Pattillo, Jan v. Tarin, Herman and Bill Weinacht--Appeal from 143rd District Court of Reeves County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JAN PATTILLO, ) ) No. 08-01-00091-CV

)

Appellant, ) Appeal from

)

v. ) 143rd District Court

)

HERMAN TARIN and BILL WEINACHT, ) of Reeves County, Texas

)

Appellees. ) (TC# 00-05-16713-CVR)

O P I N I O N

Jan Pattillo appeals from a summary judgment granted in favor of Herman Tarin and Bill Weinacht. We affirm.

FACTUAL SUMMARY

Jan Pattillo acted as her husband=s campaign treasurer during his race for Reeves County Commissioner in March of 2000. Before the primary, Pattillo went to the Pecos Nursing Home and assisted Maria M. Garcia in completing an application for a ballot by mail.[1] The Reeves County Clerk received the application on February 4, 2000. Louise Cassell later helped Mrs. Garcia cast her ballot by mail.[2]

Around March 6, Mrs. Garcia=s granddaughter, Anabel Aguilar, visited her grandmother. Mrs. Garcia complained that she had not received her ballot and wanted to know when she would get to vote. It was a matter of some concern to her inasmuch as a family member was running for election. Aguilar called the Reeves County Clerk=s office and was informed by someone in that office that Mrs. Garcia had already voted.[3] The person in the clerk=s office mistakenly told Aguilar that Jan Pattillo had assisted Mrs. Garcia and added that Mrs. Garcia had signed her name with an AX.@[4] Because she had already voted according to the records, Mrs. Garcia would not be permitted to vote again.

Informed of these facts by Aguilar, Mrs. Garcia insisted that she had not voted, she did not know Jan Pattillo, and she could sign her name. Aguilar contacted Bill Weinacht, an attorney she had known for many years. Weinacht agreed to represent Mrs. Garcia not only to regain her right to vote but also to protect her from abusive campaign workers at the nursing home. Weinacht knew that the mail-in ballot process in Reeves County had been the subject of public controversy in the past and that there had been many complaints filed regarding campaign workers who had taken advantage of the elderly in the nursing home.[5] Weinacht reviewed the Election Code which requires a challenged voter to execute an affidavit stating the facts necessary to support the person=s eligibility to vote.[6] Based upon the facts conveyed to him by Aguilar, Weinacht prepared an affidavit for Mrs. Garcia in order to establish her eligibility to vote. The affidavit, which Mrs. Garcia executed on March 7, 2000, stated as follows:

My name is Maria M. Garcia. I am 78 years of age and I am qualified to give this affidavit. I have never been convicted of a felony. The facts stated herein are all within my personal knowledge and are all true and correct.

I live at 1819 Memorial Drive at the Pecos Nursing Home. I am registered to vote here in Reeves County under the name Maria Garcia Martinez. My granddaughter, Anabel Aguilar, came by to visit me and I asked her when I was going to get to vote because I never received my ballot. Anabel called the County Clerk=s office and they said I had already voted and that my mail in ballot said that Jan Patillo [sic] had assisted me and that I signed my name with an X. I have not voted and I do not know Jan Patillo [sic]. I know how to sign my name and I sign it like I am signing at this time.

That same day, Weinacht filed the affidavit with the Reeves County Clerk, Dianne Florez,[7] in order to establish Mrs. Garcia=s eligibility to vote. When Weinacht presented the affidavit to Florez for filing, he asked her whether the facts stated in it were true and correct, and she confirmed that they were. Consequently, Weinacht believed the statements in the affidavit were true and correct.

After filing the affidavit with Florez, Weinacht delivered a copy of it to Democratic Party Chair Bobby Dean, Sheriff Arnulfo AAndy@ Gomez, and District Attorney Randy Reynolds because he believed the presiding judge deciding Mrs. Garcia=s eligibility might seek the input of these officials. Additionally, Weinacht believed the officials could stop further campaign abuses. Florez and the presiding judge determined that Mrs. Garcia=s affidavit stated facts necessary to support her eligibility to vote. As a result, Mrs. Garcia personally cast her ballot in the primary.

