                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00359-CV


EUNICE WELLS                                                        APPELLANT

                                        V.

TARGET CORPORATION                                                    APPELLEE


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

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                DISSENTING MEMORANDUM OPINION 1

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      I respectfully dissent from the majority opinion’s conclusion that appellant

Eunice Wells raised a fact issue, precluding summary judgment, on the

publication element of her defamation cause of action.

      Here, appellee Target Corporation established there was no genuine issue

of material fact regarding one essential element of Wells’s defamation claim—

      1
       See Tex. R. App. P. 47.4.
publication to a third party—in its motion for summary judgment by producing

Wells’s deposition testimony that her great-grandchildren were not present when

the statement was made and that it was “[Wells] alone” to whom the statement

was made.      See Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1990).                 In her

deposition, Wells testified that after the Target employee accused her of stealing,

the only person who spoke to her, while she was crying, was a lady who “said to

me, I love your boots. . . .     Where did you buy them?”          Nothing about this

interaction supports Wells’s position that a third person heard the alleged

defamatory statement or that the statement was made under circumstances that

someone else would have heard it. The burden then shifted to Wells to come

forward with competent controverting evidence that raised a fact issue on that

element. Id. In response, Wells produced her own affidavit in which she stated,

for the first time, that the Target employee made the disputed statement “where

other people could hear” and that “[o]ther people were around me and did hear

the conversation.”

      A summary judgment may be based on “the uncontroverted affidavit of an

interested witness . . . if the evidence is clear, positive, direct, otherwise credible,

free from contradictions and inconsistencies, and could have been readily

controverted.” Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997).

Summary-judgment affidavits, whether produced by the movant or the

respondent, must set forth facts and cannot be conclusory. Ryland Grp., Inc. v.

Hood, 924 S.W.2d 120, 122 (Tex. 1996). If an affidavit is conclusory, it cannot


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raise a genuine issue of material fact. Id. A conclusory statement is one that

does not provide the underlying facts to support the conclusion.       Souder v.

Cannon, 235 S.W.3d 841, 849 (Tex. App.—Fort Worth 2007, no pet.). Subjective

beliefs are not susceptible to being readily controverted and, thus, are not

competent summary-judgment evidence.        Tex. Div.–Tranter, Inc. v. Carrozza,

876 S.W.2d 312, 314 (Tex. 1994). Further, a prima-facie case of defamation

requires more than the “possibility of publication.” David Elder, Defamation: A

Lawyer’s Guide § 1:20 (West 2014); see also West v. King’s Dep’t Store, Inc.,

365 S.E.2d 621, 625 (N.C. 1988) (affirming directed verdict on defamation claim

arising out of verbal shoplifting accusation because “no evidence was presented

that anyone actually heard the alleged slanderous remarks [accusing plaintiff of

shoplifting] or that they were understood” and because “mere possibility that

someone might have heard the alleged conversation is not enough” to show

publication).

      Wells failed to produce competent summary-judgment evidence that a third

party heard the defamatory statement. Her affidavit did not provide underlying

facts to support her belief that a third party heard the statement. Her subjective

belief that other customers heard the statement is not competent as summary-

judgment evidence because it is a unilateral determination of the facts or her

opinion as to such facts.    See Carrozza, 876 S.W.2d at 314; Brownlee v.

Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). While it is true that Wells may

testify to her subjective state of mind and her belief about the challenged


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statements, see Casso v. Brand, 776 S.W.2d 551, 559 (Tex. 1989), her

averments regarding publication impermissibly attempted to establish the

unnamed third parties’ subjective knowledge or mental processes. See Zepeda

v. Indus. Site Servs., Inc., No. 13-07-00579-CV, 2008 WL 4822205, at *5 (Tex.

App.—Corpus Christi Nov. 6, 2008, no pet.) (mem. op.). The missing evidence is

not the names of the third parties but instead any underlying facts to support her

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

said. Wells did not raise a genuine issue of material fact on the question of

publication; thus, I would hold that the trial court correctly granted Target

judgment as a matter of law.



                                                  /s/ Lee Gabriel
                                                  LEE GABRIEL
                                                  JUSTICE

DELIVERED: April 23, 2015




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