Raymond Espinosa v. Aaron's Rents, Inc. , 2016 Tex. App. LEXIS 423 ( 2016 )

Opinion issued January 14, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00843-CV
———————————
RAYMOND ESPINOSA, Appellant
V.
AARON’S RENTS, INC., Appellee
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Case No. 2010-70720
OPINION
In this employment-related case, a former employee appeals the trial court’s
summary judgment on the employee’s suit for defamation and related claims
against his former employer. Raymond Espinosa worked as a manager at the
Monroe, Texas store of Aaron’s Rents, Inc. Aaron’s leases and sells home
furnishings, appliances, and electronics.
A month after Espinosa left employment with Aaron’s, the store’s personnel
discovered that merchandise was missing from its inventory. Aaron’s linked
fraudulent rental records for part of that inventory to Espinosa’s employee
identification number. Aaron’s regional office in Houston conducted an internal
investigation; Aaron’s then reported the suspected theft to the Houston Police
Department. The Harris County District Attorney’s Office conducted its own
investigation and sought an indictment from a Harris County grand jury. The
grand jury declined to indict Espinosa.
Espinosa then sued Aaron’s for malicious prosecution, intentional infliction
of emotional distress, defamation, and an unpaid performance bonus, alleging that
Aaron’s had falsely accused him of criminal conduct. Aaron’s moved for
summary judgment, contending that: (1) Espinosa is judicially estopped from
asserting his claims because he failed to disclose them as contingent assets in his
Chapter 7 bankruptcy case; (2) Aaron’s did not initiate or procure Espinosa’s
prosecution; (3) any statements that Aaron’s made to its employees about Espinosa
occurred during the course of its internal investigation into suspected wrongdoing,
entitling Aaron’s to the qualified privilege that attaches to such communications;
(4) Aaron’s report of suspected wrongdoing to the police is similarly subject to a
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qualified privilege that bars Espinosa’s tort claims; (5) no evidence raises a fact
issue that Aaron’s acted with malice in making any statement alleged to be
defamatory; and (6) no evidence supports Espinosa’s fraud and breach of fiduciary
duty claims against Aaron’s based on its failure to pay Espinosa a final quarterly
bonus.
Finding no error, we affirm.
BACKGROUND
Aaron’s employed Espinosa as general manager of its Monroe store for most
of the period between October 2002 and January 2006. In that position, Espinosa
was responsible for ensuring that store employees complied with company
policies. Espinosa reported to Aaron’s Regional Manager in Houston, Roger
Hooker. During the last quarter of 2005, Aaron’s planned to terminate Espinosa’s
employment based on poor performance. Before it took that action, in early
January 2006, Espinosa called Hooker and told him that he would not be returning
to work. Espinosa asked Hooker if he would receive his final paycheck and
quarterly bonus; Hooker told Espinosa that he would.
Aaron’s paid its store managers quarterly bonuses approximately 45 days
after the quarter’s close. The bonus for each store manager was a percentage based
on the store’s net revenues and net profit. According to policy, Aaron’s deducted
any missing cash or merchandise from any bonus amount paid to its managers.
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Following Espinosa’s departure, Aaron’s reviewed the Monroe store’s rental
agreements and it found records showing that some customer’s accounts had gone
unpaid for months. In February 2006, Aaron’s sent a truck to the home of one of
those customers, Jimmie Norris, to repossess the rented merchandise. The Aaron’s
driver informed Norris that, according to Aaron’s records, Norris had rented a
keyboard, three refrigerators, a washer/dryer, a big screen television, and a home
theater system from Aaron’s. Norris responded that he had never signed a rental
contract to rent anything from Aaron’s.
The store’s internal investigation
Aaron’s assigned its Vice President of Internal Security, Danny Walker, and
its Legal Counsel for Southwest Operations, Nicole Lee, to conduct an internal
investigation of the incident. During the investigation, they interviewed Norris,
Monroe store employees Tina Duhon, Dawnisha Collier, William Rogers, and
James Hebert, and Customer Accounts Manager Joe Mermella.
Norris also provided a handwritten statement explaining his interactions with
Espinosa, whom he had met at a gym a few years before. About a year after they
became acquainted, Norris ran into Espinosa at the gym and told him he was
interested in buying some leather furniture and a big screen television. Espinosa
responded that the store did not have a television available at the time, but that he
would keep an eye out for one. The next time Norris saw Espinosa at the gym,
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Espinosa told him he had a big screen television that he would sell to Norris for
cash. In a later telephone conversation, Norris agreed to pay $400 for a 52-inch
television. Espinosa told him not to come to the store; he would have the
television delivered to Norris’s home.
