Affirmed in Part, Reversed in Part, and Remanded; and Opinion filed
September 1, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00085-CV
SAKS & COMPANY, LLC, JENNIFER WELCH, JUAN DOMINGUEZ,
AND ANDREW BALOGH, Appellants
V.
YA XI LI, Appellee
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2020-53894
OPINION
Appellee Ya Xi Li sued her former employer, appellant Saks & Company,
LLC, and other employees (appellants Jennifer Welch, Juan Dominguez, and
Andrew Balogh) for malicious prosecution and defamation. Appellants filed a
motion to dismiss these claims under the Texas Citizen’s Participation Act
(TCPA),1 and the trial court denied it. They challenge the trial court’s ruling in
this interlocutory appeal. We affirm the trial court’s order in part, reverse it in
part, and remand for further proceedings.
I. TCPA PROCEDURES
The TCPA was designed to protect a defendant’s rights of speech, petition,
and association while protecting a claimant’s right to pursue valid legal claims for
injuries caused by the defendant. Montelongo v. Abrea, 622 S.W.3d 290, 295
(Tex. 2021) (citing Tex. Civ. Prac. & Rem. Code § 27.002). To accomplish this
objective, the TCPA provides for a multi-step process for the dismissal of a legal
action to which it applies. See id. First, the movant must demonstrate that the
legal action is “based on or is in response to” the movant’s exercise of the right of
free speech, petition, or association. Id. If the movant meets this burden, the
claimant may avoid dismissal by establishing by clear and specific evidence a
prima facie case for each essential element of the claim in question. Id. Under this
standard, the claimant must provide enough detail to show the factual basis for
their claim. In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding).
An “exercise of the right to petition” means, among other things, (1) a
communication pertaining to an official proceeding to administer the law, or (2) a
communication that is reasonably likely to encourage consideration or review of an
issue by a judicial or other governmental body. Tex. Civ. Prac. & Rem. Code
§ 27.001(4)(A)(ii), (C). An “exercise of the right of free speech” means a
communication made in connection with a matter of public concern. Id.
§ 27.001(3). A “matter of public concern” includes a statement or activity
1
See Tex. Civ. Prac. & Rem. Code ch. 27; see also In re Lipsky, 460 S.W.3d 579, 584 &
n.1 (Tex. 2015).
2
regarding “a matter of political, social, or other interest to the community” or “a
subject of concern to the public.” Id. § 27.001(7).
We review de novo whether the parties have met their respective burdens.
See M.A. Mills, P.C. v. Kotts, 640 S.W.3d 323, 326 (Tex. App.—Houston [14th
Dist.] 2022, pet. filed). We view the pleadings and the evidence in the light most
favorable to the claimant, favoring the conclusion that their claims are not
predicated on a protected expression. See Buzbee v. Clear Channel Outdoor, LLC,
616 S.W.3d 14, 29 (Tex. App.—Houston [14th Dist.] 2020, no pet.); Sanchez v.
Striever, 614 S.W.3d 233, 246 (Tex. App.—Houston [14th Dist.] 2020, no pet.).
II. PLEADINGS AND EVIDENCE
Li sued appellants for malicious prosecution, false imprisonment,
defamation, negligence, and gross negligence. She alleged that she was a
cosmetics salesperson at a Saks department store. Regarding her malicious
prosecution claim, she alleged that appellants accused her of committing aggregate
felony theft, and Li was arrested based on appellants’ accusation. The basis for the
theft accusation was that Li made sales to customers who used other peoples’
credit cards. Regarding her defamation claim, she alleged that Saks, Dominguez,
and Balogh “made false, defamatory statements accusing [Li] of a crime—namely
theft—and published the false statements to third parties including police officers,
other employees who were not directly involved in the investigation, and [Li’s]
friends.”
Appellants filed a motion to dismiss under the TCPA, arguing that Li’s
claims were based on appellants’ exercise of the right to petition. Appellants
argued that they established the affirmative defense of truth for Li’s defamation
claim, attaching as an exhibit Li’s “confession” to the alleged offense. In the
statement handwritten by Welch or Dominguez, but signed by Li, she admitted to
3
ringing up several transactions for customers who purportedly used their “friend’s”
accounts and had other people pick up the orders. The statement provides, “I knew
that the Saks account numbers used did not belong to the customers I was talking
to,” and, “I knew that this was wrong and I know this caused an additional loss to
the company.”
Li filed an amended petition in which she altered the basis for her
defamation claim. Instead of complaining about statements made to the police or
other employees, Li alleged that Saks, Dominguez, and Balogh “through
Dominguez, made false, defamatory statements accusing [Li] of a crime—namely
theft—and published the false statements to a third party who was [Li’s]
acquaintance.”
Li filed a response to appellant’s motion to dismiss, attaching declarations
from herself, her friend, and her criminal defense attorney. In her declaration, Li
testified that she was a lawful permanent resident from China and was hired by
Saks “because I was Chinese and I spoke Chinese and had access to lots of wealthy
Chinese customers.” She testified that Saks “gave me permission and encouraged
me to promote Saks merchandise on a Chinese app called WeChat that is very
much like Facebook.” Li sold millions of dollars’ worth of different products for
Saks during her two and a half years’ employment at the department store.
In April 2019, Welch and Dominguez were employed by Saks as loss
prevention officers. They had been investigating some bad credit card transactions
involving Li’s customers when they called Li to an office and interrogated her for
hours without allowing her to leave or use the bathroom. Li testified that she does
not speak English well and does not understand complicated words in English.
She could not communicate in English well enough to explain things to Welch and
Dominguez as they accused her of being a thief. Welch and Dominguez “knew
4
[Li] could not understand good or explain things well to them and took advantage
of it.” They wrote out the purported confession in English and made Li sign it. Li
did not understand what it said and felt she could not go home or keep her job if
she did not sign it. She testified that she did not accept credit card payments that
she knew were unauthorized.
The store manager, Balogh, read the statement and authorized Welch and
Dominguez to seek Li’s arrest. Li was arrested at the store and held for three days
in a Harris County jail. Li’s criminal defense attorney testified that a criminal
complaint alleged that Li unlawfully appropriated various items of merchandise
from Welch, i.e., Saks, with the intent to deprive Welch of the property.
Ultimately, a grand jury no-billed the case, and the charge was dismissed.
Li testified that that credit card transactions that formed the basis of her
arrest for theft “had to be approved through Saks’ credit department,” and Saks
“approved each transaction that Saks accused me of doing something wrong with.”
Li “followed the procedures that Saks told me to follow.” She testified that Welch
and Dominguez never told the police that the credit department authorized the
transactions that Li did for the customers who participated in the alleged theft.
Welch and Dominguez “never told police that I ran those transactions by the Saks
credit department for approval.” Li’s attorney testified that Li’s lack of intent to
steal merchandize was shown by the fact that Li was required to “get approval
from the credit department for all in-store purchases over $1,000” and that Li
“complied with company policy before each transaction and did not make any
attempt to subvert or hide what she was doing.” Moreover, Welch and Dominguez
never told the police that “Saks encouraged employees to use WeChat.”
Li testified that when she was being detained at the Saks store, Welch and
Dominguez took Li’s briefcase that contained $150 in cash, which belonged to Li’s
5
friend. Li and the friend testified similarly that when the friend went to Saks to get
the money, Dominguez told the friend that Dominguez “didn’t see any money” and
that “the money was stolen by [Li].”
At the hearing on appellants’ motion, appellants additionally contended that
the TCPA applied to Li’s amended defamation claim because it related to a matter
of public concern.
The trial court denied the motion without specifying its reasons.
III. TIMELINESS
As an initial matter, Li contends that the trial court’s order may be upheld
for Saks and Welch because they did not file their motion to dismiss timely under
the TCPA.
A motion to dismiss under the TCPA “must be filed not later than the 60th
day after the date of service of the legal action.” Tex. Civ. Prac. & Rem. Code
§ 27.003(b). The parties, “under mutual agreement, may extend the time to file a
motion.” Id. And, the court “may extend the time to file a motion under this
section on a showing of good cause.” Id. Although the statute does not define
“good cause,” at least one court has noted that good cause may be established by
showing that “the failure involved was an accident or mistake, not intentional or
the result of conscious indifference.” Sullo v. Kubosh, 616 S.W.3d 869, 900 n.1
(Tex. App.—Houston [1st Dist.] 2020, no pet.) (quoting Wheeler v. Green, 157
S.W.3d 439, 442 (Tex. 2005) (per curiam)).
