Hancock v. Variyam

• Citation: 345 S.W.3d 157
• Decision Date: 17 August 2011
• Docket Number: No. 07–09–0277–CV.,07–09–0277–CV.
• Parties: Joseph E. HANCOCK, Appellant,v.Easwaran P. VARIYAM, Appellee.
• Court: Court of Appeals of Texas

345 S.W.3d 157

Joseph E. HANCOCK, Appellant,

v.Easwaran P. VARIYAM, Appellee.

No. 07–09–0277–CV.

Court of Appeals of Texas, Amarillo,Panel C.

June 16, 2011.Rehearing Overruled Aug. 17, 2011.

Donald M. Hunt, Lawrence M. Doss, Mullin Hoard & Brown, L.L.P., Lubbock, TX, for Appellant.Robert W. St. Clair, Fargason, Booth, St. Clair, Richards & Wilkins, L.L.P., Lubbock, TX, for Appellee.Before QUINN, C.J., HANCOCK and PIRTLE, JJ.¹

OPINION

PATRICK A. PIRTLE, Justice.

Appellant, Joseph E. Hancock, appeals from a judgment entered in a defamation action in favor of Appellee, Easwaran P. Variyam, following a jury trial. In support, Hancock presents three issues: (1) whether the trial court erred in finding as a matter of law that Hancock's written statements were libel per se; (2) whether Variyam's evidence of damages is legally and factually insufficient; and (3) whether the trial court erred in admitting an anonymous letter at trial. We affirm.

Background

At all relevant times, Hancock and Variyam were physicians practicing internal medicine and gastroenterology at the Texas Tech University Medical Center in Lubbock, Texas. Both men were on the faculty of Texas Tech. Variyam was formerly the Chief of the Gastroenterology Division from September 2000 until January 2006, and as such, he was Hancock's supervisor when the following events occurred.

On the morning of January 2, 2006, a dispute arose between the two physicians related to the transfer of patients from Hancock's care to Variyam's care. After Variyam wrote a letter to Hancock alleging he had disregarded patient care, Hancock responded with a letter of resignation wherein he stated, in pertinent part, as follows:

Please find a copy of letter from Dr. Variyam letter (sic) which I received today. Due to Dr. Variyam's reputation for lack of veracity, a majority of my communications and interactions is (sic) recorded or witnessed and subsequently verified as in this case.

My telephone conversation was over the speakerphone and witnessed by a third party who will dispute Dr. Variyam's position. The interaction by and through the Department of Internal Medicine this morning is again refutable.

Dr. Variyam deals in half truths, which legally is the same as a lie.

It is Dr. Variyam's ethical behavior that should be challenged.

Hancock addressed his letter to Bernhard Mittemeyer, Dean of the School of Medicine, and copied Donald Wesson, Chair of Internal Medicine, David Hodges, Associate Professor and Director of the UMC Endoscopy Center, Variyam and the Accreditation Council for Graduate Medical Education (ACGME) in Chicago, Illinois.² In February of 2006, Variyam was removed as Chief of the Gastroenterology Division.

In December 2006, Variyam filed an original petition alleging that Hancock's letter had defamed him. Variyam sought special damages for loss of past and future income as well as general damages for injury to his reputation and mental anguish. He also sought exemplary damages. In November 2008, Variyam and Hancock filed an agreed order wherein Variyam agreed to forego special damages arising out of his removal as Chief of the Gastroenterology Division, but retained his defamation claim under a per se theory. Hancock continued to assert truth as an affirmative defense.

In May 2009, a three day jury trial was held. At its conclusion, the trial court found that the statements in Hancock's letter were libel per se. The jury rejected Hancock's affirmative defense by finding that his statements ³ regarding Variyam were not substantially true at the time they were made and that, by clear and convincing evidence, the harm to Variyam resulted from malice on Hancock's part. The jury awarded Variyam actual damages of $90,000 ⁴ and exemplary damages of $85,000. Variyam was also awarded prejudgment interest of $6,455.68 and court costs. This appeal followed.

Discussion

Hancock contends the trial court erred by finding, as a matter of law, that his statements were libel per se because the statements were ambiguous and did not injure Variyam in his office or occupation as a physician. He also asserts that the evidence is legally and factually insufficient to justify any award for mental anguish or injury to reputation. He contends Variyam failed to prove that Hancock's statements caused him any damage and, alternatively, that the trial court erred by not issuing a jury instruction on proximate cause. Lastly, he asserts the trial court erred by admitting an anonymous letter at trial.

