JOE L. ALANIZ v. GAYLORD HOYT--Appeal from 28th District Court of Nueces County

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State: Texas

Court: Texas Northern District Court

Docket No: 13-01-00111-CV

Case Date: 05/08/2003

Plaintiff: JOE L. ALANIZ

Defendant: GAYLORD HOYT--Appeal from 28th District Court of Nueces County

Preview:JOE L. ALANIZ v. GAYLORD HOYT--Appeal from
28th District Court of Nueces County
NUMBER 13-01-111-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOE L. ALANIZ , Appellant,
v.
GAYLORD HOYT , Appellee.
On appeal from the 28th District Court
of Nueces County, Texas.
O P I N I O N
Before Justices Ya ez, Castillo, and Dorsey (1)
Opinion by Justice Castillo
This is a defamation case. Appellant Joe L. Alaniz ("Alaniz") brings thirteen issues complaining of the trial court's: (1)
admission and exclusion of summary-judgment evidence; and (2) granting of summary judgment in favor of appellee
Gaylord Hoyt ("Hoyt"). We reverse and remand.
I. JURISDICTION
Our initial inquiry is always whether we have jurisdiction over an appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 443 (Tex. 1993). The question of jurisdiction is a legal issue. Mayhew v. Town of Sunnyvale, 964
S.W.2d 922, 928 (Tex. 1998). Accordingly, we follow the de novo standard of review. Id. Jurisdiction of a court is
never presumed. El-Kareh v. Tex. Alcoholic Beverage Comm'n, 874 S.W.2d 192, 194 (Tex. App.-Houston [14th Dist.]
1994, no writ). If the record does not affirmatively demonstrate the appellate court's jurisdiction, the appeal must be
dismissed. Id. Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order.
Steeple Oil & Gas Corp. v. Amend, 394 S.W.2d 789, 790 (Tex. 1965) (per curiam); see Tex. Civ. Prac. & Rem. Code
Ann. 51.014 (Vernon Supp. 2003). Therefore, before we consider the issues, we first must determine if the order
granting summary judgment is a final judgment.
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A. The Pleadings of the Parties
Alaniz, a certified public accountant, is the vice-president for business and finance and chief financial officer of Del
Mar College in Corpus Christi, Texas. Alaniz supervises the financial accounting and bookkeeping of Del Mar
College. Among the funds entrusted to the business and finance office are custodial funds for memorials, scholarships,
student organizations, and other designated purposes, including custodial funds for the Del Mar College Foundation.
These custodial funds are referred to as "Agency accounts" for accounting purposes.
Hoyt is a mathematics professor at Del Mar College. In a second amended petition filed January 12, 2001, Alaniz
alleged that Hoyt made oral and written statements about him that were false and defamatory per se. Specifically,
Alaniz alleged that Hoyt made statements, with knowledge that they were false or with reckless disregard for their
truth or falsity, that Alaniz: (1) "commingled" Del Mar College funds with Del Mar College Foundation funds; (2)
falsified documents regarding the allocation of interest to Del Mar College checking accounts; (3) "skimmed" interest
from Del Mar College investments; and (4) was the subject of a criminal investigation. Alaniz pleaded the following
specific allegations:
1. "Commingling." On September 7, 1997, Hoyt wrote a letter to Senator Carlos Truan that stated, "It is my belief that
to make these loans someone at Del Mar College had to mix College money with Foundation money to make the
accounts balance." On September 20, 1997, Hoyt repeated the statement in a letter to Ralph Diaz, chair of the Audit
Committee of the Del Mar College Board of Regents. On January 19, 1998, Hoyt again repeated the statement in a
letter to the trustees of Del Mar College Foundation. On various occasions, Hoyt told members of the Del Mar College
Board of Regents that Alaniz directed the mixing or "commingling" of funds of Del Mar College with funds of Del
Mar College Foundation. Hoyt repeated the "commingling" statement at a July 6, 1998 Del Mar College faculty
council meeting and in various conversations with employees, faculty, administrators, and regents of Del Mar College
around that date.
2. Falsifying Documents. In April of 1998, in private conversations with the Del Mar College Board of Regents, and at
an April 29, 1998 meeting of the Del Mar College Board of Regents, Hoyt stated that Alaniz had falsified documents
regarding the allocation of checking account interest to Del Mar College accounts. Hoyt repeated the falsifying-
documents statement at the same July 6, 1998 faculty council meeting and in various conversations with employees,
faculty, administrators, and regents of Del Mar College around that date.
3. "Skimming." On June 28, 1998, in a memorandum to Del Mar College President Terry Dicianna ("Dicianna") that
Hoyt distributed to the local press and to the Del Mar College Board of Regents, Hoyt stated that it had been
confirmed that Alaniz was or had been "skimming interest" away from Del Mar College investments. Hoyt repeated
the assertion at the same July 6, 1998 faculty council meeting and in various conversations with employees, faculty,
administrators, and regents of Del Mar College around that date.
4. Criminal Investigation. Also at the July 6, 1998 faculty council meeting and in various conversations with
employees, faculty, administrators, and regents of Del Mar College around that date, Hoyt "claimed or implied" that
Alaniz was under criminal investigation.
In his first amended answer, Hoyt filed a general denial and asserted that: (1) Alaniz was a public official; (2) a quasi-
judicial privilege applied to the statements; (3) a qualified privilege applied to his statements because he communicated
them to persons with a common or business interest in the communications; (4) the statements were true; (5) Hoyt did
not make the statements with actual malice or with reckless disregard for the truth; and (6) Alaniz's own physical
condition or his own acts or omissions were the sole cause or, alternatively, a proximate cause of the occurrence in
question and Alaniz's alleged damages, entitling Hoyt to contribution from Alaniz. On January 18, 2001, Hoyt objected
to and asked the court to strike Alaniz's second amended petition as untimely and as asserting new causes of action and
allegations of fact not previously identified in discovery. No order on Hoyt's motion to strike the second amended
petition appears in the record.
B. The Summary-Judgment Proceedings
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1. Hoyt's Grounds
On December 28, 2000, Hoyt filed both a no-evidence and a traditional motion for summary judgment. In the no-
evidence portion of his motion, he asserted that Alaniz was a public figure and therefore bore the burden of proving
that Hoyt made any statements with "actual malice." Hoyt also focused on the "actual malice" element in his traditional
motion for summary judgment. In support of his contention that he did not make the statements with actual malice, and
to assert in particular the absence of any indication he made any statements with serious doubt as to their truthfulness,
Hoyt included excerpts from his own deposition testimony. In addition, on January 4, 2001, Hoyt filed his own
supporting affidavit regarding his state of mind with regard to the challenged statements. He argued that he did not
intend any connotation of criminality or illegality in his use of the word "skimming." Finally, Hoyt also moved for a
partial summary judgment on the ground that statements he made in complaining about Alaniz to the Texas State
Board of Public Accountancy were privileged.
