In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-25-00643-CV
ZDENKA WILCOX, Appellant
V.
JUAN DIEGO DURAN, Appellee
On Appeal from the 141st District Court
Tarrant County, Texas
Trial Court No. 141-358707-24
Before Sudderth, C.J.; Kerr and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
This interlocutory appeal pursuant to the Texas Citizens Participation Act
(TCPA) arises from litigation separate from but incident to a bitter custody dispute
between the parties. See generally Tex. Civ. Prac. & Rem. Code §§ 27.001–.011. The
question in this appeal is whether the original defendant––now counter-plaintiff and
appellee––Juan Diego Duran offered sufficient evidence to defeat counter-defendant
and appellant Zdenka Wilcox’s TCPA motion after amending his pleadings to add
(1) an abuse-of-process claim in response to Wilcox’s litigation conduct and (2) a
“negligence-per-se/intentional-tort” claim for Wilcox’s making allegedly false police
reports contending that Duran had assaulted her. Because we hold that the trial court
erred by denying Wilcox’s motion to dismiss Duran’s abuse-of-process and falsereporting claims, we reverse the trial court’s order.
II. Procedural Background
In October 2024, Wilcox, acting pro se, sued Duran, her ex-husband, and Maria
Fernanda Omana Perez for “fraudulent misrepresentation, conspiracy to defraud,
intentional infliction of emotional distress, negligent infliction of emotional distress,
civil theft under Texas Penal Code § 31.03, abuse of process, defamation per se,
defamation, fraudulent concealment, invasion of privacy, unauthorized access to
computer systems, tortious interference with a relationship, and harassment.” In
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general, Wilcox alleged that Duran had engaged in domestic violence against her during
their marriage and that he and Perez had had an affair.
Duran and Perez filed a joint answer in which they alleged, among other things,
that Wilcox had filed the suit in bad faith and for purposes of harassment. Duran and
Perez then filed a joint original counterclaim against Wilcox in December 2024, after
which Wilcox filed a notice of nonsuit of her claims against both Duran and Perez. In
February 2025, Duran filed a first amended counterclaim against Wilcox, but Perez
nonsuited her counterclaim.
Duran then filed a second amended counterclaim on March 14, 2025, in which
he brought defamation and tortious-interference-with-contract claims against Wilcox,
alleging that she had on at least once occasion made a false police report against him
and that she had been contacting his employer with false claims in an attempt to get
him fired. Duran filed a third amended counterclaim on September 9, 2025. The third
amended counterclaim contained two new causes of action against Wilcox: (1) abuse
of process and (2) “negligence per se and intentional tort in con[n]ection with . . . trying
to press false criminal charges” against Duran (false-reporting claim).
In response to Duran’s third amended counterclaim, Wilcox filed a TCPA
motion to dismiss, alleging that Duran’s new claims were brought in response to her
exercise of free speech. She characterized the abuse-of-process claim as alleging
“vexatious litigation tactics, including improper motions and discovery disputes.” And
she contended that both claims were based on her reporting matters of public concern.
3
Wilcox requested that a hearing be held on her motion, and a hearing was set for
November 6, 2025. See id. § 27.004(a).
Wilcox amended her TCPA motion on September 19, 2025. In the amended
motion, she did not specifically ask for a hearing.
In his fifty-page response to Wilcox’s TCPA motion, Duran contended that
• The motion could not be heard because Wilcox had not requested a
hearing in her amended motion;
• The motion was untimely;
• Wilcox’s pleadings were confusing, and she appeared to have prepared
them with ChatGPT;
• Wilcox had not shown standing to bring a TCPA motion;
• Wilcox had not proffered any proper evidence; and
• Duran had clear and specific evidence to support his claims.
Duran then made objections to each of the three exhibits attached to Wilcox’s TCPA
motion. He also provided several exhibits of his own in response.
At the beginning of the TCPA motion hearing on November 6, 2025, the trial
court overruled Duran’s objection to allowing the hearing to go forward. The trial court
then declined to rule on the TCPA motion, expressing its preference that the parties go
to trial on their original setting of December 1, 2025. But eight days later, the trial court
signed an order denying Wilcox’s TCPA motion. In the order, the trial court granted
all of Duran’s objections to the evidence attached to Wilcox’s TCPA motions. Five
4
days later, Duran’s trial counsel filed a motion to withdraw on the basis of attorney–
client conflict.
Wilcox timely filed a notice of appeal from the denial order. See id. § 27.008(b).
