Rivera Marcano v. Normeat-Holding

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1662
JOSE A. RIVERA-MARCANO, ET AL.,
Plaintiffs, Appellants,
v.
NORMEAT ROYAL DANE QUALITY A/S,
(formerly NORMEAT-HOLDING & EXPORT),
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
Hector Cuebas Tanon with whom Vicente & Cuebas was on brief for
appellants.
Ivan R. Fernandez-Vallejo with whom Raymond E. Morales and Brown
Newsom & Cordova were on brief for appellee.
July 13, 1993
CAMPBELL, Senior Circuit Judge. The district court
granted summary judgment for appellee on appellants' claim of
malicious prosecution. Finding no error, we affirm.
I.
I.
Appellant Jose A. Rivera Marcano ("Rivera") is the
sole owner and operator of J.A.R. Enterprises, Inc.
("J.A.R."), a brokerage and distribution firm in Puerto Rico.
Beginning in 1983, J.A.R. served as the exclusive broker in
Puerto Rico of the luncheon meat and other food products
manufactured by appellee Normeat Royal Dane Quality A/S
("Normeat"), a corporation with its principal place of
business in Denmark. Normeat normally shipped merchandise
to J.A.R. on a credit basis. J.A.R. would then transport the
merchandise to customers in Puerto Rico and bill them
directly. After customers paid J.A.R. usually by means of
checks made payable to either Normeat or J.A.R. J.A.R.
would deposit the money in its bank account, keep three
percent of the amount as a sales commission, and remit the
balance to Normeat. Ordinarily, J.A.R. had an account
payable to Normeat with an outstanding balance of hundreds of
thousands of dollars.
Sometime in 1987, Normeat's new management informed
Rivera that it would no longer extend credit for shipments to
J.A.R. and demanded immediate payment of J.A.R.'s outstanding
account balance of approximately $500,000. Rivera protested
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the change, informing Normeat that the new policy
contradicted long-standing practice and created financial
difficulties for J.A.R. Negotiations between the parties
failed to resolve the dispute, and Normeat notified Rivera in
October 1987 that it would cease shipping merchandise to
J.A.R. and would proceed to collect all sums due through
appropriate legal channels.
Two years later, in June 1989, Ken Rasmussen,
deputy managing director of Normeat, gave a sworn statement
to a state prosecutor in the Puerto Rico Department of
Justice regarding Rivera's failure, as owner and operator of
J.A.R., to turn over one or more customer payments allegedly
belonging to Normeat. The record contains neither a copy of
Rasmussen's sworn statement nor anything else showing what
Rasmussen told the prosecutors. The Puerto Rico Department
of Justice conducted an investigation of the accusations,
although the extent of the investigation is not clear from
the record.
In September 1989, a Department of Justice attorney
filed criminal charges against Rivera in the Superior Court
of Puerto Rico, alleging six separate counts of aggravated
unlawful appropriation in violation of Article 166 of the
Puerto Rico Penal Code, 33 L.P.R.A. 42721 and two
1. 33 L.P.R.A. 4272 provides, in relevant part:
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counts of forgery of documents in violation of Article
271, 33 L.P.R.A. 45912 all felonies. The charges
accused Rivera, in essence, of depositing in the J.A.R. bank
account six checks written by customers as payment for
Normeat merchandise and not transferring the payments, minus
Any person committing the offense
described in section 4271 of this title
[Unlawful Appropriation] shall be
punished by imprisonment for a fixed term
of ten (10) years, whenever the following
circumstances exist:
. . .
(b) Unlawfully appropriating the
property of another valued at two hundred
dollars or more; . . . .
33 L.P.R.A. 4271, referred to in section 4272,
provides:
Any person who unlawfully
appropriates, without violence or
intimidation, personal property belonging
to another person, shall be punished by
imprisonment for a term not exceeding six
months, a fine not exceeding five hundred
dollars, the penalty of restitution, or
any combination thereof, in the
discretion of the court.
