Preview
Westlaw,
29 S.W.3d 271
29 S.W.3d 271
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e
Randolph v. Walker
Tex.App.-Houston [14 Dist.],2000.
Court of Appeals of Texas,Houston (14th Dist.).
Cynthia Everett RANDOLPH and Lloyd E. Kelley,
Appellants,
v.
Jackson WALKER L.L.P., and N. David Bleisch,
Appellees.
No. 14-99-00744-CV,
Sept. 14, 2000.
Rehearing Overruled Oct. 26, 2000.
Former city controller and his executive assistant
brought action against television reporter, attorney,
and law firm for defamation. The 127th District
Court, Harris County, Sharolyn Wood, J., struck the
pleadings relating to any claims against attorney
and law firm, and subsequently severed the claims
against them. Plaintiffs appealed. The Court of Ap-
peals, Anderson, J., held that: (1) sanctions of strik-
ing claims from pleadings and dismissing them
with prejudice were appropriate; (2) allegedly de-
famatory statements made by attorney were suffi-
ciently related to a judicial proceeding as to be ab-
solutely privileged; and (3) statement in attorney's
—_——__ —__—_——
letter was true, and thus, was an affirmative defense
etter Was Sue, and thus, was an atiimmative corense
to defamation claim.
Affirmed.
West Headnotes
[1] Parties 287 €=765(1)
287 Parties
287ITV New Parties and Change of Parties
28765 Striking Out Parties
287k65(1) k: In General. Most Cited
Cases
When a party's name is omitted from an amended
pleading, he is as effectively dismissed as where a
formal order of dismissal is entered.
[2] Appeal and Error 30 €=7154(2)
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
QWU-S9 740 = =™
FOR EDUCATIONAL USE ONLY Page 1
1Q5 Coury
30 Appeal and Error
30IV Right of Review
30IV(B) Estoppel, Waiver, or Agreements
Affecting Right
30k154 Recognition of or Acquiescence
in Decision
30k154(2) k, Pleading Over or Amend-
ment of Pleadings. Most Cited Cases
Former city controller and his executive assistant
waived appellate review of any alleged error related.
to trial court's order striking from their pleadings,
and dismissing with prejudice, defamation claims
against attorney and law firm, where they filed an
amended pleading that did not include any claims
against attorney and law firm. Vernon's Ann.Texas
Rules Civ.Proc., Rules 13, 65.
[3] Appeal and Error 30 €=-154(2)
30 Appeal and Error
30IV Right of Review
30IV(B) Estoppel, Waiver, or Agreements
Affecting Right
30k154 Recognition of or Acquiescence
in Decision
30k154(2) k. Pleading Over or Amend-
ment of Pleadings. Most Cited Cases
Rule that appellate review of an alleged error is
waived by an amended filing applies where sum-
mary judgment motions are amended to exclude
certain grounds used in an earlier motion which
was denied. Vernon's Ann.Texas Rules Civ.Proc.,
Rule 65.
[4] Appeal and Error 30 €->984(1)
30 Appeal and Error
30XVI Review
30XVI(H) Discretion of Lower Court
30k984 Costs and Allowances
30k984(1) k. In General, Most Cited
Cases
A trial court's decision to impose sanctions for a
frivolous pleading will not be overruled on appeal
unless an abuse of discretion is shown. Vernon'saN
~
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Ann.Texas Rules Civ.Proc., Rule 13. 30k944 Power to Review
[5] Appeal and Error 30 €2946
30 Appeal and Error
30XVI Review
30XVI(H) Discretion of Lower Court
30k944 Power to Review
30k946 k. Abuse of Discretion. Most
Cited Cases
The test for a trial court's abuse of discretion is
whether the court acted without reference to any
guiding rules and principles, or whether the act was
arbitrary or unreasonable,
{6] Appeal and Error 30 €=984(1)
30 Appeal and Error
30XVI Review
30XVI(H) Discretion of Lower Court
30k984 Costs and Allowances
30k984(1) k. In General. Most Cited
Cases
A trial court abuses its discretion in imposing sanc-
tions for a frivolous pleading only if it based its or-
der on an erroneous view of the law or a clearly er-
Toneous assessment of the evidence. Vernon's
Ann.Texas Rules Civ.Proc., Rule 13.
{7] Appeal and Error 30 €=984(1)
30 Appeal and Error
30XVI Review .
30XVI(H) Discretion of Lower Court
30k984 Costs and Allowances
30k984(1) k. In General. Most Cited -
Cases
An appellate court, to reach a decision on whether a
trial court's sanctions for a frivolous pleading con-
stitutes an abuse of discretion, examines the entire
record. Vernon's Ann.Texas Rules Civ.Proc., Rule
13.
{8] Appeal and Error 30 ©7946
30 Appeal and Error
30XVI Review
30XVI(H) Discretion of Lower Court
30k946 k. Abuse of Discretion. Most
Cited Cases
When reviewing, a trial court's finding under the
abuse of discretion standard, an appellate court may
not substitute its judgment for that of the trial court;
rather, it is limited to determining whether the trial
court abused its discretion by: (1) acting arbitrarily
and unreasonably, without reference to guiding
tules or principles,; or (2) misapplying the law to
the established facts of the case.
[9] Costs 102 €2
102 Costs
102I Nature, Grounds, and Extent of Right in
General
102k1 Nature and Grounds of Right
102k2 k. In General. Most Cited Cases
The purpose of rule allowing sanctions for a frivol-
ous pleading is to check abuses in the pleading pro-
cess, Vernon's Ann.Texas Rules Civ.Proc., Rule 13.
[10] Costs 102 €2
102 Costs
1021 Nature, Grounds, and Extent of Right in
General
102k1 Nature and Grounds of Right
102k2 k. In General. Most Cited Cases
A party seeking sanctions for a frivolous pleading
has the burden of establishing his right to relief.
Vernon's Ann. Texas Rules Civ.Proc., Rule 13.
[11] Pleading 302 €=>365(3)
302 Pleading
302XVI Motions
302k361 Striking Out Matter from Pleading
302k365 Application and Proceedings
Thereon
302k365(3) k. Hearing, Determination,
and Order. Most Cited Cases
Factual determinations of contested issues could be
made at hearing on motion to strike portion of al-
legedly abusive pleadings in defamation action, in
order to resolve whether claims in pleadings were,
at time they were filed, factually well grounded and
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legally tenable and to comply with rule's require-
ment that order state particulars supporting grounds
for which sanctions were imposed. Vernon's
Ann.Texas Rules Civ.Proc., Rule 13.
{12] Libel and Slander 237 €=-36
237 Libel and Slander
23711 Privileged Communications, and Malice
Therein
237k35 Absolute Privilege
237k36 k. In General. Most Cited Cases
The absolute privilege is not a defense to defama-
tion; rather absolutely privileged communications
are not actionable.
[13] Libel and Slander 237 €=>38(1)
237 Libel and Slander
23711 Privileged Communications, and Malice
Therein
237k35 Absolute Privilege
237k38 Judicial Proceedings
237k38(1) k. In General. Most Cited
Cases :
Libel and Slander 237 €=>123(8)
237 Libel and Slander
2371V Actions
237IV(E) Trial, Judgment, and Review
237k123 Questions for Jury
237k123(8) k, Privilege. Most Cited
Cases .
The issue of whether an alleged defamatory matter
is related to a proposed or existing judicial proceed-
ing, so as to be subject to absolute privilege, is a
question of law to be determined by the court, and
all doubt should be resolved in favor of the commu-
nication's relation to the proceeding.
[14] Libel and Slander 237 €=-38(5)
237 Libel and Slander
23711 Privileged Communications, and Malice
Therein
237k35 Absolute Privilege
237k38 Judicial Proceedings
aN
FOR EDUCATIONAL USE ONLY . Page 3
237k38(5) k. Briefs, Arguments, and
Statements of Counsel. Most Cited Cases
Alleged defamatory statements made by television
reporter's attorney in a letter and telephone call
between attorney and city controller, in which attor-
ney criticized city controller's denial of access to
his client, were sufficiently related to a judicial pro-
ceeding as to be absolutely privileged.
[15] Constitutional Law 92 €=>2070
92 Constitutional Law
92XVIMI Freedom of Speech, Expression, and
Press
92XVIII(U) Press in General
92k2070 k. In General. Most Cited Cases
(Formerly 92k90.1(8))
A public official may not constitutionally deny to
one media access that is enjoyed by other media,
because one media is entitled to the same right of
access as any other, and the media denied access
may seek legal redress for the alleged abridgement
of a constitutionally guaranteed right.
[16] Libel and Slander 237 €-754
237 Libel and Slander
237III Justification and Mitigation
237k54 k. Truth as Justification in General.
Most Cited Cases .
Statement made by television reporter's attorney in
letter to city controller, that a “public entity's denial
of access to a particular member of the media in the
absence of a compelling governmental interest to
the contrary is unlawful” was true, and thus, was an
affirmative defense to defamation claim.
[17] Libel and Slander 237 €=>54
237 Libel and Slander
237III Justification and Mitigation
237k54 k. Truth as Justification in General.
Most Cited Cases
The truth of a defamatory statement is an affirmat-
ive defense.
[18] Libel and Slander 237 €=>25
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237 Libel and Slander his executive assistant's defamation action against
2371 Words and Acts Actionable, and Liability
Therefor
237k23 Publication
237k25 k. Libel. Most Cited Cases
City controller had no libel claim against television
teporter's attorney for an allegedly defamatory let-
ter, in which attorney stated that a “public entity's
denial of access to a particular member of the me-
dia in the absence of a compelling governmental in-
terest to the contrary is unlawful,” as publication
‘was accomplished by city controller, where the let-
ter was not addressed to any third party, city con-
troller had control of the letter, and he voluntarily
disclosed the letter to another.
{19] Libel and Slander 237 €=236
237 Libel and Slander
237M Privileged Communications, and Malice
Therein
237k35 Absolute Privilege
237k36 k. In General. Most Cited Cases
When an allegedly defamatory statement is protec-
ted by the absolute privilege, publication of the
statement does not defeat the privilege.
[20} Libel and Slander 237 €=>74
237 Libel and Slander
237IV Actions
2371V(A) Right of Action and Defenses
237k74 k. Persons Liable. Most Cited
Cases
There can be no defamation claim against a lawyer
who allegedly wrongly advised another party, thus
leading to the other party's alleged defamatory
statements; any such claim based on wrongful ad-
vice supplied by the attorney rests with the wrongly
advised party itself.
[21] Libel and Slander 237 €=7129
237 Libel and Slander
2371V Actions
237IV(E) Trial, Judgment, and Review
237k129 k. Costs. Most Cited Cases
Evidence was sufficient to find city controller and
television reporter's attorney was brought for the
purpose of harassment, as required before sanctions
for a frivolous pleading could be assessed, where
testimony indicated the suit was filed in order to
pressure attorney into withdrawing from his repres-
entation of the reporter, Vernon's Ann.Texas Rules
Civ.Proc., Rules 13, 215.2(b).
*273 J. Marcus Hill, Houston, for appellants.
David Timothy Moran, Charles L. Babcock, Byron
Daryl Bristow, Houston, for appellees.
Panel consists of Justices, ANDERSON, EDEL-
MAN, and DRAUGHN.
