Marlene Octavia Knight v. We Care Kids Care, PLLC and Lisa H. Catney, Individually and as Owner of We Care Kids Care, PLLC

Affirmed and Memorandum Opinion filed May 29, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00493-CV
MARLENE OCTAVIA KNIGHT, Appellant
V.
WE CARE KIDS CARE, PLLC AND LISA H. CATNEY, INDIVIDUALLY
AND AS OWNER OF WE CARE KIDS CARE, PLLC, Appellees
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2011-39498
MEMORANDUM OPINION
Appellant Marlene Octavia Knight complains of the trial court’s grant of
partial summary judgment as to one allegation underlying Knight’s slander per se
claim brought against appellees We Care Kids Care, PLLC and Lisa H. Catney.
We affirm.
Background
Knight was employed as a nurse for We Care Kids Care, an agency owned
by Catney that provides in-home nursing services to disabled children. Knight was
suspended from her position after being accused by a foster mother of making
inappropriate comments to one of her foster children.1 Catney was subsequently
contacted for a reference by a potential employer for Knight. Catney informed the
potential employer of “the reasons that [Knight] was on suspension,” specifically
“that there were some allegations of inappropriate behavior in a home” that
“involved . . . encouraging a child to do a strip tease.”
Knight subsequently filed suit against appellees, bringing a claim for slander
per se. In her original petition, Knight alleged the following, in relevant part:
FACTS
8. On or about March 6, 2009, . . . Catney . . . wrote up a
disciplinary charge against [Knight] for allegedly causing a mentally
challenged child to undress and/or undressing a mentally challenged
child and forcing the naked child to dance in front of her. . . .
However, [appellees] have, with intent, and actual malice,
published or republished statements that [Knight] was terminated
from her former employer for sexually assaulting and/or raping a male
handicapped person.
....
PLAINTIFF’S CLAIM FOR SLANDER PER SE
10. Over the past two years [appellees] have orally published or
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The foster mother provided an affidavit attesting that Knight provided nursing services
to one of the foster children. The foster mother purportedly overheard Knight one evening
talking to one of the foster children, who occasionally would remove her diaper when it was
soiled. Knight allegedly yelled at the child as the child was removing her diaper to “go ahead
and strip like a stripper” and made other “lewd comments about stripping and removing
clothing.”
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republished unambiguous defamatory statements of fact which
referred to [Knight], a private individual, to third parties. Those
statements were defamatory and unambiguous accusing [Knight] of
sexual assault and/or rape of a handicapped individual. . . .
Appellees moved for no-evidence summary judgment on the basis that
Knight lacked evidence to support several elements of her slander per se claim,
including that appellees published a statement of fact about Knight that was
defamatory or false. Knight responded with the following evidence:
(1) Catney’s deposition testimony in which Catney admitted making a
statement to Knight’s potential employer regarding Knight’s alleged
“inappropriate behavior” of “encouraging a child to do a strip tease”;
(2) Catney’s affidavit stating, in relevant part, that Knight “talked to [a]
child that is Autistic and mentally challenged . . . telling her to take
off her clothes and do a pole dance. She was immediately dismissed
from that home and not scheduled anywhere else at that time”; and
(3) An affidavit from a certified nurse assistant, attesting that she was in
the home when the alleged incident occurred and was “working close
enough to [Knight to] hear her talking.” The nurse assistant attested
that Knight did not make “any inappropriate statement” and did not
“[ask] a child in the . . . home to undress and dance.” Instead, the
nurse assistant stated that Knight commented that the child was
“taking off her clothes when she wet them. I thus understood Ms.
Knight to mean that this child required my attention because she had
wet herself.”
In reply, appellees argued, among other things, that the proffered evidence
did not establish Knight’s claim that Catney had published a defamatory statement
accusing Knight of “sexual assault and/or rape or that she published any such
accusation to a third party.” The trial court granted the motion for summary
judgment in part and denied it in part, in the following words: “The motion is
granted with regard to statement in [paragraph] 10 of Plaintiff’s Original Petition.