2. 33 L.P.R.A. 4591 provides in relevant part:
Any person who, with the intent to
defraud another, falsely draws up, in
whole or in part, a document, instrument
or writ through which any right,
obligation or interest is created,
transferred, terminated or otherwise
affected, or who falsely alters,
counterfeits, suppresses or destroys a
genuine one in whole or in part, shall be
punished by imprisonment for a fixed term
of nine (9) years. . . .
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J.A.R.'s sales commission, to Normeat.3 A Superior Court
judge found probable cause to issue an arrest warrant for
Rivera on all eight charges, and referred the case to three
different courts for preliminary hearings because the alleged
crimes took place in three different jurisdictions. Three
magistrates separately considered the charges and found
probable cause to proceed to trial on six of the eight
charges. One aggravated unlawful appropriation count and one
forgery count, both relating to a November 12, 1986 check for
$59,274.12 from a company called Mister Price, were dismissed
for lack of probable cause.4
3. The six counts of aggravated unlawful appropriation were
based on the following transactions:
1) a November 12, 1986 check for $59,274.12 from Mister
Price, Division of Belca Equipment Corporation, payable to
Normeat;
2) a November 22, 1986 check for $60,557.41 from Pueblo
International, Inc. payable to J.A.R.;
3) a December 29, 1986 check for $61,337.16 from Mister
Price payable to Normeat;
4) a February 10, 1987 check for $30,645.15 from Alba
Imports Corporation payable to J.A.R.;
5) a March 24, 1987 check for $58,674.96 from Alba
Imports payable to J.A.R.; and,
6) an April 22, 1987 check for $30,646.67 from Alba
Imports payable to J.A.R.
The two counts of forgery were based on the two checks made
payable to Normeat.
4. In the district court, appellants submitted copies of a
cancelled check purporting to show that J.A.R. did in fact
pay Normeat $57,495.90 for the Mister Price shipment a few
months after receiving the $59,274.12 check from Mister
Price.
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The remaining counts were consolidated for trial at
the San Juan Superior Court. After one day of testimony on
February 21, 1990, the main prosecution witness, Rasmussen,
left Puerto Rico for Denmark and never returned to the
island. The prosecutor moved for dismissal of the criminal
charges, and the court granted dismissal with prejudice on
February 26, 1990. The dismissal is now final and
unappealable.
Rivera, along with his wife and their conjugal
partnership, brought this diversity action against Normeat on
November 26, 1990, in the United States District Court for
the District of Puerto Rico, seeking damages pursuant to
Puerto Rico tort law for the alleged malicious prosecution of
Rivera by Normeat. Normeat moved to dismiss for failure to
state a claim. See Fed. R. Civ. P. 12(b)(6). Because it had
numerous exhibits before it from both parties, the district
court treated Normeat's motion as one for summary judgment
and granted it on April 21, 1992. See Fed. R. Civ. P. 56.
Appellants now appeal from that final judgment.5
II.
II.
We review summary judgment grants de novo, reading
the record in the light most favorable to the nonmoving
party. August v. Offices Unlimited, Inc., 981 F.2d 576, 580
5. The district court had diversity jurisdiction pursuant to
28 U.S.C. 1332(a)(2). This court has jurisdiction pursuant
to 28 U.S.C. 1291.
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(1st Cir. 1992). To demonstrate the existence of a genuine
issue of material fact, plaintiffs must point to concrete,
admissible evidence. Id. Mere allegations, or conjecture
unsupported in the record, are insufficient. Id.Under Puerto Rico law, a plaintiff, such as
appellant, alleging malicious prosecution bears the burden of
proof. Vince v. Posadas de Puerto Rico S.A., 683 F. Supp.
