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Fox v. Fox

Court of Appeals of Oklahoma, Division IV

April 29, 2016

THOMAS FOX, Plaintiff/Appellant,
v.
TIM FOX, CHARLES A. DICKSON, III; and CHARLES A. DICKSON, III PLLC, Defendants/Appellees.

          Mandate Issued: 03/21/2017

         APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE PATRICIA PARRISH, TRIAL JUDGE

          Ronald A. Schaulat, Louis P. Falsetti, SCHAULAT FALSETTI, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellant

          Derrick T. DeWitt, Carolyn S. Smith, NELSON TERRY MORTON DEWITT & PARUOLO, Oklahoma City, Oklahoma, for Defendant/Appellee Tim Fox

          Justin D. Meek, Ryan L. Dean, NELSON TERRY MORTON DEWITT & PARUOLO, Oklahoma City, Oklahoma, for Defendants/Appellees Charles A. Dickson, III and Charles A. Dickson, III PLLC

          JOHN F. FISCHER, JUDGE

         ¶1 Thomas Fox appeals the district court's judgment in favor of the defendants in this malicious prosecution case. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S.Supp. 2013, ch. 15, app. 1, and the matter stands submitted without appellate briefing. Because the defendants had probable cause to file the action that Thomas claims was malicious, and because the existence of probable cause is an absolute defense to a malicious prosecution action, we affirm.

         BACKGROUND

         ¶2 The current litigation arises from a family business dispute involving Don Fox and his two sons, Thomas and Tim. Both sons worked for their father's business, Big Giant Warehouse, and Thomas is still employed there. Tim's relationship with his father is strained, at best. Tim left Big Giant in September of 2005 and started a similar business. In August of 2007, Don and Big Giant sued Tim and some of Tim's customers. Don alleged that Tim used confidential information to unfairly compete with Big Giant, breached his fiduciary duty to Big Giant, fraudulently concealed his activities and conspired with charitable organizations to damage Big Giant. In that case, the jury returned a verdict in Don's favor but awarded no damages.

         ¶3 However, during the course of the Big Giant litigation, Tim's brother-in-law was served with a deposition subpoena by Don's lawyers while he was briefly visiting from out of state to attend a family photography session. Tim became suspicious that someone had unlawfully accessed his personal email account because that was the only method of communication Tim and his brother-in-law used to plan the photography session. Tim investigated the matter and learned that unauthorized access to his personal email account had occurred from an IP address assigned to a computer owned by Big Giant and an IP address assigned to a computer owned by Kevin Micue, a long-time Big Giant employee and one of the two Big Giant employees primarily responsible for Big Giant's computers.

         ¶4 Tim then deposed Don, Thomas and Micue. Don testified that he had "heard" someone at Big Giant "did something to access Tim Fox's email account" and identified Thomas as one of the three Big Giant employees who might have done so. Thomas testified that he did not access Tim's personal email account but that Big Giant had employed a forensic expert to access Tim's Big Giant email account after Tim left the company. Micue repeatedly invoked his Fifth Amendment privilege against self-incrimination when he was asked whether he or Thomas had accessed Tim's personal email account.

         ¶5 Tim consulted the Federal Bureau of Investigation. After further investigation, the FBI concluded that one or more persons had violated federal privacy law by unlawfully accessing Tim's personal email account. The FBI referred the matter to the United States Attorney, who declined to pursue the matter. On November 19, 2010, Tim sued Don, Thomas and others in federal court, alleging a violation of federal law and his privacy rights. Don's motion for summary judgment was granted because the court found that there was no evidence that Don, an eighty-four-year-old man, knew how to use a computer or email. With the permission of the federal court, Tim dismissed his suit against the remaining defendants, after he concluded that Micue's assertion of the Fifth Amendment would make prosecution of the case untenable.

         ¶6 Thomas filed this case shortly thereafter. Thomas alleged that Tim and his attorney had filed the federal court litigation with malice and without probable cause, and that they had conspired to do so to cause Thomas expense and gain an advantage in the Big Giant litigation. Tim and his attorney filed motions for summary judgment, arguing various defenses to Thomas's action. The district court found that Tim had probable cause to ...


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