Appellants Giang Vu and Linh Dong appeal the trial court’s dismissal of their malicious prosecution claim against Appellee Darren Tran under the Texas Citizens Participation Act (TCPA). They argue that they provided clear evidence for their claim and contest the dismissal. The court affirms the dismissal, stating that Vu and Dong failed to demonstrate a prima facie case for their claim.
The background reveals that Vu and Tran were business partners in several companies, including Remco Pharmacy, Inc. and RX-Direct Home Delivery. In August 2018, these businesses were placed on probation due to Vu's prior felony conviction. Tran asserts that, with Vu's consent, Vu was removed from his positions in the companies around September 2018. On December 18, 2018, while Tran awaited a meeting with Vu, he received reports from a bookkeeper, Taylor Nguyen, about Vu's unauthorized entry into the premises, where he allegedly tampered with security and took business records. Tran subsequently contacted the Arlington Police, reporting Vu’s actions as criminal mischief and theft, claiming Vu was not allowed on the premises due to his prior removal. Vu contended his presence was legitimate because he remained an owner and tenant. Tran informed police that Vu and Dong had been terminated for suspected embezzlement prior to these incidents, and they were believed to have cleared out their belongings from the office.
Tran reported to an investigator that he and other board members informed Vu and Dong about RX-Direct filing criminal and civil lawsuits. Vu and Dong allege that Tran failed to disclose his business relationships with Vu, the ongoing business dispute, and Vu’s tenant status. Vu contends that his arrest warrant was based on Tran's information and that the detective's probable cause narrative relied on Tran's interviews. The arrest warrant affidavit claimed Vu committed felony burglary by entering a building without consent to commit theft, supported by a report of criminal mischief and identification by Nguyen, who recognized Vu as the suspect and provided audio evidence of Vu's actions. Vu was arrested on July 17, 2019, and spent three to four days in jail, while Dong turned herself in on November 15, 2019, after being featured as a wanted fugitive, and spent about nine hours in jail. Both were no-billed by the Tarrant County grand jury regarding their burglary charges. Tran stated he did not influence the police or prosecution decisions, asserting that he merely filed a police report regarding Vu and Dong's actions. In October 2020, Vu and Dong sued Tran for malicious prosecution, leading Tran to file a motion to dismiss under the Texas Citizens Participation Act (TCPA). The trial court granted the dismissal, leading to an expedited appeal. Vu and Dong claimed they established all elements of malicious prosecution, but Tran countered that they did not prove causation, innocence, lack of probable cause, or malice. The court agreed with Tran's position.
The Texas Citizens Participation Act (TCPA) aims to protect the constitutional rights of individuals to petition, speak, associate, and participate in government while also allowing for the filing of legitimate lawsuits for demonstrable injuries. Under Section 27.003, a party can move to dismiss a legal action if it pertains to their exercise of free speech, petition, or association. The trial court follows a three-step process to determine dismissal:
1. If the movant demonstrates that the action is related to their rights, the court must dismiss it.
2. If the nonmovant presents clear and specific evidence of a prima facie case for each essential claim element, the court cannot dismiss the action.
3. The movant can still win dismissal by proving a valid defense against the nonmovant’s claim.
The trial court evaluates the case based on pleadings, evidence, and affidavits. 'Clear and specific evidence' is not defined in the TCPA, but 'clear' is interpreted as unambiguous, while 'specific' relates to explicit details. A prima facie case is defined as sufficient evidence to establish a fact unless contradicted. The rulings on TCPA motions are reviewed de novo, including the evaluation of whether the nonmovant has shown clear and specific evidence for their claims.
In the case of Vu and Dong, they acknowledged that Tran met his initial burden under the TCPA. Reporting perceived wrongdoing to the police is recognized as exercising the right to petition, which encompasses filing police reports regardless of their truthfulness.
The burden is on Vu and Dong to provide clear and specific evidence for each essential element of their malicious prosecution claim. Malicious prosecution claims are designed to protect individuals from unjust criminal proceedings, balanced against public policy that encourages reporting crimes. The essential elements necessary to establish such a claim include: (1) initiation of criminal prosecution against the plaintiff, (2) causation of the prosecution by the defendant, (3) favorable termination of the prosecution for the plaintiff, (4) the plaintiff's innocence, (5) absence of probable cause, (6) malice in filing the charge, and (7) damages to the plaintiff. The concept of probable cause assesses whether a reasonable person would believe a crime occurred before the prosecution began.
Vu and Dong assert they met their burden for all elements, but the defendant, Tran, contends they failed to establish causation and absence of probable cause. The court concludes that Vu and Dong did not meet their burden regarding causation and absence of probable cause. Causation involves determining whether the defendant initiated or procured the criminal proceedings. A prosecution is initiated by making a formal charge to law enforcement, or procured if the defendant’s actions directly led to the prosecution occurring. If the decision to prosecute rests with law enforcement or a grand jury, the defendant can only be said to have caused the prosecution if they knowingly provided materially false information.
In Reed v. Cleveland, the court addressed the criteria for establishing malicious prosecution, particularly focusing on the materiality of false information provided by a defendant. The plaintiff must demonstrate that the prosecution would not have occurred 'but for' the false statements. In this case, Vu and Dong claimed that Tran's report to the police initiated their prosecution for burglary, omitting key facts about Vu’s business partnership and tenancy. However, the Arlington Police Department's records indicated the charges were based on "criminal mischief" and "theft of property," not burglary, and included evidence beyond Tran's statements, such as photographs, recordings, and witness accounts.
Notably, a witness named Nguyen expressed suspicions about Vu's presence at the premises, corroborating law enforcement's findings of property damage that Vu did not dispute. The court concluded that even if Tran had provided false information, it was not the sole basis for the prosecution, as police had conducted a thorough investigation. Consequently, Vu and Dong failed to prove that their prosecution was solely due to Tran's actions, leading the court to rule against them on the malicious prosecution claim.
The fifth element of a malicious prosecution claim requires demonstrating a lack of probable cause for initiating or procuring prosecution. Probable cause is assessed based on whether a reasonable person would believe a crime occurred at the time the report was made, rather than later during the investigation. A complainant's reasonable belief in the occurrence of a crime is not diminished by not disclosing all relevant facts. There is a presumption that the defendant acted reasonably and had probable cause, placing the burden on the plaintiff to disprove this presumption.
In this case, Vu and Dong presented evidence, including Vu's signature on the lease and his role in Medical RX, to argue there was no probable cause for the prosecution. They contended that Tran could not have reasonably believed that Vu lacked authority over the premises. Conversely, Tran argued that Vu and Dong failed to provide specific facts or evidence to show that he did not reasonably believe a crime had occurred, especially in light of alarming reports from employees witnessing potentially violent behavior.
Tran maintained that the crime he reported was different from the charges ultimately filed, asserting that the assessment of probable cause should relate to the time of the accusation rather than the later legal outcomes. The court agreed that the outcome of the grand jury's decision does not determine the existence of probable cause, emphasizing that probable cause is evaluated based on the situation at the time of the report. The law presumes that an accuser acts honestly based on their observations. To counter this presumption, Vu and Dong needed to provide evidence that Tran's actions were based on unreasonable beliefs or motives, which they failed to do.
Probable cause requires a reasonable belief that a crime occurred at the time of reporting. Tran's employee, Nguyen, reported Vu's actions, which included disconnecting a video camera, attempting to access offices, damaging doors with a meat cleaver, and removing business records. Vu and Dong do not dispute these actions, thus establishing adequate grounds for police involvement. The reported crimes were criminal mischief and theft, not burglary, and Vu and Dong’s failure to contest their actions undermines their malicious prosecution claim.
Regarding the elements of malicious prosecution, Vu and Dong did not sufficiently prove their innocence or malice. They argued that their ownership and tenancy established innocence, but Tran countered that a no-bill for burglary does not prove innocence of other charges. Malice was defined as reckless disregard for others' rights, yet Vu and Dong's evidence, including an email exchange, failed to clearly demonstrate malice in Tran's actions. Since failure to prove any single element is sufficient to affirm the dismissal, and Vu and Dong did not prove at least two elements, the trial court's dismissal of their claim was upheld. The judgment was affirmed on August 19, 2021.
