NUMBER 13-22-00287-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LARRY MARK POLSKY, Appellant,
v.
SPRING MART ENTERTAINMENT,
LLC D/B/A DOG HOUSE PUB & GRUB, Appellee.
On appeal from the County Court at Law No. 1
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Tijerina, and Silva
Memorandum Opinion by Justice Tijerina
Appellant Larry Mark Polsky 1 appeals the trial court’s granting of summary
judgment in favor of appellee Spring Mart Entertainment, LLC, d/b/a Dog House Pub &
Grub (the bar). By two issues, Polsky argues the trial court erred by: (1) granting the bar’s
1 Polsky is an attorney and represented himself throughout these proceedings.
traditional summary judgment because qualified immunity is not a valid affirmative
defense; and (2) striking his affidavit in opposition to the bar’s no evidence motion for
summary judgment. We affirm.
I. BACKGROUND
According to Polsky’s petition, on January 24, 2020, Polsky and his friend Victor
Mar were at the bar when a woman approached Jose Lopez, the bar’s bouncer, and
complained that Polsky stuck his hand up her dress and grabbed her vagina. Abelardo
Gomez, a county constable who was working security at the bar, approached Polsky and
Mar and asked Polsky to exit the bar. Polsky and Mar followed Gomez outside.
Outside of the bar, Gomez informed Polsky that a female patron accused Polsky
of “grabb[ing] her genitals,” and Polsky “had to leave the premises.” The petition alleged
that Polsky asked Gomez to invite the bar manager, Ralph Pizana, outside so that they
could review the security tape to prove Polsky’s innocence. Polsky asserted that Pizana
refused to meet with Polsky and instead instructed Gomez to remove Polsky from the
premises.
On April 7, 2020, Polsky filed suit against the bar asserting slander and intentional
infliction of emotional distress causes of action. The bar generally denied Polsky’s claims,
asserted the defense of qualified privilege, and filed a 91a motion to dismiss, arguing
Polsky’s claims had no basis in law and should be dismissed. See TEX. R. CIV. P. 91a
(“Dismissal of Baseless Causes of Action”). Polsky filed a motion to strike the bar’s 91a
motion to dismiss and a motion to “enter [Polsky’s] default judgment[] due to spoliation of
evidence by [the bar] and enter [Polsky’s] request for attorney[’s] fees.”
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The bar responded claiming Polsky’s motion for default judgment was not a valid
motion because Texas recognizes only two types of default judgments: a no-answer
default judgment and a post-answer default judgment. The bar further asserted that there
was no alleged spoliation because the video Polsky requested “could not record audio
and thus, could not record a defamatory statement.” The trial court denied Polsky’s motion
for default judgment.
Polsky amended his petition to include slander per se. The bar filed a combined
motion for traditional and no-evidence summary judgment. In the traditional summary
judgment motion, the bar asserted the defense of qualified immunity, stating Gomez and
Lopez were acting within their duties—ensuring the safety of the bar’s patrons—when
they made the statement. Thus, the constables and Lopez communicated the statement
to each other in good faith acting within their duties as security and bouncer for the bar.
The bar further asserted that Polsky could not show actual malice to defeat the privilege
of qualified immunity, that the statement was published with knowledge of its falsity, or
that it was made with reckless disregard for the truth. Additionally, the bar claimed the
defense of “truth” applied to Polsky’s claims; that is, there was no evidence that a woman
did not make a complaint about Polsky.
The bar attached deposition testimony from Polsky, Gomez, and Lopez and the
parties’ discovery responses. In his deposition, Polsky stated that the bar fabricated this
alleged complaint because he was “an elderly Caucasian man in a bar full of young
Hispanic people.” Polsky conceded he had no evidence but was “entitled to think that.”
According to Polsky, he had no physical evidence that the bar fabricated this complaint
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because the bar destroyed the physical evidence by allowing the security tape to be
erased.
In its no-evidence motion for summary judgment, the bar contended that Polsky
produced no evidence: (1) that the bar published a slanderous statement to a third party;
(2) that such a statement caused his reputation any harm; (3) to defeat the affirmative
defenses of qualified immunity and truth; and (4) of a valid intentional infliction of
emotional distress cause of action.2
Polsky responded to the motion for summary judgment, asserting qualified
immunity did not apply because he was not an employee of the bar. He attached
deposition testimony from himself, Lopez, and Gomez; his letter to the bar requesting
video evidence of the night in question; discovery responses; and his affidavit. The trial
court granted the bar’s objections to Polsky’s affidavit, asserting Polsky lacked personal
knowledge, made conclusory and speculative statements within, and did not affirmatively
state the testimony relied on true facts.
The trial court granted the bar’s traditional and no-evidence motion for summary
judgment.3 This appeal followed.
2 “Under Texas law, an affirmative defense is an independent reason why a plaintiff should not
recover.” Haver v. Coats, 491 S.W.3d 877, 881 (Tex. App.—Houston [14th Dist.] 2016, no pet.). “[A]
defendant cannot use a no-evidence motion for summary judgment to establish an affirmative defense.” Id.
Therefore, a party cannot prevail on a no evidence summary judgment motion by establishing the
affirmative defense of qualified immunity. See id.
3 By his second issue, Polsky argues the trial court erred in striking his affidavit and holding that
there was “no evidence in the court file of [his] damages” and that “slander per se/defamation per se exists
as to the statements Mr. Lopez made about [him].” Thus, Polsky challenges the trial court’s no-evidence
summary judgment. “Although we usually address the no-evidence motion first when both no-evidence and
traditional summary judgment motions are filed, see Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
2004), we will review the propriety of granting the traditional summary judgment on [Polsky’s] affirmative
defense first because it is dispositive.” D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d
217, 225 (Tex. App.—Fort Worth 2013, no pet.). Nonetheless, we considered Polsky’s affidavit in his
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II. TRADITIONAL SUMMARY JUDGMENT
By his first issue, Polsky argues the trial court erred in granting the bar’s traditional
motion for summary judgment. He contends that defense of qualified immunity does not
apply to the bar because Polsky is not an employee of the bar.
A. Standard of Review
We review de novo the trial court’s ruling on a summary judgment motion. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). To
prevail on a traditional motion for summary judgment, the movant must establish that no
genuine issues of material fact exist and that it is entitled to judgment as a matter of law.
TEX. R. CIV. P. 166a(c); Little v. Tex. Dep’t of Crim. Just., 148 S.W.3d 374, 381 (Tex.
2004). In deciding whether there is a disputed material fact issue precluding summary
judgment, evidence favorable to the nonmovant will be taken as true. Nixon v. Mr. Prop.
Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). Every reasonable inference must be
indulged in favor of the nonmovant and any doubt resolved in its favor. Id. at 549.
When a defendant moves for traditional summary judgment, he must either:
(1) disprove at least one essential element of the plaintiff’s cause of action, or (2) plead
and conclusively establish each essential element of his affirmative defense, thereby
defeating the plaintiff’s cause of action. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.
1995) (per curiam); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If
the movant meets its burden as set out above, the burden then shifts to the nonmovant
response to the bar’s traditional summary judgment, and we conclude that the trial court did not err in
granting the traditional summary judgment.
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to raise a genuine issue of material fact precluding summary judgment. Centeq, 899
S.W.2d at 197. The evidence raises a genuine issue of fact if reasonable and fair-minded
jurors could differ in their conclusions in light of all of the summary judgment evidence.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
B. Applicable Law
“[W]hether a statement qualifies as defamation per se is generally a question of
law.” In re Lipsky, 460 S.W.3d 579, 596 (Tex. 2015) (orig. proceeding). Defamation per
se statements involve “statements that are so obviously hurtful to a plaintiff’s reputation
that the jury may presume general damages, including for loss of reputation and mental
anguish.” Hancock v. Variyam, 400 S.W.3d 59, 63–64 (Tex. 2013). Accusing someone of
a crime is an example of defamation per se. In re Lipsky, 460 S.W.3d at 596; Gray v. HEB
Food Store No. 4, 941 S.W.2d 327, 329 (Tex. App.—Corpus Christi–Edinburg 1997, writ
denied).
“The common law provides a qualified privilege against defamation liability when
‘communication is made in good faith and the author, the recipient or a third person, or
one of their family members, has an interest that is sufficiently affected by the
communication.’” Burbage v. Burbage, 447 S.W.3d 249, 254 (Tex. 2014) (quoting Cain v.
