Gonzalez v. Grimm

479 S.W.3d 929

Gary Gonzalez, Appellant,

v.Ione Grimm, Appellee.

No. 08–13–00326–CV

Court of Appeals of Texas, El Paso.

July 8, 2015

Mark Berry, El Paso, TX, for Appellant.

Edward W. Dunbar, Albert Armendariz Jr., Law Offices of Dunbar, Armendariz, Hegeman & Holguin, P.L.L.C., El Paso, TX, for Appellee.

Before McClure, C.J., Rodriguez, J., and Perez, Judge

OPINION

ANN CRAWFORD McCLURE, Chief Justice

This is an appeal from a directed verdict. Gary Gonzalez sued Ione Grimm for malicious prosecution. At the time of events in question, Grimm was a middle school principal and Gonzalez was the father of two students at the school. The malicious prosecution claim arose out of Gonzalez' arrest on a charge of criminal harassment, which was later dismissed at the request of the State's prosecutor. After the charge was dismissed, Gonzalez sued Grimm who initially prevailed on a motion for summary judgment, premised on an affirmative defense under the Education Code. That summary judgment was reversed on appeal. Gonzalez v. Grimm, 353 S.W.3d 270 (Tex.App.–El Paso 2011, no pet.). Following remand, the case proceeded to trial and at the conclusion of Gonzalez' case in chief, the trial court granted a directed verdict, the propriety of which is the only issue before us.

Standard of Review

A directed verdict is properly granted when there is "no evidence" to support a material issue in the case. Prudential Insurance Company of America v. Financial Review Services, Inc., 29 S.W.3d 74, 77 (Tex.2000). A trial record contains "no evidence" when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by the rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005).

In reviewing a directed verdict, we examine the evidence in the light most favorable to the person suffering the adverse judgment. S.V. v. R.V., 933 S.W.2d 1, 8 (Tex.1996). But evidence cannot be taken out of context in a way that makes it seem to support a material issue when in fact it never did. City of Keller, 168 S.W.3d at 812. Nor do we consider the evidence "in isolated bits and pieces divorced from its surroundings; it must be viewed in its proper context with other evidence." AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex.2008). Evidence is legally sufficient if it rises to a level that would enable a reasonable and fair-minded jury to make the finding. City of Keller, 168 S.W.3d at 810. Evidence that is "so weak as to do no more than create a mere surmise or suspicion" of a fact is not legally sufficient. Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 793 (Tex.2006), quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). With these standards in mind, we turn to the facts presented prior to the directed verdict.

Factual Summary

Gonzalez' case was presented through four witnesses: Ione Grimm; Victor Araiza (the school district's police chief); Gonzalez; and his wife. The admitted exhibits included the court's file from the underlying criminal case, and the investigation file from the police. We recite only those matters from the testimony and exhibits that bear on the issues before us and the background necessary to put them in context.

Ione Grimm started with the El Paso Independent School District (EPISD) as a principal at Wiggs Middle School in 2000. Following a run-in with an EPISD board member's wife, she was transferred to an administrative position for several years. By 2004, she was assigned to Magoffin Middle School as its principal.

Her tenure at Magoffin Middle School was not without some conflict. Five sets of parents had issues with her and Grimm believed that Gonzalez led the group. By January 2006, this group of parents had filed a complaint against Grimm with the EPISD. Part of the dispute related to the PTA chapter at the school. Gonzalez also complained about an incident with his daughter. The EPISD Board ruled in Grimm's favor in February 2006.

The genesis of this lawsuit is a telephone call that occurred on March 8, 2006. Grimm contends that Gonzalez called the school and left a message for her that morning, and that the two talked later that day. Gonzalez claims he never left a message for Grimm, and that he called the school to talk to his daughter's teacher, but instead the call was routed into Grimm's office. Gonzalez and Grimm sharply dispute what was said in the conversation.

