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Velzer v. ZB, National Association

Court of Appeals of Texas, First District

November 21, 2019

DAVID VAN VELZER, Appellant
v.
ZB, NATIONAL ASSOCIATION D/B/A AMEGY BANK, AND AS SUCCESSOR BY MERGER, AND FRED HILTON, Appellees

          On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2018-53341

          Panel consists of Justices Kelly, Hightower, and Countiss.

          MEMORANDUM OPINION

          JULIE COUNTISS JUSTICE

         Appellant, David Van Velzer, challenges the trial court's orders dismissing his suit against appellees, ZB, National Association, doing business as Amegy Bank, and as successor by merger ("Amegy"), and Fred Hilton (collectively, "appellees"), for fraud, intentional infliction of emotional distress, defamation, conspiracy and violations of the Deceptive Trade Practices Act ("DTPA").[1] In his sole issue, Van Velzer contends that the trial court erred in dismissing his claims against appellees.

         We affirm.

         Background

         In his petition, Van Velzer alleged that on July 12, 2012, Amegy filed suit against him "regarding a business [V]isa credit card debt." Thereafter, Van Velzer "went to Amegy's office . . . and saw that [an] Amegy Business Visa application . . . did not contain [his] signature and was a forgery." Van Velzer then "went to the Houston Police Department and filed a report." Subsequently, Van Velzer "showed Amegy's attorney . . . the police report and[] . . . asked him to drop and dismiss [Amegy's] suit." In response, Amegy's attorney told Van Velzer that Amegy was "going to continue to prosecute the case." Thus, Van Velzer alleged that, although Amegy "became aware that Van Velzer's identity had been stolen and he was not liable for the . . . unpaid [amount owed] by the actual borrower," it persisted in pursuing its suit against him. Later, Van Velzer discovered "several other fraud accounts on his credit report and notified [his other] creditors."

         Van Velzer further alleged that "[t]he stress inflicted upon [him] was overwhelming while [he] investigated th[e] Visa account[] opened by someone who had stolen [his] identity." And he had "some alarming symptoms that caused him to visit his medical provider," who "prescribed [him] Valium due to" Amegy's suit. Further, "[t]he Visa application that contained Van Velzer's personal information, typed by some unknown person caused Van Velzer to lose wages from his job, stress, high blood pressure, and intense emotional distress because of Amegy's unrelenting pursuit of compensation from Van Velzer." Amegy's suit against Van Velzer was "frustrating, embarrassing, and financially devastating."

         Amegy continued to pursue its suit against Van Velzer for two years and refused to participate in mediation. However, on April 1, 2014, Amegy dismissed its case against him and "issued Van Velzer a Form 1099[] that reported $25, 000 as income for the cancellation of the debt." According to Van Velzer, the "Form 1099" issued by Amegy and filed with the Internal Revenue Service was false, and Amegy "still reports the $25, 000 [V]isa on Van Velzer's business credit report to th[e] [present] day." Van Velzer brought claims against appellees for fraud, intentional infliction of emotional distress, defamation, conspiracy and violations of the DTPA. Van Velzer alleged that, Hilton, as Amegy's vice-president at the time, "participated in the activities of Amegy . . . in the attempts to collect money from Van Velzer."

         Appellees filed general denials, asserting various affirmative defenses. Further, appellees filed Motions to Dismiss Based on Immunity from Suit and Alternative Motions for Summary Judgment, asserting that Van Velzer's claims against them all "aris[e] from a 2012 lawsuit filed by Amegy in Texas County Civil Court styled Cause No. 1014172, Amegy Nat'l Bank Assn. v. Van Velzer" and appellees were "immune" from Van Velzer's claims as a matter of law because communications made in connection with a judicial or quasi-judicial proceeding are "absolute[ly] privilege[d]." Specifically, the "privilege extends to any statement made by the . . . parties[] . . . and attaches to all aspects of the proceedings," and when an "absolute privilege applies," it functions as either a "principle of immunity" or an affirmative defense. Because Van Velzer's "various claims aris[e] from" Amegy's 2012 suit against Van Velzer, appellees requested that the trial court dismiss all of his claims against them.[2]

         Van Velzer responded with an Opposition to Appellees' Motions to Dismiss, asserting that there was "no relation nor was there any 'judicial proceeding' relative to the false statements promulgated by" appellees, appellees did not enjoy immunity, an "absolute privilege," or a "qualified privilege," and appellees "may have committed a criminal act." (Emphasis omitted.) Van Velzer requested that the trial court deny appellees' motions to dismiss.

         Subsequently, appellees filed a joint Motion to Dismiss under the Texas Citizens Participation Act ("TCPA"), [3] asserting that Van Velzer's claims were "based on, related to, or in response to [their] exercise of . . . [their] right to petition" and should be dismissed.[4] Appellees further asserted that Van Velzer could not "establish by clear and specific evidence a prima facie case for each essential element of his claims."[5] Appellees attached exhibits to their motion. Van Velzer did not respond to appellees' motion.

         The trial court granted appellees' Motions to Dismiss Based on Immunity from Suit and Alternative Motions for Summary Judgment, dismissing all of Van Velzer's claims against appellees. The trial court also granted appellees' joint Motion to Dismiss under the TCPA and awarded appellees' attorney's fees.[6]

         Standard ...


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