2. Alaniz's Response
In his response to Hoyt's motion for summary judgment, which Alaniz filed January 12, 2001, Alaniz did not dispute
Hoyt's characterization of Alaniz's status as a public official. Instead, Alaniz asserted: (1) the existence of a genuine
issue of material fact as to whether Hoyt acted with malice; and (2) that Hoyt's statements were defamatory per se as a
matter of law. As summary-judgment evidence, Alaniz attached to his response affidavits, documents, and deposition
excerpts. By separate motion also filed January 12, 2001, Alaniz asked the trial court to take judicial notice of a
definition of the word "skim" from the Cambridge Dictionary of American English. (2)
3. Hoyt's Reply
Hoyt filed a reply on January 19, 2001. He attached excerpts from Alaniz's deposition testimony.
4. The Summary-Judgment Order
The "Order Granting Defendant Gaylord Hoyt's Motion for Summary Judgment," signed January 25, 2001, recited as
follows:
On the 25th [sic] (3) day of January, 2001, came to be considered Defendant Gaylord Hoyt's Motion for Summary
Judgment. After reviewing the Motion and Response thereto and hearing argument of counsel, it is the opinion of the
Court that the Motion is well taken and should be in all things GRANTED.
It is, therefore, ORDERED, ADJUDGED AND DECREED that Defendant Gaylord Hoyt's Motion for Summary
Judgment, is in all things GRANTED and that Plaintiff Joe L. Alaniz take nothing against Defendant Gaylord Hoyt,
that all claims asserted by plaintiff are denied, and that all costs of court be taxed against plaintiff. All relief requested
and not expressly granted is denied.
5. Finality
After examining the pleadings and summary-judgment record, we conclude that
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the "Order Granting Defendant Gaylord Hoyt's Motion for Summary Judgment" signed January 25, 2001 disposes of
all pending parties and claims. See Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex. 2001) (per curiam).
Accordingly, we find that the "Order Granting Defendant Gaylord Hoyt's Motion for Summary Judgment" is a final
judgment over which we have jurisdiction. See id.
We now address the issues on appeal. We first turn to the evidentiary complaints.
II. THE EVIDENTIARY ISSUES
In his second issue, Alaniz complains Hoyt's affidavit was untimely and should not be considered part of the summary-
judgment record. In issue twelve, Alaniz asserts that the trial court erred in sustaining Hoyt's objection to the affidavit
of Anne Stewart, a professor at Del Mar College and chair of the Del Mar College faculty council during the 1998-
1999 term (the "Stewart affidavit"). In issue thirteen, Alaniz maintains that the trial court should have taken judicial
notice of the dictionary definition of "skim" and the defamatory potential of the word "skimming."
A. The Objections
By written objection filed January 11, 2001, Alaniz complained that the Hoyt affidavit filed January 4, 2001 was
untimely in that Hoyt filed it less than twenty-one days before the summary-judgment hearing then set for January 19,
2001. Alaniz also objected to the January 19, 2001 hearing date, citing his lack of the requisite twenty-one days'
notice. The record does not reflect that Hoyt sought leave of court to file the affidavit to which Alaniz objected.
On January 18, 2001, Hoyt filed a written objection to Alaniz's summary-judgment evidence. Specifically, Hoyt
objected to the Stewart affidavit, arguing it should be struck because Alaniz had not identified Stewart's testimony in
discovery responses. Hoyt also objected that a letter dated February 28, 1998 from Hoyt to John Moore at the Texas
State Board of Public Accountancy (the "Moore letter") was privileged and should be struck. Further, Hoyt objected to
Alaniz's request that the trial court take judicial notice of the definition of "skim."
The court held a summary-judgment hearing January 23, 2001. Alaniz reasserted his objection to the untimeliness of
Hoyt's affidavit. Hoyt reasserted his objections to Stewart's affidavit and the Moore letter.
B. The Trial Court's Rulings
On January 25, 2001, the judge signed an order sustaining Hoyt's objection to inclusion of the Stewart affidavit and the
Moore letter in the summary-judgment record. That same date, the judge signed an order sustaining Hoyt's objection to
Alaniz's request for judicial notice of the meaning of the word "skim." No order with regard to Alaniz's objection to
the untimeliness of Hoyt's summary-judgment affidavit appears in the record.
C. The Evidentiary Arguments
1. The Untimeliness of Hoyt's Summary-Judgment Evidence
In issue two, Alaniz asserts that the untimeliness of Hoyt's summary-judgment affidavit filed on January 4, 1991 bars
its consideration on appeal. In his appeal brief, Hoyt concedes that his affidavit was untimely. He argues that the record
does not reflect that the trial court considered the late-filed affidavit. He points out that the substance of the affidavit is
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repeated in timely filed deposition excerpts.
We agree with Alaniz that when a movant, without leave of court, files summary-judgment evidence less than twenty-
one days before a summary-judgment hearing, a presumption attaches that the trial court did not consider the late-filed
evidence. Vasquez v. Carmel Shopping Ctr. Co., 777 S.W.2d 532, 535 (Tex. App.-Corpus Christi 1989, writ denied).
Accordingly, we hold that Hoyt's summary-judgment affidavit filed January 4, 2001 is not part of the summary-
judgment record. See Tex. Airfinance Corp. v. Lesika, 777 S.W.2d 559, 561-62 (Tex. App.-Houston [14th Dist.] 1989,
no writ) (citing INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985)). We sustain Alaniz's second issue as it
relates to Hoyt's summary-judgment affidavit.
Also in his second issue, Alaniz asserts that excerpts from Alaniz's deposition filed by Hoyt four days before the
summary-judgment hearing were untimely. Alaniz is correct that a non-movant may submit evidence in support of its
response to a summary-judgment motion only up to seven days before the hearing. Knapp v. Eppright, 783 S.W.2d
293, 296 (Tex. App.-Houston [14th Dist.] 1989, no writ). However, the seven-day limit relied on by Alaniz does not
apply to a movant's reply to a non-movant's response. Eppright, 783 S.W.2d at 296; see Tex. R. Civ. P. 166a(c). Rule
166a(c) does not specify the time within which a movant's reply to a non-movant's response must be filed. In any
event, the record does not reflect that Alaniz objected, either in writing or at the summary-judgment hearing, to the
trial court's consideration of the evidence Hoyt submitted in reply to Alaniz's response. Thus, Alaniz did not preserve
any error as to the trial court's consideration of the summary-judgment materials attached to Hoyt's reply. Eppright,
783 S.W.2d at 296; see Tex. R. App. P. 52. Accordingly, we hold that the excerpts of Alaniz's deposition, filed January
19, 2001 and attached to Hoyt's reply to Alaniz's response to Hoyt's motion for summary judgment, are part of the
summary-judgment record. Eppright, 783 S.W.2d at 296. We overrule Alaniz's second issue as it relates to the
deposition excerpts attached to Hoyt's reply to Alaniz's response.
