Opinion issued July 31, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-16-00790-CV ——————————— SABRENDA T. LITTLES, Appellant/Cross-Appellee V. RIVERWALK COUNCIL OF CO-OWNERS, INC. AND JDH ASSOCIATION MANAGEMENT CO., Appellees/Cross-Appellants
On Appeal from the 165th District Court Harris County, Texas Trial Court Case No. 2015-38134
MEMORANDUM OPINION
Appellant/cross-appellee, Sabrenda T. Littles, challenges the trial court’s
rendition of summary judgment in favor of appellees/cross-appellants, Riverwalk
Council of Co-Owners, Inc. (“Riverwalk”) and JDH Association Management Co.
(“JDH”) (collectively, “appellees”), in Littles’s suit against them for defamation per se. In three issues, Littles contends that the trial court erred in granting
appellees’ matter-of-law and no-evidence summary judgment motions. In their sole
cross-point,1 appellees contend that the trial court erred in denying their summary-
judgment motion as to their claim that the Texas Defamation Mitigation Act (the
“DMA”) 2 bars Littles’ defamation claim against them.
We affirm.
Background
In her amended petition, Littles, a condominium owner and board member
of Riverwalk, a homeowners association, alleged that on February 16, 2015,
members of Riverwalk and employees of JDH, the management company for the
Riverwalk community, published defamatory statements about her, including:
(1) she was “crazy”; (2) she was “trying to get rid of certain management company
employees”; (3) she was “trying to corrupt the minds of residents”; (4) she was
“tainted”; (5) “nobody c[ould] stand” her; (6) she was “real dirty”; (7) she was
“bipolar”; (8) she was “a hot fricking mess”; (9) she did “not have a permanent
job”; (10) she, “as an anesthetist, might give someone an overdose”; (11) she was
“evil”; (12) she was “traumatized by her childhood”; (13) she “showed her ass at a
1 We note that appellees assert their cross-point in the alternative, “should the Court reverse” the trial court’s rendition of summary judgment in favor of them. Due to our disposition of Littles’s first and third issues, we do not reach appellees’ cross-point. See TEX. R. APP. P. 47.1. 2 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 73.051–.062 (Vernon 2017).
2 meeting”; (14) she was a “liar”; (15) she was “stupid”; (16) she “tried to rig the
homeowners board member election”; (17) she was “a motherfucker”; and (18) she
was a “bitch.”
According to Littles, appellees “published oral communications,” referred to
her by her name, injured her reputation, “exposed [her] to public hatred, contempt
and ridicule,” “impeached [her] honesty, integrity, virtue and reputation,” and
“imputed a mental disease to [her].” Littles asserted that appellees’ defamatory
statements were false, made with actual malice, and affected her membership,
reputation, and effectiveness on the Board of Directors for Riverwalk.
In their first summary-judgment motion, appellees argued, based on agency
principles, that because seven of the allegedly defamatory statements were made
by a condominium owner who was not a board member of Riverwalk, an employee
of JDH, or an agent of either, they, as a matter of law, “cannot be imputed to JDH
or Riverwalk.” Moreover, in regard to the remaining eleven statements, appellees
asserted that they were not made by appellees’ agents while acting within the scope
of their authority or “in furtherance of [appellees’] business [or] for the
accomplishment of the object for which they act[ed] as agents.”
In their second summary-judgment motion, appellees asserted that Littles
could produce no evidence of damages, which was required as the statements at
issue do not constitute defamation per se.
3 In their third summary-judgment motion, appellees argued that because
Littles did not, pursuant to the DMA, make a timely written request upon them “to
correct, clarify, or retract the [alleged] defamatory statements,” her defamation
claim must be dismissed as a matter of law.3
In her response to appellees’ summary-judgment motions, Littles asserted
that appellees relied upon the wrong standard in making their arguments; the
statements at issue were “not gossip,” but “oral defamation [that was] slanderous
per se”; and appellees had not met their summary-judgment burden. She also
asserted that she had complied with the DMA by “forward[ing] to [appellees] a
verbatim transcript which identified, with particularity, the defamatory statements
at issue as well as an explanation of how the statements were defamatory as a
matter of law.” And she further asserted that appellees had waived their DMA
challenge.4 Moreover, Littles argued that because appellees had made the
defamatory statements with actual malice, a request for “‘correction,’
‘clarification’ or ‘retraction’ [was] not required” under the DMA.
After a hearing on appellees’ summary-judgment motions, the trial court, in
two separate orders, granted appellees’ matter-of-law summary-judgment motion
3 See id. 4 In her response to appellees’ matter-of-law summary-judgment motion based on the DMA, Littles requested that the trial court “enter judgment on her cross-motion [for summary judgment].” The record does not reflect whether the trial court ruled on Littles’s cross-motion.
