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S&T Aircraft Accessories, Inc. and Mary Turner v. Ben Bonnington ( 2000 )


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  • TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





    NO. 03-98-00648-CV

    S&T Aircraft Accessories, Inc. and Mary Turner, Appellants


    v.



    Ben Bonnington, Appellee





    FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT

    NO. C96-0781B, HONORABLE CHARLES RAMSAY, JUDGE PRESIDING

    Appellants S&T Aircraft Accessories, Inc. and Mary Turner appeal from the trial court's judgment rendered in conformance with the jury's findings that they slandered and intentionally inflicted severe emotional distress on appellee Ben Bonnington. We will affirm in part and reverse and render in part.

    Background

    Turner is president of S&T; Bonnington worked at S&T from September 1995 through early December 1995. Bonnington left S&T in December and has since returned to his home in Arizona. In October 1996, Bonnington sued S&T and Turner, claiming Turner had slandered him to S&T employees and people unrelated to S&T, intentionally causing him to suffer emotional distress, and that S&T and Turner had breached his employment contract. Bonnington sued Turner in her individual capacity and S&T as principal for Turner, its agent. The jury found in favor of Bonnington on his defamation and intentional infliction of emotional distress claims, awarding him actual damages for slander in the amounts of $39,800 from Turner and $74,800 from S&T, plus actual damages for emotional distress in the amounts of $30,000 from Turner and $30,000 from S&T. The jury also assessed punitive damages of $50,000 against Turner and $125,000 against S&T. The trial court awarded Bonnington total damages of $349,600 on the jury verdict.

    S&T and Turner challenge the sufficiency of the evidence supporting the jury's findings that they slandered Bonnington, acted toward him with malice, or intentionally inflicted emotional distress on him. They argue there is no evidence or insufficient evidence to support the jury's awards of actual and punitive damages, or in the alternative that the damage awards are excessive. Turner and S&T claim the trial court erred in not granting them a new trial because (1) the damages constitute double recovery, (2) they were improperly denied separate punitive damage questions, and (3) they were improperly denied a jury instruction.



    Standard of Review  

    In reviewing a "no-evidence" challenge to a jury finding, we consider the evidence in the light most favorable to the finding, indulging all reasonable inferences in favor of the finding and disregarding contrary evidence and inferences. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996); ONI, Inc. v. Swift, 990 S.W.2d 500, 502 (Tex. App.--Austin 1999, no pet.). If there is more than a scintilla of evidence to support a finding, we will overrule the legal sufficiency challenge. See Leitch, 935 S.W.2d at 118; Swift, 990 S.W.2d at 502. In reviewing the factual sufficiency of the evidence, we consider and weigh all of the evidence and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-407 (Tex. 1998); Swift, 990 S.W.2d at 502. A claim of excessive damages challenges the factual sufficiency of the evidence. See Ellis, 971 S.W.2d at 406.



    Summary of the Evidence  

    In order to consider the sufficiency of the evidence, we will give a detailed summary of the testimony. Turner's late husband, Orville Turner, owned and ran S&T. In July 1995, he asked Bonnington, his longtime friend, if he would move from Arizona to New Braunfels to take charge of S&T's back shop. Bonnington testified Orville Turner said this job would be a "lifetime" job from which Bonnington could retire and take it easy, and they agreed Bonnington's salary would be $400 a week. Bonnington claimed his salary was to increase to $500 a week when his wife retired and moved to Texas. Orville Turner denied agreeing to increase Bonnington's salary. There was no written agreement between Bonnington and Orville Turner setting out the terms of Bonnington's employment. Bonnington and the Turners agreed that Bonnington would live with the Turners until his wife arrived. Orville Turner gave Bonnington a check for $5,500 to wrap up his business in Arizona, and in August 1995 Bonnington moved to New Braunfels. Orville Turner introduced Bonnington to S&T's employees by saying Bonnington would answer directly to Orville Turner.

    In late September 1995, Orville Turner's health deteriorated, requiring him to undergo triple heart-bypass surgery. Mary Turner asked Bonnington to move out of the house because relatives were coming to stay while Orville Turner had surgery. As he was packing, Bonnington took one of the Turners' ashtrays and wrapped it in his dirty laundry, intending to take it to his apartment. (1) Bonnington testified that he decided to ask Turner before taking the ashtray, so he left it in his laundry on the bed in the Turners' guest room while he drove some other belongings to his apartment. When he returned, Turner confronted him with the ashtray, yelled that he was a thief, and asked how he could do such a thing to Orville Turner. Bonnington tried to explain that he was going to ask her before taking it, but she did not believe him. Bonnington offered to buy Turner new ashtrays, but she said, "I don't want anything to do with you."