Espinosa later called Norris and told him that a nearby Aaron’s store was
having a tent sale that included leather furniture. Norris found the prices too high
and left without buying anything. Soon afterward, Espinosa called Norris and told
him that he had a leather sofa, chair and ottoman available. Norris and Espinosa
negotiated a total price of $1200 for the television and the furniture. The next
evening, an Aaron’s truck delivered the items, and Norris gave the driver a $1200
check payable to Aaron’s Rents.
After more than a year, Norris contacted Espinosa about buying a washer,
dryer, and refrigerator for his new house. Espinosa called Norris that same week
and offered the items for somewhere between $500 and $700 cash. Norris
responded that he was willing to pay that amount if the appliances were in
acceptable condition. Espinosa delivered to Norris a refrigerator with no shelves
and a washer/dryer with no hoses or cords, for which Norris paid Espinosa $500
cash.
Documentation prepared under Espinosa’s code number reflects that, instead
of purchasing it, Norris leased merchandise similar to the items he claimed to have
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purchased. Espinosa admitted that the documentation appeared false, and he
agreed that “somebody created phony information about this transaction”; the
documentation was prepared using Espinosa’s employee number. Hooker
informed the DA’s Office that those items were written off as “Regional Manager
Shrink,” meaning that none was ever sold as retail through Aaron’s store system.
Aaron’s performed an audit as part of its internal investigation. It
discovered that, in addition to the documentation relating to Norris, approximately
ten other lease agreements prepared at the store over the past 18 months appeared
to be false. Aaron’s attempted to contact the customers whose names appeared on
the suspect accounts. The customers Aaron’s located denied renting the
merchandise identified on the leases; much of the information on the leases,
including addresses, social security numbers, and driver’s license numbers, was
false. Further, the delivery records did not contain any information for the
apparently fraudulent transactions. The audit revealed that the store records did
not account for approximately 30 missing items, including washers and dryers,
televisions, computers, home stereo systems, and furniture; the aggregate amount
of these items was approximately $63,556.32.
In interviewing the other store employees, Aaron’s learned that:
 Duhon’s brother’s account contained a rental agreement for a big-
screen television which, he confirmed, he had not rented. When
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confronted with the information, Espinosa told Duhon he knew about
the television and would have money dropped off to pay for it.
 According to Duhon, the signature and initials on a false rental
agreement appeared to have been made by Espinosa. Duhon also
stated that the accounts with false rental agreements were accounts
handled by Espinosa and he would tell the staff to let him handle
those accounts.
 Duhon created a lease folder for Norris and three other customers at
Espinosa’s request, but Espinosa told her not to process them because
they were “related to him and were good,” and that he would take
their payments directly.
 Certain customers told Duhon that Espinosa took their lease payments
directly, and Espinosa handled a number of transactions in violation
of company policy.
 According to Collier, Espinosa contacted her shortly after ending his
employment and asked her to help facilitate a theft of Aaron’s
merchandise by filling out an order form with false information and
scheduling the products to be delivered. Espinosa asked her what she
wanted out of the deal—money or product. Collier refused the
proposal.
 One customer contacted by Aaron’s, whose name appeared on a lease
file, had not rented or bought anything from the store, and when she
had gone in to browse, a store employee asked her to write her name
and address on a form.
After discovering that $63,556.32 in merchandise was missing from the
Monroe store’s inventory, Aaron’s did not pay Espinosa a bonus for the last
quarter of 2005. Espinosa filed a complaint with the Texas Workplace
Commission, explaining on the form that he was told he would not receive the
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bonus because he had too many nonpaying accounts for which, as manager, he had
been responsible.
The criminal investigation and prosecution
Lee contacted the Houston Police Department regarding the suspected theft.
HPD Officer Hernandez met with Lee at the Monroe store.
Lee reported that Aaron’s believed Espinosa had fraudulently appropriated
property belonging to Aaron’s by filing accounts under actual customer names
with fictitious information. Lee informed Officer Hernandez Aaron’s had
conducted an audit of store records going back to September 2005 and there was
unaccounted merchandise worth a total of $63,556.32.
