Douglas Michael Bulthuis v. Jose Juan Avila

ACCEPTED
13-13-00717-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
1/14/2015 9:14:59 PM
DORIAN RAMIREZ
CLERK
No. 13-13-00717-CV
_________________________________________________________________
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
I T C
N HE OURT F PPEALS O A 1/14/2015 9:14:59 PM
F T T
OR HE HIRTEENTH ISTRICT F D O T
EXAS
DORIAN E. RAMIREZ
Clerk
_________________________________________________________________
DOUGLAS MICHAEL BULTHUIS,
Appellant
V.
JOSE JUAN (J.J.) AVILA,
Appellee
____________________________________________________________________
On Appeal from the 370th Judicial District Court of Hidalgo County, Texas
Trial Court Cause No. C-620-07-G
Honorable Noe Gonzalez, Judge Presiding
____________________________________________________________________
APPELLEE’S BRIEF
__________________________________________________________________
Francisco Rene Villarreal R. Russell Hollenbeck
State Bar No. 00789706 State Bar No. 00790901
GARCIA & VILLARREAL, LLP Natasha N. Taylor
4311 North McColl Road State Bar No. 24071117
McAllen, Texas 78502 WRIGHT & CLOSE, LLP
(956) 630-0081 One Riverway, Suite 2200
(956) 630-3631 (fax) Houston, Texas 77056
panchov@gvlaw.net (713) 572-4321
(713) 572-4320 (fax)
hollenbeck@wrightclose.com
taylor@wrightclose.com
Attorneys for Appellee, Jose Avila
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant:
Douglas Michael Bulthuis
Counsel for Appellant:
Ronald G. Hole
HOLE & ALVAREZ, L.L.P.
612 W. Nolana Loop, Ste. 370
P.O. Box 720547
McAllen, Texas 78504-0547
(956) 631-2891
(956) 631-2415 (fax)
Appellee:
Jose Juan (J.J.) Avila
Counsel for Appellee:
Francisco Rene Villarreal
GARCIA & VILLARREAL, L.L.P.
4311 North McColl Road
McAllen, Texas 78502
(956) 630-0081
(956) 630-3631 (fax)
panchov@gvlaw.net
R. Russell Hollenbeck
Natasha N. Taylor
WRIGHT & CLOSE, LLP
One Riverway, Suite 2200
Houston, Texas 77056
(713) 572-4321
(713) 572-4320 (fax)
hollenbeck@wrightclose.com
taylor@wrightclose.com
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES...................................................................................... v
RECORD CITATIONS ......................................................................................... viii
STATEMENT OF THE CASE .................................................................................ix
STATEMENT REGARDING ORAL ARGUMENT ............................................... x
ISSUES PRESENTED..............................................................................................xi
PRELIMINARY STATEMENT ............................................................................... 1
STATEMENT OF FACTS ........................................................................................ 2
A.  The parties’ claims and resulting lawsuit. ............................................. 2
B.  A jury finds for Bulthuis and awards him $850,000 in
damages. ................................................................................................ 3
C.  The trial court concludes the evidence was legally
insufficient to support the jury’s damage awards. ................................ 5
SUMMARY OF THE ARGUMENT ........................................................................ 7
ARGUMENT ............................................................................................................. 8
I.  This Court must presume the omitted portions of the record
support the trial court’s judgment and must affirm that
judgment. ......................................................................................................... 8
II.  The trial court properly rendered a judgment notwithstanding
the verdict on Bulthuis’s damages claims. .................................................... 12
A.  Bulthuis cannot satisfy his burden to show the trial court
erred in rendering a JNOV. ................................................................. 13
iii
B.  Bulthuis’s claim that the trial court failed to consider the
entire trial record not only confuses the rules but is
plainly incorrect. .................................................................................. 15
C.  The evidence was legally insufficient to support the
jury’s actual damages findings. ........................................................... 17
1.  Juries do not have unfettered discretion to award
non-economic damages, even in defamation cases. ................. 17
2.  There is no evidence to support the jury’s findings
of mental anguish and loss of reputation damages. .................. 20
III.  The trial court properly disregarded the jury’s award of
exemplary damages because Bulthuis did not recover actual
damages in this matter. .................................................................................. 24
IV.  The trial court properly declined to tax Bulthuis’s court costs
against Avila because Bulthuis recovered only nominal
damages. ........................................................................................................ 25
CONCLUSION AND PRAYER ............................................................................. 26
CERTIFICATE OF COMPLIANCE ....................................................................... 27
CERTIFICATE OF SERVICE ................................................................................ 27
APPENDIX .............................................................................................................. 28
iv
INDEX OF AUTHORITIES
Page
Cases
Appleton v. Appleton, 76 S.W.3d 78 (Tex. App.—Houston [14th Dist.]
2002, no pet.) ........................................................................................................ 14
Bennett v. Cochran, 96 S.W.3d 227 (Tex. 2002)................................................... 1, 9
Bennett v. Reynolds, 315 S.W.3d 867 (Tex. 2010) .................................................. 25
Bentley v. Bunton, 94 S.W.3d 561, 605 (Tex. 2002) ............................................... 17
Budd v. Gay, 846 S.W.2d 521 (Tex. App.—Houston [14th Dist.]
1993, no writ) ....................................................................................................... 14
Burbage v. Burbage, 2014 WL 4252274 (Tex. 2014) ............................................. 19
Cantu v. Seeman, 2012 WL 1564536 (Tex. App.—Corpus Christi
2012, pet. denied) ................................................................................................. 14
Christiansen v. Prezelski, 782 S.W.2d 842 (Tex. 1990)............................................ 9
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ............................................ 13
CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437 (Tex. App.—Fort
Worth 1999, no pet.) ............................................................................................ 10
Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 844 S.W.2d 198
(Tex. 1992) ........................................................................................................... 25
Exxon Mobil Corp. v. Hines, 252 S.W.3d 496 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied) ............................................................................. 15
Feldman v. Marks, 960 S.W.2d 613 (Tex. 1996) ...................................................... 9
Gardner v. Baker & Botts, L.L.P., 6 S.W.3d 295 (Tex. App.—
Houston [1st Dist.] 1999, pet. denied) ................................................................. 10
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ................................................... 18
Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387 (Tex. 1997) ............................ 23
Hancock v. Variyam, 400 S.W.3d 59 (Tex. 2013) .............................................19, 23
Harton v. First Victoria Nat’l Bank, 2011 WL 1935605 (Tex. App.—
Corpus Christi 2011, pet. denied) ........................................................................ 13
Haut v. Green Cafe Mgmt., Inc., 376 S.W.3d 171 (Tex. App.—
Houston [14th Dist.] 2012, no pet.)...................................................................... 11
v
In re B.J.H.–T., No. 12-09-00157-CV, 2011 Tex. App. LEXIS 1518
(Tex. App.—Tyler 2011, pet. denied) .................................................................... 9
In re D.T.C., No. 09-08-00388-CV, 2009 Tex. App. LEXIS 5451
(Tex. App.—Beaumont 2009, no pet.)................................................................... 9
In re Estate of Arrendell, 213 S.W.3d 496 (Tex. App.—Texarkana
2006, no pet.) ........................................................................................................ 10
In re Marriage of McKay, 393 S.W.3d 346 (Tex. App.—Amarillo
2012, no pet.) .......................................................................................................... 9
Jaramillo v. The Atchison, Topeka, & Santa Fe Ry. Co., 986 S.W.2d
701 (Tex. App.—Eastland 1998, no pet.) ............................................................ 10
Luna v. Luna, 2012 WL 1073377 (Tex. App.—Corpus Christi 2012,
no pet.) .................................................................................................................. 14
Mason v. Our Lady Star of the Sea Catholic Church, 154 S.W.3d 816
(Tex. App.—Houston [14th Dist.] 2005, no pet.) ................................................ 10
Munden v. Reed, 2003 WL 57751 (Tex. App.—Dallas 2003, no pet.) ................... 10
Ortegon v. Benavides, No. 04-05-00768-CV, 2008 Tex. App. LEXIS
1576 (Tex. App.—San Antonio 2008, pet. denied) ............................................... 9
Parkway Co. vs. Woodruff, 901 S.W.2d 434 (Tex. 1995) ....................................... 20
Richards v. Schion, 969 S.W.2d 131 (Tex. App.—Houston [1st Dist.]
