law defamation caselaw | libel | slander | employment law | IIED |
To prove a cause of action for defamation, a plaintiff must prove that (1) the defendant published a statement of
fact, (2) the statement was defamatory, (3) the statement was false, (4) the defendant acted negligently in
publishing the false and defamatory statement, and (5) the plaintiff suffered damages as a result. See Brown v.
Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 382 (Tex. App.-Houston [1 Dist.] 2005, no pet.) (citing WFAA-
TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)); see also Tex. Civ. Prac. & Rem. Code Ann. § 73.001
(Vernon 2005).
RECENT TEXAS DEFAMATION CASES FROM TEXAS COURTS OF APPEALS | LIBEL CASE LAW
Draker v. Schreiber, No. 04-07-00692-CV (Tex.App.- San Antonio, Aug. 13, 2008, no. pet. h.) ( As the
gravamen of Draker’s complaint was one of defamation, the trial court did not err in dismissing teacher's claim
for intentional infliction of emotional distress)(summary judgment for defendant students in Internet libel case
affirmed)
TEXAS DEFAMATION CASES FROM TEXAS COURTS OF APPEALS IN WHICH THE TEXAS SUPREME
COURT HAS DENIED PETITIONS FOR REVIEW
DEFAMATION CASE LAW
08-0610
MARK ZIMMER v. PALESTINE HERALD-PRESS CO., NEWSPAPER HOLDINGS, INC., AND SCOTT TYLER; from
Cherokee County; 12th district (12-07-00139-CV, 257 SW3d 504, 06-25-08)(defamation, verifiable statement of
fact vs. opinion)
An essential element of libel "is that the alleged defamatory statement be a statement of fact rather than
opinion." [citation omitted]. Here, the meaning of the sign is somewhat ambiguous, but at most it accused
appellants of "lawsuit abuse." To say that one has engaged in lawsuit abuse is to accuse him of legally
manipulating the civil justice system to gain an unfair advantage in a personal or commercial dispute. It is an
individual judgment that rests solely in the eye of the beholder. Admittedly, the accusation is derogatory and
disparaging, but this is no different than saying that one is ugly, scurrilous, or disgusting. (6) The term "lawsuit
abuse" does not, in its common usage, convey a verifiable fact, but is, by its nature, somewhat indefinite and
ambiguous. Because it is a loose and figurative term employed as metaphor or hyperbole, it is an expression of
opinion which is absolutely protected by the First Amendment of the United States Constitution and Section 8,
article I, of the Texas Constitution. [citations omitted].
08-0461
THOMAS LOUIS v. MOBIL CHEMICAL COMPANY, A DIVISION OF EXXON MOBIL OIL CORPORATION, JAMES
BOWSER AND RANDALL ROY; from Jefferson County; 9th district (09-06-00568-CV, 254 SW3d 602, 05-01-08,
pet denied Aug. 1 2008) (Justice O'Neill not sitting)
(employment dispute, IIED, defamation, workers comp retaliation)
After his employment with Mobil Chemical Company ceased, Thomas Louis sued his former employer and two
supervisors, James Bowser and Randall Roy, for intentional infliction of emotional distress, defamation, and
retaliation. The trial court granted summary judgment for all defendants. The four issues raised by Thomas on
appeal contend material fact issues exist as to each of the claims and that the trial court erred in granting
summary judgment. We find no error and affirm the judgment.
Next, Louis contends the trial court erred in granting summary judgment on Louis's defamation claim. At the
outset, we note that the person who allegedly made the defamatory statement was Francis G. Carr, Sr. Carr
works as an investigator on the audit staff for ExxonMobil Corporation. Carr conducted the investigation
regarding whether Louis falsified preventive maintenance records. Obviously, neither Roy nor Bowser could be
liable for a defamatory statement they did not publish. See generally Minyard Food Stores, Inc. v. Goodman, 80
S.W.3d 573, 577-78 (Tex. 2002). Mobil, however, could be held liable for a defamatory statement published by
its employee if the statement was false, made within the scope of the employee's general authority in
furtherance of Mobil's business, and for the accomplishment of the object for which the employee was hired. Id.
Mobil moved for summary judgment on the ground that the statement was true and on the ground that Louis
had no evidence that the statement was false. In his deposition, Louis testified that he told Carr and the others
investigating the matter "that I'd fill out paperwork knowing that the performance had not been done." Louis's
summary judgment affidavit states that in the presence of others Carr said that "'you falsified company reports;"
"it was your idea;" and "it was your decision to do so.'" According to Louis's affidavit, "Carr made this statement
and it is false." Throughout this litigation, Louis has admitted that he did in fact falsify the reports; the
defamatory nature of Carr's statement could arise only from the statement that it was "your idea" and "your
decision to do so." Louis has never contended that he did not realize that he was falsifying the reports or that
what he was doing was wrong and against company policy. Louis argues that the statement is defamatory
because it "suggest[s] a more disreputable character, i.e. that Appellant hatched the plot for self-advancement
motives as opposed to merely attempting to find a way to find some relief from the oppressive and degrading
work environment that he found himself in."
