PEGGY MIZE AND L. D. MIZE,

APPELLANTS

V.

ROSEMARY T. SWETLAND, PATSY J.

KINCHEN, AND THE GRAND CHAPTER OF

TEXAS ORDER OF THE EASTERN STAR,

APPELLEES

Peggy and Lester D. Mize ("Peggy" and "Lester") appeal in five issues from a summary judgment entered in favor of Rosemary T. Swetland ("Swetland"), Patsy J. Kinchen ("Kinchen"), and the Grand Chapter of Texas Order of the Eastern Star ("Eastern Star") on the Mizes' causes of action for slander, intentional infliction of emotional distress, and malicious prosecution. We affirm.

The summary judgment evidence showed that the Eastern Star is a tax exempt organization operating for the general welfare of society and participating in specified benevolent works. It is organized into local chapters across the State of Texas. In August of 1992, Peggy and Lester were accepted as members of the Rusk Chapter, Order of the Eastern Star ("the Chapter"). Peggy later served as Worthy Matron of the Chapter, and Lester served as Worthy Patron. On May 29, 1996, a meeting was called by Swetland, in her capacity as the Worthy Grand Matron of Eastern Star, the highest state level position in the organization, to reprimand Peggy and Lester in their capacities as Worthy Matron and Worthy Patron of the Chapter. ⁽¹⁾ The following day, Peggy and Lester sent a letter to Swetland, quitting Eastern Star. On July 29, 1996, the Chapter held a trial, formally expelling Peggy and Lester from Eastern Star. ⁽²⁾ The evidence showed that the procedure for Peggy and Lester to have this expulsion reconsidered was to return to the Chapter a pamphlet of Eastern Star initiation rituals and to have a Chapter member stand up in an open meeting stating that they wanted an appeal of the expulsion.

On August 20, 1996, a regular meeting of the Chapter was scheduled for 7:30 p.m. at the Euclid Masonic Lodge ("the lodge") in Rusk. Some time between 7:00 and 7:30 p.m. that evening, Peggy and Lester entered the lodge to deliver papers to Kinchen who was Worthy Matron of the Chapter at that time. Upon confronting Swetland, Lester ordered her out of the room and told Peggy to enter the actual meeting room where the Chapter's meeting was set to begin. Swetland responded to Lester, who was operating a video recorder during the entire incident, that they did not belong at the meeting. Peggy and Lester then left the lodge.

At 7:40 p.m., after the meeting of the Chapter had begun, Lester telephoned the lodge and demanded to speak to Swetland. During this phone call, Lester informed her, "I'm going to stop everything you're doing if you don't talk to me." He later stated, "I'm going to get even with you. That's what I'm going to do. I am going to get the whole bunch." Lester went on to say "You won't forget me. I'm with you lady for your life. You screwed the wrong guy." Afterwards, the Rusk Police Department responded to a disturbance call from the lodge. Swetland and Kinchen filed criminal complaints against Peggy and Lester. Within the week, the Rusk County Attorney filed informations charging both Lester and Peggy with criminal trespass and disrupting a meeting and charging Lester with harassment. The harassment charge was dismissed by the county attorney on August 29, 1996, and the remaining two charges were dismissed by the Cherokee County Court at Law on August 19, 1997, for failure to comply with the Speedy Trial Act.

In December 1997, Peggy and Lester filed suit against Swetland, Kinchen, and the Eastern Star seeking at least three million dollars in damages for slander, intentional infliction of emotional distress, and malicious prosecution. Swetland, Kinchen, and Eastern Star filed a no evidence motion for summary judgment contending that Peggy and Lester had failed to produce any evidence of specified elements of the three torts pled. ⁽³⁾ The trial court granted the motion of all three defendants in its entirety. Peggy and Lester timely perfected this appeal.

Under the no evidence summary judgment rule, a party may move for summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which the non-movant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). The motion must specify the elements for which there is no evidence. Id. The motion must be granted unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Id.

