Christopher A. Pyle v. Gregory J. Hebrank and Mary Ann P. Hebrank ( 2013 )

Opinion issued January 24, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00276-CV
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CHRISTOPHER A. PYLE, Appellant
V.
GREGORY J. HEBRANK AND MARY ANN P. HEBRANK, Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2011-68533
MEMORANDUM OPINION
Christopher A. Pyle sued Gregory J. Hebrank and Mary Ann P. Hebrank for
interference with his possessory right to his daughter. The trial court granted
summary judgment in favor the Hebranks. Pyle identifies seven issues on appeal
challenging the summary judgment.
We affirm.
Background Summary
On November 11, 2011, Christopher Pyle filed suit against Gregory Hebrank
and Mary Ann Hebrank for various causes of action emanating from the fact that
the Hebranks had permitted Pyle’s daughter, N.P., to live in their Houston home
from July 14, 2011 until November 6, 2011. N.P. was born on July 24, 1994; thus,
N.P. turned 17 years old 10 days after going to live with the Hebranks.
Prior to the time she lived with the Hebranks, N.P. had been staying with her
mother, Melissa Thompson, in Boulder, Colorado. Thompson and Pyle had joint
managing conservatorship of N.P. with Pyle having the exclusive right to establish
N.P.’s primary residence. During the 2010–2011 school year, N.P. had lived with
her father in Houston where she had attended high school. N.P. went to stay with
her mother in Colorado on June 11, 2011. Pyle had told N.P. that he planned to
move from Houston. N.P., however, wanted to complete her high school education
in Houston.
N.P. and Thompson asked Gregory and Mary Ann Hebrank if N.P. could
stay in their Houston area home until Thompson could obtain a job transfer there.
The Hebranks knew N.P. because their son and N.P. were friends from high
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school. Pyle objected to the proposal of N.P.’s living with the Hebranks.
Nonetheless, the Hebranks agreed, and N.P. went to stay at their home on July 14,
2011.
On July 20, 2011, Pyle requested that Thompson return N.P. to his custody.
Correspondence in the record indicates that Pyle had been agreeable to N.P. living
with Thompson in Colorado for the upcoming school year. He indicated that he
had changed his mind about the arrangement because he did not want N.P. to live
with the Hebranks. At the time of the request, Pyle believed that N.P. was still
living in Colorado, although she had been staying with the Hebranks since July 14,
2011. On July 24, 2011, Thompson responded to Pyle stating that she would
return 17-year-old N.P. to Houston.
Shortly thereafter, Thompson filed suit in Fort Bend County District Court
to modify the terms of that court’s 2007 order, which had named Thompson and
Pyle as joint managing conservators, and had given Pyle the right to establish
N.P.’s primary residence. On August 12, 2011, the Fort Bend County district court
signed temporary orders, which, inter alia, gave Thompson the right to establish
N.P.’s primary residence. N.P. continued to live in Houston with the Hebranks.
On August 23, 2011, Thompson signed a power of attorney granting the Hebranks
the authority to make educational and medical decisions for N.P. At the end of
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August, N.P. started her junior year of high school in Houston, while residing at
the Hebranks’ home.
On October 19, 2011, the Fort Bend County district court signed an order
granting Thompson’s nonsuit of the modification action. At the end of October
2011, Pyle learned that N.P. was going to school in Houston and living with the
Hebranks. In an email to Gregory Hebrank, Pyle requested the Hebranks to send
N.P. to stay with a person he identified as “Jennifer” in Sugar Land, Texas. Pyle
indicated that he would not be in Houston until November. N.P. did not go to
Sugar Land but instead went back to her mother in Boulder, Colorado on
November 6, 2011.
Appearing pro se, Pyle filed the instant suit against the Hebranks on
November 11, 2011. In the suit, Pyle alleged that the Hebranks had interfered with
his possessory rights to N.P. and asserted a number of common law causes of
action. The Hebranks filed special exceptions to Pyle’s original petition, which the
trial court granted.
Pyle filed his “Second Amended Original Petition” on January 12, 2012. In
the petition, Pyle identified eight causes of action. Several of the causes of action
were slight variations of Pyle’s claim that the Hebranks had interfered with his
parental and possessory rights with respect to N.P. In the petition, Pyle referred to
such causes of action as “tortious interference with parental rights,” “custodial
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interference,” “alienation of affections,” and “reckless endangerment of a child
seized unlawfully from the custodial parent.” Pyle also asserted claims for fraud,
intentional infliction of emotional distress, abuse of process, invasion of privacy,
and conspiracy.