Issue One—Libel per se

Defamation is generally defined as the invasion of a person's interest in his or her reputation and good name. Prosser & Keeton on Torts § 111, at 771 (5th ed. 1984 & Supp. 1988). Defamation claims are divided into two categories depending on how the defamatory statement was communicated: libel for written communications and slander for oral communications.⁵

Defamation claims are also divided into two categories, defamation per se and defamation per quod, according to the level of proof required in order to make them actionable. Texas Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 580 (Tex.App.-Austin 2007, pet. denied); Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex.App.-Waco 2005, no pet.). Statements that are defamatory per quod are actionable only upon allegation and proof of damages. Texas Disposal, 219 S.W.3d at 580; Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex.App.-Corpus Christi 2003, no pet.). That is, before a plaintiff can recover for defamation per quod, he must carry his burden of proof as to both the defamatory nature of the statement and the amount of damages caused by the publication of that statement. Texas Disposal, 219 S.W.3d at 580; See also Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex.1984); Peshak v. Greer, 13 S.W.3d 421, 426 (Tex.App.-Corpus Christi 2000, no pet.). By contrast, in cases involving defamation per se, damages are presumed to flow from the nature of the defamation itself and, in most situations, a plaintiff injured by a defamatory per se communication is entitled to recover general damages without specific proof of the existence of harm. Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex.2002) (“Our law presumes that statements that are defamatory per se injure the victim's reputation and entitle him to recover general damages, including damages for loss of reputation and mental anguish.”); Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 501 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); but see Gertz v. Robert Welch, Inc., 418 U.S. 323, 347–48, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (holding that, so long as they do not impose liability without fault, States are free to define for themselves the appropriate standard of liability in defamation suits where a private plaintiff sues a media defendant for speech involving a public issue). The United States Supreme Court later clarified that the constitutional requirements of Gertz do not prohibit the application of strict liability to defamation suits involving private-figure plaintiffs who sue nonmedia defendants for speech involving nonpublic issues. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760–61, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). In suits involving such situations, courts applying Texas law have applied strict liability in defamation per se causes of action. See Thomas–Smith v. Mackin, 238 S.W.3d 503, 509 (Tex.App.-Houston [14th Dist.] 2007, no pet.); Peshak v. Greer, 13 S.W.3d 421, 425–26 (Tex.App.-Corpus Christi 2000, no pet.); Snead v. Redland Aggregates Ltd., 998 F.2d 1325, 1334 (5th Cir.1993). Because the decision whether an alleged defamatory statement is defamatory per se or per quod affects the level of proof required, that question is initially determined by the trial court as a matter of law. Turner v. KTRK TV., Inc., 38 S.W.3d 103, 114 (Tex.2000); Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 654–55 (Tex.1987).

A communication is considered libel per se when it is so obviously hurtful to the person aggrieved that no proof of its injurious character is required to make it actionable. Clark v. Jenkins, 248 S.W.3d 418, 437 (Tex.App.-Amarillo 2008, pet. denied), cert. denied, ––– U.S. ––––, 130 S.Ct. 52, 175 L.Ed.2d 21 (2009); Houseman v. Publicaciones Paso Del Norte, S.A. DE C.V., 242 S.W.3d 518, 524 (Tex.App.-El Paso 2007, no pet.). A false statement will typically be classified as defamatory per se if it injures a person in his office, profession, or occupation; Morrill v. Cisek, 226 S.W.3d 545, 549 (Tex.App.-Houston [1st Dist.] 2006, no pet.); charges a person with the commission of a crime; Leyendecker, 683 S.W.2d at 374; or imputes to him a loathsome disease. Bolling v. Baker, 671 S.W.2d 559, 570 (Tex.App.-San Antonio 1984, no writ).

Whether a given statement is reasonably capable of a defamatory meaning is a question to be decided by the trial court as matter of law. See Musser, 723 S.W.2d at 654–55. The trial court should construe the alleged defamatory communication as a whole in light of the surrounding circumstances based upon how a reasonable person of ordinary intelligence would perceive it, considering the surrounding circumstances and the context of the statement. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 153 (Tex.2003), cert. denied, 545 U.S. 1105, 125 S.Ct. 2557, 162 L.Ed.2d 276 (2005); Turner, 38 S.W.3d at 114. This is an objective test, not a subjective one. New Times, Inc., 146 S.W.3d at 157. Thus, the parties' opinion of the statements, Musser v. Smith, 690 S.W.2d 56, 58 (Tex.App.-Houston [14th Dist.] 1985), aff'd, 723 S.W.2d 653 (Tex.1987), or the defendant's intent in making the statements have no bearing on whether they are defamatory. Peshak, 13 S.W.3d at 426 (“We assume the words were intended because they were used.”) “Common sense requires courts to understand the statement as ordinary men and women would”; Moore, 166 S.W.3d at 385, and the question...