Hearst Corp., 878 S.W.2d 577, 582 (Tex. 1994)); see also Tindall v. Kahlig Auto Grp.
Mgmt. LLC, No. 04-21-00368-CV, 2022 WL 16952890, at *2 (Tex. App.—San Antonio
Nov. 16, 2022, no pet.) (mem. op.) (recognizing that qualified privilege is “between people
having a common business interest in employment-related matters or in reference to
matters that the speaker has a duty to communicate to the other”). Because defamation
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inhibits free speech, “the qualified privilege offers an additional safeguard, even in cases
of private, non-political speech.” Burbage, 447 S.W.3d at 254.
Qualified privilege is an affirmative defense, and “the defendant bears the burden
of proving privileged publication unless the plaintiff’s petition affirmatively demonstrates
privilege.” Id. In a summary judgment proceeding, the defendant must “establish that the
allegedly defamatory statement was made with an absence of malice.” Randall’s Food
Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). “Actual malice, in the
defamation context, means ‘the making of a statement with knowledge that it is false, or
with reckless disregard of whether it is true.’” Burbage, 447 S.W.3d at 254 (quoting Hagler
v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771, 772 (Tex. 1994) (per curiam)). “Qualified
privilege presents a question of law when the statements at issue employ unambiguous
language and where the facts and circumstances of publication are undisputed.” Id.
C. Analysis
In its motion for summary judgment, the bar raised the affirmative defenses of
qualified immunity and truth and attached the deposition testimony of Lopez, Gomez, and
Polsky.4 In his deposition, Gomez testified that while he was working the bar’s security
4 According to Polsky, a female complainant:
went in there and she told [] Lopez what her boyfriend told her to tell him . . . . That’s the
reason [the bar] won’t identify the girl because she went in there, in my opinion, because
her boyfriend was pissed that I was talking to girls . . . wearing a $100,000 worth of jewelry
and looked good as an old man. That’s what I think happened, and that’s the reason [the
bar] can’t identify the girl. They won’t identify the girl, and that’s the reason they erased the
tape, allowed it to be erased. They know it never happened.
Polsky reiterated that he is entitled to his own opinion: “I can’t prove it. I’m purely speculating. If I could
prove it, and if I knew that’s what happened, then they would be able to identify the girl, Counselor.”
Consequently, this testimony does not raise a genuine issue of fact. See Ritter v. Las Colonitas Condo.
Ass’n, 319 S.W.3d 884, 890 (Tex. App.—Dallas 2010, no pet.) (“Summary judgment evidence that raises
only ‘mere suspicion or surmise’ of a fact in issue is not sufficient to defeat summary judgment.” (quoting
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detail, Lopez approached him and informed him that there was a complaint against Polsky
by an unknown female. The female “did not want to give her name,” and “just wanted [the
bar] to know” that Polsky “harassed” her. Gomez stated he approached Polsky about it,
Polsky started yelling, and Gomez informed Polsky he needed to leave the bar and “come
back another day.”
Lopez testified that a woman approached him, complaining that Polsky had
inappropriately touched her. Lopez then asked her if she wanted to proceed with her
allegations, but “she didn’t want any problems.” Lopez then voiced the female
complainant’s information to Gomez and instructed Gomez to ask Polsky to leave due to
their “zero tolerance policy.” Additionally, Lopez stated that as he escorted Polsky out,
Lopez received an additional complaint “about [Polsky] making them uncomfortable,” but
Lopez did not want to involve management because he had “already asked [Polsky] to
leave.” Lopez stated he tried to deescalate the situation by “try[ing] to keep the peace for
both parties. Not only because of her, but because of [Polsky]. Because if [Lopez] were
to let it go and she . . . tells her boyfriend . . . there’s a high chance that he might come
and try to start problems with [Polsky].”
The bar’s summary judgment evidence established: (1) Lopez and Gomez were
working for the bar, (2) an unknown female allegedly complained to Lopez about Polsky,
(3) Lopez approached Gomez, repeated the complaint, and requested Gomez’s
assistance in deescalating the matter, (4) Gomez approached Polsky and escorted him
outside, (5) Gomez informed Polsky about the accusation, and (6) Gomez instructed
Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 837 (Tex. App.—Dallas 2005, no pet.)).