Literally true statements are not slanderous merely because others might infer dishonesty. Randall's Food
Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). Nonetheless, "a plaintiff can bring a claim for
defamation when discrete facts, literally or substantially true, are published in such a way that they create a
substantially false and defamatory impression by omitting material facts or juxtaposing facts in a misleading
way." Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000). In deciding whether there is no
evidence to support a defamation claim, the entire statement must be viewed in its context. See City of Keller v.
Wilson, 168 S.W.3d 802, 811 (Tex. 2005).
Although he admits he falsified his reports, Louis argues the statement makes him appear to be more culpable
than he really is: in other words, he was the mastermind rather than a reluctant participant. Louis overstates
Carr's comment regarding Louis's responsibility for the violation of company policy. The gist of the statement --
that Louis knowingly falsified his reports -- is by Louis's own admission the truth. The fact left out of the
statement -- that Roy pressured Louis to complete paperwork knowing that Louis did not have the time to
perform the actual work -- relates to Roy's culpability, not to Louis's, and does not diminish Louis's personal
responsibility for failing to accurately record the work he performed. (2) Furthermore, the act that would tend to
expose Louis to public scorn is the falsification of the documentation, an act Louis admits is true. The allegedly
false fact in Carr's statement does not render an otherwise true statement defamatory. We hold the trial court
did not err in entering summary judgment for all defendants on Louis's defamation claims and, accordingly,
overrule issue two.
08-0267
DWIGHT HINES AND SHANNON EVERETT v. EXXON MOBIL CORPORATION; from Harris County; 14th district
(14-06-00745-CV, ___ S.W.3d ___, 02-26-08, pet. denied May 2008)
(employment law, defamation, age discrimination, defamation) (Justice O'Neill not sitting)
This is a double appeal in a lawsuit filed by appellees/cross-appellants, Dwight Hines and Shannon Everett
(collectively "appellees"), alleging defamation and age discrimination against their former employer,
appellant/cross-appellee, Exxon Mobil Corporation (hereinafter "Exxon"). In regards to the discrimination claims,
the trial court granted summary judgment favoring Exxon. After trial on the defamation claims, a jury found that
Exxon defamed appellees and awarded damages totaling $467,500. In its appeal, Exxon contends that (1) the
allegedly defamatory statements were privileged as a matter of law; (2) the Texas employment at-will doctrine
bars appellees' claims; (3) the employment at-will doctrine, at a minimum, prevents appellees from recovering
economic damages under the facts of this case; (4) the evidence is legally insufficient to support the award of
noneconomic damages; and in the alternative, (5) the trial court erred in its submission of the excessive
publication issue to the jury. In their cross-appeal, Hines and Everett contend that the trial court erred in
granting summary judgment against their age discrimination claims. We modify the trial court's judgment to
render judgment that appellees take nothing on their defamation claims. We affirm the judgment as modified.
08-0181
R. SCOTT PHELAN v. H. SCOTT NORVILLE, PAMELA EIBECK, AND ELIZABETH HALL; from Lubbock County;
7th district (07-07-00035-CV, ___ S.W.3d ___, 01-23-08, pet. denied May 2008)(official immunity, defamation,
libel, slander)
Appellants, H. Scott Norville, Pamela Eibeck, and Elizabeth Hall, appeal from an order denying summary
judgment in their favor. By a single issue, Appellants contend the trial court erred by failing to grant their motion
for summary judgment as to all claims (1) because the evidence conclusively established that they were entitled
to the protections of official immunity. Believing Appellants have established that they are entitled to official
immunity as to some claims, but not all claims, we affirm in part and reverse and render in part. * * *
We affirm the trial court's interlocutory order denying summary judgment in favor of Norville on Phelan's claim
for libel and/or slander based upon the November 28, 2005 e-mail, reverse the trial court's order denying
summary judgment in favor of Appellants on all Phelan's remaining claims, and hereby render judgment
granting Appellants' motion for summary judgment that Phelan take nothing as to those remaining claims.
08-0039
CYNTHIA M. SCOTT v. HOUSTON COMMUNITY COLLEGE SYSTEM, BRUCE LESLIE, DIANA CASTILLO, AND
REYNALDO GARAY; from Harris County; 14th district (14-07-00040-CV, ___ SW3d ___, 11-29-07, pet. denied
April 2008) (public employment disputes, breach of employment contract, defamation, IIED, WBA)