Joan Carol Ellis Roberts v. Dr. Milas Eldon Davis, Jr.--Appeal from 276th District Court of Titus County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00024-CV
______________________________
JOAN CAROL ELLIS ROBERTS, Appellant
V.
DR. MILAS ELDON DAVIS, JR., Appellee
On Appeal from the 276th Judicial District Court
Titus County, Texas
Trial Court No. 30331
Before Carter, Moseley, and Cornelius,* JJ.
Memorandum Opinion by Justice Carter

_____________

*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

 
MEMORANDUM OPINION

Joan Carol Ellis Roberts appeals from a trial in which a jury determined that her underlying claim of libel against Dr. Milas Eldon Davis, Jr., was barred by limitations. In this case, Roberts alleged that Davis libeled her in a letter dated April 9, 2001, this letter having been written by Davis to Roberts' immediate supervisor, George Burns, in which he complained about Davis' job behavior and performance. Roberts alleged that Davis' letter was much more widely published and that it contained untrue and defamatory statements about her personal and professional behavior at the hospital.

This is the second time this issue has been before this Court. In our first opinion, (1) on a summary judgment, we held that, based on the summary judgment evidence, limitations ran on Roberts' suit unless the discovery rule stayed the running of the limitations period, but that the summary judgment evidence did not conclusively negate the application of that rule. We thus reversed and remanded for further proceedings.

In this proceeding, the trial court bifurcated the proceeding--and first tried the issue on limitations. The jury found that Roberts had not

proved by a preponderance of the evidence that she did not discover, or through the exercise of reasonable care and diligence should not have discovered Dr. Davis' letter of April 9, 2001, at any time before April 9, 2002.

 

Thus, the court rendered a take-nothing judgment against Roberts based on the running of limitations against her claim.

Limitations

Limitations for a libel claim is one year. Tex. Civ. Prac. & Rem. Code Ann. 16.002(a) (Vernon 2002); see Cram Roofing Co. v. Parker, 131 S.W.3d 84, 88 (Tex. App.--San Antonio 2003, no pet.). Ordinarily, a defamation claim accrues on the date the defamatory matter is published. See Johnson v. Baylor Univ., 188 S.W.3d 296, 301 (Tex. App.--Waco 2006, pet. denied); Roe v. Walls Reg'l Hosp., Inc., 21 S.W.3d 647, 651 (Tex. App.--Waco 2000, no pet.); Langston v. Eagle Pub. Co., 719 S.W.2d 612, 615 (Tex. App.--Waco 1986, writ ref'd n.r.e.). As applied in Texas, "publication" is a word of art defined as a "communication intentionally or by a negligent act to one other than the person defamed." Kelley v. Rinkle, 532 S.W.2d 947, 948 (Tex. 1976). Thus, there was a publication of the letter when Davis gave it to Burns (the director of radiology) on April 9, 2001. The discovery rule applies to a defamation claim if the matter is not public knowledge. See id. at 949.

When the discovery rule applies, it defers the accrual of a cause of action until a plaintiff discovers or, through the exercise of reasonable care and diligence, should have discovered the nature of the injury. Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex. 1998); Newsom v. Brod, 89 S.W.3d 732, 736 (Tex. App.--Houston [1st Dist.] 2002, no pet.).

The statute of limitations is applied strictly and the discovery rule is a very limited exception. Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453 (Tex. 1996). On the face of the documents, and based on the allegations and evidence about the date on which the letter was published to Burns, it is apparent that the letter was published well over a year before Roberts filed suit. This places her outside the applicable limitations period unless the discovery provision of the rule applies.

The discovery rule applies when the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable. Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997); Computer Assocs. Int'l, 918 S.W.2d at 456. To be "inherently undiscoverable," an injury need not be impossible to discover, but it must be, by nature, unlikely to be discovered within the prescribed limitations period despite due diligence. S.V. v. R.V., 933 S.W.2d 1, 7 (Tex. 1996).

The inherently undiscoverable requirement is strictly construed. We discussed a number of cases where the requirement was or was not applied in our opinion of Shivers v. Texaco Exploration and Production, Inc., 965 S.W.2d 727, 734-35 (Tex. App.--Texarkana 1998, pet. denied). Courts have held that the criterion does not apply to a libel claim where the plaintiff had ready access to her personnel file containing the libelous memo. Ellert v. Lutz, 930 S.W.2d 152, 156-57 (Tex. App.--Dallas 1996, no writ).

A first step in calculating when the statute of limitations begins to run against an action sounding in tort is to determine whether the act causing the damage itself constitutes a legal injury. Waxler v. Household Credit Servs., Inc., 106 S.W.3d 277, 280 (Tex. App.--Dallas 2003, no pet.). If the act complained of is itself a legal injury to a plaintiff, the wrong is "completed" and the cause of action accrues "from the time the act is committed, even where little, if any, actual damage occurs immediately on commission of the tort." Atkins v. Crosland, 417 S.W.2d 150, 153 (Tex. 1967). Conversely, if the act complained of is not itself unlawful and the plaintiff sues to recover damages subsequent to that act, the cause of action accrues "when, and only when, the damages are sustained." Id.

