Kenneth Glover v. Columbia Fort Bend Hospital, et al--Appeal from 268th District Court of Fort Bend County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00101-CV
______________________________
KENNETH GLOVER, Appellant
V.
COLUMBIA FORT BEND HOSPITAL, ET AL., Appellees
On Appeal from the 268th Judicial District Court
Fort Bend County, Texas
Trial Court No. 112876
Before Grant, Ross, and Cornelius,* JJ.
Opinion by Justice Ross

*William J. Cornelius, C.J., Retired, Sitting by Assignment
O P I N I O N

Kenneth Glover appeals pro se the judgment of the trial court that: 1) granted the motion for summary judgment filed by Elizabeth Mann and the City of Missouri City, and rendered a take-nothing judgment against Glover on his claims against Mann and Missouri City; 2) granted the motion for summary judgment filed by Columbia HCA of Houston, d/b/a Fort Bend Hospital, Inc. (Fort Bend Hospital) and rendered a take-nothing judgment against Glover on his claims against the hospital; 3) sustained Fort Bend County's plea to the jurisdiction of the court, thus dismissing with prejudice all of Glover's claims against the county; and 4) sustained the plea to the jurisdiction of the court filed by the Texas Secretary of State, the Texas Board of Pardons and Paroles, and the Office of the Texas Attorney General, thus dismissing with prejudice all of Glover's claims against them.

Factual Background

On June 24, 1997, Kathryn Hartman was present with Glover at the Sugar Land Municipal Court, where Glover was scheduled to appear for a traffic violation. Hartman managed to get away from Glover and contacted a police officer, to whom she reported she had been sexually assaulted by Glover the night before. The officer arranged for Hartman to be taken to the Fort Bend Hospital in Missouri City. While Hartman was in the emergency room at the hospital, undergoing a sexual assault test, Glover appeared and grasped Hartman's arm in an effort to force her to leave the hospital. This interfered with the medical examination in progress, but the hospital personnel were eventually successful in getting Glover to release Hartman. The police were called, but Glover left before they arrived. Officer Bradford Tippett was the investigating officer at the hospital, and his report of the incident was turned over to Mann, a detective with the Missouri City Police Department. Mann located Hartman at a women's shelter in Pasadena, where she took a voluntary statement from her. Among the facts Hartman related to Mann was that, at the time of the alleged sexual assault, Hartman was five months pregnant and had been told by her doctor, in Glover's presence, not to engage in sexual intercourse. Mann believed the facts developed supported a charge of retaliation against Glover.

In August 1997, the case was presented to a grand jury, and Glover was indicted for retaliation. A warrant for Glover's arrest was issued, and Glover eventually turned himself in to the Fort Bend County Sheriff's Office. In May 1999, the Fort Bend County District Attorney's Office notified Mann the retaliation charge had been dismissed and had been refiled as an assault charge.

Glover's Lawsuit Filed Pro Se

Glover's original petition, filed pro se in Harris County, named as defendants: 1) Fort Bend Hospital and Johanna McBeth, a nurse employed by the hospital; 2) Fort Bend County; 3) the City of Missouri City and Mann; 4) John Healey, District Attorney of Fort Bend County, and Jim McAllister, Assistant District Attorney; 5) Texas Board of Pardons and Paroles; 6) the Texas Attorney General; and 7) the Texas Secretary of State. Glover sued under the Texas Tort Claims Act (1) and also alleged the defendants had violated his constitutional rights. In a supplemental petition, Glover alleged irregularities by various state employees in his parole revocation proceedings in 1999. He blamed the entire parole revocation process on the charge of retaliation filed against him. On motions filed by some defendants, including Fort Bend County, venue was transferred from Harris County to the district court of Fort Bend County.

Change of Venue

Glover first contends the trial court erred in transferring venue to Fort Bend County. Missouri City and Mann moved to transfer venue of the case to Fort Bend County, alleging the cause of action pled by Glover had accrued in Fort Bend County rather than in Harris County, and because Fort Bend County had been named as a defendant, the venue statutes required the suit be heard in Fort Bend County. Fort Bend County also filed a motion to transfer, alleging venue in Fort Bend County was mandatory under the statutes. Notice of hearing on the motions was sent to all parties, including Glover, indicating Glover would be permitted to participate from his place of incarceration by teleconference. On February 4, 2000, the trial court granted Fort Bend County's motion to transfer venue and ordered the case transferred to a district court in Fort Bend County.

