Jenevein v. Friedman

Decision Date08 September 2003
Docket NumberNo. 05-02-01188-CV.,05-02-01188-CV.
Citation114 S.W.3d 743
PartiesTerrie F. JENEVEIN, Appellant, v. Lawrence J. FRIEDMAN, Appellee.
CourtTexas Court of Appeals

Donald M. Hunt, Mullin Hoard Brown Langston Carr Hunt & Joy, L.L.P., Lubbock, for Appellant.

Braden W. Sparks, Braden W. Sparks, P.C., Dallas, for Appellee.

Before Justices JAMES, BRIDGES and MARTIN RICHTER.

OPINION

Opinion by Justice BRIDGES.

Appellant Terrie Jenevein asserts the trial court erred in granting summary judgment resulting in dismissal of her defamation suit against appellee Lawrence J. Friedman. She asserts that the trial court erred in granting Friedman summary judgment based on the "litigation privilege," which is the privilege to make defamatory statements in the course of judicial proceedings. We reaffirm the principle that, for the litigation privilege to apply, the challenged defamatory statement must bear "some relation" to the subject matter of the underlying proceeding. We hold that the allegedly defamatory statement at issue bore some relation to the conspiracy-to-bribe count in the underlying judicial proceeding. We affirm.

Facts

Terrie Jenevein is a lawyer and the wife of Robert Jenevein, who was judge of the Dallas County Court at Law Number Three during the time relevant to this suit. Mrs. Jenevein (Jenevein) sued Lawrence J. Friedman for libel based on a statement made in an amended petition filed by Friedman on behalf of his client, Universal Image, Inc. (Universal) in a separate lawsuit (the Yahoo suit) underlying this suit. Universal sued defendants Yahoo, Inc., Broadcast.com, Inc. (Broadcast), and Mark Cuban, among others, for breach of contract. The defendants were represented by Steven Stodghill and others. At all times relevant to the instant suit, Judge David Ray Gibson presided over the Yahoo suit, in County Court At Law Number One.

Early on in the Yahoo suit, on December 23, 1999, Judge Robert Jenevein, in the absence of the presiding judge, presided over a hearing on a temporary restraining order (TRO). Judge Jenevein dissolved the TRO that Friedman had obtained from a different visiting judge the previous day. The hearing became contentious. During the hearing, Friedman presented an oral motion to recuse Judge Jenevein and filed a written motion to recuse the judge several days later.1

The Yahoo suit became more and more contentious, and on July 28, 2000, Universal filed its fourth amended petition. It continued the breach of contract claims but also added two sections, entitled "The Corrupt Conspiracy to Bribe Gibson" and "Concealed Relationships," and alleged a conspiracy to bribe Judge Gibson. The amended petition alleges that, at an ex parte meeting at Stodghill's house, Gibson and Stodghill discussed Yahoo's Motion for Sanctions against Friedman. The petition alleges that Gibson solicited "financial support" for his next political campaign, stating that he needed to be "protected from adverse political ramifications" if he sanctioned Friedman. The petition further alleges that, at Gibson's request, Stodghill promised him a fundraising event at Mark Cuban's home. The petition goes on to allege that Stodghill promised to personally fund Gibson's campaign in exchange for the ruling against Friedman.

In a previous paragraph, the petition states, "On information and belief, Cuban regularly invited Stodghill, Gibson and Robert Jenevein, another county court judge to sporting events, including Dallas Stars and Mavericks games." The petition also alleges that Stodghill and Gibson had an attorney-client relationship with respect to a family law matter, which they failed to disclose to Universal. At the end of the paragraph alleging this wrongdoing is the statement about Jenevein, which is the subject of the instant suit:

On information, ancillary to this matter but relevant to issues of pattern and pervasiveness of the type of conduct being complained of, Gibson has in other cases exchanged rulings for sexual favors, has made frequent ad litem appointments to Judge Robert Jenevein's wife and to Beverly Whittley, a lawyer with his former firm, and with whom Gibson is alleged to have a more intimate relationship.

Jenevein states she did receive some ad litem appointments from Judge Gibson, but she reads the quoted statement as including her as one who exchanged sexual favors for ad litem appointments. She vigorously contends the statement, read as such, is false and defamatory. Friedman asserts that the statement is in no way an accusation that Jenevein exchanged sexual favors for ad litem appointments from Judge Gibson.

