V.E. Joahanne Thomas-Smith v. James E. MacKin

Reversed and Remanded and Opinion filed September 27, 2007

Reversed and Remanded and Opinion filed September 27,

2007.

In The

Fourteenth Court of

Appeals

_______________

NO. 14-05-00852-CV

_______________

V.E. JOAHANNE THOMAS-SMITH, Appellant

V.

JAMES E. MACKIN, Appellee

On Appeal from 155th District Court

Waller County, Texas

Trial Court Cause No. 03-05-16832

O P I N I O N

In this defamation case, V.E.

Joahanne Thomas-Smith appeals on numerous grounds a judgment entered in favor

of James E. Mackin. We reverse and remand.

Background

During a telephone conversation,

Thomas-Smith, the Provost and Senior Vice President of Academic and Student

Affairs of Prairie View A&M University ( A Prairie View @ ), questioned Dr. Gerard Rambally,

the Dean of Arts and Science of Prairie View, about Rambally = s reasons for recommending Mackin, a

Ph.D. in chemical oceanography, to be appointed interim Chairman of the Prairie

View Chemistry Department and about not having assigned Mackin a full teaching

load for the upcoming semester. One of Thomas-Smith = s questions or comments in this

conversation was to the effect that Mackin and Rambally had a A love @ or A lover @ relationship. After Mackin, a

married man, learned of this comment (the A comment @ ), he filed this action for slander

against Thomas-Smith. The case was tried to a jury, and judgment was entered

in accordance with the jury = s verdict, awarding Mackin $40,000 in damages against

Thomas-Smith.

Directed

Verdict

Thomas-Smith = s first issue contends that the trial

court erred by denying her motion for directed verdict [1]

on the ground that the comment was not defamatory as a matter of law because it

was a

rhetorical hyperbole rather than a statement of fact . [2]

Slander is a

defamatory statement [3]

that is orally communicated to a third person without legal excuse. Randall = s Food Markets,

Inc. v. Johnson , 891 S.W.2d 640, 646 (Tex. 1995). Among other things, a

defamatory statement must be sufficiently factual to be susceptible of being

proved objectively true or false, as contrasted from a purely subjective

assertion. See Milkovich v. Lorain Journal Co. , 497 U.S. 1, 21-22

(1990). It must also be such that a reasonable factfinder could conclude that

the statement implies an actual assertion of the purported fact, as contrasted

from loose, figurative, or hyperbolic language that would negate the impression

that the declarant was seriously maintaining that the fact was literally true.

See id . [4]

An allegedly

defamatory publication is construed as a whole in light of the surrounding

circumstances based on how a person of ordinary intelligence would perceive

it. New Times, Inc. v. Isaacks , 146 S.W.3d 144, 154 (Tex. 2004). The

appropriate inquiry is thus objective, not subjective. Id . at 157.

Whether a statement is capable of a defamatory meaning is generally a question

of law for the court. Id . at 155. But when a publication is of

ambiguous or doubtful import, the jury must determine its meaning. Id .

In this case, by

describing a relationship between individuals, the comment was sufficiently

factual to be susceptible of being proved true or false. However, it is not

clear from the context and surrounding circumstances whether Thomas-Smith was

making the comment: (1) sarcastically, to figuratively express her disbelief

concerning the recommendation; or (2) sincerely, out of concern that the

recommendation had been made for improper motives. Because of this ambiguity,

Thomas-Smith = s first issue fails to demonstrate that the comment

was not defamatory as a matter of law, and is overruled.

Thomas-Smith = s second issue

contends the evidence conclusively proves there was no publication because the

parties who heard the comment did not understand it to be defamatory. A person

publishes a slanderous remark if she communicates it to a third person who is

capable of understanding its defamatory meaning and in such a way that the

person did understand its defamatory meaning. Lozano v. Lozano, 983

S.W.2d 787, 793 (Tex. App. C Houston [14th Dist.] 1998) , aff = d in part, rev = d in part on other

grounds, 52 S.W.3d 141 (Tex. 2001).

The undisputed

evidence in this case shows that two people heard and understood the comment.

One was Rambally, who understood it to assert that Mackin had a sexual or

romantic relationship with him and that he (Rambally) was appointing people to

positions based on his relationship with them rather than their credentials.

The second person was Darlene Knebel, Rambally = s secretary, who

understood it to assert that Rambally was recommending Mackin to be Chemistry

Department Head because of Rambally = s A > love relationship = @ with Mackin. Because

there was evidence of publication, Thomas-Smith = s second issue

fails to demonstrate that the trial court erred in denying the motion for

directed verdict on this ground, and is overruled.

