FS Trucking, Inc. and Fausto Sotelo v. Stacey Harrison

Opinion filed August 8, 2024

In The

Eleventh Court of Appeals
__________

No. 11-23-00201-CV
__________

FS TRUCKING, INC. AND FAUSTO SOTELO, Appellants
V.
STACEY HARRISON, Appellee

On Appeal from the 244th District Court
Ector County, Texas
Trial Court Cause No. C-23-03-0349-CV

MEMORANDUM OPINION
Appellee, Stacey Harrison, sent a series of text messages to representatives of
Appellant FS Trucking, Inc., demanding that it move a rig from a drilling site; the
text messages also stated that, if FS Trucking failed to act immediately, the rig would
be moved from the drilling site without its consent. On the following day, an
unknown person or persons moved the rig. When the Gaines County Sherriff’s
office questioned Harrison about his involvement in these events, he replied that he
“did what he had to do.” Harrison was later indicted and arrested in connection with
damages that the rig allegedly sustained during the move. He then sued FS Trucking
and Appellant Fausto Sotelo, who is alleged to be the owner of FS Trucking, for
malicious prosecution and intentional infliction of emotional distress.
This appeal arises out of the denial of Appellants’ motion to dismiss under the
Texas Citizens Participation Act (TCPA). TEX. CIV. PRAC. & REM. CODE ANN.
§§ 27.001–.011 (West 2020 & Supp. 2023). Appellants contend on appeal that, in
response to their motion to dismiss, Harrison failed to present clear and specific
evidence in support of his causes of action for malicious prosecution and intentional
infliction of emotional distress. See id. § 27.005(c). We reverse and remand with
instructions.
I. Background Facts
Harrison is a self-described “company man” for Fusselman Resources, LLC.
In that capacity, he “is an authorized representative of the operator . . . who works
on site, ensuring that the schedules and instructions, plans, specifications,
requirements, budgets, and other project management matters are carried out in the
best interests of the owner operator of a well.” He is also a “37.5% working-interest
owner” of wells operated by Fusselman.
On March 31, 2020, Harrison contacted Gaines County Dispatch and
requested to speak with a deputy. Thereafter, he was contacted by Detective Romeo
Guerrero with the Gaines County Sheriff’s Office. Harrison complained to
Detective Guerrero that FS Trucking “was rigged up on one of his oil wells and
would not remove the rig.” He then asked Detective Guerrero “what would happen
if [Harrison] was to move the rig.” In response, Detective Guerrero told Harrison
that he could be held liable for any damages to the rig and advised that Harrison

2
should consult an attorney. Harrison then stated that he “wanted to do things right
and did not want to get in trouble.”
Approximately thirty minutes later, Gaines County dispatch received a call
from Abel Marquez, the employee in charge of operations for FS Trucking, about
the same issue. Detective Guerrero spoke with Marquez, who told him that the rig
had been shut down as a result of the COVID-19 pandemic. Marquez also indicated
that the rig had not been moved because Fusselman owed money to FS Trucking in
connection with “services that were done to several oil wells that belonged to
Fusselman.” Detective Guerrero then told Marquez that he had spoken with
Harrison and advised him that he could face consequences for moving the rig.
Marquez responded by indicating that he had received text messages from Harrison
stating that “he was going to move the rig if the rig was not moved by 5:00 pm” on
March 31.
The next day, Marquez called Detective Guerrero and stated that he was on
the way to the well location to confirm a report that Harrison had moved the rig.
Detective Guerrero then went to the well site and, based on an interview with a
person who he believed to be an employee of Fusselman, determined that the rig had
been moved approximately “one quarter of a mile” away from the well site.
Marquez arrived at the well site and inspected the rig. He told Detective
Guerrero that it appeared that the rig had been “hot wired,” and that someone had
moved the rig. Detective Guerrero also observed that cables on the rig were not
properly placed, and that fresh oil was dripping on the window and the cab of the
rig. Additionally, Marquez informed Detective Guerrero that “they would have to
get the rig inspected because of liability issues before the rig could be placed back
in service.”

