The Cronfel Firm, Guillermo Ochoa-Cronfel Don't let this firm be a receiver for your property - More interested in depleting your assets for his own financial gain Austin Texas

2010 Tex. App. LEXIS 1751,*;311 S.W.3d 600
Appellant, Gilbert Franco, Cross-Appellant, Guillermo Ochoa Cronfel,
Appellant v. Appellee, Guillermo Ochoa Cronfel, Cross-Appellee, Gilbert
Franco, Appellee
NO. 03-09-00494-CV
COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN
311 S.W.3d 600; 2010 Tex. App. LEXIS 1751


March 12, 2010, Filed



PRIOR HISTORY:  

 [*1] 



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT.
NO. D-1-GN-08-003295, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING.

DISPOSITION:  




Affirmed in part; Dismissed in part.

COUNSEL: 
For appellant: Mr. Mike Thompson Jr., Wright & Greenhill, PC, Austin, TX.


For appellee: Mr. Kemp W. Gorthey, Austin, TX.

JUDGES:  
Before Justices Patterson, Puryear and Henson.

OPINION BY:  
Diane M. Henson

OPINION  




Gilbert Franco posted a review of legal services provided by Guillermo Ochoa-Cronfel on the website www.RipoffReport.com ("Ripoff Report"). Ochoa-Cronfel sued Franco for defamation. See Tex. Civ. Prac. & Rem. Code Ann. 73.001
(West 2005). Franco filed several motions for summary judgment. The
trial court granted Franco's partial motion asserting that Ochoa-Cronfel
was a public official as a matter of law and denied Franco's
no-evidence and traditional motions asserting that Ochoa-Cronfel had
failed to raise a fact issue on the element of actual malice. Franco now
appeals the trial court's denial of his no-evidence and traditional
motions, arguing in two issues on appeal that (1) Ochoa-Cronfel did not
raise a fact issue with regard to the element of actual malice and (2)
the trial court should not have considered Ochoa-Cronfel's affidavit. On
cross-appeal, Ochoa-Cronfel challenges the granting of Franco's partial
motion, arguing that the trial court erred
 [*2] 
in its determination that Ochoa-Cronfel qualified as a public
official. We affirm the trial court's order denying Franco's no-evidence
and traditional motions for summary judgment and dismiss
Guillermo Ochoa-Cronfel's cross-appeal for want of jurisdiction.



BACKGROUND



Franco filed a creditor-debtor action to recover proceeds from the
sale of his printing business. n1 In July 2007, the court hearing the
action appointed Ochoa-Cronfel [The Cronfel Firm] to serve as receiver, authorizing him to
take possession of and sell the non-exempt assets of the defendants to
the action. See Tex. Civ. Prac. & Rem. Code 31.002(b)(3)
(West 2008) (appointment of receiver). Ochoa-Cronfel's appointment was
altered in August 2007 to give him additional powers, including
authorization to liquidate assets in satisfaction of the judgment and
take over the subject business and operate it with a view toward
disposing of it as a going concern.


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1


The facts recited herein are from the evidence presented by the parties in their motions for summary judgment.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -


Five months later, in December 2007, Ochoa-Cronfel filed a motion to
withdraw as receiver. In February 2008, the trial court entered an
agreed order discharging Ochoa-Cronfel as receiver. The
 [*3] 
agreed order, signed by the attorney representing Franco at the
time, states "that all actions taken by the Receiver Guillermo
Ochoa-Cronfel during the pendency of the receivership are APPROVED IN
ALL RESPECTS."


