Opinion issued August 30, 2012

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-10-00938-CV

———————————

AIRGAS-SOUTHWEST, INC., Appellant

V.

IWS GAS AND SUPPLY OF TEXAS, LTD., Appellee

AND

ROBERT A. MORTON, JR., STEVEN P. LYNCH, RUBEN G. PENA, 

RHANDA CHILDERS, DENIS STERMER, KEVIN JAMES, THOMAS 

SMITH AND JOHN ROGSTAD, Appellants

V.

AIRGAS-SOUTHWEST, INC., Appellee

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Case No. 2008-42098
2

O P I N I O N

IWS Gas and Supply of Texas, Ltd. (“IWS”) sought and obtained a money 

judgment against Airgas-Southwest, Inc. (“Airgas”) for malicious prosecution. 

Robert A. Morton, Jr., Steven P. Lynch, Ruben G. Pena, Rhanda Childers, Dennis 

Stermer, Kevin James, Thomas Smith and John Rogstad, all of whom were

employees of IWS (the “Individual Employees”), also sued Airgas for malicious 

prosecution, but the trial court rendered partial summary judgment dismissing 

those claims at an earlier stage of the litigation. Airgas appeals from the final 

judgment in favor of IWS. The Individual Employees also appeal from the 

summary-judgment dismissal of their malicious prosecution claims against Airgas.

We conclude that there was legally insufficient evidence that IWS suffered a

special injury, which is an essential element of a claim for malicious prosecution. 

Accordingly, we reverse in part the judgment of the trial court and render a takenothing judgment against IWS. For the same reason, we affirm the judgment to 

the extent it incorporated the summary-judgment dismissal of the Individual 

Employees’ claims.

Background

I. Airgas’s acquisitions

Airgas is a distributor of gases and welding and safety supplies in Harris 

County and the surrounding area. In 2006, Airgas, Inc., the parent company of 
3

Airgas, acquired one of its competitors, Aeriform Corporation. While this 

transaction was pending, another Airgas competitor, IWS Gas and Supply 

Corporation, recruited Aeriform’s four-person Houston-based industrial sales force

to join what would eventually become its subsidiary, IWS. Soon after Airgas’s 

acquisition of Aeriform was announced, the four Aeriform industrial salesmen—

Jerry Barton, Steven Lynch, Robert Morton, Jr., and Ruben Pena—resigned their 

jobs to work for the newly-formed IWS. Upon tendering his resignation, Barton 

showed his supervisor the offer letter from IWS, which offered a “considerable 

increase” in compensation above what Airgas paid him, plus the option to buy 

shares in IWS.

Shortly after the four Aeriform salesmen joined IWS, approximately 35 

customers stopped ordering supplies from Aeriform. The volume of lost sales 

amounted to between $500,000 and $600,000 per month. Due to the sudden loss 

of customers, Airgas and Aeriform management suspected that IWS had solicited 

the customers by obtaining confidential information through the four former 

Aeriform salesmen. According to his former supervisor, Barton had approached 

Aeriform’s record-keeper shortly before leaving the company and obtained copies 

of all his customer contracts, which reflected pricing and product information. 

Allegedly, neither Airgas nor Aeriform ever recovered the missing customer 

contracts.
4

While Airgas was acquiring Aeriform, Airgas was also in the process of 

acquiring Gulf Oxygen, LLC, another company in the gas and welding supply 

business. Before acquiring Gulf Oxygen, Airgas management heard rumors that 

employees would leave the company upon the acquisition. Around the time of the 

closing, several Gulf Oxygen employees—including Rhanda Childers, Kevin 

James, John Rogstad, Thomas Smith, and Dennis Stermer—quit to work for IWS. 

According to Gulf Oxygen’s former owner, when Airgas personnel searched Gulf 

Oxygen’s premises, they could not find any of the customer contracts.

II. Litigation of Airgas’s original claims

Airgas, as assignee of Aeriform Corporation, filed a petition in Harris 

County district court to take pre-suit depositions of the former Aeriform 

employees. Before the district court took action on the petition, the former 

Aeriform employees and IWS filed a separate lawsuit which was assigned to a 

different Harris County district court. Their petition requested a declaratory 

judgment that they did not misappropriate Aeriform’s confidential information, 

they did not engage in unfair competition, they did not tortiously interfere with 

Airgas’s current or prospective contracts, and no law or contract precluded them 

from contacting Airgas’s employees or customers.

In response, Airgas filed an answer and counterclaim against Aeriform’s 

former employees for breach of fiduciary duty, and the company filed additional 
5

counterclaims against them and IWS for conspiracy to breach fiduciary duty and 

unfair competition. Airgas later amended its pleadings to allege those same claims 

against former Gulf Oxygen employees Childers, James, Rogstad, Smith, and 

Stermer, and it additionally alleged claims against the opposing parties for 

misappropriation of trade secrets.

Airgas obtained a temporary restraining order against IWS and all of its 

employees, specifically including the former employees of Aeriform and Gulf 

Oxygen. The TRO restrained and enjoined them from:

1. Contacting any Airgas employee or in any manner soliciting 

any Airgas employee for employment with IWS;

2. Entering into any new employment agreements and/or hiring 

any current Airgas employee whether solicited or not; and

3. Having any former Airgas employee now with IWS (including 

any former Aeriform or Gulf Oxygen LLC (or affiliate) or employee) 

contact any customers they had while at Airgas, Aeriform or Gulf 

Oxygen LLC that are not currently customers of IWS.

