Date: 07-11-2002

Case Style: Mae Howard v. Kristin D. White, et al.

Case Number: 05-01-01036-CV

Judge: Rosenberg

Court: Texas Court of Appeals, Fifth District

Plaintiff's Attorney: Unknown

Defendant's Attorney: Unknown

Description: This suit arises out of Mae Howard's allegations that Kristin D. White and Barry Wells intentionally made false reports to Child Protective Services (CPS) and initiated CPS proceedings against Howard. In five issues, Howard challenges (1) the granting of summary judgment in favor of Kristin and Wells on Howard's claims for libel, slander, malicious prosecution, and conspiracy; (2) the trial court's evidentiary and special exceptions rulings; and (3) the trial court's denial of Howard's motion for new trial. We affirm in part and reverse and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

Kristin reported to CPS that her son, ITW had made an outcry that he had been sexually and physically abused by his father, Thomas R. White. At the time of the reporting, ITW was four years old, Thomas was living with Mae Howard, and Barry Wells was Kristin's boyfriend. ITW did not repeat the information to the caseworker. Howard and her children were interviewed during the investigation. In March 1999, CPS concluded there was insufficient information to determine if abuse or neglect had occurred. The caseworker recommended a child therapist for ITW. Kristin took ITW to Carolyn Badgett for therapy. During therapy, ITW made an outcry to Badgett. ITW's statements to the therapist included Howard's participation in an incident of abuse. Kristin then made another visit to CPS, reporting Howard's involvement. Again, ITW did not repeat the outcry to the caseworker. CPS did not find any reason to believe abuse had occurred.

Howard then brought an action for libel, slander, making false allegations maliciously and in bad faith to the Texas Department of Protective and Regulatory Services, and conspiracy against Kristin and Wells. They denied the allegations and asserted the affirmative defense of immunity. Kristin and Wells then filed a motion for summary judgment asserting immunity, contending that Wells never made a report to CPS, and attempting to negate various elements of Howard's causes of action. Howard filed special exceptions to the motion and objections to the evidence, as well as an evidentiary response. The trial court overruled all objections and exceptions and granted summary judgment. The trial court overruled Howard's motion for new trial. This appeal followed.

SPECIAL EXCEPTIONS TO THE MOTION FOR SUMMARY JUDGMENT

In Howard's second and third issues, she complains that the trial court overruled her special exceptions and objections to the motion for summary judgment. Howard specially excepted to the motion for summary judgment, contending that it was based on a failure to properly plead libel, attempted malicious prosecution, and conspiracy. She also objected to Wells's claim that he was not a proper party and to the section of the motion that discussed confidentiality and the impermissibility of disclosing the names of persons who report abuse to state agencies, which is provided by section 261.201 of the family code. Tex. Fam. Code Ann. § 261.201 (Vernon Supp. 2002).

A summary judgment cannot be based solely upon the failure of a plaintiff to plead a cause of action unless the defendant levels a special exception to the deficiency, affording the plaintiff an opportunity to amend his pleading to state a cause of action. Gerstacker v. Blum Consulting Eng'rs, Inc., 884 S.W.2d 845, 850 (Tex. App.-Dallas 1994, writ denied). Thus, summary judgment could not properly be granted on the grounds that Howard failed to plead libel, attempted malicious prosecution, and conspiracy. The trial court erred in failing to grant these special exceptions.

If a nonmovant wishes to complain on appeal that the movant's grounds were unclear or ambiguous, the nonmovant must file special exceptions and obtain a ruling. Clement v. City of Plano, 26 S.W.3d 544, 550 n.5 (Tex. App.-Dallas 2000, no pet.). Howard objected that it was unclear whether Wells was claiming he was an improper party. The immunity and libel sections of the motion assert that Wells did not communicate with CPS. This is sufficient to put Howard on notice that Wells was addressing an element of her causes of action requiring Wells to have communicated the abuse allegation. The trial court did not err in overruling this exception. Additionally, Howard objected to the section of the motion concerning the confidentiality of the abuse report as not being an affirmative defense. After reviewing that part of the motion, we conclude that it was not an attempt to provide an affirmative defense. The trial court did not err in overruling this objection. Accordingly, we resolve Howard's second and third issues in her favor to the extent that she argues that summary judgment was improper on the grounds that she failed to plead libel, slander, attempted malicious prosecution, and conspiracy.