The act of libel or defamation is an act that is itself the injury. Thus, it is a legal injury, as the tort was completed at the time the letter was published to another individual. Under Roberts' allegations, the April 9, 2001, letter from Davis was concealed from her until over a year after it was communicated to Burns. (2)

Libel is statutorily defined in Texas. It is

a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.

 

Tex. Civ. Prac. & Rem. Code Ann. 73.001 (Vernon 2005).

The record shows that the publication date of the letter was April 9, 2001, and Roberts alleged that the publication was to Burns at that time. She filed suit March 10, 2003. There was also evidence that, on June 7, 2001, Roberts was part of a counseling session at which she was given an opportunity to review Davis' letter and that, after the counseling, the letter was placed in her personnel file. A public employee has complete access to his or her personnel file. Tex. Gov't Code Ann. 552.102(a) (Vernon 2004). Thus, there was evidence Roberts was aware of the letter's existence, and of its contents, and had access to it.

Issues Raised on Appeal

Roberts raises multiple points of error that can be coalesced into several arguments. She contends that error is shown in several respects:

placing the burden of proof on limitations (the discovery rule) on her; failing to use her submitted jury instruction on limitations, and submitting an incorrect question; the verdict is against the great weight and preponderance of the evidence, and she proved her case as a matter of law; and excluding a counseling record.

Burden of Proof

In a trial on the merits, the party seeking the benefit of the discovery rule to avoid limitations has the burden of pleading and proving the discovery rule. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 n.3 (Tex. 1999); Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988); Girsh v. St. John, 218 S.W.3d 921, 928 (Tex. App.--Beaumont 2007, no pet.).

That is the posture in which this case appears. Thus, the trial court did not err by requiring Roberts to prove that the discovery rule should provide her with an exception to the general limitations rule. The contention of error is without merit.

Jury Charge Question/Instruction

The issue given to the jury reads as follows:

Do you find that Joan Roberts proved by a preponderance of the evidence that she did not discover, or through the exercise of reasonable care and diligence should not have discovered Dr. Davis' letter of April 9, 2001, at any time before April 9, 2002?

The jury answered, "No."

Roberts contends that the jury question as submitted was incorrect and that the court should instead have used the question which she provided. However, her only objection at trial to the issue as submitted was that her requested instruction (not a question) was not submitted. Further, the charge was effectively the same as a proposed question submitted by Roberts. Her proposed jury question presumed that the letter was published April 9, 2001, and questioned only whether she discovered the letter before April 9, 2002. (3) Thus, whether the jury issue was properly submitted, as now presented for review, was not preserved for our review. See Tex. R. App. P. 33.1; Tex. R. Civ. P. 274.

In a related issue, Roberts contends that the trial court should have submitted an instruction that she provided. Although it is not clear from her brief, it appears she is contending that her instruction number 15 should have been submitted because it explained how "the factor of accrual began the time limit, that factor being the publications or circulations." Neither the terms "accrual" nor "publications or circulations" are used in this question. The question is set out simply and in a straightforward fashion. We review a trial court's decision not to submit a particular instruction under an abuse of discretion review. In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000).

The jury was asked whether Roberts proved she should not have discovered the letter at any time before April 9, 2002. As the instruction would not have materially assisted the jury in deciding the matter immediately before it, the court was within its discretion to choose not to submit that instruction.

Roberts also argues that her instruction should have been given because she was suing for additional, later publications of the allegedly libelous material. She now suggests she alleged that the action of the hospital in sending a copy of Davis' letter to the Equal Employment Opportunity Commission (EEOC) in response to her claim against the hospital for an unrelated sexual harassment charge was another, different, and actionable publication for which Davis was responsible. Her petition contained only one other alleged defamatory publication, a letter dated March 7, 2002, signed by Drs. George Aydelott and Davis. This Court held in the summary judgment appeal that letter was not defamatory as a matter of law. Roberts, 160 S.W.3d at 256. Roberts' petition focused solely on the act showing that "Davis published to George Burns, the Director of Radiology, a letter of libel . . . ." Thus, other possible actionable publications, by other parties, of the letter were not before the trial court and cannot now be considered.

The contentions of error are overruled.

Sufficiency of the Evidence

Roberts also contends that the jury's finding is against the great weight and preponderance of the evidence--that she proved her position as a matter of law. See O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112 (Tex. 1976). When a party attacks the legal sufficiency of an adverse finding on an issue on which he or she has the burden of proof, that party must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). The test for legal sufficiency is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In making this determination, we credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not. Id. So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. Id. at 822. The trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. Although we consider the evidence in a light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference. Id. at 822.

