Mary Collins v. Sunrise Senior Living Management, Inc. and Nick Roccoforte

Opinion issued March 29, 2012

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-01000-CV

———————————

Mary Collins , Appellant

V.

Sunrise

Senior Living Management, Inc. and Nick Roccaforte , Appellees

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Case No. 2008-49128

MEMORANDUM OPINION

Plaintiff-appellant

Mary Collins appeals here from a take-nothing judgment on a jury verdict in

favor of the defendants-appellees Sunrise Senior Living Management, Inc. (SSLM)

and Nick Roccaforte. We affirm.

BACKGROUND

Collins d/b/a Collins Home

Healthcare provides personal care services for the elderly at independent and

assisted living facilities in Houston.

Beginning in 2004, she contracted with several families at Eden Terrace,

an independent living facility in Kingwood, Texas that is managed by SSLM. In 2008, a family receiving services from

Collins at Eden Terrace — Mr. and Mrs. Stiver — complained to the executive director Roccaforte that Collins was

overcharging for services. This

incident, in conjunction with other documented complaints about Collins’s

services, led to Roccaforte’s banning Collins from the facilities and

terminating her contracts with several residents.

Collins sued SSLM and Roccaforte

under tortious interference and defamation theories. The trial court entered judgment on the jury’s

verdict in the defendants’ favor, and Collins appealed here on numerous legal

and evidentiary theories. We begin with

a summary of the trial evidence about the parties and the events that led to

their dispute.

A. Eden Terrace, Roccaforte, and Collins

Eden Terrace has three campuses — independent living, assisted living, and

dementia care. To be a resident in their

independent living facility, each resident must sign a Residency Agreement that

governs the terms of their leasing arrangement. [1] The typical Residency Agreement also directly

addresses the issue of private duty aides:

V. Private Duty Policy . You may, at your own expense,

employ a private duty aide (e.g., private nurses, sitters, etc.), only with prior

notice to the Community. Any private duty

aide engaged by you will not become or be considered [SSLM]’s employee. You and the private duty aide will be required

to follow the Community’s policies and procedures concerning private duty aides

and the aide maybe removed or excluded from the community for violation

thereof.

Roccoaforte testified that as

executive director of Eden Terrace, he is “entrusted with an obligation and a

responsibility to ensure the safety and welfare of all the residents and

employees under [his] direction.” He

believes his “first priority to that community is the residents,” and has been

trained “that every resident should be treated with dignity and with respect,

with compassion and with attention to detail.”

Those duties include being responsive and helpful when “a resident has a

complaint or concern,” and taking action “if there is an issue relating to a

resident or a family member that . . . may be detrimental to their health or

their care or may create some kind of a serious situation that we could avoid.” Several family members of Eden Terrace

residents testified that Roccaforte’s understanding of his obligations was

consistent with their expectations that Eden Terrace’s management would act

when necessary to ensure the welfare of residents and prevent their harm or

exploitation.

Collins’s ability to contract to work on the premises of Eden Terrace

was contingent upon her executing two agreements: “Private Duty Aide

Acknowledgement & Indemnifications” and “Private Duty Aide Guidelines and

Expectations.” By executing the

Acknowledgement and Indemnification form, Collins agreed that she would “follow

the Private Duty Aide Guidelines and

Expectations , and any other rules, regulations, policies, or procedures

that [SSLM] or the community develops, now or in the future, about the conduct

of Private Duty Aides and visitors on the community’s premises.” The Guidelines and Expectations set forth

several behaviors required while providing services in a SSLM community,

including (1) sign in and out at the desk every time she provided services at

the community, (2) always wear a name badge, (3) remain in designated work

areas at all times, and (4) not solicit business on the property. The Guidelines and Expectations further

provide “that failure to follow the above guidelines may result in immediate

loss of privileges to provide services to residents in th[e] community.”

B.

Evidence

of a History of Complaints and Concerns Related to Collins

Although several residents’ family

members testified to having a good working relationship with Collins, there was

evidence that Collins often refused to follow required procedures on the

premises. Specifically, she refused on

many occasions to sign in or out, and she did not always wear a name

badge. Roccaforte also personally witnessed,

and received reports from residents about, her soliciting clients at Eden

Terrace. While Roccaforte testified to

his belief that he could have banned Collins from the premises based on these

infractions, they were not the determining factor in the later decision to do

so. Rather, “[t]hose were factors that

led up to an accumulation of issues relative to the reports that [he] had been

receiving from families, residents, and other staff members.” More significant in Roccaforte’s mind were

“other items relative to her potential mistreatment or potential, you know,

rudeness and the way she presented herself to the residents.”

Eden Terrace kept “daily logs,”

which contained handwritten notes by various staff members about different

types of “occurrences that happened on a daily basis,” with sections for the

date, subject matter, what happened, and what action was taken. Numerous daily logs entries from 2007 and

2008 memorializing complaints regarding Collins’s treatment, lack of

responsiveness, and strained interaction with both residents and employees of

Eden Terrace were admitted into evidence.

These included complaints about Collins’s (1) failing to bring residents

down for meals, (2) calling 911 and having a resident transported to the

hospital without notifying Eden Terrace, (3) abandoning residents that were in

her care at the front desk, (4) failing to contact a resident’s family members

after that resident suffered a fall, despite representing that she would, (5)

exhibiting rudeness and hostility towards Eden Terrace staff, particularly when

they tried to contact her on behalf of her clients, and (6) taking employee

meals without asking.

Carol Gross, an Eden Terrace

employee, testified to being asked frequently by residents for assistance in

locating or contacting Collins, and that Collins would become angry when Gross

called her on behalf of residents. Gross

also recited an incident in which Collins pushed on the back of a resident who

was using a walker to get her to stand up straight, which Gross considered a

“safety issue” because it could cause a fall.

She considered Collins’s treatment of the resident in that incident as

unprofessional.

C.

Evidence

About Complaints that Collins was Overcharging and Threatened the Stivers

In April 2008, Mr. Stiver, an Eden

Terrace resident, came to Roccaforte and Eden Terrace’s business manager,

Giannina, several times over a three-week period, expressing concern about the

treatment he and his wife received from Collins. Mr. Stiver was “concerned about his finances”

and relayed that he “had been spoken to in tones that were not the most

appropriate; he had been afraid to work with her, and he also said that she had

been demanding to be paid for services.”

Because one of Mr. Stiver’s

complaints was that he had been paying Collins weekly, but thought he was only

supposed to be paying her monthly, Roccaforte offered to sit down with Mr.

Stiver and Giannina to look over Mr. Stiver’s checkbook. They did so, and confirmed that Mr. Stivers

had been writing weekly checks to Collins in various amounts: $250, $300, $270,

etc. When Mr. Stiver’s told Roccaforte

that he believed he had been overpaying, Roccaforte suggested that Mr. Stiver

not immediately pay Collins, and let Roccaforte either talk to Mr. Stiver’s

family or look at the agreement with Collins to try to understand what the

relationship and compensation was supposed to be.

Roccaforte called the Housers, Mr.

Stiver’s daughter and son-in-law, to inquire about specifics of the agreement

with Collins. Mrs. Houser explained to

him that “her agreement with Ms. Collins was to care for her mom, maybe some

bathing and also some medication management and that was an agreed upon price

of $300 per month.” The Housers then

came to the Eden Terrace in person, reviewed Mr. Stiver’s checks, confirmed to

Roccaforte again that the amounts were inconsistent with their agreement and

indicated that they planned to terminate the relationship with Collins.

Roccaforte and Giannina

investigated and prepared a note to their files documenting their meeting with

the Housers and the evidence they reviewed indicating that Collins was being

overpaid. That same note recommended

that Eden Terrace have a nurse assess Mrs. Stiver to understand what kind of

care she required and help transition the Stivers from Collins’s care, since

Mr. Stiver “is basically afraid of her and intimidated by her presence and

style.”

Trianna Rickman, another Eden

Terrace employee, testified that in the late-April 2008 timeframe, Mr. Stiver

came to her upset because Collins had called that morning demanding to be

paid. She then witnessed a confrontation

between Collins and Mr. Stiver in the hallway during which Collins was asking

for payment and then “raised her voice at him; and she said, if you don’t pay

me you are not going to get your medications back.” Rickman later overheard Mr. Houser speaking

on a cell phone to Collins, saying “if you don’t bring those medications back

now I am calling the police.”