A request for a "no evidence" summary judgment is, in effect, a request for a pretrial-directed verdict. See Moore v. K-Mart Corp., 981 S.W.2d 266, 269 (Tex. App.-San Antonio 1998, pet. denied). We apply the same legal sufficiency standard in reviewing no evidence summary judgments as we apply in reviewing directed verdicts. See id. We review the evidence in the light most favorable to the respondent and disregard all contrary evidence and inferences. Id. If the respondent produces more than a scintilla of probative evidence to raise a genuine issue of material fact, a no evidence summary judgment is improper. Id. If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). 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 of a fact, and the legal effect is that there is no evidence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits and other summary judgment proof. See Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). The only question is whether or not an issue of material fact is presented. Id.

In their issues three, four and five, Peggy and Lester respectively contend that they raised fact issues regarding the elements of the torts slander, intentional infliction of emotional distress, and malicious prosecution.

Slander

In their no evidence motion for summary judgment, Swetland, Kinchen and Eastern Star argued that Peggy and Lester had failed to produce of any element of their cause of action for slander. In their third issue, Peggy and Lester specifically contend that they were slandered by Swetland and Kinchen when they filed criminal charges against them. Slander is a defamatory statement that is orally communicated or published to a third person without legal excuse. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). A plaintiff in a slander or defamation action must offer clear and convincing affirmative proof of what was communicated to avoid summary judgment. See Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). Swetland and Kinchen contend that there was nothing in the summary judgment record which indicates specifically what they communicated to the Rusk policeman on the night of the incident or to the Rusk County Attorney later. The affidavits which they signed are not part of the record before us. Further, the information formally charging Peggy and Lester with the offenses of criminal trespass, disrupting a meeting or procession, and harassment are not in the record before us. We must have more than just a claim that the criminal charges made by Swetland and Kinchen were false in order to establish the cause of action for slander. Because Peggy and Lester have failed to offer clear and convincing affirmative proof of slander, the trial court correctly granted a no evidence summary judgment on this cause of action.

Intentional Infliction of Emotional Distress

In their no evidence motion for summary judgment, Swetland, Kinchen and Eastern Star contended that Peggy and Lester had failed to produce evidence of any element of intentional infliction of emotional distress. In their fourth issue, Peggy and Lester contend that the trial court erred in determining there was no evidence of intentional infliction of emotional distress which created a fact issue for a jury to determine. The elements of intentional infliction of emotional distress are: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress that the plaintiff suffered was severe. City of Midland v. O'Bryant, 18 S.W.3d 209, 216 (Tex. 2000). Courts must determine as a threshold matter whether the defendant's conduct may reasonably be regarded as so extreme and outrageous to permit recovery. Id. at 216-17. To be extreme and outrageous, conduct must be so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Id. at 217.

Peggy and Lester contend that, under the facts before us, Swetland and Kinchen's conduct following the incidents of August 20, 1996, satisfied the second element of the tort of intentional infliction of emotional distress. Swetland and Kinchen contacted law enforcement officials after the face-to-face confrontation at the lodge with Peggy and Lester and the ensuing, threatening phone call. To react to threatening and aggressive behavior from others by contacting law enforcement officials is not extreme and outrageous conduct. The summary judgment evidence showed that Swetland had been "frightened" as a result of the incidents which had been initiated by Peggy and Lester. There was, therefore, no evidence of the second element of intentional infliction of emotional distress. Accordingly, the trial court properly granted the no evidence motion for summary judgment on this cause of action. As a result, we will not reach the summary judgment evidence Peggy and Lester offered regarding the remaining elements of this tort.

Malicious Prosecution

In their fifth issue, Peggy and Lester contend that Swetland and Kinchen maliciously prosecuted them. A plaintiff in a malicious prosecution suit 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 v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997).

In their no evidence motion for summary judgment, Swetland, Kinchen and Eastern Star alleged that Peggy and Lester had failed to produce evidence of elements four through seven of a malicious prosecution claim. Actions for malicious prosecution are not favored in law. Forbes v. Lanzl, 9 S.W.3d 895, 898 (Tex. App.-Austin 2000, pet. denied). The probable cause determination asks whether a reasonable person would believe that a crime had been committed given the facts as the complainants honestly and reasonably believe them to be before the criminal proceedings were initiated. Richey, 952 S.W.2d at 517. There is an initial presumption in malicious prosecution actions that the defendant acted reasonably and in good faith and had probable cause to initiate the proceedings. Id. That presumption disappears once a plaintiff produces evidence that the motive, grounds, beliefs and other evidence upon which the defendant acted did not constitute probable cause. Id. at 518. When the facts are not contested, and there is no conflict in the evidence directed to that issue, the question of probable cause is a question of law which is to be decided by the court. Id.