A hearing was scheduled for 13 days after the TRO was signed to determine 

whether it should be made into a temporary injunction pending full trial on the 

merits, and the TRO stated that it would expire 14 days after it was signed. At the 

TRO hearing, Airgas announced that it had decided not to pursue a preliminary 

injunction, and that it would instead proceed to trial on an expedited basis. Airgas 

did not again request or obtain a restraining order or injunction against any party 

during the course of the underlying litigation.
6

Airgas amended its pleadings to assert an additional action under the Texas 

Theft Liability Act against all the adverse parties. On a motion for summary 

judgment, the trial court ordered that Airgas take nothing on that claim, but the 

remaining claims were allowed to proceed to trial by jury. Airgas nonsuited 

without prejudice its claims against all the Individual Employees except for 

Barton, thus leaving IWS and Barton as the sole adverse parties at trial.

At trial, after Airgas rested, the trial court directed a verdict in favor of IWS 

and Barton on the remaining claims, and in the final judgment it ordered that 

Airgas take nothing. The judgment additionally ordered that IWS and Barton 

should recover $336,269 in attorney’s fees incurred during the period in which 

Airgas’s claim under the Texas Theft Liability Act was pending, and that the 

nonsuit of Airgas’s claims against the Individual Employees should be with 

prejudice.

III. Malicious prosecution claims

After the close of the litigation of Airgas’s claims, IWS and the Individual 

Employees (excluding Barton) filed suit against Airgas and its president, Brent 

Sparks, asserting a claim of malicious prosecution which was stated as follows:

18. Defendants instituted a claim against Plaintiffs in the Lawsuit 

for: (i) misappropriation of trade secrets and confidential information, 

(ii) violations of the Texas Theft Liability Act, (iii) breach of fiduciary 

duty, (iv) unfair competition and (v) conspiracy. Defendants also 

sought, and obtained, injunctive relief against Plaintiffs.
7

19. Defendants acted with malice in asserting these claims and 

seeking injunctive relief.

20. Defendants lacked probable cause for these claims and the 

injunctive relief.

21. Defendants[’] claims against each Plaintiff for violation of the 

Texas Theft Liability Act terminated in Plaintiffs[’] favor when the 

Court entered a take nothing judgment in favor of each Plaintiff.

22. All remaining claims against Plaintiff IWS terminated in IWS’ 

favor upon directed verdict of the Court, as reflected in the Final 

Judgment.

23. Defendant Airgas’s voluntary dismissal with prejudice of all 

remaining claims against all other Plaintiffs, as reflected in the Final 

Judgment, was a termination in Plaintiffs’ favor.

24. As a result of Defendants[’] conduct described herein, Plaintiffs 

suffered actual and consequential damages within the jurisdictional 

limits of this Court including, but not limited to: (i) legal fees and 

costs, (ii) lost profits, (iii) lost income, (iv) lost business opportunities 

and (v) mental anguish.

On Airgas and Sparks’s motion for partial summary judgment, the trial court 

dismissed the Individual Employees’ claims for malicious prosecution, but it

allowed IWS to proceed with its malicious prosecution claim. At trial, the court 

directed a verdict in Airgas’s favor on a separate claim for tortious interference 

with prospective business relationships that IWS and the Individual Employees had 
8

asserted in an amended petition. However, the court denied Airgas’s request for a 

directed verdict on IWS’s malicious prosecution claim.

At trial, Rogstad, who became president of IWS after quitting Airgas, 

testified that the TRO in the underlying litigation prevented the salespeople from 

fulfilling their jobs because “they were scared that if they went out and tried to get 

a customer that it could hurt them in the lawsuit itself,” and that he himself ignored 

phone calls from customers with whom he had dealt in the past. He further 

testified that customers refrained from doing business with IWS because of the 

ongoing litigation, and that some customers did not want to be involved with IWS 

after having their records subpoenaed by Airgas. A former Aeriform customer and 

a former Gulf Oxygen customer each testified that they wanted to switch their 

business to IWS after their preferred salesmen moved there, but they decided not to 

do so in order to avoid involving themselves in a lawsuit.

The jury rendered a special verdict on IWS’s claim against Airgas for 

malicious prosecution. The jury answered “yes” to the question of whether Airgas 

maliciously prosecuted IWS in the underlying litigation. In response to the 

question of what sum of money would fairly and reasonably compensate IWS for 

its damages in defending the underlying litigation, from the commencement of 

Airgas’s counterclaim through entry of a final judgment, the jury answered 

$140,000 for attorney’s fees and $224,482.72 for litigation costs and expenses. 
9

The jury was not asked whether IWS was entitled to other damages, except for 

exemplary damages which the jury did not award.

In its final judgment, the trial court entered a money judgment against 

Airgas in favor of IWS, ordered that IWS take nothing against Sparks, and ordered 

that the Individual Employees take nothing against Airgas and Sparks. Airgas and 

the Individual Employees timely filed notices of appeal.

Analysis

I. Airgas’s appeal

Airgas raises six issues on appeal: (1) legal and factual sufficiency of the 

evidence that IWS suffered a “special injury,” which is an element of malicious 

prosecution; (2) legal and factual sufficiency of the evidence to support other 

elements of IWS’s malicious prosecution claim; (3) admission of evidence 

concerning events that occurred after Airgas had sought the TRO in the original 

litigation; (4) refusal to give certain jury instructions; (5) the award of attorney’s 

fees as IWS’s sole measure or damages (or, alternatively, failure to limit the 

measure of attorney’s fees to only those incurred during the period the TRO was in 

effect); and (6) collateral estoppel with respect to IWS’s claim for the attorney’s 

fees that it incurred in the underlying litigation.