Pyle described his damages as follows:
As a direct and proximate result of [the Hebranks’ actions], Pyle
suffered and continues to suffer the complete loss of the special
familial relationship he had shared with his young daughter; loss of
irreplaceable time he was morally and legally deserving of enjoying
with his daughter, loss of his daughter, loss of his family, loss of
reputation, familial disgrace, loss of future familial relationship with
his daughter, and loss of liberty and happiness. Mr. Pyle has also
suffered and continues to suffer extreme long term duress, severe
emotional distress, prolonged mental anguish, mental depression, deep
sadness, humiliation, interruption of his life and life’s plans,
deprivation of his daughter’s love and affection, constant parental
worry, loss of health, loss of optimism, loss of ability to focus on his
work, loss of familial and personal opportunities, and damage to his
general physical health and well being and loss of time and money.
Pyle requested damages “in a sum of $500,000” and “exemplary and punitive
damages” against the Hebranks.
The Hebranks moved for summary judgment on both traditional and no-
evidence grounds. The trial court granted summary judgment without specifying
the grounds, and Pyle filed this appeal. In his pro se brief, Pyle identifies seven
issues challenging the trial court’s take-nothing summary judgment against him.
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Summary Judgment
In his first two issues, Pyle generally avers that the trial court erred by
granting summary judgment on his claims.
On appeal, we review de novo a trial court’s summary judgment ruling. See
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). In our review, we consider all the evidence in the light most
favorable to the nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could, and disregarding contrary evidence unless reasonable
jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2006). When, as here, the trial court’s order granting summary judgment does not
specify the grounds on which it was granted, it must be affirmed if any of the
grounds asserted are meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550
(Tex. 2005).
Although Pyle raises a number of issues challenging summary judgment, the
rules of appellate procedure require that an appellate court’s opinions must be as
brief as practicable while addressing “every issue raised and necessary to final
disposition of the appeal.” TEX. R. APP. P. 47.1. In addition, when both traditional
and no-evidence grounds for summary judgment have been raised, it is generally
most efficient to begin by determining whether the respondent produced sufficient
evidence to defeat the no-evidence summary judgment. Haase v. Pearl River
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Polymers, Inc., 2012 WL 3229007, at *4 (Tex. App.—Houston [14th Dist.] Aug. 9,
2012, no pet.) (mem. op.) (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598,
600 (Tex. 2004)). Thus, we begin by addressing one of the no-evidence grounds
raised by the Hebranks that is sufficient to sustain the judgment as to all of Pyle’s
claims: the Hebranks’ assertion in their motion for summary judgment that there is
no competent summary-judgment evidence to show a causal connection between
their alleged conduct and the damages alleged by Pyle.1
1
Causation of damages is an element of each of Pyle’s claims. See, e.g., TEX. FAM.
CODE ANN. § 42.006 (a)(2) (Vernon 2008) (interference with possessory right to a
child); Lozano v. Lozano, No. 14-96-01555-CV, 2003 WL 22076661, at *2–3
(Tex. App.—Houston [14th Dist.] Sept. 9, 2003, no pet.) (mem. op.) (interference
with possessory right to a child); Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.
2003) (intentional infliction of emotional distress); In re First Merit Bank, N.A., 52
S.W.3d 749, 758 (Tex. 2001) (fraud); Hunt v. Baldwin, 68 S.W.3d 117, 129 (Tex.
App.—Houston [14th Dist.] 2001, no pet.) (abuse of process). Pyle characterizes
his first listed cause of action as false light invasion of privacy. We note that false
light invasion of privacy is not a recognized cause of action in Texas. See Cain v.
Hearst Corp., 878 S.W.2d 577, 579 (Tex. 1994). To the extent that Pyle is
claiming invasion of privacy by intrusion on seclusion, causation is an element of
such claim. See Clayton v. Wisener, 190 S.W.3d 685, 697 (Tex. App.—Tyler
2005, pet. denied). Additionally, in his Second Amended Original Petition, Pyle
claims, in his first-listed cause of action, that the Hebranks invaded his privacy by
interfering with his parental right to raise his daughter and to enjoy his relationship
with her. In this respect, as pled, Pyle’s first cause of action is a near duplicate of
his fifth listed cause of action: interference with possessory rights, which Pyle
identifies as his “central claim.” Similarly, Pyle’s claims for “reckless
endangerment of a child” and “alienation of [N.P.’s] affection,” are subsumed in
his interference with possessory rights claim. See, e.g., Silcott v. Oglesby, 721
S.W.2d 290, 292 (Tex. 1986) (explaining, in interference with possessory rights
case, that “the real loss sustained by a parent is not the loss of any financial benefit
to be gained from the child, but is the loss of love, advice, comfort, companionship
and society”). Lastly, conspiracy is a derivative tort; that is, a defendant’s liability
for conspiracy is dependent on his participation in an underlying tort for which the
plaintiff seeks to hold at least one of the named defendants liable. Preston Gate,
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A. Standard of Review: No–Evidence Motion for Summary Judgment
After an adequate time for discovery, the party without the burden of proof
may move for a no-evidence summary judgment on the basis that there is no
evidence to support an essential element of the non-moving party’s claim.2 TEX. R.
