perdue-brackett-flores-utt-burns-a-joint-venture-luther-w-luke ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-041-CV
PERDUE, BRACKETT, FLORES, UTT & APPELLANTS
BURNS, A JOINT VENTURE; LUTHER W.
“LUKE” ELLIS, C. DAVID FIELDER, AND
ELIZABETH PARMER
V.
LINEBARGER, GOGGAN, BLAIR, SAMPSON & APPELLEES
MEEKS, L.L.P. AND BRYAN EPPSTEIN & CO.
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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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When one law firm, seeking a contract to provide legal services to a city,
makes allegedly defamatory statements to the city council about the
performance of a competing law firm, are the statements absolutely privileged
under the doctrine of quasi-judicial immunity? We answer “yes,” and we affirm
the trial court’s summary judgment.
Background
Appellants Ellis, Fielder, and Parmer are members of Appellant Perdue,
Brackett, Flores, Utt & Burns, a joint venture (“Joint Venture”). The Joint
Venture and Appellee Linebarger, Goggan, Blair & Sampson, LLP (“Linebarger”)
are competing law firms that collect delinquent ad valorem property taxes for
taxing entities across Texas. Appellee Bryan Eppstein & Co. is a political
consulting firm hired by Linebarger.
In 2002, the Joint Venture entered into a three-year contract with the
City of Fort Worth (“the City”) to collect delinquent ad valorem property taxes.
The contract provided the City with the option to exercise two one-year
extensions. In October 2004, the Joint Venture contacted City staff about
exercising the extension option. Internal City reports indicate that City staff
were pleased with the Joint Venture’s performance and rate of collection during
the contract’s three-year primary term. The City manager informed the mayor
and City council in writing that he intended to exercise the extension option.
The extension option was set on the council’s executive session agenda
for November 30, 2004. According to the Joint Venture, after the meeting,
City staff told representatives of the Joint Venture that the City was going to
exercise the option in the Joint Venture’s favor.
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The extension option was again set on the council’s executive session
agenda for December 7, 2004; the record does not explain why the option was
set on the agenda a second time. The session was closed to the public. That
day, apparently before or during the meeting, Eppstein delivered a memo to City
staff on behalf of Linebarger that criticized the Joint Venture’s performance,
accused the Joint Venture of providing false information to the council, and
claimed that the Joint Venture had cost the city over $700,000 in uncollected
tax revenue. The memo is the genesis of the Joint Venture’s claims against
Linebarger and Eppstein.
Rather than exercise the one-year renewal option, the City council voted
“to continue the contract month by month until an audit of the contract could
be completed.” The auditor presented his report on March 24, 2005, and
criticized the Joint Venture for its handling of certain bankruptcy cases.
After receiving the auditor’s report, the City requested new proposals for
the tax collection contract. Both the Joint Venture and Linebarger submitted
proposals, and both parties made presentations to the City council at an open
meeting in May 2005. The Joint Venture alleges that Linebarger made
additional defamatory statements at the open meeting. The City ultimately
awarded the contract to Linebarger.
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The Joint Venture sued Linebarger and Eppstein for defamation, tortious
interference, business disparagement, and conspiracy, alleging that statements
Linebarger and Eppstein made in the December 2004 memo and during the May
2005 council meeting were false and defamatory and had caused the council
to not exercise its extension option in the Joint Venture’s favor. Linebarger and
Eppstein moved for summary judgment on, among other grounds, the
affirmative defense that the alleged defamatory statements were absolutely
privileged under the doctrine of quasi-judicial immunity. The trial court granted
summary judgment in favor of Linebarger and Eppstein, and the Joint Venture
filed this appeal.
Discussion
The key question in this case is whether Linebarger’s allegedly
defamatory statements in the December 2004 memo and before the City
council in May 2005 are absolutely privileged under the doctrine of quasi-
judicial immunity. An absolutely privileged communication is one for which,
due to the occasion upon which it was made, no civil remedy exists, even
though the communication is false and was made or published with express
malice. 5-State Helicopters, Inc. v. Cox, 146 S.W.3d 254, 256 (Tex.
App.—Fort Worth 2004, pet. denied); see Bird v. W.C.W., 868 S.W.2d 767,
771–72 (Tex. 1994); James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982);
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Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909, 912 (1942).
This doctrine has been firmly established in Texas for well over one hundred
years. 5-State Helicopters, 146 S.W.3d at 256–57; see Runge v. Franklin, 72
Tex. 585, 10 S.W. 721, 723 (1889). The absolute privilege applies to
communications related to both proposed and existing judicial and quasi-judicial
proceedings. James, 637 S.W.2d at 916–17; Reagan, 166 S.W.2d at 912–13;
5-State Helicopters, Inc., 146 S.W.3d at 257; Randolph v. Jackson Walker
L.L.P., 29 S.W.3d 271, 278 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied); Attaya v. Shoukfeh, 962 S.W.2d 237, 239 (Tex. App.—Amarillo
1998, pet denied).
The public policy behind the application of the absolute privilege to judicial
proceedings is that the administration of justice requires full disclosure from
witnesses, unhampered by fear of retaliatory suits for defamation. James, 637
S.W .2d at 917; 5-State Helicopters, Inc., 146 S.W.3d at 257. Similarly, the
rationale for extending the absolute privilege to statements made during quasi-
judicial proceedings rests in the public policy that every citizen should have the
unqualified right to appeal to governmental agencies for redress “without the
fear of being called to answer in damages” and that the administration of justice
will be better served if witnesses are not deterred by the threat of lawsuits. 5-
State Helicopters, Inc., 146 S.W.3d at 257; Attaya, 962 S.W.2d at 239
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(quoting Parker v. Holbrook, 647 S.W.2d 692, 695 (Tex. App.—Houston [1st
Dist.] 1982, writ ref’d n.r.e.)). The absolute privilege is intended to protect the
integrity of the process and ensure that the quasi-judicial decision-making body
gets the information it needs. 5-State Helicopters, Inc., 146 S.W.3d at 257;
Attaya, 962 S.W.2d at 239.
Two requirements must be met in order for the absolute privilege to
apply: (1) the governmental entity must have the power and authority to
investigate and decide the issue—that is, quasi-judicial power—and (2) the
communication must bear some relationship to a pending or proposed quasi-
judicial proceeding. Clark v. Jenkins, 248 S.W.3d 418, 431 (Tex.
App.—Amarillo 2008, pet. denied) (citing 5-State Helicopters, Inc., 146 S.W.3d
at 259; Bennett v. Computer Assocs. Int’l, Inc., 932 S.W.2d 197, 201 (Tex.
App.—Amarillo 1996, writ denied)); Attaya, 962 S.W.2d at 239; Hernandez v.
Hayes, 931 S.W.2d 648, 651 (Tex. App.—San Antonio 1996, writ denied);
McAfee v. Feller, 452 S.W.2d 56, 57–58 (Tex. Civ. App.—Houston [14th Dist.]
1970, no writ). Even communications made in contemplation of or preliminary
to a quasi-judicial proceeding are privileged if they concern a matter that the
quasi-judicial body is authorized to investigate and decide. Reagan, 166
S.W.2d at 913; 5-State Helicopters, Inc., 146 S.W.3d at 257; see also Attaya,
962 S.W.2d at 238–39; Rose v. First Am. Title Ins. Co., 907 S.W.2d 639,
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641–42 (Tex. App.—Corpus Christi 1995, no writ); Putter v. Anderson, 601
S.W.2d 73, 75, 77 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.) (all holding
that private citizen’s complaint may be first step in quasi-judicial proceeding if
governmental entity has duty or authority to investigate and resolve same).
Such communications stand “on the same footing [regarding] libel as do
communications made in a court of justice.” Reagan, 166 S.W.2d at 913; 5-
State Helicopters, Inc., 146 S.W.3d at 257.
