Keel Recovery, Inc., Rebecca Arion, and Billy Ray Keel v. Tri County Adjusters, Inc., Tracy Peters, Et Ux. Shelley Peters

AFFIRMED in part; REVERSE and REMAND in part; and Opinion Filed
September 4, 2020

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00686-CV

KEEL RECOVERY, INC., REBECCA ARION, AND BILLY RAY KEEL,
Appellants
V.
TRI COUNTY ADJUSTERS, INC., TRACY PETERS, ET UX. SHELLEY
PETERS, Appellees

On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-00107-2019

MEMORANDUM OPINION
Before Chief Justice Burns and Justices Partida-Kipness and Nowell
Opinion by Chief Justice Burns1
Keel Recovery, Inc. Rebecca Arion, and Billy Ray Keel (the Keel defendants)

appeal the trial court’s order denying in part their anti-SLAPP motion to dismiss. In

three issues, the Keel defendants argue the trial court erred in denying the Keel

defendants’ motion to dismiss Tri County Adjusters, Tracy Peters, and Shelley

1
The Honorable David Bridges, Justice, participated in the submission of this case; however, he did
not participate in the issuance of this opinion due to his death on July 25, 2020. Chief Justice Burns has
reviewed the record and the briefs in this cause.
Peters’ (plaintiffs) claims of breach of fiduciary duty and aiding and abetting. In

their third issue, the Keel defendants argue this case should be remanded to the trial

court for consideration of their claim for attorney’s fees in relation to the dismissal

of their breach of fiduciary duty and aiding and abetting claims. We reverse the trial

court’s order to the extent it denied the Keel defendants’ motion to dismiss plaintiffs’

breach of fiduciary duty and aiding and abetting claims, render judgment dismissing

plaintiffs’ breach of fiduciary duty and aiding and abetting claims, and remand this

cause to the trial court for consideration of their claim for attorney’s fees. In all

other respects, the trial court’s order is affirmed.

In January 2019, plaintiffs sued the Keel defendants asserting causes of action

for malicious prosecution against all the Keel defendants, breach of fiduciary duty

against Arion, aiding and abetting breach of fiduciary duty against Keel and Keel

recovery. The petition alleged Peters and his wife, Shelley, operate Tri County

Adjusters (TCA), a vehicle repossession company. In July 2016, TCA was hired by

a TFS, a Florida repossession company, to repossess a truck cab, chassis, and

wrecker bed on behalf of TCF, a financing company. According to the petition,

TCA notified TFS that the cab, chassis, and wrecker bed had been damaged and

partially dismantled by the defaulting debtor’s heirs. After repossessing the cab,

chassis, and wrecker bed, “TCA followed TFS’s instructions concerning repairs to

the cab and chassis, and secured the wrecker bed for safekeeping while waiting for

further instructions from TFS.”
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 On August 30, 2016, Peters was arrested at his home, taken into custody, and

charged with third degree felony theft “based on representations made to the Collin

County Sheriff’s Office by a ‘concerned citizen’ who had extensive information

about” the TFS repossession. The petition alleged the “concerned citizen” was

Arion, “a disgruntled employee of TCA, who was aided and abetted by Billy Ray

Keel, a former employee of TCA.” The petition identified Keel as the owner and

operator of Keel Recovery, “a repossession company in direct competition with

TCA.” The petition alleged Peters was indicted and prosecuted based on

representations made by Kevin Davis “on behalf of TFS acting as an authorized

agent for TCF.” In February 2018, on the State’s motion, “the prosecution was

dismissed in the interest of justice.” The petition sought “compensation for damages

to their personal and business reputations, as well as loss of earning capacity in the

past, as a result of the malicious prosecution initiated or procured by TFS/TCF , and

[sought] TCA’s lost profits as a result of Arion’s fiduciary breach, aided and abetted

by Keel and/or” Keel Recovery.

