Campbell v. Salazar

• Decision Date: 30 May 1997
• Docket Number: No. 08-96-00139-CV,08-96-00139-CV
• Citation: 960 S.W.2d 719
• Parties: Norma CAMPBELL, Appellant, v. Barbara SALAZAR, Appellee.
• Court: Texas Court of Appeals

Page 719

960 S.W.2d 719

Norma CAMPBELL, Appellant, v. Barbara SALAZAR, Appellee.

No. 08-96-00139-CV.

Court of Appeals of Texas El Paso.

May 30, 1997.

Rehearing Overruled Sept. 11, 1997.

Woodrow W. Bean, II, El Paso, for Appellant.

Kristina K. Voorhies, El Paso, for Appellee.

Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.

OPINION

BARAJAS, Chief Justice.

This is an appeal from a finding by the trial court that Norma Campbell slandered Barbara Salazar. Judgment was rendered for the sum of $58,843.63 that included past mental anguish, past loss of income, exemplary damages, and prejudgment interest. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

Norma Campbell, Appellant, first met Barbara Salazar in the summer of 1992 before leaving on a trip to Las Vegas with Salazar and another friend. While in Las Vegas, Appellant discovered that she was missing $725 when she attempted to make a purchase in a gift shop. Appellant admitted that she did not initially accuse Salazar of taking her money while in Las Vegas, but she admitted that she did make that accusation once she returned home. She testified that no one was present at the time of the accusation. She further testified to telling her friend, Lydi, that she was missing the $725 but denies accusing Salazar of taking the money. Appellant admits that she did tell Lydi, "Do you think that Barbara took it?" She does however deny that she ever told anyone that "Barbara took my money."

At trial, Leane Coon was subpoenaed by Barbara Salazar and testified at trial but admitted that she did not go on the Las Vegas trip and had no personal knowledge of what happened during the trip. Coon testified that Appellant thought that Salazar stole her money.

Barbara Salazar also testified at trial. Salazar stated that she met Appellant at the airport before leaving for Las Vegas. While in Las Vegas, Appellant would sometimes become grouchy and somewhat hateful. Appellant never accused Salazar of theft while in Las Vegas. Salazar first learned of the accusations of theft once she went to Lydi Lewendowski's house to pick up an Avon order and pay a third of the cost of the rental car the three had rented in Las Vegas. Upon arriving, both Lydi and Appellant were present. When asked by counsel if Appellant said anything to her, Salazar testified, without objection, that Appellant said that Lydi told Appellant that Salazar had taken Appellant's money, and that an attendant at the casino said that Salazar likewise had taken Appellant's money. Salazar was shocked and asked Appellant, "[w]hat do you mean I took your money?" and Appellant said, "[y]es, you took my money." ¹ Salazar stated that her heart started pounding, that she could not breath, that she was shaking and felt sick to her stomach. Lydi was present at the time of making this statement. Salazar further testified that Appellant said "I know you took my money" and then two or three days later Appellant called Salazar and told her "I know you took my money. I'm going to sue you. I'm going to file charges. I'm going to call the police and have you arrested." Salazar further stated:

I had a vision of me being arrested, handcuffed and led into the county jail--into the county jail down here with TV cameras and newspaper headlines, and I became very, very upset. I--I couldn't imagine what would happen to me if I was arrested. If she actually filed charges, I knew that I would probably be arrested and I was hoping that if she was going to do it and they were going to arrest me, it would happen before school started. I didn't want to be arrested in front of my students.

When her attorney asked Salazar whether Appellant's friends ever told her not to worry about these allegations, she said, "[t]hey told me that she would probably press charges and that she--she did tell them--they did not say, '[s]he thinks you took her money.' They said that she told them 'Barbara took my money. She stole my $700.' "

The jury in this case returned a verdict finding that Appellant slandered Salazar and awarded Salazar actual damages for past mental anguish in addition to damages for past loss of income. The jury also found that there was malice and awarded the plaintiff punitive damages. After a final judgment was entered, Appellant filed a motion for judgment n.o.v. and a motion for new trial, which were either denied by the trial judge or overruled by operation of law. Appellant now brings various points of error.

II. DISCUSSION

Appellant advances twenty points of error alleging no evidence, insufficient evidence, various other errors, and findings by the jury that are against the great weight and preponderance of the evidence.