On June 23, 2008, roughly four months after Ochoa-Cronfel's agreed
discharge as receiver, Franco published a review of Ochoa-Cronfel on the
Ripoff Report website. n2 The review was entitled, "Report: The Cronfel
Firm Guillermo Ochoa-Cronfel" and subtitled "Don't let this firm be a
receiver for your property--More interested in depleting your assets for
his own financial gain." The review, posted under Franco's first name,
"Gilbert," read:


This attorney was assigned to be a receiver for some assets that I
needed to recover. He totally screwed up the whole deal. He allowed the
defendants in the case to steal money and property. He lied on court
documents as far as time he spent on the case. He falsified and mislead
[sic] the court with financial statements and other information to the
court. He made deflamatory [sic] remarks before the court about
me--which were blatent [sic] lies.


He threatened me with extortion to get almost $ 20,000 from me when
the court orders state that the
 [*4] 
receivers [sic] fees are a taxation against the defendants, not
the plaintiff. He would not liquidate my property to me, unless I paid
him money--a direct contriction [sic] to the court order.


He is now trying to extort more money from me or he will use his
legal power to cause me more fiancial [sic] harm. This is a bad attorney
in its worst form. He personally has cause [sic] me almost $ 500,000 in
damages.Franco signed the review, "Victim of Extortion and Fraud,
Austin, Texas, U.S.A."


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2


Franco does not dispute that he made the posting.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -


Ochoa-Cronfel discovered the review roughly one month after its
posting. He found the review after querying his name in the
search-engine Google, after which Franco's review came up as one of the
first results. n3 After being informed that Ochoa-Cronfel had discovered
the review, Franco attempted to remove it from Ripoff Report. By Ripoff
Report's terms, however, users cannot remove content they have posted.
n4 Franco then modified his review. He added a comment stating, "This
is just my opinion and should be treated as so." He added another
comment explaining that he was not an attorney and posted dictionary
definitions for "extortion," "fraud," and "malfeasance."
 [*5] 
He also changed the name on the review, from "Gilbert" to
"Anonymous."


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3


According to a computer screen-shot provided by Ochoa-Cronfel,
Franco's posting is the third result listed following a search for
"guillermo ochoa cronfel" on Google.4


The Terms of Service for Ripoff Report, as posted on the website,
read, "By posting information on [Ripoff Report], you understand and
agree that the material will not be removed even at your request. You
shall remain solely responsible for the content of your postings on
[Ripoff Report]." Accordingly, Franco's review has been listed on Ripoff
Report since Franco originally posted it on June 23, 2008.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -


Several days after altering the review, Franco spoke over the phone
with Darrell Gest, Ochoa-Cronfel's attorney at the time. Before the
conversation, Franco prepared a list of talking points, including, "Do
you have proof that I am the one that published statements about
Cronfel?" His talking points also included the statements, "It appears
that anybody can make a report about anybody with much ease. Would you
believe everything that was written [on Ripoff Report?]"


During the phone call with Gest, Franco denied posting the review on
Ripoff Report. He speculated
 [*6] 
about who might have written the review, indicating that he had
attempted to determine who had posted it but had not received any
response to his inquiries.


Ochoa-Cronfel sued Franco for defamation. In the affidavit and
deposition testimony submitted during pretrial proceedings, Franco
admitted that he had posted the review of Ochoa-Cronfel on Ripoff
Report. He explained that he had lied to Gest about the posting so as
not to "incriminate" himself. He also stated that he had attempted to
remove the posting and altered it because the statements in the review
were "not proven facts yet."


Franco, however, also stated in his affidavit that the statements he
made in the review were truthful: "At the time of the posting of the
statements, I knew of no statement that was false and I had no serious
doubts as to the truth of any statement I made." In support of this
assertion, he detailed deficiencies in Ochoa-Cronfel's performance that
had led him to post the review. Franco stated that Ochoa-Cronfel misled
the court by providing inaccurate billing statements and alleging that
he had to "chase [Franco] down for money." Franco also stated that
Ochoa-Cronfel improperly sought fees from him personally,
 [*7] 
when instead all fees should have been paid from the assets of
the debtors. n5 In addition, Franco claimed that Ochoa-Cronfel failed to
fulfill several of his receivership duties, including safeguarding
funds, pursuing insurance claims, and providing monthly reports.


