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holding the privilege protected a letter with defamatory statements affixed to a copy of the pleadings
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No. 04-04-00110-CV
Delivered and Filed: February 16, 2005.
Appeal from the 150th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-00638, Honorable Janet P. Littlejohn, Judge Presiding.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
James E. Ross, Jr., M.D., appeals the summary judgment rendered in favor of John R. Heard and Heard Smith, L.L.P. In his sole issue on appeal, Ross contends that the trial court erred in granting Appellees' motion for summary judgment and dismissing his lawsuit with prejudice. We overrule Ross's issue and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Dr. James E. Ross, Jr., filed suit against John R. Heard and Heard Smith, L.L.P., alleging a cause of action for defamation resulting from a letter Heard sent to the Division for Disability Determination Services (DDS) of the Texas Department of Assistive and Rehabilitative Services (DARS). Before Heard sent the letter, Dr. Ross worked as a consultative examiner for the DDS regarding claims for Social Security disability benefits. Heard is an attorney who primarily represents individuals seeking Social Security disability benefits.
DARS is one of four new departments under the umbrella of the Health and Human Services Commission. DARS operates five divisions: Division for Rehabilitative Services, Division for Blind Services, Division for Early Childhood Intervention, Division for Deaf and Hard of Hearing Services, and Division for Disability Determination Services (DDS). The DDS, funded entirely through the Social Security Administration, makes disability determinations for individuals with severe disabilities who apply for Social Security Disability Insurance and/or Supplemental Security Income.
In his letter to the DDS, Heard requested that Dr. Ross not be assigned as a consultative examiner in any cases involving his clients. In support, Heard offered a copy of a pleading in an extraneous probate matter alleging that Dr. Ross had misapplied or embezzled property in his role as independent executor of an estate. In his letter, Heard also claimed to possess "additional information which . . . could constitute an independent and sufficient ground for disqualification of Dr. Ross." Soon after receiving Heard's letter, the DDS stopped referring patients to Dr. Ross. Because Dr. Ross's practice primarily focused on performing these examinations for the DDS, his business was essentially ruined.
In November 2001, Heard's law partner, Mark Smith, filed a pleading in a contested probate matter on behalf of a beneficiary of the estate of Dr. Ross's father, James E. Ross, Sr. The pleading sought the removal of Dr. Ross as the independent executor of the estate, alleging that Dr. Ross had misapplied or embezzled, or was going to misapply or embezzle, property committed to his care as the independent executor.
On April 15, 2003, Dr. Ross filed suit against Heard and Heard Smith. The Defendants answered and moved for summary judgment. On November 18, 2003, the trial court granted summary judgment in favor of Heard and Heard Smith. Dr. Ross appeals from this summary judgment.
Before the scheduled hearing on the motion for summary judgment, Dr. Ross amended his petition and named Mark Smith individually. That notwithstanding, the hearing went forward on the defamation cause of action against Defendants, Heard and Heard Smith. At the conclusion of that hearing, the trial court ruled in favor of those Defendants, and an order granting summary judgment in favor of Heard and Heard Smith was entered on November 19, 2003. On January 15, 2004, the trial court entered an order severing the claims against Smith from the claims against Heard and Heard Smith.
DISCUSSION
Ross contends the trial court erred in granting the summary judgment in favor of Heard and Heard Smith. Ross asserts there is a factual question as to the nature of the proceeding and whether Heard knew his statements to the DDS concerning Ross were false at the time he made them. Appellees claim the affirmative defense of absolute privilege.
A. Standard of Review
We review the trial court's grant of a traditional motion for summary judgment de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). In reviewing a summary judgment, we must determine whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's cause of action or whether the defendant has established all elements of his affirmative defense. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In deciding whether there is a genuine issue of material fact, all evidence favorable to the nonmovant will be taken as true and all doubts resolved in his favor. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).
B. Absolute Privilege
Any written or oral communication made in the due course of a judicial proceeding is absolutely privileged. James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982). An absolutely privileged communication may not serve as the basis of an action for defamation, regardless of the negligence, falsity, or malice with which the statement was made. Village of Bayou Vista v. Glaskox, 899 S.W.2d 826, 829 (Tex.App.-Houston [14th Dist.] 1995, no pet.). The absolute privilege is intended to ensure the efficacy of the decision-making body by permitting witnesses and parties to testify without fear of reprisal. See Hernandez v. Hayes, 931 S.W.2d 648, 651-53 (Tex.App.-San Antonio 1996, pet. denied). Therefore, even when the speaker may not deserve the privilege, the law grants it to protect the integrity of the process. See Attaya v. Shoukfeh, 962 S.W.2d 237, 239 (Tex.App.-Amarillo 1998, pet. denied). In this respect, an absolute privilege is tantamount to immunity. See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 767 (Tex. 1987).