4 and no-evidence summary-judgment motion. In yet another order, the trial court
denied appellees’ third summary-judgment motion in which they asserted that
Littles had failed to comply with the DMA.
Littles then filed a motion to modify the trial court’s judgment, asserting that
the trial court could not enter two “final judgments” in a case, and arguing that
“[i]f [the] court grant[ed] [a] no-evidence summary judgment motion, it d[id] not
have the authority to . . . grant” summary judgment as a matter of law as well. She
also asked the trial court to vacate its order granting appellees’ matter-of-law
summary-judgment motion.
Appellees also filed a motion to modify the trial court’s judgment, noting
that the trial court had signed three separate orders regarding their
summary-judgment motions—one granting their matter-of-law summary-judgment
motion, another granting their no-evidence summary-judgment motion, and a third
denying their summary-judgment motion regarding the DMA. They requested that
the trial court combine its three previous orders and enter a single final judgment
granting their original matter-of-law and no-evidence summary-judgment
motions.5
The trial court denied Littles’s motion to modify its judgment and granted
appellees’ motion, signing a single final judgment in which it granted appellees’
5 See TEX. R. CIV. P. 329b(g) (Vernon Supp. 2018). 5 matter-of-law and no-evidence summary-judgment motions and dismissed Littles’s
defamation per se claim.6
Standard of Review
We review a trial court’s summary judgment de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take
as true all evidence favorable to the non-movant, and we indulge every reasonable
inference and resolve any doubts in the non-movant’s favor. Valence Operating,
164 S.W.3d at 661; Provident Life, 128 S.W.3d at 215. If a trial court grants
summary judgment without specifying the grounds for granting the motion, we
must uphold the trial court’s judgment if any of the asserted grounds are
meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—
Houston [1st Dist.] 2005, pet. denied).
A party seeking summary judgment may move for both matter-of-law and
no-evidence summary judgment. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex.
2004); see TEX. R. CIV. P. 166a(c), (i). When a party has sought summary
judgment on both grounds, we typically review first the propriety of the summary
judgment under the no-evidence standard. See Merriman v. XTO Energy, Inc., 407
S.W.3d 244, 248 (Tex. 2013); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 6 After the trial court entered its final judgment, Littles filed a second motion to modify the trial court’s judgment, which it denied.
6 (Tex. 2004); Deweese v. Ocwen Loan Serv. L.L.C., No. 01-13-00861-CV, 2014
WL 6998063, at *2 n.1 (Tex. App.—Houston [1st Dist.] Dec. 11, 2014, no pet.)
(mem. op.); Poag v. Flories, 317 S.W.3d 820, 825 (Tex. App.—Fort Worth 2010,
pet. denied). However, in the interest of efficiency, we may review a summary
judgment under the matter-of-law standard first if it would be dispositive. See
Deweese, 2014 WL 6998063, at *2 n.1; Poag, 317 S.W.3d at 825; see also TEX. R.
APP. P. 47.1.
In a matter-of-law summary-judgment motion, the movant has the burden to
show that no genuine issue of material fact exists and the trial court should grant
judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.
Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant
moving for summary judgment as a matter of law must either: (1) negate at least
one essential element of each of the plaintiff’s causes of action, or (2) plead and
conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc.
v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Lujan v. Navistar Fin. Corp., 433
S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Once the movant
meets its burden, the burden shifts to the non-movant to raise a genuine issue of
material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899
S.W.2d 195, 197 (Tex. 1995); Transcon. Ins. Co. v. Briggs Equip. Trust, 321
S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The evidence
7 raises a genuine issue of fact if reasonable and fair-minded jurors could differ in
their conclusions in light of all of the summary-judgment evidence. Goodyear Tire
& Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
Matter-of-Law Summary Judgment
In her third issue, Littles argues that the trial court erred in granting
appellees’ matter-of-law summary-judgment motion on her defamation per se
claim because “multiple fact[] issues abound in this case” that preclude summary
judgment.
The tort of defamation includes libel and slander. Neely v. Wilson, 418
S.W.3d 52, 60 (Tex. 2013). Littles’s claim in the instant case is for slander, i.e., a
defamatory statement that is orally communicated or published to a third person
without legal excuse. See Neely, 418 S.W.3d at 60; Randall’s Food Mkts., Inc. v.
