Helen Mayfield v. the Eagle Newspaper, Holly Huffman, Matthew Watkins & John P. Barnwell, CEO of the Evening Post Publishing Co.

Affirmed and Memorandum Opinion filed August 19, 2014.

In The

Fourteenth Court of Appeals

NO. 14-12-00034-CV

HELEN MAYFIELD, Appellant
V.

THE EAGLE NEWSPAPER, HOLLY HUFFMAN, MATTHEW WATKINS,
AND JOHN P. BARNWELL, CEO OF
THE EVENING POST PUBLISHING CO., Appellees

On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2011-26254

MEMORANDUM OPINION

Appellant, Helen Mayfield, sued appellees, an entity she named as “The
Eagle Newspaper,”1 Holly Huffman, Matthew Watkins, and John P. Barnwell,
Chief Executive Officer (CEO) of the Evening Post Publishing Co., for libel,
intentional infliction of emotional distress, and business disparagement based on
1
Although Mayfield named “The Eagle Newspaper,” appellees assert the correct name is
“Bryan-College Station Eagle.” We will refer to it as “The Eagle.”
allegedly defamatory articles about Mayfield published in The Eagle. Mayfield
appeals (1) a summary judgment in favor of appellees on all of Mayfield’s claims,
and (2) an order denying Mayfield’s post-judgment motion for sanctions. We
affirm.

I. BACKGROUND

Mayfield, a disbarred attorney, appears pro se in the present appeal. In
August 2007, she was arrested for multiple counts of felony forgery. In July 2008,
a Brazos County jury convicted Mayfield, and she was sentenced to two years’
confinement in state jail. The Waco court of appeals affirmed the conviction, and
the Texas Court of Criminal Appeals refused Mayfield’s petition for review. See
Mayfield v. State, Nos. 10-08-00292, 293, 294, 295-CR, 2010 WL 2953199 (Tex.
App.—Waco July 28, 2010, pet. ref’d) (mem op., not designated for publication).

At relevant times, appellees Huffman and Watkins were journalists for The
Eagle. Huffman wrote an article about the charges against Mayfield and her arrest,
which was published in The Eagle on August 12, 2007. According to Huffman,
she obtained all of her information regarding Mayfield from “Probable Cause
Statement[s]” which were executed by College Station police officers and publicly
available in the Brazos County district clerk’s office. Watkins wrote several
articles about Mayfield’s trial and conviction, which were published in The Eagle
during July 2008. All of the above-cited articles were published on the Internet
version of The Eagle on the same day they were published in the newsprint
version.

In April 2011, Mayfield sued appellees for libel, alleging the articles were
defamatory. In addition to asserting claims against The Eagle, Huffman, and
Watkins, Mayfield sued Barnwell, alleging he, or the company for which he is
Chief Executive Officer, owned The Eagle. Appellees filed a motion for
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traditional summary judgment on several grounds and set a hearing for December
12, 2011. Three days before the hearing, Mayfield filed two separate documents
that she referred to as her summary judgment response and counter motion for
summary judgment. On the same day, she filed an amended petition, adding
claims for intentional infliction of emotional distress and business disparagement.

On December 12, 2011, the trial court signed an order granting the
appellees’ motion for summary judgment and ordering that Mayfield take nothing
on all of her claims. While the trial court retained plenary power, Mayfield filed a
“Motion for Sanctions” alleging, inter alia, appellees failed to serve her with a
complete copy of the motion for summary judgment or any notice of the hearing
on that motion. Appellees filed a response to the motion for sanctions. On
February 6, 2012, after a hearing, the trial court signed an order denying the
motion for sanctions.

