kim-hackler-individually-and-as-next-friend-for-ch-a-minor-and-steve ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-397-CV
KIM HACKLER, INDIVIDUALLY AND APPELLANTS
AS NEXT FRIEND FOR C.H., A MINOR,
AND STEVE HACKLER, INDIVIDUALLY
AND AS NEXT FRIEND FOR C.H., A MINOR
V.
N.D., INGRID DEPINTO, JOE DEPINTO, APPELLEES
T.W., KELLY WHEELER, STEVE WHEELER,
A.M., JANE MCBRIDE, PAUL MCBRIDE,
L.G., KATHY GLENN, AND BILL GLENN
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FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION AND B ACKGROUND
This is a summary judgment appeal. Seventh- and eighth-grade students
in a middle-school journalism class made verbal and written statements to their
1
… See Tex. R. App. P. 47.4.
journalism teacher, to other school officials, and to on-campus police following
a classroom incident involving a fellow classmate, C.H. In the statements, the
students accused C.H. of making threats to them.2 As a result of the
statements, Appellants, who are the parents of C.H., sued Appellees, who are
students from the journalism class and those students’ parents,3 alleging causes
of action for libel, slander, negligence, gross negligence, and asserting that the
Appellee parents were vicariously liable for any torts of their children. The
DePinto Appellees, Wheeler Appellees, McBride Appellees, and Glenn Appellees
filed separate motions for summary judgment, which the trial court granted
without specifying the grounds for doing so. Appellants perfected this appeal,
raising four issues challenging the trial court’s summary judgment and
complaining of a cost bond that the trial court required them to post. We will
affirm.
II. S TANDARD OF R EVIEW
A defendant who conclusively negates at least one essential element of
a cause of action is entitled to summary judgment on that claim. IHS Cedars
2
… The Tarrant County District Attorney’s office brought criminal charges
for terroristic threats against C.H. but later dismissed the charges on the
condition that C.H. would perform twenty-four hours of community service.
3
… Appellants also sued various school administrators, but they are not
involved in this appeal as appellees or otherwise.
2
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.
2004); see Tex. R. Civ. P. 166a(b), (c). When reviewing a summary judgment,
we take as true all evidence favorable to the nonmovant, and we indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. IHS
Cedars Treatment Ctr., 143 S.W.3d at 798.
A defendant is entitled to summary judgment on an affirmative defense
if the defendant conclusively proves all the elements of the affirmative defense.
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). To
accomplish this, the defendant-movant must present summary judgment
evidence that establishes each element of the affirmative defense as a matter
of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).
III. A PPELLANTS’ S TRICT L IABILITY P LEADING
D OES N OT S TATE A N INDEPENDENT C AUSE OF A CTION
In their first issue, Appellants argue that the trial court erred by granting
a final summary judgment because Appellees’ motions for summary judgment
failed to address Appellants’ strict liability claim. Appellants contend that they
included this strict liability claim in their fourth amended original petition, which
was filed after Appellees filed their motions for summary judgment and before
the summary judgment hearing. Appellants’ fourth amended original petition
provides, in pertinent part,
3
COUNT 3-STRICT LIABILITY
Because on all occasions alleged herein, in paragraph IV, 4,
Defendants [DePinto, Wheeler, McBride, and Glenn] were private
parties and published false and defamatory statements regarding
[C.H.], also a private party, regarding matters that were private, not
public, matters, Defendants are strictly liable to Plaintiffs for the
false and defamatory oral and written statements, which
proximately caused harm to Plaintiffs.
This paragraph of Appellants’ pleading, however, does not state an
independent, stand-alone cause of action. It simply pleads a defamation cause
of action and claims a particular standard of proof is applicable to damages in
a defamation action when a private plaintiff sues a non-media defendant.4 See
generally 4 J. Hadley Edgar, Jr. & James B. Sales, Texas Torts and Remedies
§§ 52.01, 52.09 (2008); see also WFAA-TV, Inc. v. McLemore, 978 S.W.2d
568, 571 (Tex. 1998) (stating that to maintain a defamation cause of action,
the plaintiff must prove that the defendant (1) published a statement; (2) that
was defamatory concerning the plaintiff; (3) while acting with either actual
malice, if the plaintiff was a public official or public figure, or negligence, if the
plaintiff was a private individual, regarding the truth of the statement), cert.
denied, 526 U.S. 1051 (1999); Abdel-Hafiz v. ABC, Inc., 240 S.W.3d 492,
505 (Tex. App.—Fort Worth 2007, pet. denied) (same). Because Appellants’
4
… At oral argument, Appellants’ attorney conceded that strict liability in
the defamation context was a standard of proof that may be applied in a
defamation suit, i.e., to damages.
