Opinion
No. 05-05-00170-CV
Opinion Filed August 15, 2006.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. CC-03-06661-A.
Affirm.
Before Justices WHITTINGTON, RICHTER, and FRANCIS.
MEMORANDUM OPINION
This is a summary judgment case. The trial court granted summary judgment in favor of appellees Sam's East, Inc., d/b/a Sam's Club No. 6372, and Wayne Jones ("Sam's" and "Jones"). Appellant Charles Mabry appeals the judgment of the court. Having reviewed the record, we affirm the judgment of the trial court.
BACKGROUND
On the afternoon of March 31, 2003, Mabry, who was then a Southwestern Bell Telephone Customer Service Technician, parked his SWBT service truck in Sam's parking lot, placed orange cones around it, and walked toward the entrance of Sam's. He was wearing his SWBT hard hat, SWBT shirt, and SWBT identification badge. Before he reached the entrance of the store, Mabry observed a grocery cart with a case of V-8 Juice in the bottom rack. This cart was located in one of the cart corrals on the parking lot. Mabry picked up the case, walked back to the SWBT service truck, and placed the case of juice in the front seat. He then entered the store, where he met his wife for lunch.
A Sam's employee witnessed Mabry retrieve the case of juice from the cart. This employee reported the incident to his supervisor. When Mabry and his wife approached the store's exit, they were confronted by business manager Timothy Laffitte, security guard Stephen Baker (an off-duty police officer), and general manager Wayne Jones. When Laffitte asked Mabry if he had taken the case of V-8 Juice, Mabry responded that he had "found" it in an "abandoned" cart.
Mabry returned the juice and provided the phone number of his supervisor at work. When he returned to the SWBT garage, Mabry reported the encounter to his supervisor, L.C. Covington. Covington asked for a written statement regarding the incident. In Mabry's statement, he wrote that he went to Sam's on his lunch break, found the case of V-8 juice in an abandoned cart, placed it in his truck, and returned the case when confronted by the manager.
In his deposition, Jones testified that, at the time of the incident, he believed that Mabry was visiting the store on behalf of SWBT. Based upon that belief and in light of the on-going working relationship between Sam's and SWBT, Jones contacted Covington about Mabry's actions. Jones did not discover until later that Mabry was not in the store in his capacity as an SWBT employee.
Jones provided Covington with his own written statement regarding the incident as well as statements from Laffitte and Baker. Jones stated, in part, that "we were going to have our off duty police officer arrest [Mabry] for theft but in talking with my district manager, he didn't want to." Lafitte's statement said, in part, that Mabry acted as if there was nothing wrong with taking the case of juice and placing it in his SWBT truck. Baker wrote that he had responded to what was described to him as a "possible theft." He further wrote that "it was like it was a usual thing to take something that didn't belong to him and keep it."
On April 3, 2003, Mabry returned to Sam's driving his SWBT service truck and wearing his SWBT shirt, hard-hat, and ID badge. He testified that the purpose of his second visit was to complain of the way he was treated in the previous encounter and to "clear up any misunderstandings about me being a thief." Jones and Mabry met in Jones's office at Sam's. After Mabry complained to Jones about his treatment during his last visit, Jones invited Tom Wilson, the store's receiving manager, to witness the discussion. Wilson described Mabry as "semi-belligerent" when he questioned Jones about the earlier incident. According to Wilson, Mabry seemed to think he had done nothing wrong and "still did not understand why [Jones] called his Supervisor." When Mabry left, he said that he was "going to Bentonville."
Jones reported this second meeting to Covington, describing Mabry as arrogant and belligerent during the encounter. Once again, Covington asked Jones to provide a written account of the meeting. Jones's statement, in part, stated that "[a]ll he did was take something that did not belong to him and we asked for it back to get it to the person who paid for it."
After the April 3rd visit, SWBT suspended Mabry and began an investigation into his two visits to Sam's. Johnny Lynn Berry, a SWBT manager involved in the SWBT investigation into Mabry's conduct, testified that the investigation into the incident was prompted by Mabry's own statement to Covington. Darren Glass, the ultimate decision-maker at SWBT with respect to discipline, testified that the decision to suspend Mabry was based primarily on Mabry's second visit to Sam's and not on allegations of theft.
