holding that the plaintiff’s allegations that his employer “falsely depict[ed]” him “in the community as a thief” and “potential employers[] knew that he had been terminated for stealing,” even if true, “fall short of being beyond all possible bounds of decency, atrocious, and utterly intolerable in a civilized community”
How later courts described this case
- holding that the plaintiff’s allegations that his employer “falsely depict[ed]” him “in the community as a thief” and “potential employers[] knew that he had been terminated for stealing,” even if true, “fall short of being beyond all possible bounds of decency, atrocious, and utterly intolerable in a civilized community”
- stating “there would be little left of the employment-at-will doctrine if an employer’s public statement of the reason for termination was, so long as the employee disputed that reason, in and of itself some evidence that a tort of intentional infliction of emotional distress had been committed”
- holding that falsely depicting the plaintiff in the community as a thief is not sufficiently outrageous to raise a fact issue on outrageous conduct
- ruling that employer allegedly accusing an employee of thievery and firing him is insufficient to constitute outrageous behavior
Written by the judges who cited it.
The opinion
DISSENTING OPINION ON MOTION FOR REHEARING
DOGGETT, Justice,
dissenting.
In its decision today, the majority once again demonstrates its lack of concern for important human rights, so recently exhibited in Boyles v. Kerr, 1992 WL 353277 (Tex.1992) (refusal to permit woman surreptitiously videotaped during sexual intercourse to recover for negligent infliction of emotional distress).
The declared victor in this cause, Diamond Shamrock, has filed a motion for rehearing that admits the weakness of the limited legal analysis employed by the majority to justify a significant weakening of the right to privacy of all Texans. While contending that the interests of “judicial economy would be well-served by [a straightforward death sentence for the false light theory of invasion of privacy] now, instead of several years later,” Diamond Shamrock’s motion is highly insightful. Citing Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 682 (Tex.1976), it concedes “that this Court had recognized the [false light] theory of recovery as one of the four usual categories of invasion of privacy” and notes that “at the time that this case was tried, several appellate courts had also discussed the theory of recovery in various contexts.” See Clarke v. Denton Publishing Co., 793 S.W.2d 329, 331 (Tex.App.—Fort Worth 1990, writ denied); Covington v. Houston Post, 743 S.W.2d 345 (Tex.App.—Houston [14th Dist.] 1987, no writ); Gill v. Snow, 644 S.W.2d 222, 224 (Tex.App.—Fort Worth 1982, no writ). 1 Diamond Shamrock, moreover, located an additional commentator, a leading Texas insurance defense attorney, who reached the same conclusion regarding the validity of a false light cause of action in Texas. See Jerry A. Gibson, The Developing Law of Tort Liability for Non-Physical Harm: A Guide for the Texas Practitioner, 18 St. Mary’s L.J. 889, 928 (1987). Diamond Shamrock’s argument conflicts with the reasoning underlying the majority’s opinion.
Indeed, protection of privacy through the false light tort was so well-established in Texas at the time of the trial of this case that Diamond Shamrock explains its failure to object to the submission of a related jury charge as follows:
since numerous cases discussed the theory of recovery [for false light], the probable response to an objection (i.e., that this Court had not expressly recognized the theory of recovery) would have been that the objection was frivolous and groundless.
Although I disagree with the application of its research, Diamond Shamrock is absolutely correct in one important particular— *222 before any other court its objection would be disregarded as “frivolous and groundless.” Unfortunately yesterday’s admittedly groundless claim has become a battering ram in the hands of the majority as they assault the right to privacy so vital to. Texans.
* * * * * *
My remarks on the merits of rehearing this cause are set forth in full above, and speak for themselves. Because this terse writing has apparently unsettled Justice Comyn, I append the following in reply to his concurrence:
Completely unable to address this inconsistency between the reasoning of the majority opinion and the argument advanced by the very party who prevailed under it, Justice Comyn avoids any pretense of discussing the merits of this case in order to deliver a short lecture on the proper role of a judge. While this is certainly an appropriate question to consider, rehearing on a cause about which Justice Cornyn has not previously written seems hardly the most appropriate context for its consideration. I agree completely that “It is a judge’s job to carefully weigh competing interests and strike a delicate, perhaps imperfect, balance between those competing interests.” At 220 (Cornyn, J., concurring opinion on motion for rehearing).
