Court of Appeals Tenth Appellate District of Texas
10-25-00201-CV
Brinda Redwine, Appellant
v.
Kipp Allen Thomas, Appellee
On appeal from the County Court at Law of Navarro County, Texas Judge James E. Lagomarsino, presiding Trial Court Cause No. D24-32651-CV
JUSTICE SMITH delivered the opinion of the Court.
MEMORANDUM OPINION
Brinda Redwine appeals from a take nothing summary judgment
rendered in favor of Kipp Allen Thomas in her suit for malicious prosecution.
In four issues, Redwine asserts Thomas did not establish entitlement to
summary judgment. We affirm. BACKGROUND
Redwine was married to Thomas’s brother, Ricky, who passed away in
2023. Thomas contends that he and Ricky were in business together, growing
and selling hay. After Ricky’s death, Thomas was told that Redwine took a key
to a tractor Thomas claimed to own, as well as two small tools and a chain that
were in the tractor. Thomas reported the alleged theft, and after an
investigation, Redwine was arrested and tried for the offense of theft. A jury
acquitted her and she filed this malicious prosecution suit against Thomas.
Thomas filed a motion for summary judgment asserting there is no
genuine issue of material fact as to the probable cause and malice elements of
Redwine’s malicious prosecution claim. The trial court granted the motion and
ordered that Redwine take nothing on her claim.
SUMMARY JUDGMENT
Redwine lists four issues, alleging the trial court erred in granting
summary judgment in favor of Thomas, asserting she established all elements
of her malicious prosecution claim, including that the theft prosecution was
terminated in her favor, and contending her constitutional rights were violated
by the trial court’s decision. In the combined argument of these issues,
Redwine contends that genuine issues of material fact exist regarding every
element of her malicious prosecution claim. She asserts the record contains
Redwine v. Thomas Page 2 factual disputes as to whether Thomas had sufficient grounds to pursue
charges and whether his actions were motivated by improper considerations.
Standard of Review
We review the trial court's decision to grant summary judgment de novo.
Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021). The
movant for traditional summary judgment has the burden of showing that
there is no genuine issue of material fact, and it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(h)(2); Eagle Oil & Gas Co., 619 S.W.3d at
705. A defendant who conclusively negates at least one of the essential
elements of the cause of action or conclusively establishes an affirmative
defense is entitled to summary judgment. Frost Nat'l Bank v. Fernandez, 315
S.W.3d 494, 508 (Tex. 2010). Once the movant establishes its right to summary
judgment as a matter of law, the burden shifts to the nonmovant to present
evidence sufficient to raise a genuine issue of material fact, thereby precluding
summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018).
To determine if the nonmovant has raised a fact issue, we review the
evidence in the light most favorable to the nonmovant, crediting evidence
favorable to that party if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. B.C. v. Steak N Shake Operations,
Inc., 512 S.W.3d 276, 279 (Tex. 2017). We indulge every reasonable inference
Redwine v. Thomas Page 3 in favor of the nonmovant and resolve any doubts in her favor. Eagle Oil &
Gas Co., 619 S.W.3d at 705. The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their conclusions in light of
all the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes,
236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
Applicable Law
A malicious prosecution plaintiff must prove (1) commencement of a
criminal prosecution against the plaintiff; (2) the defendant initiated or
procured that prosecution; (3) termination of the prosecution in plaintiff’s
favor; (4) the plaintiff’s innocence; (5) lack of probable cause to initiate or
procure the prosecution; (6) malice in filing the charge; and (7) damage to the
plaintiff. Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 792 n.3 (Tex.
2006); Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997).
Probable cause is “the existence of such facts and circumstances as would
excite belief in a reasonable mind, acting on the facts within the knowledge of
the prosecutor [complainant], that the person charged was guilty of the crime
for which he was prosecuted.” Richey, 952 S.W.2d at 517. A malicious
prosecution plaintiff carries the burden of disproving probable cause, a
reflection of the presumption that the defendant acted reasonably and had
probable cause to initiate criminal proceedings. Suberu, 216 S.W.3d at 792-93.
