Captain Sheriff Saudi v. Captain Ivo Brieven

Reversed and Remanded; Memorandum Opinion filed May 1, 2003

Reversed and Remanded; Memorandum Opinion filed May 1, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-00785-CV

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CAPTAIN SHERIFF SAUDI, Appellant

V.

CAPTAIN IVO BRIEVEN, Appellee

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 99-06515

M E M O R A N D U M   O P I N I O N

Appellant, who was the plaintiff below, sought damages in the trial court for libel, slander, intentional interference with employment relations, and intentional infliction of emotional distress.  The trial court granted the appellee/defendant=s motion for summary judgment.  Appellant seeks review, contending in a single point of error that the court below erred in granting summary judgment.  We reverse and remand to the trial court.

Although we assume the parties are fully acquainted with the underlying facts of this dispute, we are not. The record seems to have been prepared with no consideration of an appeal.  It consists of a series of seemingly unrelated details and assertions. We ought not have to remind the parties that we have no mystical ability to divine the facts, uncover the relationship of the parties, or discern the nature of their dispute apart from the appellate record.  But, here, the record is largely incoherent.  Thus, our understanding of the facts is largely shaped by speculation.

It appears, though we cannot be certain, that this dispute arose during business transactions between three companies, i.e., I. B. Marine Services, Industrial Material Corporation, and American Eagle Tankers.  I. B. Marine Services provides some type of operational services to tankers operating in the Gulf of Mexico.  American Eagle Tankers is a customer of I. B. Marine Services and, thus, presumably operates one or more tankers in the Gulf of Mexico.

Although never admitted in the plaintiff=s pleadings, nor established in the summary judgment evidence, both parties state in their briefs that Captain Ivo Brieven is the owner of I. B. Marine Services.^[1]  Captain Sheriff Saudi was employed as a “mooring master” by American Eagle Tankers.  We assume that as a mooring master, Saudi=s duties related to anchoring, securing, or confining vessels in a particular station.

In 1998, Captain Ivo Brieven was informed by his Port Engineer that someone matching the description of Captain Sheriff Saudi had purchased hooks from Industrial Material Corporation.    The record does not disclose for what purpose the hooks were purchased from Industrial Material Corporation or how they may relate, if they do, to the services provided by I. B. Marine to American Eagle Tankers.  However, the purchase appears to have been charged to the account of I. B. Marine Services without its authorization.  Captain Brieven subsequently telephoned Captain Ernesto Violetta, Vice-President of Operations for American Eagle Tankers, to try to work out a procedure by which mooring masters could purchase equipment from Industrial Material Corporation and still give notice to Brieven so he could properly track which customer had made any given purchase.

Captain Saudi alleges that Captain Brieven=s representation intimated that Saudi may have stolen some of the materials. He also contends that Brieven=s statements were intended to cause him harm and were motivated by malice.

In his motion for summary judgment, Brieven asserted the affirmative defense of qualified privilege against Saudi=s slander and libel claims.  Brieven further alleged he was entitled to summary judgment on Saudi=s claim of intentional interference with employment relations because Saudi, by his own admission, was still employed by American Eagle Tankers and had incurred no actual damages. Finally, Brieven claimed he was entitled to summary judgment on Saudi=s claim of intentional infliction of emotional distress because even if Saudi=s allegations were true, they were not so extreme and outrageous as to support a claim of intentional infliction of emotional distress.  The trial court granted summary judgment as to all claims and held that Saudi should take nothing in his suit.

For a party to prevail on a traditional motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law.  Nixon v. Mr. Property Mgmt Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985).  In deciding whether there is a disputed material‑fact issue preventing summary judgment, we take evidence favorable to the non‑movant as true.  Id. at 549.  Moreover, every reasonable inference must be indulged in favor of the non‑movant and any doubts resolved in his favor.  Id.  Once the movant has established a right to summary judgment, the non‑movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment.  City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

Libel is 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.  Rodriguez v. NBC Bank, 5 S.W.3d 756, 766 (Tex. App.CSan Antonio 1999, no pet.). Slander is a defamatory statement that is orally communicated or published to a third person without legal excuse.  Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995).  However, a qualified privilege exists where the writing or statement is 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.  East Tex. Med. Ctr. Cancer Inst. v. Anderson, 991 S.W.2d 55, 60 (Tex. App.CTyler 1998, pet. denied).  The privilege does not apply to the furnishing of such information to others not so interested.  See Dun & Bradstreet, Inc. v. O'Neil, 456 S.W.2d 896, 898B99 (Tex.1970). Moreover, the speaker abuses the privilege if he makes a statement with actual malice. Grant v. Stop‑N‑Go Mkt. of Tex., Inc., 994 S.W.2d 867, 874 (Tex. App.CHouston [1st Dist.] 1999, no writ).