While the appeal was pending, the trial court granted Duran’s counsel’s motion to
withdraw and substituted new counsel for Duran. Although Wilcox has filed an
appellant’s brief, Duran did not file an appellee’s brief.
III. Timeliness of Motion
We first consider whether Wilcox’s TCPA motion was timely. “A motion to
dismiss a legal action under [Section 27.003 of the Texas Civil Practice and Remedies
Code] must be filed not later than the 60th day after the date of service of the legal
action.” Id. § 27.003(b). For purposes of Section 27.003(b) timing, “an amended or
supplemental pleading that asserts a new claim involving different elements than a
previously asserted claim also asserts a new legal action that triggers a new sixty-day
period for filing a motion to dismiss that new claim.” Montelongo v. Abrea, 622 S.W.3d
290, 301 (Tex. 2021).
Here, Duran’s abuse-of-process cause of action requires different elements than
the defamation and tortious-interference-with-contract claims raised in his second
amended counterclaim. 1 See In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015) (orig.
1
Additionally, Duran’s abuse-of-process claim is based on Wilcox’s pleading and other litigation practices during this litigation, including filing a “counterclaim” against Duran (in response to his counterclaim against her), in what he contends is simply an attempt to reopen discovery after the discovery period should have ended.
5
proceeding) (setting forth defamation-claim elements); Moore v. Bushman, 559 S.W.3d
645, 653 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (listing abuse-of-processclaim elements); Allegiance Expl., LLC v. Davis, No. 02-13-00349-CV, 2016 WL 1164331,
at *15 (Tex. App.—Fort Worth Mar. 24, 2016, pets. denied) (setting forth tortiousinterference-with-contract-claim elements). Likewise, his false-reporting claim requires
different elements. See Discovery Operating, Inc. v. BP Am. Prod. Co., 311 S.W.3d 140, 162
(Tex. App.—Eastland 2010, pet. denied) (“Negligence per se is a common-law doctrine
that allows courts to rely on a penal statute to define a reasonably prudent person’s
standard of care.”). Thus, Wilcox’s TCPA motion was timely filed as to the new causes
of action in Duran’s third amended counterclaim. See Montelongo, 622 S.W.3d at 301.
IV. Procedural Rulings
Before considering the merits of the denial of Wilcox’s TCPA motion, we
address three of her procedural complaints.
A. The Trial Court Considered Both of Wilcox’s Motions.
In her second issue,2 Wilcox contends that the trial court erred by refusing to
consider her first amended TCPA motion. She contends that the trial court had
overruled Duran’s objections to her evidence at the beginning of the TCPA hearing but
then reversed course.
2
We address Wilcox’s issues out of order for organizational purposes.
6
Wilcox’s assertion is incorrect. The trial court did not overrule Duran’s
evidentiary objections at the TCPA motion hearing; instead, it ruled solely on Duran’s
objection to having a hearing on the motion. In the denial order, the trial court noted
that it had “fully considered the various . . . ANTI-SLAPP MOTION PLEADINGS”
and had granted all of Duran’s objections to the evidence submitted by Wilcox “in her
‘Anti-Slapp’ motions.” The order’s plain language thus indicates that the trial court
considered both Wilcox’s original and amended TCPA motions. See John Gannon, Inc. v.
Tex. Dep’t of Transp., No. 01-22-00762-CV, 2024 WL 1513875, at *4 (Tex. App.—
Houston [1st Dist.] Apr. 9, 2024, pet. denied) (noting that we construe language in
orders according to its plain meaning). Accordingly, we overrule her second issue.
B. The Trial Court Properly Sustained Duran’s Objections to Wilcox’s Evidence.
In part of her third issue, Wilcox contends that the trial court abused its
discretion by granting what she characterizes as general, blanket objections to the
exhibits attached to her motions. 3
Wilcox purports to quote In re Lipsky for the following proposition: “‘A court
should disregard only the conclusory portions of an affidavit, not the entire affidavit.’
460 S.W.3d 579, 590 (Tex. 2015).” But this quotation is not to be found in Lipsky.
Instead, Lipsky confirmed that the trial court could not consider a conclusory affidavit
3
As we have noted, contrary to Wilcox’s assertion in this issue, the trial court did not overrule these objections at the TCPA motion hearing. Instead, the trial court ruled solely on Duran’s objection to having a hearing.
