Douglas Michael Bulthuis v. Jose Juan Avila

• Court: Court of Appeals of Texas
• Decided: January 14, 2015
• Docket: 13-13-00717-CV
• Status: Published

Opinion

ACCEPTED 13-13-00717-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 1/14/2015 9:14:59 PM DORIAN RAMIREZ CLERK

No. 13-13-00717-CV _________________________________________________________________ FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS I T C N HE OURT F PPEALS O A 1/14/2015 9:14:59 PM F T T OR HE HIRTEENTH ISTRICT F D O T EXAS DORIAN E. RAMIREZ Clerk _________________________________________________________________

DOUGLAS MICHAEL BULTHUIS, Appellant V. JOSE JUAN (J.J.) AVILA, Appellee ____________________________________________________________________

On Appeal from the 370th Judicial District Court of Hidalgo County, Texas Trial Court Cause No. C-620-07-G Honorable Noe Gonzalez, Judge Presiding ____________________________________________________________________

APPELLEE’S BRIEF __________________________________________________________________

Francisco Rene Villarreal R. Russell Hollenbeck State Bar No. 00789706 State Bar No. 00790901 GARCIA & VILLARREAL, LLP Natasha N. Taylor 4311 North McColl Road State Bar No. 24071117 McAllen, Texas 78502 WRIGHT & CLOSE, LLP (956) 630-0081 One Riverway, Suite 2200 (956) 630-3631 (fax) Houston, Texas 77056 panchov@gvlaw.net (713) 572-4321 (713) 572-4320 (fax) hollenbeck@wrightclose.com taylor@wrightclose.com

Attorneys for Appellee, Jose Avila ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL

Appellant:

Douglas Michael Bulthuis

Counsel for Appellant:

Ronald G. Hole HOLE & ALVAREZ, L.L.P. 612 W. Nolana Loop, Ste. 370 P.O. Box 720547 McAllen, Texas 78504-0547 (956) 631-2891 (956) 631-2415 (fax)

Appellee:

Jose Juan (J.J.) Avila

Counsel for Appellee:

Francisco Rene Villarreal GARCIA & VILLARREAL, L.L.P. 4311 North McColl Road McAllen, Texas 78502 (956) 630-0081 (956) 630-3631 (fax) panchov@gvlaw.net

R. Russell Hollenbeck Natasha N. Taylor WRIGHT & CLOSE, LLP One Riverway, Suite 2200 Houston, Texas 77056 (713) 572-4321 (713) 572-4320 (fax) hollenbeck@wrightclose.com taylor@wrightclose.com

ii TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES...................................................................................... v

RECORD CITATIONS ......................................................................................... viii

STATEMENT OF THE CASE .................................................................................ix

STATEMENT REGARDING ORAL ARGUMENT ............................................... x

ISSUES PRESENTED..............................................................................................xi

PRELIMINARY STATEMENT ............................................................................... 1

STATEMENT OF FACTS ........................................................................................ 2

A. The parties’ claims and resulting lawsuit. ............................................. 2

B. A jury finds for Bulthuis and awards him $850,000 in damages. ................................................................................................ 3

C. The trial court concludes the evidence was legally insufficient to support the jury’s damage awards. ................................ 5

SUMMARY OF THE ARGUMENT ........................................................................ 7

ARGUMENT ............................................................................................................. 8

I. This Court must presume the omitted portions of the record support the trial court’s judgment and must affirm that judgment. ......................................................................................................... 8

II. The trial court properly rendered a judgment notwithstanding the verdict on Bulthuis’s damages claims. .................................................... 12

A. Bulthuis cannot satisfy his burden to show the trial court erred in rendering a JNOV. ................................................................. 13

iii B. Bulthuis’s claim that the trial court failed to consider the entire trial record not only confuses the rules but is plainly incorrect. .................................................................................. 15

C. The evidence was legally insufficient to support the jury’s actual damages findings. ........................................................... 17

1. Juries do not have unfettered discretion to award non-economic damages, even in defamation cases. ................. 17

2. There is no evidence to support the jury’s findings of mental anguish and loss of reputation damages. .................. 20

III. The trial court properly disregarded the jury’s award of exemplary damages because Bulthuis did not recover actual damages in this matter. .................................................................................. 24

IV. The trial court properly declined to tax Bulthuis’s court costs against Avila because Bulthuis recovered only nominal damages. ........................................................................................................ 25

CONCLUSION AND PRAYER ............................................................................. 26

CERTIFICATE OF COMPLIANCE ....................................................................... 27

CERTIFICATE OF SERVICE ................................................................................ 27

APPENDIX .............................................................................................................. 28

iv INDEX OF AUTHORITIES

Page Cases Appleton v. Appleton, 76 S.W.3d 78 (Tex. App.—Houston [14th Dist.] 2002, no pet.) ........................................................................................................ 14 Bennett v. Cochran, 96 S.W.3d 227 (Tex. 2002)................................................... 1, 9 Bennett v. Reynolds, 315 S.W.3d 867 (Tex. 2010) .................................................. 25 Bentley v. Bunton, 94 S.W.3d 561, 605 (Tex. 2002) ............................................... 17 Budd v. Gay, 846 S.W.2d 521 (Tex. App.—Houston [14th Dist.] 1993, no writ) ....................................................................................................... 14 Burbage v. Burbage, 2014 WL 4252274 (Tex. 2014) ............................................. 19 Cantu v. Seeman, 2012 WL 1564536 (Tex. App.—Corpus Christi 2012, pet. denied) ................................................................................................. 14 Christiansen v. Prezelski, 782 S.W.2d 842 (Tex. 1990)............................................ 9 City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ............................................ 13 CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437 (Tex. App.—Fort Worth 1999, no pet.) ............................................................................................ 10 Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 844 S.W.2d 198 (Tex. 1992) ........................................................................................................... 25 Exxon Mobil Corp. v. Hines, 252 S.W.3d 496 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) ............................................................................. 15 Feldman v. Marks, 960 S.W.2d 613 (Tex. 1996) ...................................................... 9 Gardner v. Baker & Botts, L.L.P., 6 S.W.3d 295 (Tex. App.— Houston [1st Dist.] 1999, pet. denied) ................................................................. 10 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ................................................... 18 Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387 (Tex. 1997) ............................ 23 Hancock v. Variyam, 400 S.W.3d 59 (Tex. 2013) .............................................19, 23 Harton v. First Victoria Nat’l Bank, 2011 WL 1935605 (Tex. App.— Corpus Christi 2011, pet. denied) ........................................................................ 13 Haut v. Green Cafe Mgmt., Inc., 376 S.W.3d 171 (Tex. App.— Houston [14th Dist.] 2012, no pet.)...................................................................... 11

v In re B.J.H.–T., No. 12-09-00157-CV, 2011 Tex. App. LEXIS 1518 (Tex. App.—Tyler 2011, pet. denied) .................................................................... 9 In re D.T.C., No. 09-08-00388-CV, 2009 Tex. App. LEXIS 5451 (Tex. App.—Beaumont 2009, no pet.)................................................................... 9 In re Estate of Arrendell, 213 S.W.3d 496 (Tex. App.—Texarkana 2006, no pet.) ........................................................................................................ 10 In re Marriage of McKay, 393 S.W.3d 346 (Tex. App.—Amarillo 2012, no pet.) .......................................................................................................... 9 Jaramillo v. The Atchison, Topeka, & Santa Fe Ry. Co., 986 S.W.2d 701 (Tex. App.—Eastland 1998, no pet.) ............................................................ 10 Luna v. Luna, 2012 WL 1073377 (Tex. App.—Corpus Christi 2012, no pet.) .................................................................................................................. 14 Mason v. Our Lady Star of the Sea Catholic Church, 154 S.W.3d 816 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ................................................ 10 Munden v. Reed, 2003 WL 57751 (Tex. App.—Dallas 2003, no pet.) ................... 10 Ortegon v. Benavides, No. 04-05-00768-CV, 2008 Tex. App. LEXIS 1576 (Tex. App.—San Antonio 2008, pet. denied) ............................................... 9 Parkway Co. vs. Woodruff, 901 S.W.2d 434 (Tex. 1995) ....................................... 20 Richards v. Schion, 969 S.W.2d 131 (Tex. App.—Houston [1st Dist.] 1998, no pet.) ........................................................................................................ 10 Saenz v. Fidelity & Guaranty Insurance Underwriters, 925 S.W.2d 607 (Tex. 1996) .................................................................................................... 19 Salinas v. Kristensen, No. 13-08-00110-CV, 2009 WL 4263107 (Tex. App.—Corpus Christi 2009, pet. denied) ............................................................ 11 Salinas v. Salinas, 365 S.W.3d 318 (Tex. 2012) ..................................................... 19 Sedona Pacific Housing P’ship v. Ventura, 408 S.W.3d 507 (Tex. App.—El Paso 2013, no pet.)................................................................................. 9 Service Corp. Int’l v. Guerra, 348 S.W.3d 221 (Tex. 2011) ................................... 22 Servin v. Great W. Ins. Co., 2008 WL 723321 (Tex. App.—San Antonio 2008, no pet.).......................................................................................... 10 Stevens v. Nat’l Educ. Ctrs., Inc., 11 S.W.3d 185 (Tex. 2000) ............................... 20 Synergy Mgmt. Grp., L.L.C. v. Thompson, 398 S.W.3d 843 (Tex. App.—Eastland 2012, no pet.) ............................................................................. 17

vi Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828 (Tex. 2009)................. 13 Tiller v. McLure, 121 S.W.3d 709 (Tex. 2003) ....................................................... 13 Wal-Mart Stores, Inc. v. Cockrell, 61 S.W.3d 774 (Tex. App.— Corpus Christi 2001, no pet.) ............................................................................... 20 Ward v. Baylor University, No. 10-11-00066-CV, 2012 Tex. App. LEXIS 1437 (Tex. App.—Waco 2012, pet. denied).............................................. 9 Watts v. Hancock, No. 05-12-01635-CV, 2014 Tex. App. LEXIS 7898 (Tex. App.—Dallas 2014, no pet.) ......................................................................... 9 Williams Farms Produce Sales, Inc. v. R & G Produce Co., 443 S.W.3d 250 (Tex. App.—Corpus Christi 2014, no pet.) ....................................... 8

Statutes TEX. CIV. PRAC. & REM. CODE § 41.001(2) .............................................................24

Rules TEX. R. APP. P. 34.6(b)(1) ..........................................................................................8 TEX. R. APP. P. 34.6(c)(1) ................................................................................... 1, 10 TEX. R. APP. P. 35.3(b) .............................................................................................16 TEX. R. APP. P. 39.1....................................................................................................x TEX. R. CIV. P. 137 ....................................................................................... xi, 25, 26 TEX. R. CIV. P. 301 ............................................................................................ 13, 15

vii RECORD CITATIONS

Citations to the clerk’s record or supplemental clerk’s record refer to the

page number assigned by the district clerk, e.g., “CR 1” or “CR Supp. 1.” Citations

to the reporter’s record will refer to the volume number and page, e.g., “1 RR 1.”

viii STATEMENT OF THE CASE

Nature of the Case: This appeal arises from assault and defamation claims filed by Douglas Bulthuis against Jose Avila concerning events that occurred in 2004. (CR 27) Avila originally filed a lawsuit against Bulthuis for defamation, regarding Bulthuis’s statements that Avila assaulted him. (CR 19–21) Bulthuis filed counterclaims against Avila, alleging assault and defamation, and seeking actual and exemplary damages, as well as and attorneys’ fees. (CR 27–29, 32–33)

Trial Court: The 370th Judicial District Court of Hidalgo County, Texas, the Hon. Noe Gonzalez presiding.

Course of Proceedings: After the trial court rendered summary judgment on Avila’s claims, Bulthuis’s claims were tried to a jury verdict in May 2012. (CR Supp. 35–49) At the conclusion of trial, the jury found Avila was liable for assault and defamation per se, found Bulthuis sustained no damages for the alleged assault, found Bulthuis sustained compensatory damages totaling $750,000 for defamation, and awarded exemplary damages of $100,000. (Id.) Avila filed a motion for judgment notwithstanding the verdict and argued the evidence was legally insufficient to support the jury’s liability and damages findings. (CR Supp. 50–82) The trial court granted the motion for JNOV in part, entered a final judgment in favor of Bulthuis, but awarded Bulthuis only nominal damages of ten dollars. (CR 54–55) Bulthuis filed this appeal. (CR 62–63)

ix STATEMENT REGARDING ORAL ARGUMENT

The record and the parties’ briefs in this matter adequately set forth the

reasons why this Court should affirm the trial court’s judgment, and the legal and

procedural issues presented are straightforward. As a result, Appellee Jose Avila

does not believe oral argument will significantly aid the Court in considering the

procedural issues involved in this matter and determining the legal issues raised

herein. TEX. R. APP. P. 39.1. However, should this Court grant oral argument to

Appellant Douglas Bulthuis, Appellee requests the opportunity to appear and

present oral argument in response.

x ISSUES PRESENTED

1. Bulthuis failed to present this Court with a complete reporters’ record of the trial proceedings below, and failed to comply with TEX. R. APP. P. 34.6(c), which requires parties who present a partial record on appeal to file a statement of the points or issues to be presented on appeal. Here, Bulthuis presents this Court with a mere 20 pages of the hundreds of pages of his own testimony, from a trial that began May 17, 2012 and concluded 12 days later. The Texas Supreme Court and virtually every other Texas court of appeals have held that a party’s failure to do so is fatal to issues addressing whether the evidence was sufficient to the jury findings. This Court must presume the omitted portions of the record support the trial court’s rulings and must affirm its judgment in this matter.

2. The trial court properly rendered a judgment notwithstanding the verdict in this matter, because the evidence was legally insufficient to support the jury awards of mental anguish and loss of reputation damages.

3. In the absence of sufficient evidence of actual damages, the trial court properly rendered a judgment notwithstanding the verdict as to the jury’s award of exemplary damages.

4. The trial court properly determined that court costs were not taxable in this matter because Bulthuis recovered only nominal damages of ten dollars. See TEX. R. CIV. P. 137.

xi TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

Appellee Jose Avila files this brief in response to the opening brief filed by

Appellant Douglas Bulthuis and would respectfully show this Court as follows.

PRELIMINARY STATEMENT

Bulthuis fails to give this Court any legitimate basis to overturn the trial

court’s judgment in this matter. His claims that this Court should reinstate the

jury’s damages awards are without merit. He presented no legally sufficient

evidence supporting such awards at trial, and none appears in this appellate record.

Were it not for the legal presumption of at least nominal damages that applies to

cases of defamation per se, the trial court would have rendered judgment that

Bulthuis take nothing. Moreover, Bulthuis’s decision to present a mere fraction of

the testimony from this multi-day trial—without giving the required notice of a

limited appeal and a statement of the specific issues to be appealed—dooms his

challenge of the trial court’s judgment at the outset. In the absence of such notice

and statement, this Court is required to presume the omitted portions of the trial

record are relevant to the issues raised and support the lower court’s judgment. See

TEX. R. APP. P. 34.6(c)(1); Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002).

As a result, this Court must summarily dispose of this appeal and affirm the

trial court’s judgment. STATEMENT OF FACTS

In his request for the preparation of the reporter’s record in this matter,

Bulthuis asked the court reporter to include only the testimony of Aurora Villarreal

in the record. (CR 64–65, 72–73) Also contained in the clerk’s record are excerpts

of Bulthuis’s own trial testimony—a mere 20 pages of the hundreds of pages of his

testimony recorded at trial—that were presented to the trial court by Avila as

exhibits to post-trial motions and briefing. Consequently, the record on appeal is

severely limited, and Avila will restrict his presentation of the facts to what is

contained in the record before this Court.