On July 8, 2003, SWBT dismissed Mabry for violation of SWBT's code of business. Berry testified that SWBT's decision to terminate Mabry's employment had nothing to do with Sam's reporting that Mabry could have been arrested for theft. Berry testified that Mabry was fired because he did not represent SWBT favorably in two encounters in which he was confrontational with a SWBT customer. Glass testified that Mabry was ultimately terminated because he refused to sign a settlement and release agreement by which SWBT would reinstate his employment and Mabry would release SWBT from liability.
Mabry filed suit against Sam's and Jones on June 6, 2003, for slander, slander per se, conspiracy, and intentional infliction of emotional distress. SWBT was later added as a defendant, but Mabry ultimately non-suited SWBT. Mabry's live pleading asserted causes of action against Sam's and Jones for slander, slander per se, libel, libel per se, and tortious interference with an existing contract.
Sam's and Jones filed a traditional and no-evidence motion for summary judgment. They claimed they were entitled to summary judgment because: (1) they never made defamatory statements; (2) even if they made such statements, either directly or by implication, the statements were true; (3) they were protected by qualified immunity; (4) the alleged defamatory statements were first published by Mabry himself; and (5) there is no evidence of tortious interference with a contract. Mabry subsequently filed his reply, in which he relied primarily on the written statements provided by Jones, Laffitte, and Baker as evidence of defamation. He framed the question of the truth of the statements made around the sole issue of whether Mabry did, in fact, commit theft when he took possession of the case of V-8.
The trial court granted summary judgment in favor of Sam's and Jones without explanation. This appeal ensued. In a single issue containing seven subissues, Mabry asserts that the trial court erred in granting the motion for summary judgment in favor of Sam's and Jones for the following reasons: (1) there exists a fact issue as to whether the statements at issue were defamatory; (2) there exists a fact issue as to the truthfulness of the statements at issue; (3) there exist fact issues as to whether Mabry published or consented to the statements; (4) Sam's and Jones failed to prove the affirmative defense of qualified immunity; (5) there exists a fact issue as to whether the alleged defamatory statements were made with malice; (6) there exists a fact issue as to whether the alleged defamatory statements were the proximate cause of Mabry being terminated; and (7) there exists a fact issue as to whether Sam's and Jones committed tortious interference with a contractual relationship.
THE TRADITIONAL PART OF THE MOTION: DEFAMATION
In the traditional portion of their motion for summary judgment, Sam's and Jones asserted, among other things, the defense of truth with respect to the causes of action of slander, slander per se, libel, and libel per se. After reviewing the record, we conclude that the trial court could have properly granted summary judgment with respect to these four causes of action based on that defense.
Slander, slander per se, libel, and libel per se are all forms of defamation. A statement is defamatory if the words tend to injure a person's reputation, exposing the person to public hatred, contempt, ridicule, or financial injury. Austin v. Inet Technologies, Inc., 118 S.W.3d 491, 496 (Tex.App.-Dallas 2003, no pet.). Libel is a written defamatory statement, while slander is a defamatory statement published orally. Wagner v. Texas AM University, 939 F.Supp. 1297, 1328 (S.D. Tex. 1996). Classifying a defamatory statement as libel per se or slander per se relieves the plaintiff of the necessity of proving injury as a result of the statement. Columbia Valley Reg. Med. Ctr. v. Bannert, 112 S.W.3d 193, 199 (Tex.App.-Corpus Christi 2003, no pet.) (libel); Bolling v. Baker, 671 S.W.2d 559, 570 (Tex.App.-San Antonio 1984, writ dism'd w.o.j.) (slander).
Whether words are capable of the defamatory meaning that the plaintiff attributes to them is a question of law for the trial court. Diaz v. Rankin and KURV, Inc., 777 S.W.2d 496, 498 (Tex.App.-Corpus Christi 1989, no writ). Allegedly defamatory statements should be construed as a whole and based on how a person of ordinary intelligence would perceive them. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000). Truth is a complete defense to defamatory statements. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).
Therefore, in order for Sam's and Jones to prevail on their traditional motion for summary judgment with respect to the defamatory causes of action, they had to conclusively establish their defense that the statements that Mabry complained of were true. Mabry complained about the statements made by Sam's employees after the incident. After carefully reviewing the record, we conclude that Sam's and Jones met their burden.