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -5


In his phone conversation with Gest, Franco indicated that he
planned to file a complaint about Ochoa-Cronfel with the State Bar of
Texas. Franco, however, did not file a complaint, and admitted in his
deposition that he no longer has any plans to do so.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -


Ochoa-Cronfel disputes each of Franco's assertions. In his own
affidavits, Ochoa-Cronfel contended that he never misled the court, and
that the billing statements he provided and the representations he made
about Franco were accurate. Ochoa-Cronfel further stated that, as agreed
to by Franco, all fees came from recovered assets, and that he never
attempted to coerce Franco into personally paying any fees. Finally,
Ochoa-Cronfel stated that he had fulfilled all of his duties as receiver
through the time of his agreed discharge in February 2008. In support
of this contention, he pointed to the agreed order, signed by Franco's
counsel, which reflects that Ochoa-Cronfel's actions
 [*8] 
as receiver had been approved in all respects.


Franco filed several summary judgment motions. He filed a partial
motion arguing that Ochoa-Cronfel was a public official as a matter of
law and consequently must prove actual malice, which the trial court
granted. Franco then filed no-evidence and traditional motions arguing
that Ochoa-Cronfel had not raised a fact issue regarding actual malice,
which the trial court denied. Franco now appeals the trial court's
denial of his no-evidence and traditional motions, while Ochoa-Cronfel
cross-appeals on the trial court's granting of Franco's partial motion.



STANDARD OF REVIEW



Defamation cases are reviewed under the same summary-judgment
standards as other cases even though constitutional considerations are
involved. See Casso v. Brand, 776 S.W.2d 551, 556-57 (Tex. 1989)
(rejecting higher standard used by federal courts in defamation cases).
We review a trial court's decision to grant or deny a motion for
summary judgment de novo. See Texas Mun. Power Agency v. Public Util. Comm'n of Tex., 253 S.W.3d 184, 192, 199 (Tex. 2007). Evidence favorable to the non-movant will be taken as true, and every reasonable inference must be indulged in favor of
 [*9] 
the non-movant and any doubts resolved in its favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).


When a party seeks both a traditional and a no evidence summary
judgment, we first review the trial court's decision regarding summary
judgment under the no evidence standard. See Tex. R. Civ. P. 166a(i).
If the non movant failed to produce more than a scintilla of evidence
raising a genuine issue of fact on the challenged elements of his claim,
there is no need to analyze whether the movant met his burden on his
motion for traditional summary judgment. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).


A party seeking a no-evidence summary judgment must assert that no
evidence exists as to one or more of the essential elements of the
non-movant's claims on which the non-movant would have the burden of
proof at trial. Flameout
Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d
830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.). If the
non-movant then produces more than a scintilla of probative evidence to
raise a genuine issue of material fact, a no-evidence summary judgment
is improper. Id.; Forbes, Inc. v. Granada Biosci., Inc., 124 S.W.3d 167, 172 (Tex. 2003).

 [*10] 
More than a scintilla of evidence exists if the evidence would
allow reasonable and fair-minded people to differ in their conclusions. Forbes, 124 S.W.3d at 172.


Under the traditional summary-judgment standard, the movant has the
burden to show that no genuine issues of material fact exist and that it
is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon, 690 S.W.2d at 548.
A defendant moving for a traditional summary judgment must conclusively
negate at least one essential element of each of the plaintiff's causes
of action or conclusively establish each element of an affirmative
defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
After a defendant has done so, the burden then shifts to the plaintiff
to produce evidence creating a fact issue on the element or defense in
order to defeat the summary judgment. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).



DISCUSSION




Jurisdiction over Franco's Interlocutory Appeal



Generally, the denial of a motion for summary judgment is an interlocutory order not reviewable on appeal. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980); Cox Tex. Newspapers, L.P. v. Wootten, 59 S.W.3d 717, 720 (Tex. App.--Austin 2001, pet. denied).

 [*11] 
However, "a person whose communication appears in or is published
by the electronic or print media" who is sued for defamation may appeal
an interlocutory order denying summary judgment. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(6) (West 2008), 73.001; Cox, 59 S.W.3d at 717.
As Franco's review was published by an electronic media outlet and he
was subsequently sued for defamation based on the review, we have
jurisdiction to consider his interlocutory appeal of the trial court's
order denying his no-evidence and traditional motions for summary
judgment. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(6). n6


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -6


The parties do not challenge our jurisdiction over Franco's interlocutory appeal.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -



Consideration of Ochoa-Cronfel's Affidavit



We address Franco's second issue on appeal, which concerns what
evidence the trial court was permitted to consider in entering its order
on Franco's no-evidence and traditional motions, before turning to his
first issue, which concerns the court's order itself. In Franco's second
issue on appeal, he argues that the trial court should not have
considered Ochoa-Cronfel's July 23, 2009 affidavit in ruling on the
summary judgment motion, as the affidavit
 [*12] 
contained only conclusory statements. n7 See Prime Prods., Inc. v. SSI Plastics, 97 S.W.3d 631, 637 (Tex. App.--Houston [1st Dist.] 2002, pet. denied)
("Affidavits supporting or opposing a motion for summary judgment must
be factual; conclusions of the affiant are not considered to have any
probative value."). Ochoa-Cronfel's affidavit, however, contains
numerous facts of which Ochoa-Cronfel presumably had personal knowledge,
including details of the actions he took as receiver and estimates of
losses owing to Franco's review. Accordingly, Ochoa-Cronfel's affidavit
constitutes competent summary judgment evidence. Franco's second issue
on appeal is overruled. n8


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -7


We note that two affidavits by Ochoa-Cronfel are included in the
record, one dated June 30, 2009, and the other dated July 23, 2009.
Franco describes the affidavit in issue as "responding to each paragraph
of Mr. Franco's affidavit," a description that comports with the July
23rd affidavit.8


As our analysis below demonstrates, Ochoa-Cronfel's affidavit is not
necessary to controvert Franco's summary-judgment evidence due to the
presence of other controverting evidence in the record.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -



Summary Judgment on the Element of Actual Malice



We
 [*13] 
turn to Franco's first issue on appeal. Franco argues that the
trial court should have granted his no-evidence and traditional motions
for summary judgment because Ochoa-Cronfel did not raise a fact issue
regarding actual malice. To recover for defamation, a public official
must prove that the defendant published a false and defamatory statement
with actual malice. Huckabee v. Time Warner Entm't Co., 19 S.W.3d 413, 420 (Tex. 2000). n9


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -9


As noted above, Ochoa-Cronfel's cross-appeal seeks to challenge the
trial court's determination that he qualified as a public official when
he held the position of court-appointed receiver. As we conclude infra
that we do not have jurisdiction over Ochoa-Cronfel's cross-appeal, we
do not address the issue here, and assume for purposes of this analysis
that Ochoa-Cronfel must meet the increased burden given to
public-official plaintiffs in defamation actions. See Bentley v. Bunton, 94 S.W.3d 561, 590 (Tex. 2002)
(explaining that defamation plaintiff who is public official must prove
additional element of actual malice). Our analysis, however, should not
be read as a commentary on whether the trial court properly determined
that Ochoa-Cronfel qualified
 [*14] 
as a public official, nor should it be deemed to preclude any
challenge of the issue on direct appeal.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -


"Actual malice" in the defamation context is a term of art. Id. Unlike common-law malice, it does not include ill will, spite, or evil motive. Id.
Rather, to establish actual malice, a plaintiff must prove that the
defendant made the statement "with knowledge that it was false or with
reckless disregard of whether it was true or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964); Huckabee, 19 S.W.3d at 420. "Reckless disregard" is also a term of art. Huckabee, 19 S.W.3d at 420.
To establish reckless disregard, a public official or public figure
must prove that the publisher "entertained serious doubts as to the
truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968); Huckabee, 19 S.W.3d at 420.