The primary election resulted in a run-off between Pattillo=s husband and Herman Tarin. Believing Mrs. Garcia might be subjected to the same kind of conduct by zealous campaign workers, Weinacht approached Democratic Party Chair Dean. He told Dean that Pattillo had no business going to the nursing home in order to procure mail-in votes and that something should be done about it. In support of his position that Pattillo was not fit to conduct the mail-in ballot process at the nursing home, he mentioned that she was a candidate=s wife and the campaign treasurer of her husband=s campaign, and that she had lost her job as a hospital pharmacist because of a shortage in controlled substances. Weinacht had received the employment information from his secretary, Sylvia Garcia,[8] who was formerly employed at the hospital pharmacy.

After the election, Pattillo sued Weinacht and Tarin for defamation, intentional infliction of emotional distress, and conspiracy to commit those torts. Weinacht and Tarin, asserting multiple grounds, filed separate motions for summary judgment pursuant to both Rule 166a(b) and Rule 166a(i). The trial court granted both motions without specifying the basis for its order.

SUMMARY JUDGMENT

In her sole issue on appeal, Pattillo challenges the granting of a traditional summary judgment in favor of Weinacht and Tarin. She argues that fact issues exist with respect to whether Weinacht was acting as an attorney for Mrs. Garcia when he defamed Pattillo. She also maintains that Weinacht failed to conclusively establish his defense of judicial privilege. With respect to both Weinacht and Tarin, she contends that a fact issue exists regarding whether Mrs. Garcia=s affidavit is a public record.

Standard of Review

In a traditional summary judgment proceeding, the standard of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Duran v. Furr=s Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App. El Paso 1996, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant=s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant=s cause or claim. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Duran, 921 S.W.2d at 784. In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non movant=s favor. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985); Duran, 921 S.W.2d at 784. A defendant who conclusively negates at least one essential element of each theory pled by the plaintiff is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); see Camacho v. Samaniego, 954 S.W.2d 811, 817 (Tex.App. -El Paso 1997, writ denied). A defendant can also prevail by pleading and conclusively establishing every element of an affirmative defense. Holguin v. Ysleta Del Sur Pueblo, 954 S.W.2d 843, 846 (Tex.App. -El Paso 1997, writ denied).

Failure to Challenge All Grounds

Both Tarin and Weinacht urge that summary judgment should be affirmed because Pattillo has failed to challenge on appeal each ground on which summary judgment could have been granted. It is well established that where the trial court=s judgment does not specify the ground or grounds relied upon for its ruling, the summary judgment must be affirmed if any of the theories advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). When challenging such a judgment on appeal, an appellant must show that each of the independent grounds alleged in the motion is insufficient to support the summary judgment or suffer waiver of the unchallenged grounds. State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Duran, 921 S.W.2d at 784. The appellant avoids waiver by properly assigning error and by providing argument as to each of the grounds. See Plexchem Int=l, Inc. v. Harris County Appraisal Dist., 922 S.W.2d 930, 930 31 (Tex. 1996)(county appraisal district preserved error on its argument that taxpayer failed to exhaust administrative remedies, though district did not assign point of error to that specific argument, where district stated in its first point of error in its appellate brief that trial court erred in granting taxpayer=s motion for summary judgment, and presented three pages of argument and authorities on exhaustion issue in its brief); MaloolyBrothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970)(where a summary judgment does not specify the particular ground or grounds on which it is based, an appellant preserves error in the summary judgment by either stating a general issue or by stating specific issues relating to each ground on which the summary judgment could have been granted). The requirement that the appellant present argument in the brief on each ground is consistent with Rule 38.1=s requirement that an appellant provide argument and supporting authority for the contentions made. See Tex.R.App.P. 38.1(h). Although an appellant may properly assign error under Malooly by filing a general point or issue stating that the trial court erred in granting summary judgment, an appellant is not relieved of her obligation imposed by the Rules of Appellate Procedure to present argument relevant to each of the grounds on which summary judgment could have been granted. See Pena v. State Farm Lloyds, 980 S.W.2d 949, 959 (Tex.App. -Corpus Christi 1998, no pet.)(holding that Malooly does not relieve a party of the duty to raise and argue grounds for reversal merely because a general point or issue is stated; an appellant has the burden to challenge the grounds for the summary judgment and present at least some argument on appeal).