Jury Charge

Thomas-Smith = s fifth issue

contends, in part, that the trial court erred by refusing her requests to

include in the court = s charge to the jury questions on the

defenses of official immunity and qualified privilege.

A trial court must

submit the questions, instructions, and definitions that are raised by the

pleadings and evidence. Tex. R. Civ. P .

278. A judgment cannot be permitted to stand when a trial court = s refusal to

submit a question denies a party the submission of a viable affirmative defense

that has been so raised. Exxon Corp. v. Perez , 842 S.W.2d 629, 631

(Tex. 1992).

One of the

elements of the defense of official immunity is good faith, which requires an

objective determination of whether a reasonably prudent official, under the

same or similar circumstances, could have believed that his conduct was

justified based on the information he possessed when the conduct occurred. Joe

v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, 162, 164 (Tex. 2004). As

evidence of the element of good faith to support the submission of a jury

question on official immunity, Thomas-Smith relies on the testimony of George

C. Wright, President of Prairie View, and Thomas-Smith.

However, the

testimony of Wright that Thomas-Smith = s brief cites for

this purpose is deposition testimony that was attached as an exhibit to

Thomas-Smith = s motion for summary judgment. Because Thomas-Smith = s brief cites no

portion of the record where any such testimony by Wright was admitted into

evidence at trial, it does not establish that this evidence was before the jury

so as to support a question in the court = s charge.

Similarly, the relied upon testimony by Thomas-Smith was the following:

Q: And in that conversation, August of 2002, whatever statement

that was, that was said, do you believe it was lawful?

A: Yes. Whatever statement was said in the conversation about the

teaching load or whatever, I believe it was lawful.

* * * *

Q: When you were asked about whether it was lawful, what did you,

what was your definition of being lawful?

A: Well, within the role and scope of my job and not against the

constitution, or policies or whatever.

Q: [I]f the statement was made that you say may have been made,

and that statement was that you, Dr. Rambally and Dr. Mackin have a lover

relationship, and that is why you wanted to appoint him as interim dean,

interim department, would that be lawful?

A: Sir, if I said that, it would be lawful.

However, this

testimony does not raise a fact issue on the good faith element of official

immunity because: (1) it does not address the good faith standard (whether a

reasonably prudent official, under the same or similar circumstances, could

have believed that his conduct was justified based on the information he

possessed when the conduct occurred); (2) it is Thomas-Smith = s subjective view

rather than evidence of an objective standard; and (3) it is conclusory,

providing no factual basis or foundation to support the stated conclusion.

Accordingly, we overrule the portion of Thomas-Smith = s fifth issue that

challenges the trial court = s denial of her request to submit a jury

question on official immunity and turn to her challenge the denial of a jury

question on the defense of qualified privilege.

Where, as here,

there is not alleged to be a public figure plaintiff, a media defendant, or a

defamatory statement involving a matter of public concern, the falsity of the

statement is generally presumed, [5]

and the truth of the statement is an affirmative defense that must be proved by

the defendant. See Randall = s food Markets

Inc. v. Johnson , 891 S.W.2d 640, 646 (Tex. 1995). Similarly, in the

absence of a privilege, malice [6]

is inferred from the fact that a defamatory statement is false. See Int = l & G.N.R. Co.

v. Edmundson , 222 S.W. 181, 183 (Tex. Comm = n App. 1920,

holding approved); Bradstreet Co. v. Gill , 72 Tex. 115 , 9 S.W. 753, 121

(Tex. 1888). Conversely, where a defamatory statement is privileged, the

inference of malice is overcome, and it becomes the plaintiff = s burden to

establish malice by evidence other than the falsity of the statement, if any. Id .

In this case,

Thomas-Smith requested a jury question on whether she was entitled to the

following qualified privilege:

A Qualified privilege @ exists when a

communication is made in good faith and the author, the recipient, or a third

person has an interest that is sufficiently affected by the communication. The

effect of the privilege is to justify the communication which is made with

proper motive and without actual malice. A finding of actual malice must be

supported by clear and convincing proof. [ [7] ]

There is no

dispute that such a qualified privilege exists under Texas law. See, e.g.,

Cain v. Hearst Corp. , 878 S.W.2d 577, 582 (Tex. 1994). Because

Thomas-Smith pleaded the affirmative defense of qualified privilege, the trial

court was required to submit this question if the defense was raised by the

evidence. See Tex. R. Civ. P .

278.

In that regard, Thomas-Smith

testified that she made the comment during discussions on a subject about which

she had a duty to communicate with Rambally. At the time, Rambally needed to

fill the position of interim head of the Chemistry Department, and needed

Thomas-Smith = s approval to do so. Thomas‑Smith and Rambally also had the mutual

task of coordinating Mackin = s teaching load as a chemistry professor following a

reduction in force. Thomas‑Smith made the comment during a telephone

conversation with Rambally concerning these matters. This evidence was

sufficient to raise a fact issue whether the comment was made concerning a

matter on which Thomas-Smith and Rambally had a common interest.

Mackin argues that Thomas-Smith was

not entitled to this instruction because the comment was: (1) published to

Knebel, who did not share the common interest; (2) not made in good faith; and

(3) made with malice.

As to the first contention, if a

defamatory statement is privileged, the casual or accidental presence of a

third party will not take it out of the privilege. Flowers v. Smith , 80

S.W.2d 392, 393 (Tex. Civ. App. C Amarillo 1934, no writ). The Restatement thus explains:

One privileged to publish defamatory

matter may, without abuse of the privilege use a method of communication that

involves an incidental publication of the defamatory matter to persons to whom

he is not otherwise privileged to publish it, if the method, although not the

only way in which the information can be effectively communicated, is customary

and sanctioned by business or other necessity. Thus the fact that dictation to

a stenographer involves as a necessary incident the communication of the

defamatory matter to her does not make the sending of a dictated business

letter to the person to whom the writer is privileged to send it an abuse of

the privilege. So too, the fact that it is a business custom for clerks and

secretaries to open business correspondence of their superiors does not make

the sending of a business letter to the office of the privileged recipient an

abuse of the privilege. On the other hand, when the method of communication is

unnecessary and unsanctioned by the a custom based on ordinary necessities of

business, the publication of the defamatory matter to persons not privileged to

receive it that is incidental to those methods is not privileged. Thus the use

of a postcard in place of a letter is an excessive publication. So too, the

use of a telegram to communicate information that could be effectively

communicated in a sealed letter is an excessive publication, although it would

not be so if the information, to be valuable, must be speedily received.

Restatement (Second) of Torts ' 604 cmt. b (1977). In this case,

when the comment was made, Knebel was in Rambally = s office to do filing, a task Knebel

occasionally performed while, as here, Rambally was on the speaker-phone. Under these

circumstances, the publication of the comment to Knebel did not itself

conclusively negate the existence of a qualified privilege so as to preclude a

jury question on that defense.

Mackin = s contention that

a jury question on qualified privilege should not have been submitted because

there is no evidence raising a fact issue on good faith is based on the meaning

of that phrase as an

element of the defense of official immunity, i.e. , whether a reasonably

prudent Provost could have believed that her conduct was justified. However,

we can find no authority suggesting that the definition of good faith for

official immunity also applies to the defense of qualified privilege.

Therefore, the failure to submit a question on the defense of qualified

privilege cannot be affirmed on the lack of evidence, if any, of good faith as

it would apply to official immunity.

Texas cases refer to the concept of A good faith @ in the context of qualified

privileges in an inconsistent manner. Some describe good faith as being

presumed where a conditional privilege exists (as if it is simply the

non-existence of malice), [8] whereas

others refer to it as an element of the conditional privilege, [9]

and, thus, something that must be proved before the privilege arises. In

addition, we have found no Texas cases which define A good faith @ in this context. Because no formal

legal definition appears to exist, A good faith @ would have had its commonly

understood meaning pursuant to the court = s general charge to the jury. [10]

Because the circumstances surrounding the making of the comment are at least

sufficient to raise a fact issue on whether it was made in good faith, as that

term is commonly understood, the failure to submit a question on qualified

immunity cannot be affirmed on a lack of evidence of good faith.

Lastly, Mackin

argues that Thomas-Smith was acting with malice because she had no evidence

that Mackin and Rambally had a A love @ or A lover @ relationship that

would influence Rambally = s decision making. Mackin further points

to evidence that Thomas-Smith was aware that Mackin was married with children.

