Murphy USA, Inc. and Mary Frances Maxwell, Mgr. v. Freddie J. Rose and Laureen Irving
Opinion
ACCEPTED 12-15-00197-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 9/23/2015 1:06:51 PM Pam Estes CLERK
FILED IN 12th COURT OF APPEALS TYLER, TEXAS 9/23/2015 1:06:51 PM
12-15-00197-CV PAM ESTES Clerk ______________________________________________________________________________
In the Twelfth Court of Appeals Tyler, Texas __________________________________________________________________
Murphy USA Inc., and Mary Frances Maxwell, Mgr., Appellants,
v.
Freddie J. Rose and Laureen Irving, Appellees, __________________________________________________________________
Appellees’ Brief __________________________________________________________________
Donovan Paul Dudinsky 701 South Liberty Street San Augustine, Texas 75972 Telephone: (936) 275-9871 Facsimile: (936) 275-9655 dpauldudinsky@yahoo.com
Counsel For Appellees Identity of the Parties
Appellees: Counsel
Freddie J. Rose Donovan Paul Dudinsky Laureen Irving 701 South Liberty Street San Augustine, Texas 75972 Telephone: (936) 275-9871 Facsimile: (936) 275-9655 dpauldudinsky@yahoo.com
Appellants: Counsel
Murphy USA, Inc., and Edward M. Slaughter Mary Frances Maxwell, Mgr. Brandon W. Maxey Hawkins, Parnell Thackston & Young LLP 4514 Cole Avenue, Suite 500 Dallas, Texas 75205 Telephone (214) 780-5100 eslaughter@hptylaw.com bmaxey@hptylaw.com
i Table of Contents
Identity of the Parties..................................................................................................i
Table of Contents.......................................................................................................ii
Index of Authorities..................................................................................................iv
Statement of the
Case.................................................................................................1
Issue
Presented ..........................................................................................................2
Statement of
Facts......................................................................................................2
Summary of the Argument.........................................................................................9
Argument and Authorities.......................................................................................11
1. The Texas anti-SLAPP statute does not apply to Appellees’ claims ..................................................................................................1 2
A. Standard of Review and Jurisdiction........................................13
B. Communicaions made to law enforcement in reporting of a potential crime is not protected under the Texas anti-SLAPP statute....................................................................13
2. Appellees’ established prima facie clear and specific evidence in their response to Appellants’ motion to dismiss in the lower court.....................................................................................................1 7
A. Appellees’ claim of malicious prosecution sustains because Appellee Rose has produced prima facie evidence of malice and has materially rebutted Appellants’ presumption of probable cause.............................17
(i) There is evidence of malice............................................19
ii (ii) There is evidence to rebut the presumption of probable cause................................................................20
B. The evidence is legally and factually sufficient to establish a claim for false arrest................................................22
C. Appellees’ negligence claim is recognized under Texas Law.................................................................................24
D. Appellee’s claim for defamation should be granted.................31
E. Appellees produced no evidence regarding Irving’s allegation.....................................................................35
Prayer.......................................................................................................................36
Certificate of Compliance........................................................................................36
Certificate of Service...............................................................................................37 iii
Index of Authorities Cases
Bently, 94 S.W.3d at 583-584..................................................................................33
Bossin v. Towber, 894 S.W.2d 25 ( Tex.App.Houston 14th Dist. 1994), writ denied.....................................................................................................22
Charalambopoulos v. Grammer, 2015 WL 390664 (N.D. Tex. 2015)..............15,16
City of Keller v. Wilson, 168 S.W.3d. 802,819 (Tex. 2005)...................................13
Clark v. Jenkins, 248 S.W.3d 418,437 (Tex. App.– Amarillo 2009, pet denied __U.S. 130 S. Ct. 52,175 L.Ed. 2d 21 (2009).............................33
Cohn v. State, 817 S.W.2d 819 (Tex. Cr. App. 1993).............................................14
Crazy Hotel, 416 S.W.3d at 80-81 (citing Miranda, 133 S.W.3d at 227) accord Cheniere Energy, 449 S.W.3d at 214................................................12 Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762,774 (Tex.2010).......................29
Eans v. Grocery Supply Co., 580 S.W.2d 17, 21-22 (Tex.Civ. App.– Houston [1st Dist.] 1979, no writ)...........................................................................................................20
El Chico Corp v. Poole, 732 S.W.2d 306,311 (Tex. 1987).....................................28
French v. French, 385 S.W.3d 61,73 (Tex. App.–Waco 2012, pet. denied)............................................................32
Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523,525 (Tex.1990).....................................................................................................28 Haws & Garrett Gen. Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex.1972)..................................................................25
iv In re Lipsky, 460 S.W.3d at 596....................................................................15,32,35
Inc. V. Parker, 249 S.W.3d 392,398 (Tex.2008).....................................................24
Karner v. Stump, 34 S.W. 656 (Tex.– Civ. App.1896)...........................................23
Kroger Tex. Ltd. P’ship v Suberu, 216 S.W.3d 788, 792 (Tex.2006)..................................................................18
Lefebvre v. Lefebvre, 996 P.2d 518 (Or. Ct. App. 2000)........................................16
Main v. Royall, 348 S.W.3d 318,390 (Tex. App.– Dallas 2011, no pet.)...............31
Mann Frankfort Stein & Lipp Advisors, Inc. v.
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ACCEPTED 12-15-00197-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 9/23/2015 1:06:51 PM Pam Estes CLERK
FILED IN 12th COURT OF APPEALS TYLER, TEXAS 9/23/2015 1:06:51 PM
12-15-00197-CV PAM ESTES Clerk ______________________________________________________________________________
In the Twelfth Court of Appeals Tyler, Texas __________________________________________________________________
Murphy USA Inc., and Mary Frances Maxwell, Mgr., Appellants,
v.
