Oliva v. Davila

• Decision Date: 24 February 2012
• Docket Number: No. 04–10–00566–CV.,04–10–00566–CV.
• Citation: 373 S.W.3d 94
• Parties: Juan Gerardo OLIVA, Appellant v. Pioquinto Ramon DAVILA, Appellee.
• Court: Texas Court of Appeals

373 S.W.3d 94

Juan Gerardo OLIVA, Appellant

v.Pioquinto Ramon DAVILA, Appellee.

No. 04–10–00566–CV.

Court of Appeals of Texas, San Antonio.

Dec. 14, 2011.

Rehearing Overruled Feb. 24, 2012.

David C. ‘Clay’ Snell, Bayne, Snell & Krause, L.L.P., San Antonio, TX, Gershon D. Cohen, Alamo Heights, TX, for Appellant.

Carlos M. Zaffirini Sr., Zaffirini & Castillo, Laredo, TX, for Appellee.

Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, STEVEN C. HILBIG, Justice.

OPINION

Opinion by: SANDEE BRYAN MARION, Justice.

This is an appeal from a jury verdict in favor of appellee following a suit for slander. Because we conclude the evidence is legally insufficient to support the jury findings on liability and on damages, we reverse and render a take-nothing judgment against appellee and in favor of appellant.

BACKGROUND

Appellant, Juan Oliva, and appellee, Pioquinto Davila, have known each other since the late 1970's when Oliva dated Davila's niece, Rosina. Oliva and Rosina eventually married and the two families remained close for almost thirty years. In 1994, after working in other cities in Texas, Oliva returned to Laredo to begin work with the U.S. Customs Service. Oliva, a licensed CPA, began to prepare Davila's tax returns. Davila's wife designated Oliva as the executor of her will. Davila and his wife had no children.

In 2000, Davila asked Oliva for assistance with his estate planning. According to Oliva, Davila wanted to leave a substantial portion of his estate to Rosina because Davila said he was Rosina's father. Davila began researching the estate issues, including family partnerships and gifts. Davila eventually decided to use a trust as the vehicle to handle his estate and he sought the assistance of a company known as The Estate Plan, which provided estate planning services and attorneys to help create trusts. A Texas attorney represented Davila and his wife, and, in 2001, they executed a trust. The trust provided that upon the death of both Davilas, their estate would be distributed to approximately twenty of Davila's relatives, including Rosina and the four Oliva children. The Davilas were trustees of the trust during their lifetime, with Oliva as a successor trustee. The trust was fully revocable during the Davilas' lifetime and partially revocable upon the death of either Mr. or Mrs. Davila.

In 2001, Mrs. Davila fell and had to be hospitalized. The Davilas later hired a Mexican citizen, Guadalupe Lozano, to care for Mrs. Davila. Eventually, Mrs. Davila moved to a nursing home, and she died in early 2003. At this time, Oliva and Davila were still close, and Oliva handled the arrangements for Mrs. Davila's funeral. Oliva began to notice that Davila and Lozano, who is forty-two years younger than Davila, were becoming romantically involved. In 2007, Oliva was assisting Davila with his telephone bill when Oliva discovered approximately $50,000 in checks from Davila's account had been written to Lozano and another $20,000 to cash. Over the next several days, Oliva met with Davila and Davila's siblings to discuss the disbursements to Lozano. Oliva, concerned that the gifts to Lozano consisted of trust property and that Lozano may have influenced Davila to dispose of trust assets, asked for a trust accounting. Davila's and Oliva's relationship eventually became adversarial, and they both hired attorneys.

On or about July 5, 2008, Oliva went to a vacant house owned by Davila to remove his [Oliva's] personal property, which Davilahad allowed him to store in the house.¹ Because the locks had been changed, Davila's brother came to the house and unlocked the door for Oliva. Once inside the house, Oliva discovered the house had been ransacked and numerous items of his personal property were missing. On the advice of his attorney, Oliva filed a police report. The police “case report” states the “reporting party [Oliva] stated to police that an unknown subject(s) committed the said offenses at 2017 Maryland.” Oliva later spoke with an investigator with the Laredo Police Department, Roberto Reyes, who instructed Oliva to prepare an inventory of the missing items. Oliva gave Reyes an inventory captioned “CONFIDENTIAL PERSONAL SENSITIVE INFORMATION—DO NOT DISCLOSE TO PUBLIC.” As part of the inventory, Oliva provided background information, a description of the missing items, and the names of witnesses. Oliva also identified as potential suspects the seven people, including Davila, who had access to the house. Davila later admitted he instructed people to remove items from the house, including some of the property listed on Oliva's inventory. No criminal charges were ever filed and the case was closed three months later.

