In=20 The
This appeal=20
presents two issues regarding an employer's treatment of an =
employee=20
suspected of misconduct. Appellant, Terry Rerich ("Rerich"), =
challenges a=20
summary judgment rendered in favor of defendant, Lowe's Home =
Centers, Inc.=20
("Lowe's"). Rerich argues that the trial court erred because =
summary=20
judgment evidence raises fact issues regarding whether Lowe's =
detained=20
Rerich without her consent and whether Lowe's published untrue =
statements=20
about Rerich to persons not subject to a qualified privilege. We=20
affirm. A.=20
False Imprisonment Rerich was=20
an assistant department manager of customer service for Lowe's =
when she=20
was terminated in December 2002. She had been an employee of =
Lowe's for=20
approximately seven years. Rerich was responsible for the cashiers =
and=20
also operated a cash register. In late November 2002, Rerich's =
cash=20
register was short $100. Troy Brimage ("Brimage"), a loss =
prevention=20
manager for Lowe's, and Beverly Redus ("Redus"), the store's =
personnel=20
training coordinator, approached Rerich about the $100 shortage.=20
Brimage and=20
Redus met Rerich in an office area at the back of the store. =
Rerich knew=20
Brimage outside of work and was accustomed to giving him a hug =
when she=20
saw him in the store. The office had two doors and Rerich was near =
one of=20
the doors. Brimage accused Rerich of taking the $100 from the cash =
register and told her that the store had a video tape of her =
taking a $100=20
bill. Rerich began explaining what happened regarding the $100 =
shortage,=20
and Brimage instructed her to write a statement explaining what =
happened.=20
She requested to see the receipts from the day in question to help =
her=20
remember the events. With the receipts, she began writing her =
statement.=20
After=20
writing the first page of the statement, Rerich asked to see the =
video=20
before completing the statement. The group left the office and =
went to=20
view the video in the training room before returning to the =
office, where=20
Rerich completed her statement. Rerich claims that when she gave =
her=20
statement to Brimage, he "got out of his chair, screamed at me =
that I had=20
'slapped him in his face' and was going to go to jail, and left =
the room."=20
Rerich then opened the door and asked Brimage to not take her to =
jail.=20
Brimage told her that he had already called the police but would =
see if he=20
could stop the call. He then radioed to have the call to the =
police=20
stopped and told Rerich she would have to cooperate and "write =
what I tell=20
you." Rerich=20
wrote the final part of the statement with Brimage looking over =
her=20
shoulder. Rerich claims I =
wrote=20
that last part of the statement in fear that if I did not confess =
to=20
taking the $100 I would be immediately arrested. Brimage told me =
on=20
several occasions that if I did not cooperate and admit to taking =
the $100=20
I would be arrested. At one point when Brimage had left the room, =
I took=20
off my Lowe's apron and stood up to leave. At that time Brimage =
returned.=20
He slammed the door and told me that if I left the interrogation =
he was=20
calling the cops and I was going to jail. He told me to sit down =
and=20
cooperate. During this confrontation I was fearful and very =
anxious. I=20
could feel my heart racing and had difficulty breathing. I was =
emotional=20
and cried a lot. I signed the statement out of fear of being =
arrested. I=20
was not allowed to leave the meeting because I was told that if I =
did I=20
would be arrested. After=20
Rerich completed the statement based upon what Brimage suggested, =
she=20
signed a promissory note to repay the $100 and met briefly with =
the store=20
manager for an exit interview. The entire confrontation lasted =
from=20
approximately 3:00 pm until 5:30 pm, at which time Rerich clocked =
out and=20
went home. B.=20
Defamation In the=20
aftermath of Rerich's termination, three store employees made =
statements,=20
which Rerich asserts are defamatory. Rob Davis, the store manager, =
announced in a manager's meeting regarding Rerich that "She's no =
longer=20
with us because of dishonesty." Ron Craddock, the install sales=20
coordinator, told fellow employee April Gonzales that he heard =
Rerich say=20
she "must have split personalities because if she took the money, =
she=20