1998, no pet.) ........................................................................................................ 10
Saenz v. Fidelity & Guaranty Insurance Underwriters, 925 S.W.2d
607 (Tex. 1996) .................................................................................................... 19
Salinas v. Kristensen, No. 13-08-00110-CV, 2009 WL 4263107 (Tex.
App.—Corpus Christi 2009, pet. denied) ............................................................ 11
Salinas v. Salinas, 365 S.W.3d 318 (Tex. 2012) ..................................................... 19
Sedona Pacific Housing P’ship v. Ventura, 408 S.W.3d 507 (Tex.
App.—El Paso 2013, no pet.)................................................................................. 9
Service Corp. Int’l v. Guerra, 348 S.W.3d 221 (Tex. 2011) ................................... 22
Servin v. Great W. Ins. Co., 2008 WL 723321 (Tex. App.—San
Antonio 2008, no pet.).......................................................................................... 10
Stevens v. Nat’l Educ. Ctrs., Inc., 11 S.W.3d 185 (Tex. 2000) ............................... 20
Synergy Mgmt. Grp., L.L.C. v. Thompson, 398 S.W.3d 843 (Tex.
App.—Eastland 2012, no pet.) ............................................................................. 17
vi
Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828 (Tex. 2009)................. 13
Tiller v. McLure, 121 S.W.3d 709 (Tex. 2003) ....................................................... 13
Wal-Mart Stores, Inc. v. Cockrell, 61 S.W.3d 774 (Tex. App.—
Corpus Christi 2001, no pet.) ............................................................................... 20
Ward v. Baylor University, No. 10-11-00066-CV, 2012 Tex. App.
LEXIS 1437 (Tex. App.—Waco 2012, pet. denied).............................................. 9
Watts v. Hancock, No. 05-12-01635-CV, 2014 Tex. App. LEXIS 7898
(Tex. App.—Dallas 2014, no pet.) ......................................................................... 9
Williams Farms Produce Sales, Inc. v. R & G Produce Co., 443
S.W.3d 250 (Tex. App.—Corpus Christi 2014, no pet.) ....................................... 8
Statutes
TEX. CIV. PRAC. & REM. CODE § 41.001(2) .............................................................24
Rules
TEX. R. APP. P. 34.6(b)(1) ..........................................................................................8
TEX. R. APP. P. 34.6(c)(1) ................................................................................... 1, 10
TEX. R. APP. P. 35.3(b) .............................................................................................16
TEX. R. APP. P. 39.1....................................................................................................x
TEX. R. CIV. P. 137 ....................................................................................... xi, 25, 26
TEX. R. CIV. P. 301 ............................................................................................ 13, 15
vii
RECORD CITATIONS
Citations to the clerk’s record or supplemental clerk’s record refer to the
page number assigned by the district clerk, e.g., “CR 1” or “CR Supp. 1.” Citations
to the reporter’s record will refer to the volume number and page, e.g., “1 RR 1.”
viii
STATEMENT OF THE CASE
Nature of the Case: This appeal arises from assault and defamation
claims filed by Douglas Bulthuis against Jose
Avila concerning events that occurred in 2004.
(CR 27) Avila originally filed a lawsuit against
Bulthuis for defamation, regarding Bulthuis’s
statements that Avila assaulted him. (CR 19–21)
Bulthuis filed counterclaims against Avila,
alleging assault and defamation, and seeking actual
and exemplary damages, as well as and attorneys’
fees. (CR 27–29, 32–33)
Trial Court: The 370th Judicial District Court of Hidalgo
County, Texas, the Hon. Noe Gonzalez presiding.
Course of Proceedings: After the trial court rendered summary judgment
on Avila’s claims, Bulthuis’s claims were tried to a
jury verdict in May 2012. (CR Supp. 35–49) At the
conclusion of trial, the jury found Avila was liable
for assault and defamation per se, found Bulthuis
sustained no damages for the alleged assault, found
Bulthuis sustained compensatory damages totaling
$750,000 for defamation, and awarded exemplary
damages of $100,000. (Id.) Avila filed a motion
for judgment notwithstanding the verdict and
argued the evidence was legally insufficient to
support the jury’s liability and damages findings.
(CR Supp. 50–82) The trial court granted the
motion for JNOV in part, entered a final judgment
in favor of Bulthuis, but awarded Bulthuis only
nominal damages of ten dollars. (CR 54–55)
Bulthuis filed this appeal. (CR 62–63)
ix
STATEMENT REGARDING ORAL ARGUMENT
The record and the parties’ briefs in this matter adequately set forth the
reasons why this Court should affirm the trial court’s judgment, and the legal and
procedural issues presented are straightforward. As a result, Appellee Jose Avila
does not believe oral argument will significantly aid the Court in considering the
procedural issues involved in this matter and determining the legal issues raised
herein. TEX. R. APP. P. 39.1. However, should this Court grant oral argument to
Appellant Douglas Bulthuis, Appellee requests the opportunity to appear and
present oral argument in response.
x
ISSUES PRESENTED
1. Bulthuis failed to present this Court with a complete reporters’ record of the
trial proceedings below, and failed to comply with TEX. R. APP. P. 34.6(c),
which requires parties who present a partial record on appeal to file a
statement of the points or issues to be presented on appeal. Here, Bulthuis
presents this Court with a mere 20 pages of the hundreds of pages of his own
testimony, from a trial that began May 17, 2012 and concluded 12 days later.
The Texas Supreme Court and virtually every other Texas court of appeals
have held that a party’s failure to do so is fatal to issues addressing whether
the evidence was sufficient to the jury findings. This Court must presume the
omitted portions of the record support the trial court’s rulings and must
affirm its judgment in this matter.
2. The trial court properly rendered a judgment notwithstanding the verdict in
this matter, because the evidence was legally insufficient to support the jury
awards of mental anguish and loss of reputation damages.
3. In the absence of sufficient evidence of actual damages, the trial court
properly rendered a judgment notwithstanding the verdict as to the jury’s
award of exemplary damages.
4. The trial court properly determined that court costs were not taxable in this
matter because Bulthuis recovered only nominal damages of ten dollars. See
TEX. R. CIV. P. 137.
xi
TO THE HONORABLE THIRTEENTH COURT OF APPEALS:
Appellee Jose Avila files this brief in response to the opening brief filed by
Appellant Douglas Bulthuis and would respectfully show this Court as follows.
PRELIMINARY STATEMENT
Bulthuis fails to give this Court any legitimate basis to overturn the trial
court’s judgment in this matter. His claims that this Court should reinstate the
jury’s damages awards are without merit. He presented no legally sufficient
evidence supporting such awards at trial, and none appears in this appellate record.
Were it not for the legal presumption of at least nominal damages that applies to
cases of defamation per se, the trial court would have rendered judgment that
Bulthuis take nothing. Moreover, Bulthuis’s decision to present a mere fraction of
the testimony from this multi-day trial—without giving the required notice of a
limited appeal and a statement of the specific issues to be appealed—dooms his
challenge of the trial court’s judgment at the outset. In the absence of such notice
and statement, this Court is required to presume the omitted portions of the trial
record are relevant to the issues raised and support the lower court’s judgment. See
TEX. R. APP. P. 34.6(c)(1); Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002).
As a result, this Court must summarily dispose of this appeal and affirm the
trial court’s judgment.
STATEMENT OF FACTS
In his request for the preparation of the reporter’s record in this matter,
Bulthuis asked the court reporter to include only the testimony of Aurora Villarreal
in the record. (CR 64–65, 72–73) Also contained in the clerk’s record are excerpts
of Bulthuis’s own trial testimony—a mere 20 pages of the hundreds of pages of his
testimony recorded at trial—that were presented to the trial court by Avila as
exhibits to post-trial motions and briefing. Consequently, the record on appeal is
severely limited, and Avila will restrict his presentation of the facts to what is
contained in the record before this Court.