In 2008, in connection with a separate lawsuit between Oliva and Davila, Davila and Rosina agreed to a DNA test to determine whether he was her biological father. The results indicated he was not.

On May 27, 2009, Davila sued Oliva claiming Oliva had slandered him by saying he was Rosina's father and by reporting the missing property to the police and accusing Davila of having stolen the property. Trial commenced on March 30, 2010. On the second day of trial, Oliva's attorneys filed a Motion for Leave to File an Amended Answer, which included the defenses of limitations and substantial truth. The trial court denied the motion. The case was submitted to the jury on a charge that consisted of twenty-two questions. The jury returned a verdict in Davila's favor on his claims for defamation and intentional infliction of emotional distress. Oliva's motion for new trial was overruled by operation of law, and this appeal ensued.

MOTION FOR LEAVE TO FILE AMENDED ANSWER

In its pretrial scheduling order, the trial court set December 9, 2009 as the deadline for any amended pleadings filed by the defendant, Oliva. Trial commenced on March 30, 2010. Oliva filed his Motion for Leave to File First Amended Answer the next day, which the court denied. On appeal, Oliva asserts the trial court erred in denying his motion, which raised several new affirmative defenses, including the statute of limitations and substantial truth.

Pleadings may be amended within seven days of trial “only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.” Tex.R. Civ. P. 63. Under Rule 63, a trial court has no discretion to refuse an amendment unless (1) the opposing party presents evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its face, and the opposing party objects to the amendment. Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 940–41 (Tex.1990) (holding amendment proper and mandatorybecause amendment was of a formal, procedural nature that merely conformed pleadings to the evidence at trial and did not result in surprise or prejudice); Hardin v. Hardin, 597 S.W.2d 347, 350 (Tex.1980) (holding amendment was not proper or mandatory because amendment was substantive in that it added affirmative defenses and, thus, changed the nature of the trial itself). Also, when it appears the new claim or defense was known to the party seeking to file the amendment, or by reasonable diligence, it could have been known at such a time as would have enabled the party to include it in his former plea, the request should be denied. Mo. Pac. R Co. v. Buenrostro, 853 S.W.2d 66, 71 (Tex.App.-San Antonio 1993, writ denied). When, as here, amendments that introduce new substantive matters have been refused by the court under Rule 63, the burden of showing an abuse of discretion is on the complaining party, rather than on the opposite party to show surprise. Hardin, 597 S.W.2d at 349.

A. Limitations Defense

Slander is a defamatory statement that is orally communicated or published to a third person without legal excuse. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995). A claim for slander must be brought not later than one year after the day the cause of action accrues. Tex. Civ. Prac. & Rem.Code Ann. § 16.002(a) (West 2002). The arguments made here by Oliva are similar to those considered and rejected by a panel of this court in Buenrostro. Here, as in that case, Oliva contends that raising the defense of limitations would not have surprised or prejudiced Davila because Davila's own pleadings demonstrated the defense of limitations ² and Davila should have anticipated the defense.³ Also here, as in Buenrostro, Oliva contends the amendment would not require Davila to present any new facts to prove his case, but instead, would have merely required him to show the dates upon which the defamatory statements were made and how they occurred within the applicable limitations period. Finally, Oliva contends allowing the amendment would not have prejudiced Davila's presentation of his case because Davila's attorney examined Oliva during Oliva's deposition about the dates of the statements concerning Davila's paternity; two of Davila's siblings to whom Oliva admitted publishing the statement testified at trial; and Davila could have called as a witness his own attorney who in his questions to Oliva said Oliva published the statement to him.

On the other hand, Davila argues Oliva waited until after the deadline set in the scheduling order to file his motion for leave to amend and did not do so until the eve of trial.⁴ Davila's attorney also argued before the trial court that an amendment would amount to both surprise and prejudice because he did not cross-examine Oliva during his deposition regarding the time period in which he made the statements and Davila did not have an opportunity to seek that information from other witnesses. Finally, Davila relies on Oliva's concession in his brief on appeal that Oliva's “trial attorneys neglected the case and did not raise the affirmative defense of ... limitations, did not respond to ...