Opinion issued August 30, 2012




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                        ————————————
                           NO. 01-10-00938-CV
                         ———————————
                 AIRGAS-SOUTHWEST, INC., Appellant
                                   V.
           IWS GAS AND SUPPLY OF TEXAS, LTD., Appellee


                                  AND

   ROBERT A. MORTON, JR., STEVEN P. LYNCH, RUBEN G. PENA,
  RHANDA CHILDERS, DENIS STERMER, KEVIN JAMES, THOMAS
             SMITH AND JOHN ROGSTAD, Appellants
                             V.
              AIRGAS-SOUTHWEST, INC., Appellee


                 On Appeal from the 164th District Court
                          Harris County, Texas
                    Trial Court Case No. 2008-42098
                                     OPINION

        IWS Gas and Supply of Texas, Ltd. (“IWS”) sought and obtained a money

judgment against Airgas-Southwest, Inc. (“Airgas”) for malicious prosecution.

Robert A. Morton, Jr., Steven P. Lynch, Ruben G. Pena, Rhanda Childers, Dennis

Stermer, Kevin James, Thomas Smith and John Rogstad, all of whom were

employees of IWS (the “Individual Employees”), also sued Airgas for malicious

prosecution, but the trial court rendered partial summary judgment dismissing

those claims at an earlier stage of the litigation. Airgas appeals from the final

judgment in favor of IWS.          The Individual Employees also appeal from the

summary-judgment dismissal of their malicious prosecution claims against Airgas.

        We conclude that there was legally insufficient evidence that IWS suffered a

special injury, which is an essential element of a claim for malicious prosecution.

Accordingly, we reverse in part the judgment of the trial court and render a take-

nothing judgment against IWS. For the same reason, we affirm the judgment to

the extent it incorporated the summary-judgment dismissal of the Individual

Employees’ claims.

                                     Background

   I.      Airgas’s acquisitions

        Airgas is a distributor of gases and welding and safety supplies in Harris

County and the surrounding area. In 2006, Airgas, Inc., the parent company of


                                           2
Airgas, acquired one of its competitors, Aeriform Corporation.        While this

transaction was pending, another Airgas competitor, IWS Gas and Supply

Corporation, recruited Aeriform’s four-person Houston-based industrial sales force

to join what would eventually become its subsidiary, IWS.     Soon after Airgas’s

acquisition of Aeriform was announced, the four Aeriform industrial salesmen—

Jerry Barton, Steven Lynch, Robert Morton, Jr., and Ruben Pena—resigned their

jobs to work for the newly-formed IWS. Upon tendering his resignation, Barton

showed his supervisor the offer letter from IWS, which offered a “considerable

increase” in compensation above what Airgas paid him, plus the option to buy

shares in IWS.

      Shortly after the four Aeriform salesmen joined IWS, approximately 35

customers stopped ordering supplies from Aeriform. The volume of lost sales

amounted to between $500,000 and $600,000 per month. Due to the sudden loss

of customers, Airgas and Aeriform management suspected that IWS had solicited

the customers by obtaining confidential information through the four former

Aeriform salesmen. According to his former supervisor, Barton had approached

Aeriform’s record-keeper shortly before leaving the company and obtained copies

of all his customer contracts, which reflected pricing and product information.

Allegedly, neither Airgas nor Aeriform ever recovered the missing customer

contracts.

                                        3
         While Airgas was acquiring Aeriform, Airgas was also in the process of

acquiring Gulf Oxygen, LLC, another company in the gas and welding supply

business. Before acquiring Gulf Oxygen, Airgas management heard rumors that

employees would leave the company upon the acquisition. Around the time of the

closing, several Gulf Oxygen employees—including Rhanda Childers, Kevin

James, John Rogstad, Thomas Smith, and Dennis Stermer—quit to work for IWS.

According to Gulf Oxygen’s former owner, when Airgas personnel searched Gulf

Oxygen’s premises, they could not find any of the customer contracts.

   II.     Litigation of Airgas’s original claims

         Airgas, as assignee of Aeriform Corporation, filed a petition in Harris

County district court to take pre-suit depositions of the former Aeriform

employees.     Before the district court took action on the petition, the former

Aeriform employees and IWS filed a separate lawsuit which was assigned to a

different Harris County district court.       Their petition requested a declaratory

judgment that they did not misappropriate Aeriform’s confidential information,

they did not engage in unfair competition, they did not tortiously interfere with

Airgas’s current or prospective contracts, and no law or contract precluded them

from contacting Airgas’s employees or customers.

         In response, Airgas filed an answer and counterclaim against Aeriform’s

former employees for breach of fiduciary duty, and the company filed additional

                                          4
counterclaims against them and IWS for conspiracy to breach fiduciary duty and

unfair competition. Airgas later amended its pleadings to allege those same claims

against former Gulf Oxygen employees Childers, James, Rogstad, Smith, and

Stermer, and it additionally alleged claims against the opposing parties for

misappropriation of trade secrets.

      Airgas obtained a temporary restraining order against IWS and all of its

employees, specifically including the former employees of Aeriform and Gulf

Oxygen. The TRO restrained and enjoined them from:

      1.    Contacting any Airgas employee or in any manner soliciting
      any Airgas employee for employment with IWS;

      2.    Entering into any new employment agreements and/or hiring
      any current Airgas employee whether solicited or not; and

      3.    Having any former Airgas employee now with IWS (including
      any former Aeriform or Gulf Oxygen LLC (or affiliate) or employee)
      contact any customers they had while at Airgas, Aeriform or Gulf
      Oxygen LLC that are not currently customers of IWS.

A hearing was scheduled for 13 days after the TRO was signed to determine

whether it should be made into a temporary injunction pending full trial on the

merits, and the TRO stated that it would expire 14 days after it was signed. At the

TRO hearing, Airgas announced that it had decided not to pursue a preliminary

injunction, and that it would instead proceed to trial on an expedited basis. Airgas

did not again request or obtain a restraining order or injunction against any party

during the course of the underlying litigation.
                                          5
          Airgas amended its pleadings to assert an additional action under the Texas

Theft Liability Act against all the adverse parties. On a motion for summary

judgment, the trial court ordered that Airgas take nothing on that claim, but the

remaining claims were allowed to proceed to trial by jury. Airgas nonsuited

without prejudice its claims against all the Individual Employees except for

Barton, thus leaving IWS and Barton as the sole adverse parties at trial.

          At trial, after Airgas rested, the trial court directed a verdict in favor of IWS

and Barton on the remaining claims, and in the final judgment it ordered that

Airgas take nothing. The judgment additionally ordered that IWS and Barton

should recover $336,269 in attorney’s fees incurred during the period in which

Airgas’s claim under the Texas Theft Liability Act was pending, and that the

nonsuit of Airgas’s claims against the Individual Employees should be with

prejudice.

   III.      Malicious prosecution claims

          After the close of the litigation of Airgas’s claims, IWS and the Individual

Employees (excluding Barton) filed suit against Airgas and its president, Brent

Sparks, asserting a claim of malicious prosecution which was stated as follows:

          18. Defendants instituted a claim against Plaintiffs in the Lawsuit
          for: (i) misappropriation of trade secrets and confidential information,
          (ii) violations of the Texas Theft Liability Act, (iii) breach of fiduciary
          duty, (iv) unfair competition and (v) conspiracy. Defendants also
          sought, and obtained, injunctive relief against Plaintiffs.

                                              6
      19. Defendants acted with malice in asserting these claims and
      seeking injunctive relief.

      20. Defendants lacked probable cause for these claims and the
      injunctive relief.

      21. Defendants[’] claims against each Plaintiff for violation of the
      Texas Theft Liability Act terminated in Plaintiffs[’] favor when the
      Court entered a take nothing judgment in favor of each Plaintiff.

      22. All remaining claims against Plaintiff IWS terminated in IWS’
      favor upon directed verdict of the Court, as reflected in the Final
      Judgment.

      23. Defendant Airgas’s voluntary dismissal with prejudice of all
      remaining claims against all other Plaintiffs, as reflected in the Final
      Judgment, was a termination in Plaintiffs’ favor.

      24. As a result of Defendants[’] conduct described herein, Plaintiffs
      suffered actual and consequential damages within the jurisdictional
      limits of this Court including, but not limited to: (i) legal fees and
      costs, (ii) lost profits, (iii) lost income, (iv) lost business opportunities
      and (v) mental anguish.

On Airgas and Sparks’s motion for partial summary judgment, the trial court

dismissed the Individual Employees’ claims for malicious prosecution, but it

allowed IWS to proceed with its malicious prosecution claim. At trial, the court

directed a verdict in Airgas’s favor on a separate claim for tortious interference

with prospective business relationships that IWS and the Individual Employees had



                                           7
asserted in an amended petition. However, the court denied Airgas’s request for a

directed verdict on IWS’s malicious prosecution claim.

      At trial, Rogstad, who became president of IWS after quitting Airgas,

testified that the TRO in the underlying litigation prevented the salespeople from

fulfilling their jobs because “they were scared that if they went out and tried to get

a customer that it could hurt them in the lawsuit itself,” and that he himself ignored

phone calls from customers with whom he had dealt in the past. He further

testified that customers refrained from doing business with IWS because of the

ongoing litigation, and that some customers did not want to be involved with IWS

after having their records subpoenaed by Airgas. A former Aeriform customer and

a former Gulf Oxygen customer each testified that they wanted to switch their

business to IWS after their preferred salesmen moved there, but they decided not to

do so in order to avoid involving themselves in a lawsuit.

      The jury rendered a special verdict on IWS’s claim against Airgas for

malicious prosecution. The jury answered “yes” to the question of whether Airgas

maliciously prosecuted IWS in the underlying litigation.         In response to the

question of what sum of money would fairly and reasonably compensate IWS for

its damages in defending the underlying litigation, from the commencement of

Airgas’s counterclaim through entry of a final judgment, the jury answered

$140,000 for attorney’s fees and $224,482.72 for litigation costs and expenses.

                                          8
The jury was not asked whether IWS was entitled to other damages, except for

exemplary damages which the jury did not award.

        In its final judgment, the trial court entered a money judgment against

Airgas in favor of IWS, ordered that IWS take nothing against Sparks, and ordered

that the Individual Employees take nothing against Airgas and Sparks. Airgas and

the Individual Employees timely filed notices of appeal.

