wolfgang-hirczy-demino-v-edward-p-sheridan-jerald-w-strickland-in-his ( 2006 )

Affirmed and Memorandum Opinion filed April 20, 2006

Affirmed and Memorandum Opinion filed April 20, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00210-CV

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WOLFGANG HIRCZY DE MINO, Appellant

V.

EDWARD P. SHERIDAN AND JERALD W. STRICKLAND, IN HIS OFFICIAL CAPACITY AS SUCCESSOR TO EDWARD P. SHERIDAN IN THE OFFICE OF PROVOST AT THE UNIVERSITY OF HOUSTON, Appellees

On Appeal from the 281st District Court

Harris County, Texas

Trial Court Cause No. 03‑01538

M E M O R A N D U M   O P I N I O N

Appellant, Wolfgang Hirczy de Mino, appeals from a summary judgment granted in favor of appellees, Edward P. Sheridan, individually, and Jerald W. Strickland In His Official Capacity As Successor To Edward P. Sheridan In The Office Of Provost At The University of Houston (AStrickland@). Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4. 

I. Procedural History

De Mino was a political science lecturer at the University of Houston (UH).  In August of 2001, Sheridan, acting as provost, refused to approve the renewal of de Mino=s employment contract.  De Mino filed a wrongful termination suit against UH.  However, a federal district court granted summary judgment in favor of UH. See Hirczy de Mino v. Achenbaum, Nos. 02-20772, 02-20943, 2003 WL 22770156 (5th Cir. Nov. 21, 2003) (not designated for publication).

De Mino subsequently filed suit against Sheridan in his official and individual capacities for defamation, defamation per se, negligence per se, and violations of certain rights under the Texas Constitution.  De Mino also sought a temporary injunction to prevent Sheridan from republishing the allegedly defamatory statements.  The trial court granted Sheridan=s plea to the jurisdiction and dismissed all constitutional claims against Sheridan in his official capacity.  The trial court also denied de Mino=s application for a temporary injunction.  De Mino filed interlocutory appeals challenging the trial court=s orders denying the temporary injunction and granting the plea to the jurisdiction.  The First Court of Appeals affirmed the trial court=s orders.  See De Mino v. Sheridan, 176 S.W.3d 359 (Tex. App.CHouston [1st Dist.] 2004, no pet.). 

After the trial court granted the plea to the jurisdiction, the only causes of action that remained relative to de Mino=s original pleadings were the defamation, defamation per se, and negligence per se claims against Sheridan in his individual capacity.  However, de Mino filed a Fourth Supplemental Petition against the provost in his official capacity (Strickland) Ain light of Defendant=s persistent efforts to have Plaintiff=s claims dismissed.@ In his Fourth Supplemental Petition, de Mino claimed there was an unwritten UH policy prohibiting romantic relationships between faculty and students, and that the policy violated his rights under the state and federal constitutions.

Subsequently, the trial court entered a final summary judgment disposing of de Mino=s defamation, defamation per se, and negligence per se claims against Sheridan in his individual capacity, and the constitutional claims against Strickland in his official capacity. The trial court=s order granting final summary judgment forms the basis for this appeal.^[1]

II. Discussion

In his first three issues, de Mino contends that the trial court erred in granting summary judgment on all claims.  To prevail on a motion for traditional summary judgment, the movant must show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.  See Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we resolve all doubts and indulge every reasonable inference in the nonmovant=s favor. Grant, 73 S.W.3d at 215.  Summary judgment is properly granted if a defendant conclusively proves each element of an affirmative defense.  Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).

A.        Defamation, Defamation Per Se, and Negligence Per Se Claims against Sheridan

In his first issue, de Mino argues that the trial court erred in granting summary judgment in favor of Sheridan on his claims of defamation, defamation per se, and negligence per se. De Mino bases these claims on allegedly false and defamatory statements made by Sheridan in two affidavits and a deposition.  Both affidavits were filed in support of UH=s motion for summary judgment in de Mino=s previous suit against UH in federal court.  The deposition was also taken by de Mino in the course of pre-trial discovery in the federal suit. 

In his affidavits, Sheridan explained his decision to terminate de Mino=s employment.  Specifically, Sheridan stated he had learned that one of de Mino=s students filed a sexual harassment complaint against de Mino.  He also stated he was informed that de Mino denied harassing the student, but admitted to having an affair with her while she was enrolled in one of his classes.  In his deposition, Sheridan again explained that he had been informed of a sexual harassment complaint, but that he had no personal knowledge as to the truth of the sexual harassment accusations.

Sheridan asserts the judicial communications privilege as an affirmative defense.  It is well established that communications in the due course of judicial proceedings cannot serve as the basis of a civil action for defamation, regardless of the negligence or malice with which the statements were made.  James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982) (per curiam).  Such communications also cannot form the basis of liability for other torts,  including negligence, when the essence of the claim is that injury occurred as the result of allegedly false statements made during a judicial proceeding.  Bird v. W.C.W., 868 S.W.2d 767, 771B72 (Tex. 1994); Laub v. Pesikoff, 979 S.W.2d 686, 691B92 (Tex. App.CHouston [1st Dist.] 1998, pet. denied).  The privilege extends to statements made by judges, jurors, counsel, parties or witnesses, and attaches to all aspects of judicial proceedings, including pre-trial hearings, depositions, affidavits and any of the pleadings or other documents filed in the case.  James, 637 S.W.2d at 916B17.

