Mary Collins v. Sunrise Senior Living Management, Inc. and Nick Roccoforte ( 2012 )

Opinion issued March 29, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-01000-CV

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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.

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[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.