doesn't know what she did with it." Finally Mike Arb, the =
department=20
manager for millworks, told Gonzales that he had viewed the =
security film=20
of Rerich "being caught putting so-called money in her pocket." In =
addition to the statements made by these Lowe's employees, Rerich=20
discussed the situation with four Lowe's employees, stating =
essentially=20
"that they took me back there and they fired me, they said I took=20
100." A.=20
Standard of Review We review a=20
traditional summary judgment de novo. Joe v. Two Thirty Nine =
Joint=20
Venture, 145 S.W.3d 150, 156 (Tex. 2004). Summary judgment is =
proper=20
only when a movant establishes there is no genuine issue of =
material fact=20
and that the movant is entitled to judgment as a matter of law. =
Tex. R.=20
Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, =
891=20
S.W.2d 640, 644 (Tex. 1995); Marchal v. Webb, 859 S.W.2d =
408, 412=20
(Tex. App.--Houston [1st Dist.] 1993, writ denied). A defendant is =
entitled to summary judgment if the evidence disproves as a matter =
of law=20
at least one element of each of the plaintiff's causes of action.=20
Johnson, 891 S.W.2d at 644; Marchal, 859 S.W.2d =
at 412.=20
Thus, Lowe's is entitled to summary judgment if it disproved as a =
matter=20
of law any element of each of Rerich's causes of action. Once the =
movant=20
has established a right to a summary judgment, the burden shifts =
to the=20
nonmovant. Id. The nonmovant must respond to the motion =
for=20
summary judgment and present to the trial court any issues that =
would=20
preclude summary judgment. City of Houston v. Clear Creek =
Basin=20
Auth., 589 S.W.2d 671, 678 (Tex. 1979); Marchal, 859 =
S.W.2d=20
at 412. In=20
reviewing the summary judgment, we must indulge every reasonable =
inference=20
in favor of the nonmovant and resolve any doubts in its favor.=20
Johnson, 891 S.W.2d at 644; Marchal, 859 S.W.2d =
at 412.=20
We will assume that all evidence favorable to the nonmovant is =
true.=20
Johnson, 891 S.W.2d at 644; Thompson v. Vinson &=20
Elkins, 859 S.W.2d 617, 619 (Tex. App.--Houston [1st Dist.] =
1993,=20
writ denied). The=20
essential elements of false imprisonment are (1) willful =
detention; (2)=20
without consent; and (3) without authority of law. =
Johnson, 891=20
S.W.2d at 644. A detention may be accomplished by violence, by =
threats, or=20
by any other means that restrain a person from moving from one =
place to=20
another. Id. at 644-45. Where it is alleged that a =
detention is=20
effected by a threat, the plaintiff must demonstrate that the =
threat was=20
such as would inspire in the threatened person a just fear of =
injury to=20
her person, reputation, or property. Id. at 645; =
Black v.=20
Kroger Co., 527 S.W.2d 794, 796 (Tex. Civ. App.--Houston [1st =
Dist.]=20
1975, writ dism'd). In=20
Johnson, the plaintiff alleged she was confined to a back =
office=20
for several hours at the Randall's food market where she worked =
and=20
questioned to the point of crying. Johnson, 891 S.W.2d at =
643-44.=20
She was not restrained by physical force, but rather alleged that =
the=20
district manager sternly insisted she "stay put," which caused her =
to fear=20
that he would physically prevent her from leaving had she =
attempted to=20
leave. Id. at 645. This allegation was negated by =
evidence that=20
the plaintiff actually left the area twice and no one tried to =
stop her.=20
Id. In Johnson, the Texas Supreme Court held =
that, as a=20
matter of law, Randall's did not willfully detain Johnson. =
Id. at=20
646. The summary=20
judgment evidence in this case similarly defeats the element of =
willful=20
detention. Because there is no mention of violence, there must =
have been a=20
threat to Rerich to the extent that would inspire a just fear of =
injury to=20
her person, reputation, or property to satisfy the element of =
willful=20
detention. Id. at 645. Rerich was in the room with two =
other=20
individuals: Brimage and Redus. Rerich knew Brimage on a personal =
level=20
and was accustomed to giving him a hug when he was in the store. =
Redus=20
appeared to say very little during the meeting and functioned more =
as an=20
observer. There were two exits to the office and Rerich was near =
one of=20
them. There is no evidence that the doors were locked or that =
Rerich was=20
ever physically prevented from leaving the office. Rerich told =
Brimage=20