A. The parties’ claims and resulting lawsuit.
This lawsuit arises from allegations of an altercation that allegedly occurred
in 2004 and from subsequent actions allegedly stemming from that altercation. (CR
24–25, 32–33; CR Supp. 26–28) In his pleadings, Bulthuis contended that in
January 2004, Avila threatened him while Bulthuis was attending a high school
basketball game with his four-year-old son. (CR 24–25) Bulthuis further claimed
that, in February 2004, Avila tortiously interfered with Bulthuis’s employment
contract with McAllen Independent School District (MISD) and intentionally
inflicted emotional distress on Bulthuis. (CR 25)
In Avila’s live petition, he alleged that in June 2006, Ruth Walters circulated
an email and letters to citizens of McAllen, Texas, and students of McAllen High
2
School that accused Avila of attacking Bulthuis. (CR Supp. 26) The email and
letters supposedly detailed the “facts” of the alleged assault and noted that the
assault constituted a third-degree felony. (Id.) Mary Walters allegedly re-circulated
the email and the letters to citizens of McAllen, Texas, and students of McAllen
High School on her MySpace page and via email. (CR Supp. 27) Based on these
allegations, Avila sued Ruth Walters, Mary Walters, and Bulthuis in March 2007,
alleging claims of defamation and gross negligence. (CR 18–22) Avila sought
damages for lost wages, emotional distress, and mental anguish, as well as punitive
damages. (CR 21)
In June 2007, Bulthuis filed counterclaims against Avila, alleging that Avila
assaulted and intentionally inflicted emotional distress on him. (CR 27–28)
Bulthuis also claimed Avila tortiously interfered with Bulthuis’s employment
contract and filed a frivolous lawsuit against him. (CR 28–29) Bulthuis later
supplemented his counterclaim with allegations that Avila made “false, scandalous
and totally manufactured statements” about Bulthuis. (CR 32–33) Bulthuis’s suit
sought damages and attorneys’ fees from Avila. (CR 27–29, 32–33)
B. A jury finds for Bulthuis and awards him $850,000 in damages.
The claims in this matter were tried to a jury, beginning May 17, 2012, with
the jury rendering its verdict 12 days later, on May 29, 2012. (CR Supp. 35–49, 50,
54) At trial, Bulthuis’s defamation per se claims focused on Avila’s alleged
3
publication of a statement by Beverly Bradburn to the MISD in which Bradburn
accused Bulthuis of harassing and sexually assaulting her in 2003. (CR Supp. 52–
53). Bulthuis is a teacher and coach at McAllen High School, and Bradburn was
also a teacher at that school at the time. Bradburn made the statement to school
district officials in 2008, as part of quasi-judicial proceedings. (CR Supp. 53)
Bulthuis testified at trial that Bradburn’s allegations against him were false,
and that he later learned that “other people in the community knew about these
allegations.” (CR Supp. 96) He claimed he pursued this lawsuit “to clear his
name.” (CR Supp. 116) Bulthuis testified that his wife heard the accusations
against him, but “never doubted” him and that they have “a strong marriage.” (CR
Supp. 99) Bulthuis also testified that, when the school district investigated the
allegations about his conduct, the allegations were “dismissed on no grounds.” (CR
Supp. 98) When asked whether the allegations had any effect on his employment
status, Bulthuis testified that he remained employed with the MISD, was not
demoted in any way, and continued to command the respect of his fellow coaches.
(CR Supp. 103) Bulthuis explained that his relationship with his supervisor never
deteriorated, he was never singled out or treated poorly, and he never lost his
supervisor’s respect. (CR Supp. 104) In fact, Bulthuis actually received a larger
salary in 2012 than he had earned in 2003. (CR Supp. 105)
4
At the conclusion of trial, the trial court submitted Bulthuis’s defamation per
se and assault claims to the jury. (CR Supp. 35–49) The jury found that Avila
knowingly, and with actual malice, made defamatory statements about Bulthuis’s
sexual misconduct. (CR Supp. 38–40, 42) The jury awarded Bulthuis damages
totaling $750,000 for past and future injury to his reputation and past and future
mental anguish, and it awarded Bulthuis $100,000 in exemplary damages. (CR
Supp. 41, 43) The jury found that Avila maliciously assaulted Bulthuis, awarded
Bulthuis no damages for his assault claim. (CR Supp. 44–47)
C. The trial court concludes the evidence was legally insufficient to
support the jury’s damage awards.
On May 31, 2012, Bulthuis moved the trial court to render a final judgment
based on the jury’s findings. (CR 35–36) In response, Avila moved for judgment
notwithstanding the verdict (JNOV) and argued that Bulthuis’s defamation per se
claim was based on statements that were not actionable as a matter of law and that
the evidence was legally insufficient to support the jury’s liability and damages
findings. (CR Supp. 51–61) Avila also argued, in the alternative, that should the
trial court conclude there was evidence to support the jury’s liability findings, a
JNOV on the damages findings was proper because the evidence presented at trial
was legally insufficient to support the amounts of the awards determined by the
jury. As a result, Avila suggested the trial court award Bulthuis only nominal
damages. (CR Supp. 83–94)
5
The trial court signed its original final judgment December 3, 2012, and
concluded that “it appears to the Court that judgment should be rendered,
notwithstanding the verdict, in favor of Counter-Plaintiff DOUGLAS MICHAEL
BULTHUIS, for nominal damages only.” (CR 41) Bulthuis then asked the trial
court to set aside its judgment and abate this proceeding, in light of the fact that
several defamation cases were then pending before the Texas Supreme Court. (CR
43–47) Bulthuis requested that the court reconsider its ruling on Bulthuis’s
damages, but alternatively, that the court set aside its judgment and abate the case
until the Texas Supreme Court ruled on those cases addressing damages in
defamation per se cases. (CR 46) The trial court did so, and abated this matter
pending the Texas Supreme Court’s rulings. (CR 48) On September 28, 2013, the
trial court signed its new final judgment, again granting Avila a JNOV on the
jury’s damages findings and awarding Bulthuis nominal damages against Avila.
(CR 54–55) Bulthuis moved to modify the trial court’s final judgment, which
motion was not ruled on, and then filed a notice of appeal. (CR 56–63)
6
SUMMARY OF THE ARGUMENT
Bulthuis pursued claims of defamation per se and assault against Avila in the
trial court, arising from a shoving match between them and an allegation by one of
Bulthuis’s co-workers that was investigated and dismissed with no adverse finding
or employment actions against Bulthuis. At trial, numerous witnesses testified over
several days. Unlike the trial court, who presided over the entire trial and heard all
the evidence, this Court is presented on appeal with a tiny fraction of the record—a
mere 20 or so pages of Bulthuis’s hundreds of pages of testimony. Because
Bulthuis chose to request and file a partial record, this Court should follow its own
precedent (and that of its sister courts) in presuming the omitted portions of the
record support the trial court’s judgment.
The trial court properly rendered a judgment notwithstanding the verdict in
this matter. The evidence presented at trial (of which this Court has only a small
part) did not support the jury’s actual damages findings, which totaled $750,000.
At closing argument in this matter, Buthuis’s trial counsel even conceded that his
client was content to recover only nominal damages from Avila for his claims—
“[I]t’s not about the money. . . . [I]f you believe that one dollar will stop him, fine.”
(CR Supp. 120) The trial court properly rendered a JNOV in this matter because
Bulthuis did not carry his burden of proving mental anguish and loss of reputation
damages, and its judgment should be affirmed.
7
ARGUMENT
I. This Court must presume the omitted portions of the record support the
trial court’s judgment and must affirm that judgment.
In preparation for his appeal in this matter, Bulthuis requested that the court
reporter prepare a reporter’s record of the trial proceedings, but asked the court
reporter to submit to this Court only the testimony of a single fact witness—school
district employee Aurora Zamora. (CR 72-73; RR 4, 70) Zamora testified generally
regarding the procedures followed by MISD when investigating incidents like
those alleged by Bradburn, but she offered no specifics about the investigation of
this particular alleged incident. (RR 68–69) Pursuant to Bulthuis’s request, the
court reporter submitted a record only of Zamora’s trial testimony to this Court—a
mere fraction of the entire trial evidence and testimony, which began May 17, 2012
and concluded May 29, 2012. (See CR 54)1
Texas Rule of Appellate Procedure 34.6 requires an appellant to designate
the transcripts and exhibits to be included as the reporter’s record. TEX. R. APP. P.
34.6(b)(1); Williams Farms Produce Sales, Inc. v. R & G Produce Co., 443 S.W.3d
250, 257 (Tex. App.—Corpus Christi 2014, no pet.) (“The burden of providing a
1
The court reporter’s certification attests that the reporter’s record:
[C]ontains a true and correct transcription of all portions of evidence and other
proceedings requested in writing by counsel for the parties to be included in this
volume of the Reporter’s Record, in the above-styled and numbered cause, all of
which occurred in open court or in chambers and were reported by me.
(RR 71, emphasis added)
8
record showing error requiring reversal is on the appellant.”). In the absence of a
complete reporter’s record, an appellate court must presume that omitted portions
of the record are relevant and support the trial court’s judgment. Bennett v.
