                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-08-00157-CV

JAMES EDWIN PEELER,
                                                         Appellant
v.

BAYLOR UNIVERSITY,
                                                         Appellee



                         From the 170th District Court
                           McLennan County, Texas
                          Trial Court No. 2004-0571-4


                         MEMORANDUM OPINION


      James Edwin Peeler sued Baylor University for defamation. In two issues, Peeler

challenges the denial of his motion to disqualify Baylor’s counsel and the granting of

Baylor’s traditional and no-evidence motions for summary judgment. We affirm.

                            FACTUAL BACKGROUND

      Peeler is a cameraman for KWTX, a Waco television station.         On Sunday,

February 28, 1993, the day of the Branch Davidian raid by ATF agents on the Branch

Davidian Compound just outside of Waco, Peeler, who had been notified of the
impending raid, was attempting to locate the compound. He became lost. At some

point, he encountered a postman. He and the postman, who was later identified as

David Koresh’s brother-in-law, had a brief conversation.1 Peeler was subsequently

accused of being the source of information which led to the Branch Davidian’s

knowledge of the impending raid.

        Ten years later, the Baylor Lariat, a student newspaper, published two articles

about the raid. Both articles referred to Peeler’s conversation with the postman and

suggested that the Davidians knew about the raid because of this conversation. One

article mentioned Peeler by name. These articles prompted Peeler’s lawsuit against

Baylor.

                                     DISQUALIFICATION

        In issue one, Peeler contends that the trial court erred by denying his motion to

disqualify Baylor’s counsel due to a joint-defense agreement that existed in prior

litigation. See TEX. R. EVID. 503(b)(1)(C). We review a trial court’s ruling on a motion to

disqualify for abuse of discretion. See Metro. Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d

319, 321 (Tex. 1994).

        Baylor’s counsel in this litigation is an attorney with Fulbright Winniford.2

Attorneys with this firm represented one of the defendants in federal litigation related

to the Branch Davidian raid. According to the record, the defendants in the federal

litigation entered a joint-defense agreement. Peeler’s employer, KWTX, was one of the


1       David Koresh was the leader of the Branch Davidians.

2       In 1993, the firm was known as Fulbright Winniford Bice & Marable.


Peeler v. Baylor Univ.                                                                 Page 2
defendants in the litigation. Because attorneys with Fulbright Winniford participated in

the joint-defense agreement, Peeler contends that there is now a conflict of interest and

the trial court should have disqualified attorneys at Fulbright Winniford from

representing Baylor in the current proceeding.

        A movant seeking to disqualify counsel based on an assertion that due to a joint

defense agreement privileged information was shared in prior litigation and now

creates a conflict of interest in present litigation must show that: (1) confidential

information has been shared; and (2) the matter in which that information was shared is

substantially related to the matter in which disqualification is sought. In re Skiles, 102

S.W.3d 323, 327 (Tex. App.—Beaumont 2003, orig. proceeding). “Global assertions of

privilege do not constitute evidence.” Rio Hondo Implement Co. v. Euresti, 903 S.W.2d

128, 132 (Tex. App.—Corpus Christi 1995, orig. proceeding). “Some type of proof is

necessary.” Int’l Trust Corp. v. Pirtle, No. 07-96-00277-CV, 1997 Tex. App. LEXIS 198, at

*33 (Tex. App.—Amarillo Jan. 17, 1997, orig. proceeding) (not designated for

publication).

        Baylor presents numerous arguments supporting its position that Peeler has not

established a conflict of interest arising out of the joint defense agreement.        The

argument we find most compelling is that Peeler cannot meet the first element of

establishing a conflict. At the hearing on Peeler’s motion, Noley Bice, formerly of

Fulbright Winniford, testified that he never received any confidential information

protected by the joint defense privilege from KWTX’s attorney, or otherwise, regarding

Peeler’s role in the raid. Rick Bradfield of KWTX provided an affidavit expressing his


Peeler v. Baylor Univ.                                                              Page 3
awareness of the joint defense agreement, but did not identify any specific confidential

information that was shared.

        Accordingly, Peeler has not established that confidential information was shared.

See Euresti, 903 S.W.2d at 132 (Affidavit failed to “reveal with any specificity the

confidences [Kelly] claims were revealed to her co-defendants.”). Because Peeler has

not met his burden of establishing that Baylor’s counsel had access to any confidential

information to which the joint defense privilege applies, the trial court did not abuse its

discretion by denying his motion to disqualify Baylor’s counsel. We deny issue one.

                               SUMMARY JUDGMENT

        In issue two, Peeler challenges the trial court’s decision to grant Baylor’s

traditional and no-evidence motions for summary judgment.

        When there are multiple grounds for summary judgment and the order does not

specify the ground on which the summary judgment was rendered, an appellant must

negate all grounds on appeal. Collins v. City of Corpus Christi, 188 S.W.3d 415, 423 (Tex.

App.—Corpus Christi 2006, no pet.) (citing State Farm Fire & Cas. Co. v. S. S., 858 S.W.2d

374, 381 (Tex. 1993)).    If the appellant fails to negate each ground on which the

judgment may have been rendered, we must uphold the summary judgment. Id.

        In its no-evidence motion, Baylor argued that there was no evidence of damages,

falsity, malice, or pecuniary harm, and in its traditional motion challenged Peeler’s

ability to establish defamation, and asserted the substantial truth defense, wire service

defense, and collateral estoppel. Peeler does not challenge that Baylor proved its wire

service and collateral estoppel defenses. The trial court’s order does not indicate on


Peeler v. Baylor Univ.                                                               Page 4
which grounds summary judgment was granted. Because Peeler failed to challenge

each ground on which the trial court may have rendered judgment, we overrule issue

two.

        The trial court’s judgment is affirmed.




                                                                 STEPHEN ELLIS
                                                                 Judge
Before Chief Justice Gray,
       Justice Reyna, and
       Judge Ellis3
Affirmed
Opinion delivered and filed September 16, 2009
[CV06]




3
         The Honorable Stephen Ellis, Judge of the 35th District Court, sitting by assignment of the Chief
Justice of the Supreme Court of Texas pursuant to section 74.003(a) of the Government Code. See TEX.
GOV’T CODE ANN. § 74.003(a) (Vernon 2005).


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