The crucial consideration in the case before us is whether Peggy and Lester produced evidence to overcome the presumption that Swetland and Kinchen had probable cause to file their complaints of criminal trespass, disrupting a meeting or procession, and harassment. See Forbes, 9 S.W.3d at 900. Furthermore, we must separate the analysis of probable cause from an analysis of guilt or innocence in a malicious prosecution cause of action. See id.

A person commits criminal trespass under the penal code if he enters or remains on property of another without effective consent or he enters or remains in a building of another without effective consent, and he: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so. Tex. Pen. Code Ann. § 30.05 (Vernon Supp. 2001). A person commits the offense of disrupting a meeting or procession if he obstructs or interferes with a meeting, procession or gathering by physical action of verbal utterance. See Tex. Pen. Code Ann. § 42.05 (Vernon 1994). A person commits the offense of harassment if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he: (1) initiates communication by telephone and in the course of the communication makes a comment, request, suggestion or proposal that is obscene; or (2) threatens by telephone, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of his family, or his property. See Tex. Pen. Code Ann. § 42.07 (Vernon Supp. 2001).

Although we are required to review the summary judgment evidence in the light most favorable to Peggy and Lester, the issue is whether a reasonable person in Swetland and Kinchen's positions would have believed that these crimes had been committed given the facts as they honestly and reasonably believe them to be before the criminal proceedings were initiated. See Forbes, 9 S.W.3d at 901. Here, Swetland and Kinchen were confronted by Peggy and Lester prior to a called meeting of the Chapter. Lester came into the lodge with a video recorder and acted as if he were taking charge by ordering Swetland around and telling Peggy to go into the room where the actual meeting of the Chapter was about to begin. Following that confrontation, Lester called Swetland on the telephone after the meeting had begun and stated: "I'm going to stop everything you're doing if you don't talk to me." "I'm going to get even with you. That's what I'm going to do." "I'm going to get the whole bunch." "You won't forget me." "I'm with you lady for your life." "You screwed the wrong guy." Swetland and Kinchen knew that Peggy and Lester had respectively been Worthy Matron and Worthy Patron of the Chapter and, therefore, knew the proper procedure for appealing actions taken by the Eastern Star with which they did not agree. Swetland and Kinchen knew that the actions taken by Peggy and Lester were not proper under the procedural rules of the Eastern Star. The aggressive actions of Peggy and Lester in the face-to-face confrontation at the lodge just prior to the beginning of the scheduled meeting of the Eastern Star could be reasonably interpreted as hostile. Then, the phone call from Lester after the meeting had begun could be interpreted by a reasonable person as threatening not only to the safety of Swetland and Kinchen, but to the entire Chapter.

Peggy and Lester respond that they were escorted onto the premises by an unnamed member of the Chapter and that they had entered the lodge with the approval of a member of the Chapter. However, they have not shown that either of these alleged facts were communicated to or known by Swetland or Kinchen during the encounter of August 20 and their subsequent communication with law enforcement officials. Peggy and Lester further allege that the bare fact that Kinchen worked for the Rusk County Attorney at the time of the incidents amounts to evidence that she was maliciously prosecuting them. However, from an objective view of the facts known to her when she communicated with law enforcement officials, Kinchen could have reasonably believed there was probable cause for filing these charges against Peggy and Lester. An individual who works for a law enforcement agency is not precluded by that employment from reporting criminal activity to the appropriate officials when they have probable cause to believe that criminal activity has occurred. We hold that Peggy and Lester have failed to produce any evidence which would overcome the presumption that Swetland and Kinchen had probable cause to file their complaints. Thus, the trial court correctly granted a no evidence summary judgment on Peggy and Lester's cause of action for malicious prosecution.

Issues three, four and five are overruled. Because these issues are dispositive of this appeal, we need not consider Peggy and Lester's remaining issues.

The judgment of the trial court is affirmed.

JIM WORTHEN

Justice

Opinion delivered August 15, 2001.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.