Jack N. McCrary and Suzanne F. McCrary v. William A. Hightower, UBS Financial Services, Inc., B.B. Tuley, Brian Davidson and Panoramic Investigations
513 S.W.3d 1
Tex. App.2016Background
- Jack and Suzanne McCrary sued William Hightower, UBS Financial Services, B.B. Tuley, and Brian Davidson (Panoramic Investigations) for defamation, negligence, gross negligence, and civil conspiracy, alleging a months‑long "smear campaign" against Jack tied to investor meetings and a "Tuley Report."
- McCrarys alleged meetings on July 18, 2013 and January 10, 2014 where Hightower and others distributed or republished defamatory material and urged investors to sue, and that Davidson called Jack “delusional.”
- UBS moved to dismiss under the Texas Citizens’ Participation Act (TCPA) and alternatively sought summary judgment on the pleadings, invoking the absolute judicial‑proceedings privilege and the qualified common‑interest privilege; the trial court denied the TCPA motion but granted summary judgment on the pleadings in UBS’s favor (order did not specify grounds).
- Davidson moved for summary judgment on similar privilege grounds; the trial court granted judgment for Davidson without specifying the ground.
- Hightower and Tuley jointly moved for summary judgment on the pleadings asserting the absolute judicial‑proceedings privilege; the trial court granted their motion and entered final judgment disposing of all claims and parties.
- On appeal this court affirmed summary judgment as to UBS and Davidson (appellants failed to negate all grounds raised) but reversed and remanded as to Hightower and Tuley because the pleadings did not establish the factual nexus required for the absolute privilege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment on the pleadings was proper without discovery | McCrary: pleadings do not establish privilege; further discovery needed to show context of statements | Defendants: pleadings affirmatively show statements relate to contemplated or actual litigation, authorizing summary judgment on pleadings | Court: as to Hightower/Tuley, pleadings insufficient; summary judgment premature; reversed and remanded |
| Whether absolute judicial‑proceedings privilege covers the alleged statements (including extrajudicial statements by non‑lawyers) | McCrary: privilege does not apply because pleadings fail to tie statements to a proceeding in good faith and under serious consideration | Defendants: privilege is broad, covering pre‑litigation and non‑lawyer statements related to contemplated litigation | Court: privilege can be broad but requires factual nexus; here pleadings lack context to show relation to an actual or seriously contemplated proceeding, so privilege not established |
| Whether appellate standard required negating all alternative grounds when trial court order silent | McCrary: trial court erred by granting judgment without specifying grounds; appellant challenges absolute privilege only | Defendants: multiple grounds were raised so appellant must negate all to reverse | Court: where order silent and multiple grounds raised, appellant must negate all; McCrary failed as to UBS and Davidson, so those judgments affirmed |
| Whether TCPA dismissal affected outcome | McCrary: trial court may have been influenced by TCPA; dismissal under TCPA improper | UBS: asserted TCPA but trial court denied TCPA motion; alternative grounds suffice | Court: TCPA dismissal was denied at trial; appellate decision affirms on other grounds and does not rely on TCPA |
Key Cases Cited
- Cantey Hanger, LLP v. Byrd, 467 S.W.3d 447 (Tex. 2015) (summary‑judgment standard)
- Shell Oil Co. v. Writt, 464 S.W.3d 650 (Tex. 2015) (test for privilege covering pre‑litigation communications requires serious contemplation of a proceeding)
- James v. Brown, 637 S.W.2d 914 (Tex. 1982) (absolute privilege applied to communications made as part of statutory mental‑health proceedings)
- Tex. Dept. of Corrections v. Herring, 513 S.W.2d 6 (Tex. 1974) (pleading‑itself‑out doctrine supports judgment on pleadings in rare cases)
- Daystar Residential, Inc. v. Collmer, 176 S.W.3d 24 (Tex. App.—Houston [1st Dist.] 2004) (attorney statements about contemplated suit may be absolutely privileged when suit is clearly contemplated)
- Helfand v. Coane, 12 S.W.3d 152 (Tex. App.—Houston [1st Dist.] 2000) (summary judgment on privilege may be premature without discovery to establish context)
- Fitzmaurice v. Jones, 417 S.W.3d 627 (Tex. App.—Houston [14th Dist.] 2013) (privilege analysis requires considering the communication in full context)