Sally Scott, Individually and d/b/a Sun City Skate Park v. Ross Tanner--Appeal from 61st District Court of Harris County

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Laws-info.com » Cases » Texas » 1st District Court of Appeals » 2003 » Sally Scott, Individually and d/b/a Sun City Skate Park v. Ross Tanner--Appeal from 61st District Court of Harris County

State: Texas

Court: Texas Northern District Court

Docket No: 01-02-00668-CV

Case Date: 12/04/2003

Plaintiff: Joe Garcia Estrada, Jr.

Defendant: Angleton Bail Bond--Appeal from 113th District Court of Harris County

Preview:Sally Scott, Individually and d/b/a Sun City Skate Park
v. Ross Tanner--Appeal from 61st District Court of
Harris County
Opinion issued December 4, 2003
:
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00668-CV
SALLY SCOTT, INDIVIDUALLY
AND D/B/A SUN CITY SKATE PARK, Appellant
V.
ROSS TANNER, Appellee
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 01-41214
MEMORANDUM OPINION
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Appellant, Sally Scott, individually and d/b/a Sun City Skate Park ( Scott ), brings this restricted appeal to challenge
the no-answer default judgment obtained against her by appellee, Ross Tanner ( Tanner ). We determine (1) whether
the record indicates that Scott was properly served with Tanner s original petition; (2) whether Tanner s amended
petition requested a more onerous judgment than Tanner s original petition; (3) whether legally sufficient evidence
exists to support the trial court s liability findings against Scott; and (4) whether legally and factually sufficient
evidence exists to support the trial court s damages award against Scott.
We affirm.
Background Facts
Scott operated Sun City Skate Park ( the park ), a community skateboarding park. Scott hired Tanner as an employee
of the park. After a couple of months, Scott terminated Tanner s employment. Four months later, the park was robbed.
//
Procedural History
A couple of months after his termination, Tanner filed Plaintiff s Request for Temporary Restraining Order, Permanent
Injunction and Original Petition ( original petition ) in which he made the following allegations:
" When Scott terminated Tanner s employment, she told Tanner that he was being terminated because Scott could no
longer afford his salary and due to disagreements over staff issues.
" Following his termination from the park, and based on his success in skateboarding competitions, expertise in the
sport, and acquaintance with many nationally known skateboarders, Tanner was hired by numerous suppliers of
skateboarding products to promote and sell their product lines.
" When Scott s skateboarding park was robbed in June 2001, Tanner was in Ohio.
" Scott accused Tanner of robbing the park.
" No criminal charges were filed against Tanner related to the robbery.
" Scott called manufacturing representatives with whom Tanner had business contracts and told the representatives that
Tanner had robbed her park. Scott also told the representatives that they should not do business with Tanner and stated
that she would not place large orders for merchandise with them unless they terminated their relationships with Tanner.
" Because of Scott s communications, Tanner was denied access to skateboarding parks in the Houston area, suffered a
reduction in gross sales of skateboarding related merchandise, has been denied business opportunities with other
skateboarding merchandise manufacturers, and lost customers who would have otherwise taken skateboarding lessons
from Tanner.
Based on these allegations, Tanner asserted causes of action against Scott for slander, libel, and tortious interference
with a contract. Tanner requested the trial court to enter a temporary restraining order precluding Scott from contacting
businesses associated with the skateboarding industry or Tanner s potential customers and communicating that (1)
Tanner had robbed the park; (2) Tanner was a thief; and (3) they should not do business with Tanner. Tanner also
requested that, when the case was tried, the temporary restraining order be converted into a permanent injunction. In
addition, Tanner requested actual damages, punitive damages, and attorney s fees.
Tanner later filed Plaintiff s First Amended Request for Temporary Restraining Order, Temporary Injunction,
Permanent Injunction and Original Petition ( amended petition ). Tanner s amended petition differed from his original
petition in that it requested a temporary injunction in addition to the temporary restraining order and permanent
injunction. The conduct of Scott that Tanner sought to enjoin remained unchanged from the original petition.
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Although a return of citation was filed with the district clerk, indicating that Scott was served with the original petition,
Scott never answered Tanner s petition. Based on Scott s failure to answer, Tanner filed a motion for interlocutory
default judgment, requesting the trial court to (1) enter an interlocutory default judgment as to liability and (2) set the
matter for trial on the issue of damages. The trial court signed an Order Granting Interlocutory Default Judgment, in
which it ordered that judgment be entered in favor of Tanner against Scott as to liability. Specifically, the trial court
ordered that judgment be entered that Scott committed libel and slander as to Tanner and that Scott tortiously
interfered in the contractual relationships of Tanner and his customers.