OBJECTIONS TO SUMMARY JUDGMENT EVIDENCE

In Howard's fourth issue, she complains that the trial court erred in denying her objections to Kristin and Wells's summary judgment evidence.

Standard of Review and Applicable Law

Summary judgment evidence may include deposition transcripts, interrogatory answers, pleadings, affidavits, and "other discovery responses referenced or set forth in the motion or response." Tex. R. Civ. P. 166a(c). The evidence must, however, be presented in a form that would be admissible at trial. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (per curiam). We review a trial court's decision on the admission of evidence under an abuse of discretion standard. Yzaguirre v. KCS Res., Inc., 47 S.W.3d 532, 543 (Tex. App.-Dallas 2000), aff'd, 53 S.W.3d 368 (Tex. 2001); LSR Joint Venture No. 2 v. Callewart, 837 S.W.2d 693, 698 (Tex. App.-Dallas 1992, writ denied). To obtain reversal of a judgment based on the admission of evidence, the appellant must show the trial court's ruling was in error and the error probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1(a); Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).

Evidence Referred To But Not Attached to the Motion

Howard objected to the following documents and evidence, relied upon by appellees, on grounds that these items were not attached to the motion for summary judgment:

* an affidavit of Kristin White;

* an agreed plea for aggravated assault made by Thomas White for sexual assault of his stepdaughter by a previous marriage; and

* an affidavit of Barry Wells. Rules of civil procedure 166a(c), (d) and (f) require that affidavits be "referenced or set forth in the motion" or be part of the court's record and that papers referred to in an affidavit be attached to the affidavit or be part of the court's record to be used as summary judgment proof. Tex. R. Civ. P. 166a(c), (d), & (f). These documents were not attached to the motion for summary judgment and are not in the appellate record. Therefore, the trial court abused its discretion in overruling Howard's objections to them, and it would be error to consider any of the statements allegedly attributed to these documents as evidence in support of the summary judgment motion. In reviewing the merits of the summary judgment, we will not consider any purported

statements from these documents.

Reference to the Depositions of Kristin and Wells Howard objected to the depositions of Kristin and Wells on several bases. She claims that the depositions should not be considered because they were not referred to by the proper exhibit number and there was no notice of intent to use the depositions. Howard further complains that the depositions were not quoted and the original deposition was not filed. Rule 166a(d) requires parties to provide a "statement of intent" to use unfiled discovery as summary judgment proof. Tex. R. Civ. P. 166a(d). This requirement is satisfied when the discovery is attached to a summary judgment motion or response and the motion or response clearly relies on the attached discovery as support. McConathy v. McConathy, 869 S.W.2d 341, 342 n.2 (Tex. 1994) (per curiam). Here, the depositions were attached to the motion and referred to in the motion. The motion specifically referred to the page and line on which it relies. We conclude these references satisfy the rule even though appellees referred to the deposition by the wrong exhibit number. The trial court could determine whether the evidence supported the summary judgment. Therefore, the trial court did not abuse its discretion in overruling these objections to the depositions. Affidavit of Bob Frazier Howard objected to the affidavit of Bob Frazier because it was a copy and not an original. The Frazier affidavit concerned attorney's fees in defending the suit. The trial court did not award attorney's fees or sanctions. These objections are not dispositive of any issue on appeal. We need not address this complaint. See Tex. R. App. P. 47.1. Carolyn Badgett Letter Howard objected to the Badgett letter because it was not authenticated, it was hearsay, and it presented professional opinions. Kristin did not respond to these objections in the trial court or in her brief. The letter was identified in Kristin's deposition, in which she stated only that her attorney had given the letter to her. That statement is insufficient to authenticate the letter. See Tex. Rs. Evid. 901, 902 (providing for authentication and identification of documents). Therefore, the trial court abused its discretion in overruling Howard's objection to the letter.

