                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00359-CV


EUNICE WELLS                                                     APPELLANT

                                      V.

TARGET CORPORATION                                                APPELLEE


                                   ----------

         FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY
                   TRIAL COURT NO. CIV-13-0258

                                   ----------

                       MEMORANDUM OPINION 1

                                   ----------

      This is an appeal from a summary judgment in a defamation case.

Appellant Eunice Wells alleged that in January 2013, she and her two great-

granddaughters went to a Target store in Weatherford, Texas to return two cell

phone covers. She did not have the receipt for either cover. At the customer

service counter, Wells was helped by Target employee Kevin Glover. When

     1
      See Tex. R. App. P. 47.4.
Glover did not find a record of a sales transaction for one of the covers, he

accused Wells of stealing it.

      Wells subsequently sued Appellee Target Corporation for defamation.

Target answered and filed a combined no-evidence and traditional motion for

summary judgment. As its sole no-evidence ground, it asserted that Wells could

produce no evidence that a defamatory statement had been published to a third

person. As its sole traditional ground, it asserted that its evidence conclusively

established that the defamatory statement was not published to a third person.

      Target supported its traditional motion with Wells’s deposition testimony.

At her deposition, Target played a video of the encounter (presumably from

Target’s security camera) and asked Wells about what was shown in the video.

Wells admitted that her great-granddaughters did not hear the theft accusation

because they were standing too far away.             Nevertheless, she further

acknowledged that although there were other people in line and nearby when

Glover made the statement, she did not have the names or contact information

for any witnesses.

      Wells filed a response to which she attached her own affidavit. She stated

in the affidavit that there were people around who heard Glover’s accusation, but

she had been too upset and embarrassed to think of getting their names:

      This was said to me in the Target Store. Other people were around
      me and did hear the conversation. . . .

            The fact that I did not take the names of people who heard this
      statement accusing me of a crime is simply I was so upset and


                                        2
      embarrassed that taking names was not something I was thinking
      about at the time.

             ....

             . . . The employee accused me of being a thief. Their
      defense is no one heard that. I heard it and so did other people in
      the store.

             The fact that I cannot identify people who heard the statement
      is not something that I have to prove.

Target filed no objections to Wells’s affidavit.

      After a hearing, the trial court signed an order granting a no-evidence and

traditional summary judgment for Target and dismissing Wells’s claim. Wells

then filed this appeal.

      We review a summary judgment de novo. 2         In reviewing a traditional

summary judgment, we consider the evidence presented in the light most

favorable to the nonmovant, crediting evidence favorable to the nonmovant if

reasonable jurors could, and disregarding evidence contrary to the nonmovant

unless reasonable jurors could not. 3 We indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor. 4 A defendant who conclusively

negates at least one essential element of a cause of action is entitled to




      2
       Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
      3
      Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009).
      4
       20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).


                                           3
summary judgment on that claim. 5         Once the defendant produces sufficient

evidence to establish the right to summary judgment, the burden shifts to the

plaintiff to come forward with competent controverting evidence that raises a fact

issue. 6

       When reviewing a no-evidence summary judgment, as with a traditional

motion, we examine the entire record in the light most favorable to the

nonmovant, indulging every reasonable inference and resolving any doubts

against the motion, 7 crediting evidence favorable to the nonmovant if reasonable

jurors could and disregarding evidence contrary to the nonmovant unless

reasonable jurors could not. 8     If the nonmovant brings forward more than a

scintilla of probative evidence that raises a genuine issue of material fact, then a

no-evidence summary judgment is not proper. 9

       In her sole issue on appeal, Wells argues that the trial court erred by

granting summary judgment for Target. She contends that any dispute as to




       5
           Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).
       6
           Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999).
       7
           Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).
       8
      Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).
       9
     Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 (2004).


                                          4
whether the theft accusation was made or heard by other customers is a

question for the jury.

      In response, Target contends that the trial court’s judgment was correct

because Wells has no evidence that any third party overheard the statement, and

her affidavit supporting her summary judgment response is conclusory. Target

also asserts that Wells did not perfect her appeal because she did not serve

Target or Target’s counsel with her notice of appeal, as required by rule 25.1(e)

of the Texas Rules of Appellate Procedure. Wells counters that she did serve

Target with notice, that, alternatively, Target waived any argument about lack of

notice by not timely filing a motion to dismiss, and that it has not shown harm.

      We first address Target’s assertion that Wells’s appeal was not perfected.

An appeal is perfected when the notice of appeal is filed with the trial court. 10

The record indicates that the notice was timely filed in the trial court, and

therefore the appeal was perfected.

      The notice of appeal indicates that it was faxed to Target’s attorney of

record, 11 and it contains a certificate of service. 12 Target does not explicitly state


      10
        Tex. R. App. P. 25.1(a).
      11
       See Tex. R. App. P. 25.1(e), 26.1 (indicating when a notice of appeal
must be filed).
      12
         See Tex. R. App. P. 9.5(c), (d) (stating that service may be faxed, that
service by fax is complete when received, and that a certificate of service is proof
of service); Pena v. McDowell, 201 S.W.3d 665, 666 (Tex. 2006) (“A certificate of
service is simply one method of demonstrating that actual service occurred.”).


                                           5
that it did not receive the fax, 13 but we read its argument as making such an

assertion.

      The rules of appellate procedure require that a notice of appeal be served

on all parties to the trial court’s final judgment, and failure to do so “does not

deprive the appellate court of jurisdiction but is ground only for the appellate

court to act appropriately, including dismissing the appeal.” 14 Accordingly, even

if Wells failed to serve the notice of appeal as required by the rules, this court has

jurisdiction. Under the circumstances, even assuming that Target did not receive

the faxed notice of appeal, we decline to dismiss the appeal.          We therefore

consider Wells’s issue.

