                                       In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-17-00418-CV
                               __________________

                   TONI SHARRETTS COLLINS, Appellant

                                          V.

                   WILLIAM ZOLNIER, Appellee
__________________________________________________________________

                On Appeal from the 410th District Court
                     Montgomery County, Texas
                   Trial Cause No. 16-02-01225-CV
__________________________________________________________________

                           MEMORANDUM OPINION

      In a single issue, Toni Sharretts Collins appeals the trial court’s award of

summary judgment in favor of William Zolnier. Collins sued Zolnier for defamation

regarding communication Zolnier had with his court appointed Chapter 7 bankruptcy

trustee about Collins, an attorney who represents a creditor in the bankruptcy

proceeding. Collins argues that the trial court erred when it determined that Zolnier’s

communication to the bankruptcy trustee was privileged communication made


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during a judicial proceeding and granted Zolnier’s motion for summary judgment.

We affirm the trial court’s judgment.

                                    I. Background

        For several years, Zolnier leased a building from Collins’s client (Landlord)

to house his mattress and furniture store in Montgomery County. In 2014, Landlord1

sued Zolnier for delinquent rental payments, and after a jury trial, was awarded a

monetary judgment. After the judgment, Zolnier filed for Chapter 7 bankruptcy, and

a bankruptcy trustee was appointed by the court to evaluate his debt and to determine

whether to recommend to the Federal Bankruptcy Court a discharge of Zolnier’s

debt, subject to the various creditor’s objections. Landlord was named as a creditor

in the bankruptcy proceeding. Collins represented Landlord in the bankruptcy

proceeding, and Landlord was the only creditor who objected to the discharge of

debt. Zolnier sent a letter to the bankruptcy trustee describing his history with

Landlord and Collins, including his belief regarding the Landlord’s motivation to

sue him for the delinquent rental payments. In the letter to the bankruptcy trustee,

Zolnier references Landlord, the Landlord’s ex-wife, and Collins and makes

statements regarding alleged criminal history and drug use.




   1
       Collins is married to the Landlord.
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      After the letter was published in the course of the bankruptcy proceedings,

Collins sued Zolnier in Montgomery County for defamation, arguing that Zolnier’s

defamatory statements “were made intending to injure [Collins’s] good reputations

(sic), record and professional career and expose [Collins] to impeach [Collins’s]

honesty, integrity, virtue and reputation.” Zolnier moved for summary judgment on

Collins’s claims arguing the communication to the bankruptcy trustee was made in

the course of a judicial proceeding and was “absolutely privileged.” The trial court

granted Zolnier’s motion for summary judgment and Collins timely filed this appeal.

                             II. Standard of Review

      We review the granting of a summary judgment under a de novo standard.

SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 641 (Tex. 2015) (citation omitted).

The moving party must prove no genuine issue of material fact exists, and it is

entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort

Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Nixon v.

Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). We review the evidence

“in the light most favorable to the party against whom the summary judgment was

rendered, crediting evidence favorable to that party if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could not.” Mann Frankfort,

289 S.W.3d at 848 (citing City of Keller v. Wilson, 168 SW.3d 802, 827 (Tex. 2005);

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Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)). If a movant

produces evidence entitling it to summary judgment, the burden shifts to the

nonmovant to present evidence raising a genuine issue of material fact. Walker v.

Harris, 924 S.W.2d 375, 377 (Tex. 1996) (citation omitted).

                                  III. Analysis

      “The common law and statutes provide certain defenses and privileges to

defamation claims.” Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013) “Further, the

common law has recognized a judicial proceedings privilege since at least 1772 for

parties, witnesses, lawyers, judges, and jurors.” Id. (citations omitted).

