ReignRock Capital Partners, LLC and Robert D. Richardson v. Daniel Gustav Tews

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00497-CV ___________________________ REIGNROCK CAPITAL PARTNERS, LLC AND ROBERT D. RICHARDSON, Appellants V. DANIEL GUSTAV TEWS, Appellee On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048-362490-25 Before Kerr, Birdwell, and Wallach, JJ. Memorandum Opinion by Justice Wallach  MEMORANDUM OPINION In 2023, Appellee Daniel Tews was arrested and charged with committing theft from his former employer. After the criminal case was dismissed and his arrest was expunged, Tews sued the parties he blamed for his arrest: Appellant ReignRock Capital Partners, LLC (ReignRock) and its managing member, Appellant Robert D. Richardson. Alleging that the theft charge had been based on Richardson’s false statements, Tews asserted claims for malicious prosecution, defamation, and conspiracy. Appellants filed a motion to dismiss under the Texas Citizen Participation Act (TCPA), which the trial court granted as to the defamation and conspiracy claims but denied as to the malicious prosecution claim. On appeal, Appellants argue in two issues that the trial court erred by (1) holding that Tews established by clear and specific evidence a prima facie case for the malicious prosecution elements challenged in their motion and (2) considering a Haltom City Police Department (HCPD) report included with Tews’s TCPA response. Because Tews produced sufficient evidence to make a prima facie case for malicious prosecution even without the police report, we will affirm. Background Tews’s malicious prosecution claim arose from his employment with Falcon Steel America, LLC (Falcon Steel). Falcon Steel is connected to Appellants through another entity, FSA Holdings, LLC (FSA Holdings): when Falcon Steel was formed, 2 its sole member was FSA Holdings, 1 an entity that is managed by ReignRock, which is in turn managed by Richardson.2 In November 2018, Falcon Steel gave Tews an offer letter for the position of its chief financial officer (CFO). The offer letter stated that the position paid $230,000 annually and that Tews would be eligible for certain benefits. Two of those benefits are at issue in this appeal. First, the offer letter provided that “[s]hould [Tews] be terminated without cause” within the first four years of employment, 3 he would be eligible for severance; for “Year 1,” the severance amount was “100% base salary.” 1 As we discuss in footnote 16 below, the parties disputed in the trial court and on appeal whether Tews became a part owner of Falcon Steel. We need not resolve this dispute. 2 Although ReignRock is a limited liability company, Tews refers to Richardson and two others—Steven Ganss and Douglas Kramp—as ReignRock partners, and documents in the record refer to Richardson as ReignRock’s managing partner. The record reflects that Falcon Steel was a partnership for tax purposes, but it does not reflect whether ReignRock is. See IRS, LLC filing as a corporation or partnership, https://www.irs.gov/businesses/small-businesses-self-employed/llc-filing-as-a- corporation-or-partnership (discussing when an LLC may be treated as a partnership for tax purposes). We assume that the parties use “partner” to mean “member” and “managing partner” to mean “manager,” but when discussing ReignRock, we use the term “partner” because the parties do. See Tex. Bus. Orgs. Code § 101.002(b)(4). 3 In his petition, Tews referred to the offer letter as an employment agreement, and Appellants did not dispute that assertion in their TCPA motion. Indeed, Appellants referred to it as an employment agreement in the trial court. Thus, for purposes of this appeal, we treat the offer letter as a contract. We further note that while the offer letter did not define “cause,” Appellants’ TCPA motion did not raise any argument that the company sale constituted cause to eliminate his employment. They argued only that despite the sale, Tews’s employment had not yet been terminated by Falcon Steel when he left the company and that it was Tews’s decision to leave the company when he did. 3 Second, the offer letter stated that Tews was eligible for an “on target incentive” (OTI) bonus of $57,500 based on goals “to be jointly discussed, defined[,] and agreed upon with [the] CEO.” The offer letter also stated that within the first sixty days of his employment, he would be offered the opportunity to participate as an equity investor in Falcon Steel and that he would be “granted 270 management