Lisa Kaye Newton v. SCI Texas Funeral Services, Inc. D/B/A Forest Park East Funeral Home ( 2015 )

Opinion issued March 17, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-01065-CV
———————————
LISA K. NEWTON, Appellant
V.
SCI TEXAS FUNERAL SERVICES, INC. D/B/A FOREST PARK EAST
FUNERAL HOME, Appellee
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Case No. 2011-05614
MEMORANDUM OPINION
Lisa K. Newton appeals from the trial court’s order granting summary
judgment in favor of SCI Texas Funeral Services, Inc. d/b/a Forest Park East
Funeral Home (“SCI”), on Newton’s claims for defamation and malicious
prosecution. In her first issue, Newton contends that the trial court erred because
she presented summary judgment evidence raising a genuine issue of material fact
regarding whether SCI defamed her. In her second and third issues, she asserts
that issues of material fact exist with regard to the causation and probable cause
elements of her malicious prosecution claim. We affirm.
Background
SCI employed Newton as a funeral director at its Forest Park East Funeral
Home in Webster, Texas. Newton’s job duties included meeting with families to
make funeral arrangements and selling funeral plans to its customers. To
encourage funeral directors to actively sell floral arrangements, SCI paid its funeral
directors a 10% commission on each flower sale ordered through Flowers and Co.,
a local vendor. At Forest Park East, funeral directors wrote floral orders on order
forms that were then faxed to the vendor. Afterwards, the directors totaled their
floral orders and attached the forms to their weekly time sheets which were used to
tally the bonuses due for floral sales.
In early 2010, due to discrepancies discovered in employees’ flower order
forms, SCI conducted an internal audit of its funeral contracts, order forms,
employee time sheets, and invoices from the local vendor. The audit revealed that
several Forest Park East employees had committed fraud by submitting duplicate
flower orders, altering flower order forms, and ordering flowers that families did
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not pay for in order to receive a higher bonus than was actually due. The audit
revealed that Newton was involved in five transactions in which flower order
forms were submitted to Flowers and Co. for non-existent orders or the forms were
unauthorized duplicates, and that she had received $225 in bonuses that she was
not owed.1
Following the audit, Forest Park East’s general manager, Foster B. Cook,
and SCI’s investigations manager, Buddy Downs, met with a law enforcement
officer at the Webster Police Department and provided the officer with the audit
report findings. Newton was subsequently arrested and charged with the
misdemeanor offense of theft in the aggregate. The charge against Newton was
later dismissed.
Newton filed suit against SCI alleging defamation, malicious prosecution,
intentional infliction of emotional distress, and breach of contract. SCI moved for
summary judgment on Newton’s claims. On November 15, 2013, the trial court
granted SCI’s motion on Newton’s claims for defamation, malicious prosecution,
and intentional infliction of emotional distress, but denied its motion as to
Newton’s breach of contract claim. After non-suiting her remaining contract
claim, Newton filed this appeal.
1
The audit also revealed that Newton’s colleague and friend, Juan Francisco Salas,
had submitted fraudulent flower orders for which he had received nearly $5,000 in
bonuses. Salas was fired and later charged with the state jail felony offense of
theft to which he pleaded guilty.
3
Discussion
In her first issue, Newton contends that the trial court erred in granting
summary judgment on her defamation claim because she presented summary
judgment evidence raising a genuine issue of material fact as to whether SCI
defamed her. In her second and third issues, Newton argues that the trial court
erred in granting summary judgment on her malicious prosecution claim because
genuine issues of material fact exist regarding the elements of causation and
probable cause. 2
A. Standard of Review
We review de novo a trial court’s ruling on a motion for summary judgment.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). In a traditional motion for summary judgment, the movant must
establish that no genuine issue of material fact exists and the party is entitled to
summary judgment as a matter of law. TEX. R. CIV. P. 166a(c). In determining
whether there are disputed issues of material fact, we take as true all evidence
favorable to the nonmovant and indulge every reasonable inference in the
nonmovant’s favor. See Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548–
49 (Tex. 1985). If the summary judgment does not specify the grounds on which it
2
Newton states in her brief that she is not appealing the portion of the trial court’s
order granting summary judgment on her intentional infliction of emotional
distress claim. Therefore, we do not consider it on appeal.
4
was granted, the appealing party must demonstrate on appeal that none of the
proposed grounds is sufficient to support the judgment. Rogers v. Ricane Enter.,
772 S.W.2d 76, 79 (Tex. 1989).
B. Defamation
Newton contends that the trial court erred in granting summary judgment on
her defamation claim because a genuine issue of material fact exists as to whether
SCI defamed her. SCI argues that it was entitled to summary judgment on
Newton’s defamation claim because the undisputed evidence demonstrates that it
never published any defamatory statements about her.
As a preliminary matter, we address Newton’s contention that SCI moved
for summary judgment on her defamation claim on no-evidence grounds. As
support for her contention, she relies on SCI’s statement in its summary judgment
motion that “[h]ere, there is no evidence that SCI defamed Plaintiff.” However,
SCI attached summary judgment evidence to its motion, and its motion does not
cite to Texas Rule of Civil Procedure 166a(i) except with regard to Newton’s
intentional infliction of emotional distress claim. 3 TEX. R. CIV. P. 166a(i) (stating
that no-evidence motion for summary judgment is made “without presenting
summary judgment evidence”). When it is not readily apparent that summary
3
We note that in her summary judgment response, Newton states that SCI seeks a
traditional summary judgment as to her claims for defamation, malicious
prosecution, and breach of contract and a no-evidence summary judgment as to
her intentional infliction of emotional distress claim.
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judgment is sought on no-evidence grounds, “the court should presume that it is
filed under the traditional summary judgment rule and analyze it according to those
well-recognized standards.” Richard v. Reynolds Metal Co., 108 S.W.3d 908, 911
(Tex. App.—Corpus Christi 2003, no pet.) Accordingly, we construe SCI’s
motion with regard to Newton’s defamation claim as asserting traditional grounds
for summary judgment only. See TEX. R. CIV. P. 166a.
To prove a cause of action for defamation, a plaintiff must prove that (1) the
defendant published a statement of fact about the plaintiff; (2) the statement was
defamatory; (3) the statement was false; (4) the defendant acted negligently in
publishing the false and defamatory statement; and (5) the plaintiff suffered
damages as a result. See WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.
1998); Brown v. Swett & Crawford of Texas, Inc., 178 S.W.3d 373, 382 (Tex.
App.—Houston [1st Dist.] 2005, no pet.). Whether a communication is
defamatory is a question of law. See Musser v. Smith Protective Servs., 723
S.W.2d 653, 654 (Tex. 1987).
In its summary judgment motion, SCI argued that the evidence conclusively
established that SCI did not make any defamatory statements about her. In support
of its argument, SCI relied on the following excerpt from Newton’s deposition
testimony:
Q: Are you aware of any statements that anyone at SCI made to
anyone that was false?
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A: No.
In her summary judgment response, Newton pointed to her deposition
testimony that other SCI employees and people in the funeral home industry knew
that she had been suspected of theft as evidence that SCI had defamed her:
A: Well, many people in the funeral industry know this story, that I
was accused of theft.
Q: How did they find out?
A: Well, people talk.
Q: Who has told—who has told you that they are aware that you were
suspected of theft?
A: Several SCI employees. I mean, that’s—I mean, you know, I’m
sure that story went around the company.
Q: Who told you that they knew you had been suspected of theft?
A: Well, everyone that was left there knew that: Francine Jacks, Vicki
Marshall, Susan Finley. I mean, I can name everybody that worked at
Forest Park East.
Q: Anyone—
A: Once I left there and started to look for another job, it became
apparent that the story had traveled to other funeral homes that were
not SCI funeral homes.
Q: Why do you say that?
A: I applied for a job at one funeral home and was not disclosing that
I had been fired. They asked me why I was leaving Forest Park East.
I said I just didn’t want to work there anymore. The manager that was
interviewing me said, “Yeah, there’s been a really big shake up over
there. I heard there’s been some people caught stealing.”
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Q: Who was it who told you that?
A: I don’t remember. It was Niday Funeral Home.
I ran into a man that used to work at Forest Park East. He was the
general manager when I was an apprentice. He got out of the
business. Ran into him at Walmart, started chatting; and my
daughter was with me. And he said—I told him I didn’t work
there anymore. And he said, yeah, he had heard there had been a
big shake up at Forest Park East and—
Q: Did you say anything else?
A: No, I didn’t elaborate that. I didn’t—I just said, Yeah, don’t work
there anymore.
Q: And who was that?
A: That was Rick Sloan.
Taking this evidence as true, it nevertheless fails to create a fact issue as to
whether SCI defamed Newton. Although Newton testified that other Forest Park
East employees knew she was suspected of theft because the story presumably
went around the company, this is not evidence that SCI told any of these
employees that Newton committed theft. As to her testimony regarding others in
the funeral home industry, this is likewise not evidence that SCI defamed her. For
a statement to be actionable as defamation, it must refer to an ascertainable person.
Robertson v. Sw. Bell Yellow Pages, Inc., 190 S.W.3d 899, 902 (Tex. App.—
Dallas 2006, no pet.); Double Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 854
(Tex. App.—Dallas 2003, no pet.). The statement must “point to the plaintiff and
to no one else.” Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 894 (1960).
8
Newton’s testimony that others told her that they had heard “some people [had
been] caught stealing” and that there had been a “big shake up” at Forest Park East
is not evidence that SCI told anyone that Newton was involved in the theft. See
Ledig v. Duke Energy Corp., 193 S.W.3d 167, 180 (Tex. App.—Houston [1st
Dist.] 2006, no pet.) (noting person is referred to in defamatory statement if person
is named in statement or if those who know person would understand that
statement was referring to person).
Newton also argues that SCI defamed her when it communicated an
accusation of theft to the Webster Police Department. In support of her assertion,
Newton points to SCI’s statements in its summary judgment motion that “SCI met
with the Webster Police Department and provided the police with the internal audit
report findings that Plaintiff had stolen from the company,” and that “[i]n this case
there is no dispute that SCI informed the Webster Police Department that the
company believed a theft occurred.” Assertions of fact, not pleaded in the
alternative, in the live pleadings of a party are regarded as formal judicial
admissions. Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983).
Thus, SCI’s statements in its summary judgment motion amounted to a judicial
admission. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex.
2001) (concluding defendant’s statements in summary judgment response and
counter-motion for summary judgment accepting plaintiff’s assertion regarding
9
promissory note’s acceleration date constituted judicial admission of acceleration
date).
The parties, however, dispute whether these statements are defamatory.
With regard to the first statement—“SCI met with the Webster Police Department
and provided the police with the internal audit report findings that Plaintiff had
stolen from the company”—SCI contends that because it is undisputed that the
audit results provided to law enforcement contained accurate findings, this is not
evidence that SCI defamed Newton. Notwithstanding the accuracy of the findings
showing that Newton submitted flower order forms and received bonuses which
were not due to her—an allegation that Newton does not dispute—the remainder of
SCI’s statement characterizes the results as “findings that Plaintiff had stolen from
the company.” With regard to SCI’s second statement—“[i]n this case there is no
dispute that SCI informed the Webster Police Department that the company
believed a theft occurred”—SCI asserts that this is not evidence that SCI defamed
her because SCI’s expressions of opinion regarding the meaning of the audit
results are not actionable in a defamation claim. However, the record does not
reflect that SCI ever raised this argument before the trial court and, thus, we do not
consider it. See Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014) (citing Stiles
v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993) (“[W]e hold that a
summary judgment cannot be affirmed on grounds not expressly set out in the
10
motion or response.”)). Taking as true all evidence favorable to the nonmovant
and indulging every reasonable inference in the nonmovant’s favor, as we must,
we find this evidence sufficient to raise a genuine issue of material fact as to
whether SCI defamed Newton when it made its report to the police. See Nixon,
690 S.W.2d at 548–49.
This conclusion, however, does not end our inquiry. SCI also argued in its
motion that its communication to the Webster Police Department is protected by a
qualified privilege absent a showing that it knew its statement was false or it made
the statement with reckless disregard as to its truth. Newton contends that SCI
may not avail itself of this defense because it did not plead it. However, an
unpleaded affirmative defense may serve as the basis for a summary judgment
when it is raised in the summary judgment motion, but the opposing party does not
object in either its written response or before the rendition of judgment. See Roark
v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991). Here, although
SCI did not plead the defense of qualified privilege in its answer to Newton’s
petition, Newton did not object in her summary judgment response or otherwise
object before the trial court ruled on SCI’s motion and, therefore, the trial court
could consider it.4
4
Newton also argues that SCI was not entitled to assert this defense in its motion
because a party may not raise an affirmative defense on which it has the burden of
proof in a no-evidence motion. Having already concluded that SCI moved for
11
Defamatory statements are conditionally or qualifiedly privileged and
therefore not actionable when “made in good faith on any subject matter in which
the author has an interest, or with reference to which he has a duty to perform to
another person having a corresponding interest or duty.” TRT Dev. Co.-KC v.
Meyers, 15 S.W.3d 281, 286 (Tex. App.—Corpus Christi 2000, no pet.) (quotation
omitted). A conditional or qualified privilege arises out of the circumstances in
which the allegedly false statement is published in a lawful manner for a lawful
purpose. See Minyard Food Stores, Inc. v. Goodman, 50 S.W.3d 131, 139–40
(Tex. App.—Fort Worth 2001), rev’d in part on other grounds, 80 S.W.3d 573
(Tex. 2002). This privilege applies to bona fide statements made in good faith
under circumstances where the author believes that the public has an important
interest in a particular subject matter requiring publication, or where the author
believes that a person having a common interest in a particular subject matter is
entitled to know the information. See Randall’s Food Mkts., Inc. v. Johnson, 891
S.W.2d 640, 646 (Tex. 1995).
However, proof that a statement was motivated by actual malice existing at
the time of publication defeats the privilege. Id.; Marathon Oil Co. v. Salazar, 682
S.W.2d 624, 631 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.). In the
defamation context, a statement is made with actual malice when the statement is
traditional summary judgment on Newton’s defamation claim, we do not address
this argument.
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made with knowledge of its falsity or with reckless disregard as to its truth. See
Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771 (Tex. 1994). To invoke
the privilege on summary judgment, an employer must conclusively establish that
the allegedly defamatory statement was made with an absence of malice. See
Jackson v. Cheatwood, 445 S.W.2d 513, 514 (Tex. 1969); Goodman v. Gallerano,
695 S.W.2d 286, 287–88 (Tex. App.—Dallas 1985, no writ). A defendant can
negate actual malice by presenting evidence that shows it did not publish the
alleged defamatory statement with actual knowledge of any falsity or with reckless
disregard for the truth. Casso v. Brand, 776 S.W.2d 551, 559 (Tex. 1989).
Here, SCI was required to conclusively establish that the alleged defamatory
statement was made without malice. See Johnson, 891 S.W.2d at 646. In its
summary judgment motion, SCI argued that it provided the audit report to the
police to seek law enforcement assistance, and that it did not make any statement
to the police that it knew was false or with reckless disregard as to its truth. In
support of its argument, SCI attached Cook’s affidavit stating, in relevant part:
• I, along with Buddy Downs, SCI’s investigations manager, did meet
with a police officer at the Webster Police Department and provided
him with the findings of SCI’s audit so he and/or the Harris County
District Attorney’s Office could determine whether they believed
there was sufficient evidence to bring criminal charges against
Plaintiff.
• Mr. Downs and I did not provide any information to the police that we
knew to be false.
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• I reviewed the duplicate flower order forms Plaintiff submitted and it
created a reasonable concern that something improper was going on.
Based on the facts and circumstances before me, I honestly and
reasonably believed that Plaintiff had committed a crime—that being,
theft.
Newton argues that the evidence raises a fact issue as to whether SCI acted
with malice. In particular, Newton points to her affidavit in which she stated that
during the time period in which she was alleged to have fraudulently submitted the
flower order forms for which she received $225 in bonuses, she was owed over
$1,000 in flower bonuses for flower sales that she had made on 22 contracts, but
for which she had not turned in a flower order form. Newton also points to the fact
that while SCI’s audit of 90 to 100 of her files identified five files reflecting that
she had received bonuses to which she was not entitled, it either ignored or
deliberately overlooked the 22 files for which she was owed money but never
submitted a payment request. Newton argues that this evidence raises a fact issue
as to whether SCI acted with malice. We disagree.
Newton admits that in order to obtain a bonus for flower sales, she was
required to submit an order form and that she did not expect to receive a bonus
without first submitting the proper paperwork for each transaction. She further
admits that she did not submit the required paperwork for any of the transactions
for which she claims she was owed a bonus. Therefore, she was not entitled to
receive the additional bonuses from SCI. Further, even assuming she made these
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flower sales for which she did not receive a bonus, this evidence does not negate
the fact that Newton received bonuses from SCI to which she was not entitled.
Moreover, Newton has not presented any evidence to support her assertion that
SCI ignored or deliberately overlooked the 22 additional sales while conducting its
audit.
SCI conclusively established that its alleged defamatory statement to the
Webster Police Department was made without malice and, therefore, was
qualifiedly privileged. See Jackson, 445 S.W.2d at 514. The trial court did not err
in granting summary judgment on Newton’s defamation claim. We overrule her
first issue.
C. Malicious Prosecution
In her second and third issues, Newton contends that the trial court erred in
granting summary judgment on her malicious prosecution claim because she
presented summary judgment evidence raising a genuine issue of material fact on
the elements of causation and probable cause. SCI argues the evidence
conclusively negated these elements thus entitling it to summary judgment as a
matter of law on Newton’s claim.
Actions for malicious prosecution create a tension between the societal
interest in punishing crimes and the individual interest in protection from
unjustifiable criminal prosecution. Richey v. Brookshire Grocery Co., 952 S.W.2d
15
515, 520 (Tex. 1997). “Even a small departure from the exact prerequisites for
liability may threaten the delicate balance between protecting against wrongful
prosecution and encouraging reporting of criminal conduct.” Browning-Ferris
Indus., Inc. v. Lieck, 881 S.W.2d 288, 291 (Tex. 1994). To prevail on a claim of
malicious prosecution, a plaintiff must establish the following: (1) commencement
of a criminal prosecution against the plaintiff; (2) initiated or procured by the
defendant; (3) termination of the prosecution in the plaintiff’s favor; (4) the
plaintiff’s innocence; (5) the defendant’s lack of probable cause to initiate the
proceedings; (6) malice in filing the charge; and (7) damage to the plaintiff.
Richey, 952 S.W.2d at 517. Because it is dispositive, we begin with Newton’s
third issue in which she contends that SCI lacked probable cause to initiate or
procure criminal prosecution against her.
Probable cause is “‘the existence of such facts and circumstances as would
excite belief in a reasonable mind, acting on the facts within the knowledge of the
. . . [complainant], that the person charged was guilty of the crime for which he
was prosecuted.’’ Id. (quoting Akin v. Dahl, 661 S.W.2d 917, 921 (Tex. 1983)).
The question is whether a reasonable person would believe that a crime had been
committed, given the facts that the complainant, before initiating the criminal
proceedings, honestly and reasonably believed to be true. Richey, 952 S.W.2d at
517. There is an initial presumption that the defendant acted reasonably and in
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good faith and had probable cause to initiate the proceedings. Id. That
presumption disappears once a plaintiff produces evidence that the motives,
grounds, beliefs, and other evidence upon which the defendant acted did not
constitute probable cause. Id. at 518. The burden then shifts to the defendant to
offer proof of probable cause. Id. Once a citizen has probable cause to report a
crime, there can be no malicious prosecution, even if the subsequent report fails to
fully disclose all relevant facts. First Valley Bank of Los Fresnos v. Martin, 144
S.W.3d 466, 470 (Tex. 2004).
In its summary judgment motion, SCI argued that even if it procured
Newton’s prosecution, the evidence conclusively established that it had probable
cause to do so. In support of its argument, SCI relied on Cook’s affidavit in which
he stated that (1) in early 2010, SCI discovered that there were some discrepancies
in employees’ flower order forms submitted to obtain the ten present bonus—in
particular, the expenses for the flowers (i.e., bonus payments and the amount spent
on flowers) were higher than the income for the flower account; (2) an internal
audit team reviewed funeral contracts, flower order forms, time sheets, and
invoices from Flowers and Co. and determined that several Forest Park East
employees were committing fraud by claiming larger amounts of flower sales than
were actually ordered; (3) Salas, Newton’s colleague and friend, admitted that he
had stolen money from the company through the submission of fraudulent flower
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order forms; (4) Newton submitted duplicate flower order forms for which she
received bonuses that she was not owed; (5) on one occasion Salas and Newton
both submitted a flower order form to obtain a bonus for a sale to the same
customer. Cook further attested “I reviewed the duplicate flower order forms
Plaintiff submitted and it created a reasonable concern that something improper
was going on. Based on the facts and circumstances before me, I honestly and
reasonably believed that Plaintiff had committed a crime—that being, theft.” SCI
also pointed to Newton’s deposition testimony stating that she could understand
how someone would look at duplicate order forms and be concerned.
In her summary judgment response, Newton argued that SCI lacked
probable cause because the evidence showed that a reasonable person would not
have believed that a crime had been committed. Newton points to Cook’s
deposition testimony regarding two of the five accounts on which she received a
bonus she was not owed. The first account included a flower order form submitted
by Newton marked “revised,” and the second account contained two duplicate
flower order forms attached to Newton’s time sheet. With regard to the document
marked “revised,” Cook testified as follows:
Q: So when [Newton]—when she or somebody wrote that on there, do
you take from that an intent to deceive?
A: I’ll answer it this way. I didn’t prepare this document. So
truthfully, I can’t—I can’t answer that because they prepared the
document. I mean, I can see what you’re saying. I can read. But to
18
answer your question, I wouldn’t be able to answer your question
because I didn’t take part in preparation of these documents.
Q: All right. But you take my point.
A: I take your point, yeah.
With regard to the second account containing two duplicate flower order forms
attached to Newton’s time sheet, Cook testified as follows:
Q: —does that suggest to you she was trying to get paid twice when
she put them on top of each other on the same time sheet?
A: If it’s the same flower order with the same contract number, I
could see where they could think that, yeah. If that’s—if that’s what
it was.
Q: You could see where they would think that?
A: Yeah, I do.
This evidence does not raise a fact issue as to whether a reasonable person would
have believed that a crime had been committed.
Newton also argues that SCI lacked probable cause because it must have
known after completion of its audit that Newton was owed more than $1,000 for
flower orders on 22 other accounts. However, as we previously noted, there is no
evidence that SCI knew of these additional orders and, moreover, Newton was not
entitled to payment for these orders because she did not submit the appropriate
paperwork.
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Newton also argues that the presumption of probable cause disappeared
because she presented evidence of SCI’s improper motive. In support of her
argument, Newton points to the following excerpt from her deposition testimony:
Q; Do you think Foster Cook was trying to harm you?
A: I think prior to them questioning me, once they found out that, you
know, an employee was doing things to acquire money that he wasn’t
owed and he just left, I believe they were out for somebody. I do.
Q: Why do you say that?
A: Because I’m sure Charles [Wilson] and Foster [Cook] had their
jobs on the line is what I think. I’m sure they were being questioned
as to how was an employee able to do that.
This evidence, however, contains no facts but only conclusory statements
that are no more than “mere surmise or suspicion” about SCI’s motives. Such
statements do not create an issue of fact. See Rizkallah v. Conner, 952 S.W.2d
580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ) (“A conclusory statement
is one that does not provide the underlying facts to support the conclusion.
Conclusory statements . . . . are not proper as summary judgment proof if there are
no facts to support the conclusion.”)
The undisputed evidence conclusively shows that SCI had probable cause to
initiate or procure the prosecution of Newton: (1) the internal audit revealed that
several Forest Park East employees were committing fraud by claiming larger
amounts of flower sales than were actually ordered (2) Newton admitted that she
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had submitted duplicate flower order forms and received bonuses that she was not
owed; (3) Cook stated he honestly and reasonably believed that Plaintiff had
committed theft based on the facts before him; and (4) Newton understood how
SCI could be concerned about duplicate flower orders. Therefore, SCI was entitled
to summary judgment on Newton’s malicious prosecution claim. See Richey, 952
S.W.2d at 518–20; Arrendondo v. Rodriguez, No. 14-09-00857-CV, 2011 WL
304070, at *8 (Tex. App.—Houston [14th Dist.] Jan. 27, 2011) (mem. op.) (not
designated for publication). We therefore overrule Newton’s third issue and do not
reach her second issue.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
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