A. The parties’ claims and resulting lawsuit. This lawsuit arises from allegations of an altercation that allegedly occurred

in 2004 and from subsequent actions allegedly stemming from that altercation. (CR

24–25, 32–33; CR Supp. 26–28) In his pleadings, Bulthuis contended that in

January 2004, Avila threatened him while Bulthuis was attending a high school

basketball game with his four-year-old son. (CR 24–25) Bulthuis further claimed

that, in February 2004, Avila tortiously interfered with Bulthuis’s employment

contract with McAllen Independent School District (MISD) and intentionally

inflicted emotional distress on Bulthuis. (CR 25)

In Avila’s live petition, he alleged that in June 2006, Ruth Walters circulated

an email and letters to citizens of McAllen, Texas, and students of McAllen High

2 School that accused Avila of attacking Bulthuis. (CR Supp. 26) The email and

letters supposedly detailed the “facts” of the alleged assault and noted that the

assault constituted a third-degree felony. (Id.) Mary Walters allegedly re-circulated

the email and the letters to citizens of McAllen, Texas, and students of McAllen

High School on her MySpace page and via email. (CR Supp. 27) Based on these

allegations, Avila sued Ruth Walters, Mary Walters, and Bulthuis in March 2007,

alleging claims of defamation and gross negligence. (CR 18–22) Avila sought

damages for lost wages, emotional distress, and mental anguish, as well as punitive

damages. (CR 21)

In June 2007, Bulthuis filed counterclaims against Avila, alleging that Avila

assaulted and intentionally inflicted emotional distress on him. (CR 27–28)

Bulthuis also claimed Avila tortiously interfered with Bulthuis’s employment

contract and filed a frivolous lawsuit against him. (CR 28–29) Bulthuis later

supplemented his counterclaim with allegations that Avila made “false, scandalous

and totally manufactured statements” about Bulthuis. (CR 32–33) Bulthuis’s suit

sought damages and attorneys’ fees from Avila. (CR 27–29, 32–33)

B. A jury finds for Bulthuis and awards him $850,000 in damages. The claims in this matter were tried to a jury, beginning May 17, 2012, with

the jury rendering its verdict 12 days later, on May 29, 2012. (CR Supp. 35–49, 50,

54) At trial, Bulthuis’s defamation per se claims focused on Avila’s alleged

3 publication of a statement by Beverly Bradburn to the MISD in which Bradburn

accused Bulthuis of harassing and sexually assaulting her in 2003. (CR Supp. 52–

53). Bulthuis is a teacher and coach at McAllen High School, and Bradburn was

also a teacher at that school at the time. Bradburn made the statement to school

district officials in 2008, as part of quasi-judicial proceedings. (CR Supp. 53)

Bulthuis testified at trial that Bradburn’s allegations against him were false,

and that he later learned that “other people in the community knew about these

allegations.” (CR Supp. 96) He claimed he pursued this lawsuit “to clear his

name.” (CR Supp. 116) Bulthuis testified that his wife heard the accusations

against him, but “never doubted” him and that they have “a strong marriage.” (CR

Supp. 99) Bulthuis also testified that, when the school district investigated the

allegations about his conduct, the allegations were “dismissed on no grounds.” (CR

Supp. 98) When asked whether the allegations had any effect on his employment

status, Bulthuis testified that he remained employed with the MISD, was not

demoted in any way, and continued to command the respect of his fellow coaches.

(CR Supp. 103) Bulthuis explained that his relationship with his supervisor never

deteriorated, he was never singled out or treated poorly, and he never lost his

supervisor’s respect. (CR Supp. 104) In fact, Bulthuis actually received a larger

salary in 2012 than he had earned in 2003. (CR Supp. 105)

4 At the conclusion of trial, the trial court submitted Bulthuis’s defamation per

se and assault claims to the jury. (CR Supp. 35–49) The jury found that Avila

knowingly, and with actual malice, made defamatory statements about Bulthuis’s

sexual misconduct. (CR Supp. 38–40, 42) The jury awarded Bulthuis damages

totaling $750,000 for past and future injury to his reputation and past and future

mental anguish, and it awarded Bulthuis $100,000 in exemplary damages. (CR

Supp. 41, 43) The jury found that Avila maliciously assaulted Bulthuis, awarded

Bulthuis no damages for his assault claim. (CR Supp. 44–47)

C. The trial court concludes the evidence was legally insufficient to support the jury’s damage awards. On May 31, 2012, Bulthuis moved the trial court to render a final judgment

based on the jury’s findings. (CR 35–36) In response, Avila moved for judgment

notwithstanding the verdict (JNOV) and argued that Bulthuis’s defamation per se

claim was based on statements that were not actionable as a matter of law and that

the evidence was legally insufficient to support the jury’s liability and damages

findings. (CR Supp. 51–61) Avila also argued, in the alternative, that should the

trial court conclude there was evidence to support the jury’s liability findings, a

JNOV on the damages findings was proper because the evidence presented at trial

was legally insufficient to support the amounts of the awards determined by the

jury. As a result, Avila suggested the trial court award Bulthuis only nominal

damages. (CR Supp. 83–94)

5 The trial court signed its original final judgment December 3, 2012, and

concluded that “it appears to the Court that judgment should be rendered,

notwithstanding the verdict, in favor of Counter-Plaintiff DOUGLAS MICHAEL

BULTHUIS, for nominal damages only.” (CR 41) Bulthuis then asked the trial

court to set aside its judgment and abate this proceeding, in light of the fact that

several defamation cases were then pending before the Texas Supreme Court. (CR

43–47) Bulthuis requested that the court reconsider its ruling on Bulthuis’s

damages, but alternatively, that the court set aside its judgment and abate the case

until the Texas Supreme Court ruled on those cases addressing damages in

defamation per se cases. (CR 46) The trial court did so, and abated this matter

pending the Texas Supreme Court’s rulings. (CR 48) On September 28, 2013, the

trial court signed its new final judgment, again granting Avila a JNOV on the

jury’s damages findings and awarding Bulthuis nominal damages against Avila.

(CR 54–55) Bulthuis moved to modify the trial court’s final judgment, which

motion was not ruled on, and then filed a notice of appeal. (CR 56–63)

6 SUMMARY OF THE ARGUMENT

Bulthuis pursued claims of defamation per se and assault against Avila in the

trial court, arising from a shoving match between them and an allegation by one of

Bulthuis’s co-workers that was investigated and dismissed with no adverse finding

or employment actions against Bulthuis. At trial, numerous witnesses testified over

several days. Unlike the trial court, who presided over the entire trial and heard all

the evidence, this Court is presented on appeal with a tiny fraction of the record—a

mere 20 or so pages of Bulthuis’s hundreds of pages of testimony. Because

Bulthuis chose to request and file a partial record, this Court should follow its own

precedent (and that of its sister courts) in presuming the omitted portions of the

record support the trial court’s judgment.

The trial court properly rendered a judgment notwithstanding the verdict in

this matter. The evidence presented at trial (of which this Court has only a small

part) did not support the jury’s actual damages findings, which totaled $750,000.

At closing argument in this matter, Buthuis’s trial counsel even conceded that his

client was content to recover only nominal damages from Avila for his claims—

“[I]t’s not about the money. . . . [I]f you believe that one dollar will stop him, fine.”

(CR Supp. 120) The trial court properly rendered a JNOV in this matter because

Bulthuis did not carry his burden of proving mental anguish and loss of reputation

damages, and its judgment should be affirmed.

7 ARGUMENT

I. This Court must presume the omitted portions of the record support the trial court’s judgment and must affirm that judgment. In preparation for his appeal in this matter, Bulthuis requested that the court

reporter prepare a reporter’s record of the trial proceedings, but asked the court

reporter to submit to this Court only the testimony of a single fact witness—school

district employee Aurora Zamora. (CR 72-73; RR 4, 70) Zamora testified generally

regarding the procedures followed by MISD when investigating incidents like

those alleged by Bradburn, but she offered no specifics about the investigation of

this particular alleged incident. (RR 68–69) Pursuant to Bulthuis’s request, the

court reporter submitted a record only of Zamora’s trial testimony to this Court—a

mere fraction of the entire trial evidence and testimony, which began May 17, 2012

and concluded May 29, 2012. (See CR 54)1

Texas Rule of Appellate Procedure 34.6 requires an appellant to designate

the transcripts and exhibits to be included as the reporter’s record. TEX. R. APP. P.

34.6(b)(1); Williams Farms Produce Sales, Inc. v. R & G Produce Co., 443 S.W.3d

250, 257 (Tex. App.—Corpus Christi 2014, no pet.) (“The burden of providing a

1 The court reporter’s certification attests that the reporter’s record: [C]ontains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter’s Record, in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me.

(RR 71, emphasis added) 8 record showing error requiring reversal is on the appellant.”). In the absence of a

complete reporter’s record, an appellate court must presume that omitted portions

of the record are relevant and support the trial court’s judgment. Bennett v.

Cochran, 96 S.W.3d 227, 228 (Tex. 2002); Feldman v. Marks, 960 S.W.2d 613,

614 (Tex. 1996); Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990).

This Court has expressly followed this line of cases. See Williams Farms

Produce Sales, Inc., 443 S.W.3d at 257 (“We must presume that any evidence that

the appellant failed to designate for the record is sufficient to support the trial

court’s decision.”). Virtually every other Texas appellate court has reached the

same result under similar circumstances. See, e.g., Watts v. Hancock, No. 05-12-

01635-CV, 2014 Tex. App. LEXIS 7898 (Tex. App.—Dallas 2014, no pet.);

Sedona Pacific Housing P’ship v. Ventura, 408 S.W.3d 507, 514–15 (Tex. App.—

El Paso 2013, no pet.); In re Marriage of McKay, 393 S.W.3d 346, 349–50 (Tex.