The Housers’ deposition testimony

played at trial was consistent with Rickman’s and Roccaforte’s testimony. They both testified that they negotiated an

agreement with Collins in February 2008 to provide monthly services to Mr. and

Mrs. Stiver for $300. [2] Mr. Houser had a power of attorney over Mr.

Stiver’s financial affairs, and Collins was instructed to contact the Housers

“in regards to any problems or issues that might develop with the Stivers.” He testified that Collins never contacted the

Housers about the Stivers needing increased care or notified them that Collins

would be charging the Stivers additional money for her services.

When Mr. Stiver initially began

complaining to Mr. Houser about issues with Collins, Mr. Houser did not jump to

conclusions; he believed that Mr. Stiver might be confused because they “knew

of no other complaints” about Collins and knew that Mr. Stiver “had lost a

certain capacity . . . [and] sometimes he misinterpreted things.” Mrs. Houser similarly testified that she

discounted early complaints from Mr. Stiver about Collins because she assumed

they were related to his developing dementia.

Mr. Houser immediately became

concerned, however, when he witnessed an altercation between Mr. Stiver and

Collins in which she threatened him with transfer from independent living to

assisted living, which would have restricted his freedom. Mr. Houser testified that Mr. Stiver was

scared and “visibly upset by the statements made by Collins” and he opined that

her behavior was inappropriate and amounted to “mistreatment,” especially given

Mr. Stiver’s “mental functional incapacity.”

Mrs. Houser likewise witnessed an argument between Collins and Mr.

Stiver that she did not think was appropriate, but she did not view it as rising

to the level of mistreatment.

After the Housers met with Eden

Terrace management and reviewed Mr. Stiver’s checkbook, Mr. Houser called

Collins, told her that her services were no longer needed, and requested the

return of Mr. Stiver’s medication. Collins

responded that she would not return the medication until she was paid the money

she was due for the Stivers’ care. When

Collins finally returned the medication, Mr. Houser wrote her a last check for

$300. Both Housers testified that they

believe Collins took advantage of Mr. Stiver’s incapacity by overcharging

him.

D.

The

Revocation of Collins’s Eden Terrace Privileges and the Dispute Giving Rise to

this Lawsuit

On April 30, 2008, Roccaforte

informed Collins, in a meeting and with a letter, that her privileges at Eden

Terrace were being revoked. Collins’s

tortious interference and defamation claims are based upon two letters Roccaforte

wrote in conjunction with this decision: the letter informing Collins that her

privileges were revoked (“Collins Letter”), and another letter given to three

Eden Terrace residents who contracted with Collins (“Residents Letter”). The Collins Letter stated, in its entirety:

Dear Ms. Collins:

Over the last year the staff at Eden Terrace

of Kingwood has had concerns with your responsiveness to our residents with

whom you have provided services. It has also been reported to me on a number of

occasions your rude and arrogant attitude toward our staff and their efforts to

contact you when one of your clients is looking for you. This is not the type

of relationship we seek with any service provider who has the privilege of working

with our residents. I have personally discussed these and other issues with you

over the last year.

Recently I have been approached by employees,

residents and family members regarding the way you and your employees provide

service to and treat our residents. These complaints involve misconduct

regarding not providing the services your have promised, not being available

when called and/or providing and charging for services that were not requested.

Of more concern is the reports I have received regarding your mistreatment, disrespect

and threatening posture towards our residents regarding telling them who they can

and cannot speak to, what they can say regarding your services and threatening

to turn them in if they do not do as your [sic] say or pay your bill.

Operating a business in this manner is not

accepted here at Eden Terrace of Kingwood.

The privilege you have enjoyed by being able to offer services to any

resident at Eden Terrace is no longer available. Effective 05/01/08, Eden

Terrace will no longer recommend your services and you are hereby given notice

to vacate and not return to these premises, nor solicit any further business

from our residents. You may have your mother, who is one of your employees, finish

providing services to any and all residents you have an agreement with until

05/15/08. Between now and then, family members and residents will have 2 weeks

to transition whatever services your company is providing to another company.

We will notify residents here at Eden Terrace of the situation and assist them

in finding another company.

It is unfortunate this action must be taken,

but necessary to protect our residents.

Roccaforte gave this letter only to Collins,

although two other Eden Terrace employees were witnesses to Roccaforte reading

the letter to Collins.

The Residents Letter, prepared to

give notice to Collins’s clients that she was no longer permitted to provide

services on the premises, provided in its entirety:

Mary Collins of “Collins Home Health” is an

independent contractor who has had the privilege of offering a variety of

services to our residents here at Eden Terrace of Kingwood. Unfortunately that

privilege is being revoked as of 05/01/08 for serious allegations relating to

misconduct and resident mistreatment. If you have an agreement or arrangement

with this company for service please be advised that they will no longer be allowed

to enter Eden Terrace of Kingwood to service any of our residents after 05/15/08.

We will be happy to assist you in finding

another service to address your needs. You can contact our Health Care

Coordinator, Jackie Lorenz, RN, who can guide you to the appropriate service.

We have a list of preferred providers that can be shared with you given your

specific needs.

Please make arrangements to transition from

Collins Home Health as soon as possible and no later than 05/15/08. If you have

any questions ·or concerns you can contact me directly at [phone number].

Roccaforte had this letter hand-delivered to three

residents who had contracts with Collins.

A copy was also placed under a calendar at the reception desk so that

each shift of workers that came could be apprised of the situation.

E. Collins’s Trial Testimony

Collins agreed that she contracted to assist the Stivers for $300 per

month, but testified that agreement changed in February or March 2008. Around that time, Collins testified, another

home health service company that was seeing the Stivers weekly told her that

“they needed hourly services and that also Mr. Stiver need[ed] assistance with

his medication.” Collins’s understanding

at that point was that the Stivers both needed more care or they would have to

be moved to an assisted living facility.

She testified that Mr. Stiver and the Housers asked her to perform

additional services at that point, which was the first time she claims to have

ever discussed her services with the Housers.

Going forward, under their new arrangement, Collins testified that Mr.

Stiver started paying her weekly a $12 hourly wage, for approximately 21 to 24

hours per week (which were mostly performed by Collins’s mother). According to Collins, Mr. Stiver agreed to

that rate, and the Housers were aware of the arrangement and rate.

When asked about allegations in the letter from Roccaforte banning her

from the premises, she denied overcharging Mr. Stiver or anyone else. She admitted that she had conflicts with Eden

Terrace staff, but explained that she was just sticking up for herself. She likewise conceded that Roccaforte had

received complaints about her alleged misconduct and mistreatment, but asserted

that these complaints were false.

Finally, she testified that the defendants injured her reputation with

residents at Eden Terrace.

TRIAL COURT PROCEEDINGS

Collins brought claims against SSLM and Roccaforte for (1) tortuous

interference with existing business relations, (2) tortuous interference with

prospective business relations, (3) defamation, defamation per se,

republication, and self-republication, and (4) business disparagement. The defendants pleaded, inter alia , (1) justification as a defense to the tortious interference

claim, and (2) both self-publication by Collins and truth or substantial truth

as a defense to the defamation claims.

The trial court granted a directed

verdict in the defendants’ favor on Collins’s claims for defamation per se,

republication, and self-republication.

The remaining claims were submitted to the jury.

A. The Jury’s Verdict and the Trial

Court’s Judgment

In response to questions about

Collins’s tortious interference claim, the jury found that “Roccaforte

intentionally interfere[d] with an existing contract between Mary Collins and

residents with whom she contracted with at Eden Terrace,” but also found that

“Roccaforte interfere[d] because he had a good-faith belief that he had a right

to do so.” The jury did not answer a

damage question related to the tortious interference claim, because the damages

question was predicated on an affirmative finding of tortious interference and

a negative finding of a good-faith belief.

In response to questions about

Collins’s defamation claim, the jury found that Roccaforte did not “publish the

alleged defamatory matter.” Because the

remainder of the defamation questions were predicated on an affirmative finding

of publication, the jury did not answer whether (1) the alleged defamatory

matter was “defamatory concerning Mary Collins,” (2) the alleged defamatory

matter was “substantially true at the time it was made,” or (3) Roccaforte knew

or should have known that “the defamatory communication was false and that the

potential to be defamatory.”