Evidentiary Objections to Kristin's Deposition

Howard objected to Kristin's deposition because it included hearsay statements and opinions Kristin was not qualified to give, it was speculative, and Kristin lacked personal knowledge. Kristin did not respond to these objections at trial or in this appeal. In the portions of the deposition that are objected to as hearsay and prejudicial, Kristin repeats the child's outcry that was reported to the police and then to CPS and the child's further statements involving Howard's participation in the events. These statements by the child are hearsay. See Kelt v. Kelt, 67 S.W.3d 364, 367-68 (Tex. App.-Waco 2001, no pet.) (concluding out- of-court statements by child to parent regarding sexual abuse hearsay not subject to excited utterance exception). The trial court abused its discretion in overruling these objections. Howard objected to Kristin's explanation of why her child did not repeat allegations to the caseworker on the ground that she had no personal knowledge and could not render such an opinion. This testimony concerns Kristin's observations of her child's behavior with the CPS investigators and the therapist. See Tex. R. Evid. 701 (providing for lay opinion testimony). The trial court did not abuse its discretion in overruling this objection.

Evidentiary Objection to Wells's Deposition

Howard objected to Wells's deposition as not credible. A summary judgment may be based on uncontroverted testimonial evidence of an interested witness if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. Tex. R. Civ. P. 166a(c). If a summary judgment rests on the testimony of an interested witness and is of such a nature that it cannot be readily contradicted if untrue, an issue relating to credibility of the witness is presented, and summary judgment is improper. Futerfas v. Park Towers, 707 S.W.2d 149, 157-58 (Tex. App.-Dallas 1986, writ ref'd n.r.e.). Moreover, summary judgment should not be granted when the issues are inherently those for a jury, as in cases involving intent and knowledge. Id.; see Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989) (holding that if credibility of affiant or deponent is likely to be a dispositive factor in resolution of case, then summary judgment is inappropriate).

Here, the issue is whether Wells made any report to CPS, not his intent or knowledge. Because no credibility issue is involved regarding Wells, the trial court did not abuse its discretion in overruling that objection.

THE SUMMARY JUDGMENT

In Howard's first and fifth issues, she complains that the trial court erred in granting Kristin and Wells's motion for summary judgment on each of her claims. Standard of Review To be entitled to summary judgment pursuant to rule of civil procedure 166a(c), a movant must establish that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A defendant who conclusively negates at least one essential element of each theory pleaded by the plaintiff is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982). Alternatively, a defendant who conclusively proves all elements of an affirmative defense as a matter of law such that there is no genuine issue of material fact is entitled to summary judgment. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996) (per curiam). Only after the defendant-movant produces evidence entitling it to summary judgment does the burden shift to the nonmovant to present evidence creating a fact issue. Walker v. Harris, 924 SW.2d 375, 377 (Tex. 1996). We take all evidence favorable to the nonmovant as true and indulge every reasonable inference in the nonmovant's favor. Id. When a trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any theory advanced is meritorious. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

The Negating of Any Element of Howard's Causes of Action Howard alleges that neither Kristin nor Wells negated any element of her causes of action. To maintain a malicious prosecution action, a plaintiff must prove: (1) the commencement of a criminal prosecution against the plaintiff, (2) initiated or procured by the defendant, (3) which terminated in the plaintiff's favor, (4) the plaintiff was innocent, (5) there was no probable cause for the proceedings, (6) malice, and (7) damages. Alvarez v. Anesthesiology Assocs., 967 S.W.2d 871, 875 (Tex. App.-Corpus Christi 1998, no pet.) (citing Browning-Ferris Indus., Inc. v. Zavaleta, 827 S.W.2d 336, 338 (Tex. App.-Corpus Christi 1991, writ denied)). To maintain a defamation cause of action, a plaintiff must prove the defendant: (1) published a statement about the plaintiff, (2) that was defamatory, (3) while acting with negligence if the plaintiff was a private individual, regarding the truth of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). A claim for civil conspiracy requires joint action. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983). All of Howard's causes of action against Wells depend on his communication of an abuse allegation to CPS. In the motion for summary judgment, Wells attached his deposition in which he stated that he had never had any conversations whatsoever with anyone from CPS or anyone else concerning the alleged child abuse allegation. Howard does not refute this testimony by providing any competent summary judgment evidence that Wells was involved in any way with the reporting of the incident to CPS or with CPS's subsequent investigation. Wells's deposition testimony established as a matter of law that he neither initiated nor aided in the CPS investigation. See Alvarez, 967 S.W.2d at 876 (holding that uncontroverted affidavit that defendants did not speak to CPS negates communication element of causes of action).