Freddie J. Rose and Laureen Irving, Appellees, __________________________________________________________________
Appellees’ Brief __________________________________________________________________
Donovan Paul Dudinsky 701 South Liberty Street San Augustine, Texas 75972 Telephone: (936) 275-9871 Facsimile: (936) 275-9655 dpauldudinsky@yahoo.com
Counsel For Appellees Identity of the Parties
Appellees: Counsel
Freddie J. Rose Donovan Paul Dudinsky Laureen Irving 701 South Liberty Street San Augustine, Texas 75972 Telephone: (936) 275-9871 Facsimile: (936) 275-9655 dpauldudinsky@yahoo.com
Appellants: Counsel
Murphy USA, Inc., and Edward M. Slaughter Mary Frances Maxwell, Mgr. Brandon W. Maxey Hawkins, Parnell Thackston & Young LLP 4514 Cole Avenue, Suite 500 Dallas, Texas 75205 Telephone (214) 780-5100 eslaughter@hptylaw.com bmaxey@hptylaw.com
i Table of Contents
Identity of the Parties..................................................................................................i
Table of Contents.......................................................................................................ii
Index of Authorities..................................................................................................iv
Statement of the
Case.................................................................................................1
Issue
Presented ..........................................................................................................2
Statement of
Facts......................................................................................................2
Summary of the Argument.........................................................................................9
Argument and Authorities.......................................................................................11
1. The Texas anti-SLAPP statute does not apply to Appellees’ claims ..................................................................................................1 2
A. Standard of Review and Jurisdiction........................................13
B. Communicaions made to law enforcement in reporting of a potential crime is not protected under the Texas anti-SLAPP statute....................................................................13
2. Appellees’ established prima facie clear and specific evidence in their response to Appellants’ motion to dismiss in the lower court.....................................................................................................1 7
A. Appellees’ claim of malicious prosecution sustains because Appellee Rose has produced prima facie evidence of malice and has materially rebutted Appellants’ presumption of probable cause.............................17
(i) There is evidence of malice............................................19
ii (ii) There is evidence to rebut the presumption of probable cause................................................................20
B. The evidence is legally and factually sufficient to establish a claim for false arrest................................................22
C. Appellees’ negligence claim is recognized under Texas Law.................................................................................24
D. Appellee’s claim for defamation should be granted.................31
E. Appellees produced no evidence regarding Irving’s allegation.....................................................................35
Prayer.......................................................................................................................36
Certificate of Compliance........................................................................................36
Certificate of Service...............................................................................................37 iii
Index of Authorities Cases
Bently, 94 S.W.3d at 583-584..................................................................................33
Bossin v. Towber, 894 S.W.2d 25 ( Tex.App.Houston 14th Dist. 1994), writ denied.....................................................................................................22
Charalambopoulos v. Grammer, 2015 WL 390664 (N.D. Tex. 2015)..............15,16
City of Keller v. Wilson, 168 S.W.3d. 802,819 (Tex. 2005)...................................13
Clark v. Jenkins, 248 S.W.3d 418,437 (Tex. App.– Amarillo 2009, pet denied __U.S. 130 S. Ct. 52,175 L.Ed. 2d 21 (2009).............................33
Cohn v. State, 817 S.W.2d 819 (Tex. Cr. App. 1993).............................................14
Crazy Hotel, 416 S.W.3d at 80-81 (citing Miranda, 133 S.W.3d at 227) accord Cheniere Energy, 449 S.W.3d at 214................................................12 Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762,774 (Tex.2010).......................29
Eans v. Grocery Supply Co., 580 S.W.2d 17, 21-22 (Tex.Civ. App.– Houston [1st Dist.] 1979, no writ)...........................................................................................................20
El Chico Corp v. Poole, 732 S.W.2d 306,311 (Tex. 1987).....................................28
French v. French, 385 S.W.3d 61,73 (Tex. App.–Waco 2012, pet. denied)............................................................32
Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523,525 (Tex.1990).....................................................................................................28 Haws & Garrett Gen. Contractors, Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609 (Tex.1972)..................................................................25
iv In re Lipsky, 460 S.W.3d at 596....................................................................15,32,35
Inc. V. Parker, 249 S.W.3d 392,398 (Tex.2008).....................................................24
Karner v. Stump, 34 S.W. 656 (Tex.– Civ. App.1896)...........................................23
Kroger Tex. Ltd. P’ship v Suberu, 216 S.W.3d 788, 792 (Tex.2006)..................................................................18
Lefebvre v. Lefebvre, 996 P.2d 518 (Or. Ct. App. 2000)........................................16
Main v. Royall, 348 S.W.3d 318,390 (Tex. App.– Dallas 2011, no pet.)...............31
Mann Frankfort Stein & Lipp Advisors, Inc. v. Firlding, 289 S.W.3d 844, 850 (Tex.2009)..................................................................25
Martin v. Thomas, 973 F.2d 449, 453-454. (5th Cir. 1992).................................14
McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980)....................................................................................................29
Morrill v. Cisek, 226 S.W.3d 545,549 (Tex.App.– Houston [1st Dist.] 2006, no pet.).................................................................................................33
Parker Drilling Co. v. Ramfor Supply Co., 316 S.W3d 68, 75 (Tex. App.– Houston [14th Dist.] 2010, pet denied)......................................25
Peshak, 13 S.W3d at 426.........................................................................................34
Reicheneder v. Skaggs Drug Center, 421 F.2d 307 (5th Cir. 1970)........................22
Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex.1997).............................................................18,20
Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex.1997) (citing Akin v. Dahl, 661 S.W. 2d 971).........................................................19
v. Rodriguez-Escobar v. Gross, 392 S.W.3d 109,113 (Tex. 2013)............................26
Serafine v. Blunt, 2015 WL 3941219 (Tex.App.-Austin 2015, no pet.).................16
Sisters of Charity of the Incarnate Word v. Golbert, 992 S.W.2d 25,28 (Tex. App–Houston [14thDist]1997,no pet.).................................................27
Tex. Ass’n of Counties Cnty. Gov’t Risk Mgmt. Pool v. Matagorda Cnty., 52 S.W.3d 128,133 (Tex.2000).......................................25
Thompson v. Gibson, 298 S.W.2d 97,105 (Tex. 1957)...........................................24
Thrift v. Hubbard, 974 S.W.2d 70, (Tex.App.–San Antonio 1998, pet. denied)...................19,20
Travis v. City of Mesquite, 830 S.W.2d 94,98 (Tex.1992)......................................29
Wal-mart Stores, Inc. v. Lopez, 93 S,W.3d 548, 557 (Tex. App.– Houston [14th Dist.] 2002, no pet.)...........................................25
Statutes
Tex. Civ. Prac. & Rem. Code § 27.001(4)(A)(i-ii)......................................6,8,13,14
Tex. Civ. Prac. & Rem. Code § 27.002..............................................................12,16
Tex. Civ. Prac. & Rem. Code § 27.009(1)(b)..........................................................36
Tex. Civ. Prac. & Rem. Code § 27.010 (b).............................................................12
Tex. Civ. Prac. & Rem. Code § 27.011(a)...............................................................14
vi. 8 STATEMENT OF THE CASE
Appellants appeal the trial court’s ruling on Appellants’ motion to dismiss
pursuant the Texas anti-SLAPP statute. (CR 109).
The Appellees (plaintiffs below) contend negligence, false arrest, malicious
prosecution, and defamation claims against Appellants (defendants below),
Murphy USA and Mary Frances Maxwell, Mgr. (CR 29-32). The Appellee Rose
contends that Manager Maxwell negligently breached her duty to inform Appellee
Rose (a customer) by not providing him with the check decline codes and toll-free
telephone number information issued by “Certegy”, being the Appellants’ check
verification system, information that Appellee Rose was entitled to receive and
access so that he could have called “Certegy” technical support and resolve the
reason his sufficient checks were declined before Manager Maxwell reported a
crime and before she signed a criminal complaint.
On July 10, 2015 a hearing was held in the 123rd Judicial District Court of
Shelby County Texas, Center, Texas, whereat said hearing the Presiding Judge
Hon. Charles C. Dickerson after reviewing pleadings, exhibits, and hearing oral
argument of both parties, determined and ruled that the anti-SLAPP statute did not
apply to this case and dismissed Appellants’ motion to dismiss. Appellees respectfully contend their claims are factually and legally
supportable.