In response to questions about

Collins’s business disparagement claim, the jury found that Roccaforte did not

“disparage the business of Mary Collins.”

Because the damage questions were predicated on affirmative liability

findings, the jury did not answer the damages or punitive damages questions

related to Collins’s defamation or disparagement claims.

The trial court entered a take-nothing

judgment in favor of the defendants on the jury’s verdict, and Collins timely

appealed.

THIS APPEAL

Collins seeks reversal of the trial

court’s judgment in thirteen issues:

(1) Collins established tortious interference as a matter of law. The

trial court erred in denying her motion for directed verdict and for judgment notwithstanding

the verdict (“JNOV”) as to tortious interference.

(2) The trial court erred by submitting question no. 2 to the jury

over Collins’[s] objections because the appellees were not entitled to assert

the defense.

(3) The trial court erred in accepting the jury’s answer to question

no. 2 as there is no evidence to support it, or alternatively there is no

factually sufficient evidence that Roccaforte had a good faith belief that he

had a legal right to interfere.

(4) The trial court erred in denying Collins’[s] motion for directed

verdict and JNOV as to defamation because the evidence conclusively establishes

and as a matter of law Collins should have prevailed on her claim for defamation.

(5) The trial court erred by submitting question no. 4 “Did

Roccaforte publish a defamatory matter?” to the jury because the question was

defective as it failed to clearly ask whether a statement or conduct was

published.

(6) The trial court erred in accepting the jury’s answer to question

no. 4 as it is against the great weight and preponderance of the evidence and

is manifestly unjust because the appellees’ publication of the communications

is undisputed.

(7) The trial court erred by submitting the defense of substantial

truth to the jury and granting judgment upon it because as a matter of law the appellees

cannot prevail on the defense of “substantial truth” given that the underlying

facts as to the truth and gist of the defamatory charge are wholly in dispute.

(8) The trial court erred in allowing inadmissible evidence to be

used as evidentiary support for the appellees’ affirmative defense of

substantial truth to prove the truth of the matter asserted; thereby the trial

court also erred in denying Collins’[s] motion for new trial and JNOV as to her

claims for defamation.

(9) The trial court erred by excluding Collins’[s] claims of

defamation per se, republication, and self-publication in the trial court’s

jury charge and denying Collins’[s] request for findings of fact and

conclusions of law.

(10) The trial court erred in denying Collins’[s] JNOV as to the

defamation claims of defamation per se, business disparagement, republication,

and self publication given that the evidence conclusively established the

elements as a matter of law.

(11) The trial court erred in denying Collins’[s] JNOV as to question

10: the jury answered “No” as to “Did Nick Roccaforte disparage the business of

Mary Collins?” because the jury’s answer is against the great weight and preponderance

of the evidence and is manifestly unjust.

(12) The trial court erred by denying Collins’[s] motion for a mistrial

because Roccaforte’s testimony regarding inadmissible evidence.

(13) The trial court abused its discretion by admitting appellees’

exhibits 7, 9, 10, 11, 13, and 21 because the evidence was inadmissible as a

matter of law.

The defendants also raise three

conditional cross-issues:

(1)

Whether the alleged defamatory statements were true?

(2)

Whether the alleged defamatory statements were constitutionally protected

opinions?

(3)

Whether Appellees were justified in making the alleged defamatory

statements?

Standards of Review

A. Sufficiency of the Evidence

When challenging the legal

sufficiency of an adverse jury finding on which the party had the burden of

proof at trial, the appellant “must demonstrate that the evidence conclusively

establishes, as a matter of law, all facts in support of the issue.” Jordan

v. Sava, Inc. , 222 S.W.3d 840, 853 (Tex. App.—Houston [1st Dist. S.W.2d 2007, no pet.) (citing Sterner v. Marathon Oil Co. , 737 S.W.2d

686, 690 (Tex. 1989)). When challenging

the legal sufficiency of the evidence to support a finding on which it did not

have the burden of proof at trial, appellant must demonstrate on appeal that no

evidence exists to support the adverse finding. Casino Magic Corp. v. King , 43 S.W.3d 14, 19 (Tex. App.—Dallas 2001,

pet. denied) (citing Croucher v. Croucher ,

660 S.W.2d 55, 58 (Tex. 1983)).

We will sustain a no-evidence

challenge when (i) the record discloses a complete absence of evidence of a

vital fact, (ii) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact, (iii) the evidence

offered to prove a vital fact is no more than a mere scintilla, or (iv) the

evidence establishes conclusively the opposite of the vital fact. Marathon

Corp. v. Pitzner , 106 S.W.3d 724, 727 (Tex. 2003). We look to see whether any record evidence

supports the challenged finding. Casino Magic , 43 S.W.3d at 19 . Anything more than a scintilla of evidence is

legally sufficient to support the jury’s finding. Id .

To determine whether the evidence

was factually sufficient to support a finding, an appellate court considers and

weighs all evidence that was before the trial court. Cain v.

Bain , 709 S.W.2d 175, 176 (Tex. 1986); Raymond

v. Raymond , 190 S.W.3d 77 , 82–83 (Tex. App.—Houston [1st Dist.] 2005, no

pet.). When an appellant attacks the

factual sufficiency of an adverse finding on an issue for which it had the

burden of proof, the appellant must demonstrate that the adverse finding is

against the great weight and preponderance of the evidence. Dow

Chem. Co. v. Francis , 46 S.W.3d 237, 242 (Tex. 2001). In reviewing an “insufficient-evidence” point

challenging the factual sufficiency of the evidence to support a finding that

favors the party who had the burden of proof on that finding, the reviewing

court may set aside the finding only if a review of all the evidence, both for

and against the finding, demonstrates that the finding is clearly wrong and

manifestly unjust. Garza v. Alviar ,

395 S.W.2d 821, 823 (Tex. 1965).

We must not, however, substitute

our judgment for that of the fact finder. Golden

Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003). “Courts reviewing all the evidence in a light

favorable to the verdict thus assume that jurors credited testimony favorable

to the verdict and disbelieved testimony contrary to it.” City of

Keller v. Wilson , 168 S.W.3d 802, 819 (Tex. 2005).

B.

Admission

of Evidence

A trial court’s rulings in

admitting or excluding evidence are reviewable under an abuse of discretion

standard. Nat’l Liab. & Fire Ins. Co. v. Allen , 15 S.W.3d 525, 527 (Tex. 2000).

To determine whether a trial court

abused its discretion, we must decide whether the trial court acted without

reference to any guiding rules or principles; in other words, we must decide

whether the act was arbitrary or unreasonable. Downer

v. Aquamarine Operators, Inc. , 701 S.W.2d 238 , 241–42 (Tex. 1985), cert. denied , 476 U.S. 1159 (1986).

Merely because a trial court may decide a matter within its discretion in a

different manner than an appellate court would in a similar circumstance does

not demonstrate that an abuse of discretion has occurred. Id .

Tortious

Interference and the Justification Defense

In her first three issues, Collins

argues that she is entitled to judgment as a matter of law on her tortious

interference claim and, thus, that the trial court erred by granting judgment

in the defendants’ favor on that claim.

Specifically, she contends both that (1) she conclusively established

that Roccaforte intentionally interfered with her contract with Eden Terrace

residents and (2) the defendants’ justification defense fails as a matter of

law for legal and evidentiary reasons.

Because the jury found that Roccaforte intentionally interfered with

Collins’s contracts with Eden Terrace residents — and because the defendants do not challenge that finding —we do not reach Collins’s first issue and instead restrict

our analysis to the defendants’ justification defense.

Collins argues that (1) “the

appellees failed to produce a legal contract to support their legal

justification defense,” and (2) “the appellees did not plead and were not

entitled to assert a good faith claim to a colorable legal right.” She cites Texas

Beef Cattle Co. v. Green , 921 S.W.2d 203 (Tex. 1995) for the proposition

that a justification defense can be based on either a legal right, or a

good-faith claim to a colorable legal right, but not both. She notes that the defendants claim a right

to interfere with her contract with the Stivers based on their residency

contract, but that the trial court excluded that contract from evidence. According to Collins, once the defendants

claimed their contract with the Stivers allowed them to interfere with the

Stivers contract with Collins, “they can no longer as a matter of law assert

the defense of a good faith claim to a colorable legal right defense.”

Collins further asserts that the

defendants cannot rely upon a privilege or justification because they do not

have a “claimed interest” in Collins’s contract with residents. She points to the fact that Eden Terrace is

an independent living facility, that Collins was not an employee or controlled

by Eden Terrace, and that Texas law provides that elderly residents are free to

contract without interference for outside service providers when living in

independent living facilities. She also

insists that, under Prudential Insurance

Co. of America v. Financial Review Services , 29 S.W.3d 74 (Tex. 2000), the

defendants are foreclosed from asserting a privilege or justification defense

because they “interfered by illegal or tortious means” by defaming Collins.

Finally, Collins argues that there

is no evidence or, alternatively, factually insufficient evidence to support

the jury’s finding that “Roccaforte interfere[d] because he had a good-faith

belief that he had a right to do so.”

Specifically, she argues that Roccaforte’s testimony that he believed he

could exclude Collins from the Eden Terrace “as part of my responsibility and

obligation . . . for the safety and welfare of the residents and staff” is

insufficient because the “defense of legal or excuse only protects good faith

assertions of legal rights, not the appellees’ job responsibilities.”

In response, the defendants argue

that Collins has waived her sufficiency challenges by failing to adequately

brief the issue. They further contend

that they adequately pleaded the justification defense by asserting in their

answer that they “have a quasi-statuorily protected privilege and are protected

from Plaintiff’s claims since the duty to protect elderly residents overrides

any potential duty owed to Plaintiff” and that “any actions were legally

justified as Defendants had a duty to protect residents.” Alternatively, defendants assert that the

issue was tried by consent. Finally, the

defendants assert that “Collins’ claim that the jury’s finding is precluded by

legal principles is meritless,” and ample evidence supports the jury’s finding

that Roccaforte had a good faith belief that he possessed a colorable legal

right to bar Collins from working on Eden Terrace’s premises.

A. Applicable Law

“[T]he privilege of legal

justification or excuse in the interference of contractual relations is an

affirmative defense upon which the defendant has the burden of proof.” Sterner

v. Marathon Oil Co ., 767 S.W.2d 686, 690 (Tex. 1989). Affirmative defenses must be either pleaded

or tried by consent. Re/Max of Texas, Inc. v. Katar Corp .,

961 S.W.2d 324, 327 (Tex. App.—Houston [1st Dist.] 1997), pet. denied , 989 S.W.2d 363 (Tex. 1999).

“The justification defense is based

on either the exercise of (1) one’s own legal rights or (2) a good-faith claim

to a colorable legal right, even though that claim ultimately proves to be

mistaken.” Texas Beef Cattle Co. , 921

S.W.2d at 211 . “Thus, if the trial court

finds as a matter of law that the defendant had a legal right to interfere with

a contract, then the defendant has conclusively established the justification

defense, and the motivation behind assertion of that right is irrelevant.” Id . (citations omitted). “Improper motives cannot transform lawful

actions into actionable torts.” Id .

“On the other hand, if the defendant cannot establish such a legal right

as a matter of law, it may nevertheless prevail on its justification defense

if: (1) the trial court determines that the defendant interfered while

exercising a colorable right, and (2) the jury finds that, although mistaken,

the defendant exercised that colorable legal right in good faith.” Id .

B. Analysis

The jury found that Roccaforte

“Interfere[d] because he had a good-faith belief that he had a right to do so”

and Collins challenges that finding on several bases here. We address first the legal arguments that

Collins advances about why the defendants should be precluded from asserting

the justification defense, and then her sufficiency challenges to the jury’s

finding.

First, Collins asserts that the

“defendants failed to properly plead and assert the affirmative defense of a

good-faith claim to a colorable legal right in their fifth amended

answer.” While the defendants’ answer

did not use the words, “good faith claim to a colorable legal right,” the

defendants’ answer does assert that Roccaforte’s actions were “privileged” and “legally

justified,” and that “the duty to protect elderly residents overrides any

potential duty owed to Plaintiff.”

Because a good faith claim to a colorable legal right is subsumed within

the justification defense that was properly pleaded, Texas Beef Cattle Co. , 921 S.W.2d at 211 , we conclude that the

defendants’ answer gave Collins “fair notice” of their defense. Petta

v. Rivera , 923 S.W.2d 678, 686 (Tex. App.—Corpus Christi 1996, writ

denied).

Collins also argues that

Roccaforte’s reliance upon a contractual right to revoke Collins’s privileges

to provide care at Eden Terrace means that the defendants “can no longer as a

matter of law assert the defense of a good faith claim to a colorable legal

right defense.” While she cites the

supreme court’s Texas Beef Cattle Co .

decision in support, we do not read that case to foreclose submission of a

good-faith belief in a colorable legal right in this case.

In Texas Beef Cattle Co. , the supreme court considered the

relationship between a legal right to interfere with a contract and the good

faith reliance on a colorable legal right.

921 S.W.2d at 211 . It explained

that “if the trial court finds as a

matter of law that the defendant had a legal right to interfere with a

contract, then the defendant has conclusively established the justification

defense, and the motivation behind assertion of that right is irrelevant.” Texas Beef Cattle Co. , 921 S.W.2d at 211

(emphasis added & citations omitted).

In other words, if the defendant conclusively proves that its

interference was caused by the exercise of the defendant’s own legal rights,

the defendant prevails over a claim for tortious interference, without the need

to submit to the jury the question of whether the defendant acted in good

faith. Id .

The Texas Beef Cattle Co . court went on to explain that if, on the

other hand, “the defendant cannot establish such a legal right as a matter of

law, it may nevertheless prevail on its justification defense if: (1) the trial

court determines that the defendant interfered while exercising a colorable

right, and (2) the jury finds that, although mistaken, the defendant exercised

that colorable legal right in good faith.”

Id . We do not read Texas Beef Cattle Co . to hold that a defendant cannot

simultaneously assert two alternative justification defenses: (1) the defendant

had an actual legal right to take the actions in question, and (2) the

defendant had a subjective good faith belief that he was acting pursuant to a

legal right to do so and he in fact had a colorable legal right. Instead, we interpret Texas Beef Cattle Co . to provide that when a legal right is

established as a matter of law, good faith need not be established. Id .

at 211 – 12. When a legal right is not established as a

matter of law, a question of whether the defendant acted in good faith is

presented for the jury if the court concludes that the defendant was exercising

a colorable right. Prudential Ins. Co. of America v. Financial Review Servs., Inc. , 29

S.W.3d 74, 80 (Tex. 2000) (“[I]f the defendant cannot prove justification as a

matter of law, it can still establish the defense if the trial court determines

that the defendant interfered while exercising a colorable right, and the jury

finds that, although mistaken, the defendant exercised that colorable right in

good faith.”).

In this case, Roccaforte testified

to his belief that he had a right to exclude Collins from the premises both

because (1) the Residency Agreements allowed him to do so, and, (2) he had a

duty as an executive to protect residents.

The Stivers’s Residency Agreement was excluded from evidence, but the

court admitted a sample Residency Agreement.

That agreement provides that while residents are permitted to hire

outside private duty aides of their choice, the resident and aide “will be

required to follow the Community’s policies and procedures concerning private

duty aides, and the aide may be removed or excluded from the Community for

violations thereof.” Collins herself

acknowledged in writing that she was bound by the Private Duty Aide Guidelines and Expectations , as well as “any

other rules, regulations, policies, or procedures that [SSLM] or the community

develops, now or in the future, about the conduct of Private Duty Aides and

visitors on the community’s premises.”

Collins also acknowledged in writing that failure to follow the

guidelines “may result in immediate loss of privileges to provide services to

residents.”

It is proper for the trial court to

submit the justification defense to the jury if there is some evidence of a

good faith belief in a colorable legal right.

Texas Beef Cattle Co. , 921

S.W.2d at 211 . The trial court denied the defendants’ motion for summary

judgment and motion for directed verdict on their right to interfere as a

matter of law. The trial court likewise

denied Collins’s motion for directed verdict, in which she argued that she had

defeated the defendants’ justification claim as a matter of law. Give the posture, and given that the above-cited

evidence is some evidence of Roccaforte’s good faith exercise of colorable

legal rights, the trial court properly submitted this issue for the jury’s

consideration.

Collins next cites Prudential Insurance Company of America

for the proposition that a “party may not exercise an otherwise legitimate

privilege by resort to illegal or tortious means.” 29 S.W.3d at 81 . She argues that it “is undisputed that the

[defendants] sent the defamatory letters to Collins’ clients, published the

defamatory letters to employees and other residents, and excluded Collins from

the premises because of the false allegations.” Thus, Collins asserts, the defendants “are

not entitled to assert the affirmative defense of privilege or justification as

a matter of law because the [defendants] interfered with Collins’ contracts through

methods tortious in themselves.” In

other words, she contends that interference through defamatory means cannot be

justified.

At issue in Prudential was whether a justification defense was proven as a

matter of law. 29 S.W.3d at 82 . Because the court found some evidence of

tortious conduct, i.e., business disparagement, the court held that a directed

verdict on the justification defense was not proper when the defendant

contended that he exercised a colorable legal right in good faith. Id .

at 83. Prudential does not hold that mere allegations of tortious conduct

foreclose applicability of the justification defense, just that when a fact

issue is raised, it should be submitted to the jury. Here — as discussed later in this opinion — we conclude that the defendants defeated Collins’s defamation claims by

proving the allegations in Collins Letter and Residents Letter were

substantially true. Under Prudential , Collins’s allegation that

the defendants defamed her does not

defeat the defendants’ ability to rely on their justification defense to

tortious interference.

Collins also cites ACS Investors, Inc. v. McLaughlin , which

states that legal justification is at issue when the party “asserting the

privilege does not deny the alleged interference, but instead seeks to avoid

liability upon a claimed interest that is being impaired or destroyed by the

plaintiff’s contract.” 943 S.W.2d 426, 431 (Tex. 1997). Collins asserts that, in this case, the

defendants’ reliance on the justification defense is foreclosed because the

defendants do not have a “claimed interest” that is being impaired or destroyed

by Collins’ contract as Collins’s “interest and/or business relationship in

servicing her clients residing at Eden Terrace does not impair or destroy the

[defendants] interest in its relationships with residents at Eden

Terrace.” In support, she points to (1)

the independent nature of the residents’ living arrangements, (2) the

defendants’ lack of control over her care of her clients, and (3) Texas law

allowing independent living residents to contract with outside caregivers. We disagree with Collins that the evidence

conclusively establishes that her ability to perform under her contract with residents — i.e., the interfered-with contract — did not impair the defendants’ right exercised

by excluding Collins from the premises — i.e., the right to enforce their community rules and to protect

residents’ health and well-being . Thus, the lack of a sufficient

claimed interest does not foreclose the defendants’ reliance on the

justification defense.

Finally, Collins argues that even

if the trial court did not err by submitting the justification defense to the

jury, there is legally or factually insufficient evidence to support the jury’s

finding that Roccaforte interfered because he had a good faith belief in a

colorable right to do so. Roccaforte

testified to his belief that the Residency Agreement and his position as the

executive director empowered him to exclude Collins from the facility for the

purpose of protecting residents. Specifically,

Rockaforte testified to his belief that, as an executive director, he had “an

obligation and a responsibility to ensure the safety and welfare of all the

residents and employees.” See Eloise

Bauer & Assocs. v. Elec. Realty Assocs. , 621 S.W.2d 200, 203 (Tex. Civ.

App.—Texarkana 1981, writ ref’d n.r.e.) (employee acting in good faith to

further interests of employer). The jury

heard testimony that Collins had not followed rules governing heath care aide

workers on the premises. Roccaforte testified that he performed a

“fair investigation” into allegations about Collins before he acted, and that

he had no reservations about his decision to prohibit her from working on the

premises. Legally sufficient evidence

supports the jury’s finding of justification.

Collins also asserts that there

“was evidence presented at trial to the contrary of the assertion of this

[justification] defense.” In conducting

a factual sufficiency review, we must assume that the jury credited

Roccaforte’s and other testimony in support of the verdict, and that the jury

disbelieved testimony contrary to it. City of Keller , 168 S.W.3d at 819 . While Collins testified that she believed

that the allegations against her were without merit and that she had a strained

relationship with some members of Eden Terrace (that might give them an

incentive to paint her in a bad light), Collins has not demonstrated that the

jury’s finding that Roccaforte acted with a good-faith belief in a colorable

legal rights is “against the great weight and preponderance of the

evidence.” Dow Chem Co. , 46 S.W.3d at 242 .

There is factually sufficient evidence in support of the jury’s

finding.

We overrule Collins’s second and

third issues.

Defamation

In her fifth and sixth issues,

Collins argues that Jury Question No. 4 — “Did Roccaforte publish the allegedly defamatory matter?” — was defective, and that the jury’s negative

answer was not supported by the evidence.

Specifically, she complains that the “only issue that should have been

asked in question no 4 was the element of publication: whether the defendant

‘published’ the statement.” She

contends that “a new trial is warranted because question 4 is defective as

stated because it does not provide a statement or conduct to be

published.” She further argues, that the

jury’s negative answer to Question No. 4 should not have been accepted by the

trial court because the opposite was conclusively established, and because the

jury’s answer is against the great weight and preponderance of the evidence and

is manifestly unjust.

In Collins’s fourth issue, she

contends that the evidence established all the elements of her defamation claim

as a matter of law.

Finally, in Collins’s seventh

issue, she argues that the trial court erred in submitting the defense of

substantial truth, and in granting judgment upon it, because “the underlying

facts as to the truth and gist of the defamatory charge are wholly in

dispute.”

The defendants respond that

Collins’s objection to the form of Question No. 4 was waived by failure to

object at the charge conference. They

further contend that this broad-form question placed two issues before the

jury: “One, did Mr. Roccaforte publish the statements? Two, were they defamatory?” Thus, they argue that the jury’s negative

answer can be supported by evidence either that there was no publication or

evidence that the statements were not defamatory. Because “the evidence clearly established

that Mr. Roccaforte did not publish the letters to any parties who did not have

an interest in receiving them” and because the “jury may have concluded the

statements were simply not defamatory,” the defendants assert that the jury’s

answer is not against the great weight and preponderance of the evidence.

The defendants contend that

Collins’s argument that she is entitled to judgment as a matter of law on her

defamation claim was waived for failure to adequately brief and, in any event,

meritless because at least a fact issue existed on this claim.

Finally, the defendants argue that

Collins’s arguments attacking their “substantial truth” defense requests an

advisory opinion, as the judgment is not based upon this issue, and meritless,

as a dispute about underlying facts would not preclude submission of the

substantial truth defense to the jury.

In three cross-points, the

defendants also advance, as alternative bases for affirming the trial court’s

take-nothing judgment on Collins’s defamation claim, that (1) Roccaforte’s

statements were true, (2) that defendants’ statements were “inactionable

expressions of opinion,” and (3) Roccaforte’s correspondence was “privileged.”

A. Applicable Law

To maintain a defamation action,

the plaintiff must establish that the defendant (1) published a statement; (2)

that was defamatory of the plaintiff; (3) while acting with actual malice, if

the plaintiff was a public figure, or, if the plaintiff was a private

individual, with negligence regarding the truth of the statement. WFAA-TV, Inc. v. McLemore , 978 S.W.2d

568, 571 (Tex. 1998); Evans v. Dolcefino , 986 S.W.2d 69, 76

(Tex. App.—Houston [1st Dist.] 1999, no pet.).

The “publication” of an allegedly

libelous letter requires a showing that the letter was received, read, and

understood by a third person. Putter v. Anderson , 601 S.W.2d 73, 78

(Tex. Civ. App.—Dallas 1980, writ ref'd n.r.e.). Such “publication” need only be a negligent or

intentional act that communicates defamatory matter to a person other than the

person defamed. Baubles & Beads v.

Louis Vuitton, S.A. , 766 S.W.2d 377, 380 (Tex. App.—Texarkana 1989, no

writ).

Truth is a defense to

defamation. Klentzman v. Brady , 312 S.W.3d 886, 899 (Tex. App.—Houston [1st

Dist.] 2009, no pet.) A

showing of substantial truth of defamatory words likewise will defeat a

defamation cause of action. McIlvain v. Jacobs , 794 S.W.2d 14 , 15–16

(Tex. 1990); Gustafson v. City of Austin ,

110 S.W.3d 652, 656 (Tex. App.—Austin 2003, pet. denied) (“The defense of truth

does not require proof that the alleged defamatory statement is literally true

in every detail; substantial truth is sufficient.”). The test of substantial truth is “whether the

alleged defamatory statement was more damaging to [plaintiff's] reputation, in

the mind of the average listener, than a truthful statement would have been.” McIlvain .