Redwine v. Thomas Page 4 To rebut the presumption, the plaintiff must produce evidence that the
motives, grounds, beliefs, or other information upon which the defendant acted
did not constitute probable cause. Richey, 952 S.W.2d at 518. If the plaintiff
rebuts that presumption, the defendant is then required to carry the burden of
proving the existence of probable cause. Akin v. Dahl, 661 S.W.2d 917, 920
(Tex. 1983).
Probable cause should be evaluated from the perspective of the person
who made the report to law enforcement authorities, at the time the report was
made. Digby v. Texas Bank, 943 S.W.2d 914, 920-21 (Tex. App.—El Paso 1997,
writ denied). Our focus is whether a reasonable person would believe that a
crime had been committed given the facts as the complainant honestly and
reasonably believed them to be before the criminal proceedings were instituted.
Richey, 952 S.W.2d at 517.
To prove malicious prosecution a plaintiff must establish the defendant
acted with malice, which is defined as ill will, evil motive, gross indifference,
or reckless disregard of the rights of others. Hernandez v. Mendoza, 406
S.W.3d 351, 357 (Tex. App.—El Paso 2013, no pet.). The existence of malice
may be implied from the absence of probable cause. Id.
Redwine v. Thomas Page 5 Discussion
In his motion for summary judgment, Thomas asserted that probable
cause to report a crime existed. He also argued that there is no evidence to
rebut the presumption of probable cause and no evidence of malice. Redwine
filed a response stating that genuine issues of material fact exist as to “the
nature and extent of the Defendant’s conduct,” the “causation of harm” she
suffered, and the credibility of witnesses and their testimony.
As summary judgment evidence, Thomas presented the affidavit of Willd
Kujawa, who lives near the property where the alleged theft took place.
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Court of Appeals Tenth Appellate District of Texas
10-25-00201-CV
Brinda Redwine, Appellant
v.
Kipp Allen Thomas, Appellee
On appeal from the County Court at Law of Navarro County, Texas Judge James E. Lagomarsino, presiding Trial Court Cause No. D24-32651-CV
JUSTICE SMITH delivered the opinion of the Court.
MEMORANDUM OPINION
Brinda Redwine appeals from a take nothing summary judgment
rendered in favor of Kipp Allen Thomas in her suit for malicious prosecution.
In four issues, Redwine asserts Thomas did not establish entitlement to
summary judgment. We affirm. BACKGROUND
Redwine was married to Thomas’s brother, Ricky, who passed away in
2023. Thomas contends that he and Ricky were in business together, growing
and selling hay. After Ricky’s death, Thomas was told that Redwine took a key
to a tractor Thomas claimed to own, as well as two small tools and a chain that
were in the tractor. Thomas reported the alleged theft, and after an
investigation, Redwine was arrested and tried for the offense of theft. A jury
acquitted her and she filed this malicious prosecution suit against Thomas.
Thomas filed a motion for summary judgment asserting there is no
genuine issue of material fact as to the probable cause and malice elements of
Redwine’s malicious prosecution claim. The trial court granted the motion and
ordered that Redwine take nothing on her claim.
SUMMARY JUDGMENT
Redwine lists four issues, alleging the trial court erred in granting
summary judgment in favor of Thomas, asserting she established all elements
of her malicious prosecution claim, including that the theft prosecution was
terminated in her favor, and contending her constitutional rights were violated
by the trial court’s decision. In the combined argument of these issues,
Redwine contends that genuine issues of material fact exist regarding every
element of her malicious prosecution claim. She asserts the record contains
Redwine v. Thomas Page 2 factual disputes as to whether Thomas had sufficient grounds to pursue
charges and whether his actions were motivated by improper considerations.
Standard of Review
We review the trial court's decision to grant summary judgment de novo.
Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021). The
movant for traditional summary judgment has the burden of showing that
there is no genuine issue of material fact, and it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(h)(2); Eagle Oil & Gas Co., 619 S.W.3d at
705. A defendant who conclusively negates at least one of the essential
elements of the cause of action or conclusively establishes an affirmative
defense is entitled to summary judgment. Frost Nat'l Bank v. Fernandez, 315
S.W.3d 494, 508 (Tex. 2010). Once the movant establishes its right to summary
judgment as a matter of law, the burden shifts to the nonmovant to present
evidence sufficient to raise a genuine issue of material fact, thereby precluding
summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018).
To determine if the nonmovant has raised a fact issue, we review the
evidence in the light most favorable to the nonmovant, crediting evidence
favorable to that party if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. B.C. v. Steak N Shake Operations,
Inc., 512 S.W.3d 276, 279 (Tex. 2017). We indulge every reasonable inference
Redwine v. Thomas Page 3 in favor of the nonmovant and resolve any doubts in her favor. Eagle Oil &
Gas Co., 619 S.W.3d at 705. The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their conclusions in light of
all the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes,
236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
Applicable Law
A malicious prosecution plaintiff must prove (1) commencement of a
criminal prosecution against the plaintiff; (2) the defendant initiated or
procured that prosecution; (3) termination of the prosecution in plaintiff’s
favor; (4) the plaintiff’s innocence; (5) lack of probable cause to initiate or
procure the prosecution; (6) malice in filing the charge; and (7) damage to the
plaintiff. Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 792 n.3 (Tex.
2006); Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997).
Probable cause is “the existence of such facts and circumstances as would
excite belief in a reasonable mind, acting on the facts within the knowledge of
the prosecutor [complainant], that the person charged was guilty of the crime
for which he was prosecuted.” Richey, 952 S.W.2d at 517. A malicious
prosecution plaintiff carries the burden of disproving probable cause, a
reflection of the presumption that the defendant acted reasonably and had
probable cause to initiate criminal proceedings. Suberu, 216 S.W.3d at 792-93.
Redwine v. Thomas Page 4 To rebut the presumption, the plaintiff must produce evidence that the
motives, grounds, beliefs, or other information upon which the defendant acted
did not constitute probable cause. Richey, 952 S.W.2d at 518. If the plaintiff
rebuts that presumption, the defendant is then required to carry the burden of
proving the existence of probable cause. Akin v. Dahl, 661 S.W.2d 917, 920
(Tex. 1983).
Probable cause should be evaluated from the perspective of the person
who made the report to law enforcement authorities, at the time the report was
made. Digby v. Texas Bank, 943 S.W.2d 914, 920-21 (Tex. App.—El Paso 1997,
writ denied). Our focus is whether a reasonable person would believe that a
crime had been committed given the facts as the complainant honestly and
reasonably believed them to be before the criminal proceedings were instituted.
Richey, 952 S.W.2d at 517.
To prove malicious prosecution a plaintiff must establish the defendant
acted with malice, which is defined as ill will, evil motive, gross indifference,
or reckless disregard of the rights of others. Hernandez v. Mendoza, 406
S.W.3d 351, 357 (Tex. App.—El Paso 2013, no pet.). The existence of malice
may be implied from the absence of probable cause. Id.
Redwine v. Thomas Page 5 Discussion
In his motion for summary judgment, Thomas asserted that probable
cause to report a crime existed. He also argued that there is no evidence to
rebut the presumption of probable cause and no evidence of malice. Redwine
filed a response stating that genuine issues of material fact exist as to “the
nature and extent of the Defendant’s conduct,” the “causation of harm” she
suffered, and the credibility of witnesses and their testimony.
As summary judgment evidence, Thomas presented the affidavit of Willd
Kujawa, who lives near the property where the alleged theft took place.
Kujawa stated that he met with Redwine to purchase hay from Ricky’s estate.