In “striking]” a “balance,” id., I find it is often appropriate to seek a reasonable course of moderation between conflicting interests. In Boyles v. Kerr (Tex.1992) (Doggett, J., dissenting), instead of completely barring any recovery for negligence resulting in emotional distress, I urged a “more moderate course crafted from Texas precedent and a growing body of law nationally that would limit liability for the trivial while recompensing the truly grievous.” Similarly, in the instant case, I counseled moderation in reaffirming recognition of the false light tort while adding appropriate safeguards to preserve free speech rights.
Unfortunately, the majority has increasingly rejected moderation and balance in favor of the erection of a double standard of justice in Texas. “Mandamus [has already been] officially declared a one-way street in the Texas courts — our judiciary can help to hide [information] but not to detect.” Walker v. Packer, 827 S.W.2d 833, 846 (Tex.1992, orig. proceeding) (Doggett, J., dissenting). Broad-form jury submission can be relied upon by a losing defendant to invalidate a jury verdict, but not by a prevailing plaintiff to uphold one. Compare Keetch v. Kroger, 845 S.W.2d 262, 267 (Tex.1992) (Mauzy, J., dissenting), with State Dept. of Highways v. Payne, 838 S.W.2d 235 (Tex.1992). Emergency relief will be swiftly granted to those who wish to hide court documents, but slowly denied to those who seek access to trial exhibits. Compare Eli Lilly & Co. v. Marshall, 829 S.W.2d 156 (Tex.1991), orig. proceeding) (Doggett, J., dissenting to order granting leave to file petition for writ of mandamus), with Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 663 (Tex.1992, orig. proceeding) (Doggett, J., dissenting to order overruling motion for leave to file petition for writ of mandamus).
In achieving a balance, a judge should maintain reasonable respect for precedent so as to assure stability and predictability in the law. Judicial restraint must be exercised rather than judicial result. Both my original opinion in this cause and that issued today reflect this concern. Unfortunately, the concept of reliance on the prior decisions of Texas courts has long since ceased to pose any significant restraint on this majority. See, e.g., Boyles v. Kerr (Tex.1992) (Doggett, J., dissenting) (objecting to majority’s overruling of landmark Texas Supreme Court decision permitting recovery for negligence resulting in emotional distress); Walker v. Packer, 827 S.W.2d 833, 846 (Tex.1992, orig. proceeding) (Doggett, J., dissenting) (noting majority’s “mass execution of precedent,” encompassing “a dozen or more Texas Supreme Court cases and countless decisions of the courts of appeals”); Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist. 826 S.W.2d 489, 846 (Tex.1992) (Doggett, J., dissenting) *223 (discussing rejection by majority of its own decision issued less than one year previously); Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 12 (Tex.1991) (Doggett, J., dissenting) (court disregards its own recent precedent, looking instead to overruled case).
Moreover, as judges, we should perform our duties in a timely and responsible manner. Yet the delay in issuing opinions in this court continues uncorrected, despite my effort to achieve more prompt resolution of our docket. See Schick v. Wm. H. McGee & Co., 843 S.W.2d 473, 473 (Tex.1992) (Doggett, J., concurring opinion on order granting motion to dismiss), and cases cited therein.
A judge should support our right to trial by jury instead of seeking ways to subvert and limit that right. Long ago, Texans recognized the paramount importance of this guarantee, stating in their grievances against the Mexican government that:
It has failed and refused to secure, on a firm basis, the right of trial by jury, that palladium of civil liberty, and only safe guarantee for the life, liberty, and property of the citizen.
The Declaration of Independence of the Republic of Texas (1836), reprinted in Tex. Const. app. 519, 520 (Vernon 1955). Here, Roque Mendez convinced a panel of Texas citizens that actions of Diamond Shamrock had resulted in injury to him. The vote of those twelve people is rendered a nullity today, as so increasingly occurs with this majority. See May v. United Services Ass’n of America, 844 S.W.2d 666, 674 (Tex.1992) (Doggett, J., dissenting), and cases cited therein.
When a judge rejects the path of moderation, ignores precedent, loses confidence in our right to trial by jury, while at the same time making a calculated assault on the right of privacy, he may feel a need for some cover. While rather thin camouflage, the concurring opinion represents little else. If withstanding such criticism is the cost of defending on this court our liberties, it is a small price to pay.
. As noted in my original dissent, these authorities were among the nine Texas appellate opinions applying or recognizing the false light cause of action. 844 S.W.2d at 216 n. 9.