7
with only “[b]are, baseless opinions.” Id. at 592. Wilcox also cites Robert B. James, DDS,
Inc. v. Elkins, 553 S.W.3d 596, 606 (Tex. App.—San Antonio 2018, pet. denied), for the
same proposition, but that case does not support the proposition.4
Wilcox further confuses the discussion in Dallas Morning News, Inc. v. Tatum about
how a court is to evaluate whether a publication was defamatory for a holding that a
TCPA motion opponent cannot make evidentiary objections to an entire document or
that the trial court may not grant objections to only certain parts of exhibits. 5 See 554
S.W.3d 614, 624, 635 (Tex. 2018). She also erroneously relies on Youngkin v. Hines for
the same proposition. 546 S.W.3d 675, 680–81 (Tex. 2018) (noting that “[i]t is by now
axiomatic that we must construe individual words and provisions in the context of the
statute as a whole”).
Duran did not make blanket objections. He objected to the exhibit attached to
her original motion as improperly authenticated, irrelevant, and containing hearsay and
because he contended that her original petition was superseded by her amended
motion.6 Duran objected to certain sentences in the affidavit attached to Wilcox’s
Wilcox admitted using ChatGPT to prepare filings in this case.
4
5
Wilcox also cites James v. Brown, 637 S.W.2d 914, 916–17 (Tex. 1982). But that case cannot support her argument because it pre-dates the enactment of the TCPA. See Act of May 21, 2011, 82nd Leg., R.S., ch. 341, §§ 1–4, 2011 Tex. Gen. Laws 961, 961– 64 (original TCPA enactment).
This exhibit is a copy of Duran’s third amended counterclaim. Even if the trial
6
court had erred by granting Duran’s objection to this exhibit, see Tex. Civ. Prac. & Rem. Code § 27.006(a), we consider this pleading in our later analysis of the trial court’s ruling
8
amended petition as conclusory, but he also objected to others on the grounds of
hearsay, the best-evidence rule, and Rohrmoos. 7 He objected to her two other exhibits
on authentication, hearsay, and relevance grounds.
Wilcox contends in her brief that the affidavit attached to her amended petition
contained no conclusory statements. Duran objected to the following statements as
conclusory:
• “My communications to the Southlake Police Department (SLPD)
regarding alleged assaults by . . . Duran, as referenced in the Third
Amended Counter-Claim (filed September 9, 2025), were made in good faith
based on my belief in their truth, supported by prior incidents, including a
previous personal protection order petition filed against Duran . . . .”
• “These reports were intended to address safety concerns, not with malice or ulterior
motive, as alleged by Duran.”
• “This communication [an email to Duran’s employer informing it of the
damages he claims in this suit] was made in good faith to address pilot fitness and
safety, a matter of public concern, and was not intended to defame or interfere with his
employment, which has not resulted in job loss or discipline per Kalitta HR
testimony.”
on Wilcox’s TCPA motion, see Morrell v. Frost Bank, No. 02-25-00556-CV, 2026 WL 1765525, at *3 (Tex. App.—Fort Worth June 18, 2026, no pet. h.).
7
Duran objected to the following statement as violative of the best-evidence rule and as insufficient to prove attorney’s fees under Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 502 (Tex. 2019): “I incurred reasonable attorney’s fees of $11,000 prior to proceeding pro se on August 28, 2025, as documented in my retainer agreement dated December 4, 2024.” Although it appears that Wilcox may have hired counsel at some point during the litigation, according to Duran’s pleadings, Wilcox fired that attorney in August 2025; Wilcox filed all of her TCPA-related filings pro se.
9
• “I assert that these amendments [to Duran’s counterclaims in response
to a Rule 91a motion] concede the baselessness of his original claims, supporting my
TCPA motion filed on September 19, 2025.”
• “I believe Duran’s serial amendments—four iterations since December 11,
2024, including the September 9, 2025, filing the night before a September
10 hearing—constitute bad-faith retaliation, warranting joint sanctions against
him and his counsel, Ernest ‘Skip’ Reynolds III.”
• “No actual malice existed in my actions, as required under Tex. R. Evid. 602
for personal knowledge, and I reserve all rights to amend pleadings,
pursue dismissal, or seek summary judgment.
[Emphasis added.]
Merely stating that one acted either in good faith or bad faith is conclusory. See,
e.g., Moody v. Herz, No. 01-22-00202-CV, 2024 WL 1260278, at *14 (Tex. App.—
Houston [1st Dist.] Mar. 26, 2024, no pet.); Bryan v. Human Power of N Co., No. 03-22-00632-CV, 2024 WL 734654, at *13 (Tex. App.—Austin Feb. 23, 2024, pet. denied); see
also Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (“[S]ubjective
beliefs are no more than conclusions and are not competent summary judgment
evidence.”). Accordingly, we hold that the trial court did not abuse its discretion by
sustaining Duran’s objections to these statements in Wilcox’s affidavit.