    Through the fall of 1995, Orville Turner was in and out of the hospital, leaving Mary Turner in charge of S&T. Bonnington learned that Turner was telling S&T employees and others that he was a liar and a thief, and that he had stolen glasses and silverware from her home. Bonnington denied taking anything from the Turners' home or from S&T.

    Bonnington's working relationship with Mary Turner continued to deteriorate throughout October, November, and December. He testified she constantly belittled him by not consulting with him about S&T decisions and by making it clear that she was the boss at S&T and that Bonnington had no real authority. She constantly inspected his work and made it company policy that no one was to inspect anything without her or her son's approval. Bonnington complained that Turner brought customers into the shop and introduced them to everyone except him. He said she demoralized the people he was supposed to manage in the back shop. Bonnington said Turner made accusations that inventory was missing from S&T; when asked if she accused him, he answered, "Yeah, in a way." Bonnington complained that before the ashtray incident, Turner had confronted him for coming back to work late after lunch. Turner confronted him about making personal calls on S&T's telephone, but he said he had Orville Turner's approval. Bonnington paid S&T for some of his personal calls, but did not reimburse S&T for all his long distance calls. Bonnington complained that Turner never asked if she could help in the back shop, but instead came into S&T and took over. Bonnington admitted that he blew up at Turner and that they had a screaming match at S&T.

    Laura Robinson, a former S&T employee, testified that the back shop employees were to report to Bonnington and he was to report to Orville Turner. She frequently heard Turner call Bonnington a thief and a liar, and Turner told her Bonnington had stolen the Turners' ashtrays. Robinson testified that Turner said something to the effect that Bonnington was taking things out the back door of S&T and that items were missing from inventory. Turner never told Robinson that Bonnington had taken household items other than the ashtrays, but Robinson heard it rumored around the office. Robinson knew Bonnington was authorized by Orville Turner to make personal calls, and said Turner constantly checked his calls and complained that he used S&T's telephone for personal long distance calls. Robinson said Turner became "nitpicky" and seemed to look for Bonnington's mistakes. Robinson testified that she believed Bonnington was an honest person of integrity and said Turner's accusations did not change that impression.

    Buster Bowers, another former S&T employee, understood Bonnington was to run the back shop and report to Turner and Orville Turner. Bowers said Bonnington was harassed and made unhappy by Turner and got no cooperation from the front office. Justin Grudzinski, Turner's son-in-law and a former S&T employee, worked at S&T when Bonnington arrived. Grudzinski left S&T because he did not like the way things were run by Turner and her son. He did not get along with Turner and did not like her criticism. He said there was hostility between Bonnington and Turner and that Turner expressed it by undermining Bonnington's work, being rude, and walking away in the middle of confrontations. Grudzinski said Bonnington tried to do his job but that Bonnington had confrontations with Turner three or four times a week. Grudzinski heard Turner say Bonnington had stolen ashtrays and he thought she said Bonnington stole silverware and glasses as well. He recalled Turner saying she wanted a lock on S&T's stockroom because Bonnington was working there and things were missing. Grudzinski recalled a Board of Directors meeting during which Turner said Bonnington had stolen from S&T and that she wanted him to leave the company. Grudzinski heard Bonnington tell another employee that if Turner had treated Bonnington the way she treated the employee, Bonnington would have hit her. Turner's claims did not change Grudzinski's opinion about Bonnington's honesty.

    Turner testified that Bonnington took an ashtray from her sewing machine, and she found it wrapped in his laundry when she stripped the bed to change the sheets. She said two other ashtrays were missing from her house after Bonnington left. Turner denied saying Bonnington had stolen anything other than ashtrays from her house, but repeatedly said she believed he had stolen the ashtrays. She admitted calling Bonnington a liar and a thief. She denied accusing him of stealing S&T inventory; she said she tried to find inventory when she discovered it was missing. She was asked repeatedly about her opinion of Bonnington and reiterated that he was a liar and a thief. Turner considered him a thief because he took from her house two ashtrays and almost took a third, and a liar because he lied about it when confronted. She said she would take that conviction to her grave: Turner stated, "I know what he did and he is a liar and he is a thief."