II. ANALYSIS

Mayfield’s appellate brief is deficient in that many of her assertions are
unclear, difficult to understand, and unsupported by record references, argument,
or authorities, as required by the appellate briefing rules. See Tex. R. App. P.
38.1(g), (i).2 However, liberally construing the brief, we glean that Mayfield’s
issues pertinent to this appeal (numbered differently at various points throughout
her brief) fall into three categories: (1) her complaint regarding service of the
motion for summary judgment and notice of hearing; (2) substantive challenges to

2
Additionally, Mayfield includes matters irrelevant to challenging the trial court’s orders
at issue. She essentially attacks her conviction and the actions of authorities relative to the
criminal prosecution. Further, she claims the trial court and appellees altered items in the clerk’s
record and appellees or their counsel burglarized Mayfield’s home to steal her legal files.

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the summary judgment; 3 and (3) an assertion that the district clerk did not file a
complete record in our court.

A. Service of Motion for Summary Judgment and Notice of Hearing

Mayfield contends the trial court erred by granting summary judgment and
denying Mayfield’s motion for sanctions because appellees did not serve her with a
complete copy of the motion for summary judgment and notice of hearing.
Mayfield raised these complaints for the first time in her post-judgment “Motion
for Sanctions,” which, for purposes of this appeal, we will construe as a motion for
both a new trial and sanctions.4

Standard of Review and Applicable Law

When service is by mail, a motion for summary judgment and notice of
hearing shall be filed and served on the non-movant at least twenty-four days
before the time specified for hearing. See Tex. R. Civ. P. 166a(c), 21(a); Lewis v.
Blake, 876 S.W.2d 314, 315–16 (Tex. 1994). We apply the abuse-of-discretion

3
Mayfield also suggests the trial court erred by denying Mayfield’s counter motion for
summary judgment. However, she waived that contention by failing to obtain a ruling on the
counter motion, which was filed only three days before the trial court heard and granted
appellees’ motion. See Tex. R. App. P. 33.1(a)(2)(A).
4
In the motion, Mayfield requested only sanctions based on these complaints and did not
expressly request the trial court to set aside the summary judgment. See Babajide v. Citibank
(South Dakota), N.A., No. 14–04–00064–CV, 2004 WL 2933575, at *1 (Tex. App.—Houston
[14th Dist.] Dec. 21, 2004, no pet.) (mem. op.) (recognizing non-movant seeking to set aside
summary judgment on ground she received no notice of hearing must preserve error in a post-
judgment motion). Relative to a different complaint raised in the motion for sanctions, Mayfield
requested that appellees be precluded from supporting their defenses with certain evidence,
which arguably was an implicit request for a new trial. Then, at the hearing on the motion,
Mayfield represented she was not seeking a new trial, at least on her complaints regarding lack
of service, although appellees acknowledged a “generous” reading of her motion might glean
such a request. Even if we construe the motion as implicitly requesting a new trial based on
these complaints (despite her subsequent representation), the trial court did not abuse its
discretion by denying that request for the same reason it did not abuse its discretion by denying
sanctions.

4
standard when reviewing a trial court’s denial of a motion for new trial alleging the
non-movant was not served with a motion for summary judgment or notice of
hearing. See Dowell v. Theken Spine, LLC, No. 14–07–00887–CV, 2009 WL
1677844, at *3–4 (Tex. App.—Houston [14th Dist.] June 2, 2009, no pet.) (mem
op.).

Additionally, if a party fails to serve on or deliver to the other party a copy
of a motion, in accordance with the rules for service, the trial court may, in its
discretion, after notice and hearing, impose an appropriate sanction. See Tex. R.
Civ. P. 21b. Accordingly, we review a trial court’s denial of sanctions under Rule
21b for abuse of discretion. See id.; Spellmon v. Collins, 970 S.W.2d 578, 580–81
(Tex. App.—Houston [14th Dist.] 1998, no pet.).

A trial court does not abuse its discretion if it bases its decision on
conflicting evidence and some evidence supports its decision. Unifund CCR
Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009). In an abuse-of-discretion
review, the trial court, as fact finder, is sole judge of the credibility of the witnesses
and evidence. Prince v. Am. Bank of Tex., 359 S.W.3d 380, 382 (Tex. App.—
Dallas 2012, no pet.).

The Record

The motion for summary judgment was filed on November 3, 2011. 5 The
filed copy contains a certificate attesting to service on Mayfield the same day via
certified mail, return receipt requested. It is undisputed the summary-judgment
hearing was held on December 12.

In her affidavit attached to the motion for sanctions, Mayfield averred as
follows: on November 3, appellees’ counsel mailed Mayfield “a lot of plain pages

5
All references to dates in this discussion are to 2011.

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and cut off pages” with no certificate of service or conference; and on November
14, counsel mailed Mayfield an envelope “with a Motion for Summary Judgment.”
Mayfield did not aver that the latter motion was incomplete other than stating it
lacked a certificate of service. Mayfield further averred there was no notice of
hearing included with either mailing, although she did not affirmatively state that
she never otherwise received notice. Mayfield attached to her motion for sanctions
what she contends are the incomplete copies of the motion for summary judgment
that she allegedly received.

In response to the motion for sanctions, appellees presented the affidavit of
their counsel who averred,

• On November 3, he sent a true and correct copy of the motion for
summary judgment to Mayfield’s address, as shown on her pleadings, by
certified mail, return receipt requested. Counsel did not receive the
return receipt (“green card”) for that mailing. Therefore, he confirmed on
the postal service website that the mailing was delivered to Mayfield’s
address on November 5.

• When counsel mailed the motion, he had not yet obtained a hearing date
but obtained one later that day. On November 4, he sent a notice
advising the hearing was set for December 12, to Mayfield at the same
address, by certified mail, return receipt requested, and regular mail.
Subsequently, counsel received the green card, signed by “Lucille
Martin” and showing delivery of that mailing on November 5.

• Because counsel did not have a green card for service of the motion, on
November 14, he again sent true and correct copies of the motion and
notice of hearing to Mayfield at the same address, by certified mail,
return receipt requested, and regular mail. He received a green card
signed by Mayfield showing delivery on November 16.

Counsel attached the following to his affidavit: the printed postal service
webpage showing delivery of the motion for summary judgment on November 5;
the green card showing delivery of the notice of hearing on November 5; and the
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green card showing delivery of the motion and notice of hearing again on
November 16.

As counsel mentioned in his affidavit, the green card for the November 16
delivery appears to be signed by “Helen Mayfield,” although the name “J.
Johnson” is printed in the box below the signature. Counsel averred that Mayfield
has written that same name on green cards for other deliveries, including in a
different suit. Counsel attached examples of such green cards to his affidavit.

The trial court held a hearing on the motion for sanctions. At the hearing,
Mayfield did not present any additional evidence; she reiterated she was not served
with a complete motion for summary judgment or notice of hearing and accused
appellees’ counsel of forging Mayfield’s signature on the green cards.

Discussion

In its order denying the motion for sanctions, the trial court recited that it
considered both the motion for sanctions and the response and found that (1)
Mayfield was served with the motion for summary judgment and notice of hearing
on November 14, (2) she received those items on November 16, and (3) her motion
for sanctions was “entirely without merit.” Appellees’ evidence, recited above,
supported the findings. Because Mayfield was served with those items more than
twenty-four days before the summary judgment hearing, the trial court did not
abuse its discretion by denying any motion for new trial and the request for
sanctions.

B. Substantive Challenges to the Summary Judgment

Mayfield’s substantive challenges fall into two general categories: (1) some
of appellees’ summary judgment evidence was inadmissible; and (2) appellees
failed to establish their summary-judgment grounds.

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 1. Admission of Evidence

In one of her stated issues, Mayfield argues her “conviction” and
“documents” from her criminal trial were inadmissible as summary-judgment
evidence under Texas Rule of Evidence 609(e) because appeal of the conviction
was pending in the United States Supreme Court. Rule 609 is wholly inapplicable
in this case; it prescribes circumstances under which a prior criminal conviction is
admissible for purposes of impeaching a witness and provides that pendency of an
appeal renders a conviction inadmissible for that purpose. See Tex. R. Evid. 609,
609(e).

Additionally, in the “Summary of Argument” section of her appellate brief,
Mayfield also complains the probable cause statements presented by appellees
were not certified. We reject this complaint because the summary-judgment rules
provide, “Sworn or certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith.” See Tex. R. Civ. P. 166a(f)
(emphasis added). In her affidavit supporting the motion for summary judgment,
Huffman swore the probable cause statements attached to the motion were true and
correct copies of documents she obtained from the district clerk.

2. Summary Judgment Grounds

Appellees moved for summary judgment on several grounds applicable to all
appellees: (1) the articles were constitutionally and statutorily privileged as
accurate reporting of legal documents and proceedings; (2) the articles were
substantially true; and (3) Mayfield’s claim was barred by the statute of limitations.

Standard of Review and Applicable Law

A party moving for traditional summary judgment must establish there is no
genuine issue of material fact and it is entitled to judgment as a matter of law. See

8
Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d
211, 215–16 (Tex. 2003). A defendant moving for traditional summary judgment
must negate at least one element of each of the plaintiff’s theories of recovery or
plead and conclusively establish each element of an affirmative defense. Science
Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). If the defendant
establishes his right to summary judgment as a matter of law, the burden shifts to
the plaintiff to present evidence raising a genuine issue of material fact. Centeq
Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). We review a summary
judgment de novo. Knott, 128 S.W.3d at 215. We take all evidence favorable to
the nonmovant as true and indulge every reasonable inference and resolve any
doubts in her favor. Id.
When, as in the present case, the movant asserts multiple summary judgment
grounds and the trial court does not specify in the order the ground on which
summary judgment was granted, the appellant must challenge all independent
grounds on appeal, and we may affirm if any ground is meritorious. See Star–
Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). Mayfield has not
established the trial court erred by granting summary judgment on, at least, the
ground that the articles were statutorily privileged. 6

The United States Supreme Court has long recognized a common law
judicial proceedings privilege applicable to a publisher. Neely v. Wilson, 418
S.W.3d 52, 68 (Tex. 2013) (citing Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492,
95 S.Ct. 1029, 43 L.Ed.2d 328 (1975)). In Texas Civil Practice and Remedies
6
Appellees also presented a summary judgment ground, with supporting evidence,
applicable only to Barnwell: neither he nor his company was involved in newsgathering,
reporting, or editing articles for The Eagle, including the articles about Mayfield. We affirm
summary judgment in his favor on that ground because it is unchallenged on appeal. See Star–
Telegram, Inc., 915 S.W.2d at 473. Regardless, our disposition relative to the privilege ground
applies equally to Barnwell.

9
Code section 73.002, entitled “Privileged Matters,” the Texas Legislature codified
the judicial proceedings privilege and expanded it to other official proceedings.
Id.; see Tex. Civ. Prac. & Rem. Code Ann. § 73.002 (West 2011). The statute
provides, in pertinent part, that “publication by a newspaper . . . is privileged and is
not a ground for a libel action” if the publication is “a fair, true, and impartial
account of . . . a judicial proceeding . . . [or] an official proceeding, other than a
judicial proceeding, to administer the law.” Tex. Civ. Prac. & Rem. Code Ann. §
73.002(a), (b)(1)(A), (B). The privilege extends only to statements that are (1)
“substantially true and impartial reports of the proceedings,” and (2) “identifiable
by the ordinary reader as statements that were made in the proceeding.” Neely,
418 S.W.3d at 68 (citing Denton Publ’g Co. v. Boyd, 460 S.W.2d 881, 884 (Tex.
1971)). Where the facts are undisputed and the language used in the publication is
not ambiguous, the question of privilege is ordinarily one of law for the court.
Boyd, 460 S.W.2d at 884.