FN* Senior Justice Joe L. Draughn sitting
by assignment.
OPINION
JOHN S. ANDERSON, Justice.
This is a defamation case which was resolved in the
trial court by Rule 13 death penalty sanctions.
Appellants, Cynthia Randolph and Lloyd Kelley,
challenge the trial court's order striking that portion
of their pleadings containing claims against Jackson
Walker Li and David Bleisch, attorneys for the
appellees. On appeal, appellants claim the trial
court erred when it granted appellees’ motion for
sanctions because: (1) section 10.001 of the Texas
Civil Practices & Remedies Code does not support
the sanctions issued; (2) the court improperly made
factual determinations of contested issues in a Rule
13 proceeding; (3) the claims against the attorney
defendants are not groundless because the defamat-
ory statements.were published; and (4) appellees’
attorneys cannot claim absolute privilege. We af-
firm.
FNI1. In the trial court, Randolph and Kel-
ley sued the appellees reflected in the style
of this case, and Wayne Dolcefino, KTRK
Television. Inc., C C Texas Holding Co.,
Inc., Capital Cities/ABC, Inc., Henry Flor-
sheim, and David Gwizdowski. The trial
court granted the appellees’ motion in this
case for Rule 13 sanctions and struck ap-
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pellants' claims in their Third, Fourth, and
Fifth Amended Petitions against Jackson
Walker and Bleisch, and dismissed those
claims with prejudice. Thereafter, the trial
court severed appellants’ claims against
Jackson Walker and Bleisch into the “A”
trial court cause number reflected above.
That severance made the interlocutory
judgment granting sanctions and dismiss-
ing claims final and appealable. See Mar-
tinez v. Humble Sand & Gravel, Inc., 815
S.W.2d 311, 312 (Tex.1994) (holding trial
court may make a judgment final for pur-
poses of appeal by severing the causes and
parties disposed of by the judgment into a
different cause).
In addition, on the same day as the sever-
ance, a “final judgment” was signed in the
“A” cause number disposing of all claims
as to all parties in the severed proceeding.
It is from this final judgment that appeal is
brought in our cause number
14-99-00744-CV. The defendants remain-
ing after the severance, Dolcefino, et al., as
well as the plaintiffs Randolph and Kelley,
are also before this court on appeal in an-
other proceeding. An opinion on rehearing
was issued by this Court on June 8, 2000 in
cause number 14-99-00026-CV, reversing
and rendering judgment for the media de-
fendants on the plaintiffs' defamation and
other claims.
IL
Factual and Procedural Background
The facts underlying this case are that Wayne
Dolcefino, an investigative reporter with KTRK
Television, conducted_an_investigation_of Lloyd
Kelley, who at the time was Houston's City Con-
tTolle?, uncovering Kelley's questionable business
practices, Because Kelley refused to give Dolcefino
access to city property and an on-camera interview,
Dolcefino requested that his attorney, David
Bleisch of Jackson Walker L.UP., contact Kelley.
AN
FOR EDUCATIONAL USE ONLY : Page 5
When the news story developed by Dolcefino and
detailing Kelley's business and personal activities
aired, Randolph filed *274 suit accusing
Dolcefinio of defamation. Kelley joined in the Suit,
and both subsequently joined appellees Jackson
Walker and Bleisch as defendants, proceeding on
defamation and conspiracy to defame claims stem-
ming from Bleisch's contact with Kelley.
FN2. Cynthia Randolph, an executive as-
sistant of Kelley's, was videotaped sun-
bathing at Splashtown with Kelley: during
normal business hours. Although Randolph
originally claimed the. time .spent at
Splashtown as compensable working
hours, after the broadcast she changed her
timesheet to show this time as vacation.
Procedurally, after appellants joined Jackson Walk-
er_and Bleisch, appellees filed a motion under
Texas Civil Procedure Rule 13 requesting that the
rial court strike a portion of appellants’ pleadings,
claiming the attorneys were included inthe suit
only for purposes 01 ent. The trial court
agreed and struck the pleadings relating to any
claims against either Jackson Walker or David
Bleisch. After the sanctions were granted, appel-
lants moved to sever the claims against Jackson
Walker and Bleisch from those against the other de-
fendants. The trial court granted that motion, sever-
ing the causes of action, and the appellants bring
this appeal challenging the trial court's sanctions.
1
Waiver
Appellees argue that appellants waived any error
related to the trial court's order striking portions of
their pleadings because appellants filed amended
pleadings that did not include any claims against
Jackson Walker or David Bleisch. We agree with
appellees’ position and address the waiver issue
first. However, we will also address, in Part III be-
low, the merits of appellants' appeal in the interest
of justice. See Price v. Short, 931 S.W.2d 677, 682
(Tex.App.-Dallas 1996, no writ) (addressing merits
of waived Batson error in interest of justice).
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[1] An amended pleading Supercedes and supplants
all previous pleadings. SeeTEX.R. CIV. P. 65; see
also Johnson v. Coca-Cola Company, 727 S.W.2d
756, 758 (Tex.App.-Dallas 1987, writ refused
n.t.e.). When a party's name is omitted from an
amended pleading, he is as effectively dismissed as
where a formal order of dismissal is entered. See
Jauregui v. Jones, 695 S.W.2d 258, 261
(Tex.App.-San Antonio 1985, writ ref'd n.r.e.); see
also Radelow-Gittens Real Property Management
v. Pamex Foods, 735 S.W.2d 558 (Tex.App.-Dallas
1987, writ ref'd, n.r.e.).
In Radelow, the Dallas court of appeals held that
Radelow-Gittens waived any error in the trial
court's grant of an adverse summary judgment by
its subsequent amendment of its petition which
dropped claims against Pamex from the action. The
court noted that when Radelow proceeded to trial
on its third amended petition, at that point in time it
had abandoned all of its prior claims against Pamex
under the first petition, See735 S.W.2d at 560. The
appellate court held that Radelow was therefore
precluded from complaining on appeal of the trial
court's action in granting the summary judgment in
favor of Pamex, and dismissed the appeal. See id.
The court based its holding on Dolenz v. All Saints
Episcopal Hosp, 638 S.W.2d 141, 142
(Tex.App.-Fort Worth 1982, writ ref‘d n.r.e.),
In Dolenz, a doctor sued a hospital for slander, and
sought an injunction restraining hospital personnel
from rescinding his staff privileges, and money
damages for the slanderous remarks. The hospital
moved for partial summary judgment on the claim
for injunctive relief. The trial court granted the hos-
pital’s motion, and entered judgment against the
doctor denying his claim for injunctive relief. After
this order, the doctor twice amended his pleadings.
The doctor then proceeded to trial on his third
amended original petition. In that petition, he
dropped all claims related to injunctive relief. At
trial, the doctor also lost on his slander claim. The
doctor then appealed on both the injunctive relief
and the slander claim. The Fort *275 Worth Court
of Appeals held that the doctor had abandoned his
claim for injunctive relief when he proceeded to tri-
an)
FOR EDUCATIONAL USE ONLY Page 6
al on his third amended original petition. The Do/-
enz court stated: “[i]n a situation such as presented,
an amended pleading supplants the instrument
amended and that which it amends is no longer
proper to be considered part of the trial record.” Id.
at 142. Therefore, on appeal, the. doctor could not
complain of the trial court's action upon his original
plea for injunction because that cause of action was
abandoned when he went to trial on his third
amended original petition. See id, at 142,
[2][3] Both Dolenz and Radelow address waiver of
the right to complain on appeal about a summary
judgment where claims denied by the summary
judgment were dropped from later amended plead-
ings. The rule underlying these cases is that a viable
complaint on appeal is lost when, following an al-
legedly erroneous ruling by the trial court on a
claim, the plaintiff files an amended pleading
abandoning the claim upon which the trial court
tuled. The vehicle by which the trial court rules is
of no moment-summary judgment, or as here, Rule
13, The key to the appellate waiver is the de jure
abandonment of the claim by excluding it from
amended pleadings following the adverse ruling.
Thus, the analysis in Dolenz and Radelow is equally
applicable here. Here, as in Radelow, the trial
court granted an adverse, interlocutory judgment
against appellants when it struck their claims
against Jackson Walker and Bleisch. Also here, as
in Radelow, following the trial court's dismissal
with prejudice of the claims against the appellees,
appellants amended their petition by dropping the
claims against the attorneys. Finally here, as in
Radelow, appellants appealed the trial court's judg-
ment, claiming the trial court erred in dismissing
the attorneys from the case. Therefore, here, as in
Radelow, appellants waived any error the trial court
may have committed by filing amended petitions
that excluded the attorneys.
FN3. Indeed, the rule also applies where
summary judgment motions are amended
to exclude certain grounds used in an earli-
er motion which was denied. Thus, in Fri-
as v. Atlantic Richfield Co., this court re-
lied on Civil Procedure Rule 65 and Rade-
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‘ow as support for its holding that where a
party filed a summary judgment motion on
certain grounds which was denied, then
filed a second motion for summary judg-
ment motion on different grounds which
was granted, the grounds alleged in the
second motion replaced the grounds in the
first motion. Under these circumstances,
this court held the movant was precluded
from appealing the trial court's denial of
the first motion. See999 S.W.2d 97, 102
(Tex.App.-Houston [14th Dist.] 1999, pet
denied).
FN4, After the trial court struck appellants’
claims against Jackson Walker and
Bleisch, appellants superceded their prior
pleadings three times with a sixth, eighth
and ninth petition, each of which omitted
Jackson Walker and Bleisch as party de-
fendants. There was no seventh amended
petition.
Waiver is a harsh result, but its application is man-
dated by our Civil Procedure Rule 65 and estab-
lished case law. However, appellants' selection of
amended pleadings rather than supplementation
dictates the result. To this end, the Dallas court of
appeals in Radelow recognized that Radelow could
have pursued its appeal if it had not abandoned its
claims against Pamex. If Radelow had filed a sup-
plemental rather than an amended pleading, its
claims against Pamex would have been preserved.
We agree with the Radelow court's observation. Be-
cause appellants proceeded on an amended petition
that did not include Jackson Walker and Bleisch,
the live pleadings at the time sanctions were im-
posed do not reflect any claims against those two
appellees. Thus, the appellants have waived any er-
ror concerning the trial court's action striking appel-
lants' claims against Jackson Walker and David
Bleisch, and dismissing those claims with preju-
dice.
Il.
The Sanctions Order
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FOR EDUCATIONAL USE ONLY Page 7
A. Standard of Review
*276 [4][5][6][7)[8] Turning to the merits of appel-
lants' four points of error challenging the trial
court's ruling on the attorney defendants’ motion for
sanctions, we will review the asserted ier using
the most deferential standard of review, A trial
court's decision to impose sanctions under Texas
Rule of Civil Procedure 13 will not be overruled on
appeal unless an abuse of discretion is shown. See
Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821,
824 (Tex.App.-Houston [14th Dist.] 1998, pet.
denied); see also Zarsky v. Zurich Management,
Inc., 829 §.W.2d 398, 399 (Tex.App.-Houston
{14th Dist.] 1992, no writ). The test for abuse of
discretion is “whether the court acted without refer-
ence to any guiding rules and principles,” or
“whether the act was arbitrary or unreasonable.”