Here, Brieven supported his motion for summary judgment with an affidavit in which he stated, in pertinent part:

My Port Engineer, David Gilbert, received information, which he relayed to me, that an individual matching Capt. Saudi=s description had purchased goods from IMC.  I then contacted Capt. Ernesto Violetta of American Eagle Tankers, Capt. Saudi=s supervisor, to establish a procedure by which mooring masters may purchase materials.  This procedure was designed to prevent me from receiving invoices for materials which I had no knowledge of who had placed the order.

The concerns raised by my sincere belief regarding Capt. Saudi=s conduct were then discussed during a meeting on or about June 18, 1998.  At this meeting, I raised questions regarding Capt. Saudi=s actions which I reasonably believed were true. Any statements regarding Capt. Saudi=s actions were expressed only to individuals which had a direct interest in the subject matter and whom I believed was [sic] entitled to know.

None of my statements were made with malice or ill will.  These concerns were brought up in good faith, based on my reasonable belief of the truthfulness of the information.  I did not know any of the statements to be false nor did I make any statements with reckless disregard as to whether they were false.

Saudi argues that Brieven=s affidavit fails to establish the qualified defense of privilege because it is no business of Brieven whether American Eagle Tankers authorized Saudi to purchase equipment from Industrial Material Corporation.  If we assume, however, that Brieven is the owner of I. B. Marine Services, then Saudi=s interpretation of Brieven=s affidavit is unreasonable.  When read in context, it is clear that invoices generated by equipment purchases from Industrial Material Corporation were being forwarded to I. B. Marine Services for payment.  While it would undoubtedly have been helpful if Brieven had provided more details, it is apparent from his affidavit that American Eagle Tankers, Industrial Material Corporation, and I. B. Marine Services had some type of interlocking business relationship.  Thus, a purchase of equipment from Industrial Material Corporation made without Brieven=s authorization generated profound clerical problems because I. B. Marine Services had no way knowing which client was responsible for the purchase. According to Brieven, he contacted American Eagle Tankers to try to work out a procedure that would permit its mooring masters to make purchases from Industrial Material Corporation, but still permit I. B. Marine Services to properly track the purchase and assign it to the proper customer, i.e., American Eagle Tankers.  While Brieven=s affidavit is lacking in many details, we find it minimally sufficient to prove each essential element of his affirmative defense, i.e., the communication was made in good faith on a subject which Brieven had an obvious business interest to a person having a corresponding interest or duty.

Once the defendant establishes the communication is privileged, the plaintiff may avoid summary judgment by either (1) offering evidence raising a material fact issue on some element of the defense^[2] or (2) showing the privilege was lost.^[3]  The privilege is lost if the communication was motivated by malice.  See Pioneer Concrete of Tex., Inc. v. Allen, 858 S.W.2d 47, 49 (Tex. App.CHouston [14th Dist.] 1993, writ denied).

In response to Brieven=s motion for summary judgment, Saudi submitted two affidavits.  On the issue of  privilege, Captain Ernesto Violetta stated the following in his affidavit:

In September, 1998, Captain Ivo Brieven placed a telephone call to me to discuss Captain Sheriff Saudi.  Captain Brieven told me that Captain Saudi had ordered some equipment (hooks) from Industrial Material Corporation in Galveston, Texas, without authorization of IB Marine.  . . . I understood Captain Brieven to be telling me that Captain Saudi, one of American Eagle Tanker=s employees, had ordered some equipment on the account of IB Marine without authority.  . . . This was not the first time that Captain Brieven had made reports to me concerning Captain Sheriff Saudi.  . . . I took Captain Brieven=s word for granted and reprimanded Captain Saudi.  I spoke to Captain Saudi harshly, and began to lose trust in him due to Captain Brieven=s reports to me concerning him.  Captain Saudi denied the allegation persistently, to the point that I had to call Captain Brieven to ask him if he was sure of his allegation, and Captain Brieven said, “Yes, I am sure.  Sheriff is a liar.  He is lying through his teeth.”

