Court of Appeals of Texas, Ninth District, Beaumont
Submitted on November 19, 2018
Appeal from the 410th District Court, Montgomery County,
Texas Trial Cause No. 16-02-01225-CV
Kreger, Horton and Johnson, JJ.
CHARLES KREGER JUSTICE
single issue, Toni Sharretts Collins appeals the trial
court's award of summary judgment in favor of William
Zolnier. Collins sued Zolnier for defamation regarding
communication Zolnier had with his court appointed Chapter 7
bankruptcy trustee about Collins, an attorney who represents
a creditor in the bankruptcy proceeding. Collins argues that
the trial court erred when it determined that Zolnier's
communication to the bankruptcy trustee was privileged
communication made during a judicial proceeding and granted
Zolnier's motion for summary judgment. We affirm the
trial court's judgment.
several years, Zolnier leased a building from Collins's
client (Landlord) to house his mattress and furniture store
in Montgomery County. In 2014, Landlordsued Zolnier for
delinquent rental payments, and after a jury trial, was
awarded a monetary judgment. After the judgment, Zolnier
filed for Chapter 7 bankruptcy, and a bankruptcy trustee was
appointed by the court to evaluate his debt and to determine
whether to recommend to the Federal Bankruptcy Court a
discharge of Zolnier's debt, subject to the various
creditor's objections. Landlord was named as a creditor
in the bankruptcy proceeding. Collins represented Landlord in
the bankruptcy proceeding, and Landlord was the only creditor
who objected to the discharge of debt. Zolnier sent a letter
to the bankruptcy trustee describing his history with
Landlord and Collins, including his belief regarding the
Landlord's motivation to sue him for the delinquent
rental payments. In the letter to the bankruptcy trustee,
Zolnier references Landlord, the Landlord's ex-wife, and
Collins and makes statements regarding alleged criminal
history and drug use.
the letter was published in the course of the bankruptcy
proceedings, Collins sued Zolnier in Montgomery County for
defamation, arguing that Zolnier's defamatory statements
"were made intending to injure [Collins's] good
reputations (sic), record and professional career and expose
[Collins] to impeach [Collins's] honesty, integrity,
virtue and reputation." Zolnier moved for summary
judgment on Collins's claims arguing the communication to
the bankruptcy trustee was made in the course of a judicial
proceeding and was "absolutely privileged." The
trial court granted Zolnier's motion for summary judgment
and Collins timely filed this appeal.
Standard of Review
review the granting of a summary judgment under a de
novo standard. SeaBright Ins. Co. v. Lopez, 465
S.W.3d 637, 641 (Tex. 2015) (citation omitted). The moving
party must prove no genuine issue of material fact exists,
and it is entitled to judgment as a matter of law.
Tex.R.Civ.P. 166a(c); Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,
548 (Tex. 1985). We review the evidence "in the light
most favorable to the party against whom the summary judgment
was rendered, crediting evidence favorable to that party if
reasonable jurors could, and disregarding contrary evidence
unless reasonable jurors could not." Mann
Frankfort, 289 S.W.3d at 848 (citing City of Keller
v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson
v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208
(Tex. 2002)). If a movant produces evidence entitling it to
summary judgment, the burden shifts to the nonmovant to
present evidence raising a genuine issue of material fact.
Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996)
common law and statutes provide certain defenses and
privileges to defamation claims." Neely v.
Wilson, 418 S.W.3d 52, 62 (Tex. 2013) "Further, the
common law has recognized a judicial proceedings privilege
since at least 1772 for parties, witnesses, lawyers, judges,
and jurors." Id. (citations omitted).
Communications related to a judicial proceeding are
privileged and any claims for defamation based on those
communications are prohibited. Patterson v.
Marcantel, No. 09-16-00173-CV, 2017 WL 4844514, *17
(Tex. App.-Beaumont Oct. 26, 2017, no pet.) (mem. op.)
(citing Deuell v. Tex. Right to Life Comm., Inc.,
508 S.W.3d 679, 689 (Tex. App.-Houston [1st Dist.] 2016, pet.
denied)). "This privilege…attaches to all aspects
of the proceeding, including statements made in open court,
pre-trial hearings, depositions, affidavits, and any
pleadings or other papers in the case." Id.
(citing James v. Brown, 637 S.W.2d 914, 916-917
(Tex. 1982); Reagan v. Guardian Life Ins. Co., 166
S.W.2d 909, 912 (Tex. 1942)). "Whether an alleged
defamatory statement is related to a proposed or existing
judicial or quasi-judicial proceeding, and is therefore
absolutely privileged, is a question of law."
5-State Helicopters, Inc. v. Cox, 146 S.W.3d 254,
257 (Tex. App.-Fort Worth 2004, pet. denied) (citations
omitted). We resolve all doubts in favor of the
communication's relation to the proceeding. See
id. (citations omitted).
does not contest that the bankruptcy proceeding is a judicial
proceeding. While not directly addressed by Texas courts, we
note that other jurisdictions have recognized that a judicial
proceeding, as required to claim the absolute privilege
against a suit for defamation, includes bankruptcy
proceedings. See Lee v. Nash, 65 Or.App. 538, 541,
671 P.2d 703, 705 (1983) (citations omitted) (stating there
is an absolute privilege to "publish defamatory matter
concerning another in communications during the course of and
as part of a judicial proceeding, including a bankruptcy
proceeding."); Friedman v. Alexander, 79 A.D.2d
627, 628, 433 N.Y.S.2d 627, 628 (A.D.2d 1980) (citation
omitted) ("Undoubtedly, a bankruptcy proceeding is in
the nature of a judicial proceeding."); Ganassi v.
Buchanan Ingersoll, P.C., 373 Pa.Super. 9, 22,
540 A.2d 272 (1988) (citations omitted) (Affidavits filed in
connection with a bankruptcy proceeding were "made in
the course of a judicial ...