    Turner could not estimate how many S&T employees she told about Bonnington's taking the ashtrays. She remembered complaining about him to five people outside of S&T, all of whom were family members or close personal friends, and said the subject came up in conversation while she was upset and frightened about Orville Turner's poor health. Turner could not remember if she had told anyone else outside of S&T.

    Turner said during the fall of 1995 she was very upset because she was trying to run S&T and Orville Turner was so sick. She said she liked Bonnington at first, but decided she wanted him out of S&T when he stole her ashtrays. She testified that when Orville Turner became sick she made a point of telling the employees she was in charge of S&T. Turner admitted using foul language at S&T on occasion. She denied being nasty to Bonnington at work, but admitted calling him names and said he called her names. She testified she only wanted Bonnington to do his job, rather than sitting in his office reading a newspaper. She thought all of S&T heard the fight in which she and Bonnington yelled at each other and she called him a liar and a thief.

    Orville Turner died before trial. In deposition testimony read into evidence, Orville Turner said he brought Bonnington to S&T because Grudzinski, who had been running the back shop, was not doing a good job and was not honest. He thought Grudzinski had taken money from S&T. Orville Turner did not think Bonnington had performed the work for which he had been hired, and said Bonnington left S&T before Orville Turner could talk to him about it. Orville Turner gave Bonnington permission to call his wife on the company telephone with the understanding that Bonnington would check with Orville Turner before making any calls. Bonnington once told Orville Turner that he was using his personal credit card for a call, when in fact he had charged it to S&T. Orville Turner said Bonnington ran the back shop, and Mary Turner ran S&T overall, including the back shop. Orville Turner used to think Bonnington was honest, but Bonnington's court filings and deposition testimony contained statements Orville Turner knew were untrue. Orville Turner never heard his wife claim Bonnington had stolen anything other than ashtrays.

    Jenette Wirtz, a long-time S&T employee, testified that Bonnington said Turner accused him of stealing ashtrays. She heard about the dispute from other S&T employees. Bonnington complained to Wirtz about S&T's policies, saying the employees should all walk out on S&T to force a change in company policies. He also gave S&T's employees an attorney's card and suggested that they file a harassment suit against the company. Bonnington told Wirtz to ignore Mary Turner because she was not Wirtz's boss. On Bonnington's urging, Wirtz wrote a letter complaining about working conditions and morale because Bonnington said it would help the lawsuit and because she thought she was going to be fired. Wirtz no longer believed the things she had written in her letter, but at the time she wrote them, Grudzinski and Bonnington had convinced her that people were being harassed. Bonnington told Wirtz that if she assaulted Mary Turner, he and Grudzinski would bail her out of jail.

    Emotional Distress  

    S&T and Turner claim the evidence is legally and factually insufficient to support the jury's finding of intentional infliction of emotional distress. We agree.

    To recover for intentional infliction of emotional distress, a plaintiff must prove (1) the defendant acted intentionally or recklessly, (2) the conduct was extreme and outrageous, and (3) the conduct caused the plaintiff severe emotional distress. See GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999). Conduct is extreme and outrageous if it goes beyond all bounds of decency and is atrocious and intolerable in a civilized society. See id. Insensitivity, rudeness, and minor insults, indignities, threats, annoyances, and petty oppressions generally are not extreme and outrageous behavior. See id. at 612. Whether a defendant's conduct was so outrageous and extreme as to constitute intentional infliction of emotional distress is a question of law for the trial court. See Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993).

    Intentional infliction of emotional distress claims arising out of the workplace are subject to strict review in Texas. See Bruce, 998 S.W.2d at 612. Texas courts allow employers great latitude in supervising, criticizing, disciplining, and discharging employees. See id. A claim for intentional infliction of emotional distress will not lie for ordinary employment disputes, even if the behavior is unpleasant or unfair. See id. at 613. Conduct in the workplace that will give rise to such a claim "exists only in the most unusual of circumstances." Id. Most workplace-related claims of intentional infliction of emotional distress fail. See Horton v. Montgomery Ward & Co., 827 S.W.2d 361, 369 (Tex. App.--San Antonio 1992, writ denied). (2) Falsely depicting in the community that an employee is a thief is not sufficiently outrageous conduct to support such a claim. See Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 844 S.W.2d 198, 202 (Tex. 1992).