Downer y, Aquamarine Operators, Inc, 701
S.W.2d 238, 241-42 (Tex.1985). A trial court ab-
uses its discretion in imposing sanctions only if it
based its order on an erroneous view of the law or a
clearly erroneous assessment of the evidence. See
Monroe v. Grider, 884 S.W.2d 811, 816
(Tex.App.-Dallas 1994, writ denied). To reach a de-
cision on whether the sanctions constitute an abuse
of discretion, we examine the entire record. See id.
at 816. When reviewing a trial court's finding under
the abuse of discretion standard, we may not substi-
tute our judgment for that of the trial court. See
Schlager v. Clements, 939 S.W.2d 183, 191
(Tex.App,-Houston [14th Dist.] 1996, writ denied).
Rather, we are limited to determining whether the
trial court abused its discretion by (1) acting arbit-
rarily and unreasonably, without reference to guid-
ing rules or principles,; or (2) misapplying the law
to the established facts of the case. See id, With the
appropriate standard of review in mind, we tum to
the trial judge's order striking the appellants’ plead-
ings.
FNS. All four of appellant's appellate is-
sues relate to the propriety of the sanctions
order, but we address separately the pub-
lication element of defamation at page 12
below.
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B. Appellants' Claims Challenged by the Rule 13
Motion
In paragraphs 23 and 24 of their Fifth Amended
Original Petition, appellants state:
23. N. David Bleisch is an attorney for Jackson
Walker, L.L.P. and in the course and scope of his
employment with that firm he accused the Control-
ler, Lloyd Kelley, and his staff of unlawful conduct.
Defendant Bleisch did so verbally and in writing.
Specifically, Bleisch stated in written correspond-
ence to Kelley that his denial of access to Dolcefino
to the Controller's Office in the absence of a com-
pelling governmental interest to the contrary “is un-
lawful.” Furthermore, Bleisch, in a telephone call
on speaker phone with Mr. Kelly accused Kelley of
doing something unlawful by not interviewing with
Mr. Dolcefino, During that telephone conversation
there were several members of the Controller's Of-
fice staff who were in Mr. Kelley's office who were
parties to the conversation and heard the accusation
that was made by Bleisch,
24. Upon information and belief, Defendants
Bleisch and Jackson Walker, L.L.P. participated in
editing and creation of the stories that were defam-
atory and aired by Defendant Channel 13 and De-
fendant Dolcefino which caused Plaintiffs harm.
Bleisch went outside the scope of his representation
of Defendants when he acted as decision maker in
actively working on the production of news stories
by contacting Kelley and his staff and demanding
interviews and access for Mr. Dolcefino to conduct
interviews. Furthermore, Henry Florsheim, the
General Manager of KTRK, *277 testified at depos-
ition that Bleisch was present at the editing sessions
and meetings regarding the upcoming broadcasts in
August of 1997 which are the subject of this suit.
The foregoing two paragraphs constitute all of the
claims brought by appellants against Bleisch and
Jackson Walker.
C. Rule 13
Rule 13 provides, in part:
The signatures of attorneys or parties constitute a
certificate by them that they have read the pleading,
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FOR EDUCATIONAL USEONLY - Page 8
motion or other paper; that to the best of their
knowledge, information and belief formed after
reasonable inquiry the instrument is not groundless
and brought in bad faith or groundless and brought
for the purpose of harassment.
teases
No sanctions under this rule may be imposed except
for good cause, the particulars of which must be
stated in the sanction order. “Groundless” for pur-
poses of this rule means no basis in law or fact and
not warranted by good faith argument for the exten-
sion, modification, or reversal of existing law.
TEX.R. CIV. P. 13.
[9]{10] Rule 13 authorizes the trial court to impose
an appropriate sanction available under Civil Pro-
cedure Rule 215.2(b) against an attorney, a repres-
ented party, or both, who filed a pleading that is
both: (1) groundless and brought in bad faith; or (2)
groundless and brought to harass. See Monroe, 884
S.W.2d at 817. The purpose of Rule 13 is to check
abuses in the pleading process, See id. A party
seeking sanctions has the burden of establishing his
right to relief. See GTE Communications v. Tanner,
856 S.W.2d 725, 729 (Tex.1993).
D. Required Findings under Rule 13
[11] Appellants contend in their second issue the
trial court erred in making factual determinations
regarding contested issues in a Rule 13 proceeding.
We disagree. Rule 13 requires that if a court finds,
after notice and a hearing, that a pleading contains
claims that are groundless and either brought in bad
faith or for the purpose of harassment, the court
shall impose an appropriate sanction available _un-
der Texas Rule of Civil Procedure 215.2(b).
Because appellees had the burden to establish that
sanctions were justified, it was “imperative for the
trial court to convene and conduct an evidentiary
hearing.” SeeKaragounis v. Property Co. of Amer-
ica, 970 S.W.2d 761, 765 (Tex.App.-Amarillo
1998, pet. denied). Here, the trial court concluded
that appellants’ claims against Jackson Walker and
Bleisch were groundless and brought for the pur-
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29 S.W.3d 271
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pose of harassment. In support of that conclusion,
the trial judge found, as is required by Rule 13, that
the claims were groundless (1) because there is no
basis, nor is there a good faith argument for, a de-
famation suit against an attorney for providing con-
sultation to a client during a pre-publication review;
(2) and there is no cause of action for defamation
against an attorney who makes defamatory state-
ments preliminary to, and in connection with, a pro-
posed judicial proceeding because such statements
are absolutely privileged. The trial court properly
complied with the requirements of Rule 13:
FN6. An order striking pleadings, or parts
thereof, is an appropriate sanction under
Rule 215.2(b)(5). In their first appellate is-
sue, appellants contend that striking parts
of a pleading is not an available sanction
under § 10.004 of the Civil Practice and
Remedies code. We agree. However, such
a sanction is available under Rule 13. Ap-
pellees moved for sanctions under both
Chapter 10 of the C.P.R.C. and under Rule
13. Because the sanctions imposed are
available under Rule 13, we overrule ap-
pellants' first issue.
Rule 13 motions ... require the trial court to make
factual determinations concerning whether a party's
legal position as stated in the pleadings is substan-
tially justified. Obviously, a trial *278 judge hear-
ing the evidence, examining the credibility of the
witnesses, and familiar with the litigation practices
of the local bar, is in much better position than an
appellate court to determine whether Rule 13 has
been violated, especially in “fact intensive close
calls.”
See Home Owners Funding Corp. v. Scheppler, 815
S.W.2d 884, 888 (Tex.App.-Corpus Christi 1991,
no writ).
Thus, the trial court complied with the rule's re-
quirement that the order state the particulars sup-
porting the good cause for which the sanctions were
imposed. Because we cannot say the trial court
made a clearly erroneous assessment of the evid-
ence, the court did not abuse its discretion in de-
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termining facts at the Rule 13 hearing. See Monroe,
884 S.W.2d at 816, Our conclusion is guided by
this court's decision in Schlager that an abuse of
discretion is not shown where the trial court bases
its decision on conflicting evidence. See939 S.W.2d
at 191, Here, the trial court properly resolved con-
tested issues related to whether the claims made in
appellants’ pleadings were, at the time they were
filed, factually well grounded and legally tenable.
See Karagounis, 970 S.W.2d at 764. Accordingly,
we overrule appellants’ second appellate issue.
E. Absolute Privilege-Fifth Amended Petition Para-
graph 23
[12] Appellees assert an absolute privilege applies
to Bleisch's statements to Kelley because they were
made in contemplation of judicial proceedings.
However, the absolute privilege claimed by the at-
torneys “is more properly thought of as an im-
munity.” Hurlbut v, Gulf Atlantic Life Ins. Co., 749
S.W.2d 762, 768 (Tex.1987). In other words, the
“absolute privilege is not a defense. Rather abso-
lutely privileged communications are not action-
able.” CEDA Corp. v. City of Houston, 817 S.W.2d
846, 849 Tex.App.-Houston [Ist Dist.] 1991, writ
denied). Thus, communications subject to this priv-
ilege simply “cannot constitute the basis of a civil
action,” nor may they form a basis for civil liabil-
ity. See Reagan v. Guardian Life Ins. Co., 140 Tex.
105, 166 S.W.2d 909, 912 (1942); see also Ross v.
Arkwright Mut. Ins. Co., 892 S.W.2d 119, 132
Tex.App.-Houston [14th Dist.] 1994, no writ).
[13] The issue of whether an alleged defamatory
matter is related to a proposed or existing judicial
poCeeaTagTs-& question of Taw to be determined by
the-court, See Thomas v. Bracey, 940 S.W.2d 340,
343 (Tex.App.-San Antonio 1997, no pet.); see also
Russell v. Clark, 620 S.W.2d 865, 870
(Tex.Civ.App.-Dallas 1981, writ refd nre.). All
doubt should be resolved in favor of the communic-
“ation’s relation to the proceeding. See id.
“Tt is a verity of life that all things human, includ-
ing lawsuits, have a beginning and end. These two
aspects define the thing involved, and in defining it,
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29 S.W.3d 271 .
(Cite as: 29 S.W.3d 271)
they are inextricably related to and become a part
of it.” Bennett v. Computer Associates Intern., Inc.,
932 S.W.2d 197, 201 (Tex.App.-Amarillo 1996,
writ denied). Courts have deemed conduct related
to the initiation of a suit as sufficiently related to a
ileged. See Thomas, 940 S.W.2d at 343 (holding de-
mand letter written prior to and during litigation ab-
solutely privileged); see also Russell, 620 S.W.2d
at 868 (holding letter to investors seeking evidence
to use in ding litigati solutely privileged);
see also Kanengiser v. Kanengiser, 248 N.J.Super.
318, 590 A.2d 1223, 1231 (New Jersey App.1991)
(holding that statements typically found in an attor-
ney's demand letter related to an imminent judicial
proceeding absolutely privileged).
The public policy behind absolute privilege as it
relates to attorneys representing clients in a pending
or contemplated proceeding was noted by the court
in Russell:
Public policy demands that attorneys be granted the
utmost freedom in their efforts to represent their
clients. To grant immunity short of absolute priv-
ilege to communications relating to *279 pending
or proposed litigation, and thus subject an attorney
to liability for defamation, might tend to lessen an
attorney's efforts on behalf of his client,
Russell, 620 S.W.2d at 868 (cited inThomas, 940
S.W.2d at 343).
[14][15] Here, the alleged defamatory statements
were made in” one letter and a telephone call
between Bleisch and Kelley. In the fetter, Bleisch
SST "[T RIOTS Suiy®s Genial of woosSe TO par
ticular member of the media in the absence of a
compelling governmental interest to the contrary is
aslawi” * Ta the tlophone eal, Bleisch a-
legedly accused Kelley of violating Texas Open
Records Act by refusing equal access to
Doleefino FNS We agree with the appellees that
these statements were directly related to a contem-
plated judicial proceeding, and thus are_part of
proposed judicial proceeding, which is the
“beginning” so eloquently described in Bennett.
Accordingly, we hold the statements at issue are ab-
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FOR EDUCATIONAL USE ONLY Page 10
solutely privileged. See Thomas, 940 S.W.2d at
343.
FN7. This is a correct statement of the law.