3
Later, Detective Guerrero interviewed Sotelo, who informed Detective
Guerrero that Fusselman “owed him close to 2.8 million dollars.” Pursuant to
Detective Guerrero’s request, FS Trucking e-mailed copies of the outstanding
invoices to him.
On April 2, Detective Guerrero spoke with Harrison for a second time.
Detective Guerrero asked Harrison if he had moved the rig; Harrison responded by
indicating that “the rig had been removed” and that FS Trucking “had ample time to
remove the rig” before it was moved. Detective Guerrero then informed Harrison
that the rig had been damaged; Harrison responded by denying that there were any
damages to the rig. During their conversation, Harrison refused to indicate which
person or persons had moved the rig; however, he did tell Detective Guerrero “that
the rig had [to] be moved and that he did what he had to do.”
Following his second interview with Harrison, Detective Guerrero forwarded
the matter to the Gaines County district attorney’s office for review and potential
prosecution. Harrison was later indicted for criminal mischief. See TEX. PENAL
CODE ANN. § 28.03(b)(6) (West 2019). According to Harrison, the indictment
alleged that he “intentionally and knowingly tamper[ed] with tangible property,
namely an oil rig, by removing said oil rig from a well, without the effective consent
of” the owner. Several weeks later, Harrison was arrested during a traffic stop and
booked into the Andrews County jail. He posted bond and was released the same
day. Eventually, the Gaines County district attorney moved for dismissal of the case
pending against Harrison, and the district court granted the motion.
Harrison later filed suit against Appellants, alleging causes of action for
negligence, malicious prosecution, and intentional infliction of emotional distress.1

1
Harrison subsequently abandoned his negligence cause of action during the hearing on the motion
to dismiss.
4
Appellants answered and filed a TCPA motion to dismiss. See CIV. PRAC. & REM.
§ 27.001–.011. Although the trial court conducted a hearing on the motion, it did
not issue a ruling within thirty days following the date that the motion was heard.
As a result, the motion was denied by operation of law. Id. §§ 27.005(a), .008(a).
Appellants now appeal from the denial of their motion. 2
II. The TCPA
In their first two issues, Appellants argue that the trial court erred in denying
their TCPA motion, and that Harrison failed to establish, by clear and specific
evidence, a prima facie case for each essential element of his asserted causes of
action.
One purpose of the TCPA is to protect citizens from retaliatory lawsuits that
are meant to intimidate or silence them on matters of public concern. Dallas
Morning News, Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019); In re Lipsky, 460
S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). The Legislature enacted the TCPA
“to safeguard ‘the constitutional rights of persons to petition, speak freely, associate
freely, and otherwise participate in government to the maximum extent permitted by
law’” while, at the same time, protecting a person’s right “to file meritorious lawsuits
for demonstrable injury.” Kinder Morgan SACROC, LP v. Scurry Cnty., 622 S.W.3d
835, 847 (Tex. 2021) (quoting CIV. PRAC. & REM. § 27.002).
To effectuate this dual purpose, the TCPA employs a three-step process to
determine whether a lawsuit or claim is subject to dismissal. Montelongo v. Abrea,
622 S.W.3d 290, 296 (Tex. 2021). First, the movant must demonstrate by a
preponderance of the evidence that a legal action is based on, or in response to, the
movant’s exercise of one of three rights protected by the statute: (1) the right of free

2
An interlocutory appeal from the denial of a TCPA motion to dismiss is authorized under
Section 51.014(a)(12) of the Texas Civil Practice and Remedies Code. Id. § 51.014(a)(12).