ISSUE PRESENTED
The trial court’s ruling was a JUST ruling and should be affirmed because:
1. The Texas anti-SLAPP motion to dismiss statute does not apply to Maxwell’s claim of, “Exercise of the right to petition”. Maxwell’s actions, conduct and communications fall outside the parameters of the statute and are unconstitutional.
STATEMENT OF THE FACTS
Appellee Rose was age 72 years at the time of the incident, at which time, he
had sufficient funds in two separate checking accounts with Midsouth Bank of
Florien, Louisisna. On the day of the incident, Appellee Rose’s bank accounts, of
which, one being his personal checking account contained $4,984.16 and the other
account being his business checking account contained $15,253.73 the day before
the incident and the day after the incident containing $15,036.73. (CR 91,92)
On August 19, 2014, Appellees arrived at approximately 7:20 am at Murphy
USA Inc. located in Center, Texas. Appellees parked their vehicle at pump #6 of
Murphy USA, Inc. being situated adjacent to Walmart.
Murphy USA, Inc.’s manager, Mary Frances Maxwell, assisted Appellee
Rose without pre-approval and activated pump #6 allowing him to pump gasoline
amounting to $83.18 for his vehicle and 4 auxiliary gasoline storage containers.
Appellee Rose then submitted a Walmart credit card and subsequently two checks drawn on separate checking accounts for payment for gasoline purchase.
The Walmart credit card was not approved for payment. Appellee Rose then wrote
a check in the amount of $83.18 drawn on his personal checking account
containing $4,984.16 and presented payment to manager Maxwell who submitted
the check for verification to Murphy USA, Inc.’s check verification service that
reads the check writer’s bank routing and account number (CR 89). Manager
Maxwell manually typed in Appellee’s drivers license number typing in the
incorrect state of Texas. Manager Maxwell then submitted check #1690 for
payment to the check verification service at 07:45:48 a.m., this check was declined
for payment. Maxwell states, “once the system declines the check,” (CR 59 #11)
that system, being Certegy.
(Certegy is located in the eastern time zone 1-hour ahead of local time), and check
#1690 was declined designated Final Rcode4 2106D.
Manager Maxwell then submitted check #1690 a second time with a
corrected drivers license state to Certegy check verification service at 07:46:24
a.m. and check #1690 was declined designated Final Rcode4 2606D. Manager
Maxwell resubmitted check #1690 a third time to Certegy check verification
service at 07:49:35 a.m. and check #1690 was declined and designated Final
Rcode4 2529D.
Manager Maxwell requested another form of payment. Appellee Rose tendered check #2020 payment of $83.18 drawn on his business account
containing $15,036.73.
Manager Maxwell handed Appellee Rose his drivers license and he walked to his
vehicle.
Manager Maxwell submitted check #2020 to Certegy check verification service at
07:57:34a.m. and check #2020 was declined and designated Final Rcode4 2606D.
(CR 101).
Manager Maxwell instructed her cashier known “Angela” to print off a
drive-off slip at 07:59:27. (CR 98). Manager Maxwell called the police at 08:00:00
a.m. (CR 99). The police arrived at 08:02:00 a.m. (CR 99). Manager Maxwell was
standing in front of Appellee Rose’s vehicle when the police arrived. (CR 71).
Manager Maxwell signed a complaint at the incident charging Appellee
Rose with Theft.
(CR 90). Appellee Rose was arrested and impound and inventory of his vehicle
was completed at 08:10:00 a.m. (CR 96). Appellee Rose was taken to the Center
Police Department Jail for confinement and personal inventory completed at
08:30:00 a.m. (CR 96).
Certegy provides Murphy USA, Inc. “a toll-free number for a customer to
call themselves to find out the reason for the decline and how they can resolve the
problem.”(CR 89). Appellee Rose was disallowed the toll-free number and opportunity to resolve the problem before the police arrived and after the police
arrived.
The conduct of Murphy USA, Inc. and manager Mary Francis Maxwell
should be of grave concern to all citizens and consumers in the State of Texas.
Appellees respectfully argue that the Texas State Legislators did not enact the
TCPS, Texas anti-SLAPP statute to protect the conduct of a person or corporation
in a case of this nature.
Appellee Rose, resident of Florien, Louisiana, was arrested for theft and put
in jail for paying with sufficient funds checks that were declined for payment due
to Appellants’ negligence. Just how often does this happen when a person writes
two sufficient checks for payment and then is arrested for theft and put in jail for
two days. Appellee Rose had no intention of stealing gasoline from Murphy USA,
Inc. located in Center, Texas. Appellee Rose did not leave the premises or even
attempt to leave the premises because he was still on the premises when the police
arrived to administer the law.
Appellee Rose is innocent of the charge of theft. Rose wrote two sufficient
check on two separate accounts with a balance of about $20,000.00.
Appellants however expend effort to favor their so-called protected conduct
they claim falls within the TCPS’s definition of the “exercise of the right to
petition” under Tex. Civ. Prac. & Rem. Code §§ 27.001 (4)(A)(i-ii) and want this lawsuit dismissed. The trial court disagreed with Appellants’ pleadings and
argument and denied their motion to dismiss on July 23, 2015.(CR 109).
The record of the check verification time and procedure evidence that
Manager Maxwell however trained was negligent in her check verification
procedure and she negligently did not and would not provide a customer his
rightful entitlement to the decline code information and toll-free telephone contact
number to call so that “he” could have resolved the problem.
Appellee Rose was injured with damaging fault. Manager Maxwell breached
her duty to a Customer and did not reveal the facts of the check verification
procedure to the arresting officer. It was not the police officer that signed the
complaint. The County Attorney did not sign the complaint. It was manager
Maxwell that pressed the charge of theft against Appellee Rose when
and because she signed the complaint that got him arrested. Now in this Appeal the Appellants’ “Statement of Facts” state that the police
“had” Manager Maxwell sign a complaint. This statement is “not” in Manager
Maxwell’s affidavit. There is no mention whatsoever that the police had manager
Maxwell sign the complaint in her affidavit presented at the trial court hearing. CR
58, 59).
Appellants’ motion to dismiss pursuant “(constitutional right to petition and
otherwise participate in government to the maximum extent permitted by law)”
never addresses Manager Maxwell’s duty as a “trained” manager for Murphy USA,
Inc. When the trained manager assisted Appellee Rose by turning on pump #6, the
assistance constituted approval by implied agreement. (CR 58, #4). Appellants
have added to their statement of the facts that Mr. Rose “requested that the pump
be turned on before paying” which does not appear and was not stated in
Maxwell’s affidavit and was added to bolster Appellants’ version of the events for
appeal.
