Littles v. Riverwalk Council of Co-Owners, Inc., 01-16-00790-CV
| Decision Date | 04 October 2018 |
| Docket Number | NO. 01-16-00790-CV,01-16-00790-CV |
| Parties | SABRENDA T. LITTLES, Appellant/Cross-Appellee v. RIVERWALK COUNCIL OF CO-OWNERS, INC. AND JDH ASSOCIATION MANAGEMENT CO., Appellees/Cross-Appellants |
| Court | Texas Court of Appeals |
On Appeal from the 165th District Court Harris County, Texas
Appellant/cross-appellee, Sabrenda T. Littles, has filed a motion for en banc reconsideration of our July 31, 2018 opinion and judgment. See TEX. R. APP. P. 49.7. We deny Littles's motion for en banc reconsideration, but withdraw our opinion and judgment of July 31, 2018, and we issue the following opinion and judgment in their stead.
Littles challenges the trial court's rendition of summary judgment in favor of appellees/cross-appellants, Riverwalk Council of Co-Owners, Inc. ("Riverwalk") and JDH Association Management Co. ("JDH") (collectively, "appellees"), in Littles's suit against them for defamation per se. In three issues, Littles contends that the trial court erred in granting appellees' matter-of-law and no-evidence summary judgment motions. In their sole cross-point,1 appellees contend that the trial court erred in denying their summary-judgment motion as to their claim that the Texas Defamation Mitigation Act (the "DMA")2 bars Littles' defamation claim against them.
We affirm.
In her amended petition, Littles, a condominium owner and board member of Riverwalk, a homeowners association, alleged that on February 16, 2015, members of Riverwalk and employees of JDH, the management company for the Riverwalk community, published defamatory statements about her, including:(1) she was "crazy"; (2) she was "trying to get rid of certain management company employees"; (3) she was "trying to corrupt the minds of residents"; (4) she was "tainted"; (5) "nobody c[ould] stand" her; (6) she was "real dirty"; (7) she was "bipolar"; (8) she was "a hot fricking mess"; (9) she did "not have a permanent job"; (10) she, "as an anesthetist, might give someone an overdose"; (11) she was "evil"; (12) she was "traumatized by her childhood"; (13) she "showed her ass at a meeting"; (14) she was a "liar"; (15) she was "stupid"; (16) she "tried to rig the homeowners board member election"; (17) she was "a motherfucker"; and (18) she was a "bitch."
According to Littles, appellees "published oral communications," referred to her by her name, injured her reputation, "exposed [her] to public hatred, contempt and ridicule," "impeached [her] honesty, integrity, virtue and reputation," and "imputed a mental disease to [her]." Littles asserted that appellees' defamatory statements were false, made with actual malice, and affected her membership, reputation, and effectiveness on the Board of Directors for Riverwalk.
In their first summary-judgment motion, appellees argued, based on agency principles, that because seven of the allegedly defamatory statements were made by a condominium owner who was not a board member of Riverwalk, an employee of JDH, or an agent of either, they, as a matter of law, "cannot be imputed to JDH or Riverwalk." Moreover, in regard to the remaining eleven statements, appelleesasserted that they were not made by appellees' agents while acting within the scope of their authority or "in furtherance of [appellees'] business [or] for the accomplishment of the object for which they act[ed] as agents."
In their second summary-judgment motion, appellees asserted that Littles could produce no evidence of damages, which was required as the statements at issue do not constitute defamation per se.
In their third summary-judgment motion, appellees argued that because Littles did not, pursuant to the DMA, make a timely written request upon them "to correct, clarify, or retract the [alleged] defamatory statements," her defamation claim must be dismissed as a matter of law.3
In her response to appellees' summary-judgment motions, Littles asserted that appellees relied upon the wrong standard in making their arguments; the statements at issue were "not gossip," but "oral defamation [that was] slanderous per se"; and appellees had not met their summary-judgment burden. She also asserted that she had complied with the DMA by "forward[ing] to [appellees] a verbatim transcript which identified, with particularity, the defamatory statements at issue as well as an explanation of how the statements were defamatory as a matter of law." And she further asserted that appellees had waived their DMAchallenge.4 Moreover, Littles argued that because appellees had made the defamatory statements with actual malice, a request for "'correction,' 'clarification' or 'retraction' [was] not required" under the DMA.
After a hearing on appellees' summary-judgment motions, the trial court, in two separate orders, granted appellees' matter-of-law summary-judgment motion and no-evidence summary-judgment motion. In yet another order, the trial court denied appellees' third summary-judgment motion in which they asserted that Littles had failed to comply with the DMA.
Littles then filed a motion to modify the trial court's judgment, asserting that the trial court could not enter two "final judgments" in a case, and arguing that "[i]f [the] court grant[ed] [a] no-evidence summary judgment motion, it d[id] not have the authority to . . . grant" summary judgment as a matter of law as well. She also asked the trial court to vacate its order granting appellees' matter-of-law summary-judgment motion.
Appellees also filed a motion to modify the trial court's judgment, noting that the trial court had signed three separate orders regarding their summary-judgment motions—one granting their matter-of-law summary-judgment motion, another granting their no-evidence summary-judgment motion, and a thirddenying their summary-judgment motion regarding the DMA. They requested that the trial court combine its three previous orders and enter a single final judgment granting their original matter-of-law and no-evidence summary-judgment motions.5
The trial court denied Littles's motion to modify its judgment and granted appellees' motion, signing a single final judgment in which it granted appellees' matter-of-law and no-evidence summary-judgment motions and dismissed Littles's defamation per se claim.6
We review a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Valence Operating, 164 S.W.3d at 661; Provident Life, 128 S.W.3d at 215. If a trial court grants summary judgment without specifying the grounds for granting the motion, we must uphold the trial court's judgment if any of the asserted grounds aremeritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
A party seeking summary judgment may move for both matter-of-law and no-evidence summary judgment. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex. 2004); see TEX. R. CIV. P. 166a(c), (i). When a party has sought summary judgment on both grounds, we typically review first the propriety of the summary judgment under the no-evidence standard. See Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Deweese v. Ocwen Loan Serv. L.L.C., No. 01-13-00861-CV, 2014 WL 6998063, at *2 n.1 (Tex. App.—Houston [1st Dist.] Dec. 11, 2014, no pet.) (mem. op.); Poag v. Flories, 317 S.W.3d 820, 825 (Tex. App.—Fort Worth 2010, pet. denied). However, in the interest of efficiency, we may review a summary judgment under the matter-of-law standard first if it would be dispositive. See Deweese, 2014 WL 6998063, at *2 n.1; Poag, 317 S.W.3d at 825; see also TEX. R. APP. P. 47.1.
In a matter-of-law summary-judgment motion, the movant has the burden to show that no genuine issue of material fact exists and the trial court should grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant moving for summary judgment as a matter of law must either: (1) negate at leastone essential element of each of the plaintiff's causes of action, or (2) plead and conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Once the movant meets its burden, the burden shifts to the non-movant to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Transcon. Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
In her third issue, Littles argues that the trial court erred in granting appellees' matter-of-law summary-judgment motion on her defamation per se claim because "multiple fact[] issues abound in this case" that preclude summary judgment.
The tort of defamation includes libel and slander. Neely v. Wilson, 418 S.W.3d 52, 60 (Tex. 2013). Littles's claim in the instant case is for slander, i.e., a defamatory statement that is orally communicated or published to a third person without legal excuse. See id.; Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d640, 646 (Tex. 1995). To establish the elements of her defamation claim, Littles must show that appellees: (1) published an oral false statement of fact; (2) that was...
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