Samella Anderson v. Elma Z. Goodwin

• Court: Court of Appeals of Texas
• Decided: February 22, 2024
• Docket: 05-23-00343-CV
• Status: Published

Opinion

Affirm and Opinion Filed February 22, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00343-CV

SAMELLA ANDERSON, Appellant V. ELMA Z. GOODWIN, Appellee

On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-22-10908

MEMORANDUM OPINION

Before Justices Partida-Kipness, Pedersen, III, and Garcia Opinion by Justice Garcia

Appellant Samella Anderson sued appellee Elma Z. Goodwin for defamation,

abuse of process, and malicious prosecution. Goodwin filed a motion to dismiss

based on the Texas Citizens Participation Act,1 and the trial judge granted

Goodwin’s motion. Anderson appeals. We affirm.

1 TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011; see also Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 1, 2011 Tex. Gen. Laws 961, 961 (H.B. No. 2973) (“This Act may be cited as the Citizens Participation Act.”). I. BACKGROUND

A. Alleged Facts

Anderson alleged the following facts in her first amended petition.

Anderson and Goodwin were members of the same homeowners association,

and some HOA-related acrimony developed between them. In summer 2021,

Goodwin began spreading a false rumor that Anderson had assaulted Goodwin with

a deadly weapon and threatened to kill her. Anderson believed that Goodwin spread

this rumor to neighbors, HOA board members, the HOA’s management company,

and others.

On July 29, 2021, Goodwin made a false police report to the DeSoto police

accusing Anderson of displaying a silver handgun and pointing it at Goodwin before

driving away.

Goodwin then sought a peace bond from a Dallas County justice of the peace.

After a hearing in August 2021, the justice of the peace ruled that there was no

probable cause and dismissed the case.

Anderson was eventually arrested for felony aggravated assault with a deadly

weapon. The criminal case went to trial, and on December 12, 2022, Anderson was

found not guilty.

–2– B. Procedural History

On August 25, 2022, Anderson sued Goodwin for defamation and abuse of

process. Goodwin answered and counterclaimed for assault by threat of bodily

injury.

Goodwin later filed a TCPA motion to dismiss Anderson’s claims. The

motion challenged Anderson’s ability to make out a prima facie case in support of

her claims and also asserted the affirmative defenses of statute of limitations and

absolute privilege.

Three days before the hearing of Goodwin’s TCPA motion, Anderson filed a

response to the TCPA motion and a first amended petition in which she added a

malicious-prosecution claim based on the outcome of her recent criminal trial. The

evening before the hearing, Goodwin filed a motion to strike Anderson’s response

and most of her evidence.

The trial judge held a hearing on Goodwin’s TCPA motion, and she

entertained arguments regarding Goodwin’s motion to strike at that hearing as well.

She took the TCPA motion under advisement and in January 2023 signed an order

that granted the motion, dismissed Anderson’s claims, and set a deadline for

Goodwin to file a motion for attorney’s fees. The order did not state any reasons for

the ruling. The judge did not rule on or even mention Goodwin’s motion to strike.

Anderson filed a motion for reconsideration. The trial judge denied the motion

after a hearing.

–3– The trial judge later signed an order awarding Goodwin attorney’s fees of

almost $21,000, plus additional appellate fees. The order contained finality language

that had the effect of dismissing Goodwin’s assault counterclaim.

Anderson then timely appealed. The appeal was submitted without oral

argument.

II. ISSUES PRESENTED

Anderson presents two issues, which we paraphrase as follows.

First, the trial judge erred by granting Goodwin’s TCPA motion because

Goodwin did not demonstrate that Anderson’s claims were based on or in response

to Goodwin’s exercise of a TCPA-protected right.

Second, the trial judge erred by granting Goodwin’s TCPA motion because

Anderson successfully established a prima facie case for her claims by clear and

specific evidence.

III. ANDERSON’S NOTICE OF APPEAL

At the outset, we address a point raised by Goodwin in her appellee’s brief:

Anderson’s notice of appeal identifies only the trial judge’s March 9, 2023 order

denying Anderson’s motion for reconsideration as the order being appealed.

