jeffery-a-bell-and-wanda-e-bell-v-quicksilver-resources-inc ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00019-CV
JEFFERY A. BELL AND WANDA E. APPELLANTS
BELL
V.
EXPRESS ENERGY SERVICES APPELLEES
OPERATING, LP AND RICHARD J.
WIGGINS
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AND
NO. 02-11-00020-CV
JEFFERY A. BELL AND WANDA E. APPELLANTS
BELL
V.
QUICKSILVER RESOURCES INC., APPELLEES
QUICKSILVER GAS SERVICES,
L.P., QUICKSILVER GAS
SERVICES, GP, LLC,
QUICKSILVER GAS SERVICES
OPERATING, LLC AND
QUICKSILVER GAS SERVICES
OPERATING GP, LLC
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AND
NO. 02-11-00031-CV
JEFFERY A. BELL AND WANDA E. APPELLANTS
BELL
V.
MICHAEL W. BARTON APPELLEE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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MEMORANDUM OPINION1
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On the court=s own motion, the above causes are hereby consolidated for
purposes of disposing of these related summary judgment appeals in a single
opinion. Each cause shall continue to bear its respective cause number.
I. INTRODUCTION AND BACKGROUND
Appellant Jeffery Bell was employed as a salesman for Appellee Express
Energy Services Operating, LP (Express) for approximately one month in August
and September 2008. Appellee Richard J. Wiggins, the district manager for
Express, received complaints from several of Express’s customers that they no
1
See Tex. R. App. P. 47.4.
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longer wanted Bell performing sales at their well sites. Wiggins thus met with
Bell and informed him that he would no longer be employed by Express. Bell
and his wife, Appellant Wanda E. Bell, then sued Express, Wiggins, and more
than twenty other defendants, alleging claims for defamation, intentional infliction
of emotional distress, civil conspiracy, gross negligence, and loss of consortium.
The trial court granted summary judgment in favor of each defendant, and
Appellants appealed. This opinion addresses the summary judgments granted in
favor of Express and Wiggins; Appellees Quicksilver Resources, Inc., Quicksilver
Gas Services, LP, Quicksilver Gas Services, GP, LLC, Quicksilver Gas Services
Operating, LLC, and Quicksilver Gas Services Operating GP, LLC (collectively,
Quicksilver); and Appellee Michael W. Barton (Barton).2 Appellants present a
single issue containing five subissues in each appeal. We affirm all three
judgments.
II. STANDARDS OF REVIEW
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground
that there is no evidence to support an essential element of the nonmovant’s
2
This court has issued two prior opinions deciding Appellants’ six other
appeals from the trial court’s summary judgments. See Bell v. Denbury Res.,
Inc., Nos. 02-11-00007-CV, 02-11-00017-CV, 02-11-00018-CV, 2012 WL
1739913 (Tex. App.—Fort Worth May 17, 2012, no pet. h.) (mem. op.)
(hereinafter, Denbury); Bell v. Bennett, Nos. 02-10-00481-CV, 02-11-00057-CV,
02-11-00063-CV, 2012 WL 858603 (Tex. App.—Fort Worth Mar. 15, 2012, no
pet.) (mem. op.) (hereinafter, Bennett).
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claim or defense. Tex. R. Civ. P. 166a(i). The trial court must grant the motion
unless the nonmovant produces summary judgment evidence that raises a
genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v.
Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
The trial court granted summary judgment for Appellees on their no-
evidence and traditional motions for summary judgment without noting whether it
was granting the no-evidence motion or the traditional motion. We therefore first
analyze the propriety of the summary judgments under the no-evidence
standard. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)
(explaining that when a party moves for summary judgment under both rules
166a(c) and 166a(i), we should review the no-evidence motion first).
