Johnson v. Randall's Food Markets, Inc.

• Court: Texas Court of Appeals
• Writing for the Court: JACKSON B. SMITH, Jr.; O'CONNOR; COHEN; O'CONNOR; COHEN
• Citation: Johnson v. Randall's Food Markets, Inc., 869 S.W.2d 390 (Tex. App. 1993)
• Decision Date: 31 August 1993
• Docket Number: No. 01-92-1053-CV,01-92-1053-CV
• Parties: 129 Lab.Cas. P 57,792 Mary Lynn JOHNSON, Appellant, v. RANDALL'S FOOD MARKETS, INC., Mike Seals, Lewis Simmons, and Vernon Frank Davis, Appellees. (1st Dist.)

Page 390

869 S.W.2d 390

129 Lab.Cas. P 57,792

Mary Lynn JOHNSON, Appellant, v. RANDALL'S FOOD MARKETS, INC., Mike Seals, Lewis Simmons, and Vernon Frank Davis, Appellees.

No. 01-92-1053-CV.

Court of Appeals of Texas Houston (1st Dist.).

Aug. 31, 1993.

Rehearing Denied Jan. 6, 1994.

Mark W. Stevens, Houston, for appellant.

Holly H. Williamson, Jay H. Henderson, Houston, for appellees.

Before SMITH, O'CONNOR and COHEN, JJ.

OPINION

JACKSON B. SMITH, Jr., Justice ¹.

This appeal concerns the propriety of a summary judgment granted to four defendants in a case involving allegations of conspiracy, slander, intentional infliction of emotional distress, "breach of contract and wrongful discharge," tortious interference with contract, and false imprisonment. We reverse and remand in part and affirm in part.

The plaintiff-appellant, Mary Lynn Johnson (Johnson), is a former manager of the Randall's grocery store in Galveston. The defendant-appellees are (1) Randall's Food Markets, Inc. (Randall's), the owner of the Galveston Randall's store (the store); (2) Mike Seals (Seals), the Randall's district manager whose district includes the store; (3) Lewis Simmons (Simmons), the store's director; and (4) Vernon Frank Davis (Davis), a clerk at the store.

The trial court granted summary judgment to the appellees on all claims asserted in Johnson's second amended petition. In point of error 12, Johnson argues that the trial court "erred in overruling plaintiff's motion for leave to amend, or alternatively in basing its decision on the basis of the second amended original complaint." Because this point of error presents the question of which petition the trial court should have considered to be the relevant petition for summary judgment purposes, we address this point first.

The summary judgment hearing was set for June 4, 1992, at 3 p.m. Approximately five minutes before the hearing, Johnson filed a "motion for leave to amend." The court proceeded with the summary judgement hearing without ruling on Johnson's motion.

The following day, Johnson filed her third amended petition, without leave of court. That petition included new factual allegations and two new causes of action.

On June 12, the trial court held a hearing on Johnson's motion for leave to amend, and on June 24 denied Johnson's motion, and ordered her third amended petition struck.

Rule 63 of the Texas Rules of Civil Procedure states in part:

[A]ny pleadings ... offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.

Rule 166a(c) states that "[e]xcept on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve ... other written response."

It is uncontested that the appellant never obtained leave of court to file her third amended petition. It is also uncontested that her third amended petition had not been filed at the time the defendants' motion for summary judgment was heard on June 4, 1992. Appellant did attempt to obtain leave of court to amend her pleadings a few minutes before the summary judgment hearing.

Unfortunately, we have nothing in our record to show what transpired at the June 4 summary judgment hearing or at the June 12 hearing on the plaintiff's "leave to amend" motion. Thus, we do not know what matters were presented or argued to the trial judge, and we do not know what facts the trial judge had to weigh and consider in making his decision on the appellant's motion to amend. We have only the motion itself and the plaintiff's third amended petition, which was filed after the hearing without permission and ordered struck by the court.

A summary judgment proceeding is a trial within the meaning of rule 63 and the Texas courts have given that rule liberal interpretation in granting leave to file late pleadings. Goswami v. Metropolitan Savings & Loan Ass'n, 751 S.W.2d 487, 490 (Tex.1988). However, when the record presented to us does not contain a transcript of what transpired at the hearings about which the appellant complains, we cannot and should not speculate as to the reasons why a trial judge made a certain decision. See Glenn v. Kinco Crane, Inc., 836 S.W.2d 646, 648 (Tex.App.--Houston [1st Dist.] 1992, no writ).

