Garry W. Entress v. Dr. Robert H. Brinkley

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-98-00184-CV NO. 03-98-00258-CV Garry W. Entress, Appellant v. Dr. Robert H. Brinkley, Appellee AND Gary W. Entress, Appellant v. Diana Langley-Buccy, Individually, and d/b/a Diana Buccy Designs, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT NOS. 96-10543A & 96-10543, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING Garry W. Entress appeals from take-nothing judgments in his suit against Dr. Robert Brinkley for conspiracy and intentional infliction of emotional distress and in his suit against Diana Langley-Buccy for conspiracy, intentional infliction of emotional distress and fraud. We will affirm the trial court judgments. (1) Background This case is a suit by an ex-boyfriend against an ex-girlfriend and her new boyfriend. The facts of the case are complex. We have tried to extract only those facts necessary to decide this appeal. The relationship between Entress and Buccy began in 1985. It ended in 1989, but continued as an "off and on" friendship over the next seven years. When Buccy encountered financial problems, Entress starting "giving" (2) Buccy money. In early 1996, Entress learned that Buccy had begun dating Brinkley. In March 1996, after several weeks of leaving hundreds of messages on Buccy's answering machine, Entress left certain messages on Buccy's answering machine that Buccy and Brinkley considered threats to Buccy's safety. Buccy called the police and filed a report. This report ultimately formed the foundation for Entress's allegations against Buccy and Brinkley. Both Buccy and Entress provided voluminous amounts of information to the police during their investigation. Although the initial investigating officer raised doubts about the complaint, he was removed from the investigation for using improper procedures and his supervisor concluded that Entress's behavior met the definition of harassment. Buccy met with the county attorney in July 1996; Entress filed this suit in September 1996. (3) Entress sued Buccy for conspiracy, intentional infliction of emotional distress and fraud. He sued Brinkley for conspiracy and intentional infliction of emotional distress. Buccy and Brinkley filed no-evidence motions for summary judgment. The trial court granted summary judgments to Brinkley and Buccy on Entress's conspiracy and intentional infliction of emotional distress claims. The fraud claim against Buccy was tried to a jury with a verdict for Buccy. In this consolidated appeal, Entress brings two points of error: (1) the trial court erred in granting Brinkley and Buccy summary judgment because there was more than a scintilla of credible evidence to raise a genuine issue of material fact that Buccy and Brinkley had conspired; (2) the district court's refusal to grant Entress a continuance prejudiced his case. The No-Evidence Summary Judgments Brinkley and Buccy moved for summary judgment on the ground that there was no evidence to support Entress's claim for civil conspiracy. Tex. R. Civ. P. 166a(i). We review a no-evidence summary judgment using the same legal sufficiency standard that we do in reviewing a directed verdict. See Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied). We review the evidence in the light most favorable to the respondent against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Under a no-evidence motion for summary judgment, the non-movant must bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact. See Moore, 981 S.W.2d at 267-68. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. See Kindred v. Conn/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). Elements of a Conspiracy Entress alleged that Brinkley and Buccy conspired to file a false police report and initiate a criminal investigation in order for Buccy to avoid repaying Entress. The essential elements of civil conspiracy are: (1) two or more persons; (2) with an object to be accomplished; (3) through a meeting of the minds to the object or course of action; (4) consisting of one or more unlawful acts; and (5) from which damages are the proximate result. See Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983). Merely proving a joint intent to engage in the conduct that resulted in the injury is not sufficient to establish a cause of action for civil conspiracy. See Triplex Communication, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex. 1995). Civil conspiracy requires specific intent to agree to accomplish an unlawful purpose by unlawful means and the parties must be aware of the harm or the wrongful conduct at the beginning of the agreement. Id. It must be clear that each person in the conspiracy acted in specific concert with the other, essentially deciding to act without making an individual choice. See Juhl v. Airington, 936 S.W.2d 640, 645 (Tex. 1996). Further, one "cannot agree, either expressly or tacitly, to the commission of a wrong which he knows not of." See Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 857 (Tex. 1968). In response to the no-evidence motion for summary judgment, Entress was required to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact. See Moore, 981 S.W.2d at 267-68. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. See Kindred, 650 S.W.2d at 63. A material fact may not be established by piling inference upon inference. See Schlumberger, 435 S.W.2d at 858. Although a conspiracy may be proven by circumstantial evidence, disconnected circumstances that are just as consistent with a lawful purpose as an unlawful one are insufficient as a matter of law to establish conspiracy. See Hicks v. Wright, 564 S.W.2d 785, 793 (Tex. Civ. App.--Tyler 1978, writ ref'd n.r.e.); First Interstate Bank v. S.B.F.I. Inc., 830 S.W.2d 239, 250-51 (Tex. App.--Dallas 1997, no writ). "Meager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus legally insufficient to support a finding." See Wal-Mart Stores, Inc. v. Gonzales, 968 S.W.2d 934, 936 (Tex. 1998). The Evidence Entress alleged that the conspiracy between Brinkley and Buccy began when Buccy made her police report. He alleged that Brinkley encouraged Buccy to file the report while knowing it was false. He alleged that Brinkley and Buccy supplied false statements to the police about him and about his and Buccy's former relationship. Although this was a no-evidence summary judgment motion, in which movants were not obligated to negate the elements of Entress's causes of action, nevertheless, Brinkley brought to the court's attention relevant portions of Entress's deposition. In answer to the question: "So when you say that defendants knowingly, willfully, and intentionally with malice and with a total disregard for the truth made the false report in order to cause the Plaintiff egregious harm, you have no facts to back up that allegation [against Brinkley] either, is that correct?" Answer: "Correct." In answer to the question: "Okay. You have no facts. So at this point so far as you know from all the facts you know, Dr. Brinkley knew nothing that Ms. Buccy was doing anything that was wrong or false; is that correct, sir?" The answer was "Correct." Entress further admitted that he lacked evidence that Brinkley said anything false about Entress to the police. Entress acknowledged to Buccy that his behavior had been abysmal and that he deserved it if she filed harassment charges against him. Further, Buccy and Brinkley's involvement in filing the police report is consistent with the lawful purpose of reporting threatening and harassing conduct to the authorities. Entress argues that the report was filed for the unlawful purpose of "get[ting] out of repaying a debt [Buccy] owed him." However, filing this criminal report, even if false, would not have prevented Entress from taking action through proper legal channels to collect any debt owed him. Finally, the evidence does not show that the police department or county attorney ever concluded the report was false; one investigator, removed from the case, had questions whether Buccy had fully disclosed all the details of her past relationship with Entress. In essence, Entress's evidence of a conspiracy amounts to: Buccy and Brinkley were dating; Buccy filed a police report; Brinkley encouraged her to do so. However, to arrive at a conclusion of a conspiracy to file a false report would require piling inference on inference. We conclude that Entress failed to furnish more than a scintilla of probative evidence to create a material fact issue and overrule point one. (4) Motion for Continuance In his second point of error, Entress contends that the trial court abused its discretion in denying his motion for continuance. On February 2, 1998, Entress served Brinkley with a trial subpoena to appear as a material fact witness on March 23, 1998, in the underlying cause. On February 11, 1998, Brinkley filed a motion to be discharged from the subpoena. On March 17, 1998, after a telephone hearing, the court granted Brinkley's motion. On March 19, 1998, Entress filed a motion for continuance based on his inability to call Brinkley. The court denied the continuance. The denial of a continuance can be set aside only upon a showing of an abuse of discretion. See General Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997); Garcia v. Texas Employers Ins. Assoc., 622 S.W.2d 626, 630 (Tex. App.--Amarillo 1981, writ ref'd n.r.e.). The test is whether the decision was arbitrary or unreasonable. See Meyerland Co. v. Palais Royal, Inc., 557 S.W.2d 534, 538 (Tex. Civ. App.--Houston [1st Dist.] 1977, no writ). There is no prejudice in denying a continuance based on the absence of a party whose testimony was available by deposition. See Jones v. John's Community Hosp., 624 S.W.2d 330, 333 (Tex. App.--Waco 1981, no writ). Brinkley was discharged based on already having given his deposition and needing to be out of state during the trial setting. Entress wanted him as a witness in his fraud claim, the only cause that went to trial. Entress's fraud claim was based on money he had paid to Buccy from 1993 to 1996. Brinkley had no personal knowledge of any facts concerning the nature of that transaction, as he did not meet Buccy until two months before the March 1996 police report. As far as any matters concerning the police report, to the extent they might have been relevant to the fraud claim, Entress's counsel thoroughly questioned him during his videotaped deposition, made with Entress's knowledge that Brinkley would be unavailable at trial. We conclude that Entress has not demonstrated an abuse of discretion in the trial court's denial of his motion for continuance and overrule his point of error. Having overruled both points of error, we affirm the trial court judgments. Mack Kidd, Justice Before Chief Justice Aboussie, Justices Kidd and Patterson Affirmed Filed: July 29, 1999 Do Not Publish 1. Entress first sued Buccy and Brinkley in one cause. After an interlocutory summary judgment in Brinkley's favor on all of Entress's causes against Brinkley, Entress obtained a severance, made that summary judgment final, and perfected appeal against Brinkley. After the fraud portion of the trial against Buccy concluded, Entress perfected appeal against her, then moved to consolidate the appeals. This Court granted that motion. 