CIV. P. 166a(i); see Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
Summary judgment must be granted unless the non-movant produces competent
summary judgment evidence raising a genuine issue of material fact on the
challenged elements. TEX. R. CIV. P. 166a(i); Hamilton, 249 S.W.3d at 426.
B. Analysis
In his briefing, Pyle does not direct this Court to any competent summary
judgment evidence that he produced in the trial to raise a genuine issue of material
LP v. Bukaty, 248 S.W.3d 892, 898 (Tex. App.—Dallas 2008, no pet.). Thus, if
summary judgment is proper on the underlying tort claim, then it is proper on the
associated conspiracy claim. See id.; see also Grant Thornton LLP v. Prospect
High Income Fund, 314 S.W.3d 913, 930–31 (Tex. 2010).
2
Pursuant to Rule of Civil Procedure 166a(i), a party may not move for a no-
evidence summary judgment until after an adequate time for discovery has passed.
TEX. R. CIV. P. 166a(i). Pyle asserts that the trial court erred in granting summary
judgment because the Hebranks’ moved for summary judgment before an
adequate time for discovery had passed. To preserve a complaint that the trial
court’s decision on a summary judgment motion was premature, the party
claiming it did not have adequate time for discovery must file either an affidavit
explaining the need for further discovery or a verified motion for continuance. See
Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex .1996). Pyle
does not show that he did either. Accordingly, Pyle failed to preserve any alleged
error on this point. See Guerrero v. Mem’l Turkey Creek, Ltd., No. 01–09–00237–
CV, 2011 WL 3820841, at *4 (Tex. App.—Houston [1st Dist.] Aug. 25, 2011, no
pet.) (mem. op.).
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fact with respect to the challenged element of causation of damages. Instead, Pyle
points to the portion of his Second Amended Original Petition in which he requests
damages. It is well established that pleadings alone are not summary judgment
evidence. See Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660
(Tex. 1995); see also Bell v. AIC-Sunbelt Group, Inc., No. 03-06-00399-CV, 2008
WL 1765259, at *2 (Tex. App.—Austin Apr. 17, 2008, pet. denied) (explaining
that pleadings are not summary judgment evidence in case in which plaintiff cited
to “Damages” section of his original petition as evidence sufficient to raise genuine
issue of material fact).
In the trial court, Pyle attached 13 exhibits to his response as summary-
judgment evidence. We are not required to search through the record to determine
what part of the summary judgment evidence, if any, relates to Pyle’s damages
claim. See Roberts v. CareFlite, No. 02–12–00105–CV, 2012 WL 4662962, at *5
(Tex. App.—Fort Worth Oct. 4, 2012, no pet.) (mem. op.); see also Arredondo v.
Rodriguez, 198 S.W.3d 236, 238–39 (Tex. App.—San Antonio 2006, no pet.); Hall
v. Stephenson, 919 S.W.2d 454, 466–67 (Tex. App.—Forth Worth 1996, writ
denied).
Similarly, in the trial court, Pyle neither discussed nor identified the
evidence, included with his response, which he contended showed a genuine issue
of material fact regarding causation of damages. In determining whether a
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respondent to a no-evidence motion for summary judgment has produced sufficient
evidence to raise a genuine issue of material fact, trial courts are not required to
search the record without guidance. See Aleman v. Ben E. Keith Co., 227 S.W.3d
304, 309 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also TEX. R. CIV. P.
166a(i) & cmt. (requiring trial court to grant a no-evidence motion meeting the
rule’s requirements unless non-movant produces summary judgment evidence
raising a genuine issue of material fact and stating that non-movant’s response
need not marshall its proof but should point out evidence that raises a fact issue on
the challenged elements). Because his response did not discuss the evidence as it
relates to the element of causation of damages or direct the trial court to any
specific portion of his summary judgment evidence relating to causation of
damages, Pyle failed to meet his burden to offer competent evidence to raise a fact
issue sufficient to defeat the Hebranks’ no-evidence motion for summary
judgment. 3 See Roberts, 2012 WL 4662962, at *5; Arredondo, 198 S.W.3d at 239.
Accordingly, we overrule Pyle’s first and second issues and hold that the
trial court did not err by granting no-evidence summary judgment in favor of the
3
Pyle complains that the Hebranks sought summary judgment on his claims
asserted in his “First Amended Original Petition” rather than on his claims found
in his “Second Amended Original Petition,” which was the live pleading at the
time the motions for summary judgment were filed and granted. As discussed, the
Hebranks’ no-evidence point with respect to causation applies to all causes of
action pleaded in the Second Amended Original Petition. Moreover, the trial
court’s order granting summary judgment reflects that the court considered “the
pleadings on file with the court.”
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Hebranks on all of Pyle’s claims. We therefore need not consider whether the trial
court erred by granting Pyle’s traditional summary judgment motion or Pyle’s
remaining appellate issues. See TEX. R. APP. P. 47.1.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
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