In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-04-124 CV
____________________
ELIJAH W. RATCLIFF, Appellant
V.
POLK COUNTY TITLE, INC., RONALD P. BOYCE,
AND E.L. McCLENDON, JR., Appellees
Polk County, Texas
Trial Cause No. 19256
This is an appeal by the plaintiff in a defamation suit against a title company, a title examiner, and an attorney for disseminating a title report that expressed the opinion that the plaintiff's grandmother had died intestate. We affirm the judgment for the reasons explained in this opinion.
Allegedly acting in both an individual capacity and as the executor of the estate of Katie Ratcliff, Elijah W. Ratcliff filed a suit in which he alleged that the appellees, Polk County Title, Inc., Ronald P. Boyce, and E.L. McClendon, Jr., published a title report which stated that "Elijah Ratcliff and wife, Katie Ratcliff acquired title to subject property by deed dated May 24, 1913. It appears that they both died intestate." (2) Ratcliff alleged that Katie Ratcliff died testate, that the title report was therefore defamatory, and that publication of the allegedly defamatory statement injured him in negotiating a timber contract and in conducting a bail bonding business. Ratcliff also alleged that the injury followed a pattern of disregard for the rights of property owners and the civil rights of "Negro citizens."
Ratcliff originally filed the suit in federal court and commenced the state court litigation after the federal court suit was dismissed for lack of subject matter jurisdiction. In its unpublished opinion, the federal district court noted that, although Ratcliff had filed an application to probate the will of Katie Ratcliff, the will had never been presented for action in court. The court reasoned that until a court order admits the will to probate, Katie Ratcliff did die intestate. Therefore, the court reasoned, the statement is true and no defamation occurred. Ratcliff appealed to the Fifth Circuit. The appellate court ruled in an unpublished opinion that Ratcliff had neither stated a cause of action for defamation nor established that his complaint rests on a cognizable constitutional violation, and dismissed the appeal as frivolous. When Ratcliff filed suit in state court, the defendants filed a motion to dismiss due to issue preclusion arising from a dismissal of federal court litigation over identical issues between the same parties. The defendants raised issue preclusion in a motion for summary judgment. The motion for summary judgment also moved for dismissal on the grounds that no defamation occurred as a matter of law. In their motion, the defendants asserted that the plaintiff produced no evidence of publication of a defamatory statement, and no evidence that the will had been admitted to probate at the time of publication or that the statement caused damage to the plaintiff. Ratcliff moved for summary judgment on liability. The trial court dismissed the suit with prejudice. Ratcliff presents seven issues in his appeal.
In issue one, the appellant contends that he properly invoked the trial court's jurisdiction in his first supplemental petition. In his argument under this point of error, Ratcliff contends that the district court and the county court maintain concurrent jurisdiction to hear a suit such as the one that he filed, and that the trial court therefore erred to the extent it relied upon jurisdictional grounds. Apparently, no action was ever taken on the application for probate filed in the county court at law after Katie Ratcliff's death in 1968. The appellant seems to argue that the district court has concurrent jurisdiction with the probate court, but he fails to address the suit that the appellant himself claims is "pending and viable" in the county court at law. At any rate, issue one has no merit because the trial court did not dismiss Ratcliff's suit for lack of jurisdiction. Issue one is overruled.
Issue two contends that the appellant was duly named executor of the estate of Katie Ratcliff, and that the appellees somehow violated his civil rights by encroaching upon that status through publication of the title report. In his argument under this point of error, Ratcliff blames the failure to admit the will to probate upon racial prejudice of county officials. Although he admits the will was not admitted for probate, Ratcliff asserts that he was named executor. The appellant seems to argue that the appellees violated federal civil rights statutes by publishing a title report that did not recognize Ratcliff's status as executor. The federal district court held that Ratcliff's federal civil rights claims were frivolous. On appeal, the Fifth Circuit ruled that Ratcliff had neither stated a cause of action for defamation nor established that his complaint rests upon a cognizable violation, and dismissed the appeal as frivolous. Thus, the federal civil rights claims were adjudicated in federal court and cannot be re-litigated in state court. See Acree v. Air Line Pilots Ass'n, 390 F.2d 199, 202-03 (5th Cir. 1968), cert. denied, 393 U.S. 852, 89 S. Ct. 88, 21 L. Ed. 2d 122 (1968) (The dismissal of a federal suit is conclusive as to all matters that were actually adjudged in determining that the court lacked jurisdiction.). Although the federal court left the door open for the appellant to pursue a suit in state court, he certainly cannot maintain a suit for violation of the federal civil rights statutes upon facts that the federal court found did not support an action in federal court.
In the argument supporting his second issue, the appellant goes on to contend that his motion for summary judgment established that Ratcliff was a licensed attorney in 1962. Ratcliff attached documents to his motion to the effect that, although he was convicted of felony theft in 1973 and disbarred in 1974, the criminal conviction was tainted by racial prejudice in jury selection and his own incompetence when he represented himself in the criminal trial. On appeal he argues the trial court should have accepted the affidavit he offered in support of the plaintiff's motion for summary judgment. The "Affidavit of Veracity" merely states that the facts recited in the body of the motion are true and correct. Motions for summary judgment and responses to motions for summary judgment do not constitute summary judgment evidence, even when verified. Nicholson v. Memorial Hosp. Sys., 722 S.W.2d 746, 748-49 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). The assertions of fact contained in Ratcliff's motion and response are not summary judgment evidence. Issue two is overruled.
Issue three is presented as follows: "The initial encroachment by one or more appellees, in conjunction with state officials, upon appellant's fiduciary function was attributable to unconstitutional racial discrimination." The appellant appears to be arguing that the officials operating the probate court mistreated African-Americans, and therefore the appellees should have recognized the will of Katie Ratcliff in the title report and recognized him as the executor of her estate, although the will has never been admitted to probate. The civil rights statute to which he refers existed in 1968. See Act of April 5, 1967, 60th Leg., R.S., ch. 72, 1967 Tex. Gen. Laws 138, 139 (current version at Tex. Civ. Prac. & Rem. Code Ann. §§ 106.001-.004 (Vernon 1997 & Supp. 2004)). There is no evidence in the record that Ratcliff sought or obtained the injunctive relief available in the statute. The appellant identifies the appellees as a title company, a title examiner, and an attorney in private practice, not as state employees acting in an official capacity. The statute relied upon in the brief does not support a cause of action against private individuals. Furthermore, Ratcliff did not rely on the statute in the motions and responses presented to the trial court, and may not do so now. See Tex. R. Civ. P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal."). Issue three is overruled.
Issue four contends as follows: "The character of the unconstitutional discrimination against appellant regarding the subject fiduciary status did not change between the calendar year 1968, following the death of testator, and the encroachment which transpired on the 14th day of December, 2000." Ratcliff appears to be arguing that laches should not bar his complaints regarding discriminatory practices of the county court at law because he continued to file documents to which the authorities failed to respond. The documents to which he refers are unfiled copies of probate documents with dates in 1968 and 1969, 1969 tax statements, and a 1970 letter to the Trinity River Authority. The documents were not filed at least seven days before the summary judgment hearing and the trial court denied leave to submit the documents during the hearing. See Tex. R. App. P. 166a(c). That ruling was within the trial court's discretion. Karen Corp. v. Burlington N. & Santa Fe Ry. Co., 107 S.W.3d 118, 124 (Tex. App.--Fort Worth 2003, pet. denied). Issue four is overruled.
Issue five merely states that the will was effectively executed by Katie Ratcliff and timely filed for probate. The argument in the brief asserts that Ratcliff's petition describes how he was injured by the appellees' "libel," that the summary judgment evidence regarding the appellant's professional background supports a claim for over a million dollars in damages, and that the damages should be trebled under the Deceptive Trade Practices Act. A brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). The argument under this point of error bears no relation to the issue presented. Therefore, the issue is inadequately briefed and presents nothing for review. Issue five is overruled.