Davis asserts that Roberts did not preserve this issue for review because she did not file any trial or post-trial motion raising such a challenge. A "no-evidence" point of error is preserved through one of the following: 1) a motion for instructed verdict, 2) a motion for judgment notwithstanding the verdict, 3) an objection to the submission of the issue to the jury, 4) a motion to disregard the jury's answer to a vital fact issue, or 5) a motion for new trial. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992); Chappell Hill Bank v. Lane Bank Equip. Co., 38 S.W.3d 237, 247 (Tex. App.--Texarkana 2001, pet. denied).

Roberts' motion for new trial is directed solely and specifically at a number of alleged errors in the trial. It does not state at any point that the evidence was either legally or factually insufficient to support the verdict rendered; rather, it specifies error in the way that the court presented the case to the jury for decision. There is no motion to disregard, motion for instructed verdict, or motion for judgment notwithstanding the verdict. There were a number of issues raised about the way in which the issue was submitted to the jury, but none of those issues suggest that there was no evidence to support submission; rather, they complain about the way in which the charge was worded. Thus, by long-standing authority, the issue of legal sufficiency has not been preserved for our review.

Further, in considering Roberts' challenge to the factual sufficiency of the evidence to sustain the jury's answer to the question before it, it is also established that to raise a factual insufficiency challenge on appeal, a point to that effect must be made in a motion for new trial. See Tex. R. Civ. P. 324(b)(2). (4) No such point was raised.

Accordingly, the issues of sufficiency to support the jury's verdict have not been preserved for our review. We do note, however, that at a bare minimum, there was evidence that Roberts was aware of the existence and publication of the letter at or very near the time of its writing and that it was thereafter in her personnel file, to which she had access. Roberts testified that she did not know if the letter was ever in her personnel file and that she never asked to see it. Even though Roberts presented evidence that she did not know of the letter until after she received a letter from the EEOC in April 2002, there is both legally and factually sufficient evidence to support the jury's answer.

The contention of error is overruled.

Excluding Counseling Record

Roberts also contends, as a part of her sufficiency claim, that the court "erred when it overruled the June Counsel." Apparently she is referring to an employee counseling session. In her argument, she discusses the versions of the evidence about the way the session was handled, and the testimony about the session in considerable detail. It appears that her actual complaint is that the court erred by overruling her offer of "the complete June counsel record."

Roberts attempted to introduce into evidence the record of the counseling session, and also several other documents added after the counseling session had occurred. (5) Davis' counsel objected to documents that were attached to the counseling session notes. Roberts advances that her responses to the session would demonstrate "silence" on the issue of notice of the letter. The court then sustained Davis' objection and declined to admit the entirety of the document. Later, the counseling session notes were introduced, but no offer of proof was made of the other documents that were excluded by the trial court. Therefore, the contents of such records and relevance to any issue before this Court cannot be determined. To challenge the exclusion of evidence, a party must: (1) attempt to introduce the evidence; (2) if an objection is made, specify the purpose for which the evidence is offered and give the trial court reasons why the evidence is admissible; (3) obtain a ruling from the court; and (4) if the court rules the evidence inadmissible, make a record, through an offer of proof, of the precise evidence the party desires admitted. Tex. R. App. P. 33.2 (providing procedure to make formal bills of exception); Tex. R. Evid. 103 (detailing effect of an erroneous evidentiary ruling and requiring an objection and offer of proof for excluded evidence); see Fletcher v. Minn. Mining & Mfg. Co., 57 S.W.3d 602 (Tex. App.--Houston [1st Dist.] 2001, pet. denied). The alleged error has not been preserved.

We affirm the judgment.

 

Jack Carter

Justice

 

Date Submitted: September 4, 2007

Date Decided: November 1, 2007

1. Roberts v. Davis, 160 S.W.3d 256 (Tex. App.--Texarkana 2005, pet. denied).

2. The April 9, 2001, letter accuses Roberts of violations of state and federal law, repetitious and malicious illegal malpractice, manufacture of false reasons for violating orders, and illegally practicing medicine. See Roberts, 160 S.W.3d at 262.

3. Since no objection was made to the relevant dates (April 9, 2001 to April 9, 2002), we express no opinion as to the propriety of those dates.

4. Although the Texas Rules of Civil Procedure do not require a motion for new trial to preserve many issues, the rules do require a motion for new trial to preserve factual sufficiency challenges. See Tex. R. Civ. P. 324(b); Roberson v. Collins, 221 S.W.3d 239, 242 (Tex. App.--Houston [1st Dist.] 2006, no pet.); Kinder Morgan N. Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 450 (Tex. App.--Texarkana 2006, no pet.).

5. The record indicates that those documents were a written response prepared by Roberts after the session and letters from two physicians that Roberts had placed in the file. Those were all dated after the date of the counseling session.