    The behavior of which Bonnington complains--Turner's calling him a thief and a liar, undermining his authority and the shop's productivity, saying she was in charge, not consulting with Bonnington, inspecting his work, not introducing clients to Bonnington, making innuendos about missing inventory, confronting him about a long lunch, and complaining about his charging S&T's telephone for personal phone calls--is rude and insensitive, and Bonnington appears to have responded in kind. Turner dislikes Bonnington and holds him in very low regard. However, her behavior did not exceed all bounds of decency and civilized behavior. See Bruce, 998 S.W.2d at 611; Mendez, 844 S.W.2d at 202. We hold that Turner's behavior was not so outrageous and extreme as to constitute intentional infliction of emotional distress. We reverse the portion of the judgment awarding Bonnington damages for emotional distress.



    Slander  

    Slander is a defamatory statement orally communicated to a third person without a legal excuse. See Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). A statement is defamatory if it tends to impeach the subject's honesty, integrity, or otherwise injure his reputation, exposing him to financial injury or public hatred, contempt, or ridicule. See Abbott v. Pollock, 946 S.W.2d 513, 519 (Tex. App.--Austin 1997, writ denied). Truth is a defense to a defamation suit brought by private individuals. See Johnson, 891 S.W.2d at 646.

    Generally, oral defamatory statements are not actionable without proof of actual damages. See Einhorn v. LaChance, 823 S.W.2d 405, 411 (Tex. App.--Houston [1st Dist.] 1992, writ dism'd w.o.j.); Arant v. Jaffe, 436 S.W.2d 169, 176 (Tex. Civ. App.--Dallas 1968, no writ). However, some statements are presumed to harm the subject's reputation and do not require proof of injury; such statements are slanderous per se. See Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 921 (Tex. App.--Corpus Christi 1991, writ dism'd w.o.j.). An oral statement that falsely and unambiguously charges a person with criminal conduct is slanderous per se, as is a statement that injures him in his profession or occupation. See id.; Gray v. HEB Food Stores No. 4, 941 S.W.2d 327, 329 (Tex. App.--Corpus Christi 1997, writ denied). Calling someone a liar usually is not considered slanderous per se, but falsely calling him a "thief" may be. See Bennett v. Computer Assocs. Int'l, Inc., 932 S.W.2d 197, 200 (Tex. App.--Amarillo 1996, writ denied); Arant, 436 S.W.2d at 176; 50 Tex. Jur. 3d Libel and Slander §§ 16, 21 (1986).

    If a plaintiff proves slander per se, actual damages are presumed and the jury has discretion to estimate damages suffered by the plaintiff. See Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 527 (Tex. App.--San Antonio 1996, writ denied). In such a case, we will not disturb a jury's award of actual damages unless the record indicates the award was excessive or the result of passion, prejudice, or other improper influence. See id.



    I. Opinion versus factual assertion

    S&T and Turner claim her statements are entitled to absolute privilege because they were statements of opinion and not assertions of fact. We disagree.

    The Supreme Court has explicitly held that opinion speech is not entitled to a separate constitutional privilege. (3) See Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990). Simply saying "I think" or "in my opinion" before labeling someone a thief does not dispel the harmful implication that the speaker knows for a fact that the accused has stolen. See id. at 18-19. Even if a speaker explains why she believes the subject is a liar, if the facts are incorrect or incomplete, the statement may still imply a false assertion of fact. See id. Defaming someone can harm his reputation whether or not the accusation is premised with "I think." See id. at 19.

    We hold Turner's statements about Bonnington were not entitled to any absolute privilege, whether viewed as factual assertions or opinions. Nor are the statements made non-defamatory because they arose out of the alleged theft of valueless ashtrays.



    II. Qualified privilege

    Turner and S&T argue her allegations are protected by qualified privilege. We hold that even if some of her statements are protected by qualified privilege, many of them are not.

    A communication is subject to qualified privilege if it is made in good faith on a subject in which the speaker has an interest or duty to another person having a corresponding interest or duty. See Martin v. Southwestern Elec. Power Co., 860 S.W.2d 197, 199 (Tex. App.--Texarkana 1993, writ denied); 50 Tex. Jur. 3d Libel and Slander § 54 (1986). Such privilege is particularly applicable to communications between employers and employees. See Martin, 860 S.W.2d at 199. Employer communications about employee wrongdoing are privileged if the communications are made to those having an interest in the matter. See Johnson, 891 S.W.2d at 646. Whether a communication is privileged is a question of law. See Dixon v. Southwestern Bell Tel. Co., 607 S.W.2d 240, 241 (Tex. 1980). The jury resolves disputes about the circumstances under which the statement was made. See id. at 242.

    In this case, statements Turner may have made to S&T employees about missing inventory, particulary remarks made at the board meeting, arguably are privileged. S&T is a relatively small company, and its employees arguably are interested in protecting it from loss due to theft. If Turner was concerned about missing inventory and doubted Bonnington's honesty, her remarks connecting the missing inventory to Bonnington's presence arguably are protected by privilege. However, even if we hold her remarks about missing inventory are privileged, the jury's finding that she and S&T slandered Bonnington may still stand because her remarks went far beyond matters in which S&T employees had an interest. We doubt that her shouting matches calling Bonnington a liar and a thief were intended as communications to S&T employees with an interest in preserving inventory. Likewise, her remarks made to people unconnected to S&T are not privileged. Turner and S&T do not attempt to argue that all of her statements were privileged, instead arguing that some or most of them were. Turner's statements about inventory may have been privileged, but we overrule Turner and S&T's claim that privilege attached to enough of her remarks to defeat Bonnington's defamation claim as a whole.



    III. Substantial truth

    Turner and S&T claim her statements were substantially true, thus defeating Bonnington's defamation claim. We disagree.

    A finding of "substantial truth" defeats a defamation claim and entitles a defendant to judgment. See McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex. 1990). In determining whether a statement is substantially true, the fact-finder considers whether the statement is more damaging to the plaintiff's reputation in the mind of an average listener than a factually true and complete statement would have been. See id. at 16.

    Turner and S&T claim Bonnington's admission that he was going to take the ashtray makes her other claims substantially true because her accusations were only marginally worse than the facts to which he admitted. They also claim Bonnington's testimony that if he ever took anything from S&T it would have been a small item is equivalent to Turner's accusations, making her claims substantially true. (4) The jury was instructed on the defense of substantial truth and found Turner's statements were not substantially true; that finding is not against the great weight and preponderance of the evidence. We cannot say as a matter of law that Turner's accusations were no more damaging to Bonnington's reputation that the facts to which he admits. We overrule S&T and Turner's argument that her allegations were substantially true.



    IV. Did Turner and S&T defame Bonnington?

    Having overruled Turner and S&T's claims that her statements were privileged or substantially true, we hold the jury's findings that S&T and Turner defamed Bonnington are supported by legally and factually sufficient evidence. We affirm the trial court's judgment finding Turner and S&T defamed Bonnington.

    Actual Damages

    Turner and S&T argue the jury's award of actual damages is unsupported by the evidence or, alternatively, excessive. After examining the damages the jury awarded for Bonnington's defamation claim, we agree in part.

    Assessing damages for slander, the jury awarded $15,000 against Turner for shame, humiliation, and mental anguish in the past, $15,000 for injury to Bonnington's reputation and character in the past, $5,000 for injury to his reputation and character in the future, and $4,800 for loss of earnings in the past. The jury assessed damages of $30,000 against S&T for shame, humiliation, and mental anguish in the past, $30,000 for injury to Bonnington's reputation and character in the past, $10,000 for injury to his reputation and character in the future, and $4,800 for loss of earnings in the past.

    Turner's statements that Bonnington was a thief can be considered slanderous per se; damages to his reputation are presumed and need not be proven. It is for the jury to determine the extent of the damage. See Odem, 929 S.W.2d at 527. Defamation damages are purely personal and cannot be set by a fixed rule. See id. We will not disturb the jury's award of actual damages unless we find the award was excessive or the result of an improper influence. See id. There is no evidence of improper influence in this record, and the difficulty of standardizing defamation damages impels us to uphold the jury's assessment of damage to Bonnington's reputation and for shame and mental anguish. However, we take issue with the jury's assessment of $9,600 in total lost wages. There is no testimony or other evidence in the record indicating Bonnington was unable to find other work due to Turner's allegations. The only testimony on the record about wages or other employment is that Bonnington said he took a job checking credit statements for a financing company starting in April or May 1997, earning from $500 to $1,000 a month. Bonnington did not testify that he had been unable to find work for 16 or 17 months after leaving S&T, nor did he testify that his earning capacity was diminished by Turner's statements. He did not testify that anyone outside of New Braunfels had ever heard Turner's slanderous allegations. He did not testify that Turner's slander had in any way affected his employability in Arizona.

