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Collins v. Zolnier

Court of Appeals of Texas, Ninth District, Beaumont

May 30, 2019


          Submitted on November 19, 2018

          On Appeal from the 410th District Court, Montgomery County, Texas Trial Cause No. 16-02-01225-CV

          Before Kreger, Horton and Johnson, JJ.



         In a 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.

         I. Background

         For several years, Zolnier leased a building from Collins's client (Landlord) to house his mattress and furniture store in Montgomery County. In 2014, Landlord[1]sued 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.

         After 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.

         II. Standard of Review

         We 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) (citation omitted).

         III. Analysis

         "The 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).

         A. Judicial Proceeding

         Collins 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 ...

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