Mario Linan v. Strafco, Inc., D/B/A Carquest Auto Parts

                               NUMBER 13-05-027-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

MARIO LINAN,                                                                                 Appellant,

                                                             v.                               

STRAFCO, INC., D/B/A

CARQUEST AUTO PARTS,                                                    Appellee.

                             On appeal from the 197th District Court

of Cameron County, Texas.

                               MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Rodriguez and Garza 

                        Memorandum Opinion by Justice Rodriguez

This is a defamation action.  Appellant, Mario Linan, sued appellee, Strafco, Inc., d/b/a Carquest Auto Parts, his former employer, alleging several causes of action, including defamation. Without specifying the grounds on which it relied, the trial court granted appellee's motion for summary judgment on all claims.  Appellant appeals the summary judgment only as to the defamation claim.  By two issues, appellant contends that the trial court erred in granting appellee's summary judgment motion because (1) the judicial privilege was waived and (2) a fact question precludes the application of the qualified privilege.  We affirm.

I.  Standard of Review

Because the propriety of a summary judgment is a question of law, we review the granting of a traditional motion for summary judgment de novo.  Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.BCorpus Christi 2003, no pet.) (citing Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Tex. Commerce Bank Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex. App.BCorpus Christi 2000, pet. denied)).  To prevail on a traditional motion for summary judgment, the moving party has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam).  Only when the movant meets this burden does the burden shift to the nonmovant to raise a genuine issue of material fact.  See M.D. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).  A traditional summary judgment is proper if the movant conclusively disproves at least one element of each of the plaintiff's causes of action or conclusively establishes each element of an affirmative defense to each of the plaintiff's claims.  Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997) (per curiam); Cathey, 900 S.W.2d at 341. "Privilege" is an affirmative defense.  See Denton Publ'g Co. v. Boyd, 460 S.W.2d 881, 884 (Tex. 1970).  The nonmovant has no burden to respond to a traditional motion for summary judgment unless the movant conclusively establishes its cause of action or defense.  Willrich, 28 S.W.3d at 23.^[1]

In reviewing a traditional summary judgment Aall evidence is to be construed in favor of the nonmovant, to whom every reasonable inference is allowed and on whose behalf all doubts are resolved.@  Alvarez v. Anesthesiology Associates, 967 S.W.2d 871, 874 (Tex. App.BCorpus Christi 1998, no pet.); see Cathey, 900 S.W.2d at 341.  In determining whether there is a genuine issue of material fact, evidence favorable to the nonmovant is taken as true, and all reasonable inferences and doubts are resolved in favor of the nonmovant.  Branton, 100 S.W.3d at 646.  When, as in this case, a trial court's order granting summary judgment does not state the grounds upon which it was granted, the judgment must be affirmed if any of the grounds advanced in the summary judgment motion are meritorious.  Id. at 647 (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)).

II.  Texas Workforce Commission Record

By his first issue, appellant contends that the judicial privilege afforded to records of the Texas Workforce Commission has been waived.

A.  Judicial Privilege

Texas recognizes an absolute privilege in both judicial and quasi-judicial proceedings, "meaning that any statement made in the trial of any case, by anyone, cannot constitute the basis for a defamation action, or any other action."  Hernandez v. Hayes, 931 S.W.2d 648, 650 (Tex. App.BSan Antonio 1996, writ denied) (citing Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 111, 166 S.W.2d 909, 912 (Tex. 1942); James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982) (per curiam)); see Bird v. W.C.W., 868 S.W.2d 767, 771-72 (Tex. 1994).  "Quasi-judicial" proceedings include proceedings before the Texas Workforce Commission (formerly known as the Texas Employment Commission). Hardwick v. Houston Lighting & Power Co., 881 S.W.2d 195, 198 (Tex. App.BCorpus Christi 1994, writ denied w.o.j.); see Patrick v. McGowan, 104 S.W.3d 219, 224 (Tex. App.BTexarkana 2003, no pet.); see also Alejandro v. Bell, 84 S.W.3d 383, 391 (Tex. App.BCorpus Christi 2002, no pet.); Wal-Mart Stores, Inc. v. Lane, 31 S.W.3d 282, 290 (Tex. App.BCorpus Christi 2000, pet. denied).  A privilege applies to all causes of action asserted by a plaintiff if the statement was made in the course of a judicial or quasi-judicial proceeding.  Hernandez, 931 S.W.2d at 654; see Rose v. First Am. Title Ins. Co. of Tex., 907 S.W.2d 639, 643 (Tex. App.BCorpus Christi 1996, no writ) (applying privilege to claim for intentional infliction of emotional distress).  As noted by the Hernandez Court,