4
allegations in Count 3 of their fourth amended original petition attempt to plead
a defamation cause of action, not an independent cause of action that would
deprive the trial court’s summary judgment of finality for failure to dispose of
all causes of action,5 we hold that the trial court’s order granting Appellees’
motions for summary judgment properly disposed of all causes of action
pending against Appellees.6 Accord generally Science Spectrum, Inc. v.
Martinez, 941 S.W.2d 910, 912 (Tex. 1997) (holding that “[a] motion for
summary judgment must itself expressly present the grounds upon which it is
5
… Appellants point out that at the hearing on Appellees’ motions for
summary judgment the trial court stated as follows:
[APPELLANTS’ ATTORNEY]: But, Your Honor, we have the
strict liability pleading, and there is nothing in their motions for
summary judgment that addresses that.
THE COURT: Yeah, I understand that. And if they want to
file a summary judgment motion as to your new pleading at a later
time, then we will deal with that at a later time.
But the trial court subsequently signed a final summary judgment. The trial
court’s judgment prevails and controls over any on-the-record comments made
by the trial court. See, e.g., Nine Greenway Ltd. v. Heard, Goggan, Blair &
Williams, 875 S.W.2d 784, 787 (Tex. App.—Houston [1st Dist.] 1994, writ
denied) (stating that written judgment controls over the trial court’s oral
pronouncements).
6
… After signing the summary judgment, the trial court signed an order
severing out Appellants’ claims against the school administrators. Appellants’
complaint in their first issue is that the summary judgment for Appellees is not
final because it failed to dispose of Appellants’ purported strict liability claim
asserted against Appellees, not that it failed to dispose of all parties.
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made, and must stand or fall on these grounds alone”); Cherokee Water Co. v.
Ross, 698 S.W.2d 363, 365 (Tex. 1985) (orig. proceeding) (holding that a
summary judgment that does not dispose of all issues and parties is
interlocutory and may not be appealed absent statutory authority permitting an
interlocutory appeal). We overrule Appellants’ first issue.
IV. D EP INTO A PPELLEES’ N O-E VIDENCE
M OTION FOR S UMMARY J UDGMENT IS S UFFICIENTLY S PECIFIC
In their second issue, Appellants argue that the trial court erred by
granting the no-evidence motion for summary judgment filed by the DePinto
Appellees. Appellants do not challenge the merits of the trial court’s ruling but
instead argue only that the DePinto Appellees’ no-evidence motion failed to
identify the elements of the claims on which the DePinto Appellees claimed no
evidence existed.7
A no-evidence motion must state the elements as to which there is no
evidence and must be specific in challenging the evidentiary support for a claim
or defense; rule 166a(i) does not authorize conclusory motions or general no-
evidence challenges to an opponent’s case. Tex. R. Civ. P. 166a(i) & cmt. A
no-evidence challenge that only generally challenges the sufficiency of the
7
… Within their second issue, Appellants also argue that the DePinto
Appellees failed to address Appellants’ “claim” for strict liability, but we have
disposed of this argument above.
6
nonmovant’s case and fails to state specific elements is fundamentally
defective and insufficient to support summary judgment as a matter of law.
Mott v. Red’s Safe & Lock Servs., Inc., 249 S.W.3d 90, 98 (Tex.
App.—Houston [1st Dist.] 2007, no pet.). But a specific attack on the
evidentiary components that might prove a certain element is unnecessary, as
long as the element itself is specifically challenged. See Timothy Patton,
Summary Judgment in Texas, Practice, Procedure and Review § 5.03[2][b] (3d
ed. 2006).
The DePinto Appellees’ no-evidence summary judgment motion set forth
specifically fifteen elements on which they claimed that no evidence existed.
This list includes the allegations that there was no evidence: (1) that they had
breached a duty of care to Appellants; (2) that Appellants’ alleged special or
general damages were reasonably foreseeable to the DePinto Appellees; (3) that
Appellants’ reputation in the community had been damaged; (4) that Appellants
had been exposed to public hatred, ridicule, or financial injury; (5) that
Appellants’ alleged special or general damages were proximately caused by the
DePinto Appellees’ alleged negligence or intentional conduct; and (6) that
Appellants’ alleged special damages were reasonable, necessary, or causally
connected to the DePinto Appellees’ alleged acts and omissions or intentional
conduct. These no-evidence challenges include challenges to at least one
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element of every claim asserted by Appellants and are sufficiently specific to
pass rule 166a(i) muster. See Tex. R. Civ. P. 166a(i) & cmt.; Fieldtech
Avionics & Instruments, Inc. v. Component Control.com, Inc., 262 S.W.3d
813, 824 (Tex. App.—Fort Worth 2008, no pet.) (holding that statements that
“there is no evidence that Fieldtech did not receive the Software it leased or
that the Software did not perform” and “there is simply no evidence of any
misrepresentation or unconscionable act by Component Control” were
sufficiently specific to pass rule 166a(i) muster).
We overrule Appellants’ second issue.
V. A FFIRMATIVE D EFENSES N OT C HALLENGED ON A PPEAL
In their third issue, Appellants argue that the trial court erred by granting
summary judgment for the Wheeler, Glenn, and McBride Appellees. The Glenn
Appellees and the McBride Appellees pleaded the affirmative defense of
substantial truth and moved for summary judgment on the ground that they had
conclusively established this affirmative defense. In their brief in this court,
Appellants do not challenge the trial court’s summary judgment on the ground
that Appellees failed to conclusively establish every element of the affirmative
defense of substantial truth. In fact, after Appellees brought to our attention
that Appellants had failed to challenge on appeal every possible basis for the
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trial court’s summary judgment, Appellants’ asserted in their reply brief that
they were not required to address the affirmative defense of substantial truth. 8
When a trial court does not specify the grounds upon which summary
judgment is based, an appellant must specifically challenge every possible
ground for rendition of summary judgment. See Malooly Bros., Inc. v. Napier,
461 S.W.2d 119, 121 (Tex. 1970); Jones v. Hyman, 107 S.W.3d 830, 832
(Tex. App.—Dallas 2003, no pet.). An appellant must attack all independent
bases that support a trial court’s ruling. Hong Kong Dev., Inc. v. Nguyen, 229
S.W.3d 415, 456 (Tex. App.—Houston [1st Dist.] 2007, no pet.). If an
appellant does not challenge an independent ground supporting the trial court’s
judgment, we must accept the validity of the ground and affirm on that basis.
See id.; see also Wilson v. Andrews, No. 02-06-00429-CV, 2007 WL
2460356, at *2–3 (Tex. App.—Fort Worth Aug. 31, 2007, pet. denied) (mem.
op.) (affirming summary judgment on affirmative defenses not challenged by
appellants); Bracy v. Wal-Mart Stores, Inc., No. 02-06-00223-CV, 2007 WL
1228642, at *2 (Tex. App.—Fort Worth Apr. 26, 2007, no pet.) (mem. op.)
(same).
8
… To alleviate the possibility that a mistaken statement had been placed
in Appellants’ reply brief, Appellants’ counsel was asked, and confirmed, during
oral argument that it was her position that Appellants had no duty to discuss
or to refute on appeal Appellees’ affirmative defense of substantial truth.
9
Here, Appellants do not argue that it was error for the trial court to grant
summary judgment for the Glenn and McBride Appellees on their affirmative
defense of substantial truth. Because summary judgment may have been
granted, properly or improperly, on this affirmative defense—a ground that
Appellants do not challenge—we must affirm the summary judgment granted
in favor of the Glenn and McBride Appellees. See, e.g., Malooly Bros., Inc.,
461 S.W.2d at 121. We overrule Appellants’ third issue as it relates to the
Glenn Appellees and the McBride Appellees.
The Wheeler Appellees pleaded and moved for summary judgment on the
affirmative defense of qualified privilege. Appellants do not challenge on appeal
this basis for the trial court’s summary judgment for the W heeler Appellees.
Because summary judgment may have been granted, properly or improperly, on
this affirmative defense—a ground that Appellants do not challenge—we must
affirm the summary judgment granted in favor of the Wheeler Appellees. See,
e.g., Malooly Bros., Inc., 461 S.W.2d at 121. We overrule the remainder of
Appellants’ third issue relating to the Wheeler Appellees.9
9
… Because the trial court’s summary judgment can be affirmed for the
Wheeler, Glenn, and McBride Appellees on their affirmative defenses, we need
not address the other complaints Appellants raise in issue three concerning the
summary judgment granted for the Wheeler, Glenn, and McBride Appellees.
See Tex. R. App. P. 47.1.
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VI. A PPROPRIATE C OST B OND
During discovery in the underlying litigation, the DePinto Appellees
noticed C.H.’s deposition; they twice agreed to reschedule it and renoticed the
deposition. As the third scheduled date for C.H.’s deposition approached,
Appellants notified the DePinto Appellees’ attorney that C.H. was suffering
from medical conditions and, based on the advice of his healthcare providers,
would be unable to return to Tarrant County for his deposition. The DePinto
Appellees filed a motion for sanctions. The trial court heard the DePinto
Appellees’ motion and later signed an order stating that it was “of the opinion
that defendants’ motion is well taken and should be granted” and that
Appellants “shall give security for court costs pursuant to the provisions of
TRCP 143.” The trial court’s order does not set an amount for anticipated
future costs, but orders only that Appellants give security “for costs,” i.e.,
accrued costs.
In their fourth issue, Appellants argue that the trial court erred by
requiring them to file a cost bond as a discovery sanction and assert that the
bond is open-ended so it could not possibly bear a direct relationship to their
offensive conduct, if any, in this case.
Texas Rule of Civil Procedure 143 states that
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[a] party seeking affirmative relief may be ruled to give security for
costs at any time before final judgment, upon motion of any party,
or any officer of the court interested in the costs accruing in such
suit, or by the court upon its own motion. If such rule be entered
against any party and he failed to comply therewith on or before
twenty (20) days after notice that such rule has been entered, the
claim for affirmative relief of such party shall be dismissed.
Tex. R. Civ. P. 143. Rule 143 generally allows the trial court to require a party
to post security for costs that have already accrued but not to fix a specific
amount for anticipated future costs of the case. TransAm. Natural Gas Corp.
v. Mancias, 877 S.W.2d 840, 844 (Tex. App.—Corpus Christi 1994, orig.
proceeding) (conditionally granting writ when trial court ordered each party to
deposit $10,000 as a retainer for master’s costs); see also Johnson v. Smith,
857 S.W.2d 612, 615 (Tex. App.—Houston [1st Dist.] 1993, orig. proceeding);
Mosher v. Tunnell, 400 S.W.2d 402, 405 (Tex. Civ. App.—Houston 1966, writ
ref’d n.r.e.). An order improperly requiring a fixed amount of security for costs
entered prior to final judgment, moreover, is an abuse of discretion subject to
being set aside by mandamus. See TransAm. Natural Gas Corp., 877 S.W.2d
at 844; Johnson, 857 S.W.2d at 615–16.
Here, Appellants take issue with the essence of rule 143—that is, they
complain that the rule is in effect an open bond to secure payment of whatever
costs might accrue. See Mosher, 400 S.W.2d at 404. But our job as a
reviewing court is not to change the rule but to make sure that the trial court
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did not abuse its discretion in invoking this rule. Analyzing the trial court’s
order in light of the rule, we cannot say that the trial court abused its discretion
when it ordered Appellants to “give security for court costs pursuant to the
provisions of TRCP 143.” Moreover, because the rule allows the trial court to
assess such costs on the court’s own motion and because Appellants do not
contest the fact that they failed to produce their son, C.H., for the deposition,
we hold that the trial court did not abuse its discretion by ordering, in response
to the DePinto Appellees’ motion for sanctions, that Appellants give security for
costs pursuant to the provisions of rule 143. Cf. Adetunji v. W. Waste Indus.,
Inc., No. 01-98-00305-CV, 2000 WL 210408, at *1–2 (Tex. App.—Houston
[1st Dist.] Feb. 24, 2000, no pet.) (not designated for publication) (affirming
trial court’s judgment dismissing plaintiffs’ claims for failure to post security for
accrued costs, which the trial court had ordered as a result of defendants’
motion for sanctions). We therefore overrule Appellants’ fourth issue.
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VII. C ONCLUSION
Having overruled Appellants’ four issues, we affirm the trial court’s
judgment granting summary judgment in favor of Appellees.
SUE WALKER
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
DELIVERED: July 16, 2009
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