Deckard, Jr. v. O'Reilly Automotive

• Decision Date: 01 August 2000
• Citation: 31 S.W.3d 6
• Parties: (Mo.App. W.D. 2000) . Carlos Deckard, Jr., Respondent, v. O'Reilly Automotive, Inc., Appellant. WD57385 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

31 S.W.3d 6 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Carlos Deckard, Jr., Respondent, v. O'Reilly Automotive, Inc., Appellant.

WD57385

Missouri Court of Appeals Western District

Handdown Date: 08/01/2000

Appeal From: Circuit Court of Jackson County, Hon. John R. O'Malley

Counsel for Appellant: Larry M. Schumaker

Counsel for Respondent: David M. Skeens

Opinion Summary: O'Reilly Automotive, Inc., appeals the trial court judgment in favor of Carlos Deckard for $275,830 in his defamation action.

REVERSED AND REMANDED FOR A NEW TRIAL.

Division Three holds: Where the trial court made a determination that the alleged defamatory statements and any resultant injury to Mr. Deckard's reputation did not occur until after O'Reilly terminated Mr. Deckard's employment, the doctrine of primary jurisdiction did not apply, and the trial court retained authority to determine whether Mr. Deckard's injury fell within the exclusive jurisdiction of the Workers' Compensation Law.

(1) Mr. Deckard was no longer an employee at the time of the alleged injury to his reputation. Injury to reputation is not the type of injury contemplated by the Workers' Compensation Law. Mr. Deckard's claim did not come within the exclusive jurisdiction of the Workers' Compensation Law. Therefore, the trial court had subject matter jurisdiction over the claim.

(2) Where the store manager's statement to Jami Crouch that Mr. Deckard was no longer with the company because he had been making false tickets and stealing company money related to matters of common interest to O'Reilly, the employer, and Ms. Crouch, the employee, the statement was qualifiedly privileged. Where the district manager's statement to Joe Barger, a customer, that an employee had taken money from his account and that Mr. Deckard had been dismissed over the incident related to matters of common interest between the business and its customer, the statement was qualifiedly privileged. Because O'Reilly's communications to Jami Crouch and Joe Barger were qualifiedly privileged and Mr. Deckard made a submissible case of actual malice to defeat the privilege, the trial court erred in failing to submit verdict directing instructions based on MAI 5th 23.10(2) and the corresponding burden of proof instructions based on MAI 5th 3.05 to allow the jury to decide whether the statements were made in good faith without actual malice.

(3) Where Mr. Deckard told Scott Anderson, a prospective employer, that he was fired for theft, but the evidence was undisputed that the loss prevention auditor informed Mr. Deckard that he was fired for loss of confidence, the statement was not defamatory and Mr. Deckard failed to make a submissible case on his claim that O'Reilly communicated a defamatory statement to Mr. Anderson.

(4) Mr. Deckard did make a submissible case on his claims that O'Reilly communicated defamatory statements about him to Jami Crouch and Joe Barger.

(a) Where the district manager informed Mr. Barger, a customer, that somebody had taken money from his account and that Mr. Deckard had been dismissed over the problem, the most obvious and natural interpretation of the communication was that Mr. Deckard had been fired for stealing. The communication was, therefore, reasonably capable of a defamatory meaning.

(b) Where substantial evidence was offered at trial that the store manager and the district manager made the statements that Mr. Deckard was fired for theft at a time when they knew the statements were false or, at the very least, when they did not know whether they were true, Mr. Deckard made a submissible case of actual malice to defeat or overcome the qualified privilege that existed regarding O'Reilly's communications to Mr. Barger and Ms. Crouch.

(c) Where the evidence indicated that Ms. Crouch was aware of a decline in Mr. Deckard's reputation in the community and where the evidence revealed that Ms. Crouch first learned that Mr. Deckard had been fired from her store manager who told her he was fired for stealing from the company, Mr. Deckard made a submissible case that O'Reilly's communication to Ms. Crouch damaged his reputation.

(5) Where the verdict directing instruction submitted Mr. Deckard's three theories of liability in the disjunctive, but Mr. Deckard failed to make a submissible case on one of the theories, that O'Reilly communicated a defamatory statement to Scott Anderson, the submission of the verdict directing instruction was erroneous, and the judgment is reversed. The case is remanded for a new trial.

Opinion Author: Robert G. Ulrich, J.

Opinion Vote: REVERSED AND REMANDED FOR A NEW TRIAL. Lowenstein, P.J. and Holliger, J. concur.