The Record

Even under a liberal construction of her brief, we conclude that Mayfield
does not attack the privilege ground relative to the articles written by Watkins; the
entire focus of Mayfield’s argument on this ground is Huffman’s article.
Accordingly, Mayfield has waived any challenge to the summary judgment on her
claims based on Watkins’s article. See Star–Telegram, Inc., 915 S.W.2d at 473;
Sonic Sys. Int’l, Inc. v. Croix, 278 S.W.3d 377, 384 (Tex. App.—Houston [14th
Dist.] 2008, pet. denied) (holding appellant waived challenge to summary
judgment on claim to the extent it was based on one alleged wrongdoing of
defendant by advancing argument on appeal only with respect to a different alleged
wrongdoing); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 337 (Tex.
App.–Houston [14th Dist.] 2005, no pet.) (recognizing that, although our court

10
reasonably and liberally construes briefs, appellant must present some specific
argument and analysis to attack summary-judgment ground). We will consider the
privilege ground only with respect to Huffman’s article.

In her affidavit supporting the motion for summary judgment, Huffman
averred,

I wrote the newspaper article dated August 12, 2007, titled “Police
charge woman in scam” and which appeared in the Bryan-College
Station Eagle. The only information I had about the matters in the
article came from the College Station Police Department Probable
Cause Statements that were publicly available in the Brazos County
District Clerk’s Office. The article I wrote accurately stated what was
contained in the Probable Cause Statements. I did not doubt the
accuracy of anything I wrote, nor did I have any reason to question the
accuracy of anything in the Probable Cause Statements. The “College
Station Police Department Probable Cause Statements” that are
attached to Defendants’ Motion for Summary Judgment as Exhibit A
are true and correct copies of the documents I obtained from the
District Clerk’s Office and on which I based my August 12, 2007
article.

Appellees also presented Huffman’s article, which reported,

College Station police ended a seven-month investigation Saturday
with the arrest of a 59-year-old lawyer who admitted to participating
in six e-mail scams over the past five years, authorities said.

Helen Mayfield told police she was the victim of a common financial
scam that generally features a supposed foreign dignitary offering
millions in exchange for help. But police, who worked with the FBI
on the case, said the College Station woman was a willing participant
seeking financial gain.

Mayfield was charged with 12 counts of forgery of a financial
instrument after police said she cashed fake $500 American Express
Travelers Cheques at First National Bank, where she had an account.

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 She cashed 14 checks, according to police. The bank contacted police
after a dozen were returned.

Mayfield told police she cashed the checks for a client in exchange for
a percentage of the cash. The client, she said, was a West African
widow having trouble accessing her late husband’s $15 million
fortune.

Investigators discovered she was wiring money to Nigeria, Hong
Kong, Taiwan, Ontario, Ghana and the Netherlands. She told police
she was involved in six scams since 2002, saying she continued
hoping someday to get money she was promised.

Mayfield remained jailed Saturday in lieu of $240,000 bail.

In her pleading, Mayfield complained of the following portions of the
article:

• Mayfield admitted she was involved in six e-mail scams over the
past five years (since 2002).

• According to police, Mayfield cashed fourteen fake travelers
checks at a bank where she had an account.

• Mayfield told police that she cashed the checks in exchange for a
percentage of the cash.

Appellees also presented three probable cause statements: one was executed
by the investigating officer, apparently to obtain an arrest warrant, and detailed the
basis for the forgery charges; the other two were executed by an assisting officer
and provided supplemental information.

Discussion

Mayfield does not argue there is no section 73.002 privilege when a
publication is based on a probable cause statement, such as those executed by the
police relative to Mayfield’s criminal case; i.e., she does not dispute appellees’

12
contention that such a statement constitutes “a judicial proceeding . . . [or] an
official proceeding, other than a judicial proceeding, to administer the law.” See
Tex. Civ. Prac. & Rem. Code Ann. § 73.002(a), (b)(1)(A), (B). Rather, Mayfield
attacks the privilege ground by contending (1) Huffman’s affidavit was perjured,
(2) the probable cause statements were not public records, and (3) Huffman did not
report in the article that it was based on the statements.