Pursuant to Rule 166a(i), Tarin moved for a no-evidence summary judgment on Pattillo=s claims of conspiracy and defamation. Additionally, he sought traditional summary judgment under Rule 166a(b) on three grounds: (1) Pattillo is a public figure and he did not act with actual malice; (2) his statements were true or substantially true; and (3) he is not liable for republication of Garcia=s affidavit because it is a public record. Pattillo=s sole issue on appeal asserts generally that the trial court erred in granting summary judgment in favor of Weinacht and Tarin, but she has briefed only the ground which pertains strictly to the intentional infliction of emotional distress cause of action. Therefore, she has waived any complaint relating to the other grounds on which summary judgment could have been granted. See Pena, 980 S.W.2d at 959; see also Marquez v. Providence Memorial Hosp., 57 S.W.3d 585, 594 (Tex.App. -El Paso 2001, pet. denied)(failure to brief issues results in waiver); City of Midland v. Sullivan, 33 S.W.3d 1, 10 n.6 (Tex.App. -El Paso 2000, pet. dism=d w.o.j.)(same holding). Because Pattillo has not challenged the granting of summary judgment on the defamation or conspiracy to defame causes of action, we could summarily affirm that portion of the summary judgment granted in Tarin=s favor.

Similarly, Weinacht moved for a no-evidence summary judgment on Pattillo=s conspiracy and defamation claims. Under Rule 166a(b), Weinacht sought summary judgment because he conclusively proved a lack of actual malice, because publication of a public record is not actionable as a matter of law, and because his actions were protected by judicial privilege. Pattillo=s arguments on appeal are limited to the defamation and intentional infliction of emotional distress claims. Again, she has waived her arguments with respect to the other grounds. See Pena, 980 S.W.2d at 959. Because this suit pertains to matters of public concern, however, we have elected to determine whether any of the grounds relied on by Tarin and Weinacht supports the summary judgment rather than summarily affirming it.

Defamation and Conspiracy to Defame

Both Tarin and Weinacht moved for traditional summary judgment with respect to the defamation and conspiracy causes of action on the ground that Pattillo was a public figure and they did not act with malice.[9] Pattillo has not challenged the trial court=s determination, made in a separate order, that she was a public figure. Therefore, we will not examine that issue but will instead apply the law pertaining to public figures.

In a defamation case, a public official or public figure must prove that the defendant: (1) published a statement; (2) that was defamatory concerning the public official or public figure; and (3) that the false statement was made with actual malice. Carr, 776 S.W.2d at 569, citing New York Times Co. v. Sullivan, 376 U.S. 254, 279 80, 84 S. Ct. 710, 725 26, 11 L. Ed. 2d 686 (1964). Because Pattillo must prove actual malice in order to prevail at trial, Weinacht and Tarin are entitled to summary judgment with regard to any statement as to which they can negate actual malice as a matter of law. Casso v. Brand, 776 S.W.2d 551, 555 (Tex. 1989).

Actual malice is a term of art, focusing on the defamation defendant=s attitude toward the truth of what it reported. WFAA TV, Inc. v. McLemore, 978 S.W.2d 568, 573 (Tex. 1998), cert. denied, 526 U.S. 1051, 119 S. Ct. 1358, 143 L. Ed. 2d 519 (1999). To establish actual malice, a public figure must prove that the defendant made the statement Awith knowledge that it was false or with reckless disregard of whether it was false or not.@ Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex. 2000), quoting Sullivan, 376 U.S. at 279 80, 84 S. Ct. 710. In this context, Areckless disregard@ means that the defendant Aentertained serious doubts as to the truth of his publication.@ Turner, 38 S.W.3d at 120, quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968). Although actual malice focuses on the defendant=s state of mind, a plaintiff can prove it through objective evidence about the publication=s circumstances. Turner, 38 S.W.3d at 120. This standard protects innocent but erroneous speech on public issues yet still deters Acalculated falsehoods.@ Turner, 38 S.W.3d at 134.

We will first address the evidence pertaining to Mrs. Garcia affidavit. Weinacht=s summary judgment evidence reflects that he prepared the affidavit for Mrs. Garcia based upon information provided to him by Anabel Aguilar, a person he had known for many years. Aguilar, in turn, had obtained the information directly from the County Clerk=s office. Weinacht asked Aguilar to be sure that she conferred with her grandmother regarding the affidavit before Mrs. Garcia signed it. Weinacht then took the executed affidavit to the clerk=s office. When asked by Weinacht to confirm the facts stated in the affidavit, the County Clerk told Weinacht that the statements were true. According to his own affidavit, Weinacht believed the affidavit was true and correct and he had no reason to believe otherwise. According to Tarin=s affidavit, he believed the affidavit to be true because Mrs. Garcia had sworn that it was true, it had been prepared by an attorney, and it was filed with the County Clerk=s office. Further, Tarin believed the affidavit had to be true after the County Clerk decided that Mrs. Garcia would be permitted to vote. This evidence is sufficient to negate the element of actual malice with respect to Mrs. Garcia=s affidavit. Pattillo offered no summary judgment evidence which created a fact issue as to whether either defendant entertained serious doubts as to the truth of the Garcia affidavit.