HPD assigned Officer Chapman to conduct a follow-up investigation. Lee
provided him with copies of rental agreements believed to be false. Aaron’s
reported it had attempted to contact these customers and the ones who were
reached denied either renting or purchasing the merchandise listed on their
agreements except for Norris, who had purchased merchandise directly from
Espinosa but was listed as renting several items he did not rent. Aaron’s also
provided Officer Chapman with a partial listing of the customer accounts and
merchandise involved.
When he attempted to contact the numbers in the false rental agreements,
Officer Chapman discovered that many contained bad numbers, addresses of
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motels, and duplicate addresses. Officer Chapman reported to the DA’s Office that
Aaron’s records verified $31,091.16 in missing merchandise listed in false rental
agreements. Officer Chapman also reached a customer who stated that he had
borrowed a large television from Espinosa to watch election returns and then later
purchased the television from Espinosa, but had never rented anything from
Aaron’s. Espinosa previously had told Hooker that he had loaned a television to a
constable but had never gotten it back.
Both the HPD and the DA’s investigation unit reviewed Aaron’s records
relating to the transactions and interviewed Hooker, Lee, Walker, Aaron’s
personnel, and customers, including Norris, whose names appeared on the false
rental agreements. The information collected corroborated that collected in
Aaron’s internal investigation. The DA’s office acknowledged some difficulty in
tracing the missing items and ascertaining their value. In July 2006, following his
investigation, Officer Chapman filed criminal charges against Espinosa, and the
DA’s office presented the grand jury with a proposed indictment charging
Espinosa with felony theft of merchandise with an approximate value of $20,100.
The grand jury ultimately presented a “no bill” to the charges against Espinosa,
and the charges were dismissed in August 2008.
The assistant district attorney who presented the case averred that the DA’s
office made the decision to prosecute Espinosa for theft based on its own
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independent investigation of the case and that Aaron’s did not participate in the
decision to charge or prosecute Espinosa. The decision not to refile a felony theft
case against Espinosa comported with the DA’s office policy to follow the decision
of the grand jury, even if the prosecuting attorney disagreed with the decision. The
assistant district attorney nevertheless stated that Espinosa had committed theft
based on his investigation and the evidence that he reviewed.
Espinosa’s bankruptcy and course of proceedings in this lawsuit
On October 20, 2010, Espinosa petitioned a federal bankruptcy court in the
Southern District of Texas for bankruptcy relief under Chapter 7 of the Bankruptcy
Code. Espinosa did not disclose his claims against Aaron’s in the proceeding. He
responded “none” to the question asking him to list “[o]ther contingent and
unliquidated claims of any nature.”
Six days later, through different counsel, Espinosa filed his original petition
in this lawsuit. The original petition named Norris as the sole defendant, but six
weeks later, Espinosa amended his petition to add Aaron’s as a defendant.
Espinosa did not amend his bankruptcy filings to disclose the state court lawsuit as
a contingent asset before January 31, 2011, when the bankruptcy court granted a
discharge to Espinosa and closed the bankruptcy case.
Aaron’s moved for summary judgment in this case on December 13, 2013;
in its motion, Aaron’s contended that Espinosa was estopped from bringing this
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suit because Espinosa had failed to disclose it as an asset in the bankruptcy
proceeding.
After reviewing the summary-judgment motion, Espinosa moved to reopen
his Chapter 7 proceeding for the purpose of disclosing this lawsuit in an amended
schedule. The bankruptcy court re-opened the proceeding, granted leave to file the
amendment, and appointed a trustee. The trustee, in turn, authorized Espinosa’s
attorney to pursue this suit on behalf of the bankruptcy estate, and Espinosa
informed the trial court of these developments in his summary-judgment response.
After the state trial court granted summary judgment, the trustee notified the
bankruptcy court of that development, and the bankruptcy court closed the case
again.
DISCUSSION
On appeal, Espinosa challenges the trial court’s summary judgment,
contending that: (1) he is not judicially estopped from bringing this suit, because
the bankruptcy court allowed him to amend his schedule of assets; (2) some
evidence supports his claim for malicious prosecution, defamation, and intentional
infliction of emotional distress; and (3) Aaron’s failure to pay him his quarterly
bonus as promised is evidence of fraud and breach of fiduciary duty.
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I. Standard of Review
We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary
judgment without specifying the grounds for granting the motion, we must uphold
the trial court’s judgment if any one of the grounds is meritorious. Beverick v.
Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005,
pet. denied).
