Latricha Smith and Bryan James Smith v. Bailey Hammonds
01-19-00866-CV
| Tex. App. | Jul 1, 2021Background
- Bryan Smith and Bailey Hammonds are divorced, share custody of a child, and have an acrimonious history; Bryan is now married to Latricha Smith.
- Dec. 20, 2018: At an orthodontist appointment, Hammonds was cited for leaving a child unattended in a vehicle; she says she repeatedly checked the children; charge later dismissed by the State.
- Mar./Apr. 2019: Hammonds was arrested on a criminal-mischief charge after her child allegedly picked flowers at the Smiths’ home; she was jailed, retained counsel, and the case was later dismissed by the State.
- July 2019: Hammonds sued Latricha and Bryan Smith for malicious prosecution based on the two incidents, alleging lack of probable cause, malice, and damages.
- The Smiths filed a TCPA motion to dismiss, arguing their reports to police are protected petitioning; the trial court denied the motion and the Smiths appealed interlocutorily.
- The court of appeals reviewed whether the TCPA applied, whether Hammonds made a prima facie malicious-prosecution showing, and whether attorney’s fees remand was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reporting a crime to police is an exercise protected by the TCPA | Hammonds: her claim is ordinary tort and not shielded from early dismissal | Smiths: reporting a crime and related statements to police are petitioning/free-speech activity under the TCPA | Held: Reporting crimes and related statements are covered by the TCPA (TCPA applies) |
| Whether Hammonds made a prima facie malicious-prosecution case for the orthodontist incident (initiation/procurement; lack of probable cause) | Hammonds: circumstantial evidence shows Smiths caused the report, withheld material facts, had prior bad relations and motive, and no probable cause existed | Smiths: they merely reported true information; officer discretion started prosecution; no duty to investigate; thus probable cause presumed | Held: Hammonds presented clear and specific evidence (including circumstantial evidence and prior bad relations) to satisfy initiation/procurement and rebut probable-cause presumption |
| Whether Hammonds made a prima facie malicious-prosecution case for the flower-picking incident (procurement; termination; probable cause) | Hammonds: alleges Smiths provided false information, bullied the responding officer, formal sworn report by Latricha, case was dismissed by State | Smiths: decision to prosecute was officer/prosecutor discretion; dismissal does not necessarily show lack of probable cause | Held: Hammonds showed procurement (alleged false info/bullying), termination in her favor (State’s motion to dismiss), and rebutted probable-cause presumption via prior bad relations/motive |
| Whether the Smiths are entitled to remand for attorney’s fees under TCPA | Smiths: if dismissal is required, fee award is mandatory and remand should determine amount | Hammonds: trial court denied dismissal so fees not awardable | Held: Because the motion to dismiss was denied, no TCPA dismissal occurred and remand for fees was not warranted |
Key Cases Cited
- Brady v. Klentzman, 515 S.W.3d 878 (Tex. 2017) (reporting crimes and prosecutions are matters of public concern under TCPA)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (clarifies "clear and specific" evidence and that circumstantial evidence and rational inferences are permissible)
- Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788 (Tex. 2006) (elements of malicious-prosecution claim and presumption of reporter good faith)
- Browning-Ferris Indus. v. Lieck, 881 S.W.2d 288 (Tex. 1994) (liability where informer’s conduct is determinative of prosecution)
- Richey v. Brookshire Grocery Co., 952 S.W.2d 515 (Tex. 1997) (failure to disclose material facts and knowingly giving false information relevant to malice and causation)
- Serafine v. Blunt, 466 S.W.3d 352 (Tex. App.—Austin 2015) (pleadings may be considered as evidence under TCPA)