                                  NO. 12-15-00197-CV

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

MURPHY USA, INC. AND MARY                        §        APPEAL FROM THE 123RD
FRANCES MAXWELL, MGR.,
APPELLANTS

V.                                               §        JUDICIAL DISTRICT COURT

FREDDIE J. ROSE AND LAUREEN
IRVING,
APPELLEES                                        §        SHELBY COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Murphy USA, Inc. and Mary Frances Maxwell appeal the denial of their motion to
dismiss a lawsuit that Freddie J. Rose and Laureen Irving filed against them. In a single issue,
they contend the Texas Citizens Participation Act applies and Rose and Irving failed to meet
their burden to establish a prima facie case on each element of any of their claims. They also
request that the case be remanded for a determination of attorney’s fees and costs. We reverse
and render in part and remand in part.


                                         BACKGROUND
       On or about August 17, 2014, Freddie J. Rose and Laureen Irving pulled into the Murphy
USA gas station located at the Wal-Mart in Center, Texas. Mary Frances Maxwell, the manager,
turned on the gas pump with the understanding that Rose would pay for the gas when he was
finished. Rose pumped more than eighty dollars’ worth of gasoline into his vehicle and three or
four other containers. He provided a credit card for payment, which was declined. Rose then
tendered a personal check, which was declined by Murphy’s electronic check verification
system. Following that, Rose provided a business check, which also was declined by the
verification system. Rose then returned to his vehicle.
         Maxwell believed Rose was attempting to leave without paying for the gasoline and
called the Center Police Department to report an attempted theft. She also asked an employee to
print a drive-off ticket for the gasoline. She then stood in front of Rose’s vehicle until the police
arrived. Maxwell spoke with the officers when they arrived and signed a complaint against
Rose. As a result, Rose was arrested for attempted theft, his car was impounded, and Irving was
stranded. An investigation showed that Rose had sufficient funds in his accounts to pay for the
gasoline, and the checks were declined for some other reason not specified in the record. Rose
was not prosecuted by the county attorney, and the charges against him were dropped.
         Rose and Irving subsequently filed suit against Murphy and Maxwell. They alleged
causes of action against Maxwell for malicious prosecution, defamation, false imprisonment, and
negligence.1 They alleged further that Murphy is liable as Maxwell’s employer. The basis for
Rose and Irving’s claims is that Rose’s checks were supported by sufficient funds. Therefore,
they alleged, Maxwell falsely accused Rose of attempting to steal gasoline. Rose and Irving
alleged further that Maxwell could have determined Rose’s checks were declined for a different
reason and resolved the problem if she had called the verification service or allowed Rose to do
so. Murphy and Maxwell filed a motion to dismiss the suit, alleging the causes of action “fall
squarely within the parameters” of the Texas anti-SLAPP2 statute pursuant to Section 27.003 of
the Texas Civil Practice and Remedies Code. The court denied the motion without a hearing,
and this appeal followed.3


                                               ISSUE PRESENTED
         In a single issue, Murphy and Maxwell assert that the Texas Citizens Participation Act
(TCPA) applies because Rose and Irving’s causes of action are based on Maxwell’s right to
petition. They argue further that Rose and Irving failed to establish a prima facie case on each



         1
           Their amended petition does not allege any causes of action for which Maxwell is allegedly liable to
Irving only. On appeal, Irving contends that she has passenger standing under the Fourth Amendment. Because we
dispose of this case based on Rose’s causes of action, we need not address this issue.
          2
            The Texas Citizens Participation Act is considered an anti-SLAPP statute. Anti-SLAPP stands for
“strategic lawsuit against public participation.” Jennings v. WallBuilder Presentations, Inc., 378 S.W.3d 519, 521
n.1 (Tex. App.—Fort Worth 2012, pet. denied).
         3
          An interlocutory appeal of a motion to dismiss under section 27.003 is authorized by the civil practice and
remedies code. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(12) (West Supp. 2016).