Under Texas case law, a public official
may not constitutionally deny to one media
access that is enjoyed by other media, be-
cause one media is entitled to the same
tight of access as any other, and the media
denied access may seek. legal redress for
the alleged abridgement of a constitution-
ally guaranteed right. See Southwestern
Newspapers v. Curtis, 584 S.W.2d 362,
365 (Tex.Civ.App.-Amarillo 1979, no
writ).
FN8. This statement also reflects the equal
access required by Curtis, See alsoTEX.
GOVT CODE ANN. § .552.223 (Vernon
Supp.2000) ( “The officer for public in-
formation or the officer's agent shall treat
all requests for information uniformly
without regard to the position or the occu-
pation of the requestor, the person on
whose behalf the request is made, or the
status of the individual as a member of the
media.”)
In Thomas, the trial court found that a statement
written in a letter to the plaintiff, by the defendant's
attorney, and published to a third party, was made
in connection to pending, as well as to proposed,
litigation. See id. at 343-44. The pending litigation
was an aggravated assault action brought when the
plaintiff threatened a third party with a gun. The
proposed litigation, alluded to in the letter,
however, was instituted two months after the letter
was written. Here, as in Thomas, Bleisch clearly
stated he was writing the letter on behalf of his cli-
ent, KTRK Television, and was doing so in an ef-
fort to secure his client's legal rights. Further, at the
hearing on the appellees’ motion for sanctions, the
appellees submitted Dolcefino's affidavit, in which
he stated, “{i]t was my anticipation on July 30,
1998 [the date the allegedly defamatory letter was
written], and it was the anticipation of KTRK, that
if the City Controller's office continued to stone-
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29 S.W.3d 271
(Cite as: 29 S.W.3d 271) -
wall us, it might be necessary to file suit to obtain
our rightful access.”
Thus, the evidence demonstrates Bleisch's state-
ments to Kelley were made during the course of his
Tepresentation of his clients and preliminary to a
proposed judicial proceeding. Therefore, the trial
court did not abuse his discretion by concluding the
claim was groundless, based on the absolute priv-
ilege afforded attorneys in these circumstances.
Point of error four is overruled.
We will also address appellants' third point of error
regarding publication of Bleisch's allegedly defam-
atory statements af this juncture because the issue
can be disposed of easily.
(1). The Letter
[16][17][18] The July 30, 1997 letter from Bleisch
to Kelley set out the law as articulated in Curtis.
That sentence was the allegedly defamatory state-
ment in the letter. However, that sentence is true.
‘The truth of a defamatory-statement is an affirmat-
ive defense. See M.N. Dannenbaum, Inc. v.
Brummerhop, 840 (S.W.2d 624, 633-34
(Tex.App.-Houston [14 '" pist.] 1992, writ denied).
Here, Jackson Walker, pursuant to Civil Procedure
Rule 94, filed an answer to appellants' Fifth
Amended Original Petition pleading the truth of the
statement. Further, two days after the allegedly de-
famatory letter was sent by *280 facsimile to Kel-
ley, Bleisch sent another letter to David Hagey,
Deputy Controller, City of Houston, explaining to
him that the basis of the statement in the July 30
letter was the opinion in Curtis. Inasmuch as the al-
legedly offensive statement in the July 30 letter was
an absolutely correct statement of the law, and the
basis therefor was affirmatively demonstrated for
the trial court and appellants, Bleisch cannot be li-
able for making the statement in the July 30 letter
to Kelley. See Randall's’ Food Markets, Inc. v.
Johnson, 891 S.W.2d 640, 646 (Tex.1995) (stating
that truth is a complete defense to defamation). Be-
cause the truth of the statement bars liability for the
statement, whether or not the letter was published is
of no moment.
AN
FOR EDUCATIONAL USE ONLY Page 11
FN9. Appellants' brief contains the follow-
ing assertion without any citation to the re-
cord: “The [July 30] letter was seen by nu-
merous employees of the City of Houston,
including Bill Stevens, David Hagy, and
the City Attorney.” This failure violates
the clear mandate of appellate procedure
rule 38.1(h) which requires the argument
in a brief to contain citations to the record.
SeeTEX.R.APP. P. 38.1(h). Nevertheless,
because we found a single sentence in Kel-
ley's affidavit that “All correspondence I
received from Mr. Bleisch and details of
his conversation were relayed to the city
Attorney's Office according to the City's
policies and procedures,” we will address
the issue of publication as to the letter. The
Texas Supreme Court long ago addressed
this issue and held that if the publication of
which the plaintiff complains was consen-
ted to, authorized, invited or procured by
the plaintiff, he cannot recover for injuries
sustained by reason of the publication. See
Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d
770, 772(1945). In Lyle, the plaintiff had
asked her physician to write a letter to her
describing her treatment so that it could be
shown to her new physician in the Green-
ville area to which she was moving. The
first physician complied with her request.
The plaintiff sued for libel because the
treatment described in the letter indicated
to any physician she had a loathesome dis-
ease, and when the letter was exhibited to
her Greenville physician, it was a libelous
publication by the defendant. There, as
here, the letter was not addressed to any
third party, but was only addressed to the
plaintiff. There, as here, the plaintiff had
control of the letter. And there, as here, the
plaintiff voluntarily disclosed the letter to
another.
The Lyle Court concluded that where dis-
closure to a third party is accomplished by
the plaintiff, publication was by the
plaintiff. The court held that where public-
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.‘
os
29 S.W.3d 271
29 S.W.3d 271
(Cite as: 29 S.W.3d 271)
ation of the allegedly defamatory matter
was effected by the plaintiff, and not by
the defendant, a cause of action does not
accrue in favor of the plaintiff. Jd. It fol-
lows, therefore, that Kelley has no libel
claim against Jackson Walker based on the
July 30 letter because publication was ac-
complished by Kelley.
(2). The Telephone Conversation
It is not entirely clear from the record before this
court, but there is evidence to support the conclu-
sion that the telephone conversation between
Bleisch and Kelley occurred on the same day the
controller's office received Bleisch's letter by fac-
simile. Both Bleisch and Kelley described the
nature of that conversation. There appear to be sev-
eral important aspects of that conversation. First,
Kelley asserts in his affidavit that the call was on a
speaker phone, and that Messrs. Hagy and Stevens
heard the entire conversation. He also stated that
Bleisch never mentioned litigation or any legal pro-
ceeding. Bleisch stated in his deposition that he did
not threaten anyone during the telephone conversa-
tion, that the discussion focused on the letter and
the authority for the statement, and that he did not
advise Kelley that he had to interview with
Dolcefino.
[19] We have already held that the statements
Bleisch made to Kelley, in print and in the tele-
phone conversation, were related to a contemplated
judicial proceeding. Bleisch in his deposition and
Dolcefino in his affidavit affirmatively and clearly
stated that if the controller's office persisted in
denying access to KTRK, legal proceedings to gain
access were contemplated. Thus, the statements are
absolutely privileged. Where, as here, communica-
tions are protected by the absolute privilege, those
communications may not serve as the basis of a
civil action for libel or slander, regardless of the
negligence or malice with which they are made. See
*281Thomas, 940 S.W.2d at 342-43. It follows that
when a statement is so protected, publication of the
statement does not defeat the privilege. /d. at 344.
Accordingly, we overrule appellants' third appellate
re“
FOR EDUCATIONAL USE ONLY . Page 12
issue.
F, Pre-Publication Review-Fifth Amended Petition
Paragraph 24
As noted above, in cause number 14-99-00026-CV,
this Court reversed and rendered judgment for the
media defendants on Randolph and Kelley's defam-
ation claims. Because this Court held that a defama-
tion claim will not lie against the media defendants,
a fortiori that same claim could not lie against the
attorneys who advised them. Even if we ignore this
court's June 8, 2000 opinion in cause number
14-99-00026-CV, there is simply no basis in law
for a suit against the attorneys representing the me-
dia defendants for their pre-publication discussions
of the allegedly defamatory news reports. See Up-
john Co. v, United States, 449 U.S. 383, 101 S.Ct.
677, 66 L.Ed.2d 584 (1981) (holding communica-
tions between corporate counsel and corporation's
employees made for the purpose of rendering legal
advice protected by attorney-client privilege); see
also Liberty Lobby, Inc. v. Dow Jones & Co., Inc.,
838 F.2d 1287, 1302 (D.C.Circ,1988) (holding pre-
publication discussions between libel counsel and
reporters as fitting “squarely within the scope of the
privilege as defined in Upjohn”).
[20] Moreover, there can be no claim against a law-
yer who allegedly wrongly advised another party,
thus leading to the other party's alleged defamatory
statements. See Thompson v. Vinson & Elkins, 859
S.W.2d 617, 624 (Tex.App.-Houston [Ist Dist.]
1993, writ denied). Any such claim based on
wrongful advice supplied by the attorney rests with
the wrongly advised party itself. Jd. Appellants
have no standing to sue the attorneys for the advice
given to their clients. Accordingly,based on the
foregoing, we hold the trial court did not abuse its
discretion in finding that the defamation claims
against the attorneys were groundless.
G. Harassment
[21] Before granting a motion for sanctions, Rule
13 requires that the trial judge find the claim is
groundless and was brought in bad faith or for the
purpose of harassment. The doctrine of absolute
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.“oN
29 S.W.3d 271
29 S.W.3d 271
(Cite as: 29 S.W.3d 271)
privilege and the bar precluding attorney liability
for the allegedly defamatory acts of their clients
dispose of the groundless prong; however, other
evidence must be shown to demonstrate the bad
faith or harassment. See Molzan, 974 S.W.2d at 824
(noting bad faith established by the testimony of
two witnesses as to other frivolous suits filed by the
appellants). Here, the trial judge found the suit was
brought for the purpose of harassment in order to
“disrupt the attorney client relationship.” Evidence
adduced at the sanctions hearing supports this find-
ing.
At the hearing, Charles Babcock, attorney for the
appellees, called Ronald Cohen, attorney for Ran-
dolph and Kelley, to the stand. During Cohen's
testimony, the following exchanges occurred:
Q. (Babcock) Did you not have a conversation with
me in the hallway this morning where you said that
if we would withdraw from the case, you would
drop Jackson walker and Mr. Bleisch?
A. (Cohen) No. Why don't you tell the ... entire
conversation, Mr. Babcock? You asked me if I
would drop my pleadings, and then I answered to
you, if you would withdraw. That was my-that was
our conversation, Mr. Babcock.(emphasis added).
eee
Q. (Babcock) Okay. Mr. Cohen, what is your recol-
lection of what I said to initiate the conversation?
A. (Cohen) You asked me if we filed a Response to
the Motion, because you had not gotten it yet. And
I said, “Well, we sent it certified mail.”
*282 Q. All right.
A. I said, I will try to get you a copy. I think you
asked me for a copy or I said I would try to get you
a copy of it.
Q. Right.
A. Then you stated to me: “Would you drop your-
do you want to drop your complaint against Jackson
& Walker?” Or something to that effect.
Q. Correct. .
A. And I said, “Why? Do you want to get off the
case?” or something to that effect. And my answer
was in response to you asking me to drop my claim
“~
FOR EDUCATIONAL USE ONLY Page 13
against you.
eeeeeen
Q. (Babcock) So you think it would be inappropri-
ate for Jackson & Walker to continue so long as
they are defendants in the lawsuit; correct?