We focus on Airgas’s first issue, which is dispositive of its appeal. Airgas 

argues that there was legally and factually insufficient evidence to support a 
10

finding that IWS had suffered “special injury,” which is an essential element of 

malicious prosecution. Airgas contends that the attorney’s fees and litigation costs, 

which are the only damages that IWS sought and recovered, do not constitute 

special injury for the purpose of a malicious prosecution claim. Airgas further 

argues that the TRO obtained by Airgas in the underlying litigation does not satisfy 

the special injury requirement of a malicious prosecution claim which, according 

to Airgas, requires the physical detention of a person or physical seizure of 

property.

IWS argues that the TRO in the underlying litigation constituted an 

“injunction” that interfered with its person and property, thereby satisfying the 

special injury requirement as a matter of law. IWS contends that the law of Texas 

concerning malicious prosecution is consistent with that of other jurisdictions, and 

it relies upon cases from various other jurisdictions which purportedly demonstrate 

that the TRO at issue produced a special injury.

A. Standard of review

In a legal sufficiency, or no-evidence, review, we determine whether the 

evidence would enable reasonable and fair-minded people to reach the verdict 

under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will 

sustain a no-evidence point when:

(a) there is a complete absence of evidence of a vital fact, (b) the court 

is barred by rules of law or of evidence from giving weight to the only 
11

evidence offered to prove a vital fact, (c) the evidence offered to 

prove a vital fact is no more than a mere scintilla, or (d) the evidence 

conclusively establishes the opposite of the vital fact.

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). In 

making this determination, we credit favorable evidence if a reasonable fact-finder 

could, and we disregard contrary evidence unless a reasonable fact-finder could 

not. City of Keller, 168 S.W.3d at 827.

In reviewing a factual sufficiency complaint, we must first examine all of the 

evidence. Lofton v. Tex. Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986). After 

considering and weighing all the evidence, we set aside the fact finding only if it is 

so contrary to the overwhelming weight of the evidence as to be clearly wrong and 

unjust. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998); Cain 

v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

B. Special injury requirement

The Supreme Court of Texas observed over 150 years ago, “Every one is 

liable to be harassed and injured in his property and feelings by unfounded suits to 

recover of him property which is his own, but this is not an injury for which he can 

have legal redress.” Haldeman v. Chambers, 19 Tex. 1, 53 (1857). Although there 

is no general cause of action for being subjected to an unsuccessful lawsuit, Texas 

recognizes the tort of malicious prosecution. See Tex. Beef Cattle Co. v. Green, 

921 S.W.2d 203, 207 (Tex. 1996). “To prevail in a suit alleging malicious 
12

prosecution of a civil claim, the plaintiff must establish: (1) the institution or 

continuation of civil proceedings against the plaintiff; (2) by or at the insistence of 

the defendant; (3) malice in the commencement of the proceeding; (4) lack of 

probable cause for the proceeding; (5) termination of the proceeding in plaintiff’s 

favor; and (6) special damages.” Id.; cf. Kroger Tex. Ltd. P’ship v. Suberu, 216 

S.W.3d 788, 792 n.3 (Tex. 2006) (listing similar elements for claim of malicious 

criminal prosecution). The sixth element of “special damages” has also been 

called “special injury.” See, e.g., Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 

128 (Tex. App.—Houston [14th Dist.] 1994, no writ). The required damages or 

injury are termed “special” to distinguish them from the “ordinary losses incident 

to defending a civil suit, such as inconvenience, embarrassment, discovery costs, 

and attorney’s fees.” See Tex. Beef, 921 S.W.2d at 208.1

“The rule is firmly established in Texas which denies an award of damages 

for the prosecution of civil suits, with malice and without probable cause, unless 

the party sued suffers some interference, by reason of the suit, with his person or 

property.” Butler v. Morgan, 590 S.W.2d 543, 545 (Tex. Civ. App.—Houston [1st 

Dist.] 1979, writ ref’d n.r.e.) (citing Pye v. Cardwell, 222 S.W. 153 (Tex. 1920)). 

 

1

The term “special damages” has different meanings in the contexts of other 

torts. See, e.g., Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 767 (Tex. 

1987) (business disparagement); Williams v. Jennings, 755 S.W.2d 874, 884 

(Tex. App.—Houston [14th Dist.] 1988, writ denied) (slander of title).
13

Thus, Texas law requires “actual interference with the defendant’s person (such as 

an arrest or detention) or property (such as an attachment, an appointment of 

receiver, a writ of replevin or an injunction)” in order to meet the special injury 

requirement. Sharif-Munir-Davidson Dev. Corp. v. Bell, 788 S.W.2d 427, 430 

(Tex. App.—Dallas 1990, writ denied) (holding that recording a notice of lis 

pendens did not constitute the required “actual seizure” of property necessary to 

constitute special injury). When the alleged interference pertains to a person, 

appellate courts have affirmed judgments for malicious prosecution when the 

claimant was physically detained, even if the detention lasted a relatively short 

time. See, e.g., Pendleton v. Burkhalter, 432 S.W.2d 724, 728 (Tex. Civ. App.—

Houston [1st Dist.] 1968, writ ref’d n.r.e.); Lindsay v. Woods, 27 S.W.2d 263, 268 

(Tex. Civ. App.—Amarillo 1930, no writ). When the alleged interference pertains 

to property, actual seizure similarly meets the standard. See, e.g., Pye, 222 S.W. at 

153–54; Bell, 788 S.W.2d at 430. In short, the kind of interference with person or 

property required to meet the special injury requirement is “physical interference.” 

