Jerry v. Durant Jerry Durant, Inc. D/B/A Durant Toyota and D/B/A Jerry Durant Toyota Jerry Durant Hyundai, LLC Doyle Maynard Robert G. Cote, Sr. Gary Michael Deere Jerry Rash And Elliot "Scooter" Michelson v. Andrew Anderson ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00283-CV
JERRY V. DURANT; JERRY APPELLANTS
DURANT, INC. D/B/A DURANT
TOYOTA AND D/B/A JERRY
DURANT TOYOTA; JERRY
DURANT HYUNDAI, LLC; DOYLE
MAYNARD; ROBERT G. COTE,
SR.; GARY MICHAEL DEERE;
JERRY RASH; AND ELLIOT
“SCOOTER” MICHELSON
V.
ANDREW ANDERSON APPELLEE
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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 153-257626-12
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MEMORANDUM OPINION 1
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Jerry V. Durant; Jerry Durant, Inc. d/b/a Durant Toyota and d/b/a Jerry
Durant Toyota; Jerry Durant Hyundai, LLC; Doyle Maynard; Robert G. Cote, Sr.;
1
See Tex. R. App. P. 47.4.
Gary Michael Deere; Jerry Rash; and Elliot “Scooter” Michelson appeal from the
trial court’s judgment awarding appellee Andrew Anderson $2,527,151, plus pre-
and postjudgment interest and costs, on his claims against them. We reverse
and render a take-nothing judgment.
Background Facts
Anderson began working for Durant in 2001 as a used car manager in
Weatherford, Texas at one of Durant’s dealerships. He worked his way up
through the company, and in 2006, Anderson was promoted to general manager.
In February 2011, Anderson claims that Durant offered him the opportunity
to be the dealer owner/operator of two of the Durant dealerships in Granbury,
Texas. According to Anderson, Durant offered him 10% “of the land and the
dealerships they sit on.” Durant claims that he offered Anderson, if he could
meet certain requirements by the end of the year, a buy-in opportunity for the
Hyundai dealership only. Durant told Anderson he would give him the same offer
for the Toyota dealership if Toyota approved it. Durant denied offering Anderson
any interest in the land. Both Anderson and Durant acknowledged that no written
agreement was ever signed. Anderson moved over to the Granbury dealerships.
He claimed his title became dealer partner/principal.
On December 8, 2011, Durant announced that he was negotiating a sale
of the dealerships to a third party. Anderson secretly recorded the meeting
during which Durant made the announcement. At a Christmas party on
December 15, 2011, Durant gave Anderson a check for $75,000. Anderson
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testified that it was a Christmas bonus. Durant claimed it was in lieu of the buy-in
opportunity for 10% ownership interest. No document was signed regarding the
purpose of the check.
On December 26, 2011, Durant held a meeting for all of the used car
managers. During the meeting, Durant yelled at Anderson for buying used cars
directly from a wholesale dealer named Jake DeKoker. Anderson claims that he
had never been told not to buy from DeKoker.
Two days later, Anderson and Durant met again. Robert Cote, a
consultant for Durant, was also present at the meeting. According to Anderson,
Durant accused him of taking kickbacks on cars he purchased from DeKoker.
Durant claims that he only discussed his concern that Anderson was
mismanaging the used car inventory at the Granbury dealerships. Cote
estimated that cars that Anderson had purchased from DeKoker lost about
$30,000. Cote testified that in the meeting, Anderson admitted that he had
purchased the cars from DeKoker when he should not have, agreed with Cote’s
estimation of lost profit on the cars, volunteered to pay that amount back to
Durant, and agreed to take a polygraph exam.
Anderson took a polygraph exam on January 4, 2012, and the results
came back as inconclusive. Anderson immediately requested a meeting with
Durant, Cote, and Don Allen, co-owner of the Durant entities. He secretly
recorded the meeting on his phone. During an argument over the $30,000,
Durant told Anderson, “Well, if you think that’s wrong, . . . you can hit the dirt.”