    Further, the jury found there was no breach of an employment contract by either Bonnington or S&T. Bonnington believed Orville Turner's statement that the back shop was not working indicated he was out of a job. Other witnesses and evidence indicated Bonnington's decision to leave was mutual. There was no written contract governing the terms of his employment. Texas is an employment-at-will state and Bonnington has not shown he is entitled to lost wages. See Town of S. Padre Island v. Jacobs, 736 S.W.2d 134, 138 (Tex. App.--Corpus Christi 1986, writ denied). We find no evidence in the record to support an award for lost wages. We reverse the trial court's award of $9,600 in lost wages.



    Punitive Damages

    Turner and S&T argue the jury's award of punitive damages is unsupported by the evidence. We agree. Having held that Bonnington's intentional infliction of emotional distress claim must fail, the only cause of action under which he may recover punitive damages is his defamation claim. Exemplary or punitive damages in a defamation case require a finding of actual malice. See Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984). The jury's findings that Turner and S&T acted with actual malice are not supported by the record.

    "Actual malice" is a term of art that differs from the everyday concept of common law malice; it does not mean mere ill will, spite, or evil motive. See Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771, 771 (Tex. 1994). A finding of actual malice requires proof that the defendant knew her statements were false or recklessly disregarded the truth of her statements, meaning she entertained serious doubts about the truth of her words; mere suspicion or surmise is not enough to support such a finding. See id. at 771-72; Dolcefino v. Turner, 987 S.W.2d 100, 112 (Tex. App.--Houston [14th Dist.] 1998, pet. filed). Negligence, failure to investigate the truth of one's words, or failure to act as a reasonably prudent person does not constitute actual malice. See St. Amant v. Thompson, 390 U.S. 727, 733 (1968); Tucker, 806 S.W.2d at 924.

    The plaintiff may show actual malice through circumstantial evidence, but showing a "[d]ifference of opinion as to the truth of a matter -- even a difference of 12 to 1 -- does not alone constitute clear and convincing evidence that the defendant acted with a knowledge of falsity or with a 'high degree of awareness of . . . probable falsity.'" Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 681 (1989). In other words, Bonnington cannot prove Turner acted with actual malice by providing testimony that those who heard her accusations of dishonesty did not believe them. Actual malice may be inferred from circumstantial evidence, but we must be careful not to place too much reliance on such evidence. See id. at 668; Wechter, 683 S.W.2d at 275 It is not enough for the jury to disbelieve the defendant's testimony; the plaintiff must produce clear and convincing evidence that the defendant, at a minimum, entertained serious doubts about the truth of her claims. See Odem, 929 S.W.2d at 525-26; Dolcefino, 987 S.W.2d at 112.

    While we agree there certainly is evidence of ill will between Turner and Bonnington, we do not find in this record evidence that Turner acted with actual malice toward Bonnington. Her testimony and the testimony of those who heard her accusations indicate she fervently believed Bonnington had stolen two ashtrays from her home, would have stolen a third had he not been caught, and lied about the thefts when confronted. It is not enough that Turner admittedly bears Bonnington ill will. Although Turner may have been mistaken in her beliefs, the circumstances and the manner in which her statements were made do not lead to an inference that Turner knew or had a high degree of awareness that Bonnington had not taken any ashtrays and was not a thief or a liar. We hold there was no more than a scintilla of evidence to support the jury's finding of actual malice. Without actual malice, an award of punitive damages cannot stand.

    We reverse the trial court's judgment that finds Turner and S&T acted with actual malice in defaming Bonnington. Because no grounds support such an award, we reverse the award of punitive damages to Bonnington.



    Jury Instruction  

    S&T and Turner claim they were erroneously denied a jury instruction on scope of employment because Bonnington alleged slanderous statements were made to people outside S&T. S&T and Turner argue the omission of their requested instruction may have misled the jury into finding S&T liable for statements made outside the course and scope of Turner's association with S&T. We disagree and will overrule their argument on appeal.

    We review jury charge error under an abuse of discretion standard. See Texas Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); Texas Dep't of Human Servs. v. Green, 855 S.W.2d 136, 151 (Tex. App.--Austin 1993, writ denied). A party complaining on appeal of the omission of a requested jury instruction must have submitted to the trial court a substantially correct instruction. See Tex. R. Civ. P. 278 (emphasis added).

