REVERSE and RENDER; and Opinion Filed November 19, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-13-00034-CV

                   JAMES LERMON, Appellant/Cross-Appellee
                                   V.
            MINYARD FOOD STORES, INC., AND RODNEY LEE, Appellees

                      On Appeal from the County Court at Law No. 1
                                  Dallas County, Texas
                          Trial Court Cause No. CC-10-02955-A

                            MEMORANDUM OPINION
                        Before Justices O’Neill, Lang-Miers, and Evans
                                  Opinion by Justice O’Neill
       James Lermon sued Minyard Food Stores and Rodney Lee (collectively Minyard) for

malicious prosecution, negligence, and gross negligence. A jury found in Lermon’s favor on all

claims and awarded Lermon $830,000 in actual damages and $115,000 in punitive damages on

his malicious prosecution claim and $175,000 in actual damages and $1 million in punitive

damages on his negligence and gross negligence claims. The trial court rendered judgment on

Lermon’s malicious prosecution claim.

       In his appeal, Lermon contends the trial court erred in failing to enter judgment on the

jury findings affording him the greatest recovery. In its cross-appeal, Minyard contends the

evidence is both legally and factually insufficient to support Lermon’s claims for malicious

prosecution, negligence, and gross negligence. It also challenges the jury’s award of actual and

punitive damages. We conclude the evidence is legally insufficient to support the jury’s verdict
on Lermon’s claims. Accordingly, we reverse the trial court’s judgment and render judgment

that Lermon take nothing.

                                               Background

       At 4:11 a.m. on September 4, 2006, $76,000 was stolen from the safe of a Carnival

grocery store owned by Minyard. Surveillance videos taken at the store showed the thief

entering and exiting the store as well as the actual theft. The thief, however, used an umbrella to

shield his face from the camera’s view. The thief had a key to the store and knew the store’s

alarm code and the combination of the safe. The thief was also able to quickly locate the alarm

and the safe and then retrieve the cash deposit, suggesting the theft was an inside job. In the

months prior to the theft, two similar thefts occurred at other stores owned by Minyard.

       Minyard immediately reported the offense to Plano police.           Detective Jeff Dalton

investigated. Minyard also conducted its own internal investigation, led by its vice-president of

loss prevention, Rodney Lee, who was assisted by loss prevention investigators Susan Caldwell

and Bobby LaJuett. During the course of Minyard’s investigation, Lee provided information to

Detective Dalton and ultimately identified the thief as Lermon, who had recently retired from

Minyard. A grand jury later indicted Lermon for the offense and the Collin County District

Attorney’s Office tried him for the offense. Lermon’s first trial ended in a mistrial. The DA

tried Lermon a second time, resulting in his acquittal.      Lermon then brought this suit for

malicious prosecution, negligence, and gross negligence against Minyard and Lee asserting they

were responsible for the damages he suffered from the criminal prosecution.

       To show Minyard and Lee maliciously prosecuted him, Lermon relied on certain

information Lee gave to Detective Dalton, which Lermon asserts Lee knew was false. In

particular, Lermon relies on a September 12, 2006 “Voluntary Statement” and a September 15,

2006 memo addressed to Detective Dalton.

                                               –2–
          In the September 12, 2006, “Voluntary Statement,” Lee stated:

                       Following an investigation of a stolen cash deposit at our Carnival
               Foodstore #129 on 9/4/06 we determined the suspect to be an ex-employee James
               Lermon. After reviewing video and still shots and visiting with Mr. Lermon on
               9/8/06 it is clear he is the person in the pictures. (Additionally, Mr. Lermon
               misrepresented several aspects of information pertaining to his returning store
               keys upon his retirement 8/3/06) Mr. Lermon worked at this location as a “fill-in”
               Asst. Mgr. in 6/06 and had previously worked as an Asst. Mgr. prior as well. Mr.
               Lermon would have had the safe combination and alarm codes when he worked at
               this store in June. After reviewing all evidence/information I am convinced this is
               Mr. Lermon who committed this crime.


          In the September 15, 2006 memo, Lee provided Detective Dalton a “Case Narrative” of

the theft. In it, he included further details of his investigation. Lee stated that immediately after

the theft, he and loss prevention investigators Caldwell and LaJuett were called to the store. He

said after reviewing the surveillance video, the suspect immediately appeared “familiar” to them,

but it was difficult to identify the suspect from the video. He said they compiled a list of all

management that had access to the store’s alarm code since it changed in April 2006, and then

excluded all non-white individuals because the suspect in the video was clearly an older white

male. They then requested a Fort Worth police officer to “clean-up” the video and provide still

shots of the thief. They were able to obtain clearer images, but Minyard sent the hard drive to a

private company in an effort to obtain even clearer shots. 1

          Lee further stated that on September 6, 2006 (two days after the theft), the Carnival store

received a set of manager’s keys for that store in an interoffice envelope. The handwriting on the

envelope was identified as Lermon’s. Lee stated Lermon had retired from Minyard on August 3,

2006, but would have had access to both the store’s safe combination and the security alarm code

because he had worked at the store since the alarm code changed.



