Jeffery A. Bell and Wanda E. Bell v. Kendall Bennett and KRB Consulting, LLC ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00481-CV
JEFFERY A. BELL AND WANDA E. APPELLANTS
BELL
V.
KENDALL BENNETT AND KRB APPELLEES
CONSULTING, LLC
----------
AND
NO. 02-11-00057-CV
JEFFERY A. BELL AND WANDA E. APPELLANTS
BELL
V.
GARY CHERRY AND PREMIERE, APPELLEES
INC.
----------
AND
NO. 02-11-00063-CV
JEFFERY A. BELL AND WANDA E. APPELLANTS
BELL
V.
CARRIZO OIL & GAS, INC. APPELLEE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
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.
Appellants Jeffery A. Bell and Wanda E. Bell appeal from the trial court‘s
grant of summary judgments in favor of Appellees2 disposing of the Bells‘ claims
for defamation, intentional infliction of emotional distress (IIED), civil conspiracy,
1
See Tex. R. App. P. 47.4.
2
For ease of reference, the five defendants involved in this consolidated
appeal will be referred to as ―Appellees‖ when discussed as a group. To the
extent that the consolidated appeals need to be referred to individually, they will
be denoted as ―the Bennett/KRB appeal,‖ ―the Cherry/Premiere appeal,‖ and ―the
Carrizo appeal.‖
2
gross negligence, and loss of consortium; the Bells had alleged these same
claims against twenty-eight defendants after Jeff was terminated from his oil field
sales job with Express Energy. In essence, the Bells‘ claims are a house of
cards built on allegations of defamation and on stacked inferences purportedly
asserting a kickback scheme.3 The Bells‘ house of cards collapses because no
evidence exists supporting their defamation claims against any Appellee and
because any inferences concerning a kickback scheme are not relevant.
Because no evidence exists of a defamatory statement published by any
Appellee, no foundation exists to support any of the Bells‘ claims, and we will
affirm the trial court‘s grant of summary judgment for Appellees on all of the Bells‘
claims.
II. FACTUAL AND PROCEDURAL BACKGROUND
Jeff claims that he was terminated from Express Energy because he was
defamed by Appellees. He claims that Appellees conspired against him because
he would not participate in an alleged kickback scheme and that Appellees
intentionally inflicted emotional distress on him. The kickback scheme that Jeff
3
See Republic Nat’l Bank of Dallas v. Eiring, 240 S.W.2d 414, 416 (Tex.
Civ. App.—Amarillo 1951, no writ) (stating that ―Appellant‘s theory above outlined
is a house of cards based solely upon the primary assumption that the lease to
Kingwood Oil Company is upon the Northeast ¼ of Section 22, Block D-5‖ and
that ―[t]he fallacy of appellant‘s theory is shown by checking the Kingwood Oil
Company lease wherein it is found that such lease does not in fact cover the
Northeast ¼ of Section 22, Block D-5 . . . .‖); see generally Melancon v. State, 66
S.W.3d 375, 387 n.3 (Tex. App.—Houston [14th Dist.] 2001, pet. ref‘d) (stating
that ―[h]ere, the house of cards is even more tenuous; an inference is based
upon another inference, upon another and yet another‖).
3
attempts to weave together through inferences he draws from a variety of facts is
not relevant to any element of his underlying defamation claim and is not
supported by the record. See generally Tex. R. Evid. 401 (explaining that
relevant evidence means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence). Thus, in our factual
background, we omit most of the facts from which Jeff attempts to draw
inferences to show a kickback scheme. The facts recited below simply provide a
relational framework of the connection between the various individuals and
companies here; facts relating to other individuals or entities that were sued but
that are not involved in these appeals are omitted if not relevant to the issues
involved here. Conflicting summary judgment evidence exists on some
nonmaterial facts––such as which companies particular individuals worked at
during a particular time––thus, our opinion contains some nonmaterial factual
conflicts.
A. Jeff’s Deposition Testimony
Jeff worked in oil field sales for various companies. As part of these jobs,
Jeff interacted with ―company men‖ 4 at various rigs as he attempted to sell
different types of oil field services for his then current employer—either Frank‘s
Casing, Premiere, or Express Energy.
4
Jeff explained that the company man made decisions regarding who ―he
was going to use to do whatever type of work was going to be done.‖
4
1. Frank’s Casing
While employed by Frank‘s Casing, Jeff met Appellee Kendall Bennett.
Bennett was a company man at one of the rigs Jeff called on, and Bennett split
shifts with Mike Barton. Bennett testified that Jeff was a liar who had ―played‖
Bennett and his relief, Barton, off one another by telling Bennett that Barton had
promised Jeff the casing job and telling Barton that Bennett had promised Jeff
the casing job. During Jeff‘s deposition, he was questioned about this incident:
Q So when you first met Mr. Kendall Bennett, I would assume
that your intent was to try and get some work at that rig, right?
A Yes, sir.
Q And when you say ―work,‖ you are talking about Frank‘s
Casing, casing work, right?
A Yes, sir.
Q Okay. And do you remember a conversation with Mr. Barton
in which you told him that Mr. Bennett had promised you that you
could do the work on the site?
A No, sir.
Q Okay. Do you remember any conversation with my client,
Kendall Bennett, in which he basically told you that he felt that you
had misrepresented an agreement that you had with Mike Barton,
and that he didn‘t want you working -- that he didn‘t want you coming
back out to his site?
