law-defamation

law-defamation

Scott v. King (Tex. App. - Houston [1st Dist.] Mar. 27, 2008)(Hanks)
(defamation, IIED, Election Code violation)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Nuchia, Hanks and Higley
01-06-00565-CV John C. Scott v. William E. King
Appeal from 212th District Court of Galveston County
Trial Court Judge: Hon. Susan Elizabeth Criss

Exxon Mobil Corp. v. Hines No. 14-06-00745-CV (Tex.App. - Houston [14th Dist.] Feb. 26, 2008)
(Hedges)
(employment law, age discrimination, defamation)
AFFIRMED AS MODIFIED: Opinion by Chief Justice Hedges
Before Price, Chief Justice Hedges, Justice Seymore
Exxon Mobil Corporation v. Dwight Hines and Shannon Everett
Appeal from 125th District Court of Harris County (Judge John Coselli)

Looper v. HCCS (Tex.App.- Houston [14th Dist.] Nov. 29, 2007)(Hedges)(public employment, breach of
contract, defamation, intentional infliction of emotional distress, IIED, Whistleblower Act claim, WBA)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Hudson and Frost
14-07-00040-CV Stan H. Looper and Cynthia M. Scott v. Houston Community College System, Bruce
Leslie, Diana Castillo, and Reynaldo Garay
Appeal from 152nd District Court of Harris County (Hon. Ken P. Wise)

Summerville v. Allied Barton Security Services (Tex.App.- Houston [1st. Dist.] Nov. 1, 2007)(Hanks)
(malicious prosecution claim, criminal trespass)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
01-06-00757-CV Nicholas Summerville v. Allied Barton Security Services, LLC, Individually and d/b/a
Allied Security and Tom Smith
Appeal from 270th District Court of Harris County (Hon. Brent Gamble)

Thomas-Smith v. Mackin (Tex.App.- Houston [14th Dist.] Sep. 27, 2007)(Edelman)(defamation)
REVERSED AND REMANDED: Opinion by Justice Edelman
Before Justices Fowler, Edelman and Frost
14-05-00852-CV V.E. Joahanne Thomas-Smith v. James E. Mackin
Appeal from 155th District Court of Waller County (Judge Daniel R. Beck)

El-Khoury v. Kheir (Tex.App.- Houston [1st Dist.] Jun 14, 2007)(Radack)(defamation)(Radack)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC
FOR FURTHER PROCEEDINGS: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Keyes and Higley
01-06-00088-CV        John El-Khoury v. Benjamine Kheir
Appeal from 334th District Court of Harris County (Hon Sharon McCally)
Concurring and Dissenting Opinion by Justice Keyes

Atchison v. Spawnmaxwell Co, LP (Tex.App.- Houston [1st Dist.] May 24, 2007)(Bland)
[breach of contract, defamation, summary judgment affirmed]
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Nuchia, Jennings and Bland
01-06-00488-CV        Burl Atchison v. Spawmaxwell Company, L.P., Steve Keffeler and Fred Maxwell
Appeal from 269th District Court of Harris County (Judge: The Honorable John T. Woold ridge)

Rerich v. Lowe's Home Center, Inc. (Tex.App.- Houston [1st Dist.] May 10, 2007)(Radack)(defamation,
false imprisonment)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Jennings and Bland
01-05-01165-CV Terry Rerich v. Lowe's Home Center, Inc.
Appeal from 149th District Court of Brazoria County (Judge Robert E. May)

El-Khoury v. Kheir (Tex.App.- Houston [1st Dist.] Jun 14, 2007)(Radack)(defamation)

Plaintiff prevails in malicious prosecution suit based on false accusations of theft
Musselwhite v. Howard (Tex.App.- Houston [1st Dist.] May 10, 2007)(Alcala)(malicious prosecution,
defamation)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Justices Taft, Alcala and Hanks
01-05-00839-CV Mike Musselwhite, Mike's Pools and Spas, Pat Stalsby and Amanda Watson v. John
Howard and Terry Watson
Appeal from 269th District Court of Harris County (Judge John Thomas Wooldridge)

Izen v. Sjostrom and Atlas Legal Defense Fund (Tex.App.- Houston [14th Dist.] Apr. 3, 2007)(Former
Justice Frank Price)(BoC, BoFD, libel, attorney's fees arising from investor tax dispute with IRS)

Thomas-Smith v. Mackin (Tex.App.- Houston [14th Dist.] Sep. 27, 2007)(Edelman)(defamation)

O P I N I O N

In this defamation case, V.E. Joahanne Thomas-Smith appeals on numerous grounds a judgment
entered in favor of James E. Mackin. We reverse and remand.