2. The Striking of the Stewart Affidavit
Alaniz attached the Stewart affidavit to his response to Hoyt's motion for summary judgment. Hoyt moved to strike the
Stewart affidavit on the ground that "it sets forth factual allegations that have not previously been identified in
Plaintiff's responses to Interrogatories (and more specifically, Plaintiff's response to Defendant's Interrogatory No. 6) or
responses to Requests for Disclosure." We note that Hoyt did not attach the referenced discovery responses to his
objection, nor does the record otherwise reflect that the referenced discovery responses were filed, either by Hoyt or by
Alaniz. Also, the record does not reflect that Alaniz sought to establish good cause for any failure to timely amend his
discovery responses to identify Stewart's knowledge of relevant facts.
The trial court agreed with Hoyt and struck the Stewart affidavit. On appeal, Alaniz argues that supplementation of
discovery responses is not a prerequisite to a party's use in a summary-judgment proceeding of affidavits of previously
undisclosed witnesses, citing Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex. App.-Corpus Christi 1988, no writ).
Hoyt counters that any error in the trial court's exclusion of the Stewart affidavit does not require reversal unless "the
whole case turns on the particular evidence admitted or excluded," citing Ebasco Constructors Inv. v. Rex, 923 S.W.2d
694, 700 (Tex. App.-Corpus Christi 1996, writ denied).
We agree with both Alaniz and Hoyt. The rules regarding discovery supplementation do not apply to the
comprehensive framework of summary-judgment proceedings. Johnson v. Fuselier, 83 S.W.3d 892, 897 (Tex. App.-
Texarkana 2002, no pet.) (citing Novasad, 752 S.W.2d at 742). We hold that the trial court abused its discretion in
striking the Stewart affidavit. See Fuselier, 83 S.W.3d at 898. However, a harm analysis is required. See id.
We have reviewed the summary-judgment record. We conclude that Stewart's affidavit contains the only evidence in
the record of the substance of conversations among Stewart, Hoyt, and third parties that took place on July 13, 1998
and August 12, 1998. As discussed in more detail below, our determination of whether Alaniz met his burden of
producing evidence in response to Hoyt's no-evidence motion for summary judgment turns on the contents of those two
conversations. Accordingly, we hold that the trial court's striking of the Stewart affidavit was harmful. See Ebasco
Constructors, 923 S.W.2d at 700. We sustain Alaniz's twelfth issue as it relates to the Stewart affidavit.
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3. The Striking of the Moore Letter
Also in issue twelve, Alaniz asserts that the trial court erred in striking the Moore letter on the basis of judicial
privilege. Alaniz does not dispute that an absolute privilege originally attached to the Moore letter. However, Alaniz
argues that: (1) the Moore letter is admissible summary-judgment evidence of Hoyt's actual malice in repeating his
statements about Alaniz after receiving an auditor's report absolving Alaniz of malfeasance; and (2) Hoyt re-expressed
the same statements he made in the Moore letter "outside the penumbra of judicial privilege" when he repeated the
statements at the Del Mar College faculty council meeting on July 6, 1998. Hoyt responds that: (1) the statements made
by him to Moore were absolutely privileged; and (2) Alaniz waived his complaint by not "identifying the exclusion of
this evidence as one of his issues for appeal pursuant to Texas Rule of Appellate Procedure, 38.1." We address first
Hoyt's waiver argument.
a. Waiver
Hoyt correctly points out that Alaniz did not identify in an issue on appeal Alaniz's objection to the trial court's striking
of the Moore letter. Nonetheless, Alaniz raises the complaint in his argument under issue twelve. The supreme court
instructs that we must consider a party's arguments supporting each issue on appeal, not just the wording of the issue
itself. Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex. 1995) (per curiam). Further, this Court long has applied a
liberal briefing policy. Ottis v. Haas, 569 S.W.2d 508, 511 (Tex. App.-Corpus Christi 1978, writ ref'd n.r.e.). We
construe each issue on appeal in light of our understanding of the arguments made and authorities cited by the
appellant. Id. Accordingly, we find that Alaniz preserved on appeal his challenge to the trial court's striking of the
Moore letter. We turn to the substance of Alaniz's complaint.
b. Standard of Review
The admission or exclusion of summary-judgment evidence rests in the sound discretion of the trial court. Alejandro v.
Bell, 84 S.W.3d 383, 388 (Tex. App.-Corpus Christi 2002, no pet.) A trial court abuses its discretion if it acts without
reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner. Id. (citing Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). A trial court does not abuse its discretion if it
decides a matter within its discretion differently than the appellate court would. Id. (citing Downer, 701 S.W.2d at 241-
42).
c. Analysis
(1) The Law of Judicial Privilege
A privilege to communicate may be either absolute or qualified. Gallegos v. Escalon, 993 S.W.2d 422, 424 (Tex. App.-
Corpus Christi 1999, no pet.). An absolute privilege attaches, regardless of motive, in situations that involve
administration of the branches of government. Id. Words written or spoken in the course of a judicial proceeding are
absolutely privileged. Id.; Rose v. First Am. Title Ins. Co., 907 S.W.2d 639, 641 (Tex. App.-Corpus Christi 1995, no
writ). Judicial privilege extends to statements made in quasi-judicial proceedings before governmental executive
officers, boards, and commissions exercising quasi-judicial powers. Gallegos, 993 S.W.2d at 425; see Town of S.
Padre Island v. Jacobs, 736 S.W.2d 134, 144 (Tex. App.-Corpus Christi 1987, writ denied) (op. on reh'g) (discussing
"nature and incidence of quasi-judicial powers"). Nonetheless, the absolute privilege is lost if the holder of the
privilege repeats the statements outside the protected context within which the statements originally were made. Rose,
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907 S.W.2d at 642 (discussing De Mankowski v. Ship Channel Dev. Co., 300 S.W. 118 (Tex. Civ. App.-Galveston
1927, no writ)).