Grimm maintains the phone call started with Gonzalez requesting that the school hold his daughter back a year. Grimm did not think that was a good idea, as the daughter was passing all her classes. Gonzalez was upset with this decision and then told Grimm she was going to be "real unhappy" because he had something that belonged to her and that he had gotten it from the EPISD. He explained that he had her Social Security number and then asked her "how it made me feel" and "do you know what I could do with this?" Grimm interpreted this as a threat. Gonzalez then supposedly explained that another parent had gotten Grimm's un-redacted personnel file from the EPISD through an open records request and that person had given him a copy. Gonzalez then solicited Grimm's participation in a suit against the EPISD where they both could make money. At that point, she claims to have hung up on him.

Conversely, Gonzalez denied ever talking to Grimm about holding his daughter back, as that is a decision made by a specific committee at the school. Instead, Grimm wanted to talk about his complaint to the District about her. While he agreed there was a discussion about his possession of her personnel file and Social Security number, he mentioned it only so she could pursue an action against the school district. He denied any intent to participate in such a lawsuit himself. He also denied making any threats to harm to Grimm through use of her Social Security number, including the statement "do you know what I could do with this?"

Following the phone call, Grimm consulted her husband, her personal attorney, and an EPISD Associate Superintendent, all of whom recommended that she file a report with the police. She then reported the matter to the EPISD campus police¹ who took her statement on March 14, 2006. She signed and initialed the written statement which repeated the substance of her version of the March 8 phone conversation set out above. Grimm also sent a letter to the EPISD superintendent regarding the phone call and requested that the EPISD look into the possible release of her un- redacted personnel file. On March 28, 2006 she completed a second statement for the EPISD police department. It repeated the substance of her version of the conversation and then concluded by stating: "I am afraid of Gary Gonzalez and I do believe that he will use any method within his power to cause me harm. I do want to prosecute Gary Gonzalez for being in possession of my identifying numbers and threatening me with using those numbers." Several EPISD officers participated in the investigation, the last being Officer Lionel Calanche. He had passed away by the time of trial. Only Victor Araiza, Chief of EPISD Police, testified at trial about the handling of the investigation. Generally, when an allegation is brought to his department, it is investigated and if the complaining witness desires prosecution, the department proceeds further. In some instances, the department might pursue prosecution even if the complaining witness wanted to drop the matter. After the investigation was completed, the investigating officers, and their supervisor, would discuss the matter and determine what charges might be appropriate and how to pursue them. In some cases, the officers might decide to immediately take a probable cause affidavit to a judge to secure an arrest. In other cases, they may refer the matter to the district attorney's office through a "non-arrest" complaint. The district attorney would then decide whether and how to proceed further.

In this particular case, based on the March 28, 2006 written statement from Grimm, the EPISD police believed that Gonzalez may have violated TEX. PEN. CODE ANN. § 32.51 (West Supp.2014) which is entitled "Fraudulent Use or Possession of Identifying Information."² That charge was presented to the district attorney's office which declined to prosecute the matter. The district attorney instead asked that the EPISD police investigate the case under a possible charge of criminal harassment. TEX. PEN. CODE ANN. § 42.07.³ Based on this direction, Officer Calanche resumed the investigation.

At the same time the EPISD police department was handling its initial investigation, Grimm was encountering more problems at work. On March 24, 2006 the new EPISD superintendent had posted an agenda item to reassign Grimm to a different school.⁴ The next day he told her it was a mistake and that he wanted more time to investigate the unauthorized release of her personal information. On May 1, 2006, she was informed that the district wanted to put her on a "growth plan" which is apparently a euphemism for a poor performance report in the EPISD system. In June 2006, the EPISD Board demoted her to an assistant principal position at Hornedo Middle School. Grimm soon thereafter filed a federal lawsuit against the EPISD claiming the demotion and growth plan constituted retaliation for her complaint about the unauthorized release of her personal information to Gonzalez. Gonzalez countered in this trial that Grimm's true motive in making the allegations against him was to set up a retaliation claim to protect her position at Magoffin Middle School.

On February 2, 2007, Grimm was contacted by Officer Calanche of the EPISD police department. Calanche explained that the district was examining "cold cases" and he was following...