pool units in this position that will be vested over a four (4) year period.” The offer letter set an employment start date of December 10, 2018. Tews accepted the position. Due to financial difficulties, Falcon Steel began looking to sell its assets soon after Tews started. Two buyers were located, and the assets were sold in mid-August 2019. Tews agreed to stay on temporarily; he alleged in his petition that he agreed to stay on through the sale. In April 2019, Falcon Steel’s managers4 signed a written consent authorizing the CEO “at his discretion” to pay Tews a retention bonus of an amount between 25% and 75% of his base pay (that is, $57,500 to $172,500). In mid-July, Tews and Richardson exchanged emails about Tews’s suggestion that he 4 See Tex. Bus. Orgs. Code § 101.302(d)(2) (providing that an LLC’s manager need not be a member). Tews’s petition and other parts of the record use the term “managers.” For purposes of this appeal, we assume by “directors,” the parties mean “managers.” Id. § 101.002(b)(4) (providing that for purposes of that section, a reference to “directors” of a manager-managed LLC is a reference to the managers); Jongebloed v. Tex. Lottery Comm’n, No. 03-08-00154-CV, 2009 WL 2837698, at *5 (Tex. App.—Austin Aug. 31, 2009, no pet.) (mem. op.) (“Generally speaking, a limited liability corporation is governed by one or more ‘managers,’ similar to directors in a business corporation.”). 4 remain with Falcon after the sale. Richardson characterized the idea as “a win-win for [Tews] and ‘old’ Falcon” because it would give Tews “a great runway” and would help with Falcon Steel’s wind-down. The emails did not discuss how long after the sale Tews would stay on. On August 5, 2019, Tews met with Richardson, Ganss, and Kramp to discuss severance and bonus payments that Tews believed he was owed under the offer letter. At that time, in addition to being ReignRock members, Ganss was acting as Falcon Steel’s president and was one of its managers, and Kramp was its CEO and one of its managers. Tews alleged that at the meeting, he and the others reached an agreement that he would receive a $230,000 severance payment and another $230,000 in bonus payments—$57,500 as an OTI bonus (the amount provided for in his offer letter) and $172,500 as a retention bonus (the upper end of the bonus authorized by the company’s managers in April 2019). Tews’s duties included approving payroll. On August 19, Richardson emailed Tews, Ganss, and Kramp, telling Tews that for payroll that week, he should include $50,000 for himself as a retention bonus. On August 23, Tews authorized a bonus payment to himself. On August 30, he authorized another bonus payment and a $230,000 severance payment. He “grossed up” the bonus payments to account for taxes, resulting in the company paying $375,960.15 and his receiving $230,000. When Falcon Steel later issued a W-2 to Tews 5 for 2019, it reflected “[w]ages, tips, [and] other compensation” to Tews of $781,762.10. On Saturday, September 14, 2019, Tews emailed Richardson, Kramp, Ganss, and Falcon Steel’s other two managers to say that his CFO responsibilities no longer existed and that beginning on September 20, he would be spending his time with a family member undergoing cancer treatment. He noted that wind-down activities were in progress, and he indicated who should handle his remaining duties. On September 30, Kramp replied with an email from Richardson’s email address, copying Ganss and the two other Falcon Steel managers. The email stated that they had been unable to reach Tews by phone or text, that he was sending the email to formally accept Tews’s resignation, and that they hoped that he would spend “a few minutes in the next few days to transition your responsibilities to the individual we have engaged to assume your CFO position.” He concluded, “While your departure is a loss for Falcon, we understand your need to take care of [the family member,] and we’ll be praying for encouraging results over the next few months.” The next month, the company authorized payroll to make a $7,500 payment to Tews, which Appellants claim was intended to bring his retention bonus up to the lower end that had been authorized by the managers. At that point, Ganss—who had apparently taken on duties related to payroll—was notified by the company’s former human resources director that the company’s practice had been to pay bonus payments “Net to Gross” and that only Tews’s authorization as CFO had been 6 required for HR to process bonus payments and release payroll. During this process, the company discovered that Tews had already authorized bonus payments and a severance payment. Later that month, Falcon Steel demanded that Tews repay the amounts he had paid to himself. A law firm retained by Falcon Steel sent a letter to Tews5 asserting that an audit had revealed the payments that he had authorized to himself; that the $230,000 severance payment and $327,749 bonus payment had not been authorized; that he was not entitled to any severance payment because he had resigned; that Tews had refused to repay the money; and that Falcon Steel would “pursue all legal remedies available to it to recoup these unauthorized payments.” 