Communications related to a judicial proceeding are privileged and any claims for

defamation based on those communications are prohibited. Patterson v. Marcantel,

No. 09-16-00173-CV, 2017 WL 4844514, *17 (Tex. App.—Beaumont Oct. 26,

2017, no pet.) (mem. op.) (citing Deuell v. Tex. Right to Life Comm., Inc., 508

S.W.3d 679, 689 (Tex. App.—Houston [1st Dist.] 2016, pet. denied)). “This

privilege…attaches to all aspects of the proceeding, including statements made in

open court, pre-trial hearings, depositions, affidavits, and any pleadings or other

papers in the case.” Id. (citing James v. Brown, 637 S.W.2d 914, 916–917 (Tex.

1982); Reagan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942)).

“Whether an alleged defamatory statement is related to a proposed or existing

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judicial or quasi-judicial proceeding, and is therefore absolutely privileged, is a

question of law.” 5-State Helicopters, Inc. v. Cox, 146 S.W.3d 254, 257 (Tex.

App.—Fort Worth 2004, pet. denied) (citations omitted). We resolve all doubts in

favor of the communication’s relation to the proceeding. See id. (citations omitted).

A. Judicial Proceeding

      Collins does not contest that the bankruptcy proceeding is a judicial

proceeding. While not directly addressed by Texas courts, we note that other

jurisdictions have recognized that a judicial proceeding, as required to claim the

absolute privilege against a suit for defamation, includes bankruptcy proceedings.

See Lee v. Nash, 65 Or. App. 538, 541, 671 P.2d 703, 705 (1983) (citations omitted)

(stating there is an absolute privilege to “publish defamatory matter concerning

another in communications during the course of and as part of a judicial proceeding,

including a bankruptcy proceeding.”); Friedman v. Alexander, 79 A.D.2d 627, 628,

433 N.Y.S.2d 627, 628 (A.D.2d 1980) (citation omitted) (“Undoubtedly, a

bankruptcy proceeding is in the nature of a judicial proceeding.”); Ganassi v.

Buchanan Ingersoll, P.C., 373 Pa. Super. 9, 22, 540 A.2d 272 (1988) (citations

omitted) (Affidavits filed in connection with a bankruptcy proceeding were “made

in the course of a judicial proceeding, and, therefore, cannot give rise to an action

for defamation.”); Borden v. Clement, 261 B.R. 275, 284 (N.D. Ala. 2001) (citations

                                         5
omitted) (“Absolute privilege enjoys vitality in the context of bankruptcy

proceedings.”).

B. Relevant to the judicial proceedings

      In her sole issue before the Court, Collins asserts that this absolute privilege

granted in a judicial proceeding cannot be extended to Zolnier’s statements because

“Collins had no interest …[and] had no relation to Zolnier’s bankruptcy.” Collins

maintains that because she is not an interested party and that she only represents a

creditor, the statements made by Zolnier are not privileged because “[t]here is simply

no nexus between Zolnier’s defamatory statements and Zolnier’s Chapter 7

bankruptcy asset [c]ase.” Collins states that because the statement bears no

relationship to the proceedings, the privilege does not apply. We are not persuaded

by Collins’s argument.

      Texas recognizes an absolute privilege for statements made in a judicial

proceeding. Montemayor v. Ortiz, 208 S.W.3d 627, 654 (Tex. App.—Corpus Christi

2006, pet. denied). “Communications and publications made in the due course of a

judicial proceeding will not serve as the basis for a defamation action.” Krishnan v.

Law Offices of Preston Henrichson, P.C., 83 S.W.3d 295, 302 (Tex. App.—Corpus

Christi 2002, pet denied) (citations omitted). “The immunity is absolute even if the

statement is false and uttered or published with express malice.” Dallas Indep. Sch.

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Dist. v. Finlan, 27 S.W.3d 220, 238 (Tex. App.—Dallas 2000, pet. denied) (citations

omitted).

      Any communication, oral or written, uttered or published in the due course of
      a judicial proceeding is absolutely privileged and cannot constitute the basis
      of a civil action in damages for slander or libel. The falsity of the statement or
      the malice of the utterer is immaterial, and the rule of nonliability prevails
      even though the statement was not relevant, pertinent and material to the
      issues involved in the case.

Reagan, 166 S.W.2d at 912 (citations omitted).