                                                         2
element of any of their claims, and, therefore, the trial court erred in denying their motion to
dismiss Rose and Irving’s suit.


                              TEXAS CITIZENS PARTICIPATION ACT
       The purpose of the TCPA is to “encourage and safeguard the constitutional rights of
persons to petition, speak freely, associate freely, and otherwise participate in government to the
maximum extent permitted by law and, at the same time, protect the rights of a person to file
meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002
(West 2015). Although we construe the TCPA liberally “to effectuate its purpose and intent
fully,” the Act “does not abrogate or lessen any other defense, remedy, immunity, or privilege
available under other constitutional, statutory, case or common law or rule provisions.” Id.
§ 27.011 (West 2015).
       The TCPA provides a mechanism for early dismissal of a cause of action that “is based
on, relates to, or is in response to a party’s exercise of the right of free speech, the right to
petition, or right of association . . . .” Id. § 27.003 (West 2015). The party moving for dismissal
has the initial burden to establish by a preponderance of the evidence “that the legal action is
based on, relates to, or is in response to the party’s exercise of . . . the right to petition.” Id.
§ 27.005(b)(2).   If the movant makes this showing, the burden shifts to the nonmovant to
establish by “clear and specific evidence a prima facie case for each essential element of the
claim in question.” Id. § 27.005(c). However, even if the nonmovant makes this showing, the
trial court must dismiss the cause of action if the movant “establishes by a preponderance of the
evidence each essential element of a valid defense to the nonmovant’s claim.” Id. § 27.005(d).
When determining whether to dismiss the legal action, the court must consider “the pleadings
and supporting and opposing affidavits stating the facts on which the liability or defense is
based.” Id. § 27.006(a) (West 2015).
       The Texas Supreme Court has explained the meaning of the requirement that the
nonmovant establish by “clear and specific evidence a prima facie case.” In re Lipsky, 460
S.W.3d 579, 590-91 (Tex. 2015) (orig. proceeding). “Clear” means “unambiguous, sure or free
from doubt,” and “specific” means “explicit or relating to a particular named thing.” Id. at 590.
A “prima facie case” is “the minimum quantum of evidence necessary to support a rational
inference that the allegation of fact is true.” Id. It refers to evidence sufficient as a matter of law



                                                  3
to establish a given fact if it is not rebutted or contradicted. Id. The “clear and specific
evidence” requirement does not impose an elevated evidentiary standard, nor does it
categorically reject circumstantial evidence. Id. at 591. But it requires more than mere notice
pleading. Id. at 590-91. Instead, a plaintiff must provide enough detail to show the factual basis
for its claim. Id. at 590.
        We review questions of statutory construction de novo. Molinet v. Kimbrell, 356 S.W.3d
407, 411 (Tex. 2011). We consider de novo the legal question of whether the movant has
established by a preponderance of the evidence that the challenged legal action is covered by the
TCPA. Serafine v. Blunt, 466 S.W.3d 352, 357 (Tex. App.—Austin 2015, no pet.). We also
review de novo a trial court’s determination of whether a nonmovant has presented clear and
specific evidence establishing a prima facie case of each essential element of the challenged
claims. Id.


                                  APPLICABILITY OF THE TCPA
        Murphy and Maxwell contend that Rose and Irving’s amended petition is based on,
relates to, and is in response to Maxwell’s conduct in reporting the incident to law enforcement
officials. As a result, they argue that each of Rose and Irving’s causes of action is based on
Maxwell’s exercise of her right to petition. Murphy and Maxwell maintain that making a
criminal complaint and speaking to law enforcement officials are communications in or
pertaining to a judicial proceeding because emergency calls and criminal complaints are often
the initial steps in bringing criminal proceedings against an alleged offender. In response, Rose
and Irving urge that communications made to law enforcement in reporting a potential crime are
not constitutionally protected.
        The TCPA broadly defines “exercise of the right to petition.” See TEX. CIV. PRAC. &
REM. CODE ANN. § 27.001(4).         The statutory definition includes “a communication in or
pertaining to . . . a judicial proceeding [or] an official proceeding, other than a judicial
proceeding, to administer the law[.]” Id. § 27.001(4)(A)(i), (ii). “Official proceeding” means
“any type of administrative, executive, legislative, or judicial proceeding that may be conducted
before a public servant.” Id. § 27.001(8). In addition, “exercise of the right to petition” includes
“any other communication that falls within the protection of the right to petition government
under the Constitution of the United States or the constitution of this state.” Id. § 27.001(4)(E).



