James Edwin Peeler v. Baylor University ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-08-00157-CV
JAMES EDWIN PEELER,
Appellant
v.
BAYLOR UNIVERSITY,
Appellee
From the 170th District Court
McLennan County, Texas
Trial Court No. 2004-0571-4
MEMORANDUM OPINION
James Edwin Peeler sued Baylor University for defamation. In two issues, Peeler
challenges the denial of his motion to disqualify Baylor’s counsel and the granting of
Baylor’s traditional and no-evidence motions for summary judgment. We affirm.
FACTUAL BACKGROUND
Peeler is a cameraman for KWTX, a Waco television station. On Sunday,
February 28, 1993, the day of the Branch Davidian raid by ATF agents on the Branch
Davidian Compound just outside of Waco, Peeler, who had been notified of the
impending raid, was attempting to locate the compound. He became lost. At some
point, he encountered a postman. He and the postman, who was later identified as
David Koresh’s brother-in-law, had a brief conversation.1 Peeler was subsequently
accused of being the source of information which led to the Branch Davidian’s
knowledge of the impending raid.
Ten years later, the Baylor Lariat, a student newspaper, published two articles
about the raid. Both articles referred to Peeler’s conversation with the postman and
suggested that the Davidians knew about the raid because of this conversation. One
article mentioned Peeler by name. These articles prompted Peeler’s lawsuit against
Baylor.
DISQUALIFICATION
In issue one, Peeler contends that the trial court erred by denying his motion to
disqualify Baylor’s counsel due to a joint-defense agreement that existed in prior
litigation. See TEX. R. EVID. 503(b)(1)(C). We review a trial court’s ruling on a motion to
disqualify for abuse of discretion. See Metro. Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d
319, 321 (Tex. 1994).
Baylor’s counsel in this litigation is an attorney with Fulbright Winniford.2
Attorneys with this firm represented one of the defendants in federal litigation related
to the Branch Davidian raid. According to the record, the defendants in the federal
litigation entered a joint-defense agreement. Peeler’s employer, KWTX, was one of the
1 David Koresh was the leader of the Branch Davidians.
2 In 1993, the firm was known as Fulbright Winniford Bice & Marable.
Peeler v. Baylor Univ. Page 2
defendants in the litigation. Because attorneys with Fulbright Winniford participated in
the joint-defense agreement, Peeler contends that there is now a conflict of interest and
the trial court should have disqualified attorneys at Fulbright Winniford from
representing Baylor in the current proceeding.
A movant seeking to disqualify counsel based on an assertion that due to a joint
defense agreement privileged information was shared in prior litigation and now
creates a conflict of interest in present litigation must show that: (1) confidential
information has been shared; and (2) the matter in which that information was shared is
substantially related to the matter in which disqualification is sought. In re Skiles, 102
S.W.3d 323, 327 (Tex. App.—Beaumont 2003, orig. proceeding). “Global assertions of
privilege do not constitute evidence.” Rio Hondo Implement Co. v. Euresti, 903 S.W.2d
128, 132 (Tex. App.—Corpus Christi 1995, orig. proceeding). “Some type of proof is
necessary.” Int’l Trust Corp. v. Pirtle, No. 07-96-00277-CV, 1997 Tex. App. LEXIS 198, at
*33 (Tex. App.—Amarillo Jan. 17, 1997, orig. proceeding) (not designated for
publication).
Baylor presents numerous arguments supporting its position that Peeler has not
established a conflict of interest arising out of the joint defense agreement. The
argument we find most compelling is that Peeler cannot meet the first element of
establishing a conflict. At the hearing on Peeler’s motion, Noley Bice, formerly of
Fulbright Winniford, testified that he never received any confidential information
protected by the joint defense privilege from KWTX’s attorney, or otherwise, regarding
Peeler’s role in the raid. Rick Bradfield of KWTX provided an affidavit expressing his
Peeler v. Baylor Univ. Page 3
awareness of the joint defense agreement, but did not identify any specific confidential
information that was shared.
Accordingly, Peeler has not established that confidential information was shared.
See Euresti, 903 S.W.2d at 132 (Affidavit failed to “reveal with any specificity the
confidences [Kelly] claims were revealed to her co-defendants.”). Because Peeler has
not met his burden of establishing that Baylor’s counsel had access to any confidential
information to which the joint defense privilege applies, the trial court did not abuse its
discretion by denying his motion to disqualify Baylor’s counsel. We deny issue one.
SUMMARY JUDGMENT
In issue two, Peeler challenges the trial court’s decision to grant Baylor’s
traditional and no-evidence motions for summary judgment.
When there are multiple grounds for summary judgment and the order does not
specify the ground on which the summary judgment was rendered, an appellant must
negate all grounds on appeal. Collins v. City of Corpus Christi, 188 S.W.3d 415, 423 (Tex.
App.—Corpus Christi 2006, no pet.) (citing State Farm Fire & Cas. Co. v. S. S., 858 S.W.2d
374, 381 (Tex. 1993)). If the appellant fails to negate each ground on which the
judgment may have been rendered, we must uphold the summary judgment. Id.
In its no-evidence motion, Baylor argued that there was no evidence of damages,
falsity, malice, or pecuniary harm, and in its traditional motion challenged Peeler’s
ability to establish defamation, and asserted the substantial truth defense, wire service
defense, and collateral estoppel. Peeler does not challenge that Baylor proved its wire
service and collateral estoppel defenses. The trial court’s order does not indicate on
Peeler v. Baylor Univ. Page 4
which grounds summary judgment was granted. Because Peeler failed to challenge
each ground on which the trial court may have rendered judgment, we overrule issue
two.
The trial court’s judgment is affirmed.
STEPHEN ELLIS
Judge
Before Chief Justice Gray,
Justice Reyna, and
Judge Ellis3
Affirmed
Opinion delivered and filed September 16, 2009
[CV06]
3
The Honorable Stephen Ellis, Judge of the 35th District Court, sitting by assignment of the Chief
Justice of the Supreme Court of Texas pursuant to section 74.003(a) of the Government Code. See TEX.
GOV’T CODE ANN. § 74.003(a) (Vernon 2005).
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