No-Evidence Motion for Summary Judgment



Franco first argues that summary judgment should be granted because
Ochoa-Cronfel presented no evidence of actual malice. As the actual
malice inquiry focuses on the defendant's state of mind at the time of
publication, direct evidence that the defendant knew the statements to
be false will rarely be available to the plaintiff.
 [*15] 
See Bentley v. Bunton, 94 S.W.3d 561, 597 (Tex. 2002)
(noting that plaintiff need not produce "smoking gun" proving knowledge
of falsity). Instead, a plaintiff may--and often must--use
circumstantial evidence to show that the defendant acted with reckless
disregard and "entertained serious doubts as to the truth of his
publication." See id. at 591; see also St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968).


Circumstantial evidence showing reckless disregard may derive from
the "defendant's words or acts before, at, or after the time of the
communication." Clark v. Jenkins, 248 S.W.3d 418, 435 (Tex. App.--Amarillo 2008, no pet.).
In this case, Ochoa-Cronfel presented evidence that Franco attempted to
remove the review after its discovery. When he was unable to do so,
Franco added disclaimers that the review reflected only his opinions,
admitting during his deposition that his statements did not constitute
"proven facts." Franco also lied about having made the posting to Gest,
Ochoa-Cronfel's then-attorney, indicating that he did not want to
"incriminate" himself. These actions and statements following the
discovery of the review support the contention that Franco "entertained
serious doubts
 [*16] 
about the truth of his publication," and consequently acted with
actual malice.


In addition, selectively omitting facts in order to create a false impression may constitute evidence of actual malice. Huckabee, 19 S.W.3d at 425-26; Texas Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 578 (Tex. App.--Austin 2007, pet. denied).
Franco's review, while it claims that Ochoa-Cronfel "screwed up the
whole deal," omits the fact that the trial court approved all of the
actions taken by Ochoa-Cronfel in his capacity as receiver, in an order
agreed to by Franco's counsel at the time. Accordingly, the evidence
suggests that Franco omitted facts to create a false impression.


This evidence constitutes more than a scintilla that Franco acted
with actual malice in making the posting, thereby rendering no-evidence
summary judgment inappropriate. Accordingly, we turn from Franco's
no-evidence motion to his traditional motion.



Traditional Motion for Summary Judgment



In his traditional motion, Franco argues that Ochoa-Cronfel failed
to raise a fact issue on the element of actual malice. A defendant in a
defamation action seeking to negate the element of actual malice must
present
 [*17] 
evidence that he or she did not publish the statement with
knowledge of its falsity or reckless disregard for its truth. Huckabee, 19 S.W.3d at 420.
Once the defendant has produced evidence negating actual malice as a
matter of law, the burden shifts to the plaintiff to present
controverting proof raising a genuine issue of material fact. See Tex. R. Civ. P. 166a(c); Huckabee, 19 S.W.3d at 420.


In attempting to negate the element of actual malice and shift the
burden to Ochoa-Cronfel, Franco relies on his affidavit and deposition
testimony. While the affidavit or deposition of the defendant in a
defamation case may be used to negate actual malice, the affidavit or
deposition must comply with the rules of civil procedure governing
evidence from interested witnesses. See Casso, 776 S.W.2d at 558-59.
Under the rules of civil procedure, an affidavit from an interested
witness will only support a motion for summary judgment if it is (1)
clear, positive, and direct; (2) otherwise credible and free from
contradictions and inconsistencies; and (3) susceptible of being readily
controverted. Tex. R. Civ. P. 166a(c); Huckabee, 19 S.W.3d at 424.