6 A year later, in October 2020, the parties participated in mediation, but no agreement was reached. In March 2021, Andrea Kim, an attorney acting on behalf of Falcon Steel, prepared a memo (the attorney memo) to HCPD and the Tarrant County District Attorney’s Office. The memo set out a “summary of theft committed by Dan Tews” and was provided “to refer matters to the Tarrant County District Attorney’s Office 5 In his affidavit attached to his response to the TCPA motion, Tews asserted that the attorneys who sent him the letter were “attorneys for ReignRock and Richardson,” but in the letter, the attorney stated that the firm had been retained by Falcon Steel. 6 This letter was attached to the TCPA motion filed by another attorney, Andrea Kim; Tews originally included her and her law firm as defendants in this proceeding. The trial court subsequently signed an order granting an agreed motion to dismiss the claims against her and the firm. 7 arising from the unlawful appropriation of monies . . . by [Tews].” [Capitalization altered.] In the memo, the attorney asserted that the payments that Tews had paid himself had not been authorized. Richardson submitted that memo to HCPD, and a few days later, he spoke with a police officer there. He subsequently spoke with an investigator with the District Attorney’s Office and, later, a prosecutor. The District Attorney’s Office referred the matter to the grand jury, which indicted Tews for felony theft. However, the charge was eventually dismissed by the prosecutor, and the arrest was expunged. Tews then brought this suit against Appellants.7 Appellants filed their TCPA motion. Regarding the defamation and conspiracy claims, the motion asserted that they were barred by limitations. As for the malicious prosecution claim, Appellants asserted that Tews could not meet his burden on any of 7 Tews’s petition alleged acts by Kramp and Ganss and alleged without elaboration that they held their manager roles at Falcon Steel “[b]y virtue of ReignRock’s investment” in FSA Holdings, but Tews did not specifically allege which acts of Kramp or Ganss, if any, were taken as ReignRock’s agent (as opposed to as managers or officers of Falcon Steel), and it is not entirely clear whether Tews bases his claims against ReignRock in part on acts of Kramp or Ganss or just on acts by Richardson. Moreover, Richardson is the only ReignRock member sued individually by Tews, and the petition does not specify whether the complained-of acts by Richardson were done as ReignRock’s agent or manager, in his individual capacity, or both. See Keyes v. Weller, 692 S.W.3d 274, 279 (Tex. 2024) (noting that corporate agents can be sued for their own tortious acts). However, Appellants state in their brief that Falcon Steel was owned by FSA Holdings “and ultimately managed by ReignRock . . . [and] Richardson.” Because at this stage, neither party has raised issues of capacity or distinguished between the acts of Richardson and those of ReignRock, for purposes of this appeal, neither do we. 8 the claim’s elements, including that he was innocent, that they lacked probable cause to initiate the criminal proceedings, that they caused the criminal proceedings, and that they acted with malice. Tews filed a response addressing these arguments. The trial court dismissed the defamation and conspiracy claims, but it denied the motion as to the malicious prosecution claim. Appellants now appeal. Discussion I. The TCPA If a defendant who moves for dismissal under the TCPA demonstrates that the TCPA applies to the plaintiff’s claim, the claim must be dismissed unless the plaintiff “establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” Ferchichi v. Whataburger Rests. LLC, 713 S.W.3d 330, 336 (Tex. 2025) (citing Tex. Civ. Prac. & Rem. Code § 27.005). The plaintiff’s burden “is not remotely equivalent to