A. Points of Error Nos. Two, Three, and Four

Appellant's second and third points of error allege that the trial court erred in denying her Motion for Judgment n.o.v. and/or Motion for New Trial in that there was no evidence, insufficient evidence, or the finding by the jury to Question No. 1 was against the great weight and preponderance of the evidence. Appellant's Point of Error No. Four states that the trial court erred in denying her Motion for Judgment n.o.v. relative to the jury's finding that a slander occurred in response to Question No. 1 in that the Appellant established the absence of a slander as a matter of law.

1. Standards of Review for Legal and Factual Sufficiency

A factual insufficiency point requires us to examine all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25-26 (Tex.App.--El Paso 1994, writ denied); Hallmark v. Hand, 885 S.W.2d 471, 474 (Tex.App.--El Paso 1994, writ denied). The reviewing court cannot substitute its conclusions for those of the jury. If there is sufficient competent evidence of probative force to support the finding, it must be sustained. Tseo, 893 S.W.2d at 26; Texas Tech Univ. Health Sciences Ctr. v. Apodaca, 876 S.W.2d 402, 412 (Tex.App.--El Paso 1994, writ denied). It is not within the province of this Court to interfere with the jury's resolution of conflicts in the evidence, or to pass on the weight or credibility of the witnesses' testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951); Southwest Airlines Co. v. Jaeger, 867 S.W.2d 824, 829-30 (Tex.App.--El Paso 1993, writ denied). Where there is conflicting evidence, the jury's verdict on such matters is generally regarded as conclusive. Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508, 512 (1947); Tseo, 893 S.W.2d at 26; Hallmark, 885 S.W.2d at 474.

On the other hand, when considering a "no evidence" legal insufficiency point, we consider only the evidence that tends to support the jury's findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Texas Tech Univ. Health Sciences Ctr. v. Apodaca, 876 S.W.2d 402 (Tex.App.--El Paso 1994, writ denied). If there is more than a scintilla of evidence to support the questioned finding, the "no evidence" point fails. Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex.App.--El Paso 1994, writ denied); Hallmark v. Hand, 885 S.W.2d 471, 474 (Tex.App.--El Paso 1994, writ denied).

2. Standard of Review for Granting a New Trial

The standard we employ to determine if a trial court erred in granting a new trial is the abuse of the discretion standard. A trial court has wide discretion in denying a motion for new trial, and its action will not be disturbed on appeal absent a showing of an abuse of discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983); Alfredo O. Sanchez v. Sandra Harris King, Exxon Co., USA a/k/a Exxon Corp., 932 S.W.2d 177, 180 (Tex.App.--El Paso 1996, no writ); Border Apparel-East, Inc. v. Guadian, 868 S.W.2d 894, 896 (Tex.App.--El Paso 1993, no writ); Southwest Airlines Co. v. Jaeger, 867 S.W.2d 824, 831 (Tex.App.--El Paso 1993, writ denied); Wright v. Wright, 867 S.W.2d 807, 810 (Tex.App.--El Paso 1993, writ denied). The standard of review depends on the complaint preserved by the motion for new trial. Sanchez, 932 S.W.2d at 180; Hicks v. Ricardo, 834 S.W.2d 587, 590 (Tex.App.--Houston [1st Dist.] 1992, no writ). An appellate court should reverse a trial court for abuse of discretion only when "after searching the record, it is clear that the trial court's decision was arbitrary and unreasonable." Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex.1987); Border Apparel-East, Inc., 868 S.W.2d at 896; Jaeger, 867 S.W.2d at 831; Wright, 867 S.W.2d at 810. The test for abuse of discretion is not whether, in the opinion of this Court, the facts present an appropriate case for the trial court's actions. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Guadian, 868 S.W.2d at 896. Another way of stating the test is whether the act was arbitrary or unreasonable. See Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1984); Landry v. Travelers Ins. Co., 458 S.W.2d 649, 651 (Tex.1970); Guadian, 868 S.W.2d at 896. The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. See Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965) and Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959); Guadian, 868 S.W.2d at 896. A mere error of judgment is not an abuse of discretion. Loftin v. Martin, 776 S.W.2d 145, 146 (Tex.1989); Guadian, 868 S.W.2d at 896.

3. Elements of Slander

In determining whether slander occurred, this Court has provided the following definition. Slander is:

(1) a defamatory statement that is

(2) communicated or published to a third person

(3) without legal...