Redwine v. Peckinpaugh

• Decision Date: 20 September 2017
• Docket Number: NO. 12-16-00123-CV,12-16-00123-CV
• Citation: 535 S.W.3d 44
• Parties: Brinda REDWINE d/b/a Texas Working Dogs, Appellant v. Brian PECKINPAUGH d/b/a Monster Malaks/Natural Born Guardians, Appellee
• Court: Texas Court of Appeals

535 S.W.3d 44

Brinda REDWINE d/b/a Texas Working Dogs, Appellant

v.Brian PECKINPAUGH d/b/a Monster Malaks/Natural Born Guardians, Appellee

NO. 12-16-00123-CV

Court of Appeals of Texas, Tyler.

Opinion delivered September 20, 2017.

Julia F. Pendery, for Appellant.

M. Keith Dollahite, for Appellee.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

OPINION

Greg Neeley, Justice

Brinda Redwine appeals the trial court's judgment and award of damages rendered against her for defamation of Appellee Brian Peckinpaugh d/b/a Monster Malaks (collectively Peckinpaugh). Redwine raises five issues on appeal. We reverse and render in part, modify in part, and affirm as modified.

BACKGROUND

Redwine has been a breeder of livestock guardian dogs in Corsicana, Texas, for twenty years. She operates a website called WorkingDogs.com. In 2010, Peckinpaugh, who owned a business that bred Kangal guardian dogs, contacted Redwine to ask if she would assist him with his website. Redwine agreed, and the two became friends.

In 2011, Peckinpaugh told Redwine that he was importing a new dog breed from Turkey called "Turkish Boz." Redwine later researched that breed online and found pictures of its being used as a fighting dog in Turkey. Redwine found dog fighting to be extremely objectionable. As a result, she informed Peckinpaugh that she no longer desired to associate with him because she feared their continued association would ruin her reputation in the livestock guardian dog community.

Thereafter, Redwine posted statements on her website in an attempt to distance herself from Peckinpaugh. Specifically, she posted that she had helped Peckinpaugh make his website before she realized he was a "dog fighter." She further wrote that the Turkish Boz dogs that Peckinpaugh imported suffered from elbow dysplasia

, were not vaccinated, and several died from parvo or distemper. Finally, she posted that the dogs were being shipped into this country by the Taliban and Peckinpaugh sent money from his sales of the dogs to a known hater of Americans.

In November 2012, Peckinpaugh sued Redwine for defamation and sought to recover actual and exemplary damages.¹ The matter proceeded to a jury trial on September 21, 2015. At trial, the court's charge asked the jury about seven statements Peckinpaugh alleged Redwine had made about him. The jury answered in the affirmative that (1) Redwine had made each of the seven statements, (2) each of the statements was false, and (3) Redwine knew or should have known, in the exercise of ordinary care, that the statements were false and had the potential to be defamatory. As a result, the jury awarded $200,000.00 for past injury to reputation, $50,000.00 for future injury to reputation, $5,000.00 for mental anguish in the past, and $1.00 for mental anguish in the future. The jury further awarded $40,000.00 for lost income in the past and $1.00 for lost income in the future. Finally, the jury awarded $250,000.00 in exemplary damages. Judgment was entered on April, 21, 2016, and this appeal followed.

DECRETAL LANGUAGE IN THE JUDGMENT

In her first issue, Redwine argues that the judgment is voidable because it lacks the necessary decretal language.

Standard of Review

An order that fails to include any decretal language will not result in a final judgment since it adjudicates nothing. See In re Wilmington Tr., Nat'l Ass'n , No. 14-17-00074-CV, 524 S.W.3d 790, 792, 2017 WL 946759, at *2 (Tex. App.—Houston [14th Dist.] Mar. 9, 2017, no pet.). Because the finality of a judgment raises the issue of jurisdiction, it is a legal question we review de novo. See In re Guardianship of Miller , 299 S.W.3d 179, 184 (Tex. App.—Dallas 2009, no pet.).

Judgments, like other written instruments, are to be construed as a whole toward the end of harmonizing and giving effect to all the court has written. Constance v. Constance , 544 S.W.2d 659, 660 (Tex. 1976). Conclusive effect is not to be given to the commonly employed decretal words. See id. The determination of what the trial court adjudicates in its judgment is to be determined from a fair reading of all the provisions of the judgment. See id. In other words, a judgment is tested by its substance rather than by its form, and no particular phraseology is required to make a judgment valid. See Tourtelot v. Booker , 160 S.W. 293, 296 (Tex. Civ. App.—El Paso 1913, writ ref'd). However, the language employed should indicate clearly action of a judicial character. See id. Thus, a judgment must show intrinsically and distinctly, rather than inferentially, that the matters in the record have been determined in favor of one of the litigants or that the rights of the parties in litigation have been adjudicated. See id.