requiring early proof that the [party] will ultimately prevail”; rather, “[t]he burden is to produce only ‘the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.’” Borgelt v. Austin Firefighters Ass’n, IAFF Local 975, 692 S.W.3d 288, 311 (Tex. 2024) (quoting In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding)). If the plaintiff succeeds in establishing a prima facie case, the defendant will nevertheless be entitled to dismissal if it “establishes an affirmative defense or other grounds” on which it is entitled “to judgment as a matter of law.” Ferchichi, 9 713 S.W.3d at 336 (citing Tex. Civ. Prac. & Rem. Code § 27.005(d)). If the defendant cannot meet that burden, the motion must be denied. Id. In ruling on the motion, the trial court considers (1) the pleadings, (2) evidence that a court could consider under Texas Rule of Civil Procedure 166a, and (3) “supporting and opposing affidavits stating the facts on which the liability or defense is based.” Tex. Civ. Prac. & Rem. Code § 27.006; MFG Fin., Inc. v. Hamlin, No. 03-19-00716-CV, 2021 WL 2231256, at *5 (Tex. App.—Austin June 3, 2021, pet. denied) (mem. op.). However, “conclusory statements” and “general allegations” reciting a claim’s elements contained in a pleading do not constitute clear and specific evidence. MFG Fin., 2021 WL 2231256, at *5. We review de novo a trial court’s ruling on a TCPA motion. Beving v. Beadles, 563 S.W.3d 399, 404 (Tex. App.—Fort Worth 2018, pet. denied). “We view the pleadings and evidence in the light most favorable to the nonmovant.” Darrigan v. Am. Prospect, Inc., No. 02-24-00061-CV, 2025 WL 2423579, at *5 (Tex. App.—Fort Worth Aug. 21, 2025, pet. denied) (mem. op.). II. The TCPA Evidence The parties do not dispute that the TCPA applies to Tews’s malicious prosecution claim. See Whitelock v. Stewart, No. 10-23-00132-CV, 2025 WL 2473021, at *2–3 (Tex. App.—Waco Aug. 28, 2025, no pet.) (mem. op.); McShirley v. Lucas, No. 02-23-00229-CV, 2024 WL 976512, at *4 (Tex. App.—Fort Worth Mar. 7, 2024, pet. denied) (mem. op.). The parties therefore focus on the other two TCPA steps. 10  Appellants argue under their first issue that the trial court erred by holding that Tews had met his burden of establishing by clear and specific evidence a prima facie case for each essential element of his malicious prosecution claim. They contend that the information that they provided to law enforcement was true. They further contend that “three layers of independent decisionmakers (the police, a prosecutor, and a grand jury) all exercised independent discretion to advance the prosecution,” and “there is no evidence that any governmental decisionmaker would not have prosecuted Tews but for the information [that Appellants] provided to police.” A. Evidence related to Tews’s hiring and the company’s financial condition We first discuss the evidence related to the terms of Tews’s employment, his responsibilities, and the company’s management. We begin with Tews’s pleadings and the allegations therein to the extent that they contain enough detail to show the factual basis for his claim. See Tex. Civ. Prac. & Rem. Code § 27.006; MFG Fin., 2021 WL 2231256, at *5; see also Hay v. eCORP Int’l, LLC, No. 14-20-00771-CV, 2022 WL 3592613, at *6 (Tex. App.—Houston [14th Dist.] Aug. 23, 2022, no pet.) (mem. op.) (noting that in determining whether plaintiff met burden to establish prima facie case in response to TCPA motion, we consider only the pleadings and evidence in favor of the plaintiff’s case). Tews alleged that • ReignRock’s partnership includes Richardson, Ganss, and Kramp, and through FSA Holdings, “ReignRock and its partners invested in Falcon Steel.” 11  • Ganss and Kramp served as two of Falcon Steel’s managers “[b]y virtue of ReignRock’s investment” in FSA Holdings. 8 • Tews was hired to be Falcon Steel’s CFO in November 2018. • Kramp became Falcon Steel’s interim CEO, and he delegated multiple administrative tasks to Tews, including authorizing employee pay. • Falcon Steel had financial difficulties, and its assets were ultimately sold. Before the sale, in April 2019, Falcon Steel’s board of directors authorized payment to Tews of up to $172,500 to induce him to stay through the asset sale process. The evidence attached to Tews’s TCPA response included his own affidavit. In the affidavit, he stated that after he began working at the company, he “discovered that the company was enduring a number of challenges, many of which stemmed from” the former Falcon Steel leaders’ “mismanaging” the company’s “financials.” He further stated that “[a]s the sale process moved forward, [he] became increasingly concerned that ReignRock and Richardson might not honor their promises regarding [his] compensation,” so he “contacted them several times in late July and early August 2019 to receive assurances.” 