                                         Background

During a telephone conversation, Thomas-Smith, the Provost and Senior Vice President of Academic
and Student Affairs of Prairie View A&M University (APrairie View@), questioned Dr. Gerard Rambally,
the Dean of Arts and Science of Prairie View, about Rambally=s reasons for recommending Mackin, a
Ph.D. in chemical oceanography, to be appointed interim Chairman of the Prairie View Chemistry
Department and about not having assigned Mackin a full teaching load for the upcoming semester.
One of Thomas-Smith=s questions or comments in this conversation was to the effect that Mackin and
Rambally had a Alove@ or Alover@ relationship. After Mackin, a married man, learned of this comment
(the Acomment@), he filed this action for slander against Thomas-Smith. The case was tried to a jury,
and judgment was entered in accordance with the jury=s verdict, awarding Mackin $40,000 in damages
against Thomas-Smith.

                                     Directed Verdict

Thomas-Smith=s first issue contends that the trial court erred by denying her motion for directed verdict
[1] on the ground that the comment was not defamatory as a matter of law because it was a rhetorical
hyperbole rather than a statement of fact.[2]

Slander is a defamatory statement[3] that is orally communicated to a third person without legal
excuse. Randall=s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). Among other
things, a defamatory statement must be sufficiently factual to be susceptible of being proved objectively
true or false, as contrasted from a purely subjective assertion. See Milkovich v. Lorain Journal Co., 497
U.S. 1, 21-22 (1990). It must also be such that a reasonable factfinder could conclude that the
statement implies an actual assertion of the purported fact, as contrasted from loose, figurative, or
hyperbolic language that would negate the impression that the declarant was seriously maintaining that
the fact was literally true. See id.[4]

An allegedly defamatory publication is construed as a whole in light of the surrounding circumstances
based on how a person of ordinary intelligence would perceive it. New Times, Inc. v. Isaacks, 146 S.W.
3d 144, 154 (Tex. 2004). The appropriate inquiry is thus objective, not subjective. Id. at 157. Whether
a statement is capable of a defamatory meaning is generally a question of law for the court. Id. at 155.
But when a publication is of ambiguous or doubtful import, the jury must determine its meaning. Id.

In this case, by describing a relationship between individuals, the comment was sufficiently factual to be
susceptible of being proved true or false. However, it is not clear from the context and surrounding
circumstances whether Thomas-Smith was making the comment: (1) sarcastically, to figuratively
express her disbelief concerning the recommendation; or (2) sincerely, out of concern that the
recommendation had been made for improper motives. Because of this ambiguity, Thomas-Smith=s
first issue fails to demonstrate that the comment was not defamatory as a matter of law, and is
overruled.

Thomas-Smith=s second issue contends the evidence conclusively proves there was no publication
because the parties who heard the comment did not understand it to be defamatory. A person
publishes a slanderous remark if she communicates it to a third person who is capable of
understanding its defamatory meaning and in such a way that the person did understand its defamatory
meaning. Lozano v. Lozano, 983 S.W.2d 787, 793 (Tex. App.CHouston [14th Dist.] 1998), aff=d in part,
rev=d in part on other grounds, 52 S.W.3d 141 (Tex. 2001).

The undisputed evidence in this case shows that two people heard and understood the comment. One
was Rambally, who understood it to assert that Mackin had a sexual or romantic relationship with him
and that he (Rambally) was appointing people to positions based on his relationship with them rather
than their credentials. The second person was Darlene Knebel, Rambally=s secretary, who understood
it to assert that Rambally was recommending Mackin to be Chemistry Department Head because of
Rambally=s A>love relationship=@ with Mackin. Because there was evidence of publication, Thomas-
Smith=s second issue fails to demonstrate that the trial court erred in denying the motion for directed
verdict on this ground, and is overruled.

