Opinion
04-21-00368-CV
11-16-2022
Jeff E. TINDALL, Appellant v. KAHLIG AUTO GROUP MANAGEMENT LLC, and North Park Lincoln Mercury, Inc.,Appellees
From the 438th Judicial District Court, Bexar County, Texas Trial Court No. 2019-CI-20779 Honorable John D. Gabriel Jr., Judge Presiding Opinion by: Liza A. Rodriguez, Justice Sitting: Beth Watkins, Justice
Sitting: Beth Watkins, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
LIZA A. RODRIGUEZ, JUSTICE
Jeff E. Tindall appeals from the summary judgment granted in favor of Kahlig Auto Group Management LLC ("Kahlig Auto Group"). We affirm.
Background
After being fired, Tindall brought a defamation action against his former employer Kahlig Auto Group. It is undisputed that Tindall was an at-will employee. In his petition, Tindall alleged that statements made by his supervisor, Bob Terrill, "in the course and scope of his employment as vice-principal" for Kahlig Auto Group constituted defamation per se because the statements had "a tendency to injure Mr. Tindall in his profession." About eight months after the filing of the lawsuit and the exchanging of discovery between the parties, Kahlig Auto Group filed a traditional and no-evidence motion for summary judgment on Tindall's defamation claim and on Kahlig Auto Group's qualified-privilege affirmative defense. Tindall responded. After a hearing on the motion for summary judgment, the trial court granted Kahlig Auto Group's traditional and no-evidence motion for summary judgment, rendering that Tindall take nothing on his claims. Tindall appealed.
Tindall also sued Appellee North Park Lincoln Mercury, Inc. ("North Park") for defamation. However, North Park was never served, and the trial court's final summary judgment was dispositive of all parties and causes of action. Tindall has not brought any appellate issue with respect to North Park.
Standard of Review
We review the trial court's granting of a motion for summary judgment de novo. See Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 624 (Tex. 2018). "When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Id. "A trial court properly grants a defendant's traditional motion for summary judgment if the defendant disproves at least one element of each of the plaintiff's claims or establishes all elements of an affirmative defense to each claim." Id. (citation omitted). "Similarly, it is proper for the trial court to grant a defendant's no-evidence motion for summary judgment if the plaintiff has produced no more than a scintilla of evidence on an essential element of the cause of action, that is, if the plaintiff's evidence does not rise to a level that would enable reasonable and fair-minded people to differ in their conclusions." Id. (citation omitted).
Discussion
To establish defamation, the plaintiff must show the following: (1) the defendant published "a false statement of fact to a third party"; (2) the "fact must be defamatory concerning the plaintiff"; (3) "the publisher must make the statement with the requisite degree of fault"; and (4) the plaintiff must suffer damages unless the statement of fact was defamatory per se. Dallas Morning News, 554 S.W.3d at 623. Kahlig Auto Group moved for traditional and no-evidence summary judgment on the first, second, and fourth elements. Kahlig Auto Group also moved for traditional summary judgment on its affirmative defense of qualified privilege. On appeal, Tindall argues the trial court erred in granting summary judgment in favor of Kahlig Auto Group.
Qualified Privilege
The common law provides a qualified privilege against defamation liability when the communication is made in good faith and "between people having a common business interest in employment-related matters or in reference to matters that the speaker has a duty to communicate to the other." Durant v. Anderson, No. 02-14-00283-CV, 2020 WL 1295058, at *25 (Tex. App.- Fort Worth Mar. 19, 2020, pet. denied); see also Bergman v. Oshman's Sporting Goods, Inc., 594 S.W.2d 814, 816 (Tex. App.-Tyler 1980, no writ) ("Accusations against an employee by his employer or another employee, made to a person having a corresponding interest or duty in the matter to which the communication relates, are qualifiedly privileged."). The supreme court has "recognized that defamation actions necessarily inhibit free speech and, thus, the qualified privilege offers an additional safeguard, even in cases of private, non-political speech." Burbage v. Burbage, 447 S.W.3d 249, 254 (Tex. 2014). "The privilege operates as an affirmative defense in the nature of confession and avoidance; the defendant bears the burden of proving privileged publication unless the plaintiff's petition affirmatively demonstrates privilege." Id.