                                        Analysis

   I.      Airgas’s appeal

        Airgas raises six issues on appeal: (1) legal and factual sufficiency of the

evidence that IWS suffered a “special injury,” which is an element of malicious

prosecution; (2) legal and factual sufficiency of the evidence to support other

elements of IWS’s malicious prosecution claim; (3) admission of evidence

concerning events that occurred after Airgas had sought the TRO in the original

litigation; (4) refusal to give certain jury instructions; (5) the award of attorney’s

fees as IWS’s sole measure or damages (or, alternatively, failure to limit the

measure of attorney’s fees to only those incurred during the period the TRO was in

effect); and (6) collateral estoppel with respect to IWS’s claim for the attorney’s

fees that it incurred in the underlying litigation.

        We focus on Airgas’s first issue, which is dispositive of its appeal. Airgas

argues that there was legally and factually insufficient evidence to support a

                                            9
finding that IWS had suffered “special injury,” which is an essential element of

malicious prosecution. Airgas contends that the attorney’s fees and litigation costs,

which are the only damages that IWS sought and recovered, do not constitute

special injury for the purpose of a malicious prosecution claim. Airgas further

argues that the TRO obtained by Airgas in the underlying litigation does not satisfy

the special injury requirement of a malicious prosecution claim which, according

to Airgas, requires the physical detention of a person or physical seizure of

property.

      IWS argues that the TRO in the underlying litigation constituted an

“injunction” that interfered with its person and property, thereby satisfying the

special injury requirement as a matter of law. IWS contends that the law of Texas

concerning malicious prosecution is consistent with that of other jurisdictions, and

it relies upon cases from various other jurisdictions which purportedly demonstrate

that the TRO at issue produced a special injury.

   A. Standard of review

      In a legal sufficiency, or no-evidence, review, we determine whether the

evidence would enable reasonable and fair-minded people to reach the verdict

under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will

sustain a no-evidence point when:

      (a) there is a complete absence of evidence of a vital fact, (b) the court
      is barred by rules of law or of evidence from giving weight to the only
                                         10
      evidence offered to prove a vital fact, (c) the evidence offered to
      prove a vital fact is no more than a mere scintilla, or (d) the evidence
      conclusively establishes the opposite of the vital fact.

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). In

making this determination, we credit favorable evidence if a reasonable fact-finder

could, and we disregard contrary evidence unless a reasonable fact-finder could

not. City of Keller, 168 S.W.3d at 827.

      In reviewing a factual sufficiency complaint, we must first examine all of the

evidence. Lofton v. Tex. Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986). After

considering and weighing all the evidence, we set aside the fact finding only if it is

so contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998); Cain

v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

   B. Special injury requirement

      The Supreme Court of Texas observed over 150 years ago, “Every one is

liable to be harassed and injured in his property and feelings by unfounded suits to

recover of him property which is his own, but this is not an injury for which he can

have legal redress.” Haldeman v. Chambers, 19 Tex. 1, 53 (1857). Although there

is no general cause of action for being subjected to an unsuccessful lawsuit, Texas

recognizes the tort of malicious prosecution. See Tex. Beef Cattle Co. v. Green,

921 S.W.2d 203, 207 (Tex. 1996).          “To prevail in a suit alleging malicious


                                          11
prosecution of a civil claim, the plaintiff must establish: (1) the institution or

continuation of civil proceedings against the plaintiff; (2) by or at the insistence of

the defendant; (3) malice in the commencement of the proceeding; (4) lack of

probable cause for the proceeding; (5) termination of the proceeding in plaintiff’s

favor; and (6) special damages.” Id.; cf. Kroger Tex. Ltd. P’ship v. Suberu, 216

S.W.3d 788, 792 n.3 (Tex. 2006) (listing similar elements for claim of malicious

criminal prosecution). The sixth element of “special damages” has also been

called “special injury.” See, e.g., Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119,

128 (Tex. App.—Houston [14th Dist.] 1994, no writ). The required damages or

injury are termed “special” to distinguish them from the “ordinary losses incident

to defending a civil suit, such as inconvenience, embarrassment, discovery costs,

and attorney’s fees.” See Tex. Beef, 921 S.W.2d at 208.1

      “The rule is firmly established in Texas which denies an award of damages

for the prosecution of civil suits, with malice and without probable cause, unless

the party sued suffers some interference, by reason of the suit, with his person or

property.” Butler v. Morgan, 590 S.W.2d 543, 545 (Tex. Civ. App.—Houston [1st

Dist.] 1979, writ ref’d n.r.e.) (citing Pye v. Cardwell, 222 S.W. 153 (Tex. 1920)).


1
      The term “special damages” has different meanings in the contexts of other
      torts. See, e.g., Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 767 (Tex.
      1987) (business disparagement); Williams v. Jennings, 755 S.W.2d 874, 884
      (Tex. App.—Houston [14th Dist.] 1988, writ denied) (slander of title).

                                          12
Thus, Texas law requires “actual interference with the defendant’s person (such as

an arrest or detention) or property (such as an attachment, an appointment of

receiver, a writ of replevin or an injunction)” in order to meet the special injury

requirement. Sharif-Munir-Davidson Dev. Corp. v. Bell, 788 S.W.2d 427, 430

(Tex. App.—Dallas 1990, writ denied) (holding that recording a notice of lis

pendens did not constitute the required “actual seizure” of property necessary to

constitute special injury). When the alleged interference pertains to a person,

appellate courts have affirmed judgments for malicious prosecution when the

claimant was physically detained, even if the detention lasted a relatively short

time. See, e.g., Pendleton v. Burkhalter, 432 S.W.2d 724, 728 (Tex. Civ. App.—

Houston [1st Dist.] 1968, writ ref’d n.r.e.); Lindsay v. Woods, 27 S.W.2d 263, 268

(Tex. Civ. App.—Amarillo 1930, no writ). When the alleged interference pertains

to property, actual seizure similarly meets the standard. See, e.g., Pye, 222 S.W. at

153–54; Bell, 788 S.W.2d at 430. In short, the kind of interference with person or

property required to meet the special injury requirement is “physical interference.”