Goodwin argues that this means that the only order before this Court for review is

the order denying the motion for reconsideration. This would be fatal to Goodwin’s

appeal because, as stated above, her appellate issues complain only about the January

2023 order granting Goodwin’s TCPA motion—not about the denial of her motion

–4– for reconsideration. We conclude that Anderson’s notice of appeal is defective but

that the defect does not prevent us from addressing Anderson’s issues.

The appellate rules require a notice of appeal to “state the date of the judgment

or order appealed from.” TEX. R. APP. P. 25.1(d)(2). An order denying a motion for

reconsideration is not independently appealable. Pitts v. Bank of N.Y. Mellon Tr. Co.,

No. 05-17-00115-CV, 2017 WL 474468, at *1 (Tex. App.—Dallas Feb. 6, 2017, no

pet.) (mem. op.). Anderson’s notice of appeal is, therefore, defective because it does

not list the date of the final judgment and identifies only the order denying

reconsideration as an order being appealed.

However, the mistake in Anderson’s notice of appeal does not deprive us of

appellate jurisdiction. See Darya, Inc. v. Christian, 251 S.W.3d 227, 231 (Tex.

App.—Dallas 2008, no pet.) (holding that notice of appeal invoked appellate

jurisdiction despite reciting the wrong date for the appealed order). We could require

Anderson to file an amended notice of appeal, see TEX. R. APP. P. 25.1(g), but

nothing would be gained by this exercise, see Darya, Inc., 251 S.W.3d at 231.

Accordingly, we disregard the error and proceed to the merits of Anderson’s appeal.

IV. ANALYSIS

A. Overview of the TCPA

A TCPA motion to dismiss triggers a multi-step analysis. See TEX. CIV. PRAC.

& REM. CODE ANN. § 27.005(b)–(d). At step one, the movant bears the initial burden

to demonstrate that the nonmovant’s legal action is based on or in response to (1)

–5– the movant’s exercise of the right of free speech, the right to petition, or the right of

association, or (2) conduct by the movant fitting the descriptions found in

§ 27.010(b). See id. § 27.005(b).

If the movant carries its step-one burden as to a claim, the burden shifts to the

nonmovant to establish by clear and specific evidence a prima facie case for each

essential element of that claim. See id. § 27.005(c). If the nonmovant does not carry

its burden, the claim must be dismissed. See id. § 27.005(b), (c). And even if the

nonmovant carries its step-two burden, the movant can still win dismissal at step

three by establishing an affirmative defense or other grounds on which it is entitled

to judgment as a matter of law. Id. § 27.005(d).

In determining whether a legal action is subject to or should be dismissed

under the TCPA, a court shall consider the pleadings, evidence the court could

consider under the summary-judgment rule, and supporting and opposing affidavits

stating the facts on which the liability or defense is based. Id. § 27.006(a). We

consider these materials in the light most favorable to the nonmovant. Temple v.

Cortez L. Firm, PLLC, 657 S.W.3d 337, 342 (Tex. App.—Dallas 2022, no pet.).

We review de novo the trial judge’s determination that the parties met or failed

to meet their respective burdens under the TCPA. Garcia v. Semler, 663 S.W.3d 270,

279 (Tex. App.—Dallas 2022, no pet.).

–6– B. Issue 1: Did Goodwin carry her step-one burden under the TCPA as to each of Anderson’s claims?

In her first issue, Anderson argues that Goodwin failed to demonstrate that

Anderson’s claims were based on or in response to Goodwin’s exercise of a right

protected by the TCPA. We disagree for the following reasons.

1. Applicable Law

Goodwin’s TCPA motion invoked the right of free speech and right to

petition, which the TCPA defines in relevant part as follows:

(3) “Exercise of the right of free speech” means a communication made in connection with a matter of public concern.

(4) “Exercise of the right to petition” means any of the following:

...

(C) a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding . . . .

Id. § 27.001(3), (4)(C).

The TCPA further defines the phrase “matter of public concern,” in relevant

part, as follows:

(7) “Matter of public concern” means a statement or activity regarding:

(B) a matter of political, social, or other interest to the community; or

(C) a subject of concern to the public.

