Opinion issued March 17, 2015




                                  In The

                            Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                           NO. 01-13-01065-CV
                         ———————————
                       LISA K. NEWTON, Appellant
                                    V.
  SCI TEXAS FUNERAL SERVICES, INC. D/B/A FOREST PARK EAST
                  FUNERAL HOME, Appellee



                  On Appeal from the 281st District Court
                           Harris County, Texas
                     Trial Court Case No. 2011-05614


                     MEMORANDUM OPINION

     Lisa K. Newton appeals from the trial court’s order granting summary

judgment in favor of SCI Texas Funeral Services, Inc. d/b/a Forest Park East

Funeral Home (“SCI”), on Newton’s claims for defamation and malicious
prosecution. In her first issue, Newton contends that the trial court erred because

she presented summary judgment evidence raising a genuine issue of material fact

regarding whether SCI defamed her. In her second and third issues, she asserts

that issues of material fact exist with regard to the causation and probable cause

elements of her malicious prosecution claim. We affirm.

                                     Background

      SCI employed Newton as a funeral director at its Forest Park East Funeral

Home in Webster, Texas. Newton’s job duties included meeting with families to

make funeral arrangements and selling funeral plans to its customers.              To

encourage funeral directors to actively sell floral arrangements, SCI paid its funeral

directors a 10% commission on each flower sale ordered through Flowers and Co.,

a local vendor. At Forest Park East, funeral directors wrote floral orders on order

forms that were then faxed to the vendor. Afterwards, the directors totaled their

floral orders and attached the forms to their weekly time sheets which were used to

tally the bonuses due for floral sales.

      In early 2010, due to discrepancies discovered in employees’ flower order

forms, SCI conducted an internal audit of its funeral contracts, order forms,

employee time sheets, and invoices from the local vendor. The audit revealed that

several Forest Park East employees had committed fraud by submitting duplicate

flower orders, altering flower order forms, and ordering flowers that families did

                                          2
not pay for in order to receive a higher bonus than was actually due. The audit

revealed that Newton was involved in five transactions in which flower order

forms were submitted to Flowers and Co. for non-existent orders or the forms were

unauthorized duplicates, and that she had received $225 in bonuses that she was

not owed.1

      Following the audit, Forest Park East’s general manager, Foster B. Cook,

and SCI’s investigations manager, Buddy Downs, met with a law enforcement

officer at the Webster Police Department and provided the officer with the audit

report findings.    Newton was subsequently arrested and charged with the

misdemeanor offense of theft in the aggregate. The charge against Newton was

later dismissed.

      Newton filed suit against SCI alleging defamation, malicious prosecution,

intentional infliction of emotional distress, and breach of contract. SCI moved for

summary judgment on Newton’s claims. On November 15, 2013, the trial court

granted SCI’s motion on Newton’s claims for defamation, malicious prosecution,

and intentional infliction of emotional distress, but denied its motion as to

Newton’s breach of contract claim.       After non-suiting her remaining contract

claim, Newton filed this appeal.

1
      The audit also revealed that Newton’s colleague and friend, Juan Francisco Salas,
      had submitted fraudulent flower orders for which he had received nearly $5,000 in
      bonuses. Salas was fired and later charged with the state jail felony offense of
      theft to which he pleaded guilty.
                                          3
                                      Discussion

      In her first issue, Newton contends that the trial court erred in granting

summary judgment on her defamation claim because she presented summary

judgment evidence raising a genuine issue of material fact as to whether SCI

defamed her. In her second and third issues, Newton argues that the trial court

erred in granting summary judgment on her malicious prosecution claim because

genuine issues of material fact exist regarding the elements of causation and

probable cause. 2

    A. Standard of Review

      We review de novo a trial court’s ruling on a motion for summary judgment.