Nothing in Captain Violetta=s affidavit suggests the communication at issue was made to any person who did not have an interest or duty in discovering whether Saudi was making unauthorized purchases of equipment from Industrial Material Corporation.

Saudi also tendered his own affidavit which states, in pertinent part:

Captain Ivo Brieven made false accusations against me to my employer, to third parties and to [sic] “boat crew” in an effort to create hate and resentment between “boat crew”, with whom I had to work, and me, in an attempt to interfere with my work and with my employment relations.  . . . Captain Ivo Brieven, and his agents working under him, encouraged co-workers to attempt to sabotage my work, and then to report to him any incident that he would later exaggerate and report to my employer.  . . . Specifically, on various occasions, some in my presence, and others in my absence, Captain Ivo Brieven told Captain Ernesto Violetta that:

“Sheriff is instigating a revolution against me.”

“Sheriff wakes up the crew at 4:00 a.m. to jog on the ship.”

“Sheriff called the surveyor, Pete, a stupid American.”

“Sheriff wakes up the crew at 4:00 a.m. to cook him a steak.”

To constitute competent summary judgment evidence, affidavits must be made on personal knowledge, set forth facts as would be admissible in evidence and show affirmatively that the affiant is competent to testify to matters stated therein.  Krishnan v. Law Offices of Preston Henrichson, 83 S.W.3d 295, 299 (Tex. App.CCorpus Christi 2002, pet. denied).  While Saudi specifically alleges that Brieven made accusations “to third parties” and the “boat crew,” these allegations appear to be hearsay. Saudi makes a concluding assertion in his affidavit that “all of the facts alleged . . . are true and correct and are within my own personal knowledge,” but this statement is specifically rebutted by his admission that some of Brieven=s remarks were made in his presence and some were made in his absence.  Having admitted that unspecified portions of the affidavit are hearsay, we must next consider whether the entire document has lost its probative value because hearsay statements in affidavits may not be made the basis of a summary judgment.  Natural Gas Clearinghouse v. Midgard Energy Co., 23 S.W.3d 372, 380 (Tex. App.CAmarillo 2000, pet. denied).

Since September, 1983, hearsay statements have had probative value if no objection is made to their admission.  Tex. R. Evid. 802; El Paso Associates, Ltd. v. J.R. Thurman & Co., 786 S.W.2d 17, 19 (Tex. App.CEl Paso 1990, no writ). Here, Brieven filed a written objection to appellant=s affidavit in the court below complaining of hearsay and conclusory statements.  However, the trial court made no ruling on Brieven=s written objection, and he voiced no objection to the trial court=s failure to rule. Absent a ruling or a refusal to rule on Brieven=s objection, his hearsay contention is waived.  Dolcefino v. Randolph, 19 S.W.3d 906, 927 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).^[4]

Although no model for emulation, the operative statements in Saudi=s affidavit are not conclusory.  He sets forth specific statements he claims were falsely made by Brieven to third parties. While the alleged statements do not appear to be particularly defamatory, Saudi=s affidavit is sufficient to create a fact issue.

The second prong of appellant=s attack upon the defense of privilege is the assertion that Brieven=s statement was made with malice.  Proof that a statement was motivated by actual malice existing at the time of publication defeats the privilege.  Randall=s Food Mkts., 891 S.W.2d at 646.  On the issue of malice, Violetta said, in pertinent part:

American Eagle Tankers= employees do not make purchases on IB Marine accounts.  Captain Brieven knew that when he accused Captain Saudi of making purchases without authority on an IB Marine account. . . . I believe that Captain Saudi=s attempt to implement American Eagle Tankers= safety policy, to improve overall operational standards, and to implement AET=s cost and quality control policy, for which Captain Saudi and the other STS Superintendents were in charge, faced a lot of resistance from Captain Ivo Brieven, and the boats= crew.

This affidavit, however, does not show proof of malice.  Violetta=s statement that Brieven knew Saudi did not make purchases on the I. B. Marine account is wholly conclusory.  A conclusory statement is one that does not provide the underlying facts to support the conclusion.  Conclusory statements in affidavits are not proper as summary judgment proof if there are no facts to support the conclusions.  Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  Moreover, while Violetta sets forth a possible motive for ill will, actual malice is not ill will;  it is the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true.  Randall=s Food Mkts., 891 S.W.2d at 646;  Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771, 772 (Tex.1994) (per curiam). Reckless disregard is defined as a high degree of awareness of probable falsity, for proof of which the plaintiff must present sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts about the truth of his statement.  Carr v. Brasher, 776 S.W.2d 567, 571 (Tex.1989).