8 Per Falcon Steel’s company agreement, the entity was manager managed. The record reflects that Ganss and Kramp, both ReignRock members, were Falcon Steel managers, but it does not reflect that ReignRock ever was. Further, Richardson was mentioned as a Falcon Steel manager only in the July 31, 2019 “Unanimous Written Consent of Managers” sent by Tews to Richardson, Ganss, and Kramp, discussed below. But as noted above, Appellants state in their brief that Falcon Steel was owned by FSA Holdings “and ultimately managed by ReignRock . . . [and] Richardson.” 12  B. Evidence related to the end of Tews’s employment and the disputed payments Tews alleged in his petition that his employment with Falcon Steel ended in September 2019.9 He alleged that his employment was terminated, and to support that assertion, he asserted that • Kramp had confirmed to him in June 2019 that his position would be terminated upon finalization of the asset sale; • Ganss referred to him as the “former CFO” in correspondence with the company’s insurance agent 10; • his health, life, and short- and long-term disability insurance were terminated as of September 1, 2019; and • on August 2, 2019, Falcon Steel’s board of directors sent a company-wide email acknowledging Tews for his hard work and recognizing that the asset sale was terminating Tews’s position as CFO. Tews provided miscellaneous documents relating to the end of his employment, some of which suggested that he would be staying on after the asset sale. One such document was the July 2019 email discussed above in which Richardson agreed with Tews that it was a good idea for him to stay on with “old 9 Tews alleged that he was “constructively discharged.” He did not include any factual allegations related to discrimination or intolerable conditions. See, e.g., Green v. Brennan, 578 U.S. 547, 555, 136 S. Ct. 1769, 1777 (2016) (stating that constructive discharge claim requires plaintiff to prove discrimination by employer “to the point where a reasonable person in [that] position would have felt compelled to resign”); Cox v. Waste Mgmt. of Tex., Inc., 300 S.W.3d 424, 433 (Tex. App.—Fort Worth 2009, pet. denied) (stating similar). However, as discussed below, those emails listed Tews as an employee who 10 would be staying on to manage the company’s wind-down. 13 Falcon” after the sale. Tews also produced emails relating to insurance coverage after the sale and during the company’s wind-down. Those emails stated that Tews, the “former CFO,” would be “staying on to manage the closure,” and he was included in the company’s “windup coverage.” Another email stated that Tews would “stay on to collect AR,” “manage the paydown of the company’s existing accruals and payables,” and perform several other duties. But as noted above, Tews pled that Falcon Steel’s board of directors had announced that his position would be terminated with the asset sale, and in his affidavit he denied that he had resigned. Appellants’ TCPA motion offered a different version of the end of Tews’s employment. Richardson’s affidavit stated that on September 14, Tews had emailed Richardson, Kramp, and Ganss “to announce his resignation,” which surprised them because they “had understood that Tews would continue working into the first quarter of 2020.” After they were unsuccessful at reaching Tews by telephone to discuss the matter, Richardson emailed on Kramp’s behalf to accept the resignation. Richardson attached the emails to his affidavit. Tews stated in his email addressed to Kramp, Ganss, the other two Falcon Steel managers, and Richardson, Gentlemen, With the sale of assets and change of control at Falcon, my responsibilities as CFO no longer exist.