John Adi v. Dan Brown & Prudential Ins. Co. of America

Opinion issued July 1, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-03-00063-CV

JOHN ADI, Appellant

V.

PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY , A

SUBSIDIARY OF THE PRUDENTIAL INSURANCE COMPANY OF

AMERICA, AND DAN BROWN, Appellees

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 2002-30420

MEMORANDUM OPINION

On June 14, 2002, appellant, John Adi, sued appellees, Prudential Property and

Casualty Insurance Company, a subsidiary of the Prudential Insurance Company of

America (Prudential), and Dan Brown, for defamation of character arising out of

statements made by Brown. Brown made the statements, within the scope of his

employment as a Prudential agent, to two other Prudential employees. The trial court

granted summary judgment in favor of appellees, dismissing Adi’s defamation claim.

We determine whether the trial court erred by (1) denying Adi’s motions for leave of

court (a) to file late pleadings and (b) to file his first amended petition; (2) denying

Adi’s objections to and motion to strike appellees’ summary judgment evidence; (3)

granting appellees’ motion for summary judgment on the basis of res judicata,

substantial truth, or lack of injury; and (4) denying Adi’s motion for new trial. We

affirm. Background

While Adi was the president and administrator of Bethsaida Medical Services,

Inc. (Bethsaida), he and another individual were the subjects of an investigation by

the Texas Department of Insurance (TDI). At TDI’s request, Prudential issued a

pretext insurance policy as part of a sting operation to uncover insurance fraud. In

connection with the sting operation, Kelley Liesman, a TDI employee, telephoned

Brown and made the allegedly defamatory statements.

Brown allegedly repeated the

statements to two other Prudential employees. As a result of the sting operation, Adi

was arrested, convicted, and sentenced to 70 years in prison, which sentence he is

currently serving.

Appellees moved for summary judgment on Adi’s defamation claim on July 19,

2002, on the basis of res judicata, substantial truth, and lack of injury. The trial court

granted appellees’ summary judgment motion on September 19, 2002. It is from that

order that Adi now appeals. Motions for Leave to File Documents

A. Request for Leave to File a Late Response and Objections

In his first point of error, Adi contends that the trial court erred by denying his

motion for leave to file his late response and objections to appellees’ motion for

summary judgment.

Although Adi argues that the trial court erred in denying his motion for leave

to file a response and objections late, he asserted in his motion that it was being filed

merely “should there be any delay in getting these documents on time to the court

even though they were file[d] . . . more than seve[n] days before the hearing.” On

appeal, Adi claims that his response and objections were in fact timely, implying, as

his motion for leave expressly stated, that his motion for leave had been filed merely

out of an abundance of caution.

It is uncontroverted that Adi’s response and objections reflect a postmark of

August 12, 2002 and that the district clerk filed them on August 15, 2002. The

summary judgment hearing was set for August 19, 2002. A nonmovant must file his

response to a motion for summary judgment not later than seven days prior to the day

of hearing. Tex. R. Civ. P. 166a(c). Because Adi mailed his response and objections

before the last day that he was required to do so and because they were received by

the clerk’s office not later than 10 days after the due date, he timely filed his response

and objections. See Tex. R. Civ. P. 5, 166a(c); see also E.B. Smith Co. v. United

States Fid. & Guar. Co., 850 S.W.2d 621, 622-23 (Tex. App.—Corpus Christi 1993,

writ denied) (applying Texas Rule of Civil Procedure 5 to summary judgment

response).

Because Adi did not file his response late, his motion for leave to file a late

response was unnecessary, and the trial court’s denial of Adi’s motion did not nullify

his response. Furthermore, nothing in the record indicates that the trial court did not

consider Adi’s response prior to granting appellees’ summary judgment motion.

Accordingly, we hold that the trial court did not err by denying Adi’s motion for leave

to file a late response and objections.

We overrule Adi’s first point of error.

B. Request for Leave to File First Amended Original Petition

In his seventh point of error, Adi asserts that the trial court erred in denying his

motion for leave to file his first amended original petition.

Texas Rule of Civil Procedure 63 allows a party to amend his pleadings.

Tex.

R. Civ. P. 63; see Goswami v. Metro. Sav. & Loan Ass’n , 751 S.W.2d 487, 490 (Tex.

1988) (asserting that rule 63 applies to summary judgments). Adi filed his motion for

leave to file an amended petition on August 1, 2002. The record shows that his

amended petition was also filed with the trial court on the same date.

The summary

judgment hearing was set for August 19, 2002. Because there was no court order

asserting that amendments had to be filed before August 1, and because the hearing

was more than seven days away, it was not necessary for Adi to request leave to file

his amended pleading. See Tex. R. Civ. P. 63. However, there is also no indication

in the record that the trial court denied Adi’s motion for leave to file an amended

petition.

