution. Appellees further contended Reed and Crawford's claims should be dismissed as a matter of law because (1) the evidence conclusively established Cleveland had probable cause when she went to police, (2) Reed and Crawford are unable to establish that Appellees provided false information that caused a criminal prosecution to the police, and (3) that the claims for exemplary damages should be dismissed, because the evidence established that Cleveland had a reasonable basis to go to the police.
The Appellees' summary judgment evidence included: counsel's affidavit authenticating evidence; Elizabeth Crawford's Affidavit dated July 11, 2013; District Attorney's Log Sheet and Notes; excerpts from the deposition of Tami Peacock dated September 28, 2016; excerpts from Elizabeth Crawford's deposition dated September 28, 2015; excerpts from Kevin Reed's deposition dated September 28, 2015; Card Transactions for Kevin Reed; Sales Journal Entry SJ000260; Keller Williams Realty Invoice No. 00001924; B. Kokenes's Probable Cause Affidavit regarding Kevin Reed; B. Kokenes's Probable Cause Affidavit regarding Elizabeth Crawford; Indictment of Elizabeth Crawford; Indictment of Kevin Reed; Kathy Cleveland's Affidavit dated July 9, 2013; Tami Peacock's Affidavit dated July 8, 2013; Plaintiffs' Third Amended Original Petition; Keller Williams Realty Invoice No. 00001841; and Assistant District Attorney Pat Knauth's Affidavit.
B. Response to Summary Judgment Motion
Appellants responded to the summary judgment motion, arguing that there was sufficient evidence to raise fact issues on whether the defendants lacked probable cause to bring criminal charges and whether the information the defendants provided to the police was false and failed to fully and fairly disclose all material information. They also countered that the evidence showed that they were innocent in that they lacked criminal intent and that the defendants acted with malice in bringing the charges. Finally, Appellants contended in their summary judgment response that the "evidence brings to light issues of credibility with Defendant Ms. Cleveland and her sole witness, Ms. Peacock." The Appellants' summary judgment response incorporated the following evidence: B. Kokenes's Probable Cause affidavits; Reed and Crawford Indictments; Motions to Dismiss the charges against Reed and Crawford; Cleveland's Affidavit; Peacock's Affidavit; Emails between Cleveland and Reed; 12/18/13 letter from Crawford's criminal attorney to DA's office; Defendants' Discovery Responses; Prosecutors' "Log Sheet"; Keller Williams's Invoices dated January 2011 through November 2011; "Team Meeting Minutes, May 15, 2013"; Crawford's police affidavit; Keller Williams Lease Agreements, 2012-2013 & 2011-2012; "Policies & Guidelines, Rev. 4/1/13"; Elizabeth Crawford Affidavit with Invoice #1432 and MCA Job Description; Peacock deposition transcript; Cleveland deposition transcript; email between Crawford and Cones; Texas Real Estate Commission Letter; Kevin Reed Affidavit, with attached Closings and Communications with Cleveland; Crawford deposition transcript; Reed deposition transcript; Dana Johnson Williams Affidavit with attached financial documents; Tracy Brugette Affidavit; and Amy Chance Affidavit.
Following a hearing, the trial court granted the summary judgment motion without specifying the basis in its order.
While its order does not specify a basis, the trial court explained during the hearing that he agreed with movant's "but for" analysis regarding a lack of evidence to support the causation element.
C. Objections to Summary Judgment Evidence
On appeal, Appellants complain that some of Appellees' summary judgment evidence contained inadmissible hearsay and therefore, was legally insufficient to support the summary judgment. They specifically point to the affidavits of Cleveland, Kokenes and Peacock, and they further object to unauthenticated financial documents showing Crawford's credit and Peacock's correction of that credit. Despite their objections on appeal, Appellants themselves relied on these same affidavits as evidence in their summary judgment response filed in the trial court. Appellants did not object to any summary judgment evidence in the trial court.
III. Standard of Review
We review a trial court's decision to grant summary judgment de novo. See Shell Oil Co. v. Writt, 464 S.W.3d 650, 654 (Tex. 2015) (citation omitted). We view the evidence in the light most favorable to the nonmovant. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)). In doing so, we indulge every reasonable inference and resolve any doubts against the motion. See City of Keller, 168 S.W.3d at 824. "Undisputed evidence may be conclusive of the absence of a material fact issue, but only if reasonable people could not differ in their conclusions as to that evidence." Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012) (citation omitted).