Where there is an absolute privilege, no action in damages for language, oral or written, will lie, "and this is true even though the language is false and uttered or published with express malice."  In this respect, an absolute privilege is tantamount to immunity.

Hernandez, 931 S.W.2d at 650 (citations omitted).  In addition, the privilege "attaches to all aspects of proceedings; including statements made in open court, judicial hearings, depositions, affidavits and any pleading or other papers in the case."  Rose, 907 S.W.2d at 641.

Nonetheless,

[t]he privilege accorded a litigant which exempts him from liability for damages caused by false charges made in his pleadings, or in the court in the course of a judicial proceeding, cannot be enlarged into a license to go out in the community and make false and slanderous charges against his court adversary and escape liability for damages caused by such charges on the ground that he had made similar charges in his court pleadings.

Alaniz v. Hoyt, 105 S.W.3d 330, 343 (Tex. App.BCorpus Christi 2003, no pet.).  Thus, this judicial privilege is waived if the same statements are made outside of the scope of the judicial proceeding.  James, 637 S.W.2d at 916-17; Pisharodi v. Barrash, 116 S.W.3d 858, 864 (Tex. App.BCorpus Christi 2003, pet. denied).

B.  Analysis

After being terminated appellant alleges that he published, to several prospective employers, a Texas Workforce Commission record that shows "theft" as the reason for his termination.  Appellant asserts he did so in an attempt to explain the circumstances of his being fired.  While there is no dispute that a judicial privilege applies to the record at issue and that it was pled by appellee as an affirmative defense and as a ground for its traditional summary judgment, appellant claims that his "foreseeable self-publication" of the record to prospective employers outside the scope of the privilege should waive appellee's judicial privilege.

As authority for this contention, appellant refers us to First State Bank of Corpus Christi v. Ake, 606 S.W.2d 696, 701-02 (Tex. Civ. App.BCorpus Christi 1980, writ ref'd n.r.e.) (setting out that in a defamation claim the requirement of publication can be met by self-publication when repetition is foreseeable).  In Ake, the plaintiff ex-bank president voluntarily disclosed to prospective employers information regarding a fidelity bond claim signed and sworn to by the defendant bank.  Id. at 698, 701.  Ake, however, did not involve a judicial or quasi-judicial proceeding.  It did not involve an absolute privilege related to such a proceeding.  Thus, appellant's reliance on Ake is misplaced.

This Court has recognized that an "absolute privilege is lost if the holder of the privilege repeats the statements outside the protected context within which the statements originally were made." Alaniz, 105 S.W.3d at 341 (emphasis added); Pisharodi, 116 S.W.3d at 864 ("Although libelous statements made in connection to a judicial proceeding are absolutely privileged, re‑publication of such statements [by the defendants] outside of the judicial context waives the privilege.").  In the present case, however, the holder of the privilege is appellee while it is appellant who repeated the statement outside the quasi-judicial context.  Thus, like Ake, this line of authority provides no support for appellant's contention.

Appellant provides us with no authority to support his contention, and we find none.  Moreover, under the facts of this case, we decline to extend waiver of the absolute privilege to instances where the allegedly defamed person self-publishes the complained of material outside the judicial context.  To do so would be to make the judicial privilege meaningless because every adjudicated employment dispute involving allegedly wrongful employee conduct would become the basis for self-publication which would, in turn, waive the other litigant's absolute privilege.

Assuming without determining the Texas Workforce Commission report contained a defamatory statement, we conclude that appellee's undisputed judicial privilege was not waived.  The trial court did not err in granting appellee summary judgment on this basis.  We overrule appellant's first issue.