312, 315 (D.P.R. 1988); Par s v. Ruiz, 19 P.R.R. 323, 327
(1913). The four essential elements of the tort are: (1) the
criminal action was initiated and instigated by the
defendant; (2) the criminal action terminated in favor of the
plaintiffs; (3) the defendant initiated the action with
malice and without probable cause; and (4) as a consequence,
the plaintiffs suffered damages. Ocasio v. Rosa, 88 J.T.S.
42 (P.R. 1988); Par s, 19 P.R.R. at 327. The third element
may also be described as two separate elements because
plaintiffs must show both that the defendant acted with
malice and that he acted without probable cause. Vince, 683
F. Supp. at 315 & n.4. Failure to prove any element bars
recovery. Id. at 315-16; Torres v. Marcano, 68 P.R.R. 813,
817 (1948); Par s, 19 P.R.R. at 332.
The district court granted summary judgment for
appellee Normeat on the ground that nothing in the record
supports a finding that Normeat acted without probable cause.
"[P]robable cause for imputing the commission of a crime
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consists in the fact that there are reasonable grounds
therefor, supported by circumstances which are sufficient to
warrant a reasonable belief that the defendant is the author
of the crime." Jim nez v. S nchez, 76 P.R.R. 347, 352
(1954); see Vince, 683 F. Supp. at 316; Par s, 19 P.R.R. at
331. Probable cause does not depend on the actual guilt or
innocence of the accused, but simply on whether the
circumstances are "sufficient to produce in the mind of a
reasonable person the belief that the charge he makes is
true." Par s, 19 P.R.R. at 331.
In respect to five of the six transactions,
appellants pointed to no evidence tending to establish that
Normeat lacked probable cause to accuse Rivera of
misappropriating and forging the alleged checks. The record
indicates that Rivera received those five checks from
customers and deposited them in the J.A.R. bank account, but
nothing shows that he forwarded the paid amounts, minus his
commission, to Normeat. In addition, the record shows that
the Department of Justice attorney, after an investigation,
found probable cause sufficient to file the charges against
Rivera, and a Superior Court judge found probable cause on
all eight charges sufficient to issue an arrest warrant for
Rivera. Three different magistrates, in separate preliminary
hearings, found that evidence on the counts related to these
five transactions was sufficient to send the case to trial.
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Because appellants failed to produce any evidence that
Normeat lacked probable cause to prosecute Rivera based on
those five checks, appellants would not be able to maintain a
claim for malicious prosecution based on those charges.
Appellants instead focus on the two charges
dismissed after a preliminary hearing before a magistrate,
both of which were related to the November 12, 1986 check
from the Mister Price company in the amount of $59,274.12.
Appellants argue that Normeat lacked probable cause to accuse
Rivera of misappropriating and forging this particular check.
The record contains a cancelled check purportedly showing
that on February 13, 1987, J.A.R. paid Normeat $57,495.90,
the balance due for the shipment of goods to the Mister Price
company, and a sworn statement from Rivera asserting that
J.A.R. paid Normeat for the Mister Price shipment.
Whether and in what circumstances a plaintiff may
maintain a malicious prosecution action based on one
groundless accusation, when probable cause existed for one or
more other accusations made concurrently, has never been
addressed by the Puerto Rico Supreme Court. In other
jurisdictions, courts have permitted such actions if the
charges stem from different sets of facts and if all the
other elements of a malicious prosecution claim are
fulfilled. See, e.g., Posr v. Doherty, 944 F.2d 91, 100 (2d
Cir. 1991) (holding that plaintiff could maintain malicious
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prosecution claim based on groundless charges of resisting
arrest and assault even if probable cause existed for
disorderly conduct charge); Singleton v. Perry, 289 P.2d 794,
799-800 (Cal. 1955) ("[P]laintiff, having shown that
defendant maliciously joined an unjustified charge with a
justified charge, does not have the further burden of showing
that her damage was specifically attributable to the
malicious prosecution as opposed to the prosecution which the
jury found was not malicious."); see also DeLaurentis v. City
of New Haven, 597 A.2d 807, 821-22 (Conn. 1991) (reviewing
cases). But see Ruff v. Eckerds Drugs, Inc., 220 S.E.2d 649,
651-52 (S.C. 1975) ("[A]n action for malicious prosecution
should not be available, where, as here, both charges arise
out of the same set of circumstances.").