If it may be logically assumed that a manager of Murphy USA, Inc. is
trained in procedure and policy governing customer relationship, then it follows
that said manager was also trained in Murphy USA, Inc.’s check verification and
collection service policy agreement with Certegy. The Certegy web-site makes it
specifically clear the merchant’s duty to a customer: when a check is declined by a
merchant’s check verification service, the merchant is required to issue the customer a decline slip containing a decline code and toll-free number that allows
the customer to call the check verification service “Certegy” to find out the reason
for the decline and how the problem can be resolved. In addition, Certegy provides
merchant employees with a technical support telephone number when questions
arise for employees.(CR 89).
Manager Maxwell trained employee did not provide, in any way, Rose with
critical information and did not even feel Rose, the customer, warranted her calling
Certegy technical support. (CR 89)
Instead, the customer warranted Manager Maxwell calling the police to
administer the law without all the facts. See § 27.001(ii).
The Center Police Dept.’s detailed call report indicates that on 8-19-2014, a
911 call was received from Frances Maxwell at 8:00a.m., call signal: THEFT, at
Murphy USA. Police arrived at 8:02 a.m. (CR 99). Manager Maxwell signed a
complaint charging Appellee Rose with the crime of theft. (CR 90). Appellee Rose
was arrested on the premises of Murphy USA, Inc. His vehicle was impounded by
8:10a.m.(CR 96). His house keeper Laureen Irving told to leave the scene- walk
away- in a town not her home town. SUMMARY OF THE ARGUMENT
This reply brief presents the Court with an issue that the conduct and actions of
Maxwell, in this case should be of grave concern to all citizens and consumers in
this state. Rose contends that the Texas State Legislators did not enacted the TCPS,
Texas anti-SLAPP motion to dismiss, to protect any conduct by any person or
Corporation in a case such as this one.
In this case, how does a 72 year old man get arrested for theft and put in jail for
two days. Rose had no intention of stealing gasoline from Murphy USA, Inc. gas
station in Center, Texas. Rose is innocent, because he wrote two sufficient checks
on two accounts with a total of about $20,000 dollars, the day of the incident. (CR
91-92) Maxwell is a trained Manager for Murphy USA, Inc.. Maxwell is trained in
business policy and procedure of the everyday operations of the store. Maxwell
assisted Rose by turning on the gas pump and allowed Rose to pump the gas. (CR
58 #4) After pumping the gasoline, Rose credit card was declined for payment.
Then Rose wrote a sufficient check for payment, Maxwell typed the wrong state
code on Rose’s driver license. The state code should have been LA. not TX. (CR
101) The check was decline due to the drive’s license did not match the checking
account number in the check verification service data-base system. Rose is in the
system data-base. Twenty days prior, Rose’s check was approved at Samsclub-
Walmart for $818.71, same verification service. (CR 100) Maxwell states in her affidavit that, “once the system declines a check”. (CR 59 #11) That system is
Certegy check verification service and by policy, once a check is decline, Maxwell
should have issued Rose a decline code and toll free phone number to call Certegy
to resolve this matter and Maxwell should have called technical support to help
correct this issue. (CR 89) Maxwell neglected to do either. The Certegy website
clearly states procedure the Merchant owes the customer. Id Instead, Maxwell
called 911 at 8:00 am Center Police Department, and signal was theft on the police
dispatcher’s report. Law enforcement arrived 8:02. (CR 99) Rose was still on the
permises when law enforcement arrived. Rose never attempted to leave as
Maxwell’s stated. Maxwell told law enforcement that Rose tried to leave after his
checks were declined. Then Maxwell signed a false complaint, charging Rose with
theft without due process, (CR 90) resulting in the arrest of Rose. At 8:10 am,
Rose’s car was impounded and inventoried. (CR 96)
Rose alleges, due to Maxwell’s conduct, and negligence of duty and breach of
duty, by not following Certegy check procedure and policy is the cause of the
sufficient checks to be declined and not issuing Rose the toll free phone number
and decline code to call Certegy. There was ample time for Maxwell to complete
her duty she owed Rose before and after police arrived. Instead, Maxwell filed a
signed false complaint, charging Rose with theft was without due process.
Maxwell’s motion to dismiss is based Chapter 27 of the Practice and Remedies Code, referred to as Texas anti-SLAPP statute, that communications made to law
enforcement to administer the law, and “exercise of the right to petition” to the
fullest extent permitted by law. Due to Maxwell’s actions and conduct, falls outside
the parameters of the anti-SLAPP statutes to administer the law and extent
permitted by law. The trial court denied the motion to dismiss and should be
upheld.
ARGUMENT AND AUTHORITIES
The concern in this case is that if a customer writes a sufficient check to a
Merchant and that sufficient check is declined due to the negligence of that
Merchant. It would then make it possible that the Merchant can call the police and
the customer could be arrested if the Merchant signed a complaint charging that
person with theft without due process of the law. The Texas legislators did not
enact the Texas anti-SLAPP statute to protect the negligence of a Merchant and
their legal duty that is owed to the customer.
Maxwell’s motion to dismiss is based on communications to law enforcement to
administer the law. Rose contends that it was Maxwell’s material omissions that
lead to a false impression, that did not allow law enforcement to lawfully
administer the law and her untruthful statement that Rose was trying to leave
without paying. Maxwell’s actions and conduct are beyond the “exercise of the
right to petition” permitted by law. The trial court’s decision should be upheld. 11 1. The Texas anti-SLAPP statute does not apply to Appellees’ claims.
Appellees respectfully contend they have met their burden with clear and
specific evidence of claims according to the Tex. Civ. Prac. & Rem. Code, sections
§ 27.002 and § 27.010(b).
The Appellants’ communication with Appellee Rose, customer, involving
Appellant’s check verification, withholding check verification information, and
reckless disregard of duty to provide Appellee Rose with the check verification
information containing decline codes and toll-free telephone number to allow him
access to and opportunity to call the Certegy check verification service to
personally resolve a problem is communication.
When reviewing rulings on TCPA dismissal motions, the First Court of
Appeals viewed the pleadings and any other “evidence” in the light most favorable
to the non-movant. See Crazy Hotel, 416 S.W.3d at 80-81 (citing Miranda, 133
S.W.3d at 227) accord Cheniere Energy, 449 S.W.3d at 214 (“we are to view the
pleadings and evidence in the light most favorable to the non-movant”).
A. Standard of Review and Jurisdiction
“The corresponding standards of appellate review give deference to those
determinations (especially with regard to the credibility of live witnesses) and
presume the fact-finder resolved any evidentiary conflicts in favor of the findings
that it either expressly made or that are implicit in its ultimate ruling.” See, e.g., 12 City of Keller v. Wilson, 168 S.W.3d. 802,819 (Tex. 2005).
B. Communications made to law enforcement in reporting of a potential crime is not protected under the Texas anti-SLAPP statute.
Maxwell’s claim that communications made to law enforcement to report a
potential crime are protected under the Texas anti-Slapp motion to dismiss
“Exercise of the right to petition”----“communications in or pertaining to”----“a
judicial proceeding”----“an official proceeding, other than a judicial proceeding, to
administer the law”. TEX. CIV. PRAC. & REM. CODE §§ 27.001 (4)(A)(i-ii).
Maxwell owed a duty to Rose (private person), as a merchant. She was
negligent in her actions toward Rose. Maxwell’s affidavit does not address her
duty or the false complaint, only some legal terminology to hide behind about a
belief or the attempt of a potential crime. Rose, argue that due to her negligence,
and legal duty owed to Rose and her Breach of that Duty (that caused this entire
incident to begin with), that her “exercise of the right to petition”, does not
abrogate or lesson (the common law of negligence). § 27.011 (a). Along with a
communication in or pertaining to, an official proceeding, other than a judicial
proceeding, to administer the law. § 27.001 (4)(A)(ii). Rose argues that in an
official proceeding, if all facts are not communicated to law enforcement, how is
law enforcement going to lawfully administer the law. Id. (ii) Rose argues, due to
Maxwell’s own material omissions of the facts that were not communicated to law
13 enforcement (Duty, Breach of Duty), and why the sufficient checks were declined,
were not communicated to law enforcement. Maxwell’s own ommission’s to law
enforcement are not Constitutionally protected.
On page 2 of Maxwell’s appeal brief state’s, Rose requested that the gas pump be
turned on before paying. Rose did not request this and this statement is not in
Maxwell’s affidavit. (CR58-59) It also state that the police had Maxwell sign the
complaint. (CR 58-59) Both statements are not true. Maxwell never mentions she
signed a complaint in her affidavit. Maxwell is trying to Bolster their argument.
Bolstering occurs when one item of evidence is improperly used by a party to add
credence or weight to some earlier un-impeached piece of evidence offered by the
same party. see Cohn v. State, 817 S.W.2d 819 (Tex. Cr. App. 1993).
The TCPA, right to petition, does not abrogate Maxwell’s signing a false
Complaint, charging Rose with theft without due process of law. see Martin v.
Thomas, 973 F.2d 449, 453-454. ((5th Cir. 1992) Martin had permission to enter
the Gym, therefore the charge of trespass is without due process of law). i.e. Rose
was allowed to pump the gasoline (CR 58 #4) and paid with sufficient checks, but
due to Maxwell’s negligence the checks were declined. (CR 59 #5) Therefore her
signing a complaint, charging Rose with theft, is without due process of law. The
checks were not proven to be insufficient. Rose was innocent of the charge, in
which Rose wrote two sufficient checks on two accounts that had a balance of 14 about $20,000. (CR 91-92) Signing a false complaint for theft is not
constitutionally protected under the U.S. or Texas constitution. Maxwell’s conduct
was not an act in furtherance of her constitutional right to petition. Falsely
accusing a person of a crime is considered defamation per se. In re Lipsky, 460
S.W.3d at 596.
Maxwell, in holding Charalambopoulos v. Grammer, 2015 WL 390664 (N.D.
Tex. 2015), that the Texas Supreme Court would [likely] find that the statute’s
definition of the right to petition applies to communications reporting a potential
crime—including the filing of a criminal complaint. Maxwell’s appeal is holding
that communications made to law enforcement to administer the law. Not
communications reporting a potential crime and filing a false complaint. No Texas
case found that addresses whether statements made to law enforcement when
reporting a possible crime qualify under the TCPA as the reporting party’s exercise
of the right to petition. Maxwell, in holding Grammer, is likely but not proven.
Therefore Grammer, does not apply to this case.
In a recent case, the Texas Court of Appeals, Third District, at Austin stated that
the California statutes can sometimes provide guidance regarding comparable
TCPA provision. see Serafine v. Blunt, 2015 WL 3941219 (Tex.App.-Austin 2015,
no pet.)
15 This California case states the act of making a false police report was not an act
in furtherance of her constitutional right of petition or free speech, the anti-SLAPP
statute simply never comes into play in this case. see Lefebvre v. Lefebvre, 996
P.2d 518 (Or. Ct. App. 2000).
TEX. CIV. PRAC. & REM. CODE § 27.002 PURPOSE. “ The purpose of this
chapter is to encourage and safeguard the constitutional rights of persons to
petition, speak freely, associate freely, and otherwise participate in government to
the maximum extent permitted by law and, at the same time, protect the rights of a
person to file meritorious lawsuit demonstrable injury”.
Maxwell’s actions and conduct in this case right to petition, are not permitted by
law. Communications made to law enforcement, regards to the Maxwell’s appeal
were to allow law enforcement to administer the law. The anti-SLAPP statute
states only a communication, to administer the law and to the maximum extent
permitted by law, is protected under the statute. Maxwell’s actions and conduct and
false complaint are not protected under the U.S. or Texas constitution and are not
permitted by law. Rose argues that the Texas Legislators did not enact or intend
for the Texas anti-SLAPP statute to protect conduct as in this case. The trial courts
denial of the motion to dismiss should be upheld to protect the rights of a person to
file meritorious lawsuit for demonstrable injury.
16 2. Appellees established prima facie clear and specific evidence in their response to Appellants’ motion to dismiss in the lower court. Appellees met their required burden of proof on their claims presented in the
lower court reflected in the court’s determination on Appellees’ pleadings and
evidence ruled to be factually credible and legally sufficient to deny Appellants’
motion to dismiss.
A. Appellees’ claim of malicious prosecution sustains because Appellee Rose has produced prima facie evidence of malice and has materially rebutted Appellants’ presumption of probable cause. “Texas courts have recognized a cause of action for those unjustifiably
subjected to criminal proceedings, but has made it clear that such cause of action,
known as malicious prosecution, must sometimes yield to society’s interest in
encouraging its citizens to report crimes whether real or merely perceived.” Kroger
Tex. Ltd. P’ship v. Suberu, 216 S.W.3d. 788, 792 (Tex. 2006).
Appellees must prove: (1) criminal proceeding was commenced against the
plaintiff; (2) the defendant initiated or procured the proceeding; (3) the proceeding
was terminated in plaintiff’s favor; (4) the plaintiff was innocent of the crime
charged; (5) the defendant lacked probable cause to initiate the criminal
proceeding; (6) the defendant acted with malice; and (7) the plaintiff suffered
damages. Id.(citing Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517
(Tex.1997).
17 Appellee Rose was arrested and taken to jail in the morning of August 19,
2014.(CR 95, 96). Manager Maxwell signed a complaint on August 19, 2014,
charging Appellee Rose with theft. (CR 90). Appellee Rose was called to county
court on Cause No.14-34501CR and made his appearance in the Shelby County
Court in Center, Texas on November 6, 2014. At court,
Appellee Rose’s defense attorney produced evidence of bank statements (CR
91, 92) establishing innocence and terminating the court proceeding in favor of
Appellee Rose. The prosecuting County Attorney presented his motion to dismiss
to presiding Judge Hon. Rick Campbell who ORDERED, ADJUDGED, and
DECREED Cause No.14-34501CR be dismissed.(CR 97).