A No, sir.
Q Never happened?
A Not that -- not that I can remember it never happened.
5
Q Okay. So as we sit here today, you can‘t remember that
happening?
A It didn‘t happen.
Q Didn‘t happen?
A Didn‘t -- I don‘t remember it happening. As far as I know, it
didn‘t happen.
Q Okay. Again, I‘m not trying to fuss with you, but when
someone tells me they don‘t recall it happening, that tells me that it‘s
a possibility it happened, their memory just may not remember it.
A I guess that‘s --
Q Is that what we are saying today?
A Yeah.
Q Okay. So it‘s possible it happened, you just don‘t -- as we sit
here today under oath, you can‘t testify that you recall it, correct?
A Correct.
Q Okay. So if Mr. Bennett comes in and Mr. Barton comes in
and testifies to this jury that it did happen, you are just in a situation
where you say you don‘t remember it, but you are not denying that it
did, correct?
A Correct.
Also while Jeff was working at Frank‘s Casing, Jeff said that he purchased
a trailer and that the purchase had been approved by the advertising department.
His boss did not think that Jeff had received approval and thought that Jeff had
misappropriated funds. But Jeff said that he later received a letter stating that it
was a misunderstanding and that ―it was all taken care of.‖
6
Jeff later left Frank‘s Casing, stating that Appellee Premiere had offered
him a job making more money and had ―talked like it was a different type of
environment.‖ Jeff said that he was not aware that Frank‘s Casing had written on
his termination report: ―REASON FOR TERMINATION (STATE DETAILS AND
ATTACH SUPPORTING DOCUMENTS): Paid very little attention to detail. Did
not keep up with customers. Worked when wanted to. Talked in circles. . . .
Didn‘t take care of his job very well. . . . MISC. REMARKS: Poor salesman.‖
Jeff‘s perspective was that his supervisor was disappointed that he was resigning
and tried to convince him to continue working for Frank‘s Casing.
2. Premiere
Jeff said that Appellee Gary Cherry, an oil field salesman with Premiere,
had suggested that he come to work at Premiere. According to Jeff, Cherry
became upset with Jeff when Jeff spoke to one of Cherry‘s customers about a
mistake that Cherry had made. Jeff claimed that he had been asked to go talk to
the customer. Cherry nonetheless complained to Jeff‘s boss and also told
Premiere‘s vice president, Jim Williams, that Jeff was trying to steal his work.
While Jeff was working at Premiere, a woman named Marilyn H. who was
a Premiere employee made sexual harassment allegations against him. Jeff said
that Cherry brought up the sexual harassment issue involving Marilyn H. at one
of the company‘s functions. Jeff explained that Cherry was talking to him and
that when Cherry saw that others were nearby, he said that he would talk to Jeff
7
about it later. Jeff considered what Cherry had said to be defamatory because it
was not said one-on-one in an office.
Jeff said that shortly thereafter, when he had been with Premiere for a
year, he received a phone call from vice president Jim Williams, who stated that
Jeff‘s services were no longer needed; no details were provided.5 Jeff was hired
at Express on the same day that he was fired from Premiere.
3. Express
Jeff testified during his deposition that he had told Ricky Wiggins, the
district manager for Express, during his initial interview with Express about
Marilyn H.‘s sexual harassment allegations and that he had been accused of
misappropriating company funds for a trailer while he was at Frank‘s Casing.
After Jeff started working at Express, Wiggins and general manager Randy
Davis told him to go by every rig to see if they had a sales representative and to
inquire whether he or she was doing a good job. Jeff met with Wiggins weekly to
provide updates on whom he had called on during the previous week and to
recount the feedback that he had received. During those meetings, Wiggins told
Jeff that he was doing a good job.
5
Approximately one month after Jeff was fired from Premiere, he went to
pick up his last paycheck. Jeff claims that he spoke with Chris Meche who told
him that Premiere employees Cherry and Jim Reposa had been trying to get rid
of him for a year. Jeff said that Reposa told Jim Williams that Jeff had stolen
work from him; Jeff claimed that Reposa had in fact reassigned certain rigs to
him. Jeff was not told by Jim Williams that during the previous year Jeff had
been the lowest income producer for the district.
8
Whenever Jeff as a representative of Express called on Bennett, Jeff
thought they had a good visit and recalled selling Bennett a job. Jeff believed
that Bennett worked for Denbury at the time.
4. The Termination
Jeff was fired one month after he started working at Express. The
―Personnel Action Form‖ documenting Jeff‘s employment termination states that
the reason for Jeff‘s discharge was that ―Jeff[‘s] salesmanship has not shown to
be beneficial to Express Energy or him[]self. Several customer[s—]Quicksilver[,]
Denbury[, and] Chesapeake[—] prefer not to have him. Could be personal
issues or previous employer slander issues!‖ Jeff said that Wiggins went over
the personnel action form with him but that the reason for his termination did not
ring true because he had brought in several jobs during the month that he was
with Express.
Wiggins wrote on Jeff‘s termination paperwork that Quicksilver, Denbury,
and Chesapeake had made complaints about Jeff and that there was previous
employer slander.6 When Jeff asked Wiggins what was said about him and who
said it, Wiggins said that it was a guy who had previously worked for New Tech
6
Jeff admitted that Wiggins did not make a defamatory statement when he
told Jeff that he liked his work but that they had made a decision based on what
was written on the personnel action form. And Jeff had no knowledge of
Wiggins‘s making any slanderous statements about Jeff to anyone else.