See Tex. Beef, 921 S.W.2d at 209.

Ordinary interferences with persons and property that any party suffers 

incident to a civil suit are not of the type that supports an action for malicious 

prosecution. See Tex. Beef, 921 S.W.2d at 208–09; Butler, 590 S.W.2d at 545; 

Blanton v. Morgan, 681 S.W.2d 876, 878 (Tex. App.—El Paso 1984, writ ref’d 
14

n.r.e.). For instance, neither a deposition nor subpoena duces tecum constitute “the 

type of ‘detention’ or ‘seizure’ contemplated by the Texas courts” to meet the 

special injury requirement. Ross, 892 S.W.2d at 130.

Moreover, Texas courts of appeals have consistently declined to hold that 

the special injury requirement may be satisfied by consequential damages resulting 

from the underlying suit, such as attorney’s fees and litigation costs,2loss of 

professional or personal reputation,3humiliation,4 mental anguish,5loss of business 

and contracts,6pecuniary and economic losses,7diversion of time and attention to 

 

2

See Toranto v. Wall, 891 S.W.2d 3, 5 (Tex. App.—Texarkana 1994, no 

writ); Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 128 (Tex. App.—

Houston [14th Dist.] 1994, no writ); Martin v. Trevino, 578 S.W.2d 763, 766 

(Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.).

3

See Butler v. Morgan, 590 S.W.2d 543, 544–45 (Tex. Civ. App.—Houston 

[1st Dist.] 1979, writ ref’d n.r.e.); Finlan v. Dallas Indep. Sch. Dist., 90 

S.W.3d 395, 406 (Tex. App.—Eastland 2002, pet. denied); Martin, 578 

S.W.2d at 766.

4

See Butler, 590 S.W.2d at 544–45; Haygood v. Chandler, No. 12-02-00239, 

2003 WL 22480560, at *5 (Tex. App.—Tyler Oct. 31, 2003, pet. denied) 

(mem. op.).

5

See Butler, 590 S.W.2d at 544–45; Haygood, 2003 WL 22480560, at *5; 

Toranto, 891 S.W.2d at 5.

6

See Butler, 590 S.W.2d at 544–45; Haygood, 2003 WL 22480560, at *5; 

Ross, 892 S.W.2d at 128.

7

See Finlan, 90 S.W.3d at 406; Ross, 892 S.W.2d at 128.
15

defending against the suit,8increased insurance premiums,9and loss of ability to 

obtain credit.10 “But once the special injury hurdle has been cleared, that injury 

serves as a threshold for recovery of the full range of damages incurred as a result 

of the malicious litigation.” Tex. Beef, 921 S.W.2d at 209.

The outcome of Airgas’s legal and factual sufficiency challenge thus turns 

on whether there was evidence to establish that IWS suffered a “special injury” or 

“special damages” in the underlying litigation. In Texas Beef Cattle Co. v. Green, 

921 S.W.2d 203 (Tex. 1996), the Supreme Court of Texas stated that to satisfy the 

special injury requirement, “[t]here must be some physical interference with a 

party’s person or property in the form of an arrest, attachment, injunction, or 

sequestration.” Tex. Beef, 921 S.W.2d at 209 (citing Bell, 788 S.W.2d at 430).11 

 

8

See Butler, 590 S.W.2d at 544–45; Toranto, 891 S.W.2d at 5; Ross, 892 

S.W.2d at 128.

9

See Butler, 590 S.W.2d at 544–45; Haygood, 2003 WL 22480560, at *5; 

Moiel v. Sandlin, 571 S.W.2d 567, 571 (Tex. Civ. App.—Corpus Christi 

1978, no writ).

10 See Finlan, 90 S.W.3d at 406.

11 The formulation of the special injury requirement in Texas Beef Cattle Co. v. 

Green, 921 S.W.2d 203 (Tex. 1996), appears to be ultimately traceable to 

three Texas authorities: Pyre v. Cardwell, 222 S.W. 153, 153 (Tex. 1920) 

(“The rule is firmly established in Texas which denies an award of damages 

for the prosecution of civil suits, with malice and without probable cause, 

unless the party sued suffers some interference, by reason of the suits, with 

his person or property.”); St. Cyr v. St. Cyr, 767 S.W.2d 258, 259 (Tex. 

App.—Beaumont 1989, writ denied) (stating that special injury “means 
16

IWS relies on the foregoing statement in Texas Beef to argue that the TRO in the 

underlying litigation constituted a special injury for which it was entitled to 

recover attorney’s fees and other legal expenses and costs. The TRO enjoined 

IWS and its employees from contacting or hiring Airgas employees, and from 

contacting any customers that the Individual Employees had while working for 

their former employers that were not already customers of IWS. Thus, IWS 

argues, the TRO constituted an “injunction” that physically interfered with its 

person and property, which is all that Texas Beef requires to clear the “special 

injury hurdle” that allows recovery for its other damages, such as attorney’s fees.

If we adopted IWS’s understanding of Texas Beef, virtually any person 

whose person or property is subject to a restraining order or similar injunction has 

thereby suffered a special injury, since almost any injunction or restraining order 

interferes with the defendant’s freedom of action or with his free use of his 

property, or both. See Qwest Commc’ns Corp. v. AT&T Corp., 24 S.W.3d 334, 

336 (Tex. 2000) (“One function of injunctive relief is to restrain motion and to 

 

‘actual physical detention of a person or seizure of his property’” (quoting 

Rodriguez v. Carroll, 510 F. Supp. 547, 553 (S.D. Tex. 1981)); and Moiel v. 

Sandlin, 571 S.W.2d 567, 570 (Tex. Civ. App.—Corpus Christi 1978, no 

writ) (“Texas and other jurisdictions adhering to the special injury 

requirement in malicious prosecution actions have required actual 

interference with the defendant’s person (such as an arrest or detention) or 

property (such as an attachment, an appointment of a receiver, a writ of 

replevin or an injunction).”).
17

enforce inaction.”); DAN B. DOBBS, THE LAW OF TORTS 417 § 593 (2d ed. 2011) 

(“Provisional remedies almost always impose constraints on persons or property 

before trial on the merits.”); cf. Ross, 892 S.W.2d at 130 (“If we were to hold that 

[a deposition or subpoena duces tecum] constituted detention or seizure for the 

purposes of a malicious prosecution action, then almost every suit filed would meet 

the damage element of the cause of action.”). However, a closer review of Texas 

jurisprudence concerning the special injury requirement does not support IWS’s 

expansive reading.

As Texas courts have long held, the special injury giving rise to a malicious 

prosecution claim must be interference with a person or his property. See, e.g.,

Tex. Beef, 921 S.W.2d at 209; Pye, 222 S.W. at 153. In this case, the TRO 

interfered with IWS and its employees’ persons, insofar it prohibited them from 

engaging in certain activities. The TRO did not directly affect their property, 

however, except to the extent that it might have deprived them of the opportunity 

to hire certain new employees or engage certain new business contacts. Such 

incidental effects on property do not constitute special injury. See Butler, 590 

S.W.2d at 545; cf. Tex. Beef, 921 S.W.2d at 209 (discussing temporary injunction 

preventing collection of auction proceeds for sale of cattle and preventing sale of 

other cattle). Therefore, we only consider whether the TRO produced the type of 

interference with a person that qualifies as a special injury.
18

The special injury requirement has its origin in English common law. See 

Masterson v. Brown, 72 F. 136, 137–38 (5th Cir. 1896). In the ancient common 

law, a party could maintain an action for malicious prosecution of a civil suit 

without having to show a special injury. See Woods v. Finnell, 13 Bush 628, 632 

(Ky. 1878). Later, in the thirteenth century, the Statute of Marlbridge permitted 

parties who successfully defended against certain kinds of actions to recover costs. 

See Matterson, 72 F. at 137–38; Woods, 13 Bush at 632. Because this and similar 

statutes were ordinarily thought to provide an adequate remedy for a wrongfully 

instituted suit, a successful defendant generally did not have a malicious 

prosecution claim upon termination of the suit in his favor. Matterson, 72 F. at

137–38; Woods, 13 Bush at 632. Nonetheless, suits for malicious prosecution were 

still recognized when the successful defendant in the underlying suit showed that 

he had sustained a special injury. Matterson, 72 F. at 138. “In all such cases the 

plaintiff [in the underlying suit] must have gone beyond the proper remedy for the 

enforcement of his claim, such as procuring an illegal order of arrest, or requiring 

excessive bail before the action could be maintained.” Woods, 13 Bush at 632; see 

also Smith v. Mich. Buggy Co., 51 N.E. 569, 571 (Ill. 1898) (observing that after 

Statute of Marlbridge, “it came to be held that an action for malicious prosecution 

would not lie in civil actions, unless in cases where there had been arrest of the 

person, or seizure of property, or other special injury”).
19

American jurisdictions have split on whether a party must show a special 

injury in order to establish a claim for malicious prosecution. W. PAGE KEETON ET 

AL., PROSSER & KEETON ON TORTS § 120, at 889 (5th ed. 1984). The Restatement 

(Second) of Torts recognizes this split and provides two alternative descriptions of 

the tort: § 674 and § 677. Texas courts of appeals have recognized that § 674 of 

the Restatement, which omits the special injury requirement,12 does not fully 

reflect the law of this state concerning malicious prosecution. See McCall v. Tana 

Oil & Gas Corp., 82 S.W.3d 337, 350 n.7 (Tex. App.—Austin 2001) (observing 

that the special injury requirement of Texas Beef is not required by § 674), rev’d on 

other grounds, 104 S.W.3d 80 (Tex. 2003); Toranto v. Wall, 891 S.W.2d 3, 6 (Tex. 

App.—Texarkana 1994, no writ) (invoking special injury rule to implicitly reject

appellant’s request that the court adopt § 674). On the other hand, for “courts that 

have been unwilling to accept the broader rule stated in § 674,” the Restatement

provides in § 677 that one is subject to liability for malicious prosecution of civil 

proceedings that cause another “to be arrested or deprived of the possession of his 

 

12 See RESTATEMENT (SECOND) OF TORTS § 674 (1977) (“One who takes an 

active part in the initiation, continuation or procurement of civil proceedings 

against another is subject to liability to the other for wrongful civil 

proceedings if (a) he acts without probable cause, and primarily for a 

purpose other than that of securing the proper adjudication of the claim in 

which the proceedings are based, and (b) except when they are ex parte, the 

proceedings have terminated in favor of the person against whom they are 

brought.”)
20

land or chattels or other things.” RESTATEMENT (SECOND) OF TORTS § 677 & 

cmt. a (1977).

Texas has long been one of those jurisdictions unwilling to dispense with the 

special injury requirement, and its courts have consistently rebuked litigants’ 

attempts to have that requirement altered or abrogated.13 An early opinion of the 

Supreme Court of Texas reflects this state’s adoption of the special injury 

requirement:

To give a right to such redress, there must not only be a loss, but it 

must have been caused by the violation of some legal right. . . . Had 

the suit been for the wrongful suing out of the writ of sequestration or 

attachment, by which the defendant’s property was seized and he 

sustained damage, the action might have been maintained.

Smith v. Adams, 27 Tex. 28, 29–30 (1863). In another case, the Supreme Court 

rejected the argument that a party could have an action for malicious prosecution 

arising out of “an ordinary civil suit, in which no extraordinary process was sued 

out.” Salado Coll. v. Davis, 47 Tex. 131, 136 (1877). In yet another case, the 

 

13 See Am. Bd. of Obstetrics & Gynecology, Inc. v. Yoonessi, 286 S.W.3d 624, 

628–29 (Tex. App.—Dallas 2009, pet. denied) (rejecting appellant’s request 

that the special injury requirement be abandoned); Ross, 892 S.W.2d at 128 

(observing Texas’s adherence to the special injury requirement “for over one 

hundred years”); Toranto, 891 S.W.2d at 5 (declining to recognize new 

cause of action for malicious prosecution without special injury 

requirement); Martin, 578 S.W.2d at 766, 768 (rejecting argument that the 

special injury requirement is “outmoded in today’s society” and opining that 

“the general policy reasons for adopting the special damage rule in Texas 

remain viable today”).
21

Court alluded to the English common-law rationale for the special injury rule when 

it stated that:

the ground on which an action for malicious prosecution of a civil 

action, where there is no arrest of the person or seizure of the 

property, or other like injury, is denied, is, that the imposition of costs, 

on the prosecutor of the unfounded action, is the relief which the law 

gives, and this is imposed in the cause without resort to another 

action.

Johnson v. King & Davidson, 64 Tex. 226, 230–31 (1885). Relying on the three 

foregoing precedents, the Supreme Court observed in the early part of the twentieth 

century, “The rule is firmly established in Texas which denies an award of 

damages for the prosecution of civil suits, with malice and without probable cause, 

unless the party sued suffers some interference, by reason of the suits, with his 

person or property.” Pye, 222 S.W. at 153. The Court further echoed the English 

common-law rationale for the rule, which is that “the law makes the imposition of 

the costs the sole penalty for the wrongful prosecution of civil litigation.” Id. at 

153.

In Texas Beef, the Court recognized that other public policy considerations, 

besides the fact that a successful defendant is usually awarded costs in the 

underlying suit, underpin the special injury requirement:

The special damage requirement assures good faith litigants access to 

the judicial system without fear of intimidation by a countersuit for 

malicious prosecution. The special damage requirement also prevents 

successful defendants in the initial proceeding from using their 
22

favorable judgment as a reason to institute a new suit based on 

malicious prosecution, resulting in needless and endless vexatious 

lawsuits.

Texas Beef, 921 S.W.2d at 209 (quoting Martin, 578 S.W.2d at 768); see also 

Salado Coll., 47 Tex. at 136 (“[I]t seems to be the policy of the law to content 

itself with meting out something less than our ideas of natural justice would 

demand, rather than to increase the risks attending and discouraging such a resort, 

and at the same time add to the difficulties and intricacies of ordinary litigation.”). 

These same considerations have been discussed by other state supreme courts 

adhering to the special injury requirement.14

The common-law tort of malicious prosecution, when premised upon an 

interference with a person, historically required that the person seeking relief have 

been actually arrested.15 Consistent with this historical limitation, Texas appellate 

 

14 See, e.g., Curiano v. Suozzi, 469 N.E.2d 1324, 1328 (N.Y. 1984); Abbott v. 

Thorne, 76 P. 302, 303–05 (Wash. 1904); Smith v. Mich. Buggy Co., 51 N.E. 

569, 571–72; Norcross v. Otis Bros. & Co., 25 A. 575, 576 (Pa. 1893), 

abrogated by 42 Pa.C.S.A. § 8351(b); Pope v. Pollock, 46 Ohio St. 367, 

368–69 (1889); see also PROSSER & KEETON ON TORTS 889 § 120 (5th ed. 

1989).

15 See Wood v. Sutor, 8 S.W. 51, 52 (Tex. 1888) (holding that “one maliciously 

and without probable cause putting into operation the machinery of judicial 

proceedings, resulting in the arrest and trial of the accused, thereby incurs 

liability”); Haldeman v. Chambers, 19 Tex. 1, 53–54 (1857) (quoting 

treatises on cause of action for being arrested for lacking bail that had been 

wrongfully or excessively imposed in civil suit); Baten v. Houston Oil Co. of 

Tex., 217 S.W. 394, 399 (Tex. Civ. App.—Beaumont 1919, no writ) (“An 

‘arrest’ is an essential element of [malicious prosecution].”).
23

courts have long affirmed judgments in favor of plaintiffs who, after being arrested 

for a criminal offense, successfully recovered damages from their accusers for 

malicious prosecution.16 In a similar vein, Texas courts of appeals have recognized 

causes of action for malicious prosecution based upon “lunacy” proceedings that 

resulted in the detention of the complaining party.17 We have not discovered any 

Texas authority to support the proposition that someone has a claim for malicious 

prosecution because of an interference with his person that did not amount to a 

physical arrest or detention.

IWS relies upon two foreign authorities that it contends support the 

proposition that a temporary restraining order or injunction restraining a person 

from engaging in certain acts satisfies the common-law special injury requirement. 

 

16 See, e.g., Shannon v. Jones, 13 S.W. 477 (Tex. 1890); Cooper v. Langway, 

13 S.W. 179 (Tex. 1890); J.C. Penny Co. v. Ruth, 982 S.W.2d 586 (Tex. 

App.—Texarkana 1998, no writ); Rankin v. Saenger, 250 S.W.2d 465 (Tex. 

Civ. App.—El Paso 1962, writ ref’d n.r.e.); Meyer v. Viereck, 286 S.W. 894 

(Tex. Civ. App.—Galveston 1926, writ dism’d w.o.j.); Foster v. Bourgeois, 

253 S.W. 880 (Tex. Civ. App.—Austin 1923), aff’d, 259 S.W. 917 (Tex. 

1924); Missouri, K. & T. Ry. Co. of Tex. v. Groseclose, 134 S.W. 736 (Tex. 

Civ. App. 1911, writ denied); Kleinsmith v. Hamlin, 60 S.W. 994 (Tex. Civ. 

App. 1901, no writ); Chouquette v. McCarthy, 56 S.W. 956 (Tex. Civ. App. 

1900, writ denied).

17 See Daniels v. Conrad, 331 S.W.2d 411 (Tex. Civ. App.—Dallas 1959, writ 

ref’d n.r.e.); Pendleton v. Burkhalter, 432 S.W.2d 724 (Tex. Civ. App.—

Houston [1st Dist.] 1968, writ ref’d n.r.e.); Lindsay v. Woods, 27 S.W.2d 

263 (Tex. Civ. App.—Amarillo 1930, no writ); Suhre v. Kott, 193 S.W. 417, 

418 (Tex. Civ. App.—San Antonio 1917, no writ).
24

The North Carolina Court of Appeals held that the special injury requirement was 

satisfied when a wife obtained a protective order against her husband which 

prohibited communication with her and ordered him to stay away from the marital 

home. See Alexander v. Alexander, 567 S.E.2d 211, 214 (N.C. Ct. App. 2002). 

This protective order is distinguishable from the TRO in the present case, insofar 

that the protective order there “greatly interfered with the use and enjoyment of 

plaintiff’s personal property by ordering him to stay away from his home,” and 

thus was not an order that exclusively interfered with a person. Id. In the other 

case, a New Jersey court of chancery held that when a distributor obtained an 

injunction enjoining a supplier from dealing with the distributor’s competitors, the 

supplier had sustained a “special grievance.” Mayflower Indus. v. Thor Corp., 83 

A.2d 246, 252 (N.J. Super. Ct. Ch. Div. 1951). However, as in the North Carolina 

case, the injunction did not exclusively restrain a person, as it also prevented the 

supplier “from using, enjoying and dealing with its property.” Id.18

 

18 IWS also relies upon other foreign authorities examining the question of 

whether an injunction may give rise to a special injury, but it is apparent that 

the parties subject to injunction in those cases had been deprived of the use 

and enjoyment of their property. See Bank of Lyons v. Schultz, 399 N.E.2d 

1286, 1287–88 (Ill. 1980) (injunction prohibiting widow from receiving 

insurance proceeds); N. Oil Co. v. Socony Mobil Oil Co., 347 F.2d 81, 83 

(2d. Cir. 1965) (injunction prohibiting removal and reassembly of purchased 

storage tanks); Black v. Judelsohn, 251 A.D. 559, 559 (N.Y. App. Div. 

1937) (injunction prohibiting manufacturer from using machines that 

allegedly contained patent-infringing components).
25

IWS also relies upon a successful malicious prosecution case premised on an 

injunction that prevented a school board from permitting a contractor to work on a 

construction project. See Sigl, Inc. v. Bresnahan, 216 A.D. 634, 634 (N.Y. App. 

Div. 1926). However, this case is not persuasive because the plaintiff in that 

malicious prosecution suit was the contractor rather than the school board which 

was actually enjoined, see id. at 639, and following Texas Beef, third parties who 

suffer the incidental effects of an injunction against another party have not thereby 

suffered a special injury. See Tex. Beef, 921 S.W.2d at 210.

We must decide whether the TRO in this case satisfies Texas’s special injury 

requirement. In making our determination, we bear in mind the policies of the 

rule, which include “assur[ing] good faith litigants access to the judicial system” 

and limiting “needless and endless vexatious lawsuits.” See Tex. Beef, 921 S.W.2d 

at 209 (quoting Martin, 578 S.W.2d at 768). These policies command strict 

adherence to the requirements of the malicious prosecution tort. See Pendleton, 

432 S.W.2d at 728; accord Parker v. Dallas Hunting & Fishing Club, 463 S.W.2d 

496, 499 (Tex. Civ. App.—Dallas 1971, no writ). To recognize a special injury 

because a company and its employees were temporarily enjoined from contacting 

certain parties would effectively lower the special injury hurdle beneath what 

Texas courts have historically allowed. The lowered hurdle would discourage 

good faith litigants from safeguarding their rights by seeking temporary restraining 
26

orders, the purpose of which is to maintain the status quo between parties for a 

relatively short period. See Cannan v. Green Oaks Apts., Ltd., 758 S.W.2d 753, 

755 (Tex. 1988); TEX. R. CIV. P. 680. It would also incentivize successive 

litigation by giving parties who were only temporarily subject to a limited restraint 

the prospect of recovering all their litigation-related expenses. Such consequences 

would be at cross-purposes with the policies underpinning the special injury 

requirement.

In light of the foregoing policy interests and Texas precedents limiting 

special injury to physical restraints on a person or physical seizure of property, we 

hold, as a matter of law, that the TRO granted in favor of Airgas did not cause a 

special injury to IWS or its employees so as to support a claim for malicious 

prosecution. This result accords with multiple Texas authorities stating that only 

“physical interference” with a person, such as an arrest or detention, satisfies the 

special injury requirement. See Tex. Beef, 921 S.W.2d at 209; Ross, 892 S.W.2d at 

128; Bell, 788 S.W.2d at 430. The result also comports with § 677 of the 

Restatement, which defines a special injury as one party causing another “to be 

arrested or deprived of the possession of his land or chattels or other things.” See

RESTATEMENT (SECOND) OF TORTS § 677. The TRO in this case did not physically 

arrest or detain IWS or its employees, nor did it deprive them of their property. 

Therefore, there was legally insufficient evidence to sustain the jury’s finding that 
27

Airgas had maliciously prosecuted IWS in the underlying litigation. See City of 

Keller, 168 S.W.3d at 827; Havner, 953 S.W.2d at 711.

We sustain Airgas’s first issue. Consequently, it is unnecessary to address 

Airgas’s other issues raised on appeal. See TEX. R. APP. P. 47.1.

II. Individual Employees’ appeal

The Individual Employees’ claims for malicious prosecution against Airgas 

were dismissed on Airgas’s motion for partial summary judgment. Among other 

points, that motion asserted that the Individual Employees “have not properly 

alleged the requirement of special damages” and that “[t]here are no special

damages to any plaintiff as that requirement is interpreted at law.” Thus, Airgas 

effectively argued that “there is no evidence of one or more essential elements” of 

the Individual Employees’ malicious prosecution claim. TEX. R. CIV. P. 166a(i). 

In their second issue on appeal, the Individual Employees challenge the dismissal 

of their malicious prosecution claim on Airgas’s no-evidence ground.19

We review a trial court’s decision to grant a motion for summary judgment 

de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). 

We review the summary-judgment evidence in the light most favorable to the 

nonmovant, crediting evidence favorable to that party if reasonable jurors could, 

 

19 In their first issue, the Individual Employees challenge another ground on 

which Airgas moved for summary judgment: There is no evidence that the 

underlying suit terminated in the Individual Employees’ favor, which is a 

necessary element of a malicious prosecution claim.
28

and disregarding contrary evidence unless reasonable jurors could not. Mann 

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.

2009) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). When, 

as in this case, the trial court does not specify the ground upon which it relied for 

its ruling, we will affirm if any theory advanced by movant in its summaryjudgment motion is meritorious. See Joe v. Two Thirty Nine Joint Venture, 145 

S.W.3d 150, 157 (Tex. 2004).

In general, a party seeking a no-evidence summary judgment must assert 

that no evidence exists as to one or more of the essential elements of the 

nonmovant’s claim on which the nonmovant would have the burden of proof at 

trial. Finger v. Ray, 326 S.W.3d 285, 289–90 (Tex. App.—Houston [1st Dist.] 

2010, no pet.). Once the movant specifies the elements on which there is no 

evidence, the burden shifts to the nonmovant to raise a fact issue on the challenged 

elements. See TEX. R. CIV. P. 166a(i) (“The court must grant the motion unless the 

respondent produces summary judgment evidence raising a genuine issue of 

material fact.”). A no-evidence summary judgment will be sustained on appeal 

when (1) there is a complete absence of evidence of a vital fact, (2) the court is 

barred by rules of law or of evidence from giving weight to the only evidence 

offered by the nonmovant to prove a vital fact, (3) the nonmovant offers no more 

than a scintilla of evidence to prove a vital fact, or (4) the nonmovant’s evidence 
29

conclusively establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman, 

118 S.W.3d 742, 751 (Tex. 2003).

The only evidence of special injury that the Individual Employees presented 

in response to Airgas’s summary-judgment motion was the temporary restraining 

order preventing them from communicating with employees and certain customers 

of Airgas. As we already held with respect to Airgas’s appeal, the TRO in the 

underlying litigation did not produce a special injury as a matter of law. Because 

the Individual Employees failed to produce evidence of a special injury in response 

to Airgas’s summary-judgment motion, we hold that the trial court did not err in 

dismissing the Individual Employees’ claims for malicious prosecution. See TEX.

R. CIV. P. 166a(i); King Ranch, 118 S.W.3d at 751.

We overrule the Individual Employees’ second issue. Because the trial court 

could have dismissed the Individual Employees’ claims on the special-injury 

ground raised in Airgas’s and Sparks’s motion, we do not examine the Individual 

Employees’ first issue on appeal. See TEX. R. APP. P. 47.1; Joe, 145 S.W.3d at

157.
30

Conclusion

We reverse the judgment of the trial court in part, insofar as it awards money 

damages to IWS, and we render judgment that IWS take nothing. We affirm the 

judgment in all other respect.

Michael Massengale

Justice 

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.