Defendants Harry A. and Dottie Harrison file this motion for no-evidence summary judgment and in support thereof would respectfully show the Court as follows:
A. NOTE TO THE COURT
The defendants are preparing and filing this motion prior to the March 31, 2003 hearing concerning defendants Motion for Death-Penalty Sanctions against plaintiffs and counsel for plaintiffs. The motion for sanctions includes the very serious matter of criminal actions. Because of the grave subject matter of their motion for sanctions, Defendants Harry and Dottie Harrison do not believe this cause will still be going forward regarding plaintiffs’ claims after March 31, 2003. However, the Harrisons will prepare and file all relevant motions anyway.
B. Introduction
1. Plaintiffs are Dr. Mark Nichols and Mark Lynn Nichols, M.D., P.A.( aka/dba Mark L. Nichols, M.D., P.A.); defendants are Harry A. and Dottie Harrison.
2. Plaintiffs sued defendants for Libel and Libel Per Se, Slander Per Se, and Business Disparagement.
3. Defendants answered asserting they have made no false statements about plaintiffs; and defendants offered the following affirmative defenses:
(a) the truth of their statements and protection given under Texas Civil Practice & Remedies Code Sec. 73.005;
(b) privilege under the First Amendment and the Texas Constitution;
(c) privilege under Texas Civil Practice & Remedies Code Section 73.002 regarding matters of public concern published for general information;
(d) privilege concerning defendants contacting organizations listed on plaintiff’s web site;
(e) privilege under Texas Occupations Code Sec. 160.010 regarding complaints to the Medical Board;
(f) plaintiffs’ unclean hands;
(g) plaintiffs’ breach of the covenants of good faith and fair dealing;
(h) failure to mitigate damages, if any;
(i) damages, if any, were caused by plaintiffs;
(j) negligence by plaintiffs regarding the events alleged in their complaint;
(k) negligent
and/or wrongful conduct of plaintiffs and/or their agents;
(l) frivolous filing of lawsuit.
4. Defendants Harry and Dottie Harrison filed counterclaims alleging:
(a) breach of fiduciary duty – physician-patient privilege;
(b) breach of fiduciary duty regarding medical records;
(c) fraud;
(d) constructive fraud;
(e) negligent and intentional infliction of emotional distress;
5. Discovery in this suit is governed by a Level 2 discovery control plan. The discovery period was originally scheduled to end on 3/17/03, with the ability to file a no-evidence summary judgment after 2/17/03. However, an Unopposed Agreed Motion for Amended Docket Control Order and Agreed Motion for Continuance has been filed. Said motion was filed because defendants needed time to appoint expert witnesses subsequent to plaintiffs appointing expert witnesses on February 7, 2003, less than the required 90 days prior to end of discovery. Discovery is now scheduled to end on April 31, 2003; defendants believe all discovery has been done by the time this motion is being heard.
C. Facts
6. Defendants move for a no-evidence summary judgment based on plaintiffs’ lack of evidence to support their causes of action of libel and libel per se; slander and slander per se, and business disparagement.
7. Regarding plaintiffs allegations of libel and libel per se, defendants have already cited truth as a defense in 3(a) above; plus privilege for their actions in 3(b), 3(c), 3(d), and 3(e) above.
8. Regarding plaintiffs allegations of slander and slander per se, slander refers to the spoken word. Despite this Court’s granting of defendants Special Exceptions, ordering plaintiffs to “say what the statements were, who the speaker was,” etc., plaintiffs have failed to specify anything they allege was published orally by defendants.
9. Regarding plaintiffs allegations of business disparagement, plaintiffs have failed to prove any financial loss. Even with the unverified, vague and incomplete documents that plaintiffs finally produced, after order of this Court, that purport to prove loss by plaintiffs, plaintiffs income is showed to have increased by $378,072 in 2002 versus 2001. The Harrisons attach and incorporate herein by reference as Exhibit “A” an affidavit by Colin Cody, CPA, stating that the documents produced by plaintiffs do not prove any loss. The original affidavit by Colin Cody was filed with this Court on March 18, 2003. The original bears the notary’s embossed stamp and also has stamped in blue, “My Commission Expires May 31, 2007,” which do not show on copies. (The Harrisons did not include the records provided by Dr. Nichols and that were examined by Mr. Cody, noted in his affidavit as “incorporated herein by reference,” because the Harrisons did not want to make those financial records a matter of public record by virtue of filing of this motion.)