Wilcox fails to address the other objections to her affidavit. Thus, she has waived
any argument that the trial court abused its discretion by sustaining those objections.
See Tex. R. App. P. 38.1(i); Ruffin v. Sanchez, No. 04-16-00759-CV, 2017 WL 4014651,
at *1 (Tex. App.—San Antonio Sept. 13, 2017, no pet.).
10
Wilcox wholly fails to address the relevancy objections to her two other exhibits.
And although she contends that the hearsay objections were invalid because she was
offering the documents for “non-hearsay purposes” and because they are public and
governmental records,8 she fails to address Duran’s objection that she failed to properly
authenticate them. See Tex. R. Evid. 901(a); In re L.G.K.S., No. 12-18-00178-CV, 2019
WL 4462693, at *6 (Tex. App.—Tyler Sept. 18, 2019, no pet.) (holding that police
report was not self-authenticating because it was neither filed under seal nor a certified
copy); see also Anthony v. Fields, No. 12-26-00057-CV, 2026 WL 1882855, at *7 (Tex.
App.—Tyler June 30, 2026, no pet. h.) (concluding that unauthenticated USB drive was
not proper TCPA evidence). Thus, Wilcox has waived any argument that those
objections were improperly granted. See Tex. R. App. P. 38.1(i); Ruffin, 2017 WL
4014651, at *1.
We therefore overrule this part of Wilcox’s third issue.
C. Wilcox Did Not Preserve Any Complaint About the Discovery Stay.
In her sixth issue that Wilcox claims is an issue of first impression, she contends
that we should reverse the trial court’s order denying her TCPA motion because the
trial court violated the TCPA’s discovery stay by allowing other “litigation activity that
is inherently dependent on discovery—such as witness lists, exhibit lists, mandatory
8
Her only argument regarding Duran’s hearsay objections is as follows: “Even if some internal statements required hearsay parsing, the documents were admissible to show what Wilcox reported, how law enforcement and the DA responded, and the context for falsity and malice.”
11
disclosures, evidentiary exchanges, and no-evidence summary-judgment practice.” See
Tex. Civ. Prac. & Rem. Code § 27.003(c) (“Except as provided by Section 27.006(b),
on the filing of a motion under this section, all discovery in the legal action is suspended
until the court has ruled on the motion to dismiss.”).
Not only does Wilcox’s complaint lack support in the appellate record but also
she failed to preserve this complaint in the trial court. See Tex. R. App. P. 33.1(a); cf.
Thomas v. Logic Underwriters, Inc., No. 02-16-00376-CV, 2017 WL 5494386, at *5 (Tex.
App.—Fort Worth Nov. 16, 2017, pet. denied) (holding that appellant failed to preserve
complaint of insufficient notice of hearing on Rule 91a motion). Moreover, Wilcox
cites no authority supporting the proposition that a trial court’s violating the automatic
discovery-stay provision warrants the granting of a TCPA motion on the merits. Thus,
we overrule her sixth issue.
V. Merits of TCPA Motion
Wilcox addresses the merits of the trial court’s denial of her TCPA motion in her
first and fourth issues and in part of her third issue.9
A. We Set Forth the Standard of Review and Applicable Law.
A party who moves for dismissal under the TCPA invokes a three-step, burdenshifting process: (1) first, the movant seeking dismissal must demonstrate that a “legal
In her first issue, she addresses whether she met the step-one element of the
9
TCPA test; she addresses whether Duran met his step-two burden in part of her third issue. And in her fourth issue, she addresses whether she met her step-three burden.
12
action” has been brought against her and that the action is “based on or is in response
to” an exercise of a protected constitutional right; (2) then the burden shifts to the party
bringing the legal action to avoid dismissal by establishing, by clear and specific
evidence, a prima facie case for each essential element of the claim in question; and (3)
finally, the burden shifts back to the movant to justify dismissal by establishing an
affirmative defense or other ground on which she is entitled to judgment as a matter of
law. See Tex. Civ. Prac. & Rem. Code § 27.005(b)–(d); Morrell, 2026 WL 1765525, at *3.
