Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The appellants, Daystar Residential Inc. and Shiloh Treatment Center, appeal the trial court’s granting of summary judgment in favor of the appellee, Mark Collmer. Daystar and Shiloh present three issues: 1. whether the doctrine of absolute privilege in regard to judicial immunity applies to disparaging statements made by Collmer and published in newspapers before his filing of a lawsuit against Daystar over the Latasha Bush death; 2, whether the doctrine of absolute privilege in regard to judicial immunity applies to disparaging statements made by Collmer and published in newspapers as to Shiloh, when Shiloh was not a party to the Latasha Bush litigation; and 3. whether the trial court erred by refusing appellants’ discovery request before ruling upon Collmer’s amended motion for summary judgment. HOLDING:Affirmed. The appellants correctly assert that the concept of absolute privilege because of judicial immunity in Texas has never been extended to statements made in newspapers at some point before a judicial proceeding is actually filed. However, as this court stated in Watson v. Kaminski, 51 S.W.3d 825 (Tex. App. � Houston [1st Dist.] 2001, no pet.), the privilege extends to statements made in contemplation of and preliminary to suit. While the suit had not been filed in this case, it is clear that a suit was being contemplated and that Collmer’s statements were based, in part, on his beliefs of how the new information would affect his suit. That his statements were made before the actual filing of the suit has no bearing on whether they are protected by judicial privilege. The only factors are whether his statements bore some relationship to the proposed litigation and furthered his representation of his client, regardless of the time when they were made. Collmer’s statements bore some relationship to proposed litigation and could further his representation of his client. He was remarking on circumstances which were similar to those of his client and referenced them to the case that he planned to file in the near future. Considering the entire communication in its context, the court holds that these statements fall within the absolute privilege of judicial immunity. Collmer made his comments in the newspapers as the attorney for Bush’s mother. His comments were quoted in articles about a potential investigation into the 1993 death of a 16-year-old patient at a different Behavior Training Research facility. Although the articles name Shiloh as a facility in which an accidental death occurred in 2000, Collmer did not name Shiloh in his comments to the newspapers; he stated only that the new autopsy findings in the 1993 death might bolster the civil lawsuit he planned to file in the near future. If these statements did, somehow, remark upon Shiloh, they are also protected under the doctrine of judicial immunity because they bear some relationship to the proposed Bush litigation. In this case, unlike Helfand v. Coane, 12 S.W.3d 152 (Tex. App. � Houston [1st Dist.] 2000, pet. denied), there is no dispute regarding the publication of the articles or the facts surrounding the statements. It is uncontested that Collmer was retained to represent Bush’s mother. It is clear from the articles that Collmer was discussing a proposed judicial proceeding and that his comments were in furtherance of that representation. Thus, the evidence was sufficient to establish the Helfand components, and there was no need for further discovery. The court holds that the trial court did not abuse its discretion by denying appellant’s motion to compel further discovery. OPINION:Nuchia, J.; Nuchia, Alcala and Hanks, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.