law defamation caselaw | libel | slander | libel per se | employment law | IIED |
DEFAMATION AS A TORT: LIBEL VS. SLANDER
Defamation is generally defined as the invasion of a person's interest in his or her reputation and
good name. Prosser & Keeton on Torts § 111, at 771 (5th ed. 1984 & Supp. 1988). Defamation
claims are divided into two categories depending on how the defamatory statement was
communicated: libel for written communications and slander for oral communications.
Elements of Defamation cause of action in Texas:
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).
TEXAS SUPREME COURT CASES RELEVANT TO DEFAMATION CLAIMS
Chrysler Ins. Co., v. Greenspoint Dodge of Houston, Inc., No. 08-0780 (Tex. Oct. 30, 2009)(per curiam)
(insurance coverage dispute, known-falsity exclusion to defamation liability coverage based on knowledge
of vice-principals; knowledge imputed on insured, thus exclusion applies, warranting take-nothing
judgment)
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
09‑0796
JERRY GUMPERT AND MARTIN COYNE v. ABF FREIGHT SYSTEM, INC., BARRY SIRCY, TOMMY
WALKER, ROBERT GRAVES, GEORGE WARREN, PERRY WAYNE MIDDLEBROOK, RICHARD
CRAWFORD, RICHARD FISER, DAN NOONKESTER, RICHARD MARTINEZ, RICHARD PASSMORE AND
LEONARD ESNER; from Dallas County; 5th district (05‑07‑01717‑CV, 293 SW3d 256, 05‑20‑09, pet
denied Nov. 2009)(defamation claim fails - crude satire, civil conspiracy likewise fails in the absence of
underlying tort) (same-sex sexual harassment, employment retaliation claim)
Although the conduct of the individual defendants in this case was vulgar and puerile, it was not
defamatory. None of the publications could be understood as conveying actual facts about Gumpert or
Coyne. And to the extent the business cards may have been understood as conveying facts, those facts
were true. Because the publications were not defamatory as a matter of law, we conclude the trial court
properly granted summary judgment against Gumpert and Coyne on their claims for libel.
09-0676
JACK D. BROCK v. JULIE FREDERICK TANDY; from Tarrant County;
2nd district (02-08-00400-CV, ___ SW3d ___, 07-02-09, pet. denied Sep. 2009)
(libel per se, actual malice)
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)
.
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