Cochran, 96 S.W.3d 227, 228 (Tex. 2002); Feldman v. Marks, 960 S.W.2d 613,
614 (Tex. 1996); Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990).
This Court has expressly followed this line of cases. See Williams Farms
Produce Sales, Inc., 443 S.W.3d at 257 (“We must presume that any evidence that
the appellant failed to designate for the record is sufficient to support the trial
court’s decision.”). Virtually every other Texas appellate court has reached the
same result under similar circumstances. See, e.g., Watts v. Hancock, No. 05-12-
01635-CV, 2014 Tex. App. LEXIS 7898 (Tex. App.—Dallas 2014, no pet.);
Sedona Pacific Housing P’ship v. Ventura, 408 S.W.3d 507, 514–15 (Tex. App.—
El Paso 2013, no pet.); In re Marriage of McKay, 393 S.W.3d 346, 349–50 (Tex.
App.—Amarillo 2012, no pet.); Ward v. Baylor University, No. 10-11-00066-CV,
2012 Tex. App. LEXIS 1437 (Tex. App.—Waco 2012, pet. denied); In re B.J.H.–
T., No. 12-09-00157-CV, 2011 Tex. App. LEXIS 1518 (Tex. App.—Tyler 2011,
pet. denied); In re D.T.C., No. 09-08-00388-CV, 2009 Tex. App. LEXIS 5451
(Tex. App.—Beaumont 2009, no pet.); Ortegon v. Benavides, No. 04-05-00768-
CV, 2008 Tex. App. LEXIS 1576 (Tex. App.—San Antonio 2008, pet. denied); In
re Estate of Arrendell, 213 S.W.3d 496, 503 (Tex. App.—Texarkana 2006, no
9
pet.); Mason v. Our Lady Star of the Sea Catholic Church, 154 S.W.3d 816, 819
(Tex. App.—Houston [14th Dist.] 2005, no pet.); CMM Grain Co., Inc. v.
Ozgunduz, 991 S.W.2d 437, (Tex. App.—Fort Worth 1999, no pet.); Jaramillo v.
The Atchison, Topeka, & Santa Fe Ry. Co., 986 S.W.2d 701, 702 (Tex. App.—
Eastland 1998, no pet.); Richards v. Schion, 969 S.W.2d 131, 133 (Tex. App.—
Houston [1st Dist.] 1998, no pet.). This Court should continue to follow and apply
its own precedent, in keeping with its sister courts on this issue, and presume that
the omitted portions of the trial record support the trial court’s judgment.
Rule 34.6(c)(1) provides a limited exception to the rule requiring a complete
record that does not apply here. “If the appellant requests a partial reporter’s
record, the appellant must include in the request a statement of the points or issues
to be presented on appeal and will then be limited to those points or issues.” TEX.
R. APP. P. 34.6(c)(1) (emphasis added); see Servin v. Great W. Ins. Co., 2008 WL
723321, at *3 (Tex. App.—San Antonio 2008, no pet.). “To effectuate the purpose
of the rule, the statement of points must ‘designate with reasonable particularity the
complaints to be pursued on appeal.’” Munden v. Reed, 2003 WL 57751, at *2–3,
(Tex. App.—Dallas 2003, no pet.); see also Gardner v. Baker & Botts, L.L.P., 6
S.W.3d 295, 296 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). However,
“strict compliance with Rule 34.6(c) is necessary to activate the presumption that
omitted portions of the record are irrelevant.” Ozgunduz, 991 S.W.2d at 439. In
10
fact, a “general statement identifying the portion of the judgment appealed from
and declaring an intention to appeal that portion of the judgment is insufficient to
satisfy the narrow purpose of Rule 34.6(c).” Id.
There is no dispute that Bulthuis failed to file any statement of points or
issues along with his request for a partial reporter’s record in this case, or
anywhere else in the record. Bulthuis submitted two requests for the preparation of
the partial reporter’s record presented in this matter; neither contains any statement
or designation of specific appellate issues. (CR 64, 72) Nor does Bulthuis’s notice
of appeal comply with the requirements of Rule 34.6. (CR 62) Where a party such
as Bulthuis presents only a partial reporter’s record and fails to file a “statement of
the points or issues to be presented on appeal,” Texas courts are required to, and
will, presume that the omitted portions of the record support the trial court’s
judgment. Bennett, 96 S.W.3d at 229; see also Haut v. Green Cafe Mgmt., Inc.,
376 S.W.3d 171, 179–80 (Tex. App.—Houston [14th Dist.] 2012, no pet.). As a
result, this Court must similarly presume that the missing portions of the record
support the trial court’s judgment. Williams Farms Produce Sales, Inc., 443
S.W.3d at 257; Salinas v. Kristensen, No. 13-08-00110-CV, 2009 WL 4263107, at
*3–4 (Tex. App.—Corpus Christi 2009, pet. denied).
Moreover, permitting Bulthuis to file a late statement of issues at this
point—or more properly, to supplement the appellate record with a complete trial
11
transcript—would irreparably harm and prejudice Avila. Because neither the
parties nor this Court have the benefit of a complete record of the trial testimony
and evidence in this matter, Avila has not been afforded the opportunity to review
and brief the significance of all of this evidence to this Court. As a result, Avila’s
appellate posture would be impaired were Bulthuis allowed to file a late statement
of issues or supplemental reporter’s record. Undoubtedly, both parties would be
required to rebrief this case to support or respond to any late filed appellate issues
and any supplemental trial record. Bulthuis elected to proceed on an incomplete
record, and Avila has responded and addressed the merits of the record as it stands
and urges the Court to apply the appropriate presumption in favor of the trial
court’s judgment. Permitting a late filed statement of issues or late record
supplementation at this stage would not only restart this appeal at square one, it
would go directly against the spirit of the rules of appellate procedure. The rules do
not permit a party to wait for its opponent to point out the problems or deficiencies
of its strategy, and then bring forward revised or additional appellate issues and
portions of the record.
Accordingly, this Court must affirm the trial court’s judgment.
II. The trial court properly rendered a judgment notwithstanding the
verdict on Bulthuis’s damages claims.
Bulthuis claims the trial court erred in setting aside the jury’s damages
finding and in awarding him only nominal damages. In doing so, Bulthuis
12
misapplies the proper standard of review, attempts to shift the burden of proof to
Avila, and ignores the absence of evidence in the appellate record.
In reviewing a trial court’s JNOV, appellate courts conduct a legal-
sufficiency analysis of the evidence—the same test a court would apply to an
appellate no-evidence challenge. See Tanner v. Nationwide Mut. Fire Ins. Co., 289
S.W.3d 828, 830 (Tex. 2009); City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.
2005). In applying the no-evidence standard, courts consider the evidence in the
light most favorable to the jury’s verdict and indulge every reasonable inference
that would support it. City of Keller, 168 S.W.3d at 822; Tiller v. McLure, 121
S.W.3d 709, 713 (Tex. 2003). Courts will credit favorable evidence only if a
reasonable juror could, and will disregard contrary evidence unless a reasonable
juror could not. Tanner, 289 S.W.3d at 830. With regard to damages, a trial court
may disregard a jury’s verdict and render JNOV when no evidence supports the
jury’s damages findings. TEX. R. CIV. P. 301; Tiller, 121 S.W.3d at 713; Harton v.
First Victoria Nat’l Bank, 2011 WL 1935605, at *5 (Tex. App.—Corpus Christi
2011, pet. denied).
A. Bulthuis cannot satisfy his burden to show the trial court erred in
rendering a JNOV.
Bulthuis attempts to shift the burden to Avila to prove that the trial court’s
rendition of a JNOV in this matter was proper. But it is the appellant’s burden of
providing a record showing error that requires reversal. Williams Farms Produce
13
Sales, Inc., 443 S.W.3d at 257–58 (citing Appleton v. Appleton, 76 S.W.3d 78, 87
(Tex. App.—Houston [14th Dist.] 2002, no pet.)); Budd v. Gay, 846 S.W.2d 521,
523 (Tex. App.—Houston [14th Dist.] 1993, no writ) (concluding that without a
sufficient record the appellate court cannot determine whether the trial court
committed error); see also Luna v. Luna, 2012 WL 1073377, at *2 (Tex. App.—
Corpus Christi 2012, no pet.). “If the appellant desires a reporter’s record on
appeal, he must request the court reporter to prepare the record and arrange for
payment of the reporter’s fee for doing so.” Cantu v. Seeman, 2012 WL 1564536,
at *5 (Tex. App.—Corpus Christi 2012, pet. denied).
