Larson v. Family Violence and Sexual Assault

• Decision Date: 29 November 2001
• Docket Number: No. 13-00-093-CV.,13-00-093-CV.
• Parties: Sandra LARSON, Appellant, v. FAMILY VIOLENCE AND SEXUAL ASSAULT PREVENTION CENTER OF SOUTH TEXAS, et al., Appellees.
• Court: Texas Court of Appeals

64 S.W.3d 506

Sandra LARSON, Appellant, v. FAMILY VIOLENCE AND SEXUAL ASSAULT PREVENTION CENTER OF SOUTH TEXAS, et al., Appellees.

No. 13-00-093-CV.

Court of Appeals of Texas, Corpus Christi.

November 29, 2001.

Rehearing Overruled January 31, 2002.

David Kenneth Sergi, Attorney At Law, William T. Deane, Sergi & Deance, P.l.l.c., San Marcos, for Appellant.

Carlos Villarreal, James F. McKibben Jr., Barger, Hermansen, McKibben & Villarreal, Sandra Sterba-Boatwright, Meredith, Donnell & Abernethy, Corpus Christi, for Appellees.

Before Chief Justice VALDEZ and Justices DORSEY and RODRIGUEZ.

OPINION

RODRIGUEZ, Justice.

Appellant, Sandra Larson, appeals from a summary judgment dismissing her causes of action against appellees, Family Violence and Sexual Assault Prevention Center of South Texas, The Woman's Shelter, Inc., Ann Hennis, Catrina Steinocher, Tracy Harting, Marci Gady, Laura Garza-Jimenez, Nita Carrell, and Linda McGowan. By three points of error, appellant generally contends that the district court erred in granting appellees' motion for summary judgment because 1) appellees failed to prove they were entitled to summary judgment as a matter of law, 2) appellees' evidence was inadequate to support the summary judgment, and 3) the court erred in sustaining appellees' objections to appellant's affidavit. We affirm.

Appellant was employed as executive director of the Woman's Shelter, Inc. (Shelter). Part of her job responsibilities included maintaining the operational success and financial responsibility of the Shelter. Appellant hired Cynthia Alaniz (Alaniz) to serve as the Shelter's financial director. The Shelter began receiving late notices from various creditors and having financial trouble. It was later discovered that Alaniz failed to pay quarterly payroll taxes to the Internal Revenue Service (IRS). The Shelter conducted a financial audit and discovered that the Shelter had accrued a debt with the IRS in the amount of $169,000.00. Alaniz was terminated. Appellant was placed on administrative leave and subsequently terminated as executive director. The IRS placed a tax lien on the Shelter's property as a result of the failure to make payroll tax payments. News of the tax lien reached local media and several stories were featured in the local newspaper and on television. On March 2, 1998, appellant filed suit against appellees for wrongful termination, breach of contract, tortious interference with contractual relationship, defamation, and intentional infliction of emotional distress.¹ On October 1, 1999, appellees filed a traditional motion for summary judgment and in the alternative, a no-evidence motion for summary judgment. On October 21, 1999, appellant filed her first supplemental petition.² On November 17, 1999, the court issued a final summary judgment.

We begin by addressing appellant's second point of error wherein she argues that the trial court erred in overruling her objections to appellees' evidence. We review a trial court's decision to admit or exclude summary judgment evidence under an abuse of discretion standard. See Barraza v. Eureka Co., 25 S.W.3d 225, 228 (Tex.App.-El Paso 2000, pet. denied).

Appellant objected to the affidavits of the custodians of records for the two news stations arguing that the affidavits failed to lay the proper predicate for admitting the videotape of newscasts into evidence. Appellant relies on this Court's holding in Boarder to Boarder Trucking, Inc. v. Mondi Inc., 831 S.W.2d 495, 497 (Tex.App.-Corpus Christi 1992, no pet.), which incorporated a seven prong test into Texas Rule of Evidence 901 for authentication and identification. Id. However, the Texas Court of Criminal Appeals subsequently held that the seven prong test is not needed because rule 901 is "straight forward, containing clear language and understandable illustrations."³ See Angleton v. State, 971 S.W.2d 65, 69 (Tex.Crim.App. 1998); Ballard v. State, 23 S.W.3d 178, 182 (Tex.App.-Waco 2000, no pet.). Rule 901(a) states, "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." TEX. R. EVID. 901(a). We conclude each affidavit is sufficient to support a finding that the videotape offered at trial is a copy of the two newscasts at issue in this case.