III. DEFAMATION
In the first subissue in each appeal, Appellants argue that the trial court
erred by granting summary judgment for Appellees on Appellants’ claims for
defamation. To maintain a defamation cause of action, the plaintiff must prove
that the defendant (1) published a statement, (2) that was defamatory concerning
the plaintiff, and (3) while acting with negligence, if the plaintiff was a private
individual, regarding the truth of the statement. See WFAA-TV, Inc. v.
McLemore, 978 S.W.2d 568, 571 (Tex. 1998), cert. denied, 526 U.S. 1051
(1999).
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A. Quicksilver
Quicksilver argued in its motion for no-evidence summary judgment that
Appellants had no evidence that Quicksilver had made a defamatory statement.
Responding to that ground on appeal, Appellants argue that “Quicksilver
company men had called in to Express and complained about Bell and instructed
Express not to send Bell back out to their jobsites, for reasons they ‘didn’t want to
get into.’” Appellants also contend that Quicksilver claimed “that Bell had
somehow had problems or issues or had made misrepresentations or committed
misconduct while working for a previous employer, Premiere, Inc. or Frank’s
Casing and/or that company men did not want him on their job sites.” To support
these contentions, Appellants direct us to a portion of Wiggins’s deposition
testimony that states the following:
Q. Quicksilver, same question. Who was it at Quicksilver that
told you they didn’t want Jeff Bell on-site?
A. I couldn’t say.
Q. Why did Quicksilver not want Jeff Bell on-site?
A. The only thing I was told by one of the Quicksilver – and it
was on the airport district for Quicksilver, is that they would prefer to
have a different salesman, would not disclose anything outside of
that.
Q. Did they tell you why they didn’t want to disclose any other
reasons?
A. No.
Q. Did you ask them?
A. That’s a yes.
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Q. What did they say?
A. They’d prefer not to get into it.
Q. Was it because it was of a sensitive nature?
A. I couldn’t say.
We must decide whether the words used by the unidentified Quicksilver
representative are reasonably capable of a defamatory meaning, which is a
question of law. Musser v. Smith Protective Serv., Inc., 723 S.W.2d 653, 655
(Tex. 1987); see Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex.
2000). A statement is defamatory if it tends to injure the person’s reputation,
exposing the person to public hatred, contempt, ridicule, or financial injury, or if it
tends to impeach that person’s honesty, integrity, or virtue. See Tex. Civ. Prac.
& Rem. Code Ann. § 73.001 (West 2011) (addressing libel). “To be defamatory,
a statement should be derogatory, degrading, and somewhat shocking, and
contain ‘element[s] of personal disgrace.’” Means v. ABCABCO, Inc., 315
S.W.3d 209, 214 (Tex. App.—Austin 2010, no pet.). When considering whether
a statement is defamatory, we construe the statement as a whole, in light of the
surrounding circumstances, based on how a person of ordinary intelligence
would perceive the entire statement. See Musser, 723 S.W.2d at 655.
Here, Appellants have not identified any alleged defamatory statement
made by a Quicksilver representative. Wiggins’s deposition testimony—that
excerpt being the only evidence Appellants point to in support of their contention
that Quicksilver defamed Bell—established that the Quicksilver representative
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did not say why Quicksilver did not want Bell on their job-site. Construed in light
of the surrounding circumstances and based on how a person of ordinary
intelligence would perceive it, the statement identified by Appellants—that
Quicksilver would prefer to have a different salesman—is not defamatory as a
matter of law because it is not reasonably capable of a defamatory meaning.
Accordingly, we hold that the trial court did not err by granting summary judgment
for Quicksilver on Appellants’ defamation claim because there is no evidence that
Quicksilver made a defamatory statement about Bell. See Denbury, 2012 WL
1739913, at *2. We overrule Appellants’ first subissue in cause 02-11-00020-CV.
B. Barton
Barton argued in the no-evidence part of his motion for summary judgment
that Appellants had no evidence that Barton published a statement about Bell
that was defamatory. Responding to that ground on appeal, Appellants contend
that Barton
contacted Express and verbally instructed and advised Express:
1) not to send Bell back out to his jobsite again and 2) the reason
Barton stated that he did not want Bell on his jobsite was because
Bell had made misrepresentations to Sam Sizemore to make sales
when Bell worked as an oilfield salesman for a previous employer,
Premiere, Inc.
