Walgreens v. McKenzie

676 S.W.3d 170

WALGREENS, Appellant

v.Pamela MCKENZIE, Appellee

NO. 14-22-00113-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed August 17, 2023

Rehearing Enbanc Denied October 12, 2023

U. A. Lewis, Houston, for Appellee.

Jerry Mason, John Philip Griffis, Houston, for Appellant.

Panel consists of Justices Spain, Poissant, and Wilson.

OPINION

Margaret "Meg" Poissant, Justice

Appellee Pamela McKenzie ("McKenzie") sued Walgreens after she was misidentified by a store employee to police for shoplifting. Walgreens filed a motion to dismiss the case under the Texas Citizen's Participation Act ("TCPA"). See Tex. Civ. Prac. & Rem. Code Ann. § 27.003. The trial court denied Walgreens's motion to dismiss, and Walgreens filed an interlocutory appeal. See id. § 51.014(a)(12) (authorizing interlocutory appeal from denial of a motion to dismiss filed under § 27.003 ). In two issues, Walgreens argues that the trial court erred in denying its motion to dismiss. We affirm in part and reverse in part.

I. TCPA PROCEDURE

The TCPA protects citizens from retaliatory lawsuits that seek to silence or intimidate them on matters of public concern. In re Lipsky , 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding) ; see generally Tex. Civ. Prac. & Rem Code Ann. §§ 27.001 –.011. The purpose of the statute is to identify and summarily dispose of legal actions designed only to chill First Amendment rights, not to dismiss meritorious lawsuits. Tex. Civ. Prac. & Rem Code Ann. § 27.002 ; In re Lipsky , 460 S.W.3d at 589 ; Saks & Co. v. Li , 653 S.W.3d 306, 309 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

The TCPA provides a multi-step process to determine whether a lawsuit should be dismissed under the statute. Montelongo v. Abrea , 622 S.W.3d 290, 296 (Tex. 2021). Under the first step, the trial court must dismiss the action if the moving party shows by a preponderance of the evidence that the legal action is based on or is in response to the movant's exercise of (1) the right of free speech, (2) the right to petition, or (3) the right of association. Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a), .005(b); Montelongo , 622 S.W.3d at 296. Under the second step, the court may not dismiss the lawsuit if the non-movant establishes by clear and convincing evidence a prima facie case for each essential element of the claim in question. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). Under the third step, if the non-movant meets that burden, the court must still dismiss if the movant "establishes an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law." Id. § 27.005(d) ; Montelongo , 622 S.W.3d at 296. The evidence the trial court considers in determining whether a legal action should be dismissed under the TCPA includes the pleadings and affidavits filed by the parties. Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a) ; see also Hersh v. Tatum , 526 S.W.3d 462, 467 (Tex. 2017) (noting that the trial court is obligated to consider the plaintiff's pleadings regardless of whether they are offered into evidence).

Whether the TCPA applies to a particular claim is an issue of statutory interpretation that we review de novo. See Youngkin v. Hines , 546 S.W.3d 675, 680 (Tex. 2018). We review the pleadings and evidence in the light most favorable to the non-movant. Sanchez v. Striever , 614 S.W.3d 233, 239 (Tex. App.—Houston [14th Dist.] 2020, no pet.). We also review issues of statutory construction de novo. Youngkin , 546 S.W.3d at 680. When construing a statute, our objective is to determine and give effect to the Legislature's intent. Id. We construe the TCPA liberally to effectuate its purpose and intent fully. See Adams v. Starside Custom Builders, LLC , 547 S.W.3d 890, 894 (Tex. 2018).

A. Application of the TCPA

In its first and second issues, Walgreens challenges the trial court's denial of its TCPA motion to dismiss, contending that the TCPA applies to McKenzie's claims and that McKenzie failed to establish a prima facie case for each essential element of her claims. As movant, Walgreens has the burden to show by a preponderance of the evidence that McKenzie has asserted claims based on or in response to Walgreens's exercise of one of the three rights delineated in the statute. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b).

McKenzie sued for intentional infliction of emotional distress, negligence, gross negligence, and respondeat superior for being misidentified to police as a shoplifter. She additionally pleaded claims of Walgreens's direct negligence in hiring, training, and supervising the employee who reported McKenzie to police. Walgreens does not address the applicability of the TCPA to each separate claim, other than intentional infliction of emotional distress and negligence. Rather, it generally argues that all of McKenzie's claims concern Walgreens's alleged report to the police of a suspected crime. However, dismissal under the TCPA is determined on a claim-by-claim basis. Union Pac. R.R. Co. v. Dorsey , 651 S.W.3d 692, 695 (Tex. App.—Houston [14th Dist.] 2022, no pet.).