See Tex. Beef, 921 S.W.2d at 209.

      Ordinary interferences with persons and property that any party suffers

incident to a civil suit are not of the type that supports an action for malicious

prosecution. See Tex. Beef, 921 S.W.2d at 208–09; Butler, 590 S.W.2d at 545;

Blanton v. Morgan, 681 S.W.2d 876, 878 (Tex. App.—El Paso 1984, writ ref’d

                                         13
n.r.e.). For instance, neither a deposition nor subpoena duces tecum constitute “the

type of ‘detention’ or ‘seizure’ contemplated by the Texas courts” to meet the

special injury requirement. Ross, 892 S.W.2d at 130.

      Moreover, Texas courts of appeals have consistently declined to hold that

the special injury requirement may be satisfied by consequential damages resulting

from the underlying suit, such as attorney’s fees and litigation costs,2 loss of

professional or personal reputation,3 humiliation,4 mental anguish,5 loss of business

and contracts,6 pecuniary and economic losses,7 diversion of time and attention to



2
      See Toranto v. Wall, 891 S.W.2d 3, 5 (Tex. App.—Texarkana 1994, no
      writ); Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 128 (Tex. App.—
      Houston [14th Dist.] 1994, no writ); Martin v. Trevino, 578 S.W.2d 763, 766
      (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.).
3
      See Butler v. Morgan, 590 S.W.2d 543, 544–45 (Tex. Civ. App.—Houston
      [1st Dist.] 1979, writ ref’d n.r.e.); Finlan v. Dallas Indep. Sch. Dist., 90
      S.W.3d 395, 406 (Tex. App.—Eastland 2002, pet. denied); Martin, 578
      S.W.2d at 766.
4
      See Butler, 590 S.W.2d at 544–45; Haygood v. Chandler, No. 12-02-00239,
      2003 WL 22480560, at *5 (Tex. App.—Tyler Oct. 31, 2003, pet. denied)
      (mem. op.).
5
      See Butler, 590 S.W.2d at 544–45; Haygood, 2003 WL 22480560, at *5;
      Toranto, 891 S.W.2d at 5.
6
      See Butler, 590 S.W.2d at 544–45; Haygood, 2003 WL 22480560, at *5;
      Ross, 892 S.W.2d at 128.
7
      See Finlan, 90 S.W.3d at 406; Ross, 892 S.W.2d at 128.

                                         14
defending against the suit,8 increased insurance premiums,9 and loss of ability to

obtain credit.10 “But once the special injury hurdle has been cleared, that injury

serves as a threshold for recovery of the full range of damages incurred as a result

of the malicious litigation.” Tex. Beef, 921 S.W.2d at 209.

      The outcome of Airgas’s legal and factual sufficiency challenge thus turns

on whether there was evidence to establish that IWS suffered a “special injury” or

“special damages” in the underlying litigation. In Texas Beef Cattle Co. v. Green,

921 S.W.2d 203 (Tex. 1996), the Supreme Court of Texas stated that to satisfy the

special injury requirement, “[t]here must be some physical interference with a

party’s person or property in the form of an arrest, attachment, injunction, or

sequestration.” Tex. Beef, 921 S.W.2d at 209 (citing Bell, 788 S.W.2d at 430).11


8
      See Butler, 590 S.W.2d at 544–45; Toranto, 891 S.W.2d at 5; Ross, 892
      S.W.2d at 128.
9
      See Butler, 590 S.W.2d at 544–45; Haygood, 2003 WL 22480560, at *5;
      Moiel v. Sandlin, 571 S.W.2d 567, 571 (Tex. Civ. App.—Corpus Christi
      1978, no writ).
10
      See Finlan, 90 S.W.3d at 406.
11
      The formulation of the special injury requirement in Texas Beef Cattle Co. v.
      Green, 921 S.W.2d 203 (Tex. 1996), appears to be ultimately traceable to
      three Texas authorities: Pyre v. Cardwell, 222 S.W. 153, 153 (Tex. 1920)
      (“The rule is firmly established in Texas which denies an award of damages
      for the prosecution of civil suits, with malice and without probable cause,
      unless the party sued suffers some interference, by reason of the suits, with
      his person or property.”); St. Cyr v. St. Cyr, 767 S.W.2d 258, 259 (Tex.
      App.—Beaumont 1989, writ denied) (stating that special injury “means
                                        15
IWS relies on the foregoing statement in Texas Beef to argue that the TRO in the

underlying litigation constituted a special injury for which it was entitled to

recover attorney’s fees and other legal expenses and costs. The TRO enjoined

IWS and its employees from contacting or hiring Airgas employees, and from

contacting any customers that the Individual Employees had while working for

their former employers that were not already customers of IWS. Thus, IWS

argues, the TRO constituted an “injunction” that physically interfered with its

person and property, which is all that Texas Beef requires to clear the “special

injury hurdle” that allows recovery for its other damages, such as attorney’s fees.