In Rivera's case, even if he has presented evidence
sufficient to raise a genuine issue of fact concerning the
lack of probable cause for the two charges related to the
November 12, 1986 check from Mister Price, there is no
evidence to support the first essential element of malicious
prosecution: to wit, that Normeat, as opposed to the state
prosecutors, initiated and instigated these two particular
charges.6 See Raldiris v. Levitt & Sons of Puerto Rico,
6. The district court did not consider the issue of
instigation of the prosecution, but we are free to affirm on
any independently sufficient ground. Aunyx Corp. v. Canon
U.S.A., Inc., 978 F.2d 3, 6 (1st Cir. 1992), cert. denied,
113 S. Ct. 1416 (1993).
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Inc., 103 D.P.R. 778, 3 P.R. Sup. Ct. Off'l Translations
1087, 1091-92 (1975). As discussed above, under Puerto Rico
law a malicious prosecution plaintiff must show that:
[the] defendant was actively instrumental
in the initiation of the prosecution
through some affirmative action by way of
advice, petition, encouragement or
pressure. To furnish information to a
prosecuting attorney does not by itself
constitute an instigation, since
generally in those cases the efficient
cause of the initiation of the
prosecution has been the initiative and
decision of the prosecuting attorney, in
the exercise of his discretion, after
having carried out the corresponding
investigation.
Jim nez v. S nchez, 76 P.R.R. at 351. Where the decision to
file charges is within the discretion of the prosecutor, it
is not sufficient for plaintiffs merely to show that the
defendant gave incomplete information to the prosecutor.
Plaintiffs must show that the incomplete information caused
or "compelled" the government authorities to file charges
against the plaintiff. Torres v. Marcano, 68 P.R.R. at 818-
20. Unless the defendant is shown to have knowingly provided
false information to the officials, "[t]he exercise of the
officer's discretion makes the initiation of the prosecution
his own and protects from liability the person whose
information or accusation has led the officer to initiate the
proceedings." Id. at 819 (quoting 3 Restatement (First) of
Torts 653(2), cmt.).
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The record contains no evidence that Rasmussen or
other Normeat officials specifically instigated the charges
based on the November 12, 1986 check, nor that they were the
source of incomplete or false information to the state
officials on that item. The record indicates only that
Rasmussen gave a sworn statement to the prosecuting attorneys
regarding the failure of J.A.R. to turn over one or more
payments due to Normeat, a perfectly true statement insofar
as anything in the record shows. No actual copy of the sworn
statement appears in the record, nor is there an affidavit
from Rasmussen or a prosecutor indicating exactly what
Rasmussen told the prosecutors. Appellants concede that the
prosecutors conducted an investigation of J.A.R.'s dealings
with Normeat and that a Department of Justice attorney, not
Rasmussen, filed the formal charges in court against Rivera.
It is conceivable that the two charges related to the
November 12, 1986 check resulted from oversights or errors by
personnel within the Department of Justice rather than from
specific accusations relative to that check made by
Rasmussen. Appellants bear the burden of proof on the issue
but have put forward no concrete evidence to show that
Rasmussen gave inaccurate or incomplete information to the
authorities about this check nor that he coerced them into
filing the charges in question against Rivera. Consequently,
even if appellants raised a genuine issue regarding lack of
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probable cause for the charges based on the November 12, 1986
check, appellants failed to raise a genuine issue over
whether Normeat initiated or instigated those two charges.
Appellants would be unable at trial to meet their burden of
proof on an essential element of their malicious prosecution
claim.7
Affirmed. Costs to appellee.
7. We have considered and find no merit in the rest of
appellants' arguments.
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