Johnson, 891 S.W.2d 640, 646 (Tex. 1995). To establish the elements of her
defamation claim, Littles must show that appellees: (1) published an oral false
statement of fact; (2) that was defamatory concerning her; (3) while acting with
either actual malice, if Littles was a public official or public figure, or negligence,
if Littles was a private individual, regarding the truth of the statement; and
8 (4) damages, under certain circumstances.7 In re Lipsky, 460 S.W.3d 579, 593
(Tex. 2015); WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).
In their matter-of-law summary-judgment motion, appellees argued that they
could not be held liable for the seven allegedly defamatory statements made by
Tara Wood,8 a condominium owner, because Wood’s statements could not be
imputed to either Riverwalk or JDH, as she was neither a board member nor
employee. Appellees further argued that they could not be held liable for the
eleven remaining allegedly defamatory statements9 made by their agents, Shuntay
Bennings,10 Sheila Stevens, Roslyn Richardson,11 and Dorothy Nieto,12 because the
7 Defamation claims are divided into two categories—defamation per se and defamation per quod—based on the level of proof required to make the claim actionable. KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.— Houston [1st Dist.] 2013, pet. denied); see also Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 580 (Tex. App.—Austin 2007, pet. denied). 8 Wood made the following allegedly defamatory statements: (1) “nobody c[ould] stand” Littles; (2) Littles was “bipolar”; (3) Littles was “a hot fricking mess”; (4) Littles “might give someone an overdose”; (5) Littles “showed her ass at a meeting”; (6) Littles was “stupid”; and (7) Littles was “dirty.” 9 These allegedly defamatory statements include: (1) Littles was “crazy”; (2) Littles was “trying to get rid of certain management”; (3) Littles was “trying to corrupt the minds of residents”; (4) Littles was “tainted”; (5) Littles “d[id not] have a permanent job”; (6) Littles was “evil”; (7) Littles was “traumatized by her childhood”; (8) Littles was a “liar”; (9) Littles “tried to rig the homeowners board member election”; (10) Littles was a “mother-fucker”; and (11) Littles was a “bitch.” 10 Bennings was the Riverwalk concierge. 11 Stevens and Richardson were volunteer board members for Riverwalk. 12 Nieto was a JDH employee.
9 agents did not make the statements while they were acting “within the scope of
their general authority, in furtherance of [appellees’] business[es], and for the
accomplishment of the object for which they [were] agents.” See Goodyear Tire,
236 S.W.3d at 757.
In her brief, related to her argument that the trial court erred in granting
appellees’ matter-of-law summary-judgment motion, Littles generally asserts that
“genuine issues of material fact were presented to preclude the granting of
[appellees’] motion,” “[m]ultiple fact issues abound in this case,” appellees “are
jointly and severally liable,” and appellees “have not proved, as a matter of law, all
of the elements of their defense.”13 See TEX. R. APP. P. 38.1(i) (appellate brief must
“contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record”).
“Rule 38 requires [a party] to provide [an appellate court] with such
discussion of the facts and the authorities relied upon as may be requisite to
maintain the point at issue.” Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc.,
106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); see also
TEX. R. APP. P. 38.1(i). “This is not done by merely uttering brief conclusory
statements, unsupported by legal citations.” Tesoro Petroleum, 106 S.W.3d at 128.
Instead, a brief must “contain a clear and concise argument for the contentions
13 It is unclear to what “defense” of appellees Littles refers.
10 made with appropriate citations to the authorities and to the record.” See TEX. R.
APP. P. 38.1(i). Appellate issues are waived “if an appellant fails to support h[er]
contention[s] by citations to appropriate authority” or “[a] brief fails to contain a
clear argument for the contentions made.” Izen v. Comm’n for Lawyer Discipline,
322 S.W.3d 308, 321–22 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
(internal quotations omitted); see also Saudi v. Brieven, 176 S.W.3d 108, 120 (Tex.
App.—Houston [1st Dist.] 2004, pet. denied) (failure to cite authority and provide
analysis in initial brief waived issue on appeal).
In her brief, Littles does not address the grounds on which appellees moved
for summary judgment as a matter of law. And she has not presented a cogent
argument with a discussion of the relevant facts and authorities relied upon related
to her complaint that “multiple fact[] issues abound in this case” that preclude
summary judgment as a matter of law. Accordingly, we hold that she has waived
appellate review of her third issue. See TEX. R. APP. P. 38.1(i); see also
Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995) (non-movant
required to show each ground alleged in summary-judgment motion insufficient to
support summary judgment); Prasad v. Capital Farm Credit, FLCA, No. 01-12-
00585-CV, 2013 WL 3877666, at *3 (Tex. App.—Houston [1st Dist.] July 25,
2013, no pet.) (appellant, whose brief provided “no substantive discussion of the
issue he raise[d] or citation to any summary judgment proof to support a contention
11 that [appellee] did not establish its right to summary judgment as a matter of law,”
waived challenge on appeal).
