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concluding plaintiff could not prevail in defamation suit by alleging defendant "committed an offense" under section 261.107 because subsection (c) allows for prosecution of offense only by county prosecuting attorney
Summary of this case from In re M.M.Opinion
No. 05-04-00294-CV
Opinion issued April 12, 2005.
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-2172-03.
Affirmed.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
MEMORANDUM OPINION
Mary Anne Colt appeals the trial court's take-nothing judgment in favor of Lynne Hamner. Colt generally contends the trial judge erred in denying her defamation claim because Hamner (i) violated sections 261.101 and 261.107 of the family code and (ii) made false statements about Colt. For the reasons that follow, we affirm the trial court's judgment.
Texas Rule of Appellate Procedure 38 provides that a brief to this Court shall contain, among other things, a concise, nonargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contention made with appropriate citations to authorities and the record. Tex.R.App.P. 38.1; McIntyre v. Wilson, 50 S.W.3d 674, 682 (Tex.App.-Dallas 2001, pet. denied). Bare assertions of error, without argument or authority, waive error. See Sullivan v. Bickel Brewer, 943 S.W.2d 477, 486 (Tex.App.-Dallas 1995, writ denied); see also Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (appellate court has discretion to waive point of error due to inadequate briefing). When a party fails to adequately brief a complaint, she waives the issue on appeal. Devine v. Dallas County, 130 S.W.3d 512, 514 (Tex.App.-Dallas 2004, no pet.); Howell v. T S Communications, Inc., 130 S.W.3d 515, 518 (Tex.App.-Dallas 2004, no pet.).
Colt sued Hamner for defamation. In her appellate brief, Colt's arguments are difficult to comprehend. She does not offer any legal analysis or discussion regarding defamation nor does she cite a single case involving defamation. She does not point this Court to where in the trial court record she proved the elements of defamation. In sum, Colt has failed to provide us with argument, analysis, or authorities that make her appellate complaint viable. See Howell, 130 S.W.3d at 518. Moreover, throughout her brief, Colt cites us to documents found in the brief's appendices, but that are not included in the appellate record. We cannot, however, consider documents that are not part of the appellate record. See Adams v. Reynolds Tile Flooring, Inc., 120 S.W.3d 417, 423 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (stating that attachment of documents as appendices to briefs does not constitute formal inclusion in appellate record). By failing to adequately brief her complaints, Colt has waived her appellate issues. See Sullivan, 943 S.W.2d at 486 (concluding appellant had waived points not supported by argument and authority).
Even assuming we broadly construe Colt's issues, we would nevertheless conclude her complaints lack merit. To prevail on a claim of defamation, a plaintiff must prove the defendant: (i) published a statement (ii) that was defamatory concerning the plaintiff (iii) while acting with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998) (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989) and New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)).
Our review of the record shows Colt did not introduce evidence or produce witnesses who testified to any of the elements of defamation. Because the record does not contain any evidence establishing a single element of Colt's defamation claim, we cannot conclude the trial judge erred in entering judgment in favor of Hamner.
Finally, to the extent Colt appeals the judgment in Hamner's favor because Hamner violated sections 261.101 and 261.107 of the Texas Family Code, we note that these statutes do not create private causes of action; rather, their enforcement is the responsibility of the "appropriate county prosecuting attorney." Tex. Fam. Code Ann. § 261.107(c) (Vernon 2002); see Tex. Fam. Code Ann. § 261.109 (Vernon 2002). Thus, Colt could not prevail in her defamation suit on the ground that Hamner "broke" section 261.101 or "committed an offense" under section 261.107. Accordingly, we overrule Colt's appellate issues.
We affirm the trial court's judgment.