Opinion

Robert Cepeda, Melanie McCormick, and Tom Jones, Individually and in Their Official Capacities v. Badeaux, Don R.

Court
Texas Court of Appeals, 13th District
Filed
Mar 31, 2000
Status
Published
Cited by
0 cases
Authority
More cited than 37.6%

The opinion

NUMBER 13-99-748-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ROBERT CEPEDA, MELANIE

McCORMICK, and TOM JONES, Appellants,

v.

DON BADEAUX, Appellee.

___________________________________________________________________

On appeal from the 197th District Court

of Cameron County, Texas.

___________________________________________________________________

O P I N I O N

Before Justices Dorsey, Chavez, and Rodriguez

Opinion by Justice Chavez

Robert Cepeda, Melanie McCormick, and Tom Jones appeal from the trial court's denial of

the portion of their motion for summary judgment asserting the qausi-judicial proceeding

privilege as a defense to the libel and slander causes of action asserted against them by

appellee Don Badeaux. We hold that the privilege does apply, and render judgment that

Badeaux take nothing against these individual appellants on his causes of action for libel

and slander.

Badeaux was employed as City Manager for the City of Los Fresnos. At the time of the

events underlying this case, Robert Cepeda was the mayor of Los Fresnos and Melanie

McCormick and Tom Jones were City Council members. On March 2, 1999 the City Council held

a special meeting to discuss Badeaux's job performance and the possibility of terminating

his employment. Prior to the meeting Cepeda had prepared a memorandum outlining some of

the problems with Badeaux's work. Badeaux contends that this memorandum was libelous, and

that statements made at the meeting were slanderous. Badeaux's employment was terminated

at the March 2 meeting.

Badeaux sued Cepeda, McCormick, and Jones, individually and in their official

capacities, and the City of Los Fresnos. He asserted causes of action for wrongful

termination, libel, and slander. Cepeda, McCormick, and Jones (1)

moved for summary judgment, asserting, among other arguments, that their statements at the

March 2 meeting were entitled to absolute immunity as statements made at a quasi-judicial

proceeding. The motion was denied, and appellants have appealed the denial of their claim

to absolute immunity. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(5) (Vernon

Supp. 2000) (authorizing interlocutory appeal of denial of summary judgment based on

immunity of officer or employee of political subdivision of the state).

To prevail on a summary judgment motion, a movant must establish that no genuine issue

about any material fact exists and that the movant is entitled to judgment as a matter of

law. Tex. R. Civ. P. 166a(c); Cathey v. Booth , 900 S.W.2d 339, 341 (Tex. 1995)

(per curiam). A defendant who conclusively establishes all of the elements of an

affirmative defense is entitled to summary judgment. Wornick Co. v. Casas , 856

S.W.2d 732, 733 (Tex. 1993). In reviewing a summary judgment, we must accept as true

evidence in favor of the nonmovant, indulging every reasonable inference and resolving all

doubts in the nonmovant's favor. Nixon v. Mr. Property Mgmt. Co. , 690 S.W.2d 546,

548-49 (Tex. 1985).

All communications, oral or written, made in the due course of a judicial proceeding

are absolutely privileged. James v. Brown , 637 S.W.2d 914, 916 (Tex. 1982).

Judicial immunity extends to statements made in quasi-judicial proceedings before

governmental executive officers, boards, and commissions which exercise quasi-judicial

powers. Reagan v. Guardian Life Ins. Co. , 166 S.W.2d 909, 912 (1942). This

absolute privilege applies even to statements made negligently or with malice. James ,

637 S.W.2d at 916 . The privilege also applies to statements that are false or irrelevant

to the proceeding. Zarate v. Cortinas , 553 S.W.2d 652, 655 (Tex. Civ.

