Opinion
No. 05-01-01140-CV.
Opinion Filed January 8, 2003.
Appeal from the 95th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DV98-04099-D.
AFFIRMED.
Before Justices MORRIS, MOSELEY, and FRANCIS.
MEMORANDUM OPINION
Linda Sprowl appeals a take-nothing summary judgment granted to appellees Carrie Lou Taylor, Cynthia Brown, Steve Brown, Ann Cade, Ron McBride, Luther Lee, Jr., Dwayne Steadman, Martha Berry, Danny Hammett, Douglas Tarver, and Lana Gregg on Sprowl's claims for slander, libel, disclosure of public affairs, casting private affairs in false light, intentional infliction of emotional distress, and conspiracy to commit the previously-named torts. Among other things, Sprowl contends the trial court erred in granting summary judgment against her because her claims were not barred by collateral estoppel and she presented sufficient evidence to support each element of her various causes of action. For the reasons that follow, we affirm the trial court's judgment.
The Natchitoches High School Class of 1966 held its 31-year class reunion on May 23-24 1997 in Natchitoches, Louisiana. Sprowl, a member of the 1966 class, helped organize the reunion. Sprowl also handled the finances for the reunion, collecting the registration fees for those planning to attend the event and paying reunion-related expenses. After the reunion, Sprowl stopped payment on two checks she had tendered for reunion-related services and sent replacement checks for a substantially lesser amount with letters detailing the reasons for her unilateral payment reduction. She also failed to pay other class members the amounts they requested for various reunion-related expenses and services.
Sprowl sued appellees after they challenged Sprowl's disposition of reunion funds. In her petition, Sprowl alleged that prior to the reunion, "Taylor made accusations to third parties that [Sprowl] would probably `pocket' the money." Sprowl also alleged a June 1 letter, signed on behalf of the reunion committee and participants, was filled with defamatory accusations. Sprowl specifically complained about the following statements in the letter: "The reunion committee and participants are so appalled with your actions and behavior . . . we find it necessary to publicly reprimand you for what we feel is behavior unfitting our class." Sprowl also alleged the letter accused her of "stealing funds, skipping town, breaching agreements and committing acts which they believed constituted criminal conduct."
After Sprowl filed her lawsuit, appellees Taylor and Berry were designated representative plaintiffs in a class action lawsuit filed against Sprowl in Louisiana seeking an accounting and damages for breach of fiduciary duty arising out of Sprowl's handling of the reunion funds. Although Sprowl was duly served with the Louisiana lawsuit, she did not file an answer. The plaintiffs in the Louisiana case later obtained a judgment against Sprowl. In a ruling from the bench on August 30, 1999, the Louisiana trial court found, among other things, that Sprowl "attempted to collect debts that were not due, knowingly misrepresented the debts, when she knew they were non-existent, and has attempted to perpetrate lies upon the plaintiffs herein by representing to the plaintiffs that certain debts had been paid twice, when in fact they had not." The court further found that Sprowl received more funds than what was spent on the reunion and was obligated to return $2,479.19 to the plaintiffs.
After judgment was entered in the Louisiana case, appellees filed various motions for summary judgment in the Dallas lawsuit before us. The trial court ultimately granted summary judgment in favor of appellees on all of Sprowl's causes of action. This appeal followed.
Although Sprowl lists ten "issues" in her brief, we have addressed only those that are necessary to dispose of this appeal. Initially, we note that to the extent Sprowl complains about (1) the trial court's striking her amended petition alleging additional new causes of action not addressed in the summary judgment motions and (2) the denial of her motion for continuance, she presents no argument or authority to support her position that the trial court's actions were improper. Consequently, appellant has waived these issues. See Tex.R.App.P. 38.1(h); Kang v. Hyundai Corp., 992 S.W.2d 499, 503 (Tex.App.-Dallas 1999, no pet.). We further note that although Sprowl asserted various claims in her original petition, her appellate brief raises issues only regarding the trial court's summary judgment against her claims for defamation, conspiracy to defame, and intentional infliction of emotional distress. Since she did not did not raise any issue regarding the trial court's summary judgment against her claims for disclosure of public affairs, casting private affairs in false light, conspiracy to commit these torts and conspiracy to commit intentional infliction of emotional distress, these claims are not before us and we express no opinion about them.
Collateral Estoppel
Among other things, appellees moved for summary judgment on the grounds that Sprowl's claims in the Dallas case were barred by collateral estoppel as a result of the factual findings made in the Louisiana lawsuit. Sprowl contends collateral estoppel cannot preclude her claims because the Louisiana lawsuit (1) is not a prior action, (2) did not fully litigate the issues raised because her attorney never filed an appearance in the case, and (3) did not fairly litigate the issues because the judgment was based on fraudulent evidence and testimony.
Collateral estoppel will bar the re-litigation of ultimate issues of fact actually litigated and essential to the judgment in a prior suit, regardless of whether the second suit is based upon the same cause of action. See Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984). To successfully assert collateral estoppel it must be shown (1) the facts sought to be litigated in the second suit were fully and fairly litigated in the first action, (2) those facts were essential to the first judgment and (3) the parties were cast as adversaries in the first suit. Rexrode v. Bazar, 937 S.W.2d 614, 617 (Tex.App.-Amarillo 1997, no pet.).
Sprowl first argues that collateral estoppel is inapplicable because the Louisiana lawsuit was filed four months after the Dallas lawsuit before us. Sprowl has cited no authority, however, and we have found none, that prevents the application of collateral estoppel in a case merely because the previously adjudicated issues arose in a lawsuit that was instituted after the case in which collateral estoppel is sought. It appears as a matter of logic that the pivotal inquiry for purposes of collateral estoppel is when the issue was heard and decided, not when the lawsuit was filed. We therefore reject Sprowl's timing argument.
Sprowl also argues that the Louisiana matter was never fully litigated because her attorney failed to make an appearance in the case. Specifically, Sprowl argues that in cases of default judgments, none of the issues are actually litigated.
We disagree. For the purposes of collateral estoppel, an issue will not have preclusive effect unless it was "adequately deliberated and firm." See Mower v. Boyer, 811 S.W.2d 560, (Tex. 1991). Factors to consider when making this determination are (1) whether the parties were fully heard, (2) whether the court supported its decision with a reasoned opinion, and (3) whether the decision was subject to appeal or actually reviewed on appeal. Moreover, an issue is actually litigated when it was properly raised by the pleadings, submitted for determination, and determined. Id. at 562. No actual courtroom confrontation is required. Mendez v. Haynes Brinkley Co., 705 S.W.2d 242 (Tex.App.-San Antonio 1986, writ ref'd n.r.e.) (applying collateral estoppel after a default judgment).
The summary judgment evidence reveals that Sprowl was duly served with the Louisiana lawsuit and even wrote a letter to the clerk of the Louisiana court regarding the case. However, Sprowl did not file a responsive pleading to the action. The petition in the Louisiana case seeking damages against Sprowl for breach of fiduciary duty certainly contemplated a determination on whether Sprowl's disposition of the reunion funds was proper. The record also includes a transcription of the Louisiana trial judge's ruling from the bench containing specific findings regarding Sprowl's action regarding the reunion funds. Moreover, the Louisiana judgment recites that the case was set for trial and that evidence was adduced. Finally, Sprowl acknowledges in her brief that her attorney committed to appeal the Louisiana judgment if necessary but did not do so. Based on the record before us, we conclude that the factual findings made in the Louisiana judgment were actually litigated.
Finally, Sprowl contends the Louisiana matter was never fairly litigated because the judgment was based on fraudulent evidence and testimony. Under this issue, Sprowl complains about "Taylor's aggravated perjury" and "Gresham's tampered trial evidence." The fraud Sprowl alleges, however, is intrinsic fraud. Intrinsic fraud relates to issues that are inherent and could have been resolved in the original proceeding. See Ince v. Ince, 58 S.W.3d 187, 190 (Tex.App.-Waco 2001, no pet.). Because intrinsic fraud does not prevent the full and fair opportunity to litigate the issues presented, it does not bar the application of collateral estoppel. See Delese v. Albertson's Inc., 83 S.W.3d 827, 831(Tex.App.-Texarkana 2002, no pet.). Having rejected all of Sprowl's arguments regarding the application of collateral estoppel to her defamation claims, we cannot conclude the trial court erred in granting summary judgment on Sprowl's libel and slander claims. For these same reasons, Sprowl has not shown summary judgment was improper on her claims for conspiracy to commit slander and libel. See Hunt v. Baldwin, 68 S.W.3d 117, 133 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (conspiracy claim is a derivative tort that depends on liability of underlying tort).
Intentional infliction of emotional distress
Sprowl also contends the trial court erred in granting summary judgment on her claim for intentional infliction of emotional distress because she met the burden of producing competent summary judgment evidence on each of the necessary elements. Although her argument under this issue is supported by case law, Sprowl has not provided a single record citation pointing to specific summary judgment evidence that would raise genuine issues of material fact on each of the elements of intentional infliction of emotional distress. This court is not required to conduct an independent search of the six-volume clerk record and supplemental clerk's record without direction from Sprowl to determine whether the trial court erred in granting summary judgment on this claim. See Two Thirty Nine J.V. v. Joe, 60 S.W.3d 896, 929 (Tex.App.-Dallas 2001, pet. filed). Thus, Sprowl has waived this argument, and we affirm the trial court's judgment as to this cause of action.
Because Sprowl's libel, slander, and related conspiracy claims are barred by collateral estoppel, Sprowl has not shown the trial court erred in granting summary judgment on her claim for intentional infliction of emotional distress, and Sprowl failed to challenge the other causes of action on which the trial granted summary judgment, we affirm the trial court's judgment in all respects.