                                                 4
        Texas has long recognized the need to balance the right to petition with the right to file a
police report. See Wood v. State, 577 S.W.2d 477, 479 (Tex. Crim. App. 1978) (criminal offense
of making false report must be reconciled with right to petition guaranteed by Texas
Constitution); Zahorik v. State, No. 14-13-00763-CR, 2015 WL 5042105, at *4 (Tex. App.—
Houston [14th Dist.] Aug. 25, 2015, no pet.) (holding that additional proof requirements imposed
on state when person is reporting police or other official misconduct are necessary to safeguard
constitutional right to petition government for redress of grievances). While these cases concern
the filing of a police report against an officer, the logic is the same. Filing a police report,
whether true or false, implicates a person’s right to petition the government, and this right must
be considered when determining whether a person filed a false report. See Wood, 577 S.W.2d at
479; Zahorik, 2015 WL 5042105, at *4; see also Charalambopoulos v. Grammer, No. 3:14-CV-
2424-D, 2015 WL 390664, at *6 (N.D. Tex. Jan. 29, 2015) (filing police report considered first
step in initiating official criminal proceeding against alleged offender).
        Rose and Irving argue that the TCPA should not apply because Maxwell’s statements to
the police were later determined to be false. In Lefebvre v. Lefebvre, 131 Cal. Rptr. 3d 171 (Cal.
Ct. App. 2011), a California appellate court found that California’s anti-SLAPP statute did not apply
in a situation where it was uncontested that the complainant submitted an illegal, false criminal
report.4 Id. at 705. This is not the case before us. Subsequent California cases have held that the
Lefebvre holding is limited to instances where the falsity and illegality of a submitted report is not
controverted. See Kenne v. Stennis, 179 Cal. Rptr. 3d 198, 209-10 (Cal. Ct. App. 2014); Grammer,
2015 WL 390664, at *6. Accordingly, Lefebvre is not persuasive. Moreover, courts in other states
interpreting an anti-SLAPP statute similar to the Texas statute have held that statements reported
to law enforcement regarding incidences of perceived wrongdoing are protected. See, e.g.,
Comstock v. Aber, 151 Cal. Rptr. 3d 589, 598 (Cal. Ct. App. 2012) (“The law is that
communications to the police are within SLAPP.”); Hindu Temple & Cmty. Ctr. Of High
Desert, Inc. v. Raghunathan, 714 S.E.2d 628, 632 (Ga. Ct. App. 2011) (statements to police by
individuals alleging religious institution defrauded them of money protected by anti-SLAPP
statute); Benoit v. Frederickson, 908 N.E.2d 714, 718 (Mass. 2009) (reporting of a rape to police
initiates the filing of a criminal complaint and is protected by anti-SLAPP statute).

        4
         Appellees’ brief cites to Lefebvre v. Lefebvre, 996 P.2d 518 (Or. Ct. App. 2000). However, that is an
Oregon family law case involving factual sufficiency related to that state’s Family Abuse Prevention Act. We
assume Appellees meant to cite to Lefebvre v. Lefebvre, 131 Cal. Rptr. 3d 171 (Cal. Ct. App. 2011).


                                                      5
       Rose and Irving asserted four causes of action against Murphy and Maxwell: malicious
prosecution, defamation, false imprisonment, and negligence. Each of these causes of action, as
pleaded, is in direct response to Maxwell’s notifying the police after she believed Rose was
attempting to leave without paying for the gasoline. Therefore, their claims are based on, relate to, or
are in response to Maxwell’s exercise of her right to petition, and the TCPA applies. See TEX. CIV.
PRAC. & REM. CODE. ANN. § 27.005(b), (c).