Aaron’s motion requests summary judgment on both traditional and no-
evidence grounds. When reviewing a summary judgment motion, we must (1) take
as true all evidence favorable to the nonmovant and (2) indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citing Provident Life & Accid.
Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)).
In a traditional summary judgment motion, the movant has the burden to
show that no genuine issue of material fact exists and that the trial court should
grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick
v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The
defendant moving for traditional summary judgment must conclusively negate at
least one essential element of each of the plaintiff’s causes of action or
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conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc.
v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
After adequate time for discovery, a party may move for a no-evidence
summary judgment on the ground that no evidence exists to support one or more
essential elements of a claim or defense on which the opposing party would have
the burden of proof at trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d
517, 523–24 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The trial court
must grant the motion unless the nonmovant produces summary judgment
evidence raising a genuine issue of material fact. Id. More than a scintilla of
evidence exists if the evidence “would allow reasonable and fair-minded people to
differ in their conclusions.” Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d
167, 172 (Tex. 2003). To defeat a no-evidence motion for summary judgment, the
respondent is not required to marshal its proof; its response need only point out
evidence that raises a fact issue on the challenged elements. TEX. R. CIV. P.
166a(i) cmt.
II. Judicial Estoppel
Espinosa challenges Aaron’s contention that Espinosa is judicially estopped
from prosecuting this lawsuit. Judicial estoppel is an equitable doctrine that
applies when a party intentionally asserts contradictory facts or legal positions in
one forum to obtain an unfair advantage in another. Tow v. Pagano, 312 S.W.3d
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751, 756 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing In re Coastal
Plains, Inc., 179 F.3d 197, 206 (5th Cir.1999)).
Because the estoppel issue here involves a bankruptcy proceeding, we apply
federal law to determine whether Aaron’s proved as a matter of law that judicial
estoppel bars Espinosa’s lawsuit against Aaron’s. See id. Accordingly, as an
affirmative defense to this suit, Aaron’s was required to conclusively establish that
(1) Espinosa asserted a legal position in this state court proceeding that is clearly
inconsistent with his prior position in the bankruptcy court; (2) a court accepted the
prior position; and (3) the non-disclosure was intentional and not inadvertent. See
Bailey v. Barnhart Interest, Inc., 287 S.W.3d 906, 911 (Tex. App.—Houston [14th
Dist.] 2009, no pet.) (citing In re Costal Plains, 179 F.3d at 206).
Aaron’s did not bear its burden to demonstrate that Espinosa is estopped
from prosecuting this case as a matter of law. By the time the trial court ruled on
the summary-judgment motion, the bankruptcy court had granted Espinosa’s
motion to reopen his Chapter 7 case and had permitted Espinosa to amend his
filings to disclose the state lawsuit as a contingent asset. Aaron’s has not identified
any case in which a court has applied judicial estoppel under the same
circumstances, and we find none. We decline to second-guess the bankruptcy
court’s rulings reopening the case and accepting the disclosure. Because the
bankruptcy court modified its discharge and permitted the amended disclosure,
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Aaron’s judicial estoppel argument cannot support the trial court’s summary
judgment; the bankruptcy court no longer acted in reliance on the inconsistent
position. See id.
III. Malicious Prosecution
Espinosa’s claim for malicious prosecution requires proof that (1) a criminal
prosecution was commenced against him, (2) Aaron’s initiated or procured the
prosecution, (3) the prosecution terminated in Espinosa’s favor, (4) he is innocent
of the charges, (5) Aaron’s lacked probable cause to initiate the prosecution,
(6) Aaron’s acted with malice, and (7) Espinosa suffered damages. See Kroger
Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 792 n.3 (Tex. 2006) (citing Richey v.
Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997)); Soon Phat, L.P. v.
Alvarado, 396 S.W.3d 78, 92 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
Aaron’s summary-judgment motion challenged that no evidence raises a fact issue
concerning element (2), that Aaron’s initiated or procured the action against
Espinosa; element (5), that Aaron’s lacked probable cause; and element (6), that
Aaron’s acted with malice.
We first consider the element of initiation or procurement. A defendant
procures a criminal prosecution if that defendant’s actions are enough to cause the
prosecution, and but for those actions, the prosecution would not have occurred.
See Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 509 (Tex. 2002). A
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defendant cannot be liable for malicious prosecution when the decision to
prosecute is left to the discretion of another, such as a law enforcement official or a
grand jury, unless the defendant knowingly provided false, material information
and the false information caused a criminal prosecution. King v. Graham, 126
S.W.3d 75, 78 (Tex. 2003) (per curiam). The plaintiff also must prove that “the
prosecutor acted based on the false information and that but for such false
information the decision [to prosecute] would not have been made.” Id. at 76.
No evidence shows that Aaron’s knowingly provided false information to
the authorities. Espinosa claims that Aaron’s drew a false conclusion from the
store documents—namely, that Espinosa stole the merchandise. Espinosa does
not, however, challenge the facts that underlie Aaron’s inference, specifically
Norris’s account of how he came to acquire the Aaron’s merchandise from
Espinosa, the false records produced under Espinosa’s employee identification
number, the fact that a large quantity of merchandise had gone missing from the
store Espinosa managed, and other irregularities and policy violations apparent in
the store’s records. Whether Aaron’s reached a different conclusion than Espinosa
would from these undisputed facts does not show that any of them was false when
Aaron’s provided them to law enforcement. In his response to Aaron’s motion for
summary judgment, Espinosa did not adduce evidence that Aaron’s had provided
false evidence to investigators that materially advanced his prosecution.
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Further, in his affidavit supporting the motion for summary judgment, the
assistant district attorney who prosecuted the case attested that Aaron’s did not
have the ability or authority to arrest, charge or prosecute Espinosa the DA’s
Office did not act at the defendants’ direction or instruction, and it acted alone
based on its own investigation in deciding to charge Espinosa. “[A] person cannot
procure a criminal prosecution when the decision whether to prosecute is left to the
discretion of another person, a law enforcement official, or the grand jury.”
Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 292(Tex. 1994).
Because the evidence does not support a reasonable inference that Aaron’s
provided false information that was material and relied upon by those who
prosecuted Espinosa, we hold that the trial court did not err in granting summary
judgment on Espinosa’s malicious prosecution claim.
IV. Defamation
Espinosa next contends that the trial court erred in granting summary
judgment on his defamation claim. As evidence that defamatory statements were
made, Espinosa relies on his testimony: (1) regarding a telephone conversation that
he had with, a store customer, in which the customer told Espinosa that Aaron’s
had contacted him and told him that Espinosa was fired for stealing; and (2) that
another Aaron’s customer he ran into at a gas station told him that, when she
visited Aaron’s to pay her account, Espinosa’s former boss informed her that
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Espinosa had been fired because he stole merchandise from Aaron’s. Espinosa’s
defamation claim also relies on allegedly false and disparaging oral statements
made by Aaron’s employees to the police and the DA’s office.
A. Applicable law
A private plaintiff seeking to recover on a defamation claim generally must
prove that (1) the defendant published a statement of fact about the plaintiff;
(2) the statement was defamatory; (3) the statement was false; (4) the defendant
acted negligently in publishing the false and defamatory statement; and (5) the
plaintiff suffered damages as a result. See WFAA-TV, Inc. v. McLemore, 978
S.W.2d 568, 571 (Tex. 1998); Brown v. Swett & Crawford of Texas, Inc., 178
S.W.3d 373, 382 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A one-year
statute of limitations applies to Espinosa’s defamation claim. See TEX. R. CIV. P.
§ 16.002(a); Texas Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219
S.W.3d 563, 587 (Tex. App.—Austin 2007, pet. denied).
Aaron’s claims that it is entitled to a qualified privilege against Espinosa’s
defamation claims because the defamatory statements it was alleged to have
published occurred in connection with its internal investigation. A conditional or
qualified privilege attaches to communications made in the course of an
[employer’s] investigation following a report of employee wrongdoing.”
Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646–47 (Tex. 1995). If
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the circumstances support application of the qualified privilege, the plaintiff must
prove that the defendant acted with actual malice, rather than mere negligence, in
publishing the statement. Saudi v. Brieven, 176 S.W.3d 108, 118 (Tex. App.—
Houston [1st Dist.] 2004, pet. denied) (explaining that “a qualified privilege to
make a statement exists when the person making the statement makes it in good
faith on a subject matter in which the speaker has a common interest with the other
person, or with reference to which the speaker has a duty to communicate to the
other” (internal quotation omitted)). A statement is made with actual malice when
the speaker makes it with knowledge of its falsity or with reckless disregard as to
its truth. Randall’s Food Mkts., 891 S.W.2d at 646.