Saks and Welch filed their motion to dismiss on November 30, 2020. Li
adduced evidence that Saks and Welch were served on September 16 and
September 8, 2020, respectively—more than sixty days before they filed their
motion. However, Li also adduced evidence that the parties signed a Rule 11
6
agreement whereby the defendants agreed to “accept service of Plaintiff’s Original
Petition” on October 1, 2020.
Saks and Welch argued to the trial court and to this court that the Rule 11
agreement set the date of service as October 1, so their November 30 motion was
filed timely within sixty days of service. They contend in the alternative that they
established good cause for a late filing by relying on the date of service stated in
the Rule 11 agreement. Yi makes no argument regarding Saks and Welch’s good
cause.
Even if the Rule 11 agreement in this case did not set the date of service for
purposes of the TCPA,2 Saks and Welch’s reliance on the date of the Rule 11
agreement in filing their motion to dismiss establishes good cause because their
failure to file the motion a few weeks earlier was the result of a mistake and not
conscious indifference. Compare Sullo, 616 S.W.3d at 902 (no good cause when
the movants filed their TCPA motion “years after they were served with a legal
action setting out the only causes of action that have been asserted against them”
and after they had filed dispositive summary judgment motions on those causes of
action), with Boulet v. State, 189 S.W.3d 833, 837–38 (Tex. App.—Houston [1st
Dist.] 2006, no pet.) (good cause established when attorney mis-calendared
deadline to respond to request for admissions and the attorney delivered the
response on the perceived deadline).
The trial court’s ruling on Saks and Welch’s motion cannot be upheld on this
basis.
2
Li agrees that Dominguez was served on the date of the Rule 11 agreement because that
is when Dominguez “agreed to accept service,” but also contends that the Rule 11 agreement was
“ineffective to reset the dates for Saks and Welch because it is unsworn.” See Tex. R. Civ. P.
119 (stating that a defendant may accept service of process through an attorney by a “written
memorandum . . . sworn to before a proper officer”).
7
IV. MALICIOUS PROSECUTION
Regarding Li’s malicious prosecution claim, appellants first contend that the
TCPA applies because the claim is based on or in response to their exercise of the
right to petition. Li does not dispute this contention, and we agree with appellants
that Li’s claims are based on or in response to appellants’ communications
reasonably likely to encourage consideration or review of an issue by a judicial or
other governmental body. See Tex. Civ. Prac. & Rem. Code § 27.001(4)(C); see
also Ford v. Bland, No. 14-15-00828-CV, 2016 WL 7323309, at *1 (Tex. App.—
Houston [14th Dist.] Dec. 15, 2016, no pet.) (mem. op.) (“Statements to police
regarding incidences of perceived wrongdoing are protected by the TCPA.”);
accord Buckingham Senior Living Cmty., Inc. v. Washington, 605 S.W.3d 800, 807
(Tex. App.—Houston [1st Dist.] 2020, no pet.); 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.).
We turn to the second step of the TCPA analysis. As part of her burden to
produce clear and specific evidence of a prima facie case for each essential element
of the malicious prosecution claim, Li had to prove among other things that
appellants (1) lacked probable cause; and (2) harbored malice toward her. See
Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 792–93 (Tex. 2006).
Appellants contend that Li has failed to meet her burden to prove these two
elements. We address only the probable cause element because it is dispositive.
The probable cause element asks “whether a reasonable person would
believe that a crime had been committed given the facts as the complainant
honestly and reasonably believed them to be before the criminal proceedings were
instituted.” Id. (quoting Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517
(Tex. 1997)). Courts presume that a complainant acted reasonably and had
8
probable cause to initiate criminal proceedings. Id. at 793. “To rebut this
presumption, the plaintiff must produce evidence that the motives, grounds,
beliefs, or other information upon which the [complainant] acted did not constitute
probable cause.” Id. The complainant’s “failure to make a further investigation
into the suspect’s state of mind does not constitute lack of probable cause if all
objective elements of a crime reasonably appear to have been completed.” Richey,
952 S.W.2d at 518. In other words, the complainant has no duty to inquire of the
suspect whether they have some alibi or explanation for their conduct. Id.
A person commits the offense of theft if the person unlawfully appropriates
property with intent to deprive the owner of the property. Tex. Penal Code.