Jury Charge

Thomas-Smith=s fifth issue contends, in part, that the trial court erred by refusing her requests to
include in the court=s charge to the jury questions on the defenses of official immunity and qualified
privilege.

A trial court must submit the questions, instructions, and definitions that are raised by the pleadings and
evidence. Tex. R. Civ. P. 278. A judgment cannot be permitted to stand when a trial court=s refusal to
submit a question denies a party the submission of a viable affirmative defense that has been so
raised. Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex. 1992).

One of the elements of the defense of official immunity is good faith, which requires an objective
determination of whether a reasonably prudent official, under the same or similar circumstances, could
have believed that his conduct was justified based on the information he possessed when the conduct
occurred. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 162, 164 (Tex. 2004). As evidence of
the element of good faith to support the submission of a jury question on official immunity, Thomas-
Smith relies on the testimony of George C. Wright, President of Prairie View, and Thomas-Smith.

However, the testimony of Wright that Thomas-Smith=s brief cites for this purpose is deposition
testimony that was attached as an exhibit to Thomas-Smith=s motion for summary judgment. Because
Thomas-Smith=s brief cites no portion of the record where any such testimony by Wright was admitted
into evidence at trial, it does not establish that this evidence was before the jury so as to support a
question in the court=s charge. Similarly, the relied upon testimony by Thomas-Smith was the following:

Q:      And in that conversation, August of 2002, whatever statement that was, that was said, do you
believe it was lawful?

A:      Yes. Whatever statement was said in the conversation about the teaching load or whatever, I
believe it was lawful.

*        *        *        *

Q:      When you were asked about whether it was lawful, what did you, what was your definition of being
lawful?

A:      Well, within the role and scope of my job and not against the constitution, or policies or whatever.

Q:      [I]f the statement was made that you say may have been made, and that statement was that you,
Dr. Rambally and Dr. Mackin have a lover relationship, and that is why you wanted to appoint him as
interim dean, interim department, would that be lawful?

A:      Sir, if I said that, it would be lawful.

However, this testimony does not raise a fact issue on the good faith element of official immunity
because: (1) it does not address the good faith standard (whether a reasonably prudent official, under
the same or similar circumstances, could have believed that his conduct was justified based on the
information he possessed when the conduct occurred); (2) it is Thomas-Smith=s subjective view rather
than evidence of an objective standard; and (3) it is conclusory, providing no factual basis or
foundation to support the stated conclusion. Accordingly, we overrule the portion of Thomas-Smith=s
fifth issue that challenges the trial court=s denial of her request to submit a jury question on official
immunity and turn to her challenge the denial of a jury question on the defense of qualified privilege.

Where, as here, there is not alleged to be a public figure plaintiff, a media defendant, or a defamatory
statement involving a matter of public concern, the falsity of the statement is generally presumed,[5]
and the truth of the statement is an affirmative defense that must be proved by the defendant. See
Randall=s food Markets Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). Similarly, in the absence of
a privilege, malice[6] is inferred from the fact that a defamatory statement is false. See Int=l & G.N.R.
Co. v. Edmundson, 222 S.W. 181, 183 (Tex. Comm=n App. 1920, holding approved); Bradstreet Co. v.
Gill, 72 Tex. 115, 9 S.W. 753, 121 (Tex. 1888). Conversely, where a defamatory statement is
privileged, the inference of malice is overcome, and it becomes the plaintiff=s burden to establish
malice by evidence other than the falsity of the statement, if any. Id.

In this case, Thomas-Smith requested a jury question on whether she was entitled to the following
qualified privilege:

AQualified privilege@ exists when a communication is made in good faith and the author, the recipient,
or a third person has an interest that is sufficiently affected by the communication. The effect of the
privilege is to justify the communication which is made with proper motive and without actual malice. A
finding of actual malice must be supported by clear and convincing proof.[[7]]

There is no dispute that such a qualified privilege exists under Texas law. See, e.g., Cain v. Hearst
Corp., 878 S.W.2d 577, 582 (Tex. 1994). Because Thomas-Smith pleaded the affirmative defense of
qualified privilege, the trial court was required to submit this question if the defense was raised by the
evidence. See Tex. R. Civ. P. 278.