(2) The Contents of the Moore Letter
In his second amended petition, Alaniz did not allege against Hoyt any liability for defamation based on the contents of
the Moore letter. Nor does Alaniz claim that Hoyt published the letter itself to third parties. See Rose, 907 S.W.2d at
642 (distinguishing circumstance where defendant re-publishes to third parties complete document subject to judicial
privilege from circumstance where defendant repeats to third parties statements contained in privileged document).
Thus, in determining if the trial court abused its discretion in striking the Moore letter, we must examine the contents
of the letter itself and determine: (1) the specific statements made by Hoyt; and (2) whether the summary-judgment
evidence, viewed through the prism of Alaniz's allegations in the second amended petition, shows that Hoyt repeated
the same statements outside the context of the Moore letter. See Rose, 907 S.W.2d at 641 (reviewing summary
judgment in context of pleadings and summary-judgment evidence). The Moore letter recites in relevant part:
The chief financial officer of Del Mar College is Jose L. Alaniz. He holds himself out to be a Certified Public
Accountant. He has been employed by Del Mar College since July 1977 and has served as the chief financial officer
and the chief fiscal officer since February 1, 1992. His title is vice president of business and finance. Mr. Alaniz is also
responsible for funds of the related but separate Del Mar College Foundation.
The complaint is that Mr. Alaniz is charged with the responsibility to maintain proper and adequate internal controls,
but he fails to maintain internal controls. Under Mr. Alaniz's direction there seems to be a commingling of funds of the
College and the separate Foundation. In addition, a "President's Fund" is part of the Foundation, and disbursements
from this Fund are allegedly improper. The College apparently has also improperly accounted for and retained funds of
the Foundation arising from unclaimed scholarships awarded by the Foundation. A listing of improprieties in
accounting are beyond the scope of this letter.
To explain the suspected unethical acts of Mr. Joe Alaniz, I enclose two audit reports of Del Mar College and other
related documents, which need no explanation. The president of Del Mar College, Terry L. Dicianna, explained to the
Board of Regents that the errors were caused because the reconciliations were performed by "clerks and secretaries"
who were "inadequately trained." Incidentally, Del Mar College includes a department of accounting. There has been
totally lacking any acceptance of accountability by President Dicianna and/or Mr. Alaniz. (4)
Thus, Hoyt made privileged statements in the Moore letter that Alaniz: (1) failed to maintain internal controls; (2)
"commingled" Del Mar College funds with Del Mar College Foundation funds; (3) allegedly made improper
disbursements from the "President's Fund"; (4) improperly accounted for and retained unclaimed Del Mar College
Foundation scholarship funds; and (5) engaged in suspected unethical acts. Of these five statements, only Hoyt's
repetition to others of the statement that Alaniz "commingled" funds serves as a specific basis for an allegation of
defamation in Alaniz's second amended petition.
(3) Application of the Law of Judicial Privilege to the Moore Letter
The summary-judgment record shows that Dicianna testified Hoyt repeated in Dicianna's presence and in the presence
of third parties the statement that Alaniz had "commingled" funds. Further, in Alaniz's summary-judgment affidavit,
Alaniz testified:
I was present during a meeting of Del Mar College faculty and administrators in July 1998, at which Dr. Gaylord Hoyt
made false and defamatory accusations that . . . I had improperly mixed or commingled funds of Del Mar College with
funds of the Del Mar College Foundation.
On the other hand, Hoyt presented no controverting evidence he did not repeat, outside the protection of the Moore
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letter, the statement that Alaniz had "commingled" funds. (5) The De Mankowski court held:
The privilege accorded a litigant which exempts him from liability for damages caused by false charges made in his
pleadings, or in the court in the course of a judicial proceeding, cannot be enlarged into a license to go out in the
community and make false and slanderous charges against his court adversary and escape liability for damages caused
by such charges on the ground that he had made similar charges in his court pleadings.
De Mankowski, 300 S.W. at 122. The undisputed summary-judgment evidence shows that Hoyt, by stepping outside
the privileged circumstance of his letter to Moore to repeat to third parties that Alaniz had "commingled" funds,
waived judicial privilege from any liability for that statement. See id. In any event, Alaniz did not seek in his second
amended petition to impose liability on Hoyt for any of the statements in the Moore letter. Rather, Alaniz sought to
include the Moore letter as part of the summary-judgment evidentiary record. We decline to extend an evidentiary
privilege to a statement over which any judicial privilege has been waived.
Further, disclosure of "any significant part" of a document subject to an evidentiary privilege waives the privilege as to
the document and results in an implied waiver of the privilege as to any additional material that was not disclosed. See
Terrell State Hosp. of the Tex. Dept. of Mental Health and Mental Retardation v. Ashworth, 794 S.W.2d 937, 940
(Tex. App.-Dallas 1990, orig. proceeding) (discussing principle that disclosure of information that constitutes
"significant part" of document subject to hospital committee privilege waives privilege as to undisclosed material in
underlying document). We find that Hoyt's statement that Alaniz had "commingled" funds was a "significant part" of
Hoyt's communication to Moore. Accordingly, in the absence of any controverting evidence that Hoyt did not repeat to
third parties the statement that Alaniz had "commingled" funds, we find that Hoyt waived any evidentiary privilege
that attached to that statement as well as to the remainder of the contents of the Moore letter. We hold that the trial
court abused its discretion in sustaining on judicial privilege grounds Hoyt's objection to admission of the Moore letter
into the summary-judgment evidentiary record. See De Mankowski,300 S.W. at 122. Again, a harm analysis is
required. See Ebasco Constructors, 923 S.W.2d at 700.
We have reviewed the summary-judgment record. We conclude that the record contains, other than in the Moore letter
(as discussed in detail below), evidence that Hoyt, after receipt of an auditor's report absolving Alaniz of malfeasance,
repeated to third parties the statement that Alaniz had "commingled" funds. We hold that the trial court's striking of the
Moore letter was harmless. See id. We overrule Alaniz's twelfth issue as it relates to the Moore letter.
III. SUMMARY-JUDGMENT STANDARDS OF REVIEW
The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants
of the right to a jury trial. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n.5 (Tex. 1979); Swilley
v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972). On appeal, the standard of review for the grant of a motion for summary
judgment is determined by whether the motion was brought on no-evidence or traditional grounds. Tex. R. Civ.
P.166a(i), (c); Ortega v. City Nat'l Bank, 97 S.W.3d 765, at *10 (Tex. App.-Corpus Christi 2003, no pet. h.) (op. on
reh'g). The difference in relative burdens between the parties in the two types of summary-judgment motions is
significant. Id. Determination of the nature of the motion for summary judgment under analysis is critical. Id.
The trial court did not specify the ground or grounds on which it granted Hoyt's motion for summary judgment.