      If we adopted IWS’s understanding of Texas Beef, virtually any person

whose person or property is subject to a restraining order or similar injunction has

thereby suffered a special injury, since almost any injunction or restraining order

interferes with the defendant’s freedom of action or with his free use of his

property, or both. See Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334,

336 (Tex. 2000) (“One function of injunctive relief is to restrain motion and to


      ‘actual physical detention of a person or seizure of his property’” (quoting
      Rodriguez v. Carroll, 510 F. Supp. 547, 553 (S.D. Tex. 1981)); and Moiel v.
      Sandlin, 571 S.W.2d 567, 570 (Tex. Civ. App.—Corpus Christi 1978, no
      writ) (“Texas and other jurisdictions adhering to the special injury
      requirement in malicious prosecution actions have required actual
      interference with the defendant’s person (such as an arrest or detention) or
      property (such as an attachment, an appointment of a receiver, a writ of
      replevin or an injunction).”).

                                         16
enforce inaction.”); DAN B. DOBBS, THE LAW OF TORTS 417 § 593 (2d ed. 2011)

(“Provisional remedies almost always impose constraints on persons or property

before trial on the merits.”); cf. Ross, 892 S.W.2d at 130 (“If we were to hold that

[a deposition or subpoena duces tecum] constituted detention or seizure for the

purposes of a malicious prosecution action, then almost every suit filed would meet

the damage element of the cause of action.”). However, a closer review of Texas

jurisprudence concerning the special injury requirement does not support IWS’s

expansive reading.

      As Texas courts have long held, the special injury giving rise to a malicious

prosecution claim must be interference with a person or his property. See, e.g.,

Tex. Beef, 921 S.W.2d at 209; Pye, 222 S.W. at 153. In this case, the TRO

interfered with IWS and its employees’ persons, insofar it prohibited them from

engaging in certain activities. The TRO did not directly affect their property,

however, except to the extent that it might have deprived them of the opportunity

to hire certain new employees or engage certain new business contacts. Such

incidental effects on property do not constitute special injury. See Butler, 590

S.W.2d at 545; cf. Tex. Beef, 921 S.W.2d at 209 (discussing temporary injunction

preventing collection of auction proceeds for sale of cattle and preventing sale of

other cattle). Therefore, we only consider whether the TRO produced the type of

interference with a person that qualifies as a special injury.

                                          17
      The special injury requirement has its origin in English common law. See

Masterson v. Brown, 72 F. 136, 137–38 (5th Cir. 1896). In the ancient common

law, a party could maintain an action for malicious prosecution of a civil suit

without having to show a special injury. See Woods v. Finnell, 13 Bush 628, 632

(Ky. 1878). Later, in the thirteenth century, the Statute of Marlbridge permitted

parties who successfully defended against certain kinds of actions to recover costs.

See Matterson, 72 F. at 137–38; Woods, 13 Bush at 632. Because this and similar

statutes were ordinarily thought to provide an adequate remedy for a wrongfully

instituted suit, a successful defendant generally did not have a malicious

prosecution claim upon termination of the suit in his favor. Matterson, 72 F. at

137–38; Woods, 13 Bush at 632. Nonetheless, suits for malicious prosecution were

still recognized when the successful defendant in the underlying suit showed that

he had sustained a special injury. Matterson, 72 F. at 138. “In all such cases the

plaintiff [in the underlying suit] must have gone beyond the proper remedy for the

enforcement of his claim, such as procuring an illegal order of arrest, or requiring

excessive bail before the action could be maintained.” Woods, 13 Bush at 632; see

also Smith v. Mich. Buggy Co., 51 N.E. 569, 571 (Ill. 1898) (observing that after

Statute of Marlbridge, “it came to be held that an action for malicious prosecution

would not lie in civil actions, unless in cases where there had been arrest of the

person, or seizure of property, or other special injury”).

                                          18
        American jurisdictions have split on whether a party must show a special

injury in order to establish a claim for malicious prosecution. W. PAGE KEETON ET

AL.,   PROSSER & KEETON ON TORTS § 120, at 889 (5th ed. 1984). The Restatement

(Second) of Torts recognizes this split and provides two alternative descriptions of

the tort: § 674 and § 677. Texas courts of appeals have recognized that § 674 of

the Restatement, which omits the special injury requirement,12 does not fully

reflect the law of this state concerning malicious prosecution. See McCall v. Tana

Oil & Gas Corp., 82 S.W.3d 337, 350 n.7 (Tex. App.—Austin 2001) (observing

that the special injury requirement of Texas Beef is not required by § 674), rev’d on

other grounds, 104 S.W.3d 80 (Tex. 2003); Toranto v. Wall, 891 S.W.2d 3, 6 (Tex.

App.—Texarkana 1994, no writ) (invoking special injury rule to implicitly reject

appellant’s request that the court adopt § 674). On the other hand, for “courts that

have been unwilling to accept the broader rule stated in § 674,” the Restatement

provides in § 677 that one is subject to liability for malicious prosecution of civil

proceedings that cause another “to be arrested or deprived of the possession of his


12
        See RESTATEMENT (SECOND) OF TORTS § 674 (1977) (“One who takes an
        active part in the initiation, continuation or procurement of civil proceedings
        against another is subject to liability to the other for wrongful civil
        proceedings if (a) he acts without probable cause, and primarily for a
        purpose other than that of securing the proper adjudication of the claim in
        which the proceedings are based, and (b) except when they are ex parte, the
        proceedings have terminated in favor of the person against whom they are
        brought.”)

