Ann C. Morrill v. Lawrence J. Cisek, Jr.

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion issued December 21, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00268-CV

ANN C. MORRILL, Appellant

V.

LAWRENCE J.

CISEK, JR., Appellee

On Appeal from the 400th District Court

Fort Bend County ,

Texas

Trial Court Cause No. 02-CV-127474

O P I N I O N

Ann C. Morrill appeals a judgment

and permanent injunction entered in favor of her ex-husband, Lawrence J. Cisek,

Jr. Morrill contends (1) the trial court erred in entering a judgment in favor

of Cisek because Cisek did not prove the elements of his causes of action

beyond a preponderance of the evidence, (2) the trial court erred in awarding

Cisek damages and entering a permanent injunction without allowing discovery or

a trial, depriving Morrill of due process rights, (3) the trial court’s permanent

injunction is overbroad, and (4) the trial court erred in denying Morrill’s

motion to dismiss for forum non conveniens. We conclude that (1) Morrill waived her first three issues because of

inadequate briefing, (2) the trial court did not err in awarding Cisek $25,000

in damages for his libel per se claim, and (3) Morrill waived her complaint

regarding the motion to dismiss for forum non conveniens because she never

secured a ruling on the motion. We therefore affirm.

Background

Cisek sued Morrill for defamation and

intentional infliction of emotional distress, alleging that Morrill had written

several false and defamatory letters to Cisek’s employer, Baylor College of

Medicine (“Baylor”), and to certain public officials concerning the parties’

ongoing dispute over Cisek’s child support obligations. In his petitions, Cisek sought recovery of monetary

damages, as well as a permanent injunction prohibiting Morrill from contacting

any employee or agent of Baylor, other than Cisek himself.

Morrill answered the lawsuit and filed a motion

challenging the exercise of personal jurisdiction over her or, alternatively, seeking to transfer the

suit to Maryland or to dismiss the suit on forum non conveniens grounds. [1] During a hearing on the motion, the trial

court denied Morrill’s special appearance, but did not sign a written order. Morrill then filed an interlocutory

appeal from this ruling. Morrill v. Cisek , No. 13-03-00400-CV, 2003

WL 22208631 , at *1 (Tex. App.—Corpus Christi Sept. 25, 2003, no pet.). While

Morrill’s interlocutory appeal was pending, the trial court ordered Morrill to

answer Cisek’s discovery requests. Morrill failed to comply with the discovery

order and the trial court struck her answer to the lawsuit in July 2003. The

Corpus Christi Court of Appeals dismissed Morrill’s interlocutory appeal for

lack of jurisdiction on September 25, 2003. Id.

In September 2003, Cisek moved for entry of

judgment. The trial court held a hearing on the motion on November 24, 2003. On

December 3, 2003, the trial court signed a written order denying Morrill’s

special appearance. In response, Morrill filed another interlocutory appeal

challenging the trial court’s denial of her special appearance. Morrill v. Cisek ,

Nos. 01-03-01336-CV, 01-04-00266-CV, 2005 WL 2123714 , at *1 (Tex. App.—Houston [1st Dist.] Aug. 31, 2005, pet. denied). On February 2, 2004, while the

interlocutory appeal was pending, the trial court entered a judgment in favor

of Cisek, ordered that Morrill be “permanently enjoined from contacting any

officer, agent or employee of [Baylor]” or of any other employer of Cisek, and

awarded Cisek $1,189.96 for costs of court. Morrill then filed a third appeal,

challenging the trial court’s rendition of judgment in favor of Cisek. Id. at *4–*5. This court considered the second and third appeals together. Id. at *1. We affirmed the trial court’s denial of Morrill’s special appearance but

reversed the trial court’s judgment in favor of Cisek because the trial court

rendered judgment while the second interlocutory appeal was pending. Id. at *2–*5. We remanded to the trial court for further proceedings. Id. at *5. The Texas Supreme Court denied review.

In September 2005, Cisek again moved the trial

court for entry of judgment. The trial court held an evidentiary hearing on

damages, attended by Cisek and his counsel. Morrill appeared by telephone. The

trial court entered judgment in favor of Cisek, noting that it struck Morrill’s

answer for “repeated discovery violations and violations of court orders,”

pursuant to Rules 215.2 and 239 of the Texas Rules of Civil Procedure. The

trial court awarded Cisek $25,000 in damages for his libel per se claim. The

trial court also entered a permanent injunction preventing Morrill from

contacting Baylor, Texas Children’s Hospital, any other entity within the Texas Medical Center, and any other employer of Cisek concerning any personal or financial

matters directly or indirectly relating to Cisek.

Morrill’s First Three

Issues

In her first three

issues, Morrill contends (1)

the trial court erred in entering a judgment in favor of Cisek because Cisek

did not prove the elements of his causes of action beyond a preponderance of

the evidence, (2) the trial court erred in awarding Cisek damages and entering

a permanent injunction without allowing discovery or a trial, depriving Morrill

of her due process rights, and (3) the trial court’s permanent injunction is

overbroad . Cisek responds that Morrill waived these

issues because her briefing is inadequate. We consider these issues together.

Texas Rule of

Appellate Procedure 38.1(h) requires that an appellant’s brief “must contain a

clear and concise argument for the contentions made, with appropriate citations

to authorities and to the record.” Tex.

R. App. P . 38.1(h). “Rule 38 requires [a party] to provide us

with such discussion of the facts and the authorities relied upon as may be

requisite to maintain the point at issue.” Tesoro Petroleum Corp. v. Nabors

Drilling USA, Inc. , 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.]

2002, pet. denied). “This is not done by merely uttering brief conclusory

statements, unsupported by legal citations.” Id. “ Issues

on appeal are waived if an appellant fails to support his contention by

citations to appropriate authority or cites only to a single non-controlling

case.” Abdelnour v. Mid Nat’l

Holdings, Inc. , 190

S.W.3d 237, 241 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Daniel v. Falcon

Interest Realty Corp. , 190 S.W.3d 177, 189 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

Morrill’s argument with

respect to her first three issues does not contain a single citation to a legal

authority or the record. We therefore hold that Morrill has waived her first

three issues because of inadequate briefing. Tex.

R. App. P . 38.1(h); Wheeler v. Methodist Hosp. ,

95 S.W.3d 628, 646 (Tex. App.—Houston [1st Dist.] 2002, no pet.) .

Damages

In the section of

Morrill’s brief entitled “Statement of the Case,” she contends, “[t]he lower

court nonetheless awarded Lawrence J. Cisek, Jr. pain and suffering damages of

$25,000 despite admitting that there was no testimony from Lawrence J. Cisek,

Jr. that he had suffered.” [2] Morrill also requests

reversal of the damage award in her conclusion and in the prayer for relief. We

address this issue and construe Morrill’s statements as a challenge to the

legal sufficiency of the evidence to support the trial court’s damage award. See

City of Arlington v. State Farm Lloyds , 145 S.W.3d 165, 167 (Tex. 2004) (holding

record references in statement of facts of appellate brief were sufficient to

raise no evidence point when coupled with argument); Scottsdale Ins. Co. v.

Nat’l Emergency Servs., Inc. , 175 S.W.3d 284, 300 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (construing issue that asserted there was insufficient

evidence to support jury’s damage findings as legal sufficiency challenge).

The test for legal

sufficiency is “whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review.” City

of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005). In making this

determination, we credit favorable evidence if a reasonable fact-finder could,

and disregard contrary evidence unless a reasonable fact-finder could not. Id. So long as the evidence falls within the zone of reasonable disagreement, we

may not substitute our judgment for that of the fact-finder. Id. at 822 . The trier of fact is the sole judge of the credibility of the witnesses and

the weight to give their testimony. Id. at 819 . Although we consider

the evidence in the light most favorable to the challenged findings, indulging

every reasonable inference that supports them, we may not disregard evidence

that allows only one inference. Id. at 822 .

A libel is a defamation expressed in

written or other graphic form that tends to blacken the memory of the dead or

that tends to injure a living person’s reputation and thereby expose the person

to public hatred, contempt or ridicule, or financial injury or to impeach any

person’s honesty, integrity, virtue, or reputation or to publish the natural

defects of anyone and thereby expose the person to public hatred, ridicule, or

financial injury.

Tex.

Civ. Prac. & Rem. Code Ann . § 73.001 (Vernon 2005). Libel per se means the

written or printed words are so obviously hurtful to the person aggrieved that

they require no proof of their injurious character to make them actionable. Knox

v. Taylor , 992 S.W.2d 40, 50 (Tex. App.— Houston [14th Dist.]

1999, no pet.). Defamation is actionable per se if it injures a person in his

office, business, profession, or occupation . Id. A false statement

that charges a person with the commission of a crime is also libelous per se. Leyendecker

& Assocs., Inc. v. Wechter , 683 S.W.2d 369, 374 (Tex. 1984).

The evidence

in this case supports a finding of libel per se. Morrill sent letters to government

officials and Baylor alleging that Cisek had forged documents, committed fraud

against Baylor, never willingly paid child support, and misappropriated $35,000

from his child’s Uniform Gifts to Minors Act account. These letters were

libelous per se because they accused Cisek of crimes, and injured Cisek in his

profession. Id. ; Knox , 992 S.W.2d at 50 ; Bradbury v.

Scott , 788 S.W.2d 31 , 38–39 (Tex. App.—Houston [1st Dist.] 1989, writ denied)

(holding that to charge employee with dishonesty in his dealings with his

employer is defamatory per se because it falls within general classification of

words that affect person injuriously in his profession or occupation).

Compensatory damages in

defamation cases are divided into two categories: general [3]

and special. [4] Peshak v. Greer ,

13 S.W.3d 421, 427 (Tex. App.—Corpus Christi 2000, no pet.). General damages

include mental anguish and injury to a person’s reputation that naturally flow

from the libel. Id. “Once injury to

reputation is established, a person defamed may recover general damages without proof of other

injury.” Leyendecker , 683 S.W.2d at 374 ; Knox , 992 S.W.2d at 60 (“In the recovery on a claim of defamation

per se , the law presumes actual damages and no independent proof of

damages to reputation or of mental anguish is required.”); Marathon Oil Co.

v. Salazar , 682 S.W.2d 624, 630 (Tex. App.—Houston [1st Dist.] 1984, writ

ref’d n.r.e.) (holding that words that are libelous per se are so obviously

hurtful to person aggrieved by them that they require no proof of their

injurious character to make them actionable); Bellefonte Underwriters Ins.

Co. v. Brown , 663 S.W.2d 562, 583 (Tex. App.—Houston [14th Dist.] 1983)

(“The law presumes actual damages if libel per se is proven.”), rev’d in

part on other grounds , 704 S.W.2d 742, 745 (Tex. 1986). The amount of damages

in a defamation case is peculiarly within the province of the fact-finder, and

an appellate court will not disturb the verdict or award unless it appears from

the record to be excessive or the result of passion, prejudice, or other

improper influences. Bolling v. Baker , 671 S.W.2d 559, 571 (Tex.

App.—San Antonio 1984, writ dism’d w.o.j.).

As the trial

court observed, Cisek did not specifically prove any special damages. To support the trial court’s award

of general damages, Cisek testified at the hearing that Cyndi Baily, general counsel

for Baylor, informed him that government officials and officers of Baylor were calling

her office about Morrill’s letters. Baily also informed Cisek that the letters

were threatening his career at Baylor, and that Morrill’s conduct was

inconsistent with a continued employee/employer relationship between Cisek and

Baylor. Cisek testified that he has not been promoted since he began working

at Baylor, and that several initiatives he introduced had not moved forward. Cisek’s

salary has not increased since he began working at Baylor. Cisek testified

that if Baylor had fired him because of Morrill’s allegations of fraud, it

would have been almost impossible for him to secure future employment as a

physician or professor. Viewing the evidence in the light most favorable to

the trial court’s finding, w e conclude that the evidence

presented by Cisek at the judgment hearing would enable reasonable and

fair-minded people to find that Cisek had sustained general damage to his

reputation as a result of Morrill’s letters. See City of Keller , 168 S.W.3d at 827 . The evidence is therefore legally sufficient to support the

trial court’s award of damages for Cisek’s claim of libel per se.

We further hold that legally sufficient evidence

supports the trial court’s finding of $25,000 as a reasonable amount of damages.

See Peshak , 13 S.W.3d at 427 ; Bellefonte , 663 S.W.2d at 583 (holding that award of

$50,000 was reasonable); Bayoud v. Sigler , 555 S.W.2d 913, 916 (Tex.

Civ. App.—Waco 1977, writ dism’d) (holding that award of $25,000 was

reasonable).

Forum Non Conveniens

In her fourth

issue, Morrill contends the trial court erred in denying her motion to dismiss

for forum non conveniens. Cisek responds that Morrill waived this issue by

never obtaining a ruling on the motion.

As a prerequisite to presenting a

complaint for appellate review, the record must show that the complaining party

made the complaint to the trial court by a timely request, objection, or

motion. Tex. R. App. P .

33.1(a). The complaining party must also state the grounds for the request,

objection, or motion, unless the grounds are apparent from the context. Id. Furthermore, the trial court must either rule on the request, objection, or motion,

expressly or implicitly, or refuse to rule, and the complaining party must

object to the refusal. Id.

The record in this case contains no evidence

that Morrill received a ruling on her motion to dismiss for forum non

conveniens. Morrill has therefore not preserved this issue for our review. Id.

Conclusion

We hold that (1) Morrill waived her

first three issues because of inadequate briefing, (2) the trial court did not

err in awarding Cisek $25,000 in damages for his libel per se claim, and (3)

Morrill waived her complaint regarding the motion to dismiss for forum non

conveniens because the trial court never ruled on the motion. Accordingly, we

affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Chief Justice

Radack and Justices Bland and Jamison. [5]

[1] Morrill, who appeared pro se, resides in Maryland and is a board-certified endocrinologist and a law school graduate.

[2] At the judgment hearing, the trial court stated,

The testimony I heard indicates that Dr. Cisek, as far

as I can tell, has not suffered any economic direct—direct loss as a result of

the Defendant’s actions. You’ve given me some case law that indicates that if

the libel is libelous per se, that the law presumes damages. What is it that—I

haven’t heard any evidence of mental anguish in the case. What is it that you

expect the Court to award damages in terms of mental anguish?

[3] “[G]eneral damages” are “[d]amages that the law

presumes follow from the type of wrong complained of.” Black’s Law Dictionary 394–95 (7th ed. 1999).

[4] “[S]pecial damages” are “[d]amages that are alleged

to have been sustained in the circumstances of a particular wrong. To be

awardable, special damages must be specifically claimed and proved.” Black’s Law Dictionary 396 (7th ed.

1999).

[5] The Honorable Martha Hill Jamison, judge of the 164th

District Court of Harris County, participating by assignment. See Tex. Gov’t Code Ann. § 74.003(h)

(Vernon 2005).