Furthermore, not only is the videotape sufficiently authenticated under rule 901(a), but it is also self-authenticated under rule 902(10).⁴ Texas Rule of Evidence 902 states that extrinsic evidence of authenticity as a condition precedent to admissibility is not required for business records accompanied by an affidavit. See TEX. R. EVID. 902(10). The two affidavits follow the form affidavit found in rule 902(10) stating that the videotape is a business record kept in the regular course of business. See id. Accordingly, the trial court did not abuse its discretion by admitting the videotape as evidence.

Appellant next contends that the trial court erred in overruling her objections to the affidavit of Tracy Harting (Harting), the Shelter's board president. Appellant objected that Harting's affidavit was not based on personal knowledge, did not establish the competency of the witness, and contained hearsay and unsubstantiated legal and factual conclusions.

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); H.S.M. Acquisitions, Inc. v. West, 917 S.W.2d 872, 881 (Tex.App.-Corpus Christi 1996, writ denied); Hall v. Rutherford, 911 S.W.2d 422, 424 (Tex.App.-San Antonio 1995, writ denied).

Harting's affidavit affirmatively sets out that she has personal knowledge of facts regarding the Shelter's financial problems. See Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex.1996); Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex.1994). Additionally, Harting's assertions regarding her personal knowledge and experience as the Shelter's board president show her competence to testify about the Shelter's financial problems. 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. H.S.M. Acquisitions, Inc., 917 S.W.2d at 881. It does include one sentence which contains hearsay. That sentence states "Ms. Cynthia Alaniz had informed a board member that if the Board really wanted to know the financial problems of the Shelter, the Board should ask for certain tax records as well as other financial records." One sentence, however, does not negate the whole affidavit. See Muhm v. Davis, 580 S.W.2d 98, 102 (Tex.Civ.App.-Houston [1st Dist.] 1979, writ ref'd) ("fact that affidavits may contain such [hearsay] statements does not require conclusion that [other] factual statements which would be admissible and which are found in the affidavits cannot be considered"). Harting's affidavit is therefore competent summary judgment evidence.

Appellant next objects to the deposition of news reporter Ronald George (George) because it conflicts with appellee Harting's affidavit. We find, however, that there is no conflict between the two documents. Appellant points this Court to George's deposition testimony which states he was under the impression that appellant made the Shelter's Board aware of the tax liability issue. However, Harting's affidavit states that she told George that "an employee" informed the Shelter's Board of the tax liability. Harting never stated that it was appellant who informed the Board, nor did she say that it was Alaniz. George's impression that it was appellant, not any other employee, is not adequate proof of a factual conflict between the two pieces of evidence.

Appellant further objects to George's deposition on the basis of hearsay and because the attachments are not authenticated, verified, sworn to, and are submitted without predicate for admission. Appellant fails to identify where in the record the attachments are located,⁵ fails to identify which parts, or sentences, contain hearsay in the deposition, and fails to provide us with any authority to support her contention. As a result of inadequate briefing, appellant's objections are waived. See TEX. R. APP. P. 38.1(h); Sisters of Charity of the Incarnate Word v. Gobert, 992 S.W.2d 25, 31 (Tex.App.-Houston [1st Dist.] 1997, no pet.); Warehouse Partners v. Gardner, 910 S.W.2d 19, 26 (Tex.App.-Dallas 1995, writ denied).

Appellant also objects to the affidavit of Margaret Neu (Neu), a Corpus Christi Caller-Times publisher, in that it failed to lay a proper predicate for newspaper articles attached to appellees' motion for summary judgment. As mentioned earlier, this Court follows the clear language of rule 901 of the Texas Rules of Evidence. See Angleton, 971 S.W.2d at 69. Rule 901(a) states, "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." TEX. R. EVID. 901(a). The affidavit of Neu is more than sufficient to lay a proper predicate to support her statement that the newspaper columns are true copies and that they were published on said dates.

Appellant finally objects to an affidavit and letter written by appellee Ann Hennis (Hennis). Appellant complains it does not meet the standards found in Casso v. Brand, 776 S.W.2d 551 (Tex.1989). Rule 166a(c) of the Texas Rules of Civil Procedure states, in relevant part, that "a summary judgment may be based on uncontroverted testimonial evidence of an interested witness, ... if the evidence is clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily...