Opinion issued April 13, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00689-CV

JOHN FRANK MCKNIGHT, Appellant

V.

MARSHALL DAVIS BROWN, JR., Appellee

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2003–43149

MEMORANDUM OPINION

          Appellant, John Frank McKnight, sued appellee, Marshall Davis Brown, Jr., for false imprisonment, for abuse of process, and for violation of 42 U.S.C. § 1983, arising from a post-divorce enforcement action filed by Brown, an attorney, against McKnight on behalf of McKnight’s ex-wife. The trial court granted summary judgment in Brown’s favor. In five issues, McKnight contends that Brown was not entitled to summary judgment.

          We affirm.

Background

          McKnight and Jennifer Trogdon-McKnight were divorced in March 2000. In December 2000, Brown, acting as Jennifer’s attorney, filed a motion seeking enforcement of specified provisions of the parties’ divorce decree and requesting Brown’s attorney’s fees for bringing the enforcement action.

          The family court found that McKnight violated certain provisions of the decree and signed a contempt order on May 9, 2001. In addition to reflecting the contempt finding, the order provided, in relevant part, that McKnight be committed to jail for 90 days and that McKnight should be jailed “until [he] has PURGED himself of contempt” by paying Brown $8,341.46 in attorney’s fees and costs. The order further provided that McKnight’s “commitment” was suspended on the condition that he pay $8,341.46 to Brown in three installments, beginning May 31, 2001. The order also awarded Brown a money judgment for the attorney’s fees.

          On August 3, 2001, the family court signed an order finding that McKnight had not complied with the May 9 order because McKnight had failed to pay the first two installments of attorney’s fees to Brown. The order required that McKnight be “committed to the custody” of the sheriff of Harris County for confinement as ordered by the May 9 order. The family court ordered that McKnight “shall be further confined in the county jail . . . until [he] has PURGED himself of contempt of this Court” by paying Brown $8,341.46.

          The Fourteenth Court of Appeals granted McKnight’s petition for habeas corpus, holding that the portions of the May 9 order “confining [McKnight] for contempt, ordering him further confined until he purges himself of contempt, and suspending his commitment on the payment of attorney’s fees are void as a prohibited imprisonment for debt.” The court further held that “the August 3 order revoking the suspension of [McKnight’s] confinement and confining [McKnight] for contempt of the May 9 order is also void.”

          McKnight filed the underlying action against Brown, alleging claims for false imprisonment, for abuse of process, and for violation of 42 U.S.C. § 1983, based on his imprisonment resulting from the non-payment of Brown’s attorney’s fees. Brown filed a combined traditional and no-evidence motion for summary judgment, challenging McKnight’s claims. Among the grounds asserted by Brown were (1) no-evidence challenges to the elements of McKnight’s causes of action, including the challenge that McKnight could present no evidence of damages; (2) a statute of limitations challenge to the section 1983 and abuse of process claims; and (3) a challenge that McKnight has no cause of action against Brown as a matter of law because a party does not have a right of recovery against his opposing counsel for actions taken during litigation. The trial court granted Brown’s motion without specifying a particular ground.

          In five issues, McKnight asserts the following: (1) McKnight’s civil rights and abuse of process claims are not barred by the statute of limitations; (2) McKnight has a cause of action against Brown as a matter of law; (3) McKnight’s claim for false imprisonment is meritorious; (4) McKnight’s claim for abuse of process is meritorious; and (5) McKnight’s claim for a section 1983 violation is meritorious.

False Imprisonment and Section 1983 Claims

          In his third and fifth issues, respectively, McKnight contends that his claims for false imprisonment and violation of section 1983 are meritorious.

          When the trial court does not specify the basis for its summary judgment, as here, the appealing party must show it is error to base it on any ground asserted in the motion. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). If summary judgment may have been rendered, properly or improperly, on a ground not challenged, the judgment must be affirmed. Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex. App.—Dallas 1992, writ denied)).

          One of the no-evidence grounds raised by Brown in its motion for summary judgment was that there was no evidence of damages for each of McKnight’s three causes of action. On appeal, Brown does not challenge this ground with respect to his causes of action for false imprisonment and violation of section 1983. Nonetheless, the summary judgment may have been granted, properly or improperly, on this unchallenged ground. Id. Because he does not negate the no-evidence ground with regard to damages, we hold that McKnight did not meet his appellate burden to show that the trial court erred in granting summary judgment on his false imprisonment and section 1983 claims. See id.; see also Bynum v. Prudential Residential Servs., Ltd. P’shp, 129 S.W.3d 781, 795 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (following Ellis).

          We overrule McKnight’s third and fifth issues.

Abuse of Process

          In his fourth issue, McKnight challenges the trial court’s granting of summary judgment on his abuse of process claim. The essential elements of an action for abuse of process are as follows: (1) the defendant made an illegal, improper, perverted use of the process, a use neither warranted nor authorized by the process; (2) the defendant had an ulterior motive or purpose in exercising such illegal, perverted, or improper use of process; and (3) damage resulted to the plaintiff from the irregularity. Detenbeck v. Koester, 886 S.W.2d 477, 480 (Tex. App.—Houston [1st Dist.] 1994, no writ) (citing J.C. Penney Co. v. Gilford, 422 S.W.2d 25, 31 (Tex. Civ. App.—Houston [1st Dist.] 1967, writ ref’d n.r.e.)). Regarding abuse of process, Brown moved for no-evidence summary judgment on the ground that McKnight could show no evidence of the damages element. The burden then shifted to McKnight to produce more than a scintilla of evidence of damages that resulted from Brown’s alleged illegal, perverted, or improper use of process. See Tex. R. Civ. P. 166a(i). If McKnight did not meet this burden, then Brown was entitled to summary judgment on the abuse of process claim. See id. In reviewing a no-evidence summary judgment, we apply the same legal sufficiency standard of review as applied to a directed verdict and view the evidence in the light most favorable to the nonmovant. King Ranch v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003).