5
speech, (2) the right to petition, or (3) the right of association. CIV. PRAC. & REM.
§§ 27.003(a), .005(b); see also Montelongo, 622 S.W.3d at 296. Next, 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 the claim(s) in
question. CIV. PRAC. & REM. § 27.005(c); Montelongo, 622 S.W.3d at 296. Finally,
even if the nonmovant meets that burden, the trial court is required to dismiss the
legal action if the movant establishes an affirmative defense or other grounds on
which the movant is entitled to judgment as a matter of law. CIV. PRAC. & REM.
§ 27.005(d).
On appeal, we review de novo whether a party has met or failed to satisfy its
burden under the TCPA. Hall, 579 S.W.3d at 377.
Harrison concedes, as Texas courts have held, that his legal action is based on
the exercise of Appellants’ right to petition. See, e.g., Walgreens v. McKenzie, 676
S.W.3d 170, 175 (Tex. App.—Houston [14th Dist.] 2023, pet. filed) (“reporting a
purported crime to police is a matter of public concern falling within the TCPA”);
Buckingham Senior Living Cmty., Inc. v. Washington, 605 S.W.3d 800, 807 (Tex.
App.—Houston [1st Dist.] 2020, no pet.) (“When a person interacts with the police
to report perceived wrongdoing, that person is exercising their right to petition, as
that right is defined in the TCPA.”); Murphy USA, Inc. v. Rose, No. 12-15-00197-
CV, 2016 WL 5800263, at *3 (Tex. App.—Tyler Oct. 5, 2016, no pet.) (mem. op.)
(“[C]ourts in other states interpreting an anti-SLAPP statute similar to the Texas
Statute have held that statements reported to law enforcement regarding incidences
of perceived wrongdoing are protected.”); see also Keel Recovery, Inc. v. Tri Cnty.
Adjusters, Inc., No. 05-19-00686-CV, 2020 WL 5269603, at *4 (Tex. App.—Dallas
Sept. 4, 2020, no pet.) (mem. op.) (reporting a crime is a matter of public concern);
Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 609 (Tex. App.—San

6
Antonio 2018, pet. denied) (reporting a crime is an exercise of the right to petition
under the TCPA). Likewise, Appellants do not attempt to establish an affirmative
defense. As such, the only issue on appeal that we must address is whether Harrison
has established, by clear and specific evidence, a prima facie case for each essential
element of his causes of action for malicious prosecution and intentional infliction
of emotional distress that he has asserted against Appellants.
A. Malicious Prosecution
A plaintiff that asserts a malicious-criminal-prosecution claim must establish:
(1) the commencement of a criminal prosecution against the plaintiff;
(2) causation—the initiation or procurement of the criminal action by the defendant;
(3) the termination of the prosecution in the plaintiff’s favor; (4) the plaintiff’s
innocence; (5) the absence of probable cause for initiating the criminal proceeding;
(6) malice by the defendant in filing the charge; and (7) the plaintiff suffered
damages. Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997).
Appellants argue, among other things, that Harrison failed to establish, by
clear and specific evidence, a prima facie case for “the absence of probable cause
[by Appellants] for [initiating] the [criminal] proceedings” against him.3 “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.” Id. For that reason, courts
must strictly adhere to the elements of malicious prosecution, which strike a careful
balance between the interests of the parties. Browning-Ferris Indus., Inc. v. Lieck,
881 S.W.2d 288, 290–91 (Tex. 1994). More particularly, and with respect to the
element of “the absence of probable cause,” Texas courts initially presume that the

3
Appellants specifically deny that they were the cause of the criminal action that was initiated
against Harrison. For purposes of the following analysis, we assume—but do not decide—that Appellants
caused the initiation or procurement of the criminal proceeding against Harrison.
7
defendant acted reasonably and in good faith when it initiated the criminal
proceeding. Richey, 952 S.W.2d at 517–18. This presumption disappears only after
“a plaintiff produces evidence that the motives, grounds, beliefs, and other evidence
upon which the defendant acted did not constitute probable cause.” Id. at 518.
“[P]robable cause” is “the existence of such facts and circumstances as would
excite belief in a reasonable mind, acting on the facts within the knowledge of the
prosecutor [complainant], that the person charged was guilty of the crime for which
he was prosecuted.” Id. at 517 (quoting Akin v. Dahl, 661 S.W.2d 917, 921 (Tex.
1983), cert. denied, 466 U.S. 938 (1984)). Thus, in order to establish a prima facie
case under the TCPA, Harrison was tasked with adducing “clear and specific
evidence” that Appellants did not have probable cause in connection with any
criminal proceeding that was initiated against him. See CIV. PRAC. & REM.
§ 27.005(c).
In support of the “lack of probable cause” element, Harrison only presented
(1) his affidavit that he attached to his response to Appellants TCPA motion and
(2) a petition that was filed by FS Trucking against Fusselman in July 2020. On the
issue of probable cause, Harrison’s affidavit consists of conclusory suspicions and
beliefs about Appellants’ knowledge of events, none of which are based on his
personal knowledge. Such testimony does not rise to the level of “clear and specific
evidence,” as the standard requires. In Re Lipsky, 460 S.W.3d at 592 (“Bare,
baseless opinions do not create fact questions, and neither are they a sufficient
substitute for the clear and specific evidence required to establish a prima facie case
under the TCPA.”).
In the pleading upon which Harrison relies, FS Trucking alleges that
“Defendant Fusselman” moved the rig and by doing so caused substantial damages
to it. Harrison argues that, because he “was not an owner or employee of

