Granada Biosciences, Inc. v. Barrett
| Decision Date | 16 September 1997 |
| Docket Number | No. 07-96-0355-CV,07-96-0355-CV |
| Citation | 958 S.W.2d 215 |
| Parties | GRANADA BIOSCIENCES, INC., Granada Foods Corporation, David Eller and Linda S. Eller, Appellants, v. William P. BARRETT, Forbes, Inc. and Cheryl Munke, Appellees. |
| Court | Texas Court of Appeals |
Michael D. Sydow, Kelli McDonald Sydow, Kay K. Morgan, Joe H. Reynolds, Houston, Carr, Evans, Fouts & Hunt, Charles R. Skip Watson, Jr., Lubbock, for appellants.
George Donaldson & Ford, LLP, David H. Donaldson, Jr., R. James George, Jr., Peter D. Kennedy, Austin, Ogden, Gibson, White & Brooks, LLP, William W. Ogden, Stacy W. Beasley, Houston, Norwich & Schad, Tennyson Schad, New York City, for appellees.
Before BOYD, C.J., and QUINN and REAVIS, JJ.
This case involves the showing a defendant must make to obtain a summary judgment in a business disparagement action by two public corporations, and in actions for defamation and intentional infliction of emotional distress brought by two officers of the public corporations. By multiple points of error, appellants Granada BioSciences, Inc. (GBI) and Granada Foods Corporation (GFC), contend that the trial court erred in granting summary judgment in favor of appellees WilliamP. Barrett (Barrett), Forbes, Inc. (Forbes), and Cheryl Munke (Munke), on the corporate claims for business disparagement. Also, appellants David Eller and his wife, Linda Eller, present multiple points of error contending that the trial court erred in granting summary judgment in favor of appellees on their claims for defamation and intentional infliction of emotional distress. Based on the rationale and authorities expressed herein, we affirm the judgment of the trial court in part and reverse in part, remanding a portion of this cause to the trial court for further proceedings.
On November 11, 1991, Forbes published an article about Granada Corporation entitled "The incredible shrinking empire" written by Barrett, which is attached hereto as an Appendix. Following publication, GBI and GFC filed separate suits against Barrett, Forbes, and Munke in the 133rd District Court of Harris County, which were later transferred to the 190th District Court, seeking to recover damages for business disparagement. As to Munke, a former employee of a Granada organization, GBI and GFC allege that she provided false information to Barrett. Also, David Eller and Linda Eller commenced their action against Barrett, Forbes, and Munke for libel, slander, negligent and intentional infliction of emotional distress, false light and invasion of privacy, in the 165th District Court of Harris County. Initially, the three separate actions were consolidated in the 190th District Court for discovery purposes only. After the 190th District Court granted the Barrett/Forbes motions for summary judgment as to the claims of GBI and GFC, the actions were consolidated in the 190th District Court for all purposes. On September 11, 1995, notwithstanding Rule 301 of the Texas Rules of Civil Procedure which provides that there shall be only one judgment in a case, the 190th District Court signed an order granting Munke's motion for summary judgment as to the claims of all appellants, and signed a second judgment granting the Barrett/Forbes motions for summary judgment against all appellants. Because each "order" or "judgment" contains a "Mother Hubbard" clause, they are appealable. 1 Because the multiple claims, summary judgment evidence, and proceedings are not common as to all appellants and appellees, and the points of error are diverse, we are compelled to conduct our review and analysis of relevant points on a party basis. Before commencing the analysis however, because the summary judgment standard of review is common to all of the contentions, we will set out the appropriate standard of review.
For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). This requirement dictates that when the defendant is the movant, he must conclusively negate at least one of the essential elements of the plaintiff's cause of action. Likewise, a defendant who conclusively establishes each element of an affirmative defense is entitled to summary judgment. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). In Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985), the Court set out the standard by which we are to review a summary judgment:
1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.
Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [lst Dist.] 1996, writ denied). Issues which the non-movant contends preclude the granting of a summary judgment must be expressly presented to the trial court by written answer or other written response to the motion and not by mere reference to summary judgment evidence. McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex.1993). Issues not expressly presented to the trial court in writing shall not be considered on appeal as grounds for reversal. Tex.R. Civ. P. 166a(c). Further, all theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. Casso v. Brand, 776 S.W.2d 551, 553 (Tex.1989). When a summary judgment does not specify or state the grounds relied on, the summary judgment will be affirmed on appeal if any of the grounds presented in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Insurance Co. Of N. Am. v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.--Houston [lst Dist.] 1990, no writ).
The summary judgment evidence does not describe the business structure of the various corporations and business entities with absolute certainty. However, for purposes of our disposition, the exact and precise history and organization of the entities is not material. It appears that David Eller and his brother, James Eller, organized Granada Corporation, a private corporation, in 1972. Later, GBI and GFC were organized as public corporations and listed on the American Stock Exchange. David Eller was chairman of the board of directors and Linda Eller was an officer of GBI and GFC. According to the Forbes article, in 1989 the Wall Street Journal described Granada Corporation as a "corporate star of the future."
On September 11, 1995, the trial court signed summary judgment for Barrett and Forbes and a separate summary judgment for Munke. By six points of error, GBI and GFC contend that the summary judgments for Barrett and Forbes should be reversed. By two points of error, GBI and GFC contend that the summary judgment for Munke should be reversed. Because the claims and points of error as to Barrett and Forbes are not common with the claims and points of error as to Munke, the judgments will be considered separately.
Barrett and Forbes filed a joint motion for summary judgment as to the claims of GBI and a separate joint motion for summary judgment as to the claims of GFC. Although similar, the grounds in the two motions are not entirely common. The motions identified the causes of action as libel and sought summary judgment on the grounds that:
GBI GFC
A. GBI may only complain of statements A. GFC may not recover for damages it
that are of and concerning GBI, not allegedly suffered because of alleged
those that concern Granada Corporation false defamatory statements about its
or the Granada organization. sister company, Granada BioSciences or
Granada Corporation, or its
B. GBI may not recover for damages it organization of subsidiaries or
allegedly suffered because of allegedly affiliates
false, defamatory statements about its B. Any amended libel or slander claims
related company GFC or Granada by GFC regarding statements made about
Corporation or its subsidiaries or it are barred by the one-year statute
affiliates. of limitations in Tex. Civ. Prac. &
Rem.Code § 16.002
C. Most of the statements in the Forbes
article are not defamatory to GBI. C. GFC may only complain of statements
that are of and concerning GFC, not
D. The statements of and concerning GBI those that concern Granada Corporation
are substantially true. or other Granada entities
E. GBI is a limited purpose public D. Several of the statements in the
figure. Forbes article concerning GFC are not
defamatory.
F. The Forbes Defendants believed the
factual statements in the article were E. The statements of and concerning GFC
true. are substantially true.
G. The Forbes article contains
protected or privileged opinion or F. GFC is a limited purpose public
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