Alaniz v. Hoyt
| Decision Date | 08 May 2003 |
| Docket Number | No. 13-01-111-CV.,13-01-111-CV. |
| Citation | 105 S.W.3d 330 |
| Parties | Joe L. ALANIZ, Appellant, v. Gaylord HOYT, Appellee. |
| Court | Texas Court of Appeals |
Russell Manning, Hornblower, Manning & Ward, Corpus Christi, for appellant.
Larry A. Matthys, pro se.
Larry A. Matthys, Vada L. Staha, Barker, Leon, Fancher & Matthys, Corpus Christi, for appellee.
Before Justices YAÑEZ, CASTILLO, and DORSEY.1
This is a defamation case. Appellant Joe L. Alaniz ("Alaniz") brings thirteen issues complaining of the trial court's: (1) admission and exclusion of summary-judgment evidence; and (2) granting of summary judgment in favor of appellee Gaylord Hoyt ("Hoyt"). We reverse and remand.
I. JURISDICTION
Our initial inquiry is always whether we have jurisdiction over an appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). The question of jurisdiction is a legal issue. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Accordingly, we follow the de novo standard of review. Id. Jurisdiction of a court is never presumed. El-Kareh v. Tex. Alcoholic Beverage Comm'n, 874 S.W.2d 192, 194 (Tex. App.-Houston [14th Dist.] 1994, no writ). If the record does not affirmatively demonstrate the appellate court's jurisdiction, the appeal must be dismissed. Id. Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order. Steeple Oil & Gas Corp. v. Amend, 394 S.W.2d 789, 790 (Tex.1965) (per curiam); see TEX. CIV. PRAC. & REM.CODE ANN. 51.014 (Vernon Supp.2003). Therefore, before we consider the issues, we first must determine if the order granting summary judgment is a final judgment.
Alaniz, a certified public accountant, is the vice-president for business and finance and chief financial officer of Del Mar College in Corpus Christi, Texas. Alaniz supervises the financial accounting and bookkeeping of Del Mar College. Among the funds entrusted to the business and finance office are custodial funds for memorials, scholarships, student organizations, and other designated purposes, including custodial funds for the Del Mar College Foundation. These custodial funds are referred to as "Agency accounts" for accounting purposes.
Hoyt is a mathematics professor at Del Mar College. In a second amended petition filed January 12, 2001, Alaniz alleged that Hoyt made oral and written statements about him that were false and defamatory per se. Specifically, Alaniz alleged that Hoyt made statements, with knowledge that they were false or with reckless disregard for their truth or falsity, that Alaniz: (1) "commingled" Del Mar College funds with Del Mar College Foundation funds; (2) falsified documents regarding the allocation of interest to Del Mar College checking accounts; (3) "skimmed" interest from Del Mar College investments; and (4) was the subject of a criminal investigation. Alaniz pleaded the following specific allegations:
1. "Commingling." On September 7, 1997, Hoyt wrote a letter to Senator Carlos Truan that stated, "It is my belief that to make these loans someone at Del Mar College had to mix College money with Foundation money to make the accounts balance." On September 20, 1997, Hoyt repeated the statement in a letter to Ralph Diaz, chair of the Audit Committee of the Del Mar College Board of Regents. On January 19, 1998, Hoyt again repeated the statement in a letter to the trustees of Del Mar College Foundation. On various occasions, Hoyt told members of the Del Mar College Board of Regents that Alaniz directed the mixing or "commingling" of funds of Del Mar College with funds of Del Mar College Foundation. Hoyt repeated the "commingling" statement at a July 6, 1998 Del Mar College faculty council meeting and in various conversations with employees, faculty, administrators, and regents of Del Mar College around that date.
2. Falsifying Documents. In April of 1998, in private conversations with the Del Mar College Board of Regents, and at an April 29, 1998 meeting of the Del Mar College Board of Regents, Hoyt stated that Alaniz had falsified documents regarding the allocation of checking account interest to Del Mar College accounts. Hoyt repeated the falsifying-documents statement at the same July 6, 1998 faculty council meeting and in various conversations with employees, faculty, administrators, and regents of Del Mar College around that date.
3. "Skimming." On June 28, 1998, in a memorandum to Del Mar College President Terry Dicianna ("Dicianna") that Hoyt distributed to the local press and to the Del Mar College Board of Regents, Hoyt stated that it had been confirmed that Alaniz was or had been "skimming interest" away from Del Mar College investments. Hoyt repeated the assertion at the same July 6, 1998 faculty council meeting and in various conversations with employees, faculty, administrators, and regents of Del Mar College around that date.