III.  Defamatory Facts or Opinion

By his second issue, appellant complains of statements made by Dale Walker, appellee's director of security, to Roger Pritt, the vice president of appellee's retail stores, the person who made the decision to fire appellant. Appellant asserts that Walker repeated statements from earlier reports knowing that they were false, thus precluding the application of a qualified privilege.^[2]  Appellant contends that the trial court erred in granting summary judgment because a fact question remains about whether Walker's statements were made with knowledge of their falsity.  Appellee asserts, however, that the complained-of statements were not defamatory facts but rather were opinions expressed by Walker.  Therefore, before addressing whether a fact question exists regarding a qualified privilege, we must first determine whether the complained-of statements were defamatory facts or opinion.

A.  The Law

To maintain a defamation cause of action, the plaintiff must prove the defendant (1) published a statement, (2) that was defamatory as to the plaintiff, (3) while acting with actual malice or negligence regarding the truth of the statement.  See WFFA TV Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). In Texas, however, a statement that may be false, abusive, unpleasant, or objectionable to the plaintiff may not be defamatory in light of the surrounding circumstances.  Columbia Valley Regional Medical Center v. Bannert, 112 S.W.3d 193, 198 (Tex. App.BCorpus Christi 2003, no pet.); see Musser v. Smith Protective Servs., 723 S.W.2d 653, 655 (Tex. 1987).  The First Amendment to the United States Constitution and article 1, section 8 of the Texas Constitution protect expressions of opinion.  Bannert, 112 S.W.3d at 198. Thus, a plaintiff must prove that the statements contained false, defamatory facts rather than opinions or characterizations.  Id. (citing A.H. Belo Corp. v. Rayzor, 644 S.W.2d 71, 79 (Tex. App.BFort Worth 1982, writ ref'd n.r.e.)).  The threshold determination of whether a statement is an opinion or an assertion of fact is a question of law.  Id.; Carr, 776 S.W.2d at 570.  The court must construe the statement at issue as a whole, in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement.  Bannert, 112 S.W.3d  at 198 (citing Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000)); see Musser, 723 S.W.2d at 655.

B.  Analysis

Appellant appears to be complaining of the following statements contained in one of two memoranda dated May 11, 1994 and November 13, 2001, respectively, that Walker allegedly repeated to Pritt during the month preceding appellant's termination:

[From the 1994 memorandum, Walker writes,] I feel that Mario is the cause of the cash problems at this store.  I feel his involvement with this girlfriend has created cash expenditures out of the ordinary for Mario which he cannot pay for out of his personal funds.   Therefore the only source of funds available to Mario is this company's funds which he has already admitted to taking advantage of; and

[from the 2001 memorandum,] Mr. Jasso advised on Monday night, November 13, 2001, [h]e had a three way telephone conversation with Mario Linan, himself and David O'choa. . . .  Mr. Jasso advised that they all agreed that Mr. O'choa would effect a cash refund from Mr. Navarrette then travel to San Benito and pick up another motor of the same kind.  Mario Linan, manager of store #44, was part of this agreement. . . .  Mr. Jasso admitted that he was not going to bill Mr. O'choa for the motor.  He was in fact going to let store #44 sustain the cost of the motor.  When this plan failed a secondary plan to obtain the motor was put into play.  The secondary plan was to have Mr. O'choa obtain a refund then pick up another motor from San Benito.  This would have resulted in the same scenario of store #44 paying for the motor and Mr. O'choa never paying for the motor.  The secondary plan was concocted with the knowledge and consent of Mario Linan . . . during the three-way telephone conversation.  This puts Mario Linan directly in a conspiracy to steal from this Company as well as [in] violat[tion of] a number of procedures and policies.

* * * * *

It is my suspicion and belief that Mario Linan was involved in the attempted theft of the motor going to Mr. O'choa. . . .^[3]

Appellee asserts on appeal, as it did in its traditional motion for summary judgment, that Walker's statements could not support appellant's defamation claim because the statements were nothing but an expression of his opinion made only to Pritt.  We agree.  Construing the statements at issue as a whole, in light of surrounding circumstances, and basing the construction upon how a person of ordinary intelligence would perceive the entire communication to Pritt, we conclude the complained-of statements, while arguably being "false, abusive, unpleasant, or objectionable" to appellant, were Walker's opinions and characterizations and, thus, were not defamatory.  See Bannert, 112 S.W.3d at 198; see also Musser, 723 S.W.2d at 654.  Walker, as appellant's director of security, was reporting the results of his investigations to his superior.  Walker's internal memoranda and alleged comments included criticisms, suspicions, beliefs, and opinions based on the investigations.