10. The Harrisons also attach affidavits by:
(a) Harry Harrison regarding Dr. Nichols’ allegation in his medical records that Mr. Harrison is an alcoholic, incorporated herein by reference as Exhibit “B.” The original of Mr. Harrison’s affidavit was filed with this Court on March 14, 2003.
(b) Pamela Erikson, Forensic Document Examiner, incorporated herein by reference as Exhibit “C” to support Mr. Harrison’s claim that someone other than he himself circled the word “alcoholism” on the Confidential Patient Health History form that Mr. Harrison filled out in Dr. Nichols’ office. The original of Ms. Erikson’s affidavit was filed with this Court on March 18, 2003.
D. Arguments & Authorities
11. A court may grant a no-evidence motion for summary judgment if the movant can show that adequate time for discovery has passed, and the nonmovant has no evidence to support one or more essential elements of their claims. Tex. R. Civ. P. 166a(i).
12. An adequate time for discovery has passed. The discovery period was originally scheduled to end on 3/17/03, with the ability to file a no-evidence summary judgment after 2/17/03. However, an Unopposed Agreed Motion for Amended Docket Control Order and Agreed Motion for Continuance has been filed. Said motion was filed because defendants needed time to appoint expert witnesses subsequent to plaintiffs appointing expert witnesses on February 7, 2003, far less than the required 90 days prior to end of discovery which was scheduled for March 17, 2003. However, with discovery now scheduled to end on April 31, 2003, all discovery should have been done by plaintiffs.
13. Defendants are entitled to summary judgment regarding plaintiffs’ claims because plaintiffs cannot by depositions, admissions on file, or other admissible evidence, demonstrate there is any evidence to support their causes of action based on their claims of libel, libel per se, slander, slander per se, or business disparagement. Plaintiffs in a defamation action must prove falsity, unprivileged communication, fault, and damages.
Defamation
14. Plaintiffs’ causes of action regarding defamation (libel and libel per se, slander and slander per se) require proof of each of the following elements:
(a) the defendant published a statement of fact;
(b) the statement referred to the plaintiff;
(c) the statement was defamatory;
(d) the statement was false;
(1) with regard to the truth of the statement, the defendant was
(a) acting with actual malice;
(b) negligent; or
(c) liable without regard to fault (strictly liability); and
(2) the plaintiff suffered pecuniary injury. (Again, please see the
affidavit by
Colin
Cody, CPA, attached herein by reference as Exhibit “A.”)
Alleged
Libel and Libel Per Se
15. Regarding libel and libel per se, plaintiffs have no evidence that defendants::
(a) published anything false, or
(b) acted with malice, or
(c) were negligent, or
(d) were liable without regard to fault, or
(e) that plaintiffs suffered any
pecuniary injury. . (Again, please see the
affidavit by Colin Cody, CPA,
attached herein by reference as Exhibit “A.”)
Alleged
Slander and Slander Per Se
16. Regarding slander and slander per se, plaintiffs have no evidence that defendants spoke or ,published orally anything at all about either plaintiff, thus plaintiffs have no cause of action with regard to slander and/or slander per se.
Alleged
Libel, Libel Per Se, Slander and Slander Per Se
against
plaintiff’s P.A.
17. Further, plaintiff Dr. Mark Nichols has no evidence that defendants made any statement whatsoever, either orally or in writing, regarding the P.A. (professional association) of Dr. Mark Nichols, which Dr. Nichols has also named as a plaintiff in this cause. Therefore, plaintiff “Mark Lynn Nichols, M.D., P.A., (dba/aka “Mark L. Nichols, M.D., P.A.”) has no cause of action whatsoever in this cause.
Alleged Business Disparagement
18. With the claim of business disparagement, plaintiffs must prove each of the following elements:
(a) the defendant published disparaging words about the plaintiff’s economic interests;
(b) the words were false;
(c) the defendants published the words with malice;
(d) the defendant published the words without privilege; and
(e) the publication caused special damages.
19. Plaintiffs have no evidence to support any of the above elements of a cause of action for business disparagement.
20. Further, plaintiffs claim that defendant Dottie Harrison’s web page “presumably could have been read by thousands of individuals.” Presumably. Plaintiffs have no evidence to show that a single person (other than the parties and the friends of the plaintiffs) have ever read defendant Dottie Harrison’s web page, much less the implied “thousands.”
21. Plaintiffs have no evidence to substantiate actual
damages of $95,619.00. .
(Again, please see the
affidavit by Colin Cody, attached herein by reference as Exhibit “A.”)
22. Plaintiffs have no evidence to show that defendants actions were:
(a) gross;
(b) wanton;
(c) with reckless disregard for the rights of plaintiffs.
23. Plaintiffs have no evidence to substantiate exemplary damages of $286,858.00. . (Again, please see the affidavit by Colin Cody, attached herein by reference as Exhibit “A.”)
24. To defeat a no-evidence motion for
summary judgment, the nonmovant must produce more than a scintilla of evidence
to raise a genuine issue of material fact on the challenged elements. TRCP
166a(i); Boales v. Brighton Builders, 29 S.W.3d 159, 164
(Tex.App.—Houston [114th Dist.] 2000, pet. denied). Plaintiffs have no
evidence.
E. AFFIDAVIT BY DOTTIE HARRISON IS ATTACHED
25. Attached hereto is an affidavit by defendant Dottie Harrison, stating that all exhibits attached to this Motion are true and correct and are authentic; and that all the facts stated in this Motion are true and correct. The original of said affidavit was filed with the Court on March 18, 2003.
F. JUDICIAL NOTICE
26. Defendants Harry and Dottie Harrison request the Court to take judicial notice of the Court’s file and all the documents in the Court’s file with regard to this cause.
G.. Conclusion
27. Defendants are entitled to summary judgment for the reasons asserted in this motion. because plaintiffs have no evidence to support the required elements with regard to the causes of action of defamation (libel and libel per se), namely:
(a) that the defendants published a statement of fact; and
(i) that the statement was false;
(ii) that the statements were without immunity;
(iii) with regard to the truth of the statement, that the defendants were
(1) acting with actual malice;
(2) negligent; or
(3) liable without regard to fault (strictly liability); and
(iv) the plaintiff suffered pecuniary injury.
28. Defendants are entitled to summary judgment for the reasons asserted in this motion because plaintiffs have no evidence to support the required elements with regard to the causes of action of defamation (slander and slander per se), namely:
(a) plaintiffs have no proof that defendants stated orally or published orally anything at all regarding either plaintiff.
29. Defendants are entitled to summary judgment for the reasons asserted in this motion regarding business disparagement because plaintiffs have no evidence to support the required elements with regard to the causes of action of business disparagement, namely:
(a) that the defendants published disparaging words about the plaintiff’s e economic interests;
(b) that the words were false;
(c) that the defendants published the words with malice;
(d) that the defendants published the words without privilege;
(e) that the publication caused special damages.
AND;
(f) plaintiffs have no evidence to substantiate actual damages of $95,619.00
(g) plaintiffs have no evidence to substantiate exemplary damages of $286,858.00
(Regarding (f) and (g) above, please
see the affidavit by Colin
Cody, attached herein by reference as Exhibit “A.”)
H. Prayer
30. For these reasons, defendants Harry and Dottie Harrison ask the Court to grant their motion for summary judgment and enter a take nothing judgment against plaintiffs on their
claims.
Defendants Harry and Dottie Harrison also request all other relief to which
they are entitled.
Respectfully submitted,
Harry A. Harrison, defendant
Dottie Harrison, defendant
806 Maple Branch
Pearland, Texas 77584
I hereby
certify that a true and correct copy of the above and foregoing document was
served in accordance with Rule 21a of the Texas Rules of Civil Procedure via
certified mail, return receipt requested to all known counsel of record as
indicated below, on this 18th day of March, 2003.
Robert J. Killeen, Jr. Certified Mail Receipt 7002 3150 0003 2215 5282
Killeen & Wheat, PLC
8 Greenway Plaza, Suite 614
Houston, TX 77046
Dottie Harrison, defendant