Zurita v. Lombana

• Decision Date: 30 September 2010
• Docket Number: No. 14-08-00263-CV.,14-08-00263-CV.
• Citation: 322 S.W.3d 463
• Parties: Victor M. ZURITA, D.D.S., MS, Individually and d/b/a Heights Medical and Dental Clinic and Ana Zurita, Appellants, v. Fernando LOMBANA, M.D. and Houston Medical & Dental Center Corp., Appellees.
• Court: Texas Court of Appeals

322 S.W.3d 463

Victor M. ZURITA, D.D.S., MS, Individually and d/b/a Heights Medical and Dental Clinic and Ana Zurita, Appellants,

v.Fernando LOMBANA, M.D. and Houston Medical & Dental Center Corp., Appellees.

No. 14-08-00263-CV.

Court of Appeals of Texas,Houston (14th Dist.).

Sept. 30, 2010.

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Patrice M. Barron, Houston, for appellants.

Jeff Murphrey, Leann Kay, J. Joshua Fitzgerald, Houston, for appellees.

Panel consists of Chief Justice HEDGES and Justices SEYMORE and BROWN.

OPINION

JEFFREY V. BROWN, Justice.

Victor M. Zurita, individually and doing business as Heights Medical and Dental Clinic, and his wife Ana Zurita, the plaintiffs below, appeal a take-nothing judgment on their lawsuit against Fernando Lombana and Houston Medical & Dental Center Corp., in which they asserted malicious prosecution, tortious interference, business disparagement, and other claims. The Zuritas raise eight issues: (1) the district court's self-transfer of the case to the successor judge was void or reversible error; (2) the court erred in granting summary judgment on Ana Zurita's claim of intentional infliction of emotional distress; (3) the court erred in granting summary judgment on Dr. Zurita's business-disparagement and tortious-interference-with-prospective-business-relations claims; (4) the evidence is legally and factually insufficient to support the jury's failure to find malicious civil prosecution; (5) the court erred in directing a verdict on conspiracy; (6) the court erred in refusing to submit the Zuritas' requested jury questions; (7) the court erred in excluding certain evidence as irrelevant; and (8) the judgment should be reversed and remanded based on incurable jury argument. For the reasons stated below, we affirm.

I

The proceedings below are extensive and complicated. The following briefly summarizes the factual and procedural background between the parties. Additional facts will be discussed as needed in the analysis of each issue.

Victor Zurita, D.D.S., M.S., is a dentist and owner of a property in the Heights known as the Yale Street Clinic. In 1996, Zurita leased a portion of the Yale Street Clinic's space to Fernando Lombana, M.D. In 1999, a dispute arose over the terms of the lease agreement, and Zurita eventually evicted Lombana. On September 30, 1999, Lombana sued Zurita, and Zurita answered and asserted counterclaims. The Honorable Martha Hill Jamison of the 164th District Court was the trial judge.

Judge Jamison granted Lombana's motion for partial summary judgment on liability and his motion for summary judgment on Zurita's breach-of-contract counterclaim. Judge Jamison also struck as untimely Zurita's self-described “compulsory counterclaims” for defamation and tortious interference with business relationships. A jury heard the issue of Lombana's damages and awarded more than $1.6 million. Zurita appealed. In the interim, Lombana took action to enforce the judgment, including obtaining a temporary restraining order prohibiting Zurita from transferring assets. Zurita, unable or unwilling to file a supersedeas bond, filed for bankruptcy. According to the record, the bankruptcy court entered an order allowing the appeal to go forward.

The First Court of Appeals then reversed and rendered judgment in favor of Zurita. See Zurita v. Lombana, No. 01-01-01040-CV, 2003 WL 21027140 (Tex.App.-Houston [1st Dist.] May 8, 2003, pet. denied). The court's review was limited to Zurita's and Lombana's motions for summary judgment on liability. In particular, the court considered whether Lombana had a right to exercise the extension option in the lease or whether he had forfeited that right by subleasing a portion of the premises. Id. at *3. Based on the lease's extension option, which expressly provided that “[Lombana's] rights under this option shall terminate if ... [Lombana] assigns its interest in the lease or sublets any portion of the premises,” the court held Lombana was not entitled to exercise the option after he subleased a portion of the premises to a pharmacist without Zurita's written consent. Id. at *3-4. The court reversed the judgment and rendered judgment that Lombana take nothing from Zurita. Id. at *4. Zurita then had the bankruptcy dismissed.