9
and Quicksilver and was currently working for Carrizo Oil & Gas.7 Jeff asked if
the person was Dickey Pate, Jr., and Wiggins smiled and changed the subject.
Jeff said that he inferred from Wiggins‘s body language that Pate, Jr. was the
person who had made the slanderous statements that had resulted in Jeff‘s firing
from Express.
Jeff believed that Pate, Jr. had made the statement because a friend who
Jeff said worked for Carrizo had told Jeff that Pate, Jr. was the only person he
knew who had made the jump from Quicksilver to New Tech to Carrizo.
Additionally, Jeff had talked with Pate, Jr. at one of the rigs, and Pate, Jr. had
referenced that he was glad that Marilyn H. was not there. During that
conversation, Jeff and Pate, Jr. were the only two people present, and Jeff
presumed that Cherry must have told Pate, Jr. about the Marilyn H. issue.
In his deposition, Jeff initially testified that Wiggins never said that Pate, Jr.
had made slanderous statements against Jeff. Jeff later testified that Wiggins in
fact had told him that Pate, Jr. had called and had made accusations that caused
Jeff to lose his job, that the accusations were very serious, and that Jeff should
see an attorney.
Jeff testified that Wiggins said during Jeff‘s exit interview that Cherry or
Pate, Jr. had made some statements about Jeff, but Wiggins did not say what the
statements were. Jeff testified that he did not believe Wiggins‘s deposition
7
Jeff believed that Wiggins‘s explanation described the employment history
of a man named Dickey Pate, Jr.
10
testimony that he had never heard anything negative about Jeff from Cherry;
Pate, Jr.; or Premiere.
Jeff said that he believed he was terminated from Express (1) due to
statements that Cherry and Pate, Jr. had made to Wiggins and (2) due to
employees of Express feeling threatened when Jeff questioned a kickback
scheme that he thought Express salespeople utilized to obtain business from
certain company men, including Bennett and a company man at ConocoPhillips.
Jeff believed that all of the Appellees had conspired in some form or fashion to
get him fired from Express because he had knowledge of the kickback scheme
and was not willing to participate in it. Jeff admitted, however, that under the
Express employee handbook, an employee could be terminated for
unsatisfactory work performance and/or conduct. And Jeff agreed that if a
salesman was pitting a night company man against a day company man to gain
business, that would constitute grounds for firing that salesman. Jeff, however,
denied engaging in such conduct because it would ―bite you in the seat‖ and was
unethical.
According to Jeff, after he was fired, Wiggins told him that Bennett did not
want him back on Bennett‘s rig, but Wiggins did not go into any detail. Jeff
believed that Bennett had called Express to complain about Jeff two or three
days before Jeff was terminated. Jeff conceded, however, that the ―previous
employer slander‖ mentioned on his personnel action form was not made by
Bennett. Jeff did not know what Bennett had said that had caused Jeff to lose
11
his job. Jeff also did not know what allegedly defamatory statements the other
Appellees had made that Jeff claimed Bennett had negligently accepted and
relied on.
B. Bennett’s Deposition
As a well site supervisor/consultant for Denbury, Bennett had the authority
to hire whatever vendor might be needed to perform a job. And Bennett chose
not to use Jeff.
Bennett remembered Jeff ―[a]s a liar.‖8 He recalled that when Jeff was with
Premiere, he came out to the rig and he ―played‖ Bennett and his relief (Mike
Barton) by telling Barton that Bennett had said that Jeff could have the casing job
and vice versa even though Bennett had not said that Jeff could have the casing
job. Bennett said that Jeff got caught in the lie and was told to leave.
Bennett said that a year and a half passed before Jeff came into his office
on behalf of Express. Bennett reminded Jeff that Jeff had lied to him before and
told Jeff to leave and to not return because he was not welcome. Jeff left.
Bennett then picked up the phone and called Express and told either David,
8
Bennett stated that Jeff lied when he said that Bennett had participated in
a kickback scheme by illegally receiving a Harley Davidson and a 2006 Mustang.
And although Jeff‘s sales call notes indicated that Jeff had visited Bennett
several times, Bennett said the visits documented were lies.
12
Joey, or Richard/Ricky9 that he did not want Jeff back on his location because of
what Jeff had done in the past when he was with another company.
Before this lawsuit, Bennett had never heard anything derogatory about
Jeff. In his affidavit, Bennett stated that he had never heard from anyone at any
time that Jeff was a sexual predator, assailant, or harasser and had never heard
from anyone that Jeff had committed theft or fraud. He also stated that he was
unaware of any plan or agreement to terminate Jeff; he simply did not want Jeff
at his jobsite based on his past personal experience with Jeff and what he
perceived as a lie by Jeff.
C. Wiggins’s Deposition
Wiggins, the district manager for Express, said that Jeff made a few sales
for Express after he was hired, but then Wiggins started receiving complaints
about Jeff. Wiggins followed-up on the complaints with phone calls.
Wiggins believed that Bennett had made one of the earlier complaints,
requesting that Express send someone else to his rig because he had
encountered problems with Jeff on prior jobs. Bennett did not specify what the
problems were but gave Wiggins the impression that the problems were related
to a sensitive issue.
