Delta Air Lines, Inc. v. Norris

• Decision Date: 02 July 1997
• Docket Number: No. 10-96-280-CV,10-96-280-CV
• Citation: 949 S.W.2d 422
• Parties: DELTA AIR LINES, INC., Appellant, v. Robert A. NORRIS, et al., Appellees.
• Court: Texas Court of Appeals

Page 422

949 S.W.2d 422

DELTA AIR LINES, INC., Appellant, v. Robert A. NORRIS, et al., Appellees.

No. 10-96-280-CV.

Court of Appeals of Texas Waco.

July 2, 1997.

John H. Martin, G. Luke Ashley, Laura Peterson Elkind, Lisa A. Schumacher, Thompson & Knight, P.C., Dallas, W. Burton Baker, Jr., Lummus, Hallman, Pritchard & Baker, P.C., Cleburne, for appellant.

David E. Keltner, John S. Jose, Karen S. Preccella, Jose, Henry, Brantley & Keltner, L.L.P., Fort Worth, John R. MacLean, Dan Boulware, MacLean & Boulware, Cleburne, Kathryn J. Gilliam, Beard & Kultgen, Waco, for appellees.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

VANCE, Justice.

Delta Air Lines, Inc. ("Delta") filed an interlocutory appeal from the denial of its summary-judgment motion based in part on constitutional rights of free speech. U.S. CONST. amend. I; TEXAS CONST. art. I, § 8. Statements by Delta's representatives were published by the print media, which brings the appeal within the purview of section 51.014(6) of the Texas Civil Practice and Remedies Code. TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(6) (Vernon Supp.1997).

In May 1993, Delta and Norris Industries, Inc. ("NI"), owned by Robert A. Norris ("Norris"), signed a "Baggage and Mail Handling Agreement" under which NI would supply labor to Delta's operations at the DFW Airport. During the term of the contract, the United States Postal Service began to suspect that some of NI's employees were stealing from the mail and started an investigation. On January 28, 1995, the Postal Inspection Service, the Secret Service, the Immigration and Naturalization Service, and the Texas Department of Public Safety conducted an armed raid at the Delta mail facility parking lot and searched and detained several of NI's employees. On January 30, Delta's representatives met with Postal Service inspectors. The following day, Delta gave notice to NI that the contract would be terminated thirty days later, a contractual option available to either party.

THE STATEMENTS

The print media became interested in the investigation and, during the course of its inquiries, called upon Delta to comment. Delta representatives made the following statements which form the basis of this dispute: ¹

Bill Berry was quoted in the Fort Worth Star-Telegram on February 10, 1995, in the following paragraph:

Delta spokesman Bill Berry said the contract was canceled "for failure to meet our standards under the contractual agreement." He declined to go into detail.

The Dallas Morning News, in an article published on February 11, 1995, quoted another Delta representative:

"The contract was canceled because they failed to meet the high standards Delta requires," said spokeswoman Jackie Pate. "Delta is intolerant of any action on the part of our employers or contractors that involves illegal acts."

A story in DFW People, an airport newsletter, dated February 16, 1995, contained the following:

Michael Boynton, district director of sales for Delta, would only say that Norris "failed to meet our standards under the contractual agreement."

Norris asserts three causes of actions based on Delta's statements, and NI asserts one. Norris claims that he was defamed and suffered from intentional infliction of emotional distress. Both claim irreparable damage to their business reputations.

DELTA'S MOTION FOR SUMMARY JUDGMENT

Delta moved for summary judgment on three causes of action, asserting (1) that the claims for defamation and business disparagement must fail because the alleged statements were either "non-defamatory or non-actionable statements of opinion" protected by free-speech rights; (2) alternatively, that the statements were substantially true; and (3) that Norris' claim for intentional infliction of emotional distress fails because (a) the statements were not defamatory, (b) Delta did not engage in "extreme and outrageous conduct," or (c) Norris did not suffer "extreme emotional distress."

Norris' and NI's response to the motion for summary judgment contends that the statements attributable to Berry, Pate, and Boynton are defamatory and are statements of fact, not of opinion. They further contend that the statements were "admittedly and utterly false." ² The response also contests Delta's assertions about intentional infliction of emotional distress.