The standard of review in determining whether a trial court erred in granting or denying a motion is abuse of discretion. See Glenn, 836 S.W.2d at 648. Under the record presented to us, we cannot say the trial court abused its discretion in refusing to grant leave to appellant to file her third amended petition.

We overrule point of error 12.

Johnson argues points of error one and two together. In point of error one, she contends that the trial court erred in granting summary judgment "as to allegations of defamation" ² involving accusations that she stole a Christmas wreath from the store.

If the summary judgment proof does not establish, as a matter of law, that there are no genuine issues of material fact as to one or more of the essential elements of Johnson's cause of action, the summary judgment should be reversed. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Palmer v. Liles, 677 S.W.2d 661, 664 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). When deciding whether such a fact issue exists, we take evidence favorable to Johnson, as the nonmoving party, as true, and indulge every reasonable inference in her favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Anders v. Mallard & Mallard, Inc., 817 S.W.2d 90, 93 (Tex.App.--Houston [1st Dist.] 1991, no writ). We resolve all doubts in her favor, as well. See Nixon, 690 S.W.2d at 549.

Texas courts have consistently held "slander" to be a defamatory statement that is orally communicated or published to a third person without legal excuse. Diaz v. Rankin, 777 S.W.2d 496, 498 (Tex.App.--Corpus Christi 1989, no writ); Ramos v. Henry C. Beck Co., 711 S.W.2d 331, 333 (Tex.App.--Dallas 1986, no writ); see Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.--Dallas 1991, writ denied); Holloway v. Texas Medical Ass'n, 757 S.W.2d 810, 814 (Tex.App.--Houston [1st Dist.] 1988, writ denied). Allegedly slanderous statements must be construed as a whole, in the light of surrounding circumstances, and based upon how a person of ordinary intelligence would perceive them. Diaz, 777 S.W.2d at 498-99. When the court determines that the language of which the plaintiff complains is ambiguous, a jury should be permitted to determine the statement's meaning and the effect the statement has on the ordinary listener. Id. at 499. That the allegedly defamatory statement is true is an affirmative defense in an action for slander, and the defendant has the burden of proving truth. Town of South Padre Island v. Jacobs, 736 S.W.2d 134, 140 (Tex.App.--Corpus Christi 1986, writ denied); Frank B. Hall & Co. v. Buck, 678 S.W.2d 612, 623 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.); see Little v. Bryce, 733 S.W.2d 937, 938 (Tex.App.--Houston [1st Dist.] 1987, no writ).

Johnson pled that she was slandered when Seals, Simmons, and Davis orally published, falsely, that she had "stolen" a Christmas wreath. Specifically, she pled that Davis published the accusation to Simmons and Seals, and that Simmons and Seals then repeated it to various other Randall's employees. The appellees submitted summary judgment evidence that tended to show that, far from accusing Johnson of theft, they considered her motive for removing the wreath from the store an open question.

Johnson submitted summary judgment evidence that tended to show that the Randall's personnel believed that she had stolen the wreath, and were publishing the incident as a theft. Johnson does not dispute that she removed the wreath from the store without paying for it. However, she contends that this occurred because she had a lot on her mind and also due to the fault of Davis, the clerk who allowed her to pass his cash register station after clearly seeing the wreath, but not charging her for it as he had for her other items, or even asking her about it. She paid for the wreath the next morning when the matter was called to her attention.

The false imputation of the act of theft to an individual constitutes slander. Ramos, 711 S.W.2d at 334. Johnson's evidence was that:

(1) Barclay (Seals' superior) stated that, from his conversation with Seals, he understood Seals to be saying that Johnson "misappropriated" the wreath, and that, from their conversation, he also formed that opinion;

(2) After the incident, Johnson was suspended without pay for 30 days, while the maximum suspension allowable under Randall's policy is 21 days;

(3) Barclay mandated that Johnson take a polygraph test as a condition of reinstatement;

(4) The Randall's security officer who took Davis' report of the incident concluded that Johnson should be prosecuted for theft.

Citing Southwestern Bell Tel. Co. v. Dixon, 575 S.W.2d 596 (Tex.Civ.App.--San Antonio 1978), writ dism'd w.o.j., 607 S.W.2d 240 (Tex.1980), the appellees argue that their statements were conditionally privileged. We acknowledge the rule of that case that a report of wrongdoing establishes a defendant's conditional privilege to make inquiries or investigations. Id. at 599.

However, once a conditional privilege is established, it may be lost by a showing of malice. Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 630 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Dixon, 575 S.W.2d at 599. A statement is made with malice when the speaker entertained serious doubts as to the truth of his statement, but made it anyway. Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989); Salazar, 682 S.W.2d at 631.

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