[11] The defined wind[-]down Tews’s affidavit did not address this email directly but asserted that the 11 Appellants’ “repeated statements that [he] resigned from [his] position as CFO . . . were false. [His] role as CFO of Falcon Steel ceased to exist when the sale of the business closed in August 2019.” Tews’s offer letter provided for severance “[s]hould 14  activities are in-progress and with respect to the remaining debt resolution, this should be handled through an independent 3rd party. I believe that our paths crossed for a reason. It has been my pleasure to get to know each one of you on a personal level. Beginning Friday September 20th, I will spend my time helping [his family member] through her chemo therapy [sic] and healing. I will transition my pending items to [another employee] during the week of September 16th. Thank you and God[ ]speed. Richardson’s reply email on Kramp’s behalf noted that they were accepting his resignation, that the company had hired someone to assume Tews’s ongoing responsibilities, and that they would appreciate Tews’s cooperation in transitioning those responsibilities. The email concluded by stating that Tews’s departure was “a loss for Falcon.” C. Evidence related to whether the parties had agreed to the payments As for the disputed payments, Tews alleged in his petition that Richardson, Kramp, and Ganss had all agreed to them. According to Tews, • On August 5, 2019, Tews met with Richardson, Kramp, and Ganss for lunch, “and in that meeting[,] it was agreed that Tews would be paid his severance, OTI bonus, and retention bonus,” and that “[i]n all, [they] agreed that Tews would receive $460,000.” • Tews authorized payments to himself on August 23 and August 30, 2019. These payments were documented in Falcon Steel’s internal [he] be terminated without cause.” It is not clear from their arguments whether the parties disagree about whether this provision applied only if the company entirely terminated his employment with the company or if it also applied if his employment continued but in a different role or in winding up the company. We need not resolve the question at this stage, as explained below. 15  employee earnings record as “bonus” and “severance,” and they were included in Tews’s W-2, issued in early 2020, as earned income. • After Tews’s employment ended, he nevertheless continued to help with transition activities for the company through September 28, and during that time, Richardson and Ganss had meetings about the company’s cash flows, and at those meetings, the payments to Tews “were reflected and addressed.” In Tews’s affidavit, he referenced the Falcon Steel managers’ April 2019 consent authorizing the CEO to pay Tews a retention bonus of up to 75% of his base pay, and he attached the document to his response. Tews also reiterated in his affidavit that at the August 5 meeting, Richardson, Kramp, and Ganss had agreed that he would receive $460,000: $230,000 as a severance payment, $172,500 as a retention bonus, and $57,500 as an OTI bonus. Tews further stated that he was entitled to the $230,000 severance payment under the terms of his offer letter because his role was eliminated without cause within one year; that the retention bonus was “in accordance with” the April 2019 managers’ consent; and that the OTI bonus was “for [his] work managing the company’s liquidity through the sale date and overseeing the successful sale of the company.” Tews stated the agreement reached at the meeting “was memorialized by Richardson’s handwritten note” on a copy of Tews’s offer letter. Tews attached the offer letter copy, which had the following written in the upper right corner: 16  Dan Severance 230,000 OTI 57,500 Retention Bonus 172,500 $460,000 0 Tews asserted that the “0” had been written by Richardson “to signify that these sums would not be paid if Tews revealed the fact that a large percentage of the workers at [a Falcon Steel facility] were undocumented.” Tews also attached an email that he had sent to the other three men that day telling them, “Thanks again for today’s discussion. Please see the attached proposed structure.” The attached chart showed how Tews proposed structuring the severance and bonus payments over several months. Richardson replied to the email stating that they would discuss the matter and get back to him. Tews attached an email sent from Richardson to Ganss on August 19, 2019— two weeks after the August 5 meeting—with the subject line, “RE: MICA 12 Valuation Analysis – updated 7.15ll.xlsx” and stating that he was attaching “the latest spreadsheet with the final numbers from all 3 closings.” The attached spreadsheet had an entry for “Other Expenses,” with the note “stay bonuses / other,” and the next page listed “Stay bonuses” for three people, including “Dan.” The amount listed was 12 MICA Steelworks, Inc. was one of the buyers of Falcon Steel’s assets. 