When reviewing a trial court’s determination as to whether the parties have satisfied
their respective burdens, we consider “the pleadings, evidence a court could consider
under Rule 166a, Texas Rules of Civil Procedure, and supporting and opposing
affidavits stating the facts on which the liability or defense is based,” and we view all of
these in a light most favorable to the nonmovant Tex. Civ. Prac. & Rem.
Code § 27.006(a); Morrell, 2026 WL 1765525, at *3.
We review a trial court’s ruling on a TCPA motion to dismiss—including the
applicability of any statutory exemption—de novo. Landry’s, Inc. v. Animal Legal Def.
Fund, 631 S.W.3d 40, 45–46 (Tex. 2021).
B. We Conclude That Wilcox Met Her Step-One Burden.
To carry her burden under the TCPA’s first step, a movant must “demonstrate[]
that the legal action is based on or is in response to” a protected legal right. Tex. Civ.
Prac. & Rem. Code § 27.005(b). Wilcox contends that the abuse-of-process claim is
based on “her pleadings, motions, and discovery in this lawsuit”; we agree. Thus, she
13
met her step-one burden as to that claim. See Kute Bar, LLC v. Tran, No. 02-24-00119-CV, 2024 WL 4562500, at *5 (Tex. App.—Fort Worth Oct. 24, 2024, no pet.). Wilcox
contends that the false-reporting cause of action is directly in response to her
communications on a matter of public concern. Again, we agree. See McShirley v. Lucas,
No. 02-23-00229-CV, 2024 WL 976512, at *5 (Tex. App.—Fort Worth Mar. 7, 2024,
pet. denied); Bibby v. Bibby, 634 S.W.3d 401, 409 (Tex. App.—Houston [1st Dist.] 2021,
no pet.). Thus, we hold that Wilcox met her step-one burden on that claim as well. We
therefore sustain her first issue.
C. We Conclude That Duran Failed to Meet His Step-Two Burden.
Showing a prima facie case in step two is “not a high hurdle”; it “is the
measurement the Legislature selected to distinguish genuine claims from suits brought
to harass or silence.” USA Lending Grp., Inc. v. Winstead PC, 669 S.W.3d 195, 198 (Tex.
2023). A prima facie case is the “minimum quantity of evidence necessary to rationally
infer that an allegation is true.” Id. Evidence is clear and specific if, taken at face value,
it provides enough detail to show the claim’s factual basis. Id. at 200, 203. A claim
survives step two if the clear and specific evidence “is legally sufficient to establish [the]
claim as factually true if it is not countered.” Id. at 204.
1. Duran Failed to Present Clear and Specific Evidence of the Type of
Damages Required for an Abuse-of-Process Claim.
Wilcox contends with regard to step two that “Duran . . . produced no evidence
sufficient to meet § 27.005(c) of an ulterior purpose, an improper act in the use of
14
process, or damages, which are essential elements of abuse of process.”10 [Emphasis
added.] We agree that Duran’s prima facie proof failed to establish the damages element
of his abuse-of-process claim.
In pleading his abuse-of-process claim, Duran reiterated his contention from his
original answer that Wilcox had filed her original petition against him and Perez in bad
faith. He then alleged that even though Wilcox had nonsuited that petition, she had
later rehashed the allegations from that petition in a “counterclaim” against him in
response to his counterclaims against her. He further alleged as follows:
Along the way [Wilcox] has filed a series of improper motions, many of
them dilatory in nature, and has failed to participate in good faith in the
discovery process. Now, though the time period during whic[h] new
discovery may for the first time be initiated has passed, [Wilcox] is
basically trying [in a legall[y] incorrect and impermissible way] to initiate
new discovery and to claim that the discovery period has not concluded;
and it was [Wilcox] herself who first requested Level 2 discovery! [Wilcox]
is also improperly trying to conflate this case and a totally separate and
distinct case, and is engaged in connection with her tactics in a practice of
filing non-meritorious complaints [based on false assertions of supposed
“facts”]. In connection with her improper and/or perverted use of the
legal process in this present case, [Wilcox] has improper ulterior motives
in doing all of this, some of which appear to relate to a separate case, and
some of which appear to relate to [Wilcox’s] animosity toward DURAN,
10
Wilcox also contends that Duran “produced no clear and specific evidence of falsity, actual malice, causation, or damages—each an essential element of the defamation-type theories he repackages into Counts VII–VIII.” Although Duran’s defamation-related facts and theories are peppered throughout his pleadings, defamation as a cause of action was squarely raised in his second amended petition. Therefore, Wilcox did not timely file her TCPA motion as to that claim, and it is not relevant to our step-two analysis. See Montelongo, 622 S.W.3d at 301. On remand, Duran may proceed on his defamation and tortious-interference-with-contract causes of action as pleaded in his third amended petition, which are not affected by our rulings in this appeal.
