Opinion
No. 10-03-00198-CV
Opinion delivered and filed February 23, 2005.
Appeal from the 170th District Court, McLennan County, Texas, Trial Court # 99-2937-4.
Affirmed.
Richard Owen Taylor, Tennessee Colony, TX, pro se.
Sheryl S. Swanton, Lone Star Legal Aid, Waco, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Richard Owen Taylor sued his former wife, Valerie Taylor, and others for damages under Chapter 42 of the Texas Family Code claiming that by not notifying him of Valerie's change of address, the Appellees had tortiously interfered with his court ordered right of access to his children. The trial court granted the Appellees' motion for summary judgment. Richard appeals. We affirm.
Background
Richard is serving a forty-year sentence for his participation in a murder committed during an armed robbery. Shortly after his incarceration, Valerie filed for a divorce. In a Final Divorce Decree, Valerie was appointed managing conservator and Richard possessory conservator of their children. Acting pro se, Richard filed a civil suit against Valerie and her Co-Appellees, Robbie Ault, Nancy Diane Bettinger, Donald Bettinger, Christopher Chance, Shawn Fall, and the Office of the Attorney General of Texas under Chapter 42 of the Texas Family Code, claiming that Valerie had conspired with Co-Appellees to take or retain possession of the children in violation of the divorce decree. Specifically, Richard argued that the Appellees had interfered with his access to the children and had concealed the whereabouts of the children by not notifying him of Valerie's change of address. Richard also sought temporary injunctions against Valerie and Ault and against the Texas Department of Criminal Justice (TDCJ).
Chance filed a motion for summary judgment later adopted by Appellees. The trial court granted the motion and denied Richard's request for temporary injunctions.
On appeal, Richard argues that the trial court (1) erred in finding that the final divorce decree did not provide him with access to his children; (2) abused its discretion in overruling Richard's objections to summary judgment evidence; (3) erred in granting the Appellees' motion for traditional and no evidence summary judgment; (4) erred in denying his request for a temporary writ of injunction against Valerie and Ault; (5) erred in denying his request for a temporary writ of injunction against the TDCJ; and (6) abused its discretion in denying his motion to review his parole records.
Richard's Objections to the Appellees' Summary Judgment Evidence
In his second issue, Richard argues that the trial court abused its discretion in overruling Richard's objections to Appellees' summary judgment evidence. Richard launched seventy objections to Appellees' evidence that encompass three categories: (1) relevancy; (2) hearsay; and (3) accuracy of record and/or statements. The trial court overruled Richard's objections, but Richard failed to get the court's ruling in writing.
For preservation purposes, objections to "form" and "substance" of summary judgment evidence are treated differently. Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex.App.-Waco 2003, no pet.); Dailey v. Albertson's, Inc., 83 S.W.3d 222, 225 (Tex.App.-El Paso 2002, no pet.). To preserve objections to defects of form, the objecting party must obtain a ruling from the trial court in writing. See McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex.App.-Houston [14th Dist.] 2003, pet. denied); Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 663 (Tex.App.-Waco 2002, no pet.). However, substantive objections do not require a written ruling, and the objection may be raised for the first time on appeal. Choctaw Props., 127 S.W.3d at 241; Dailey, 83 S.W.3d at 225.
One subset of Richard's objections to Appellees' summary judgment evidence claimed that parts of the evidence contained hearsay. Hearsay is a defect of form. Choctaw Props., L.L.C., 127 S.W.3d at 241; Crow v. Rockett Spec. Util. Dist., 17 S.W.3d 320, 324 (Tex.App.-Waco 2000, pet. denied) (affidavit of interested witness, hearsay, and lack of personal knowledge are all defects of form). Consequently, because Richard failed to obtain a written ruling, his hearsay objections have not been preserved for appellate review. Choctaw Props., 127 S.W.3d at 241; McMahan, 108 S.W.3d at 498.
Richard also objected to the relevancy of the Appellees' evidence. Relevancy is an issue of substance that is not waived by the failure to obtain a written ruling. See McMahan, 108 S.W.3d at 498. Richard appears to argue that some of the defenses raised by the Appellees in their motion should be excluded because they were not disclosed in their response to Richard's Rule 194 Request for Disclosure. See TEX. R. CIV. P. 194. However, this argument was not presented to the trial court. Moreover, the trial court had previously denied Richard's numerous motions for discovery sanctions concerning the Appellees' alleged failure to respond to his request for disclosure. Aside from his complaint of non-disclosure, the Appellees' defenses are probative and relevant to the issues of the case. Therefore, we find the defenses relevant, and the trial court did not abuse its discretion in overruling Richard's relevance objections.
Finally, Richard objected to the accuracy of the record and/or statements in the Appellees' summary judgment evidence. This is not a valid legal objection. Disputing the accuracy of the evidence results in questions of fact best resolved by the trial court in the summary judgment hearing. Richard would be better served by contravening the evidence than by attacking its veracity by objections. See Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 185 (Tex. 2004). Accordingly, we overrule Richard's second issue.
The Merits of the Appellees' Summary Judgment Motion
In his third issue, Richard argues that the trial court abused its discretion in granting Appellees' traditional and no evidence motion for summary judgment. We review the decision to grant or deny a summary judgment motion de novo. See Rosas v. Hatz, 147 S.W.3d 560, 563-64 (Tex.App.-Waco 2004, no pet.). When the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion. Larsen v. Carlene Langford Assocs., Inc., 41 S.W.3d 245, 249 (Tex.App.-Waco 2001, pet. denied) (quoting Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473, 38 Tex. Sup. Ct. J. 718 (Tex. 1995)).
In their motion for traditional summary judgment, the Appellees argue that they are entitled to judgment as a matter of law because Richard's suit is barred by res judicata. In a traditional summary judgment motion, the movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425, 40 Tex. Sup. Ct. J. 658 (Tex. 1997); Rosas, 147 S.W.3d at 564. The reviewing court must accept all evidence favorable to the non-movant as true. Rosas, 147 S.W.3d at 564. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Grinnell, 951 S.W.2d at 425; Rosas, 147 S.W.3d at 564.
Res judicata precludes relitigation of claims that have been finally adjudicated, or that arise out of the same subject matter and could have been litigated in the prior action. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). To establish res judicata, the claimant must show: (1) there was a prior final judgment on the merits rendered by a court of competent jurisdiction; (2) the parties or those in privity with them are identical in both suits; and (3) the current suit is based on claims that were raised or could have been raised in the prior suit. Pinebrook Props., Ltd. v. Brookhaven Lake Prop. Owners Ass'n, 77 S.W.3d 487, 495-96 (Tex.App.-Texarkana 2000, pet. denied) (citing Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996)). Parties are in privity for purposes of res judicata when: (1) they control an action even if they are not parties to it; (2) their interests are represented by a party to the action; or (3) they are successors in interest, deriving their claims through a party to the prior action. HECI Exploration Co. v. Neel, 982 S.W.2d 881, 890 (Tex. 1999).
In Valerie's summary-judgment affidavit, she states that Richard previously argued that she was keeping her new address from him in a prior lawsuit regarding the divorce decree. Valerie states that Richard filed numerous motions for contempt in the prior proceeding alleging that Valerie had kidnapped the children by not notifying him of her new address. The trial court denied these motions. Richard also filed a motion to enforce the divorce decree claiming that Valerie did not notify him of her new address. This motion was also denied. What is more, Richard's summary judgment evidence includes a reporter's transcript from the prior lawsuit that specifically demonstrates the extensive argument of this issue. Thus, it is clear that the former suit and the current suit involve the same issue, and Richard's claim under chapter 42 could have been litigated in the prior suit. All that remains is to determine whether the same parties were involved in both suits.
The only parties in the instant case that participated in the prior suit are Richard and Valerie. The Co-Appellees were not parties to the divorce decree. Nor can they claim privity with Valerie. See Neel, 982 S.W.2d at 890. As a result, the motion for traditional summary judgment could have been decided on these grounds as to Valerie alone. Therefore, indulging every reasonable inference in favor of the non-movant, we find that Valerie is entitled to judgment as a matter of law because Richard's claims against her are barred by res judicata. See Grinnell, 951 S.W.2d at 425; Pinebrook Props., Ltd., 77 S.W.3d at 495-96.
Valerie and the Co-Appellees also contend in the motion for summary judgment that there is no evidence that they have an affirmative duty to voluntarily provide information concerning the children's whereabouts.
In a no evidence summary judgment motion, we review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Rosas, 147 S.W.3d at 564. A no-evidence motion will be defeated if more than a scintilla of probative evidence exists to raise a genuine issue of material fact on the element challenged by the movant. Id.
Chapter 42 of the Family Code states that any person who aids or assists a person in concealing the whereabouts of a child in violation of a court order may be held liable for damages. TEX. FAM. CODE ANN. § 42.002(a) (Vernon 2002). To be liable for aiding and assisting, the defendant must have taken affirmative steps to assist the abductor either in the abduction itself or in retaining possession or concealing the child's whereabouts. See A.H. Belo Corp. v. Corcoran, 52 S.W.3d 375, 382 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). However, a person who simply becomes aware of the abducted child's whereabouts is not under an affirmative duty to reveal that information. See Eberle v. Adams, 73 S.W.3d 322, 329 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).
Co-Appellees rely upon A.H. Belo Corp. in support of their position. A.H. Belo Corp., 52 S.W.3d at 377. In that case the father sought to hold a television station liable under Chapter 42 of the Family Code for aiding and assisting in the abduction of his child because the station's reporter had interviewed the abductor mother and abducted child in an undisclosed location. Id. The father argued that the duty under the Family Code not to conceal the location of an abducted child equates to a duty to reveal the location of the child. Id. at 382. The Fourteenth Court of Appeals held that "there is nothing in section 42.003 or the case law to indicate such an affirmative duty by all who have any knowledge of an abducted child's whereabouts," and accordingly found that there was no evidence that the television station had an affirmative duty to disclose the whereabouts of the abducted child. Id.
The only case in which a failure to provide information was found to support a liability finding is Weirich v. Weirich. 833 S.W.2d 942 (Tex. 1992). In that case, the Texas Supreme Court found that there was legally sufficient evidence that the abducted children's grandmother aided and assisted the abductor father in concealing the whereabouts of the children because the grandmother swore in open court that if she discovered the whereabouts of the children, she would notify the authorities, and by doing so assumed an affirmative duty to disclose the children's whereabouts. Id. at 945. Richard has presented no evidence of like kind here.
Richard produced no evidence that Co-Appellees had an affirmative duty to disclose Valerie's new address. Therefore, the trial court properly granted the no-evidence summary judgment motion as to the Co-Appellees. See Weirich, 833 S.W.2d at 945; Rosas, 147 S.W.3d at 564. Accordingly, we overrule Richard's third issue and do not reach his first issue.
Denial of Temporary Injunctions
Richard argues in his fourth and fifth issues that the trial court erred in denying his request for temporary injunctions against Valerie, Ault, and the TDCJ.
The purpose of a temporary injunction is to preserve the status quo of the litigation's subject matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); City of Burleson v. Bartula, 110 S.W.3d 561, 564 (Tex.App.-Waco 2003, no pet.). To obtain a temporary injunction, the applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204; TEX. CIV. PRAC. REM. CODE ANN. § 65.011 (Vernon 1997).
Whether to grant or deny a temporary injunction is within the trial court's sound discretion. Butnaru, 84 S.W.3d at 204; City of Burleson, 110 S.W.3d at 564. A reviewing court should reverse an order granting injunctive relief only if the trial court abused that discretion. Butnaru, 84 S.W.3d at 204; City of Burleson, 110 S.W.3d at 564. The reviewing court must not substitute its judgment for the trial court's judgment unless the trial court's action was so arbitrary that it exceeded the bounds of reasonable discretion. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985). A trial court has no discretion to determine what the law is. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); City of Burleson, 110 S.W.3d at 564.
Richard sought a temporary injunction to prevent Valerie and Ault from contacting the prison and parole board in an attempt to cease his communications with his children and injure his prison status and future eligibility for parole. Richard argues that he suffered and continues to suffer irreparable injury because Valerie and Ault's actions caused damage to his parole status and resulted in prison disciplinary action. Yet, Richard did not show that the parole board was assessing a penalty, nor was there evidence that the prison was disciplining him as a result of Valerie and Ault's complaints. Fear or apprehension of the possibility of injury alone is not a basis for injunctive relief. Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853, 861 (Tex.App.-Fort Worth 2003, no pet.). Thus we cannot conclude that the trial court abused its discretion in denying Richard's request for a temporary injunction against Valerie and Ault. See Butnaru, 84 S.W.3d at 204.
Richard also sought a temporary injunction against the TDCJ to prevent it from interfering with his access to the trial court. Richard claims that TDCJ officials interfered with his access to the trial court by refusing to supply him with legal material and to mail legal documents. Richard argues that he attempted to resolve these issues through administrative grievances, but the problems continued. Relying on the testimony of a TDCJ official, the trial court found that Richard had not exhausted his administrative remedies, and that there was no injury because the trial court had received each document that Richard claimed was delayed by the TDCJ. Crain v. Prasifka, 97 S.W.3d 867, 870 (Tex.App.-Corpus Christi 2003, pet. denied); Birdo v. Schwartzer, 883 S.W.2d 386, 388 (Tex.App.-Waco 1994, no pet.). Given this evidence, we cannot say the trial court abused its discretion in denying Richard's request for a temporary injunction against the TDCJ. See Butnaru, 84 S.W.3d at 204. Accordingly, we overrule Richard's fourth and fifth issues.
Motion to Review Parole Records
In his sixth issue, Richard argues that the trial court erred in denying his motion to review his parole records. Richard filed a subpoena duces tecum on the custodian of his parole records, but the custodian failed to comply with Richard's request. Richard argues that he cannot enforce the subpoena because the parole board member he would be seeking enforcement upon is the same member that would be voting on his eligibility for parole. Therefore, he filed a motion asking the trial court to order a review of these records.
However, there is no indication in Richard's brief or the record that Richard asked the trial court for a ruling, or otherwise brought the motion to the trial court's attention. See TEX. R. APP. P. 33.1; Cherqui v. Westheimer Street Festival Corp., 116 S.W.3d 337, 342 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Therefore, Richard has failed to preserve this issue for review. Accordingly, we overrule Richard's sixth issue.
Conclusion
We affirm the judgment of the trial court.