The probable cause element “asks whether a reasonable person would
believe that a crime had been committed given the facts as the complainant
honestly and reasonably believed them to be before the criminal proceedings were
instituted. Id. Richey (citing Akin v. Dahl, 661 S.W.2d 917, 920 (Tex.1983). Courts
must presume that the defendant acted reasonably and had probable cause to
initiate criminal proceedings. Id. To rebut this presumption, the plaintiff must
produce evidence that the motives, grounds, beliefs, or other information upon
which the defendant acted did not constitute probable cause. Id. at 518.
(i) There is evidence of malice.
18 Malice can be established by either direct or circumstantial evidence and
may be inferred from a lack of probable cause. Thrift v. Hubbard, 974 S.W.2d 70,
at 80 (1998). The manager’s withholding and failure to disclose the available
Certegy decline check information to Appellee Rose and the police is relevant to
malicious intent of defendant. If a person reports a crime with an improper
purpose, or in reckless disregard of the rights of another in a knowing and
unreasonable manner, that is malice. Id. Richey, 952 S.W.2d at 519-20 (holding in
malicious prosecution action, failing to fully and fairly disclose all relevant facts or
knowingly providing false information to police is relevant to malicious intent of
defendant); Thrift, 974 S.W.2d at 80 (holding defendant’s failure to disclose
exculpatory facts was sufficient to demonstrate malice).
A malicious prosecution action against a corporate entity may be based on an agent
taking action to procure a prosecution. See Eans v. Grocery Supply Co., 580
S.W.2d 17, 21-22 (Tex. Civ. Appl.– Houston [1st Dist.] 1979, no writ) (malicious
prosecution judgment upheld against corporation based on actions of corporate
employees).
On the basis of manager Maxwell’s conduct and action, Appellee Rose was
arrested and taken to jail and spent two days before he posted bond. His vehicle
was impounded, his two dogs were impounded, and his housekeeper told to walk
19 away from the scene in a town not being her town of residence. Appellees’ claim
for malicious prosecution should be upheld as a matter of law.
(ii) There is evidence to rebut the presumption of probable cause.
Manager Maxwell’s belief that a crime had been committed was based upon
check verification information she received and acted upon that did not constitute
probable cause that Appellee Rose had committed theft. When a customer pays
with a check, the customer’s check is submitted to Certegy Check Verification and
Collection Service for its approval or decline. A personal check #1610 and a
business check # 2020 containing substantial account balances (CR 91, 92) were
declined. (CR 101). Certegy supplies the Appellants with decline information
including a toll-free telephone number for a customer to call and find out the
reason for the non-approval and decline and how the customer can resolve the
problem. (CR 89).
Appellee Rose is in the Certegy data base as evidenced and pursuant
business check # 2009 submitted and accepted twenty days prior in the amount of
$818.71 (CR 100) to Samsclub-Walmart who also uses Certegy Check Verification
Service.
There is no evidence manager Maxwell had probable cause to initiate a
criminal proceeding against Appellee Rose for writing checks on accounts lacking 20 sufficient balances. The Certegy check decline information upon which the
manager acted did not support a reasonable belief that Appellee Rose was guilty of
theft.
21 B. The evidence is legally and factually sufficient to establish a claim for false arrest. Manager Maxwell instructed her cashier Angela to print a “DRIVE-OFF” record
slip at 07:59:27. (CR 98). Appellee Rose had paid for his gasoline purchase with
two sufficient checks. (CR 91, 92). The manager standing in front of the vehicle
occupied by Appellees parked on the premises called the police at 08:00.00 and the
police arrived at 08:02:00. (CR 99).
Arresting officer Walker noted in his police report “Upon arrival the manager
Mary Maxwell was standing in front of the car blocking the subjects departure
route.” (Counsel apologizes to the Court and opposing counsel for the inadvertent
omission of the officer’s investigation report in the Clerk’s record and will
supplement the Clerk’s record if permitted.)
The manager willfully detained the Appellees without legal authority pointing
them out to the police when the police arrived. “A person pointing out another as
the perpetrator of a crime and requesting or directing police officers to make an
arrest is liable for a subsequent false imprisonment, even though the person acted
in good faith. Reicheneder v. Skaggs Drug Center, 421 F.2d 307 (5th Cir. 1970).
It has been established that “[a]ny person who directs, requests or participates in a
detention is liable for false imprisonment.” Bossin v. Towber, 894 S.W.2d 25
( Tex.App.Houston 14th Dist. 1994), writ denied; Karner v. Stump, 34 S.W. 656
22 (Tex.– Civ. App.1896).
The police officer arrived at 08:02:00, the officer met the manager at Appellees’
vehicle and right then arrested Appellee Rose his vehicle was impounded and
inventoried at 8:10:00.(CR 96).
The manager’s signature on complaint (CR 90) requested an arrest despite the
manager’s knowing the particular circumstances encountered during Appellee
Rose’s check verification procedure.
The manager did not tell Appellee Rose nor the police officer that a check decline
problem was resolvable and could have been addressed with a telephone call to a
Certegy check verification representative available to explain and resolve the
problem concerning Appellee Rose’s checks being declined.
The manager knowingly withheld vital information and assuming Ms. Maxwell is
a trained manager in all aspects of management, and assuming by previous years of
experience in management and policy (unknown, discovery suspended) receiving
checks for payment is routine.
It would follow that a trained manager who knew about and dealt with check
verification procedures would have learned that a check declined would not always
mean a check is fraudulent.
The manager swore to information inconsistent with the true facts, paragraphs 23 6,7,9 of the manager’s sworn affidavit. (CR 58,59).
The officer arrested Appellee Rose when the officer arrived at Appellees’ vehicle
at 08:02:00, and the vehicle was impounded and then inventoried at 08:10:00.(CR
96). The officer then provided the manager a complaint for the manager to sign.
(CR 90).
The trial court’s ruling on false arrest should be upheld.
C. Appellees’ negligence claim is recognized under Texas law.
Negligence is defined as “the failure to do that which a person of ordinary
prudence would have done under the same or similar circumstances, or doing that
which a person of ordinary prudence would not have done under the same or
similar circumstances.” See 2081, Inc. V. Parker, 249 S.W.3d 392,398 (Tex.2008);
Thompson v. Gibson, 298 S.W.2d 97,105 (Tex. 1957).
Appellee Rose arrived in the morning of August 19, 2014 at Murphy USA, Inc.,
located in Center, Texas, for the purpose of filling his vehicle with gasoline and
filling 4 auxiliary containers with gasoline. Manager Frances Maxwell, on duty at
the time, stated in her sworn affidavit “I assisted Mr. Rose by turning on the pump,
with the understanding that he would pay before leaving.” (CR 58).
Manager Maxwell’s assisting Appellee Rose by turning on the pump with the
understanding that he would pay before leaving became an implied-in-fact contract 24 establishing a legal duty owed by one person to another. An implied-in-fact
contract “arises from the acts and conduct of the parties, it being implied from the
facts and circumstances that there was a mutual intention to contract.” Haws &
Garrett Gen. Contractors, Inc. v. Gorbett Bros. Welding Co.,480 S.W.2d 607, 609
(Tex.1972); accord Mann Frankfort Stein & Lipp Advisors, Inc. v. Firlding,289
S.W.3d 844, 850 (Tex.2009).