A review of the statements from the 1994 memorandum in light of the entire document reveals that Walker was reporting on his investigation of "problems with the store,"  including cash problems of which appellant was aware and concerns about allowing an unauthorized person to close the store on Saturdays and the effect appellant's personal relationship with a woman who worked nearby was having on appellant's fellow workers.  The facts regarding these concerns were not disputed by appellant.  Walker expressed his opinion that he felt appellant caused the cash problems by taking advantage of the funds when cash expenditures out of the ordinary occurred due to the complained-of relationship.  It was Walker's opinion that appellant's attitude regarding these "problems" affected his job performance and that appellant may not be able to adjust his attitude to conform to company policy.

In Walker's 2001 memorandum, written in connection with the investigation of a motor, Walker expressed his opinions about appellant's deficiencies as a store manager and his suspicions about appellant's involvement in a plan for someone to obtain a motor without paying for it.  It also expresses the loyalty appellant extended to his employees and his frustration with Walker's criticisms.  Walker's statement that he believed appellant was involved in the theft of the motor is not an accusation, but rather his expression of his opinion or suspicion following his investigation.

Therefore, looking at the surrounding circumstances, we cannot conclude the statements were defamatory facts.  Rather they were opinions that are not actionable in this instance.  A person of ordinary intelligence could not reasonably understand the complained-of statements to have a defamatory meaning.  See Bannert, 112 S.W.3d at 199-200; Musser, 723 S.W.2d at 655. Thus, the trial court did not err in granting appellee summary judgment on that basis.

Having concluded the statements were not defamatory, we need not reach appellant's qualified privilege contention.  See Branton, 100 S.W.3d at 647; see also Tex. R. App. P. 47.1.  We overrule appellant's second issue.

IV.  Conclusion

The judgment of the trial court is affirmed.                                                               

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 29th day of June, 2006.

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^[1]A hybrid motion for summary judgment, as in this case, includes traditional and no‑evidence summary judgment arguments.  See Young Ref. Corp. v. Pennzoil Co., 46 S.W.3d 380, 385 (Tex. App.‑Houston [1st Dist.] 2001, pet. denied).  Because we based the disposition of this appeal on traditional summary judgment grounds, we need not address appellant's no-evidence summary judgment.  See Branton v. Wood, 100 S.W.3d 645, 647 (Tex. App.BCorpus Christi 2003, no pet.); see also Tex. R. App. P. 47.1.

^[2]           An employer has a conditional or qualified privilege that attaches to communications made in the course of an investigation following a report of employee wrongdoing.  The privilege remains intact as long as communications pass only to persons having an interest or duty in the matter to which the communications relate.  Proof that a statement was motivated by actual malice existing at the time of publication defeats the privilege.  In the defamation context, a statement is made with actual malice when the statement is made with knowledge of its falsity or with reckless disregard as to its truth.  To invoke the privilege on summary judgment, an employer must conclusively establish that the allegedly defamatory statement was made with an absence of malice.

Randall's Food Mkts. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995) (citations omitted); TRT Development Co.-KC v. Meyers, 15 S.W.3d 281, 286 (Tex. App.BCorpus Christi 2000, no pet.) (providing that allegedly slanderous statements are conditionally privileged when "made in good faith on any subject matter in which the author has an interest, or with reference to which he has a duty to perform to another person having a corresponding interest or duty.").

^[3]Not specifically identified in his brief, but also included in the 2001 memorandum is the following statement: 

My actions in this matter were strictly limited to the issue of determining who was involved in this attempt to steal the motor from the Company.  I think from reading the sequence of events only one conclusion can be derived from these facts.  Refugio Jasso was attempting to obtain a motor for his friend at the expense of [appellee] and Mario Linan was willingly participating in this scheme.