   1
       The company was unable to obtain better images.



                                                         –3–
           Lee stated he went to Lermon’s home and asked him about the keys. Lermon confirmed

the handwriting on the interoffice envelope was his. Lermon told Lee he had returned the keys

to a Sack ‘N Save (a Minyard owned store) on September 2, 2006 (two days prior to the theft)

when he went to that store to pick up a prescription. Lee said he confirmed Lermon had in fact

returned the keys on September 2, giving them to a cashier. However, Lermon did not pick up a

prescription on that date and the last time he had picked up a prescription from that location was

August 19, 2006.

           Lee also stated that after he spoke to Lermon, he “took note of his shaggy white beard”

and “longer than normal” white hair, which “confirmed what we saw in the video.” 2 Lee

concluded his memo by stating all known evidence, employee statements, photographs, and

videos had been turned over to Detective Dalton.

           About a month after Lee’s memo and voluntary statement, Detective Dalton prepared a

probable cause affidavit requesting a warrant for Lermon’s arrest. In his affidavit, Dalton states

that he “has good reason to believe and does believe” that Lermon committed the theft. With

respect to the thief’s identity, Dalton stated James Luna, the manager that opened the store the

morning after the theft, told him that he had watched the surveillance video with loss prevention

investigators and that the thief “looked like” Lermon to him. Dalton also said Lee gave him a

copy of the store’s surveillance video. Detective Dalton watched the video and said it showed a

white male that appeared to have white hair and a beard.

           Detective Dalton said that although the man used an umbrella to shield his identity, still

pictures obtained from the video captured the back and the side of the thief’s head. Finally,

Detective Dalton stated that Lee had told him that he had known Lermon for twenty years, Lee



   2
       Lee had previously told Caldwell that it looked like the thief might be wearing a hair net and beard net.



                                                                       –4–
reviewed the surveillance video and still photographs taken from the video, and the man on the

video was Lermon.

        A magistrate issued a warrant for Lermon’s arrest based on Detective Dalton’s affidavit,

and Dalton filed the case with the DA’s office. When he did so, Detective Dalton gave the DA’s

office his “summary” of the charges. In the summary, Dalton states, among other things, that

Lee “believed” Lermon had used an “old key” that he had not returned upon retirement to unlock

the door of the store.

       William Coleman Sylvan, the lead prosecutor in Lermon’s second trial, testified for

Minyard.    According to Sylvan, he had a “good” case against Lermon and it “was a case [he]

believed in and believed needed to be prosecuted.” Sylvan also testified that at no time during

his prosecution of the case did he believe Minyard was acting maliciously toward Lermon, nor

did he believe Minyard was trying to cause Lermon to be prosecuted. Further, Sylvan testified

that before a prosecutor takes a case to trial, he has to evaluate it on his own to determine

whether it has merit. He said if he had the sense that Minyard was trying to falsely prosecute

Lermon, he would not have gone forward with the case.

       On cross-examination, Sylvan said he knew a “significant portion” of information

obtained by Detective Dalton about the theft came from Lee. Sylvan also acknowledged that the

statement in Detective Dalton’s summary − that Lee believed Lermon used an old key to enter

the store that he failed to return upon retirement − would have been a “factor” in deciding

whether to prosecute. However, Sylvan also testified that Lee had told him before Lermon’s

second trial that Lermon had returned the keys before the theft. Sylvan could not remember

exactly what Lee said about the timing of the key’s return, but he knew the keys had been

returned. Sylvan also testified he personally reviewed the videotape of the crime. On re-direct,




                                              –5–
Sylvan testified he still would have felt he had a good case even if he was not presented

information about the key.

       Because the issues raised in Minyard’s cross-appeal are dispositive, we address them at

the outset. In its first issue, Minyard asserts there is no evidence to support Lermon’s claim for

malicious prosecution because the decision to prosecute Lermon was made by law enforcement

officials and Lermon did not otherwise show Minyard or Lee initiated or procured the

prosecution. We agree.

                                         Malicious Prosecution

       The tort of malicious prosecution creates a unique tension between important competing

societal concerns. See Browning-Ferris Indus. v. Lieck, 881 S.W.2d 288, 290 (Tex. 1994).