8
Fusselman,” the allegations in the 2020 pleading demonstrates that “Appellants
knew” that Harrison was not the person or entity who moved the rig. Harrison,
however, is a self-described “company man” and agent for Fusselman. As such, the
allegations in the 2020 pleading merely indicate a suspicion or belief that Harrison,
acting on behalf of Fusselman, moved and damaged the rig. Like Harrison’s
affidavit, this pleading does not constitute “clear and specific evidence” that any
initiation of criminal proceedings by Appellants was made without probable cause.
See CIV. PRAC. & REM. § 27.005(c). Furthermore, Sotelo was not a party to the 2020
lawsuit, and the allegations in the 2020 pleading therefore provide no evidence of
his “knowledge” at the time the criminal prosecution was initiated against Harrison.
Thus, we conclude that Harrison failed to provide the trial court with clear and
specific evidence of the absence of probable cause by Appellants to initiate the
criminal proceedings against him. Therefore, we need not address the arguments
made by the parties as to elements (2) and (3). See id.; Montelongo, 622 S.W.3d at
301.
B. Intentional Infliction of Emotional Distress
A claim for intentional infliction of emotional distress requires proof of four
elements: “(1) the defendant acted intentionally or recklessly; (2) its conduct was
extreme and outrageous; (3) its actions caused the plaintiff emotional distress; and
(4) the emotional distress was severe.” Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex.
2017); City of Houston v. Fletcher, 166 S.W.3d 479, 491–92 (Tex. App.—Eastland
2005, pet. denied). Appellants maintain that Harrison failed to present clear and
specific evidence, and thus did not establish a prima facie case, that they engaged in
extreme and outrageous conduct (the second element). We agree.
As a cause of action, intentional infliction of emotional distress can certainly
lead to fictitious claims, difficult-to-measure damages, and uncertain proscriptions.

9
See Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006).
Nevertheless, there are limited circumstances in which no other cause of action is
available, and in which a person’s conduct is so egregious that a remedy is required.
Id. In order to control the risk that this cause of action might be misapplied, Texas
courts have set a high standard for establishing “extreme and outrageous” conduct.
Hersh, 526 S.W.3d at 468. Specifically, to successfully assert a cause of action for
intentional infliction of emotional distress, a plaintiff must show that the defendant’s
conduct was “so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Kroger, 216 S.W.3d at 796 (quoting
Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (quoting RESTATEMENT
(SECOND) OF TORTS § 46 cmt. d (AM. L. INST. 1965))); see also Hersh, 526 S.W.3d
at 468; Fletcher, 166 S.W.3d at 492.
Harrison maintains that Appellants engaged in extreme and outrageous
conduct when they leveled criminal charges against him “without investigating
[Harrison’s] actual involvement.” Harrison adds that such conduct is “outrageous”
because Appellants also sued “Fusselman” for the same conduct.
Efficient enforcement of the criminal law “requires that private persons who
aid in the enforcement of the law should be given an effective protection
against the prejudice that is likely to arise from the termination of the prosecution in
favor of the accused.” Browning-Ferris Indus., 881 S.W.2d at 290–91 (quoting
RESTATEMENT (SECOND) OF TORTS ch. 29, intro. note, at 405 (AM. L. INST. 1977)).
Accordingly, as a matter of policy, Texas courts encourage the reporting of criminal
conduct. Lang v. City of Nacogdoches, 942 S.W.2d 752, 760 (Tex. App.—Tyler
1997, writ denied). Additionally, Texas citizens have a “clear legal right to report
criminal misconduct to authorities,” even if the report misidentifies the perpetrator.

