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Rodriguez v. Ginsburg

Court of Appeals of Texas, Fifth District, Dallas

August 26, 2019

ROBERT RODRIGUEZ, Appellant
v.
SCOTT GINSBURG, Appellee

          On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-04978-2015

          Before Justices Schenck, Osborne, and Reichek

          MEMORANDUM OPINION

          LESLIE OSBORNE, JUSTICE

         Robert Rodriguez appeals the trial court's final summary judgment in favor of Scott Ginsburg. In three issues, Rodriguez argues the trial court erred when it: (1) granted Ginsburg's traditional motion for summary judgment; (2) granted Ginsburg's no-evidence motion for summary judgment; and (3) signed conflicting rulings on Ginsburg's and Rodriguez's objections to the summary judgment evidence and sustained all of Ginsburg's objections to Rodriguez's summary judgment evidence. We conclude the trial court did not err when it granted Ginsburg's traditional and no-evidence motions for summary judgment. The trial court's final summary judgment is affirmed.

         I. FACTUAL AND PROCEDURAL CONTEXT

         In November 1998, Ginsburg and Rodriguez signed an employment agreement where Boardwalk Motorcars L.P. hired Rodriguez as the vice president or general manager of its Porsche dealership. Boardwalk added additional dealerships over time. In March 2007, Rodriguez's employment with Boardwalk was terminated. Also in March 2007, Ginsburg, Boardwalk Motor Cars Ltd. d/b/a Boardwalk Porsche, and Boardwalk Automobiles Ltd. d/b/a Boardwalk Audi filed suit against Rodriguez and others, alleging, in part, that Rodriguez embezzled funds (cause no. 296-982-07 in the 296th Judicial District of Collin County, Texas). Rodriguez answered the lawsuit and alleged counterclaims against Ginsburg and Boardwalk.

         A grand jury indicted Rodriguez for the offense of misapplication of fiduciary property in December of 2007, and he was re-indicted for the same offense two more times in 2008. See Tex. Penal Code Ann. § 32.45. During this time frame, Ginsburg provided the Collin County District Attorney's Office with information relating to Rodriguez.

         On September 11, 2008, Ginsburg and Rodriguez settled their claims in cause no. 296-982-07. As consideration for their written settlement agreement inclusive of a release of "All Claims," the parties agreed, in part, not to sue one another for any claims. That release provision notwithstanding, the parties' written settlement agreement specifically excluded claims for breach of that agreement.

         Following the settlement agreement, Ginsburg continued to provide the Collin County District Attorney's Office with information relating to Rodriguez; Rodriguez was re-indicted five more times, with the State filing motions to amend some of the indictments. In February 2015, the Collin County District Attorney's Office exercised its discretion to prosecute and tried Rodriguez for the charges in the surviving indictments. Ginsberg testified for the prosecution at Rodriguez's trial, but the jury found Rodriguez not guilty and he was acquitted.

         On December 7, 2015, Rodriguez filed his original petition against Ginsburg alleging a claim for malicious criminal prosecution. Ginsburg answered the lawsuit by generally denying the allegations and asserting several affirmative defenses, including release. On May 4, 2016, Rodriguez filed his first amended petition, adding a claim for continuing breach of contract against Ginsburg and asserting the counter-affirmative defense of failure of consideration to overcome Ginsburg's affirmative defense of release. Ginsburg filed a supplemental answer asserting, inter alia, the additional affirmative defense of immunity.

         On May 31, 2017, Ginsburg filed his amended no-evidence and traditional motion for summary judgment, seeking: (1) no-evidence summary judgment on Rodriguez's claims for malicious criminal prosecution and continuing breach of contract, and his counter-affirmative defense of failure of consideration; and (2) sought traditional summary judgment on his affirmative defenses of release and immunity, and Rodriguez's claims for malicious criminal prosecution and continuing breach of contract. Rodriguez filed a response to the motion for summary judgment. With respect to Ginsburg's no-evidence motion, Rodriguez argued that he offered evidence for each challenged element of his claims for malicious criminal prosecution and continuing breach of contract, and his counter-affirmative defense of failure of consideration. As to Ginsburg's traditional motion for summary judgment, Rodriguez argued, in part, that "Ginsburg's [] affirmative defense of release must be denied due to [his counter-affirmative defense of] failure of consideration." Rodriguez did not file a competing motion for summary judgment on his claims or counter-affirmative defense of failure of consideration. However, Rodriguez did make objections to Ginsburg's summary-judgment evidence. On July 17, 2017, Ginsburg filed his objections to Rodriguez's summary judgment evidence.