Pattillo=s conspiracy and defamation claims against Weinacht also pertain to statements he made regarding the termination of her employment at the hospital. According to his affidavit, Weinacht believed that Pattillo had lost her job as a pharmacist due to shortages in controlled substances. Prior to making the statement, Weinacht had confirmed this fact by talking to his secretary, Sylvia Garcia, who was a former employee of the hospital pharmacy. Sylvia Garcia confirmed in her affidavit that while she was employed at the hospital pharmacy, her supervisor instructed her not to let Pattillo enter the premises because she had been terminated due to shortages of controlled substances.[10] The summary judgment evidence establishes a lack of malice on the part of Weinacht in making this statement. Pattillo did not offer any evidence indicating that Weinacht had any doubts about the truth of the statement when he made it. For these reasons, Weinacht and Tarin conclusively established their right to summary judgment on both the defamation and conspiracy to defame causes of action.

Intentional Infliction of Emotional Distress

Weinacht and Tarin moved for traditional summary judgment with respect to the intentional infliction of emotional distress and conspiracy claims, arguing that their conduct in publishing or republishing a public record is not outrageous conduct as a matter of law. Pattillo responds that a fact issue exists as to whether Mrs. Garcia=s affidavit is a public record.[11]

To recover for the intentional infliction of emotional distress, a plaintiff must establish that (1) the defendant acted intentionally or recklessly, (2) the conduct was extreme and outrageous, (3) the defendant=s conduct caused the plaintiff emotional distress, and (4) the emotional distress was severe. Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000); Twymanv. Twyman, 855 S.W.2d 619, 621 22 (Tex. 1993). Whether a defendant=s conduct is Aextreme and outrageous@ is a question of law. Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001); Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999). The mere fact that a defendant=s conduct is tortious or otherwise wrongful does not, standing alone, necessarily render it extreme and outrageous. Bradford, 48 S.W.2d at 758. Instead, to be extreme and outrageous, conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, as to be regarded as atrocious, and utterly intolerable in a civilized community. Id.

An individual has the right to be free from the public disclosure of embarrassing private facts. Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 682 (Tex. 1976), cert. denied, 430 U.S. 931, 97 S. Ct. 1550, 51 L. Ed. 2d 774 (1977). Violation of this right may give rise to liability for invasion of privacy.[12] In this context, it has been determined that the State may not protect an individual=s privacy interests by recognizing a cause of action in tort for giving publicity to highly private facts if those facts are a matter of public record. Industrial Foundation of the South, 540 S.W.2d at 684. Once information is made a matter of public record, the protection accorded freedom of speech and press by the First Amendment may prohibit recovery for injuries caused by any further disclosure of and publicity given to such information. Industrial Foundation of the South, 540 S.W.2d at 684; Hogan v. Hearst Corp., 945 S.W.2d 246, 250 (Tex.App. -San Antonio 1997, no pet.). It follows that publication of information found in public records is not outrageous conduct. See Hogan, 954 S.W.2d at 252 (determining that the publication of information contained in public records, as a matter of law, is not outrageous conduct).

Pattillo argues that Mrs. Garcia=s affidavit is not a public record, or alternatively, a fact issue exists because the affidavit is not file-marked, Pattillo was denied a copy of the affidavit, and Florez kept the affidavit in a locked safe. Whether the affidavit is a public record is a question of law. Morris v. Smiley, 378 S.W.2d 149, 152 (Tex.Civ.App. -Austin 1964, writ ref=d n.r.e.). All election records are public records as a matter of law, except as otherwise specified by the Election Code or Chapter 552 of the Texas Government Code, and must be made available to the public during the regular business hours of the records= custodian. Tex.Elec.Code Ann. ' 1.012(a), (c). The custodian is permitted to adopt reasonable rules regarding public access to the election records. Tex.Elec.Code Ann. ' 1.012(b). The county clerk is the early voting clerk for state and county officers and any other countywide election held at county expense. Tex.Elec.Code Ann. ' 83.002. AElection records@ are not defined by the Election Code but the term has been judicially determined to mean those records which memorialize the actual election and the actual conduct of the election. Dallas Independent School District v. Finlan, 27 S.W.3d 220, 228-29 (Tex.App. -Dallas 2000, pet. denied), cert. denied, ___ U.S. ___, 122 S. Ct. 342, 151 L. Ed. 2d 258 (2001).

The affidavit required by Section 63.010 establishing a challenged voter=s eligibility to vote is a record memorializing the election and how it was conducted; as such, it is part of the election records. Consequently, Mrs. Garcia=s affidavit is a public record. Pattillo cites no authority in support of her argument that the clerk must file-stamp an election record. With respect to the complaint that the clerk kept the affidavit in a locked safe with all of the election records, we note that the Election Code does not prescribe how the clerk must keep the election records. Given the sensitivity and importance of these records, it is certainly not inadvisable to keep them locked in a safe so long as the public is provided reasonable access to the records. At any rate, the manner in which the records are preserved does not change their status as a public record. The same reasoning holds true with respect to the clerk=s purported denial of Pattillo=s access to the affidavit. The clerk testified that Pattillo came into her office the day after the affidavit was filed and demanded that she Ashow her where she had signed her name, where her name was.@ Florez did not understand what Pattillo meant. The clerk would have allowed any member of the public to view or copy the affidavit upon request. Even assuming that Florez actually denied Pattillo access to the affidavit, it does not change the affidavit=s status as a public record. Because Mrs. Garcia=s affidavit is a public record, Tarin and Weinacht conclusively established that they did not commit outrageous conduct by sharing the information found in the public record with others in the community. Therefore, they established their entitlement to summary judgment on the conspiracy and intentional infliction of emotional distress claims. We overrule the sole issue on appeal and affirm the judgment of the trial court.

August 29, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Pattillo acknowledged that she had assisted Mrs. Garcia with the ballot application. Because Mrs. Garcia was shaking, Pattillo printed Garcia=s name on the signature line and then signed her own name to indicate she had helped Garcia.

[2] Apparently, Louise Cassell, for whom Mrs. Garcia had worked as a maid, went to the nursing home and helped Garcia fill out the mail-in ballot. Mrs. Garcia evidently did not believe she was voting when she signed the document Cassell gave her. She had been ill and was asleep when Cassell came to see her and she signed the document without knowing what it was. Perhaps part of the confusion stemmed from the fact that, in Garcia=s words, Cassell Adidn=t put one of those things before me that I could punch.@

[3] The record does not reflect whether Aguilar spoke to the County Clerk or someone else in her office.

[4] It is unclear whether the clerk=s office mistakenly told Aguilar that Ms. Pattillo had assisted Mrs. Garcia in casting her vote--as opposed to obtaining a ballot--or whether Aguilar simply drew this inference from the conversation.

[5] The record indicates that mail-in balloting issues had been a consistent source of controversy in Reeves County, necessitating grand jury testimony by the Reeves County Democratic Party Chair on more than one occasion.

[6] Tex.Elec.Code Ann. ' 63.010 (Vernon Supp. 2002).

[7] Dianne Florez is the niece of Mrs. Garcia and Annabel Aguilar=s cousin.

[8] The record does not reveal whether Sylvia Garcia is related to Maria M. Garcia.

[9] They also filed a Rule 166a(i) motion but we limit our review to the traditional motion for summary judgment.

[10] Pattillo admitted that while she was employed as a pharmacist by Owen Health Care, which contracted with Reeves County Memorial Hospital for pharmaceutical services, she reported that some morphine and Demerol were missing. She further conceded that accounting for the controlled substances was her responsibility. Owen ultimately lost its hospital contract and Pattillo did not return to work at the hospital.

[11] Pattillo additionally contends that the affidavits of Weinacht and Tarin are not competent summary judgment evidence because they are self-serving. We need not address this issue because the status of the Garcia affidavit as a public record is not dependent on any facts stated in these two affidavits.

[12] To establish the tort of invasion of privacy based upon the public disclosure of private facts, the plaintiff must demonstrate that (1) publicity was given to matters concerning his private life, (2) the publication of which would be highly offensive to a reasonable person of ordinary sensibilities, and (3) the matter publicized was not of legitimate public concern. Star Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 74 (Tex. 1995).