App.—Amarillo 2012, no pet.); Ward v. Baylor University, No. 10-11-00066-CV,

2012 Tex. App. LEXIS 1437 (Tex. App.—Waco 2012, pet. denied); In re B.J.H.–

T., No. 12-09-00157-CV, 2011 Tex. App. LEXIS 1518 (Tex. App.—Tyler 2011,

pet. denied); In re D.T.C., No. 09-08-00388-CV, 2009 Tex. App. LEXIS 5451

(Tex. App.—Beaumont 2009, no pet.); Ortegon v. Benavides, No. 04-05-00768-

CV, 2008 Tex. App. LEXIS 1576 (Tex. App.—San Antonio 2008, pet. denied); In

re Estate of Arrendell, 213 S.W.3d 496, 503 (Tex. App.—Texarkana 2006, no

9 pet.); Mason v. Our Lady Star of the Sea Catholic Church, 154 S.W.3d 816, 819

(Tex. App.—Houston [14th Dist.] 2005, no pet.); CMM Grain Co., Inc. v.

Ozgunduz, 991 S.W.2d 437, (Tex. App.—Fort Worth 1999, no pet.); Jaramillo v.

The Atchison, Topeka, & Santa Fe Ry. Co., 986 S.W.2d 701, 702 (Tex. App.—

Eastland 1998, no pet.); Richards v. Schion, 969 S.W.2d 131, 133 (Tex. App.—

Houston [1st Dist.] 1998, no pet.). This Court should continue to follow and apply

its own precedent, in keeping with its sister courts on this issue, and presume that

the omitted portions of the trial record support the trial court’s judgment.

Rule 34.6(c)(1) provides a limited exception to the rule requiring a complete

record that does not apply here. “If the appellant requests a partial reporter’s

record, the appellant must include in the request a statement of the points or issues

to be presented on appeal and will then be limited to those points or issues.” TEX.

R. APP. P. 34.6(c)(1) (emphasis added); see Servin v. Great W. Ins. Co., 2008 WL

723321, at *3 (Tex. App.—San Antonio 2008, no pet.). “To effectuate the purpose

of the rule, the statement of points must ‘designate with reasonable particularity the

complaints to be pursued on appeal.’” Munden v. Reed, 2003 WL 57751, at *2–3,

(Tex. App.—Dallas 2003, no pet.); see also Gardner v. Baker & Botts, L.L.P., 6

S.W.3d 295, 296 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). However,

“strict compliance with Rule 34.6(c) is necessary to activate the presumption that

omitted portions of the record are irrelevant.” Ozgunduz, 991 S.W.2d at 439. In

10 fact, a “general statement identifying the portion of the judgment appealed from

and declaring an intention to appeal that portion of the judgment is insufficient to

satisfy the narrow purpose of Rule 34.6(c).” Id.

There is no dispute that Bulthuis failed to file any statement of points or

issues along with his request for a partial reporter’s record in this case, or

anywhere else in the record. Bulthuis submitted two requests for the preparation of

the partial reporter’s record presented in this matter; neither contains any statement

or designation of specific appellate issues. (CR 64, 72) Nor does Bulthuis’s notice

of appeal comply with the requirements of Rule 34.6. (CR 62) Where a party such

as Bulthuis presents only a partial reporter’s record and fails to file a “statement of

the points or issues to be presented on appeal,” Texas courts are required to, and

will, presume that the omitted portions of the record support the trial court’s

judgment. Bennett, 96 S.W.3d at 229; see also Haut v. Green Cafe Mgmt., Inc.,

376 S.W.3d 171, 179–80 (Tex. App.—Houston [14th Dist.] 2012, no pet.). As a

result, this Court must similarly presume that the missing portions of the record

support the trial court’s judgment. Williams Farms Produce Sales, Inc., 443

S.W.3d at 257; Salinas v. Kristensen, No. 13-08-00110-CV, 2009 WL 4263107, at

*3–4 (Tex. App.—Corpus Christi 2009, pet. denied).

Moreover, permitting Bulthuis to file a late statement of issues at this

point—or more properly, to supplement the appellate record with a complete trial

11 transcript—would irreparably harm and prejudice Avila. Because neither the

parties nor this Court have the benefit of a complete record of the trial testimony

and evidence in this matter, Avila has not been afforded the opportunity to review

and brief the significance of all of this evidence to this Court. As a result, Avila’s

appellate posture would be impaired were Bulthuis allowed to file a late statement

of issues or supplemental reporter’s record. Undoubtedly, both parties would be

required to rebrief this case to support or respond to any late filed appellate issues

and any supplemental trial record. Bulthuis elected to proceed on an incomplete

record, and Avila has responded and addressed the merits of the record as it stands

and urges the Court to apply the appropriate presumption in favor of the trial

court’s judgment. Permitting a late filed statement of issues or late record

supplementation at this stage would not only restart this appeal at square one, it

would go directly against the spirit of the rules of appellate procedure. The rules do

not permit a party to wait for its opponent to point out the problems or deficiencies

of its strategy, and then bring forward revised or additional appellate issues and

portions of the record.

Accordingly, this Court must affirm the trial court’s judgment.

II. The trial court properly rendered a judgment notwithstanding the verdict on Bulthuis’s damages claims. Bulthuis claims the trial court erred in setting aside the jury’s damages

finding and in awarding him only nominal damages. In doing so, Bulthuis

12 misapplies the proper standard of review, attempts to shift the burden of proof to

Avila, and ignores the absence of evidence in the appellate record.

In reviewing a trial court’s JNOV, appellate courts conduct a legal-

sufficiency analysis of the evidence—the same test a court would apply to an

appellate no-evidence challenge. See Tanner v. Nationwide Mut. Fire Ins. Co., 289

S.W.3d 828, 830 (Tex. 2009); City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.

2005). In applying the no-evidence standard, courts consider the evidence in the

light most favorable to the jury’s verdict and indulge every reasonable inference

that would support it. City of Keller, 168 S.W.3d at 822; Tiller v. McLure, 121

S.W.3d 709, 713 (Tex. 2003). Courts will credit favorable evidence only if a

reasonable juror could, and will disregard contrary evidence unless a reasonable

juror could not. Tanner, 289 S.W.3d at 830. With regard to damages, a trial court

may disregard a jury’s verdict and render JNOV when no evidence supports the

jury’s damages findings. TEX. R. CIV. P. 301; Tiller, 121 S.W.3d at 713; Harton v.

First Victoria Nat’l Bank, 2011 WL 1935605, at *5 (Tex. App.—Corpus Christi

2011, pet. denied).

A. Bulthuis cannot satisfy his burden to show the trial court erred in rendering a JNOV. Bulthuis attempts to shift the burden to Avila to prove that the trial court’s

rendition of a JNOV in this matter was proper. But it is the appellant’s burden of

providing a record showing error that requires reversal. Williams Farms Produce

13 Sales, Inc., 443 S.W.3d at 257–58 (citing Appleton v. Appleton, 76 S.W.3d 78, 87

(Tex. App.—Houston [14th Dist.] 2002, no pet.)); Budd v. Gay, 846 S.W.2d 521,

523 (Tex. App.—Houston [14th Dist.] 1993, no writ) (concluding that without a

sufficient record the appellate court cannot determine whether the trial court

committed error); see also Luna v. Luna, 2012 WL 1073377, at *2 (Tex. App.—

Corpus Christi 2012, no pet.). “If the appellant desires a reporter’s record on

appeal, he must request the court reporter to prepare the record and arrange for

payment of the reporter’s fee for doing so.” Cantu v. Seeman, 2012 WL 1564536,

at *5 (Tex. App.—Corpus Christi 2012, pet. denied).

As noted above, when the issues on appeal involve evidence omitted from

the appellate record, appellate courts must presume the missing evidence will

support the trial court’s ruling. Cantu, 2012 WL 1564536 at *5. “Issues depending

on the state of the evidence cannot be reviewed without a complete record,

including the reporter’s record . . . [and if] the appellant fails to bring forward a

complete record, the court will conclude he has waived issues dependent on the

state of the evidence.” Id.

Here, Bulthuis challenges the trial court’s decision to render judgment

awarding him nominal damages for his defamation per se claim, arguing that the

evidence at trial was legally sufficient to support the jury’s damages awards.