that she would not sign anything until she had an opportunity to =
view the=20
video. At one point Brimage excused himself from the room, and =
only Rerich=20
and the silent Redus were in the room. In her deposition, Rerich =
admitted=20
that Brimage told her that she was free to leave the interview at =
any time=20
she wished. She never asked to leave and was never told that she =
could not=20
leave. Rerich=20
claims that she did not leave out of fear of being arrested. =
However,=20
threats of future action, such as to call the police and have the=20
plaintiff arrested, are not ordinarily sufficient in themselves to =
effect=20
an unlawful imprisonment, and instead require other events =
occurring at=20
the same time, such as extended interrogation and intimidation.=20
Morales v. Lee, 668 S.W.2d 867, 869 (Tex. App.--San =
Antonio 1984,=20
no writ); see also Safeway Stores, Inc. v. Amburn, 388 =
S.W.2d=20
443, 447 (Tex. Civ. App.--Fort Worth 1965, no writ) ("Threats of =
arrest=20
and imprisonment improperly made to induce a confession may =
invalidate the=20
confession[,] but have no bearing on the issue of false =
imprisonment where=20
the person is not detained by force or threats of force."). In=20
Morales, the employee claimed that the employer "got all =
mad and=20
he had a chart in his hand and he slammed the chart down on the =
desk . . .=20
he was screaming and hollering and he was cussing at me and he was =
threatening me. He told me 'don't leave.' He said, 'If you leave, =
I'll=20
call the police and the police will be here in a minute . . . I =
was scared=20
of him, I thought he was going to hit me." Id. at 868. =
The=20
Morales court found insufficient evidence supporting =
false=20
imprisonment. Id. at 869. Rerich does=20
not claim she was threatened by anything other than the prospect =
of being=20
arrested, which alone is not sufficient to support false =
imprisonment. The=20
burden then shifted to Rerich to present fact issues that would =
preclude=20
summary judgment. She has presented no issues to preclude summary=20
judgment. There is no evidence that she was threatened or =
intimidated by=20
Brimage or Redus, and the length of her meeting was not excessive. =
She=20
spent two and one-half to three hours to discuss what happened, =
review=20
register receipts, review the security video, write two =
statements, sign a=20
promissory note, and complete an exit interview, all of which she =
was paid=20
for. She never asked to leave and was told that she could leave at =
any=20
time. We conclude=20
that there is no genuine issue of material fact regarding the =
first=20
element of false imprisonment. Thus, Lowe's has established its =
right to=20
summary judgment as on this claim, and we need not address the =
summary=20
judgment evidence with respect to the remaining elements. =
C.=20
Defamation To=20
constitute actionable slander, a defamatory statement must be =
orally=20
communicated without legal excuse. Reeves v. W. Co. of N. =
Am.,=20
867 S.W.2d 385, 393 (Tex. App.--San Antonio 1993, writ denied), =
overruled=20
on other grounds by, Cain v. Hearst Corp., 878 S.W.2d 577 =
(Tex.=20
1994). The elements are (1) an oral statement; (2) which is false; =
(3)=20
which is published to a third person; and (4) which refers to an=20
ascertainable person. Id. Rerich=20
argues that Lowe's did not prove the truth of the statements or =
that they=20
made the statements subject to a qualified privilege. There is no =
need,=20
however, to engage in an analysis of the elements of defamation =
because=20
Lowe's presented uncontroverted summary judgment evidence from =
Rerich's=20
deposition that she also published the defamatory statements to =
employees=20
at Lowe's. In addition to the statements made by Lowe's employees, =
Rerich=20
discussed the situation with four other Lowe's employees, stating=20
essentially "that they took me back there and they fired me, they =
said I=20
took $100." These statements bar her defamation claim. =
See=20
Hooper v. Pitney Bowes, Inc., 895 S.W.2d 773, 778 (Tex.=20
App.--Texarkana 1995, no writ) (holding that plaintiff either =
authorized=20
or otherwise produced defamatory statements, and such consent is =
absolute=20
bar to defamation action). We affirm=20
the judgment of the trial court.
Panel=20
consists of Chief Justice Radack and Justices Jennings and=20
Bland.
B. False=20
Imprisonment