When a no-evidence motion has been filed, it "is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003) (citations omitted).
A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citation omitted).
A party moving for traditional summary judgment has the burden of establishing there is no genuine issue of material fact as to at least one requisite element of the asserted cause of action and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017) (citations omitted). When the trial court fails to specify the grounds on which it granted summary judgment, we must affirm if any of the summary judgment grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000) (citation omitted).
If a defendant files a combined traditional and no-evidence summary judgment motion, we first review the judgment under the no-evidence standards of Rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600-01 (Tex. 2004); Werth v. Johnson, 294 S.W.3d 908, 909 (Tex. App.—Beaumont 2009, no pet.). When the underlying facts are undisputed, the analysis becomes a question of law for the judge; however, if the facts are disputed, it is a question for the trier of fact. See Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 518 (Tex. 1997).
IV. Analysis
A. Objections to Summary Judgment Evidence
We turn to Appellants' complaints regarding the summary judgment evidence, which they raise for the first time on appeal. Appellees argue that Appellants waived most of these objections by failing to preserve them in the trial court, and for others, failed to show how they were harmed. Objections to the form of an affidavit must be preserved by raising and obtaining a ruling on the objection in the trial court. See Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Here, Appellants complain that Peacock, Cleveland, and Detective Kokenes's affidavits contain inadmissible hearsay. However, objections that affidavits contain opinion or hearsay is an objection to the form of the affidavit. Id. Appellants more specifically assert that Peacock and Crawford's affidavits failed to include financial records referenced in the affidavits. We have previously concluded that failure to attach records to an affidavit in support of summary judgment is a defect of form, not substance. See Sunsinger v. Perez, 16 S.W.3d 496, 500-501 (Tex. App.—Beaumont 2000, pet. denied). Therefore, Appellants were required to object and obtain rulings on those objections in the trial court to properly preserve this issue for appeal. See id.; see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993). Having failed to do so, we determine they have not preserved these complaints for our review. See Sunsinger, 16 S.W.3d at 496; McConnell, 858 S.W.2d at 343 n.7; see also Tex. R. Civ. P. 166a(f) ("Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.").
With respect to Appellants attaching the same affidavits as evidence to their summary judgment response that they now object to, we note that "[a] party on appeal should not be heard to complain of the admission of improper evidence offered by the other side, when he himself, introduced the same evidence[.]" McInnes v. Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 188 (Tex. 1984).
Appellants also complain certain financial documents attached as summary judgment evidence were unauthenticated. Even if we concluded this rose to the level of a substantive defect and could be raised for the first time on appeal, Appellants have failed to show how they were harmed by this evidence, which was found and unobjected to elsewhere in the summary judgment record. Appellants complain that the financial documents were used to show Crawford improperly posted a credit then applied it to past due invoices. Crawford's affidavit addressed the fact that she allowed Reed to not pay monthly invoices for several months in 2012, which she admitted to being "a mistake." In her deposition, Crawford testified that she improperly posted a credit to his account in May of 2013 and that Reed had past due invoices from 2012. Peacock's deposition testimony also provided evidence of Crawford posting this credit and then applying the credit to Reed's past due invoices.
Because unobjected to evidence establishing these same facts appeared elsewhere in the record and were cumulative of the deposition testimony, any error in admitting them was harmless. See Wawarosky v. Fast Group Hous. Inc., No. 01-13-00466-CV, 2015 WL 730819, at *5 (Tex. App.—Houston [1st Dist.] Feb.17, 2015, no pet.) (mem. op.) (noting any error in admitting challenged documents was harmless because they were cumulative of deposition testimony). To obtain a reversal based on erroneously admitted evidence, an appellant must not only show the ruling was erroneous, but that it was calculated to cause, and likely did cause the rendition of an improper verdict. See Tex. R. App. P. 44.1(a)(1); Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 366 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Appellants have failed to do so, and accordingly, we overrule their first issue.
B. Malicious Prosecution
For a malicious criminal prosecution claim, a plaintiff must establish:
(1) the commencement of a criminal prosecution against the plaintiff; (2) causation (initiation or procurement) of the action by the defendant; (3) termination of the prosecution in the plaintiff's favor; (4) the plaintiff's innocence; (5) the absence of probable cause for the proceedings; (6) malice in filing the charge; and (7) damage to the plaintiff.Richey, 952 S.W.2d at 517 (citations omitted). Malicious prosecution cases involve a "delicate balance between protecting against wrongful prosecution and encouraging reporting of criminal conduct." Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 291 (Tex. 1994). There is an initial presumption that a defendant acted reasonably and in good faith and had probable cause to initiate the criminal proceedings. Richey, 952 S.W.2d at 517 (citation omitted). A subsequent probable-cause determination by law enforcement or judge is irrelevant to whether the defendant reasonably believed plaintiffs had stolen when the defendant reported the alleged theft. See French v. French, 385 S.W.3d 61, 67 (Tex. App.—Waco 2012, pet. denied).
A person may be liable for malicious prosecution not only when he knowingly gives prosecutors false information, but also when his conduct is the determining factor in the decision to prosecute. See Lieck, 881 S.W.2d at 293. The Texas Supreme Court has explained that
"[a] person procures a criminal prosecution if his actions were enough to cause the prosecution, and but for his actions the prosecution would not have occurred. A person does not procure a criminal prosecution when the decision whether to prosecute is left to the discretion of another, including a law enforcement official or the grand jury, unless the person provides information which he knows is false. A criminal prosecution may be procured by more than one person."Id. (quoting Restatement (Second) of Torts § 653 cmt.g (1977)); see also King v. Graham, 126 S.W.3d 75, 78 (Tex. 2003). In other words, a plaintiff in a malicious prosecution lawsuit must prove not only that the defendant provided false information, but also that this false information caused the plaintiff to be prosecuted. See In re Bexar Cty. Crim. Dist. Atty's Office, 224 S.W.3d 182, 185 (Tex. 2007) (citing King, 126 S.W.3d at 78). While King addressed what evidence may be used to establish this, it did not require plaintiffs to provide direct evidence of causation. See id. at 186. King mentioned a DA's testimony as merely one way to prove causation. See id. at 190.
The Texas Supreme Court has rejected the notion that causation can be inferred from the falsity of statements. See King, 126 S.W.3d at 79. In rejecting this contention, the Court acknowledged such an inference may be drawn if the only information the official relied on in deciding to prosecute was false. Id. Appellants cite Gunville v. Gonzales for the proposition that a jury may infer causation when a prosecutor returns an indictment and the only information the prosecutor had was false information. 508 S.W.3d 547, 566 (Tex. App.—El Paso 2016, no pet.). The Appellants fail to note that our sister court explained in the opinion that "[b]ut the failing in the summary judgment proof here is that we do not know what was actually before the federal prosecutor, nor is there anything in the record that establishes or infers that [the defendant's] statement was the only proof of the theft[.]" Id. Such is the case before us.
If the defendant knowingly provided false information to prosecutors, but that information was immaterial to the decision to prosecute, the complainant did not cause the prosecution by supplying that false information. See King, 126 S.W.3d at 78. Said another way, "the plaintiff has the burden of proving that that decision would not have been made but for the false information supplied by the defendant." Id. (emphasis added). Simply aiding or cooperating with law enforcement cannot "cause" a criminal prosecution. Lieck, 881 S.W.2d at 292.
Appellants direct us to multiple pieces of information Cleveland and Peacock provided to police that Appellants assert were false. However, even if the information Appellants point to was false, this was not the only information police had. Crawford prepared her own sworn statement for police wherein she admitted allowing Reed to not pay rent for several months in 2012 without Cleveland's approval and that it was "a mistake." Although Crawford's proffered explanation attempted to counter intent, she acknowledged in her deposition that she made an improper credit to Reed's account and that she kept Reed's old balance a secret from Cleveland. Crawford agreed that some of the information Cleveland and Peacock provided to the police was correct; specifically, Crawford admitted that she refused to give Cleveland the access codes for the accounting records and Reed owed Cleveland money.
Both Reed and Crawford disagreed with the $50,000 plus in late fees that Peacock and Cleveland said Reed owed and testified that information was false; however, the grand jury only indicted them for theft in an amount between $1500 to $20,000. They also acknowledged in their testimony that since that was the case, the amount they were charged with stealing did not include the late fees Cleveland and Peacock said Reed owed, even if that information was false.