A. (Cohen) I believe so.
The trial judge stated during the hearing that she
believed this line of questioning went to Cohen's
motive for joining Bleisch and Jackson Walker as
defendants. We agree. This evidence constitutes
some evidence of harassment, namely that the ap-
pellants filed suit against the appelices attomeys to
pressure them into withdrawing from their
representation. Based on this evidence, the trial
judge did not commit an abuse of discretion by
finding the claims against the attorneys were both
groundless and filed for the purpose of harassment.
Therefore, appellants' points of error challenging
the trial court's sanctions are overruled. ~
FN10. Under Rule 3.08 of the Texas Rules
of Professional Conduct, attorneys should
withdraw as counsel to a client if they will
be called as witnesses. See Spain v. Mont-
alvo, 921 S.W.2d 852, 859-60
(Tex.App.-San Antonio 1996, orig. pro-
ceeding).
We affirm the judgment of the trial court.
Tex.App.-Houston [14 Dist.],2000.
Randolph v. Walker
29 S.W.3d 271
END OF DOCUMENT
© 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Preview
Westlaw, 29 S.W.3d 271 29 S.W.3d 271 (Cite as: 29 S,W.3d 271) e Randolph v. Walker Tex.App.-Houston [14 Dist.],2000. Court of Appeals of Texas,Houston (14th Dist.). Cynthia Everett RANDOLPH and Lloyd E. Kelley, Appellants, v. Jackson WALKER L.L.P., and N. David Bleisch, Appellees. No. 14-99-00744-CV, Sept. 14, 2000. Rehearing Overruled Oct. 26, 2000. Former city controller and his executive assistant brought action against television reporter, attorney, and law firm for defamation. The 127th District Court, Harris County, Sharolyn Wood, J., struck the pleadings relating to any claims against attorney and law firm, and subsequently severed the claims against them. Plaintiffs appealed. The Court of Ap- peals, Anderson, J., held that: (1) sanctions of strik- ing claims from pleadings and dismissing them with prejudice were appropriate; (2) allegedly de- famatory statements made by attorney were suffi- ciently related to a judicial proceeding as to be ab- solutely privileged; and (3) statement in attorney's —_——__ —__—_—— letter was true, and thus, was an affirmative defense etter Was Sue, and thus, was an atiimmative corense to defamation claim. Affirmed. West Headnotes [1] Parties 287 €=765(1) 287 Parties 287ITV New Parties and Change of Parties 28765 Striking Out Parties 287k65(1) k: In General. Most Cited Cases When a party's name is omitted from an amended pleading, he is as effectively dismissed as where a formal order of dismissal is entered. [2] Appeal and Error 30 €=7154(2) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. QWU-S9 740 = =™ FOR EDUCATIONAL USE ONLY Page 1 1Q5 Coury 30 Appeal and Error 30IV Right of Review 30IV(B) Estoppel, Waiver, or Agreements Affecting Right 30k154 Recognition of or Acquiescence in Decision 30k154(2) k, Pleading Over or Amend- ment of Pleadings. Most Cited Cases Former city controller and his executive assistant waived appellate review of any alleged error related. to trial court's order striking from their pleadings, and dismissing with prejudice, defamation claims against attorney and law firm, where they filed an amended pleading that did not include any claims against attorney and law firm. Vernon's Ann.Texas Rules Civ.Proc., Rules 13, 65. [3] Appeal and Error 30 €=-154(2) 30 Appeal and Error 30IV Right of Review 30IV(B) Estoppel, Waiver, or Agreements Affecting Right 30k154 Recognition of or Acquiescence in Decision 30k154(2) k. Pleading Over or Amend- ment of Pleadings. Most Cited Cases Rule that appellate review of an alleged error is waived by an amended filing applies where sum- mary judgment motions are amended to exclude certain grounds used in an earlier motion which was denied. Vernon's Ann.Texas Rules Civ.Proc., Rule 65. [4] Appeal and Error 30 €->984(1) 30 Appeal and Error 30XVI Review 30XVI(H) Discretion of Lower Court 30k984 Costs and Allowances 30k984(1) k. In General, Most Cited Cases A trial court's decision to impose sanctions for a frivolous pleading will not be overruled on appeal unless an abuse of discretion is shown. Vernon'saN ~ 29 S.W.3d 271 FOR EDUCATIONAL USE ONLY Page 2 29 S.W.3d 271 (Cite as: 29 S,W.3d 271) Ann.Texas Rules Civ.Proc., Rule 13. 30k944 Power to Review [5] Appeal and Error 30 €2946 30 Appeal and Error 30XVI Review 30XVI(H) Discretion of Lower Court 30k944 Power to Review 30k946 k. Abuse of Discretion. Most Cited Cases The test for a trial court's abuse of discretion is whether the court acted without reference to any guiding rules and principles, or whether the act was arbitrary or unreasonable, {6] Appeal and Error 30 €=984(1) 30 Appeal and Error 30XVI Review 30XVI(H) Discretion of Lower Court 30k984 Costs and Allowances 30k984(1) k. In General. Most Cited Cases A trial court abuses its discretion in imposing sanc- tions for a frivolous pleading only if it based its or- der on an erroneous view of the law or a clearly er- Toneous assessment of the evidence. Vernon's Ann.Texas Rules Civ.Proc., Rule 13. {7] Appeal and Error 30 €=984(1) 30 Appeal and Error 30XVI Review . 30XVI(H) Discretion of Lower Court 30k984 Costs and Allowances 30k984(1) k. In General. Most Cited - Cases An appellate court, to reach a decision on whether a trial court's sanctions for a frivolous pleading con- stitutes an abuse of discretion, examines the entire record. Vernon's Ann.Texas Rules Civ.Proc., Rule 13. {8] Appeal and Error 30 ©7946 30 Appeal and Error 30XVI Review 30XVI(H) Discretion of Lower Court 30k946 k. Abuse of Discretion. Most Cited Cases When reviewing, a trial court's finding under the abuse of discretion standard, an appellate court may not substitute its judgment for that of the trial court; rather, it is limited to determining whether the trial court abused its discretion by: (1) acting arbitrarily and unreasonably, without reference to guiding tules or principles,; or (2) misapplying the law to the established facts of the case. [9] Costs 102 €2 102 Costs 102I Nature, Grounds, and Extent of Right in General 102k1 Nature and Grounds of Right 102k2 k. In General. Most Cited Cases The purpose of rule allowing sanctions for a frivol- ous pleading is to check abuses in the pleading pro- cess, Vernon's Ann.Texas Rules Civ.Proc., Rule 13. [10] Costs 102 €2 102 Costs 1021 Nature, Grounds, and Extent of Right in General 102k1 Nature and Grounds of Right 102k2 k. In General. Most Cited Cases A party seeking sanctions for a frivolous pleading has the burden of establishing his right to relief. Vernon's Ann. Texas Rules Civ.Proc., Rule 13. [11] Pleading 302 €=>365(3) 302 Pleading 302XVI Motions 302k361 Striking Out Matter from Pleading 302k365 Application and Proceedings Thereon 302k365(3) k. Hearing, Determination, and Order. Most Cited Cases Factual determinations of contested issues could be made at hearing on motion to strike portion of al- legedly abusive pleadings in defamation action, in order to resolve whether claims in pleadings were, at time they were filed, factually well grounded and © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.“a 29 S.W.3d 271 29 S.W.3d 271 (Cite as; 29 S.W.3d 271) legally tenable and to comply with rule's require- ment that order state particulars supporting grounds for which sanctions were imposed. Vernon's Ann.Texas Rules Civ.Proc., Rule 13. {12] Libel and Slander 237 €=-36 237 Libel and Slander 23711 Privileged Communications, and Malice Therein 237k35 Absolute Privilege 237k36 k. In General. Most Cited Cases The absolute privilege is not a defense to defama- tion; rather absolutely privileged communications are not actionable. [13] Libel and Slander 237 €=>38(1) 237 Libel and Slander 23711 Privileged Communications, and Malice Therein 237k35 Absolute Privilege 237k38 Judicial Proceedings 237k38(1) k. In General. Most Cited Cases : Libel and Slander 237 €=>123(8) 237 Libel and Slander 2371V Actions 237IV(E) Trial, Judgment, and Review 237k123 Questions for Jury 237k123(8) k, Privilege. Most Cited Cases . The issue of whether an alleged defamatory matter is related to a proposed or existing judicial proceed- ing, so as to be subject to absolute privilege, is a question of law to be determined by the court, and all doubt should be resolved in favor of the commu- nication's relation to the proceeding. [14] Libel and Slander 237 €=-38(5) 237 Libel and Slander 23711 Privileged Communications, and Malice Therein 237k35 Absolute Privilege 237k38 Judicial Proceedings aN FOR EDUCATIONAL USE ONLY . Page 3 237k38(5) k. Briefs, Arguments, and Statements of Counsel. Most Cited Cases Alleged defamatory statements made by television reporter's attorney in a letter and telephone call between attorney and city controller, in which attor- ney criticized city controller's denial of access to his client, were sufficiently related to a judicial pro- ceeding as to be absolutely privileged. [15] Constitutional Law 92 €=>2070 92 Constitutional Law 92XVIMI Freedom of Speech, Expression, and Press 92XVIII(U) Press in General 92k2070 k. In General. Most Cited Cases (Formerly 92k90.1(8)) A public official may not constitutionally deny to one media access that is enjoyed by other media, because one media is entitled to the same right of access as any other, and the media denied access may seek legal redress for the alleged abridgement of a constitutionally guaranteed right. [16] Libel and Slander 237 €-754 237 Libel and Slander 237III Justification and Mitigation 237k54 k. Truth as Justification in General. Most Cited Cases . Statement made by television reporter's attorney in letter to city controller, that a “public entity's denial of access to a particular member of the media in the absence of a compelling governmental interest to the contrary is unlawful” was true, and thus, was an affirmative defense to defamation claim. [17] Libel and Slander 237 €=>54 237 Libel and Slander 237III Justification and Mitigation 237k54 k. Truth as Justification in General. Most Cited Cases The truth of a defamatory statement is an affirmat- ive defense. [18] Libel and Slander 237 €=>25 © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.A a 29 S.W.3d 271 FOR EDUCATIONAL USE ONLY Page 4 29 S.W.3d 271 ° (Cite as: 29 S.W.3d 271) 237 Libel and Slander his executive assistant's defamation action against 2371 Words and Acts Actionable, and Liability Therefor 237k23 Publication 237k25 k. Libel. Most Cited Cases City controller had no libel claim against television teporter's attorney for an allegedly defamatory let- ter, in which attorney stated that a “public entity's denial of access to a particular member of the me- dia in the absence of a compelling governmental in- terest to the contrary is unlawful,” as publication ‘was accomplished by city controller, where the let- ter was not addressed to any third party, city con- troller had control of the letter, and he voluntarily disclosed the letter to another. {19] Libel and Slander 237 €=236 237 Libel and Slander 237M Privileged Communications, and Malice Therein 237k35 Absolute Privilege 237k36 k. In General. Most Cited Cases When an allegedly defamatory statement is protec- ted by the absolute privilege, publication of the statement does not defeat the privilege. [20} Libel and Slander 237 €=>74 237 Libel and Slander 237IV Actions 2371V(A) Right of Action and Defenses 237k74 k. Persons Liable. Most Cited Cases There can be no defamation claim against a lawyer who allegedly wrongly advised another party, thus leading to the other party's alleged defamatory statements; any such claim based on wrongful ad- vice supplied by the attorney rests with the wrongly advised party itself. [21] Libel and Slander 237 €=7129 237 Libel and Slander 2371V Actions 237IV(E) Trial, Judgment, and Review 237k129 k. Costs. Most Cited Cases Evidence was sufficient to find city controller and television reporter's attorney was brought for the purpose of harassment, as required before sanctions for a frivolous pleading could be assessed, where testimony indicated the suit was filed in order to pressure attorney into withdrawing from his repres- entation of the reporter, Vernon's Ann.Texas Rules Civ.Proc., Rules 13, 215.2(b). *273 J. Marcus Hill, Houston, for appellants. David Timothy Moran, Charles L. Babcock, Byron Daryl Bristow, Houston, for appellees. Panel consists of Justices, ANDERSON, EDEL- MAN, and DRAUGHN. FN* Senior Justice Joe L. Draughn sitting by assignment. OPINION JOHN