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848

(Tex. 2009). In a traditional motion for summary judgment, the movant must

establish that no genuine issue of material fact exists and the party is entitled to

summary judgment as a matter of law. TEX. R. CIV. P. 166a(c). In determining

whether there are disputed issues of material fact, we take as true all evidence

favorable to the nonmovant and indulge every reasonable inference in the

nonmovant’s favor. See Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548–

49 (Tex. 1985). If the summary judgment does not specify the grounds on which it


2
      Newton states in her brief that she is not appealing the portion of the trial court’s
      order granting summary judgment on her intentional infliction of emotional
      distress claim. Therefore, we do not consider it on appeal.
                                            4
was granted, the appealing party must demonstrate on appeal that none of the

proposed grounds is sufficient to support the judgment. Rogers v. Ricane Enter.,

772 S.W.2d 76, 79 (Tex. 1989).

    B. Defamation

      Newton contends that the trial court erred in granting summary judgment on

her defamation claim because a genuine issue of material fact exists as to whether

SCI defamed her.      SCI argues that it was entitled to summary judgment on

Newton’s defamation claim because the undisputed evidence demonstrates that it

never published any defamatory statements about her.

      As a preliminary matter, we address Newton’s contention that SCI moved

for summary judgment on her defamation claim on no-evidence grounds. As

support for her contention, she relies on SCI’s statement in its summary judgment

motion that “[h]ere, there is no evidence that SCI defamed Plaintiff.” However,

SCI attached summary judgment evidence to its motion, and its motion does not

cite to Texas Rule of Civil Procedure 166a(i) except with regard to Newton’s

intentional infliction of emotional distress claim. 3 TEX. R. CIV. P. 166a(i) (stating

that no-evidence motion for summary judgment is made “without presenting

summary judgment evidence”). When it is not readily apparent that summary

3
      We note that in her summary judgment response, Newton states that SCI seeks a
      traditional summary judgment as to her claims for defamation, malicious
      prosecution, and breach of contract and a no-evidence summary judgment as to
      her intentional infliction of emotional distress claim.
                                          5
judgment is sought on no-evidence grounds, “the court should presume that it is

filed under the traditional summary judgment rule and analyze it according to those

well-recognized standards.” Richard v. Reynolds Metal Co., 108 S.W.3d 908, 911

(Tex. App.—Corpus Christi 2003, no pet.)         Accordingly, we construe SCI’s

motion with regard to Newton’s defamation claim as asserting traditional grounds

for summary judgment only. See TEX. R. CIV. P. 166a.

       To prove a cause of action for defamation, a plaintiff must prove that (1) the

defendant published a statement of fact about the plaintiff; (2) the statement was

defamatory; (3) the statement was false; (4) the defendant acted negligently in

publishing the false and defamatory statement; and (5) the plaintiff suffered

damages as a result. See WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.

1998); Brown v. Swett & Crawford of Texas, Inc., 178 S.W.3d 373, 382 (Tex.

App.—Houston [1st Dist.] 2005, no pet.).            Whether a communication is

defamatory is a question of law. See Musser v. Smith Protective Servs., 723

S.W.2d 653, 654 (Tex. 1987).

      In its summary judgment motion, SCI argued that the evidence conclusively

established that SCI did not make any defamatory statements about her. In support

of its argument, SCI relied on the following excerpt from Newton’s deposition

testimony:

      Q:   Are you aware of any statements that anyone at SCI made to
      anyone that was false?
                                         6
      A: No.

      In her summary judgment response, Newton pointed to her deposition

testimony that other SCI employees and people in the funeral home industry knew

that she had been suspected of theft as evidence that SCI had defamed her:

      A: Well, many people in the funeral industry know this story, that I
      was accused of theft.

      Q: How did they find out?

      A: Well, people talk.

      Q: Who has told—who has told you that they are aware that you were
      suspected of theft?

      A: Several SCI employees. I mean, that’s—I mean, you know, I’m
      sure that story went around the company.

      Q: Who told you that they knew you had been suspected of theft?

      A: Well, everyone that was left there knew that: Francine Jacks, Vicki
      Marshall, Susan Finley. I mean, I can name everybody that worked at
      Forest Park East.

      Q: Anyone—

      A: Once I left there and started to look for another job, it became
      apparent that the story had traveled to other funeral homes that were
      not SCI funeral homes.

      Q: Why do you say that?

      A: I applied for a job at one funeral home and was not disclosing that
      I had been fired. They asked me why I was leaving Forest Park East.
      I said I just didn’t want to work there anymore. The manager that was
      interviewing me said, “Yeah, there’s been a really big shake up over
      there. I heard there’s been some people caught stealing.”
                                        7
      Q: Who was it who told you that?