Trial Court’s Final Judgment
In her first issue, Littles argues that the trial court erred in granting
appellees’ matter-of-law summary-judgment motion because it could not render
“two final judgments” in a single case, nor could it “treat two final judgments as
one.” Littles also argues that the trial court erred in granting appellees’
matter-of-law summary-judgment motion because it was required to consider
appellees’ no-evidence summary-judgment motion first. She asserts that when “a
court grants [a] no-evidence summary judgment motion,” as the trial court did in
this case, “it does not have the authority to subsequently grant a [matter-of-law]
summary judgment motion.”
One Final Judgment
As part of her first issue, Littles argues that the trial court erred in granting
appellees’ matter-of-law summary-judgment motion because it could not render
“two final judgments” in a single case, nor could it “treat two final judgments as
one.”
Following a hearing on appellees’ three summary-judgment motions, the
trial court signed three separate orders. In two separate orders, it granted appellees’
matter-of-law summary-judgment motion and no-evidence summary-judgment
12 motion, dismissing Littles’s defamation per se claim. In the third order, the trial
court denied appellees’ summary-judgment motion in which they asserted that
The next day, Littles filed a motion to modify the judgment, asserting that
the trial court could not enter “two final judgments” in a case and arguing that “[i]f
[the] court grant[ed] [appellees’] no-evidence summary judgment motion, it d[id]
not have the authority to . . . grant” summary-judgment in favor of appellees as a
matter-of-law. And she asked the trial court to vacate its order granting appellees’
matter-of-law summary-judgment motion.
Appellees subsequently filed their own motion to modify the trial court’s
judgment, requesting that the trial court reduce its three separate orders to a single
final judgment granting both their matter-of-law and no-evidence
summary-judgment motions.14
The trial court denied Littles’s motion to modify and granted appellees’,
signing a single final judgment in which it granted appellees’ matter-of-law and
no-evidence summary-judgment motions and dismissed Littles’s defamation per se
claim. The trial court explained in the final judgment that it “supersede[d] and
replace[d] the [previous] [o]rders . . . which were titled: (1) Order Granting
Defendants No-Evidence Motion for Summary Judgment; and (2) Order Granting
14 TEX. R. CIV. P. 329b(g) (Vernon Supp. 2018). 13 Defendants JDH Association Management Co. and Riverwalk Council of
Co-Owners, Inc.’s Motion for Summary Judgment.”
A judgment is final “if it disposes of all pending parties and claims in the
record.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Unless
specifically provided by law, there can be only one final judgment in a case. TEX.
R. CIV. P. 301; Cessna Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 143
(Tex. App.—Dallas 2011, no pet.); Dickerson v. Mack Fin. Corp., 452 S.W.2d
552, 555 (Tex. Civ. App.—Houston [1st Dist.] 1969, writ ref’d n.r.e.). A trial court
retains plenary power over a case for thirty days after it has signed a final
judgment. TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc.,
10 S.W.3d 308, 310 (Tex. 2000); Penny v. Shell Oil Prods. Co., 363 S.W.3d 694,
697 (Tex. App.—Houston [1st Dist.] 2011, no pet.). A party can extend the trial
court’s plenary power by timely filing an appropriate post-judgment motion—
either a motion for new trial, or a motion to modify, correct, or reform the
judgment—within thirty days after the trial court signs its final judgment or order.
TEX. R. CIV. P. 329b(e), (g); Lane Bank, 10 S.W.3d at 310; Penny, 363 S.W.3d at
697. While the trial court retains its plenary power over a case, it has the power to
correct, modify, vacate, or reform its judgment. TEX. R. CIV. P. 329b(d); Lane
Bank, 10 S.W.3d at 310; Penny, 363 S.W.3d at 697.
14 Here, the trial court, while it still had plenary power, and after both parties
had filed motions to modify its judgment, signed one final judgment granting
appellees’ matter-of-law and no-evidence summary-judgment motions and
dismissing Littles’s defamation per se claim. See id. And it explained that the final
judgment superseded and replaced its previous orders. Thus, there is only one final
judgment in this case. See TEX. R. CIV. P. 301; see also Lehmann, 39 S.W.3d at
195 (judgment final “if it disposes of all pending parties and claims in the record”).