    S&T and Turner requested the inclusion in the charge of an instruction on the scope of employment that read as follows:



    You are instructed that an employee acts as the agent of Defendant in making a statement, if making the statement is within the scope of the general authority given to the employee by Defendant. Furthermore, the acts complained of must have been performed in the furtherance of the business of Defendant, and the acts must have been performed to accomplish the job for which the employee was employed.





    Turner was not an ordinary employee of S&T; she was a "vice principal" and her acts are considered the acts of S&T itself. See Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391 (Tex. 1997). A vice principal is one of four kinds of corporate agents: a corporate officer; someone with authority to employ, discharge, or direct employees; someone responsible for non-delegable or absolute duties of the corporation; or someone responsible for the management of the whole or a department or division of the corporation. See id. As acting president, Turner was a vice principal and the requested instruction on scope of employment was inapplicable to her relationship with S&T. Turner and S&T did not submit a substantially correct instruction. The trial court did not abuse its discretion in refusing the requested instruction. We overrule appellants' issue on appeal.

    Because we have held the evidence insufficient to support the jury's finding of intentional infliction of emotional distress and punitive damages, we need not address S&T and Turner's issues concerning double recovery or other punitive damage questions.



    Conclusion  

    We affirm the trial court's judgment as far as it finds S&T and Turner slandered Ben Bonnington and awards him $35,000 against Turner and $70,000 against S&T. We reverse and render judgment that Bonnington take nothing against S&T and Turner for intentional infliction of emotional distress, for punitive damages, and for lost wages.





    Bea Ann Smith, Justice

    Before Justices Jones, B. A. Smith and Patterson

    Affirmed in Part; Reversed and Rendered in Part

    Filed: January 6, 2000

    Do Not Publish

    1. The testimony is unclear whether Bonnington wrapped one or two ashtrays in his laundry. We will refer to only one ashtray.

    2. Throwing paper at an employee, frightening her with snake rattles, calling her obscene names, pilfering and vandalizing her belongings, ostracizing her, and mutilating her photograph on an employee bulletin board is not extreme and outrageous conduct as a matter of law. See Horton, 827 S.W.2d at 369-70; see also Humphreys v. Medical Towers, Ltd., 893 F. Supp. 672, 681 (S.D. Tex. 1995), aff'd, 100 F.3d 952 (5th Cir. 1996) (not extreme and outrageous where defendant encouraged employees to be insubordinate to plaintiff, called plaintiff obscene names, told her she was incompetent, and treated her with blatant hostility); Saucedo v. Rheem Mfg. Co., 974 S.W.2d 117, 124-25 (Tex. App.--San Antonio 1998, pet. denied) (supervisor swore at employee, called him obscene names, threatened to fire him, insulted him in front of others, blamed him for the supervisor's own mistakes, and harassed employee by paging and calling him at all hours; held not outrageous and extreme). The few successful cases involve truly extreme behavior such as unwanted, repeated physical contact, death threats or threats to family members, or physically menacing and frightening behavior. See, e.g., Bruce, 998 S.W.2d at 613-14 (supervisor lunged and charged at employees, made them believe he would hit them, verbally threatened and "terrorized" them, swore and made vulgar sexual innuendos, stood uncomfortably close and screamed and yelled, made them perform menial tasks, and "engaged in a pattern of grossly abusive, threatening, and degrading conduct" for over two years); Stokes v. Puckett, 972 S.W.2d 921, 924-25 (Tex. App.--Beaumont 1998, pet. denied) (supervisor repeatedly touched plaintiffs sexually, made repeated sexual remarks and come-ons, swore at plaintiffs in front of coworkers, stared at plaintiff's breasts); Gonzalez v. Willis, 995 S.W.2d 729, 735-36 (Tex. App.--San Antonio 1999, no pet.) (graphic sexual advances, sending harassing messages through coworkers, repeated telephone calls, holding out job assistance in exchange for sexual favors).

    3. S&T and Turner cite us to cases discussing the distinction between opinion and factual assertion. See, e.g., Ollman v. Evans, 750 F.2d 970, 974-75 n.6 (D.C. Cir. 1984); Yiamouyiannis v. Thompson, 764 S.W.2d 338, 341 (Tex. App.--San Antonio 1988, writ ref'd n.r.e.); El Paso Times, Inc. v. Kerr, 706 S.W.2d 797, 800 (Tex. App.--El Paso 1986, writ ref'd n.r.e.). This line of cases relies on Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), for the premise that opinion speech is absolutely privileged and uses factors developed in Ollman. However, the Milkovich court held that the lower courts have mistakenly relied on Gertz "to create a wholesale defamation exemption for anything that might be labeled 'opinion,'" thus developing an unnecessary and artificial distinction between opinion and factual assertions. See Milkovich, 497 U.S. at 19.