In this context,

malice means making the defamatory statement with knowledge of its falsity or

in reckless disregard as to its truth. Masson v. New Yorker Magazine, Inc. ,

501 U.S. 496, 510 (1991); New Times , 146 S.W.3d at 162 . However,

because there was evidence that the comment was subject to a qualified

privilege, Mackin had the burden to prove malice, i.e. , that

Thomas-Smith actually entertained serious doubts as to the truth of the

comment. See Masson , 501 U.S. at 510 ; New Times , 146 S.W.3d at

162 . Moreover, the qualified privilege can exist even when the statement is

untrue or its truth is disputed. [11]

Therefore, a lack of evidence of the truth of the comment would also not

preclude a jury question on the qualified privilege defense.

Because the defense of qualified

privilege was properly raised by the pleadings and evidence, the trial court = s refusal to submit Thomas-Smith = s requested jury question on that

defense was reversible error. See Perez , 842 S.W.2d at 631 . Therefore,

we sustain Thomas-Smith = s fifth issue to that extent, reverse the judgment of the

trial court, and remand the case to the trial court for further proceedings;

and we need not address Thomas-Smith = s remaining challenges to the

judgment. [12]

/s/ Richard H. Edelman

Senior Justice

Judgment rendered and Opinion filed

September 27, 2007.

Panel consists of Justices Fowler,

Frost, and Edelman. *

[1] A directed verdict is proper if no evidence of probative

force raises a fact question on an issue that is essential to the plaintiff = s right of recovery. Prudential

Ins. Co. of Am. v. Fin. Review Servs., Inc. , 29 S.W.3d 74, 77 (Tex. 2000).

[2] Although Thomas-Smith = s motion for directed verdict, made in open court,

asserted that the comment was not defamatory, it gave no reason for that

assertion. However, because we conclude that the reason presented on appeal is

without merit, need not rule on whether the complaint was preserved.

[3] A defamatory statement is one that is

injurious to reputation, whether true or false. See Bentley v. Bunton ,

94 S.W.3d 561, 587 (Tex. 2002).

[4] See generally Eric Scott Fulcher, Note, Rhetorical Hyperbole and the

Reasonable Person Standard: Drawing the Line Between Figurative Expression and

Factual Defamation , 38 Ga. L. Rev . .

717, 720 (2004).

[5] See Hurlbut v. Gulf Atl. Life Ins. Co. ,

749 S.W.2d 762, 766 (Tex. 1988).

[6] In this context, a statement is made with

malice when it is made with either knowledge of its falsity or reckless

disregard whether it is true. Randall = s , 891

S.W.2d at 646 .

[7] Definitions of A actual malice @

and A clear and convincing proof @ were also submitted with this question but are not

material to our disposition.

[8] See, e.g., Edmundson , 222 S.W. at

183 ( A If the occasion is privileged, a proper and sufficient

motive is shown; and thereby the inference of malice is repelled, and in lieu

thereof the presumption obtains that the communication was made in good faith. @ ); Simmons v. Dickson , 110 Tex. 230 , 213 S.W.

612 , 612 (1919) (reciting both standards).

[9] See, e.g., Cain , 878 S.W.2d at 582 ( A Qualified privileges against defamation exist at

common law when a communication is made in good faith . . . . @ ); Diamond Shamrock Ref. & Mktg. Co. , 844

S.W.2d 198, 210 (Tex. 1992) (same); Perry Bros. Variety Store, Inc. v.

Layton , 119 Tex. 130 , 25 S.W. 310 , 313 (Tex. 1930) (same); Mo. Pac.Ry.

Co. v. Richmond , 73 Tex. 568 , 11 S.W. 555, 575 (1889) ( A We understand the law to be that a communication made

in good faith, in reference to a matter in which the person communicating has

an interest, . . . is privileged . . . . @ );

Bradstreet , 9 S.W. at 119-20 ( A whatever

was said orally by defendants about plaintiffs and their business was said in

good faith, and in confidence to their subscribers, who were by reason of their

business relations with the plaintiffs interested in knowing their financial

and business standing, and in answer to requests made by their subscribers in

relation thereto. This being so, the statements thus made by defendants are

privileged communications. @ ).

[10] This instruction stated, A When words are used in this charge in a sense that

varies from the meaning commonly understood, you are given a proper legal

definition, which you are bound to accept in place of any other meaning. @

[11] See, e.g., Dun & Bradstreet, Inc. v.

O = Neil , 456

S.W.2d 896, 898-99 (Tex. 1970); Bradstreet , 9 S.W. at 757 ; Richmond ,

11 S.W. at 557-58 .

[12] See Tex. R. App. P. 47.1 (requiring

an appeals court opinion to be as brief as practicable in addressing the issues

raised that are necessary to final disposition of appeal).

* Senior Justice Richard H. Edelman sitting

by assignment.