§ 31.03(a). “Appropriate” means to acquire or otherwise exercise control over
property. Id. § 31.01(4)(B). Appropriation is unlawful if it is without the owner’s
effective consent. Id. § 31.03(b)(1). Consent is not effective if it is induced by
deception. Id. § 31.01(3)(A). A person may be held criminally responsible for the
conduct of another if, acting with intent to promote or assist the commission of the
offense, the person solicits, encourages, aids, or attempts to aid the other person to
commit the offense. Id. § 7.02(a)(2).
Under these standards, Li had the burden to respond to appellants’ motion
with clear and specific evidence showing that appellants acted on motives,
grounds, beliefs, or other information such that a reasonable person would not have
believed Li committed theft.
Here, appellants knew that Li had facilitated fraudulent sales and admitted
that she “knew that this was wrong.” None of Li’s evidence rebuts the
presumption that appellants reasonably believed Li had committed theft. Li
suggests that appellants “drew an unsupported assumption that the credit account
holder had not authorized the caller to use their credit account.” But these
9
transactions were deemed fraudulent and resulted in a loss to Saks; no evidence
undermines appellants’ belief that the account holders did not authorize the
transactions. Li also contends that appellants knew that the “credit department”
authorized the transactions, but she adduced no evidence of any appellants’
knowledge of this fact—she testified only that Welch and Dominguez failed to
inform the police about this fact.
Li points to other evidence purportedly undermining her intent to commit a
theft: the coercive nature of the interrogation, her poor understanding of the
English language, her “model employment history,” and her attorney’s opinion
testimony. None of this evidence undermines appellants’ reasonable belief that Li
unlawfully appropriated Saks’ property with an intent to deprive Saks of the
property. See Suberu, 216 S.W.3d at 794 (plaintiff’s testimony that she didn’t have
a cart when leaving the store did not undermine employees’ reasonable beliefs that
the plaintiff was trying to leave the store with a cart of items); Richey, 952 S.W.2d
at 518 (reasoning that the defendant could presume the plaintiff’s intent to steal
based on his conduct of leaving the store without paying for an item concealed in
his possession); Cash Am. Pawn, LP v. Alonzo, No. 01-19-00801-CV, 2021 WL
4155795, at *1–2, *7–8 (Tex. App.—Houston [1st Dist.] Sept. 14, 2021, no pet.)
(mem. op.) (reasoning that the defendant–employer could reasonably believe that
the plaintiff–employee committed theft when the plaintiff executed loans to
another employee that were well above the resale value of the collateral, even
though no money or property left the store). Similarly, Welch and Dominguez’s
failure to disclose to the police that Saks encouraged Li to use WeChat or that the
Saks credit department had approved the transactions does not rebut the
presumption of probable cause. See Richey, 952 S.W.2d at 519 (reasoning that a
defendant’s “failing to fully and fairly disclose all material information and
10
knowingly providing false information to the prosecutor . . . have no bearing on
probable cause”).
In sum, Li failed to meet her burden in response to the TCPA motion to
produce evidence showing that a reasonable person in appellants’ position would
not have believed Li committed theft because Li did not adduce any evidence
concerning the “motives, grounds, beliefs, or other information upon which
[appellants] acted” that would not amount to probable cause. Suberu, 216 S.W.3d
at 793–94.
The trial court erred by not dismissing Li’s malicious prosecution claim
under the TCPA.
V. DEFAMATION
Appellants challenge the trial court’s denial of their TCPA motion as it
relates to the defamation claim in Li’s original petition (based on an allegation of
theft made to police and other employees) and the defamation claim in her
amended petition (based on an allegation of theft made to Li’s friend).
The elements of defamation include (1) the publication of a false statement
of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) made
with the requisite degree of fault, and (4) damages in some cases. In re Lipsky, 460
S.W.3d 579, 593 (Tex. 2015) (orig. proceeding). Generally, the status of the
plaintiff determines the requisite degree of fault, and a private individual need only
prove negligence. See id. But even a private individual must prove actual malice
if the circumstances support the application of a qualified privilege. Steinhaus v.
Beachside Env’t, LLC, 590 S.W.3d 672, 677 (Tex. App.—Houston [14th Dist.]
2019, pet. denied). “Actual malice” means that the statement was made with
11
knowledge of its falsity or with reckless disregard for its truth. In re Lipsky, 460
S.W.3d at 593.
A. Original Petition Defamation Claim
Appellants contend that the TCPA applies to Li’s original defamation claim
and that Li failed to produce clear and specific evidence of each essential element
of her claim—in particular, proof of actual malice because a qualified privilege
applies. We agree with appellants.