794 S.W.2d at 16 ; see Turner v. KTRK

Television, Inc. , 38 S.W.3d 103, 115 (Tex. 2000) (noting substantial truth

doctrine “precludes liability for a publication that correctly conveys a story’s

‘gist’ or ‘sting’ although erring in the details”); Langston v. Eagle Printing Co. , 797 S.W.2d 66, 69 (Tex. App.—Waco 1990,

no writ) (concluding statement is substantially true even if it greatly

exaggerates plaintiff’s misconduct, as long as the average reader would not

attach any more opprobrium to the plaintiff’s conduct merely because of the

exaggeration).

Expressions of opinion that “cannot

reasonably be interpreted as stating actual facts” are constitutionally

protected and cannot form the basis of a defamation claim. E.g. ,

Vice v. Kasprzak , 318 S.W.3d 1, 18

(Tex. App.—Houston [1st Dist.] 2009, pet. denied).

A “qualified privilege” under Texas

law 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. Thomas-Smith v, Mackin , 238 S.W.3d 503, 509 (Tex. App.—Houston

[14th Dist.] 2007, no pet.); Hardwick v.

HL&P , 881 S.W.2d 195 , 198 – 99 (Tex. App.—Corpus Christi 1994, writ dism’d w.o.j.) (“A qualified

privilege embraces communications made in good faith on subject matters in

which the author has an interest or to which he has a duty to perform to

another person having a corresponding interest or duty.”) Qualified privilege justifies the statements

if they are made without malice. Dixon v.

Southwestern Bell Tel. Co ., 607 S.W.2d 240, 242 (Tex. 1980); Martin v. Southwestern Elec. Power Co. ,

860 S.W.2d 197, 199 (Tex. App.—Texarkana 1993, writ denied). “The privilege is peculiarly applicable to

communications between employers and employees.” Roberts

v. Davis , 160 S.W.3d 256, 263 (Tex. App.—Texarkana 2005, pet. denied). “The

elements of qualified privilege are good faith, an interest to be upheld, a

statement limiting the communication to the proper scope, a proper occasion,

and publication in a proper manner and to proper parties only.” Id .

(citing Martin , 860 S.W.2d at 199 ).

B. Analysis – “Publication” Finding

In response to the following

question, the jury answered “no”:

QUESTION 4

Did Nick Roccaforte publish the alleged

defamatory matter?

“Publish” means intentionally or negligently

to communicate the matter to a person other than Mary Collins who is capable of

understanding its meaning.

Collins did not object to the language of this

question, so her complaint that “question 4 is defective as stated because it

does not provide a statement or conduct to be published” was not preserved for

appeal here. Tex. R. Civ. P . 274.

Because we measure the sufficiency

of the evidence based on the charge given, Wal–Mart

Stores, Inc. v. Sturges , 52 S.W.3d 711, 715 (Tex. 2001), we consider the

parties’ arguments in light of language of the question and the accompanying

instructions.

The defendants urge us to interpret

Question No. 4 as asking both whether the matter was defamatory and whether

that matter was published. We disagree

that the question can be interpreted so broadly. The phrase “defamatory matter” is preceded by

the word “alleged,” which permits the jury to find publication even if it did

not believe the matter was defamatory.

Moreover, the defendants’ interpretation would render Question No. 5

superfluous, as it asks whether “the statement in Question 4 was defamatory

concerning Mary Collins.”

In light of the definition

accompanying Question No. 4, Collins is correct that there is legally

insufficient evidence to support the jury’s finding of no publication in

response to Question No. 4 because both the Collins Letter and the Residents

Letter were published to third parties. The

Collins Letter was orally published because there were two other Eden Terrace

employees present as witnesses when Roccaforte read that letter to Collins. Roccaforte gave the Residents Letter to three

residents that had contracts with Collins to put them on notice that her

privileges to work on the premises were being revoked. An Eden Terrace employee testified to seeing

that letter when she placed copies into those recipient’s files. That letter was also left under a desk

calendar for employees to view at the beginning of their shift. This was a procedure Eden Terrace staff

practiced to pass information between shift workers.

The defendants advance the

following arguments in support of the jury’s finding of no publication: (1) the

letters were only published to parties with an interest in receiving them, and

(2) Collins consented to publication by publishing herself. While these arguments are relevant to the

defendants’ justification defense and to the issue of damages, they do not support

the jury’s finding that Roccaforte did not publish the letters to anyone except

Mary Collins. We sustain Collins’s sixth

issue.

C. Substantial Truth

Because the trial court’s

take-nothing judgment in the defendants’ favor cannot be sustained by the jury’s

finding of no publication, we turn to the defendants’ cross-points in support

of the trial court’s judgment. The jury

did not reach the issue of substantial truth, but the defendants argue as a

cross-point that the court’s judgment on defamation can nonetheless be affirmed

because it “is undisputed that Mr. Roccaforte’s statements were true.” [3] According to the defendants, “the

truthfulness inquiry revolves around whether Mr. Roccaforte truthfully

summarized the complaints, not on the validity of the complaints

themselves.” They cite Stephan v. Baylor Medical Center at Garland ,

20 S.W.3d 880, 884 (Tex. App.—Dallas 2000, no pet.) as a case highlighting this

distinction.

In Stephan , a physician who was denied staff privileges at Baylor

Medical Center sued complaining about an “adverse action report” that Baylor

filed with the National Practitioner Data Bank classifying his denial of

privileges “as being due to ‘incompetence/malpractice/negligence,’” and

containing the notation: “evidence of quality of care and medical record

documentation unacceptable to this hospital.”

20 S.W.3d at 885 . On appeal from

a summary judgment granted in its favor on the plaintiff’s intentional

infliction of emotional distress claim, Baylor argued that there was “no

evidence that the statement made in the adverse action report were false or

defamatory in nature.” Id . at 891 – 92; see also id . at 892

(“Absent a false and defamatory statement, Baylor’s conduct in publishing the

report could not be extreme or outrageous as required for an intentional

infliction of emotional distress claim.” (citing Twyman v. Twyman , 855 S.W.2d 619 , 621 – 22 (Tex. 1993)). The Dallas Court

of Appeals agreed, noting that irrespective

of whether the plaintiff was incompetent, negligent, or committed

malpractice, the evidence demonstrated that the “the adverse action report was

not false, but was an accurate recitation of Baylor’s findings and

conclusions.” Id . at 893.

According to the defendants here,

“much like the facts in Stephan ,

Collins’ true complaint is not that the statements in Mr. Roccaforte’s letters

are false but that the underlying complaints were false.” Because even “Collins admits that the

statements in the two April 30th correspondences reiterating the numerous

complaints lodged against her are true,” they assert, “these statements cannot serve as a basis for

Collins’ defamation claim and the take nothing judgment may be affirmed on this

ground as well.”

In response, Collins contends that

“the letters combined with the abrupt nature of [her] departure from the living

facility left a negative impression among her clients regarding her character

and reputation.” She also argues that Stephan ’s analysis is inapplicable

because she told Roccaforte that the allegations against her were false, and

because the process of evaluating physicians at issue in Stephan — which is

governed by laws requiring hospitals to investigate, provide due process to

doctors, and establish a peer review process — are fundamentally different than the standards governing heath care aid

workers.

We agree with the defendants that

the information in the letters was substantially true, and that fact defeats

Collins’s defamation claim. The Residents

Letter stated that Collins’s privileges were being revoked because of “serious

allegations relating to misconduct and resident mistreatment.” At trial, while Collins denied any wrongdoing

related to any clients, she admitted that Roccaforte had received complaints

alleging “serious misconduct and resident mistreatment”:

Q. And that was: Verbally abusive by yelling; is that correct?

A. Yes.

Q. What was the other one?

A. The withholding medication.

Q. Withholding the medication, and anything else, the

overcharging?

A. Overcharging.

. . . .

Q. Do you consider those allegations to be serious?

A. Yes.

Q. And do you consider those allegations to be serious allegations

relating to misconduct and resident mistreatment?

A. Yes.

. . . .