The evidence in the form of Kokenes's probable cause affidavit, the information, and subsequent grand jury indictment establish that none of the Appellees initiated the charge. See Gonzalez v. Grimm, 479 S.W.3d 929, 936-37 (Tex. App.—El Paso 2015, no pet.) (noting that the State's prosecutor initiated the charge since it was presented in the form of an Information). Moreover, Appellants concede in their brief Kokenes is the one who initiated the proceedings by presenting the information to the DA's office, who then subsequently presented it to the grand jury. Accordingly, we focus on whether Appellees "procured" the criminal charges.
In the context of a no-evidence motion for summary judgment, we must determine whether Appellants have provided more than a scintilla of evidence that Appellees provided false information that led to the filing of criminal charges. See Lieck, 881 S.W.2d at 293 (discussing the definition of procurement); see also King Ranch, 118 S.W.3d at 751 (explaining that "a no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact"). In a malicious prosecution case, when a nonmovant fails to produce more than a scintilla of evidence that the movant "knowingly provided false information to [law enforcement]," they have "failed to raise a fact issue as to the procurement element." Harton v. First Victoria Nat'l Bank, No. 13-12-00491-CV, 2013 WL 3377936, at *5 (Tex. App.—Corpus Christi July 3, 2013, no pet.) (mem. op.) (analyzing summary judgment evidence in a malicious prosecution claim, reasoning the respondent failed to produce more than a scintilla of evidence that movant "knowingly provided false information").
Assuming Cleveland knowingly provided certain false information to Detective Kokenes, there is no proof in the record that was all the prosecutor relied upon to initiate the criminal charges. There is nothing in the record to substantiate, as argued in Appellants' brief, that any false information Cleveland may have provided was the only information the detective had and what the prosecutor presented to the grand jury.
Likewise, there is no evidence supporting the argument that "but for" the false information provided by Appellees, the decision to prosecute would not have been made. See King, 126 S.W.3d at 76 (noting that there was no evidence that the district attorney would have decided not to prosecute but for the allegedly false information). While this may be proven by a district attorney's testimony, direct evidence of causation is not required. See In re Bexar Cty. Crim. Dist. Atty's Office, 224 S.W.3d at 185-86.
Here, an assistant district attorney provided an affidavit that averred they dropped the charges for an absence of proof as to criminal intent and specifically denied they dismissed the charges due to any false information provided by Cleveland. The averments only addressed the State's decision to cease the criminal prosecution. It did not address the State's decision to prosecute or what factored into that decision. There was no testimony contained in the affidavit, or anywhere else in the record, addressing how the actual decision to prosecute the case was made. See id. Absent such evidence, we cannot determine whether the State based its decision to bring it to the grand jury on any false information provided by Peacock or Cleveland, the accurate information they provided, other sources, or its own independent investigation. The prosecutor could have reasonably decided to proceed based on Crawford's admission that she allowed Reed not to pay without Cleveland's approval and Crawford's entry of the credit, coupled with her refusal to initially provide Cleveland with the accounting system passcodes, even if Cleveland's information was false in various other particulars. See King, 126 S.W.3d at 79 (explaining what a prosecutor could have reasonably decided even if he knew certain information was false).
Ultimately, there is no evidence establishing that any of the alleged false information provided by Peacock or Cleveland played a material role in the State's decision to prosecute. Absent that, on this record, we cannot conclude that "but for" any false information Appellees provided, the State would not have made the decision to prosecute. See King, 126 S.W.3d at 76. Accordingly, we determine there is no evidence that Appellees initiated or procured the prosecution, a requisite element in a malicious prosecution claim. See id.; Richey, 952 S.W.2d at 517. We overrule Appellants' second issue.
V. Conclusion
Since there is no evidence in the record to support the causation element of Appellants' malicious prosecution claim, the trial court properly granted Appellees' no-evidence motion for summary judgment on that ground. Having concluded at least one meritorious no-evidence summary judgment ground exists, we affirm the trial court's judgment.
AFFIRMED.
/s/_________
CHARLES KREGER
Justice Submitted on July 17, 2020
Opinion Delivered November 12, 2020 Before McKeithen, C.J., Kreger, and Johnson, JJ.