Giang Vu and Linh Dong v. Darren Tran ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00059-CV
___________________________
GIANG VU AND LINH DONG, Appellants
V.
DARREN TRAN, Appellee
On Appeal from the 67th District Court
Tarrant County, Texas
Trial Court No. 067-321201-20
Before Kerr, Womack, and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellants Giang Vu and his wife, Linh Dong, appeal the trial court’s judgment
granting Appellee Darren Tran’s motion to dismiss under the Texas Citizens
Participation Act (TCPA). In two issues, Vu and Dong argue that (1) they established
by clear and specific evidence a prima facie case for each essential element of their
malicious prosecution claim and (2) the trial court erred by granting Tran’s motion to
dismiss under the TCPA. Because Vu and Dong did not make a prima facie showing
as to their malicious prosecution claim, we affirm.
II. BACKGROUND
Vu and Tran were partners in businesses that included Remco Pharmacy, Inc.
(Remco), Pharmaceutical Development Group LLC d/b/a RX-Direct Home Delivery
(RX-Direct), and Medical RX Services, Inc. (Medical RX). In August 2018, Remco
and RX-Direct were placed on probation by the Texas State Board of Pharmacy for
one year as a result of Vu’s 2000 felony conviction for burglary of a habitation.
According to Tran, around September 25, 2018, in an effort to have the probation
lifted or reduced and with Vu’s knowledge and consent, Remco and RX-Direct
removed Vu as an officer and pharmacist.
Vu contends that on December 18, 2018, he was a fifty percent owner of
Medical RX and RX-Direct, in addition to being a tenant and guarantor for the leased
2
premises (“Premises”) utilized by Medical RX and RX-Direct in Arlington, Texas.1
On the same date, Tran was not present on the Premises but was instead anticipating
a meeting with Vu at a bank to discuss their business separation and to have Vu
return some allegedly stolen money. While waiting for the meeting, Tran was
contacted by Taylor Nguyen, a bookkeeper for Remco and RX-Direct, who told him
that Vu had entered the Premises and disconnected a video camera, had attempted to
gain access to Tran’s and his wife’s offices, and had used a meat cleaver to damage the
door handles to the offices. According to Nguyen, Vu then left the Premises and
returned with Dong and took some business records. These events were further
evidenced by audio recordings made by Nguyen and photographs of the meat cleaver
and a damaged door handle.
After telling Nguyen to contact building security, Tran called the Arlington
Police Department and requested that they send someone to the Premises. The call
to the Arlington Police Department is reflected in its “Incident Information” report,
which states that the “Nature of [Tran’s] Call” was criminal mischief and that the
offense was theft of property and criminal mischief.
According to Tran, Vu was not supposed to be on the Premises because of his
prior removal as an officer and pharmacist for RX-Direct. However, Vu claims that
1
The lease for the Premises indicates that Vu, Tran, and Medical RX are the
tenants, and the lease guarantors are Vu and Tran.
3
his presence on the Premises was valid because he was both an owner of Medical RX
and RX-Direct as well as a tenant and guarantor for the Premises.
On December 19, 2018, Tran reported to the police that Vu had entered the
Premises without consent or proper authorization, damaged an office door, and stole
a large number of documents containing sensitive medical and financial information.
Tran also told police that Vu and Dong were former employees who had been fired
for embezzlement.
On December 21, 2018, Tran told the investigating detective that he was a
“part owner” of RX-Direct and that Vu and Dong were former employees who had
access to most of the company’s resources. According to Tran, Vu and Dong had
been fired in early December due to the suspected embezzlement, and they had
cleared out their property from the office building, surrendered their keys, and were
not allowed further access to the Premises. Moreover, Tran informed the investigator
that he and “other board members” had told Vu and Dong that RX-Direct was “filing
criminal and civil lawsuit charges.” According to Vu and Dong, Tran never disclosed
to the investigator the business partnerships he had with Vu, the ongoing business
dispute, or Vu’s status as a tenant of the Premises.
Vu contends that the Arlington Police Department sought a warrant for his
arrest based on the information provided by Tran. Vu also claims that the
investigating detective’s narrative for probable cause relied on interviews with Tran.
