Diamond Shamrock Refining and Marketing Co. v. Mendez

• Citation: 809 S.W.2d 514
• Decision Date: 20 March 1991
• Docket Number: No. 04-90-00025-CV,04-90-00025-CV
• Parties: 7 IER Cases 531 DIAMOND SHAMROCK REFINING AND MARKETING COMPANY, Appellant, v. Roque MENDEZ, Appellee.
• Court: Texas Court of Appeals

Page 514

809 S.W.2d 514

7 IER Cases 531

DIAMOND SHAMROCK REFINING AND MARKETING COMPANY, Appellant, v. Roque MENDEZ, Appellee.

No. 04-90-00025-CV.

Court of Appeals of Texas,

San Antonio.

March 20, 1991.

Rehearing Denied May 3, 1991.

Karen A. Angelini, Brock & Mathis, W. Wendell Hall, Fullbright & Jaworski, San Antonio, for appellant.

Ruben R. Pena, Michael E. Hearn, Jones, Galligan, Key & Pena, Weslaco, Jo Chris G. Lopez, Shaddox, Compere, Walraven & Good, San Antonio, for appellee.

Before CADENA, C.J. ¹ , and CHAPA and CARR, JJ.

OPINION

CARR, Justice.

Roque Mendez was terminated from his job with Diamond Shamrock Refining and Marketing Company for allegedly stealing a handful of nails. He sued Diamond Shamrock and went to the jury on two theories: that Diamond Shamrock had invaded his privacy by placing him before the public in a false light, and that Diamond Shamrock's extreme and outrageous conduct intentionally or recklessly caused him severe emotional distress. Based on favorable jury findings, Mendez was awarded a judgment from which Diamond Shamrock brings this appeal.

The Diamond Shamrock refinery at which Mendez had worked for over ten years is located in Three Rivers, a town of about 2500 people. Diamond Shamrock is the largest employer there. At the time of his discharge, Mendez was one of four chief operators at the plant.

The events culminating in his discharge occurred just before the end of the night shift on September 4, 1985. Mendez was ordered by his supervisor to clean up debris which had been left in his work area for over two weeks by maintenance personnel. This debris included loose nails discarded by carpenters working at the site. Mendez complied with the clean up order he had been given, but he was upset at what he perceived as rudeness on the part of his supervisor and the arbitrariness of the requirement that he pick up after other employees. He gathered up several loose nails, threw them in a small box, threw the box in his lunch bag, and set the bag on a shelf in the control room. He finished cleaning up the area and then went to the clock house to punch out for the day. The clock house is located on refinery property. He left work, leaving the lunch bag containing the nails on the table in the clock house where they were found by a company security guard later that morning. The nails were worth no more than $5.00.

Once at home, Mendez received a phone call from Wayne Billings, the personnel manager at the refinery. Billings asked him to return to the refinery. Upon his return, Mendez met with Billings and John Hoffman, the plant manager. Billings asked Mendez to identify the lunch bag, and Mendez indicated it was his. They asked him to explain. Mendez told them of the call he had received from the supervisor and explained that it had made him angry. He told Billings and Hoffman how he had put the nails in his lunch bag. He said he should have thrown the nails away because that is what he and the other employees had done with the other things they had had to clean up. Mendez testified that he told Billings and Hoffman that he did not intend to steal the nails. Following this explanation, Hoffman stood up and said it looked to him as if Mendez was stealing company property, and he asked if Mendez agreed. Mendez said he guessed so. Hoffman immediately terminated him and left the room. Billings asked Mendez why he had not come to him, as he could have issued Mendez a "gate pass" to take the nails off company property. Mendez replied that he did not know; he guessed he "just messed up."

There had been a series of small thefts at the refinery during the months prior to Mendez' termination, however, no one else at the refinery had been fired for stealing. The Diamond Shamrock employee handbook provided that an employee could be terminated for stealing company property.

Diamond Shamrock argues in its first point of error that there was no evidence or insufficient evidence that it had invaded Mendez' privacy by giving publicity to a matter concerning him that placed him before the public in a false light. Its first argument under this point is that it did not place Mendez in a false light; its second argument is that it did not publicize the matter.