1. Intentional Infliction of Emotional Distress, Negligence, Gross Negligence, and Respondeat Superior

Under the TCPA, "exercise of the right of free speech" is defined as "a communication made in connection with a matter of public concern." Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3). A matter of public concern includes "commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions." Brady v. Klentzman , 515 S.W.3d 878, 884 (Tex. 2017) (internal quotation marks omitted). Appellate courts have held that reporting a purported crime to police is a matter of public concern falling within the TCPA. See Buckingham Senior Living Cmty., Inc. v. Washington , 605 S.W.3d 800, 807 (Tex. App.—Houston [1st Dist.] 2020, no pet.) ; see, e.g., Graves v. Evangelista-Ysasaga , No. 14-22-00137-CV, 2023 WL 370589, at *4 (Tex. App.—Houston [14th Dist.] Jan. 24, 2023, pet. filed) (mem. op.); 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.).

McKenzie alleges in her petition that she was shopping in Walgreens on July 28, 2019, when a Walgreen's employee called the police, falsely told them she had committed crimes in the store earlier that day and in the past, and said they needed to arrest her. McKenzie was approached by two police officers, who asked to speak to her in front of other customers. The police told her that she was suspected of previously committing crimes in the store and that there was video security footage showing she had engaged in crimes in the store in the past. However, when the police reviewed the video security footage, McKenzie looked nothing like the earlier suspect. McKenzie states in her petition that she was not detained further or arrested. Before leaving, she learned that the employee who called the police had been advised before making the call that McKenzie was not the same person as the suspect. The employee nonetheless called police. Pleading intentional infliction of emotional distress, McKenzie claimed: "[t]he malicious actions of Walgreens's agent were the direct cause of Mrs. McKenzie being detained and humiliated in front of the other customers that were not African American.... McKenzie has been suffering emotional distress because of this traumatizing experience." As to her claims of negligence and gross negligence, McKenzie pleaded that "Walgreens and its employee were negligent and grossly negligent in handling the investigation that led to Mrs. McKenzie being detained" and that "Walgreens's actions had wrongfully deprived her of her ... freedom by falsely accusing her of theft." She further pleaded that "Walgreens is liable for the actions of its agent."

McKenzie's claims for intentional infliction of emotional distress, negligence, gross negligence, and respondeat superior, as pleaded, are in direct response to the Walgreens employee notifying police he believed McKenzie was a shoplifter. Thus, these claims are based on or in response to the exercise of the right to free speech. See Buckingham Senior Living Cmty., Inc. , 605 S.W.3d at 807 ; see also, e.g., Murphy USA, Inc. v. Rose , No. 12-15-00197-CV, 2016 WL 5800263, at *3–4 (Tex. App.—Tyler Oct. 5, 2016, no pet.) (concluding that the TCPA was applicable to claims of malicious prosecution, defamation, false imprisonment and negligence where gas station manager called police after mistakenly believing a customer was stealing gasoline). "When it is clear from the plaintiff's pleadings that the action is covered by the Act, the defendant need show no more." Hersh , 526 S.W.3d at 467 ; see Dorsey , 651 S.W.3d at 695. We conclude Walgreens made the initial showing that the TCPA applies to McKenzie's claims of intentional infliction of emotional distress, negligence, gross negligence, and respondeat superior. The burden accordingly shifts to McKenzie to establish a prima facie case for each essential elements of these claims.

2. Negligent Hiring, Training and Supervision

McKenzie's pleadings also include claims against Walgreens for direct negligence in hiring, training, and supervising¹ the employee who called police. To fall within the scope of the TCPA, a complained-of activity must constitute "communications." Graves , 2023 WL 370589, at *4. "[W]hen a claim does not allege a communication, and is instead based on a defendant's conduct, the TCPA is not implicated." Allied Orion Grp., LLC v. Pitre , No. 14-19-00681-CV, 2021 WL 2154065, at *4 (Tex. App.—Houston [14th Dist.] May 27, 2021, no pet.) (mem. op.). Hiring, training, and supervision are conduct, not communications. Additionally, the hiring, training, and supervision of the Walgreens employee occurred before this incident. Thus, we cannot conclude that the claims are entirely based on or are in response to its employee's exercise of his First Amendment rights in...