      The only element of Wells’s defamation claim challenged by Target was

whether the statement was published to a third party. 15 As to the no-evidence

summary judgment, Wells stated several times in her affidavit that other people

were around her when Glover made his accusation and that they heard him. She

explained that the statement was made in a public place—at the Customer

Service counter of the store. Viewing her evidence in the light most favorable to

      13
        See Tex. R. App. P. 9.5(c).
      14
        Tex. R. App. P. 25.1(b), (e) (stating that a notice of appeal must be
served on all parties to the final judgment and that failure to comply with the rule
is ground for dismissal).
      15
       See Waddill v. Phi Gamma Delta Fraternity Lambda Tau Chapter Tex.
Tech Univ., 114 S.W.3d 136, 139 (Tex. App.—Austin 2003, no pet.) (stating that
defamation occurs when a false, defamatory statement is published to a third
person).


                                          6
her, this is more than a scintilla of evidence of the circumstances that Glover

made an audible statement in a public place where it was overheard by others.

      Target argues that Wells’s statement about Glover’s accusation being

heard by the person in line behind her and the other people around was

conclusory and that she was required to produce evidence that she had

confirmed with the third parties that they heard the statements. 16 We disagree.

      We have found no cases that place a burden upon a person who has been

defamed in a public place to gather witness names or canvass the audience to

determine whether people gathered in the public place overheard a comment

that was made there in a public manner. Target cites to no case that Wells must

provide the names of the people who overheard Glover’s accusation in order to

prove defamation.

      Wells’s testimony regarding publication—based on her own experience

and observations during the encounter with Glover—is circumstantial rather than

direct evidence of publication, but it is not conclusory. Regardless of whether a

trier of fact may ultimately find her testimony persuasive, we must look at the

evidence in the light most favorable to Wells.17 The facts, as alleged by Wells,

demonstrate that the comment was audible, that it was capable of being heard

      16
        See Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 198 (Tex.
App.—Fort Worth 2006, no pet.) (explaining that a conclusory statement is “not
credible or susceptible to being readily controverted” and makes a conclusion
without providing the underlying facts from which the conclusion is drawn).
      17
       Timpte Indus., 286 S.W.3d at 310; Sudan, 199 S.W.3d at 292.


                                        7
(Wells heard it), that it was made in a public place (not in a private office, not in

whispered tones), and that there were other human beings nearby.

       The dissent states that Wells provided no “underlying facts to support her

subjective conclusion that a third party heard what the Target employee allegedly

said.” 18     If Wells is to be believed, she was accused of theft by a Target

employee in a public area of the store during normal business hours. Taken in

light most favorable to Wells, this raises a fact issue on publication to the

unnamed persons who were standing within earshot.           A party should not be

deprived of their day in court by a hyper-technical reading of the facts in a light

least favorable to the non-movant. We hold that Wells raised a fact issue about

whether Glover’s statement was published to a third party, and Target was

therefore not entitled to no-evidence summary judgment.

       Target points out that to obtain a summary judgment based on the affidavit

of an interested witness, the evidence must be “clear, positive and direct,

otherwise credible and free from contradictions and inconsistencies, and could

have been readily controverted.” 19        If Wells’s affidavit were being used to

establish her right to summary judgment, her affidavit would have to meet that

standard. But that standard applies only to affidavits used to show an entitlement




       18
            Dissenting opinion at 4.
       19
            See Tex. R. Civ. P. 166a(c).


                                           8
to summary judgment.      A fact issue may be raised, and summary judgment

therefore defeated, by an affidavit that does not meet that standard. 20

      To be entitled to a traditional summary judgment, Target was required to

establish as a matter of law that no third party overheard Glover’s statement. 21

Its only evidence was Wells’s deposition testimony.           Wells stated in her

deposition that her great-grandchildren were too far away to hear Glover’s

accusation, but she did not testify that nobody else heard. To the contrary, she

stated that other people were nearby. The deposition may have conclusively

negated the fact that Wells’s great-grandchildren heard the statement, but to

prevail on her claim, Wells is not required to prove that they heard it in order to

establish her claim. She is only required to prove that someone heard it. Wells’s

deposition did not establish as a matter of law that nobody around Wells heard

the statement. 22 We hold that Target did not establish as a matter of law that no

third party heard Glover’s accusation, and Target was therefore not entitled to

traditional summary judgment.



      20
        See Travelers Ins. Co. v. Bosler, 906 S.W.2d 635, 645 n.7 (Tex. App.—
Fort Worth 1995) (stating that evidence from an interested witness that does not
meet that standard “does nothing more than raise a fact issue”), pet. granted,
judgm’t vacated w.r.m., 938 S.W.2d 716 (Tex.1997).
      21
        See Frost Nat’l Bank, 315 S.W.3d at 508.
      22
       See Tex. R. Civ. P. 166a(c) (stating that a summary judgment shall be
granted if the evidence shows that there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law).


                                         9
      Because Wells produced some evidence sufficient to raise a fact issue on

the only ground asserted by Target in its no-evidence motion, we sustain Wells’s

issue as to the no-evidence summary judgment.          Because Target did not

conclusively establish its only traditional summary judgment ground, we sustain

her issue as to Target’s traditional motion.

      Having sustained Wells’s sole issue on appeal, we reverse the trial court’s

summary judgment and remand this case to the trial court for further

proceedings.




                                                 /s/ Lee Ann Dauphinot
                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.

GABRIEL, J., filed a dissenting opinion.

DELIVERED: April 23, 2015




                                         10