15
and some of which appear to relate to [Wilcox] [in connection with some
matters] trying to hide truth; and all of this has caused, and continues to
cause, significant damage and harm to DURAN. As [Wilcox] has engaged,
and is engaging, in this misconduct intentionally and/or purposively and
or maliciously, this is conduct within the realm of intentional tortious
misconduct, and th[u]s [Wilcox] is liable to DURAN for both actual and
exemplary damages.
As evidence, Duran attached, among other things, (1) the affidavit of his counsel
in his and Wilcox’s divorce-and-custody action, (2) a copy of his own “Second
Supplemental Objections And Responses To Defendant [Wilcox’s] First
Interrogatories,” (3) Southlake Police Department records produced with Duran’s
deposition on written questions, and (4) his counsel’s affidavit.
The elements of abuse of process are: (1) the defendant made an illegal,
improper, or perverted use of the process, a use neither warranted nor authorized by
the process; (2) the defendant had an ulterior motive or purpose in exercising such
illegal, perverted, or improper use of the process; and (3) damage resulted to the plaintiff
as a result of such illegal act. Whitelock v. Stewart, No. 10-23-00132-CV, 2025 WL
2473021, at *4 (Tex. App.—Waco Aug. 28, 2025, no pet.); Hunt v. Baldwin, 68 S.W.3d
117, 129 (Tex. App.—Houston [14th Dist.] 2001, no pet.). To sustain an abuse-ofprocess claim, “[i]t is critical that the process be improperly used after it has been
issued.” Whitelock, 2025 WL 2473021, at *4 (quoting Hunt, 68 S.W.3d at 130); see also In
re Garate, No. 13-24-00625-CV, 2025 WL 817438, at *4 (Tex. App.—Corpus Christi–
Edinburg Mar. 13, 2025, orig. proceeding [mand. denied]); Martinez v. English, 267
16
S.W.3d 521, 528 (Tex. App.—Austin 2008, pet. denied). “In other words, abuse of
process applies to a situation where a properly issued service of process is later used for
a purpose for which it was not intended.” Martinez, 267 S.W.3d at 528–29. “Filing a
complaint is not an improper or illegal use of the process.” RRR Farms, Ltd. v. Am.
Horse Prot. Ass’n, Inc., 957 S.W.2d 121, 134 (Tex. App.—Houston [14th Dist.] 1997, pet.
denied).
“To recover for abuse of process in Texas, a claimant must demonstrate that he
suffered special damages, i.e. some physical interference with the claimant’s person or
property in the form of an arrest, attachment, injunction, or sequestration.” See Pitts &
Collard, L.L.P. v. Schechter, 369 S.W.3d 301, 332–33 (Tex. App.—Houston [1st Dist.]
2011, no pet.) (op. on reh’g); Martin v. Trevino, 578 S.W.2d 763, 766–69 (Tex. App.––
Corpus Christi–Edinburg 1978, writ ref’d n.r.e.); cf. Tex. Beef Cattle Co. v. Green, 921
S.W.2d 203, 209 (Tex. 1996) (op. on reh’g) (articulating same for malicious-prosecution
action). “[F]or purposes of the special-injury requirement, ‘[i]t is insufficient that a party
has suffered the ordinary losses incident to defending a civil suit, such as inconvenience,
embarrassment, discovery costs, and attorney’s fees.’” Pitts, 369 S.W.3d at 333 (quoting
Tex. Beef Cattle Co., 921 S.W.2d at 208).
Duran presented the following evidence of damages:
• “Wilcox has caused . . . Duran[] . . . attorney fees and related costs he
has been forced to incur due to this abuse of process . . . .”
• [Wilcox] has communicated online and verbally with [Duran] and has
told him she would use this case to defeat or humble or harm him and
17
would ruin his life. [Wilcox] has made it clear she does not want to resolve
this case via mediation. [Wilcox] has tried to blame [Duran] for the
complexity of this case, but in fact she filed the case and she is the one
who has made it complex and difficult. . . . [Wilcox] had already been
finding and employing many other means to make this case as difficult
and expensive as possible for [Duran] . . . .”