The amended pleading is part of the record, and there is no basis on which

to conclude that the trial court did not consider Adi’s amended pleading. Under these

circumstances, leave of court to file the pleading, although unnecessary in this case,

is presumed. See Goswami , 751 S.W.2d at 490 .

We overrule Adi’s seventh point of error.

Summary Judgment Evidence

In Adi’s second and third points of error, he argues that the evidence

supporting appellees’ summary judgment motion is incompetent and, thus, that the

trial court erred by denying his motion to strike such evidence and by granting

summary judgment.

The admission and exclusion of evidence is committed to the trial court’s

sound discretion. City of Brownsville v. Alvarado , 897 S.W.2d 750, 753 (Tex. 1995).

A trial court abuses its discretion when it acts without regard for any guiding rules or

principles. Downer v. Aquamarine Operators, Inc ., 701 S.W.2d 238, 241-42 (Tex.

1985). To obtain reversal of a judgment based on error in the admission or exclusion

of evidence, an appellant must show that the trial court’s ruling was in error and that

the error was calculated to cause, and probably did cause, the rendition of an

improper judgment. Tex. R. App. P. 44.1(a)(1); Alvarado , 897 S.W.2d at 753 .

Adi asserts that appellees’ exhibits F and G attached to their motion for

summary judgment were not competent proof because they were irrelevant, hearsay,

and improperly certified. Exhibit F was a copy of a capias and indictment relating to

Adi’s arrest for engaging in organized criminal activity and identifying his prior

conviction for the felony offenses of “False Statement in Acquisition of Firearms,

Dealing in Firearms without a license, and False Statement to a Grand Jury.” Exhibit

G was a copy of the judgment finding Adi guilty of engaging in organized criminal

activity and sentencing him to 70 years in prison.

Adi argues first that exhibits F and G were not competent summary judgment

proof because they were improperly certified. It is uncontroverted that both of these

exhibits bore the stamp of the Harris County District Clerk’s office, including the

official seal of the clerk’s office and the signature of a deputy clerk. However, both

documents also included a date stamp indicating the date of certification as June 4,

1996. Because these exhibits were all created more than a year after the date stamped

on the certification, Adi argues that the certification was void. We disagree.

The exhibits in question were public records. See Stephens v. Dolcefino , 126

S.W.3d 120, 137-38 (Tex. App.—Houston [1st Dist.] 2003, pet. filed) (recognizing

that indictment relied on in another case constituted public record). As such, they

were generally admissible as an exception to the hearsay rule. See Tex. R. Evid.

803(8). Under Texas Rule of Evidence 902, domestic public documents, such as

exhibits F and G, are self-authenticating.

See Tex. R. Evid. 902(1). The

certification of the copies of these exhibits was sealed and contained the signature of

a deputy clerk from the Harris County District Clerk’s office, as required by the Texas

Rules of Evidence. See Tex. R. Evid. 902(1), (4). The rules do not specify that the

certification contain an accurate date, and there is nothing in the record to indicate

that the incorrect date stamp was the result of a fraudulent act. Consequently, it was

not an abuse of discretion for the trial court to admit exhibits F and G under the

public documents exception to the hearsay rule.

Adi next asserts that exhibits F and G were not competent summary judgment

evidence because they were too remote in time to have had any relevance to the

allegedly defamatory statements. However, these documents were relevant to

appellees’ defense of substantial truth of the allegedly defamatory statements. The

fact that they were created months after the allegedly defamatory statements were

made does not render them irrelevant, as they addressed the substantial truth of those

statements. Consequently, the trial court did not abuse its discretion in admitting

exhibits F and G as evidence.

Because we conclude that exhibits F and G are the only documents that were

necessary to support appellees’ motion for summary judgment based on the

affirmative defense of substantial truth, we need not address the trial court’s rulings

on the admissibility of the other exhibits of which Adi complains. See Alvarado , 897

S.W.2d at 753 (asserting that successful challenge to evidentiary rulings usually

requires complaining party to show that judgment turns on particular evidence

excluded or admitted).

Accordingly, we overrule Adi’s second and third points of error.

Substantive Claims

In Adi’s fourth, fifth, sixth, and ninth points of error, he claims that the trial

court erred in granting summary judgment based on the defenses of substantial truth,

res judicata, and lack of injury.

Appellees moved for traditional summary judgment under Texas Rule of Civil

Procedure 166a(c). See Tex. R. Civ. P. 166a(c). A defendant is entitled to summary

judgment under this rule if the evidence disproves as a matter of law at least one

element of each of the plaintiff’s causes of action or if the defendant conclusively

establishes all elements of an affirmative defense. Cathey v. Booth , 900 S.W.2d 339,

341 (Tex. 1995) .

In reviewing the granting of a motion for summary judgment, we consider as

true all the evidence that favors the nonmovant. Watts v. Hermann Hosp. , 962

S.W.2d 102, 104 (Tex. App.—Houston [1st Dist.] 1997, no pet.). We indulge every

reasonable inference in favor of the nonmovant and resolve all reasonable doubts in

its favor. Cont’l Casing Corp. v. Samedan Oil Corp. , 751 S.W.2d 499, 501 (Tex.

1988); Watts , 962 S.W.2d at 104 . When, as here, an order granting summary

judgment does not specify the grounds upon which the trial court ruled, we must

affirm to the extent that any of the summary judgment grounds is meritorious. See

Star-Telegram, Inc. v. Doe , 915 S.W.2d 471, 473 (Tex. 1995).

To maintain a defamation cause of action, the plaintiff must prove that the

defendant (1) published a false statement about the plaintiff, (2) that statement was

defamatory, and (3) that the defendant made the statement while acting with either

actual malice, if the plaintiff was a public official or public figure, or negligence, if

the plaintiff was a private individual, regarding the truth of the statement. See Assoc.

Press v. Cook , 17 S.W.3d 447, 452 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

A showing of substantial truth, however, will defeat a defamation claim. See

McIlvain v. Jacobs , 794 S.W.2d 14, 15-16 (Tex. 1990). Because substantial truth is

an affirmative defense, a defendant must conclusively establish each element to be

entitled to summary judgment. See Cathey , 900 S.W.2d at 341 . To determine

substantial truth, we consider whether the defamatory statement is more damaging to

the plaintiff in the mind of the average listener than a true statement would have been.

McIlvain , 794 S.W.2d at 16 ; Barbouti v. Hearst Corp ., 927 S.W.2d 37, 65 (Tex.

App.—Houston [1st Dist.] 1996, writ denied). This evaluation involves looking at

the “gist” of the statements. Cook , 17 S.W.3d at 452 . If the underlying facts as to the

gist of the libelous charge are undisputed, then we disregard any variance with respect

to items of secondary importance and determine substantial truth as a matter of law.

McIlvain , 794 S.W.2d at 16 ; Cook , 17 S.W.3d at 452 .

Adi contends that there are material issues of fact concerning whether (1) he

was arrested on January 29, 1998, (2) he was charged with insurance fraud, and (3)

Brown’s statements were substantially true. After talking to TDI employee Liesman,

Brown told two Prudential employees that Adi had been arrested by the fraud unit on

January 29, 1998 and that Adi was being charged with insurance fraud, a third-degree

felony. Appellees’ summary judgment evidence showed that Adi was arrested in

March of 1998 and subsequently charged with, and convicted of, engaging in

organized criminal activity, a second-degree felony.

Adi asserts that the statements made by Brown were false, and would be more

damaging to Adi’s reputation in the mind of the average recipient than a truthful

statement of “no such arrest, and no such charged filed on [Adi] on January 29,

1998.” Although Brown’s statements were not absolutely accurate, the summary

judgment evidence showed that, several weeks after Brown’s statements, Adi was

arrested in connection with activities stemming from the insurance-fraud sting

operation. Even though Adi was not charged with insurance fraud, as Brown stated,

the summary judgment evidence showed that Adi was charged with and convicted of

a more serious felony. As Adi acknowledges in his brief, the allegedly defamatory

statement need not be literally true; rather substantial truth is sufficient. See ABC,

Inc. v. Shanks , 1 S.W.3d 230, 235 (Tex. App.—Corpus Christi 1999, pet. denied).

The gist of Brown’s statements was that Adi was charged with a felony in connection

with the insurance-fraud sting operation. If anything, the statements would seem less

damaging to an average listener than the actual truth, considering that Brown claimed

that Adi was charged with a less serious offense. Moreover, the fact that Adi was

actually arrested in March and not in January is of secondary importance to the gist

of the statements and thus can be disregarded. See Cook , 17 S.W.3d at 452 . As a

result, appellees proved the substantial truth of Brown’s statements as a matter of law.

Because we have determined that appellees were entitled to summary judgment

on the basis of substantial truth, we need not address the merits of appellees’ other

bases for summary judgment. Accordingly, the trial court did not err in granting

appellees’ motion for summary judgment. We overrule Adi’s fourth, fifth, sixth, and

ninth points of error.

Motion for New Trial

In his eighth point of error, Adi contends that the trial court erred by denying

his motion for new trial. A trial court has broad discretion to deny or to grant a

motion for new trial, and the trial court’s discretion will not be disturbed on appeal

absent a showing of a manifest abuse of that discretion. Batra v. Clark , 110 S.W.3d

126, 128 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

Adi’s contentions in his motion for new trial merely reiterate the arguments that

Adi has presented in his appellate brief, namely, that the trial court erred by denying

various motions, by admitting appellees’ exhibits, and by granting summary

judgment. We have affirmed the trial court’s summary judgment. Accordingly, the

trial court did not abuse its discretion by denying Adi’s motion for new trial.

We overrule Adi’s eighth point of error.

Conclusion

We affirm the judgment of the trial court . All pending motions are denied as

moot.

Tim Taft

Justice

Panel consists of Justices Taft , Hanks, and Bland.