Opinion:

O'Reilly Automotive, Inc. appeals the judgment of the trial court entered in favor of Carlos Deckard in the amount of $275,830 in his defamation action. O'Reilly raises several points on appeal. First, it claims that the trial court erred in denying its motion to vacate the judgment and dismiss Mr. Deckard's petition because the court lacked subject matter jurisdiction. Second, O'Reilly argues that the trial court erred in denying its motion for judgment notwithstanding the verdict because Mr. Deckard did not present sufficient evidence to make a submissible case of defamation. Finally, O'Reilly claims that the trial court erred in denying its motion for a new trial based on instructional error. The judgment of the trial court is reversed, and the case is remanded for a new trial.

Carlos Deckard is a former employee of O'Reilly Automotive, Inc. Mr. Deckard worked for O'Reilly for nearly eight years. At the time of his termination, Mr. Deckard was the assistant manager at the O'Reilly retail store in El Dorado Springs. His job duties included counter sales, paperwork, checking and approving invoices, and supervising the store when the store manager, Kevin Greven, was not working.

On Friday, January 26, 1996, Mr. Greven went home sick at 11:00 a.m. leaving Mr. Deckard in charge of the store. Four other employees were working in the store that day with Mr. Deckard --Gregg Fast, Mike Spencer, Jami Crouch, and Juanita Boram. Each had been assigned an exclusive "counter number" to transact O'Reilly's business. Between 11:40 a.m. and 12:30 p.m., someone stole approximately $160 by creating a fraudulent charge sale invoice and two fraudulent cash refund invoices.¹ Two of the fraudulent invoices were written by someone who used Mr. Deckard's exclusive counter number.² The third fraudulent invoice was written using Gregg Fast's exclusive counter number. When Mr. Fast discovered the fraudulent refund invoice with his counter number imprinted on it, he became suspicious and telephoned Earl Kaltenbach, the district manager. Mr. Kaltenbach made plans to travel to the El Dorado Springs store the following Monday to investigate.

The next day, Saturday, January 27, was the store manager's scheduled day off; therefore, Mr. Deckard, as assistant store manager, was in charge of the store. As the manager on duty, Mr. Deckard processed all of the previous day's paperwork and approved the previous day's invoices including initialing the two fraudulent cash refund invoices.

Earl Kaltenbach arrived at the El Dorado Springs store on Monday morning, January 29, to investigate the suspicious invoices. He and Mr. Greven spoke with Mr. Deckard about the invoices. Initially, Mr. Deckard thought the men were seeking his help in determining who had created the fraudulent invoices. By the end of the meeting, Mr. Deckard understood that Mr. Kaltenbach was "upset with" or "accusing" him.

Mr. Deckard met with Bruce Dowell and David Bellamy, loss prevention auditors with O'Reilly, the next day, Tuesday, January 30. Mr. Dowell asked Mr. Deckard to explain the three fraudulent invoices, and Mr. Deckard denied writing them. At the end of the meeting, Mr. Dowell informed Mr. Deckard that he was suspended indefinitely without pay and asked Mr. Deckard to leave the store.

On January 31, Mr. Greven, the store manager, told Jami Crouch and Jerry McCullick, employees of the store, that Mr. Deckard was no longer with the company because he had been making false tickets and stealing company money. On February 1 or 2, Mr. Kaltenbach informed Joe Barger, the customer on whose account the fraudulent charge sale had been written, that his account had been credited and that Mr. Deckard had been dismissed over the incident. Mr. Dowell telephoned Mr. Deckard on February 2, 1996, and informed him that he was terminated for loss of confidence. Mr. Deckard testified that he understood this to mean he was fired for theft.

Mr. Deckard applied for a job with AutoZone Auto Parts Inc, a competitor of O'Reilly, in May of 1996. On his application, Mr. Deckard wrote that he had been terminated from O'Reilly because of a disagreement with upper management. Mr. Deckard subsequently interviewed with Scott Anderson, a recruiter for AutoZone, and Mr. Anderson asked him to explain why he had been terminated by O'Reilly. Mr. Deckard told Mr. Anderson that he had been unfairly fired for theft. After learning why Mr. Deckard left his employment with O'Reilly, Mr. Anderson lost interest in hiring Mr. Deckard. Mr. Deckard eventually got a job at Allison Auto Parts making minimum wage with no benefits.

Mr. Deckard filed his petition for damages on December 10, 1997. In his defamation claim, Mr. Deckard alleged that O'Reilly, by and through its officers, employees, and agents, made the defamatory statement that Mr. Deckard was a thief to a number of persons in the El Dorado Springs community including other O'Reilly employees and customers and that, as a result, his reputation was damaged. Mr. Deckard also alleged that he had to repeat the defamatory statement in the course of his search for new employment. Mr. Deckard alleged that he suffered actual damages in the form of mental anguish, loss of...