John Frank McKnight v. Marshall Davis Brown, Jr.

Opinion issued January 11, 2007 In The Court of Appeals For The First District of Texas NO. 01-05-00689-CV JOHN FRANK MCKNIGHT, Appellant V. MARSHALL DAVIS BROWN, JR., Appellee On Appeal from the 133rd District Court Harris County, Texas Trial Court Cause No. 2003-43149 CONCURRING MEMORANDUM OPINION Appellant, John McKnight, moved for rehearing of our court's opinion and judgment issued April 13, 2006. McKnight sued Marshall Brown, appellee, claiming abuse of process, false imprisonment, and violation of his civil rights under 42 U.S.C. ' 1983, arising out of his allegedly unlawful confinement for contempt of court in an underlying family court case. The trial court granted summary judgment. Our court affirmed, holding that (1) McKnight did not challenge on appeal Brown's no-evidence motion with respect to damages for the false imprisonment and section 1983 claims, and (2) McKnight's affidavit evidence regarding his damages was conclusory, and thus the trial court did not err in granting summary judgment on that basis for the abuse of process claim. In his motion for rehearing, McKnight contended that the law presumes nominal damages for the unlawful deprivation of liberty, and thus the summary judgment evidence raised a fact issue as to damages. See, e.g., Hicks v. Matthews, 261 S.W.2d 207, 210 (Tex. Civ. App.--Beaumont 1953), rev'd on other grounds, 266 S.W.2d 846, 849-50 (Tex. 1954); Fouraker v. Kidd Springs Boating & Fishing Club, 65 S.W.2d 796, 797 (Tex. Civ. App.--Dallas 1933, no writ). We requested and received a response to the motion. While the motion for rehearing was pending, the parties announced a settlement. They now move to dismiss the cause pursuant to their settlement agreement, and I join the court's judgment dismissing the appeal pursuant to the agreement of the parties. Because I would withdraw our earlier opinion, however, I do not join the supplemental opinion of the court.Dismissal Pursuant to SettlementTexas Rule of Appellate Procedure 42.1(c) provides: "In dismissing a proceeding, the appellate court will determine whether to withdraw any opinion it has already issued. An agreement or motion for dismissal cannot be conditioned on the withdrawal of the opinion." Tex. R. App. P. 42.1(c). The supplemental opinion notes that the parties did not ask that we determine whether to withdraw our opinion, but regardless of any request of the parties, Rule 42.1(c) provides that we are to do so. Id. The motion for rehearing raises an aspect of our decision that deserved reconsideration on the merits. Because that consideration was pending at the time the parties announced settlement, in my view we should vacate the opinion and simply dismiss the case pursuant to the parties' settlement agreement. Summary Judgment on Damages for Abuse of Process On appeal, McKnight did not contest the trial court's summary judgment with respect to damages for his false imprisonment and section 1983 claims; thus, in our earlier opinion, we properly affirmed the trial court's judgment on those grounds. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). The abuse of process claim, however, is a different matter. For that claim, McKnight contended on appeal that he raised evidence sufficient to raise a fact issue with regard to his damages. McKnight's supporting summary judgment affidavit, although conclusory with respect to the nature of his actual damages, recites the fact of his incarceration. In Brown's motion for summary judgment in the trial court, he concedes that McKnight was incarcerated for contempt of court. In addition, in granting McKnight's request for a writ of habeas corpus, our sister court noted the fact of his incarceration. (1) We did not fully consider this argument in our opinion affirming summary judgment on damages, and we did not address the merits of other bases for upholding the summary judgment on the abuse of process claim, should we have concluded a fact issue as to damages existed. Both are matters that the parties asked us to consider on rehearing, but they ultimately saved us that effort by settling their differences. Our original opinion therefore does not affirm any judgment--we merely dismiss the appeal because the case has settled. Because we did not complete our consideration of this case on appeal, and the rehearing motion raised an issue deserving of consideration, I would withdraw our opinion pursuant to Rule 42.1(c). Tex. R. App. P. 42.1(c). I therefore respectfully concur in the judgment dismissing the case pursuant to settlement. Jane Bland Justice Panel consists of Justices Taft, Higley, and Bland. Justice Bland, concurring. 1. See In re McKnight, No. 14-01-00695-CV, slip op. at 2 (Tex. App.--Houston [14th Dist.] October 9, 2001).