      A: I don’t remember. It was Niday Funeral Home.
         I ran into a man that used to work at Forest Park East. He was the
         general manager when I was an apprentice. He got out of the
         business. Ran into him at Walmart, started chatting; and my
         daughter was with me. And he said—I told him I didn’t work
         there anymore. And he said, yeah, he had heard there had been a
         big shake up at Forest Park East and—

      Q: Did you say anything else?

      A: No, I didn’t elaborate that. I didn’t—I just said, Yeah, don’t work
      there anymore.

      Q: And who was that?

      A: That was Rick Sloan.

      Taking this evidence as true, it nevertheless fails to create a fact issue as to

whether SCI defamed Newton. Although Newton testified that other Forest Park

East employees knew she was suspected of theft because the story presumably

went around the company, this is not evidence that SCI told any of these

employees that Newton committed theft. As to her testimony regarding others in

the funeral home industry, this is likewise not evidence that SCI defamed her. For

a statement to be actionable as defamation, it must refer to an ascertainable person.

Robertson v. Sw. Bell Yellow Pages, Inc., 190 S.W.3d 899, 902 (Tex. App.—

Dallas 2006, no pet.); Double Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 854

(Tex. App.—Dallas 2003, no pet.). The statement must “point to the plaintiff and

to no one else.” Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 894 (1960).
                                          8
Newton’s testimony that others told her that they had heard “some people [had

been] caught stealing” and that there had been a “big shake up” at Forest Park East

is not evidence that SCI told anyone that Newton was involved in the theft. See

Ledig v. Duke Energy Corp., 193 S.W.3d 167, 180 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (noting person is referred to in defamatory statement if person

is named in statement or if those who know person would understand that

statement was referring to person).

      Newton also argues that SCI defamed her when it communicated an

accusation of theft to the Webster Police Department. In support of her assertion,

Newton points to SCI’s statements in its summary judgment motion that “SCI met

with the Webster Police Department and provided the police with the internal audit

report findings that Plaintiff had stolen from the company,” and that “[i]n this case

there is no dispute that SCI informed the Webster Police Department that the

company believed a theft occurred.”       Assertions of fact, not pleaded in the

alternative, in the live pleadings of a party are regarded as formal judicial

admissions. Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983).

Thus, SCI’s statements in its summary judgment motion amounted to a judicial

admission. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex.

2001) (concluding defendant’s statements in summary judgment response and

counter-motion for summary judgment accepting plaintiff’s assertion regarding

                                         9
promissory note’s acceleration date constituted judicial admission of acceleration

date).

         The parties, however, dispute whether these statements are defamatory.

With regard to the first statement—“SCI met with the Webster Police Department

and provided the police with the internal audit report findings that Plaintiff had

stolen from the company”—SCI contends that because it is undisputed that the

audit results provided to law enforcement contained accurate findings, this is not

evidence that SCI defamed Newton. Notwithstanding the accuracy of the findings

showing that Newton submitted flower order forms and received bonuses which

were not due to her—an allegation that Newton does not dispute—the remainder of

SCI’s statement characterizes the results as “findings that Plaintiff had stolen from

the company.” With regard to SCI’s second statement—“[i]n this case there is no

dispute that SCI informed the Webster Police Department that the company

believed a theft occurred”—SCI asserts that this is not evidence that SCI defamed

her because SCI’s expressions of opinion regarding the meaning of the audit

results are not actionable in a defamation claim. However, the record does not

reflect that SCI ever raised this argument before the trial court and, thus, we do not

consider it. See Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014) (citing Stiles

v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993) (“[W]e hold that a

summary judgment cannot be affirmed on grounds not expressly set out in the

                                         10
motion or response.”)). Taking as true all evidence favorable to the nonmovant

and indulging every reasonable inference in the nonmovant’s favor, as we must,

we find this evidence sufficient to raise a genuine issue of material fact as to

whether SCI defamed Newton when it made its report to the police. See Nixon,

690 S.W.2d at 548–49.

      This conclusion, however, does not end our inquiry. SCI also argued in its

motion that its communication to the Webster Police Department is protected by a

qualified privilege absent a showing that it knew its statement was false or it made

the statement with reckless disregard as to its truth. Newton contends that SCI

may not avail itself of this defense because it did not plead it. However, an

unpleaded affirmative defense may serve as the basis for a summary judgment

when it is raised in the summary judgment motion, but the opposing party does not