9
These individuals are unidentified in the record. During his deposition,
Bennett did not recall that in his affidavit he had stated that he had spoken with
Richard Wiggins at Express.
13
Wiggins could not recall the names of the company men at Quicksilver,
Denbury, or Chesapeake who had complained about Jeff, but all three customers
said that they preferred not to have Jeff at their rig site. Chesapeake did not
want Jeff on site because he had made mistakes and had ―issues outstanding‖
when he had worked for Premiere and Frank‘s Casing; Wiggins, however, did not
know what mistakes Jeff had made that Chesapeake was critical of, nor did
Wiggins know ―what the specific issue was when he [Jeff] worked for Premiere or
Frank‘s Casing.‖ Two people from Denbury told Wiggins that they preferred not
to have Jeff at their location. Wiggins could not recall who from Quicksilver had
told him that he would prefer a different salesman. 10 Wiggins reassigned Jeff to
other areas after the complaints came in, but Jeff did not get any new sales for
Express.
Wiggins told Mike Byrd (vice president of drilling for Express) and Randy
Davis (general manager for Express) that Jeff‘s paperwork was wonderful but
that three customers did not want him on location; Wiggins indicated that he did
not know the reasons for the customers‘ decisions. Wiggins also told Byrd and
Davis about what Bennett had said. Wiggins stated that the personnel action
form came about after Byrd, Davis, and Wiggins decided to fire Jeff. Wiggins
10
A New Tech employee told Wiggins that while Jeff was with Premiere,
Jeff had told three Quicksilver employees that he had been approved for a job at
Quicksilver, but none of the three had actually approved him. The three
Quicksilver employees figured it out when a piece of equipment broke, and they
questioned why they had chosen to use Jeff.
14
said that their decision was not based on Bennett‘s comment that the reason he
did not want Jeff on the jobsite was sensitive. Wiggins said that Jeff was
terminated ―for his poor performance on the three customers [Quicksilver,
Denbury, and Chesapeake] that he was actually based to achieve work with and
maintain good customer relationship with. He didn‘t have to sell anything. It was
given to him.‖
When asked what might have been affecting Jeff‘s job performance at
Express, Wiggins said that he only knew what Jeff had used as an excuse—―his
prior employer‘s possibly talking slanderish about him in the field.‖ Wiggins said
that situation included an ongoing sexual harassment lawsuit. Wiggins said that
Jeff did not disclose the sexual harassment action in the initial interview but told
Wiggins about it after Wiggins hired him. Wiggins said that Jeff also told him that
―the guys over there [at Frank‘s Casing] were talking bad about him‖ and that he
had been accused of using a barbeque pit or company money for personal use
and not returning it. Wiggins said that he first heard about both the sexual
harassment lawsuit involving Jeff and about the Frank‘s Casing allegations of
misusing company property or company funds from Jeff.
Wiggins came to the conclusion that either Jeff had personal issues with a
lot of company men or that other employers had blemished Jeff‘s sales ability.
Wiggins said that his personal opinion was that the ―personal issues‖ that Jeff
had were that ―his presentation to a customer would probably get you kicked off a
location.‖ Wiggins explained that his note on the personnel action form ―could be
15
personal issues‖ related to Jeff‘s inability to change with the customers‘ needs.
Wiggins‘s note about ―previous employer slander issues‖ related to what Jeff had
personally told him about his prior employment issues.
Although Jeff listed Wiggins as an eyewitness to the defamatory
statements forming the basis of these lawsuits, Wiggins testified that he had no
personal knowledge of any negative comments or defamatory statements made
about Jeff by Pate (Jr. or Sr.), Cherry, or Premiere. Wiggins said that he had
heard from Express salespeople after Jeff left Express that Jeff had been
accused of stealing a barbeque pit when he worked for Frank‘s Casing, of
misappropriating funds on a credit card or personal expense account, and of
being involved in a sexual harassment case. Wiggins said that Jeff had told ―a
lot of people‖ about the sexual harassment case.
D. Cherry’s Deposition
Cherry was a salesman with Premiere from July 2006 to December 15,
2009. Cherry recommended Jeff for the job at Premiere. Jeff rode with Cherry
the first three days that he was on the job, and Cherry showed him how Premiere
did their sales calls and paperwork. Cherry later heard that Jeff spent a lot of
time in making sales calls, wasting the time of company men.
A few days after Jeff started working with Cherry at Premiere, Jeff told
Cherry about the accusations he faced at Frank‘s Casing related to the trailer
and barbeque pit. Cherry told Jeff to tell Premiere vice president Jim Williams
about the barbeque grill and trailer, and he did so.
16
Cherry said that Marilyn H. mentioned to him that she had experienced
―inappropriate verbiage‖ from a salesman; Cherry said that he did not want to
know about it and that she should report it to upper management. Cherry said
that he believed that the salesman that Marilyn H. had referred to was Jeff
because Jeff also called him about the situation, and he had given Jeff the same
advice. Cherry never told anyone about Jeff‘s issues with Marilyn H.
Cherry made sales for Premiere to Pate, Jr. while Pate, Jr. was at
Quicksilver and later at Carrizo. The only conversation Cherry had with Pate, Jr.
that mentioned Jeff was when Pate, Jr. told him that he wanted Cherry to do his
work, not Jeff. This occurred when Jeff was working for Premiere.
Cherry denied calling Express or contacting Wiggins to complain about
Jeff. Cherry reiterated that he had not said anything about Jeff that was
negative.