Q. The allegations that we just discussed, you contend and agree

with me that those are serious allegations regarding mistreatment and

misconduct of residents, correct?

A. Yes.

Q. And the letter shows that Mr. Roccaforte received serious

allegations of resident misconduct and mistreatment; is that correct?

A. Yes.

The Collins Letter similarly

recited — as reasons that Collins’s

privileges were being terminated —complaints by (1) Eden Terrace staff about her lack of responsiveness

to residents and her rude and arrogant attitude towards staff calling her on

behalf of residents, and (2) employees, residents and family members about

“misconduct regarding not providing the services you have promised, not being

available when called, and or providing and charging for services that were not

requested,” and “regarding your mistreatment, disrespect and threatening

posture towards our residents regarding telling them who they can and cannot

speak to, what they can say regarding your services and threatening to turn

them in if they do not do as you[] say or pay your bill.” Again, Collins does not dispute that

Roccaforte had received such complaints — she instead objects to the characterization of the underlying

events.

We are mindful that “a plaintiff

can bring a claim for defamation when discrete facts, literally or

substantially true, are published in such a way that they create a

substantially false and defamatory impression by omitting material facts or

juxtaposing facts in a misleading way.”

Louis v. Mobil Chem. Co. , 254

S.W.3d 602, 610 (Tex. App.—Beaumont 2008, pet. denied) (citing Turner, 38 S.W.3d at 115 ). But “[l]iterally true statements are not

slanderous merely because others might infer dishonesty.” Id .

(citing Randall’s Food Mkts., Inc. v.

Johnson , 891 S.W.2d 640, 646 (Tex. 1995)).

Because it is undisputed that the

letters are literally true in that they accurately recite that Roccaforte

received certain complaints about Collins’s alleged wrongdoing that led to her

being barred from the property, the only issue is whether they were published

in a way that created such a false and misleading impression so as to render

the true statements defamatory. We

conclude that Roccaforte’s barring Collins from the premises immediately with

publication of that decision only given to Collins, her three clients, and

employees of Eden Terrace does not render the otherwise true statements in the

Collins Letter and Residents Letter defamatory.

We accordingly sustain the

defendants’ first cross-issue. Given our

resolution of this issue, we need not reach the defendants’ second and third

cross-issues. For the same reasons, we

also overrule Collins’s fourth issue arguing that the “evidence conclusively

establishes as a matter of law Collins[] should have prevailed on her claim for

defamation.”

BUSINESS DISPARAGEMENT

In her eleventh issue, Collins

argues that the jury’s negative answer to Jury Question No. 10 — i.e., “Did Nick Roccaforte disparage the

business of Mary Collins?” — is against

the great weight and preponderance of the evidence and is manifestly

unjust. She contends that the same

arguments supporting of her defamation claim support the argument that she has

established her claim for business disparagement as a matter of law. In addition, she argues that Roccaforte acted

with malice, as a matter of law, because “Roccaforte made no serious attempt to

verify the information reported to him by the Stivers or in the daily

logs.”

In response, the defendants note

that while business disparagement is similar to defamation, “more stringent

requirements have always been imposed,” on business disparagement claims. See

Newsom v. Brod , 89 S.W.3d 732, 735 (Tex. App.—Houston [1st Dist.] 2002, no

pet.). They argue that the jury’s

finding is supported by ample evidence and, in particular, contend that Collins

has not conclusively established, as required to defeat the jury’s finding of

no business disparagement, that (1) Roccaforte did not receive complaints about

Collins, (2) that Roccaforte acted with malice, and (3) that Roccaforte’s

communications were not privileged.

According to defendants, ample evidence supports the jury’s finding of no

business disparagement.

A. Applicable Law

To prevail on a business disparagement

claim, a plaintiff must establish that (1) the defendant published false and

disparaging information, (2) with malice, (3) without privilege, (4) that

resulted in special damages to the plaintiff. Hurlbut v. Gulf Atl. Life Ins. Co. , 749 S.W.2d 762, 766 (Tex. 1987).

“A business disparagement claim is

similar in many respects to a defamation action.” Forbes Inc. v. Granada Biosciences, Inc. , 124 S.W.3d 167, 170 (Tex.

2003). “The two torts differ in that

defamation actions chiefly serve to protect the personal reputation of an

injured party, while a business disparagement claim protects economic

interests.” Id . “[A] business

disparagement defendant may be held liable ‘only if he knew of the falsity or

acted with reckless disregard concerning it, or if he acted with ill will or

intended to interfere in the economic interest of the plaintiff in an

unprivileged fashion.’” Id . (quoting Hurlbut , 749 S.W.2d at 766 ).

B. Analysis

The jury was instructed:

A person disparages the business of another

if he publishes a disparaging false statement about the business, and, when he

publishes the statement, he knows that falsity of the statement or acts with

reckless disregard of whether the communication is false/acts with ill will or

intends to interfere with the economic interest of Mary Collins, and his

publication of the statement played a substantial part in inducing others not

to do business with Mary Collins and resulted in a specific pecuniary loss to

Mary Collins.

Because the jury found no business disparagement,

Collins has the burden here of conclusively establishing each element of

business disparagement, which she has not done.

Given our conclusion that the defendants conclusively established the

substantial truth of the Collins Letter and the Residents Letter, Collins

cannot establish that the defendants published “a disparaging false statement,”

a required element of a business disparagement claim. We overrule Collins’s eleventh issue.

DEFAMATION PER SE, REPUBLICATION AND SELF-PUBLICATION

In her ninth issue, Collins argues

that the “trial court erred by excluding Collins’ claims of defamation per se,

republication, and self-publication in the trial court’s jury charge and

denying Collins’[s] request for findings of fact and conclusions of law.” In her tenth issue, Collins argues that the

trial court erred by “denying Collins’ JNOV as to the defamation claims of

defamation per se, business disparagement, and republication as a matter of

law.” [4]

The defendants respond that Collins

waived her complains about failure to submit these theories to the jury both

through her failure to adequately brief these issues here and by failing to

tender proposed questions to the trial court.

They further argue that there is no evidence of an element of a

self-publication claim, i.e., the requirement that the “defamed person’s

communication of the defamatory statements to the third person to be made

without awareness of their defamatory nature.”

With regard to self publication, republication and defamation per se,

the defendants also argue that their conclusively proven affirmative defenses

of truth, opinion, and privilege defeat these claims as a matter of law. Finally, they argue that “Collins’ request

for findings of fact and conclusions of law is completely misplaced” because

they are “only allowed when the case is tried in the trial court without a

jury.”

A. Applicable law

Defamation per se is spoken,

written, or printed words that are so obviously hurtful to the person aggrieved

that they require no proof of their injurious character to make them

actionable. Knox v. Taylor , 992 S.W.2d 40, 50 (Tex. App.—Houston [14th Dist.]

1999, no pet.). The character of a

statement as a defamation per se, as contrasted from an ordinary defamation,

relates only to whether damages are to be presumed or must be proven. See Shearson Lehman Hutton, Inc. v. Tucker ,

806 S.W.2d 914, 922 (Tex. App.—Corpus Christi 1991, writ dism’d w.o.j.).

Although a party is generally not

liable for a republication of a defamatory statement by another, this Court has

held that “[i]f a reasonable person would recognize that an act creates an

unreasonable risk that the defamatory matter will be communicated to a third

party, the conduct becomes a negligent communication, which amounts to a

publication just as effectively as an intentional communication.” Wheeler

v. Methodist Hosp , 95 S.W.3d 628 , 639 – 40 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

“Self-publication occurs: (1) if

the defamed person’s communication of the defamatory statements to the third

person was made without an awareness of their defamatory nature; and (2) if the

circumstances indicated that communication to a third party was likely.” Austin

v. Inet Techs., Inc. , 118 S.W.3d 491, 499 (Tex. App.—Dallas 2003, no

pet.). The supreme court has yet to

adopt self-publication as a cause of action, but several courts of appeals

have. See id .

B. Analysis

Each of these theories that Collins

complains was not submitted to the jury or was established as a matter of law — i.e., defamation per se, republication, and

self-publication — require a

defamatory statement. Because we have

held, as a matter of law, that the defendants conclusively established their

defense of substantial truth, these other theories necessarily fail as

well. We also agree with the defendants

that Collins has not demonstrated that she was entitled to findings of facts

and conclusions of law on these theories.