17 $165,000, which was less than the retention bonus that Tews ultimately paid himself but more than the amount that Appellants claimed had been authorized. Tews further attached to his response copies of what he claimed were documents evidencing payments from three vendors, and he stated in his affidavit that “[o]nce those payments were received, and because [he] had full authorization to do so, [he] directed the payments for [his] agreed severance and bonus to be paid on August 23 and 30, 2019, consistent with the August 5 agreement.” Tews also included documents reflecting that in Falcon Steel’s own documentation, it had not classified the payments to him as theft. First, Tews attached some pages from the company’s employee earnings records, which described the payments as severance and bonus payments.13 Second, Tews attached the W-2 issued to him by Falcon Steel for tax year 2019, and it reflected that the company had paid Tews $781,762.10 as “[w]ages, tips, [and] other compensation.” In Appellants’ version, the extra payments had merely been discussed and had never been agreed to. Appellants attached to their TCPA motion Richardson’s affidavit and other exhibits, and Richardson’s affidavit discussed the April 2019 managers’ consent, asserting that it left payment of a retention bonus to the CEO’s discretion. He then stated that on July 31, 2019, Tews had emailed him, The documents do not reflect whether Tews or someone else had designated 13 them as such in the statements. 18 Kramp, and Ganss a proposal for Tews to receive bonuses and severance totaling $460,000 over installments beginning on August 9. Richardson attached the July 31 email; in it, Tews stated, “I know that this process has been extremely painful for all of us and I regret that,” but “you are both [sic] aware . . . what I have done for this company. . . . Therefore, I ask that this Consent please be signed by Friday August 2nd.” The email attached a draft document that would give Falcon Steel’s managers’ approval for the bonuses and severance payment at issue in this case. According to Richardson, the consent was never signed. Tews sent this email approximately two weeks after he and Richardson had exchanged emails about Tews’s idea to stay on after the sale. Richardson’s affidavit next addressed the August 5 meeting. Richardson agreed with Tews that the men had reached an agreement that Tews would be eligible for the amounts he requested, but he gave a different version of the terms; Richardson stated that the agreement was for Tews to “remain with Falcon Steel through the first quarter of 2020 and specifically oversee the filing of Falcon Steel’s 2019 tax return.” Richardson asserted that his note on the copy of Tews’s offer letter memorialized his understanding of Tews’s proposed terms, which was to receive those funds in return for helping wind down the company through the first quarter of 2020. Further, he said that the “0” reflected what he, Kramp, and Ganss would receive over the same period. At the conclusion of the meeting, Tews was asked to send an updated proposal to the other three. 19  As noted above, later that day, Tews sent an email with an attached chart showing the proposed structure of the payments, which Richardson stated was “never accepted or agreed to.” Richardson further stated that he had called Tews and told him that the proposal “was not viable from a timing perspective, nor would we agree to pay his income taxes by ‘grossing up’ the proposed payments.” He said, “Falcon Steel still had many high-priority debts to pay, . . . and this request was inconsistent with our August 5, 2019[ ] discussion. There was no agreement, but we planned to continue discussions.” Appellants did not address the W-2 or explain why the company’s internal records classified the payments as severance and bonus rather than as theft or unauthorized. Richardson did, however, assert that Tews was aware that the company could not afford to pay him what he wanted. Richardson attached a September 17, 2019 email from Tews to a vendor reflecting that awareness. Tews had responded in the email to a vendor’s inquiry about payment, and Tews responded to explain the company’s financial difficulties and request a settlement of the amount owed: Falcon was forced by our secured lender to sell all of Falcon Steel’s assets and the sale proceeds were insufficient to cover the secured debt holders. We also have $11.2M of unsecured creditors. Accordingly, we are under-going an orderly liquidation process. I reviewed your account with the [board] and they have authorized me to settle outstanding A/P . . . at $0.35/$1.00 . . . . Again, I regret this circumstance[,] however, please know that available cash will soon be exhausted and an expeditious settlement is in your best interest. The vendor agreed to the offer. 