On a later date, the trial court conducted an evidentiary hearing at which Tanner presented evidence to prove up his
unliquidated damages. Following the hearing, the trial court signed a final judgment awarding Tanner the following
damages against Scott: (1) $79,000 for lost profits; (2) $100,000 for mental anguish; and (3) $179,500 in punitive
damages. The record does not indicate whether Tanner was awarded the injunctive relief requested.
Four months later, Scott filed her notice of appeal, stating that she was pursuing a restricted appeal. Attached to the
notice of appeal was Scott s affidavit in which she claimed that she was never served with Tanner s original petition.
Standard of Review
A restricted appeal is a direct attack on a judgment. Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 721 (Tex.
App. Houston [1st Dist.] 2003, no pet.); Hercules Concrete Pumping Serv., Inc. v. Bencon Mgmt. & Gen. Contracting
Corp.,62 S.W.3d 308, 309 (Tex. App. Houston [1st Dist.] 2001, pet. denied). The elements necessary to succeed on a
restricted appeal are as follows: (1) the notice of restricted appeal must be filed within six months after the judgment is
signed; (2) by a party to the lawsuit; (3) who neither participated in the hearing that resulted in the judgment nor filed a
timely post-judgment motion or request for findings of fact and conclusions of law; and (4) the face of the record must
disclose the claimed error. Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (decided
under predecessor writ-of-error practice); Barker CATV Constr. v. AMPRO, Inc., 989 S.W.2d 789, 791 (Tex. App.
Houston [1st Dist.] 1999, no pet.). It is undisputed that Scott complied with the first three elements.
Discussion
In two sub-points in her first issue, Scott contends that error is apparent on the face of the record because (1) she was
never served with Tanner s original petition and (2) Tanner s amended petition was more onerous than the original
petition.
A. Service of the Original Petition
The return of service filed in this case reflects that Scott was served with Tanner s original petition on September 7,
2001. The return constitutes prima facie evidence that Scott was served with the original petition. Primate Constr., Inc.
v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); West Columbia Nat l Bank v. Griffith, 902 S.W.2d 201, 206 (Tex. App.
Houston [1st Dist.] 1995, writ denied).
The sole support for Scott s contention that she was not served is Scott s affidavit attached to her notice of appeal in
which Scott stated that she was not served with Tanner s original petition. Although review by restricted appeal affords
review of the entire case and thus permits the same scope of review as an ordinary appeal, the face of the record must
reveal the claimed error. See Norman Communications, 955 S.W.2d at 270; Barker CATV Constr., 989 S.W.2d at 794
(opinion on rehearing). The face of the record in a restricted appeal consists of the papers on file with the court when it
rendered judgment. Norman Communications, 955 S.W.2d at 270; Barker CATV Constr., 989 S.W.2d at 794. Because
a restricted appeal directly attacks the judgment rendered by the trial court, we may not consider as part of the record
evidence or documents that were not before the trial court when it rendered judgment. Roventini, 111 S.W.3d at 722;
Barker CATV Constr., 989 S.W.2d at 794. In the present case, Scott s affidavit was not before the trial court when it
rendered judgment; thus, we may not consider it in determining whether error exists on the face of the record. We
conclude that the face of the record does not reveal Scott s claimed error, i.e., that she was not served with Tanner s
original petition. To the contrary, the record indicates that Scott was served.
B. The Amended Petition
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Tanner does not deny that he failed to serve Scott with his amended petition. In her second sub-point, Scott contends
that Tanner s amended petition was more onerous and required service of a new citation because it added a new cause
of action for temporary injunction. //
When a party has been served with citation for the original petition, new citation for amended petitions is necessary for
a party who has not appeared only when the plaintiff, by an amended petition, seeks a more onerous judgment than
prayed for in the original pleading. Weaver v. Hartford Accident and Indem. Co., 570 S.W.2d 367, 370 (Tex. 1978);
Palomin v. Zarsky Lumber Co., 26 S.W.3d 690, 693 (Tex. App. Corpus Christi 2000, pet. denied). We must determine
whether Tanner s amended petition, which requested the additional relief of a temporary injunction, sought a more
onerous judgment than did his original petition. We conclude that it did not.
Tanner already sought permanent injunctive relief in his original petition, which by its permanent nature is more
onerous than temporary injunctive relief. Moreover, the conduct that Tanner sought to enjoin by way of both the
temporary and the permanent injunction was the same; namely, Tanner requested permanent and temporary injunctive
relief to enjoin Scott from communicating to any business associated with the skateboarding industry, or any potential
customer of Tanner, that Tanner robbed her park. In other words, the subject matter of both the temporary and
permanent injunctions sought by Tanner was the same.
In addition, unlike permanent injunctive relief, temporary injunctive relief does not become part of a trial court s
judgment; rather, a temporary injunction is issued before trial to preserve the status quo until trial on the merits.
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); see NMTC Corp. v. Conarroe, 99 S.W.3d 865, 867-68
(Tex. App. Beaumont 2003, no pet.) (explaining differences between permanent and temporary injunctions). Thus, by
seeking the additional remedy of a temporary injunction, Tanner was not seeking a more onerous judgment.
We overrule Scott s first issue. C.No Evidence of Scott s Liability
In her second issue, Scott complains that Tanner presented no probative evidence of Scott s liability. Determination of
whether error exists on the face of the record in a restricted appeal can include a review of legal and factual
sufficiency claims. See Norman Communications, 955 S.W.2d at 270; Herbert v. Greater Gulf Coast Enters., 915
S.W.2d 866, 870 (Tex. App. Houston [1st Dist.] 1995, no writ).
In support of her no-evidence challenge, Scott contends that Tanner s amended petition is deficient because Tanner
does not have personal knowledge of the facts alleged in the pleading relating to the slander claim. Scott characterizes
the allegations in Tanner s amended petition as naked accusations. Despite Scott s contention, in his verification
attached to the amended petition, Tanner stated as follows: I have read all the factual allegations and causes of action
contained in Plaintiff s First Amended Request for Temporary Restraining Order, Permanent Injunction and Original
Petition [sic] and they are within his [sic] personal knowledge and all true and correct.
Scott also attacks Tanner s verification on the basis that Tanner could not have had knowledge of all of the facts
alleged in the amended petition. Scott further complains that Tanner could not have had personal knowledge of the
causes of action asserted in the amended petition as claimed in his verification. Scott points out that only factual
allegations can be within a person s personal knowledge, not causes of action.
Regardless of whether Scott is correct in her contentions on this point, Tanner s amended petition is not deficient. A
plaintiff is not required to set out the evidence in his petition on which he will ultimately rely to prove his claim. See
Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494-95 (Tex. 1988). Even if a petition contains evidentiary
allegations, legal conclusions, minor defects, or technical insufficiencies, judgment will stand if the defendant has fair
notice of the claims asserted. Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex. 1979); Wallace v. Ramon, 82 S.W.3d
501, 503-04 (Tex. App. San Antonio 2002, no pet.). Here, Tanner s petition gave Scott fair notice of the claims he
asserted.
Moreover, a no-answer default judgment operates as an admission of the material facts alleged in the plaintiff s
petition, except for unliquidated damages. Stoner, 578 S.W.2d at 684-85; Herbert, 915 S.W.2d at 872. The petition
must attempt to state a cause of action, give fair notice of the claim, and not affirmatively disclose facts that defeat
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relief. Paramount Pipe & Supply, 749 S.W.2d at 494. Tanner s amended petition // properly alleged an action for
slander. See Randall s Food Mkts. Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995) ( Slander is a defamatory
statement that is orally communicated or published to a third person without legal excuse. ); see also Bennett v.
Computer Assoc. Int l, Inc., 932 S.W.2d 197, 200 (Tex. App. Amarillo 1996, writ denied) ( One who falsely imputes to
another the crime of theft commits slander per se. ).
By defaulting, Scott admitted all of the allegations in Tanner s amended petition, including the allegations that Scott
called persons in the skateboarding industry, with whom Tanner had business relationships, and communicated the
false statement that Tanner had robbed her skateboarding park. We hold that Tanner s allegations admitted by default
suffice to support Scott s liability for slander.
We overrule Scott s second issue to the extent that it pertains to Tanner s slander claim. Because Scott s liability for
slander supports the trial court s award of damages, we need not address Scott s other contentions made in support of
her second issue; that is, Scott s no-evidence challenges to Tanner s libel and tortious-interference-of-contract claims.
See Tex. R. App. P. 47.1.
D. Legal and Factual Sufficiency of the Damages Evidence
In her third issue, Scott contends that the evidence presented by Tanner was legally and factually insufficient to support
the trial court s award of $79,500 in lost-profits damages, $100,00 in mental-anguish damages, and $179,500 in
punitive damages.
1. Lost Profits Damages
When a specific attack is made on the legal or factual sufficiency of the evidence to support the trial court s
determination of damages in a default judgment, the appellant is entitled to a review of the evidence produced.
Transport Concepts, Inc. v. Reeves, 748 S.W.2d 302, 304 (Tex. App. Dallas 1988, no writ) (citing Rogers v. Rogers,
561 S.W.2d 172, 173-74 (Tex. 1978)). In reviewing a legal-insufficiency claim, we consider all the evidence in the
light most favorable to the prevailing party, indulging every reasonable inference in that party s favor. Associated
Indem. Co. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998). In reviewing a factual-sufficiency
challenge, we examine all the evidence and set aside the judgment only if it is so against the great weight and
preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
At the evidentiary hearing on unliquidated damages ( the damages hearing ), Tanner presented evidence of his income
prior to Scott s accusations that he robbed her park. Tanner testified that he was employed as a sales representative
selling skateboarding-related merchandise to five companies at the time of Scott s accusations. Tanner stated that he
was paid a 10 percent commission on each of the five accounts. According to Tanner, after Scott accused him of
robbery, the five companies had nothing to do with me anymore. Tanner testified that it would take three years for him
to reestablish his reputation with these businesses.
Tanner introduced into evidence a document calculating his lost revenues, resulting from Scott s slander. The
document showed the amount of yearly purchases of each of the five accounts. Tanner testified, and the document
setting out his damages calculations reflected, that his lost commissions on the five accounts, at a rate of 10 percent,
over a three-year period, totaled $77,400.
Tanner also testified that, as part of his ordinary business, he gave private skateboarding lessons. Tanner testified that
he charged $35 an hour for the lessons. Tanner stated that it took six months for him to build a new client base
following Scott s accusations. Tanner testified that, as a result of Scott s statements, he lost $2100 in fees associated
with giving private lessons. Thus, Tanner s evidence showed that Scott s slanderous statements caused him to lose a
total of $79,500 in revenues, which is the amount awarded by the trial court to Tanner for lost profits.
On appeal, Scott contends that the evidence offered by Tanner was internally inconsistent. However, the basis for Scott
s contention is not clear from her briefing. Our review of the record discerns no internal inconsistencies in the evidence
presented at the damages hearing on which the trial court based its award of lost-profits damages.
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Scott also complains that the five businesses, which Tanner testified ceased doing business with him following Scott s
accusations, were different companies than those named in Tanner s petitions. Scott also points out other minor factual
discrepancies between Tanner s petitions and his testimony. This is of no consequence to Scott s sufficiency
challenges. Pleadings are generally not competent evidence, even if sworn or verified. Laidlaw Waste Systems (Dallas)
v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). The record indicates that the purpose of the damages hearing was
to allow Tanner to offer evidence to prove up his damages. The evidence offered at that hearing was the evidence on
which the trial court based its damages award. Thus, to determine whether the evidence was legally and factually
sufficient to support the trial court s award of damages, we review the evidence offered at the hearing, not the factual
and evidentiary allegations in Tanner s petitions. //
Lastly, Scott contends that Tanner was not qualified as an expert to testify that it would take him three years to rebuild
his reputation. Despite Scott s contentions, the record shows that Tanner was qualified to give such testimony. Tanner
testified that he had been in skateboarding 17, almost 18 years. Tanner also stated that he obtained his job as a sales
representative for skateboarding-related merchandise based on his contacts in the skateboarding community. Tanner
testified that he had been working as a sales representative for one and one-half years at the time of the damages
hearing. In sum, the evidence showed that Tanner was an experienced skateboarder who earned his living from the
sport. Based on his extensive experience and specialized knowledge of skateboarding, Tanner was qualified to testify
as to the length of time it would take to rebuild his reputation with his customers.
Applying the appropriate standards of review, we hold that the evidence was legally and factually sufficient to support
the trial court s award of lost-profits damages.
2. Evidence of Malice
Scott also complains that Tanner offered insufficient evidence to support the trial court s award of mental anguish or
punitive damages.
a. Mental anguish damages
As alleged in Tanner s amended petition, and as admitted by Scott s failure to answer, Scott made false statements to
persons in the skateboarding industry accusing Tanner of a crime, namely, robbing her park. A false statement that
charges a person with the commission of a crime is slander per se; thus no independent proof of damage to the plaintiff
s reputation or of mental anguish is required, as the defamation itself gives rise to a presumption of these damages. See
Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984); Peshak v. Greer, 13 S.W.3d 421, 427 (Tex.
App. Corpus Christi 2000, no pet.); Knox v. Taylor, 992 S.W.2d 40, 60 (Tex. App. Houston [14th Dist.] 1999, no pet.).
Accordingly, Tanner was not required to offer proof of malice to recover mental-anguish damages from Scott based on
slander.
b. Punitive damages
To recover exemplary damages for slander, Tanner was required to produce evidence that Scott acted with malice. See
Leyendecker, 683 S.W.2d at 374. For purposes of exemplary damages, malice was defined at the time the trial court
signed the judgment in this case to mean (1) a specific intent by the defendant to cause substantial injury to the
claimant; or (2) an act or omission (a) that, when viewed objectively from the standpoint of the actor at the time of its
occurrence, involves an extreme degree of risk, considering the probability and magnitude of the potential harm to
others, of which the actor has actual, subjective awareness, and (b) with which the actor nevertheless proceeds with
conscious indifference to the rights, safety, or welfare of others. Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, 2.12,
sec. 41.001, 1987 Tex. Gen. Laws 37, 44, amended by, Act of April 6, 1995, 74th Leg., R.S., ch. 19, 1, 1995 Tex. Gen.
Laws 108, 109 (amended 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. 41.001(7) (Vernon Supp.
2004)). The evidence necessary to prove malice must be clear and convincing. See Tex. Civ. Prac. & Rem. Code Ann.
41.003(a)(2) (Vernon Supp. 2004). Clear and convincing evidence is that measure or degree of proof that 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. Id.
41.001(2) (Vernon Supp. 2004); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994).
Evidence of malice is legally sufficient if, considered as a whole in the light most favorable to the prevailing party, it
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rises to a level that would enable reasonable and fair-minded persons to differ in their conclusions. KPH
Consolidation, Inc. v. Romero, 102 S.W.3d 135, 145 (Tex. App. Houston [14th Dist.] 2003, pet. filed); see also Lee
Lewis Constr., 70 S.W.3d at 785; Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 596 (Tex. 1999). Evidence of
ordinary negligence alone is not enough to establish malice. See Tex. Civ. Prac. & Rem. Code Ann. 41.003(b) (Vernon
Supp. 2004); N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 128 (Tex. App. Beaumont 2001, pet. denied).
In conducting a factual-sufficiency review under the clear and convincing standard required to sustain a finding of
malice, we must determine whether the evidence in the record is such that a factfinder could reasonably form a firm
belief or conviction about the truth of the allegations sought to be established. See Tex. Civ. Prac. & Rem. Code Ann.
41.003(a)(2); KPH Consolidation, 102 S.W.3d at 145. Tanner testified that he called Scott and told her that he did not
break into her park. He explained to Scott that he was out of town at the time of the robbery. Tanner testified that Scott
accused him of lying. After the conversation, Scott continued to tell others in the skateboarding industry, and Tanner s
potential clients, that Tanner was a thief and had robbed her park. Tanner testified that Scott continued to accuse him
of robbery even though no charges were ever brought against him.
In support of her contention that Tanner made no showing of malice with respect to his slander claim, Scott asserts that
Tanner failed to present sufficient evidence to support Scott s liability for slander. Although not readily decipherable
from her briefing, Scott apparently reasons that if the evidence was insufficient to establish liability for slander, then it
was also insufficient to show that Scott maliciously made the slanderous communications. However, as discussed
above, Tanner s allegations in his amended petition, which were admitted by default, were sufficient to support the
trial court s liability finding against Scott for slander. Applying the appropriate standards of review, we hold that the
evidence was legally and factually sufficient for the trial court to have reasonably formed a firm belief that Scott acted
with malice when she told others in the skateboarding community that Tanner had robbed her park.
We overrule Scott s third issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Hedges, Nuchia, and Higley.
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