STANDARD OF REVIEW

The standards for reviewing a summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to the summary judgment as a matter of law. Id. at 548-49. The reviewing court must accept all evidence favorable to the non-movant as true. Id. at 549. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Id. A defendant may establish an affirmative defense by proving all of the elements of the affirmative defense as a matter of law, demonstrating that there is no genuine issue of material fact. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). Review of the denial of a motion for summary judgment is governed by the same standard as governs review of the granting of such a motion. San Antonio Express News v. Dracos, 922 S.W.2d 242, 247 (Tex.App.--San Antonio 1996, no writ). And, the standard is the same for defamation cases as other summary judgment cases. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989).

DEFAMATION

"Ordinary citizens" enjoy the same constitutional protections as members of the broadcast and print media when sued for defamation. See id. (public figure sued private defendant). A private individual may recover damages from the publisher of a defamatory falsehood as compensation for actual injury upon a showing that the publisher knew or should have known that the defamatory statement was false. Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 819 (Tex.1976).

Defamation may occur through libel, which is written defamation and has been defined by section 73.001 of the Civil Practice and Remedies Code, or through slander, the spoken form, which is recognized at common law but has not been codified in Texas. See Cain v. Hearst Corp., 878 S.W.2d 577, 580 (Tex.1994); TEX.CIV.PRAC. & REM.CODE ANN. § 73.001 (Vernon 1986). A statement is defamatory if the words tend to injure a person's reputation, exposing the person to public hatred, contempt, ridicule, or financial injury. Einhorn v. LaChance, 823 S.W.2d 405, 410-11 (Tex.App.--Houston [1st Dist.] 1992, writ dism'd w.o.j.).

"All assertions of opinion are protected by the first amendment of the United States Constitution and article I, section 8 of the Texas Constitution." Carr v. Brasher, 776 S.W.2d 567, 570 (Tex.1989). Whether a statement is an opinion or an assertion of fact is a question of law. Id. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789 (1974)).

Whether words are capable of the defamatory meaning the plaintiff attributes to them is also a question of law. Musser v. Smith Protective Serv., Inc., 723 S.W.2d 653, 654-55 (Tex.1987). In reaching a conclusion, the court must construe the allegedly defamatory statements as a whole, in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement. Carr, 776 S.W.2d at 570 (discussing Musser ). Only when the court determines the language to be ambiguous or of doubtful import should a jury be permitted to determine the statement's meaning and the effect the statement has on the ordinary person. Id.

The truth or falsity of statements is determined by using the "substantial truth" test. Rogers v. Dallas Morning News, Inc., 889 S.W.2d 467, 472 (Tex.App.--Dallas 1994, writ denied) (citing McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex.1990)). Under that test, we examine each statement in question, in its entirety, and decide whether the summary-judgment record conclusively shows that the "gist" of the statement is substantially true. See id. This evaluation requires us to determine whether, in the mind of the average person who heard the statement, an allegedly defamatory statement was more damaging to the plaintiffs' reputation than a truthful statement would have been. See id. If we decide, as a matter of law, that a statement is substantially true, our inquiry ends. See id.

ARE THE STATEMENTS ACTIONABLE?

The statements that Norris and NI rely upon fall into three categories: two assert that NI did not meet Delta's standards under the contract, one asserts that NI failed to meet Delta's high standards under the contract, and one asserts that Delta is intolerant of any illegal action by parties with which it contracts.

According to Norris and NI, Delta knew of some theft problems and had asked NI to cooperate with the postal inspectors' investigation. Despite this knowledge, Delta had been satisfied with NI's performance under the terms of the contract. Thus, Norris and NI argue that Delta's statements that NI did not meet Delta's contractual "standards" or "high standards" are false. They argue that Delta used NI as a "scapegoat" to avoid losing a lucrative contract with the U.S. Postal Service.

Delta asserts that, although it was aware of some theft problems, it did not know the vast extent of those problems until the January 28 raid and its January 30 meeting with postal inspectors. ³ With this knowledge, Delta asserts that NI did not meet its standards, despite any prior satisfaction with NI's performance.

We believe that the statements in the first two categories--that NI did not meet Delta's contractual standards--are nonspecific statements lacking a defamatory meaning. Einhorn, 823 S.W.2d at 411 (statement that plaintiff was fired for reasons related "solely to work performance" not defamatory). The statements were made in the wake of a criminal investigation that had discovered substantial criminal activity on...