Regarding the same issue, Saudi said in his affidavit:

Captain Ivo Brieven either made up the story concerning the unauthorized purchases by me, or he never attempted to verify the truth or falsity of the allegations against me before passing them on to my supervisor.  . . . Captain Ivo Brieven either knew or should have known that I did not purchase anything from Industrial Material Corporation.  I had never purchased anything on IB Marine=s account in the past.  . . . Captain Brieven knew that it was an IB Marine employee who had ordered the hooks when he accused me of the unauthorized purchase. Captain Brieven also knew that all purchases, if any, made by AET employees went through American Eagle Tankers and not through him.

Again, this portion of the affidavit is also conclusory.  It provides no underlying facts within the affiant=s personal knowledge to support his conclusions.

Finally, appellant offers a copy of a handwritten letter, purportedly written by the owner/manager of Industrial Material Corporation, which states:

Confirming that untill [sic] this day 9-23-98 Myself or Mike Betz have never dealt with personally or by phone with either Capt. Sheriff or O.P. Any purchases for the M/V Endeavor are bought by I. B. Marine only.  No one in our place of buisness [sic] has ever met either of these gentelmen [sic].

Even if we could consider this unsworn assertion, it does little more than show Brieven was mistaken.  It constitutes no evidence that Brieven knew the statement was false or that he made it with reckless disregard regarding the truth of the statement.

Accordingly, while the trial court did not err in finding no proof of malice, it did err in implicitly finding no proof that defamatory statements were made to third parties. In other words, we find there is a fact issue presented in the summary judgment record regarding Brieven=s defense of qualified business privilege.

Saudi next contends the trial court erred in granting summary judgment on his claim of intentional interference with employment relations.  We assume, as Brieven did, that Saudi=s claim is actually a claim of tortious interference with a contract. The elements of tortious interference with contractual relations are:  (1) an existing contract subject to interference, (2) a willful and intentional act of interference with the contract, (3) that proximately caused the plaintiff=s injury, and (4) caused actual damages or loss.  Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).  Brieven argues that Saudi=s claim fails because he is still employed by American Eagle Tankers and, thus, can show no actual damages stemming from Brieven=s statement.  We agree.

Although Saudi alleged as damages his expense of traveling to Galveston to clear up the allegation, the loss of his good reputation, and mental anguish, the basic measure of actual damages in an action for tortious interference with contract is the same as the measure of damages for breach of the contract at issue.  Anderson, Greenwood & Co. v. Martin, 44 S.W.3d 200, 219 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).  In other words, in assessing actual damages, the jury should attempt to put the plaintiff in the same economic position he would have been in had the contract not been breached.  Id.  Here, the contract at issue, i.e., Saudi=s contract of employment, was never breached.  Accordingly, Saudi has no actual damages with regard to his claim of tortious interference with a contract.

Because the summary judgment record presents a fact issue regarding whether Brieven made defamatory statements to third parties, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.

/s/        J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed May 1, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

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^[1]  Although the record does not support or refute this assumption, AIn a civil case, the court will accept as true the facts stated [in the brief] unless another party contradicts them.@  Tex. R. App. P. 38.1(f).

^[2]  See Bates v. Dallas Indep. Sch. Dist., 952 S.W.2d 543, 548 (Tex. App.CDallas 1997, writ denied) (holding the plaintiff can bar the defendant=s motion for summary judgment by presenting evidence that creates a fact question on at least one element of each affirmative defense advanced by the defendant);  Toonen v. United Serv. Auto. Ass=n, 935 S.W.2d 937, 940 (Tex. App.CSan Antonio 1996, no writ.) (holding as a general rule, a party seeking to avoid a summary judgment by virtue of an affirmative defense bears the burden of raising a material issue of fact on that defense).

^[3]   See Denton Publ=g Co. v. Boyd, 460 S.W.2d 881, 884 (Tex.1970) (holding once the defendant shows the conditional privilege exists, the burden is then on the plaintiff to show that the privilege is lost).

^[4]  We readily acknowledge that A[t]he general rule requiring the party asserting the objection to obtain a ruling or a refusal to rule in order to preserve error, presents special challenges in summary judgment practice, where motions can be and often are decided without oral hearing or any other face‑to‑face encounter with the trial judge.@  Id. at 925.