In February 2019, the Keel defendants filed their original answer asserting a

general denial and the following affirmative defenses: (1) plaintiffs were “estopped

as Tracy Peters did not prove his innocence; (2) “Tracy Peters’ conduct contributed

to the claims asserted against” the Keel defendants; (3) the prosecution of Tracy

Peters was initiated and/or procured by a Grand Jury, not by” the Keel defendants;

(4) as an intervening and superseding cause, “a Grand Jury considered and evaluated
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the claims against Tracy Peters and indicted Tracy Peters; (5) the plaintiffs had

unclean hands; and (6) there is a qualified privilege for persons making reports to

police.

In March 2019, the Keel defendants filed their Anti-SLAPP motion to dismiss

asserting that all of plaintiffs’ claims were based upon their “exercise of free speech

in connection with a matter of public concern, the apparent theft of property by

Plaintiffs, and as such are barred by Chapter 27’s design to encourage and safeguard

[the Keel defendants’] constitutional rights to speak freely.” The motion alleged not

only that plaintiffs’ claims should be dismissed but also that plaintiffs had failed to

state a viable claim against the Keel defendants.

The motion alleged the following version of the facts: TCA was hired in July

2016 to repossess a 2015 F450 cab and chassis along with a wrecker bed when the

debtor failed to make the required payments. TCA employee Kevin George located

the truck at the debtor’s property, and Peters “drove the tow truck off of the debtor’s

property in perfect, running and unused condition.” This assertion was supported

by the affidavit of Shawn Malone, the debtor’s grandson, who stated the tow truck

was purchased new and was stored in a garage while Malone attempted to insure it.

The tow truck seats were still wrapped in plastic, and the truck itself had “less than

100 miles on it.” Malone stated he gave Peters the keys to the truck, and Peters

“drove it off the lot in its perfect, running, and unused condition.” Malone stated he

later spoke with the police about the truck and its condition.
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 Also attached to the motion was the affidavit of Ryan Ashley Thompson, an

employee of the debtor. Thompson’s affidavit stated that, while the debtor’s family

attempted to insure the truck, it was stored in a garage and had “approximately 60

miles on it.” Thompson stated Peters picked up the “never-used wrecker” and

“drove it off the lot in its perfect, running and unused condition.” Thompson stated

he later spoke with police about the truck and its condition.

The motion alleged Peters drove the truck to TCA’s fenced yard in McKinney

and then to “his back yard behind a storage container and covered it with a tarp.”

Plaintiffs’ original petition also alleged Peters moved the truck to his residence when

his “concerns for its safe-keeping were aroused” while it was at his business

premises in McKinney. Plaintiff’s petition also alleged that “Kevin George acted on

Mr. Peters’ instructions, detaching the wrecker bed from the chassis and placing it

on a flatbed trailer at Mr. Peters’ residence behind a freight container.”

The Keel defendants’ motion further alleged a “concerned citizen” contacted

Collin County sheriff’s office investigator Gerald Rutledge and reported that Peters

“repossessed the wrecker and then removed the wrecker bed from the cab and chassis

before taking the cab and chassis to Bob Tomes Ford.” The next day, Rutledge asked

a deputy to drive by Peters’ residence and look for a black wrecker bed. The deputy

saw the “now-separated wrecker bed behind a barn, apparently having been

repositioned onto a Dodge cab. Rutledge spoke to TFS president Kevin Davis, who

confirmed that TFS had subcontracted with plaintiffs to have the wrecker recovered,
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but only the cab and chassis had been delivered to Bob Tomes Ford with no wrecker

bed attached. The motion cited the underlying police report for the assertion that

Davis “advised that he was suspicious of the transaction almost immediately because

his questions directed at employees of [plaintiffs] were not answered when he called

to inquire about the vehicle and his requests that photos of same be sent were not

answered.” On August 30, 2016, Rutledge and other officers went to Peters’

residence where they served a search warrant and confirmed the separated wrecker

bed was “behind a shipping container, on a flatbed trailer, covered with a black tarp.”

Again citing the underlying police report, the motion alleged the officers

recovered other stolen property at Peters’ residence. The police report stated Tri-

County Adjusters was subcontracted to recover a 2016 Kearney car hauler trailer,

and TCA reported the trailer was recovered and delivered to an auction site.

However, the trailer sold at auction was not a Kearney trailer, and “it was obvious

that the VIN stickers were removed from the Kearney trailer and applied to a much

cheaper trailer that was delivered to the auction by [TCA].” The police report stated

police found at Peters’ residence a Kearney trailer “with all of the identification

numbers removed with the exception of one hidden sticker.” The trailer was

removed from the property by police, and the VIN number on the hidden sticker

returned to the man who purchased the cheaper trailer at auction and had recently

registered it using the Kearney trailer’s VIN.

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 The police report also stated that a 2012 Chevrolet Malibu was recovered from

the home of William Dickson, a TCA employee. Rutledge learned the Malibu was

recovered by TCA at the request of Santander Financial in 2014, but the vehicle was

never returned to Santander, and Santander had never been notified of its recovery.

The police report concluded:

Based on the information learned during the course of this
investigation, investigator Rutledge does believe that Tracy Peters did
commit the offense of theft of over $30,000.00 but under $150,000.00.
Kevin Davis reported that the value of the wrecker bed was over
$50,000.00 on the original invoice for the new Miller Century 312
wrecker bed, the vehicle only had 94 miles on it when dropped at Bob
Tomes Ford. The KEARNEY flatbed car hauler trailer is valued at
approximately $4,500.00 and a 2012 Chevrolet Malibu is valued at
approximately $10,000.00.

The motion stated the results of the police investigation were provided to the Collin

County district attorney’s office, which presented them to grand jury that indicted

Peters. The criminal case against Peters was filed and rescheduled multiple times

but ultimately dismissed without prejudice.

The motion argued that, because all of plaintiffs’ claims against the Keel

defendants were based entirely on their “protected first-amendment statements to a

law-enforcement officer investigating a potential theft,” the Keel defendants were

entitled to dismissal of all of plaintiffs’ claims and an imposition of sanctions on

plaintiffs and an award of attorney’s fees under the Texas Citizens Participation Act

(TCPA). On April 30, 2019, the trial court granted the Keel defendants’ anti-SLAPP

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motion to dismiss in part and dismissed only plaintiff’s malicious prosecution claim

against the Keel defendants. This appeal followed.

In their first and second issues, the Keel defendants argue the trial court erred

in denying their motion to dismiss with regard to plaintiffs’ claims of breach of

fiduciary duty and aiding and abetting breach of fiduciary duty. Among other

reasons, the Keel defendants argue all of their alleged actions and speech are

protected under the TCPA.

The TCPA protects citizens from retaliatory lawsuits that seek to silence or

intimidate them for exercising their rights in connection with matters of public

concern. In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding); see

generally TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011.2 The stated purpose of the

statute is 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.” TEX. CIV. PRAC. &

REM. CODE § 27.002; see also ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d

895, 898 (Tex. 2017) (per curiam).

2
The Texas Legislature amended the TCPA effective September 1, 2019. Those amendments apply to
“an action filed on or after” that date. Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex. Sess.
Law Serv. 684, 687. Because this lawsuit was filed before September 1, 2019, the law in effect before
September 1 applies. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961–
64, amended by Act of May 24, 2013, 83d Leg., R.S., ch. 1042, 2013 Tex. Gen. Laws 2499–2500. All
citations to the TCPA are to the version before the 2019 amendments took effect.
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 To accomplish this purpose, the statute provides a procedure to expedite

dismissing claims brought to intimidate or to silence a defendant’s exercise of a

protected right. Coleman, 512 S.W.3d at 898; see also TEX. CIV. PRAC. & REM.

CODE §§ 27.003(a), 27.005(b); Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018).

The movant bears the initial burden of showing by a preponderance of the evidence

that the legal action is based on or is in response to the movant’s exercise of the right

of free speech, the right of association, or the right to petition. TEX. CIV. PRAC. &

REM. CODE § 27.005(b); see also S&S Emergency Training Sols., Inc. v. Elliott, 564

S.W.3d 843, 847 (Tex. 2018). If the movant makes this showing, the burden shifts

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

each essential element of its claims. TEX. CIV. PRAC. & REM. CODE § 27.005(c); see

also Elliott, 564 S.W.3d at 847.

We review de novo the trial court’s ruling on a motion to dismiss under the

TCPA. See Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex.

2018); Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas

2019, pet. denied). “In conducting this review, we consider, in the light most

favorable to the nonmovant, the pleadings and any supporting and opposing

affidavits stating the facts on which the claim or defense is based.” Dyer, 573

S.W.3d at 424; see also TEX. CIV. PRAC. & REM. CODE § 27.006(a). However, the

plaintiff's petition is generally “the best and all-sufficient evidence of the nature of

the action.” Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017).
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 The TCPA defines the exercise of the right of free speech as “a

communication made in connection with a matter of public concern.” TEX. CIV.

PRAC. & REM. CODE § 27.001(3). A matter of public concern includes, among other

things, “an issue related to . . . health or safety,” or “environmental, economic, or

community well-being.” Id. § 27.001(7). Reporting a crime to law enforcement and

related judicial proceedings arising from prosecutions are matters of public concern.

Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017); Fishman v. C.O.D. Capital

Corp., No. 05-16-00581-CV, 2017 WL 3033314, at *6 (Tex. App.—Dallas July 18,

2017, no pet.) (mem. op.); Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596,

609 (Tex. App.—San Antonio 2018, pet. denied) (court agreed statements to police,

even if false, were exercise of right of petition, a First Amendment right listed in the

TCPA); see Murphy USA, Inc. v. Rose, No. 12-15-00197-CV, 2016 WL 5800263, at

*3-*4 (Tex. App.—Tyler Oct. 5, 2016, no pet.) (mem. op.) (holding that the TCPA

protected a criminal activity report even though the charges were dropped).

Here, all of plaintiffs’ claims related to the Keel defendants’ statements to

police. Therefore, the Keel defendants met the initial burden of showing by a

preponderance of the evidence that the legal action is based on or is in response to

the movant’s exercise of the right of free speech, the right of association, or the right

to petition. See TEX. CIV. PRAC. & REM. CODE § 27.005(b); see also Elliott, 564

S.W.3d at 847. The burden shifted to plaintiffs to establish by clear and specific

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evidence a prima facie case for each essential element of their claims. TEX. CIV.

PRAC. & REM. CODE § 27.005(c); see also Elliott, 564 S.W.3d at 847.

To prevail on a breach-of-fiduciary-duty claim, a party must prove the

existence of a fiduciary duty, breach of the duty, causation, and damages. Las

Colinas Obstetrics–Gynecology–Infertility Ass’n v. Villalba, 324 S.W.3d 634, 645

(Tex. App.—Dallas 2010, no pet.). An employee may not, without breaching his

fiduciary duties, “(1) appropriate the company’s trade secrets, (2) solicit the former

employer’s customers while still working for his employer, (3) solicit the departure

of other employees while still working for his employer; or (4) carry away

confidential information.” Wooters v. Unitech Int’l, Inc., 513 S.W.3d 754, 762–63

(Tex. App.—Houston [1st Dist.] 2017, pet. denied).

Our review of the record shows that plaintiffs did not establish by clear and

specific evidence a prima facie case for each essential element of any such claim.

See TEX. CIV. PRAC. & REM. CODE § 27.005(c); see also Elliott, 564 S.W.3d at 847.

Specifically, while Arion may have had a fiduciary duty to her employer, TCA, that

does not mean she owed any fiduciary duty to Peters as owner of TCA. Arguably,

to the extent Arion owed TCA a fiduciary duty, that duty was fulfilled by reporting

Peters’ criminal activity that could subject TCA to negative consequences. In their

response to the Keel defendants’ motion to dismiss, plaintiffs alleged Arion breached

her fiduciary duty to TCA because Rutledge had such detailed information that only

an “insider” at TCA could have “started this ball rolling; the only insider motivated
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to do so at the time was Arion, and the only individuals or entities that Arion’s doing

so would benefit directly, known to Arion, were Keel and KRI.” In support of this

assertion, plaintiffs cited only portions of Peters’ own affidavit in which he stated

Arion “reacted very badly” to Peters’ being “markedly unsympathetic” to the wife

of another TCA employee injured in a collision. Peters’ affidavit stated he

“believe[d] Ms. Arion’s anger motivated her to act vengefully towards [Peters], and

she was aided in this vengeful act by her uncle Mr. Keel, who is a business

competitor of [Peters’], and thus motivated to damage my reputation.” Far from

establishing by clear and specific evidence a prima facie case that Arion breached

her fiduciary duty to TCA, this evidence only shows what Peters “believe[s].”

Moreover, these assertions ignore the fact that the report to Rutledge did reveal

evidence of theft for which he was subsequently indicted by a grand jury. Because

plaintiffs failed to establish Arion breached her fiduciary duty, we further conclude

plaintiffs failed to establish any of the other Keel defendants aided and abetted Arion

in any such breach of fiduciary duty. , LLC See Super Starr Int’l, LLC v. Fresh Tex

Produce, LLC, 531 S.W.3d 829, 847 (Tex. App.—Corpus Christi-Edinburg 2017,

no pet.) (“Generally, when a breach of fiduciary duty claim fails, so should an aiding

and abetting in the breach of fiduciary duty claim, to the extent one exists in

Texas.”). Under the facts and circumstances of this case, we conclude the trial court

erred in failing to dismiss all of plaintiffs’ claims against the Keel defendants. See

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TEX. CIV. PRAC. & REM. CODE § 27.005(c); see also Elliott, 564 S.W.3d at 847. We

sustain the Keel defendants’ first and second issues.

In their third issue, the Keel defendants argue this case should be remanded to

the trial court to consider their claims for attorney’s fees in relation to the dismissal

of plaintiffs’ breach of fiduciary duty and aiding and abetting claims. We agree.

Section 27.009 of the civil practices and remedies code requires a court to award

court costs and reasonable attorney's fees to the moving party if the court dismisses

the legal action under Chapter 27. TEX. CIV. PRAC. & REM. CODE § 27.009(a). The

statute also mandates sanctions “as the court determines sufficient to deter” the filing

of similar actions. See id. We sustain the Keel defendants’ third issue.

Accordingly, we reverse the trial court’s order denying the Keel defendant’s

motion to dismiss and render judgment dismissing all of plaintiffs’ claims. We

remand the case to the trial court to award the amount of reasonable attorney's fees,

costs, or expenses that justice and equity may require, impose sanctions, if any,

sufficient to deter future similar conduct, and for further proceedings consistent with

this opinion. See Tatum v. Hersh, 559 S.W.3d 581, 586 (Tex. App.—Dallas 2018,

no pet.) (“Appellate courts generally remand the fee issue when a trial court has

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erroneously denied a Chapter 27 dismissal motion.”). In all other respects, the trial

court’s order is affirmed.

/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE

190686F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

KEEL RECOVERY, INC., On Appeal from the 380th Judicial
REBECCA ARION, AND BILLY District Court, Collin County, Texas
RAY KEEL, Appellants Trial Court Cause No. 380-00107-
2019.
No. 05-19-00686-CV V. Opinion delivered by Chief Justice
Burns. Justices Partida-Kipness and
TRI COUNTY ADJUSTERS, INC., Nowell participating.
TRACY PETERS, ET UX.
SHELLEY PETERS, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED in part and REVERSED in part. We REVERSE that portion
of the trial court’s judgment denying the motion to dismiss of Keel Recovery, Inc.,
Rebecca Arion, and Billy Ray Keel and RENDER judgment dismissing all claims
of Tri County Adjusters, Inc., Tracy Peters et ux. Shelley Peters. In all other
respects, the trial court’s judgment is AFFIRMED. We REMAND this cause to
the trial court for further proceedings consistent with this opinion.

It is ORDERED that appellants Keel Recovery, Inc., Rebecca Arion, and
Billy Ray Keel recover their costs of this appeal from appellees Tri County
Adjusters, Inc., Tracy Peters et ux. Shelley Peters.

Judgment entered September 4, 2020.

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