10
Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 507 (Tex. 2002); Walgreens,
676 S.W.3d at 178.
As a result of our state’s policy that favors cooperation between private
citizens and law enforcement, we conclude that the mere act of reporting criminal
activity to law enforcement does not constitute “extreme and outrageous” behavior.
See Walgreens, 676 S.W.3d at 178–79; Atchison v. Mem’l Hermann Mem’l City
Hosp., No. 14-17-00307-CV, 2018 WL 5260971, at *4 (Tex. App.—Houston [14th
Dist.] Oct. 23, 2018, pet. denied) (mem. op.) (“The reporting of activity to the police
does not constitute extreme and outrageous behavior.”); Espinosa v. Aaron’s Rents,
Inc., 484 S.W.3d 533, 546 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
(“Reporting activity to police does not constitute extreme and outrageous
behavior.”); see also Bradford v. Vento, 48 S.W.3d 749, 759 (Tex. 2001) (the act of
providing information to the police, even if more information could have been given,
“does not amount to extreme and outrageous conduct”); Lang, 942 S.W.2d at 759–
60 (holding that while a family member’s act of having his own brother arrested
while vising their mother may be “extreme” conduct, it should not be characterized
as “outrageous,” because it would “stultify the reporting of possible crimes”).
In this case, representatives of FS Trucking reported to law enforcement
Harrison’s stated intention to move its rig and later reported that the rig had, in fact,
been moved. They also provided information to law enforcement about the damage
to the rig that may have resulted from Harrison’s conduct—the commission of
criminal mischief. Such exchanges are routine communications between private
citizens and law enforcement concerning events that may constitute criminal
behavior. In light of the facts that led to their reports, as well as the protections that
are afforded to our citizens when communicating with law enforcement about

11
criminal activity, we cannot say that Appellants’ actions are either extreme or
outrageous, and they certainly do not qualify as both.
Accordingly, we sustain Appellants’ first and second issues.
C. Attorney’s Fees
In their third issue, Appellants argue that the trial court erred by failing to
award them reasonable attorney’s fees and costs in connection with their TCPA
motion. We agree. Here, the trial court implicitly denied Appellants request for
attorney’s fees and costs when it failed to rule on their motion; when a TCPA motion
is or should be granted, the prevailing movant is entitled to an award of reasonable
attorney’s fees and costs. See CIV. PRAC. & REM. § 27.009(a)(1) (“[I]f the [trial]
court orders [the] dismissal of a legal action under this chapter, the [trial] court . . .
shall award to the moving party court costs and reasonable attorney’s fees.”)
(emphasis added).
Because we have concluded that the trial court erred when it failed to grant
Appellants’ TCPA motion and dismiss the causes of action that Harrison has asserted
against them, we also sustain Appellants’ third issue and conclude that Appellants
were entitled to court costs and reasonable attorney’s fees. Id. Accordingly, this
issue is remanded to the trial court for a determination of the amount of court
costs and reasonable attorney’s fees that should be awarded to Appellants. See CIV.
PRAC. & REM. § 27.009(a)(1); see also Choctaw Constr. Servs. LLC v. Rail-Life R.R.
Servs., LLC, 617 S.W.3d 143, 154 n.4 (Tex. App.—Houston [1st Dist.] 2020, no
pet.).
III. This Court’s Ruling
We reverse the trial court’s denial of Appellants’ TCPA motion to dismiss,
and we remand this cause to the trial court for (1) the rendition of judgment in favor

12
of Appellants and (2) a determination of the amount of reasonable attorney’s fees
and costs to be awarded to Appellants. See TEX. R. APP. P. 43.3(a).

W. STACY TROTTER
JUSTICE

August 8, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

13