• Wilcox’s “original ulterior motivation was to burden [Duran] with this
litigation so she could beat him down and thus win the just mentioned
child custody battle, and to ruin [Duran’s] life and make him unemployed
and broke, and to make his life difficult; and [Wilcox] has made [Duran’s]
life difficult through her litigation ‘hi-jinks’ in this case, and also has caused
him harm financially because what [Wilcox] has done has caused [Duran]
to incur a lot of litigation expense.”
• “What [Wilcox] has done to [Duran] with her abuse of process and
related abuse of the litigation/legal system, has resulted in legal fees to
[Duran] costing many thousands of dollars. . . . [T]his misbehavior . . . has
caused [Duran to] have to incur legal fees and costs, and also has caused
[Duran] much frustration and concern.”
Although Duran presented evidence that Wilcox’s litigation tactics had caused
him to incur additional and burdensome attorney’s fees and costs, as well as frustration
and concern, he offered no evidence that he had incurred special damages of the type
required to prove an abuse-of-process claim.11 Accordingly, we hold that Duran failed
to meet his step-two burden on his abuse-of-process cause of action.
2. Duran Failed to Present Clear and Specific Evidence of Causation and
Damages in Support of His False-Reporting Claim.
Duran contended in his response to Wilcox’s TCPA motion that he provided
clear and specific evidence that Wilcox had made a false report to law enforcement
11
Wilcox noted in her brief that “[n]o agency produced any report attributed to Wilcox in response to subpoena or process.”
18
pursuant to Texas Penal Code Section 37.08, which provides that “[a] person commits
an offense if, with intent to deceive, he knowingly makes a false statement that is
material to a criminal investigation and makes the statement to: (1) a peace officer . . . .”
Tex. Penal Code § 37.08. Wilcox argues on appeal that “Duran offered no clear and
specific evidence that [her] [law-enforcement] report[ing] was knowingly false or that
she acted with actual malice—both required to defeat petition/crime-report protections
and to satisfy Step Two on falsity and fault.” She also contends that Duran presented
no evidence of causation or damages with respect to this claim.
We note first that Duran made no attempt to identify any particular intentional
tort in his pleading. But construing his complaint according to Texas’s fair-notice
pleading standard, it appears that the intentional tort he is attempting to bring is a
malicious-prosecution claim. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887,
896–97 (Tex. 2000). “The essential elements of a malicious-prosecution claim are
(1) the commencement of a criminal prosecution against the plaintiff, (2) causation of
the action by the defendant, (3) termination of the prosecution in the plaintiff’s favor,
(4) the plaintiff’s innocence, (5) the absence of probable cause for the proceedings,
(6) malice in filing the charge, and (7) damage to the plaintiff.” McShirley, 2024 WL
976512, at *9. Initiating a prosecution requires filing formal charges with lawenforcement authorities while procuring a prosecution occurs when the defendant’s
actions are enough to cause the prosecution. Id. Merely making a police report is not
clear and specific evidence of causation for a malicious-prosecution claim. Anderson v.
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Goodwin, No. 05-23-00343-CV, 2024 WL 725669, at *5 (Tex. App.—Dallas Feb. 22,
2024, no pet.) (“[I]n the malicious-prosecution context, ‘initiate’ has the technical
meaning of filing formal charges against the plaintiff. A mere witness statement to lawenforcement personnel is not a formal charge.” (citations omitted)). And no
prosecution was procured; Duran’s evidence shows that the Southlake police detective
who investigated Wilcox’s report concluded that “[t]here [are] not sufficient facts and
or circumstances to charge . . . Duran.” 12 He recommended suspending the case after
“finding no supporting evidence of assault by . . . Duran.”
Duran’s petition identifies no other discernible intentional-tort claim related to
the allegedly false reporting other than his defamation and tortious-interference-withcontract claims. Accordingly, Duran failed to meet his step-two burden to provide clear
and specific evidence supporting an intentional-tort claim for making a false police
report.
Duran’s effort to assert or establish a negligence-based claim based on false
reporting is equally unavailing. “Negligence per se is a common-law doctrine that
allows courts to rely on a penal statute to define a reasonably prudent person’s standard
of care.” Simon v. Barrum, No. 01-24-00039-CV, 2025 WL 3768326, at *3 (Tex. App.—
Houston [1st Dist.] Dec. 31, 2025, pet. denied) (quoting Reeder v. Daniel, 61 S.W.3d 359,
361–62 (Tex. 2001)); see Mo. Pac. R.R. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex. 1977)
12
Duran later provided the detective with evidence that he had been out of the country on the two dates that Wilcox had alleged Duran assaulted her.
20
(“Where the Legislature has declared that a particular act shall not be done, it fixes a
standard of reasonable care, and an unexcused violation of the statute constitutes
negligence or contributory negligence as a matter of law.”). Thus, negligence per se is
“a species of negligence, in which the breach of duty element is established by showing
the violation of a statute or regulation.” Simon, 2025 WL 3768326, at *3 (quoting City
of Houston v. Manning, 714 S.W.3d 592, 596 (Tex. 2025)). “To establish negligence per
se, a plaintiff must prove that: (1) the defendant’s act or omission violates a penal
statute or ordinance; (2) the injured person is within the class of persons that the statute
or ordinance was designed to protect; and (3) the defendant’s act or omission
proximately caused the injury.” Id.
Assuming that a negligence-per-se claim can be based on a violation of Section
37.08, see Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998) (op. on reh’g), 13 Duran did not
provide clear and specific evidence of causation or damages sufficient to meet his steptwo burden as to that claim. Although the nonmovant need not “provide evidence
sufficient to allow an exact calculation” of damages to meet its step-two burden, S & S
Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 848 (Tex. 2018), “[b]are, baseless
opinions” are not “a sufficient substitute for the clear and specific evidence required to
establish a prima facie case under the TCPA,” Lipsky, 460 S.W.3d at 592. The
Although we have found no Texas cases holding that Penal Code Section 37.08
13
creates a private right of action, Wilcox does not argue that such a cause of action is not authorized.
21
nonmovant must present evidence sufficient to support a rational inference as to “some
specific, demonstrable” damages. S & S Emergency Training Sols., Inc., 564 S.W.3d at 848;
Stallion Oilfield Serv. Ltd. v. Gravity Oilfield Servs., LLC, 592 S.W.3d 205, 220 (Tex. App.—
Eastland 2019, pets. denied).
Duran pleaded that (1) that Wilcox’s defamation and tortious interference with
contract caused him “future loss of income,” (2) that her negligence per se caused him
“harm” resulting in actual and exemplary damages, and (3) that all of her conduct caused
him “STRESS OVER A LONG PERIOD OF TIME AND PRESENTLY.” He
pleaded that he had experienced in general “severe financial loss [of income and
retirement benefit contributions due to not being permitted for some period of time to
fly and work] well in excess of $5,000,000.00, past and future.” [Alterations in original.]
In addition to the damages evidence Duran provided in his attorney’s affidavit
in connection with his abuse-of-process claim, Duran attached his “Second
Supplemental Objections and Responses to Defendant [Wilcox’s] First
Interrogatories.” In those objections and responses, he averred that he suffered
damages from several missed months when he was not able to work and that he
suffered “reputational and employment-related harm.” But he also stated that
“Information on these damages has been, or will be, provided in Initial Disclosures or
Supplements thereto.” The initial disclosures are not attached to his TCPA response.
Although in the context of asserting these damages Duran did not distinguish among
his various causes of action, the only effect he claimed from the police report is that he
22
had to talk to the Southlake police detective; he provides no evidence that Wilcox’s
police report was ever communicated to his employer or the FAA or that he was
arrested or otherwise detained in connection with the allegedly false report such that it
caused him to miss work.
Thus, we hold that Duran failed to meet his step-two burden with respect to his
false-reporting claim. We sustain the remainder of Wilcox’s third issue. 14
VI. Conclusion
Having sustained Wilcox’s dispositive issues, we conclude that the trial court erred
by denying Wilcox’s TCPA motion on Duran’s abuse-of-process and false-reporting claims
raised in his third amended counterclaim. We reverse the trial court’s order denying that
motion and render judgment dismissing only those claims with prejudice. We remand this
matter for further proceedings consistent with this opinion and Section 27.009 of the Texas
Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code § 27.009.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: August 13, 2026
14
Because we hold that Duran failed to meet his step-two burden to provide clear and specific evidence of his abuse-of-process and false-reporting claims, we need not address Wilcox’s fourth issue contending that she met her step-three burden. We also need not address Wilcox’s fifth issue contending that the trial court erred by relying on the commercial-speech exception because Duran never alleged this as an exception to the TCPA’s application. See Walgreens v. McKenzie, 713 S.W.3d 394, 403 (Tex. 2025) (“For a party to benefit from an exception, it generally must raise that exception in the trial court.”).
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