Friedman asserted the affirmative defense of privilege and moved for summary judgment, which the trial court granted, based on "the absolute immunity applicable to pleadings filed by an attorney in pending litigation." The trial court dismissed Jenevein's libel claim with prejudice, and she brought this appeal.

Standard of Review

To prevail, defendants moving for summary judgment must expressly present and conclusively prove all essential elements of their defense as a matter of law; there can be no genuine issues of material fact. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979)). In deciding whether there is a disputed material fact issue, we take all evidence favorable to the non-movant as true. Id. We indulge every reasonable inference from the evidence in favor of the non-movant and resolve any doubts in the non-movant's favor. Id.

The Litigation Privilege and the Pertinence or "Some Relation" Test

Jenevein argues that Friedman has not shown he is entitled to the litigation privilege because the allegedly defamatory statement2 had no connection to the subject of the Yahoo suit. Friedman counters that Texas Supreme Court precedent negates a rule imposing a requirement that the allegedly defamatory statement be related to the litigation for the privilege to apply.

"Any communication, oral or written, uttered or published in the due course of a judicial proceeding is absolutely privileged and cannot constitute the basis of a civil action in damages for slander or libel." Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 111, 166 S.W.2d 909, 912 (Tex.1942) (citations omitted). "This privilege extends to any statement made by the judge, jurors, counsel, parties or witnesses, and attaches to all aspects of the proceedings, including statements made in open court, pre-trial hearings, depositions, affidavits and any of the pleadings or other papers in the case." James v. Brown, 637 S.W.2d 914, 917-18 (Tex.1982). The law allows absolute privilege or immunity for a communication because of the occasion in which it is made. Reagan, 140 Tex. at 113, 166 S.W.2d at 913. The rule is one of public policy "founded on the theory that the good it accomplishes in protecting the rights of the general public outweighs any wrong or injury which may result to a particular individual." Id. The competing interests underlying the litigation privilege or "judicial proceedings privilege" have been described as follows:

Underlying [the] general doctrine of absolute immunity from liability in libel and slander for statements made in the course of a judicial proceeding is a policy decision by the courts that access to the judicial process, freedom to institute an action, or defend, or participate therein without fear of the burden of being sued for defamation is so vital and necessary to the integrity of our judicial system that it must be made paramount to the right of an individual to a legal remedy where he has been wronged thereby.

Jones v. Trice, 210 Tenn. 535, 360 S.W.2d 48, 51 (1962).

Our review of precedents on the litigation privilege reveals that the Texas Supreme Court has alluded to, but has not addressed, the exact issue presented here—whether the defamatory statement must be connected to the subject matter of the proceeding for the privilege to apply. Nonetheless, this Court has directly addressed this issue and has consistently required that the defamatory matter bear some relationship to the judicial proceeding to be protected by the privilege.

The case of Runge v. Franklin, 72 Tex. 585, 10 S.W. 721 (1889), concerned an underlying suit in which plaintiff-stockholders alleged a fraudulent scheme by the president and directors of a corporation to destroy the stockholders' interest. Runge, a director, subsequently sued the stockholders for libel. In examining whether the statements in the underlying suit were privileged, the court first explicitly noted that the statements "[did] not go outside the pertinent matters" in the suit. Id. at 588, 10 S.W. at 722-23. Nonetheless, the Runge court went on to examine a number of cases and appeared to adopt a rule applying the privilege even if the defamatory statement was "irrelevant to the matter in hand." Id.

In Reagan, the supreme court affirmed that the privilege applies to communications made not only to courts, but to bodies that exercise quasi-judicial powers, holding that a statement to the state insurance commissioners was privileged. The Reagan court broadly described the privilege: "The falsity of the statement or the malice of the utterer is immaterial, and the rule of nonliability prevails even though the statement was not relevant, pertinent and material to the issues involved in the case." Reagan, 140 Tex. at 111, 166 S.W.2d at 912. The Court cited as its first authority Texas Jurisprudence,3 followed by a number of cases, including Runge.

The broad statements in Runge and Reagan notwithstanding, the parties do not cite, nor do we find, any cases in which the Texas Supreme Court reaches the issue and rejects a pertinence test. This Court, however, when reaching the issue has required that some relationship exist between the statement and the proceeding. Frost v. De Bogory, 291 S.W.2d 414 (Tex. Civ.App.-Dallas 1956, no writ). In Frost, we...

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