As noted above, when the issues on appeal involve evidence omitted from
the appellate record, appellate courts must presume the missing evidence will
support the trial court’s ruling. Cantu, 2012 WL 1564536 at *5. “Issues depending
on the state of the evidence cannot be reviewed without a complete record,
including the reporter’s record . . . [and if] the appellant fails to bring forward a
complete record, the court will conclude he has waived issues dependent on the
state of the evidence.” Id.
Here, Bulthuis challenges the trial court’s decision to render judgment
awarding him nominal damages for his defamation per se claim, arguing that the
evidence at trial was legally sufficient to support the jury’s damages awards.
Considering this appellate issue requires a complete trial record in order for this
14
Court to review the sufficiency of the evidence presented. See Exxon Mobil Corp.
v. Hines, 252 S.W.3d 496, 502 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied). Without a complete record on appeal, Bulthuis cannot possibly meet his
burden to show the trial court’s rulings were error. Presuming that the missing
portions of the reporter’s record support the trial court’s rulings, as this Court must
do, this Court should overrule Bulthuis’s issues and affirm the trial court’s
judgment. See Haut, 376 S.W.3d at 180–83; Cantu, 2012 WL 1564536 at *5.
B. Bulthuis’s claim that the trial court failed to consider the entire
trial record not only confuses the rules but is plainly incorrect.
Bulthuis suggests that the trial court erred in rendering a JNOV on his
damages claims, in part, based on his contention that the court did not review the
entire trial record when ruling on the motion. Bulthuis claims Avila “failed to
present the entire record to the trial court,” apparently based on a snippet of
language lifted from the trial court’s final judgment and on his belief that Avila
was required to attach a full transcript of the entire trial, along with all admitted
trial exhibits, to the motion for JNOV. Bulthuis’s claims are entirely without merit.
Contrary to Bulthuis’s argument, Avila was not required to provide the trial
court with the entire trial transcript with his JNOV motion. Rule of Civil Procedure
301, which governs the filing of a JNOV, does not require that any record or
evidence be attached to such motions. See TEX. R. CIV. P. 301. The Rule provides
that:
15
[U]pon motion and reasonable notice the court may render judgment
non obstante veredicto if a directed verdict would have been proper,
and provided further that the court may, upon like motion and notice,
disregard any jury finding on a question that has no support in the
evidence.
Id. (emphasis added). Unlike the Rules of Appellate Procedure, which specifically
require an appellant to request that a reporter’s record be prepared, no such duty is
placed on a movant filing a JNOV.2 See TEX. R. APP. P. 35.3(b). Bulthuis’s claims
conflate the very different requirements of the Rules of Civil Procedure with those
of the Rules of Appellate Procedure and should be wholly disregarded.
More importantly, the trial court presided over and did hear all the evidence
presented during the trial and it did consider that evidence when ruling on Avila’s
JNOV motion. (See CR 54, noting that “[a]ll parties, by and through their
respective counsel of record, presented argument and evidence at trial and then
rested and closed.”) The exhibits attached to Avila’s JNOV motion consisted
simply of excerpts of trial testimony offered to highlight arguments in the motion
for the trial court’s convenience. There was nothing actually attached to the JNOV
motion (nor anything that could have been attached to the motion) that the trial
court had not already heard for itself during the parties’ lengthy trial. See Synergy
Mgmt. Grp., L.L.C. v. Thompson, 398 S.W.3d 843, 846 (Tex. App.—Eastland
2
If this were the case, every motion for JNOV or for new trial would be required to include a
full trial transcript along with exhibits—items that court reporters usually do not have time to
prepare within the deadlines for filing such motions—and would result in these motions
essentially becoming “mini-appeals,” a result the Rules obviously do not intend.
16
2012, no pet.) (holding that, in its analysis of JNOV issues, the court of appeals
must consider “only the evidence that was admitted during the trial”).
Consequently, as the presiding judge of the parties’ trial, the trial court already had
all the evidence before it necessary to consider and rule on Avila’s JNOV motion.
This Court should dismiss Bulthuis’s argument to the contrary as a red herring.
C. The evidence was legally insufficient to support the jury’s actual
damages findings.
Bulthuis claims the evidence he presented at trial—largely absent from this
record—supports the jury’s huge actual damage awards totaling $750,000. For the
reasons explained above, this Court needs a complete record to review the trial
court’s decision in the context of all the evidence presented. Otherwise, this Court
must defer to the trial court, who presided over the entire trial and heard all the
evidence and testimony, and must presume that the omitted portions of the record
support that court’s rulings and final judgment. Moreover, the testimony Bulthuis
cites for support fails to satisfy the evidentiary standards required to prove mental
anguish and loss of reputation damages. (CR 95-113, 116)
1. Juries do not have unfettered discretion to award non-
economic damages, even in defamation cases.
The Texas Supreme Court has explained that, in cases involving defamation
per se, non-economic damages “cannot be determined by mathematical precision.”
Bentley v. Bunton, 94 S.W.3d 561, 605 (Tex. 2002). However, the fact that a jury
17
may be afforded some latitude in awarding such damages “does not, of course, give
it carte blanche to do whatever it will . . . .” Id. (emphasis added). In Gertz v.
Robert Welch, Inc., the United States Supreme Court cautioned lower courts
against upholding jury verdicts in defamation per se cases when the damage
awards are unsupported by the evidence. 418 U.S. 323, 349–50 (1974). The Court
expressed its concern that “the largely uncontrolled discretion of juries to award
damages where there is no loss unnecessarily compounds the potential of any
system of liability for defamatory falsehood to inhibit the vigorous exercise of First
Amendment freedoms.” Id. at 349. In that case, the Court also expressed the same
concern regarding awards of punitive damages. Id. at 350.
Echoing the United States Supreme Court’s concerns, the Texas Supreme
Court has held that “the First Amendment requires appellate review of amounts
awarded for non-economic damages in defamation cases to ensure that any
recovery only compensates the plaintiff for actual injuries and is not a disguised
disapproval of the defendant.” Bentley, 94 S.W.3d at 605. As the Court explained:
The latitude necessarily accorded a jury in assessing non-economic
damages does not insulate its verdict from appellate review for
evidentiary support. Just as a jury’s prerogative of assessing the
credibility of evidence does not authorize it to find liability when
there is no supporting evidence or no liability in the face of
unimpeachable evidence, so a large amount of mental anguish
damages cannot survive appellate review if there is no evidence to
support it . . . . The jury is bound by the evidence in awarding
damages, just as it is bound by the law.
18
Id. at 605-06 (emphasis added). In Saenz v. Fidelity & Guaranty Insurance
Underwriters, the Texas Supreme Court further explained the limits on a jury’s
ability to award non-economic damages:
Not only must there be evidence of the existence of compensable
mental anguish, there must also be some evidence to justify the
amount awarded. . . . . While the impossibility of any exact evaluation
of mental anguish requires that juries be given a measure of discretion
in finding damages, that discretion is limited. Juries cannot simply
pick a number and put it in the blank. They must find an amount
that, in the standard language of the jury charge, “would fairly and
reasonably compensate” for the loss. Compensation can only be for
mental anguish that causes “substantial disruption in . . . daily
routine” or “a high degree of mental pain and distress.” There must be
evidence that the amount found is fair and reasonable compensation,
just as there must be evidence to support any other jury finding.
925 S.W.2d 607, 614 (Tex. 1996) (emphasis added) (citations omitted).
The Texas Supreme Court recently explained that “Texas law presumes that
defamatory per se statements cause reputational harm and entitle a plaintiff to
general damages such as loss of reputation and mental anguish.” Burbage v.
Burbage, 2014 WL 4252274, at *8 (Tex. 2014) (citing Bentley, 94 S.W.3d at 604).
But that Court has repeatedly held that this presumption yields only nominal
damages. Id. (citing Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012) (per
curiam)). To award a plaintiff anything beyond nominal damages, courts must
review presumed damages for evidentiary support. Id.; Hancock v. Variyam, 400
S.W.3d 59, 66 (Tex. 2013).
19
2. There is no evidence to support the jury’s findings of
mental anguish and loss of reputation damages.