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Polsky to leave at Lopez’s request. Here, the communication was made by Lopez and
Gomez while they were working for the bar—persons “having a corresponding interest or
duty in the matter to which the communication relates.” See Bergman v. Oshman’s
Sporting Goods, Inc., 594 S.W.2d 814, 816 (Tex. App.—Tyler 1980, no writ). Therefore,
the communication is “qualifiedly privileged.” See id. Moreover, there was no evidence of
actual malice made by Lopez or Gomez. To the contrary, the bar provided evidence that
Lopez and Gomez did not make the statement with knowledge that it was false or with
reckless disregard of whether it was true. See Burbage, 447 S.W.3d at 254. We therefore
conclude the bar conclusively established the defense of qualified privilege as a matter
of law. See TEX. R. CIV. P. 166a(c); Booth, 900 S.W.2d at 341. Accordingly, the burden
shifted to Polsky to raise a genuine issue of material fact precluding summary judgment.
See Centeq, 899 S.W.2d at 197.
Polsky asserted that “qualified immunity is not a valid defense because Polsky is
not an employee of [the bar] and [the bar] never conducted an investigation concerning
the criminal complaint about Polsky.” However, “[q]ualified privileges against defamation
exist at common law when a communication is made in good faith and the author, the
recipient or a third person, or one of their family members, has an interest that is
sufficiently affected by the communication.” Cain, 878 S.W.2d at 582 (emphasis added).
In other words, “[t]he privilege remains intact as long as communications pass only to
persons having an interest or duty in the matter to which the communications relate.”
Johnson, 891 S.W.2d at 646; Grant v. Stop-N-Go Mkt. of Tex., Inc., 994 S.W.2d 867, 874
(Tex. App.—Houston [1st Dist.] 1999, no pet.) (“The privilege applies as long as the
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communication passes only to persons having an interest or duty in the matter to which
the communications relate.”). Here, Lopez and Gomez had an interest in the matter, a
duty to keep the bar safe, and a duty to enforce the bar’s zero tolerance policy. See
Johnson, 891 S.W.2d at 646. Thus, we reject Polsky’s argument that because Polsky is
not an employee of the bar, the qualified privilege defense does not extend to the bar.
Alternatively, Polsky asserted that “Lopez made the statements with actual malice
because he never bothered to identify the victim,” and therefore, he raised a “fact issue
concerning whether Lopez made the statement with actual malice.” Polsky does not direct
us to any portion in Lopez’s deposition where we may find evidence that he made the
statements with actual malice. See TEX. R. APP. P. 38.1(i) (requiring the appellant’s brief
to contain citations to the record in support of the contentions made); Rendleman v.
Clarke, 909 S.W.2d 56, 59 (Tex. App.—Houston [14th Dist.] 1995, writ dism’d) (“The
failure to cite to relevant portions of the trial court record waives appellate review.”).
Throughout Polsky’s affidavit, Polsky reiterates that the bar “intentional[ly], malicious[ly],
and reckless[ly]” allowed the security tape to be erased. See Ritter v. Las Colonitas
Condo. Ass’n, 319 S.W.3d 884, 890 (Tex. App.—Dallas 2010, no pet.) (“[C]onclusory
statements in affidavits are not proper summary judgment evidence and may not be used
to raise an issue of fact.”). However, the “[f]ailure to investigate the truth or falsity of a
statement before it is published is insufficient to show actual malice.” Austin v. Inet Techs.,
Inc., 118 S.W.3d 491, 497–98 (Tex. App.—Dallas 2003, no pet.); see also Akin v. Santa
Clara Land Co., 34 S.W.3d 334, 341–42 (Tex. App.—San Antonio 2000, pet. denied)
(“Negligence, failure to investigate the truth or falsity of the statements prior to publication,
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or failure to act as a reasonable prudent person is insufficient to support a finding of
malice.”). Thus, Polsky provided no evidence raising a fact issue that Lopez published
the statement with knowledge of its falsity or with reckless disregard for its truth other
than Polsky’s bare conclusory statements. Accordingly, we overrule Polsky’s first issue.
III. CONCLUSION
We affirm the judgment of the trial court.
JAIME TIJERINA
Justice
Delivered and filed on the
7th day of March, 2024.
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