E. Trial Court’s Disposition
After hearing arguments, the trial court granted Appellees‘ motions for
summary judgment. These appeals followed.
III. SUMMARY JUDGMENT STANDARDS OF REVIEW
A. No-Evidence Summary Judgment
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
claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the
17
elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). 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).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168
S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if
reasonable jurors could, and we disregard evidence contrary to the nonmovant
unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the
nonmovant brings forward more than a scintilla of probative evidence that raises
a genuine issue of material fact, then a no-evidence summary judgment is not
proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030
(2004).
18
B. Traditional Motion for Summary Judgment
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant‘s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively
negates at least one essential element of a cause of action is entitled to
summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d
494, 508 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P.
166a(b), (c).
IV. TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT
TO ALL APPELLEES ON ALL OF THE BELLS’ CLAIMS
The trial court granted summary judgment for Bennett, KRB, and Carrizo
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 analyze the propriety of the summary judgments granted in favor of
Bennett, KRB, and Carrizo under the no-evidence standard first. 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
19
review the no-evidence motion first). Cherry and Premiere also filed a no-
evidence and a traditional motion for summary judgment. The trial court‘s order,
however, expressly granted Cherry and Premiere‘s traditional motion for
summary judgment. We therefore analyze the propriety of the summary
judgment granted in favor of Cherry and Premiere under only the traditional
summary judgment standard.
In their first issue, the Bells generally challenge the trial court‘s grant of
summary judgment in favor of all Appellees. In five subissues, the Bells
challenge the trial court‘s grant of summary judgment in favor of Appellees on
each of the following claims: defamation, IIED, civil conspiracy, gross
negligence, and loss of consortium. The Bells‘ pleadings indicate that all of their
claims hinge on the alleged defamation—that is, the IIED claim is based on the
emotional distress that Jeff alleged he suffered as a result of the defamation and
its consequences; the civil conspiracy claim is predicated on an allegation of a
conspiracy to defame Jeff; the gross negligence claim is based on the alleged
tort of defamation; and Wanda‘s loss of consortium claim is based on the alleged
defamation of her husband.
A. Summary Judgment on Defamation Claims Was Proper
1. The General Law Concerning Defamation
―Defamation‖ is generally defined as the invasion of a person‘s interest in
his or her reputation and good name. Prosser & Keeton on Torts § 111, at 771
(5th ed. 1984 & Supp. 1988). ―Defamation‖ encompasses both libel and slander.
20
By statute, Texas law defines ―libel‖ as a defamation expressed in written or
other graphic form that tends to injure a living person‘s reputation and thereby
expose the person to public hatred, contempt, 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 (West
2011). Although ―slander‖ is not statutorily defined, at common law, slander is a
defamatory statement that is orally communicated or published to a third party
without legal excuse. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640,
646 (Tex. 1995). To prevail on a defamation claim, the plaintiff must prove that
the defendant (1) published a statement, (2) that was defamatory concerning the
plaintiff, (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).
2. Application of the Law to the Present Facts
Here, the Bells pleaded,
On three separate occasions from August 22, 2008 through
September 24, 2008, Defendants told the drilling rig foremen (called
―company men‖ in the trade) of three separate drilling rigs – one rig
being operated by Chesapeake – a second rig being operated by
Denbury – and a third rig being operated by Quicksilver – that
Plaintiff Jeffery Bell was a sexual predator/assailant/harasser while
working at his previous employment with Premiere, Inc., and that he
committed theft/fraud while working at his previous employment with
Frank‘s Casing.
21
Nowhere in their pleadings, their summary judgment response, or in their brief on
appeal, however, do the Bells set forth or identify the alleged defamatory
statements that they contend were made or identify who specifically made them.
Although Jeff was asked repeatedly in his deposition to identify what allegedly
defamatory statements were made and who made them, he repeatedly testified
that he did not know what was said or who said it, just that it must have been
bad:
Q And can you tell me what statement has been made by any of
these parties that you are claiming are defamatory, what the
statement is?
A I don‘t know exactly what the statements, you know, were. I
was just told when you see on that piece of paper [the personnel
action form that he received when fired from Express] you got a copy
of that it was serious enough that it caused me to lose my job and I
needed to go see an attorney.
Specifically concerning Bennett, Jeff testified:
Q And do you know the reasons these customers preferred not to
have you on their rigs and not to have you come by and --
representing Express, try and make sales?
A No, sir, I do not.
Q As we sit here today, do you know?
A Not really, because I had a good working relationship for two
years, so I don‘t know.
Q Well, you sued my client [Bennett], correct?
A Yes, sir.
Q And you sued my client for what reason?
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A Because, obviously, if it‘s written on a piece of paper that Denbury
doesn‘t want me at their rig, then something had to happen.
Q All right.
A I don‘t know what had happened, and went in and tried to find out
what happened.
Through the deposition with Mr. Ricky Wiggins, he just kept
using Kendall Bennett and Mike Barton.
Q Okay. And what did he say about Kendall Bennett and Mike
Barton?
A I don‘t remember the exact wording in his deposition, but he kept
saying it was because something at -- because of them.
Q And so that‘s why you sued my client?
A Something was said negative enough to cause me to lose my job.
Q And what was that negative thing that Kendall Bennett said to
cause you to lose your job?
A I honestly don‘t know.