Id. § 27.001(7)(B), (C). –7– 2. Application of the Law to the Facts

First, we identify the bases for Anderson’s claims against Goodwin. Anderson

asserted claims against Goodwin for abuse of process and malicious prosecution2

based on allegations that Goodwin made a false police report that accused Anderson

of orally threatening to “blow [Goodwin’s] head off” and displaying a silver

handgun that she pointed at Goodwin before driving away. Anderson also sued

Goodwin for defamation, alleging that Goodwin made those same accusations not

only to law-enforcement personnel but also to people in the HOA and the general

community. Thus, all of Anderson’s claims are based on communications by

Goodwin.

We next consider whether the communications in question were exercises of

the right of free speech, i.e., whether they were made in connection with a matter of

public concern. See CIV. PRAC. & REM. § 27.001(3). Based on controlling case

authority, we conclude that the communications did indeed involve a matter of

public concern.

It is well-settled that criminal acts are matters of public concern under the

2019 amendments to the TCPA. Garcia, 663 S.W.3d at 281. That is, crimes are both

matters of interest to the community and subjects of concern to the public. See CIV.

2 We note that Goodwin’s TCPA motion did not attack Anderson’s malicious-prosecution claim, which Anderson did not plead until after Goodwin filed her motion. But Anderson does not argue that this fact is a reason to reverse the judgment as to the malicious-prosecution claim, so we do not consider that possibility. See State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989) (per curiam) (holding that court of appeals may not sua sponte raise arguments on appellant’s behalf). –8– PRAC. & REM. § 27.001(7)(B), (C). Anderson does not dispute that the statements in

question accused her of committing a crime against Goodwin. Thus, because all of

Anderson’s claims against Goodwin are based on communications that were made

in connection with a matter of public concern, the trial judge correctly concluded

that Goodwin carried her step-one burden to demonstrate that Anderson’s claims

were based on Goodwin’s exercise of the right of free speech.

Anderson’s arguments to the contrary are not persuasive. First, she argues that

Goodwin’s statements were not exercises of the right of free speech to the extent

Goodwin made those statements to people who were not governmental actors. But

whether a communication involves a matter of public concern depends on the

communication’s subject matter, not its audience. See id. § 27.001(7)(B), (C). Thus,

we have held that Facebook posts accusing someone of a crime involve a matter of

public concern, even though Facebook posts are not reports to a governmental actor.

See Garcia, 663 S.W.3d at 281. We have also held that a private email accusing

someone of forgery involved a matter of public concern, rejecting the appellant’s

argument that no matter of public concern was involved because the email was not

“a statement made to law enforcement.” Francis v. Phoenix Cap. Grp. Holdings,

LLC, No. 05-22-01260-CV, 2023 WL 5542622, at *4–5 (Tex. App.—Dallas Aug.

29, 2023, pet. filed) (mem. op.).

Anderson also argues that Goodwin’s police report should not be deemed to

satisfy step one with regard to her claims for abuse of process and malicious

–9– prosecution because (1) Goodwin knew the report was false, (2) Goodwin made the

report with an ulterior motive or for an improper purpose, and (3) Goodwin’s false

report was malicious. We disagree. A statement’s truth or falsity is irrelevant to the

step-one analysis. See Garcia, 663 S.W.3d at 280 n.7; Cruz v. Van Sickle, 452

S.W.3d 503, 515 (Tex. App.—Dallas 2014, pet. denied). Similarly, nothing in the

statutory definition of “matter of public concern” makes a defendant’s motives or

mental state relevant to the matter-of-public-concern inquiry. See CIV. PRAC. & REM.

§ 27.001(7)(B), (C). We may not engraft additional requirements onto the statutory

definition. See Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015) (per

curiam).

3. Conclusion

Goodwin carried her TCPA step-one burden by demonstrating that all of

Anderson’s claims were based on Goodwin’s exercise of the right of free speech.

Accordingly, we overrule Anderson’s first issue on appeal.

C. Issue 2: Did Anderson carry her step-two burden under the TCPA?

In her second issue, Anderson argues that she produced enough clear and

specific evidence to raise a prima facie case on every element of each of her claims.

Before considering those arguments, however, we consider the affirmative defenses

that Goodwin asserted in her TCPA motion.

–10– 1. Goodwin’s Affirmative Defenses to Defamation and Abuse of Process

Goodwin’s TCPA motion urged two affirmative defenses. See CIV. PRAC. &

REM. § 27.005(d) (requiring dismissal if the movant establishes an affirmative

defense as a matter of law, even if the nonmovant carries her step-two burden).