When a qualified privilege applies, a summary judgment movant may negate
actual malice with an uncontroverted affidavit that indicates that it did not publish
the alleged defamatory statement with actual knowledge of its falsity or with
reckless disregard for its truth. Assoc. Press v. Cook, 17 S.W.3d 447, 458 (Tex.
App.—Houston [1st Dist.] 2000, no pet.).
B. Qualified privilege
First, we determine whether the qualified privilege applies in our review of
the summary judgment evidence. We conclude that it does with respect to Aaron’s
investigation of the missing merchandise and its report to the police. A qualified
privilege also cloaks statements made to law enforcement; thus, any statements
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that Aaron’s employees made to the police or DA’s office have a qualified
privilege. See Darrah v. Hinds, 720 S.W.2d 689, 691 (Tex. App.—Fort Worth
1986, writ ref’d n.r.e.). For these statements, Espinosa must demonstrate that
Aaron’s acted with actual malice. See Saudi, 176 S.W.2d at 118.
Pointing to the testimony about the conversations he had with store
customers, Espinosa contends that no qualified privilege exists because Aaron’s
made statements to persons who had no interest in the investigation. Henriquez v.
Cemex Mgmt., 177 S.W.3d 241, 252–53 (Tex. App.—Houston [1st Dist. 2005, pet.
denied); see also Saudi, 176 S.W.3d at 118 (explaining that privilege does not
apply if information is furnished to others not sharing common interest).
As evidence supporting Aaron’s motion, regional manager Hooker averred
in an affidavit that, to the extent that he or regional accounts manager Scott
Newton told employees or customers of Espinosa’s suspected crimes, those
statements “were made in furtherance of Aaron’s investigation into suspected theft
by Espinosa,” and were necessary communications for their investigation. With
respect to customer Cardenas, other evidence in the summary-judgment record
supports Hooker’s affidavit that Aaron’s contacted Cardenas in connection with
the investigation; one of the suspect accounts was in Cardenas’s name. Aaron’s
contact with Cardenas therefore occurred within the scope of the investigation and
was privileged.
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The same is not true of Espinosa’s claim that an Aaron’s customer told him
that an Aaron’s employee told her that Espinosa was fired because he stole
merchandise from Aaron’s. This publication occurred after Aaron’s had concluded
its investigation; thus, Aaron’s did not bear its burden to conclusively prove that
the investigative privilege extends to this statement.
Actual malice
We next consider, with respect to the privileged statements, whether the
summary-judgment record contains evidence that Aaron’s was motivated by
malice when it allegedly made them. See Randall’s Food Mkts., 891 S.W.2d at
646 (“Proof that a statement was motivated by actual malice existing at the time of
publication defeats the privilege.”).
Espinosa has not identified any statement that Aaron’s made to authorities or
in connection with its internal investigation that was false or made with reckless
disregard of the truth. He leaves uncontroverted Aaron’s regional manager’s
sworn denial that Aaron’s published any alleged defamatory statement with actual
knowledge of its falsity or with reckless disregard of its truth. Cook, 17 S.W.3d at
458. With respect to all but the one statement, we therefore hold that the trial court
correctly granted summary judgment on Espinosa’s defamation claim because the
record reveals no evidence supporting the element of malice necessary to prevail
against a defendant engaged in privileged communications.
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Limitations
With respect to the unprivileged statement made at the gas station, we note
that Aaron’s summary-judgment motion raised the additional affirmative defense
of limitations to defeat Espinosa’s defamation claim. The statement occurred no
later than August 2008, when the criminal charges against Espinosa were
dismissed. Espinosa did not file this lawsuit until October 2010. Espinosa’s
appellate briefing does not challenge summary judgment based on limitations; his
issue addressing summary judgment on the defamation claim challenges only any
reliance on the investigative privilege or the refusal to consider evidence to which
Aaron’s raised a hearsay objection.
If, as here, the appealing party does not assert a broad challenge to rendition
of summary judgment or fails to challenge a ground on which the movant asserted
a right to summary judgment in the trial court, we must affirm—without
considering whether the summary judgment was rendered properly or improperly
on the unchallenged ground. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119,
121 (Tex. 1970) (affirming summary judgment because “it may have been based
on a ground not specifically challenged” on appeal and “there was no general
assignment that the trial court erred in granting summary judgment”) (citations
omitted); see also Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990)
(proscribing reversal of summary judgment without properly assigned error); Ellis
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v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston
[1st Dist.] 2002, no pet.) (affirming judgment because of unchallenged ground).