The motion is denied with regard to statement in [paragraph] 8 of Plaintiff’s
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Original Petition.”
Appellees subsequently filed a traditional motion for summary judgment as
to paragraph eight of the original petition on the grounds that Knight’s “remaining
claims” were barred by limitations and that the statements underlying the claims
were true. The trial court granted the motion and signed a final judgment
dismissing the claim with prejudice. On appeal, Knight challenges only the trial
court’s partial grant of appellees’ no-evidence motion for summary judgment.
Analysis
In her sole issue, Knight complains of the trial court’s summary judgment on
the grounds that appellees failed to specify which claim they challenged in their
motion for summary judgment and Knight presented more than a scintilla of
evidence on each challenged element of her slander per se claim. We review the
trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). In reviewing either a no-evidence or a traditional
summary judgment motion, all evidence favorable to the nonmovant is taken as
true, and we draw every reasonable inference and resolve all doubts in favor of the
nonmovant. Lone Star Air Sys., Ltd. v. Powers, 401 S.W.3d 855, 858 (Tex. App.—
Houston [14th Dist.] 2013, no pet.).
In a no-evidence motion for summary judgment, the movant asserts that
there is no evidence of one or more essential elements of the claims for which the
nonmovant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i); Timpte
Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The burden then shifts to
the nonmovant to present evidence raising a genuine issue of material fact as to the
elements specified in the motion. Drake Interiors, L.L.C. v. Thomas, 14-13-00349-
CV, 2014 WL 1328011, at *4 (Tex. App.—Houston [14th Dist.] Apr. 3, 2014, no.
pet. h.). We will sustain a no-evidence motion for summary judgment when
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(1) there is a complete absence of evidence of a vital fact, (2) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a
mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital
fact. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)). The
evidence is insufficient if it is so weak as to do no more than create a mere surmise
or suspicion that the challenged fact exists. Id.
Motion Not Conclusory. Knight first complains that appellees’ no-
evidence motion for summary judgment was conclusory because it failed to specify
which of Knight’s claims for slander per se it challenged and thus “failed to afford
Knight with fair notice.”2 While a no-evidence motion for summary judgment
need not be detailed, it must specify which element or elements do not have
evidentiary support. Tex. R. Civ. P. 166a(i); Dworschak v. Transocean Offshore
Deepwater Drilling, Inc., 352 S.W.3d 191, 200 (Tex. App.—Houston [14th Dist.]
2011, no pet.). The motion cannot be conclusory or generally allege there is no
sufficient evidence to support the plaintiff’s claim. Tex. R. Civ. P. 166a(i) (cmt.
1997); Dworschak, 352 S.W.3d at 200. The underlying purpose of the requirement
that the motion be specific, not conclusory, is to provide the nonmovant “with
adequate information for opposing the motion, and to define the issues.” Timpte
Indus., 286 S.W.3d at 311. We apply a “fair notice” standard to determine whether
a no-evidence motion for summary judgment gives fair notice of the challenged
claim. Id. The degree of specificity required for fair notice depends on the case.
See id. In a complex case with complicated issues, more specificity may be
2
Appellees argue that Knight has waived this argument by making it for the first time on
appeal. But a challenge to the conclusory nature of a no-evidence motion for summary judgment
may be raised for the first time on appeal. Cuyler v. Minns, 60 S.W.3d 209, 213-14 (Tex.
App.—Houston [14th Dist.] 2001, pet. denied).
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required than in a relatively straightforward case involving few claims. See id.
Knight’s petition included one claim section entitled “Plaintiff’s Claim for
Slander Per Se.” Accordingly, as indicated in the plain language of the petition,
Knight asserted only one cause of action. The trial court apparently determined,
however, that it was based on two allegations of appellees’ publishing allegedly
false statements—that Knight “encourage[ed] a child to do a strip tease” and that
Knight engaged in “sexual assault and/or rape of a handicapped individual.”