         On August 4, 2017, the trial court signed an order sustaining Ginsburg's objections to Rodriguez's summary judgment evidence and granting his no-evidence and traditional motion for summary judgment. The record does not show that Rodriguez sought a ruling on his objections to Ginsburg's summary judgment evidence.

         On September 1, 2017, Rodriguez filed a motion to reconsider and a motion to rule on Rodriguez's objections to Ginsberg's summary judgment evidence. On November 16, 2017, the trial court vacated its August 4, 2017 order granting summary judgment and set a date when all objections and responses to the summary judgment evidence were due. Ultimately, the trial court sustained all of the parties' objections and reinstated its August 4, 2017 order granting summary judgment.

         II. SUMMARY JUDGMENT

         In issue one, Rodriguez argues the trial court erred when it granted Ginsburg's traditional motion for summary judgment because: (1) Ginsburg failed to conclusively establish his right to judgment, as a matter of law, on Rodriguez's claims for malicious criminal prosecution and continuing breach of contract, and Ginsburg's affirmative defense of release; and (2) Rodriguez produced evidence raising an issue of material fact precluding summary judgment on his claim for continuing breach of contract. In issue two, Rodriguez argues the trial court erred when it granted Ginsburg's no-evidence motion for summary judgment because Rodriguez produced evidence as to each element of his claims for malicious criminal prosecution and continuing breach of contract, and his counter-affirmative defense of failure of consideration.

         A. Standard of Review

         An appellate court reviews the grant of summary judgment de novo. See Masterson v. Diocese of Nw. Tex., 422 S.W.3d 594, 607 (Tex. 2013). When reviewing both traditional and no-evidence summary judgments, an appellate court considers the evidence in the light most favorable to the non-movant. See Smith v O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009); 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). When a party has moved for summary judgment on both no-evidence and traditional grounds, an appellate court generally addresses the no-evidence motion first. See Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Kennedy v. Harber, No. 05-17-01217-CV, 2018 WL 3738091, at *3 (Tex. App.-Dallas Aug. 7, 2018, no pet.) (mem. op.). However, when the traditional motion is clearly dispositive of issues in the motion, an appellate court may look to it first on those issues. See Kennedy, 2018 WL 3738091, at *3. When a trial court's order does not specify the grounds for its summary judgment, an appellate court must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. See Provident Life & Acc. Ins. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 365 (Tex. App.-Dallas 2009, pet. denied).

         1. Traditional Summary Judgment

         In a traditional motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). Specifically, for a defendant to be entitled to traditional summary judgment, he must conclusively negate at least one essential element of each of the plaintiff's cause of action or conclusively establish each element of an affirmative defense. See Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Evidence is conclusive only if reasonable people could not differ in their conclusions. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

         In a traditional summary judgment, the burden of proof does not shift and the non-movant has no burden to respond unless and until the movant has conclusively established his entitlement to summary judgment on his cause of action or affirmative defense as a matter of law. See Rhone- Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999); Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989). However, once the movant proves a right to summary judgment, the burden shifts to the non-movant to raise a genuine issue of material fact sufficient to defeat summary judgment. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Further, if the non-movant opposes the summary judgment by relying on an affirmative defense or counter-affirmative defense, he must produce summary judgment evidence sufficient to raise an issue of fact on each element of that affirmative defense to avoid summary judgment. See Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).

         2. No-Evidence Summary Judgment

         The no-evidence motion for summary judgment must specifically state the elements for which there is no evidence. Tex.R.Civ.P. 166a(i); Bever Props., L.L.C. v. Jerry Huffman Custom Builder, L.L.C., 355 S.W.3d 878, 888 (Tex. App.-Dallas 2011, no pet.). The non-movant then has the burden to produce more than a scintilla of summary judgment evidence that raises a genuine issue of material fact as to each challenged element. Tex.R.Civ.P. 166a(i) & cmt. 1997; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). Summary judgment is improper if the non-movant presents more than a scintilla of evidence supporting the disputed issue. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). More than a scintilla of evidence exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. Id. Less than a scintilla of evidence exists if the evidence is so weak that it does no more than create a mere surmise or suspicion of a fact. Id.

         B. Traditional Summary Judgment on the Affirmative Defense of Immunity Based on Absolute Privilege

         In part of issue one, Rodriguez argues the trial court erred when it granted Ginsburg's traditional motion for summary judgment because Ginsburg failed to conclusively establish his right to judgment, as a matter of law, on Rodriguez's claim for continuing breach of contract and he produced evidence raising an issue of material fact precluding summary judgment. On appeal, Rodriguez does not directly challenge the granting of traditional summary judgment as to his claim for breach of contract on Ginsburg's affirmative defense of immunity based on absolute privilege. However, we note that, within the section of his brief challenging traditional summary judgment on Rodriguez's claim for malicious criminal prosecution with respect to the element of malice, Rodriguez addresses conditional privilege.