Governing Law

A judgment is the consideration and determination of a court of competent jurisdiction on the matters submitted to it in an action or proceeding. See Sw. Bell Tel. Co. v. Griffith , 575 S.W.2d 92, 96 (Tex. Civ. App.—Corpus Christi 1978, writ ref'd n.r.e.) ; see also TEX. R. CIV. P. 301. The primary objective in rendering judgment is concluding a controversy with as high of a degree of exact justice as possible. See In re Marriage of Grossnickle , 115 S.W.3d 238, 248 (Tex. App.—Texarkana 2003, no pet.). As a result, the judgment's language must be certain and definite. See id. The essence of a judgment consists of either an award or a denial of the remedy sought. See State v. Reagan Cty. Purchasing Co. , 186 S.W.2d 128, 136 (Tex. Civ. App.—El Paso 1944, writ refused w.o.m.).

A judgment is more than mere findings of fact in the controversy or even a recommendation as to the litigants' future course. See In re Thompson , 991 S.W.2d 527, 532 (Tex. App.—Beaumont 1999, no pet.) ; see, e.g. , Davis v. Hemphill , 243 S.W. 691, 693 (Tex. Civ. App.—Fort Worth 1922, no writ). Rather, it is the solemn sentence of law pronounced by the court on the facts found. See Davis , 243 S.W. at 693. The judgment is to be distinguished from a judge's mere expressions of opinion where there is no intention that the expressions are to be accepted as the judgment of the court. See Chandler v. Reder , 635 S.W.2d 895, 897 (Tex. App.—Amarillo 1982, no writ).

"Decretal" means the granting or denying of the remedy sought. Envtl. Procedures, Inc. v. Guidry , 282 S.W.3d 602, 620 n.21 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). The factual recitations or reasons preceding the decretal portion of a judgment form no part of the judgment itself. Alcantar v. Oklahoma Nat'l Bank , 47 S.W.3d 815, 823 (Tex. App.—Fort Worth, 2001, no pet.) ; see also Hines v. Villalba , 231 S.W.3d 550, 553 (Tex. App.—Dallas 2007, no pet.) (where judgment recited amount of appellate attorney's fees, but lacked decretal language ordering defendants to pay those fees, judgment could not be used to enforce payment of those fees); Crider v. Cox , 960 S.W.2d 703, 705 (Tex. App.—Tyler 1997, writ denied).

Analysis

In the case at hand, the trial court's judgment stated, in pertinent part, as follows:

Based on the jury's verdict, it is ADJUDGED that:

1. On the claim of defamation, the jury finds in favor of Plaintiff, BRIAN PECKINPAUGH, and against Defendant, BRINDA REDWINE d/b/a TEXAS WORKING DOGS, in the amount of $295,002.00 (Two Hundred Ninety Five Thousand Two and No/100 Dollars).

2. On the claim for exemplary damages, the jury finds in favor of Plaintiff, BRIAN PECKINPAUGH, and against Defendant, BRINDA REDWINE d/b/a TEXAS WORKING DOGS, in the amount of $250,000.00 (Two Hundred Fifty Thousand and No/100 Dollars).

3. Plaintiff, BRIAN PECKINPAUGH, is entitled to prejudgment interest on the damages awarded herein, measured from September 1, 2012, at the rate of 5% per annum, in the sum of $81,750.00 (Eight One Thousand Seven Hundred Fifty and No/100 Dollars).

4. Plaintiff BRIAN PECKINPAUGH, is entitled to postjudgment interest on the total amount of the judgment and any prejudgment interest awarded hereinabove, at the rate of 5% per annum from the date this judgment is signed until paid.

5. Costs are hereby taxed against Defendant BRINDA REDWINE d/b/a TEXAS WORKING DOGS.

6. All relief requested by DEFENDANTS is hereby DENIED.

7. All relief requested by PLAINTIFF against DEFENDANT RICKY THOMAS was nonsuited in open court and PLAINTIFF is entitled to no relief against DEFENDANT RICKY THOMAS by virtue of the nonsuit in open court.

IT IS ORDERED that any party in favor of whom judgment is awarded is entitled to enforce this judgment through abstract, execution and any other process necessary.

This judgment finally disposes of all parties and all claims and is appealable.

To "adjudge" means to "adjudicate" or to "award judicially." Adjudge , BLACK'S LAW DICTIONARY (10th ed. 2009). The word "adjudged" often is used alongside the word "decreed" in the typical decretal language, i.e., "ordered, adjudged, and decreed." See, e.g., In re Wilmington Tr. , 524 S.W.3d at 790, 2017 WL 946759, at *2.

Here, in its judgment, the trial court set forth that it made an adjudication based on the jury's verdict. Shortly after its use of the word "adjudged," the trial court used a colon, which denoted that the language that followed was part of the court's adjudication based on the jury's verdict.² In that subsequent body of text, the court found for Peckinpaugh on the issue of defamation and awarded actual damages, exemplary damages, prejudgment interest, and postjudgment interest. The court further ordered costs taxed against Redwine and denied her any relief sought. Lastly, the court ordered that Peckinpaugh is entitled to enforce the judgment through abstract, execution, and any other process and explicitly set forth its intention that the judgment "finally disposes of all parties and all claims and is appealable."

Based on the foregoing, we conclude that the language of the judgment in this case is sufficiently certain and definite. See In re Marriage of Grossnickle , 115 S.W.3d at 248. Moreover, it clearly indicates action of a judicial character and...