Issue six argues the evidence sufficiently supports the measure of damages proposed by the plaintiff's pleadings, such that a denial of the plaintiff's motion for summary judgment comprised an abuse of discretion. The plaintiff and the defendants filed cross-motions for summary judgment. As the plaintiff in a libel action, Ratcliff would be entitled to summary judgment on the issue of liability only if the statement was defamatory as a matter of law. See, e.g., Mustang Athletic Corp. v. Monroe, 137 S.W.3d 336, 338 (Tex. App.--Beaumont 2004, no pet. h.). Whether the words used are capable of a defamatory meaning is a question of law. Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987). The court construes the statement as a whole in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement. Id. If a statement is true, it cannot be defamatory. See Tex. Civ. Prac. & Rem. Code Ann. § 73.005 (Vernon 1997). The statement need not be true in every detail; substantial truth is sufficient to establish the defense. McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990). Deciding whether a published statement is substantially true involves consideration of whether the alleged defamatory statement was more damaging to the plaintiff's reputation, in the mind of the average listener, than a truthful statement would have been. Id. at 16. In this case, Ratcliff contends that the statement was not true because Katie Ratcliff did execute a will. In the context of a title report, however, it must be recognized that no will is effectual for the purpose of proving title to real property until such will has been admitted to probate. Tex. Prob. Code Ann. § 94 (Vernon 2003). Katie Ratcliff's will has not been admitted to probate; therefore it is not effective for purposes of proving title to real estate. Because the statement was true in its context, Ratcliff was not entitled to summary judgment for defamation, and the trial court did not err in denying his motion. Issue six is overruled.
Issue seven contends that the trial court erred in denying Ratcliff's request for a continuance. We understand the motion for continuance to explain that Ratcliff had anticipated obtaining a ruling on his motion for summary judgment and had not prepared to address the cross-motion for summary judgment. The motion goes on to explain that Ratcliff was attempting to secure other counsel on the case. When the trial court heard the motion for continuance, Ratcliff explained that he wanted to revisit lawyers who had not been convinced of the merits of his case before it was filed. Counsel for the defendants noted that the case had been proceeding for almost three years, and the trial court denied the motion.
On appeal, Ratcliff argues that the trial court erred in failing to grant the motion for continuance after Ratcliff filed a motion to recuse the trial judge. The alleged grounds for recusal were prejudice, bias, and "an unsolicited, unwarranted public announcement on the 1st day of October, 2003, that Plaintiff Elijah W. Ratcliff is not qualified to be an attorney. . . ." The motion to recuse was filed less than ten days before the hearing. A motion to recuse must be filed at least ten days before the date is set for the hearing. Tex. R. Civ. P. 18a(a). For the first time on appeal, Ratcliff contends that the trial judge was disqualified to sit on the case. He articulates the following basis for disqualification:
Still further, it is proper to contemplate that the Court is a creature of certain pecuniary interest in which the Presiding Judge has no other or alternative function or assignment. In other words, a certain class of litigants, inclusive of Appellees, sustains its existence by continued submission exclusively of all cases from the given mental framework or bias. Without litigants of Appellees bias as discussed at length above being channeled to the subject Court, there would be no court over which the Presiding Judge below would be assigned. Without the subject class of litigants, the Presiding Judge has no other docket or job. Hence, the interest, bias and prejudice of the Presiding Judge of the subject litigation class becomes glaringly obvious as being self-serving as well as self sustaining.
We understand this argument to suggest that the judge's livelihood depends upon litigation. If so, the argument is a particularly ironic one for a plaintiff to make, as he is the one generating the litigation. This argument cannot reasonably be considered to present grounds for disqualification under Tex. R. Civ. P. 18b(1). Issue seven is overruled, and the judgment is affirmed.
AFFIRMED.
PER CURIAM
Submitted on August 30, 2004
Opinion Delivered August 31, 2004
Before McKeithen, C.J., Burgess and Gaultney, JJ.
1. Tex. R. App. P. 47.4.
2. The appellant identified the persons referred to in the title report as his
grandparents.