Goodwin argued (1) Anderson’s defamation claim was barred by limitations except

to the extent the claim was based on statements Goodwin made at a peace-bond

hearing on August 26, 2021, and (2) absolute privilege barred Anderson’s abuse-of-

process claim and her defamation claim to the extent the claims were based on

statements made at the peace-bond hearing. The trial judge’s order granting the

TCPA motion did not specify the judge’s reasons for granting it.

Although Anderson does not assert a separate appellate issue concerning

Goodwin’s affirmative defenses, we discern that Anderson addresses the affirmative

defenses in a footnote in her brief’s statement of facts. In that footnote, and without

citation to authority, Anderson asserts that (1) the trial judge’s order does not address

Goodwin’s affirmative defenses, (2) the defenses were inappropriate and untimely,

and (3) the defenses were not set for hearing. For the following reasons, we reject

Anderson’s contentions.

Anderson’s first contention is inadequately briefed because Anderson cites no

authority for the proposition that a trial judge errs by deciding a TCPA motion with

a general order that gives no specific reasons. See TEX. R. APP. P. 38.1(i) (requiring

argument section of appellant’s brief to include “appropriate citations to –11– authorities”). Moreover, a general order like the one in this case triggers a

presumption that the trial judge considered every ground asserted by the movant.

See Morales v. Barnes, No. 05-17-00316-CV, 2017 WL 6759190, at *5 (Tex.

App.—Dallas Dec. 29, 2017, no pet.) (noting that we presume the trial judge

considered all asserted grounds if the judge does not specify the reasons for an

order); see also Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970)

(affirming general summary-judgment order because it could have been based on a

summary-judgment ground the appellant did not challenge).

Anderson’s contention that Goodwin’s defenses were inappropriate and

untimely is also inadequately briefed. The TCPA expressly allows a movant to rely

on affirmative defenses, CIV. PRAC. & REM. § 27.005(d), and Anderson does not

explain how Goodwin’s defenses were either inappropriate or untimely on the facts

of this case, see TEX. R. APP. P. 38.1(i) (requiring appellant’s brief to contain “a clear

and concise argument for the contentions made”).

Finally, Anderson’s third contention is inadequately briefed because she

provides no record references substantiating her assertion that Goodwin’s

affirmative defenses were somehow not set for hearing with the rest of the TCPA

motion. See TEX. R. APP. P. 38.1(i); see also Bolling v. Farmers Branch Indep. Sch.

Dist., 315 S.W.3d 893, 896 (Tex. App.—Dallas 2010, no pet.) (“If record references

are not made . . ., the brief fails.”).

–12– In sum, the trial judge may have dismissed Anderson’s defamation and abuse-

of-process claims based on Goodwin’s affirmative defenses, and Anderson has not

shown that doing so was erroneous. Accordingly, we need not address whether

Anderson successfully carried her step-two burden as to those claims. See CIV. PRAC.

& REM. § 27.005(d) (requiring dismissal based on affirmative defenses that are

proved as a matter of law “[n]otwithstanding” the nonmovant’s showing at step two).

2. Anderson’s Malicious-Prosecution Claim

Now we consider whether Anderson established by clear and specific

evidence a prima facie case for each essential element of her malicious-prosecution

claim. See id. § 27.005(c). In our analysis, we consider the pleadings, evidence that

a court could consider under the summary-judgment rule, and supporting and

opposing affidavits. See id. § 27.006(a). Under the TCPA, we consider the pleadings

as evidence, regardless of whether they are offered as such, but conclusory

statements and bare, baseless opinions are not probative and cannot constitute clear

and specific evidence of a prima facie case. Hill v. Keliher, No. 05-20-00644-CV,

2022 WL 213978, at *20 (Tex. App.—Dallas Jan. 25, 2022, pet. denied) (mem. op.).

The elements of malicious prosecution are (1) the commencement of a

criminal prosecution against the plaintiff, (2) causation (initiation or procurement)

of the action by the defendant, (3) termination of the prosecution in the plaintiff’s

favor, (4) the plaintiff’s innocence, (5) the absence of probable cause for the

–13– proceedings, (6) malice in filing the charge, and (7) damage to the plaintiff. Richey

v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997).