3
Cote testified that he believed that Anderson was moving to the Weatherford
Chevrolet store. Anderson thought Durant meant that he was fired. Anderson
did not return to work at the Durant entities.
After Anderson left, he learned that rumors were circulating that he had
been fired for taking kickbacks. On January 26, 2012, Anderson sued Durant,
the Durant entities, and Cote for defamation, and he sued Durant and the Durant
entities for breach of contract, quantum meruit, fraud, fraudulent inducement,
promissory estoppel, and attorney’s fees. 2 Durant and the Durant entities filed
counterclaims against Anderson for breach of fiduciary duty and conversion. In
August 2012, Anderson amended his petition to include Doyle Maynard, Elliot
Michelson, Jerry Rash, and Gary Michael Deere in his defamation cause of
action. 3 Maynard and Rash were Durant employees. Michelson ran off-site
auctions for Durant, and Deere was a wholesale car dealer who bought cars from
the Durant entities. Anderson also included Silverado Life Reinsurance
2
Durant also sued William R. Shapiro, owner of another Chevrolet
dealership, for defamation for republishing the statements.
3
Anderson also included Don Allen, Amanda Hedrick, Carol Walsh, Justin
McLaughlin, Brandi Shapiro, and Chuck Terrill as defendants in his August 2012
amended petition. In December 2012, Anderson also added Jerrel Bolton.
Bolton filed a motion for summary judgment on Anderson’s claim against him,
which the trial court granted. Anderson nonsuited his claims against William
Shapiro, Brandi Shapiro, and Terrill. Anderson and Hedrick entered an agreed
partial order of dismissal of Anderson’s claims against her. The jury found that
Walsh and McLaughlin were 0% liable to Anderson for any damages. The jury
also found for Allen on Anderson’s claims against him. Allen, McLaughlin,
Walsh, Hedrick, Bolton, Terrill, and the Shapiros are not parties to this appeal.
4
Company, the entity that owns the real estate where the Durant Hyundai
dealership is located, in his breach of contract, quantum meruit, fraud, fraudulent
inducement, promissory estoppel, and attorney’s fees claims. Anderson added a
claim of conspiracy against Durant and Allen.
After a seven-week jury trial, the jury found the following in relevant part:
1. Durant did not agree “to immediately provide” Anderson 10% ownership
in the Durant entities and the associated real estate.
2. Durant and the Durant entities, but not Silverado, committed fraud
against Anderson. 4
3. Durant and Allen did not conspire to defraud Anderson.
4. The value of a 10% ownership interest in the Durant Toyota dealership
was $323,150. The value of a 10% ownership interest in the Durant
Hyundai dealership was $60,000.
5. Durant, Cote, Rash, Maynard, Michelson, and Deere published a
defamatory statement about Anderson.
6. Maynard was not acting in the scope of his employment when he
defamed Anderson, and he was not privileged to make the statement.
7. Rash, Michelson, and Deere were not privileged to make the statement.
8. Anderson sustained damages in the amounts of:
a. Past injury to reputation: $400,000
b. Future injury to reputation: $400,000
c. Past mental anguish: $400,000
d. Future mental anguish: $400,000
4
Silverado is not a party to this appeal.
5
e. Past lost income: $269,000
f. Future lost income: $360,000
9. Durant was 85% liable for Anderson’s damages. Maynard, Cote, and
Michelson were each 1% liable. Deere and Rash were each 5% liable.
10. Cote, Rash, Maynard, Michelson, and Deere acted with malice, fraud,
or gross negligence.
11. Anderson was not liable to Durant and the Durant entities on their
claims against him.
Based on the jury’s findings, the trial court awarded Anderson $323,150
from Durant and Durant Toyota for fraud, $60,000 from Durant and Durant
Hyundai for fraud, $2,144,001 from Durant for defamation, plus interest and
costs. The trial court ordered that Anderson could elect to recover from Cote,
Maynard, Michelson, Rash, and Deere for the defamation damages in proportion
to their liability. Durant, the Durant entities, Cote, Deere, Michelson, Rash, and
Maynard appealed.
Discussion
I. The Durant and Durant entities’ appeal
A. Fraud
In their first two issues, Durant and the Durant entities challenge the jury’s
findings on Anderson’s fraud cause of action. The jury found that Durant, Durant
Toyota, and Durant Hyundai made a fraudulent misrepresentation to Anderson.
The jury answered the question regarding fraud damages as follows:
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What sum of money, if any, if paid now in cash, would fairly
and reasonably compensate Andrew Anderson for his damages, if
any, that resulted from such fraud, if any?
....
1. The value of a 10% ownership interest in the Durant
Toyota dealership in Granbury, Texas, excluding the value of the
associated real estate.
Answer: $323,150
2. The value of a 10% ownership interest in the real estate
associated with the Durant Toyota dealership in Granbury, Texas.
Answer: - 0 -
3. The value of a 10% ownership interest in the Durant
Hyundai dealership in Granbury, Texas, excluding the value of the
associated real estate.
Answer: $60,000
4. The value of a 10% ownership interest in the real estate
associated with the Durant Hyundai dealership in Granbury, Texas.
Answer: - 0 -
In Durant and the Durant entities’ second issue, they argue that benefit-of-
the-bargain damages are not recoverable for fraud absent an enforceable
contract. See Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015).
Question No. 1 of the jury charge asked,
In February, 2011, did Jerry Durant, acting on behalf of himself,
and Durant Toyota, Durant Hyundai, and Silverado, agree to
immediately provide Andrew Anderson a 10% ownership interest in
both the Durant Toyota and the Durant Hyundai dealerships in
Granbury, Texas, and agree to immediately provide Andrew Anderson
a 10% ownership interest in the real estate associated with both the
Durant Toyota and Durant Hyundai dealerships in Granbury, Texas, in
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exchange for Andrew Anderson becoming the General Manager for
the Durant Toyota and Durant Hyundai dealerships in Granbury,
Texas?
The jury answered “no” to Question No. 1; therefore, Durant argues, there was
no contract on which to base benefit-of-the-bargain damages.
Anderson argues that the contract underlying his fraud claim is not the
same contract that the jury failed to find in Question No. 1. The fraudulent
contract, he claims, is the same agreement addressed in Question No. 1 “less
the real estate.” He bases this argument on the jury’s award of $0 for the value
of the real estate of the two dealerships in the fraud damages question.
We cannot infer, as Anderson asks us to do, from the jury’s award of zero
damages for the real estate that it found an agreement described nowhere in the
jury charge; all we can discern is that the jury found that Anderson was not
entitled to compensation for any injury he may have suffered relating to the real
estate. See Macias v. Ramos, 917 S.W.2d 371, 376 (Tex. App.—San Antonio
1996, no writ) (stating that jury’s answer of “-0-” for damages question did not
imply that the plaintiff did not suffer injuries, only that the plaintiff was not entitled
to compensation for those injuries); Frank B. Hall & Co. v. Buck, 678 S.W.2d 612,
625 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (holding that jury’s
answer of “no” to question asking whether a note was substantially true was “a
failure to find the note true, not a finding that it was not true”), cert. denied,
472 U.S. 1009 (1985). Anderson bore the burden of securing jury findings on all
elements of his claim. See Tex. R. Civ. P. 279; Discover Prop. & Cas. Ins. Co. v.