Q Okay. And nobody from Express told you that Kendall Bennett
said something negative about you that caused them to terminate
you, did they?
A They told me that Kendall Bennett had called in and said that he
didn‘t want me back at his rig.
....
Q Okay. Is that the negative statement, you think?
A Yeah, it‘s pretty negative. When you think you got a good
relationship, like me and you talking, and the next thing you know,
you don‘t know that you‘ve offended somebody. They don‘t want
you back, it‘s -- you don‘t know why.
Q And you still don‘t know why, do you?
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A Huh-uh.
....
Q And I‘ve asked you under oath to tell me what slanderous
statements my client made about you, and what you‘ve told the jury
is all you can say is Mr. Bennett allegedly called your employer and
said he didn‘t want you out on any of his rigs, correct? Right?
A That‘s correct.
....
Q Tell me and this jury what the slanderous statements my client
made against you were.
I mean, if you don‘t know, just say you don‘t know. But I‘d like
to know.
A I really don‘t know.
Thus, the Bells fail to identify any alleged defamatory statement by any Appellee.
Moreover, during his deposition, Jeff testified that he had disclosed the
sexual harassment charges and the Frank‘s Casing misappropriation allegations
to Wiggins immediately after he was hired by Express:
Q In fact, Mr. Wiggins states that the information about the
sexual harassment lawsuit involving you was told to him by you and
nobody else. Do you believe that?
A I did tell him that before I took the job, because I did not want
something to come up and bite me after I got hired. I felt like full
disclosure was the best thing to do. And if I got hired that way, then
I didn‘t have nothing to worry about. I didn‘t want to take the job
under false pretenses and someone disclose and lose it.
Q So are you telling -- are you telling me that you told Mr.
Wiggins about the sexual harassment suit before he hired you.
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A Yes, ma‘am.
....
Q Okay. If Mr. Wiggins testified that the allegations of you
working at Frank‘s Casing of using company property or company
funds or whatever happened at Frank‘s Casing, he was only made
aware of by you?
A Correct. I disclosed everything that happened at Frank‘s
same as I did with Premiere in the interview when I got the job. And
he . . .
....
Q (By Ms. Kennedy) So if it‘s your testimony that you were let go
because Mr. Wiggins knew of this conversation between Mr. Cherry
and Mr. Pate, even though he says he didn‘t know anything about it,
that is what you are basing your lawsuit against Mr. Cherry on;
would that be correct?
A Yes.
....
Q Okay. Earlier I believe you testified that you told Mr. Wiggins
about Marilyn H[.]‘s allegations and also about the allegations of
theft from Frank‘s Casing; is that correct?
A Yes, ma‘am.
Q Did you tell anyone at Express about that -- those allegations?
A Well, I think Randy Davis was there and there was the guy
over the shop -- I can‘t think -- Marty -- I can‘t think of his name. Like
I said, there‘s three or four of us in there and I disclosed
everything. . . .
Thus, the summary judgment evidence establishes that Jeff himself disclosed to
Wiggins the very information that he apparently alleges caused him to be fired
from Express because it was disclosed to Wiggins by Appellees.
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The summary judgment evidence, viewed in the light most favorable to
Jeff, fails to constitute a scintilla of evidence that any Appellee made a
defamatory statement concerning Jeff and, in fact, conclusively negates the
existence of a defamatory statement by Appellees. Although the summary
judgment evidence establishes that Bennett advised Express that he would not
work with Jeff because he had previously been ―played‖ by Jeff and did not feel
that Jeff was trustworthy, Jeff himself agreed during his deposition that this
statement by Bennett was not defamatory and did not constitute the basis for his
defamation claim.
Likewise, the summary judgment evidence establishes that Cherry spoke
with Jeff on one occasion at a company function about Marilyn H.‘s sexual
harassment claim, that Jeff himself had previously told Cherry about that issue,
that Cherry halted the conversation at the company event when others
approached, and that Cherry said that he had not told anyone about Jeff‘s issues
with Marilyn H.
To the extent that the Bells attempt to hold Carrizo liable based solely on
statements allegedly made by Pate, Jr., the summary judgment evidence
establishes that Pate, Jr. has never been an employee of Carrizo. And Pate,
Jr.‘s motion for summary judgment was granted prior to Carrizo‘s motion being
heard; thus, because Pate, Jr. had been granted summary judgment on the
defamation claims that the Bells pleaded against him, Carrizo was also entitled to
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summary judgment on the defamation claims that the Bells pleaded it was
vicariously liable for based on Pate, Jr.‘s purported statements.
In short, no evidence exists that any Appellee published a defamatory
statement about Jeff. Jeff agreed that Bennett‘s I-don‘t-want-to-work-with-Jeff
statement, which was based on Bennett‘s personal experience, was not
defamatory. No evidence exists identifying a defamatory statement that was
made or published by Carrizo or an employee of Carrizo. Cherry and Premiere
conclusively negated an essential element of Jeff‘s defamation claim––the
existence of a defamatory statement published by Cherry. Accordingly, we hold
that the trial court did not err by granting Bennett and KRB‘s and Carrizo‘s
motions for no-evidence summary judgment on the Bells‘ defamation claims or
by granting Cherry and Premiere‘s motion for traditional summary judgment on
the Bells‘ defamation claims. See Tomlinson v. McComas, No. 02-11-00175-CV,
2011 WL 5607604, at *8 (Tex. App.—Fort Worth Nov. 17, 2011, pet. filed)
(holding that statements regarding how president of homeowners‘ association
presided over matters constituted opinions that were not actionable for
defamation). We therefore overrule subissue A relating to the grant of summary
judgment to Appellees on the Bells‘ defamation claims.
