Krishnan v. Law Offices of Henrichson

• Decision Date: 25 July 2002
• Docket Number: No. 13-01-204-CV.,13-01-204-CV.
• Citation: 83 S.W.3d 295
• Parties: Elizabeth G. KRISHNAN, M.D., Appellant, v. LAW OFFICES OF PRESTON HENRICHSON, P.C. and Katherine Driscoll Julia, Appellees.
• Court: Texas Court of Appeals

83 S.W.3d 295

Elizabeth G. KRISHNAN, M.D., Appellant, v. LAW OFFICES OF PRESTON HENRICHSON, P.C. and Katherine Driscoll Julia, Appellees.

No. 13-01-204-CV.

Court of Appeals of Texas, Corpus Christi.

July 25, 2002.

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Ronald G. Hole, Hole & Alvarez, L.L.P., McAllen, for Appellant.

Jane M. N. Webre, Sara M. Wilder, Steve McConnico, Scott, Douglass & McConnico, L.L.P., Austin, for Appellees.

Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.

OPINION

Opinion by Justice RODRIGUEZ.

Appellant, Elizabeth G. Krishnan, M.D., brings this appeal following a summary judgment dismissing her defamation cause of action against appellees, Law Offices of Preston Henrichson, P.C., and Katherine Driscoll Julia.¹ By three issues, appellant contends the trial court erred by: (1) overruling her objections to appellees' summary judgment evidence; (2) granting appellees' summary judgment; and (3) denying appellant's motion for a partial summary judgment. We affirm.

I. BACKGROUND

In May 1993, Belinda Rodriguez, approximately twenty weeks pregnant, arrived at Knapp Medical Center complaining of pain in her abdomen. After Dr. Gonzalo Caballero, Rodriguez's prenatal care physician, examined her, he determined that she had a ruptured placenta. Because Dr. Caballero was not handling major obstetric complications, he referred Rodriguez to appellant's care. Appellant performed an emergency hysterectomy to stop the bleeding and to remove Rodriguez's placenta. Appellant also performed a cesarean section. Rodriguez's baby did not survive the operation. During the years following the surgery, Rodriguez's attempts to become pregnant were unsuccessful.

In November 1998, Rodriguez underwent an exploratory laparoscopy to determine the source of her infertility. The surgery revealed segments of Rodriguez's fallopian tubes were missing. The only explanation for this was that, at some point in time, a doctor had performed a bilateral tubal ligation. Rodriguez later received a second opinion confirming the diagnosis. Because Rodriguez never consented to such an operation or sterilization, she contacted appellees to seek legal remedies.

On June 16, 1999, appellees sent separate notice letters to appellant, Dr. Caballero, and Knapp Medical Center asserting a "health care liability claim."² However, in August 1999, appellees only filed suit against appellant and Knapp Medical Center.³ Appellant filed suit for defamation against appellees based on the contents of the letter sent to Dr. Caballero. Appellees filed a traditional motion for summary judgment and appellant filed a partial, traditional and no-evidence summary judgment motion. The trial court granted appellees' summary judgment, denied appellant's partial summary judgment, and dismissed appellant's defamation cause of action. This appeal ensued.

I. OBJECTIONS TO APPELLEES' SUMMARY JUDGMENT EVIDENCE

By her first issue, appellant contends the trial court erred in overruling her objections to appellees' summary judgment evidence. We review a trial court's decision to admit or exclude summary judgment evidence under an abuse of discretion standard. Larson v. Family Violence & Sexual Assault Prevention Ctr. of S. Tex., 64 S.W.3d 506, 511 (Tex.App.-Corpus Christi 2001, pet. denied); Ash v. Hack Branch Disturb. Co., 54 S.W.3d 401, 409 (Tex.App.-Waco 2001, pet. denied).

A. Affidavit

Appellant first objected to the affidavit of appellee, Katherine Driscoll Julia, arguing the affidavit contained hearsay and conclusory statements. To constitute competent summary judgment evidence, affidavits must be made on personal knowledge, set forth facts as would be admissible in evidence and show affirmatively that the affiant is competent to testify to matters stated therein. TEX.R. CIV. P. 166a(f); Larson, 64 S.W.3d at 511. An affidavit by an interested party must be clear, positive and direct, credible and free from contradictions and inconsistencies, and capable of being readily controverted. TEX.R. CIV. P. 166a(c). An affidavit supporting or opposing a motion for summary judgment must set forth facts, not legal conclusions. Larson, 64 S.W.3d at 514 n. 6; Hall v. Rutherford, 911 S.W.2d 422, 424 (Tex.App.-San Antonio 1995, writ denied). Statements of subjective belief are no more than conclusions and are not competent summary judgment evidence. Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994).