Specifically, a plaintiff’s right to recover damages for being subjected to unjustified criminal

proceedings 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).

Thus, a plaintiff must prove not only that the defendant commenced criminal proceedings against

him and he is innocent of the crime charged, but also that the defendant lacked probable cause

and harbored malice toward him.       Id. These 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.

       To prove causation, a plaintiff must specifically show the defendant “initiated or

procured” the criminal prosecution. See Lieck, 881 S.W.2d at 292–93; Dangerfield v. Ormsby,

264 S.W.3d 904, 910 (Tex. App.—Fort Worth 2008, no pet.).             A defendant “initiates” a

prosecution when it files “formal charges” against the plaintiff. See Lieck, 881 S.W.2d at 293;

Dangerfield, 264 S.W.3d at 910. A person “procures” a criminal prosecution “if his actions are

enough to cause the prosecution, and but for his actions the prosecution would not have

                                               –6–
occurred.” Lieck, 881 S.W.2d at 292. Procurement generally requires that a person’s actions be

both a “necessary and a sufficient cause of the criminal prosecution.” Id.

       Generally, a person cannot be held liable for malicious prosecution if the decision

whether to prosecute is left to the discretion of law enforcement officials. King v. Graham, 126

S.W.3d 75, 76 (Tex. 2003) (per curiam). An exception exists if the person provides information

to those officials which he knows is false. Id. In such cases, the plaintiff must further prove the

false information caused the criminal prosecution by proving the decision to prosecute would not

have been made but for the false information supplied by the defendant. Id.

       Actions for malicious prosecution are not favored in the law and therefore we strictly

adhere to the tort’s carefully defined elements. Luce v. Interstate Adjusters, Inc., 26 S.W.3d 561,

566 (Tex. App.—Dallas 2000, no pet.) 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. Lieck, 881 S.W.2d at 291.

                                           Standard of Review

       An appellant attacking the legal sufficiency of an adverse finding on an issue on which it

did not have the burden of proof must demonstrate there is no evidence to support the adverse

finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Affordable Power, L.P. v.

Buckeye Ventures, Inc., 347 S.W.3d 825, 830 (Tex. App.—Dallas 2011, no pet.).               A “no

evidence” point must be sustained when the record discloses (1) a complete absence of evidence

of a vital fact, (2) the court is barred by the rules of law or evidence from giving weight to the

only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no

more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital

fact. See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).




                                               –7–
       When examining a legal sufficiency challenge, we review the evidence in the light most

favorable to the challenged finding and indulge every reasonable inference that would support it.

Id. at 822. Evidence is legally sufficient if it rises to a level that would enable a reasonable and

fair-minded jury to make the finding. Id. at 810. In making this determination, evidence cannot

be taken out of context in a way that makes it seem to support a verdict when in fact it never did.

Id. at 812. We do not consider the evidence “in isolated bits and pieces divorced from its

surroundings; it must be viewed in its proper context with other evidence.” AutoZone, Inc. v.

Reyes, 272 S.W.3d 588, 592 (Tex. 2008).

       Evidence that is “so weak as to do no more than create a mere surmise or suspicion” of a

fact is not legally sufficient evidence that the fact exists. Kroger Tex. Ltd. P’ship, 216 S.W.3d at

793 (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)). If a claim is

supported by only meager circumstantial evidence, the evidence does not rise above a scintilla if

jurors would have to guess as to whether a vital fact exists. City of Keller, 168 S.W.3d at 813.

When circumstances are equally consistent with either of two facts, neither fact can be inferred.

Id. Additionally, an inference stacked only on other inferences is not legally sufficient evidence.

See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003) (per curiam); Sears & Roebuck

Co. v. AIG Annuity Ins. Co., 270 S.W.3d 632, 637 (Tex. App.—Dallas 2008, pet. denied).

                                               Application

       In this issue, Minyard asserts Lermon failed to show either it or Lee initiated or procured

the prosecution. Lermon responds the evidence is sufficient to show Lee both initiated and

procured the prosecution. Lermon first asserts Lee “initiated” the prosecution when he gave

Detective Dalton a “Voluntary Statement” identifying Lermon as the thief with the “hope” that

Detective Dalton would move forward to have Lermon arrested and prosecuted. To show such a

statement can constitute a “formal charge,” Lermon relies on this Court’s opinion in Kroger v.

                                                –8–
Suberu, 113 S.W.3d 588, 597 (Tex. App.—Dallas 2003), rev’d on other grounds, 216 S.W.3d

788 (Tex. 2006).