At trial, "[i]f a defendant establishes the privilege, the burden shifts to the plaintiff to prove that the defendant made the statements with actual malice." Id. However, in the context of a summary judgment proceeding, the defendant must "establish that the allegedly defamatory statement was made with an absence of malice." Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).
"Actual malice, in the defamation context, means 'the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true.'" Burbage, 447 S.W.3d at 254 (quoting Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771, 772 (Tex. 1994)). "Actual malice in the defamation context does not include ill will, spite or evil motive, but rather requires 'sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.'" Hagler, 884 S.W.2d at 771-72 (quoting Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989)). "Qualified privilege presents a question of law when the statements at issue employ unambiguous language[,] and where the facts and circumstances of publication are undisputed." Burbage, 447 S.W.3d at 254.
Summary Judgment Evidence
The summary judgment evidence shows the circumstances around which Bob Terrill made allegedly defamatory statements about Tindall to the owner of Kahlig Auto Group, Clarence Kahlig. It is undisputed that Tindall was an at-will employee for Kahlig Auto Group where he was employed as a corporate car buyer. His supervisor was Terrill, the corporate used car director. In December 2018, Kahlig Auto Group was in the process of the year-end audit, also referred to as the "year-end write-downs." In his deposition, Terrill stated that the year-end audit occurs every December at all of Kahlig Auto Group's seventeen used car locations. According to Terrill, "the company wants to make sure at year-end we own that inventory right and we're not paying taxes on money that we didn't really earn because if you take a trade, you can overstate the value of that trade." Terrill described the process in his deposition:
We go to all the locations and we look at every car and we "book out" cars to have the book values on spreadsheets. Average auction price. We look at Carfaxes. We look at the condition of the car to determine the value of the car. We usually break up the duties because it's just too much for one person to do. It's gotten too big. We put everything on a spreadsheet. We go over it with the used car manager. Sometimes the GM will be involved. We go through by the end of the month and
take out all the sold units so they don't have to write those cars down. And then we turn it into the GMs and comptrollers of the stores.
Terrill testified that as part of this year-end audit, Tindall was assigned a few of the locations where, along with the used car manager and the general manager for the location, he placed an appropriate value on the used cars at that location. During this year-end audit, Tindall worked closely with Kahlig Auto Group employees Ed Sanchez and Fred Vasquez, who were assigned the task of finding all the cars, physically touching them, examining the condition of the car, and then verifying information about the car on a spreadsheet.
Tindall testified in his deposition that he would receive a spreadsheet from Terrill for a particular location. He would then "pull up NADA Black Book, and MMR, which is Manheim Market Reports, and those would be the values that we would use to write into the spreadsheet." Once he "completed the entire inventory of the cars [he was] supposed to write down for any particular lot, [he] would go back to the used car manager and [they] would discuss what [they] felt the values were." "Once [they] came to an agreement on the dollar value, [Tindall] would write that in to the . . . assessed value or something to that effect." Tindall would then enter the value into the computer and email the spreadsheet back to Terrill. Tindall would then move on to the next location.
Tindall testified that Terrill had scheduled locations on a calendar: Tindall was supposed to first go to Bluebonnet Motors, then Audi, then Bluebonnet Dodge, and finally Castroville. Tindall testified, however, that after he finished with Bluebonnet Motors, he did not move on to the Audi location because he wanted to finish all the locations in New Braunfels (which included Bluebonnet Dodge) before moving on to San Antonio (where Audi was located). According to Tindall, he asked Terrill to change the schedule so that he could go to Bluebonnet Dodge before Audi. Text messages in the summary judgment record show that on December 13, 2018, Tindall texted another employee, Adam Taylor, to ask if Taylor could send him the spreadsheet for Dodge. Taylor replied that "Bob [Terrill] says he hasn't pulled it yet. We are at the [Rio Grande Valley] store." Taylor asked Tindall if he got the spreadsheet for Audi. Tindall replied, "Yes [b]ut wanted to do BBD [Bluebonnet Dodge] first[.]" Taylor replied he "may not be able to make it from here today" but he could "probably get it to [Tindall] in the morning." A few minutes later, Terrill texted Tindall:
Terrill: You said you were going to do Audi after [Bluebonnet Motors]. Leave Adam [Taylor] alone[.] [W]e are covered up[.] Don't have time to stop and change course now[.] Audi is done and sent to you. Also printed out and on your desk[.]
Tindall: When would I go to San Antonio to get paperwork when I'm in New [B]raunfels[?]
Terrill: . . . I emailed it to you. Print it out[.]
Tindall: You scheduled Audi before BBD [Bluebonnet Dodge]. I said we wanted to do Dodge next and u [sic] said the schedule was flexible[.]
Terrill: Look. Not arguing with you. We are in the valley. Cant [sic] get you Dodge today[.] Sean and Jerry not to help with write downs at Audi. Talk to Kevin and Todd. I already booked out a lot of the cars for you. BV said my write down amounts to[o] low. Because of how much trouble they are in. So go back and adjust further.
Tindall: Eye Eye [sic] Captain[.]
Terrill: Thank you[.]
According to Tindall, he assumed from this conversation that when he received the spreadsheet for Dodge the next morning, he could start on the Dodge location in New Braunfels. Tindall testified, "[Terrill] didn't say, 'No, I'm not going to send Dodge until you finish Audi.' He said, 'I can't get you Dodge until tomorrow,' which they did send [] the next day." When asked if he considered the text exchange with Terrill to be an instruction to go ahead and perform the audit at Audi, Tindall testified, "In my mind, it was-like I said, when he told me that he couldn't get it till tomorrow, then it's like, okay, I'll wait till tomorrow and get it and we'll start with Dodge." According to Tindall, when he received the spreadsheet for Dodge the next morning, he presumed he had permission to do the Dodge location before Audi. It is undisputed that Tindall did his writedowns at Dodge before Audi.
Terrill testified in his deposition that in December 2018, the Audi location was a huge concern for Kahlig Auto Group. Terrill testified that "the order [the company] wanted the stores done in was Bluebonnet Motors and then the Audi store, and then the Dodge store." Terrill prepared the Bluebonnet Motors spreadsheets and gave them to Tindall. Later, he prepared the Audi spreadsheets and gave them to Tindall. Terrill testified:
And while I was down in the Valley, [Tindall] wanted to go to Bluebonnet Dodge next. And I'm like I can't help you, and we need the Audi store done next. And I could not tell you if that phone call was on a landline. I couldn't tell you if that phone call was to Adam Taylor and he had me on speaker phone because me [sic] and Adam were in the same office. I couldn't tell you how that phone call happened. But, in my mind, I remember a phone call. And it might be text messages and a phone call combined together in my mind. It's been too long ago; I couldn't tell you. But I do remember an altercation about the order of the stores, which ones to go to.
Terrill testified that in January 2019, he had a meeting with Clarence Kahlig, the owner of Kahlig Auto Group, to go over the year-end audit:
If I recall correctly, best-best memory is we went over one store, and I don't remember which one it was, and then we went to the Audi store, [which] was the next one in line. And we were going through the numbers and it was like the worst in history of the company as far as how much money they needed to write down, how far out of whack their inventory was. It was really, really bad. And [Clarence Kahlig] asked me how it went and I told him it didn't-it didn't go good [sic] at all. It was a struggle. And, if I recall, he asked me, "Did Jeff [Tindall] give you a hard time?" And I said, "Yes, sir, he did." And then if I remember right [sic] he asked me, "Did [Tindall] miss some time?" And if you know Mr. Kahlig, he doesn't ask you a question he doesn't already know the answer to. And I said, "Sir, that's what I was told." And then right after that, if I recall right, he said, "I've had enough. I want you to fire him."
When asked during his deposition how Tindall had given him a hard time during the year-end audit, Terrill responded:
The order of the stores and not going in the direction that he should be going in or turning the spreadsheets in on time as he was done because we're supposed to,
when we're done with that lot, that night or the next day type everything in and make sure you send it to the GM and the used car manager and myself and whoever else is working on his team, and make sure everything is-give them plenty of time to make sure everything is accurate and to make sure they have-because if they see, "Hey, I've got a $5000 write-down coming on this car," they have till the end of the month to see it, so instead of losing $5000, maybe they could [sell] the car to a customer and only lose $2500. Then they don't have to lose $5000. They just saved 2500 bucks. But if you don't turn that information into the used car managers as you're going along, it causes problems. And to the best of my recollection, it was not getting done that way. . . . Bluebonnet Motors, if I recall right, I didn't get till several days later. I was expecting the Audi store next, and I didn't see the Audi store for a week.
When asked in his deposition who told him Tindall had not shown up for work for a couple of days, Terrill replied Fred Vasquez and Ed Sanchez had told him that information. Terrill testified that he had not verified Tindall had missed two days of work before saying anything to Terrill and did not know how he could have done so at that time: "I don't know how I would verify it. I didn't even have the time. I mean, I was working seven days a week [in December during the audit], twelve or fourteen hours a day. I don't have time to babysit him." Terrill was then asked whether it had occurred to him to tell Clarence Kahlig he needed time to verify whether Tindall had missed some work. Terrill replied,
Maybe-[Mr. Kahlig] had already-somebody had already told him. It was my impression that somebody had already told Mr. Kahlig that [Tindall] had missed time because I don't know why he would ask me if [Tindall] missed time because I sure didn't bring it up.
Terrill was asked again, "Why can't you just tell [Mr. Kahlig], 'I don't know', or 'I want to check first?'" Terrill replied, "How would I check? I don't know. How would I check?" Terrill testified there was no way to keep track of attendance for an employee like Tindall. Terrill again reiterated that he was told Tindall had missed a couple of days of work by Vasquez and Sanchez.
Clarence Kahlig also testified in his deposition about his meeting with Terrill in January 2019:
The discussion was that we were having a real inventory problem at Audi. It was probably the biggest inventory with the biggest amount of loss that we had, and Mr. Terrill would go out to the Audi dealership months before the end of the year and he would reiterate that things are not looking good at Audi. Inventory is building and they are upside down in their vehicles. And our preference was that we get that write-down at Audi as soon as we could, and there was a-there was a disagreement on when [Tindall] would go there. . . . [Tindall] told Bob [Terrill], "I don't see why we can't finish-we can't do Dodge next," even though he had the spreadsheets to do Audi. We wanted him to do-we wanted him to do Audi and we didn't want him to do Dodge. And I questioned Bob [Terrill] about-about that situation, and [Terrill] said, "Wait, I told him to do it, but he just didn't do it."
Kahlig then mentioned an incident between Tindall and Terrill years before, which had resulted in Tindall being reprimanded. Kahlig criticized Tindall for being "nitpick[y]" about the reprimand, claiming he had not called Terrill a "liar" and wanting the word "liar" taken out of the reprimand. Kahlig testified it was "those kinds of things that don't create [] a good harmonious relationship."
Ed Sanchez, who worked closely with Tindall, testified in his deposition that he did not recall telling Terrill that Tindall had not shown up for work. The other employee who worked closely with Tindall, Fred Vasquez, testified it was possible he had conversations with Terrill about Tindall being away from work during the time in question. Vasquez stated that Tindall could do the write-downs from his home, but he would have needed Terrill's permission to do so.
In reviewing the record, we conclude that the summary judgment evidence establishes that when Terrill made the alleged defamatory statements to Clarence Kahlig, the two men were in a business meeting, as owner and high-level supervisor of employees, discussing the year-end audit and issues between employees related to the audit. Thus, we hold Kahlig Auto Group met its burden of showing that the common-interest qualified privilege applies to the facts of this case. See Durant, 2020 WL 1295058, at *25.
Actual Malice
We must next consider whether the summary judgment evidence shows the alleged defamatory statements were not made with actual malice. See Randall's Food, 891 S.W.2d at 646.
"In the defamation context, a statement is made with actual malice when the statement is made with knowledge of its falsity or with reckless disregard as to its truth." Gonzales v. Levy Strauss & Co., 70 S.W.3d 278, 282 (Tex. App.-San Antonio 2002, no pet.); see also Burbage, 447 S.W.3d at 254. "'Reckless disregard' is defined as a high degree of awareness of probable falsity, for proof of which the plaintiff must present 'sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.'" Carr v. Brasher, 776 S.W.2d 567, 571 (Tex. 1989) (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)). "An error in judgment is not enough." Id. "A defendant can negate actual malice by presenting evidence that shows he or she did not publish the alleged defamatory statement with actual knowledge of any falsity or with reckless disregard for the truth." Gonzales, 70 S.W.3d at 282.
For example, in Gonzales, 70 S.W.3d at 282, this court considered whether the summary judgment evidence established an employer's alleged defamatory remarks about an employee were protected by qualified privilege. After being terminated from their employment, two employees sued their employer, alleging their employer had made defamatory remarks about them. See id. In moving for summary judgment on qualified privilege, the employer attached the affidavit of the supervisor who had fired the two employees. Id. The supervisor affirmed in his affidavit that he "spoke to the following people about the circumstances surrounding [the employees'] termination: his immediate supervisor, the Human Resources Director, the Office Manager, and the Regional Director of Human Resources." Id. In considering the affidavit, this court held that because the statements concerning the employees' termination "were made only to those involved in the process of investigating the incident [that led to their termination] and [the employees'] unemployment claims, the statements were qualifiedly privileged." Id.
This court then considered whether the employer had met its summary judgment burden in showing the statements were not made with actual malice. This court noted that in his affidavit, the supervisor stated that it was his duty "to make the final decision regarding any employee termination" and that he considered and relied upon a report created by the company's human resources director. Id. He affirmed that he believed the information he received from the human resources director was true and accurate and that he had no reason to doubt the report's truth or accuracy. Id. at 282-83. This court noted that "[i]n the absence of controverting proof, a defendant's affidavit is sufficient to negate actual malice." Id. at 283. Further, the supervisor's "reliance on reports and information furnished by other employees in the line of duty under these circumstances [did] not amount to reckless disregard of whether such statements were false." Id. While the employees attempted to raise a fact issue on malice by arguing there was evidence the employer "provided differing explanations for [their] termination," this court emphasized that "minor inconsistencies as to the reasons for their termination" did not establish that their supervisor "knew the information he relied upon was untrue or that he acted with reckless disregard of the truth." Id. Accordingly, this court held that the summary judgment evidence "conclusively showed that [the supervisor] acted without malice and in good faith, and thus, [the employer] conclusively established [its] affirmative defense of qualified privilege." Id.
Here, the summary judgment evidence shows that during a meeting between Terrill and Clarence Kahlig about the year-end audit process, a discussion arose about the losses suffered at the Audi store. Clarence Kahlig then asked Terrill about the write-down process at the Audi store and how well it had gone. Terrill replied that it had been a struggle. Clarence Kahlig then asked if Tindall had given Terrill "a hard time" during the process. Terrill replied in the affirmative. Clarence Kahlig then asked whether Tindall had missed some work. According to Terrill, Clarence Kahlig did not ask such questions unless he already knew the answer. Terrill replied, "Sir, that's what I was told." Terrill testified that Clarence Kahlig then stated, "I've had enough. I want you to fire him." When asked in his deposition who told him Tindall had missed some work, Terrill replied Fred Vasquez and Ed Sanchez had told him that information. For their parts, Ed Sanchez testified that he did not remember telling Terrill that Tindall had missed some work. Fred Vasquez testified it was possible he said Tindall had missed some work to Terrill. The summary judgment shows that Tindall, Vasquez, and Sanchez worked closely together. Thus, it was reasonable for Terrill to rely on information provided by either Vasquez or Sanchez.
Clarence Kahlig testified similarly to Terrill-that they were in a meeting about the year-end audit and were discussing the problem at the Audi location. Kahlig testified he had known about the disagreement Terrill and Tindall had about Tindall wanting to perform the write-down process at the Dodge store before the Audi store. According to Kahlig, when he questioned Terrill about this incident, Terrill replied that he had told Tindall to do the write-down process at Dodge first but that Tindall "just didn't do it." Kahlig testified that he then began thinking about an incident between Tindall and Terrill years before, and was tired of Tindall's attitude. Kahlig then told Terrill to fire Tindall.
This evidence shows no actual malice on the part of Terrill. In his brief, Tindall spends much effort trying to prove the truth of whether he was in fact at work on the days in question and whether he and Terrill had a "phone altercation." However, "malice cannot be inferred from falsity of the statement alone." Austin v. Inet Techs., Inc., 118 S.W.3d 491, 497 (Tex. App.-Dallas 2003, no pet.). Similarly, Tindall argues that Terrill should have verified whether he was in fact absent before saying something to Clarence Kahlig. However, "[f]ailure to investigate the truth or falsity of a statement before it is published is insufficient to show actual malice." Id. at 497-98; see also Akin v. Santa Clara Land Co., 34 S.W.3d 334, 341-42 (Tex. App.-San Antonio 2000, pet. denied) ("Negligence, failure to investigate the truth or falsity of the statements prior to publication, or failure to act as a reasonable prudent person is insufficient to support a finding of malice.").
Finally, Tindall argues that Terrill gave conflicting stories about his termination, changing his deposition testimony from the testimony he gave at the TWC hearing about Tindall's unemployment benefits. At the hearing about Tindall's unemployment benefits, Terrill was asked how Tindall's missing work had come to the attention of Clarence Kahlig:
[Clarence Kahlig] had talked to Mr. Ed Sanchez. . . . And then we have a meeting, and we talk about how the write-down process went, and which stores were doing good, which stores need work, and why we wrote these cars down. At that meeting, he asked me if this was true, that I had a phone altercation with Mr. Tindall while I was down at Lexus Rio Grande Valley. I told him, "Yes sir, it was true." He also asked if it was true that [Tindall] didn't show up to work. And I told him, "I wasn't there, but that's what I heard from two other guys, that he didn't show up for work for those two days." And he told me-at that point, he told me to let Mr. Tindall go.
Tindall then points to the following deposition testimony from Terrill where he was asked about the above testimony from the unemployment benefits hearing:
Q: Do you still-do you have any recollection of Kahlig telling you that he had talked to Ed Sanchez about Tindall?
A: No. I think that was more of an assumption than actual fact.
Q: Well-
A: Again, because Mr. Kahlig asking me if Jeff had-Jeff Tindall had given me a hard time. I know I didn't talk to him about it, so he had to get that information from somebody else. Now, looking back, it could have been from-who knows who could have told him that information. It could have been Billy Vaughn [another employee]. It could have been Ed [Sanchez]. It could have been Fred [Vasquez]. It could have been the general manager. I mean, I don't know, but obviously, somebody had talked to him about it, otherwise, he would be asking me about it.
In looking at the entirety of Terrill's testimony, his testimony is consistent regarding the statement he made to Clarence Kahlig during the meeting. He assumed Clarence Kahlig already knew the answer to the question about Tindall missing "some work."
We hold the summary judgment evidence shows that when Terrill made his alleged defamatory statements to Clarence Kahlig, he acted in good faith and without actual malice.
Conclusion
Because Kahlig Auto Group showed that its affirmative defense of qualified privilege applies in this case and that Terrill did not act with actual malice in making his alleged defamatory statements, the trial court did not err in granting summary judgment in favor of Kahlig Auto Group. Having so held, we need not reach Tindall's remaining issues. The judgment of the trial court is affirmed.