In reviewing a "no evidence" or legal insufficiency point of error, we consider only the evidence and inferences which support the challenged finding of the trier of fact, and we disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). The point must be sustained when the record discloses: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; and (4) the evidence establishes conclusively the opposite of the vital fact. Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990). In considering a factual insufficiency point, we consider and weigh all the evidence supporting and contrary to the challenged finding. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). We set aside the finding only if the evidence is so weak or so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); In re King's Estate, 244 S.W.2d at 661.

The tort of "false light publicity" is recognized in Texas. See, e.g., Covington v. Houston Post, 743 S.W.2d 345 (Tex.App.--Houston [14th Dist.] 1987, no writ); Gill v. Snow, 644 S.W.2d 222 (Tex.App.--Fort Worth 1982, no writ); Moore v. Big Picture Co., 828 F.2d 270 (5th Cir.1987). Its elements are delineated in RESTATEMENT (SECOND) OF TORTS § 652E (1977):

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Diamond Shamrock contends that Mendez was stealing company property. Consequently, it argues that any statement that he was discharged for stealing, being true, could not have placed him in a false light. As evidence, Diamond Shamrock relies on the fact that Mendez agreed when it was suggested to him by Hoffman that he was stealing.

To prevail in a false light claim, statements must have been published about the plaintiff that are false, Gill, 644 S.W.2d at 224, or are at least capable of conveying a false impression about the plaintiff, Braun v. Flynt, 726 F.2d 245, 253 (5th Cir.), cert. denied sub nom., Chic Magazine, Inc. v. Braun, 469 U.S. 883, 105 S.Ct. 252, 83 L.Ed.2d 189 (1984).

The jury was instructed that theft occurs when a person, "without the owner's consent, appropriates property with the intent to deprive the owner of said property." See TEX.PENAL CODE ANN. § 31.03 (Vernon 1989 and Supp.1991). Mendez testified that he did not intend to steal the nails and that he did not tell anyone that he intended to steal them. When asked why he agreed with Hoffman's assessment that he was stealing, Mendez indicated that he was intimidated by the supervisors. He testified that the supervisors were always telling the employees "how everything was. And it got to a point to where you either agreed with them or, if you didn't, you were going to get fired anyway." He also testified that when he made the admission, he was unaware of the true definition of stealing. Billings testified that Mendez said he intended to steal the nails. Hoffman did not remember Mendez saying that, but he said that it was his impression from the whole conversation that Mendez intended to steal the nails.

Viewing only the evidence and inferences in favor of the jury finding, we conclude that there was evidence of probative force in support of the finding. In re King's Estate, 244 S.W.2d at 661. Viewing all the evidence, we cannot say that the evidence in support of the jury's finding is so weak as to render the finding clearly wrong and manifestly unjust. Cain, 709 S.W.2d at 176. Moreover, we may not substitute our judgment for that of the jury. Lofton v. Texas Brine Corp., 777 S.W.2d 384, 387 (Tex.1989). The jury was entitled to believe Mendez' testimony.

Diamond Shamrock's second argument under its first point is that the evidence is legally and factually insufficient to support the jury's finding that it publicized the accusation of theft. Section 652E of the Restatement does not define "publicity." Comment a of section 652E refers instead to the definition at section 652D: ²

"Publicity," ... means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.

RESTATEMENT (SECOND) OF TORTS § 652D comment a (1977). Widespread publicity is required. Moore, 828 F.2d at 274.

Knowledge of Mendez' termination became disseminated throughout the Three Rivers community. Diamond Shamrock contends that there was no evidence that it was responsible for publicizing the information to the public at large. Billings, however, told his supervisors of Mendez' termination. These were people who had to know in order that Mendez' position would be filled and his duties discharged. Billings testified that the supervisors would have had to tell some of their employees, such as the operators. Clayson Royal, a chief operator, testified that Billings told him of Mendez' termination later that morning. He further testified that Billings did not...