The arrest warrant affidavit, sworn to by an Arlington Police Department detective
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before a Tarrant County magistrate, states that Vu “commit[ted] the offense of
Burglary of Building, a FELONY, in that he did intentionally or knowingly, without
the effective consent of Darren Tran the owner thereof, enter a building not then and
there open to the public with intent to commit Theft.” The affidavit also states that a
different Arlington police officer had been dispatched to the Premises in “reference
[to] a Criminal Mischief report” and that he spoke with Nguyen and Giang Ho (who
is identified as the “manager on duty”) about the incident. Further, additional officers
“prepared a photo lineup,” and Nguyen “identified with complete certainty [Vu as]
the suspect who entered the office and stole files.” Nguyen “also provided an audio
recording of Vu striking the door handles in the office.”
Around July 17, 2019, police arrested Vu and charged him with felony burglary
of a building, and he subsequently spent three or four days in jail. Dong turned
herself in on November 15, 2019, after seeing a billboard listing her as a “Top 10
Most Wanted Fugitive.” Dong was also arrested and charged with felony burglary of
a building and later spent approximately nine hours in jail.
On November 18, 2019, the Tarrant County grand jury no-billed the burglary
charge against Vu. On November 25, 2019, the Tarrant County grand jury no-billed
the burglary charge against Dong.
According to Tran, he is not a law enforcement officer or prosecutor and did
not cause the arrest or prosecution of Vu or Dong; all he did was “fil[e] a Police
Report with respect to [Vu’s] and [Dong’s] damaging the office door handles in a
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threatening manner and taking certain business records from the Premises.” In Tran’s
words,
Other than filing the Police Report and providing the Arlington Police
Department with certain documents they requested, I did not in any way
persuade or influence the Arlington Police Department and Tarrant
County District Attorney’s Office to arrest [Vu] and [Dong] and charge
them with burglary of a building. Those decisions were independently
made by the Arlington Police Department and Tarrant County District
Attorney’s Office, using their own professional judgment and discretion.
Tran also contends that he did not appear at or provide testimony in connection with
the grand jury proceedings.
In October 2020, Vu and Dong filed suit against Tran asserting malicious
prosecution. Thereafter, Tran filed a motion to dismiss under the TCPA. After a
hearing, the trial court granted Tran’s motion to dismiss, and this expedited appeal
followed. See Tex. Civ. Prac. & Rem. Code Ann. § 27.008(b).
III. DISCUSSION
Vu and Dong assert that all seven essential elements of a malicious prosecution
claim were established and that the granting of the TCPA motion to dismiss was
improper. Tran responds that Vu and Dong did not establish elements (2) (the
defendant’s causation of the prosecution), (4) (the plaintiff’s innocence), (5) (lack of
probable cause to initiate or procure the prosecution), and (6) (malice in filing the
charge) of their claim and, therefore, the trial court correctly granted the motion to
dismiss. We agree with Tran.
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A. TCPA Framework and Standard of Review
“The Legislature enacted the TCPA ‘to encourage and safeguard the
constitutional rights of persons to petition, speak freely, associate freely, and
otherwise participate in government to the maximum extent permitted by law and, at
the same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.’” In re Panchakarla, 602 S.W.3d 536, 538 (Tex. 2020) (orig.
proceeding) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 27.002). Consistent with
this legislative purpose, Section 27.003 of the TCPA provides that a party may file a
motion to dismiss a legal action that “is based on or is in response to a party’s exercise
of” three rights: free speech, petition, or association. See Tex. Civ. Prac. & Rem.
Code Ann. § 27.003(a).
In deciding if a motion to dismiss should be granted, a trial court must follow a
“three-step decisional process.” Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC,
591 S.W.3d 127, 132 (Tex. 2019). Under the first step, which is not in dispute here,
the trial court must dismiss the action if the movant shows that the legal action is
based on, relates to, or is in response to the movant’s exercise of the right to free
speech, petition, or association. Id. (citing Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(b)). Then, under the second step, the court may not dismiss the action if the
nonmovant establishes by “clear and specific evidence” a prima facie case for each
essential element of the claim. Id. (citing Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(c)). Under the third element, which is also not applicable here, the movant
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can still win dismissal if he establishes each essential element of a valid defense to the
nonmovant’s claim. Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d)). In
determining whether dismissal is warranted, a trial court must consider “the pleadings,
evidence a court could consider under Rule 166a, Texas Rules of Civil Procedure, and
supporting and opposing affidavits stating the facts on which the liability or defense is
based.” Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a).
Neither the TCPA nor the common law defines “clear and specific evidence.”
In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding). Clear has been
interpreted as “unambiguous,” “sure,” or “free from doubt.” Id. (quoting KTRK
Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2013,
pet. denied)). Specific has been interpreted as “explicit,” or “relating to a particular
named thing.” Id. A prima facia case refers to “evidence sufficient as a matter of law
to establish a given fact if it is not rebutted or contradicted.” Id. “It is the ‘minimum
quantum of evidence necessary to support a rational inference that the allegation of
fact is true.’” Id. (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223
(Tex. 2004)).
We review de novo a trial court’s ruling on a TCPA motion to dismiss.
Buckingham Senior Living Cmty., Inc. v. Washington, 605 S.W.3d 800, 807 (Tex. App.—
Houston [1st Dist.] 2020, no pet.). We also review de novo “whether a nonmovant
has presented clear and specific evidence establishing a prima facie case for each
essential element of the challenged claims.” Landry’s, Inc. v. Animal Legal Def. Fund,
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No. 19-0036, 2021 WL 2021130, at *2 (Tex. May 21, 2021) (quoting Serafine v. Blunt,
466 S.W.3d 352, 357 (Tex. App.—Austin 2015, no pet.)). We consider evidence
favorable to Vu and Dong in determining whether they met their burden of
establishing a prima facie case under the TCPA. See Buckingham Senior Living Cmty.,
Inc., 605 S.W.3d at 808.
B. Prima Facie Case for Malicious Prosecution
Vu and Dong do not dispute that Tran satisfied his initial burden to show that
their legal action is subject to the TCPA. See id. at 807 (“When a person interacts with
the police to report perceived wrongdoing, that person is exercising their right to
petition, as that right is defined in the TCPA.”); see also Murphy USA, Inc. v. Rose,
No. 12-15-00197-CV, 2016 WL 5800263, at *3 (Tex. App.—Tyler Oct. 5, 2016, no
pet.) (mem. op.) (“Filing a police report, whether true or false, implicates a person’s
right to petition the government.”). Therefore, under the decisional framework set
out above, the burden shifted to Vu and Dong to present clear and specific evidence
establishing a prima facie case for each essential element of their claim of malicious
prosecution. See Creative Oil & Gas, LLC, 591 S.W.3d at 132. Both in their response
to the motion to dismiss and in their appellate brief, Vu and Dong assert that they
met their burden. In deciding whether they did, we first look at what is required to
establish a claim of malicious prosecution.
Malicious prosecution claims exist to protect those unnecessarily subjected to
criminal proceedings. Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 792 (Tex.
9
2006). However, this goal must be offset by public policy considerations that
encourage citizens to report crimes that are real or perceived. Id. The essential
elements of a malicious prosecution claim are (1) the commencement of a criminal
prosecution against the plaintiff, (2) causation 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 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). “Claims for malicious prosecution create a tension between the societal
interest in punishing crimes and the individual interest in protection from unjustifiable
criminal prosecution; we are therefore constrained to the exact prerequisites for
liability when reviewing such claims.” All Am. Tel., Inc. v. USLD Commc’ns, Inc.,
291 S.W.3d 518, 533 (Tex. App.—Fort Worth 2009, pet. denied).
The probable-cause element of a malicious prosecution claim asks whether a
reasonable person would believe under the circumstances that a crime had been
committed before criminal proceedings were instituted. Kroger Tex. Ltd. P’ship,
216 S.W.3d at 792–93. Likewise, the element of malice aids in protecting defendants
by negating the natural tendencies of a jury to punish those who, through error but
not malevolence, commence criminal proceedings against an individual who is
ultimately exonerated. Id. at 792. And courts are to presume that the defendant acted
in a reasonable manner with probable cause to initiate criminal proceedings. Id. at
793.
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C. Application of Facts to Malicious Prosecution Elements
In their second issue, which we address first, Vu and Dong argue that they
established by clear and specific evidence each essential element of their malicious
prosecution claim. Tran responds that Vu and Dong cannot meet their burden of
establishing elements (2), (4), (5), and (6) by clear and specific evidence. We conclude
that, regardless of whether Vu and Dong met their burden with respect to the other
elements,2 they did not meet their burden with respect to the second (causation of the
action by the defendant) and fifth (absence of probable cause) elements. See Hersh v.
Tatum, 526 S.W.3d 462, 468 (Tex. 2017).
1. Element (2): Causation of the Action by the Defendant
The second element of a malicious prosecution claim is the causation of the
action by the defendant. See Richey, 952 S.W.2d at 517. In determining causation, it
must be determined whether the defendant either “initiated” or “procured” criminal
proceedings, depending on the nature of the case. Browning-Ferris Indus., Inc. v. Lieck,
881 S.W.2d 288, 293 (Tex. 1994). A person initiates a criminal prosecution if he
makes a formal charge to law enforcement authorities but procures one if his actions
are enough to cause the prosecution, and but for his actions, the prosecution would
not have occurred. Id. at 292.
2
While the failure of only one element defeats the malicious prosecution claim,
see Digby v. Tex. Bank, 943 S.W.2d 914, 919 (Tex. App.—El Paso 1997, writ denied),
we will briefly address all of the elements that were challenged before the trial court
and on appeal.
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When the decision to prosecute is left to another’s discretion, such as a law
enforcement official or grand jury, a person cannot be said to have procured, or
caused, the criminal prosecution unless the person knowingly provided materially false
information to the decision maker. King v. Graham, 126 S.W.3d 75, 78 (Tex. 2003);
Reed v. Cleveland, No. 09-19-00136-CV, 2020 WL 6600968, at *6 (Tex. App.—
Beaumont Nov. 12, 2020, no pet.) (mem. op.). In this context, false information is
not material “[i]f the decision to prosecute would have been made with or without the
false information.” King, 126 S.W.3d at 78. The plaintiff thus has the burden of
proving that the decision to prosecute would not have been made “but for” the false
information supplied by the defendant. Id. Causation cannot be inferred solely from
the falsity of statements except possibly when the only information the decision
maker relied on to prosecute was false. Reed, 2020 WL 6600968, at *6 (citing King,
126 S.W.3d at 79).
Vu and Dong argue that Tran initiated and caused the criminal prosecution
against them for burglary of the Premises by making the report to the police. Further,
they complain that Tran did not tell the police about Vu’s business partnership or that
Vu was a tenant on the Premises. They offer the lease as proof that Vu had authority
to access the Premises and the business-formation documents as proof of the ongoing
business relationship between Vu and Tran.
13
However, Tran did not assert a burglary3 charge against Vu and Dong, and the
record is clear that the Arlington Police Department considered evidence other than
Tran’s communications with them. Lermon v. Minyard Food Stores, Inc., No. 05-13-
00034-CV, 2014 WL 6466840, at *5 (Tex. App.—Dallas Nov. 19, 2014, pet. denied)
(mem. op.). With regard to the criminal charges filed against Vu and Dong, the
Arlington Police Department’s “Incident Information” report does not mention
burglary, but rather states that the nature of Tran’s phone call to police was “criminal
mischief” and “theft of property.” Moreover, the arrest-warrant affidavit reflects that
photographs, audio recordings, and witnesses in addition to Tran were relied upon by
the affiant, a police officer, to obtain the warrant. See Reed, 2020 WL 6600968, at *7
(“However, even if the information Appellants point to was false, this was not the
only information police had.”); see also Cal. Commercial Inv. Grp., Inc. v. Herrington,
No. 05-19-008050CV, 2020 WL 3820907, at *6 (Tex. App.—Dallas July 8, 2020, no
pet.) (mem. op.) (discussing how additional evidence can negate initiation or
procurement by a defendant); Weaver v. Bell, No. 03-04-00169-CV, 2005 WL 1364046,
at *6 (Tex. App.—Austin June 10, 2005, no pet.) (mem. op.) (“The evidence shows
3
Theft requires only the unlawful appropriation of property with intent to
deprive the owner of it, Tex. Penal Code Ann. § 31.03(a), while burglary, as alleged
here to the grand jury, requires entry into a building not then open to the public—
without the owner’s effective consent—with the intent to commit theft, id.§ 30.02(a)(1).
14
that the police investigated and interviewed other witnesses before deciding to arrest
Weaver and that the decision was not based solely on Bell’s statement to the police.”).
In fact, one of those witnesses—Nguyen—stated that on December 18, 2018,
she was in her office on the Premises when Vu entered and she “was immediately
suspicious of [Vu’s] presence on the Premises because [she] had not seen [Vu] on the
Premises in some time and it was [her] understanding that [Vu] was no longer
associated with Remco and RX-Direct and was not supposed to be on the Premises.”
Nguyen reported that even after being confronted by building management, Vu later
returned with his wife, Dong, and “proceeded to search for and remove certain
business records from the Premises.” Nguyen later met with Arlington law
enforcement officers at the Premises to discuss what had occurred. In her words,
“The law enforcement officers were able to observe the damage that had occurred
from the thrashing of the office door handles. I provided law enforcement with the
audio-recording I made during the thrashing of the office door handles.” In their
pleadings and affidavits, neither Vu nor Dong disputes, much less denies, the
“thrashing of the door handles” and the damage to the property.
With this additional evidence, even assuming that Tran knowingly provided
false information to the police detective, there is no proof in the record that that false
information was all the prosecutor relied upon to initiate the criminal charges. See
Weaver, 2005 WL 1364046, at *6. Likewise, Vu and Dong have presented no evidence
that “but for” the false information provided by Tran, the decision to prosecute
15
would not have been made. See King, 126 S.W.3d at 76 (noting that there was no
evidence that the district attorney would have decided not to prosecute but for the
allegedly false information). Therefore, we cannot conclude that Tran “caused” Vu
and Dong to be prosecuted, and their burden of proof regarding element number two
for malicious prosecution fails.
2. Element (5): Lack of Probable Cause to Initiate or Procure the
Prosecution
The fifth element of a malicious prosecution claim is that there was no
probable cause to initiate or procure the prosecution. See Richey, 952 S.W.2d at 517.
The probable-cause element asks whether a reasonable person would believe under
the circumstances that a crime had been committed before criminal proceedings were
instituted. Id. Probable cause is measured at the time of the defendant’s report to the
authorities and not later when the case is investigated. Herrington, 2020 WL 3820907,
at *7. Moreover, “[w]hen a complainant reasonably believes a crime has occurred, the
reasonableness of that belief is not negated by the failure to fully disclose all relevant
facts to the officer.” Richey, 952 S.W.2d at 519. “There is an initial presumption in
malicious prosecution actions that the defendant acted reasonably and in good faith
and had probable cause to initiate the proceedings.” Id. at 517. “A malicious
prosecution plaintiff carries the burden of disproving probable cause.” Pettit v. Maxwell,
509 S.W.3d 542, 547 (Tex. App.—El Paso 2016, no pet.).
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In support of this element, Vu and Dong offered evidence of Vu’s signature on
the lease agreement for the Premises, Vu’s tenancy of the Premises, and the
Certificate of Formation of Medical RX (reflecting that Vu was a Managing Member
of the company) as proof of absence of probable cause for the proceedings.
According to Vu and Dong’s response to the motion to dismiss, “[t]here was no
conceivable interpretation of the facts from [Tran’s] perspective—at the time that he
made a report to the Arlington Police Department—that would have given him the
reasonable belief that Vu had no authority to access the Leased Premises, no authority
to access company documents, or no authority to give consent for Dong to access the
Leased Premises.” Therefore, they contended that Tran lacked probable cause “to
honestly and reasonably believe” that they committed a crime.
In response, Tran argued that Vu and Dong “did not specifically plead facts,
and cannot possibly present clear and specific evidence showing, that [Tran] did not
reasonably believe a crime had been committed.” Tran also argues on appeal that to
conclude that he did not have probable cause to report a crime “would require the
Court to find that a business manager does not have probable cause to contact police
after receiving telephone calls from frightened employees witnessing a meat cleaver
(or a knife or a gun for that matter) being used in an aggressive manner on the
business premises.” In addition, Tran contends that the crime ultimately charged is
different from the crimes he reported; thus, because probable cause and the
reasonableness of the defendant is meant to be analyzed at the time of the accusation,
17
to assess that element in light of burglary, rather than mere theft or criminal mischief,
would be improper. Buckingham Senior Living Cmty., Inc., 605 S.W.3d at 811. Finally, he
argues that Vu and Dong’s burden cannot be met by the subsequent grand-jury no-bill
of the burglary charge.
We agree that the subsequent no-bill of the burglary charge is not dispositive of
the lack-of-probable-cause element. Rather, the probable-cause element “focuses on
whether, at the time of the accusation, a reasonable person would believe that a crime
had been committed.” Id. (citing Richey, 952 S.W.2d at 517). It is not met by evidence
of a subsequent resolution of the criminal charges. Id. Even an acquittal does not
prove that there was no probable cause, just as an arrest does not prove guilt. Kroger
Tex. Ltd. P’ship, 216 S.W.3d at 794.
The law presumes an accuser honestly and reasonably acted on the basis of
observations in reporting a suspect to the police. Buckingham Senior Living Cmty., Inc.,
605 S.W.3d at 811. To rebut this probable-cause presumption, Vu and Dong had to
produce prima facie evidence that Tran procured the prosecution on the basis of
information or motives that do not support a reasonable belief that Vu and Dong
were guilty of a crime. Id. They failed to do this for two reasons.
First, as noted above, probable cause is focused on a reasonable belief that a
crime has been committed at the time of reporting. Given that Tran was away from
the office when his employee, Nguyen, called him because she was “upset and
frightened” that Vu had disconnected the video camera at the Premises, attempted to
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gain access to Tran’s and his wife’s offices, used a meat cleaver from the kitchen to
repeatedly “thrash” and damage the door handles to the offices, and returned with
Dong and removed “unknown business records” from the Premises, there was
adequate concern to warrant calling the police. Moreover, Vu and Dong do not
dispute that a meat cleaver was used on a door within the business, that damage was
caused to the Premises, and that documents were taken from the Premises. See Kroger
Tex. Ltd. P’ship, 216 S.W.3d at 794–95 (discussing the requirements of reasonable
motives, grounds, or beliefs that a crime was committed).
Second, although “failing to fully and fairly disclose all material information
and knowingly providing false information to the prosecutor are relevant to the malice
and causation elements of a malicious prosecution claim[, they] have no bearing on
probable cause.” Richey, 952 S.W.2d at 519. The probable-cause inquiry is concerned
only with whether the complainant reasonably believed that the elements of a crime
had been committed based on the information available to the complainant before
criminal proceedings began. Id. In making this determination, it is important to note
that the crimes reported by Tran were criminal mischief and theft of property, not
burglary. In their affidavits filed in response to the TCPA motion to dismiss, Vu and
Dong do not deny causing the property damage or being accused of theft or
embezzlement. Moreover, they fail to show why damage to the Premises with a meat
cleaver and removal of the documents from the Premises did not demonstrate
probable cause to initiate or procure prosecution for criminal mischief or theft of
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property. See id. They therefore failed to prove the fifth element4 of their malicious
prosecution claim, and accordingly, their second issue is overruled.
D. Granting of Tran’s TCPA Motion to Dismiss
In their first issue, Vu and Dong argue generally that the trial court erred by
granting Tran’s TCPA motion to dismiss. They provide no separate argument on this
issue, but instead combine it with their second issue. We do the same here.
4
Tran also argues that Vu and Dong failed to meet elements (4) (plaintiff’s
innocence) and (6) (malice in filing the charge). With regard to element (4), the
plaintiff must prove that he is innocent of the crime charged. Kroger Tex. Ltd. P’ship,
216 S.W.3d at 795. In support of this element, Vu and Dong contend that Vu’s part
ownership of Medical RX, his tenancy of the Premises, and the permission received
by Dong from Vu to enter the Premises establish their innocence. In response, Tran
argues that the no-bill for burglary is inadequate as proof of innocence overall and
that Vu and Dong did not attempt to dispute the claims of criminal mischief by taking
a meat cleaver to two office doors and theft of property by removing business records
from the Premises.
With regard to element (6), malice can be defined as “ill will, evil motive, or
reckless disregard of the rights of others.” Herrington, 2020 WL 3820907, at *7. Some
courts claim that a plaintiff need only prove that the defendant committed a reckless
disregard of another’s right with indifference as to the potential injuries that may
result. Tranum v. Broadway, 283 S.W.3d 403, 417 (Tex. App.—Waco 2008, pet. denied).
That reckless disregard can be evaluated in part by the extent of the disclosure to the
prosecutor or if such disclosure is met with knowingly false information which in turn
causes the prosecution. Richey, 952 S.W.2d at 519. In support of this element, Vu and
Dong claim that an email exchange regarding a potential buyout of ownership equity
between Vu and Tran that occurred two days prior to the reported crimes supports
their claim of malice. They also once again point to the withholding of information
by Tran regarding Vu’s ownership and tenancy status. Tran responds that this
information does not demonstrate clear and specific evidence of malice when filing
the police report. See Herrington, 2020 WL 3820907, at *7 (discussing how a claim of
malice without further evidence of how such a claim demonstrates malice is
insufficient.).
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As set out above, the granting of the motion to dismiss was proper because the
failure of only one malicious prosecution element is required for affirmation of the
trial court’s order. See Digby, 943 S.W.2d at 919 (“The failure of a plaintiff to prove
any one of the [ ] elements is fatal to his case.”). Here, Vu and Dong failed to prove
at least two elements contested by Tran. Thus, even if viewed in the light most
favorable to the nonmovant, the claim for malicious prosecution fails, and the
granting of Tran’s TCPA motion to dismiss was proper. The first issue raised by Vu
and Dong is overruled.
IV. CONCLUSION
Having overruled both of Vu and Dong’s issues, we affirm the trial court’s
judgment.
/s/ Dana Womack
Dana Womack
Justice
Delivered: August 19, 2021
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