S. ANDERSON, Justice. This is a defamation case which was resolved in the trial court by Rule 13 death penalty sanctions. Appellants, Cynthia Randolph and Lloyd Kelley, challenge the trial court's order striking that portion of their pleadings containing claims against Jackson Walker Li and David Bleisch, attorneys for the appellees. On appeal, appellants claim the trial court erred when it granted appellees’ motion for sanctions because: (1) section 10.001 of the Texas Civil Practices & Remedies Code does not support the sanctions issued; (2) the court improperly made factual determinations of contested issues in a Rule 13 proceeding; (3) the claims against the attorney defendants are not groundless because the defamat- ory statements.were published; and (4) appellees’ attorneys cannot claim absolute privilege. We af- firm. FNI1. In the trial court, Randolph and Kel- ley sued the appellees reflected in the style of this case, and Wayne Dolcefino, KTRK Television. Inc., C C Texas Holding Co., Inc., Capital Cities/ABC, Inc., Henry Flor- sheim, and David Gwizdowski. The trial court granted the appellees’ motion in this case for Rule 13 sanctions and struck ap- © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.o~ 29 S.W.3d 271 29 S.W.3d 271 (Cite as: 29 $.W.3d 271) pellants' claims in their Third, Fourth, and Fifth Amended Petitions against Jackson Walker and Bleisch, and dismissed those claims with prejudice. Thereafter, the trial court severed appellants’ claims against Jackson Walker and Bleisch into the “A” trial court cause number reflected above. That severance made the interlocutory judgment granting sanctions and dismiss- ing claims final and appealable. See Mar- tinez v. Humble Sand & Gravel, Inc., 815 S.W.2d 311, 312 (Tex.1994) (holding trial court may make a judgment final for pur- poses of appeal by severing the causes and parties disposed of by the judgment into a different cause). In addition, on the same day as the sever- ance, a “final judgment” was signed in the “A” cause number disposing of all claims as to all parties in the severed proceeding. It is from this final judgment that appeal is brought in our cause number 14-99-00744-CV. The defendants remain- ing after the severance, Dolcefino, et al., as well as the plaintiffs Randolph and Kelley, are also before this court on appeal in an- other proceeding. An opinion on rehearing was issued by this Court on June 8, 2000 in cause number 14-99-00026-CV, reversing and rendering judgment for the media de- fendants on the plaintiffs' defamation and other claims. IL Factual and Procedural Background The facts underlying this case are that Wayne Dolcefino, an investigative reporter with KTRK Television, conducted_an_investigation_of Lloyd Kelley, who at the time was Houston's City Con- tTolle?, uncovering Kelley's questionable business practices, Because Kelley refused to give Dolcefino access to city property and an on-camera interview, Dolcefino requested that his attorney, David Bleisch of Jackson Walker L.UP., contact Kelley. AN FOR EDUCATIONAL USE ONLY : Page 5 When the news story developed by Dolcefino and detailing Kelley's business and personal activities aired, Randolph filed *274 suit accusing Dolcefinio of defamation. Kelley joined in the Suit, and both subsequently joined appellees Jackson Walker and Bleisch as defendants, proceeding on defamation and conspiracy to defame claims stem- ming from Bleisch's contact with Kelley. FN2. Cynthia Randolph, an executive as- sistant of Kelley's, was videotaped sun- bathing at Splashtown with Kelley: during normal business hours. Although Randolph originally claimed the. time .spent at Splashtown as compensable working hours, after the broadcast she changed her timesheet to show this time as vacation. Procedurally, after appellants joined Jackson Walk- er_and Bleisch, appellees filed a motion under Texas Civil Procedure Rule 13 requesting that the rial court strike a portion of appellants’ pleadings, claiming the attorneys were included inthe suit only for purposes 01 ent. The trial court agreed and struck the pleadings relating to any claims against either Jackson Walker or David Bleisch. After the sanctions were granted, appel- lants moved to sever the claims against Jackson Walker and Bleisch from those against the other de- fendants. The trial court granted that motion, sever- ing the causes of action, and the appellants bring this appeal challenging the trial court's sanctions. 1 Waiver Appellees argue that appellants waived any error related to the trial court's order striking portions of their pleadings because appellants filed amended pleadings that did not include any claims against Jackson Walker or David Bleisch. We agree with appellees’ position and address the waiver issue first. However, we will also address, in Part III be- low, the merits of appellants' appeal in the interest of justice. See Price v. Short, 931 S.W.2d 677, 682 (Tex.App.-Dallas 1996, no writ) (addressing merits of waived Batson error in interest of justice). © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.aN 29 S.W.3d 271 29 S.W.3d 271 (Cite as: 29 S.W.3d 271) [1] An amended pleading Supercedes and supplants all previous pleadings. SeeTEX.R. CIV. P. 65; see also Johnson v. Coca-Cola Company, 727 S.W.2d 756, 758 (Tex.App.-Dallas 1987, writ refused n.t.e.). When a party's name is omitted from an amended pleading, he is as effectively dismissed as where a formal order of dismissal is entered. See Jauregui v. Jones, 695 S.W.2d 258, 261 (Tex.App.-San Antonio 1985, writ ref'd n.r.e.); see also Radelow-Gittens Real Property Management v. Pamex Foods, 735 S.W.2d 558 (Tex.App.-Dallas 1987, writ ref'd, n.r.e.). In Radelow, the Dallas court of appeals held that Radelow-Gittens waived any error in the trial court's grant of an adverse summary judgment by its subsequent amendment of its petition which dropped claims against Pamex from the action. The court noted that when Radelow proceeded to trial on its third amended petition, at that point in time it had abandoned all of its prior claims against Pamex under the first petition, See735 S.W.2d at 560. The appellate court held that Radelow was therefore precluded from complaining on appeal of the trial court's action in granting the summary judgment in favor of Pamex, and dismissed the appeal. See id. The court based its holding on Dolenz v. All Saints Episcopal Hosp, 638 S.W.2d 141, 142 (Tex.App.-Fort Worth 1982, writ ref‘d n.r.e.), In Dolenz, a doctor sued a hospital for slander, and sought an injunction restraining hospital personnel from rescinding his staff privileges, and money damages for the slanderous remarks. The hospital moved for partial summary judgment on the claim for injunctive relief. The trial court granted the hos- pital’s motion, and entered judgment against the doctor denying his claim for injunctive relief. After this order, the doctor twice amended his pleadings. The doctor then proceeded to trial on his third amended original petition. In that petition, he dropped all claims related to injunctive relief. At trial, the doctor also lost on his slander claim. The doctor then appealed on both the injunctive relief and the slander claim. The Fort *275 Worth Court of Appeals held that the doctor had abandoned his claim for injunctive relief when he proceeded to tri- an) FOR EDUCATIONAL USE ONLY Page 6 al on his third amended original petition. The Do/- enz court stated: “[i]n a situation such as presented, an amended pleading supplants the instrument amended and that which it amends is no longer proper to be considered part of the trial record.” Id. at 142. Therefore, on appeal, the. doctor could not complain of the trial court's action upon his original plea for injunction because that cause of action was abandoned when he went to trial on his third amended original petition. See id, at 142, [2][3] Both Dolenz and Radelow address waiver of the right to complain on appeal about a summary judgment where claims denied by the summary judgment were dropped from later amended plead- ings. The rule underlying these cases is that a viable complaint on appeal is lost when, following an al- legedly erroneous ruling by the trial court on a claim, the plaintiff files an amended pleading abandoning the claim upon which the trial court tuled. The vehicle by which the trial court rules is of no moment-summary judgment, or as here, Rule 13, The key to the appellate waiver is the de jure abandonment of the claim by excluding it from amended pleadings following the adverse ruling. Thus, the analysis in Dolenz and Radelow is equally applicable here. Here, as in Radelow, the trial court granted an adverse, interlocutory judgment against appellants when it struck their claims against Jackson Walker and Bleisch. Also here, as in Radelow, following the trial court's dismissal with prejudice of the claims against the appellees, appellants amended their petition by dropping the claims against the attorneys. Finally here, as in Radelow, appellants appealed the trial court's judg- ment, claiming the trial court erred in dismissing the attorneys from the case. Therefore, here, as in Radelow, appellants waived any error the trial court may have committed by filing amended petitions that excluded the attorneys. FN3. Indeed, the rule also applies where summary judgment motions are amended to exclude certain grounds used in an earli- er motion which was denied. Thus, in Fri- as v. Atlantic Richfield Co., this court re- lied on Civil Procedure Rule 65 and Rade- © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.29 $.W.3d 271 29 S.W.3d 271 (Cite as: 29 S.W.3d 271) ‘ow as support for its holding that where a party filed a summary judgment motion on certain grounds which was denied, then filed a second motion for summary judg- ment motion on different grounds which was granted, the grounds alleged in the second motion replaced the grounds in the first motion. Under these circumstances, this court held the movant was precluded from appealing the trial court's denial of the first motion. See999 S.W.2d 97, 102 (Tex.App.-Houston [14th Dist.] 1999, pet denied). FN4, After the trial court struck appellants’ claims against Jackson Walker and Bleisch, appellants superceded their prior pleadings three times with a sixth, eighth and ninth petition, each of which omitted Jackson Walker and Bleisch as party de- fendants. There was no seventh amended petition. Waiver is a harsh result, but its application is man- dated by our Civil Procedure Rule 65 and estab- lished case law. However, appellants' selection of amended pleadings rather than supplementation dictates the result. To this end, the Dallas court of appeals in Radelow recognized that Radelow could have pursued its appeal if it had not abandoned its claims against Pamex. If Radelow had filed a sup- plemental rather than an amended pleading, its claims against Pamex would have been preserved. We agree with the Radelow court's observation. Be- cause appellants proceeded on an amended petition that did not include Jackson Walker and Bleisch, the live pleadings at the time sanctions were im- posed do not reflect any claims against those two appellees. Thus, the appellants have waived any er- ror concerning the trial court's action striking appel- lants' claims against Jackson Walker and David Bleisch, and dismissing those claims with preju- dice. Il. The Sanctions Order aN FOR EDUCATIONAL USE ONLY Page 7 A. Standard of Review *276 [4][5][6][7)[8] Turning to the merits of appel- lants' four points of error challenging the trial court's ruling on the attorney defendants’ motion for sanctions, we will review the asserted ier using the most deferential standard of review, A trial court's decision to impose sanctions under Texas Rule of Civil Procedure 13 will not be overruled on appeal unless an abuse of discretion is shown. See Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821, 824 (Tex.App.-Houston [14th Dist.] 1998, pet. denied); see also Zarsky v. Zurich Management, Inc., 829 §.W.2d 398, 399 (Tex.App.-Houston {14th Dist.] 1992, no writ). The test for abuse of discretion is “whether the court acted without refer- ence to any guiding rules and principles,” or “whether the act was arbitrary or unreasonable.” Downer y, Aquamarine Operators, Inc, 701 S.W.2d 238, 241-42 (Tex.1985). A trial court ab- uses its discretion in imposing sanctions only if it based its order on an erroneous view of the law or a clearly erroneous assessment of the evidence. See Monroe v. Grider, 884 S.W.2d 811, 816 (Tex.App.