He saw her remove a hammer, two pairs of pliers, and a piece of chain out of a
John Deere tractor that was on the property and put them in her truck. He
also saw her take the tractor key. He later told Thomas what Redwine had
done.
Thomas also presented his own affidavit as summary judgment evidence.
After an employee reported that Thomas’s tractor was locked and tools were
missing, he contacted Kujawa who told Thomas that Redwine had taken the
tools, chain, and tractor key. Thomas explained that, to avoid conflict, he
reported the incident to the sheriff’s office, as Redwine had taken his property
without his consent. This is sufficient to prove Thomas, at the time the report
Redwine v. Thomas Page 6 was made, reasonably believed Redwine had committed theft and thus had
probable cause to initiate the prosecution. See id. at 517.
Next, we consider the summary judgment evidence Redwine presented
to determine if she raised a fact question on the issue of probable cause. See
Lujan, 555 S.W.3d at 84. With her response, Redwine filed an affidavit in
which she described a decades-long contentious relationship with Thomas and
accused him of stealing from Ricky’s estate. She also filed a “Statement of
Disputed Facts” repeating her allegations against Thomas. Additionally, she
attached documents related to the theft prosecution and Ricky’s probate
proceedings, as well as publicly available records identifying property she
claims is owned by Ricky. Although Redwine presented evidence of prior bad
relations between she and Thomas, none of Redwine’s summary judgment
evidence addresses whether it was reasonable for Thomas to believe Redwine
stole items from him, leading him to file the theft report. Thus, Redwine did
not present evidence raising a fact question on the issue of probable cause. See
Richey, 952 S.W.2d at 518.
Thomas directly addressed the malice element in his affidavit, stating he
did not act with malice and had no unlawful or illegal motivation to have
Redwine arrested. He explained that he provided Redwine’s phone number to
Kujawa so Kujawa could buy Ricky’s hay from her, knowing that if he had not
Redwine v. Thomas Page 7 done so, Redwine would never have been aware of the hay. Kujawa witnessed
the theft. Thomas explained that he was trying to retrieve his property
peacefully by reporting the incident to the sheriff’s office. This evidence
conclusively negates the element of malice. See Hernandez, 406 S.W.3d at 357.
In response, Redwine presented evidence of a bad relationship between
she and Thomas and accused him of stealing from Ricky’s estate. But, as
explained above, Thomas had a valid reason to report the theft, and the report
was not based on ill will, evil motive, gross indifference, or reckless disregard
of Redwine’s rights. The past or current relationship between Thomas and
Redwine does not raise a fact question about the validity of Thomas’s stated
reason for reporting the alleged theft, Kujawa’s eyewitness testimony.
Further, while the existence of malice may be implied from want of probable
cause, the record here demonstrates probable cause. Therefore, malice may
not be inferred. See Hernandez, 406 S.W.3d at 357. Thus, Redwine’s evidence
did not raise a fact question about whether Thomas acted with malice. See
Mayes, 236 S.W.3d at 755.
CONCLUSION
Thomas conclusively negated the probable cause and malice elements of
Redwine’s malicious prosecution claim. See Fernandez, 315 S.W.3d at 508.
Redwine did not present evidence sufficient to raise a genuine issue of material
Redwine v. Thomas Page 8 fact. See Lujan, 555 S.W.3d at 84. Accordingly, the trial court did not err in
granting summary judgment in favor of Thomas. We overrule all of Redwine’s
issues.1
We affirm the trial court’s judgment.
STEVE SMITH Justice
OPINION DELIVERED and FILED: June 25, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed CV06
1 In her list of issues presented, Redwine includes the following: “Whether any constitutional rights of
Appellant were violated by the trial court’s decision.” However, there is no argument in the brief in support of this issue, and it is therefore waived. See TEX. R. APP. P. 38.1(i); Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 500 (Tex. 2015).
Redwine v. Thomas Page 9