Accordingly, we will uphold the summary judgment if any of the grounds raised by Hoyt in his summary-judgment
motions has merit. Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999); Ortega, 97 S.W.3d 765, at *13.
Hoyt separately presented and briefed his no-evidence and traditional motions for summary judgment. Therefore, we
analyze the motions separately. See Scripps Tex. Newspapers, L.P., v. Belalcazar, No. 13-02-414-CV, 2003 Tex. App.
LEXIS 1728, at *9-*10, *26-*27 (Corpus Christi Feb. 27, 2003, pet. filed).
A. No-Evidence Summary-Judgment Standards
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A no-evidence motion for summary judgment asserts that there is no evidence of one or more essential elements of a
claim on which the adverse party will bear the burden of proof at trial. Tex. R. Civ. P.166a(i); Belalcazar, 2003 Tex.
App. LEXIS 1728, at *26. We apply the same legal-sufficiency standard of review to a no-evidence summary
judgment as we apply to a directed verdict. Belalcazar, 2003 Tex. App. LEXIS 1728, at *26-*27. "Like a directed
verdict, then, the task of the appellate court is to determine whether the plaintiff has produced any evidence of
probative force to raise fact issues on the material questions presented." Id., at *27 (quoting Jackson v. Fiesta Mart,
Inc., 979 S.W.2d 68, 70 (Tex. App.-Austin 1998, no pet.)). To raise a genuine issue of material fact, all that is required
of the non-movant in responding to a no-evidence motion for summary judgment is to produce a scintilla of probative
evidence. Ortega, 97 S.W.3d 765, at *12. "Less than a scintilla of evidence exists when the evidence is 'so weak as to
do no more than create a mere surmise or suspicion' of a fact." Id. (citing Moore v. K Mart Corp., 981 S.W.2d 266, 269
(Tex. App.-San Antonio 1998, pet. denied) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983))).
Conversely, more than a scintilla exists when the evidence "rises to a level that would enable reasonable and fair-
minded people to differ in their conclusions." Ortega,97 S.W.3d 765, at *12 (quoting Transp. Ins. Co. v. Moriel, 879
S.W.2d 10, 25 (Tex. 1994)). The movant has no burden to attach any evidence to a no-evidence motion for summary
judgment. Tex. R. Civ. P. 166a(i); Ortega, 97 S.W.3d 765, at *13. The non-movant bears the entire burden of
producing evidence to defeat a no-evidence motion for summary judgment. Id.
B. Traditional Summary-Judgment Standards
We review de novo a trial court's grant or denial of a traditional motion for summary judgment. Ortega, 97 S.W.3d
765, at *11. The movant bears the burden of showing both no genuine issue of material fact and entitlement to
judgment as a matter of law. Tex. R. Civ. P. 166a(c); Ortega, 97 S.W.3d 765, at *11. In deciding whether there is a
genuine issue of material fact, we take evidence favorable to the non-movant as true. Ortega, 97 S.W.3d 765, at *11.
We make all reasonable inferences and resolve all doubts in favor of the non-movant. Id. Summary judgment for a
defendant is proper if the defendant disproves at least one element of each of the plaintiff's claims or affirmatively
establishes each element of an affirmative defense to each claim. Id. This standard applies to summary-judgment
motions in defamation actions. Belalcazar, 2003 Tex. App. LEXIS 1728, at *10. A non-movant has the burden to
respond to a traditional summary-judgment motion if the movant conclusively: (1) establishes each element of its
cause of action or defense; or (2) negates at least one element of the non-movant's cause of action or defense. See
Ortega, 97 S.W.3d 765, at *11.
We turn now to the heart of the parties' dispute.
IV. ANALYSIS
A. The Law of Defamation
Texas law recognizes two types of defamation: libel and slander. Fields v. Keith, 174 F. Supp. 2d 464, 473 (E.D. Tex.),
aff'd, 273 F.3d 1099 (5th Cir. 1999). An action for libel requires publication to a third party of written defamatory
words about the plaintiff. Id. (citing M.N. Dannenbaum, Inc. v. Brummerhop, 840 S.W.2d 624, 633-34 (Tex. App.-
Houston [14th Dist.] 1992, writ denied)). Slander requires defamatory words about the plaintiff to be spoken, without
legal excuse, to a third party. Fields, 174 F. Supp. 2d at 473 (citing Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d
640, 644 (Tex. 1995); Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88, 91 (Tex. App.-Corpus Christi 1992, writ
dism'd w.o.j.)).
1. Are the Words Defamatory?
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To be defamatory, words must be false. Padilla v. Carrier Air Conditioning, 67 F. Supp. 2d 650, 663 (E.D. Tex. 1999)
(citing Randall's Food Mkts., 891 S.W.2d at 646). The words also must refer to an ascertainable person to be
defamatory. Id. Words are defamatory if they tend to harm a person's reputation. Tex. Civ. Prac. & Rem. Code Ann.
73.001 (Vernon 1997); Einhorn v. LaChance, 823 S.W.2d 405,410-11 (Tex. App.-Houston [1st Dist.] 1992, writ dism'd
w.o.j.) (op. on reh'g). Words that expose a person to public hatred, contempt, ridicule, or financial injury harm a
person's reputation. LaChance, 823 S.W.2d at 410-11. Generally, there are two types of defamatory words: (1)
defamation per se, or words that are actionable in and of themselves, which does not require any allegation of special
damages; and (2) defamation per quod, or words that are actionable only on allegations and proof of special damages.
Padilla, 67 F. Supp. 2d at 663 (citing Bayoud v. Sigler, 555 S.W.2d 913 (Tex. Civ. App.-Beaumont 1977, writ dism'd
w.o.j.)); Gulf Constr. Co. v. Mott, 442 S.W.2d 778, 783-84 (Tex. Civ. App.-Houston [14th Dist.] 1969, no writ).
Words may be defamatory per se if they are so obviously harmful to the person aggrieved that no proof of their
injurious effect is necessary to make them actionable. Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 921
(Tex. App.-Corpus Christi 1991, writ dism'd w.o.j.). Among the words characterized as slanderous per se are those that
injuriously affect one in one's office, profession, or occupation. Id. Nonetheless, even if words tend to expose one to
ridicule, hatred, or contempt, they are not actionable in and of themselves unless they impute to one the commission of
a crime, have an injurious effect on one's office or business, or falsely or maliciously impute unchastity. Padilla, 67 F.
Supp. 2d at 663 (citing Buck v. Savage, 323 S.W.2d 363 (Tex. Civ. App.-Houston [1st Dist.] 1959, writ. ref'd n.r.e.)).
