Chandler v. Gillis

• Court: Texas Civil Court of Appeals
• Writing for the Court: OSBORN; STEPHEN F. PRESLAR
• Citation: Chandler v. Gillis, 589 S.W.2d 552 (Tex. Ct. App. 1979)
• Decision Date: 31 October 1979
• Docket Number: No. 6928,6928
• Petition History: writ ref'd n.r.e.
• Parties: Richard L. CHANDLER, d/b/a Skyline Plumbing and Hardware, Appellant, v. James E. GILLIS and Clarence Williams, Appellees.

Page 552

589 S.W.2d 552

Richard L. CHANDLER, d/b/a Skyline Plumbing and Hardware, Appellant, v. James E. GILLIS and Clarence Williams, Appellees.

No. 6928.

Court of Civil Appeals of Texas, El Paso.

Oct. 31, 1979.

Rehearing Denied Nov. 21, 1979.

Richard L. Chandler, El Paso, pro se.

Calhoun, Morton, Deason & Preslar, Charles A. Deason, Jr., Scott, Hulse, Marshall & Feuille, Frank Feuille, IV, El Paso, for appellees.

OPINION

OSBORN, Justice.

This appeal is from a summary judgment denying recovery in a suit seeking both actual and exemplary damages for alleged perjured testimony given by the two Appellees in another case where a judgment was recovered against the Appellant. We affirm.

In a suit styled "Carnes Company v. Richard L. Chandler, d/b/a Skyline Plumbing and Hardware," the Appellees herein, James E. Gillis and Clarence Williams, both testified adversely to the position of Mr. Chandler. As a result of that testimony, he filed this suit alleging:

This is a suit sounding in Tort wherein joint and several tortfeasors Gillis and Williams committed a civil wrong against Plaintiff Chandler by giving perjured testimony in a civil law suit, . . .

The prayer at the end of that pleading requests:

(T)hat on final hearing, this Court find that Defendants did give perjured testimony in Cause Number 77-6473 and as a result of this tortious action Plaintiff sustained actual damages in the amount of $9,426.63 and exAMplary damages in the amount of $18,852.72, and that the Court enter judgment in favor of Plaintiff Chandler against Defendants, jointly and severally, . . .

Each Defendant filed an answer denying the allegations and each filed a Motion to Dismiss, or, in the alternative, Motion for Summary Judgment. It was asserted in these motions that the petition failed to state a cause of action, and the motion by Williams asserted that judgment in the case where he testified was res judicata on the issue raised in this case. Chandler filed a response in opposition to the Motions to Dismiss and Motions for Summary Judgment. He specifically asserted a right to amend and replead if his pleadings were defective. The Court, after a hearing, entered an order decreeing "that Defendants' Motions to Dismiss or, in the alternative, Motions for Summary Judgment, be in all things granted and sustained, and the Plaintiff's cause of action against said Defendants is hereby dismissed, . . ." Appellant was given no right to amend his pleading.

In Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974) the Court recognized that the provisions of a special exception, which permit a right to amend, should not be circumvented by a motion for summary judgment on the pleadings where plaintiff's pleadings failed to state a cause of action. That rule is universally accepted by the courts of this State. Smith v. Ortman-McCain Company, 537 S.W.2d 515 (Tex.Civ.App. Austin 1976, writ ref'd n. r. e.); Goettee v. McConnell, 535 S.W.2d 396 (Tex.Civ.App. Beaumont 1976, no writ). But, in the Herring case the Court recognized that a party may plead himself out of court by pleading facts which affirmatively negate his cause of action. In such cases, it is proper to grant a motion for summary judgment.

Quite clearly, under the law of this State, any communication made in the course of a judicial proceeding is absolutely privileged and immune from civil liability for damages, and this includes perjured testimony. Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909 (1942); Clark v. Grigson, 579 S.W.2d 263 (Tex.Civ.App. Dallas 1978, writ ref'd n. r. e.); Morris v. Nowotny, 398 S.W.2d 661 (Tex.Civ.App. Austin 1966, writ ref'd n. r. e.); Morris v. Taylor, 353 S.W.2d 956 (Tex.Civ.App. Austin 1962, writ ref'd n. r. e.), cert. denied 371 U.S. 842, 83 S.Ct. 71, 9 L.Ed.2d 78 (1962).

The Appellant, relying upon the holding in Morgan v. Graham, 228 F.2d 625 (10th Cir., 1956), asserts that a civil action in tort may be...