Weisberg v. London, No. 13-02-659-CV (TX 8/31/2004)
| Decision Date | 31 August 2004 |
| Docket Number | No. 13-02-659-CV.,13-02-659-CV. |
| Parties | GILBERT WEISBERG AND SUSY WEISBERG, Appellants, v. NORA LONDON, Appellee. |
| Court | Texas Supreme Court |
On appeal from the 404th Judicial District Court, of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
This is a case alleging intentional infliction of emotional distress and defamation. Appellants Gilbert and Susy Weisberg (the "Weisbergs") challenge the trial court's summary judgment in favor of Nora London ("London"). We affirm.
On December 4, 2001, the Weisbergs sued London for intentional infliction of emotional distress. They alleged that they resigned as members of Temple Emanuel in McAllen, Texas in May of 2001 because of philosophical differences regarding the treatment of less fortunate members of their community. They applied for membership at Temple Beth El in Brownsville, Texas. London, as treasurer of Temple Emanuel, informed Temple Beth El, in response to its inquiry, that the Weisbergs were not in good standing with Temple Emanuel when they resigned.
The Weisbergs claimed that the statement was false, asserting that they had paid all current Temple dues and assessments before they resigned. They asked London to retract the statement. She refused. The Weisbergs alleged Temple Beth El initially refused them membership based on the information provided by London. The Weisbergs claimed that London's false statement caused them extreme emotional distress.
On May 17, 2002, the Weisbergs filed their first amended petition, alleging substantially the same facts and adding a defamation cause of action. London filed a traditional motion for summary judgment on both the intentional-infliction and defamation claims on July 2, 2002. On July 8, 2002, the trial court set the hearing on the motion for summary judgment for August 8, 2002. On August 5, 2002, the Weisbergs responded to the motion for summary judgment. They filed a second amended petition the same day. In addition to the intentional-infliction and defamation causes of action, the second amended petition added a claim for declaratory relief and attorney fees.
The trial court held a hearing on London's summary-judgment motion on August 8, 2002. On August 9, 2004, both the Weisbergs and London filed post-hearing letters and additional summary-judgment affidavits. The trial court signed an "Order Granting Defendant's Motion for Summary Judgment" on August 20, 2002 (the "Order").
Our initial inquiry is always whether we have jurisdiction over an appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 779 (Tex. App.—Corpus Christi 2003, no pet.). We are obligated to determine, sua sponte, our own jurisdiction. N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam); Garcia, 101 S.W.3d at 779. Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Garcia, 101 S.W.3d at 784. Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order. Steeple Oil & Gas Corp. v. Amend, 394 S.W.2d 789, 790 (Tex. 1965) (per curiam); see Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2004). If the record does not affirmatively demonstrate our jurisdiction, we must dismiss the appeal. Garcia, 101 S.W.3d at 786.
An order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and parties. Lehmann, 39 S.W.3d at 205. In this case, after reviewing the Order and the record, we were uncertain about the trial court's intent in signing the summary-judgment order. Concluding that clarification did not require more than the determination of perfunctory issues that could be cured by a modified order, this Court abated the appeal. See Garcia, 101 S.W.3d at 785 (citing Lehmann, 39 S.W.3d at 196).1 Pursuant to rule 34.5(c)(1), we requested supplementation of the record to include (1) an order that clarified the trial court's intent with regard to finality and identified what summary-judgment materials the trial court considered in granting summary judgment, and (2) all proceedings relating to the modification of the order. See Tex. R. App. P. 27.2, 34.5(c)(1).
After remand, the trial court supplemented the record with a clarified order, including the following findings:
(a)The Second Amended Original Petition was not timely filed, no request for leave to file [it] was made or granted, and it was not considered;
(b)The Court did consider [Plaintiffs] Response to Defendant's motion for Summary Judgment and the exhibits attached to it; and
(c)The affidavit of Rabbi Cohen was not considered;
(d)The Court did consider the remaining affidavits and exhibits submitted by [Plaintiffs] August 8, 2002, letter brief to the Court and by Defendant's August 9, 2002, letter brief to the Court; and
(e)The Order signed August 20, 2002, was intended to dispose of all claims between all parties and was intended to be a final and appealable judgment.