Whether words can be interpreted as defamatory is a question of law for the court. LaChance, 823 S.W.2d at 411
(citing Musser v. Smith Protective Serv., Inc.,723 S.W.2d 653, 654-55 (Tex. 1987)). The court applies an objective
standard by construing the words as a whole, in light of surrounding circumstances, based on how a person of ordinary
intelligence would perceive the words. LaChance, 823 S.W.2d at 411. If the court determines that the words are
ambiguous or of doubtful import, a factfinder should decide the words' meaning and the effect of the words on an
ordinary person. Id.
2. What Is the Private or Public Status of the Plaintiff?
The degree and burden of proof applied in a defamation case hinges on the status of the plaintiff as either a private
individual or a public figure. LaChance, 823 S.W.2d at 412. An injured private party who is not a public official or
public figure must prove that the defendant was negligent in making a defamatory statement. Id. at 413 (citing Durham
v. Cannon Communications, Inc., 645 S.W.2d 845, 851 (Tex. App.-Amarillo 1983, writ dism'd w.o.j.)). However, the
threat of a defamation judgment can chill discussion of public issues. Thus, to sustain a defamation cause of action, a
public figure must prove the defendant acted with actual malice, not merely negligence. N.Y. Times Co. v. Sullivan,
376 U.S. 254, 279-80 (1964). These standards apply equally to media and non-media defendants. See Casso v. Brand,
776 S.W.2d 551, 554 (Tex. 1989) (plurality opinion) ("We are reluctant to afford greater constitutional protection to
members of the print and broadcast media than to ordinary citizens. . . . Therefore, we join those states which have
extended the New York Timesstandard to defamation suits by public officials and public figures against non-media
defendants.").
Alaniz, in the context of this summary-judgment proceeding, did not dispute he is a public figure. Accordingly, our
analysis assumes that Alaniz will bear the burden of proving at trial that Hoyt acted with actual malice. See Casso, 776
S.W.2d at 554.
B. The Law of Actual Malice
Defamatory words are communicated with actual malice when the defendant knows the words are false or recklessly
disregards whether the words are false or not. Randall's Food Mkts., 891 S.W.2d at 646; Hagler v. Proctor & Gamble
Mfg. Co., 884 S.W.2d 771, 772 (Tex. 1994) (per curiam). Actual malice is a term of art distinct from traditional
common-law malice. Hagler, 884 S.W.2d at 771; Wal-Mart Stores, Inc. v. Lane, 31 S.W.3d 282, 291 (Tex. App.-
Corpus Christi 2000, pet. denied). Actual malice does not include ill will, spite, or evil motive. Hagler, 884 S.W.2d at
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771; Lane, 31 S.W.3d at 291. Rather, "reckless disregard" means "sufficient evidence to permit the conclusion that the
defendant in fact entertained serious doubts as to the truth of [the] publication." Lane, 31 S.W.3d at 291 (quoting
Hagler, 884 S.W.2d at 771-72); see Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666 (1989)
("[T]he actual malice standard is not satisfied merely through a showing of ill will or 'malice' in the ordinary sense of
the term.").
1. The Burden of Proof for Actual Malice
To show actual malice in the defamation context, the plaintiff must produce "clear and convincing evidence that the
defendant acted with a knowledge of falsity or with a 'high degree of awareness of . . . probable falsity.'" Connaughton,
491 U.S. at 688 (quoting Garrison v. La., 379 U.S. 64, 74 (1964)); Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002);
see Casso, 776 S.W.2d at 558 (holding that public figure "must offer clear and convincing affirmative proof to support
a recovery" for defamation). Clear and convincing evidence is defined as "that measure or degree of proof which will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established." In re G.M., 596 S.W.2d 846, 847 (Tex. 1980) (quoting State v. Addington, 588 S.W.2d 569 (Tex. 1979)).
In a defamation case, the standard is subjective: there must be sufficient evidence to permit the conclusion that the
defendant actually had a "high degree of awareness of . . . probable falsity."Belalcazar, 2003 Tex. App. LEXIS 1728, at
*24-*25 (quoting Connaughton, 491 U.S. 657 at 688). Accordingly, failure to investigate or verify information,
without more, cannot establish actual malice. Id. (citing Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 756 (Tex.
1984); Freedom Communications, Inc. v. Brand, 907 S.W.2d 614, 622 (Tex. App.-Corpus Christi 1995, no writ)).
Although actual malice focuses on the defendant's subjective state of mind, a plaintiff can prove it through objective
evidence about the circumstances surrounding the alleged defamatory words. Turner v. KTRK Television, Inc., 38
S.W.3d 103, 120 (Tex. 2000). Actual malice also may be proved by circumstantial evidence of the defendant's state of
mind. Id. Inconsistencies or doubts regarding the reliability or credibility of the defendant's source of information do
not amount to clear and convincing evidence of the defendant's knowledge of the falsity of the words or that the
defendant entertained serious doubts about their truth. Id. at 125. However, omission of critical facts that distorts the
entire character of a communication raises an inference that the defendant acted with actual malice. See Eastwood v.
Nat'l Enquirer, Inc., 123 F.3d 1249, 1256 (9th Cir. 1997).
In the summary-judgment context, rule 166a permits the granting of summary judgment on the basis of uncontroverted
testimonial evidence of an interested witness if that evidence "is clear, positive and direct, otherwise credible and free
from contradictions and inconsistencies, and could have been readily controverted." Tex. R. Civ. P. 166a(c). The
supreme court has held that the phrase "could have been readily controverted" does not simply mean that the movant's
summary-judgment proof in a defamation case could have been easily and conveniently rebutted. Casso, 776 S.W.2d
at 558. Rather, the phrase means that the testimony at issue is of a nature that can be countered effectively by opposing
evidence. Id. If the credibility of the affiant or deponent is likely to be a dispositive factor in the resolution of the case,
summary judgment is inappropriate. Id. On the other hand, if the non-movant must produce, in all likelihood,
independent evidence to prevail, summary judgment may well be proper in the absence of controverting proof. Id.
Thus, if a defamation defendant's affidavit or deposition testimony establishes the defendant's subjective absence of
knowledge of the falsity of the challenged words and subjective absence of reckless disregard of their truth or falsity,
the plaintiff must controvert those statements to prevail. Id.
2. The Standard of Review for Actual Malice
On Review of a Summary Judgment
The clear-and-convincing standard of proof does not apply to review of summary-judgment proceedings in a
defamation case. Huckabee v. Time Warner Entm't Co., L.P., 19 S.W.3d 413, 423 (Tex. 2000). Instead, a trial court's
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only duty at the summary-judgment stage - and this Court's only duty on reviewing a summary judgment in a
defamation case - is to determine if a material question of fact exists. Id. at 422.