A meeting of the minds is an essential element of an implied-in fact contract. Tex.
Ass’n of Counties Cnty. Gov’t Risk Mgmt. Pool v. Matagorda Cnty., 52 S.W.3d
128,133 (Tex.2000). The court must look to the conduct of the parties to determine
the terms of the contract on which the minds of the parties met. Parker Drilling
Co. v. Ramfor Supply Co., 316 S.W3d 68, 75 (Tex. App.– Houston [14th Dist.]
2010, pet denied); Wal-mart Stores, Inc. v. Lopez, 93 S,W.3d 548, 557 (Tex. App.–
Houston [14th Dist.] 2002, no pet.). The determination of a meeting of the minds is
based on what the parties said and did, not on their subjective state of mind. Id.
Parker at 75.
Elements of a Negligence cause of action are: 1) Duty owed by defendant to
plaintiff; 2) Breach of the duty; 3) Proximate cause of the plaintiff’s damages by
defendant’s breach; and 4) Damages. Rodriguez-Escobar v. Gross, 392 S.W.3d
109,113 (Tex. 2013).
25 After fueling his vehicle and filing auxiliary containers, Appellee Rose offered a
Walmart Card for payment that was declined. Appellee Rose then paid $83.18 by
personal check #1690 drawn on an account containing $4,984.16. (CR 92). The
manager negligently typed in the state code of Texas instead of the state code of
Louisiana (Appellee Rose is a resident of the state of Louisiana) and the manager
then submitted check #1690 to Certegy Check Verification and Collection Service
employed by Murphy USA, Inc. for approval. Check #1690 was declined at
7:45:48 final Rcode4 2106D. Check #1690 was submitted a second time with the
proper state code of Louisiana and declined at 7:46:24 final Rcode4 2606D.
Check #1690 was resubmitted a third time and declined at 7:49:35 final Rcode 4
2529D. (CR 101).
Appellee Rose then paid the $83.18 with business check #2020 drawn on an
account that contained $15, 253.73 on 8/18/14 the day before the event and
containing $15,036.73 on 8/20/14 the day after the event. (CR 91). The manager
submitted check #2020 that was declined at 7:57:34 final Rcode4 2606D. (CR
101).
Certegy Check Verification Service provides beneficial information to Murphy
USA, Inc. that is available to a customer when a check has been declined to be
given to a customer who can himself then call a toll-free number and speak with a
26 Certegy representative to find out the reason for the decline and how they can
resolve the problem. (CR 89).
The manager did not give the available Certegy information to Appellee Rose.
The agreement initially entered into between manager and customer imposed a
duty owed by one person to another. Appellee Rose did not breach his part of the
agreement when he intentionally paid for the gasoline purchase with two sufficient
checks that he knew were good.
The manager’s negligence of typing in the wrong state code when the first check
was submitted could have been the beginning red flag for subsequent declines but
apparently the manager didn’t know. Appellee Rose didn’t know because he wasn’t
given a chance to know. The manager failed to provide Appellee Rose with the
Certegy contact information which an ordinarily prudent person in the exercise of
ordinary care would have done. See Sisters of Charity of the Incarnate Word v.
Golbert, 992 S.W.2d 25,28 (Tex. App–Houston [14thDist]1997,no pet.).
The manager stated in her sworn affidavit paragraph 11, . . .”Once the system
declines the check, it can’t be overridden by me or another employee.”(CR 59).
But the system can be over-ridden by the customer if given the chance to do so by
himself discussing the check decline problem with the system’s technical support
representative. (CR 89). Nevertheless, the manager breached her duty to Appellee
27 Rose and called the police and reported a theft. (CR 99). The manager did
something an ordinarily prudent person in the exercise of ordinary care would not
have done. Id.
Duty is a question of law for the court to decide from the facts surrounding the
occurrence in question. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d
523,525 (Tex.1990). In determining whether a duty exists, a court is to consider
several interrelated factors such as: 1) The risk involved; 2) The foreseeability of
the risk; 3) Likelihood of injury; 4) and factors 1-3 weighed against the social
utility of the actor’s conduct and the magnitude of the burden on the defendant. Id.
Of all the factors considered foreseeability of the risk is the foremost and dominant
consideration. Id. (citing El Chico Corp v. Poole, 732 S.W.2d 306,311 (Tex. 1987).
Proximate cause is made up of two elements: cause in fact, and foreseeability.
Travis v. City of Mesquite, 830 S.W.2d 94,98 (Tex.1992). Proximate cause cannot
be established by mere conjecture, guess, or speculation. McClure v. Allied Stores
of Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980). The test for cause in fact is:
whether the negligent “act or omission was a substantial factor in bringing about
the injury.” without which the harm would not have occurred. Del Lago Partners,
Inc. v. Smith, 307 S.W.3d 762,774 (Tex.2010). Cause in fact is not shown if the
Defendant’s negligence did no more than furnish a condition which made the
28 injury possible. Id. Foreseeability requires that a person of ordinary intelligence
should have anticipated the danger created by a negligent act or omission. Id. A
danger of injury is foreseeable if its “general character might reasonably have been
anticipated.” Id.
The manager assisted Appellee Rose by turning on the pump with the condition
that he would pay before leaving. (Cr 58 #4). Upon completion of pumping gas,
Appellee Rose payed by check being an approved method of payment by Murphy
USA. Inc.’s policy and the check was accepted by the manager. The understanding
to pay ties the manager to her accepting a check for payment, and the manager
accepting the check ties the manager to the Certegy check verification policy, and
Certegy ties the manager to the conditions and the procedure of the Certegy policy.
The manager stated a check policy exists: “Once the system declines the check.”
(CR 59#11).
The condition of Certegy check policy is that the manager follow the procedure
correctly. The manager did not follow the check policy correctly because she
typed-in the state code incorrectly. Once an error in the Certegy check policy
occurs therein lies a REMEDY within the policy that binds the manager to the
procedure of the policy. Certegy policy tied the manager to the remedy. But the
manager neglected to employ a remedy that states once a check is declined for
29 payment the remedy is to issue and provide the customer with a toll-free number
and a decline code so the customer can call Certegy and resolve the problem, and
in addition, the Certegy policy offers a toll free technical support number when
questions arise. The manager negligently breached her duty to provide Appellee
Rose with the Certegy remedy.
The manager who and knowing of the fifteen minutes of ongoing check
verification had a duty to reasonably avoid the foreseeable risk of Appellee Rose’s
arrest. The standard of care is usually to act as a reasonably prudent person would
act under the same or similar circumstances exercising ordinary care. The manager
did not exercise ordinary care and negligently breached her duty to provide the
important Certegy remedy to Appellee Rose before the manager called the police.
The manager’s failure to provide the Certegy remedy was a substantial factor in
bringing about injury and the factual cause and proximate cause of Appellee Rose’s
damages.
Appellee Rose was arrested and taken to jail where he was confined until a two-
thousand dollar bond was posted gaining his release in the evening of August 20,
2014. His vehicle and two pets had been impounded and he had to pay impound
fees to secure their release.
The Appellees respectfully contend they have met their burden and the trial
30 court’s ruling should be upheld.
D. Appellee’s claim for defamation should be granted.
Whether a particular statement constitutes a defamation or defamation per se
depends on the nature of the statement. Texas law presumes that the following
statements are defamatory per se: (1) statements that unambiguously charge a
crime, dishonesty, fraud, rascality, or general depravity, or (2) statements that are
falsehoods that injure one in his office, business, profession, or occupation. See
Main v. Royall, 348 S.W.3d 318,390 (Tex. App.– Dallas 2011, no pet.).
The manager’s DRIVE OFF report purporting that Appellee Rose drove away
(CR 98) and her call reporting a theft (CR 99) and signing a complaint for theft
(CR 90) were defamatory per se. Appellee Rose is a private person and must prove
that the manager was at least negligent with respect to the truth or falsity of the
defamatory statement. French v. French, 385 S.W.3d 61,73 (Tex. App.–Waco 2012,
pet. denied).
The manager stated in her sworn affidavit that she believed Appellee Rose was
leaving the premises without paying for his gas and that he had committed or was
attempting to commit a crime. (CR 58 #6). Merely expressing a defamatory
statement in a form of an “opinion” does not shield it from tort liability because
opinions often imply facts. See In re Lipsky v. 460 S.W3d 579 (Tex. 2015) (orig.
31 proceeding). We classify a statement as fact or opinion based on the statements and
the entire context in which the statement was made. Id.
The manager’s belief and statement were falsely misleading because Appellee
Rose had not committed nor attempted to commit a crime because he paid for the
gasoline he purchased with two sufficient account checks (CR 91, 92) and was still
on the premises according to the police report when the police arrived (CR99) and
still on the premises when and at the time the manager signed a criminal complaint.
(CR 90).
A false statement will typically be classified as defamatory per se if it injures a
person in his office, profession or occupation. Morrill v. Cisek, 226 S.W.3d
545,549 (Tex.App.– Houston [1st Dist.] 2006, no pet.). A communication is
considered liable per se when it so obviously hurtful to the person aggrieved that
no proof of its injurious character is required to make it actionable. Clark v.
Jenkins, 248 S.W.3d 418,437 (Tex. App.– Amarillo 2009, pet denied __U.S. 130 S.
Ct. 52,175 L.Ed. 2d 21 (2009).
A criminal complaint is a communication. The manager adopted the
communication when she signed the criminal complaint. The manager’s sworn
signature on the criminal complaint is an oath no less than the oath she swore when
she signed her affidavit. (CR 58-60). The manager signed the criminal complaint
32 charging Appellee Rose with theft. The manager stated in her affidavit that she
reported her “belief that Mr. Rose had committed or was attempting to commit a
crime to the police dispatcher, and to the responding police officers.” because his
Walmart card and two checks were declined. (CR 59). To be actionable as
defamation, a statement must be an assertion of verifiable fact, that is, a statement
that purports to be verifiable. Bently, 94 S.W.3d at 583-584. The manager made
statements that were based on incorrect information. The reason
for check decline was verifiable by the manager. The manager did not verify the
reason for check decline. The manager stated in her affidavit “In the event a
customer’s check is declined for payment, it is not the responsibility of a store
manager, or any employee, to call a customer’s bank. Once the system declines the
check, it cannot be overridden by me or another employee.” (CR 59, #11). By
implication, the manager’s statement implies that once a check is declined it
becomes the customer’s responsibility. The manager with inherent malice would
not provide Appellee Rose the Certegy decline information or allow him to call his
bank so he could shoulder his own responsibility. Appellee Rose was arrested for
theft because of the manager’s defamatory statement that his checks were
“declined.” being verifiable checks of $83.18 drawn on two separate bank accounts
located in the same bank totaling an aggregate amount of $20,000.00.
33 (CR 91, 92).
The defendant’s intent in making the statements has no bearing on whether they
are defamatory. See Peshak, 13 S.W3d at 426 (We assume the words were intended
because they were used.”).( “Common sense requires courts to understand the
statement as ordinary men and women would”).
The manager’s word “belief” used in her affidavit (CR 59 #7) was not based on
the outcome of a customers’ independent verification with a Certegy
representative. The manager’s “belief” was not based on the truth or reality of an
examination of the Certegy information available to a customer but denied the
customer by the manager. A belief is an opinion stronger than impression and less
strong than positive knowledge. (Webster’s Collegiate Dictionary). The manager’s
opinion being masked with belief does not shield the manager’s fault and
defamatory statements from tort liability. Id. In re Lipsky.
The manager’s statements to the police were defamatory per se and liable per se.
Appellees have produced more than a scintilla of evidence that Appellee Rose was
not attempting to leave as alleged without paying for his purchase because he paid
for his purchase with two separate sufficient checks. Appellee was arrested for
theft because the manager signed a complaint that the manager knew the
information provided would lead to arrest at the scene though now alleged by
34 affidavit the arrest was left up to the police officer. Appellee’s claim for defamation
per se and liable per se is not without merit and should be upheld.
E. Appellees evidence regarding Irving’s allegations.
It is true that Appellee’s original and amended petitions did not claim by count
separate claims by Appellee Irving. However, it is established under the Fourth
Amendment and case law that a passenger has standing to challenge an
unreasonable seizure restricting a passenger’s freedom.
Prayer
The Appellees’ respectfully request this Court uphold the trial court’s order denying the
Appellants’ anti-SLAPP motion to dismiss all claims. The Appellees’ also request that this case
be remanded to the trial court for a determination of attorneys’ fees under the anti-SLAPP statue
since this motion was filed under this chapter was frivolous and solely intended to delay, the
court may award court costs and reasonably attorney’s fees to the responding party. See Tex. Civ.
Prac. & Rem. Code § 27.009(1)(b).
/s/ Donovan Paul Dudinsky Donovan Paul Dudinsky State Bar No. 24038869 dpauldudinsky@yahoo.com 701 South Liberty Street San Augustine, Texas 75972 Telephone: (936) 275-9871 Facsimile: (936) 275-9655 35 Counsel For Appellees
Certificate of Compliance
I certify that this document contains 7530 words, not counting the sections exempt under Rule of Appellate Procedure 9.4. The body font is 14pt.
/s/ Donovan Paul Dudinsky Donovan Paul Dudinsky
36 Certificate of Service
A copy of this Appellees’ Brief was sent on this 23rd day of September 2015 to the following counsel via e-mail.
Counsel for Appellants
Brandon W. Maxey Hawkins Parnell Thackston & Young LLP 4514 Cole Avenue, Suite 500 Dallas, Texas 75205 e-mail: bmaxey@hptylaw.com /s/ Donovan Paul Dudinsky Donovan Paul Dudinsky
Murphy USA, Inc. and Mary Frances Maxwell, Mgr. v. Freddie J. Rose and Laureen Irving (Murphy USA, Inc. and Mary Frances Maxwell, Mgr. v. Freddie J. Rose and Laureen Irving) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.