2. Whether the money was a gift or loan was disputed; however, the characterization does not affect this appeal. 3. We have not been referred to any portion of the record that shows the final disposition of the complaint. 4. There is an alternative ground for affirming the summary judgment, although one not raised by the parties. The summary judgment in Brinkley's favor was a general summary judgment and Entress attacked only one ground on appeal. If an appellant in a summary judgment does not specifically challenge every possible basis stated in the motion for summary judgment, the summary judgment must be affirmed if there is an unchallenged ground upon which the trial court could have based the summary judgment. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1978); Reese v. Beaumont Bank, N. A., 709 S.W.2d 801, 804 (Tex. App.--Beaumont 1990, no writ). Similarly, the summary judgment against Buccy spelled out that it was granted on (1) conspiracy and (2) intentional infliction of emotional distress. Again, Entress attacks only the conspiracy ground. See Malooly, 461 S.W.2d at 121; Reese, 709 S.W.2d at 804. racy amounts to: Buccy and Brinkley were dating; Buccy filed a police report; Brinkley encouraged her to do so. However, to arrive at a conclusion of a conspiracy to file a false report would require piling inference on inference. We conclude that Entress failed to furnish more than a scintilla of probative evidence to create a material fact issue and overrule point one. (4) Motion for Continuance In his second point of error, Entress contends that the trial court abused its discretion in denying his motion for continuance. On February 2, 1998, Entress served Brinkley with a trial subpoena to appear as a material fact witness on March 23, 1998, in the underlying cause. On February 11, 1998, Brinkley filed a motion to be discharged from the subpoena. On March 17, 1998, after a telephone hearing, the court granted Brinkley's motion. On March 19, 1998, Entress filed a motion for continuance based on his inability to call Brinkley. The court denied the continuance. The denial of a continuance can be set aside only upon a showing of an abuse of discretion. See General Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997); Garcia v. Texas Employers Ins. Assoc., 622 S.W.2d 626, 630 (Tex. App.--Amarillo 1981, writ ref'd n.r.e.). The test is whether the decision was arbitrary or unreasonable. See Meyerland Co. v. Palais Royal, Inc., 557 S.W.2d 534, 538 (Tex. Civ. App.--Houston [1st Dist.] 1977, no writ). There is no prejudice in denying a continuance based on the absence of a party whose testimony was available by deposition. See Jones v. John's Community Hosp., 624 S.W.2d 330, 333 (Tex. App.--Waco 1981, no writ). Brinkley was discharged based on already having given his deposition and needing to be out of state during the trial setting. Entress wanted him as a witness in his fraud claim, the only cause that went to trial. Entress's fraud claim was based on money he had paid to Buccy from 1993 to 1996. Brinkley had no personal knowledge of any facts concerning the nature of that transaction, as he did not meet Buccy until two months before the March 1996 police report. As far as any matters concerning the police report, to the extent they might have been relevant to the fraud claim, Entress's counsel thoroughly questioned him during his videotaped deposition, made with Entress's knowledge that Brinkley would be unavailable at trial. We conclude that Entress has not demonstrated an abuse of discretion in the trial court's denial of his motion for continuance and overrule his point of error. Having overruled both points of error, we affirm the trial court judgments. Mack Kidd, Justice Before Chief Justice Aboussie, Justices Kidd and Patterson Affirmed Filed: July 29, 1999 Do Not Publish 1. Entress first sued Buccy and Brinkley in one cause. After an interlocutory summary judgment in Brinkley's favor on all of Entress's causes against Brinkley, Entress obtained a severance, made that summary judgment final, and perfected appeal against Brinkley. After the fraud portion of the trial against Buccy concluded, Entress perfected appeal against her, then moved to consolidate the appeals. This Court granted that motion. 2. Whether the money was a gift or loan was disputed; however, the characterization does not affect this appeal. 3. We have not been referred to any portion of the record that shows the final disposition of the complaint. 4. There is an alternative ground for affirming the summary judgment, although one not raised by the parties. The summary judgment in