4. Criminal Investigation. Also at the July 6, 1998 faculty council meeting and in various conversations with employees, faculty, administrators, and regents of Del Mar College around that date, Hoyt "claimed or implied" that Alaniz was under criminal investigation.
In his first amended answer, Hoyt filed a general denial and asserted that: (1) Alaniz was a public official; (2) a quasijudicial privilege applied to the statements; (3) a qualified privilege applied to his statements because he communicated them to persons with a common or business interest in the communications; (4) the statements were true; (5) Hoyt did not make the statements with actual malice or with reckless disregard for the truth; and (6) Alaniz's own physical condition or his own acts or omissions were the sole cause or, alternatively, a proximate cause of the occurrence in question and Alaniz's alleged damages, entitling Hoyt to contribution from Alaniz. On January 18, 2001, Hoyt objected to and asked the court to strike Alaniz's second amended petition as untimely and as asserting new causes of action and allegations of fact not previously identified in discovery. No order on Hoyt's motion to strike the second amended petition appears in the record.
On December 28, 2000, Hoyt filed both a no-evidence and a traditional motion for summary judgment. In the no-evidence portion of his motion, he asserted that Alaniz was a public figure and therefore bore the burden of proving that Hoyt made any statements with "actual malice." Hoyt also focused on the "actual malice" element in his traditional motion for summary judgment. In support of his contention that he did not make the statements with actual malice, and to assert in particular the absence of any indication he made any statements with serious doubt as to their truthfulness, Hoyt included excerpts from his own deposition testimony. In addition, on January 4, 2001, Hoyt filed his own supporting affidavit regarding his state of mind with regard to the challenged statements. He argued that he did not intend any connotation of criminality or illegality in his use of the word "skimming." Finally, Hoyt also moved for a partial summary judgment on the ground that statements he made in complaining about Alaniz to the Texas State Board of Public Accountancy were privileged.
In his response to Hoyt's motion for summary judgment, which Alaniz filed January 12, 2001, Alaniz did not dispute Hoyt's characterization of Alaniz's status as a public official. Instead, Alaniz asserted: (1) the existence of a genuine issue of material fact as to whether Hoyt acted with malice; and (2) that Hoyt's statements were defamatory per se as a matter of law. As summary-judgment evidence, Alaniz attached to his response affidavits, documents, and deposition excerpts. By separate motion also filed January 12, 2001, Alaniz asked the trial court to take judicial notice of a definition of the word "skim" from the Cambridge Dictionary of American English.2
Hoyt filed a reply on January 19, 2001. He attached excerpts from Alaniz's deposition testimony.
The "Order Granting Defendant Gaylord Hoyt's Motion for Summary Judgment," signed January 25, 2001, recited as follows:
On the 25th [sic]3 day of January, 2001, came to be considered Defendant Gaylord Hoyt's Motion for Summary Judgment. After reviewing the Motion and Response thereto and hearing argument of counsel, it is the opinion of the Court that the Motion is well taken and should be in all things GRANTED.
It is, therefore, ORDERED, ADJUDGED AND DECREED that Defendant Gaylord Hoyt's Motion for Summary Judgment, is in all things GRANTED and that Plaintiff Joe L. Alaniz take nothing against Defendant Gaylord Hoyt, that all claims asserted by plaintiff are denied, and that all costs of court be taxed against plaintiff. All relief requested and not expressly granted is denied.
After examining the pleadings and summary-judgment record, we conclude that the "Order Granting Defendant Gaylord Hoyt's Motion for Summary Judgment" signed January 25, 2001 disposes of all pending parties and claims. See Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex. 2001) (per curiam). Accordingly, we find that the "Order Granting Defendant Gaylord Hoyt's Motion for Summary Judgment" is a final judgment over which we have jurisdiction. See id.
We now address the issues on appeal. We first turn to the evidentiary complaints.
H. THE EVIDENTIARY ISSUES
In his second issue, Alaniz complains Hoyt's affidavit was untimely and should not be considered part of the summary-judgment record. In issue twelve, Alaniz asserts that the trial court erred in sustaining Hoyt's objection to the affidavit of Anne Stewart, a professor at Del Mar College and chair of the Del Mar College faculty...
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