                                         PRIMA FACIE CASE
       Because Murphy and Maxwell met their burden to show the TCPA applies, we now
determine whether Rose and Irving established by clear and specific evidence a prima facie case
for each essential element of any of their claims. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(b), (c).
Malicious Prosecution
       Rose and Irving first argue that Maxwell is liable for malicious prosecution because she
notified the police of an attempted theft.
       Texas has long recognized a cause of action for those subjected unjustifiably to criminal
prosecution, but has also made clear that the cause of action must sometimes yield to society’s
greater interest in encouraging citizens to report crimes, real or perceived. Kroger Tex. Ltd.
P’ship v. Suberu, 216 S.W.3d 788, 792 (Tex. 2006). The elements of malicious prosecution are
as follows: (1) commencement of a criminal prosecution against the plaintiff; (2) the defendant’s
initiation or procurement of that prosecution; (3) termination of the prosecution in the 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. Id. at 792 n. 3.
       The latter elements guard against a jury’s natural inclination to punish those who, through
error but not malevolence, commence criminal proceedings against a person who is ultimately
exonerated. Id. at 792. The probable cause element asks 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 initiated. Id. at 792-93.
       Rose and Irving assert there is no evidence that Maxwell had probable cause. They argue
that Maxwell’s reliance on the check verification system was misplaced and does not support
probable cause. They reason that the checks tendered were supported by sufficient funds and



                                                   6
were declined for some other reason. Rose and Irving contend Maxwell should have called the
verification service to attempt to resolve the problem. The essence of their argument is that
Maxwell should have conducted her own independent investigation to determine why Rose’s
checks were declined.
       It is well-settled that a private citizen has no duty to investigate a suspect’s alibi or
explanation before reporting a crime. Id. at 794. If the acts or omissions necessary to constitute
a crime reasonably appear to have been completed, a complainant’s failure to investigate does
not negate probable cause. Id. Rose, a stranger to Maxwell, pumped more than eighty dollars’
worth of gasoline to fill his vehicle and three or four containers. His credit card, personal check,
and business check were each declined. Rose then returned to his vehicle without explanation
and without offering another form of payment.
       Rose and Irving alleged no facts and presented no evidence showing that Maxwell did not
reasonably believe a crime was being committed. Each of them attached an affidavit to their
response to the motion to dismiss. In their affidavits, Rose and Irving state that Rose had enough
cash to pay for the gasoline. However, Rose’s affidavit does not state that he told Maxwell he
could pay with cash or that Maxwell was aware that he had cash to pay for the gasoline. Irving’s
affidavit does not contain any facts relative to any conversation Rose had with Maxwell or his
failed attempts to pay for the gasoline with his credit card or checks. Therefore, both affidavits
are insufficient to rebut the presumption that Maxwell acted with probable cause. Consequently,
Rose and Irving did not present clear and specific evidence to establish a prima facie case for
each essential element of malicious prosecution.
Defamation
       Rose and Irving contend further that Maxwell committed defamation when she accused
Rose of attempting theft. Specifically, they argue she committed defamation per se when she
reported the theft, requested the drive-off ticket, and signed the complaint.
       The elements of defamation include (1) the publication of a false statement of fact to a
third party; (2) that was defamatory concerning the plaintiff; (3) with the requisite degree of
fault; and (4) damages, in some cases. Lipsky, 460 S.W.3d at 593. The status of the person
allegedly defamed determines the requisite degree of fault. Id. A private individual need only
prove negligence. Id. A false statement that charges a person with a crime is defamatory per se.
Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984).