Appellants do not cite any portion of the record in the argument section of their
brief. In the factual background section of their brief, Appellants include the
same factual assertion and cite to a portion of Bell’s deposition testimony. The
cited deposition testimony, however, does not support Appellant’s assertion
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because it establishes only that Bell informed Barton that Barton had said
something to Wiggins about misrepresentations to Sizemore. When asked in his
deposition whether Wiggins knew about the supposed misrepresentations to
Sizemore before Express terminated his employment, Bell answered that he did
not know. Moreover, Bell testified in the same deposition excerpt that Barton did
not tell Bell about anything Barton allegedly said to Wiggins before Express
terminated Bell’s employment. The portion of Bell’s deposition testimony upon
which Appellants rely constitutes no evidence that Barton published a statement
about Bell, and Appellants do not cite us to any other part of the summary
judgment record to support this element of their defamation claim against Barton.
See Tex. R. App. P. 38.1(g) (requiring the appellant’s brief to contain citations to
the record in support of the contentions made); Aleman v. Ben E. Keith Co., 227
S.W.3d 304, 309 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“In determining
whether a respondent to a no-evidence motion for summary judgment has
produced sufficient evidence to raise a genuine issue of material fact, courts are
not required to search the record without guidance.”). Appellants have
consequently failed to identify any evidence of a defamatory statement made by
Barton about Bell, and we hold that the trial court did not err by granting
summary judgment for Barton on Appellants’ defamation claim. We overrule
Appellants’ first subissue in cause 02-11-00031-CV.
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C. Express and Wiggins
Express and Wiggins asserted in the no-evidence portion of their motion
for summary judgment that Appellants could present no evidence that Express or
Wiggins published a defamatory statement about Bell. Responding to this point
on appeal, Appellants argue that Express’s customers made defamatory
statements about Bell and that “Express published all of these defamatory
statements . . . by stating these false complaints in Jeff Bell’s termination letter
that was placed in Bell’s personnel file with Express.” To avoid summary
judgment, however, Appellants were required to produce evidence that Express
or Wiggins published the termination letter to a third party, and Appellants have
not done so. See Rodriguez v. NBC Bank, 5 S.W.3d 756, 766 (Tex. App.—San
Antonio 1999, no pet.) (affirming summary judgment on libel claim because there
was no evidence that the employee’s notes, which recited what another person
told the employee, were ever published to a third party). It is not enough for
Appellants that Wiggins informed Bell of what others had allegedly said to
Wiggins or that Wiggins and Express recorded the statements of others in the
termination notice without further publishing the statements to third parties. See
id.; Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 380 (Tex. App.—
Texarkana 1989, no writ). Appellants do not direct us to any summary judgment
evidence that Express or Wiggins communicated the alleged defamatory
statements to any third parties. We thus hold that the trial court did not err by
granting Express and Wiggins’s motion for summary judgment on Appellants’
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defamation claim, and we overrule Appellants’ first subissue in cause 02-11-
00019-CV.
IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
In the second subissue in each appeal, Appellants argue that the trial court
erred by granting summary judgment on their claims for intentional infliction of
emotional distress (IIED). IIED is a gap-filler tort that has no application when
the conduct at issue invades some other legally protected interest. See
Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004)
(stating that “[w]here the gravamen of a plaintiff’s complaint is really another tort,
intentional infliction of emotional distress should not be available” and citing with
approval three defamation cases in which IIED was not available as an
independent claim). Appellants’ IIED claims must fail because they are based on
the same conduct as Appellants’ defamation claims against Appellees. See id.
Appellants attempt to bypass this fatal deficiency by arguing that an IIED
claim is permitted “when an employee is wrongfully terminated by an employer
who is engaged in conduct ‘bordering on serious criminal acts,’” and they
contend that Appellees were engaged in an illegal kickback scheme. However, a
review of the cases Appellants cite to support this alleged “exception” reveals
that the factual circumstances in those cases are entirely distinct from the facts of
this case. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816–18 & n.24
(Tex. 2005); Morgan v. Anthony, 27 S.W.3d 928, 930–31 (Tex. 2000); GTE Sw.
v. Bruce, 998 S.W.2d 605, 613–14, 617 (Tex. 1999). Moreover, Appellants have
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not sued Express for wrongful termination, and we fail to see how evidence of an
alleged kickback scheme somehow alters the fact that the gravamen of
Appellants’ IIED claims are the defamation claims. Evidence of an alleged
kickback scheme has no relevance whatsoever to any element of Appellants’
IIED claims or defamation claims, and Appellants’ cited cases do not support
their argument. See Denbury, 2012 WL 1739913, at *4; Bennett, 2012 WL
858603, at *12. We hold that the trial court did not err by granting summary
judgment for Appellees on Appellants’ IIED claims, and we overrule Appellants’
second subissue in each appeal.
V. CIVIL CONSPIRACY
In the third subissue in each appeal, Appellants argue that the trial court
erred by granting summary judgment for Appellees on Appellants’ claims for civil
conspiracy. Civil conspiracy is a derivative claim because a defendant’s liability
depends upon its participation in some underlying tort for which the plaintiff seeks
to hold the defendant liable. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.
1996). Appellants pleaded that Appellees conspired to defame and slander Bell.
Because the trial court properly granted summary judgment on each of
Appellants’ defamation claims, Appellees cannot be liable for the derivative tort of
civil conspiracy with respect to those claims. See id. Appellants additionally
contend that Appellees conspired to get Bell fired because he would not
participate in an ongoing kickback scheme, but Appellants did not plead the
kickback scheme as the basis of any type of independent tort or cause of action
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that would support their derivative claims for civil conspiracy. See Denbury, 2012
WL 1739913, at *5; Bennett, 2012 WL 858603, at *13. Accordingly, we overrule
Appellants’ third subissue in each appeal.
VI. GROSS NEGLIGENCE
In the fourth subissue in each appeal, Appellants argue that the trial court
erred by granting summary judgment for Appellees on Appellants’ claims for
gross negligence. Appellants’ gross negligence cause of action is premised,
however, on their defamation, IIED, and civil conspiracy claims, and we have
affirmed the trial court’s grant of summary judgment as to each of those causes
of action against each Appellee. Thus, there is no evidence or “underlying basis”
upon which Appellants rely to support their gross negligence claims. See
Denbury, 2012 WL 1739913, at *5; Bennett, 2012 WL 858603, at *14.
Accordingly, the trial court did not err by granting summary judgment on
Appellants’ claims for gross negligence. We overrule Appellants’ fourth subissue
in each appeal.
VII. LOSS OF CONSORTIUM
In the fifth subissue in each appeal, Appellants argue that the trial court
erred by granting summary judgment for Appellees on Wanda’s claims for loss of
consortium. Wanda’s claims for loss of consortium are derivative of Bell’s claims
against Appellees. See Motor Express, Inc. v. Rodriguez, 925 S.W.2d 638, 640
(Tex. 1996). Because summary judgment was proper for Appellees on all of
Appellants’ pleaded causes of action, Wanda’s derivative loss of consortium
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claims likewise fail. See id.; Denbury, 2012 WL 1739913, at *5; Bennett, 2012
WL 858603, at *14. We thus overrule Appellants’ fifth subissue in each appeal.
VIII. CONCLUSION
Having overruled all of Appellants’ subissues in each appeal, we overrule
Appellants’ overarching issue in each appeal and affirm the trial court’s
judgments.
PER CURIAM
PANEL: GARDNER, WALKER, and MEIER, JJ.
DELIVERED: June 7, 2012
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