-Dallas 1994, writ denied). To reach a de- cision on whether the sanctions constitute an abuse of discretion, we examine the entire record. See id. at 816. When reviewing a trial court's finding under the abuse of discretion standard, we may not substi- tute our judgment for that of the trial court. See Schlager v. Clements, 939 S.W.2d 183, 191 (Tex.App,-Houston [14th Dist.] 1996, writ denied). Rather, we are limited to determining whether the trial court abused its discretion by (1) acting arbit- rarily and unreasonably, without reference to guid- ing rules or principles,; or (2) misapplying the law to the established facts of the case. See id, With the appropriate standard of review in mind, we tum to the trial judge's order striking the appellants’ plead- ings. FNS. All four of appellant's appellate is- sues relate to the propriety of the sanctions order, but we address separately the pub- lication element of defamation at page 12 below. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.oN 29 S.W.3d 271 29 S.W.3d 271 (Cite as: 29 S.W.3d 271) B. Appellants' Claims Challenged by the Rule 13 Motion In paragraphs 23 and 24 of their Fifth Amended Original Petition, appellants state: 23. N. David Bleisch is an attorney for Jackson Walker, L.L.P. and in the course and scope of his employment with that firm he accused the Control- ler, Lloyd Kelley, and his staff of unlawful conduct. Defendant Bleisch did so verbally and in writing. Specifically, Bleisch stated in written correspond- ence to Kelley that his denial of access to Dolcefino to the Controller's Office in the absence of a com- pelling governmental interest to the contrary “is un- lawful.” Furthermore, Bleisch, in a telephone call on speaker phone with Mr. Kelly accused Kelley of doing something unlawful by not interviewing with Mr. Dolcefino, During that telephone conversation there were several members of the Controller's Of- fice staff who were in Mr. Kelley's office who were parties to the conversation and heard the accusation that was made by Bleisch, 24. Upon information and belief, Defendants Bleisch and Jackson Walker, L.L.P. participated in editing and creation of the stories that were defam- atory and aired by Defendant Channel 13 and De- fendant Dolcefino which caused Plaintiffs harm. Bleisch went outside the scope of his representation of Defendants when he acted as decision maker in actively working on the production of news stories by contacting Kelley and his staff and demanding interviews and access for Mr. Dolcefino to conduct interviews. Furthermore, Henry Florsheim, the General Manager of KTRK, *277 testified at depos- ition that Bleisch was present at the editing sessions and meetings regarding the upcoming broadcasts in August of 1997 which are the subject of this suit. The foregoing two paragraphs constitute all of the claims brought by appellants against Bleisch and Jackson Walker. C. Rule 13 Rule 13 provides, in part: The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, AN FOR EDUCATIONAL USEONLY - Page 8 motion or other paper; that to the best of their knowledge, information and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment. teases No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order. “Groundless” for pur- poses of this rule means no basis in law or fact and not warranted by good faith argument for the exten- sion, modification, or reversal of existing law. TEX.R. CIV. P. 13. [9]{10] Rule 13 authorizes the trial court to impose an appropriate sanction available under Civil Pro- cedure Rule 215.2(b) against an attorney, a repres- ented party, or both, who filed a pleading that is both: (1) groundless and brought in bad faith; or (2) groundless and brought to harass. See Monroe, 884 S.W.2d at 817. The purpose of Rule 13 is to check abuses in the pleading process, See id. A party seeking sanctions has the burden of establishing his right to relief. See GTE Communications v. Tanner, 856 S.W.2d 725, 729 (Tex.1993). D. Required Findings under Rule 13 [11] Appellants contend in their second issue the trial court erred in making factual determinations regarding contested issues in a Rule 13 proceeding. We disagree. Rule 13 requires that if a court finds, after notice and a hearing, that a pleading contains claims that are groundless and either brought in bad faith or for the purpose of harassment, the court shall impose an appropriate sanction available _un- der Texas Rule of Civil Procedure 215.2(b). Because appellees had the burden to establish that sanctions were justified, it was “imperative for the trial court to convene and conduct an evidentiary hearing.” SeeKaragounis v. Property Co. of Amer- ica, 970 S.W.2d 761, 765 (Tex.App.-Amarillo 1998, pet. denied). Here, the trial court concluded that appellants’ claims against Jackson Walker and Bleisch were groundless and brought for the pur- © 2007 Thomson/West. No Claim to Orig. U.S, Govt. Works.“~N 29 S.W.3d 271 - 29 S.W.3d 271 (Cite as: 29 S.W.3d 271) pose of harassment. In support of that conclusion, the trial judge found, as is required by Rule 13, that the claims were groundless (1) because there is no basis, nor is there a good faith argument for, a de- famation suit against an attorney for providing con- sultation to a client during a pre-publication review; (2) and there is no cause of action for defamation against an attorney who makes defamatory state- ments preliminary to, and in connection with, a pro- posed judicial proceeding because such statements are absolutely privileged. The trial court properly complied with the requirements of Rule 13: FN6. An order striking pleadings, or parts thereof, is an appropriate sanction under Rule 215.2(b)(5). In their first appellate is- sue, appellants contend that striking parts of a pleading is not an available sanction under § 10.004 of the Civil Practice and Remedies code. We agree. However, such a sanction is available under Rule 13. Ap- pellees moved for sanctions under both Chapter 10 of the C.P.R.C. and under Rule 13. Because the sanctions imposed are available under Rule 13, we overrule ap- pellants' first issue. Rule 13 motions ... require the trial court to make factual determinations concerning whether a party's legal position as stated in the pleadings is substan- tially justified. Obviously, a trial *278 judge hear- ing the evidence, examining the credibility of the witnesses, and familiar with the litigation practices of the local bar, is in much better position than an appellate court to determine whether Rule 13 has been violated, especially in “fact intensive close calls.” See Home Owners Funding Corp. v. Scheppler, 815 S.W.2d 884, 888 (Tex.App.-Corpus Christi 1991, no writ). Thus, the trial court complied with the rule's re- quirement that the order state the particulars sup- porting the good cause for which the sanctions were imposed. Because we cannot say the trial court made a clearly erroneous assessment of the evid- ence, the court did not abuse its discretion in de- AN FOR EDUCATIONAL USE ONLY Page 9 termining facts at the Rule 13 hearing. See Monroe, 884 S.W.2d at 816, Our conclusion is guided by this court's decision in Schlager that an abuse of discretion is not shown where the trial court bases its decision on conflicting evidence. See939 S.W.2d at 191, Here, the trial court properly resolved con- tested issues related to whether the claims made in appellants’ pleadings were, at the time they were filed, factually well grounded and legally tenable. See Karagounis, 970 S.W.2d at 764. Accordingly, we overrule appellants’ second appellate issue. E. Absolute Privilege-Fifth Amended Petition Para- graph 23 [12] Appellees assert an absolute privilege applies to Bleisch's statements to Kelley because they were made in contemplation of judicial proceedings. However, the absolute privilege claimed by the at- torneys “is more properly thought of as an im- munity.” Hurlbut v, Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 768 (Tex.1987). In other words, the “absolute privilege is not a defense. Rather abso- lutely privileged communications are not action- able.” CEDA Corp. v. City of Houston, 817 S.W.2d 846, 849 Tex.App.-Houston [Ist Dist.] 1991, writ denied). Thus, communications subject to this priv- ilege simply “cannot constitute the basis of a civil action,” nor may they form a basis for civil liabil- ity. See Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909, 912 (1942); see also Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 132 Tex.App.-Houston [14th Dist.] 1994, no writ). [13] The issue of whether an alleged defamatory matter is related to a proposed or existing judicial poCeeaTagTs-& question of Taw to be determined by the-court, See Thomas v. Bracey, 940 S.W.2d 340, 343 (Tex.App.-San Antonio 1997, no pet.); see also Russell v. Clark, 620 S.W.2d 865, 870 (Tex.Civ.App.-Dallas 1981, writ refd nre.). All doubt should be resolved in favor of the communic- “ation’s relation to the proceeding. See id. “Tt is a verity of life that all things human, includ- ing lawsuits, have a beginning and end. These two aspects define the thing involved, and in defining it, © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.“~ 29 $.W.3d 271 29 S.W.3d 271 . (Cite as: 29 S.W.3d 271) they are inextricably related to and become a part of it.” Bennett v. Computer Associates Intern., Inc., 932 S.W.2d 197, 201 (Tex.App.-Amarillo 1996, writ denied). Courts have deemed conduct related to the initiation of a suit as sufficiently related to a ileged. See Thomas, 940 S.W.2d at 343 (holding de- mand letter written prior to and during litigation ab- solutely privileged); see also Russell, 620 S.W.2d at 868 (holding letter to investors seeking evidence to use in ding litigati solutely privileged); see also Kanengiser v. Kanengiser, 248 N.J.Super. 318, 590 A.2d 1223, 1231 (New Jersey App.1991) (holding that statements typically found in an attor- ney's demand letter related to an imminent judicial proceeding absolutely privileged). The public policy behind absolute privilege as it relates to attorneys representing clients in a pending or contemplated proceeding was noted by the court in Russell: Public policy demands that attorneys be granted the utmost freedom in their efforts to represent their clients. To grant immunity short of absolute priv- ilege to communications relating to *279 pending or proposed litigation, and thus subject an attorney to liability for defamation, might tend to lessen an attorney's efforts on behalf of his client, Russell, 620 S.W.2d at 868 (cited inThomas, 940 S.W.2d at 343). [14][15] Here, the alleged defamatory statements were made in” one letter and a telephone call between Bleisch and Kelley. In the fetter, Bleisch SST "[T RIOTS Suiy®s Genial of woosSe TO par ticular member of the media in the absence of a compelling governmental interest to the contrary is aslawi” * Ta the tlophone eal, Bleisch a- legedly accused Kelley of violating Texas Open Records Act by refusing equal access to Doleefino FNS We agree with the appellees that these statements were directly related to a contem- plated judicial proceeding, and thus are_part of proposed judicial proceeding, which is the “beginning” so eloquently described in Bennett. Accordingly, we hold the statements at issue are ab- oN FOR EDUCATIONAL USE ONLY Page 10 solutely privileged. See Thomas, 940 S.W.2d at 343. FN7. This is a correct statement of the law. Under Texas case law, a public official may not constitutionally deny to one media access that is enjoyed by other media, be- cause one media is entitled to the same tight of access as any other, and the media denied access may seek. legal redress for the alleged abridgement of a constitution- ally guaranteed right. See Southwestern Newspapers v. Curtis, 584 S.W.2d 362, 365 (Tex.Civ.App.-Amarillo 1979, no writ). FN8. This statement also reflects the equal access required by Curtis, See alsoTEX. GOVT CODE ANN. § .552.223 (Vernon Supp.2000) ( “The officer for public in- formation or the officer's agent shall treat all requests for information uniformly without regard to the position or the occu- pation of the requestor, the person on whose behalf the request is made, or the status of the individual as a member of the media.”) In Thomas, the trial court found that a statement written in a letter to the plaintiff, by the defendant's attorney, and published to a third party, was made in connection to pending, as well as to proposed, litigation. See id. at 343-44. The pending litigation was an aggravated assault action brought when the plaintiff threatened a third party with a gun. The proposed litigation, alluded to in the letter, however, was instituted two months after the letter was written. Here, as in Thomas, Bleisch clearly stated he was writing the letter on behalf of his cli- ent, KTRK Television, and was doing so in an ef- fort to secure his client's legal rights. Further, at the hearing on the appellees’ motion for sanctions, the appellees submitted Dolcefino's affidavit, in which he stated, “{i]t was my anticipation on July 30, 1998 [the date the allegedly defamatory letter was written], and it was the anticipation of KTRK, that if the City Controller's office continued to stone- © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.oy 29 S.W.3d 271 29 S.W.3d 271 (Cite as: 29 S.W.3d 271) - wall us, it might be necessary to file suit to obtain our rightful access.” Thus, the evidence demonstrates Bleisch's state- ments to Kelley were made during the course of his Tepresentation of his clients and preliminary to a proposed judicial proceeding. Therefore, the trial court did not abuse his discretion by concluding the claim was groundless, based on the absolute priv- ilege afforded attorneys in these circumstances. Point of error four is overruled. We will also address appellants' third point of error regarding publication of Bleisch's allegedly defam- atory statements af this juncture because the issue can be disposed of easily. (1). The Letter [16][17][18] The July 30, 1997 letter from Bleisch to Kelley set out the law as articulated in Curtis. That sentence was the allegedly defamatory state- ment in the letter. However, that sentence is true. ‘The truth of a defamatory-statement is an affirmat- ive defense. See M.N. Dannenbaum, Inc. v. Brummerhop, 840 (S.W.2d 624, 633-34 (Tex.App.-Houston [14 '" pist.] 1992, writ denied). Here, Jackson Walker, pursuant to Civil Procedure Rule 94, filed an answer to appellants' Fifth Amended Original Petition pleading the truth of the statement. Further, two days after the allegedly de- famatory letter was sent by *280 facsimile to Kel- ley, Bleisch sent another letter to David Hagey, Deputy Controller, City of Houston, explaining to him that the basis of the statement in the July 30 letter was the opinion in Curtis. Inasmuch as the al- legedly offensive statement in the July 30 letter was an absolutely correct statement of the law, and the basis therefor was affirmatively demonstrated for the trial court and appellants, Bleisch cannot be li- able for making the statement in the July 30 letter to Kelley. See Randall's’ Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995) (stating that truth is a complete defense to defamation). Be- cause the truth of the statement bars liability for the statement, whether or not the letter was published is of no moment. AN FOR EDUCATIONAL USE ONLY Page 11 FN9. Appellants' brief contains the follow- ing assertion without any citation to the re- cord: “The [July 30] letter was seen by nu- merous employees of the City of Houston, including Bill Stevens, David Hagy, and the City Attorney.” This failure violates the clear mandate of appellate procedure rule 38.1(h) which requires the argument in a brief to contain citations to the record. SeeTEX.R.APP. P. 38.1(h). Nevertheless, because we found a single sentence in Kel- ley's affidavit that “All correspondence I received from Mr. Bleisch and details of his conversation were relayed to the city Attorney's Office according to the City's policies and procedures,” we will address the issue of publication as to the letter. The Texas Supreme Court long ago addressed this issue and held that if the publication of which the plaintiff complains was consen- ted to, authorized, invited or procured by the plaintiff, he cannot recover for injuries sustained by reason of the publication. See Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770, 772(1945). In Lyle, the plaintiff had asked her physician to write a letter to her describing her treatment so that it could be shown to her new physician in the Green- ville area to which she was moving. The first physician complied with her request. The plaintiff sued for libel because the treatment described in the letter indicated to any physician she had a loathesome dis- ease, and when the letter was exhibited to her Greenville physician, it was a libelous publication by the defendant. There, as here, the letter was not addressed to any third party, but was only addressed to the plaintiff. There, as here, the plaintiff had control of the letter. And there, as here, the plaintiff voluntarily disclosed the letter to another. The Lyle Court concluded that where dis- closure to a third party is accomplished by the plaintiff, publication was by the plaintiff. The court held that where public- © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.‘ os 29 S.W.3d 271 29 S.W.3d 271 (Cite as: 29 S.W.3d 271) ation of the allegedly defamatory matter was effected by the plaintiff, and not by the defendant, a cause of action does not accrue in favor of the plaintiff. Jd. It fol- lows, therefore, that Kelley has no libel claim against Jackson Walker based on the July 30 letter because publication was ac- complished by Kelley. (2). The Telephone Conversation It is not entirely clear from the record before this court, but there is evidence to support the conclu- sion that the telephone conversation between Bleisch and Kelley occurred on the same day the controller's office received Bleisch's letter by fac- simile. Both Bleisch and Kelley described the nature of that conversation. There appear to be sev- eral important aspects of that conversation. First, Kelley asserts in his affidavit that the call was on a speaker phone, and that Messrs. Hagy and Stevens heard the entire conversation. He also stated that Bleisch never mentioned litigation or any legal pro- ceeding. Bleisch stated in his deposition that he did not threaten anyone during the telephone conversa- tion, that the discussion focused on the letter and the authority for the statement, and that he did not advise Kelley that he had to interview with Dolcefino. [19] We have already held that the statements Bleisch made to Kelley, in print and in the tele- phone conversation, were related to a contemplated judicial proceeding. Bleisch in his deposition and Dolcefino in his affidavit affirmatively and clearly stated that if the controller's office persisted in denying access to KTRK, legal proceedings to gain access were contemplated. Thus, the statements are absolutely privileged. Where, as here, communica- tions are protected by the absolute privilege, those communications may not serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made. See *281Thomas, 940 S.W.2d at 342-43. It follows that when a statement is so protected, publication of the statement does not defeat the privilege. /d. at 344. Accordingly, we overrule appellants' third appellate re“ FOR EDUCATIONAL USE ONLY . Page 12 issue. F, Pre-Publication Review-Fifth Amended Petition Paragraph 24 As noted above, in cause number 14-99-00026-CV, this Court reversed and rendered judgment for the media defendants on Randolph and Kelley's defam- ation claims. Because this Court held that a defama- tion claim will not lie against the media defendants, a fortiori that same claim could not lie against the attorneys who advised them. Even if we ignore this court's June 8, 2000 opinion in cause number 14-99-00026-CV, there is simply no basis in law for a suit against the attorneys representing the me- dia defendants for their pre-publication discussions of the allegedly defamatory news reports. See Up- john Co. v, United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (holding communica- tions between corporate counsel and corporation's employees made for the purpose of rendering legal advice protected by attorney-client privilege); see also Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1302 (D.C.Circ,1988) (holding pre- publication discussions between libel counsel and reporters as fitting “squarely within the scope of the privilege as defined in Upjohn”). [20] Moreover, there can be no claim against a law- yer who allegedly wrongly advised another party, thus leading to the other party's alleged defamatory statements. See Thompson v. Vinson & Elkins, 859 S.W.2d 617, 624 (Tex.App.-Houston [Ist Dist.] 1993, writ denied). Any such claim based on wrongful advice supplied by the attorney rests with the wrongly advised party itself. Jd. Appellants have no standing to sue the attorneys for the advice given to their clients. Accordingly,based on the foregoing, we hold the trial court did not abuse its discretion in finding that the defamation claims against the attorneys were groundless. G. Harassment [21] Before granting a motion for sanctions, Rule 13 requires that the trial judge find the claim is groundless and was brought in bad faith or for the purpose of harassment. The doctrine of absolute © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.“oN 29 S.W.3d 271 29 S.W.3d 271 (Cite as: 29 S.W.3d 271) privilege and the bar precluding attorney liability for the allegedly defamatory acts of their clients dispose of the groundless prong; however, other evidence must be shown to demonstrate the bad faith or harassment. See Molzan, 974 S.W.2d at 824 (noting bad faith established by the testimony of two witnesses as to other frivolous suits filed by the appellants). Here, the trial judge found the suit was brought for the purpose of harassment in order to “disrupt the attorney client relationship.” Evidence adduced at the sanctions hearing supports this find- ing. At the hearing, Charles Babcock, attorney for the appellees, called Ronald Cohen, attorney for Ran- dolph and Kelley, to the stand. During Cohen's testimony, the following exchanges occurred: Q. (Babcock) Did you not have a conversation with me in the hallway this morning where you said that if we would withdraw from the case, you would drop Jackson walker and Mr. Bleisch? A. (Cohen) No. Why don't you tell the ... entire conversation, Mr. Babcock? You asked me if I would drop my pleadings, and then I answered to you, if you would withdraw. That was my-that was our conversation, Mr. Babcock.(emphasis added). eee Q. (Babcock) Okay. Mr. Cohen, what is your recol- lection of what I said to initiate the conversation? A. (Cohen) You asked me if we filed a Response to the Motion, because you had not gotten it yet. And I said, “Well, we sent it certified mail.” *282 Q. All right. A. I said, I will try to get you a copy. I think you asked me for a copy or I said I would try to get you a copy of it. Q. Right. A. Then you stated to me: “Would you drop your- do you want to drop your complaint against Jackson & Walker?” Or something to that effect. Q. Correct. . A. And I said, “Why? Do you want to get off the case?” or something to that effect. And my answer was in response to you asking me to drop my claim “~ FOR EDUCATIONAL USE ONLY Page 13 against you. eeeeeen Q. (Babcock) So you think it would be inappropri- ate for Jackson & Walker to continue so long as they are defendants in the lawsuit; correct? A. (Cohen) I believe so. The trial judge stated during the hearing that she believed this line of questioning went to Cohen's motive for joining Bleisch and Jackson Walker as defendants. We agree. This evidence constitutes some evidence of harassment, namely that the ap- pellants filed suit against the appelices attomeys to pressure them into withdrawing from their representation. Based on this evidence, the trial judge did not commit an abuse of discretion by finding the claims against the attorneys were both groundless and filed for the purpose of harassment. Therefore, appellants' points of error challenging the trial court's sanctions are overruled. ~ FN10. Under Rule 3.08 of the Texas Rules of Professional Conduct, attorneys should withdraw as counsel to a client if they will be called as witnesses. See Spain v. Mont- alvo, 921 S.W.2d 852, 859-60 (Tex.App.-San Antonio 1996, orig. pro- ceeding). We affirm the judgment of the trial court. Tex.App.-Houston [14 Dist.],2000. Randolph v. Walker 29 S.W.3d 271 END OF DOCUMENT © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.