Considering this appellate issue requires a complete trial record in order for this

14 Court to review the sufficiency of the evidence presented. See Exxon Mobil Corp.

v. Hines, 252 S.W.3d 496, 502 (Tex. App.—Houston [14th Dist.] 2008, pet.

denied). Without a complete record on appeal, Bulthuis cannot possibly meet his

burden to show the trial court’s rulings were error. Presuming that the missing

portions of the reporter’s record support the trial court’s rulings, as this Court must

do, this Court should overrule Bulthuis’s issues and affirm the trial court’s

judgment. See Haut, 376 S.W.3d at 180–83; Cantu, 2012 WL 1564536 at *5.

B. Bulthuis’s claim that the trial court failed to consider the entire trial record not only confuses the rules but is plainly incorrect. Bulthuis suggests that the trial court erred in rendering a JNOV on his

damages claims, in part, based on his contention that the court did not review the

entire trial record when ruling on the motion. Bulthuis claims Avila “failed to

present the entire record to the trial court,” apparently based on a snippet of

language lifted from the trial court’s final judgment and on his belief that Avila

was required to attach a full transcript of the entire trial, along with all admitted

trial exhibits, to the motion for JNOV. Bulthuis’s claims are entirely without merit.

Contrary to Bulthuis’s argument, Avila was not required to provide the trial

court with the entire trial transcript with his JNOV motion. Rule of Civil Procedure

301, which governs the filing of a JNOV, does not require that any record or

evidence be attached to such motions. See TEX. R. CIV. P. 301. The Rule provides

that:

15 [U]pon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any jury finding on a question that has no support in the evidence.

Id. (emphasis added). Unlike the Rules of Appellate Procedure, which specifically

require an appellant to request that a reporter’s record be prepared, no such duty is

placed on a movant filing a JNOV.2 See TEX. R. APP. P. 35.3(b). Bulthuis’s claims

conflate the very different requirements of the Rules of Civil Procedure with those

of the Rules of Appellate Procedure and should be wholly disregarded.

More importantly, the trial court presided over and did hear all the evidence

presented during the trial and it did consider that evidence when ruling on Avila’s

JNOV motion. (See CR 54, noting that “[a]ll parties, by and through their

respective counsel of record, presented argument and evidence at trial and then

rested and closed.”) The exhibits attached to Avila’s JNOV motion consisted

simply of excerpts of trial testimony offered to highlight arguments in the motion

for the trial court’s convenience. There was nothing actually attached to the JNOV

motion (nor anything that could have been attached to the motion) that the trial

court had not already heard for itself during the parties’ lengthy trial. See Synergy

Mgmt. Grp., L.L.C. v. Thompson, 398 S.W.3d 843, 846 (Tex. App.—Eastland

2 If this were the case, every motion for JNOV or for new trial would be required to include a full trial transcript along with exhibits—items that court reporters usually do not have time to prepare within the deadlines for filing such motions—and would result in these motions essentially becoming “mini-appeals,” a result the Rules obviously do not intend.

16 2012, no pet.) (holding that, in its analysis of JNOV issues, the court of appeals

must consider “only the evidence that was admitted during the trial”).

Consequently, as the presiding judge of the parties’ trial, the trial court already had

all the evidence before it necessary to consider and rule on Avila’s JNOV motion.

This Court should dismiss Bulthuis’s argument to the contrary as a red herring.

C. The evidence was legally insufficient to support the jury’s actual damages findings. Bulthuis claims the evidence he presented at trial—largely absent from this

record—supports the jury’s huge actual damage awards totaling $750,000. For the

reasons explained above, this Court needs a complete record to review the trial

court’s decision in the context of all the evidence presented. Otherwise, this Court

must defer to the trial court, who presided over the entire trial and heard all the

evidence and testimony, and must presume that the omitted portions of the record

support that court’s rulings and final judgment. Moreover, the testimony Bulthuis

cites for support fails to satisfy the evidentiary standards required to prove mental

anguish and loss of reputation damages. (CR 95-113, 116)

1. Juries do not have unfettered discretion to award non- economic damages, even in defamation cases. The Texas Supreme Court has explained that, in cases involving defamation

per se, non-economic damages “cannot be determined by mathematical precision.”

Bentley v. Bunton, 94 S.W.3d 561, 605 (Tex. 2002). However, the fact that a jury

17 may be afforded some latitude in awarding such damages “does not, of course, give

it carte blanche to do whatever it will . . . .” Id. (emphasis added). In Gertz v.

Robert Welch, Inc., the United States Supreme Court cautioned lower courts

against upholding jury verdicts in defamation per se cases when the damage

awards are unsupported by the evidence. 418 U.S. 323, 349–50 (1974). The Court

expressed its concern that “the largely uncontrolled discretion of juries to award

damages where there is no loss unnecessarily compounds the potential of any

system of liability for defamatory falsehood to inhibit the vigorous exercise of First

Amendment freedoms.” Id. at 349. In that case, the Court also expressed the same

concern regarding awards of punitive damages. Id. at 350.

Echoing the United States Supreme Court’s concerns, the Texas Supreme

Court has held that “the First Amendment requires appellate review of amounts

awarded for non-economic damages in defamation cases to ensure that any

recovery only compensates the plaintiff for actual injuries and is not a disguised

disapproval of the defendant.” Bentley, 94 S.W.3d at 605. As the Court explained:

The latitude necessarily accorded a jury in assessing non-economic damages does not insulate its verdict from appellate review for evidentiary support. Just as a jury’s prerogative of assessing the credibility of evidence does not authorize it to find liability when there is no supporting evidence or no liability in the face of unimpeachable evidence, so a large amount of mental anguish damages cannot survive appellate review if there is no evidence to support it . . . . The jury is bound by the evidence in awarding damages, just as it is bound by the law.

18 Id. at 605-06 (emphasis added). In Saenz v. Fidelity & Guaranty Insurance

Underwriters, the Texas Supreme Court further explained the limits on a jury’s

ability to award non-economic damages:

Not only must there be evidence of the existence of compensable mental anguish, there must also be some evidence to justify the amount awarded. . . . . While the impossibility of any exact evaluation of mental anguish requires that juries be given a measure of discretion in finding damages, that discretion is limited. Juries cannot simply pick a number and put it in the blank. They must find an amount that, in the standard language of the jury charge, “would fairly and reasonably compensate” for the loss. Compensation can only be for mental anguish that causes “substantial disruption in . . . daily routine” or “a high degree of mental pain and distress.” There must be evidence that the amount found is fair and reasonable compensation, just as there must be evidence to support any other jury finding.

925 S.W.2d 607, 614 (Tex. 1996) (emphasis added) (citations omitted).

The Texas Supreme Court recently explained that “Texas law presumes that

defamatory per se statements cause reputational harm and entitle a plaintiff to

general damages such as loss of reputation and mental anguish.” Burbage v.

Burbage, 2014 WL 4252274, at *8 (Tex. 2014) (citing Bentley, 94 S.W.3d at 604).

But that Court has repeatedly held that this presumption yields only nominal

damages. Id. (citing Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012) (per

curiam)). To award a plaintiff anything beyond nominal damages, courts must

review presumed damages for evidentiary support. Id.; Hancock v. Variyam, 400

S.W.3d 59, 66 (Tex. 2013).

19 2. There is no evidence to support the jury’s findings of mental anguish and loss of reputation damages. The Texas Supreme Court has consistently explained that recovering mental

anguish damages requires evidence of a high degree of mental pain and distress

that is more than mere worry, anxiety, vexation, embarrassment, or anger. See

Stevens v. Nat’l Educ. Ctrs., Inc., 11 S.W.3d 185, 185 (Tex. 2000); Wal-Mart

Stores, Inc. v. Cockrell, 61 S.W.3d 774, 779 (Tex. App.—Corpus Christi 2001, no

pet.) (“To recover for mental anguish a plaintiff must offer direct evidence of the

nature, duration, and severity of their mental anguish, thus establishing a

substantial disruption in the plaintiffs’ daily routine, or other evidence of a high

degree of mental pain and distress that is more than mere worry, anxiety, vexation,

embarrassment, or anger.”) (internal quotations omitted). For example, in Parkway

Co. vs. Woodruff, 901 S.W.2d 434 (Tex. 1995), the Court examined the claimants’

testimony regarding their alleged mental anguish, and found it was insufficient to

support an award of such damages. Specifically, the Court held that evidence

showing the claimants had experienced anger, frustration, and vexation, were

legally insufficient to support a reasonable conclusion that their emotions rose to

the level of compensable mental anguish. Id.

