The Houston [14th] Court of Appeals has reversed a trial court order denying a restaurant’s TCPA motion to dismiss a lawsuit alleging intentional infliction of emotional distress by restaurant employees.
Rolling Dough, Ltd. d/b/a Panera Bread v. Uju Anyadike (No. 14-25-00012-CV; February 24, 2026) arose from a dispute between a Panera Bread store and a customer. Plaintiff alleged that she pre-ordered and pre-paid for items from the store, but the employee who sold the items refused to give her a receipt, explaining that she would get the receipt when she picked up the items. When she returned to pick them up, a different employee told her that they didn’t have any such order. A store manager then refused to check the store records at her request, explaining that she “often see[s] people like [Plaintiff] do the same thing and come to Panera to claim they paid for an item, when they did not.” Plaintiff offered to show her an electronic copy of her credit card purchase history, but the manager refused. When Plaintiff didn’t leave, the manager threatened to have her arrested for theft. Both parties contacted police. The responding officer checked Plaintiff’s proof of payment and made no arrest. Plaintiff sued Panera for intentional infliction of emotional distress. Panera responded by filing a TCPA motion to dismiss, which the trial court denied. Panera appealed.
In an opinion by Justice Jewell, the court of appeals reversed and remanded. The first issue was whether the TCPA applied to Plaintiff’s claim. Panera argued that Plaintiff’s lawsuit was filed in direct response to its exercise of the right of free speech on a matter of public concern, i.e., reporting a possible theft to police. Plaintiff specifically alleged that the Panera employee’s “conduct became extreme and outrageous when the Panera Bread Manager accused [her] of theft for asking that Panera Bread give her the pastry she already prepaid.” The TCPA thus applied to the employee’s communication. Plaintiff argued further that the employee’s conduct was excluded from the TCPA under its exemptions for bodily injury and the sale of goods. But Plaintiff failed to produce any “evidence that the employee’s challenged conduct arose out of a commercial transaction involving the goods or services Panera Bread provides, as required to invoke the commercial-speech exception” (citations omitted). Plaintiff’s attempt to characterize her harm as “personal injury” likewise failed because her alleged injuries did not constitute “physical damage to a person’s body,” as required by the TCPA.
The burden then shifted to Plaintiff to establish by clear and specific evidence a prima facie case for each element of her intentional infliction of emotional distress claim. As in all intentional infliction claims, the “extreme and outrageous conduct” element is the highest hill to climb, requiring the conduct “to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” (citation omitted). Here Plaintiff alleged that Panera’s employees treated her that way because of her race, though she didn’t present any evidence that the employees said or did anything of that nature. Instead, they called the police, which Texas law gave them the right to do “even when the reporting party mistakenly identifies the wrong person.” Furthermore, “reporting of criminal activity to the police does not constitute ‘extreme and outrageous behavior’” (citation omitted). The court recognized Plaintiff’s likely embarrassment and humiliation associated with a public accusation of theft, but that doesn’t rise to the level of prima facie evidence of “extreme and outrageous conduct.”
The court thus reversed the trial court’s order, dismissed Plaintiff’s claim, and remanded to the trial court for a determination of attorney’s fees and costs.