App.--Corpus Christi 1977, no writ). This Court has identified at least six powers that

indicate a governmental body is acting in a quasi-judicial capacity: 1) the power to

exercise judgment and discretion; 2) the power to hear and determine or to ascertain facts

and make decisions; 3) the power to make binding orders and judgments; 4) the power to

affect the personal or property rights of private persons; 5) the power to examine

witnesses, to compel the attendance of witnesses, and to hear the litigation of issues on

a hearing; and 6) the power to enforce decisions or impose penalties. Town of South

Padre Island v. Jacobs , 736 S.W.2d 134, 144 (Tex. App.--Corpus Christi 1986, writ

denied). Not all these powers need be vested in the governmental body to qualify for the

quasi-judicial proceeding privilege. Id .

Badeaux concedes "there is no doubt that a board of aldermen or a city commission

[has] quasi-judicial powers." Indeed, we have previously held that a municipal board

of alderman, a body analogous to the City Council at issue in this case, was exercising a

quasi-judicial function when it discussed allegations of wrongdoing by an employee and the

possibility of terminating that employee. Id . Badeaux argues that the March 2

meeting at issue in this case was an "administrative proceeding" rather than a

quasi-judicial proceeding. However, Badeaux cites no authority for this distinction, and

we are aware of no Texas case that makes this distinction.

In any event, it is apparent that the city council in this case, like the board of

aldermen in Jacobs , was exercising a quasi-judicial function. The council was

called on to ascertain facts, make a binding decision regarding whether Badeaux would

continue to be employed, and enforce its decision. This decision obviously affected

Badeaux's personal or property rights. As in Jacobs , the only power among the six

commonly used as a test that the council may have lacked is the power to compel the

attendance of witnesses. The absence of this one power from the list is not sufficient to

destroy the quasi-judicial character of the council's proceeding. Id .

Badeaux also contends that appellants' motion for summary judgment was properly denied

because an affidavit supporting the motion was defective. Attached to appellants' motion

for summary judgment was a certified copy of the minutes of the March 2 meeting, as well

as a certified copy of Cepeda's memorandum discussed at that meeting. These records were

certified by Pam Denny, who stated in an affidavit that she is the city secretary of Los

Fresnos. Badeaux contends that Denny admitted in a deposition that she was never formally

appointed to the post of city secretary. Therefore, Badeaux contends, she lacks the

capacity to verify these records.

Regardless of whether Denny was the city secretary, her affidavit authenticated the

records under the "business records" provision of Texas Rule of Evidence

902(10). Denny swore that she is the custodian of the records. Whether Denny formally

holds the post of city secretary or not, appellant has presented no evidence to contradict

Denny's sworn statement that she is, in fact, the custodian of the records. Denny also

swore that the records are kept in the regular course of business, and that the attached

records were either original documents or exact duplicates of original documents. This is

all that rule 902(10) requires. Tex. R. Evid. 902(10).

In his second response to appellants' motion for summary judgment, Badeaux also argued

that summary judgment was premature because he had not had enough time to develop his

allegations that defamatory statements were made by the appellants outside of and prior to

the March 2 meeting. (2) However, Badeaux did not request a

continuance of the trial court's consideration of appellants' motion or attach an

affidavit stating his need for more discovery. When a party contends that it has not had

an adequate opportunity for discovery before a summary judgment hearing, it must file

either an affidavit explaining the need for further discovery or a verified motion for

continuance. Tenneco Inc. v. Enterprise Prods. Co. , 925 S.W.2d 640, 647 (Tex.

1996); see also Tex. R. Civ. P. 166a(g), 251, 252. Although it appears from the

record before us that no hearing was held on the motion for summary judgment in this case,

Badeaux was still required to file an affidavit explaining his need for more time for

discovery if he was to avoid summary judgment on that basis.

We reverse the order denying appellants' motion for summary judgment on appellee's

causes of action for libel and slander and render judgment that appellee take nothing on

those claims against the appellants.

MELCHOR CHAVEZ

Justice

Do not publish.

TEX. R. APP. P. 47.3.

Opinion delivered and filed this

the 31 st day of March, 2000.

1. Appellants have represented to this Court that the City of Los

Fresnos has filed a separate motion for summary judgment. The City of Los Fresnos is not a

party to this appeal.

2. There is no evidence of any defamatory statements outside of the

March 2 meeting in the summary judgment materials.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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