3. Application of the Law to the Summary-Judgment Evidence
In both his no-evidence and traditional motions for summary judgment, Hoyt focused on the "actual malice" element
on which we assume, for purposes of this summary-judgment record, that Alaniz will bear the burden of proof at trial.
In the no-evidence portion of his motion, Hoyt specifically identified that Alaniz had no evidence that Hoyt either
made the statements with a "high degree of awareness of probable falsity" or that Hoyt had "actual subjective doubt
about the trustfulness [sic] of the statements." In reviewing the summary judgment, we determine if Alaniz produced in
response to Hoyt's no-evidence motion more than a scintilla of evidence that Hoyt acted with actual malice, that is, if
the evidence in the summary-judgment record "rises to a level that would enable reasonable and fair-minded people to
differ in their conclusions." Ortega, 97 S.W.3d 765, at *12 (quoting Moriel, 879 S.W.2d at 25). On the other hand, we
take evidence favorable to Alaniz as true in determining if Hoyt disproved in his traditional motion for summary
judgment the actual-malice element of Alaniz's defamation claim. See Ortega, 97 S.W.3d 765, at *11. We make all
reasonable inferences and resolve all doubts in Hoyt's favor. See id.
a. Hoyt's No-Evidence Motion for Summary Judgment
Alaniz generally complains in his first issue that the trial court erred in granting summary judgment for Hoyt. In issue
eight, Alaniz asserts that the summary-judgment record contains more than a scintilla of evidence that Hoyt knew or
suspected that his statements about Alaniz, taken as a whole, could present a false and defamatory impression. In issue
nine, Alaniz maintains that the summary-judgment record contains more than a scintilla of evidence that Hoyt knew or
suspected that his statements that Alaniz had been "skimming" interest could present a false and defamatory
impression. Similarly, in issue ten, Alaniz asserts that the summary-judgment record contains more than a scintilla of
evidence that Hoyt knew or suspected that his statements that Alaniz had "commingled" funds of Del Mar College with
funds of Del Mar College Foundation could present a false and defamatory impression.
In response to Hoyt's no-evidence motion, Alaniz filed excerpts from the deposition of Lisa Anderson, a CPA
employed by the accounting firm of KPMG Peat Marwick, who prepared an internal control audit report, dated
February 4, 1998, of Del Mar College Agency accounts. Anderson testified she prepared an audit report that informed
the Del Mar College Board of Regents, among other findings, that KPMG's audit did not disclose any evidence of
criminal conduct such as theft or misappropriation, nor did the audit reveal that funds of Del Mar Foundation were
commingled with funds of Del Mar College. Minutes of a meeting held March 2, 1998 of the Audit Committee of the
Del Mar College Board of Regents, also submitted by Alaniz in response to Hoyt's no-evidence motion for summary
judgment, confirmed both the substance of KPMG's findings as disclosed in the audit report and that the audit report
was presented to the Audit Committee on that date. Alaniz's summary-judgment affidavit established both that Hoyt
was present at the March 2, 1998 Audit Committee meeting when the KPMG audit report was presented and that Hoyt
received a copy.
Alaniz also submitted as summary-judgment evidence a memorandum dated June 28, 1998 from Hoyt to Dicianna that
stated in part:
Now that is it [sic] confirmed that Mr. Jose Alaniz has been "skimming" interest earnings on the checking account
away from agency accounts, please provide me, according to the Texas Open Records Act, all journal entries and/or
general ledger pages showing disbursements, transfer, and/or withdrawals. . .
Further, Alaniz's summary-judgment evidence established that Hoyt published the Dicianna memo to members of the
Del Mar College Board of Regents and to the Corpus Christi Caller-Times newspaper.
Moreover, Alaniz's summary-judgment affidavit established that during a Del Mar College faculty and administrators
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meeting in July of 1998, Hoyt stated that Alaniz had been "skimming" interest from Del Mar College Agency accounts
and had improperly "commingled" funds of Del Mar College with funds of Del Mar College Foundation. Also,
Dicianna testified in his deposition that Hoyt continued to repeat, after completion of the KPMG audit, statements
about Alaniz "skimming" and "commingling" funds.
Finally, Stewart testified in her affidavit that during a meeting between Stewart, Hoyt, and Richard Armenta (another
Del Mar College colleague) on July 13, 1998, Hoyt repeated his statement that Alaniz was "skimming." Stewart
testified that after Armenta explained the meaning of skimming and cautioned Hoyt that the term connoted stealing or
theft, Hoyt reiterated that Alaniz was "skimming." Stewart also testified in her affidavit that Hoyt repeated his
statements in a meeting on August 12, 1998, between Stewart, Hoyt, Armenta, Dicianna, and another academic
colleague, after Stewart again had warned Hoyt that the words Hoyt used in connection with Alaniz's performance of
his financial duties for Del Mar College suggested a crime had been committed and were legally actionable.
A defamation plaintiff can prove a defendant's subjective malicious state of mind through objective evidence about the
circumstances surrounding the alleged defamatory words as well as by circumstantial evidence. Turner, 38 S.W.3d at
120. Alaniz produced summary-judgment evidence that Hoyt persisted in repeating his statements about Alaniz's
"skimming" and "commingling" of funds: (1) after Hoyt received the KPMG audit report absolving Alaniz of
malfeasance; and (2) after at least two academic colleagues cautioned Hoyt that his use of the term "skimming"
connoted criminality. Accordingly, we find that Alaniz produced summary-judgment evidence that raised the level of
evidence in the summary-judgment record to the extent "that would enable reasonable and fair-minded people to differ
in their conclusions" as to whether Hoyt acted with actual malice. See Ortega, 97 S.W.3d 765, at *11. We hold that
Alaniz produced more than a scintilla of evidence that Hoyt acted with actual malice. See id. We sustain Alaniz's
eighth, ninth, and tenth issues.
b. Hoyt's Traditional Motion for Summary Judgment
In issue three, Alaniz asserts that a fact issue exists with regard to whether Hoyt knew or suspected that his statements
about Alaniz could be interpreted in a manner that would be defamatory and that the defamatory impression presented
by Hoyt's statements was false or misleading. Hoyt responds that his summary-judgment evidence, even excluding his
untimely affidavit in which he denied acting with actual malice, conclusively showed that he believed in the truth of
his assertions. We assume, without deciding, that Hoyt testified to a subjective belief in the truth of his statements in
the deposition excerpts timely submitted in support of his traditional motion for summary judgment. Nonetheless, we
have held that Alaniz presented more than a scintilla of evidence that Hoyt acted with actual malice. Similarly, we find
that Alaniz met his burden of controverting any evidence of Hoyt's subjective belief in the truth of Hoyt's assertions.