                                                 7
       To be actionable, the alleged defamatory statement must be a statement of fact rather than
opinion. Howell v. Hecht, 821 S.W.2d 627, 631 (Tex. App.—Dallas 1991, writ denied). An
expression of opinion is considered protected free speech and is not considered defamatory. See
Simmons v. Ware, 920 S.W.2d 438, 446 (Tex. App.—Amarillo 1996, no writ).                       Our
determination of whether Maxwell’s reporting of the incident to the police and the subsequent
filing of a complaint were statements of facts or expressions of opinions will be dispositive of
whether Rose and Irving have established a prima facie case of defamation. This is a question of
law to be determined by the court. Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989).
       An alleged defamatory statement must be examined within its context and in light of the
surrounding circumstances. Olivia v. Davilla, 373 S.W.3d 94, 103 (Tex. App.—San Antonio
2011, writ denied). This is because statements may be made defamatory by taking them out of
context. Id. From Maxwell’s perspective, she witnessed Rose, a stranger to her, pump more
than eighty dollars’ worth of gasoline into his vehicle and several containers. Rose attempted to
pay for the gasoline with his credit card, a personal check, and a business check. Each was
declined. She then watched Rose return to his vehicle without explanation and without offering
another form of payment. Under these circumstances, Maxwell stated she formed the belief that
Rose was going to his vehicle to leave without paying.
       Rose and Irving each testified in their affidavits that Rose could have paid for the
gasoline with cash if asked to do so. In addition, they allege the checks were declined for a
reason other than insufficient funds. However, this does not negate the fact that Rose’s credit
card and checks were declined and Rose returned to his vehicle without paying. Neither affidavit
alleges facts or presents evidence that Maxwell did not reasonably believe that Rose was
returning to his vehicle with the intent to leave without paying.
       Nothing before us supports a finding that Maxwell’s actions and statements to the police
were anything more than her opinion based on the events that occurred. When construed as a
whole in light of the surrounding circumstances, we conclude as a matter of law that Maxwell’s
statements constitutes an opinion and not a statement of fact that would be actionable by
defamation. As a result, Rose and Irving have not established a prima facie case of defamation.
False Imprisonment
       Rose and Irving next contend that Maxwell is liable for false imprisonment as a result of
her actions. They argue that despite Rose’s innocence, Maxwell directed that he be arrested.



                                                 8
       False imprisonment has three essential elements:        (1) willful detention; (2) without
consent, and (3) without authority. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506
(Tex. 2002). Liability for false imprisonment extends beyond those who willfully participate in
detaining the complaining party to those who request or direct the detention. Id. at 507.
       According to Rose and Irving, Rose attempted to pay for the gasoline with two sufficient
checks, which were declined by the check verification system. Following the declines, Maxwell
notified the police that Rose was attempting to steal gasoline and stood in front of Rose’s vehicle
until the police arrived. After their arrival, Maxwell pointed Rose out to them and signed a
complaint against him. Rose and Irving maintain that Maxwell withheld vital information from
the police—that the check decline problem could have been resolved by a telephone call.
       The code of criminal procedure grants any person the right to prevent the consequences
of theft. TEX. CODE CRIM. PROC. ANN. art. 18.16 (West 2005) Thus, a person has the right to
seize personal property that has been stolen and bring it and the person suspected of committing
the theft to a police officer. Id. To justify the seizure, there must be a reasonable ground to
believe the property is stolen. Id. A store employee who witnesses someone commit the offense
of theft of property from the store has the lawful right to arrest the offender. Simpson v. State,
815 S.W.2d 900, 902 (Tex. App.—Fort Worth 1991, no writ). Therefore, as long as she
reasonably believed a theft was being or attempting to be committed, Maxwell had the right to
detain Rose and deliver him to the police.       See TEX. CODE CRIM. PROC. ANN. art. 18.16;
Simpson, 815 S.W.2d at 903.
       Although Rose and Irving presented evidence that Rose could have paid for the gasoline
with cash, they did not present evidence that Maxwell had reason to know Rose had another
form of payment. They also allege that the checks were declined for a reason other than
insufficient funds. However, this does not negate the fact that the checks were declined and
Rose had not paid for the gasoline when he returned to his vehicle. Therefore, even if Maxwell
directed or requested that Rose be arrested, Rose and Irving did not bring forth any evidence that
Maxwell should have known Rose was not attempting to leave the gas station without paying for
the gasoline. As a result, Rose and Irving have not shown that Maxwell lacked the authority to
detain Rose, and they did not establish a prima facie case of false imprisonment.




                                                9
Negligence
       Rose and Irving allege Maxwell was negligent when she called the police. Specifically,
they argue that Maxwell breached her duty to Rose when she failed to investigate the reasons for
Rose’s checks being declined. They further urge that Maxwell breached her duty when she
failed to give Rose information from the check verification system that may have allowed him to
identify and correct the error.
       The common law doctrine of negligence consists of four essential elements: (1) a duty
owed by the defendant to the plaintiff; (2) breach of that duty; (3) proximate cause; and (4)
damages. Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013). The threshold inquiry
in a negligence case is duty. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987). A
plaintiff must prove both the existence and the violation of the duty owed to him to establish
liability in tort. Id. The existence of a duty is a question of law for the court to decide from the
facts surrounding the occurrence in question. Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 312
(Tex. 1983).
       Rose and Irving essentially claim that Maxwell owed them a negligence duty, in addition
to the duties owed under malicious prosecution and defamation, to not falsely accuse Rose of
committing a crime. Malicious prosecution actions are disfavored by the law because public
policy favors the exposure of crime. See ITT Consumer Fin. Corp. v. Tovar, 932 S.W.2d 147,
156 (Tex. App.—El Paso 1996, writ denied). To allow the existence of a duty not subject to the
element of maliciousness would convert the tort of malicious prosecution into negligent
prosecution. Smith v. Sneed, 938 S.W.2d 181, 184-85 (Tex. App.—Austin 1997, no writ). This
would discourage citizen participation in criminal investigations and prosecutions and threaten
the balance between protecting against wrongful prosecution and encouraging the reporting of a
crime. Id. at 184. Consequently, a plaintiff cannot avoid the strict elements of a malicious
prosecution action by labeling it negligence. ITT, 932 S.W.2d at 155-56; see Wal-Mart Stores,
Inc. v. Medina, 814 S.W.2d 71, 73-74 (Tex. App.—Corpus Christi 1991, writ denied) (no
recovery in tort for damage caused by an incorrect, but not malicious, prosecution).
       No negligence duty exists not to falsely accuse someone of criminal wrongdoing. Sneed,
938 S.W.2d at 185; see ITT, 932 S.W.2d at 155-56. Therefore, Rose and Irving did not establish
a prima facie case of negligence.




                                                10
Holding
         Because Rose and Irving have failed to establish a prima facie case for any of their causes
of action, they failed to carry their burden under the TCPA. Therefore, the trial court erred in
denying Murphy and Maxwell’s motion to dismiss. We sustain Murphy and Maxwell’s sole
issue.


                                                   DISPOSITION
         Having sustained Murphy and Maxwell’s sole issue, we reverse the trial court’s order
denying Murphy and Maxwell’s motion to dismiss, render judgment dismissing Rose and
Irving’s claims against them, and remand the case for a determination of attorney’s fees and
costs. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009 (West 2015) (award of attorney’s fees
and costs mandatory when an action is dismissed under TCPA).

                                                                 GREG NEELEY
                                                                    Justice


Opinion delivered October 5, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)



                                                         11
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                         OCTOBER 5, 2016


                                        NO. 12-15-00197-CV


            MURPHY USA, INC. AND MARY FRANCES MAXWELL, MGR.,
                                 Appellants
                                     V.
                  FREDDIE J. ROSE AND LAUREEN IRVING,
                                  Appellees


                               Appeal from the 123rd District Court
                       of Shelby County, Texas (Tr.Ct.No. 15-CV-33018)

                   THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the order of the court below, it is ORDERED, ADJUDGED and DECREED by this court that
the order be reversed and the cause remanded to the trial court for further proceedings for a
determination of attorney’s fees and costs; and that this decision be certified to the court below
for observance.
                   Greg Neeley, Justice
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