Franco argues that his affidavit and deposition meet
 [*18] 
the requirements of rule 166a(c)
as they are "clear, positive, and direct." However, according to the
rule, the evidence must also be "credible and free from contradictions
and inconsistencies." Id. When there is "evidence tending to
discredit or impeach" depositions or affidavits, the testimony "cannot
be considered as doing more than raising an issue of fact." Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).


In this case, the assertions in Franco's affidavit that he "knew of
no statement that was false" and "had no serious doubts as to the truth
of any statement I made" are undermined by evidence in the record.
Specifically, evidence showing that Franco attempted to remove the
posting, amended the posting, and lied about having made the posting
discredits his affidavit.


Franco's deposition faces similar problems. Not only is Franco's
deposition testimony undermined by the same evidence that undermines his
affidavit, but Franco's deposition also contains statements that, on
their own, discredit his testimony. As noted above, Franco states in his
deposition that he lied about having made the posting so as not to
"incriminate" himself. Franco
 [*19] 
also admits that the statements he made about Ochoa-Cronfel were
not "proven facts," a concession that evinces doubt about the veracity
of the statements.


As the record contains evidence to impeach or discredit Franco's
testimony, we conclude that his affidavit and deposition fail to meet
the requirements of the rules of civil procedure regarding
interested-witness testimony. See Tex. R. Civ. P. 166a(c).
Accordingly, as Franco's summary-judgment evidence does not negate any
element of Ochoa-Cronfel's defamation claim, the burden does not shift
to Ochoa-Cronfel to demonstrate that a fact issue exists.


We note that even if the burden shifted to Ochoa-Cronfel to
controvert Franco's affidavit and deposition testimony, the same
evidence that undermines the credibility of Franco's testimony also
provides adequate controverting proof of Franco's assertions.
Specifically, the facts that Franco attempted to remove the posting,
revised the posting, and lied about having made the posting provides
circumstantial evidence of actual malice. See Clark, 248 S.W.3d at 435
(explaining that "defendant's words or acts before, at, or after the
time of the communication" may prove actual malice). This evidence
 [*20] 
is sufficient to controvert Franco's affidavit and deposition
testimony and to raise a fact issue regarding whether Franco had
"significant doubt about the truth of his statements at the time they
[were] made." Bentley, 94 S.W.3d at 596.


Our analysis leads us to conclude that summary judgment is improper
on the element of actual malice. Franco's first issue on appeal is
overruled.



Attorney's Fees



Under the civil practice and remedies code, "[i]n the case of an
appeal brought pursuant to Section 51.014(6), if the order appealed from
is affirmed, the court of appeals shall order the appellant to pay all
costs and reasonable attorney fees of the appeal." n10 Tex. Civ. Prac. & Rem. Code 51.015 (West 2008); Gaylord Broad. Co. v. Francis, 7 S.W.3d 279, 286 (Tex. App.--Dallas 1999, pet. denied).
As we overrule both of Franco's issues on appeal and thereby affirm the
order of the trial court, we order Franco to pay all costs and
reasonable attorney's fees of the appeal in an amount to be determined
by the trial court.


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -10


While Ochoa-Cronfel did not specifically request attorney's fees, we note that the terms of the statute are "mandatory." Gaylord Broad. Co. v. Francis, 7 S.W.3d 279, 286 (Tex. App.-Dallas 1999, pet. denied);
 [*21] 
see also Tex. Civ. Prac. & Rem. Code Ann. 51.015 (West 2008).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -



Jurisdiction over Ochoa-Cronfel's Cross-Appeal



Ochoa-Cronfel's cross-appeal challenges the trial court's order
granting Franco's motion for partial summary judgment and determining
that Ochoa-Cronfel qualified as a public official. Franco filed a motion
to dismiss Ochoa-Cronfel's cross-appeal for want of jurisdiction.


