Summary
affirming a jury award of $570,000.00 in actual damages and $350,000.00 in exemplary damages when an arson investigator's business reputation was slandered, resulting in harm to his career
Summary of this case from In re PerryOpinion
No. 14-00-00054-CV
Opinion filed June 13, 2002.
On Appeal from the 152nd District Court, Harris County, Texas, Trial Court Cause No. 97-59284
Affirmed
OPINION
This lawsuit involves claims of defamation and tortious interference with business relations. Jesse Pruitt and William Anders appeal from a judgment favoring Ronald Ziesmer. The jury awarded Ziesmer a total of $570,000 in actual damages and $350,000 in exemplary damages. On appeal, appellants contend that: (1) Ziesmer's claims were barred by a summary judgment favoring their employer, Harris County, on substantially the same claims; (2) the evidence is legally and factually insufficient to support the jury's finding of liability; (3) the evidence conclusively establishes absolute privilege and release; (4) the evidence is legally and factually insufficient to support the jury's award of actual damages; and (5) the actual and exemplary damages found by the jury were excessive. We affirm.
I. Background
Ronald Ziesmer worked as an arson investigator for the Harris County Fire Marshal's Office. Appellant Pruitt was the Harris County Fire Marshal at the time, and appellant Anders was the Chief Arson Investigator. In February 1997, Ziesmer investigated a fire in a mobile home in Atascocita. According to the appellants, Pruitt and Anders considered the investigation and the resulting report to be inadequate and ordered Ziesmer to write a better report. According to Ziesmer, the appellants pressured him to alter his report in order to support the tenant in a dispute with the landlord over the cause of the fire. Although Ziesmer filed an amended report, he refused to change his determination as to the cause of the fire. His employment was subsequently terminated.
Ziesmer was apparently allowed to resign instead of being fired. A second investigator, Jerry Byrd, was also let go after his supplemental report came to the same conclusion as Ziesmer's report. Although Byrd was a plaintiff in the proceedings below, he is not a party to this appeal.
On March 20, 1997, as part of the job application process with the Harris County Sheriff's Department, Ziesmer executed a Personal Inquiry Waiver Authority for Release of Information. After receiving the waiver, Sheriff's Deputy William Waller sent an "Employment Information" form to the Fire Marshal's Office inquiring about Ziesmer's job performance. Anders completed the form. In his answers, Anders characterized Ziesmer's attendance record as poor and his work performance as unsatisfactory. He further stated that Ziesmer did not accept supervision, got along with others "some what [sic]", and caused problems by "undermining supervision to causing low morale and disruption of team effort." Anders also indicated that Ziesmer was not honest and trustworthy and was not eligible for rehire. Deputy Waller testified that he also spoke to Anders in person, and Anders reiterated that Ziesmer was a poor performer and had poor attendance.
Ziesmer also sought a job with the Friendswood Fire Marshal's Office. Terry Byrd, the Friendswood Fire Marshal, testified that, in May 1997, Pruitt, who was Byrd's uncle, told him essentially that Ziesmer had no business being in law enforcement, was unfit to be a law officer, and was incompetent and unqualified. Byrd further stated that in a second conversation, Pruitt repeated these criticisms. Byrd also said that Pruitt claimed to have additional information about Ziesmer, but he refused to reveal it over the telephone. Leslie Deen testified that she overheard Pruitt telling Byrd that Ziesmer wrote a sloppy report, was incompetent and a lousy investigator, and should never have been in law enforcement. Approximately five to six weeks later, Byrd offered Ziesmer an unpaid position with the Friendswood Fire Marshal's Office. In December 1998, Ziesmer became a paid Assistant Fire Marshal in Friendswood.
Ziesmer filed suit against Pruitt, Anders, Harris County, and the Harris County Fire Marshal's Office, alleging wrongful termination, defamation, tortious interference with business relations, intentional infliction of emotional distress, and conspiracy. The defendants filed a series of motions for summary judgment. The trial court granted Harris County's and the Fire Marshal's Office's motions. Pruitt and Anders then filed a Plea in Bar on the basis of official immunity under § 101.106 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. § 101.106 (Vernon 1997). The trial court ultimately denied the plea.
The Fire Marshal's Office's motion merely contended that the office was not an entity separate from Harris County. It was granted prior to the court's consideration of Harris County's motion.
A jury determined that Pruitt and Anders each defamed Ziesmer and tortiously interfered with his ability to find work. The jury also found that Pruitt and Anders acted maliciously, in bad faith, and without privilege. In response to Pruitt and Anders's motion for judgment notwithstanding the verdict, the trial court struck the jury's answers regarding tortious interference as against Anders. The final judgment awarded total actual and exemplary damages in the amount of $295,000 against Anders and $625,000 against Pruitt.
II. Tex. Civ. Prac. Rem. Code Ann. § 101.106
In their first four issues, appellants contend that operation of section 101.106 of the Civil Practice and Remedies Code barred Ziesmer's defamation and tortious interference claims because the trial court granted summary judgment favoring the county on those claims. Consequently, they contend the trial court erred in granting Ziesmer's motion for reconsideration of the summary judgment order and in denying their motion for judgment notwithstanding the verdict. Section 101.106 states:
A judgment in an action or a settlement of a claim under [the Texas Tort Claims Act] bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.
Tex. Civ. Prac. Rem. Code Ann. § 101.106. Basically, appellants contend that because Ziesmer originally pled his claims of defamation and tortious interference against the county as well as against them individually, the trial court's summary judgment order favoring the county bars Ziesmer's claims against them individually.
Appellants make numerous and alternative complaints under these four issues. If a court concludes that argument under an issue is multifarious, the court can refuse to review the issue, or it may consider the arguments if it can determine, with reasonable certainty, the basis of the alleged error. See Shull v. United Parcel Serv., 4 S.W.3d 46, 51 (Tex.App.-San Antonio 1999, pet. denied); Bell v. Tex. Dep't. of Crim. Justice — Inst'l Div., 962 S.W.2d 156, 157 n. 1 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). To the extent we can discern the appellants' complaints, we will address the issues in the interest of justice. See Shull, 4 S.W.3d at 51; Bell, 962 S.W.2d at 157 n. 1.
The procedural chronology in this case is convoluted, but we list some events necessary to this appeal: (1) Harris County filed motions for summary judgment; (2) the trial court granted partial summary judgment for the county on "all . . . claims . . . except [the] whistleblower claim," but without specifically identifying on which claims judgment was granted; (3) Pruitt and Anders filed a Plea in Bar, claiming that (a) Ziesmer's pleadings alleged defamation and tortious interference against the county, (b) the partial summary judgment therefore covered those intentional tort claims, and (c) consequently, the same claims were barred as against Pruitt and Anders under section 101.106; (4) Ziesmer filed a Motion For Reconsideration contending that his petition did not allege the intentional torts against the county and that, therefore, the summary judgment did not address those claims; (5) Ziesmer filed a Third Amended Original Petition, which specifically avoided making the intentional tort claims against the county; (6) the trial court issued an opinion in which it interpreted Ziesmer's Second Amended Original Petition and the summary judgment order as being ambiguous as to whether they contemplated intentional tort claims against the county; and (7) the trial court issued a new order specifically stating the claims against the county on which summary judgment was being granted and specifically omitting defamation and tortious interference.
Appellants contend that as soon as the trial court signed the original order granting summary judgment on behalf of the county, the intentional tort claims were automatically and immediately barred as against the individual defendants. Although appellants do not expressly say so, their argument presupposes that a court's interlocutory summary judgment order becomes immediately final and irrevocable. This argument misinterprets both the nature of a trial court's plenary power over its own orders and the nature of the events which transpired in this case.
As noted, the trial court granted partial summary judgment favoring the county. It then issued an opinion explaining that Ziesmer's petition and the partial summary judgment order were ambiguous as to whether they addressed defamation and tortious interference claims against the county. In effect, the trial court did not reverse its grant of summary judgment on those issues; it simply clarified that its order did not address those claims. Consequently, the court denied the appellants' Plea in Bar and allowed the defamation and tortious interference claims to proceed against the appellants.
Generally, a trial court has the inherent authority to modify or clarify any interlocutory order until the judgment becomes final. See Rush v. Barrios, 56 S.W.3d 88, 98-99 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). Appellants cite two supreme court cases dealing with section 101.106, Newman v. Obersteller, 960 S.W.2d 621 (Tex. 1997), and Thomas v. Oldham, 895 S.W.2d 352 (Tex. 1995), in support of their contention that, under the circumstances of this case, the trial court lacked the authority to modify or clarify its summary judgment order. These cases, however, are contra to the appellants' assertions.
In Newman, the governmental entity received a summary judgment that was then severed from the case against the employee (involving the same subject matter), and it became a final judgment. 960 S.W.2d at 622. The supreme court held that the trial court should have granted summary judgment for the employee based on immunity because the plaintiff had failed to attack the summary judgment favoring the government employer. Id. at 622-23. In the present case, the plaintiff, Ziesmer, did attack the summary judgment for the county by filing a motion for reconsideration. The summary judgment had not been severed and had not become final, so the court had power to modify or clarify its order. See Rush, 56 S.W.3d at 98-99.
As the supreme court noted: "The unchallenged summary judgment for the [government entity] renders [the employee] immune from any further action in this matter." Newman, 960 S.W.2d at 622 (emphasis added).
In Thomas, the court held that application of section 101.106 is not rendered ineffective when judgment is simultaneously rendered against both the government entity and the employee, because the judgment against the entity bars the judgment against the employee. 895 S.W.2d at 357. Contrary to the appellants' assertions, however, the court's opinion does not suggest that a trial court loses its normal ability to reconsider its own orders in this kind of case while it still has jurisdiction over the case. Indeed, the court actually relied on the fact that the trial court retains "power to vacate, modify, correct, or reform" a judgment after rendition. Id. at 356. The court reasoned that "[b]ecause the judgments against the . . . employers . . . were rendered during the period in which the trial court retained plenary power over the actions against the employees, those actions were barred under section 101.106." Id. This analysis empowers rather than diminishes the trial court's authority to amend, modify, or change its judgments for as long as it retains plenary power. The trial court had clear authority to clarify its ruling by issuing a new order. See Rush, 56 S.W.3d at 98-99.
"Plenary" is defined as "[f]ull, entire, complete, absolute, perfect, unqualified." Black's Law Dictionary 1154 (6th ed. 1990). "Plenary Power" is defined as "[a]uthority and power as broad as is necessary in a given case." Id.
Furthermore, the appellants' assertions also misinterpret the nature of the proceedings below. The trial court did not actually reverse its ruling on the county's motion for summary judgment; it merely clarified the scope of that order. The trial court reasoned, in its separately filed opinion, that its partial summary judgment order was ambiguous about whether it covered defamation and tortious interference claims against the county. The uncertainty arose because it was unclear whether the Second Amended Original Petition made those allegations. Indeed, the record supports the trial court's conclusion that Ziesmer's Second Amended Original Petition was ambiguous about whether it alleged defamation and tortious interference against the county. On page one of the petition, the term "Defendants" clearly applies to a list that includes the county, Anders, and Pruitt. In the "Factual Background" section of the petition, however, the term "Defendants," in several instances, appears to refer only to Pruitt and Anders. It is then unclear in the "Causes of Action" section whether use of the term "Defendants" was intended to apply to all defendants, including the governmental entities, or to just Pruitt and Anders. Specifically, the petition simply alleges that "Defendants" made the defamatory statements and tortiously interfered.
It should be noted that appellants do not contend that there was a trial by consent of the defamation and tortious interference claims. See generally Roark v. Stallworth Oil Gas, Inc., 813 S.W.2d 492, 494-95 (Tex. 1991) (discussing trial by consent in the summary judgment context). We therefore express no opinion regarding whether these issues were, in fact, tried by consent.
Appellants further point to Ziesmer's response to the motions for summary judgment and his original proposed jury charge as evidence that the Second Amended Original Petition alleged claims of defamation and tortious interference against the county. In the response, Ziesmer stated that "Plaintiffs have sued Harris County; Jesse James Pruitt, Individually; and William B. Anders, Individually, for wrongful termination; Slander, Libel, Defamation and Disparagement ( per se and per quad [sic]); Tortious Interference With Contractual Relations; Intentional Infliction of Emotional Distress; and conspiracy to commit such unlawful and/or tortious acts." In context, this listing is not necessarily meant to specifically and inclusively state that each listed defendant is responsible for each listed tort. It may well be intended that the first listed defendant, Harris County, is only being sued for the first listed tort, wrongful termination. In fact, in his response to the Plea in Bar, Ziesmer specifically states that he never intended to sue the county for these intentional torts. Although the sentence in question is perhaps inartfully worded, it does not amount to conclusive proof or a judicial admission of an intent to sue the county for defamation and tortious interference. See generally Tex. Dep't. of Pub. Safety v. Steele, 56 S.W.3d 352 , 354 (Tex.App.-Beaumont 2001, no pet.) (for allegations in a trial pleading to constitute judicial admissions, they must be deliberate, clear, and unequivocal); Elliott v. Methodist Hosp., 54 S.W.3d 789, 794 (Tex.App.-Houston [1st Dist.] 2001, pet. filed) (to be a judicial admission, statement must be deliberate, clear, and unequivocal).
Addressing the proposed jury charge, in which Harris County was listed as a defendant under the defamation question, we do not ascribe such effect to pre-trial, proposed jury charges that they operate as a form of judicial admission to modify or even clarify the plaintiff's live pleadings. See Elliott, 54 S.W.3d at 794. In short, the trial court did not abuse its discretion in determining that the petition was ambiguous. Therefore, the partial summary judgment order entered against all claims other than the whistleblower claim did not act to bar the defamation and tortious interference causes of action against the individual defendants.
In Elliott, the plaintiff made statements in her deposition that were inconsistent with the allegations in her pleadings. 54 S.W.2d at 794. The court found, however, that the statements did not operate as judicial admissions because they were not deliberate, clear, and unequivocal. Id.
Finally, the trial court's conclusion regarding pleading ambiguities is supported by the fact that making the defamation and tortious interference claims against the county would have been superfluous. These causes of action address intentional torts. See, e.g., Southwestern Bell Tel. Co. v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992) (tortious interference); Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex.App.-Houston [1st Dist.] 1999, pet. dism'd w.o.j.) (defamation). The Texas Tort Claims Act does not waive sovereign immunity for intentional torts by government employees. Tex. Civ. Prac. Rem. Code Ann. § 101.057 (Vernon 1997); Tex. Dep't. of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); see also Hohman, 6 S.W.3d at 777 (holding specifically that chapter 101 does not waive immunity for defamation suit).
Because section 101.106 of the Tort Claims Act expressly only applies to a "claim under this chapter" and section 101.057 excludes intentional torts from application of the chapter, it would appear logical that section 101.106 could not operate to bar an intentional tort claim. Tex. Civ. Prac. Rem. Code Ann. §§ 101.057, 101.106. However, the Texas Supreme Court has specifically allowed section 101.106 to defeat an intentional tort claim. See Newman, 960 S.W.2d at 622-23.
Appellants next argue that in filing a Third Amended Original Petition that specifically omitted defamation and tortious interference claims against the county, Ziesmer in effect nonsuited those claims. They assert that omitting the claims from an amended petition after a partial summary judgment against those claims acts as a dismissal with prejudice and hence a final determination on the merits, citing Hyundai Motor Company v. Alvarado, 892 S.W.2d 853 (Tex. 1995); Mossler v. Shields, 818 S.W.2d 752 (Tex. 1991); Radelow-Gittens v. Pamex Foods, 735 S.W.2d 558 (Tex.App.-Dallas 1987, writ ref'd n.r.e.). However, as discussed above, the trial court found that the Second Amended Petition did not clearly allege these intentional torts against the county so the omission in the new pleading was not equivalent to a nonsuit even under appellants' theory.
Appellants alternatively assert that Ziesmer's Third Amended Original Petition also alleged defamation and tortious interference against the county in that it asserted respondeat superior and joint and several liability. Appellants, however, have provided no citation to authority on this sub-issue and only the bare outline of an argument. This sub-issue is therefore waived. See Kang v. Hyundai Corp. (U.S.A.), 992 S.W.2d 499, 503 (Tex.App.-Dallas 1999, no pet.) (holding that failure to provide substantive analysis or cites to the record or to legal authorities waived argument).
The trial court had the authority to modify or clarify its partial summary judgment order. See Rush, 56 S.W.3d at 98-99. The order, as clarified, does not preclude the defamation and tortious interference claims against appellants. Accordingly, we overrule appellants' first four issues.
III. Sufficiency of the Evidence Standards of Review
Appellants contend that the evidence is legally and factually insufficient to support the jury's verdict on several liability issues and its award of damages. In reviewing the legal sufficiency of the evidence, we consider all of the record evidence in the light most favorable to the party in whose favor the verdict has been rendered and indulge every reasonable inference deducible from the evidence in that party's favor. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If more than a scintilla of probative evidence supports the finding, the no evidence challenge fails. Minn. Mining Mfg. Co. v. Nishika Ltd., 953 S.W.2d 733, 738 (Tex. 1997). More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Merrell Dow, 953 S.W.2d at 711. A no evidence point will be sustained when: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of the vital fact. Id. When a party attacks the legal sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue . Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001). In such cases, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, then the reviewing court will examine the entire record to determine if the contrary proposition is established as a matter of law. Id. And the issue should be sustained only if the contrary proposition is conclusively established . Id.
In reviewing for factual sufficiency, we weigh all of the evidence in the record and overturn the findings only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). We must accord due deference to the jury as trier of fact, as they are the sole judges of the credibility of the witnesses and the weight to be given their testimony. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). In its role, the jury was free to believe any one witness, disbelieve other witnesses, and resolve inconsistencies in the testimony of any witness as well as in the testimony of different witnesses. See id.
IV. Defamation
In issues five and six, appellants challenge the sufficiency of the evidence to support the jury's finding that Anders defamed Ziesmer. In issues twelve and thirteen, appellants attack the sufficiency of the evidence to support the finding that Pruitt defamed Ziesmer. The sole argument made by appellants is that Anders's and Pruitt's statements were mere statements of opinion, and not of fact, and thus were not capable of a defamatory meaning. Given the current state of defamation law, discussed below, we find that the statements implied facts capable of being proven true or false and were thus capable of a defamatory meaning.
On appeal, appellants do not contend that the alleged statements were true, only that they were statements of opinion and not of fact.
A. State of the Law
The Texas Supreme Court has expressly adopted the defamation standard set out in New York Times Company v. Sullivan, 376 U.S. 254 (1964). See Casso v. Brand, 776 S.W.2d 551, 557 (Tex. 1989). Under Sullivan, a plaintiff must show that the defendant made a false and defamatory statement of fact with knowledge that it was false or with reckless disregard of whether it was false. See Casso, 776 S.W.2d at 558 (citing Sullivan, 376 U.S. at 279-80). 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. Einhorn v. LaChance, 823 S.W.2d 405, 410-11 (Tex.App.-Houston [1st Dist.] 1992, writ dism'd w.o.j.). Slander is a defamatory statement that is orally communicated or published to a third person without legal excuse. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). Libel has been codified under section 73.001 of the Civil Practice Remedies Code:
A libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.
Tex. Civ. Prac. Rem. Code Ann. § 73.001 (Vernon 1997).
The threshold issue of whether the words used are capable of a defamatory meaning is a question of law for the court. Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 654 (Tex. 1987). The court construes the statement as a whole in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement. Id. at 655. Only when the court determines the language is ambiguous or of doubtful import should the jury then determine the statement's meaning and the effect the statement's publication has on an ordinary reader or listener. Id. An ambiguity exists if there is a question as to whether the hearer could reasonably understand the statement in a defamatory sense. Schauer v. Mem'l Healthcare Sys., 856 S.W.2d 437, 447 (Tex.App.-Houston [1st Dist.] 1993, no writ), overruled in part on other grounds, Huckabee v. Time Warner Entm't Co., 19 S.W.3d 413, 423 (Tex. 2000); Ramos v. Henry Beck Co., 711 S.W.2d 331, 334 (Tex.App.-Dallas 1986, no writ).
Historically, only statements of fact were defamatory; all statements of "opinion" were considered incapable of a defamatory meaning as constitutionally protected free speech. See, e.g., Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989). In 1990, the United States Supreme Court held that there is no bright line between fact and opinion: statements of opinion which imply false facts are as actionable as any other statement of fact. See Milkovich v. Lorain Journal, 497 U.S. 1, 21 (1990). The Texas Supreme Court specifically recognized the Milkovich reasoning in Turner v. KTRK Television, Inc., 38 S.W.3d 103, 122 (Tex. 2000). The cases cited by the appellants for the proposition that statements of opinion are absolutely protected pre-date the Turner case and are distinguishable for that reason. See, e.g., Carr, 776 S.W.2d at 567; Falk Mayfield L.L.P. v. Molzan, 974 S.W.2d 821 (Tex.App.-Houston [14th Dist.] 1998, pet. denied); Yiamouyiannis v. Thompson, 764 S.W.2d 338 (Tex.App.-San Antonio 1988, writ denied).
The Court illustrated the difference between actionable and non-actionable opinion with two examples. "In my opinion Mayor Jones is a liar" is actionable, but "[i]n my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin" is not actionable. The first statement is actionable, according to the Supreme Court, because it has a provably false factual connotation (Mayor Jones lied), whereas "abysmal ignorance" does not. Milkovich, 497 U.S. at 20. In addition, the Court said that, in light of its holding, the "factor tests" used in the lower courts were no longer necessary because they created "an artificial dichotomy between `opinion' and fact." Id. at 19.
It should be noted, however, that other courts had previously commented on the shift in the law. See, e.g., Simmons v. Ware, 920 S.W.2d 438, 449 (Tex.App.-Amarillo 1996, no writ) (following Milkovich); Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 920 (Tex.App.-Corpus Christi 1991, writ dism'd w.o.j.) (same); Falk Mayfield, 974 S.W.2d at 831-32 (Fowler, J., dissenting) (explaining the shift in the law).
B. Analysis 1. Pruitt
According to Terry Byrd's testimony, he called Pruitt on unrelated matters, and Pruitt changed the subject to discuss Byrd's potential hiring of Ziesmer. Byrd stated Pruitt essentially told him that Ziesmer "had no business being in law enforcement [and] was unfit to be a law enforcement officer." Byrd additionally testified that Pruitt called Ziesmer "incompetent" and said that Ziesmer was "unqualified." Byrd stated that, based on Pruitt's comments, he thought that perhaps Ziesmer "had been reported to the Texas Commission on law enforcement standards, I didn't know." Byrd called Pruitt back that afternoon after checking on Pruitt's comments by calling Ziesmer and other people Pruitt had mentioned. According to Byrd, Pruitt then reiterated that Ziesmer was incompetent, unqualified, and unfit to be in law enforcement. Byrd further stated that Pruitt said "he had some information on Ziesmer; that [Byrd] needed to come to his office and see him." Byrd requested Pruitt tell him the information over the telephone at that time, but Pruitt repeated that Byrd should come to his office. No information supporting the innuendo was ever revealed to Byrd.
Byrd's testimony was supported by that of Leslie Deen, who testified that she was standing in the doorway of her office, which was next to Pruitt's office, and heard Pruitt say that "Ziesmer was incompetent, he was a lousy investigator, and wrote a sloppy report" and "he should never have been in law enforcement."
Several Texas courts have found situations in which a supervisor's or employer's statements, of varying degrees of specificity and imputing incompetence to an employee, were capable of defamatory meaning. See, e.g., Free v. Am. Home Assurance Co., 902 S.W.2d 51, 54 (Tex.App.-Houston [1st Dist.] 1995, no writ) (defendant stated that plaintiff was a "lightweight" who "lacked a comprehensive grasp of what was necessary to handle large accounts," "failed to produce, failed to follow through," and who "would vacillate, procrastinate and allow things to languish entirely too long"); Tucker, 806 S.W.2d at 921 (former employer told stockbroker's prospective clients that plaintiff was going to lose his license, was in "big trouble" with the Securities and Exchange Commission, and would never work again as a stockbroker); Bayoud v. Sigler, 555 S.W.2d 913, 914 (Tex.Civ.App.-Waco 1977, writ dism'd) (defendant made statements about the plaintiff's competence, honesty, integrity, intoxication, and moral character); Smith v. McMullen, 589 F. Supp. 642, 643, 646 (S.D.Tex. 1984) (owner of the Houston Astros stated that team's former general manager was "a despicable human being" and that it was "unfair and wrong for people to keep giving [him] credit" for the team's success).
Courts in other jurisdictions have held along similar lines. See, e.g., Falls v. Sporting News Publ'g Co., 834 F.2d 611, 615-16 (6th Cir. 1987) (said about a former writer for the paper, "[t]hose who seem to have reached maturity and are on the downswing are giving way to some of the up-and-coming young writers"); Davis v. Ross, 754 F.2d 80, 85-86 (2nd Cir. 1985) (holding "[the] letter, read in its entirety, seems to imply that she had knowledge of facts supporting her claim of Davis' unacceptable work and personal habits"); Columbus v. Biggio, 76 F. Supp.2d 43, 58 (D. Mass. 1999) ("isn't a team player, he is crooked and can be bought off, he is a wimp and can be replaced"); Habe v. Fort Cherry Sch. Dist., 786 F. Supp. 1216, 1219 (W.D. Penn 1992) ("work record [was] no good").
Although Pruitt's attributed comments in the present case were less specific than the comments at issue in most of the cited Texas cases, we find it noteworthy that Pruitt also suggested that he had "some information on Ziesmer" but refused to reveal what information he had regarding Ziesmer. This statement supports the conclusion that Pruitt's statements implied the existence of undisclosed facts comprising the basis for Pruitt's pronouncement that Ziesmer was incompetent, unqualified, and unfit to be in law enforcement. It is also material that Byrd, who appeared unable to remember the entire conversation word-for-word, was left with the impression that Ziesmer might have been "reported to the Texas Commission on law enforcement standards." See generally Tucker, 806 S.W.2d at 918 (noting that prospective clients had regarded the statements as definite, factual, and serious, and believed that the stockbroker would not work as a stockbroker for another firm). Additionally, according to Byrd's testimony, Pruitt was adamant that Byrd should not hire Ziesmer. Construing the statements as a whole in light of the surrounding circumstances, we determine that Pruitt's comments were capable of a defamatory meaning. See Musser, 723 S.W.2d at 655.
2. Anders
When Ziesmer applied for a job with the Harris County Sheriff's Department, Deputy W. M. Waller, an investigator in the department's Human Resources Bureau, sent an "Employment Information" form to Anders. The questions on the form and Anders's typewritten answers were as follows:
Reason for leaving: Resigned Requested permission to resign at the time of termination
Did applicant give notice: No
Applicant's last position: Arson Investigator
Applicant's attendance record: Poor
Work performance: Unsatisfactory
Did applicant accept supervision? No
Did applicant get along with others? Some what [sic]
Did applicant cause any problems? Yes
If so what type: Undermining supervision to causing low morale and disruption of team effort
Applicant honest and trustworthy? No
Applicant eligible for rehire? No
At trial, Waller testified that when he met with Anders at a restaurant to discuss the evaluation on the form, he could only recall that Anders conveyed Ziesmer was a poor performer and that Ziesmer's attendance was somewhat poor. Waller said that he could not recall other details of the conversation but that he didn't remember Anders saying anything more than what was on the form.
We find that several of the statements contained on the form imply the existence of undisclosed facts capable of being proven true or false. The statements are well within the degree of specificity required in other cases for comments by a supervisor or employer to be actionable. See, e.g., Free, 902 S.W.2d at 54; Tucker, 806 S.W.2d at 920; Bayoud, 555 S.W.2d at 914; Falls, 834 F.2d at 615-16; Davis, 754 F.2d at 85-86; Columbus, 76 F. Supp.2d at 58; Habe, 786 F. Supp. at 1219; McMullen, 589 F. Supp. at 646. Accordingly, we conclude that Anders's comments were capable of a defamatory meaning.
Except for arguing that the words used were not capable of a defamatory meaning based on a strict opinion/fact dichotomy, appellants make no other assertions regarding the legal and factual sufficiency of the evidence to support the jury's findings on defamation. Because we hold that statements made by Pruitt and statements made by Anders were capable of defamatory meanings, we overrule issues five, six, twelve, and thirteen.
C. Absolute Privilege and Release
In issues seven and eight, appellants contend that the evidence conclusively established the absolute privilege and the release of Anders. Appellants specifically assert that the "Personal Inquiry Waiver Authority for Release of Information" form, which Ziesmer signed when applying with the Harris County Sheriff's Department, acts as a consent to Anders's subsequent defamation. Additionally, appellants point to Ziesmer's testimony, where he stated that he knew the Sheriff's Department would probably contact the Fire Marshal's Office and that he expected Anders would say negative things about him. By arguing that the evidence is conclusive on this issue, appellants raise a legal sufficiency of the evidence claim. See Oadra v. Stegall, 871 S.W.2d 882, 892 (Tex.App.-Houston [14th Dist.] 1994, no writ).
The waiver form signed by Ziesmer reads as follows:
I, Ronald W. Ziesmer, do hereby authorize a review of and full disclosure of all records concerning myself to any duly authorized agent of the Harris County Sheriff's Department, whether the said records are of a public, private or confidential nature.
The intent of this authorization is to give my consent for full and complete disclosure of the records of former employers, educational institutions; financial or credit institutions, including records of loans, the records of commercial or retail credit agencies (including credit reports and/or ratings); and other financial statements and records wherever filed; medical and psychiatric treatment and/or consultation, including hospitals, clinics, private practitioners and the U.S. Veteran's Administration; employment and pre-employment records, including background reports, efficiency ratings, complaints filed by or against me and the records and recollections of attorneys at law, or of other counsel whether representing me or another person in any case, either criminal or civil, in which I presently have, or have had an interest.
I understand that any information obtained by a personal history background investigation which is developed directly or indirectly, in whole or in part, upon this release authorization will be considered in determining my suitability for employment by the Harris County Sheriff's Department. I also certify that any person(s) who furnish such information concerning me shall not be held accountable for giving this information; and I do hereby release said person(s) from any and all liability which may be incurred as a result of furnishing such information.
A plaintiff may not recover for a publication to which he has consented or which he has authorized, procured, or invited. Frank B. Hall Co. v. Buck, 678 S.W.2d 612, 617 (Tex.App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.). Stated another way, a consent to the publication of defamatory material is a complete defense to an action for defamation. Restatement (Second) of Torts § 583 (1976); see also Hooper v. Pitney Bowes, Inc., 895 S.W.2d 773, 778 (Tex.App.-Texarkana 1995, writ denied) ("consent is an absolute bar to a defamation action"). "The scope of the immunity is determined by the terms of the consent." 2 F. Harper, F. James, O. Gray, The Law of Torts § 5.17, at 136 (2d ed. 1986). According to the Restatement, it is not necessary that the person defamed understand that the material is defamatory in nature; it is sufficient that he or she either knows the exact language to be used or has reason to know it may be defamatory. Restatement (Second) of Torts § 583 cmt. d.
The appellants rely primarily on the case of Smith v. Holley, 827 S.W.2d 433 (Tex.App.-San Antonio 1992, writ denied), in making their argument regarding release and privilege. In Holley, the court of appeals held that, as a matter of law, the language in the release was broad enough to encompass the allegedly defamatory comments made by a former employer. That case, however, is clearly distinguishable based on the scope of the authorization form. The form in Holley stated that her prospective employer was authorized "to obtain any information from . . . employers . . . or individuals, relating to [her] activities. This information may include, but is not limited to . . . performance, attendance, personal history, disciplinary, arrest, and conviction records." Id. at 435. The release further directed the recipient "to release such information upon request of the bearer." Id. The court interpreted the release as: (1) "worded broadly enough to reach all kinds of defamatory remarks"; (2) "authoriz[ing] contact with a large and diverse group of people"; (3) "contemplat[ing] wide and probing inquiry into every aspect of Holley's background"; and (4) "releas[ing] every kind of lawsuit imaginable." Id. at 439.
In contrast, the waiver form at issue in the present case, set out in detail above, specifically covered only the release of records, not the much broader "obtain any information" as was the case in Holley. Although the waiver form references obtaining information "by a personal history background investigation," the only method of obtaining such information that it specifies is the release of records. In short, the waiver form signed by Ziesmer was not nearly so comprehensive as the release signed by Holley. As the court stated in Holley:
Consent does not necessarily give a former employer license to tell the world everything he knows about the plaintiff for an unlimited time, unless that is a reasonable interpretation of the consent. The extent of the consent does not exceed what is reasonable in light of the language or circumstances that created it.
Id. The court further noted that: "Holley did not merely authorize prior employers to let the USMS review documents in her file [;] she authorized personal contact with individuals. . . ." Id. at 440. This is not true in the present case. The appellants' reliance on the Holley case is misplaced.
Appellants additionally argue that Ziesmer's testimony supports the conclusion that the waiver form was effective as a consent to defamation by Anders. Ziesmer testified that he knew the Sheriff's Department would probably be contacting all of his former employers, that the most likely person they would talk to at the Fire Marshal's Office would be Anders, and that he expected Anders would say negative things about him. However, such testimony does not change the scope of a waiver form specifically limited to the release of records. The fact that Ziesmer thought the Sheriff's Office would contact Anders and he expected Anders to say negative things about him does not somehow convert a release of records to a release of defamatory comments in later conversations occurring after the signing of the release or for documents created after the release.
Because the waiver form signed by Ziesmer consented only to the release of records and not the making of defamatory statements or the creation of new records, we find that the evidence does not conclusively establish the absolute privilege or the release of Anders. Accordingly, appellants' seventh and eighth issues are overruled.
V. Tortious Interference
In issues sixteen and seventeen, appellants contend that the evidence is legally and factually insufficient to support the jury's finding that Pruitt tortiously interfered with Ziesmer's prospective business relations. The jury was charged on this cause of action as follows:
QUESTION NO. 15
Did J.J. Pruitt wrongfully interfere with Ronald Ziesmer's prospective business relations and/or efforts to obtain employment with Friendswood?
As used in this question interference occurred if —
a. There was a reasonable probability that Ronald W. Ziesmer would have entered into a business relationship with Friendswood, and
b. Defendant Pruitt intentionally and with "legal malice" prevented the business relationship from occurring with the purpose of harming Ronald W. Ziesmer.
"LEGAL MALICE" is defined as an unlawful act done intentionally and without justification or excuse.
See generally Grace v. Zimmerman, 853 S.W.2d 92, 95 (Tex.App.-Houston [14th Dist.] 1993, no writ) (providing elements for interference with prospective business relationship).
The Texas Supreme Court now requires that to establish liability for interference with a prospective contractual or business relation a plaintiff must prove that it was harmed by the defendant's conduct and that the conduct was either independently tortious or unlawful. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 713 (Tex. 2001). In the present case, this element would be fulfilled by the jury's finding that Pruitt defamed Ziesmer by the same language that he used to interfere in the prospective business relationship.
A. Delay in Hiring
Specifically, appellants assert that because Ziesmer was not prevented from eventually securing a paying job with the Friendswood Fire Marshal's Office, Pruitt's conduct could not have amounted to tortious interference in the prospective business relations between Ziesmer and the department. However, a claim of tortious interference with prospective business relations can be based on interference that causes a delay in the consummation of a relationship. See Levine v. First Nat'l Bank of Eagle Pass, 706 S.W.2d 749, 750-51 (Tex.App.-San Antonio) (holding that plaintiff alleged the elements necessary to state a claim for tortious interference with prospective business relations when she alleged damages from a delay in obtaining a loan caused by an erroneous, negative credit report), rev'd on other grounds, 721 S.W.2d 287 (Tex. 1986); see also Niemeyer v. Tana Oil Gas Corp., 39 S.W.3d 380, 389 (Tex.App.-Austin 2001, pet. denied) (plaintiff claimed tortious interference with prospective business relations for defendant's filing of suit to delay sale of plaintiff's assets); Hughes v. Houston Northwest Med. Ctr, Inc., 680 S.W.2d 838, 841 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.) (holding that plaintiff stated a claim for tortious interference with contract by claiming the interference caused a delay in performance); Kensington Land Co. v. Zelnick, 95 Ohio Misc.2d 45, 60-61, 706 N.E.2d 1279, 1289-90 (Ohio Com. Pl. 1998) (holding that action existed for damages caused by a delay of development project resulting from interference with actual or prospective business relationship).
Ziesmer was not hired by the fire marshal's office until five to six weeks after the alleged tortious interference occurred in the May 13, 1997, conversations between Pruitt and Terry Byrd, the Friendswood Fire Marshal. And then, Ziesmer was hired only in a nonpaid, part-time capacity. During the direct examination of Byrd, the following exchange occurred:
Q. Okay. Had it not been for the conversation and statements that J.J. Pruitt made to you in 1997, summer, 97, and the threats he made, would you have hired Ron Ziesmer sooner?
A. I would have liked to have hired him away from the building department over as a part-time fire marshal at that time, yes, sir.
Q. What caused you not to do that?
A. That conversation, May 13th.
Byrd also stated: "That conversation essentially put everything on hold as far as Ronnie getting a job in my office at that time." Additionally, Byrd testified that he might have created the full-time, paid position, which Ziesmer eventually filled, earlier if not for the conversations with Pruitt. We find that this testimony, taken together with the testimony discussed above regarding the substance of the May 13 conversations, sufficiently supports the jury's conclusion that Pruitt interfered with the prospective business relations between Ziesmer and the Friendswood Fire Marshal's Office.
B. Familial Relationship
Appellants next contend that the communications between Pruitt and Byrd cannot form the basis of a tortious interference claim because Pruitt is Byrd's uncle. Appellants cite John Masek Corp. v. Davis, 848 S.W.2d 170, 175 (Tex.App.-Houston [1st Dist.] 1992, writ denied), for the proposition that communications between family members are confidential and thus cannot support a tortious interference claim. Although dicta in John Masek does describe familial communication as confidential, the actual holding is based on the agency relationship between the two people involved. See id. at 175. Indeed, the case has been cited for the proposition that an agent cannot be said to interfere with the contract of its principal, absent evidence that the agent was acting in his or her personal interest. See Holloway v. Skinner, 898 S.W.2d 793, 802 (Tex. 1995) (Hecht, J., concurring); Massey v. Houston Baptist Univ., 902 S.W.2d 81, 85 (Tex.App.-Houston [1st Dist.] 1995, writ denied).
It is true in Texas that a person who is in a confidential relationship with a party to a contract is privileged to induce the breach of such contract. See McDonald v. Trammell, 163 Tex. 352, 354-55, 356 S.W.2d 143, 145 (1962); Russell v. Edgewood I.S.D., 406 S.W.2d 249, 252 (Tex.App.-San Antonio 1966, writ ref'd n.r.e.). Except for John Masek, appellants do not cite any other cases in support of their contention that the uncle-nephew relationship is a confidential one. The cases cited in John Masek do not support the conclusion that a family relationship of this nature by itself proves the existence of a confidential relationship. In McDonald, 356 S.W.2d 143, which is cited in John Masek, the court held that a wife could not be held liable for persuading her husband to not carry out an unenforceable contract. Id. at 145. The husband and wife relationship is a special one under the law, a fact which is exhibited by a testimonial privilege, among other things. See id. (explaining uniqueness of the spousal relationship); Tex.R.Evid. 504 (husband-wife privilege). Non-spousal family relationships are not afforded testimonial immunity. See Diehl v. State, 698 S.W.2d 712, 719 (Tex.App.-Houston [1st Dist.] 1985, pet. ref'd). In Tinkle v. McGraw, 644 F. Supp. 138 (E.D.Tex. 1986), also cited in John Masek, the court found that a confidential relationship existed between a nephew and his aunts. Id. at 140. However, the opinion takes pains to point out that the nephew had acted as "attorney and counsel" during the negotiations for the contract he was said to have interfered with and that he had represented the aunts in several past legal matters. See id.; see also Rankin v. Naftalis, 557 S.W.2d 940, 946 n. 5 (Tex. 1977) (stating that "[c]lose . . . familial relationships have occasionally formed the evidentiary basis for jury findings that in fact a special confidential relationship existed"); Hamblet v. Coveney, 714 S.W.2d 126, 129 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.) (examining closeness of niece with aunt's family before finding a confidential relationship existed); Rumfield v. Rumfield, 324 S.W.2d 304, 306 (Tex.App.-Amarillo 1959, writ ref'd n.r.e.) (looking beyond existence of uncle-nephew relationship to other factors evidencing confidential relationship, including fact that nephew was authorized to sign checks on uncle's bank account).
The McDonald court further noted that "parents should have an absolute right to advise their infant children." 356 S.W.2d at 145 (emphasis added).
To the extent John Masek stands for the proposition that the existence of an uncle-nephew relationship is, without more, conclusive proof of a confidential relationship, we disagree with the opinion. Although such a relationship may be some evidence regarding a confidential relationship, it is far from conclusive on the issue. Appellants make no other arguments based on any alleged confidential relationship.
The fact that Byrd and Pruitt had at least two conversations about Ziesmer does not establish a confidential relationship between them. Indeed, Byrd stated that, during the conversations, Pruitt got agitated, raised his voice, was intimidating, accused him [Byrd] of lying, and threatened to "take care of" both Byrd and Ziesmer.
We find that the evidence was legally and factually sufficient to support the verdict regarding tortious interference. Accordingly, we overrule issues sixteen and seventeen.
C. Tortious Interference Actual Damages
In issues eighteen and nineteen, appellants contend that the evidence is legally and factually insufficient to support the jury's award of $10,000 in actual damages against Pruitt for tortious interference in the contractual relations between Ziesmer and the Friendswood Fire Marshal's Office. A plaintiff in an action for tortious interference must prove that he or she suffered actual damages. Anderson, Greenwood Co. v. Martin, 44 S.W.3d 200, 219 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (interference with existing contract case); Grace, 853 S.W.2d at 95 (interference with prospective business relations case). The jury should attempt to put the plaintiff in the same economic position he or she would have been in had the contract been entered. See Martin, 44 S.W.3d 219. In calculating damages, the jury in the present case was instructed to include amounts for "lost income and benefits in the past only."
The jury likewise awarded $10,000 in damages against Anders for tortious interference, but the claim was subsequently denied by the trial court when it granted the defendant's motion for j.n.o.v. on that issue. This claim is not addressed by either party on appeal.
Byrd testified that he hired Ziesmer as a full-time, paid, assistant fire marshal in December 1998, after he created the job by consolidating three part-time positions. Byrd further testified that he could have created the position earlier if he had felt comfortable with Ziesmer, but that his conversation with Pruitt had made him uncomfortable with hiring Ziesmer in a full-time position. Ziesmer testified that he is currently paid $2,200 a month as an assistant fire marshal for Friendswood. He further testified that the job he had at the time he applied for the assistant fire marshal position, as a building inspector, paid $8 an hour for about 20 hours a week.
We find that there is more than a scintilla of evidence to support the jury's conclusion that actual damages resulted from Pruitt's tortious interference. See Minn. Mining, 953 S.W.2d at 738. We also find that the jury's determination as to the amount of damages is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Ortiz, 917 S.W.2d at 772. Accordingly, we find the evidence legally and factually sufficient and overrule issues eighteen and nineteen.
VI. Defamation Actual Damages
In issues nine and fourteen, appellants attack the factual sufficiency of the evidence to support the jury's award of actual damages resulting from defamation. In issues ten and fifteen, appellants challenge the defamation damages as excessive. These two sets of issues are really arguing the same point, because the standard of review for an excessive damages complaint is the factual sufficiency of the evidence. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). The jury awarded $365,000 for defamation by Pruitt and $185,000 for defamation by Anders.
Generally speaking, while the amount of damages to be awarded in defamation cases rests largely in the discretion of the jury, the award is still subject to review for excessiveness. Frank B. Hall Co. v. Buck, 678 S.W.2d 612, 630 (Tex.App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.). However, this rule is obviated when the plaintiff proves defamation per se. See Minyard Food Stores, Inc. v. Goodman, 50 S.W.3d 131, 143 (Tex.App.-Fort Worth 2001, pet. granted). Defamation per se means the written or printed words are so obviously hurtful to the person aggrieved that they require no proof of their injurious character to make them actionable. See Knox v. Taylor, 992 S.W.2d 40, 50 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Defamation is actionable per se if it tends to injure a person in his office, business, profession, or occupation. See id.; Reeves v. W. Co. of N. Am., 867 S.W.2d 385, 396 (Tex.App.-San Antonio 1993, writ denied). Pruitt's and Anders's comments constituted defamation per se because they concerned Ziesmer's work performance and qualifications in his chosen profession, and the comments were made to others in the same field.
Damages generally recoverable for defamation include compensation for injuries to reputation or character, mental anguish, shame, and humiliation, which are personal in nature and incapable of monetary valuation. See Knox, 992 S.W.2d at 60 (referencing damages for injury to reputation or character, mental anguish, "and other wrongs . . . incapable of money valuation"); Williamson v. New Times, Inc., 980 S.W.2d 706, 710-11 (Tex.App.-Fort Worth 1998, no pet.) (referencing humiliation). In regard to defamation per se, the law presumes actual damages and no independent proof of damages to reputation or of mental anguish is required. See Leyendecker Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984); Minyard Food Stores, 50 S.W.3d at 143.
Mental anguish is typically defined as potentially including shame and humiliation among a variety of other emotional responses. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995).
Because we find that the evidence supports the conclusion that Pruitt and Anders committed defamation per se, we conclude that the award of damages for injury to reputation, mental anguish, shame, and humiliation were not excessive but were within the jury's discretion. See Minyard Food Stores, 50 S.W.3d at 143; Knox, 992 S.W.2d at 60.
Appellants further argue that the jury: (1) included items related to Ziesmer's termination in assessing defamation damages; (2) responded to Ziesmer's counsel's closing argument by inflating the verdict to "send messages"; and (3) awarded a disproportionately large amount against Pruitt. In the jury charge questions at issue, the court specifically limited the calculation of damages to those "proximately resulting from the defamatory statements, if any." The defamatory statements of both Pruitt and Anders came after Ziesmer's termination. Absent evidence to the contrary, we presume that the jury followed the dictates of the jury charge. See Stevens v. Nat'l Educ. Ctrs., Inc., 990 S.W.2d 374, 382 (Tex.App.-Houston [14th Dist.] 1999) (Fowler, J., dissenting) (expressly presuming jury followed the charge's direction), pet. denied, 11 S.W.3d 185 (Tex. 2000); Tucker v. Terminex Intern. Co., 975 S.W.2d 797, 800 (Tex.App.-Corpus Christi 1998, pet. denied) (noting that court's instructions become "the law of the case" and must be relied on by the jury); Herrera v. Balmorhea Feeders, Inc., 539 S.W.2d 84, 87 (Tex.App.-El Paso 1976, writ ref'd n.r.e.) ("we presume that the jury properly followed the Court's charge"). Appellants cite no evidence that the jury did not follow the charge, other than to suggest that the sheer amount of the verdict indicates that they did not. Given the jury's wide discretion in such matters we decline to adopt appellants' reasoning.
Regarding the complaints based on the allegedly improper jury argument, there is no indication in the record that appellants timely objected to such argument at trial. These complaints are therefore waived. See Tex.R.App.P. 33.1(a) (a timely and sufficiently specific request, objection, or motion is required to preserve a complaint for appellate review); Wooten v. S. Pac. Transp. Co., 928 S.W.2d 76, 80 (Tex.App.-Houston [14th Dist.] 1995, no writ) (allegation of improper jury argument must be preserved for appellate review by such as objection, motion to instruct, or motion for mistrial).
Additionally, appellants argue that the discrepancy in the amount of actual damages for defamation awarded against Pruitt ($365,000) compared to Anders ($185,000) demonstrates that the verdict was the result of passion or prejudice. We disagree. The evidence contains several factors on which the jury may have based a larger award against Pruitt. For example, Pruitt was the Harris County Fire Marshal, and the jury could have concluded that it was more damaging to Ziesmer's reputation to be defamed by the fire marshal himself than it was to be defamed by Anders, who worked under Pruitt. According to Terry Byrd, it was Pruitt who initiated the communications regarding Ziesmer's job performance, while Waller testified that he initially contacted Anders on that issue. It is reasonable to conclude that Ziesmer could have suffered greater shame, mental anguish, and damage to his reputation by the fact that Pruitt initiated the conversation in which the defamation occurred. Given the discretion afforded the jury in calculating defamation damages, the discrepancy in the amount of actual damages in the present case is supported by the evidence and does not appear to be the result of passion or prejudice. See Frank B. Hall Co., 678 S.W.2d at 630.
Because we have found the evidence sufficient to support the jury's assessment of defamation damages, we overrule issues nine, ten, fourteen, and fifteen.
VII. Exemplary Damages
In their eleventh and twentieth issues, appellants contend that the awards of exemplary damages were excessive. The jury awarded exemplary damages against Anders in the amount of $100,000 (question no. 11) and against Pruitt in the amount of $250,000 (question no. 20). Each award was phrased to allow the jury to award damages based on the conduct found establishing defamation "and/or" tortious interference.
Appellants raise several specific arguments under these issues. First, appellants assert that if we find that any of the compensatory damages awards were excessive then this necessarily calls into question the factual sufficiency of the evidence supporting the exemplary damages award, citing Gunn Infinity, Inc. v. O'Byrne, 996 S.W.2d 854, 861 (Tex. 1999). Because we have not found the compensatory damages awards to be excessive, this argument is moot.
Second, appellants contend that because of the phrasing of the exemplary damages questions, it is impossible to know whether the jury based its award against Anders solely on its findings of defamation rather than on tortious interference. The trial court granted a j.n.o.v., effectively throwing out on the tortious interference claim against Anders. However, any complaint regarding a jury charge question, definition, or instruction, based on any defect, omission, or fault in pleading, is waived unless specifically included in the objections to the jury charge. Tex.R.Civ.P. 274. Appellants fail to cite us to any place in the record where they objected to the manner of submission of the exemplary damages issues. Nor does our review of the record reveal any such objection. The argument is therefore waived. See Hawthorne v. Guenther, 917 S.W.2d 924, 935 (Tex.App.-Beaumont 1996, pet. denied) (court found waiver where party failed to object to allegedly improper conditioning of exemplary damages question); Transam. Title Ins. Co. v. San Benito Bank Trust Co., 756 S.W.2d 772, 776 (Tex.App.-Corpus Christi 1988) (court found waiver where party failed to object that exemplary damages issue was not specifically conditioned on existence of tort and not contract damages), pet. granted, judgm't vacated w.r.m., 773 S.W.2d 13 (Tex. 1989).
Lastly, appellants argue that the sheer amount of the verdict against Pruitt ($250,000 versus $100,000 for Anders), when viewed against the evidence in the record, establishes that the verdict on exemplary damages was the result of passion or prejudice in the jury and not the evidence. This argument calls into question both the general evidence regarding exemplary damages and the existence of any evidence to explain the discrepancy between the two awards.
The jury was instructed that it could consider the following factors in determining the amount of exemplary damages to be awarded:
(1) the nature of the wrong;
(2) the frequency of the wrongs committed;
(3) the character of the conduct involved
(4) the degree of culpability of the wrongdoer;
(5) the situation and sensibilities of the parties concerned;
(6) the extent to which conduct offends a public sense of justice and propriety;
(7) attorney's fees of plaintiff and other damages suffered by plaintiff;
(8) the motive of the wrongdoer;
(9) the size of the award needed to deter similar wrongs in the future; and
(10) the net worth of the wrongdoer.
See Nationwide Mut. Ins. Co. v. Crowe, 857 S.W.2d 644, 652 (Tex.App.-Houston [14th Dist.]) (containing seven of these factors and citing Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981)), pet. granted, judgm't vacated w.r.m., 863 S.W.2d 462 (Tex. 1993) (per curiam).
Appellants make no complaint regarding the propriety of the factors submitted to the jury.
Defamation of a person's reputation to others in the same profession is certainly a very serious and personally harmful tort and one that could be deemed particularly offensive to the public sense of justice and propriety. Indeed, the jury found in response to questions nine and nineteen that Pruitt and Ziesmer each acted with malice toward Ziesmer, and these findings go unchallenged on appeal. We find that the evidence, discussed in detail earlier in this opinion, is sufficient to support a determination that the nature of the wrong, the character of the conduct, the degree of culpability, and the situation and sensibilities of the parties all support the exemplary damages awards. Additionally, under the circumstances, the jury may well have believed that exemplary damages were necessary to deter the commission of such torts in the future. There was testimony suggesting that the motive of Pruitt and Anders was to prevent Ziesmer from obtaining a job in his chosen field. Again, this is a particularly personal and damaging type of behavior. The parties do not cite, and we have not discovered, evidence relating to the net worth of the defendants.
The only factor running clearly contrary to the verdict on exemplary damages is the frequency of the wrongs committed. Although there was evidence that Pruitt had been ruthless in treating others in the past, there is no direct evidence that the specific tortious conduct in the present case was repeated more than twice by each of the appellants. However, the majority of the other factors support the award of exemplary damages.
Terry Byrd testified that he had two conversations with Pruitt in which Pruitt denigrated Ziesmer. Deputy Waller testified that he received a form from Anders and spoke to him in person regarding Ziesmer.
Further, the discrepancy between the exemplary damages awarded was justified by the evidence, which supports a determination that Pruitt's conduct was more egregious than that of Anders. Terry Byrd testified regarding a certain stridence evident in Pruitt's defaming of Ziesmer, but Deputy Waller's testimony made Anders's statements appear tame in comparison. Additionally, according to Terry Byrd, it was Pruitt who initiated the communications regarding Ziesmer's job performance, while Waller testified that he initially contacted Anders on that issue. Lastly, as appellants themselves note in their brief, Anders's conduct was not alleged to have prevented or delayed Ziesmer in obtaining a job, but Pruitt's conduct did just that.
The difference in the amount of the exemplary damages awards is supported by the evidence and does not appear to be the result of passion or prejudice. Based on the foregoing, we overrule appellants' eleventh and twentieth issues.
The trial court's judgment is affirmed.