Although termed a "privilege," the defense to defamation suits based on communications in judicial or quasi-judicial proceedings is probably more properly described as immunity from suit. See Hurlbut, 749 S.W.2d at 767.
An absolute privilege has also been extended to statements made in "quasi-judicial" proceedings, such as proceedings before executive officers, boards, and commissions which exercise "quasi-judicial" powers. See Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942); Hernandez v. Hayes, 931 S.W.2d 648, 650 (Tex.App.-San Antonio 1996, pet. denied). A quasi-judicial power is the power or duty to investigate and to draw conclusions from such investigation, or the authority to redress grievances. See Gallegos v. Escalon, 993 S.W.2d 422, 425 (Tex.App.-Corpus Christi 1999, no pet.); Parker, 647 S.W.2d at 695. The presence of the following six powers comprising the judicial function indicate that a commission, board, or executive body is acting in a quasi-judicial, as opposed to merely an administrative, capacity: (1) the power to exercise judgment and discretion; (2) the power to hear and determine or to ascertain facts and decide; (3) the power to make binding orders and judgments; (4) the power to affect the personal or property rights of private persons; (5) the power to examine witnesses, to compel the attendance of witnesses, and to hear the litigation of issues on a hearing; and (6) the power to enforce decisions or to impose penalties. See Parker, 647 S.W.2d at 695. It is not necessary that an entity have all the listed powers to be deemed quasi-judicial, but the more of the powers an entity has, the more clearly it is a quasi-judicial body. Id.; Hernandez, 931 S.W.2d at 651.
The basis for extending an absolute privilege to quasi-judicial proceedings rests in the public policy considerations that every citizen should have "the unqualified right" to appeal to the agencies of government for redress, "without the fear of being called to answer in damages," and that the administration of justice will be better served if "witnesses are not deterred by fear of lawsuits." See Parker v. Holbrook, 647 S.W.2d 692, 695 (Tex.App.-Houston [1st Dist.] 1982, writ ref'd n.r.e.).
Here, the DDS, in its capacity as an agency, exercises quasi-judicial powers. Federal code and regulations confer on DDS the power to "make determinations of disability with respect to all persons in the State except those individuals whose cases are in a class specifically excluded by our written guidelines." See 20 C.F.R. § 404.1613 (2004). In accordance with these statutory guidelines, the DDS investigates and makes disability determinations for persons applying for Social Security Disability Insurance and/or Supplemental Security Income in the State of Texas. See 42 U.S.C. § 421 (2003); 20 C.F.R. §§ 404, 416 (2004). In making its determinations, the DDS reviews all evidence relevant to the claim, including statements, testimony, and medical opinions. Following a thorough review of the evidence, the DDS makes findings of fact and conclusions of law regarding the nature and severity of any impairment, as well the applicant's functional capacity to perform work-related physical and mental activities. Therefore, we conclude that proceedings before the DDS are quasi-judicial in nature. Moreover, Heard's letter was directly related to proceedings before the DDS since the appointment of a consultative examiner necessarily impacts his clients seeking Social Security disability benefits. Thus, Heard's communications were related to a quasi-judicial proceeding and were absolutely immune.
Nevertheless, on appeal, Dr. Ross contends that Heard exceeded the protections of the quasi-judicial privilege when he disseminated fabricated and defamatory communications to the DDS regarding Dr. Ross's qualifications as a consultative examiner. So far, however, Texas courts have withheld the application of the privilege only in the most extreme situations — when the court found that the privilege was purposefully exploited and abused by the defendant to serve ulterior motives. For example, a defendant "stepped out of the umbrella of privilege" when it filed a totally groundless lawsuit against the plaintiff and published the allegations from the petition in the media, causing severe harm to the plaintiff. See Levingston Shipbuilding Co. v. Inland W. Corp., 688 S.W.2d 192, 196-97 (Tex.App.-Beaumont 1985, writ ref'd n.r.e.) (holding that privilege "cannot be enlarged into a license to go about in the community and make false and slanderous charges"). Similarly, a defendant could not claim the privilege to avoid liability for sending out defamatory material to parties having no cognizable legal interest in pending litigation. See Burzynski v. Aetna Life Ins. Co., 967 F.2d 1063, 1068 (5th Cir. 1992). In contrast, here, the contested communication was confined to communications made to the DDS. Therefore, in our review, we cannot hold that Heard's actions were so egregious as to negate the protections of the absolute privilege. As previously mentioned, it is immaterial whether such communications were false, negligent, or even malicious. See Glaskox, 899 S.W.2d at 829 ("[o]ne of the results of providing this immunity is that individual citizens may suffer harm"). Accordingly, we overrule Dr. Ross's sole issue on appeal.
CONCLUSION
Heard's communication to the DDS seeking disqualification of Dr. Ross as a consultative examiner was a privileged communication to a quasi-judicial body and cannot form the basis of a cause of action for defamation. We affirm the judgment of the trial court.