Because Espinosa waived any contention that the statute of limitations does not bar
his defamation claim based on the unprivileged statement, we leave the summary
judgment on Espinosa’s defamation claim undisturbed.
V. Intentional Infliction of Emotional Distress
Aaron’s motion for summary judgment contended that Espinosa’s
intentional infliction of emotional distress claim failed as a matter of law because
he could not establish the necessary elements, which are: (1) the defendant acted
intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the
actions of the defendant caused the plaintiff emotional distress; and (4) the
resulting emotional distress was severe. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605,
611 (Tex. 1999). To prove an intentional infliction of emotional distress claim, the
plaintiff’s emotional distress must be the intended or primary consequence of the
defendant’s conduct. Id. (citing Standard Fruit & Veg. Co. v. Johnson, 985
S.W.2d 62, 68 (Tex. 1998)).
Espinosa contends that if Aaron’s summary judgment motion eliminates his
malicious prosecution claim, then the gap-filling tort claim of intentional infliction
of emotional distress must stand. See Standard Fruit, 985 S.W.2d at 68
(explaining that purpose of intentional infliction of emotional distress claim “is to
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supplement existing forms of recovery by providing a cause of action for egregious
conduct that its more established neighbors in tort doctrine would technically fence
out” (internal quotation omitted)). However, an intentional infliction claim is
unavailable to plaintiffs who bring unmeritorious malicious prosecution claims
absent conduct otherwise outside the bounds of human decency. Hoffmann-La
Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 448 (Tex. 2004) (citing cases where
intentional infliction of emotional distress claim is not available, including cases
involving claims of malicious prosecution and defamation); see also Kroger Tex.
L.P., 216 S.W.3d at 796–97 (holding plaintiff failed to prove defendant’s conduct
of initiating criminal proceedings against plaintiff was extreme and outrageous
where no evidence showed that defendant knew plaintiff was innocent of charges
and intentionally subjected her to emotional distress). “[W]hile post-termination
conduct may constitute intentional infliction of emotional distress if it goes
‘beyond all possible bounds of decency,’ ‘ordinary’ post-termination disputes are
insufficient to support liability.” Creditwatch, Inc. v. Jackson, 157 S.W.3d 814,
817 (Tex. 2005) (quoting Zeltwanger, 144 S.W.3d at 445)); Tex. Farm Bur. Mut.
Ins. v. Sears, 84 S.W.3d 604, 611 (Tex. 2002). Reporting activity to police does
not constitute extreme and outrageous behavior. Lang v. City of Nacogdoches, 942
S.W.2d 752, 759–60 (Tex. App.—Tyler 1997, writ denied). Espinosa does not
base his intentional infliction claim on any act apart from those underlying his
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other tort claims. Accordingly, we hold that the trial court did not err in granting
Aaron’s motion for summary judgment on this ground.
VI. Fraud and Breach of Fiduciary Duty
Finally, Espinosa challenges the summary judgment on his fraud and breach
of fiduciary duty claims, contending that Aaron’s had no intention of paying him
the 2005 fourth-quarter bonus when he was told he would receive one. To
establish a fraud claim, a plaintiff must show (1) the defendant made a material
representation; (2) which was false when the representation was made; (3) the
defendant knew it was false or made it recklessly with the intent that the plaintiff
act upon it; (4) the plaintiff acted in reliance on the representation; and (5) the
plaintiff suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex.
2001).
The undisputed facts demonstrate that Aaron’s was not aware of the false
rental agreements or the merchandise missing from the Monroe store when Hooker
told Espinosa that he was eligible to receive the bonus. Espinosa does not contest
that merchandise was missing. He admitted that his bonus was premised on the
store’s net revenues and profit. The undisputed evidence thus precludes a showing
that Aaron’s made a misrepresentation which it knew was false when it was made.
Further, Aaron’s did not owe Espinosa a fiduciary duty as a matter of law.
Beverick v. Koch Power, Inc., 186 SW.3d 145, 153 (Tex. App.—Houston [1st
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Dist.] 1997, pet. denied). We hold that the trial court did not err in granting
summary judgment on these claims.
Conclusion
We hold that the trial court correctly granted Aaron’s motion for summary
judgment on Espinosa’s tort claims. We therefore affirm the judgment of the trial
court.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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