The Texas Supreme Court has consistently explained that recovering mental
anguish damages requires evidence of a high degree of mental pain and distress
that is more than mere worry, anxiety, vexation, embarrassment, or anger. See
Stevens v. Nat’l Educ. Ctrs., Inc., 11 S.W.3d 185, 185 (Tex. 2000); Wal-Mart
Stores, Inc. v. Cockrell, 61 S.W.3d 774, 779 (Tex. App.—Corpus Christi 2001, no
pet.) (“To recover for mental anguish a plaintiff must offer direct evidence of the
nature, duration, and severity of their mental anguish, thus establishing a
substantial disruption in the plaintiffs’ daily routine, or other evidence of a high
degree of mental pain and distress that is more than mere worry, anxiety, vexation,
embarrassment, or anger.”) (internal quotations omitted). For example, in Parkway
Co. vs. Woodruff, 901 S.W.2d 434 (Tex. 1995), the Court examined the claimants’
testimony regarding their alleged mental anguish, and found it was insufficient to
support an award of such damages. Specifically, the Court held that evidence
showing the claimants had experienced anger, frustration, and vexation, were
legally insufficient to support a reasonable conclusion that their emotions rose to
the level of compensable mental anguish. Id.
Here, there is no evidence to support the jury’s findings that Bulthuis was
entitled to past and future mental anguish damages or the jury’s specific damage
awards. Bulthuis claims the few pages contained in the clerk’s record support his
20
claims of mental anguish because he testified that the allegations against him
affected him “a lot,” were “disturbing,” upset his wife, and hurt him. However,
Bulthuis also testified that his wife “never doubted” him and that they have “a
strong marriage.” (CR Supp. 99) There is nothing in the record, and in fact, no
evidence was presented at trial to support the jury’s findings that Bulthuis
sustained mental anguish damages in the past in the amount of $250,000, or that he
is likely to sustain such damages in the future in the amount of $100,000. In fact,
Bulthuis’s counsel admitted that he likely would sustain no future mental anguish
whatsoever, and encouraged the jury to award nothing for this element. (CR Supp.
119) Most of Bulthuis’s trial testimony regarding mental anguish damages focused
on a disputed 2004 incident in which he claimed Avila assaulted him—and the jury
found Bulthuis sustained no damages arising from that incident. Bulthuis testified
that he had “problems with lack of sleep,” but attributed that to the 2004 alleged
assault and not the alleged defamation. Throughout the trial, Bulthuis simply asked
the jurors to award him mental anguish damages in whatever amount “they feel are
appropriate” for his defamation claims. His request, and the jury’s damage awards
for past and future mental anguish, are directly contrary to the Texas Supreme
Court’s precedent concerning non-economic damages generally and defamation
per se claims specifically. See Service Corp. Int’l v. Guerra, 348 S.W.3d 221, 231–
21
32 (Tex. 2011) (“[G]eneralized, conclusory descriptions of how an event affected a
person are insufficient evidence on which to base mental anguish damages.”).
Similarly, there was no evidence presented (and there is no evidence in this
record) to support the jury’s findings that Bulthuis sustained, or will continue to
sustain in the future, any actual injury to his reputation, much less injuries in the
amounts of damages found by the jury. Bulthuis presented no evidence at trial that,
after Avila’s alleged publication of Beverly Bradburn’s 2008 statement, Bulthuis’s
relationship with the three persons to whom the oral statements were allegedly
made ever deteriorated. Bulthuis testified that the allegations were “about a very
disturbing subject,” were false, and that he later learned that “other people in the
community knew about these allegations.” But he also admitted that, when
Bradburn’s allegations about his conduct were investigated by the school district,
he was quickly cleared of any wrongdoing. (CR Supp. 98) Bulthuis expressed
concern that his friend, Charlie Vaughn, might have some doubt about whether
Bradburn’s accusations were true, but no evidence was presented to confirm this
speculation, and Vaughn himself did not testify. (CR Supp. 86) But Bulthuis also
admitted that he suffered no loss of respect from his coaching colleagues, that his
reputation and salary at McAllen High School were not negatively affected by the
alleged defamation, and that his coaching assignments and duties remained the
same as before. (CR Supp. 103) Bulthuis also testified that his relationship with his
22
supervisor never deteriorated, he was never singled out or treated poorly, and he
never lost his supervisor’s respect. (CR Supp. 104) In fact, Bulthuis actually earned
a larger salary in 2012 than he had in 2003. (CR Supp. 105) No testimony was
presented from any persons that their opinion of Bulthuis’s reputation or character
was, in fact, negatively affected by the alleged defamation, a jury may not
reasonably infer an ultimate fact from “meager circumstantial evidence which
could give rise to any number of inferences, none more probable than another.”
Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). In other
words, there was no evidence to support the jury’s findings that Bulthuis’s
reputation was injured to the point of awarding any more than nominal damages.
The testimony regarding this event was just the opposite. In fact, Bulthuis even
testified, at his counsel’s prompting, that he was not required to prove he sustained
any damages to his reputation.
In contrast to the evidence presented here, this Court should consider the
evidence presented in Hancock v. Variyam, 400 S.W.3d 59 (Tex. 2013), another
case involving claims of defamation per se. There, the jury awarded damages for
mental anguish and loss of reputation—which together totaled a mere $90,000—
based on evidence that the plaintiff was “devastated” and “very distraught” by the
defendant’s written defamatory statements, that his family life was severely
disrupted, and that he became paranoid, lost sleep, and sought professional
23
counseling. Id. at 69–70. In addition, the plaintiff in Hancock testified that the
defamatory statements were published to his professional colleagues and that he
was demoted as a result of them. Id. Nonetheless, the Texas Supreme Court held
the evidence was legally insufficient to support the jury’s mental anguish and loss
of reputation awards, and rendered judgment that the plaintiff take nothing. Id.
Bulthuis presented no such evidence in this case. Notably, in closing
argument, Bulthuis’s counsel downplayed any justification for an award of actual
damages, emphasizing that “one dollar” would be sufficient. (CR Supp. 120) Here,
the trial court properly rendered judgment notwithstanding the verdict on
Bulthuis’s actual damages claims because he failed to prove at trial that he had
sustained anything more.
Accordingly, this Court should affirm the trial court’s judgment.
III. The trial court properly disregarded the jury’s award of exemplary
damages because Bulthuis did not recover actual damages in this
matter.
Texas law requires that any finding of malice and any award of punitive
damages must both be supported by clear and convincing evidence, a higher
evidentiary burden than a preponderance of the evidence. See TEX. CIV. PRAC. &
REM. CODE § 41.001(2). A finding of malice cannot be upheld in the absence of
clear and convincing evidence that a tortfeasor specifically intended to cause
“substantial injury or harm” to a claimant—which requires proof of more than
24
merely perceived or insignificant injury. Bennett v. Reynolds, 315 S.W.3d 867, 872
(Tex. 2010). No evidence was presented at trial to support a finding of malice in
this case in satisfaction of this elevated standard of proof.
But exemplary damages are also not available unless a plaintiff first
establishes his entitlement to actual damages. Hancock, 400 S.W.3d at 71. Here,
the trial court determined there was no evidence to support the jury’s awards of
actual damages. (CR 54–55) As a result, the trial court properly disregarded the
jury’s exemplary damages award.
IV. The trial court properly declined to tax Bulthuis’s court costs against
Avila because Bulthuis recovered only nominal damages.
Finally, Bulthuis claims the trial court erred in refusing to award his taxable
court costs, even though he was the prevailing party at trial. However, Bulthuis
acknowledges the Texas Rules of Civil Procedure provide that “[i]n civil actions
for . . . defamation of character, if the verdict or judgment shall be for the plaintiff,
but for less than twenty dollars, the plaintiff shall not recover his costs, but each
party shall be taxed with the costs incurred by him in such suit.” TEX. R. CIV. P.
137 (emphasis added); see Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 844
S.W.2d 198, 210 (Tex. 1992) (recognizing application of Rule 137). Here, because
the trial court’s final judgment awards Bulthuis nominal damages of “less than
twenty dollars,” the trial court did not err in declining to tax Bulthuis’s court costs
against Avila in this matter, and in choosing to follow Rule 137’s mandate for
25
cases like this one. See TEX. R. CIV. P. 137.
Accordingly, the trial court’s determination that “all parties shall bear their
own taxable court costs” is not an abuse of discretion, and this Court should affirm
the trial court’s ruling.
CONCLUSION AND PRAYER
For all of the reasons set forth herein, Appellee Jose Avila respectfully
requests that this Court affirm the trial court’s judgment in all respects.