If a defendant objects to the venue of a plaintiff's choice and properly challenges that choice through a motion to transfer venue, the question of proper venue is raised. The burden is on the plaintiff to prove venue is maintainable in the county of suit. If the plaintiff fails to meet this burden, the trial court must transfer the lawsuit to another specified county of proper venue. However, if the plaintiff meets that burden, the trial court must maintain the lawsuit in the county where it was filed. Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d 259, 261 (Tex. 1994).

Glover contends the mandatory venue provisions of Tex. Civ. Prac. & Rem. Code Ann. 15.011 (Vernon Supp. 2002), 15.017 (Vernon 1986) established venue in Harris County. Section15.011 provides:

Actions for recovery of real property or an estate or interest in real property, for partition of real property, to remove encumbrances from the title to real property, for recovery of damages to real property, or to quiet title to real property shall be brought in the county in which all or a part of the property is located.

 

This venue provision is applicable only when the suit directly involves the title to land. Maranatha Temple, Inc. v. Enter. Prods. Co., 833 S.W.2d 736, 738 (Tex. App.-Houston [1st Dist.] 1992, writ denied). The nature of the suit must be determined solely from the facts alleged in plaintiff's petition, the rights asserted, and the relief sought. Maranatha Temple, Inc., 833 S.W.2d at 738; see Renwar Oil Corp. v. Lancaster, 154 Tex. 311, 276 S.W.2d 774, 775 (1955). Where venue depends on the nature of the suit, such venue is ordinarily determined by the nature of the principal right asserted in the plaintiff's petition and the relief sought in connection with that right. The nature of the suit is therefore determined by the allegations of the plaintiff's petition. Marshall v. Ballard, 314 S.W.2d 368, 370 (Tex. Civ. App.-Eastland 1958, writ dism'd).

We have reviewed Glover's original and supplemental petitions, as well as his other filings in the district court. In one part of Glover's original petition, he claims entitlement to damages for destruction of property resulting from his incarceration. However, this allegation is not sufficient for mandatory venue pursuant to Section 15.011, and we are unable to find anything else in Glover's pleadings or other filings in which title to land in Harris County is directly involved that would make this venue section applicable. Glover failed in his burden to prove venue was maintainable in Harris County pursuant to Section 15.011.

Tex. Civ. Prac. & Rem. Code Ann. 15.017 provides:

A suit for damages for libel, slander, or invasion of privacy shall be brought and can only be maintained in the county in which the plaintiff resided at the time of the accrual of the cause of action, or in the county in which the defendant resided at the time of filing suit, or in the county of the residence of the defendants, or any of them, or the domicile of any corporate defendant, at the election of the plaintiff.

 

Defamation, as a cause of action, takes two forms: 1) slander, which is a false oral statement published to a third person without legal excuse, which refers to an ascertainable person; and 2) libel, which is a written or published defamation. Defamatory statements are "published" if they are communicated orally, in writing, or in print to some third person capable of understanding their defamatory import and in such a way that the third person did so understand. Accubank Mortgage Corp. v. Drummonds, 938 S.W.2d 135, 147 (Tex. App.-Fort Worth 1996, writ denied). Whether words are capable of a defamatory meaning is a question of law based on how a person of ordinary intelligence would perceive the entire statement in light of the surrounding circumstances. Marshall v. Mahaffey, 974 S.W.2d 942, 950 (Tex. App.-Beaumont 1998, pet. denied).

Glover's petition alleges McBeth, the nurse at Fort Bend Hospital who reported the June 24 incident to the Missouri City police, deliberately or negligently made a false representation in her report to the police as to what happened. Glover uses this to claim, in effect, respondeat superior liability on the part of the hospital.