B. Summary Judgment on Intentional Infliction of
Emotional Distress Claims Was Proper
In subissue B, the Bells argue that the trial court erred when it granted
summary judgment to Appellees on the Bells‘ claims of IIED. In the
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Cherry/Premiere appeal and the Carrizo appeal, the Bells concede that their
―IIED claims are not permitted because the Bell[s] have other remedies at law,
and therefore, an IIED claim is an impermissible ‗gap-filler.‘‖ We therefore
overrule the Bells‘ subissue B as it pertains to Appellees Cherry, Premiere, and
Carrizo. We hold that the trial court did not err by granting summary judgment for
these Appellees on the Bell‘s IIED claims.
In the Bennett/KRB appeal, the Bells argue that Bennett and KRB are
liable to the Bells for IIED ―because the Texas Supreme Court specifically allows
IIED claims when an employee is wrongfully terminated by an employer who is
engaged in conduct ‗bordering on serious criminal acts.‘‖ Specifically, the Bells
argue that Bennett and KRB engaged in serious criminal acts when they
engaged and participated in the illegal kickback and bribery schemes of Express
and that ―all of [the] Bell[s‘] IIED claims are based on Bennett and KRB‘s conduct
that [constitutes] serious criminal acts or ‗bordering on serious criminal acts.‘‖
As noted above, the Bells‘ arguments related to any alleged kickback
scheme are not relevant to any element of defamation. See Tex. R. Evid. 401.
And the Bells have not pleaded any other cause of action or tort that would
permit their IIED claims. Accord Stephan v. Baylor Med. Ctr. at Garland, 20
S.W.3d 880, 892 (Tex. App.—Dallas 2000, no pet.) (stating that ―[a]bsent a false
and defamatory statement, Baylor‘s conduct in publishing the report could not be
extreme or outrageous as required for an intentional infliction of emotional
distress claim‖). Because no evidence exists that any Appellee published a
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defamatory statement concerning Jeff and because the Bells do not allege any
other purportedly extreme or outrageous conduct by Appellees, the Bells‘ IIED
claims fail. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005)
(stating that IIED is a ―gap-filler‖ tort never intended to supplant or duplicate
existing statutory or common-law remedies and that even if other remedies do
not explicitly preempt the tort, their availability leaves no gap to fill); Hoffmann-La
Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447–48 (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); see also Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999)
(holding that the conduct complained of—that defendants made negative
comments that were reflected in professor‘s tenure file, repeatedly recommended
that professor should not be allowed to continue on tenure track, restricted his
speech regarding contents of his tenure folder, and allegedly assigned him an
excessive case load—did not rise to level of extreme and outrageous, and thus,
IIED claim failed as a matter of law). We hold that the trial court did not err by
granting either no-evidence or traditional summary judgments on the Bells‘ IIED
claims. We overrule the remainder of the Bells‘ subissue B.
C. Summary Judgment on Civil Conspiracy Claims Was Proper
In subissue C, the Bells argue that the trial court erred by granting
summary judgment to Appellees on the Bells‘ claims for civil conspiracy.
29
Appellees respond that there was no evidence of any defamatory statement and
that the Bells have not produced any evidence of a conspiracy.
An actionable civil conspiracy is a combination by two or more persons to
accomplish a lawful purpose by unlawful means. Massey v. Armco Steel Co.,
652 S.W.2d 932, 934 (Tex. 1983). The essential elements of a civil conspiracy
are (1) two or more persons; (2) an object to be accomplished; (3) a meeting of
the minds on the object or course of action; (4) one or more unlawful, overt acts;
and (5) damages as the proximate result. Tri v. J.T.T., 162 S.W.3d 552, 556
(Tex. 2005); Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996); Triplex
Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex. 1995). It is not the
agreement itself but an injury to the plaintiff resulting from an act done pursuant
to the common purpose that gives rise to a cause of action for civil conspiracy.
Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 925 (Tex. 1979). In other
words, recovery is not based on the conspiracy but on an underlying tort. Tilton
v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). Thus, a conspiracy claim is a
derivative tort. Id.
The Bells alleged that Appellees defamed Jeff as the underlying tort to
support their conspiracy claim. But, as explained above, there is no summary
judgment evidence of any defamatory statement published by any Appellee.
Therefore, the Bells again attempt to interject their contention that an elaborate
kickback scheme existed among Appellees, and their theory that because Jeff
refused to participate in the scheme, Appellees conspired to have him fired. The
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kickback scheme was not pleaded as any type of independent tort or cause of
action by the Bells, and the summary judgment evidence contains no evidence to
support that any two Appellees had a meeting of the minds on any specific object
or course of action in furtherance of a conspiracy. See Miller v. Raytheon Aircraft
Co., 229 S.W.3d 358, 382 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(concluding that appellant produced no evidence of meeting of minds to perform
an unlawful act necessary to establish civil conspiracy claims). We hold that the
trial court did not err by granting summary judgment for all Appellees on the
Bells‘ claims for civil conspiracy. See id. (holding that trial court properly granted
summary judgment on appellant‘s civil conspiracy claims because there was no
evidence of meeting of the minds); Malone v. Malone, No. 02-08-00157-CV,
2009 WL 2579629, at *4 (Tex. App.—Fort Worth Aug. 20, 2009, pet. denied)
(mem. op.) (holding that trial court did not err by granting brother‘s no-evidence
summary judgment on sister‘s civil conspiracy claim because sister presented no
evidence that brother had engaged in a civil conspiracy to breach any potential
fiduciary duty that he owed to sister). We overrule the Bells‘ subissue C relating
to the grant of summary judgment to Appellees on the Bells‘ civil conspiracy
claims.