1. Survival of TCPA Motion Following Amendment of Petition
As an initial matter, Li contends that appellants “improperly challenge the
trial court’s order pertaining to Li’s defamation claim with respect to statements
made to the police and employees” because “Li chose not to advance” this claim in
her amended petition. Li contends that appellant’s argument is “misplaced”
because Li’s amended petition took the place of her original petition.
“A party’s decision to nonsuit does not affect a nonmoving party’s
independent claims for affirmative relief, including motions for dismissal under the
TCPA.” Abatecola v. 2 Savages Concrete Plumbing, LLC, No. 14-17-00678-CV.
2018 WL 3118601, at *13 (Tex. App.—Houston [14th Dist.] June 26, 2018, pet.
denied) (mem. op.). “TCPA motions to dismiss survive nonsuit because, unlike a
nonsuit, the TCPA motion to dismiss might also allow the movant to obtain a
dismissal with prejudice, attorney’s fees, and sanctions.” Id. at *14. Thus, we
must consider Li’s defamation claim as pleaded at the time appellants filed their
TCPA motion. See Reeves v. Harbor Am. Cent., Inc., 631 S.W.3d 299, 308 n.7
(Tex. App.—Houston [14th Dist.] 2020, pet. denied).
12
2. Claim Based on or in Response to Right to Petition
As with the malicious prosecution claim, appellants contend that Li’s
original defamation claim was based on or in response to Saks’s, Dominguez’s,
and Balogh’s exercise of the right to petition. Li does not dispute this contention.
We agree with appellants that the statements to police and others about Li’s alleged
theft from Saks were communications pertaining to an official proceeding to
administer the law or were reasonably likely to encourage consideration or review
of an issue by a judicial or other governmental body. See Tex. Civ. Prac. & Rem.
Code § 27.001(4)(A)(ii), (C); see also Ford v. Bland, No. 14-15-00828-CV, 2016
WL 7323309, at *1 (Tex. App.—Houston [14th Dist.] Dec. 15, 2016, no pet.)
(mem. op.) (defamation claim based on statements to police were based on, related
to, or in response to exercise of right to petition).
3. Qualified Privilege and No Evidence of Actual Malice
Appellants contend that Saks’s, Dominguez’s and Balogh’s statements to
police and any other employees were qualifiedly privileged, and thus, Li had the
burden to adduce clear and specific evidence that these appellants made their
defamatory statements with actual malice. In her briefing, Li does not dispute the
applicability of the privilege and “assumes that Saks, Dominguez, and Balogh had
a qualified privilege.”
A qualified privilege—sometimes called a “conditional” privilege—arises
out of the occasion upon which the false statement is published. Shell Oil Co. v.
Writt, 464 S.W.3d 650, 654 (Tex. 2015). Circumstances that may give rise to a
qualified privilege include those that induce a belief that the publication protects
the publisher’s interest. See Granada Biosciences, Inc. v. Forbes, Inc., 49 S.W.3d
610, 619 (Tex. App.—Houston [14th Dist.] 2001), rev’d on other grounds, Forbes,
Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003); see also Cain v.
13
Hearst Corp., 878 S.W.2d 577, 582 (Tex. 1994) (qualified privilege exists when
the speaker has “an interest that is sufficiently affected by the communication”).
Generally, “an employer has a conditional or qualified privilege that attaches to
communications made in the course of an investigation following a report of
employee wrongdoing.” Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d
640, 646 (Tex. 1995). Another circumstance generally giving rise to a qualified
privilege is “when a person makes a statement to police identifying someone as a
potential suspect in the commission of a criminal offense.” Pease v. Bembry, No.
03-02-00640-CV, 2004 WL 1574243, at *2 (Tex. App.—Austin July 15, 2004, no
pet.) (mem. op.); accord Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596,
610 (Tex. App.—San Antonio 2018, pet. denied).
Here, appellants established that Saks’s, Dominguez’s, and Balogh’s
statements concerning Li’s alleged theft from Saks were qualifiedly privileged.
See Randalls, 891 S.W.2d at 646; Pease, 2004 WL 1574243, at *2. Thus, it
became Li’s burden to establish by clear and specific evidence that these appellants
made the statements with actual malice—with knowledge of falsity or reckless
disregard for the truth. See Steinhaus, 590 S.W.3d at 677–78.