A statement which falsely charges a person with the commission of a crime is considered libelous per se. Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 238 (Tex. App.-Dallas 2000, pet. denied). However, statements made to police officers or other law enforcement persons, for the purpose of the investigation of alleged wrongdoing, are protected by a qualified privilege, when made with proper motives and without malice. Zarate v. Cortinas, 553 S.W.2d 652, 655 (Tex. Civ. App.-Corpus Christi 1977, no writ); see also Vista Chevrolet, Inc. v. Barron, 698 S.W.2d 435, 437 (Tex. App.-Corpus Christi 1985, no writ) (qualified privilege defeated if it can be shown defendant acted with malice).

An action is sustainable against a corporation for defamation by its agent if the defamation is referable to a duty owed by the agent to the corporation and was made while in the discharge of that duty. Neither express authorization nor subsequent ratification is necessary to establish liability. Hooper v. Pitney Bowes, Inc., 895 S.W.2d 773, 776 (Tex. App.-Texarkana 1995, writ denied). It is undisputed McBeth was carrying out her regular duties as a nurse at the hospital when the incident in question occurred, and her report of the incident to the police was also carried out as part of these duties.

As part of an affidavit filed with the trial court, Glover states he is a resident of Harris County. He therefore contends that, as to his defamation cause of action, his petition falls under a mandatory venue provision which would authorize venue in Harris County.

Fort Bend County, however, was also named as a defendant, and the county and other defendants moved to transfer the case to Fort Bend County pursuant to the provisions of Section 15.015, which requires (by use of the word "shall") an action against a county be brought in that county. In addition, since Glover's claims are brought under the Texas Tort Claims Act, specifically Tex. Civ. Prac. & Rem. Code Ann. 101.102(a) (Vernon 1997), venue lies in Fort Bend County because that statute requires actions against a county be brought in the county in which the cause of action arises. Therefore, insofar as Glover's defamation allegations are concerned, we have a conflict between two mandatory venue provisions.

The normal rule followed in this situation is that the plaintiff's choice prevails. Marshall, 974 S.W.2d at 947. However, in construing Section 15.015 and its statutory predecessors, appellate courts have uniformly held that, in enacting this venue provision, the Legislature intended that counties be exempt from exceptions to general venue rules and the exclusive venue for suits against counties be in that county. Wichita County v. Hart, 917 S.W.2d 779, 781 (Tex. 1996); City of Tahoka v. Jackson, 115 Tex. 89, 276 S.W. 662, 663 (1925); Randall County v. Todd, 542 S.W.2d 236, 238 (Tex. Civ. App.-Amarillo 1976, no writ); Hodges v. Coke County, 197 S.W.2d 886, 888 (Tex. Civ. App.-Amarillo 1946, no writ). Further, the venue statutes explicitly provide that, in a suit in which a plaintiff properly joins two or more claims or causes of action arising from the same transaction, occurrence, or series of transactions or occurrences, and one of the claims or causes of action is governed by the mandatory venue provisions found in Section 15.011, et seq., the suit must ("shall") be brought in the county required by the mandatory venue provision. Tex. Civ. Prac. & Rem. Code Ann. 15.004 (Vernon Supp. 2002).

Since all of Glover's claims stem from the June 24, 1997, incident and Fort Bend County was joined as a defendant, venue is mandated in Fort Bend County. This issue is overruled.

Claim of Ineffective Assistance of Counsel

Glover contends he received ineffective assistance of counsel. The record shows that both Glover's original petition, filed October 29, 1999, in Harris County, and his supplemental petition, filed December 14, 1999, in Harris County, were filed pro se. However, on October 16, 2000, attorneys Ike N. A. Waobikeze and Jacqueline Bostic entered their appearance on behalf of Glover in Fort Bend County. The record shows counsel filed no response to discovery and no substantive responses to the motions for summary judgment. Waobikeze did file a motion to withdraw and a motion for continuance after hearings were scheduled on the summary judgment motions. Both motions were denied. Glover contends his case was prejudiced by his attorneys' unprofessional conduct, including the failure to respond to discovery, and what Glover refers to as "deliberate misconduct." He cites Strickland v. Washington as his authority.

While Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986), adopt the two-pronged test, i.e., professionally unreasonable conduct and prejudice, for showing ineffective assistance of counsel, they are by their language interpreting federal and state constitutional provisions applicable solely to criminal prosecutions. Neither the United States Constitution nor the Texas Constitution guarantees a right to counsel in a civil case. While the constitutional right to counsel under both the federal and state Constitutions, including effective assistance, is clearly recognized in criminal proceedings, it has not been extended to civil actions. Stokes v. Puckett, 972 S.W.2d 921, 927 (Tex. App.-Beaumont 1998, pet. denied); see also Approximately $42,850.00 v. State, 44 S.W.3d 700, 701-02 (Tex. App.-Houston [14th Dist.] 2001, no pet.); Harris v. Civil Serv. Comm'n, 803 S.W.2d 729, 730-31 (Tex. App.-Houston [14th Dist.] 1990, no writ).

This issue is overruled.

Other Issues Not Presented

Appellees contend the issues of change of venue and ineffective assistance of counsel are the only ones that merit substantive consideration by this Court because other issues were not properly raised by Glover. As a general rule, we do not favor finding waiver of a point of error because the author of the brief did not comply with the briefing requirements, without giving that attorney or party the opportunity to rebrief. Inpetco, Inc. v. Tex. Am. Bank/Houston, 729 S.W.2d 300, 300 (Tex. 1987). In this case, Glover's original brief, submitted pro se, exceeded the fifty-page limit prescribed by Tex. R. App. P. 38.4 by more than forty pages. The brief was struck by this Court on motion of the appellees, and Glover was ordered to submit a brief in compliance with the Rules of Appellate Procedure. His subsequent motion for permission to exceed page limitations was denied. Glover's rebrief does comply with the page limitations requirements, but it contains only points related to change of venue and ineffective assistance of counsel, and purports to "incorporate by reference" arguments raised in his earlier ninety-page brief that was struck by this Court.

We may not consider points of error or issues on appeal which are not included in the brief. In Guerrero v. Tarrant County Mortician Servs. Co., 977 S.W.2d 829 (Tex. App.-Fort Worth 1998, pet. denied), the appellant's brief contained a substantial amount of argument in which it simply referred to arguments made in the trial court in response to the appellee's motion for summary judgment. The Fort Worth court refused to consider these arguments, stating that to do so would be an "open door" for parties to circumvent the appellate brief page limitations contained in the rules. Id. at 832-33. In Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92 (Tex. App.-Houston [14th Dist.] 1994, writ denied), the Houston court granted the appellant's motion to exceed the fifty-page limit, (former appellate rule 74(h)), and permitted the appellant to file a brief not to exceed eighty-five pages. Although the appellant's brief was within the page limitation set by the court, the appellant attempted to incorporate into its brief over 200 pages of arguments filed in the trial court, which were part of the record. The Houston court ordered this attempted incorporation struck from the brief. Id. at 97. In Harkins v. Dever Nursing Home, 999 S.W.2d 571 (Tex. App.-Houston [14th Dist.] 1999, no pet.), a rebrief failed to contain any legal argument pertaining to issues sought to be raised by the appellant. The Houston court stated: "It is not the duty of an appellate court to seine the record in order to discover, if possible, error by the trial court; it is the duty of an appellant to distinctly point out the alleged errors and where they can be found in the record." Id. at 573. In a situation where an appellant completely fails to file a brief, the appeal may be dismissed, or if an appellee's brief is filed, the appellate court may regard that brief as correctly presenting the case and affirm the trial court's judgment without examining the record. Id.; see Tex. R. App. P. 38.8(a)(3).

Glover's rebrief does not contain any legal argument pertaining to the propriety of the trial court's granting of the motions for summary judgment or the sustaining of the pleas to the jurisdiction. He has, in effect, filed no brief concerning these issues, and under the Rules of Appellate Procedure, we will not consider them. A litigant acting pro se is held to the same standards applicable to licensed attorneys and must comply with all applicable procedural rules. Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex. App.-Texarkana 1997, no writ).

We affirm the judgment.

 

Donald R. Ross

Justice

 

Date Submitted: April 17, 2002

Date Decided: July 3, 2002

 

Do Not Publish

1. Tex. Civ. Prac. & Rem. Code Ann. 101.001, et seq. (Vernon 1997 & Supp. 2002).