But “[a]ll communications to public officials are not absolutely privileged.”
Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex. 1987). The
absolute privilege attaches only in situations that “involve the administration of
the functions of the branches of government.” Id. Initial communications “to
a public officer . . . who is authorized or privileged to take action” are subject
to only a qualified privilege, not absolute immunity. Id.; Clark, 248 S.W.3d at
432. For example, in Hurlbut, the supreme court held that criminal allegations
made to an assistant attorney general were conditionally, not absolutely,
privileged. 749 S.W.2d at 767–68. Likewise, in Clark, the Amarillo court held
that a communication encouraging a congressman to investigate alleged civil
rights violations was not absolutely privileged because the communication was
not made to the congressman as part of a legislative proceeding and because
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the congressman lacked the power to conduct a formal investigation or grant
the ultimate relief sought by the declarant. 248 S.W.3d at 433.
A governmental entity’s power to decide a controversy presented by an
allegedly defamatory statement is a key factor in determining whether the
defamatory statement relates to the exercise of quasi-judicial power. The
defamatory statements in Hurlbut and Clark did not relate to the exercise of
quasi-judicial power because the persons to whom the declarants made the
defamatory statements—the assistant attorney general in Hurlbut and the
congressman in Clark—did not have the power to decide the controversies
presented by the statements. See Hurlbut, 749 S.W.2d at 767; Clark, 248
S.W.3d at 433. On the other hand, the supreme court held in Reagan that the
Board of Insurance Commissioners exercised quasi-judicial power when it
decided whether to issue an insurance sales license to an applicant. 166
S.W.2d at 913. Similarly, a police department’s internal affairs division
exercised quasi-judicial power when addressing a complaint made by a citizen
against an officer because the division had the power to determine whether the
officer should be disciplined. Putter, 601 S.W.2d at 77; see 5-State
Helicopters, Inc., 146 S.W.3d at 258 (“Because the FAA had the authority to
both initiate the investigation . . . and dispose of appellants’ violation
administratively without legal enforcement action, the FAA’s actions . . .
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constituted a quasi-judicial proceeding.” (Emphasis added)); see also Shanks v.
Allied Signal, Inc., 169 F.3d 988, 994 (5th Cir. 1999) (“Texas courts have also
denied absolute immunity where the challenged communications are made to
agencies that issue merely recommendations or preliminary findings.”).
Whether an alleged defamatory statement is related to a proposed or
existing judicial or quasi-judicial proceeding, and is therefore absolutely
privileged, is a question of law. Reagan, 166 S.W.2d at 912; 5-State
Helicopters, Inc., 146 S.W.3d at 257; Randolph, 29 S.W.3d at 278; Thomas
v. Bracey, 940 S.W.2d 340, 343 (Tex. App.—San Antonio 1997, no pet.). All
doubts should be resolved in favor of the communication’s relation to the
proceeding. 5-State Helicopters, Inc., 146 S.W.3d at 257; Randolph, 29
S.W.3d at 278; Thomas, 940 S.W.2d at 343.
1. Does the City council possess quasi-judicial power?
The first question is whether the City council possesses quasi-judicial
power, in other words, whether the council has the authority to hear and decide
the matters coming before it or to redress the grievances of which it takes
cognizance. See Clark, 248 S.W.3d at 431; 5-State Helicopters, Inc., 146
S.W.3d at 257. Texas courts have recognized six powers relevant to the
determination of whether a body possesses quasi-judicial power:
(1) the power to exercise judgment and discretion;
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(2) the power to hear and determine or to ascertain facts and
decide;
(3) the power to make binding orders and judgments;
(4) the power to affect the personal or property rights of private
persons;
(5) the power to examine witnesses, to compel the attendance of
witnesses, and to hear the litigation of issues on a hearing; and
(6) the power to enforce decisions or impose penalties.
Fiske v. City of Dallas, 220 S.W.3d 547, 551 (Tex. App.—Texarkana 2007, no
pet.); Alejandro v. Bell, 84 S.W.3d 383, 391 (Tex. App.—Corpus Christi 2002,
no pet.); Blankenship v. Brazos Higher Educ. Auth., 975 S.W.2d 353, 360
(Tex. App.—Waco 1998, pet. denied); Village of Bayou Vista v. Glaskox, 899
S.W.2d 826, 829 (Tex. App.—Houston [14th Dist.] 1995, no writ) (quoting
Parker v. Holbrook, 647 S.W.2d 692, 695 (Tex. App.— Houston [1st Dist.]
1982, writ ref’d n.r.e.)).
The City code explicitly confers two of those powers on the City
council—the power to hear and ascertain facts and the power to subpoena and
examine witnesses. Fort Worth, Tex. Ordinances no. 1748, § 1 (1933)
(captioned, “Council and Committee Authority to Investigate Department and
Subpoena Witnesses”). Germane to this appeal, the Texas Tax Code confers
on a taxing unit like the City the power to “determine who represents the unit
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to enforce the collection of delinquent taxes.” Tex. Tax Code Ann. § 6.30(b)
(Vernon 2008).1 The power to “determine who represents the unit” implicates
at least two more of the powers enumerated above: the power to exercise
judgment and discretion and the power to make binding orders. Id. Local
government code section 54.001 confers yet another power on the council, the
power to enforce and impose penalties: “The governing body of a municipality
may enforce each rule, ordinance, or police regulation of the municipality and
may punish a violation of a rule, ordinance, or police regulation. Tex. Loc.
Gov’t Code Ann. § 54.001(a) (Vernon 2008). Finally, though not directly
relevant to the issues in this case, the council has the power to affect the
personal or property rights of private persons. See, e.g., id. § 251.001(a)
(Vernon 2005) (providing that municipality may exercise right of eminent
domain by condemning private property for public use); see also City of
Carrollton v. Singer, 232 S.W.3d 790, 797 (Tex. App.—Fort Worth 2007, pet.
denied) (discussing municipality’s power to condemn private property). Thus,
all six powers relevant to the determination of whether a body’s proceedings
1
… “The governing body of a taxing unit other than a county may
determine who represents the unit to enforce the collection of delinquent
taxes.” Id.
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are quasi-judicial abide in the City council. We therefore conclude and hold that
the City council possesses quasi-judicial power.
2. Did the alleged defamatory statements relate to an existing or proposed
quasi-judicial proceeding?
The second question is whether Linebarger’s and Eppstein’s alleged
defamatory statements related to an existing or proposed quasi-judicial
proceeding. See Clark, 248 S.W.3d at 431; 5-State Helicopters, Inc., 146
S.W.3d at 257. Stated differently, was the City exercising its quasi-judicial
power when it deliberated about whether to extend the Joint Venture’s contract
and, later, about whether to award the new contract to the Joint Venture or
Linebarger?
The council’s deliberations implicated several of the quasi-judicial powers
enumerated above. See Fiske, 220 S.W.3d at 551; Alejandro, 84 S.W.3d at
391. Before ultimately awarding the contract to Linebarger, the City council
exercised its judgment and discretion by deciding not to extend the Joint
Venture’s contract; ordered an investigation—the audit—and heard argument
from the parties; decided to whom to award the new contract; and made a
binding decision to award the contract to Linebarger.
Of these powers, the most significant is the council’s power to decide the
controversy related to the alleged defamatory statements. The controversy
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related to the alleged defamatory statements was the Joint Venture’s
performance under the contract and whether the counsel should extend the
contract. The council’s power to decide the controversy makes this case like
Reagan and 5-State Helicopters, Inc.—where the governmental entity with the
power to decide and resolve a controversy was deemed to have exercised
quasi-judicial power—and unlike Hurlbut and Clark—where the governmental
entity did not have the power to decide the controversy. Compare Reagan, 166
S.W.2d at 913, and 5-State Helicopters, Inc., 146 S.W.3d at 258, with
Hurlbut, 749 S.W.2d at 767, and Clark, 248 S.W.3d at 433.
The Joint Venture argues that when analyzing whether the City council
exercised quasi-judicial power, there is a difference between the council’s
determining to award or extend a contract and the council’s enacting or
interpreting an ordinance. The latter, argues the Joint Venture, is the exercise
of quasi-judicial power, but the former is not. We disagree. While awarding
contracts and enacting ordinances may implicate different powers or the same
powers to different extents, both activities potentially fall within the six
enumerated powers that determine whether a body’s proceedings are quasi-
judicial. See Fiske, 220 S.W.3d at 551; Alejandro, 84 S.W.3d at 391;
Blankenship, 975 S.W.2d at 360. More specifically, as described above, the
council’s actions with regard to the tax collection contract in this case
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implicated its quasi-judicial powers, especially the power to decide and resolve
the controversy related to the allegedly defamatory statements.
Because the City council exercised quasi-judicial power in its
deliberations on whether to extend the Joint Venture’s contract, we hold that
the proceeding in question was quasi-judicial.
The final question is whether the allegedly defamatory communications
bear some relationship to the pending or proposed quasi-judicial proceeding.
See Clark, 248 S.W.3d at 431. When Linebarger and Eppstein presented their
memorandum to City staff on December 7, 2004, City staff and the City
council had already begun the process of reviewing the Joint Venture’s
performance under the contract and deliberating whether to exercise its option
to extend the contract. This process began no later than October 2004, when
the Joint Venture contacted City staff about exercising the extension option,
and continued through November 30, when the option was first set on the City
council’s executive session agenda. Thus, the proceeding was well under way
by the time Linebarger and Eppstein published the first of the alleged
defamatory statements on December 7. Further, all of the allegedly defamatory
statements identified by the Joint Venture relate to the quality of the services
provided by the Joint Venture. Even if there were a doubt as to the
communications’ relevance to the City council’s quasi-judicial proceeding, we
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would be required to resolve it in favor of—not against—a relation to the
proceeding. See 5-State Helicopter, Inc., 146 S.W.3d at 259. Therefore, we
hold that the alleged defamatory statements bore some relationship to the
quasi-judicial proceeding pending before the City council.
Conclusion
Having concluded that Linebarger’s allegedly defamatory statements to
the council related to a proceeding in which the council exercised its quasi-
judicial power, we hold that the statements are absolutely privileged, regardless
of the their truth, falsity, or malicious nature. See id. Because the Joint
Venture’s claims for defamation, tortious interference, business disparagement,
and conspiracy to commit these torts are for defamation-type damages based
on the allegedly defamatory statements, the absolute privilege bars all of their
claims. We therefore hold that the trial court did not err by granting a
traditional summary judgment in favor of Linebarger and Eppstein on the Joint
Venture’s claims. We overrule the Joint Venture’s first issue.
Having overruled the Joint Venture’s first issue, we do not reach its
second, third, and fourth issues, in which it argues that the trial court erred by
granting Linebarger’s and Eppstein’s no-evidence motions for summary
judgment, by denying the production of documents to the Joint Venture, and
by placing the burden on the Joint Venture to prove the falsity of Linebarger’s
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allegedly defamatory statements.2 We therefore affirm the trial court’s
summary judgment.
ANNE GARDNER
JUSTICE
PANEL: CAYCE, C.J.; GARDNER, J.; and WILLIAM BRIGHAM, J. (Senior
Justice, Retired, Sitting by Assignment).
DELIVERED: May 7, 2009
2
… Nor do we reach the Joint Venture’s argument on its first issue that
the trial court misapplied the Noerr-Pennington doctrine, which Linebarger and
Eppstein argue provides an independent basis for immunity. See E. R.R.
President’s Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523
(1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S. Ct.
1585 (1965).
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