Li points to evidence showing that she did not write the confession, did not
understand it, and only signed it after a coercive interrogation by Welch and
Dominguez. She again points to evidence that she “got approval for the alleged
fraudulent transactions from Saks’ credit department,” that she was a successful
employee, and that she was encouraged by Saks to use WeChat to sell Saks’s
merchandise. But, none of this evidence shows that Saks, Dominguez, and Balogh
spoke with knowledge of falsity or reckless disregard for the truth when they
communicated with the police or other employees. At the time they made their
statements, they knew that Li had facilitated fraudulent transactions by allowing
14
customers to use credit cards belonging to other people and that Li admitted, “I
knew that this was wrong.”
Although Li’s evidence tends to prove the falsity of these appellants’
statements, the falsity of the statements does not prove actual malice. See id. at
679. These appellants’ failures to investigate the facts more fully before referring
the matter to the police is not evidence of actual malice. See Bentley v. Bunton, 94
S.W.3d 561, 596 (Tex. 2002). Li’s evidence does not show that these appellants
purposefully avoided the truth or that their assertions were inherently improbable
and made on information that was obviously dubious. See id.; cf. Steinhaus, 590
S.W.3d at 679 (reasoning that the plaintiff’s self-serving denial of improper
activity made to the defendant did not show that the defendant spoke with
knowledge of falsity or reckless disregard for the truth (citing Huckabee v. Time
Warner Entm’t Co., 19 S.W.3d 413, 427 (Tex. 2000))). At most, Li’s evidence
shows that these appellants misinterpreted ambiguous facts, which does not show
actual malice. See Bentley, 94 S.W.3d at 596.
Accordingly, the trial court erred by not dismissing Li’s original defamation
claim under the TCPA.
B. Amended Petition Claim
Appellants contend that the TCPA applies to Li’s amended defamation claim
because it “concerned Dominguez’s right to speak regarding an issue of public
concern—i.e., Li’s alleged commission of a crime.” As shown by Li’s amended
petition and evidence, the basis for this claim was Dominguez’s communication to
Li’s friend that Li stole $150 from Li’s friend
To determine whether speech relates to a matter of public concern, courts
consider the content, form, and context of the speech. Brady v. Klentzman, 515
15
S.W.3d 878, 884 (Tex. 2017); Moore v. Reed, No. 14-20-00463-CV, 2022 WL
1180116, at *2 (Tex. App.—Houston [14th Dist.] Apr. 21, 2022, no pet.) (mem.
op.). Yet, appellants appear to argue that any statement about the commission of a
crime is about a matter of public concern, citing Brady, 515 S.W.3d at 884. This
proposition is dubious.
In Brady, the Supreme Court of Texas noted, “Public matters include,
among other things, ‘commission of crime, prosecutions resulting from it, and
judicial proceedings arising from the prosecutions.’” Id. (quoting Cox Broad.
Corp. v. Cohn, 420 U.S. 469, 492 (1975)). Brady involved statements by a
reporter made in a newspaper article about how a chief of police intimidated
officers who ticketed the plaintiff, i.e., the chief’s son. Id. The supreme court held
that the article was about a matter of public concern because there was a
paramount public interest in a free flow of information to the people concerning
public officials such as the chief of police. Id. The court did not end the inquiry at
the mere fact that the article was about the plaintiff’s commission of a crime.
The Cox Broadcasting case, quoted in Brady, prohibited the press from
being sued for invasion of privacy based on reporting of judicial proceedings and
information that was already in the public record—there, the name of a rape
victim. See Cox Broad., 420 U.S. at 492, 494–95, 498–97 (“Under these
circumstances, the protection of freedom of the press provided by the First and
Fourteenth Amendments bars the State[s] from making appellants’ broadcast the
basis of civil liability.”). The Supreme Court did not end the inquiry with the fact
that the subject matter of the report concerned crime.
This court took a similar approach in Moore, in which a candidate for
political office accused her opponent of “beating his ex-wife.” See 2022 WL
1180116, at *1. This court did not end the inquiry at the fact that the statements
16
concerned a crime but instead focused on the content, form, and context of the
speech—the statements were made during a political campaign and involved a
candidate’s fitness for office. See id. at *2 (“Based on the context of the
statements, we conclude that they were made in connection with a matter of public
concern.”).