    4. S&T and Turner wrongly claim Bonnington "admitted" pilfering from S&T. He did not admit taking anything from S&T. Bonnington's actual testimony was as follows:



    Q: Now, did you ever take anything from S&T anything that belonged to S&T that was not yours to take?



    A: Not unless I took a pen or something like that.

    Times Regular"> We affirm the trial court's judgment as far as it finds S&T and Turner slandered Ben Bonnington and awards him $35,000 against Turner and $70,000 against S&T. We reverse and render judgment that Bonnington take nothing against S&T and Turner for intentional infliction of emotional distress, for punitive damages, and for lost wages.





    Bea Ann Smith, Justice

    Before Justices Jones, B. A. Smith and Patterson

    Affirmed in Part; Reversed and Rendered in Part

    Filed: January 6, 2000

    Do Not Publish

    1. The testimony is unclear whether Bonnington wrapped one or two ashtrays in his laundry. We will refer to only one ashtray.

    2. Throwing paper at an employee, frightening her with snake rattles, calling her obscene names, pilfering and vandalizing her belongings, ostracizing her, and mutilating her photograph on an employee bulletin board is not extreme and outrageous conduct as a matter of law. See Horton, 827 S.W.2d at 369-70; see also Humphreys v. Medical Towers, Ltd., 893 F. Supp. 672, 681 (S.D. Tex. 1995), aff'd, 100 F.3d 952 (5th Cir. 1996) (not extreme and outrageous where defendant encouraged employees to be insubordinate to plaintiff, called plaintiff obscene names, told her she was incompetent, and treated her with blatant hostility); Saucedo v. Rheem Mfg. Co., 974 S.W.2d 117, 124-25 (Tex. App.--San Antonio 1998, pet. denied) (supervisor swore at employee, called him obscene names, threatened to fire him, insulted him in front of others, blamed him for the supervisor's own mistakes, and harassed employee by paging and calling him at all hours; held not outrageous and extreme). The few successful cases involve truly extreme behavior such as unwanted, repeated physical contact, death threats or threats to family members, or physically menacing and frightening behavior. See, e.g., Bruce, 998 S.W.2d at 613-14 (supervisor lunged and charged at employees, made them believe he would hit them, verbally threatened and "terrorized" them, swore and made vulgar sexual innuendos, stood uncomfortably close and screamed and yelled, made them perform menial tasks, and "engaged in a pattern of grossly abusive, threatening, and degrading conduct" for over two years); Stokes v. Puckett, 972 S.W.2d 921, 924-25 (Tex. App.--Beaumont 1998, pet. denied) (supervisor repeatedly touched plaintiffs sexually, made repeated sexual remarks and come-ons, swore at plaintiffs in front of coworkers, stared at plaintiff's breasts); Gonzalez v. Willis, 995 S.W.2d 729, 735-36 (Tex. App.--San Antonio 1999, no pet.) (graphic sexual advances, sending harassing messages through coworkers, repeated telephone calls, holding out job assistance in exchange for sexual favors).

    3. S&T and Turner cite us to cases discussing the distinction between opinion and factual assertion. See, e.g., Ollman v. Evans, 750 F.2d 970, 974-75 n.6 (D.C. Cir. 1984); Yiamouyiannis v. Thompson, 764 S.W.2d 338, 341 (Tex. App.--San Antonio 1988, writ ref'd n.r.e.); El Paso Times, Inc. v. Kerr, 706 S.W.2d 797, 800 (Tex. App.--El Paso 1986, writ ref'd n.r.e.). This line of cases relies on Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), for the premise that opinion speech is absolutely privileged and uses factors developed in Ollman. However, the Milkovich court held that the lower courts have mistakenly relied on Gertz "to create a wholesale defamation exemption for anything that might be labeled 'opinion,'" thus developing an unnecessary and artificial distinction between opinion and factual assertions. See Milkovich, 497 U.S. at 19.

    4. S&T and Turner wrongly claim Bonnington "admitted" pilfering from S&T. He did not admit taking anything from S&T. Bonnington's actual testimony was as follows: