*1 challenges trial Appellant on a Joy Niday COLSON, Appellant, paterni
court’s reliance court order of ty which determined Thomas to be Brooks, of not child Jim Jr.. We need issue of validity
reach the of court GROHMAN, Mike Paul decree. Even if the trial court relied on Roberts, and Jack Stella decree, that court of trial Roberts, Appellees. may upheld legal court be on other theo ries raised the evidence. No. 01-98-00992-CV. Brooks, The record shows Jim Jr. con- Texas, Appeals of Court of sented to be named and named (1st Dist.). Houston father on the birth This child’s certificate. qualifies paterni- under the presumption May 2000. (Ver- § ty of Tex. Fam.Code Ann. 151.002 1996). Thus, qualifies non Thomas under for paternal
the first method providing 42(b)
inheritance in section Probate
Code. Brooks,
The record also shows Jim Jr. paternity
executed a statement of in 1992. complied applica-
His statement with then Family
ble section 13.22 of the Code.2
Thus, qualifies Thomas under the fourth providing paternal
method for inheritance 42(b)
in section of the Probate Code. only theory
Appellant legal attacked
supporting Thomas’s claim under the sec- (court decree)
ond method providing 42(b)
paternal inheritance under section Judgment
the Probate Because the Code.
Declaring Thomas Heirship pronouncing Brooks,
to be the child of Jim Jr. and the may upheld
sole heir of his estate be on at theories, two other we affirm legal
least holding probate court. Lewis,
Appellant, Doreenie filed a notice 18, 1998, but has appeal on December appellate
not filed an brief with this Court to our order of responded has Accordingly,
December we dis- appeal prosecution.
miss her for want of
Tex.R.App. 42.3(b). P. 29, 1975, R.S., Leg., (current ch. 2. See Act of 64th at Tex. Fam. Code Ann. version 1996)). (Vernon § § 160.202 1975 Tex. Gen. Laws
defendant in December 1994. Colson’s petition alleged seventh amended claims § under 42 U.S.C. 1983 for violations of rights under the First and Fourteenth Amendments. The defendants removed *3 the case to United States District Court for Southern District of Texas. grant- The United States District Court appellees’ summary judg- ed motions for claims, ment on Colson’s constitutional remaining remanded the state law claims to the state court. The District Court’s summary judgment rendition of on the upheld by federal claims was the Fifth Grohman, Circuit Colson F.3d (5th Cir.1999). In general order on 30, 1998, granted trial court ap- June pellees’ summary judgment motions for dismissing Colson’s claims for defamation and intentional infliction of emotional dis- tress.
Facts (1) Joy parties to this action are: Feldman, David M. Alan Mor- Richard Colson, City Councilwoman Pearland ris, Haddock, Houston, appel- Sheila for police whose husband was a Pearland offi- lant. cer; Hogg, the Pearland Police Mike Abrams, A. Carrigan, Barry Mark Max- Chief; Grohman, Paul the Pearland Goodman, Houston, appellee. ine D. for City Manager; and Jack Stella Roberts, two Pearland citizens. O’CONNOR, Panel consists of Justices among parties began The trouble WILSON, and ANDELL. early fall of when the late summer or with his Hogg presented OPINION proposed budget for ANDELL, ERIC Justice. budget includ- Department. Hogg’s Police officers, pay plan police ed a for Colson’s are asked to decide if the trial court We among them. offered an husband Colson in rendering erred for pay plan Hogg alternative Groh- Grohman, appellees Mike Jack Paul Hogg contends be- opposed. man Roberts, Joy Niday and Stella Roberts on his office to retali- gan using powers claims for defamation inten- Colson’s a different against proposing ate her for tional infliction of emotional distress. We initial a bit- plan. dispute triggered This affirm. ter, among the complex, ongoing battle parties, replete with claims and counter- History Procedural improper claims of behavior. Colson’s initial suit for defamation was act, January was to parties, including filed various first Roberts, investigation” a “confidential mem- Jack and Stella on October submit At- Brazoria District 1993. was added as a defendant orandum to numerous in- torney Mapel, detailing added August Grohman was Jim Attorney’s personal City District Office in which certain Pearland stances members, mem- including alleg- and other Council battle with Colson Meetings Act edly Open the Texas no basis They violated concluded there was bers. (“TOMA”) statutes. and conflict-of-interest bringing few claims that over next members, and informed months, increasingly frus- became their decision June police depart- positions trated her had committed Hogg the Council members issues, he retaliated ment TOMA, but “technical violations” false criminal accusa- making additional and that the violations were minor tions. pursue would not Office the matter. Febru-
Grohman contends between *4 1993, and her hus- ary and June Colson day, Hogg next met with Selleck The repeatedly “Hogg got told him has to band County Investigator Brazoria John and go.” Hogg warned that Council Grohman gave and them a chart of Blankenship, Colson, Weber, and Miller want- members allegedly members had violations Council though ed to fire even it was not July July 1992 and committed between power to do so. within Council had 1993. The chart indicated Colson meeting A of the council was called nepotism violated TOMA and the state express evaluating purpose for the meetings illegal in participating statute performance. meeting, At Hogg’s directly affecting a matter voting Hogg prepared suggest- read a statement In a August grand her husband. had violated ing the Council TOMA convened, at which Grohman jury was by deciding at a City private Charter allegations against their Hogg presented to for approve any police retreat not raises The Brazoria certain Council members. year officers for fiscal refused to issue indict- Jury Grand Hogg prepared In a confiden- instead, ments; they chose to send letters Selleck, tial for Tom the district warning them to hold to Council members attorney had handle Mapel assigned to meetings compliance their with TOMA. Hogg’s report, Hogg accusations. In this alleged Colson had violated TOMA and the culminating pre- While the events later, nepotism state statute. Two weeks to the accusations sentation Hogg update delivered an to Selleck accus- jury occurring, were improperly proposing Colson in a closed evaluated Grohman the Council reconsider its earlier decision July executive session 1993. Colson disability city for coverage to discontinue member rated at least one other Council employees; he claimed Colson did this “poor.” Colson performance Grohman’s husband, an effort to benefit her who had for “man- additionally criticized Grohman disabling a contracted illness. Selleck awarding intimidation” and sal- aging with if three Hogg Hogg prove could approval. ary increases without Council violations had occurred within the TOMA the Council Two members asked months, take the past Selleck would terminating at their to consider Grohman County grand to the Brazoria meeting. alleges that Groh- next jury- and, result, furious, asked man was the first set of recall Hogg prepare their con- to
Selleck and discussed were circulated petitions.1 petitions to use the Hogg attempting cern that filed, Secretary City City gives peo- petition has been 1. The Charter for Pearland form, certify proper city either it if it is in ple power to recall officials from must petitioners correction. If process, specified return it to the for office. To invoke the certified, City Secretary must must file a recall it is then number of electorate petition Within alleging specified present the to the Council. petition, one or more presented, days petition has been "grounds” days a recall five after for recall. Five after during July meeting ipated 26 Council held in a vote that had a direct effect Grohman; expressly dismissing position consider husband’s the Police Department. allege a divided Council voted to revisit the issue We further that she employment days. regularly of Grohman’s enters into deliberations con- cerning matters which have a direct im- Grohman contends he did not initiate pact on her husband. the recall He petitions. contends he was approached by Hogg copy him delivered a asking various citizens of the Colson city petition how to recall council members. Groh- Grohman and another Hogg city employee, man and both contend sim- Paul Dillon. then Grohman (cid:127) Roberts, ply prepare copy pri- asked a “form” of delivered a to Stella what look like. petitions the recall should vate citizen of Pearland and herself a for- asked Grohman claims he do this mer Council member. Grohman and Stel- prepared because he knew had extensive ex- la Roberts a set of instructions perience drafting complaints criminal These accompany petitions. instruc- being being investigated was familiar with the raised. tions stated issues Colson was petition concerning The first recall the District Office and a violations, grand jury possible was as follows: having and accused her of: shown Directed to the and for *5 Pearland; disregard governing for the laws City spe- the of Pearland Texas for the (2) having allegations lodged numerous purpose demanding cific of the recall of acting illegally pub- her for outside Colson, Joy duly who is a elected Coun- (3) meetings; letting personal lic vendettas in City cil member of the and by persecuting override interest the Pearland, City for the located in Bra- chief, police city manager, city and other County zoria Per- and Harris Texas. employees; self-dealing. and to [sic] suant Section 6.02 of the allegations contends all of these were false. Charter, signed the Pearland below receiving petitions September After the qualified hereby voters do demand the 1993, then-City Secretary Pat Jones deter- recall of Council Member Colson on the signatures petitions the on the mined grounds of malfeasance Office. necessary registration voter lacked the Specifically allege that Ms. we picked up Roberts the numbers. Stella member, acting city while as a council them; petitions to correct Grohman direct- City of did violate The Pearland Char- city employees ed to assist Stella Roberts ter, Chapter Sections 8.06 and 8.07 and husband, Jack, peti- and her to correct the 171(l)d, of the Local Government Code certify and them. help tions Jones Groh- thereby violating relating a law to her the provide man also ordered Jones member, office as a Council thus render- city of the voter copy Robertses with ing her actions violation of Section easily registration they so could more list 39.01 of the State Penal Code titled Offi- numbers. identify registration the Misconduct, being cial the same a Class corrected allege A Robertses returned the Misdemeanor. We further 12. Jones and the by petitions September Ms. Colson violated these sections on however, determined, many budget police City Attorney the final of the deciding on year were invalid because the department signatures for fiscal 94 without by the affiants Hearing petitions signed the were not conducting required Public them, notice, circulated as re- posting required claiming the Public to have 8,1993 by the Pearland Charter. Groh- partic- quired further that on March she request, Council must may request pub- days "that a of such a the the accused official permit election wherein the voters hearing lic be held to him or her to order be re- pertinent charges speci- decide if the accused official should present facts to the and, petition,” within 15 moved from office. fied in the recall author- affiants, for law enforcement including pared telephoned man Roberts, allegations. setting and asked them to come to ities out Roberts’s Jack City Secretary’s sign peti- office to Hogg continued to ask the Grohman and claims tions had circulated. Jones bring charges Attorney’s Office District certify peti- her to pressured Grohman Late in November against Colson. verifying signatures, tions without Mapel Coun- complained Grohman the certification in time for a complete him, retaliating against cil members were meeting September 13. Ulti- that a he understood Mapel and told certify peti- refused to mately, Jones recommenda- jury Mapel’s would follow tions. this. also Mapel tion. denied organized the circulation The Robertses or coer- an indictment for retaliation said petitions of a second set of recall contain- make only thing cion that would the same accusations Colson. the other members Colson and or There is evidence Grohman way.” Hogg forward- “run the other also drafting publishing was involved criticizing of a letter copy ed to petitions con- second set. The new recall Scarborough of the Colson from Reverend incompetence, tained Pearland. Final- Baptist First Church of (1) committed malfeasance stated Colson Selleck, In- ly, in December matters by regularly voting office Blankenship Ranger and Texas vestigator afford- directly affecting compensation Blankenship’s office Joe Haralson met ed her husband as member Pearland at the Brazoria Department; approved Police the 1994 bring crimi- Office. asked Selleck TOMA; budget PPD in violation of nal retaliation or coercion effectively relegated investigation voted to have Colson because she had consideration of certain actions to be taken *6 investigated. Hogg Grohman Selleck by the Council to two other Council mem- grounds bring have he did not sufficient bers, voting according to their direction or days after this charges. such Several position. if meeting, Hogg told Selleck that he could 1993, In October Colson filed suit for mem- indict and two other Council Colson defamation Robertses state bers, him 1800 Hogg guarantee would court, sought district and to bar a recall if ran votes Selleck to succeed publication election and continued Attorney upcoming election. District allegedly allegations against false criminal meeting, according After this enjoined her. The court a recall election. Hogg Blankenship concluded Selleck petitions The court determined did not impartial had his focus as an lost give adequate charges notice of the forgot- objective investigator criminal they specific her because were not law ten his mission as Pearland’s chief held. enough. No recall election was ever discussed, They also enforcement officer. During and after the circulation of the bribery charges rejected, bringing but petitions, first set of against Hogg. report continued to the Council’s Hogg 1994, January Hogg again At- In testified alleged activity to the District 1993, jury. Selleck warned early In November before the torney’s Office. allegations of retalia- present a on this for not to Hogg prepared presentation servant, be- Af- of a Sergeant Haralson. tion and coercion Ranger Texas Joe could enjoined the recall elements of these offenses ter the district court cause the election, met, with the other go to not be but to ahead phoned Hogg Stella Roberts Following Hogg’s presenta- talking allegations. in the court- report she saw Colson tion, to indict Col- grand jury declined might room about matters that have been son, letters Council; Selleck to draft Hogg pre- but instructed pending before 420 them of their motion was a informing
to the Council members assert no-evi- motion, alleged sug- violations of TOMA and it summary judgment ap- dence gesting they City Attorney consult the if a pears hybrid, to be with elements of questions no-evidence, had in the future. summary general, as well as a judgment motion. 1994,
In February Hogg wrote to Texas Haralson, Ranger him asking to investi- Summary Judgment
gate Selleck for his failure to take action 1994, In Hogg’s allegations. March A general summary judgment proper is Attorney Assistant District Hol- Danette only when the movant establishes there is grand jury combe informed Grohman the genuine it issue of material fact and is had considered his retaliation and coercion judgment entitled to as a matter law. charges brought back a no-bill on Co., Property Management Nixon v. Mr. both. Holcombe told Grohman several (Tex.1985). 546, 690 S.W.2d Because members of Brazoria appeal summary judgment this is an of a had the ease Office reviewed issue, only legal we assume the involving anyone and had not found had retaliated pleaded by facts are true. Nativi against or coerced Grohman. Alexsis, Inc., dad v. 875 S.W.2d Finally, April just two weeks (Tex.1994); Temple, Maranatha Inc. before the 1994 election which (Tex. Co., Enter. Prod. 893 S.W.2d reelection, running Colson was 1994, writ de App.-Houston [1st Dist.] prepared, city using city prop- time and nied). erty, lengthy report stationery on PPD raised, summary Properly a no-evidence Pandemonium,” entitled “Pearland or “It’s judgment places motion the burden on the OK, Everybody It.” He Does directed the produce nonmovant to evidence on each City Secretary’s copy to forward a Office of their claim or de challenged element put copy to each Council member and he Corp., fense. Heiser v. Eckerd library. Hogg claimed the 1998, no (Tex.App. Worth — Fort purpose give was to pet). A no-evidence accounting an of events as it con- if does must be affirmed the nonmovant employment sidered Grohman’s status. provide proba more than scintilla of Nevertheless, Hogg admitted had it he *7 genuine a of tive evidence to raise issue
placed library in he “wanted it because of challenged material fact on a element in public Hogg represents forum.” Komet, v. 982 her claims. Graves S.W.2d a of complete chronology be 1998, 551, Antonio (Tex.App. 553 — San relating events to criminal of investigations pet.). members, all focus on despite its Frank Colson and fellow Council members 2. Defamation and Miller. attributed his failure to allegations against any include of the other public figure of question The style members as “due to of [his] is one of constitutional public official status writing.” Colson added to her defa- v. to decide. Rosenblatt law for courts 1994, mation suit November and added Baer, 88, 669, 677, 75, 15 86 S.Ct. 383 U.S. 1994, adding in December a (1966). parties this L.Ed.2d 597 claim for intentional infliction of emotional that as a Pearland dispute case do distress. member, public a offi Colson was cial. To sustain a defamation cause of Review
Standards action, public prove a official must statement; a summary published defendant: The Robertses’ motion concerning the judg- published the statement judgment general summary was a defama public figure official or was Although public ment motion. Grohman and
421
was se
plaintiff
was made
distress suffered
tory; and
that the statement
Twyman,
v.
855 S.W.2d
Twyman
Times
vere.
actual malice. New York
Co.
with
(Tex.1993).
619,
279-80,
Extreme and outra
Sullivan,
254,
84 S.Ct.
621
v.
376 U.S.
725-26,
(1964);
outrageous
so
710,
geous conduct is conduct
Kerr, that the activities of panel finds “steady than the indepen an defendants was no more recognized the extent that it criti- in of vehement right negligently dent to recover for stream of accusations *9 Houston, distress); expected any politician cism that must be flicted emotional Star (Tex. Shevack, endure,” opin- Fifth quoting v. 886 418 the Circuit Inc. S.W.2d Grohman, case, ion in this Colson v. App.-Houston writ denied [1st Dist.] (5th Cir.1999). 462). curium, However, panel The F.3d per of context. The issue quote to indicate the takes this out Colson offered no evidence the Fifth was whether distress. before the Circuit severity her emotional Without members. the council nal First Amend- violated Colson’s defendants take Hogg his office would then told jus- Mapel the criminal misusing rights ment Hogg and testified that to retaliate no action. Selleck processes recall tice and il- Miller of claim, Councilman was accused that her. Under salary govern- from two injury receiving legally than mere more to show required time, said, without the same the at Fifth Circuit mental entities As the reputation. sug- who had not action- revealing is it was Grohman accusations making of false Investi- retalia- Miller do so. gested First Amendment that under the able Colson, at 174 F.3d in his affidavit Blankenship stated jurisprudence. gator tion 1,800 that Colson votes from held The Fifth Circuit offered Selleck 512. Baptist if she claim First had a retaliation Pearland’s would have members of peti- subjected Attorney to a recall ran for District had ever been if Church Selleck was, was voted in- jury As it she tion. Id. at 513. if convinced Selleck as a office, Miller, is not actionable out of which and Frank. dict testimony deposition retaliation claim. himself admitted though petitions even prepared he from the panel ignores The statements him do so improper it was he knew Fifth favor its Circuit that do not opinion become for him to it unusual holding. the Fifth Circuit example, For investiga- criminal involved personally that evi- summary judgment found tions. only dence showed “the defendants criticized but and libeled defamed Conclusion her, presenting allegations and the Office elect- defamed. No Clearly Colson was knowledge they with were false or with the kinds have to endure should ed official were disregard reckless of whether subjected. which she was attacks to not.” false or
Wrong Review Standard of that is an panel forgets appeal
The this summary judgment.
from a When review- summary judgment, we must view light most favorable to
the evidence non-movant, in In- this case Colson. GUAJARDO, Appellant, Fidel Jose stead, all panel ignores evidence only evi- favors Colson focuses and inferences that favor the defen- dence Texas, Appellee. The STATE example, panel dants. For finds grand jury’s letters to the Council that 13-98-431-CR, 13-98-432-CR. No. warning were made and them Texas, Appeals Court to act compliance Open with the Texas Corpus Christi. Meetings Act is somehow evidence justified the defendants’ belief that Colson had violated the law. 10, 2000. Aug. Rehearing Overruled panel ignores all of the evidence that shows the knowingly defendants made Consider,
false statements about Colson.
example, the following disregard- evidence
ed the majority: Selleck stated in his
affidavit he told Mapel early as June there was no basis for crimi- bringing