Appellants also rely on two decisions from our sister courts: Kadow v.
Grauerholz, No. 02-20-00044-CV, 2021 WL 733302 (Tex. App.—Fort Worth Feb.
25, 2021, no pet.), and Crews v. Galvan, No. 13-19-00110-CV, 2019 WL 5076516
(Tex. App.—Corpus Christi–Edinburgh Oct. 10, 2019, no pet.) (mem. op.).
Kadow involved a statement about the plaintiff being “under criminal
investigation” for theft, fraud, misappropriation, abuse of the elderly, and
kidnapping. Kadow, 2021 WL 733302, at *3. Crews involved an allegation that a
pastor had sexually assaulted a teenage girl at his prior church. See id. at *2, *4.
The defendant informed the plaintiff’s new church and his children’s school about
the allegation of sexual assault because the plaintiff was around teenage girls at
these locations; the defendant expressed concern that the plaintiff might pose a
danger to other young women. See id. at *5 & n.5. The court held that the
clergyman’s sexual assault of young vulnerable people was a matter of public
concern under a prior statutory definition in the TCPA3 even though the statute of
limitations had run on the allegation of sexual assault. See id. at *5. The court
focused on the particular allegations in the case and did “not decide whether all
alleged crimes are matters of public concern in perpetuity.” Id. at *5.
3
The TCPA was amended in 2019 to alter the definition of “matter of public concern” so
that it more closely tracks the meaning used in First Amendment jurisprudence. See Tex. Civ.
Prac. & Rem. Code § 27.001(7)(B). Compare Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2,
2011 Tex. Gen. Laws 961, 962, with Brady, 515 S.W.3d at 884. See generally Creative Oil &
Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 133–34 (Tex. 2019) (noting that the prior
version of the TCPA’s definition of “right of free speech” was not fully coextensive with the
constitutional meaning).
17
An accusation that a person has committed a crime does not, standing alone,
establish that the speech was on a matter of public concern. See Snead v. Redland
Aggregates Ltd., 998 F.2d 1325, 1328, 1330 (5th Cir. 1993) (statements in a press
release by a party to a lawsuit against two companies, alleging that they committed
theft, espionage, and piracy, was not a matter of public concern when considering
the content, form, and context of the speech).
Here, the content, form, and context of Dominguez’s statement do not show
that his communication was made in connection with a matter of public concern.
There are no allegations or evidence that the statement—that Li stole $150 from
her friend—was made to anyone other than the alleged victim of the crime or
published in a public forum for public consumption. Nor are there allegations or
evidence that Li was under investigation by a governmental body or under
indictment for stealing money from Li’s friend. Cf. Miller v. Davis, 653 F. App’x
448, 460 (6th Cir. 2016) (although the plaintiffs’ reported information “may have
once been private matters, they became public upon issuance of the indictment
against them”); Kadow, 2021 WL 733302, at *3 (allegation about plaintiff being
“under investigation” for various crimes was matter of public concern). The
statement concerned only what happened to Li’s friend’s money; the matter was
not of general interest or of value or concern to the public. Cf. Quigley v.
Rosenthal, 327 F.3d 1044, 1059–61 (10th Cir. 2003) (recognizing that although an
allegation of discrimination may be a matter of public concern, here the allegation
of religious and ethnic discrimination made by a non-media defendant about
private parties, and not involving any concern that members of the public were
likely to be harmed or discriminated against, was not a matter of public concern).
18
Accordingly, appellants did not meet their burden to show that the TCPA
applies to Li’s amended defamation claim, and the trial court did not err by
denying the motion to dismiss this claim.
VI. CONCLUSION
The trial court erred by not dismissing with prejudice Li’s claims for (1)
malicious prosecution against appellants; and (2) defamation against Saks,
Dominguez, and Balogh as pleaded in her original petition. The trial court did not
err by denying the motion to dismiss Li’s defamation claim pleaded in her first
amended petition.
Accordingly, we reverse the trial court’s order denying the motion to dismiss
pertaining to Li’s malicious prosecution and original defamation claim. The
remainder of the trial court’s order is affirmed. We remand the case for
proceedings consistent with this opinion. See Cox Media Grp., LLC v. Joselevitz,
524 S.W.3d 850, 865 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also
Tex. Civ. Prac. & Rem. Code § 27.009.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Poissant, and Wilson.
19