Classic Century, Inc. F/K/A Classic Century Homes, Inc. v. Deer Creek Estates, Inc., Darsona Enterprises D/B/A Alliance Homes, and Kenmark Homes, L.P., a Texas Limited Partnership

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-07-033-CV

THOMAS JAY DANGERFIELD APPELLANT

V.

JACOB ORMSBY AND ACADEMY,
LTD. APPELLEES

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FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

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OPINION

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I. Introduction

Appellant Thomas Jay Dangerfield appeals from the summary judgment

rendered in favor of appellees Jacob Ormsby and Academy, Ltd. In one issue,

appellant argues that there were genuine issues of material fact on his claims

of false imprisonment, malicious prosecution, and negligence. We affirm.
 II. Background Facts

On August 16, 2004, at 2:00 p.m., Cindy Ann Perry-Alm, a loss

prevention employee for Academy, was about to leave the store when she saw

a white Honda pull up and park in the fire lane, which she thought was odd.

She observed a man enter the store, head to the watch counter, pick up a

watch, take it out of the package, and hold it in his hand. He then went to the

second watch counter and took another watch. Perry-Alm got supervisor

Ormsby’s attention as the man went into the apparel department, concealed

both watches, removed the security devices, and left the store. Perry-Alm,

with Ormsby about fifteen to twenty feet behind her, followed the man out of

the store, identified herself, and asked him to come back inside; the man

pushed her to the ground and drove off. Perry-Alm called 9-1-1, and a

customer in the parking lot wrote down a description of the car and a partial tag

number. The whole incident lasted about four or five minutes.

Perry-Alm described the suspect as a black male in his forties who was

six feet, three or four inches tall, very thin, and 160–175 pounds, with facial

hair. The suspect wore a baseball cap, jeans, a Hawaiian shirt, and big, square

eyeglasses.

When White Settlement Police Officer S. Denham arrived, he checked the

license plate provided and discovered that the car was registered to Debra

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Henry. On September 9, 2004, White Settlement Police Officer Timothy N.T.

Scott, who was assigned the case, reviewed the file and went to the French

Quarter Apartments, the address listed for Debra Henry. He went to the leasing

office and spoke with the manager about the person who lived in apartment

220. Officer Scott learned that appellant lived in the apartment and not Debra

Henry. The manager allowed Officer Scott to review the apartment’s file on

appellant and copy appellant’s driver’s license. Officer Scott believed that

appellant’s driver’s license picture matched Perry-Alm’s description of the

suspect. Officer Scott also researched appellant’s criminal history, which

included theft, marijuana possession, and forgery. Based on the information he

had collected, Officer Scott believed that appellant was the suspected

shoplifter.

On September 10, 2004, Officer Scott contacted appellant’s Parole

Officer, Joanne Brandon, and told her that appellant was a suspect in a robbery.

Because the shoplifting incident report alleged that the suspect had touched or

physically shoved another person, Parole Officer Brandon filed a parole violation

report.

Officer Scott used appellant’s driver’s license photograph to create a

photo line-up. Scott attempted to contact Perry-Alm to view the photo line-up,

but he discovered that she no longer worked for Academy. Academy’s director

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of loss prevention asked Ormsby to assist Officer Scott, and Ormsby agreed to

look at a photo line-up. On September 13, 2004, Ormsby viewed the photo

line-up for about sixty to ninety seconds, picked out appellant as the shoplifter,

and initialed the line-up.

On September 15, 2004, Officer Scott obtained a probable cause warrant

from the local magistrate, which led to appellant’s arrest. During appellant’s

incarceration, Debra Henry, appellant’s sister and the car’s registered owner,

contacted an attorney and explained that her boyfriend, Robert Adams,

borrowed her car on August 16, 2004, and committed the theft at Academy.

Adams subsequently confessed to the crime. Perry-Alm viewed Adams’s taped

confession and identified him as the shoplifter. 1

Appellant was incarcerated from September 15, 2004 to November 23,

2004, a period of seventy days. After he was released, appellant sued

appellees for false imprisonment, intentional infliction of emotional distress,

malicious prosecution, negligence, and gross negligence. Appellees filed a

traditional motion for summary judgment on appellant’s false imprisonment and

malicious prosecution claims and a no evidence motion for summary judgment

on those claims and on appellant’s intentional infliction of emotional distress

1
… The record does not indicate whether or not Adams was charged with
or convicted of a crime. He died in March 2005 of lung cancer.

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and negligent hiring claims, which the trial court granted. Appellant timely filed

this appeal, claiming that there is some evidence of his false imprisonment,

malicious prosecution, and negligence claims. 2

III. Standard of Review

After adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant’s

claim or defense. T EX. R. C IV. P. 166a(i). The motion must specifically state

the elements for which there is no evidence. Id.; Johnson v. Brewer &

Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The trial court must grant

the motion unless the nonmovant produces summary judgment evidence that

raises a genuine issue of material fact. See T EX. R. C IV. P. 166a(i) & cmt.; Sw.

Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

When reviewing a no evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

2
… When a party moves for summary judgment under both rules 166a(c)
and 166a(i), we will first review the trial court’s judgment under the standards
of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
2004). If the appellants failed to produce more than a scintilla of evidence
under that burden, then there is no need to analyze whether appellee’s
summary judgment proof satisfied the less stringent rule 166a(c) burden. Id.

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inference and resolving any doubts against the motion. 3 Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). If the nonmovant brings forward more than a

scintilla of probative evidence that raises a genuine issue of material fact, then

a no evidence summary judgment is not proper. Moore v. K Mart Corp., 981

S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied).

IV. False Imprisonment and Malicious Prosecution

In their motion, Academy and Ormsby claimed that there was no evidence

that they initiated or procured a criminal prosecution or false imprisonment of

appellant. Appellant argues that there is some evidence supporting his false

imprisonment and malicious prosecution claims. Because the causes of action

have similar elements, we will address them together.

A. False Imprisonment

The essential elements of false imprisonment are (1) a willful detention,

(2) without consent, and (3) without authority of law. Wal-Mart Stores, Inc.

v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). Additionally, in Texas, liability

for false imprisonment extends beyond those who willfully participate in

detaining the complaining party to those who request or direct the detention.

Id. at 507. False imprisonment’s first element may thus be satisfied by conduct

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… Appellant incorporated by reference everything filed of record or
otherwise contained in the court’s file as summary judgment evidence.

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that is intended to cause one to be detained, and in fact causes the detention,

even when the actor does not participate in the detention. Id. When the

alleged detention results from an unlawful arrest, to prove instigation, a plaintiff

must show that the defendant clearly directed or requested the arrest. Id.

Thus, to hold a third party liable for instigating the detention, the act of arrest

must be made by the officer, not of his or her own volition, but to carry out the

request of the defendant. Id.

However, a private citizen who merely reports a crime and identifies the

suspect to law enforcement authorities has not requested or directed the

suspect’s arrest and will not be liable for instigating a subsequent false

imprisonment. Id. A citizen has a clear legal right to report criminal misconduct

to authorities even when the reporting party mistakenly identifies the wrong

person so long as the reporting party leaves to the police the decision as to

what shall be done about any arrest, without persuading or influencing them.

Id. at 507–08.

B. Malicious Prosecution

To prevail on a malicious prosecution claim, a plaintiff must establish

(1) the commencement of a criminal prosecution against the
plaintiff,

(2) causation (initiation or procurement) of the action by the
defendant,

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 (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). A

person initiates a criminal prosecution if he makes a formal charge to law

enforcement authorities. Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d

288, 292 (Tex. 1994). A person procures a criminal prosecution if his actions

are enough to cause the prosecution, and but for his actions the prosecution

would not have occurred. Id. In other words, procurement requires that a

person’s actions be both a necessary and a sufficient cause of the criminal

prosecution. Id. Thus, a person cannot procure a criminal prosecution when

the decision whether to prosecute is left to the discretion of another person, a

law enforcement official, or the grand jury. Id. Because malicious prosecution

actions involve a delicate balance between society’s interest in the efficient

enforcement of the criminal law and the individual’s interest in freedom from

unjustifiable and oppressive criminal prosecution, a person is not liable for

merely aiding or cooperating in causing a criminal prosecution. Id.; see also

Richey, 952 S.W.2d at 517.

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C. Procurement and Instigating

The Texas Supreme Court has noted the similarity between the causation

standards of “procuring” a criminal proceeding, which is required for a malicious

prosecution claim, and “instigating” an arrest, which is an element of a false

imprisonment claim. See Wal-Mart, 92 S.W.3d at 509. For a defendant to

procure proceedings, it must appear that his desire to have the proceedings

initiated, expressed by his direction, request, or pressure of any kind, was the

determining factor in the official’s decision to commence the prosecution. Id.

Thus, much like the initiation of a false imprisonment, the procurement of

criminal proceedings requires a direction or request for the action taken. Id.

Also, like the false imprisonment rule, merely reporting a crime and the

suspected criminal to law enforcement authorities does not constitute

procurement of criminal proceedings when the authorities exercise discretion

in deciding whether to prosecute. Id.

However, a person reporting criminal conduct to the authorities may

nevertheless be considered to have procured the proceedings if he provides

information that he knows is false. Id. This exception to the rule is justified

because a person who provides false information cannot later complain if a

prosecutor acts on it. Id. Such a person has procured the resulting

prosecution, regardless of the actions of the prosecutor, and the causation

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element for malicious prosecution is satisfied; this same reasoning applies with

equal force in the false imprisonment context. Id.

D. Analysis

Although neither Ormsby nor Academy participated in appellant’s arrest

and detention, appellant argues that Ormsby selected him in the photo line-up

knowing that he did not commit the crime, which he claims amounted to

directing the police to arrest him.

Academy employees Ormsby and Perry-Alm witnessed the shoplifting

incident and provided information to Officer Denham regarding the suspect’s

physical description. Ormsby later identified appellant in the photo line-up as

the person he believed was the shoplifter. Neither Ormsby and Perry-Alm, nor

Academy through them, identified appellant by name as the shoplifter; they

only provided the police with a physical description of the shoplifter.

Additionally, Ormsby had never heard of appellant until he was told appellant’s

name after identifying him as the shoplifter in the photo line-up. Appellant

produced no evidence to show that Ormsby knew he was providing false

information. At no time did Academy or Ormsby do much more than report a

crime and mistakenly identify the wrong person. 4 See id. at 507.

4
… Officer Scott testified that Ormsby told him not to contact Perry-Alm
because she no longer worked at Academy; however, Officer Scott did attempt

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 Furthermore, appellant produced no evidence to show that Academy,

Ormsby, or Perry-Alm contacted Parole Officer Brandon or Officer Scott and

requested or directed appellant’s arrest. See id.; Lieck, 881 S.W.2d at 292.

Parole Officer Brandon had the discretion to file a parole violation report on

appellant after Officer Scott told her that appellant was a suspect in a

shoplifting incident. Parole Officer Brandon did not conduct any investigation

after speaking with Officer Scott, nor did she have any independent information

other that what Officer Scott told her. Additionally, Officer Scott stated that

the police department decided to charge appellant with theft under $1,500

because of his two prior convictions and that he then submitted the case to the

district attorney’s office. Officer Scott made the determination to forward the

case to the district attorney’s office. He also stated that neither Academy nor

Ormsby pressured him to refer the case to the district attorney’s office.

Because a private citizen who reports a crime and mistakenly identifies

the wrong person has not requested or directed the suspect’s arrest, and

because there is no evidence they knowingly provided false information to the

police, neither Academy nor Ormsby is liable for instigating appellant’s

subsequent imprisonment or for procuring criminal proceedings against him.

to contact her to have her review the photo line-up but was unsuccessful.

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See Wal-Mart, 92 S.W.3d at 507; Lieck, 881 S.W.2d at 292. The choice to

detain and arrest appellant was made by the police department and not at the

direction or instruction of either Orsmby or Academy. Additionally, the decision

whether to arrest and prosecute appellant was left to the discretion of the

Officer Scott, Parole Officer Brandon, and the district attorney’s office. See

Wal-Mart, 92 S.W.3d at 507; Lieck, 881 S.W.2d at 292. Therefore, the trial

court did not err in rendering summary judgment for appellees on the false

imprisonment and malicious prosecution claims. We overrule this portion of

appellant’s sole issue.

V. Negligent Hiring, Training, Retention, and Supervision

Academy also filed a no evidence motion for summary judgment on

appellant’s negligence claims. Appellant argues that there is some evidence

that Academy negligently hired, trained, retained, and supervised Ormsby.

A. Applicable Law

Negligent hiring, retention, and supervision claims are all simple

negligence causes of action based on an employer’s direct negligence rather

than on vicarious liability. Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49

(Tex. App.—Fort Worth 2002, no pet.). The elements of a negligence action

are duty, a breach of that duty, and damages proximately caused by the

breach. Id.; see also Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523,

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525 (Tex. 1990). An employer owes a duty to the general public to ascertain

the qualifications and com petence of the employees it hires, especially when

the employees are engaged in occupations that require skill or experience and

that could be hazardous to the safety of others. Morris, 78 S.W.3d at 49.

Therefore, an employer is liable for negligent hiring, retention, or supervision if

it hires an incompetent or unfit employee whom it knows, or by the exercise of

reasonable care should have known, was incompetent or unfit, thereby creating

an unreasonable risk of harm to others. Id.

Negligence in hiring or retention requires that the employer’s failure to

investigate, screen, or supervise its employees proximately cause the injuries

the plaintiff alleges. Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 796 (Tex.

2006). An employer is not negligent when there is nothing in the employee’s

background that would cause a reasonable employer not to hire or retain the

employee. Id.; Ogg v. Dillard’s Inc., 239 S.W.3d 409, 421 (Tex. App.—Dallas

2007, pet. denied.). To establish a claim for negligent training, a plaintiff must

prove that a reasonably prudent employer would have provided training beyond

that which was given and that failure to do so caused his injuries.5 See

5
… For purposes of our analysis, we assume without deciding that a
cause of action for negligent training exists under Texas law. See TXI Transp.
Co. v. Hughes, 224 S.W.3d 870, 902 n.39 (Tex. App.—Fort Worth 2007, pet.
granted) (observing that the Waco court has recognized “a negligent training

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Allsup’s Convenience Stores, Inc. v. Warren, 934 S.W.2d 433, 437 (Tex.

App.—Amarillo 1996, writ denied). To establish a claim for negligent

supervision, a plaintiff must show that an employer’s failure to supervise its

employees caused his injuries. See Knight v. City Streets, L.L.C., 167 S.W.3d

580, 584 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Morris, 78 S.W.3d

at 49.

Appellees’ motion claimed that appellant had no evidence of proximate

cause. The components of proximate cause are cause-in-fact and forseeability.

Knight, 167 S.W.3d at 584. To establish that Academy’s actions were the

proximate cause of appellant’s injuries, appellant must produce evidence that

raises a genuine issue of material fact that Academy’s actions in hiring,

retaining, training, and supervising Ormsby were the cause-in-fact of his

injuries. See id; see also Fifth Club, 196 S.W.3d at 796; Morris, 78 S.W.3d at

49; Allsup’s, 934 S.W.2d at 437.

theory of recovery”); see also Builders Transport, Inc. v. Grice-Smith, 167
S.W.3d 1, 10 (Tex. App.—Waco 2005, no pet.), judgm’t withdrawn and
superseded on reh’g, 167 S.W.3d 18 (Tex. App.—Waco 2005, pet. denied);
Allsup’s Convenience Stores, Inc. v. Warren, 934 S.W.2d 433, 437 (Tex.
App.—Amarillo 1996, writ denied).

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B. Analysis

There is no evidence to support appellant’s negligence claims. Appellant

cited Ormsby’s discharge from the military for a depressive disorder and

Ormsby’s failure to provide sufficient detail on the police report as evidence of

Academy’s negligent hiring, training, retention, and supervision. Appellant also

included Academy’s associate handbook, core values, and security procedures

in its response to appellees’ motion for summary judgment as evidence of

Academy’s negligent hiring, training, retention, and supervision. However,

appellant fails to explain how this evidence relates to his claims.

Regardless, there is nothing in Ormsby’s employee record to show that

he was incompetent or unfit for Academy to hire. See Fifth Club, 196 S.W.3d

at 796; Ogg, 239 S.W.3d at 422. There is also no evidence that Ormsby was

incompetent or unfit for a position as a loss prevention employee such that

Academy was negligent in retaining him after he was hired. See Fifth Club,

196 S.W.3d at 796; Ogg, 239 S.W.3d at 422. Additionally, there is no

evidence that Academy should have provided more training or supervision

beyond that which was given. 6 See Allsup’s, 934 S.W.2d at 437.

6
… The trial court sustained appellees’ objections to appellant’s expert
report on negligent hiring, training, retention, and supervision; appellant does
not appeal that ruling.

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 Furthermore, as previously noted, there is no evidence that Academy or

Ormsby proximately caused appellant’s injuries because, as addressed above,

they were not responsible for appellant’s arrest or detention. Ormsby stated

that Academy’s policy was to refer shoplifting cases to the police department;

after that, it was beyond Academy’s control as to the disposition of the case.

Appellant did not produce evidence to show a link between Ormsby’s

depressive disorder, Academy’s training procedures, and Ormsby’s potential or

actual job performance. Thus, appellant did not present any evidence to

connect Academy’s alleged negligent hiring, training, retention, or supervision

to appellant’s injuries. See Fifth Club, 196 S.W.3d at 796.

Therefore, because appellant did not present any evidence of Academy’s

negligence and because Academy and Ormsby were not the proximate cause

of appellant’s injuries, we conclude that the trial court did not err in granting

summary judgment for appellees and dismiss appellant’s negligent hiring,

training, retention, and supervision claims. We overrule this portion of

appellant’s sole issue.

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 VI. Conclusion

Having overruled appellant’s sole issue, we affirm the trial court’s

summary judgment in favor of Academy and Ormsby.

TERRIE LIVINGSTON
JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

DELIVERED: August 14, 2008

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