Appellant argues the following statement made in Julia's affidavit is conclusory: "I drafted each of these letters in good faith.... I had every intention of bringing suit against each ... of these health care providers, including Dr. Caballero ...." Because this statement is based on Julia's subjective belief, we conclude this statement is not competent summary judgment evidence. See id. The trial court abused its discretion and erred in overruling appellant's objection. See Larson, 64 S.W.3d at 511. We will not consider this portion of the affidavit. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965); Montemayor v. Chapa, 61 S.W.3d 758, 762 (Tex. App.-Corpus Christi 2001, no pet.).

However, the remaining portions of Julia's affidavit do constitute competent summary judgment evidence. See Grotjohn Precise Connexiones Intl v. JEM Fin., Inc., 12 S.W.3d 859, 867 (Tex App.-Texarkana 2000, no pet.); Muhm v. Davis, 580 S.W.2d 98, 102 (Tex.Civ.App.-Houston [1st Dist.] 1979, writ ref d n.r.e.). For instance, Julia's affidavit affirmatively sets out that she has personal knowledge of facts which led her to write the letter to Dr. Caballero. See Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex.1996). Additionally, Julia's assertions regarding her personal knowledge and experience as an attorney, and as the attorney for Rodriguez, show her competence to testify about why she sent the article 4590i letter to Dr. Caballero and why a suit was not subsequently filed against him. See Esquivel v. Mapelli Meat Packing Co., 932 S.W.2d 612, 618 (Tex.App.-San Antonio 1996, writ denied). Finally, the affidavit sets forth admissible facts. Larson, 64 S.W.3d at 512. We conclude the remaining portion of Julia's affidavit is competent summary judgment evidence. See Muhm, 580 S.W.2d at 102.

Appellant next argues the trial court erred by denying her objection to Julia's affidavit because of alleged hearsay statements. "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." TEX.R. EVID. 801(d). In this instance, Julia was simply outlining the reasons why she wrote the letter to Dr. Caballero. She was not attempting to prove appellant did in fact perform an unauthorized bilateral tubal ligation. We conclude this objection had no merit and was properly denied by the trial court.

B. Medical Records

Appellant argues the trial court erred in denying her objection to the medical records attached as an exhibit to Julia's affidavit. Appellant objected to alleged hearsay statements in the medical records and because the records were not sworn or certified.

Rule 166a(f) of the Texas Rules of Civil Procedure states that copies of papers referred to in summary judgment affidavits must be sworn or certified. Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex.1986) (citing to former rule 166 A(e), now rule 166a(f)). Copies of documents which are attached to a properly prepared affidavit are sworn copies within the meaning of rule 166a(f). Id. (citing Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex.1983)). In this instance, Julia stated in her affidavit that the medical report was a true and correct copy given to her by Rodriguez. Furthermore, we have already held Julia's affidavit is competent summary judgment evidence, without considering the portion that is not competent evidence. Therefore, we conclude the attached medical records satisfy the requirements of rule 166a(f). See id. Additionally, appellant's hearsay objections do not have any merit because none of the statements in the records were used to prove the truth of the matter asserted. See TEX.R. EVID. 801(d). The trial court properly overruled appellant's objections to the medical records.

C. Pleadings

Appellant argues the trial court erred in denying her objection to two pleadings attached to Julia's affidavit. Pleadings do not constitute summary judgment evidence and should not be considered in determining whether fact issues are expressly presented in summary judgment motions. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). However, in this instance, Julia did not attach the pleadings to prove a fact issue or contention. Rather, she attached the pleadings as a reference to a pending case she had previously referred to in her affidavit. Julia's affidavit states, in part,

[W]e filed suit on behalf of Mrs. Rodriguez and her husband, Jesus, against Knapp Medical Center and Dr. Elizabeth Krishnan. That suit, Cause No. C-4524-99-B; Rodriguez v. Krishnan, et al., is currently pending in the 93rd District Court, Hidalgo County, Texas. True and correct copies of Plaintiffs' Original Petition and the most current pleading are attached hereto as "Exhibits 11-12."

Appellant fails to cite to, and we do not find, any cases that have held pleadings from another case cannot be used to prove the existence of the pending case. Furthermore, appellant did not object to the portion of Julia's affidavit where she attests to the pending case. Thus, the trial court had judicial notice of the pending case whether or not the trial court considered the attached pleadings. See TEX.R. CIV. P. 166a(f); Schindler, 717 S.W.2d at 607. We conclude the trial court did not err in overruling appellant's objection.

D. Rodriguez's Affidavit

Finally, appellant objected to Rodriguez's affidavit because of alleged hearsay statements, and...