                                           19
land or chattels or other things.” RESTATEMENT (SECOND)         OF   TORTS § 677 &

cmt. a (1977).

      Texas has long been one of those jurisdictions unwilling to dispense with the

special injury requirement, and its courts have consistently rebuked litigants’

attempts to have that requirement altered or abrogated.13 An early opinion of the

Supreme Court of Texas reflects this state’s adoption of the special injury

requirement:

      To give a right to such redress, there must not only be a loss, but it
      must have been caused by the violation of some legal right. . . . Had
      the suit been for the wrongful suing out of the writ of sequestration or
      attachment, by which the defendant’s property was seized and he
      sustained damage, the action might have been maintained.

Smith v. Adams, 27 Tex. 28, 29–30 (1863). In another case, the Supreme Court

rejected the argument that a party could have an action for malicious prosecution

arising out of “an ordinary civil suit, in which no extraordinary process was sued

out.” Salado Coll. v. Davis, 47 Tex. 131, 136 (1877). In yet another case, the



13
      See Am. Bd. of Obstetrics & Gynecology, Inc. v. Yoonessi, 286 S.W.3d 624,
      628–29 (Tex. App.—Dallas 2009, pet. denied) (rejecting appellant’s request
      that the special injury requirement be abandoned); Ross, 892 S.W.2d at 128
      (observing Texas’s adherence to the special injury requirement “for over one
      hundred years”); Toranto, 891 S.W.2d at 5 (declining to recognize new
      cause of action for malicious prosecution without special injury
      requirement); Martin, 578 S.W.2d at 766, 768 (rejecting argument that the
      special injury requirement is “outmoded in today’s society” and opining that
      “the general policy reasons for adopting the special damage rule in Texas
      remain viable today”).
                                        20
Court alluded to the English common-law rationale for the special injury rule when

it stated that:

       the ground on which an action for malicious prosecution of a civil
       action, where there is no arrest of the person or seizure of the
       property, or other like injury, is denied, is, that the imposition of costs,
       on the prosecutor of the unfounded action, is the relief which the law
       gives, and this is imposed in the cause without resort to another
       action.

Johnson v. King & Davidson, 64 Tex. 226, 230–31 (1885). Relying on the three

foregoing precedents, the Supreme Court observed in the early part of the twentieth

century, “The rule is firmly established in Texas which denies an award of

damages for the prosecution of civil suits, with malice and without probable cause,

unless the party sued suffers some interference, by reason of the suits, with his

person or property.” Pye, 222 S.W. at 153. The Court further echoed the English

common-law rationale for the rule, which is that “the law makes the imposition of

the costs the sole penalty for the wrongful prosecution of civil litigation.” Id. at

153.

       In Texas Beef, the Court recognized that other public policy considerations,

besides the fact that a successful defendant is usually awarded costs in the

underlying suit, underpin the special injury requirement:

       The special damage requirement assures good faith litigants access to
       the judicial system without fear of intimidation by a countersuit for
       malicious prosecution. The special damage requirement also prevents
       successful defendants in the initial proceeding from using their

                                           21
      favorable judgment as a reason to institute a new suit based on
      malicious prosecution, resulting in needless and endless vexatious
      lawsuits.

Texas Beef, 921 S.W.2d at 209 (quoting Martin, 578 S.W.2d at 768); see also

Salado Coll., 47 Tex. at 136 (“[I]t seems to be the policy of the law to content

itself with meting out something less than our ideas of natural justice would

demand, rather than to increase the risks attending and discouraging such a resort,

and at the same time add to the difficulties and intricacies of ordinary litigation.”).

These same considerations have been discussed by other state supreme courts

adhering to the special injury requirement.14

      The common-law tort of malicious prosecution, when premised upon an

interference with a person, historically required that the person seeking relief have

been actually arrested.15 Consistent with this historical limitation, Texas appellate

14
      See, e.g., Curiano v. Suozzi, 469 N.E.2d 1324, 1328 (N.Y. 1984); Abbott v.
      Thorne, 76 P. 302, 303–05 (Wash. 1904); Smith v. Mich. Buggy Co., 51 N.E.
      569, 571–72; Norcross v. Otis Bros. & Co., 25 A. 575, 576 (Pa. 1893),
      abrogated by 42 Pa.C.S.A. § 8351(b); Pope v. Pollock, 46 Ohio St. 367,
      368–69 (1889); see also PROSSER & KEETON ON TORTS 889 § 120 (5th ed.
      1989).
15
      See Wood v. Sutor, 8 S.W. 51, 52 (Tex. 1888) (holding that “one maliciously
      and without probable cause putting into operation the machinery of judicial
      proceedings, resulting in the arrest and trial of the accused, thereby incurs
      liability”); Haldeman v. Chambers, 19 Tex. 1, 53–54 (1857) (quoting
      treatises on cause of action for being arrested for lacking bail that had been
      wrongfully or excessively imposed in civil suit); Baten v. Houston Oil Co. of
      Tex., 217 S.W. 394, 399 (Tex. Civ. App.—Beaumont 1919, no writ) (“An
      ‘arrest’ is an essential element of [malicious prosecution].”).
                                          22
courts have long affirmed judgments in favor of plaintiffs who, after being arrested

for a criminal offense, successfully recovered damages from their accusers for

malicious prosecution.16 In a similar vein, Texas courts of appeals have recognized

causes of action for malicious prosecution based upon “lunacy” proceedings that

resulted in the detention of the complaining party.17 We have not discovered any

Texas authority to support the proposition that someone has a claim for malicious

prosecution because of an interference with his person that did not amount to a

physical arrest or detention.