8
Tate, 298 S.W.3d 249, 257 (Tex. App.—San Antonio 2009, pet. denied) (“[A]
party with the burden of proof on a ground of recovery or defense has the duty to
submit all disputed elements of his cause of action to the jury.”). He failed to
secure a finding that there was an enforceable contract between him, Durant,
and the Durant entities. His fraud claim fails because there was no sustainable
measure of fraud damages submitted to or found by the jury. See Zorrilla,
469 S.W.3d at 154 (“[B]enefit-of-the-bargain damages are not available if [the
plaintiff] would not have been able to enforce the bargain in question . . . , and
the fraud claim would fail for want of an appropriate damages finding.”). We
sustain Durant and the Durant entities’ second issue. Because we sustain their
second issue, we do not need to reach their first issue. See Elijah Ragira/VIP
Lodging Grp., Inc. v. VIP Lodging Grp., Inc., 301 S.W.3d 747, 761 (Tex. App.—El
Paso 2009, pet. denied) (rendering a take-nothing judgment when sufficient
evidence did not support jury’s award of damages for fraud claim).
B. Defamation
Durant and the Durant entities’ third through fifth issues challenge the
jury’s findings on Anderson’s defamation claim. In their fifth issue, they challenge
the evidence supporting the jury’s damages findings. After finding Durant and
the Durant entities liable to Anderson for defamation, the jury awarded Anderson
$400,000 for past injury to reputation, $400,000 for future injury to reputation,
$400,000 for past mental anguish, $400,000 for future mental anguish, $269,000
for past lost income, and $360,000 for future lost income.
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1. Standard of review
We may sustain a legal sufficiency challenge only when (1) the record
discloses 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 establishes conclusively the opposite of a vital
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In
determining whether there is legally sufficient evidence to support the finding
under review, we must consider evidence favorable to the finding if a reasonable
factfinder could and disregard evidence contrary to the finding unless a
reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas,
228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807,
827 (Tex. 2005).
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
credible evidence supporting the finding is so weak, or so contrary to the
overwhelming weight of all the evidence, that the answer should be set aside and
a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)
10
(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,
395 S.W.2d 821, 823 (Tex. 1965).
Defamation per se is presumed to cause reputation harm for which a
plaintiff is entitled to general damages. Burbage v. Burbage, 447 S.W.3d 249,
259 (Tex. 2014) (citing Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002)). Yet
this presumption supports only nominal damages; anything beyond nominal
damages must be supported by evidence. Id. Noneconomic damages such as
mental anguish and injury to reputation “cannot be determined by mathematical
precision; by their nature, they can be determined only by the exercise of sound
judgment.” Bentley, 94 S.W.3d at 605. However, noneconomic damages should
only compensate the plaintiff for actual injuries and not be “a disguised
disapproval of the defendant.” Id.
2. Analysis
a. Damage to reputation
Anderson testified that his proof of damage to his reputation was that he
“[d]idn’t get a job for nine and a half months. Have not secured a like job like I
had.” Although he testified that “a few people” had told him that he “need[ed] to
straighten this mess out,” he could not provide names of people who had
expressed concerns about his reputation. Anderson testified that he had started
looking for a new job “within days” and that “[p]hone calls were coming in and
[he] was talking to people.” Anderson went on “[a]t least five or six” interviews
right after he left the Durant entities. He testified that he was offered some of the
11
interviews because the employers had heard that he had left Durant. Anderson
found a permanent position at Frank Kent Honda in October 2012. William
Churchill, the president of the Frank Kent dealership, testified that he was aware
of the lawsuit when he hired Anderson and that Anderson had come “highly
recommended.” When asked if he had any indication that he had not secured
employment because of damage to his reputation, Anderson said that he did not
have any proof “either way.” When asked to put a dollar figure on the damage to
his reputation, he said, “I’m leaving it up to the jury to decide.”
Jason Hiley, president of Hiley Automotive Group, testified that he reached
out to Anderson a few days after Anderson had left the Durant entities to discuss
“a potential executive management job” with his company. Hiley also testified
that Anderson had come “highly recommended” and he had received very good
references. Hiley said that he did not hire Anderson because he was “already
pretty far down the road” with another candidate. Hiley said that he would
consider hiring Anderson for a hypothetical future position if he “knew what the
outcome of the rumors [that Anderson took illegal kickbacks] were.” He stated
that he still had a good personal opinion of Anderson.
Carey Williams, the executive manager of the James Wood General
Motors dealership, testified that Anderson’s reputation “is always really good.”
James Minor, the general manager of a small dealership, testified that his opinion
of Anderson was that he was a “very upstanding man.” Maynard testified that he
12
had “never thought” Anderson’s reputation was good. Deere and Risinger
likewise testified that Anderson had had a bad reputation.
Anderson bore the burden of demonstrating that the defendants were
responsible for the rumors that Anderson had been fired for taking illegal
kickbacks, but the record is devoid of evidence regarding the rumors’ source.
See Columbia Valley Reg’l Med. Ctr. v. Bannert, 112 S.W.3d 193, 201 (Tex.
App.—Corpus Christi 2003, no pet.) (holding that there was no evidence of
defamation when there was no evidence that defendant was the source of
defamatory rumors). Anderson had told multiple people about the accusations
made and the circumstances surrounding his departure from the Durant entities.
The only evidence that Anderson had been fired came from Anderson himself.
Durant, Allen, and the Durant entities’ accountant testified that Anderson had
never been fired, but had voluntarily resigned. Employment records from the
Durant entities also reflect that Anderson resigned.
Although there was evidence of differing opinions of Anderson, there was
no evidence that anyone believed the rumors that Anderson took kickbacks or
that anyone’s perception of Anderson had changed because of the rumors. To
put it another way, there was insufficient evidence that any damage to
Anderson’s reputation had been caused by the rumors or would be caused in the
future. Anderson offered no evidence that his time spent unemployed was due to
any defamatory statements that were circulating in the car industry, that is, that
he was unable to secure employment because of the damage to his reputation
13
caused by any of the defendants. See Exxon Mobil Corp. v. Hines, 252 S.W.3d
496, 504 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (holding that
plaintiff’s evidence of damages caused by termination of his employment was not
any evidence of damages resulting from defamation). By his own testimony,
employers had sought him out to discuss job opportunities. He did not identify
any position that he was not offered because of his allegedly tarnished
reputation. The two witnesses who had inquired about his reputation both
testified that he had been “highly recommended” to them. The president of the
Frank Kent dealership hired Anderson with full knowledge of the lawsuit. Hiley
testified that he was “pretty excited about talking to [Anderson] because he had a
really good reputation.” Even after hearing more details concerning the rumors
about Anderson, Hiley maintained at trial that Anderson was a “really good guy
[with a] really good reputation.” Cf. Morrill v. Cisek, 226 S.W.3d 545, 550 (Tex.
App.—Houston [1st Dist.] 2006, no pet.) (holding evidence legally sufficient to
support damage award for reputation injury when plaintiff testified that his
employer told him that defamatory letters were “threatening his career,” that his
alleged conduct was “inconsistent with a continued employee/employer
relationship,” and that he had not been promoted or received a salary increase
since the defamatory letters).
Further, there is no evidence that $400,000 is a fair and reasonable
amount that would compensate Anderson for any past damage to his reputation.
See Waste Mgmt of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d
14
142, 160 (Tex. 2014) (“[T]he evidence must be legally sufficient as to both the
existence and the amount of such damages . . . .”). Any award beyond a nominal
amount must be supported by evidence. Burbage, 447 S.W.3d at 259. The jury
awarded Anderson the same amount for his future damage to reputation, which
he testified would not be a problem after the trial. “Juries cannot simply pick a
number and put it in the blank. They must find an amount that, in the standard
language of the jury charge, ‘would fairly and reasonably compensate’ for the
loss.” Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996).