The civil practice and remedies code authorizes an interlocutory
appeal of the denial of a media defendant's motion for summary judgment.
See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(6).
Texas courts have consistently recognized, however, that the statute
does not permit the plaintiff to bring a similar interlocutory appeal,
nor does it confer jurisdiction over cross-points raised on appeal by
the plaintiff. See TSM AM-FM TV v. Meca Homes, Inc., 969 S.W.2d 448, 451 (Tex. App.--El Paso 1998, pet. denied)
(holding that appellate court lacked jurisdiction to consider
plaintiff's cross-point challenging denial of plaintiff's
summary-judgment motion); see also Rogers v. Cassidy, 946 S.W.2d 439, 443 (Tex. App.--Corpus Christi 1997, no writ)
(holding that court cannot address plaintiff's summary judgment motion
 [*22] 
on interlocutory appeal even when addressing defendant's
competing motion). Under the language of the code and the cases
interpreting it, we do not have jurisdiction to consider Ochoa-Cronfel's
cross-point.


Ochoa-Cronfel argues that this Court may consider its cross-point "in the interest of judicial economy." See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627 (Tex. 1996); Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 428-29 (Tex. App.--Waco 1997, writ denied) (applying Cincinnati Life to interlocutory appeal taken under section 51.014(6)). Cincinnati Life and Delta
instruct that when an appellate court has jurisdiction to consider any
issue raised in a summary judgment order, "the appellate court should
consider all summary judgment grounds the trial court rules on and the
movant preserves for appellate review that are necessary for final
disposition of the appeal." Cincinnati Life, 927 S.W.2d at 627.
In addition, "the appellate court may consider other grounds that the
movant preserved for appellate review and [the] trial court did not rule
on in the interest of judicial economy." Id.


These cases are inapposite to Ochoa-Cronfel's cross-appeal. Cincinnati Life and Delta
delineate
 [*23] 
which issues the appellate court may address when it has the
jurisdiction to address at least one of the issues raised in the trial
court's order on the movant's summary judgment motion. See Cincinnati Life, 927 S.W.2d at 627; Delta, 949 S.W.2d at 428-29.
These cases do not, however, extend the appellate court's reach to
enable it to address separate summary judgment orders over which the
court does not otherwise have jurisdiction. As we have no jurisdiction
to consider any issues in the order disposing of Ochoa-Cronfel's summary
judgment motion, Cincinnati Life and Delta do not apply.


Accordingly, we grant Franco's motion to dismiss Ochoa-Cronfel's cross-appeal for want of jurisdiction. n11


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -11


In addition to granting Franco's motion to dismiss Ochoa-Cronfel's
cross-appeal, we also grant Franco's motion for leave to file a
supplemental post-submission letter brief, filed January 29, 2010.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -



CONCLUSION



Because we find no reversible error, we affirm the judgment of the
trial court denying Franco's no-evidence and traditional motions for
summary judgment and order Franco to pay all costs and reasonable
attorney's fees of the appeal in an amount to be determined by the trial
court. We further
 [*24] 
dismiss Ochoa-Cronfel's cross-appeal for want of jurisdiction.


Diane M. Henson, Justice


Before Justices Patterson, Puryear and Henson


Affirmed in part; Dismissed in part


Filed: March 12, 2010

I withdraw the statements of June 23, 2008 and August 20, 2008.

Gilbert in Austin

The above is only my opinion based on my personal experiences.

Based on the definitions below and my personal experiences, is how I came up with the above complaint. I am not an attorney.

extortion
Pronunciation: \ik-'sto?r-sh?n\
Function: noun
Date: 14th century
1: the act or practice of extorting especially money or other property; especially : the offense committed by an official engaging in such practice
2: something extorted; especially : a gross overcharge

Fraud
Pronunciation: \'fro?d\
Function: noun
Etymology: Middle English fraude, from Anglo-French, from Latin fraud-, fraus
Date: 14th century
1 a: deceit, trickery; specifically : intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right b: an act of deceiving or misrepresenting

MALFEASANCE - The unjust performance of some act which the party had no right, or which he had contracted not to do.