      IWS relies upon two foreign authorities that it contends support the

proposition that a temporary restraining order or injunction restraining a person

from engaging in certain acts satisfies the common-law special injury requirement.



16
      See, e.g., Shannon v. Jones, 13 S.W. 477 (Tex. 1890); Cooper v. Langway,
      13 S.W. 179 (Tex. 1890); J.C. Penny Co. v. Ruth, 982 S.W.2d 586 (Tex.
      App.—Texarkana 1998, no writ); Rankin v. Saenger, 250 S.W.2d 465 (Tex.
      Civ. App.—El Paso 1962, writ ref’d n.r.e.); Meyer v. Viereck, 286 S.W. 894
      (Tex. Civ. App.—Galveston 1926, writ dism’d w.o.j.); Foster v. Bourgeois,
      253 S.W. 880 (Tex. Civ. App.—Austin 1923), aff’d, 259 S.W. 917 (Tex.
      1924); Missouri, K. & T. Ry. Co. of Tex. v. Groseclose, 134 S.W. 736 (Tex.
      Civ. App. 1911, writ denied); Kleinsmith v. Hamlin, 60 S.W. 994 (Tex. Civ.
      App. 1901, no writ); Chouquette v. McCarthy, 56 S.W. 956 (Tex. Civ. App.
      1900, writ denied).
17
      See Daniels v. Conrad, 331 S.W.2d 411 (Tex. Civ. App.—Dallas 1959, writ
      ref’d n.r.e.); Pendleton v. Burkhalter, 432 S.W.2d 724 (Tex. Civ. App.—
      Houston [1st Dist.] 1968, writ ref’d n.r.e.); Lindsay v. Woods, 27 S.W.2d
      263 (Tex. Civ. App.—Amarillo 1930, no writ); Suhre v. Kott, 193 S.W. 417,
      418 (Tex. Civ. App.—San Antonio 1917, no writ).
                                        23
The North Carolina Court of Appeals held that the special injury requirement was

satisfied when a wife obtained a protective order against her husband which

prohibited communication with her and ordered him to stay away from the marital

home. See Alexander v. Alexander, 567 S.E.2d 211, 214 (N.C. Ct. App. 2002).

This protective order is distinguishable from the TRO in the present case, insofar

that the protective order there “greatly interfered with the use and enjoyment of

plaintiff’s personal property by ordering him to stay away from his home,” and

thus was not an order that exclusively interfered with a person. Id. In the other

case, a New Jersey court of chancery held that when a distributor obtained an

injunction enjoining a supplier from dealing with the distributor’s competitors, the

supplier had sustained a “special grievance.” Mayflower Indus. v. Thor Corp., 83

A.2d 246, 252 (N.J. Super. Ct. Ch. Div. 1951). However, as in the North Carolina

case, the injunction did not exclusively restrain a person, as it also prevented the

supplier “from using, enjoying and dealing with its property.” Id.18



18
      IWS also relies upon other foreign authorities examining the question of
      whether an injunction may give rise to a special injury, but it is apparent that
      the parties subject to injunction in those cases had been deprived of the use
      and enjoyment of their property. See Bank of Lyons v. Schultz, 399 N.E.2d
      1286, 1287–88 (Ill. 1980) (injunction prohibiting widow from receiving
      insurance proceeds); N. Oil Co. v. Socony Mobil Oil Co., 347 F.2d 81, 83
      (2d. Cir. 1965) (injunction prohibiting removal and reassembly of purchased
      storage tanks); Black v. Judelsohn, 251 A.D. 559, 559 (N.Y. App. Div.
      1937) (injunction prohibiting manufacturer from using machines that
      allegedly contained patent-infringing components).
                                         24
      IWS also relies upon a successful malicious prosecution case premised on an

injunction that prevented a school board from permitting a contractor to work on a

construction project. See Sigl, Inc. v. Bresnahan, 216 A.D. 634, 634 (N.Y. App.

Div. 1926). However, this case is not persuasive because the plaintiff in that

malicious prosecution suit was the contractor rather than the school board which

was actually enjoined, see id. at 639, and following Texas Beef, third parties who

suffer the incidental effects of an injunction against another party have not thereby

suffered a special injury. See Tex. Beef, 921 S.W.2d at 210.

      We must decide whether the TRO in this case satisfies Texas’s special injury

requirement. In making our determination, we bear in mind the policies of the

rule, which include “assur[ing] good faith litigants access to the judicial system”

and limiting “needless and endless vexatious lawsuits.” See Tex. Beef, 921 S.W.2d

at 209 (quoting Martin, 578 S.W.2d at 768).         These policies command strict

adherence to the requirements of the malicious prosecution tort. See Pendleton,

432 S.W.2d at 728; accord Parker v. Dallas Hunting & Fishing Club, 463 S.W.2d

496, 499 (Tex. Civ. App.—Dallas 1971, no writ). To recognize a special injury

because a company and its employees were temporarily enjoined from contacting

certain parties would effectively lower the special injury hurdle beneath what

Texas courts have historically allowed. The lowered hurdle would discourage

good faith litigants from safeguarding their rights by seeking temporary restraining

                                         25
orders, the purpose of which is to maintain the status quo between parties for a

relatively short period. See Cannan v. Green Oaks Apts., Ltd., 758 S.W.2d 753,

755 (Tex. 1988); TEX. R. CIV. P. 680.         It would also incentivize successive

litigation by giving parties who were only temporarily subject to a limited restraint

the prospect of recovering all their litigation-related expenses. Such consequences

would be at cross-purposes with the policies underpinning the special injury

requirement.