In 2001, before the jury verdict in the original lawsuit, Zurita filed a separate action against Lombana and others alleging tortious interference with business relationships. This is the lawsuit before us. Like the first one, this lawsuit was in Judge Jamison's court. Zurita later amended his petition several times, adding his wife Ana as a party and additional claims. In 2005, Judge Jamison granted Lombana summary judgment on several of the Zuritas' claims, but denied summary judgment on Dr. Zurita's malicious-prosecution claim. Shortly after that, Judge Jamison recused herself, and in the same order, in her capacity as administrative judge of the civil trial division, transferred the lawsuit to another district court.

Now before the Honorable Levi Benton in the 215th District Court, the parties filed amended motions for summary judgment, and Judge Benton granted Lombana summary judgment on several of the Zuritas' claims. Dr. Zurita then went to trial before a jury on his remaining claims of malicious prosecution, intentional infliction of emotional distress, and conspiracy. The trial court granted a directed verdict on the civil-conspiracy claim, and the jury answered “no” to the remaining claims. Motions for new trial and for judgment n.o.v. were overruled, and this appeal followed.

II

In their first issue, the Zuritas contend Judge Jamison's transfer of the lawsuit to Judge Benton is void. The Zuritas argue that, because Judge Jamison recused herself, her subsequent transfer of the case to Judge Benton was improper and in violation of regional administrative rules and Harris County district court rules. They contend Judge Jamison was prohibited from taking any further action in the case, except for good cause, and she should have referred the case for reassignment by the presiding administrative regional judge. See Dunn v. County of Dallas, 794 S.W.2d 560, 563 (Tex.App.-Dallas 1990, no writ). They also suggest Judge Jamison recused herself because of impartiality, personal bias, or personal knowledge of disputed evidentiary facts concerning the proceeding. Specifically, the Zuritas point out that she had presided over the first case involving the lease dispute, which was the subject of the malicious-prosecution claim in this case, and the Zuritas had alleged that Lombana and his counsel had obtained the judgment in the first case through fraud and improper practices. See Tex.R. Civ. P. 18(b)(2)(a), (b). They also point to an item in an order granting a motion in limine prohibiting any “statements, comments, references or inferences that Judge Jamison was in any way biased in favor of Dr. Lombana” or “that one of Dr. Lombana's lawyers utilized a nickname for the judge during the course of the proceedings” as evidence that “the judge had some sort of personal relationship with original plaintiff's counsel.” ¹

Rule 3.2.5 of the rules of the civil trial division of the Harris County district courts provides that any case may be transferred from one court to another by written order of the administrative judge of the division. Further, Rule 3.2.7 provides that the administrative judge may transfer cases between courts or may assign cases from one court to another court for hearing due to illness, trial schedule, “or other sufficient reason.” Here, Judge Jamison recused herself and referred the case to “the Administrative Judge of the Civil Trial Division for transfer to another court.” Then, in her capacity as administrative judge, she transferred the case to Judge Benton. She took no further action in the case.

We conclude that Judge Jamison's order assigning the case to another judge was not void. In reaching this conclusion we are guided by the supreme court's reasoning in In re McKee, 248 S.W.3d 164 (Tex.2007) (per curiam). As here, the issue in McKee was the validity of a self-recused judge's subsequent assignment of the case as an administrative judge. Id. at 165. The court noted that “Texas Rule of Civil Procedure 18a(c) provides authority for such an assignment but only if [the judge's] order states ‘good cause’ for that action.” Id. The court stated that “good cause” is ordinarily inherent in such administrative assignments. Id. Further, the court went on to determine that it would not issue mandamus absent “extraordinary circumstances” otherwise requiring the judge's recusal. Id. The court concluded that the self-recused judge need only revise his order to state that his assignment was a purely administrative act. Id.

Here, Judge Jamison's order specified that she was recusing herself and referring the case to the administrative judge of the civil trial division for transfer to another court, and the transfer order is signed by Judge Jamison in her capacity as administrative judge of the civil trial division. Thus, it is apparent on the face of the order that the transfer was a purely administrative act. See id. Further, the record does not reflect any “extraordinary circumstances” that would have called for Judge Jamison's recusal. ² We therefore conclude that her order is not void.

III

In their second and third issues, the Zuritas contend the trial court erred in granting summary judgment on Ana's intentional-infliction-of-emotional-distress claim and Dr. Zurita's business-tort claims. We address each in turn.

A

We review the 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). Here, the appellees moved for summary judgment on both traditional and no-evidence grounds, and the Zuritas...