D. Summary Judgment on Gross Negligence Claims Was Proper
In the Bells‘ subissue D, they argue that the trial court erred by granting
summary judgment to Appellees on the Bells‘ claims for gross negligence. The
Bells argue that ―whether the underlying basis of liability against [Appellees] is
31
defamation or intentional infliction of emotional distress, or civil conspiracy to
commit same, the Bell[s‘] evidence directly establishes gross negligence.‖ As we
held above, no evidence exists that any Appellee defamed Jeff, and no evidence
exists of a civil conspiracy among Appellees; thus, there is likewise no evidence
to support the Bells‘ claims for gross negligence. See, e.g., Rodriguez v. Wal-
Mart Stores, Inc., 52 S.W.3d 814, 821 (Tex. App.—San Antonio 2001, pet.
granted), overruled on other grounds, 92 S.W.3d 502 (Tex. 2002) (stating that
negligence and gross negligence claims cannot exist independent from malicious
prosecution claim and declining to hold that a duty exists outside the torts of
malicious prosecution and defamation not to falsely accuse someone of criminal
wrongdoing). We overrule the Bells‘ subissue D relating to the grant of summary
judgment to Appellees on the Bells‘ gross negligence claims.
E. Summary Judgment on Wanda’s Loss of Consortium
Claims Was Proper
The Bells argue in subissue E that the trial court erred by granting
summary judgment to Appellees on Wanda‘s claims for loss of consortium.
Claims for loss of consortium are derivative. Motor Express, Inc. v. Rodriguez,
925 S.W.2d 638, 640 (Tex. 1996); Whittlesey v. Miller, 572 S.W.2d 665, 667
(Tex. 1978). Furthermore, loss of consortium damages are recoverable only
when the nonderivative claim resulted in physical injury. Motor Express, Inc.,
925 S.W.2d at 640; Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 294
(Tex. 1994). Because the summary judgment was proper for all Appellees on all
32
of the Bells‘ pleaded causes of action, Wanda‘s derivative loss of consortium
claims likewise fail. See Motor Express, Inc., 925 S.W.2d at 640 (holding that
wife‘s claims were not recoverable as a matter of law); see also Brewerton, 997
S.W.2d at 217 (holding that wife‘s loss of consortium claim failed because it was
wholly derivative of her husband‘s IIED claim, which the court held failed as a
matter of law). We hold that the trial court did not err by granting the no-evidence
motions for summary judgment filed by Bennett and KRB and Carrizo and by
granting Cherry and Premiere‘s motion for traditional summary judgment on
Wanda‘s loss of consortium claims. We overrule the Bell‘s subissue E.
V. TRIAL COURT DID NOT ERR BY STRIKING BANKRUPTCY EXPERT
In the Bennett/KRB appeal, the Bells raise a second issue—that the trial
court erred when it struck their bankruptcy expert witness, bankruptcy trustee
William Bonney. The Bells state that ―Bonney‘s expert opinion . . . is that Bennett
is guilty of federal bankruptcy crimes as a result of his failure to report bonus
income and the acquisition of the 2006 Ford Mustang and the 2002 Harley
Davidson motorcycle‖ and that ―Bonney‘s expert testimony in the bankruptcy
area is vital to the Bell‘s claims that Bennett was intentionally concealing the
Harley and the Mustang.‖
Admissibility of expert testimony is a matter within the trial court‘s
discretion. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); E.I. du
Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). To
determine whether a trial court abused its discretion, we must decide whether the
33
trial court acted without reference to any guiding rules or principles; in other
words, we must decide whether the act was arbitrary or unreasonable. Low v.
Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835,
838–39 (Tex. 2004).
Texas Rule of Evidence 702, which governs the admission of expert
testimony, provides, ―If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise.‖ Tex. R.
Evid. 702. However, Texas Rule of Evidence 402 states, ―Evidence which is not
relevant is inadmissible.‖ Tex. R. Evid. 402.
Here, Bonney‘s expert testimony about Bennett‘s bankruptcy is not
relevant to any element of the Bells‘ defamation claims. Nor is Bonney‘s expert
testimony about Bennett‘s bankruptcy relevant to any element of the Bells‘ other
pleaded claims. Because Bonney‘s expert testimony was not relevant to any of
the claims brought by the Bells, we hold that the trial court did not abuse its
discretion by striking Bonney as an expert witness. See Boulle v. Boulle, 254
S.W.3d 701, 707–08 (Tex. App.—Dallas 2008, no pet.) (holding that trial court
properly excluded expert testimony that was not relevant to any ultimate issue
before the jury). We overrule the Bells‘ second issue in the Bennett/KRB appeal.
34
VI. CONCLUSION
Having overruled all of the Bells‘ issues and subissues, we affirm the trial
court‘s judgments.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DELIVERED: March 15, 2012
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