object in either its written response or before the rendition of judgment. See Roark

v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991). Here, although

SCI did not plead the defense of qualified privilege in its answer to Newton’s

petition, Newton did not object in her summary judgment response or otherwise

object before the trial court ruled on SCI’s motion and, therefore, the trial court

could consider it.4


4
      Newton also argues that SCI was not entitled to assert this defense in its motion
      because a party may not raise an affirmative defense on which it has the burden of
      proof in a no-evidence motion. Having already concluded that SCI moved for
                                          11
      Defamatory statements are conditionally or qualifiedly privileged and

therefore not actionable when “made in good faith on any subject matter in which

the author has an interest, or with reference to which he has a duty to perform to

another person having a corresponding interest or duty.” TRT Dev. Co.-KC v.

Meyers, 15 S.W.3d 281, 286 (Tex. App.—Corpus Christi 2000, no pet.) (quotation

omitted). A conditional or qualified privilege arises out of the circumstances in

which the allegedly false statement is published in a lawful manner for a lawful

purpose. See Minyard Food Stores, Inc. v. Goodman, 50 S.W.3d 131, 139–40

(Tex. App.—Fort Worth 2001), rev’d in part on other grounds, 80 S.W.3d 573

(Tex. 2002). This privilege applies to bona fide statements made in good faith

under circumstances where the author believes that the public has an important

interest in a particular subject matter requiring publication, or where the author

believes that a person having a common interest in a particular subject matter is

entitled to know the information. See Randall’s Food Mkts., Inc. v. Johnson, 891

S.W.2d 640, 646 (Tex. 1995).

      However, proof that a statement was motivated by actual malice existing at

the time of publication defeats the privilege. Id.; Marathon Oil Co. v. Salazar, 682

S.W.2d 624, 631 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.). In the

defamation context, a statement is made with actual malice when the statement is

      traditional summary judgment on Newton’s defamation claim, we do not address
      this argument.
                                        12
made with knowledge of its falsity or with reckless disregard as to its truth. See

Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771 (Tex. 1994). To invoke

the privilege on summary judgment, an employer must conclusively establish that

the allegedly defamatory statement was made with an absence of malice. See

Jackson v. Cheatwood, 445 S.W.2d 513, 514 (Tex. 1969); Goodman v. Gallerano,

695 S.W.2d 286, 287–88 (Tex. App.—Dallas 1985, no writ). A defendant can

negate actual malice by presenting evidence that shows it did not publish the

alleged defamatory statement with actual knowledge of any falsity or with reckless

disregard for the truth. Casso v. Brand, 776 S.W.2d 551, 559 (Tex. 1989).

      Here, SCI was required to conclusively establish that the alleged defamatory

statement was made without malice. See Johnson, 891 S.W.2d at 646. In its

summary judgment motion, SCI argued that it provided the audit report to the

police to seek law enforcement assistance, and that it did not make any statement

to the police that it knew was false or with reckless disregard as to its truth. In

support of its argument, SCI attached Cook’s affidavit stating, in relevant part:

   • I, along with Buddy Downs, SCI’s investigations manager, did meet
     with a police officer at the Webster Police Department and provided
     him with the findings of SCI’s audit so he and/or the Harris County
     District Attorney’s Office could determine whether they believed
     there was sufficient evidence to bring criminal charges against
     Plaintiff.

   • Mr. Downs and I did not provide any information to the police that we
     knew to be false.

                                         13
   • I reviewed the duplicate flower order forms Plaintiff submitted and it
     created a reasonable concern that something improper was going on.
     Based on the facts and circumstances before me, I honestly and
     reasonably believed that Plaintiff had committed a crime—that being,
     theft.

      Newton argues that the evidence raises a fact issue as to whether SCI acted

with malice. In particular, Newton points to her affidavit in which she stated that

during the time period in which she was alleged to have fraudulently submitted the

flower order forms for which she received $225 in bonuses, she was owed over

$1,000 in flower bonuses for flower sales that she had made on 22 contracts, but

for which she had not turned in a flower order form. Newton also points to the fact

that while SCI’s audit of 90 to 100 of her files identified five files reflecting that

she had received bonuses to which she was not entitled, it either ignored or

deliberately overlooked the 22 files for which she was owed money but never

submitted a payment request. Newton argues that this evidence raises a fact issue

as to whether SCI acted with malice. We disagree.