Here, the fact that the jury awarded the same amount for past reputation damage
and future reputation damage, as well as past and future mental anguish, is not
evidence that the jury evaluated Anderson’s alleged injuries; it tends to support
Durant and the Durant entities’ claim that the amounts instead represent
“disguised disapproval of the defendant[s].” Bentley, 94 S.W.3d at 605. There is
therefore no more than a scintilla of evidence supporting the jury’s award of
reputational damages.
b. Mental anguish
Anderson testified that the accusations “basically destroyed” him. He said,
“[S]ince these accusations have come about, I’m paranoid about going outside.
Have trouble focusing. Anxiety, anxious. It’s been a two-year nightmare trying to
get my life back and my reputation back.” He also testified, “I had trouble
sleeping. I had trouble eating. I had trouble focusing on things. I worried about
15
my family’s future. Worried about my 30-year career that had been slandered all
over town.”
Anderson claimed that the defamation has affected his relationship with his
wife, but when asked in what way, he said, “It’s affected our relationship and how
we communicate, how we talk to each other on a day-to-day basis. This is
overwhelming to be involved in a lawsuit and the allegations—having to bring this
lawsuit.”
Describing how it has affected his relationship with his daughter, he
testified,
This whole two-year process has consumed my free time.
Worrying about where I’m going to get a job, keeping a job. You
know, going out in public where we used to go out in public, we can’t
go out in public anymore. It’s not the same. It’s a small community,
and when you go out in public, you're always wondering what
somebody is saying about you. What have they heard? What do
they know? So it’s been tough.
Anderson testified that he has seen a psychiatrist five times since he left
the Durant entities. He was prescribed an anti-anxiety medication. Anderson did
not seek professional help for five months after he left the Durant entities until he
was referred to the psychiatrist by his lawyers. He testified that he waited
because he was “trying to tough it out.” Anderson also testified that he believed
his name would be cleared by the jury’s verdict.
In order to sustain a jury award of mental-anguish damages, there must be
not only evidence of compensable mental anguish but also some evidence
justifying the amount awarded. Bentley, 94 S.W.3d at 606 (citing Saenz,
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925 S.W.2d at 614). Such evidence must show more than mere worry, anxiety,
vexation, embarrassment, or anger; it must directly demonstrate the nature,
duration, and severity of the mental anguish, which caused a substantial
disruption in the claimant’s daily routine. Hines, 252 S.W.3d at 505. Here,
Anderson presented evidence that he was embarrassed, depressed, and
anxious. However, he did not present evidence that these emotions rose to a
compensable level. 5 See Saenz, 925 S.W.2d at 614 (holding that statement that
plaintiff worried about losing her house and paying medical bills was not
evidence of compensable mental anguish or that amount awarded was fair and
reasonable compensation); Parkway Co. v. Woodruff, 901 S.W.2d 434, 445 (Tex.
1995) (holding that plaintiffs’ statements that they were angry, frustrated, and
vexed showed the existence of “mere emotions” but not of a compensable level).
5
Anderson cites a number of cases in which he claims that “courts have
upheld comparable awards based on similar evidence.” However, in each of
those cases there was significantly more evidence of more severe injuries than
was presented in this case. See Adams v. YMCA of San Antonio, 265 S.W.3d
915, 916 (Tex. 2008) (involving a nine-year-old child who was sexually abused
by his counselor while at summer camp and including expert testimony on the
long-term effects of such abuse); O’Dell v. Wright, 320 S.W.3d 505, 514 (Tex.
App.—Fort Worth 2010, pet. denied) (involving a victim of sexual assault who
described physical symptoms of anxiety, included clinching her jaw, holding her
breath, feeling paralyzed, shaking, being nauseated, having a racing heartbeat,
rising blood pressure, and feeling “dirty, angry, disgusted, and powerless”
(internal quotations omitted)), abrogated on other grounds by Zorrilla,
469 S.W.3d at 155; Rentech Steel, L.L.C. v. Teel, 299 S.W.3d 155, 165–66 (Tex.
App.—Eastland 2009, pet. dism’d) (including expert testimony that plaintiff’s
injury was the worst the expert had ever seen, plaintiff’s testimony that he “could
hear and feel crunching and popping” of his bones as they broke, and testimony
from the plaintiff, his parents, surgeon, and counselor describing his “very clear”
depression, subsequent addiction to pain killers, and suicidal thoughts).
17
Anderson testified that he was overwhelmed by the lawsuit and that he lost free
time because of his job hunt, but he did not describe a substantial disruption in
his daily routine beyond the general stress of a lawsuit. Anderson also did not
provide other witnesses who could testify to Anderson’s alleged deterioration.
See Hancock v. Variyam, 400 S.W.3d 59, 70 (Tex. 2013) (noting, in holding
evidence insufficient to support mental-anguish award, that no witnesses
corroborated “an outward manifestation of the mental anguish Variyam allegedly
experienced”).
Anderson was further required, to recover for future mental anguish, to
prove not only that in reasonable probability that he would suffer mental anguish
in the future but also a probable reasonable amount of the future damages.
See MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 654–55
(Tex. 1999); Cairus v. Gomez, No. 03-06-00225-CV, 2006 WL 3523797, at *13
(Tex. App.—Austin Dec. 6, 2006, pet. denied) (mem. op.) (applying MCI to future
mental anguish and holding that husband’s testimony that plaintiff was “real[ly]
frightened” of the future was no evidence of future mental anguish or of present
mental anguish that could support an inference of future mental anguish).
Anderson provided no testimony regarding whether he thought his alleged
mental anguish would likely improve, and how much and when, nor did he
provide any evidence that it would continue or grow worse over time. As stated
above, that the jury awarded an equal $400,000 amount for Anderson’s future
mental anguish, of which there is no evidence, as it did for Anderson’s supposed
18
past mental anguish evidences that the amounts awarded were not fair
assessments of Anderson’s injuries. See Bentley, 94 S.W.3d at 605 (“The jury’s
award of $7 million in mental anguish damages strongly suggests its
disapprobation of Bunton’s conduct more than a fair assessment of Bentley’s
injury.”). There is therefore no more than a scintilla of evidence supporting the
jury’s award of mental anguish damages.
c. Lost income
As to past lost income, Anderson testified that he started looking for a new
job “within days” and that “[p]hone calls were coming in and [he] was talking to
people.” Anderson went on “[a]t least five or six” interviews right after he was
fired. He testified that he was offered some of the interviews because the
employers had heard that he had left the Durant entities. Anderson got a job at
Holt Fiat doing “contract labor” buying used cars. He earned roughly $4,000
buying cars for Holt Fiat.
Anderson got a job at Frank Kent Honda as the used car director in
October 2012, about nine months after he left the Durant entities. He made
$120,000 a year at Frank Kent plus bonuses. He had made about $300,000 a
year at the Durant entities.
Anderson was promoted to new sales director overseeing two dealerships,
but he said he did not receive a pay increase. Frank Kent terminated Anderson
on November 1, 2013. Churchill testified that Anderson was fired for
performance reasons.
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Anderson claims that “word of his alleged criminal acts had spread to other
dealers preventing him from obtaining other employment,” but he provided no
evidence that he was not hired because of the rumors about him. In fact, he
testified himself that dealerships had called him when they heard he had left the
Durant entities. Churchill and Hiley testified that Anderson “came highly
recommended.”
Regarding future lost income, Anderson testified
I took the 200,000 that I had been making, and the best job I’ve got
so far is 120,000. So I took the 200,000 less 120,000, which leaves
80,000 in arrears.
....
So you take the 200,000 less the 120, it leaves you 80,000 per
year that I should—feel like I should be making. Lord willing, I have
nine more years left in me, if everything works like it’s supposed to.