First, Jones, Laffitte and Baker made statements that Mabry had taken something that did not belong to him. The record indicates that Mabry admitted that he took possession of the case of V-8 juice and that he had not purchased or otherwise acquired the case by sale, barter, or trade. In short, Mabry admitted that he took the case of V-8, which did not belong to him. Therefore, the statements made by the three Sam's employees were true.
Secondly, Jones made the statement that Sam's considered having Mabry arrested for theft, but decided against it. Mabry asserts that this statement suggests that he actually committed theft. He argues that there exist fact issues as to whether he committed theft. In Texas, a person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03.
Assuming that Mabry is correct in his interpretation of Jones's statement, the truth of the allegation of theft turns on whether Mabry had a legal right to the case of V-8. The summary judgment evidence establishes that the case of V-8 was mislaid. Mislaid property is property that the owner intentionally places where he can again resort to it, and then forgets. Schley v. Couch, 284 S.W.2d 333, 335 (Tex. 1955). The record reveals that a customer had intentionally placed the juice on the bottom rack of the grocery cart with the intention of loading it into her vehicle to take home, and then forgot it was there. She returned to claim her property. Accordingly, Mabry had no factual basis for a legal claim to the property. And, the fact that Mabry locked the case of V-8 in his truck demonstrates that he intended to deprive the owner of the property after he took possession of it. Therefore, we conclude that Jones's statement was true.
Accordingly, the trial court could have properly granted summary judgment with respect to the defamation causes of action based upon the defense of truth.
THE NO-EVIDENCE PART OF THE MOTION: TORTIOUS INTERFERENCE
With respect to his claim of tortious interference with a contract, Mabry claimed that he had an employment contract with SWBT, that Jones knew that he was an SWBT employee, that Jones was motivated in his actions by a desire to harm Mabry's employment with SWBT, and that Mabry was terminated as a result of Jones's misstatements and misrepresentations of Mabry's conduct. In the no-evidence portion of their motion for summary judgment, Sam's and Jones asserted that there was no evidence that (1) the reason for Mabry's termination was due to anything said or done by them and (2) any of their actions were done as an act of willful and intentional interference. After reviewing the record, we conclude that the trial court could have properly granted summary judgment with respect to this cause of action.
A no-evidence motion for summary judgment asserts that no evidence exists as to one or more elements of a claim on which the nonmovant would have the burden of proof at trial. General Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.). The burden is on the nonmovant to present summary judgment evidence raising a genuine issue of material fact on each of the challenged elements. Id. We review a no-evidence motion for summary judgment under the same legal sufficiency standard used to review a directed verdict. Id. at 832-33. Thus, we must determine whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. Id. at 833. Although the nonmoving party is not required to marshal its proof, it must present evidence that raises a genuine issue of material fact on the challenged elements. Crocker v. Paulyne's Nursing Home, Inc., 95 S.W.3d 416, 419 (Tex.App.-Dallas 2002, no pet.). A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements. Id. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrill Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citations omitted). In determining whether the nonmovant has met his burden, we consider the evidence in the light most favorable to the nonmovant. General Mills, 12 S.W.3d at 833.
The elements of a cause of action for tortious interference with an existing contract are (1) the plaintiff had a valid contract; (2) the defendant willfully and intentionally interfered with the contract; (3) the interference was the proximate cause of the plaintiff's injuries; and (4) the plaintiff incurred actual damage and loss. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex. 2002). Here, Mabry's burden was to produce evidence supporting the second and third elements.
With respect to the second element of willful and intentional interference, Mabry had to show that Sam's and Jones intended to cause the ultimate outcome-Mabry's termination of employment-when the statements were made. See Southwestern Bell Tel. Co., v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992) (intentional interference requires only that the defendant wants to cause the consequences of its act). In our review of the record, we are unable to find any evidence that Sam's and Jones had an intent to cause Mabry to lose his job.
We conclude that Mabry failed to bring forth more than a scintilla of evidence to raise a genuine issue of material fact on all of the challenged elements of tortious interference with a contract. Accordingly, the trial court could have properly granted the no-evidence portion of the motion for summary judgment with respect to Mabry's claim of tortious interference with his employment contract.
CONCLUSION
Because we have concluded that the trial court could have properly granted summary judgment based on the defense of truth with respect to the claims of defamation and on Mabry's failure to produce evidence to establish an essential element of tortious interference with contract, we need not review the remaining subissues. We overrule Mabry's sole issue and affirm the judgment of the trial court.