      Newton admits that in order to obtain a bonus for flower sales, she was

required to submit an order form and that she did not expect to receive a bonus

without first submitting the proper paperwork for each transaction. She further

admits that she did not submit the required paperwork for any of the transactions

for which she claims she was owed a bonus. Therefore, she was not entitled to

receive the additional bonuses from SCI. Further, even assuming she made these

                                         14
flower sales for which she did not receive a bonus, this evidence does not negate

the fact that Newton received bonuses from SCI to which she was not entitled.

Moreover, Newton has not presented any evidence to support her assertion that

SCI ignored or deliberately overlooked the 22 additional sales while conducting its

audit.

         SCI conclusively established that its alleged defamatory statement to the

Webster Police Department was made without malice and, therefore, was

qualifiedly privileged. See Jackson, 445 S.W.2d at 514. The trial court did not err

in granting summary judgment on Newton’s defamation claim. We overrule her

first issue.

   C. Malicious Prosecution

         In her second and third issues, Newton contends that the trial court erred in

granting summary judgment on her malicious prosecution claim because she

presented summary judgment evidence raising a genuine issue of material fact on

the elements of causation and probable cause.             SCI argues the evidence

conclusively negated these elements thus entitling it to summary judgment as a

matter of law on Newton’s claim.

         Actions for malicious prosecution create a tension between the societal

interest in punishing crimes and the individual interest in protection from

unjustifiable criminal prosecution. Richey v. Brookshire Grocery Co., 952 S.W.2d

                                           15
515, 520 (Tex. 1997). “Even a small departure from the exact prerequisites for

liability may threaten the delicate balance between protecting against wrongful

prosecution and encouraging reporting of criminal conduct.” Browning-Ferris

Indus., Inc. v. Lieck, 881 S.W.2d 288, 291 (Tex. 1994). To prevail on a claim of

malicious prosecution, a plaintiff must establish the following: (1) commencement

of a criminal prosecution against the plaintiff; (2) initiated or procured by the

defendant; (3) termination of the prosecution in the plaintiff’s favor; (4) the

plaintiff’s innocence; (5) the defendant’s lack of probable cause to initiate the

proceedings; (6) malice in filing the charge; and (7) damage to the plaintiff.

Richey, 952 S.W.2d at 517. Because it is dispositive, we begin with Newton’s

third issue in which she contends that SCI lacked probable cause to initiate or

procure criminal prosecution against her.

      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

. . . [complainant], that the person charged was guilty of the crime for which he

was prosecuted.’’ Id. (quoting Akin v. Dahl, 661 S.W.2d 917, 921 (Tex. 1983)).

The question is whether a reasonable person would believe that a crime had been

committed, given the facts that the complainant, before initiating the criminal

proceedings, honestly and reasonably believed to be true. Richey, 952 S.W.2d at

517. There is an initial presumption that the defendant acted reasonably and in

                                         16
good faith and had probable cause to initiate the proceedings.           Id.   That

presumption disappears once a plaintiff produces evidence that the motives,

grounds, beliefs, and other evidence upon which the defendant acted did not

constitute probable cause. Id. at 518. The burden then shifts to the defendant to

offer proof of probable cause. Id. Once a citizen has probable cause to report a

crime, there can be no malicious prosecution, even if the subsequent report fails to

fully disclose all relevant facts. First Valley Bank of Los Fresnos v. Martin, 144

S.W.3d 466, 470 (Tex. 2004).

      In its summary judgment motion, SCI argued that even if it procured

Newton’s prosecution, the evidence conclusively established that it had probable

cause to do so. In support of its argument, SCI relied on Cook’s affidavit in which

he stated that (1) in early 2010, SCI discovered that there were some discrepancies

in employees’ flower order forms submitted to obtain the ten present bonus—in

particular, the expenses for the flowers (i.e., bonus payments and the amount spent

on flowers) were higher than the income for the flower account; (2) an internal

audit team reviewed funeral contracts, flower order forms, time sheets, and

invoices from Flowers and Co. and determined that several Forest Park East

employees were committing fraud by claiming larger amounts of flower sales than

were actually ordered; (3) Salas, Newton’s colleague and friend, admitted that he

had stolen money from the company through the submission of fraudulent flower

                                        17
order forms; (4) Newton submitted duplicate flower order forms for which she

received bonuses that she was not owed; (5) on one occasion Salas and Newton

both submitted a flower order form to obtain a bonus for a sale to the same

customer. Cook further attested “I reviewed the duplicate flower order forms

Plaintiff submitted and it created a reasonable concern that something improper

was going on. Based on the facts and circumstances before me, I honestly and

reasonably believed that Plaintiff had committed a crime—that being, theft.” SCI

also pointed to Newton’s deposition testimony stating that she could understand

how someone would look at duplicate order forms and be concerned.