20  Appellants also attached an August 19 email from Richardson to Tews, Ganss, and Kramp stating that for payroll that week, $50,000 should be included for Tews as a retention bonus payment. D. Evidence related to discovery of the payments and the criminal proceedings As for the parties’ disputing the payments and the instigation of criminal proceedings, Tews alleged in his petition that the company demanded the money back in 2019 and then waited until 2021 to instigate criminal proceedings: • In October 2019, a law firm retained by Richardson, Kramp, and Ganss demanded that Tews return the severance and bonus payments on the basis that they had not been authorized; • The parties participated in mediation the next year, but no resolution was reached; and • In 2021, Richardson submitted a criminal complaint to HCPD, and a criminal referral was also submitted to the Tarrant County District Attorney’s Office. The District Attorney’s Office opened an investigation, and a grand jury indicted him for felony theft. This case was dismissed, and the arrest was expunged. To his TCPA response, Tews attached documents related to the criminal investigation and Richardson’s role in it, including the attorney memo submitted to HCPD,14 Richardson’s notes on some conversations he had with law enforcement, and emails relating to the criminal case. 14 The attorney memo had exhibits that Tews did not include. 21  The attorney memo asserted that the payments to Tews had not been authorized: • “Tews became eligible to receive a discretionary Retention Bonus of $57,500–$172,500” after the asset sale closed in August 2019. • “[S]hortly after the closing . . . , Tews and members of [Falcon Steel’s] Board attended a meeting where it was discussed that the company’s ability to pay Tews the high-end range of his proposed bonus was dependent upon its ability to collect outstanding receivables that Falcon Steel retained as part of the Asset Sale which represented its only remaining significant assets.” But Falcon Steel had “millions of dollars in trade debts outstanding” and struggled to collect receivables. • In August 2019, Richardson authorized Tews to include in payroll a $50,000 payment to himself as a partial payment of the retention bonus. • In mid-September 2019, Tews resigned, which disqualified him from receiving a severance payment. He nevertheless caused Falcon Steel to issue to him a $230,000 severance payment and a bonus payment exceeding what had been authorized. Richardson’s notes addressed his involvement in the start of the criminal investigation into Tews: • On March 15, he called “Sgt. Boykin,” who was apparently with the Fort Worth Police Department. However, his notes further state that because the “crime [was] committed in Haltom City, . . . [we] will need to work with the HC Police Dept.” • On March 22, he went to HCPD and discussed the case with an officer there. The next day, Richardson sent further information at the officer’s request. • On April 20, he spoke to someone with the Tarrant County District Attorney’s Office, who requested further information such as “payroll information,” “job description,” “bonus histories,” and “direct deposit records.” [Capitalization altered.] Richardson noted that “[e]verything 22  collected goes to financial analyst,” then to a prosecutor, and then “[p]rosecutor takes to grand jury.” The emails that Tews attached had been exchanged among Richardson, a District Attorney’s Office investigator, and a prosecutor. These emails showed Richardson communicating with the prosecutor and providing evidence to her as the case developed: • In one of the emails, the investigator asked if Tews owned a share “of the company.” Richardson replied that Tews had purchased equity in FSA Holdings, which owned Falcon Steel, but “[h]e did not have any direct ownership in Falcon Steel. . . . This was a smoke screen and simply a threat to try to get us to pay him.” • He went on, “[Tews] did not prevail with the TWC.[15] He also alleged the company had hired numerous illegal workers and that we threatened him to stay quiet or he wouldn’t receive any severance. After his departure, he started fabricating a lot of stories to justify his theft.” • In December 2023, the prosecutor assigned to the case emailed Richardson to request various documents related to Tews. Over several emails, Richardson listed categories of documents tha