Having negated one element of each of Howard's causes of action, the trial court did not err in granting summary judgment in Wells's favor. We resolve the first and fifth issue against Howard to the extent she complains of the granting of the summary judgment in Wells's favor. Kristin moved for summary judgment on the defamation claims. She contended that CPS never found that she knowingly and intentionally made a false report, only that CPS found insufficient evidence to conclude that abuse had occurred because ITW made his outcries to his mother and others, not to CPS caseworkers. However, as noted above, the proper summary judgment evidence demonstrates only that she made the report and the nature of her statements. She did not present any evidence that she was not negligent in making the report. See Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 819 (Tex. 1976) (negligence standard is that defendant knew or should have known that statement was false). Because she did not present any evidence addressing any element of the defamation claims, including the truth of the statement or the negligence element, Kristin failed to negate any element of the defamation claims as a matter of law. Therefore, the trial court erred in granting summary judgment in Kristin's favor on these claims on grounds that Kristin negated any elements of these claims. We resolve Howard's first and fifth issues in her favor to this extent. Kristin moved for summary judgment on the malicious prosecution claim, contending that Howard could not maintain this claim because she had never been arrested and/or unsuccessfully prosecuted as a direct result of Kristin's actions. Kristin's evidence shows that she made a report to CPS that resulted in a CPS investigation. In Howard's affidavit, she stated that the caseworker closed the file after investigating the first report and that, after the second report, Howard's children were interviewed but the caseworker concluded there was no "just cause to investigate further." Howard submitted reports from caseworkers indicating that they found no cause to believe that abuse concerning Howard's children had occurred. Howard did not produce any evidence that a complaint was filed against her charging her with commission of a crime as a result of Kristin's reports or that the complaint resulted in an arrest or prosecution. In fact, her evidence established that there had been no prosecution that terminated in her favor. See Futerfas, 707 S.W.2d at 161 (summary judgment proper when undisputed facts included admission by plaintiff that he had not been arrested as a result of criminal complaint filed by defendants, thus establishing criminal prosecution against plaintiff did not terminate in his favor). Therefore, the trial court properly granted summary judgment on the malicious prosecution claim in Kristin's favor. We resolve Howard's first and fifth issues against her to this extent. Kristin contended that she was entitled to summary judgment on the conspiracy claim because she, not Wells, contacted CPS. Because Wells's testimony established as a matter of law that Wells did not communicate with CPS in this matter and therefore there was no joint action by Kristin and Wells, White negated an element of the conspiracy claim. Therefore, the trial court did not err in granting summary judgment in Kristin's favor on this claim. We resolve Howard's first and fifth issues against her to this extent. The Defense of Immunity Next, we consider whether Kristin proved her affirmative defense, thus entitling her to summary judgment on the libel and slander claims. Howard contends that Kristin failed to prove she was entitled to summary judgment under the immunity provisions of the family code because she failed to establish each element of this affirmative defense. The family code requires that "[a] person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect" shall immediately report the allegations to the proper authorities. Tex. Fam. Code Ann. §§ 261.101-.103 (Vernon Supp. 2002). Section 261.106 provides immunity for persons who make these reports: (a) A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed. . . . (c) A person who reports the person's own abuse or neglect of a child or who acts in bad faith or with malicious purpose in reporting alleged child abuse or neglect is not immune from civil or criminal liability. Id.§ 261.106 (Vernon 1996). Here, the proper summary judgment evidence demonstrates only that Kristin made a report to CPS that resulted in an investigation. See Footnote 3 She did not present any evidence that she made these statements in good faith. Because the summary judgment evidence does not establish the immunity defense as a matter of law, this ground will not support summary judgment on the libel and slander claims. See Blum v. Julian, 977 S.W.2d 819, 822 (Tex. App.-Fort Worth 1998, no pet.) (holding affidavit of counselor who investigated child sex abuse complaint showed good faith for immunity by stating facts of conduct of investigation). Thus, the trial court erred in granting summary judgment on these claims on immunity grounds. We resolve Howard's first and fifth issues in her favor to this extent.

* * *

Click the case caption above for the full text of the Court's opinion.

Outcome: Because of our resolution of Howard's complaints regarding the trial court's evidentiary rulings, we have considered only the evidence that was properly included in the summary judgment record. Because the trial court did not err in granting summary judgment for Wells, we affirm the trial court's judgment as to him. Because the trial court erred in granting summary judgment for Kristin on the claims of libel and slander, we reverse the judgment as to those claims and remand them for further proceedings. We affirm summary judgment for Kristin on the malicious prosecution and conspiracy claims.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None