With respect to the first two contentions, Mayfield did not timely present
any evidence controverting Huffman’s averments that she (1) based her article on,
at least, the first probable cause statement, (2) did not doubt its accuracy, and (3)
obtained the statements from the district clerk’s records, much less evidence
showing the affidavit was perjured. 7 Mayfield’s summary judgment responses
were not timely because they were filed three days before the hearing. See Tex. R.
Civ. P. Rule 166a(c) (providing that, except on leave of court, a summary-
judgment response must be filed no later than seven days before hearing date).
Because nothing in the record indicates the trial court granted leave for late filing,
we presume it did not consider the responses. See INA of Texas v. Bryant, 686
S.W.2d 614, 615 (Tex. 1985); Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 663
(Tex. App.—Houston [14th Dist.] 2012, pet. denied). Therefore, we will not
consider whether any evidence attached to the responses controverted Huffman’s
affidavit. Instead, Mayfield is limited to challenging the legal sufficiency of

7
We recognize Huffman broadly suggested her article was based on all three probable
cause statements when the two supplemental statements were executed after publication of the
article. However, Mayfield presented no evidence that the incorrect suggestion the article was
also based on the two latter statements rose to the level of perjury. See Tex. Penal Code Ann.
37.02(a) (West 2011) (providing perjury includes “intent to deceive” element). In fact, Mayfield
does not argue Huffman’s affidavit was perjured or otherwise defective because two of the
statements were executed after the article. Even Mayfield views the first statement as the sole
relevant one because she argues only that Huffman’s article was not based on that statement.
Therefore, we will address the probable cause statement that preceded her article.

13
appellees’ privilege ground. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d
337, 343 (Tex. 1993).

In this regard, to support her “perjury” contention, Mayfield primarily
attacks the truth of the police officer’s allegations in the probable cause statement.
However, the “official/judicial proceedings privilege assesses whether the
reporter’s account of the proceedings (not the underlying allegations made in those
proceedings) was fair, true, and impartial.” Neely, 418 S.W.3d at 68. Mayfield
does not expressly compare the article to the probable cause statement.
Nonetheless, we have performed such comparison and conclude the portions of the
article complained of in Mayfield’s pleading were “fair, true, and impartial”
accounts of the allegations in the probable cause statement.

Mayfield also complains Huffman did not report in the article that it was
based on the probable cause statement and reported the facts as though they were
true. However, she cites no authority that Huffman was required to specifically
identify the document from which she obtained her information. Significantly, the
contents of the article were “identifiable by the ordinary reader as” allegations
made by the police, rather than Huffman’s own portrayal of facts underlying the
criminal allegations. See id.at 68.

Finally, as mentioned above, after appellees moved for summary judgment,
Mayfield amended her petition to add claims for intentional infliction of emotional
distress and business disparagement. Therefore, these causes of action were not
directly addressed in the motion for summary judgment. However, Mayfield does
not complain on appeal that the privilege ground failed to also address the new
claims and the trial court granted more relief than requested by appellees by
dismissing all claims on that ground. Consequently, Mayfield has waived any such
contention. See Sonic Sys Int’l, 278 S.W.3d at 384–85.

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 In summary, the trial court did not err by granting summary judgment on all
of Mayfield’s claims.

C. Complaint Regarding the Record

Mayfield contends her due process rights were violated because she is
indigent and entitled to a free record but the district clerk omitted exhibits to her
petition from the record filed in our court. We reject this contention because the
gist of the argument is not that the district clerk inadvertently failed to file a
complete record but rather an unsupported claim that the trial court ordered
removal of the exhibits from the record. Moreover, Mayfield did not request the
clerk to supplement our record with any allegedly omitted exhibits to her petition,
as she was permitted to do if she believed a requisite item was missing. See Tex.
R. App. P. 34.5(c)(1). Nor did she invoke the procedure for correcting the record
if an item is lost or destroyed. See id. 34.5(e). And, the allegedly omitted exhibits
are immaterial to our disposition because Mayfield asserts they concern the statute-
of-limitations ground, which we need not address.

We overrule all of Mayfield’s issues and affirm the trial court’s judgment.

/s/ John Donovan
Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown.

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