      It is not necessary that the defamatory matter be relevant or material to any
      issue before the court. It is enough that it have some reference to the subject
      of the inquiry. Thus, while a party may not introduce into his pleadings
      defamatory matter that is entirely disconnected with the litigation, he is not
      answerable for defamatory matter volunteered or included by way of
      surplusage in his pleadings if it has any bearing upon the subject matter of the
      litigation. The fact that the defamatory publication is an unwarranted
      inference from the alleged or existing facts is not enough to deprive the party
      of his privilege, if the inference itself has some bearing upon the litigation.

Restatement (Second) of Torts, § 587 cmt. c (Am. Law Inst. 1977); see also Finlan,

27 S.W.3d at 239 (citation omitted) (extending the privilege to any statement bearing

some relation to a judicial proceeding); Attaya v. Shoukfeh, 962 S.W.2d 237, 238

(Tex. App.—Amarillo 1998, pet. denied) (citations omitted) (“This absolute

immunity doctrine (which has been routinely extended to judicial proceedings)

means that any statement made in the trial of any case by anyone cannot constitute

the basis for a defamation or any other civil action.”). This doctrine furthers public

policy by promoting a “complete and unbridled development of evidence in the
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settlement of disputes without fear of reprisals.” Saxer v. Nash Phillips-Copus Co.

Real Estate, 678 S.W.2d 736, 740 (Tex. App.—Tyler 1984, writ ref’d n.r.e.).

Therefore, any tort litigation based on the content of the communication is

prohibited. State Fair of Tex. v. Riggs & Ray P.C., No. 05-15-00973-CV, 2016 WL

4131824, at *5 (Tex. App.—Dallas, Aug. 2, 2016, no pet.) (mem. op.) (citations

omitted).

      The record reflects that Landlord was the sole objector to the discharge of the

Zolnier’s debt. Zolnier’s letter to the bankruptcy trustee was in response to the

Landlord’s objection to the discharge of the debt. His letter to the bankruptcy trustee

detailed his understanding of why Collins, as the spouse of Landlord, and Landlord

would object to the discharge of the debt and has some relation to the discharge

proceeding and the trustee’s recommendation in that discharge proceeding.

“Although the privilege may not apply where statements are published to persons

outside of the judicial action, statements made to persons with an interest in the

litigation are privileged.” Ghafourifar v. Cmty. Trust Bank, Inc., No. 3:14-CV-

01501, 2014 U.S. Dist. LEXIS 135855, *18 (S.D.W. Va. Sept. 26, 2014). Texas

courts have held that bankruptcy trustees are “arm[s] of the [c]ourt.” Clements v.

Barnes, 834 S.W.2d 45, 46 (Tex. 1992) (citations omitted). The trustee was tasked

with the decision regarding the discharge of Zolnier’s debt. Any communication by

                                          8
Zolnier regarding the debt or his understanding of why a creditor may oppose the

discharge is related to and relevant to the judicial proceedings of the bankruptcy

court and made to an interested party, the trustee. See Landry’s, Inc. v. Animal Legal

Def. Fund, 566 S.W.3d 41, 57–58 (Tex. App.—Houston [14th Dist.] 2018, pet.

filed). Collins’s argument that the statements are “disparaging [and] false,” bears no

weight on our determination that the statements are relevant to the bankruptcy

proceeding. We extend the privilege to statements “regardless of the negligence or

malice with which they are made.” Id. at 57; (citation omitted); see also Finlan, 27

S.W.3d at 238. Therefore, Zolnier’s statements, made within a judicial proceeding,

were relevant to the judicial proceeding and are absolutely privileged.

                                  IV. Conclusion

       Having overruled Collins’s sole issue on appeal, we affirm the judgment of

the trial court.

       AFFIRMED.

                                                    _________________________
                                                         CHARLES KREGER
                                                              Justice

Submitted on November 19, 2018
Opinion Delivered May 30, 2019

Before Kreger, Horton and Johnson, JJ.


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