See Tex. R. Civ. P. 296 (“In any case tried in the district or

court court without a jury , any party

may request the court to state in writing its findings of fact and conclusions

of law.” (emphasis added)).

Accordingly, we overrule Collins’s

ninth and tenth issues.

ADMISSION OF EVIDENCE

In three related evidentiary

issues, Collins requests a new trial. In

her thirteenth issue, Collins argues that the trial court abused its discretion

by admitting inadmissible evidence. In

her eighth issue, she complains that the “trial court erred in allowing

inadmissible evidence to be used as evidentiary support for the [defendants’]

affirmative defense of substantial truth.”

In her twelfth issue, she asserts that the trial court erred by denying

Collins’s motion for a mistrial because Roccaforte testified about inadmissible

evidence.

Specifically, Collins argues that

the trial court erred in admitting:

-

Eden Terrace daily logs,

-

July 16, 2007 note to file memorializing discussion with Collins and

another health care aid about their need to abide by Eden Terrace’s “no

solicitation” rule,

-

September 20, 2007 note to file regarding meeting with Collins in which

her attitude towards staff was discussed and she was instructed she needed to

follow rules about work solicitation, bringing in other employees without

proper documentation, etc.,

-

April 4, 2008 note to file “RE: mistreatment of residents by Mary Collins”

documenting Rocaforte’s meeting with the Stivers and the Housers and the

allegations of mistreatment and overcharging,

-

Copies of Roy Stiver’s checks to Mary Collins, and

-

Sample Residency Agreement

She further argues that the trial court erred by

denying her motion for a mistrial in response to Rocceforte testifying to the

terms of the Stivers’ contract with Eden Terrace — a contract that had been excluded by the trial court from evidence.

In response, the defendants argue

the trial court did not erroneously admit any inadmissible evidence and that,

in any event, Collins waived objections to the admission of evidence either in

the trial court or her brief here. They

also contend that Collins has not established the admission of this evidence

led to an improper judgment and that the actual record does not support

Collins’s argument that she was entitled to a mistrial.

A. Applicable Law

The admission and exclusion of evidence is

committed to the trial court’s sound discretion. Moore v.

Bank Midwest, N.A. , 39 S.W.3d 395, 401 (Tex. App.—Houston [1st Dist.] 2001,

pet. denied). “In order to obtain

reversal of a judgment based upon error of the trial court in the admission of

evidence, the [complaining party] must show that the trial court’s decision to

admit the evidence was error and that the error was reasonably calculated to

cause and probably did cause rendition of an improper judgment.” Atlantic

Mutual Ins. Co. v. Middleman , 661 S.W.2d 182, 185 (Tex. App.—San Antonio

1983, writ ref’d n.r.e.). “When

erroneously admitted evidence is merely cumulative or does not concern a

material issue dispositive of the case, the error is harmless.” Mancorp,

Inc. v. Culpepper , 802 S.W.2d 226, 230 (Tex. 1990). “Harmfulness is determined by looking at the

entire record to see whether the judgment was controlled by the testimony that

should have been excluded.” Id .

Hearsay is a “statement, other than

one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Tex. R. Evid . 801(d).

Hearsay is generally not admissible except as provided by statute or

other rules. Tex. R. Evid . 802.

A party is entitled to a limiting

instruction when evidence is admissible for one purpose but not another. Tex. R. Evid . 105(a). Evidence admitted without limitation comes

into evidence for any and all purposes. Cigna Ins. Co. v. Evans , 847 S.W.2d 417,

421 (Tex. App.—Texarkana 1993, no writ).

When inadmissible evidence is

introduced and the trial court sustains an objection and gives the jury an instruction

to disregard, we presume the jury properly followed that instruction. Owens-Corning

Fiberglas Corp. v. Malone , 916 S.W.2d 551, 563 (Tex. App.—Houston [1st

Dist.] 1996), aff’d , 972 S.W.2d 35

(Tex. 1998). To obtain a mistrial, the

complaining party must demonstrate that the evidence was so harmful that it

could not be cured by a limiting instruction, and that its admission was

calculated to cause and probably did cause the rendition of an improper

judgment. Id .

B. Analysis

Collins contends the trial court

erred in admitting Eden Terrace’s daily logs as business records for the

limited purpose of whether defendants conducted a prudent investigation. According to Collins, this was error because

whether “Roccaforte conducted an investigation as to the truth or falsity of a

statement prior to publication is immaterial.”

We conclude that it was not error

to admit the daily logs. Collins does

not argue here that they were not proved up as business records. The trial court gave a limiting instruction

that “the statements that are contained within the documents themselves are not

being admitted for truth of the matter asserted but rather for the fact that

those statements were made.” Although

Collins insists that they were irrelevant, they bear on (1) Roccaforte’s

motivations and state of mind (relevant to Collins’s malice and punitive

damages claims, as well as the defendants’ “good faith” and colorable right to

interfere defense), and (2) the defendants’ substantial truth defense (relevant

to whether Roccaforte was truthful when he said that he had received complaints

about Collins).

We likewise reject Collins’s

complaints about the admission of the three documents that Roccaforte drafted

for Eden Terrace’s file. Collins argues

that “the trial court’s rationale for the allowing the defense to admit

[Roccaforte’s notes] . . . for the

purpose of demonstrating that the appellees conducted an investigation was an

abuse of discretion because the exhibits were unfairly and highly prejudicial

compared to the weight of their probative value.” These documents were prepared by Roccaforte

and they tend to show his state of mind and are relevant to rebutting Collins’s

theory that he acted reckless in response to Stivers’s complaint without any

basis. Moreover, Collins does not

explain how these exhibits are “unfair[] or highly prejudicial.”

Collins next complains that copies

of Roy Stiver’s checks to her should not have been admitted because “the

originals would have been the best evidence to present to the jury” and because

they “were not legible and clearly altered.”

The defendants point out that the trial court initially excluded these

check copies, and then Collins’s counsel opened the door to their later

admission while cross-examining Roccaforte.

This evidence was cumulative of several people’s testimony about how

much the Stivers paid to Collins.

Collins has wholly failed to show that any error in admitting these

check copies was harmful.

Finally, in related arguments,

Collins argues that it was error for the trial court to admit the Sample

Residency Agreement, and that the court should have granted her motion for

mistrial when Roccaforte testified that the Housers had executed a similar

residency agreement with Eden Terrace.

The defendants argue that the Sample Residency

Agreement was properly admitted and that, in any event, Collins has failed to

show that no other similar evidence was admitted or that admission of this

exhibit probably caused the rendition of an improper judgment. We agree.

As for Roccaforte’s testimony about

the Stiver’s agreement, the defendants contend that Collins opened the door to

this testimony by asking whether he had reviewed the Sample Residency Agreement

with the Housers, which invited Roccaforte’s answer that the Housers executed

their residency agreement before Roccaforte was employed at Eden Terrace. Collins has not demonstrated how Roccaforte’s

acknowledging that the Housers signed a residency agreement with Eden Terrace

probably caused the rendition of an improper judgment.

We overrule Collins’s twelfth and

thirteenth issues.

CONCLUSION

We affirm the trial court’s judgment.

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Higley and Brown.

[1]

The trial court sustained

Collins’s evidentiary objections to the Stiver family’s residency contract and

excluded it from evidence. The court

admitted, though, a sample residency agreement, which is a “typical residency

agreement that is made between [SSLM] and the independent person who moves into

the community.”

[2]

Prior to entering this fixed,

long-term agreement, they had used Collins’ services occasionally on an

as-needed basis for $10 per hour.

[3]

We note there has been some inconsistency

in opinions from this Court about who carries the burden of proving truth or

falsity of the statement when a private plaintiff sues a non-media defendant on

a private issue. Compare El-Khoury v. Kheir , 241 S.W.3d 82, 85 (Tex. App.—Houston [1st

Dist.] 2007, pet. denied) (plaintiff must prove falsity), with Rodriguez v. Printone Color Corp. , 982 S.W.2d 69, 73 (Tex.

App.—Houston [1st Dist.] 1998, pet. denied) (defendant must prove substantial

truth). We need not resolve this issue,

however, as the burden placement does not alter our resolution of this

issue.

[4]

We do not address business

disparagement in this section because, although Collins included that claim in

her tenth issue, we disposed of that claim in the previous section addressing

her eleventh issue.