In that regard, Thomas-Smith testified that she made the comment during discussions on a subject
about which she had a duty to communicate with Rambally. At the time, Rambally needed to fill the
position of interim head of the Chemistry Department, and needed Thomas-Smith=s approval to do so.
Thomas‑Smith and Rambally also had the mutual task of coordinating Mackin=s teaching load as a
chemistry professor following a reduction in force. Thomas‑Smith made the comment during a
telephone conversation with Rambally concerning these matters. This evidence was sufficient to raise
a fact issue whether the comment was made concerning a matter on which Thomas-Smith and Rambally
had a common interest.

Mackin argues that Thomas-Smith was not entitled to this instruction because the comment was: (1)
published to Knebel, who did not share the common interest; (2) not made in good faith; and (3) made
with malice.

As to the first contention, if a defamatory statement is privileged, the casual or accidental presence of a
third party will not take it out of the privilege. Flowers v. Smith, 80 S.W.2d 392, 393 (Tex. Civ. App.
CAmarillo 1934, no writ). The Restatement thus explains:

One privileged to publish defamatory matter may, without abuse of the privilege use a method of
communication that involves an incidental publication of the defamatory matter to persons to whom he
is not otherwise privileged to publish it, if the method, although not the only way in which the information
can be effectively communicated, is customary and sanctioned by business or other necessity. Thus
the fact that dictation to a stenographer involves as a necessary incident the communication of the
defamatory matter to her does not make the sending of a dictated business letter to the person to
whom the writer is privileged to send it an abuse of the privilege. So too, the fact that it is a business
custom for clerks and secretaries to open business correspondence of their superiors does not make
the sending of a business letter to the office of the privileged recipient an abuse of the privilege. On
the other hand, when the method of communication is unnecessary and unsanctioned by the a custom
based on ordinary necessities of business, the publication of the defamatory matter to persons not
privileged to receive it that is incidental to those methods is not privileged. Thus the use of a postcard
in place of a letter is an excessive publication. So too, the use of a telegram to communicate
information that could be effectively communicated in a sealed letter is an excessive publication,
although it would not be so if the information, to be valuable, must be speedily received.

Restatement (Second) of Torts ' 604 cmt. b (1977). In this case, when the comment was made, Knebel
was in Rambally=s office to do filing, a task Knebel occasionally performed while, as here, Rambally was
on the speaker-phone. Under these circumstances, the publication of the comment to Knebel did not
itself conclusively negate the existence of a qualified privilege so as to preclude a jury question on that
defense.

Mackin=s contention that a jury question on qualified privilege should not have been submitted because
there is no evidence raising a fact issue on good faith is based on the meaning of that phrase as an
element of the defense of official immunity, i.e., whether a reasonably prudent Provost could have
believed that her conduct was justified. However, we can find no authority suggesting that the definition
of good faith for official immunity also applies to the defense of qualified privilege. Therefore, the
failure to submit a question on the defense of qualified privilege cannot be affirmed on the lack of
evidence, if any, of good faith as it would apply to official immunity.

Texas cases refer to the concept of Agood faith@ in the context of qualified privileges in an inconsistent
manner. Some describe good faith as being presumed where a conditional privilege exists (as if it is
simply the non-existence of malice),[8] whereas others refer to it as an element of the conditional
privilege,[9] and, thus, something that must be proved before the privilege arises. In addition, we have
found no Texas cases which define Agood faith@ in this context. Because no formal legal definition
appears to exist, Agood faith@ would have had its commonly understood meaning pursuant to the
court=s general charge to the jury.[10] Because the circumstances surrounding the making of the
comment are at least sufficient to raise a fact issue on whether it was made in good faith, as that term is
commonly understood, the failure to submit a question on qualified immunity cannot be affirmed on a
lack of evidence of good faith.

Lastly, Mackin argues that Thomas-Smith was acting with malice because she had no evidence that
Mackin and Rambally had a Alove@ or Alover@ relationship that would influence Rambally=s decision
making. Mackin further points to evidence that Thomas-Smith was aware that Mackin was married with
children.