Respectfully submitted,
/s/ R. Russell Hollenbeck
R. Russell Hollenbeck
State Bar No. 00790901
hollenbeck@wrightclose.com
Natasha N. Taylor
State Bar No. 24071117
taylor@wrightclose.com
WRIGHT & CLOSE, LLP
One Riverway, Suite 2200
Houston, Texas 77056
(713) 572-4321
(713) 572-4320 (fax)
Francisco Rene Villarreal
State Bar No. 00789706
GARCIA & VILLARREAL, L.L.P.
4311 North McColl Road
McAllen, Texas 78502
956-630-0081
956-630-3631 Facsimile
panchov@gvlaw.net
COUNSEL FOR APPELLEE,
JOSE AVILA
26
CERTIFICATE OF COMPLIANCE
I certify that the foregoing brief is in compliance with Texas Rule of
Appellate Procedure 9.4 because it contains 6,364 words and has been prepared in
a proportionally spaced typeface using Microsoft Word 2007 in 14-point Times
New Roman font for text and 12-point Times New Roman font for footnotes,
which meets the typeface requirements.
/s/ Natasha N. Taylor
Natasha N. Taylor
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing
document has been served electronically on this 14th day of January 2015:
Ronald G. Hole
HOLE & ALVAREZ, L.L.P.
P.O. Box 720547
McAllen, Texas 78504-0547
956-631-2891
956-631-2415 Facsimile
mail@holealvarez.com
Counsel for Appellant,
Douglas Bulthuis
/s/ Natasha N. Taylor
Natasha N. Taylor
27
APPENDIX
1. Charge of the Court
2. Final Judgment
28
DOUGLAS MICHAEL BULTHUIS §
vs § 37QTH JUDICIAL DISTRICT
§
JOSE JUAN (J.J.) AVILA §
CHARGE OF THE COURT
MEMBERS OF THE JURY:
the questions that are attached, and reach a verdict You may discuss the case with other
jurors only when you are all together in the jury room.
case or conduct any research. Do not look up any words in dictionaries or on the Internet
Do not post information about the case on the Internet Do not share any special
knowledge or experiences with the other jurors. Do not use your phone or any other
Here are the instructions for answering the questions.
2. Base your answers only on the evidence admitted in court and on the law
that is in these instructions and questions. Do not consider or discuss any
evidence that was not admitted in the courtroom.
of the credibility of the witnesses and the weight to give their testimony. But
on matters of law, you must follow all of my instructions.
5. All the questions and answers are important No one should say that any
question or answer is not important
35
------------------------------·-
'
6. Answer 'yes" or no to all quest1ons unless you are to1a otnerw1se. A yes
answer must be based on a preponderance of the evidence unless you are I
told otherwise. Whenever a question requires an answer other than "yes" or
"no," your answer must be based on a preponderance of the evidence unless
vou are told otherwise.
The term "preponderance of the evidence" means the greater weight of
credible evidence presented in this case. If you do not find that a
preponderance of the evidence supports a "yes" answer, then answer "no."
fl ,. - ,. .... >nl"<> nf th<> ..... ic nnt llr<>rl hu th<> n• •mh<>r nf
. '
witnesses or by the number of documents admitted in evidence. For a fact
to be proved by a preponderance of the evidence, you must find that the fact
is more likely true than not true.
'7
'.
.....
~v ••v•
..... ......-" ... . "u~•v•
-~
... •v ·'· ~
JVU U ~"~"~'
"""
·'"·~
~"VUrl, th<> nn
''"
..
'tn th<> m •<>dinnc ""' •cot h<>
' " " ' Ut::v,;:,lv" v• QL lt::Q;:,L I U VI U It:: IL JU IV';:,. ' " " ' ;:,QI " " ' I V J Ul VI;:, IIIU;:,l nr nnt "' . >IIH tn '"' A
statement is not "substantially true" if, in the mind of the average person, the gist of the
statement is more damaging to the person affected by it than a literally true statement
would have been. I
Answer "Yes" or "No" ~~)]
r CHARGE nF TH' rnr roT- oooo < nf '<
39
'
'
If you have answered Question No. 2 "Yes," then answer Question No. 3,
otherwise do not answer Question Nos. 3.
QUESTION NO. 3
Did Jose Juan (J.J.) Avila know or should have known, in the exercise of ordinary
care, that the statements he made and the letters he published referred to in Question Nos.
1 and 2, were false and had the potential to be defamatory?
"Ordinarv care" concern inn th~> tp •th nf th~> :mrl it" · 11 In hP
defamatory means that degree of care that would be used by a person of ordinary
prudence under the same or similar circumstances.
1
I A uv ................ r-"t-.1 ..... " 'I oiJ
CHARGE OF THE COURT~ PaPe 6 of 15
40
It you nave answerea uuest1on No. 1 ·yes, men answer uuest1on No. 4.
Otherwise, do not answer Question No. 4, 5 and 6.
QUE::; IIUN NO. 4
What sum of money, if paid now in cash, would fairly and reasonably compensate
Douglas Michael Bulthuis for his injuries, if any, that were proximately caused by the
conduct found by you in answer to Question 1?
You are instructed that under the law the statements made were defamatorv oer se
and as such, our law presumes that such statements injure the victim's reputation and
entitle him to recover general damages, including damages for loss of reputation and
mental anguish. You are instructed that you must award at least nominal damages.
("', ..... +h , .. ,f ....
'"
1; -+. rl " rl
••• r' . . rl.
-·
'
<:OI<:OIII<:OIIl ;:)<:OfJaiCH<:Oiy. UV IIUl avvaou a11y ;:)UIII VI IIIVII<:OY VII a11y <:OI<:OIII<:OIIl u y v u llaV<:O VU 1<:01 YVI'><:O,
under some other element, awarded a sum of money for the same loss. That is, do not
compensate twice for the same loss, if any. Do not include interest on any amount of
damages you find.
Answer separately, m dollars ana cents, tor a am ages, 1t any, sustamea by LJouglas
M. Bulthuis.
a. Injury to reputation sustained in the past. I
Answer: ·~cn.ooo
D. InJury to reputauon mat, 1n reasonao1e prooaolllty, uoug1as M1cnae1
Bulthuis will sustain in the future.
Answer: -:\\._5() 100(:2
C. 1v1ema1 angu1sn susialnea m me pasc
Answer: $ 2<:>01000
d. Mental anguish that, in reasonable probability, Douglas Michael
Bulthuis will sustain in the future.
1-\fi:SW~r.
~-1 "''"'
j...l/'-'1~~~
~r-
CHARGE OF THE COURT- Page 7 of 15
41
.----------------------------------------------------------------------------------~
you mserte a sum o money m any o t e an s m uest1on No. 4, then
answer Question No 5 Otherwise do not answer Question Nos. 5 & 6
'
I o answer 'Yes to the follow1ng quest1on, your answer must be unanimous. You
may answer "No" to the following question only upon a vote of 10 or more jurors. Otherwise,
you must not answer the following question.
QUESTION NO. 5
Do you find from clear and convincing evidence that such defamatory statements I
made by Jose Juan (J.J.) Avila were made with actual malice?
"Clear and convincing evidence" is that measure or degree of proof that will produce
in the mind of the jury a firm belief or conviction as to the truth of the allegations sought to
be established .
.llnc..,or "Voc" nr "tl.ln"
CHARGE OF THE COURT- Page 8 of 15
42
n you unammous1y answerea 'Yes to uuest1on No.5, tnen answer l..luestion
No. 6. Otherwise, do not answer Question No. 6.
QUESTION NO. 6
You are instructed that, in order for you to find exemplary damages, your
answer to the question regarding the amount of such damages [this Question] must
be unanimous.
What"="' of monev. if anv. should be assessed aaainst Jose Juan IJJ\ Avili:l,and
t
awarded to Douglas M. Bulthuis as exemplary damages for the conduct found in Question
I
I
No.5?
I
I
'
•
Uc>lllc>:,jCO>.
" •• ,. f,
..
"Exemplary damages" means any damages awarded as a penalty or by way of
"J •
r.
.. • J
-'·
-,· • •lo rio
•
;•~
Factors to consider in awarding exemplary damages, if any, are-
a. The nature of the wrong.
h Tho nftho <'nnrlll<'l · . I. ~
c. The degree of culpability of Jose Juan (J.J.) Avila.
d. The situation and sensibilities of the parties concerned.
p ThPI 'whir.h sur.h r.nnrlur.t ·"'· -'·; ~ n11hlir. sPnsP nf iustir.P ~nrl
propriety.
f. The net worth of Jose Juan (J.J.) Avila.