Finally, we note that Littles offers little discussion and even less support for
her argument that the trial court was not authorized to “treat two final judgments as
one.” Consequently, she has waived the argument. See TEX. R. APP. P. 38.1(i)
(requiring appellate brief to “contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record”). In
any event, as explained above, the trial court retained plenary power to combine its
two prior orders into one final judgment. To the extent that Littles asserts that a
trial court, even during its plenary period, is powerless to combine two prior orders
into a single final judgment, we note that where trial courts have not combined
multiple rulings into a single final judgment, reviewing courts have held that such
separate and distinct trial court rulings may, taken together, constitute a single final
judgment. See, e.g., Texas Windstorm Ins. Ass’n v. Dickinson Indep. Sch. Dist., No.
14-16-00474-CV, 2018 WL 2436924, at *17 (Tex. App.—Houston [14th Dist.]
15 May 31, 2018, no pet. h.) (“Though the trial court signed a separate order on each
of the three motions, the court signed the orders on the same day, and this court
should construe these orders together. In doing so, this court should consider the
orders as a whole toward the end of harmonizing and giving effect to all the trial
court has written.” (citations omitted)); Henderson v. Shanks, 449 S.W.3d 834, 838
(Tex. App.—Houston [14th Dist.] 2014, pet denied) (trial court did not err in
disposing of case on same day by two different methods; rulings on two separate
motions, signed on same day, constituted one final judgment).
Accordingly, we hold that the trial court did not err in signing a single final
judgment that superseded and replaced its previous orders
Multiple Grounds for Summary Judgment
Littles’s argument that the trial court could not properly grant appellees’
matter-of-law summary-judgment motion after granting their no-evidence
summary-judgment motion is built on the false premise that the trial court had to
first deny summary judgment on no-evidence grounds before considering the
matter-of-law grounds. However, the authorities cited in Littles’s brief support the
opposite conclusion.
In Merriman v. XTO Energy, Inc., XTO Energy, Inc. (“XTO Energy”) filed
a combined matter-of-law and no-evidence summary-judgment motion, which the
trial court granted. 407 S.W.3d at 247. The Texas Supreme Court did not fault the
16 trial court for granting XTO Energy summary judgment on both grounds, but
instead merely noted that “[w]hen a party moves for summary judgment on both
[matter-of-law] and no-evidence grounds,” an appellate court will, for practical
purposes, typically review the no-evidence grounds first. See id. at 248.
Notably, nowhere in the Merriman opinion did the supreme court hold that
the trial court had erred in granting XTO Energy summary judgment on multiple
grounds or that the trial court could not properly grant XTO Energy’s
matter-of-law summary-judgment motion while also granting its no-evidence
summary-judgment motion. See id.; see also Okpere v. Nat’l Oilwell Varco, L.P.,
524 S.W.3d 818, 824 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)
(“[W]hen the trial court granted [appellees’] summary-judgment motion without
specifying the grounds upon which the court granted the motion, the trial court
implicitly granted judgment based on each of the grounds . . . .”); Petrello v.
Prucka, 415 S.W.3d 420, 427 (Tex. App.—Houston [1st Dist.] 2013, no pet.)
(“When summary judgment is sought and granted on multiple grounds, we will
affirm the judgment if any of the grounds on which it is based is meritorious.”
(emphasis added)); Blackburn v. Columbia Med. Ctr. of Arlington Subsidiary, L.P.,
58 S.W.3d 263, 278 (Tex. App.—Fort Worth 2001, pet. denied) (“We hold that the
trial court properly granted both the [matter-of-law] and no[-]evidence summary
judgments . . . .”). Indeed, the fact that the court in Merriman suggested an order
17 for appellate courts to review summary-judgment rulings belies Littles’s argument
that the trial court could not properly grant summary judgment on multiple grounds
at the same time. See Merriman, 407 S.W.3d at 248; Ford Motor Co., 135 S.W.3d
at 600; Deweese, 2014 WL 6998063, at *2 n.1; Petrello, 415 S.W.3d at 427.
Accordingly, we hold that the trial court did not err in granting appellees’
summary judgment on multiple grounds.
We overrule Littles’s first issue.15
Conclusion
We affirm the judgment of the trial court.
Terry Jennings Justice
Panel consists of Justices Jennings, Keyes, and Higley.
15 Due to our disposition of Littles’s first and third issues, we do not address her second issue in which she argues that the trial court erred in granting appellees’ no-evidence summary-judgment motion. See TEX. R. APP. P. 47.1; Deweese v. Ocwen Loan Serv. L.L.C., No. 01-13-00861-CV, 2014 WL 6998063, at *2 n.1 (Tex. App.—Houston [1st Dist.] Dec. 11, 2014, no pet.) (mem. op.); Poag v. Flories, 317 S.W.3d 820, 825 (Tex. App.—Fort Worth 2010, pet. denied). 18