In this context, malice means making the defamatory statement with knowledge of its falsity or in
reckless disregard as to its truth. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991); New
Times, 146 S.W.3d at 162. However, because there was evidence that the comment was subject to a
qualified privilege, Mackin had the burden to prove malice, i.e., that Thomas-Smith actually entertained
serious doubts as to the truth of the comment. See Masson, 501 U.S. at 510; New Times, 146 S.W.3d
at 162. Moreover, the qualified privilege can exist even when the statement is untrue or its truth is
disputed.[11] Therefore, a lack of evidence of the truth of the comment would also not preclude a jury
question on the qualified privilege defense.

Because the defense of qualified privilege was properly raised by the pleadings and evidence, the trial
court=s refusal to submit Thomas-Smith=s requested jury question on that defense was reversible
error. See Perez, 842 S.W.2d at 631. Therefore, we sustain Thomas-Smith=s fifth issue to that extent,
reverse the judgment of the trial court, and remand the case to the trial court for further proceedings;
and we need not address Thomas-Smith=s remaining challenges to the judgment.[12]

/s/        Richard H. Edelman

Senior Justice

Judgment rendered and Opinion filed September 27, 2007.

Panel consists of Justices Fowler, Frost, and Edelman.*

--------------------------------------------------------------------------------

[1]           A directed verdict is proper if no evidence of probative force raises a fact question on an
issue that is essential to the plaintiff=s right of recovery. Prudential Ins. Co. of Am. v. Fin. Review
Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).

[2]           Although Thomas-Smith=s motion for directed verdict, made in open court, asserted that the
comment was not defamatory, it gave no reason for that assertion. However, because we conclude that
the reason presented on appeal is without merit, need not rule on whether the complaint was preserved.

[3]           A defamatory statement is one that is injurious to reputation, whether true or false. See
Bentley v. Bunton, 94 S.W.3d 561, 587 (Tex. 2002).

[4]           See generally Eric Scott Fulcher, Note, Rhetorical Hyperbole and the Reasonable Person
Standard: Drawing the Line Between Figurative Expression and Factual Defamation, 38 Ga. L. Rev..
717, 720 (2004).

[5]           See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1988).

[6]           In this context, a statement is made with malice when it is made with either knowledge of its
falsity or reckless disregard whether it is true. Randall=s, 891 S.W.2d at 646.

[7]           Definitions of Aactual malice@ and Aclear and convincing proof@ were also submitted with
this question but are not material to our disposition.

[8]           See, e.g., Edmundson, 222 S.W. at 183 (AIf the occasion is privileged, a proper and sufficient
motive is shown; and thereby the inference of malice is repelled, and in lieu thereof the presumption
obtains that the communication was made in good faith.@); Simmons v. Dickson, 110 Tex. 230, 213 S.
W. 612, 612 (1919) (reciting both standards).

[9]           See, e.g., Cain, 878 S.W.2d at 582 (AQualified privileges against defamation exist at common
law when a communication is made in good faith . . . .@); Diamond Shamrock Ref. & Mktg. Co., 844 S.
W.2d 198, 210 (Tex. 1992) (same); Perry Bros. Variety Store, Inc. v. Layton, 119 Tex. 130, 25 S.W.
310, 313 (Tex. 1930) (same); Mo. Pac.Ry. Co. v. Richmond, 73 Tex. 568, 11 S.W. 555, 575 (1889)
(AWe understand the law to be that a communication made in good faith, in reference to a matter in
which the person communicating has an interest, . . . is privileged . . . .@); Bradstreet, 9 S.W. at 119-
20 (Awhatever was said orally by defendants about plaintiffs and their business was said in good faith,
and in confidence to their subscribers, who were by reason of their business relations with the plaintiffs
interested in knowing their financial and business standing, and in answer to requests made by their
subscribers in relation thereto. This being so, the statements thus made by defendants are privileged
communications.@).

[10]          This instruction stated, AWhen words are used in this charge in a sense that varies from the
meaning commonly understood, you are given a proper legal definition, which you are bound to accept
in place of any other meaning.@

[11]          See, e.g., Dun & Bradstreet, Inc. v. O=Neil, 456 S.W.2d 896, 898-99 (Tex. 1970); Bradstreet,
9 S.W. at 757; Richmond, 11 S.W. at 557-58.

[12]          See Tex. R. App. P. 47.1 (requiring an appeals court opinion to be as brief as practicable in
addressing the issues raised that are necessary to final disposition of appeal).

*           Senior Justice Richard H. Edelman sitting by assignment.