         1. Applicable Law

         It is well settled that we must affirm a summary judgment if the appellant fails to challenge every independent ground on which the judgment might be based. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); see also St. John Missionary Baptist Church v. Flakes, 547 S.W.3d 311, 313-18 (Tex. App.-Dallas 2018, pet. pending) (en banc) (applying rule to a motion to dismiss and plea to the jurisdiction). The term "grounds" means the reasons that entitle the movant to summary judgment, in other words, "why" the movant should be granted summary judgment. EMF Swiss Avenue L.L.C. v. Peak's Addition Home Owners' Ass'n, No. 05-17-01112-CV, 2018 WL 6836715, at *5 (Tex. App.-Dallas Dec. 28, 2018, pet. filed); Garza v. CTX Mortg. Co., 285 S.W.3d 919, 923 (Tex. App.-Dallas 2009, no pet.).

         2. Application of the Law to the Facts

         In the trial court, Ginsburg sought traditional summary judgment, in part, on Rodriguez's claim for continuing breach of contract and his affirmative defense of immunity based on absolute privilege as to that claim as well as Rodriguez's counter-affirmative defense of failure of consideration. Under the heading "Ginsburg did not engage in any conduct violative of the settlement agreement, and he is immune from suit based on his testimony in Rodriguez's criminal trial," Ginsburg argued, in part, that "[Rodriguez] admitted that other than Ginsburg's February 2015 testimony in the criminal proceedings, Rodriguez did not know of any other action or statement that he alleged was a breach of the settlement agreement. And . . . Ginsburg is entitled to absolute immunity for any testimony in the criminal proceedings." (Emphasis added.) In his response to the traditional motion for summary judgment, Rodriguez did not address Ginsburg's affirmative defense of immunity based on absolute privilege.

         On appeal, as previously noted, Rodriguez does not directly challenge the granting of traditional summary judgment as to Ginsburg's affirmative defense of immunity based on absolute privilege. Rather, Rodriguez addressed privilege as follows:

Because the application of the doctrine of "absolute privilege" could possibly be used improperly as a sword (as Ginsburg attempts to do in the present case), rather than properly as a shield, Texas courts and the Restatement of the Law on torts have long distinguished between it, for communications made during judicial and quasi-judicial proceedings, and the qualified, or conditional privilege, for communications made in the public interest. [Citations omitted.]
Not all communications to public officials are absolutely privileged, but may yet warrant protection to as being conditionally privileged: An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that (a) there is information that affects a sufficiently important public interest, and (b) the public interest requires the communication of the defamatory matter to a public officer or a private citizen who is authorized or privileged to take action if the defamatory matter is true. [Citations omitted.] This privilege is lost if abused, such as when the statement is made with malice and with knowledge of its falsity.

(Emphasis in orig.) Even if we liberally construe Rodriguez's argument to address the granting of traditional summary judgment on Ginsburg's affirmative defense of immunity as to Rodriguez's claim for breach of contract, that argument addressed the applicability of conditional privilege, not absolute privilege.[1] Texas law recognizes two classes of privilege‒absolute privilege and conditional or qualified privilege‒and an absolute privilege is more properly thought of as an immunity while conditional privileges are "true privileges." See, e.g., Shell Oil Co. v. Writt, 464 S.W.3d 650, 654 (Tex. 2015). As a result, Rodriguez did not challenge the granting of traditional summary judgment on Ginsburg's affirmative defense of immunity based on absolute privilege.

         Because Rodriguez does not challenge the traditional summary judgment as to Ginsburg's affirmative defense of immunity based on absolute privilege, we decide part of issue one against Rodriguez.[2] Accordingly, we need not address Rodriguez's remaining arguments relating to his claim for continuing breach of contract.

         C. Traditional Summary Judgment on the Affirmative Defense of Release as to Malicious Criminal Prosecution Claim and No-Evidence Summary Judgment on the Counter-Affirmative Defense of Failure of Consideration

         In part of issue one and part of issue two, Rodriguez argues the trial court erred when it granted: (1) Ginsburg's traditional motion for summary judgment on Ginsburg's affirmative defense of release as to Rodriguez's claim for malicious criminal prosecution; and (2) Ginsburg's no-evidence motion for summary judgment on Rodriguez's counter-affirmative defense of failure of consideration.

         1. Affirmative Defense of Release as to Claim for ...


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