Here, there is no evidence to support the jury’s findings that Bulthuis was

entitled to past and future mental anguish damages or the jury’s specific damage

awards. Bulthuis claims the few pages contained in the clerk’s record support his

20 claims of mental anguish because he testified that the allegations against him

affected him “a lot,” were “disturbing,” upset his wife, and hurt him. However,

Bulthuis also testified that his wife “never doubted” him and that they have “a

strong marriage.” (CR Supp. 99) There is nothing in the record, and in fact, no

evidence was presented at trial to support the jury’s findings that Bulthuis

sustained mental anguish damages in the past in the amount of $250,000, or that he

is likely to sustain such damages in the future in the amount of $100,000. In fact,

Bulthuis’s counsel admitted that he likely would sustain no future mental anguish

whatsoever, and encouraged the jury to award nothing for this element. (CR Supp.

119) Most of Bulthuis’s trial testimony regarding mental anguish damages focused

on a disputed 2004 incident in which he claimed Avila assaulted him—and the jury

found Bulthuis sustained no damages arising from that incident. Bulthuis testified

that he had “problems with lack of sleep,” but attributed that to the 2004 alleged

assault and not the alleged defamation. Throughout the trial, Bulthuis simply asked

the jurors to award him mental anguish damages in whatever amount “they feel are

appropriate” for his defamation claims. His request, and the jury’s damage awards

for past and future mental anguish, are directly contrary to the Texas Supreme

Court’s precedent concerning non-economic damages generally and defamation

per se claims specifically. See Service Corp. Int’l v. Guerra, 348 S.W.3d 221, 231–

21 32 (Tex. 2011) (“[G]eneralized, conclusory descriptions of how an event affected a

person are insufficient evidence on which to base mental anguish damages.”).

Similarly, there was no evidence presented (and there is no evidence in this

record) to support the jury’s findings that Bulthuis sustained, or will continue to

sustain in the future, any actual injury to his reputation, much less injuries in the

amounts of damages found by the jury. Bulthuis presented no evidence at trial that,

after Avila’s alleged publication of Beverly Bradburn’s 2008 statement, Bulthuis’s

relationship with the three persons to whom the oral statements were allegedly

made ever deteriorated. Bulthuis testified that the allegations were “about a very

disturbing subject,” were false, and that he later learned that “other people in the

community knew about these allegations.” But he also admitted that, when

Bradburn’s allegations about his conduct were investigated by the school district,

he was quickly cleared of any wrongdoing. (CR Supp. 98) Bulthuis expressed

concern that his friend, Charlie Vaughn, might have some doubt about whether

Bradburn’s accusations were true, but no evidence was presented to confirm this

speculation, and Vaughn himself did not testify. (CR Supp. 86) But Bulthuis also

admitted that he suffered no loss of respect from his coaching colleagues, that his

reputation and salary at McAllen High School were not negatively affected by the

alleged defamation, and that his coaching assignments and duties remained the

same as before. (CR Supp. 103) Bulthuis also testified that his relationship with his

22 supervisor never deteriorated, he was never singled out or treated poorly, and he

never lost his supervisor’s respect. (CR Supp. 104) In fact, Bulthuis actually earned

a larger salary in 2012 than he had in 2003. (CR Supp. 105) No testimony was

presented from any persons that their opinion of Bulthuis’s reputation or character

was, in fact, negatively affected by the alleged defamation, a jury may not

reasonably infer an ultimate fact from “meager circumstantial evidence which

could give rise to any number of inferences, none more probable than another.”

Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). In other

words, there was no evidence to support the jury’s findings that Bulthuis’s

reputation was injured to the point of awarding any more than nominal damages.

The testimony regarding this event was just the opposite. In fact, Bulthuis even

testified, at his counsel’s prompting, that he was not required to prove he sustained

any damages to his reputation.

In contrast to the evidence presented here, this Court should consider the

evidence presented in Hancock v. Variyam, 400 S.W.3d 59 (Tex. 2013), another

case involving claims of defamation per se. There, the jury awarded damages for

mental anguish and loss of reputation—which together totaled a mere $90,000—

based on evidence that the plaintiff was “devastated” and “very distraught” by the

defendant’s written defamatory statements, that his family life was severely

disrupted, and that he became paranoid, lost sleep, and sought professional

23 counseling. Id. at 69–70. In addition, the plaintiff in Hancock testified that the

defamatory statements were published to his professional colleagues and that he

was demoted as a result of them. Id. Nonetheless, the Texas Supreme Court held

the evidence was legally insufficient to support the jury’s mental anguish and loss

of reputation awards, and rendered judgment that the plaintiff take nothing. Id.

Bulthuis presented no such evidence in this case. Notably, in closing

argument, Bulthuis’s counsel downplayed any justification for an award of actual

damages, emphasizing that “one dollar” would be sufficient. (CR Supp. 120) Here,

the trial court properly rendered judgment notwithstanding the verdict on

Bulthuis’s actual damages claims because he failed to prove at trial that he had

sustained anything more.

Accordingly, this Court should affirm the trial court’s judgment.

III. The trial court properly disregarded the jury’s award of exemplary damages because Bulthuis did not recover actual damages in this matter. Texas law requires that any finding of malice and any award of punitive

damages must both be supported by clear and convincing evidence, a higher

evidentiary burden than a preponderance of the evidence. See TEX. CIV. PRAC. &

REM. CODE § 41.001(2). A finding of malice cannot be upheld in the absence of

clear and convincing evidence that a tortfeasor specifically intended to cause

“substantial injury or harm” to a claimant—which requires proof of more than

24 merely perceived or insignificant injury. Bennett v. Reynolds, 315 S.W.3d 867, 872

(Tex. 2010). No evidence was presented at trial to support a finding of malice in

this case in satisfaction of this elevated standard of proof.

But exemplary damages are also not available unless a plaintiff first

establishes his entitlement to actual damages. Hancock, 400 S.W.3d at 71. Here,

the trial court determined there was no evidence to support the jury’s awards of

actual damages. (CR 54–55) As a result, the trial court properly disregarded the

jury’s exemplary damages award.

IV. The trial court properly declined to tax Bulthuis’s court costs against Avila because Bulthuis recovered only nominal damages. Finally, Bulthuis claims the trial court erred in refusing to award his taxable

court costs, even though he was the prevailing party at trial. However, Bulthuis

acknowledges the Texas Rules of Civil Procedure provide that “[i]n civil actions

for . . . defamation of character, if the verdict or judgment shall be for the plaintiff,

but for less than twenty dollars, the plaintiff shall not recover his costs, but each

party shall be taxed with the costs incurred by him in such suit.” TEX. R. CIV. P.

137 (emphasis added); see Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 844

S.W.2d 198, 210 (Tex. 1992) (recognizing application of Rule 137). Here, because

the trial court’s final judgment awards Bulthuis nominal damages of “less than

twenty dollars,” the trial court did not err in declining to tax Bulthuis’s court costs

against Avila in this matter, and in choosing to follow Rule 137’s mandate for

25 cases like this one. See TEX. R. CIV. P. 137.

Accordingly, the trial court’s determination that “all parties shall bear their

own taxable court costs” is not an abuse of discretion, and this Court should affirm

the trial court’s ruling.

CONCLUSION AND PRAYER

For all of the reasons set forth herein, Appellee Jose Avila respectfully

requests that this Court affirm the trial court’s judgment in all respects.

Respectfully submitted,

/s/ R. Russell Hollenbeck R. Russell Hollenbeck State Bar No. 00790901 hollenbeck@wrightclose.com Natasha N. Taylor State Bar No. 24071117 taylor@wrightclose.com WRIGHT & CLOSE, LLP One Riverway, Suite 2200 Houston, Texas 77056 (713) 572-4321 (713) 572-4320 (fax)

Francisco Rene Villarreal State Bar No. 00789706 GARCIA & VILLARREAL, L.L.P. 4311 North McColl Road McAllen, Texas 78502 956-630-0081 956-630-3631 Facsimile panchov@gvlaw.net

COUNSEL FOR APPELLEE, JOSE AVILA 26 CERTIFICATE OF COMPLIANCE

I certify that the foregoing brief is in compliance with Texas Rule of Appellate Procedure 9.4 because it contains 6,364 words and has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14-point Times New Roman font for text and 12-point Times New Roman font for footnotes, which meets the typeface requirements.