We turn to the element of causation because it is dispositive.

To prove causation in a malicious-prosecution case, the plaintiff must prove

that the defendant initiated or procured the criminal prosecution. Lermon v. Minyard

Food Stores, Inc., No. 05-13-00034-CV, 2014 WL 6466840, at *4 (Tex. App.—

Dallas Nov. 19, 2014, pet. denied) (mem. op.). A defendant initiates a prosecution if

she files formal charges against the plaintiff. Id. A defendant procures a prosecution

if her actions are enough to cause the prosecution and but for her actions the

prosecution would not have occurred. Id.

In this case, Anderson argues that Goodwin caused Anderson’s prosecution

by making a false police report. For evidence, Anderson relies on her live pleading

and on the police report itself. We address each in turn.

First, Anderson asserts that her amended petition “alleges each element [of

malicious-prosecution] in detail.” With respect to causation, this is not so. In her

malicious-prosecution pleading, Anderson alleged simply that “Goodwin initiated

the criminal prosecution by making a false police report to the DeSoto Police

Department.” But in the malicious-prosecution context, “initiate” has the technical

meaning of filing formal charges against the plaintiff. Id. A mere witness statement

to law-enforcement personnel is not a formal charge. See id. at *5 (holding that a

witness statement given to a detective was not a formal charge and did not “initiate”

–14– a subsequent prosecution). Thus, Anderson’s pleading that Goodwin “initiated”

Anderson’s prosecution by making a police report is not clear and specific evidence

of causation.

We next consider whether the police report itself constitutes clear and specific

evidence that Goodwin “procured” Anderson’s prosecution. To show causation

under a procurement theory, Anderson had to present clear and specific evidence

that (1) Goodwin provided information that she knew was false, (2) the prosecutor

acted on the false information, and (3) but for the false information, the decision to

prosecute would not have been made. See Hill, 2022 WL 213978, at *19 (citing King

v. Graham, 126 S.W.3d 75, 76 (Tex. 2003) (per curiam)).

Nothing in the police report shows that the decision to prosecute Anderson

would not have been made but for Goodwin’s report. See id. at *21 (“Merely

reporting a crime . . . cannot ‘cause’ a criminal prosecution.”). Notably, Anderson

pleaded that several months passed between Goodwin’s report and Anderson’s arrest

and that a grand jury was involved in the criminal process during that interim and

caused Anderson’s arrest. Anderson produced no evidence concerning the facts, if

any, that law enforcement learned during the months-long interim or during the

grand-jury proceedings. Thus, it would be mere speculation to conclude from the

police report that “the decision to prosecute would not have been made but for the

[allegedly] false information supplied by the defendant.” Lermon, 2014 WL

6466840, at *4 (holding that plaintiff adduced legally insufficient evidence of

–15– malicious prosecution’s causation element); see also Mogged v. Lindamood, No. 02-

18-00126-CV, 2020 WL 7074390, at *9 (Tex. App.—Fort Worth Dec. 3, 2020, pet.

denied) (en banc) (mem. op.) (“[A] TCPA nonmovant cannot rely on speculation to

satisfy its burden of proof of establishing a prima facie case for each element of its

claim.”) (internal quotation and citation omitted). We hold that the police report is

not clear and specific evidence sufficient to make out a prima facie case for the

essential element of causation.

For the foregoing reasons, we conclude that the trial judge did not err by ruling

that Anderson failed to carry her step-two burden as to her malicious-prosecution

claim.

We overrule Anderson’s second issue on appeal.

V. DISPOSITION

We affirm the trial court’s judgment.

/Dennise Garcia/ DENNISE GARCIA 230343F.P05 JUSTICE

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

SAMELLA ANDERSON, Appellant On Appeal from the 193rd Judicial District Court, Dallas County, Texas No. 05-23-00343-CV V. Trial Court Cause No. DC-22-10908. Opinion delivered by Justice Garcia. ELMA Z. GOODWIN, Appellee Justices Partida-Kipness and Pedersen, III participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee Elma Z. Goodwin recover her costs of this appeal from appellant Samella Anderson.

Judgment entered February 22, 2024.

–17–