II in dollars and cents for if anv.
Answer: 1 ooo
CHARGE OF THE COURT- Pa~e 9 of 15
43
QUt:::s IIUN NO. 7
I Did Jose Juan (J.J.) Avila commit an assault against Douglas M. Bulthuis?
A person commits an assault if he (1) intentionally, knowingly, or
recklesslY causes bodilY irifurv to another; or (2) intentionally or
knowingly threatens another with imminent bodily injury; or (3)
intentionally or knowingly causes physical contact with another when
he or she knows or should reasonably believe that the other will regard
the contact as offensive or provocative.
,.,
'
A
""· " "
I Answer: ~w
CHARGE OF THE COURT- Page 10 of 15
44
.
If you answered "Yes" to Question No. 7, then answer Question No. 8.
Otherwise, do not answer Question Nos. 8, 9 or 10.
-· .. ··- -
What sum of money, if paid now in cash, would fairly and reasonably compensate
Douglas Michael Bulthuis for physical pain and mental anguish in the past, if any, resulting
from the occurrence found by you in answer to Question 7?
A
'
,_ .... _, _____ .... ---·- ·-·
'
....
-, '
" __ .,
'7"
Answer: -$¢
r"ARr.< "fT"' rn,.OL Oooo n of"
45
It you answered "Yes" to Question No. 7, then answer Question No. 9.
Otherwise, do not answer Question Nos. 9 & 10.
To answer "Yes" to the following question, your answer must be unanimous. You
mav answer"No" to the followina au · 1onlv unon a vote of 10 or more i11rors ~·L
vr111 m11<:t nnt . fhp <~II. OIIP<:Iinn
QUESTION NO. 9
Do vou find from clear and convincina evidence that the assault found bv vou in
Question No.7 was committed by Jose Juan (J.J.) Avila with malice?
"Malice" means- a specific intent by Jose Juan (J .J.) Avila to cause substantial injury
or harm to Douglas M. Bulthuis.
" ".
in the mind of the jury a firm belief or conviction as to the truth of the allegations sought to
be established.
Answer "Yes" or "No"
CHARGE OF THE COURT- Page 12 of 15
46
No.10.
(JLJ~;:, IIQ!'! NO. 10
You are instructed that, in order for you to find exemplary damages, your
answer to the question regarding the amount of such damages [this Question] must
be unanimous.
/". I'
What some of monev. if anv. should be assessed aaainst Jose Juan (JJ) Avilil!l and
awarded to Douglas M. Bulthuis as exemplary damages for the conduct found in Question
No.7?
•
"Exemplary damages" means any damages awarded as a penalty or by way of
~ •+ ,+ fr on ·~+n
'J
n ~"o~nl~n ,;.
• J .., . ;n~l.,.;o~ n
..
..
Factors to consider in awarding exemplary damages, if any, are-
a. The nature of the wrong.
h Tho .L nf lh<> ~nnrlo •~I ·
C. The degree of culpability of Jose Juan (J.J.) Avila.
d. The situation and sensibilities of the parties concerned.
ThP I tn whir.h !'\llr.h r.nnrh 1r.t nffPnrl!'\ :'1 nuhlir. !'\An!'\A nf ill!'\lir.A :'!nrl
" propriety.
f. The net worth of Jose Juan (J.J.) Avila.
II in dollars and cents for .;~~~no~ if anv.
Answer: $¢
CHARGE OF THE COURT- Page 13 of 15
47
.
.
PI ing
1. When you go into the jury room to answer the questions, the first thing you will
need to do is choose a presiding juror.
L. TllePit::SIUIIIY ~
a. have the complete charge read aloud if it will be helpful to your
deliberations;
b. preside over your deliberations, meaning manage the discussions, and
-~~ >h~· .. ~.:'-" , __ ,_,_,,_ .
1
--a:- giVe Wllllt:ll q ""' or com111t:m:s m me oa111n wno Will g1ve mem
to the judge;
b. write down the answers you agree on;
I c. get the signatures for the verdict certificate; and
. .
'
T. noury me oa111rr mal you nave reacnea a vera1c1.
Do you understand the duties of the presiding juror? If you do not, please tell me now.
Instructions for Signing the Verdict Certificate:
1. You may answer the questions on a vote of 10 jurors. The same 10 jurors must agree
on every answer in the charge. This means you may not have one group of 10
jurors agree on one answer and a different group of 10 jurors agree on another
answer.
2. If 10 jurors agree on every answer. those 10 jurors sign the verdict.
If 11 jurors agree on every answer, those 11 jurors sign the verdict.
If all 12 of you agree on every answer, you are unanimous and only the presiding
iuror sians.the .
3. All jurors should deliberate on every question. You may end up with all 12 of you
agreeing on some answers, while only 10 or 11 of you agree on other answers. But
when you sign the verdict, only those 10 who agree on every answer will sign the
verdict.
Do you understand these instructions? If you do not, pi I me now.
'
'
nu11. •~u" ~u•
Judge Presiding
Signed this :zHt!: day of May, 2012 Time: jb:'30~
CHARGE OF THE COURT- Page 14 of 15
48
•
VERDICT CERTIFICATE
Check one·
./
17 Our verdict is unanimous. All12 of us have an reed to each and Th<>
presiding juror has signed the certificate for all 12 of us .
/)
.// ./ . ' ,.-- .- UauoL(.a., ~uo....z:o..s:
Sk?nature of Presidina Juro~ Printed Name of Presidina Juror
"
Our verdict is not unanimous. Eleven of us have agreed to each and every answer
and have signed the certificate below.
I
:urn v~ruiGrts-nururTanimo ~ 1 to eacn ana every answer ana
have signed the certificate below.
<01"'-~IJI.TIIRI= DRII\JTI=n 1\l.llMI=
1. /7 _./ /· r (!__) C{ u cLt::. ' Co,, Ia zas
2.
_,/
3.
4.
5.
{).
i
7.
8.
9.
10.
IT.
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r
CHARGE OF THE COURT- Page 15 of 15
49
.._,- . .
£:1' '- .
' '
-
CAUSE NO. C-620-07-G
DOUGLAS MICHAEL BULTHUIS, § IN THE DISTRICT COURT
_, s
~L
unfor_ " · ;(# s
. §
§
v. § 370TH JUDICIAL DISTRICT
§ I
JU:StJUAN ~J.J.) AVILA, s
§
PlaintifJlCounter-Defendant § HIDALGO COUNTY, TEXAS
BE IT REMEMBERED that on May 17, 2012 came on to be heard the above-entitled and
numbered cause, wherein DOUGLAS MICHAEL BULTHUIS is a Counter-Plaintiff, and JOSE
Ill AN (I I) AVII A is a Counter-Defendant All parties appeared in person and by and through
their respective counsel of record announced ready for triaL All parties having announced ready
I
for trial, and a jury having been previously demanded, a jury consisting of twelve (12) good and .
lawful jurors was duly selected, impaneled, and sworn.
All parties, by and through their respective counsel of record, presented argument and
.rl. . t t•. >1 .rl tl. oto ,,-1 .rl ol. .r1 -r1. · r, ... .rl roL tl.
jury and submitted this cause to the jury on May 29, 2012. The jury returned into open Court its
verdict, which was in favor ofCounter-PlaintiffDOUGLAS MICHAEL BULTHUIS. The jury's
verdict was received and was ordered filed amon!! the oaoers of this cause.
Based upon the Court's consideration of the verdict and the post-verdict briefing,
exhibits, and arguments submitted by the parties, it appears to the Court that judgment should be
renuereu, nmwanstanumg me vermct, m mvor 01 LOUmer-namuu
BULTHUIS, for nominal damages only.
54
~' - '
.
lt is therefore, ORDERED, ADJUDGED, and DECREED, that Counter-Plaintiff
DOUGLAS MICHAEL BULTHUIS recover of and from Counter-Defendant JOSE JUAN (J.J.)
"Avn-A -.:i"om o OP< inth;:" dtPn -;- rq;l()Ml
It is further ORDERED, ADJUDGED, and DECREED that all parties shall bear their
own taxable court costs. See TEX. R. CIV. P. 137.
All other relief not expressly granted herem IS DENIED. This IS a final appealable
judgment and disposes of all parties and all claims.
I
2
55