Hopefully a lot more than that. So I took the nine years times eight,
80,000, and that’s 720,000 I’m seeking.
As Anderson himself notes in his brief on appeal, “an employee cannot
recover as defamation damages those damages caused by employment
termination.” Hines, 252 S.W.3d at 503. Instead, he argues that his lost income
was caused and would be caused in the future “by Durant’s defamation.” Yet he
does not point to any evidence, nor have we found any, demonstrating that
Anderson’s decrease in salary was the result of the defamation itself and not
merely the result of leaving his employment at the Durant entities and taking
different employment.
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Likewise, although Anderson provided testimony, including that of an
expert witness, with calculations of future lost income, none of that testimony
suggested that Anderson would suffer damages in the future caused by the
defamation. Anderson’s expert did not opine on the reason for Anderson’s
reduced income. Anderson provided the expert with salary figures and
requested that the expert use certain assumptions regarding how long it would
take him to regain his earning capacity. The expert testified, “I don’t sit here
giving opinions about how long it would take him to recover to his prior earning
capacity. I’m simply doing the financial calculation to reduce his figures and his
assumptions to present value.”
The plaintiff is always required to prove the existence of special damages
such as lost income in order to recover them, even when he alleges defamation
per se. See Hancock, 400 S.W.3d at 65. Part and parcel of proof of damages is
the “causal link” requirement: evidence of “a direct causal connection between
the damages awarded, the defendant’s actions, and the injury suffered.”
Texarkana Mem’l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 838 (Tex. 1997)
(citing Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 181 (Tex.
1995), abrogated on other grounds by Ford Motor Co. v. Ledesma, 242 S.W.3d
32 (Tex. 2007)). Here, Anderson failed to link the acts of the defendants to any
loss of his income. Such failure precludes his recovery. We sustain Durant and
the Durant entities’ fifth issue.
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3. Punitive damages
Durant and the Durant entities’ fourth issue concerns the jury’s award of
punitive damages. “Without evidence of actual damages, punitive damages
cannot be recovered.” Saenz, 925 S.W.2d at 614. Because we hold that no
evidence supports the jury’s awards of actual damages, we sustain Durant and
the Durant entities’ fourth issue. Having sustained Durant and the Durant
entities’ fourth and fifth issues, we do not reach their third issue. See Tex. R.
App. P. 47.1.
II. The Cote, Deere, Michelson, and Rash appeal
Cote, Deere, Michelson, and Rash’s first three issues concern the jury’s
defamation findings. Their second issue challenges the malice finding, and their
third issue challenges the award of defamation damages. For the same reasons
we articulated in sustaining Durant and the Durant entities’ issues regarding the
defamation damage award and the punitive damage award, we sustain Cote,
Deere, Michelson, and Rash’s second and third issues. We therefore do not
reach their first issue. See id. Their fourth issue challenges the trial court’s
judgment holding them jointly and severally liable for court costs. Because we
reverse the award of damages, we reverse the award of costs. See Tex. R. Civ.
P. 131. We therefore sustain their fourth issue.
III. The Maynard appeal
Maynard’s first four issues concern the jury’s defamation findings. His
fourth issue challenges the award of defamation damages. For the same
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reasons we articulated in sustaining Durant and the Durant entities’ issue
regarding the defamation damage award, we sustain Maynard’s fourth issue. We
therefore do not reach his first three issues. See Tex. R. App. P. 47.1.
Maynard’s fifth issue challenges the trial court’s judgment holding him jointly and
severally liable for court costs. Because we reverse the award of damages, we
reverse the award of costs. See Tex. R. Civ. P. 131. We therefore sustain
Maynard’s fifth issue.
Conclusion
Having sustained the appellants’ dispositive issues, we reverse the trial
court’s judgment and render judgment that Anderson take nothing on his claims.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: GARDNER, WALKER, and GABRIEL, JJ.
DELIVERED: February 11, 2016
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