See Casso, 776 S.W.2d at 558. Taking evidence favorable to Alaniz as true, making all reasonable inferences, and
resolving all doubts, in his favor, we find that a fact issue exists with regard to whether Hoyt acted with actual malice.
See Ortega, 97 S.W.3d 765, at *11. We hold that Hoyt did not meet his burden of showing no genuine issue of material
fact. See id.
Further, objectively construing Hoyt's words as a whole in light of both the conclusions reached by the KPMG audit
report and Hoyt's repetition of the words after having received the audit report and after having been cautioned by his
academic colleagues about the injurious connotation of his words, we find that the words "skimming" and
"commingling" are of ambiguous or doubtful import in the context in which Hoyt used the words. See LaChance, 823
S.W.2d at 411. Accordingly, in the absence on this record of any fact issue that Hoyt made the statements Alaniz
attributes to him, we hold that a factfinder should decide: (1) the meaning of the words "skimming" and
"commingling" as used by Hoyt in referring to Alaniz's performance in Alaniz's office, profession, or occupation; and
(2) any defamatory effect of the words on an ordinary person. See LaChance, 823 S.W.2d at 411; see also Shearson
Lehman Hutton, 806 S.W.2d at 921. We sustain Alaniz's third issue.
V. CONCLUSION
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We sustain Alaniz's second issue as it relates to the untimeliness of Hoyt's summary-judgment affidavit. We overrule
Alaniz's second issue as it relates to the trial court's consideration of the deposition excerpts attached to Hoyt's reply to
Alaniz's response to Hoyt's motions for summary judgment. We sustain Alaniz's twelfth issue as it relates to the trial
court's striking of the Stewart affidavit and overrule it as it relates to the Moore letter. We sustain Alaniz's eighth,
ninth, and tenth issues that the trial court's grant of Hoyt's summary judgment on no-evidence grounds was error. We
sustain Alaniz's third issue that the trial court's grant of Hoyt's summary judgment on traditional grounds was error.
Accordingly, we also sustain Alaniz's first issue asserting generally that the trial court erred in entering summary
judgment for Hoyt. See Nat'l Union Fire Ins. Co. v. John Zink Co., 972 S.W.2d 839, 845-46 (Tex. App.-Corpus Christi
1998, pet. denied) (citing Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (1970)). We do not reach Alaniz's
remaining issues. (6) See Tex. R. App. P. 47.1. We reverse and remand this cause for further proceedings.
ERRLINDA CASTILLO
Justice
Opinion delivered and filed
this 8th day of May, 2003.
1. Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant
to Tex. Gov't Code Ann. 74.003 (Vernon 1998).
2. Within the motion for judicial notice, Alaniz moved for partial summary judgment on the ground that Hoyt's
statements regarding "skimming" were defamatory per se. Hoyt objected to Alaniz's attempt to assert his own motion
for summary judgment less than twenty-one days before the hearing scheduled on Hoyt's motion. The record does not
reflect an order from the court in that regard. Alaniz does not raise an issue on appeal complaining of the trial court's
denial of his cross-motion for summary judgment. Accordingly, we review only the trial court's order granting Hoyt's
motion for summary judgment. Similarly, Hoyt did not object to the trial court's consideration, as part of Alaniz's
response (filed the same day) to Hoyt's motion for summary judgment, of the summary-judgment evidence attached by
Alaniz to his motion for judicial notice. No written order excluded the materials from the summary-judgment record.
Further, the materials attached to Alaniz's motion for judicial notice were filed more than seven days before the
summary-judgment hearing. See Tex. R. Civ. P. 166a(c). Therefore, we consider all of the materials filed by Alaniz on
January 12, 2001, including the materials attached to his motion for judicial notice, as part of the summary-judgment
record. See Util. Pipeline Co. v. Am. Petrofina Mktg., 760 S.W.2d 719, 723 (Tex. App.-Dallas 1988, no writ) (evidence
remains part of summary-judgment record unless order sustaining objection is reduced to writing, signed, and entered
of record).
3. The court reporter's record reflects that the summary-judgment hearing took place January 23, 2001.
4. The exhibit filed by Alaniz contains only the first page of the February 28, 1998 letter from Hoyt to John Moore at
the Texas State Board of Public Accountancy. The exhibit also does not include the referenced enclosures.
5. Nor did Hoyt present controverting evidence that: (1) he did not make any of the statements attributed to him by
Alaniz in Alaniz's second amended petition; or (2) he did not repeat the statements after he received in March of 1998
an audit report absolving Alaniz of malfeasance.
6. In particular, we do not reach Alaniz's thirteenth issue in which he challenges the trial court's denial of his motion to
take judicial notice of a definition of the word "skim." Hoyt argues that the definition of a word is not a proper subject
for judicial notice. We note that a trial court's decision in taking judicial notice is subject to review under an abuse-of-
discretion standard. See Houston Chronicle Publ'g Co. v. Hardy, 678 S.W.2d 495, 508 (Tex. App.-Corpus Christi
1984, no writ). Courts may take judicial notice of "adjudicative facts." Tex. R. Evid. 201. Rule 201 further instructs
that "a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned." Tex. R. Evid. 201(b). Further, we note that "adjudicative
facts" are defined in the context of administrative proceedings as: "Factual matters concerning the parties . . . as
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contrasted with legislative facts which are general and usually do not touch individual questions of particular parties to
a proceeding." Black's Law Dictionary, p. 39 (5th ed.). For the proposition that a court may take judicial notice of the
definition of a word, Alaniz cites Allied Gen. Agency, Inc. v. Moody, 788 S.W.2d 601 (Tex. App.- Dallas 1990, writ
denied). In Moody, the trial court took judicial notice of the definitions of several words and included them in the jury
charge. Moody, 788 S.W.2d at 607. Thus, the Moody court did not use the definitions as "[f]actual matters concerning
the parties." See Black's, p. 39. We distinguish the circumstance under which the court took judicial notice of
definitions in Moody from this case, where Alaniz sought to establish the defamatory nature of the word "skim"
through judicial notice of one of the word's definitions. As Hoyt pointed out to the trial court, the word "skim" has
more than one definition. Where judicial notice of one of a word's multiple definitions is sought in a defamation action
in which usage of the word is in controversy, we conclude that the definition of the word is a fact that is "subject to
reasonable dispute." Tex. R. Evid. 201(b). A fact issue is presented regardless of whether the trial court takes judicial
notice of the definitions. Accordingly, because of our holding that fact issues preclude summary judgment, we do not
decide if the trial court abused its discretion in denying Alaniz's motion to take judicial notice of one of the definitions
of the word "skim."
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