Clarke v. Denton Pub. Co., 2-89-196-CV

• Decision Date: 25 July 1990
• Docket Number: No. 2-89-196-CV,2-89-196-CV
• Citation: 793 S.W.2d 329
• Court: Texas Court of Appeals
• Parties: Matthew Thomas CLARKE, Appellant, v. DENTON PUBLISHING COMPANY, a Texas Company, Keith Shelton, and George E. Prentice, Appellees.

Page 329

793 S.W.2d 329

Matthew Thomas CLARKE, Appellant, v. DENTON PUBLISHING COMPANY, a Texas Company, Keith Shelton and George E. Prentice, Appellees.

No. 2-89-196-CV.

Court of Appeals of Texas Fort Worth.

July 25, 1990.

Matthew Thomas Clarke, Tennessee Colony, pro se.

J. Shelby Sharpe, Sharpe Bates & McGee, Fort Worth, for appellees.

Before HILL, LATTIMORE and MEYERS, JJ.

OPINION

MEYERS, Justice.

Appellant, Matthew Thomas Clarke, sued appellees seeking damages for the actions of appellees in publishing allegedly false information about appellant. The trial court granted summary judgment for appellees from which appellant now appeals. Appellant argues in two points of error that the trial court erred in granting summary judgment and also in failing to allow appellant an opportunity to respond to appellees' memorandum brief in support of the motion for summary judgment.

We sustain appellant's first point of error and overrule the second point of error. The judgment of the trial court is affirmed in part, reversed in part, and remanded for trial.

Appellant's original petition in this case alleged that appellees published false statements about him which "libeled plaintiff and placed plaintiff in a false light in the public eye and thus invaded plaintiff's privacy." Appellees simultaneously filed an original answer and motion for summary judgment claiming that, other than libel, no other cause of action had been raised in plaintiff's original petition and that libel was barred by limitations pursuant to TEX.CIV.PRAC. & REM.CODE ANN. § 16.002 (Vernon 1986). Appellant filed a response to the motion for summary judgment in which he withdrew libel as a cause of action, but argued that the original petition had also raised another cause of action which was not barred by limitations: invasion of privacy by placing appellant in a false light in the public eye. Appellant also requested issuance of a bench warrant to allow appellant, a state prisoner, to attend the summary judgment hearing. Appellees then filed a memorandum brief in support of their motion for summary judgment. The following day the trial court granted appellees' motion for summary judgment and entered a final judgment in favor of appellees. Appellant was not present at the summary judgment hearing and claims he did not receive a copy of appellees' memorandum brief until after the hearing on the motion for summary judgment had been held. In his second point of error, appellant claims the trial court erred by failing to allow appellant an opportunity to respond to appellees' arguments in support of appellees' motion for summary judgment.

The record shows that on August 4, 1989, appellees filed a memorandum brief to support their motion for summary judgment and a copy was mailed to appellant on August 3rd. Appellant argues that since he did not receive a copy of the brief until after the hearing on the motion for summary judgment had been held, he was not given the opportunity to respond. Appellant further contends that if a bench warrant had been issued he would have had the opportunity to respond.

The final judgment in this case sets forth that the following items were taken into consideration: "Defendants' Motion for Summary Judgment"; "Plaintiff's Original Petition"; "Plaintiff's Response to Defendants' Motion for Summary Judgment"; and "Plaintiff's Response to Defendants' Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment."

It is clear from the record that the items taken into consideration by the trial court to reach its verdict are set forth in the final judgment. Appellees' memorandum brief was apparently not taken into consideration by the trial court since it is not listed in the final judgment. Appellees also correctly state that TEX.R.CIV.P. 166a prohibits any "oral testimony" being received at the hearing. Therefore, we find that appellant's failure to be present at the hearing does not deny him the right of access to the courts because he is a state prisoner. Appellant's second point of error is overruled.

In his first point of error, appellant alleges the trial court erred in granting appellees' motion for summary judgment because his pleadings stated a cause of action for invasion of privacy which was not barred by TEX.CIV.PRAC. & REM.CODE ANN. § 16.002.

Appellant argues that even though he withdrew his cause of action for libel, there still existed a valid cause of action for invasion of privacy because he was harmed by publicity which placed him in a false light in the public eye.

We agree with the parties that the tort of invasion of privacy exists in Texas. Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex.1973). It is also true that the privacy interest encompasses four separate torts, including a cause of action for publicity which places a plaintiff in a false light in the public eye. Industrial Found. of the South v. Texas Indus. Bd., 540 S.W.2d 668, 682 (Tex.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977); see also Texas Torts and Remedies §§ 53.05(1)--53.05(5) (1990).

Defendants claimed in their motion for summary judgment that other than libel, no other causes of action were alleged in plaintiff's original petition. TEX.CIV.PRAC. & REM.CODE ANN. § 16.002...