/s/ Natasha N. Taylor Natasha N. Taylor

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above and foregoing document has been served electronically on this 14th day of January 2015:

Ronald G. Hole HOLE & ALVAREZ, L.L.P. P.O. Box 720547 McAllen, Texas 78504-0547 956-631-2891 956-631-2415 Facsimile mail@holealvarez.com

Counsel for Appellant, Douglas Bulthuis

27 APPENDIX

1. Charge of the Court

2. Final Judgment

28 DOUGLAS MICHAEL BULTHUIS §

vs § 37QTH JUDICIAL DISTRICT § JOSE JUAN (J.J.) AVILA §

CHARGE OF THE COURT

MEMBERS OF THE JURY:

the questions that are attached, and reach a verdict You may discuss the case with other jurors only when you are all together in the jury room.

case or conduct any research. Do not look up any words in dictionaries or on the Internet Do not post information about the case on the Internet Do not share any special knowledge or experiences with the other jurors. Do not use your phone or any other

Here are the instructions for answering the questions.

2. Base your answers only on the evidence admitted in court and on the law that is in these instructions and questions. Do not consider or discuss any evidence that was not admitted in the courtroom.

of the credibility of the witnesses and the weight to give their testimony. But on matters of law, you must follow all of my instructions.

5. All the questions and answers are important No one should say that any question or answer is not important

35 ------------------------------·-

'

6. Answer 'yes" or no to all quest1ons unless you are to1a otnerw1se. A yes answer must be based on a preponderance of the evidence unless you are I

told otherwise. Whenever a question requires an answer other than "yes" or "no," your answer must be based on a preponderance of the evidence unless vou are told otherwise.

The term "preponderance of the evidence" means the greater weight of credible evidence presented in this case. If you do not find that a preponderance of the evidence supports a "yes" answer, then answer "no." fl ,. - ,. .... >nl"<> nf th<> ..... ic nnt llr<>rl hu th<> n• •mh<>r nf . ' witnesses or by the number of documents admitted in evidence. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true. '7 '. ..... ~v ••v• ..... ......-" ... . "u~•v• -~ ... •v ·'· ~ JVU U ~"~"~' """ ·'"·~ ~"VU

then just answer the questions to match your decision. Answer each question carefully without considering who will win. Do not discuss or consider the effect your answers will have. ~ u. uu '•u< cu '"""'' '-t' " " uy v•avvu•i:j " " " " " v• uy ""Y " ' " " ' v u v• " " " " ' - ' " ' ·

9. Some questions might ask you for a dollar amount. Do not agree in advance to decide on a dollar amount by adding up each juror's amount and then r.. "llu'" 'll '" u '"' avt::• "ll"·

10. Do not trade your answers. For example, do not say, "I will answer this ! question your way if you answer another question my way."

11 I '·-'- • inctn 1t"t<>rl, th<> nn ''" .. 'tn th<> m •<>dinnc ""' •cot h<>

' " " ' Ut::v,;:,lv" v• QL lt::Q;:,L I U VI U It:: IL JU IV';:,. ' " " ' ;:,QI " " ' I V J Ul VI;:, IIIU;:,l

on every answer. Do not agree to be bound by a vote of anything less than 10 jurors, even if it would be a majority.

would waste your time and the parties' money, and would require the taxpayers of this county to pay for another trial. If a juror breaks any of these rules, tell that person to stop and report it to me immediately.

en wor s are use 1n IS c arge 1n a sense a vanes rom e mean1ng commonly understood, you are given a proper legal definition, which you are bound to accept in place of any other meaning.

CHARGE OF THE COURT- Pa e 2 of 15

36 -

A. ract may oe estaousnea oy 01rect ev1aence or oy c1rcumstam1a1 ev1aence or ootn. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts oroved.

I

CHARGE OF THE COURT- Page 3 of 15

37 Did Jose Juan (J.J.) Avila publish or cause to be published, through his actions, statements or conduct, defamatory statements regarding Douglas M. Bulthuis?

" defamatory import and in a manner that the third person understands.

"Defamatory" means an ordinary person would interpret the statement in a way that

or reputation.

In deciding whether a statement is defamatory, you must construe the statement as

Answer "Yes" or "No " I

• i ) Answer: 'I I !J../

CHARGE OF THE COURT- Pa2e 4 of 15

38 i .. !

If you have answered Question No. 1 "Yes," then answer Question Nos. 2, 3 and 4. Otherwise, do not answer Questions Nos. 2, 3 and 4.

QUESTION NO. 2

Were the statements made by Jose Juan (J.J.) Avila concerning sexual misconduct on the part of Douglas M. Bulthuis, false at the time they were made as it related to Douglas M. Bulthuis? "F ::olc:c" rnc::onc: th::ot " ic: nnt litcr nr nnt "' . >IIH tn '"' A statement is not "substantially true" if, in the mind of the average person, the gist of the statement is more damaging to the person affected by it than a literally true statement would have been. I

Answer "Yes" or "No" ~~)]

r CHARGE nF TH' rnr roT- oooo < nf '<

' ' If you have answered Question No. 2 "Yes," then answer Question No. 3, otherwise do not answer Question Nos. 3.

QUESTION NO. 3

Did Jose Juan (J.J.) Avila know or should have known, in the exercise of ordinary care, that the statements he made and the letters he published referred to in Question Nos. 1 and 2, were false and had the potential to be defamatory?

"Ordinarv care" concern inn th~> tp •th nf th~> :mrl it" · 11 In hP defamatory means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.

1 I A uv ................ r-"t-.1 ..... " 'I oiJ

CHARGE OF THE COURT~ PaPe 6 of 15

40 It you nave answerea uuest1on No. 1 ·yes, men answer uuest1on No. 4. Otherwise, do not answer Question No. 4, 5 and 6.

QUE::; IIUN NO. 4

What sum of money, if paid now in cash, would fairly and reasonably compensate Douglas Michael Bulthuis for his injuries, if any, that were proximately caused by the conduct found by you in answer to Question 1?

You are instructed that under the law the statements made were defamatorv oer se and as such, our law presumes that such statements injure the victim's reputation and entitle him to recover general damages, including damages for loss of reputation and mental anguish. You are instructed that you must award at least nominal damages. ("', ..... +h , .. ,f .... '" 1; -+. rl " rl ••• r' . . rl. -· '

<:OI<:OIII<:OIIl ;:)<:OfJaiCH<:Oiy. UV IIUl avvaou a11y ;:)UIII VI IIIVII<:OY VII a11y <:OI<:OIII<:OIIl u y v u llaV<:O VU 1<:01 YVI'><:O,

under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Do not include interest on any amount of damages you find.

Answer separately, m dollars ana cents, tor a am ages, 1t any, sustamea by LJouglas M. Bulthuis.

a. Injury to reputation sustained in the past. I

Answer: ·~cn.ooo D. InJury to reputauon mat, 1n reasonao1e prooaolllty, uoug1as M1cnae1 Bulthuis will sustain in the future.

Answer: -:\\._5() 100(:2 C. 1v1ema1 angu1sn susialnea m me pasc

Answer: $ 2<:>01000 d. Mental anguish that, in reasonable probability, Douglas Michael Bulthuis will sustain in the future.

1-\fi:SW~r. ~-1 "''"' j...l/'-'1~~~ ~r-

CHARGE OF THE COURT- Page 7 of 15

41 .----------------------------------------------------------------------------------~

you mserte a sum o money m any o t e an s m uest1on No. 4, then answer Question No 5 Otherwise do not answer Question Nos. 5 & 6 '

I o answer 'Yes to the follow1ng quest1on, your answer must be unanimous. You may answer "No" to the following question only upon a vote of 10 or more jurors. Otherwise, you must not answer the following question.

QUESTION NO. 5

Do you find from clear and convincing evidence that such defamatory statements I

made by Jose Juan (J.J.) Avila were made with actual malice?

"Clear and convincing evidence" is that measure or degree of proof that will produce in the mind of the jury a firm belief or conviction as to the truth of the allegations sought to be established . .llnc..,or "Voc" nr "tl.ln"

CHARGE OF THE COURT- Page 8 of 15

42 n you unammous1y answerea 'Yes to uuest1on No.5, tnen answer l..luestion No. 6. Otherwise, do not answer Question No. 6.

QUESTION NO. 6

You are instructed that, in order for you to find exemplary damages, your answer to the question regarding the amount of such damages [this Question] must be unanimous.

What"="' of monev. if anv. should be assessed aaainst Jose Juan IJJ\ Avili:l,and t awarded to Douglas M. Bulthuis as exemplary damages for the conduct found in Question I

I No.5? I I ' • Uc>lllc>:,jCO>. " •• ,. f, .. "Exemplary damages" means any damages awarded as a penalty or by way of "J • r. .. • J -'· -,· • •lo rio • ;•~

Factors to consider in awarding exemplary damages, if any, are-

a. The nature of the wrong. h Tho nftho <'nnrlll<'l · . I. ~

c. The degree of culpability of Jose Juan (J.J.) Avila.

d. The situation and sensibilities of the parties concerned. p ThPI 'whir.h sur.h r.nnrlur.t ·"'· -'·; ~ n11hlir. sPnsP nf iustir.P ~nrl propriety.

f. The net worth of Jose Juan (J.J.) Avila. II in dollars and cents for if anv.

Answer: 1 ooo

CHARGE OF THE COURT- Pa~e 9 of 15

43 QUt:::s IIUN NO. 7

I Did Jose Juan (J.J.) Avila commit an assault against Douglas M. Bulthuis?

A person commits an assault if he (1) intentionally, knowingly, or recklesslY causes bodilY irifurv to another; or (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally or knowingly causes physical contact with another when he or she knows or should reasonably believe that the other will regard the contact as offensive or provocative. ,., ' A ""· " "

I Answer: ~w

CHARGE OF THE COURT- Page 10 of 15

44 .

If you answered "Yes" to Question No. 7, then answer Question No. 8. Otherwise, do not answer Question Nos. 8, 9 or 10.

-· .. ··- - What sum of money, if paid now in cash, would fairly and reasonably compensate Douglas Michael Bulthuis for physical pain and mental anguish in the past, if any, resulting from the occurrence found by you in answer to Question 7?

A ' ,_ .... _, _____ .... ---·- ·-· ' .... -, ' " __ ., '7"

Answer: -$¢

r"ARr.< "fT"' rn,.OL Oooo n of"

45 It you answered "Yes" to Question No. 7, then answer Question No. 9. Otherwise, do not answer Question Nos. 9 & 10.

To answer "Yes" to the following question, your answer must be unanimous. You mav answer"No" to the followina au · 1onlv unon a vote of 10 or more i11rors ~·L vr111 m11<:t nnt . fhp <~II. OIIP<:Iinn

QUESTION NO. 9

Do vou find from clear and convincina evidence that the assault found bv vou in Question No.7 was committed by Jose Juan (J.J.) Avila with malice?

"Malice" means- a specific intent by Jose Juan (J .J.) Avila to cause substantial injury or harm to Douglas M. Bulthuis.

" ". in the mind of the jury a firm belief or conviction as to the truth of the allegations sought to be established.

Answer "Yes" or "No"

CHARGE OF THE COURT- Page 12 of 15

46 No.10.

(JLJ~;:, IIQ!'! NO. 10

You are instructed that, in order for you to find exemplary damages, your answer to the question regarding the amount of such damages [this Question] must be unanimous. /". I' What some of monev. if anv. should be assessed aaainst Jose Juan (JJ) Avilil!l and awarded to Douglas M. Bulthuis as exemplary damages for the conduct found in Question No.7?

• "Exemplary damages" means any damages awarded as a penalty or by way of ~ •+ ,+ fr on ·~+n 'J n ~"o~nl~n ,;. • J .., . ;n~l.,.;o~ n .. .. Factors to consider in awarding exemplary damages, if any, are-

a. The nature of the wrong. h Tho .L nf lh<> ~nnrlo •~I ·

d. The situation and sensibilities of the parties concerned.

ThP I tn whir.h !'\llr.h r.nnrh 1r.t nffPnrl!'\ :'1 nuhlir. !'\An!'\A nf ill!'\lir.A :'!nrl " propriety.

f. The net worth of Jose Juan (J.J.) Avila. II in dollars and cents for .;~~~no~ if anv.

Answer: $¢

CHARGE OF THE COURT- Page 13 of 15

47 . . PI ing

1. When you go into the jury room to answer the questions, the first thing you will need to do is choose a presiding juror.

L. TllePit::SIUIIIY ~

a. have the complete charge read aloud if it will be helpful to your deliberations; b. preside over your deliberations, meaning manage the discussions, and -~~ >h~· .. ~.:'-" , __ ,_,_,,_ . 1

--a:- giVe Wllllt:ll q ""' or com111t:m:s m me oa111n wno Will g1ve mem to the judge; b. write down the answers you agree on; I c. get the signatures for the verdict certificate; and . . ' T. noury me oa111rr mal you nave reacnea a vera1c1.

Do you understand the duties of the presiding juror? If you do not, please tell me now.

Instructions for Signing the Verdict Certificate:

1. You may answer the questions on a vote of 10 jurors. The same 10 jurors must agree on every answer in the charge. This means you may not have one group of 10 jurors agree on one answer and a different group of 10 jurors agree on another answer.

2. If 10 jurors agree on every answer. those 10 jurors sign the verdict. If 11 jurors agree on every answer, those 11 jurors sign the verdict. If all 12 of you agree on every answer, you are unanimous and only the presiding iuror sians.the .

3. All jurors should deliberate on every question. You may end up with all 12 of you agreeing on some answers, while only 10 or 11 of you agree on other answers. But when you sign the verdict, only those 10 who agree on every answer will sign the verdict.

Do you understand these instructions? If you do not, pi I me now. ' '

nu11. •~u" ~u•

Judge Presiding

Signed this :zHt!: day of May, 2012 Time: jb:'30~

CHARGE OF THE COURT- Page 14 of 15

48 •

VERDICT CERTIFICATE

Check one· ./ 17 Our verdict is unanimous. All12 of us have an reed to each and Th<> presiding juror has signed the certificate for all 12 of us .

/) .// ./ . ' ,.-- .- UauoL(.a., ~uo....z:o..s: Sk?nature of Presidina Juro~ Printed Name of Presidina Juror "

Our verdict is not unanimous. Eleven of us have agreed to each and every answer and have signed the certificate below. I :urn v~ruiGrts-nururTanimo ~ 1 to eacn ana every answer ana have signed the certificate below.

<01"'-~IJI.TIIRI= DRII\JTI=n 1\l.llMI=

1. /7 _./ /· r (!__) C{ u cLt::. ' Co,, Ia zas 2. _,/ 3.

4.

5.

{).

i 7.

8.

9.

10.

IT.

""""7 • ? ( l.J'-<4< r CHARGE OF THE COURT- Page 15 of 15

49 .._,- . . £:1' '- . ' ' -

CAUSE NO. C-620-07-G

DOUGLAS MICHAEL BULTHUIS, § IN THE DISTRICT COURT _, s ~L unfor_ " · ;(# s . § § v. § 370TH JUDICIAL DISTRICT § I JU:StJUAN ~J.J.) AVILA, s § PlaintifJlCounter-Defendant § HIDALGO COUNTY, TEXAS

BE IT REMEMBERED that on May 17, 2012 came on to be heard the above-entitled and

numbered cause, wherein DOUGLAS MICHAEL BULTHUIS is a Counter-Plaintiff, and JOSE

Ill AN (I I) AVII A is a Counter-Defendant All parties appeared in person and by and through

their respective counsel of record announced ready for triaL All parties having announced ready I for trial, and a jury having been previously demanded, a jury consisting of twelve (12) good and .

lawful jurors was duly selected, impaneled, and sworn.

All parties, by and through their respective counsel of record, presented argument and .rl. . t t•. >1 .rl tl. oto ,,-1 .rl ol. .r1 -r1. · r, ... .rl roL tl.

jury and submitted this cause to the jury on May 29, 2012. The jury returned into open Court its

verdict, which was in favor ofCounter-PlaintiffDOUGLAS MICHAEL BULTHUIS. The jury's

verdict was received and was ordered filed amon!! the oaoers of this cause.

Based upon the Court's consideration of the verdict and the post-verdict briefing,

exhibits, and arguments submitted by the parties, it appears to the Court that judgment should be

renuereu, nmwanstanumg me vermct, m mvor 01 LOUmer-namuu

BULTHUIS, for nominal damages only.

54 ~' - ' .

lt is therefore, ORDERED, ADJUDGED, and DECREED, that Counter-Plaintiff

DOUGLAS MICHAEL BULTHUIS recover of and from Counter-Defendant JOSE JUAN (J.J.)

"Avn-A -.:i"om o OP< inth;:" dtPn -;- rq;l()Ml

It is further ORDERED, ADJUDGED, and DECREED that all parties shall bear their

own taxable court costs. See TEX. R. CIV. P. 137.

All other relief not expressly granted herem IS DENIED. This IS a final appealable

judgment and disposes of all parties and all claims.

2 55