           In Kroger, a Kroger employee stopped the plaintiff for shoplifting. Id. at 594−95. The

plaintiff was taken to an office and Kroger contacted police. Id. at 595. When police arrived,

the plaintiff was told she had been accused of shoplifting and she was immediately arrested and

taken to jail. Id. To show Kroger “initiated” the prosecution, the plaintiff relied on evidence that

the Kroger store manager had told police on their arrival that Kroger “wanted to prosecute” and

that the manager signed “the report or whatever they had [him] sign” on behalf of Kroger. Id. at

597. We concluded the jury could have determined from that evidence that Kroger had “filed a

formal charge” against the plaintiff. 3 Id.

          In this case, the record before us contains the “Voluntary Statement” that Lermon asserts

was used to initiate his prosecution. The witness statement is not a “formal charge” nor did it

actually operate to initiate the criminal prosecution. Instead, the record shows Detective Dalton

initiated the prosecution when he “formally charged” Lermon by presenting his own probable

cause affidavit to a magistrate.                     See Restatement (Second) of Torts § 653 cmt. c (1977)

(“Criminal proceedings are initiated by making a charge before a public official or body in such

form as to require the official or body to determine whether process shall or shall not be issued

against the accused.”); see also Lieck, 881 S.W.2d at 292-93.                                        In reviewing a sufficiency

complaint, we cannot disregard undisputed evidence that supports only one conclusion. See City

of Keller, 168 S.W.3d at 814.

          Minyard next asserts there is no evidence that it or Lee “procured” Lermon’s prosecution

because the undisputed evidence shows the decisions to arrest and prosecute Lermon were made


     3
       We further concluded that, even if the plaintiff failed to show Kroger initiated the prosecution, there was sufficient evidence that it
procured the prosecution. See Kroger, 113 S.W.3d at 597.



                                                                    –9–
by law enforcement officials. King, 126 S.W.3d at 76. Here, unlike many malicious prosecution

cases, it is undisputed Minyard was the victim of a felony theft. Detective Dalton investigated

that theft for Plano police, and ultimately filed an affidavit in which he swore that he believed

and had good reason to believe that Lermon committed the crime. See TEX. CODE CRIM. PRO.

2.13(a)(b)(1) (West 2005) (peace officers have a duty to preserve the peace and to prevent and

suppress crime). The DA’s office also investigated the offense and twice made the decision to

pursue criminal charges against Lermon. See TEX. CODE CRIM. PRO. 2.01 (West 2005) (the

primary duty of prosecuting attorneys is not to convict, but to see that justice is done).

           Lermon nevertheless asserts he presented sufficient evidence that Dalton and the

prosecutors based their decisions to prosecute on false information provided by Lee. First, he

asserts their decisions were based on Lee’s false identification of Lermon as the thief. An honest

mistake in identifying a suspect is insufficient to hold the reporting party responsible in damages.

Cf. Schnaufer v. Price, 124 S.W.2d 940, 942 (Tex. Civ. App.—Waco 1939, writ ref’d) (false

imprisonment case); see also McHenry v. Tom Thumb Page Drug Stores, 696 S.W.2d 664, 665

(Tex. App.—Dallas 1985, writ dism’d); Yianitisas v. Mercantile Nat’l Bank at Dallas, 410

S.W.2d 848, 851 (Tex. Civ. App.—Dallas 1967, no writ). But a person may be held liable if he

willfully identifies the wrong person as the criminal for the purpose of having him arrested and

prosecuted. See Schnaufer, 124 S.W.2d at 942. According to Lermon, Lee did just that, by

identifying him as the thief, knowing he was innocent. 4

           To show Lee identified Lermon knowing he was innocent, Lermon asserts the

surveillance video showing the thief − when compared to photographs taken of him at the same

location – establishes Lee could not possibly have honestly believed Lermon was the thief.

     4
         He asserts Lee’s motive for doing so was to “save his job” by solving the three thefts that occurred “on his watch” and to try to obtain
restitution for Minyard from Lermon. The only evidence he directs us to support these motives is that the thefts occurred and that Lee made
inquiries to prosecutors about the possibility of obtaining restitution for Minyard. This evidence is entirely, if not more, consistent with an honest
belief that Lermon was the thief.



                                                                       –10–
Specifically, he asserts the thief did not “look like” him because he wears glasses and is tall, but

the thief was not wearing glasses and was “a full head shorter.”

           After reviewing the video and the photographs, we cannot agree they constitute any

evidence that Lee knew it was not Lermon on the video. First, evidence the thief was not

wearing glasses does not establish the thief did not “look like” Lermon or otherwise constitute

any evidence that Lee must have known the person on the tape was not Lermon. 5 Second, the

surveillance video and photographic evidence do not depict a height discrepancy so dramatic that

would allow a jury to reasonably find (1) Lee would have been able to perceive the discrepancy

from reviewing the video, (2) Lee did in fact perceive the discrepancy, and (3) cognizant of the

discrepancy, Lee nevertheless identified Lermon to Detective Dalton anyway. Indeed, even

Lermon’s own brother-in-law, when asked to identify the differences in appearance between the

thief and Lermon, responded “maybe some height, maybe some weight.” Lermon himself −

knowing Lee had identified him − testified that that he was not aware of any “false” information

Lee gave authorities. Further, Detective Dalton and the prosecutors had the video before them

and could determine for themselves whether Lermon’s appearance was consistent with the

thief’s.

           Lermon also contends Lee’s identification constituted “false information” because Lee

claimed to be certain. Lermon asserts the jury could have inferred Lee was not merely mistaken,

but was lying, because the tape showed any certainty would have been impossible. Even if we

could agree that a witness’s level of certainty in identifying a suspect could constitute false

“information,” the record shows Lee told Detective Dalton he could not make a positive

identification on his initial review of the videotape. Lee’s subsequent positive identification was


     5
        Not only can glasses be easily taken on and off, a person’s need for glasses can change over time. Indeed, by the time of trial, Lermon
himself no longer required glasses, having had cataract surgery.



                                                                   –11–
based on what he had initially perceived about the thief’s stature, walk, and gait, in addition to

his later review of still shots and his discovery that Lermon had grown his hair and a beard since

his retirement.           Further, Detective Dalton and prosecutors could determine for themselves

whether they believed a positive identification was possible from the video. We conclude

evidence of Lee’s positive identification is legally insufficient to show Dalton or prosecutors

based their discretionary decisions to prosecute Lermon on information Lee provided and that

Lee knew was false.

           Lermon also asserts Lee gave Detective Dalton false information when he stated in his

“Voluntary Statement” that Lermon misrepresented “several aspects” about his return of the keys

to Minyard. To show this statement was both false and Lee knew it was false, Lermon relies on

Lee’s testimony at trial that the only misrepresentation Lee could remember was Lermon’s claim

that he had returned the keys to the store on the same date he picked up a prescription.

According to Lermon, because Lee could remember only a single misrepresentation, his

testimony shows his prior claim that there were “several” was knowingly false.                                                  We cannot

agree Lee’s testimony supports such an inference. 6 Moreover, Lermon has wholly failed to show

that but for Lee’s vague allegation regarding Lermon’s return of the keys, either Detective

Dalton or the district attorney would not have made the decision to prosecute Lermon. King, 126

S.W.3d at 78−79.

           Lermon also contends he presented evidence Lee gave Detective Dalton information he

knew was false when Lee told Detective Dalton Lermon had a key to the store at the time of the

theft, when Lee knew Lermon had returned the key. To show Lee gave Dalton this false

     6
        We note the record shows that Lee obtained his information regarding Lermon’s return of the keys from Lermon himself and from the
cashier, April Beard. Lermon also had failing memories concerning his conversation with Lee about the keys and could not remember telling Lee
he returned the keys on a specific date, but vaguely remembered saying something about returning the keys at the same time he picked up a
prescription from the Sack ‘N Save. Lermon’s brother-in-law, who worked at the same Sack ‘N Save, testified Beard told him she had
mistakenly told Lee that Lermon returned the keys on September 2, 2006 instead of August 19, 2006. Although both dates were prior to the theft,
the focus on the date was apparently to show Lermon returned the keys at his first convenience after he retired and to show it was not suspicious
that the keys arrived at the store two days after the theft.



                                                                    –12–
information, Lermon relies on the summary Detective Dalton gave to the district attorney in

which Dalton states that Lee believed Lermon used an “old key” to unlock the door of the

business, which he did not return upon retiring. But in Lee’s prior September 15, 2006 memo to

Detective Dalton, Lee clearly informed Dalton that Lermon returned his keys to the store before

the theft. Further, Lermon has again failed to show that but for this information, either Detective

Dalton or the district attorney would not have made the decision to prosecute Lermon. King, 126

S.W.3d at 78−79 (testimony from investigative officer that false information “could possibly”

have influenced his investigation is insufficient to show the decision to prosecute would not have

been made but for the false information). Indeed, Sylvan testified he knew before Lermon’s

second trial that Lermon had returned the keys before the theft. Yet, he proceeded with the

prosecution anyway.

       Finally, Lermon contends there is evidence Lee procured the prosecution by “failing to

disclose” material facts. To support his contention that a failure to disclose information can

support a malicious prosecution claim, Lermon relies on dicta in the Supreme Court’s opinion in

Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 519 (Tex. 1997). In that case, the Supreme

Court stated “failing to fully and fairly disclose all material information and knowingly

providing false information to the prosecutor are relevant to the malice and causation elements of

a malicious prosecution claim but have no bearing on probable cause.” Richey, 952 S.W.2d at

519 (emphasis added); but see Wal-Mart Stores, Inc. v. Rodriquez, 92 S.W.3d 502, 510 (Tex.

2002) (evidence of a failure to disclose cannot support claim for false imprisonment because a

plaintiff must prove defendant knowingly provided false information).

       Assuming a “knowing failure” to disclose could support a claim for malicious

prosecution, the jury in this case was charged, without objection, that it was required to find Lee

provided information that he knew was false, not that he failed to disclose information. We must

                                              –13–
therefore measure the sufficiency of the evidence by the charge as given. St. Joseph Hosp. v.

Wolff, 94 S.W.3d 513, 530 (Tex. 2002); Noell v. City of Carrollton, 431 S.W.3d 682, 709 (Tex.

App.—Dallas 2014, pet. ref’d). As a consequence, evidence Lee failed to disclose information

to Dalton cannot support the jury’s verdict. See Wal-Mart Stores, Inc., 92 S.W.3d at 510 (failing

to make a full and fair disclosure is not the equivalent of knowingly providing false information).

        Moreover, Lermon failed to show Lee knowingly failed to disclose material information

or that Dalton would not have made the decision to prosecute had he been aware of any

information that was not actually disclosed. According to Lermon, Lee failed to disclose that:

(1) Lermon was “much taller” than the perpetrator and wore glasses, (2) Lee had initially

believed two other employees had provided the store keys and codes to the thief, (3) Lee did not

question Lermon about the theft or determine whether he had an alibi, (4) the last time Lermon

had worked at the store prior to June 2006 was over ten years before the theft, (5) Minyard did

not keep track of who had access to keys to the store, and (6) Lermon returned the keys to the

store before the theft.

        To show this information was not disclosed in the first instance, Lermon appears to rely

on Lee’s failure to include the information in his Voluntary Statement and the memo containing

Lee’s “Case Narrative” that followed. We first note that although Lermon’s claim required him

to show the reason Dalton decided to prosecute and Dalton investigated the offense for two

months, Lermon did not call Dalton as a witness or otherwise attempt to show what information

Dalton had acquired before he obtained the warrant. The record does show however that Dalton

was given photographs of Lermon wearing glasses. The record also shows that Lee told Dalton

two other employees were suspected in the theft. Lee also told Dalton that Lermon had returned

the keys to the store before the theft. Even if we could conclude Lermon presented sufficient




                                               –14–
proof that Lee failed to disclose information, we cannot agree the evidence supports a reasonable

inference that Dalton would not have prosecuted Lermon but for Lee’s failure to disclose.

          We conclude there is no evidence to show Minyard or Lee initiated or procured Lermon’s

criminal prosecution and therefore there is no evidence to support Lermon’s malicious

prosecution claim.

                                    Negligent Hiring, Retention, Training, and Supervision

          Minyard also asserts the evidence is legally insufficient to support Lermon’s direct

negligence claim against it. Lermon sued Minyard asserting it was negligent in hiring, retaining,

training, and supervising Lee. To support these claims, Lermon relied on evidence that Minyard

did not adequately train Lee to perform the duties he was performing when he investigated the

theft and did not adequately supervise Lee during his investigation. 7

          To sustain a cause of action for negligence it is necessary to produce evidence of a duty, a

breach of that duty, proximate cause and damages. Colvin v. Red Steel Co., 682 S.W.2d 243,

245 (Tex. 1984).             Here, the duty Minyard owed Lermon was to act as a reasonably prudent

grocery store chain would act under the same or similar circumstances regarding any reasonably

foreseeable risk. See id; see also Rosell v. Central W. Motor Stages, Inc., 89 S.W.3d 643, 652

(Tex. App.—Dallas 2002, pet. denied); TXI Transp. Co. v. Hughes, 224 S.W.3d 870, 902 (Tex.

App.—Fort Worth 2007), rev’d on other grounds, 306 S.W.3d 230 (Tex. 2010).




     7
        The Supreme Court has yet to rule definitively on the “existence, elements, and scope of [causes of action for negligent retention and
supervision] and related torts such as negligent training and hiring.” See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010). The
Supreme Court has, however, indicated that to recover, a plaintiff must show “more than just negligent hiring practices;” he must also present
evidence of harm caused by the employee’s misconduct.” Wansey v. Hole, 379 S.W.3d 246, 247 (Tex. 2012). In doing so, it cited opinions from
our sister courts holding a plaintiff must prove, in addition to the employer’s negligence, an actionable tort by the employee. See id. (citing
Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 384 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Gonzales v. Willis, 995 S.W.2d
729, 739 (Tex. App.—San Antonio 1999, no pet.), overruled in part on other grounds by Hoffmann–La Roche Inc. v. Zeltwanger, 144 S.W.3d
438, 447–48 (Tex. 2004); Mackey v. U.P. Enters., Inc., 935 S.W.2d 446, 459 (Tex. App.—Tyler 1996, no writ). Here, the jury charge did not
require the jury to first find Lee committed a tort before finding Minyard negligent. Although Minyard complains the trial court erred in
submitting a separate “damages” question based on Minyard’s negligence, it does not complain that the charge did not predicate the question
regarding Minyard’s negligence on a finding of Lee’s tortious conduct. Because we conclude there is no evidence of negligence, we need not
consider Minyard’s complaint regarding the separate damages question.



                                                                   –15–
       Negligent hiring, retention, supervision, and training claims focus on the employer’s own

negligence, not the negligence of the employee. See Leake v. Half Price Books, Records,

Magazines, Inc., 918 S.W.2d 559, 563 (Tex. App.—Dallas 1996, no writ). An employer can be

liable for negligence if its failure to use due care in hiring, retaining, training, or supervising an

employee creates an unreasonable risk of harm to others. See Leake, 918 S.W.2d at 563;

Martinez v. Hays Const., Inc., 355 S.W.3d 170, 180 (Tex. App.—Houston [1st Dist.] 2011, no

pet.). To support a claim for negligent hiring or retention, a plaintiff must prove the employer

hired or retained an incompetent or unfit employee whom it knows, or by the exercise of

reasonable care should have known, was incompetent or unfit. Ogg v Dillard’s, Inc., 239

S.W.3d 409, 420 (Tex. App.—Dallas 2007, pet. denied). To support a claim for negligent

training and supervision, a plaintiff must prove that a reasonably prudent employer would have

provided training and supervision beyond that which was given and the failure to do so caused

his injuries. See Patino v. Complete Tire, Inc., 158 S.W.3d 655, 661 (Tex. App.—Dallas 2005,

pet. denied); Dangerfield, 264 S.W.3d at 912; see Allsup’s Convenience Stores, Inc. v. Warren,

934 S.W.2d 433, 437 (Tex. App.—Amarillo 1996, writ denied).

         On appeal, Minyard asserts Lermon failed to present any evidence of a standard of care

or that it breached any such standard of care. Minyard specifically asserts Lermon failed to show

it did not act as a reasonably prudent grocery store chain would have under the same or similar

circumstances. Lermon responds he was not required to present any expert testimony or “other

testimony” to establish a standard of care because the jury was charged on the “ordinary care”

standard.

       Regardless of whether Lermon had to present express testimony on the standard of care,

Lermon had the burden to present sufficient evidence that Minyard did not use the degree of care

a grocery store chain owner of “ordinary prudence” would use “under the same or similar

                                                –16–
circumstances.” Cf. Jackson v. Axelrad, 221 S.W.3d 650, 656 (Tex. 2007) (ordinary care

standard requires jury to consider defendant’s circumstances and superior skills); Townsel v.

Dadash, Inc., No. 05-10-01482-CV, 2012 WL 1403246, at * 3 (Tex. App.—Dallas April 24,

2012, no pet.); TXI Transp. Co., 224 S.W.3d at 902. We conclude he failed to do so.

       The only evidence in the record concerning Lee’s qualifications and training came from

Lee. He testified that he started working for Minyard in 1975 packing groceries and soon began

doing other jobs inside the store. Later, he worked in the corporate offices in human resources.

In 1987 or 1988, Lee was transferred to loss prevention. Lee had no “formal education” in law

enforcement and was never given any “formal training” in investigation techniques. Lee said he

was, however, given on-the-job training in loss prevention. Specifically, when Lee was first

transferred to loss prevention, he began by sitting through investigations with a loss prevention

manager. Lee later conducted his own investigations under the supervision of a manager. After

four or five years, Lee became a loss prevention manager himself. Lee was ultimately promoted

to vice-president of loss prevention, the position he held when he made the accusations against

Lermon.

       At that time, Lee’s supervisor was Alan Vaughn, Minyard’s senior vice-president of risk

management.    Lee said Vaughn did not conduct any interviews, take any photographs, or

otherwise have any “hands-on” involvement in the investigation of the theft. Lee testified that

Vaughn was, however, involved on a day-to-day basis overseeing what Lee was doing. Lee did

not, however, provide any written reports to higher management during his investigation.

        According to Lermon, the jury could have found Minyard did not exercise ordinary care

in hiring, retaining, training, or supervising Lee because Lee had no “formal” training or

education in “law enforcement” or “investigation techniques.” Lermon’s claim is premised on

his contention that some specialized training or skill was necessary to give Lee the expertise

                                              –17–
necessary to perform his job duties. Lermon, however, has failed to show what kind of “formal”

training a business exercising ordinary prudence would provide its loss prevention investigators.

For example, there is no evidence showing what kind of “formal” training is available or

commonly used in the industry or to show how any such “formal” training would have been

superior to on-the-job training or would have reduced the risk of harm to third parties.

       We also conclude Lermon has failed to present any evidence that Minyard failed to use

ordinary care in supervising Lee. According to Lermon, the jury could have found Minyard was

negligent because Lee’s supervisor did not have any “hands on” involvement in the

investigation, and Lee did not give written reports to management during the investigation. Lee,

however, had nearly twenty years of experience in loss-prevention and was himself a vice-

president and supervisor. Lermon has directed us to no evidence showing Minyard had any prior

notice that Lee was unfit or incompetent to perform his job duties or should have been more

closely supervised. We conclude Lermon failed to present any evidence a reasonably prudent

employer would have provided training or supervision to Lee beyond that which Minyard

provided. See Patino, 158 S.W.3d at 661; Dangerfield, 264 S.W.3d 91. We further conclude

Lermon failed to present any evidence that a reasonably prudent employer would have been

aware Lee was unfit or unqualified to perform his job duties. Thus, Lermon has failed to show

Minyard was negligent. As a consequence, he has also failed to show gross negligence. See

Seaway Prods. Pipeline Co. v. Hanley, 153 S.W.3d 643, 659 (Tex. App.—Fort Worth 2004, no

pet.); Ballesteros v. Jones, 985 S.W.2d 485, 500 (Tex. App.—San Antonio 1998, pet. denied).

       Having concluded there is no evidence to support Lermon’s claims, we do not reach the

issues presented in Lermon’s appeal, all of which concern damages. Minyard has, however,

presented an issue requesting this Court to assess sanctions against Lermon under Texas Rule of

Appellate Procedure 45. It asserts the issues raised in Lermon’s appeal were frivolous and that

                                               –18–
Lermon could not have believed those issues would result in a rendition of a greater award of

punitive damages in his favor. It further complains that Lermon’s purpose in bringing the

appeal, which he filed before the trial court had ruled on Minyard’s motion for new trial and well

before the notice of appeal was due, was to obtain the strategic advantage of being designated as

the “appellant.”

          Under rule 45, after considering the record, briefs, or other papers filed in this Court, we

may award a prevailing party damages if we objectively determine that an appeal is frivolous.

TEX. R. APP. P. 45; Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.—Houston [1st Dist.] 2001,

pet. denied). An appeal is frivolous when the record, viewed from the perspective of the

advocate, does not provide reasonable grounds for the advocate to believe that the case could be

reversed. Smith, 51 S.W.3d at 381. The decision to grant appellate sanctions is a matter of

discretion that an appellate court exercises with prudence and caution and only after careful

deliberation. Id. Because our disposition of this case makes it unnecessary to review the merits

of Lermon’s appeal or consider the trial court’s award of punitive damages, we will not consider

whether the appeal was frivolous solely for the purposes of assessing sanctions.

          Because Lermon failed to present legally sufficient evidence to support his causes of

action, we reverse the trial court’s judgment and render judgment that he take nothing on his

claims.




                                                      /Michael J. O'Neill/
                                                      MICHAEL J. O'NEILL
                                                      JUSTICE

130034F.P05



                                                 –19–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

JAMES LERMON, Appellant                              On Appeal from the County Court at Law
                                                     No. 1, Dallas County, Texas
No. 05-13-00034-CV          V.                       Trial Court Cause No. CC-10-02955-A.
                                                     Opinion delivered by Justice O’Neill.
MINYARD FOOD STORES, INC., and                       Justices Lang-Miers and Evans participating.
RODNEY LEE, Appellees

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that appellant/cross-appellee James Lermon take
nothing.

       It is ORDERED that appellees/cross-appellants Minyard Food Stores, Inc. and Rodney
Lee recover their costs of this appeal from James Lermon.




Judgment entered this 19th day of November, 2014.




                                              –20–