We review the summary judgment accordingly.
Under the bylaws of Temple Emanuel, its members paid both regular dues and special assessments. It is undisputed that the Weisbergs paid the entirety of their dues for the fiscal year 2000-2001. At issue in this case, however is a special assessment that the Temple's congregation approved at a meeting on March 21, 2001. The Weisbergs attended this meeting but left before the special assessment was voted on and passed by the Temple's membership. The Weisbergs received a letter dated April 1, 2001 from the Temple budget committee stating that the assessment was due by June 30, 2001. On May 1, 2001, the Weisbergs resigned from Temple Emanuel without paying the special assessment. According to the Temple bylaws, "Resignation of any member shall not relieve him from the payment of any obligation due the congregation at the time of resignation."
In July 2001, the Weisbergs met with London and board member Larry Safir, who attempted to convince the Weisbergs to return to Temple Emanuel. Mr. Weisberg told London he would think about returning and would let her know his decision at a later time. In August, Mr. Weisberg told London the Weisbergs would not return. That same month, the Weisbergs submitted an application for membership to Temple Beth El.
Temple Beth El has a policy or practice of determining whether applicants left their former places of worship in "good standing," which refers to the applicants' financial standing. Gay Greenspan, the administrator of Temple Beth El, testified by affidavit she had made numerous inquiries regarding applicants' standing at their former places of worship throughout the United States. She also had responded to many requests for similar information from Temple Beth El.
On receipt of the Weisbergs' application for membership in Temple Beth El, Greenspan called Temple Emanuel and asked to speak to the treasurer. She was referred to London. Greenspan asked London if the Weisbergs were in good standing with Temple Emanuel. London told her that they were not in good standing. They had neither paid the assessment nor had they made alternative payment arrangements with the Temple's board. According to London's affidavit, the Temple Emanuel's board authorize the waiver of payments or specialized payment plans. If the Weisbergs had requested, they could have made other arrangements. However, the Weisbergs did not do so. Therefore, they were not members in good standing.
Meanwhile, Temple Beth El informed the Weisbergs of the difficulty with their application. The Weisbergs asked for another meeting with London and Safir. Mr. Weisberg and his daughter, Monica, met with London and Safir on September 10, 2001. They asked London to retract her statement. London told them she could not retract her statement without board approval. Monica asked that London call an emergency board meeting. London told her that Temple bylaws did not authorize her to call an emergency meeting. However, London explained, the regular board meeting was set the following week.
That same day, pursuant to Greenspan's request for written confirmation that the Weisbergs were not in good standing, London sent Greenspan a fax stating that a special assessment had been issued in March 2001 that the Weisbergs had not paid. The letter further described the Weisberg's viewpoint that they did not owe it because they resigned their membership with the Temple before the due date of the assessment of June 30, 2001.
Temple Beth El's board met on September 12, 2001. Meanwhile, the High Holy Days of the Jewish religious calendar, the most significant holidays of the Jewish religion, approached. Non-members and members who are not in good financial standing may not attend High Holy Day services. No longer members of Temple Emanuel, the Weisbergs could not attend services there. Their application for membership in Temple Beth El had not yet been approved because of the report from London they were not in good standing at Temple Emanuel. However, Temple Beth El's custom permitted the Weisbergs to pay to attend the High Holy Day services as visitors. The Weisbergs asked that they be allowed to do so, with their payment to be credited toward their dues if they were ultimately accepted as members of the Temple. Temple Beth El's board agreed. The Weisbergs attended High Holy Days at Temple Beth El. However, they did not feel comfortable or welcomed.
Temple Beth El requested additional information regarding the...
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