De Mino argues that as a matter of public policy, the judicial communications privilege should not apply to perjured testimony.  There is no indication that Sheridan=s statements were perjured.^[2]   Nevertheless, any communication, including perjured testimony, made during the course of a judicial proceeding is privileged and cannot form a basis for tort liability.  See Bird, 868 S.W.2d at 771; Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 132 (Tex. App.CHouston [14th Dist.] 1994, no writ). The privilege is founded on the theory that Athe administration of justice requires full disclosure from witnesses, unhampered by fear of retaliatory suits.@ James, 637 S.W.2d at 917.  We will not disturb this sound reasoning.  Because Sheridan has conclusively established that the statements forming the basis for de Mino=s defamation, defamation per se, and negligence per se claims were privileged, the trial court properly granted summary judgment in favor of Sheridan on those claims.  De Mino=s first issue is overruled.

B         Constitutional Claims Against Strickland      

In his second and third issues, de Mino argues that the trial court erred in granting summary judgment on de Mino=s constitutional claims against Strickland in his official capacity.  In his Fourth Supplemental petition, De Mino challenges the constitutionality of an alleged unwritten UH policy prohibiting romantic relationships between faculty and students.  Strickland asserts the doctrine of res judicata as an affirmative defense.  We conclude that de Mino=s constitutional claims are barred by the doctrine of res judicata.

Because de Mino=s original suit was decided in federal court, we apply federal law to determine whether res judicata will bar a subsequent claim asserted in state court. Eagle Prop., Ltd. v. Scharbauer, 807 S.W.2d 714, 718 (Tex. 1990).  Under federal law, a claim is barred by res judicata if (1) the parties in both suits are identical or in privity, (2) the prior judgment was rendered by a court of competent jurisdiction, (3) there is a final judgment on the merits, and (4) the same cause of action is involved in both cases. United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994); Scharbauer, 807 S.W.2d at 718. 

The defense of res judicata is available to parties in privity with the original defendants. Shanbaum, 10 F.3d at 310.  In this suit, de Mino sued Strickland in his official capacity as UH Provost.  De Mino originally brought his federal suit against UH and numerous university officials.  Because de Mino=s current complaint is also against an employee of UH in his official capacity, we conclude the parties in both suits are in privity.  See Russell v. Sun Am. Sec., Inc. 962 F.2d 1169, 1174B75 (5th Cir. 1992) (employer-employee relationship satisfies privity requirements of res judicata).         

Further, a federal district court of competent jurisdiction entered a final judgment as to de Mino=s breach of contract and constitutional claims on the merits.^[3]  De Mino argues that the constitutional claims asserted in this suit are not the same as his constitutional claims in the federal suit.  However, under federal law, a transactional approach is used to evaluate whether a cause of action is barred by res judicata.  Agrilectric Power Partners, Ltd. v. General Elec. Co., 20 F.3d 663, 665 (5th Cir. 1994).  Under the transactional approach, a cause of action is the Asame@ when it is based on Athe same nucleus of operative facts.@ Id.  In his federal suit, de Mino complained that UH breached his employment contract and violated his constitutional rights to due process when his teaching appointment was not renewed.  In this suit, de Mino complains that his teaching appointment was not renewed because of an unwritten UH policy that violated his constitutional rights to due process, equal protection, free association and privacy.  Both suits arose from the Asame nucleus of operative facts@Cde Mino=s termination from his teaching position at UH.   Therefore, we conclude that both suits involved the Asame@ cause of action.  

Accordingly, the trial court properly granted summary judgment in favor of  Strickland on the basis of res judicata.  De Mino=s second and third issues are overruled.

The judgment of the trial court is affirmed.  

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed April 20, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

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^[1]  In issues four through seven, de Mino asserts that the trial court erred by granting Sheridan=s plea to the jurisdiction.  However, the order granting the plea to the jurisdiction formed the basis for de Mino=s previous appeal, and the judgment of the First Court of Appeals was conclusive as to those issues.  See De Mino v. Sheridan, 176 S.W.3d 359 (Tex. App.CHouston [1st Dist.] 2004, no pet.).  Therefore, we do not address de Mino=s issues numbered four through seven.  The order now on appeal is the trial court=s order granting final summary judgment as to de Mino=s remaining claims. The first three issues presented by de Mino are the only issues related to the summary judgment order and properly before this court.  

^[2]  De Mino argues that because Sheridan attested to personal knowledge in his affidavits, but subsequently testified by deposition that he had no personal knowledge as to the truth of the sexual harassment allegations, either the affidavit or deposition testimony was necessarily false. In paragraph one of both affidavits, Sheridan stated that all facts were true and correct and known to him pursuant to his own personal knowledge.  In paragraph five of both affidavits, Sheridan stated that he had been informed by the Office of Affirmative Action that a student in one of de Mino=s classes complained that de Mino was sexually harassing her, and that de Mino denied the harassment but admitted to having an affair with the student.  In paragraph six of both affidavits, Sheridan stated that he did not have personal knowledge of the truth of Aany of these matters,@ but did not have any reason to believe that the information reported to him was untrue.  Thus, it appears that there is no inconsistency between Sheridan=s affidavits and his deposition testimony that he had no personal knowledge as to the truth of the harassment allegations.

^[3]  De Mino contends that because the Fifth Circuit dismissed his appeal in part as moot, there was no final judgment on the merits. However, de Mino=s appeal was dismissed in part as moot because he requested injunctive relief pursuant to an employment agreement that had expired.  De Mino v. Achenbaum, Nos. 02-20772, 02-20943, 2003 WL 22770156 (5th Cir. Nov. 21, 2003) (not designated for publication).  At the time of the trial court=s order, the employment agreement had not expired, and the trial court issued a final summary judgment on the merits of de Mino=s claims.