Here, appellees’ motion, although not a model of craftsmanship, specifies
the elements of slander per se for which appellees argued Knight lacked evidence:
[Knight] has no evidence . . . that [appellees] published a statement of
fact about [Knight] that was defamatory or false. Further, even if
some statement does exist[,] then [Knight] has no evidence that . . .
[appellees] are liable without regard to fault. [Knight] has no
evidence that any alleged defamatory statement made by [appellees]
has caused [Knight any] damages.3
We conclude appellees’ motion was sufficient to give Knight fair notice that
appellees challenged all theories of slander per se alleged by Knight, particularly
given that Knight’s petition listed only one claim and the motion specifically
challenged elements of that claim. See id. (holding no-evidence motion for
summary judgment “setting forth the elements of a design defect claim” and
stating “[p]laintiff has presented no evidence of a design defect which was a
producing cause of his personal injury” and “[t]here is no evidence of the product
3
Appellees also alleged Knight had no evidence that the statements were made with
actual malice or negligent or that an alleged defamatory statement caused Knight any damages.
But to prove slander per se, Knight was required to show only that appellees published a
statement of fact referring to Knight that was false and defamatory per se, because defendants are
strictly liable for defamation per se when the speech is not public. See Hancock v. Variyam, 400
S.W.3d 59, 63-66 (Tex. 2013). Defamation per se involves statements that are so obviously
hurtful to a plaintiff’s reputation that the jury may presume general damages. Id. at 63-64. A
statement that injures a person in her office, profession, or occupation is typically classified as
defamatory per se. Id.
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being defective or unreasonably dangerous, and there is no evidence the [product]
was the proximate or producing cause of the Plaintiff’s injuries” was sufficient
given the “simple and straightforward” nature of the case).
No Evidence of Statement Regarding Sexual Assault or Rape. Knight
also asserts that the trial court should have denied the no-evidence motion because
Knight presented evidence that appellees published “a false statement that injured
Knight’s occupation.” As set forth above, the trial court granted the motion as to
paragraph ten, in which Knight alleged that appellees published a statement
“accusing [Knight] of sexual assault and/or rape of a handicapped individual.”
Knight presented evidence only that Catney told a third-party potential employer
that Knight “encourage[ed] a child to do a strip tease.” That is not evidence that
Catney said Knight engaged in sexual assault or rape of a handicapped individual.4
The trial court did not grant no-evidence summary judgment as to Knight’s slander
per se claim in its entirety—it granted judgment only as to the theory of slander per
se involving the purported statement about “sexual assault and/or rape.”5
We conclude Knight did not establish that appellees published a statement
accusing her of sexual assault or rape. Accordingly, the trial court did not err in
granting summary judgment in favor of appellees as to this theory of slander per se
asserted by Knight.
4
The Penal Code does not include an offense for “rape,” but includes an offense for
sexual assault that is perpetrated by any one of a number of actions all involving physical contact
between the perpetrator and victim of the crime. See Tex. Penal Code § 22.011. The allegation
about Knight encouraging a child to dance in a provocative manner does not meet the definition
of sexual assault in the Penal Code.
5
We note the trial court denied the motion “with regard to statement in [paragraph] 8 of
Plaintiff’s Original Petition” and paragraph eight also included an allegation that appellees
published statements that Knight sexually assaulted or raped “a male handicapped person.”
Knight has not challenged the trial court’s subsequent grant of appellees’ traditional motion for
summary judgment as to Knight’s claims that remained after the trial court had granted no-
evidence summary judgment.
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We overrule Knight’s sole issue.
The judgment of the trial court is affirmed.
/s/ Martha Hill Jamison
Justice
Panel consists of Chief Justice Frost and Justices Jamison and Wise.
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