      In her summary judgment response, Newton argued that SCI lacked

probable cause because the evidence showed that a reasonable person would not

have believed that a crime had been committed.       Newton points to Cook’s

deposition testimony regarding two of the five accounts on which she received a

bonus she was not owed. The first account included a flower order form submitted

by Newton marked “revised,” and the second account contained two duplicate

flower order forms attached to Newton’s time sheet. With regard to the document

marked “revised,” Cook testified as follows:

      Q: So when [Newton]—when she or somebody wrote that on there, do
      you take from that an intent to deceive?

      A: I’ll answer it this way. I didn’t prepare this document. So
      truthfully, I can’t—I can’t answer that because they prepared the
      document. I mean, I can see what you’re saying. I can read. But to
                                        18
      answer your question, I wouldn’t be able to answer your question
      because I didn’t take part in preparation of these documents.

      Q: All right. But you take my point.

      A: I take your point, yeah.

With regard to the second account containing two duplicate flower order forms

attached to Newton’s time sheet, Cook testified as follows:

      Q: —does that suggest to you she was trying to get paid twice when
      she put them on top of each other on the same time sheet?

      A: If it’s the same flower order with the same contract number, I
      could see where they could think that, yeah. If that’s—if that’s what
      it was.

      Q: You could see where they would think that?

      A: Yeah, I do.

This evidence does not raise a fact issue as to whether a reasonable person would

have believed that a crime had been committed.

      Newton also argues that SCI lacked probable cause because it must have

known after completion of its audit that Newton was owed more than $1,000 for

flower orders on 22 other accounts. However, as we previously noted, there is no

evidence that SCI knew of these additional orders and, moreover, Newton was not

entitled to payment for these orders because she did not submit the appropriate

paperwork.




                                        19
      Newton also argues that the presumption of probable cause disappeared

because she presented evidence of SCI’s improper motive. In support of her

argument, Newton points to the following excerpt from her deposition testimony:

      Q; Do you think Foster Cook was trying to harm you?

      A: I think prior to them questioning me, once they found out that, you
      know, an employee was doing things to acquire money that he wasn’t
      owed and he just left, I believe they were out for somebody. I do.

      Q: Why do you say that?

      A: Because I’m sure Charles [Wilson] and Foster [Cook] had their
      jobs on the line is what I think. I’m sure they were being questioned
      as to how was an employee able to do that.

      This evidence, however, contains no facts but only conclusory statements

that are no more than “mere surmise or suspicion” about SCI’s motives. Such

statements do not create an issue of fact. See Rizkallah v. Conner, 952 S.W.2d

580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ) (“A conclusory statement

is one that does not provide the underlying facts to support the conclusion.

Conclusory statements . . . . are not proper as summary judgment proof if there are

no facts to support the conclusion.”)

      The undisputed evidence conclusively shows that SCI had probable cause to

initiate or procure the prosecution of Newton: (1) the internal audit revealed that

several Forest Park East employees were committing fraud by claiming larger

amounts of flower sales than were actually ordered (2) Newton admitted that she

                                        20
had submitted duplicate flower order forms and received bonuses that she was not

owed; (3) Cook stated he honestly and reasonably believed that Plaintiff had

committed theft based on the facts before him; and (4) Newton understood how

SCI could be concerned about duplicate flower orders. Therefore, SCI was entitled

to summary judgment on Newton’s malicious prosecution claim. See Richey, 952

S.W.2d at 518–20; Arrendondo v. Rodriguez, No. 14-09-00857-CV, 2011 WL

304070, at *8 (Tex. App.—Houston [14th Dist.] Jan. 27, 2011) (mem. op.) (not

designated for publication). We therefore overrule Newton’s third issue and do not

reach her second issue.

                                     Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.




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