          The only reference in McKnight’s brief addressing abuse-of-process damages is as follows: “As a result of th[e] improper use of process, McKnight suffered an injury by being illegally incarcerated in jail, suffering actual damages of humiliation, shock, outrage, degradation of reputation, and attorney fees from the wrongs.” This was also the only assertion, with respect to damages, made in his response to Brown’s motion for summary judgment.

          In support of this statement, McKnight has cited generally to his affidavit, which was offered in support of his response to the motion for summary judgment. Our own review reveals that, on the fourth page of his affidavit, McKnight averred,

The actions and conduct of Marshall Davis Brown, Jr., set out above, have caused me injury consisting of mental anguish, loss of business reputation, shock, outrage, humiliation, shame, attorney’s fees and fright in the past and in the future. These injuries first occurred on August 3, 2001 by my incarceration in the Harris County Jail and have continued.

This was similar to the damages claim found in McKnight’s live pleading, his first amended petition:

Plaintiff alleges that as a result and/or proximate cause of said actions, set out in Counts One, Two and Three above, Plaintiff has suffered actual damages consisting of humiliation, shame, fright, mental anguish, loss of earning capacity, injury to business reputation, shock, outrage, degradation of reputation and attorney’s fees to rectify the wrongs.

          Conclusory statements in support of a motion for summary judgment are no evidence. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (holding that a statement in affidavit that “his contractual obligation had been modified” was nothing more than legal conclusion and affidavit should have gone further to specify factual matters such as the “time, place, and exact nature of the alleged modification”). A conclusory statement is one that does not provide the underlying facts that support the conclusion. Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Such statements, though made under oath, are not proper as summary judgment proof if there are no facts to support the conclusions. See, e.g., Anderson v. Long, 118 S.W.3d 806, 811 (Tex. App.—Fort Worth 2003, no pet.) (affirming no-evidence summary judgement on mental anguish claim because plaintiff did not “present more than a scintilla of evidence that her alleged mental anguish caused substantial disruption in her daily routine or amounted to more than mere worry, anxiety, vexation, embarrassment, or anger”); Gonzales v. Temple-Inland Mortg. Corp., 28 S.W.3d 622, 626 (Tex. App.—San Antonio 2002, no pet.) (holding that statements in affidavit too conclusory to defeat no-evidence motion for summary judgment on mental anguish damages); Kawecki v. Int’l Bank of Commerce, No. 14–01–01025–CV, 2003WL 21782345, at *6 (Tex. App.—Houston [14th Dist.] July 31, 2003, no pet.) (mem. op.) (holding that plaintiffs’ deposition testimony was “too conclusory to raise a genuine issue of material fact as to whether they sustained mental anguish damages and thus could not defeat no-evidence motion for summary judgment); El Dorado Motor, Inc. v. Koch, 168 S.W.3d 360, 367 (Tex. App.—Dallas 2005, no pet.) (affirming no-evidence summary judgment rendered on damages ground because expert deposition testimony on lost profits failed to show basis of opinions and conclusions); cf. TMC Foods, L.L.C. v. Mason, No. 09–03–00217–CV, 2004 WL 918650, at *5 (Tex. App.—Beaumont 2004, no pet.) (mem. op.) (reversing jury’s award of mental anguish damages because plaintiff’s testimony that she “was devastated” “‘really upset,’” and “humiliated” and that cause of those feelings was defendant’s termination of her employment was conclusory and legally-insufficient evidence).

          McKnight’s bare assertions that he has suffered the listed injuries does not alone constitute evidence to prove those injuries. See Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 861 (Tex. 1999) (“Simply because a plaintiff says he or she suffered mental anguish does not constitute evidence of the nature, duration, and severity of any mental anguish that is sufficient to show a substantial disruption of one’s daily routine.”). McKnight’s affidavit did not provide any facts to support his damages claims, which range from mental anguish to loss of business reputation to attorney’s fees. For example, the affidavit does not discuss (1) his arrest and incarceration, (2) how his experience affected his day to day life, (3) the severity of the claimed mental anguish, (4) the legal representation required to defend McKnight against his wrongful imprisonment, and (5) the extent of his claimed damage to his business reputation. Without such or similar information, McKnight’s affidavit was too conclusory to raise a genuine issue of material fact as to the damages he sustained as a result of Brown’s alleged abuse of process. See Anderson, 118 S.W.3d at 811; Gonzales, 28 S.W.3d at 626. Therefore, we hold that McKnight presented no evidence of the third essential element of abuse of process regarding damages and that the trial court properly granted summary judgment on this cause of action.

          We overrule McKnight’s fourth issue.

Conclusion

          We affirm the judgment of the trial court.

                                         Laura Carter Higley

                                         Justice

Panel consists of Justices Taft, Higley, and Bland.