      In light of the foregoing policy interests and Texas precedents limiting

special injury to physical restraints on a person or physical seizure of property, we

hold, as a matter of law, that the TRO granted in favor of Airgas did not cause a

special injury to IWS or its employees so as to support a claim for malicious

prosecution. This result accords with multiple Texas authorities stating that only

“physical interference” with a person, such as an arrest or detention, satisfies the

special injury requirement. See Tex. Beef, 921 S.W.2d at 209; Ross, 892 S.W.2d at

128; Bell, 788 S.W.2d at 430.       The result also comports with § 677 of the

Restatement, which defines a special injury as one party causing another “to be

arrested or deprived of the possession of his land or chattels or other things.” See

RESTATEMENT (SECOND) OF TORTS § 677. The TRO in this case did not physically

arrest or detain IWS or its employees, nor did it deprive them of their property.

Therefore, there was legally insufficient evidence to sustain the jury’s finding that

                                         26
Airgas had maliciously prosecuted IWS in the underlying litigation. See City of

Keller, 168 S.W.3d at 827; Havner, 953 S.W.2d at 711.

           We sustain Airgas’s first issue. Consequently, it is unnecessary to address

Airgas’s other issues raised on appeal. See TEX. R. APP. P. 47.1.

     II.      Individual Employees’ appeal

           The Individual Employees’ claims for malicious prosecution against Airgas

were dismissed on Airgas’s motion for partial summary judgment. Among other

points, that motion asserted that the Individual Employees “have not properly

alleged the requirement of special damages” and that “[t]here are no special

damages to any plaintiff as that requirement is interpreted at law.” Thus, Airgas

effectively argued that “there is no evidence of one or more essential elements” of

the Individual Employees’ malicious prosecution claim. TEX. R. CIV. P. 166a(i).

In their second issue on appeal, the Individual Employees challenge the dismissal

of their malicious prosecution claim on Airgas’s no-evidence ground.19

           We review a trial court’s decision to grant a motion for summary judgment

de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

We review the summary-judgment evidence in the light most favorable to the

nonmovant, crediting evidence favorable to that party if reasonable jurors could,

19
           In their first issue, the Individual Employees challenge another ground on
           which Airgas moved for summary judgment: There is no evidence that the
           underlying suit terminated in the Individual Employees’ favor, which is a
           necessary element of a malicious prosecution claim.
                                            27
and disregarding contrary evidence unless reasonable jurors could not. Mann

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

2009) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). When,

as in this case, the trial court does not specify the ground upon which it relied for

its ruling, we will affirm if any theory advanced by movant in its summary-

judgment motion is meritorious. See Joe v. Two Thirty Nine Joint Venture, 145

S.W.3d 150, 157 (Tex. 2004).

      In general, a party seeking a no-evidence summary judgment must assert

that no evidence exists as to one or more of the essential elements of the

nonmovant’s claim on which the nonmovant would have the burden of proof at

trial. Finger v. Ray, 326 S.W.3d 285, 289–90 (Tex. App.—Houston [1st Dist.]

2010, no pet.). Once the movant specifies the elements on which there is no

evidence, the burden shifts to the nonmovant to raise a fact issue on the challenged

elements. See TEX. R. CIV. P. 166a(i) (“The court must grant the motion unless the

respondent produces summary judgment evidence raising a genuine issue of

material fact.”). A no-evidence summary judgment will be sustained on appeal

when (1) there is a complete absence of evidence of a vital fact, (2) the court is

barred by rules of law or of evidence from giving weight to the only evidence

offered by the nonmovant to prove a vital fact, (3) the nonmovant offers no more

than a scintilla of evidence to prove a vital fact, or (4) the nonmovant’s evidence

                                         28
conclusively establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman,

118 S.W.3d 742, 751 (Tex. 2003).

       The only evidence of special injury that the Individual Employees presented

in response to Airgas’s summary-judgment motion was the temporary restraining

order preventing them from communicating with employees and certain customers

of Airgas. As we already held with respect to Airgas’s appeal, the TRO in the

underlying litigation did not produce a special injury as a matter of law. Because

the Individual Employees failed to produce evidence of a special injury in response

to Airgas’s summary-judgment motion, we hold that the trial court did not err in

dismissing the Individual Employees’ claims for malicious prosecution. See TEX.

R. CIV. P. 166a(i); King Ranch, 118 S.W.3d at 751.

       We overrule the Individual Employees’ second issue. Because the trial court

could have dismissed the Individual Employees’ claims on the special-injury

ground raised in Airgas’s and Sparks’s motion, we do not examine the Individual

Employees’ first issue on appeal. See TEX. R. APP. P. 47.1; Joe, 145 S.W.3d at

157.




                                        29
                                   Conclusion

      We reverse the judgment of the trial court in part, insofar as it awards money

damages to IWS, and we render judgment that IWS take nothing. We affirm the

judgment in all other respect.




                                             Michael Massengale
                                             Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.




                                        30
