Rivera Marcano v. Normeat-Holding

• Court: Court of Appeals for the First Circuit
• Decided: July 14, 1993
• Docket: 92-1662
• Status: Published

Opinion

USCA1 Opinion

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:

-3-


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. . . .

                                         -4-


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.

                                         -5-


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.

                                         -6-


(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

-7-


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.

-8-


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

-9-


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).

                                         -10-


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.).
            _____

-11-


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

-12-


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. 

                                         -13-