Kelly v. Diocese of Corpus Christi

• Decision Date: 14 May 1992
• Docket Number: No. 13-91-287-CV,13-91-287-CV
• Citation: 832 S.W.2d 88
• Parties: Gregoria G. KELLY, et al., Appellants, v. DIOCESE OF CORPUS CHRISTI, et al., Appellees.
• Court: Texas Court of Appeals

Page 88

832 S.W.2d 88

Gregoria G. KELLY, et al., Appellants, v. DIOCESE OF CORPUS CHRISTI, et al., Appellees.

No. 13-91-287-CV.

Court of Appeals of Texas Corpus Christi.

May 14, 1992.

Rehearing Overruled June 18, 1992.

William J. Kolb, Jorge C. Rangel, Rangel & Chriss, Corpus Christi, for appellants.

Ken Dahlberg, Wood, Burney, Cohn & Bradley, Corpus Christi, Mike A. Hatchell, Molly H. Anderson, Ramey, Flock, Jeffus & Crawford, Tyler, for appellees.

Before NYE, C.J., and FEDERICO G. HINOJOSA, Jr. and DORSEY, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

Appellants sued appellees for defamation, and the trial court entered judgment on a directed verdict for appellees. Appellants complain that the trial court erred in ordering a directed verdict on their claims of defamation, conspiracy to defame, and intentional infliction of emotional distress. Appellants complain that the trial court also erred in excluding offered evidence as hearsay. We disagree and affirm the judgment of the trial court.

By their first point of error, appellants complain that the trial court erred in directing a verdict for appellees on the issue of defamation. Appellants argue that the trial court adopted an erroneous standard for malice by requiring them to show ill will or improper motive, while malice may be proven by showing that the person uttered a falsity with knowledge of its falsity. Appellants also argue that they presented evidence of every necessary element for a defamation action.

When we review a directed verdict, we view the evidence in the light most favorable to the party against whom the verdict was rendered and disregard all evidence and inferences to the contrary. If we determine that there is any evidence of probative value which raises a material fact issue, then we must reverse the judgment and remand the case for the jury's determination of that issue. Qantel Bus. Sys. v. Custom Controls, 761 S.W.2d 302, 303-304 (Tex.1988); Maxvill-Glasco Drilling Co., Inc. v. Royal Oil & Gas Corp., 800 S.W.2d 384, 386 (Tex.App.--Corpus Christi 1990, writ denied); Saenz v. Starry, 774 S.W.2d 730, 731 (Tex.App.--Corpus Christi 1989, writ denied). We must affirm a directed verdict, despite the fact that the rationale the trial court assigned for granting it was erroneous, provided it can be supported on another basis. C.S.R., Inc. v. Indus. Mechanical, Inc., 698 S.W.2d 213, 217 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.); Hutson v. City of Houston, 418 S.W.2d 911, 914 (Tex.Civ.App.--Houston [14th Dist.] 1967, writ ref'd n.r.e.); Flores v. Logan, 307 S.W.2d 813, 813 (Tex.Civ.App.--San Antonio 1957, writ ref'd n.r.e.).

A directed verdict under TEX.R.CIV.P. 268 is proper only under limited circumstances, e.g.: where 1) a specifically indicated defect in the opponent's pleading makes it insufficient to support a judgment, or 2) the evidence proves conclusively the truth of fact propositions which, under the substantive law, establishes the right of the movant, or negates the right of his opponent to judgment; or 3) the evidence is insufficient to raise an issue of fact as to one or more fact propositions which must be established for the opponent to be entitled to judgment. Texas Employers Ins. Ass'n v. Duree, 798 S.W.2d 406, 408 (Tex.App.--Fort Worth 1990, writ denied); Rudolph v. ABC Pest Control, Inc., 763 S.W.2d 930, 932 (Tex.App.--San Antonio 1989, writ denied); Rowland v. City of Corpus Christi, 620 S.W.2d 930, 932-33 (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.). Although Rule 268 provides that a motion for instructed verdict shall state the specific grounds therefor, failure to so state is not always fatal, especially if there are no fact issues raised by the evidence. Texas Employers Ins. Ass'n v. Page, 553 S.W.2d 98, 102 (Tex.1977). The trial court may properly withdraw a case from the jury and instruct a verdict if there is no evidence to support a material issue. Porterfield v. Brinegar, 719 S.W.2d 558, 559 (Tex.1986).

Slander is a defamatory statement 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). Whether the words are reasonably capable of the defamatory meaning the plaintiff attributes to them is a question of law for the trial court. Carr v. Brasher, 776 S.W.2d 567, 570 (Tex.1989). Allegedly libelous or slanderous statements must be construed as a whole, in light of surrounding circumstances, based upon how a person of ordinary intelligence would perceive the entire statement. Only when the court determines the complained-of 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 listener. Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex.1987); Diaz, 777 S.W.2d at 499-500.

If the defendant shows that a privilege exists, the plaintiff must also establish abuse of that privilege. Ramos v. Henry C. Beck Co., 711 S.W.2d 331, 335 (Tex.App.--Dallas 1986, no writ); Houston v. Grocer's Supply Co., Inc., 625 S.W.2d 798, 800 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ). Since we are reviewing a directed verdict, if our analysis shows that there is any evidence of probative value which raises fact issues of actionable defamatory statements made by the appellees for which no privilege exists, then we must reverse the judgment of the trial court and remand the case for a jury to determine those fact issues.

A defamatory oral statement may be slander per se or slander per quod. Slander per se is actionable on its face, while slander per quod is actionable only upon pleading and proof of special damages. In general, oral words are not actionable without proof of special damages, unless they impute the commission of a crime or affect the defamed person injuriously in his office, profession or occupation. Bayoud v. Sigler, 555 S.W.2d 913, 915 (Tex.Civ.App.--Dallas 1977, writ dism'd). It is not necessary to prove actual damages where the words used are slanderous per se because the law presumes actual damages. Id. at 915. Items of special damage must be specifically stated and proved. Vista Chevrolet, Inc. v. Barron, 698 S.W.2d 435, 441 (Tex.App.--Corpus Christi 1985, no writ).

In 1987, Paul Kelly was a member of Our Lady of Perpetual Help Catholic Church in Corpus Christi, Texas, when he was befriended by Deacon John J. Feminelli, a transitional deacon preparing for the priesthood. Deacon Feminelli bought Paul gifts, gave him money, and proposed that they have wrestling matches. Paul expressed concern over Deacon Feminelli's actions to his mother, Mrs. Gregoria Kelly, and even told her, "The Deacon wants to fuck me." Mrs. Kelly wrote a letter to her pastor, Father Thomas P. Feeney and reported her son's allegations. The letter stated that a wrestling match had taken place for which Paul was paid $25.00 and requested that Father Feeney "address this problem." Neither Mrs. Kelly nor Paul ever said that any sexual contact occurred between Paul and Deacon Feminelli.

Father Feeney's superior, Bishop Rene H. Gracida, appointed a commission to investigate the allegations for the purpose of determining whether Deacon Feminelli had committed any act in violation of canon law that would prevent him from being ordained. The commission consisted of Monsignor Louis Kinehman, Monsignor James Tamayo, and Father Feeney. Both Paul and Mrs. Kelly appeared before the commission, and upon an oath of secrecy, they iterated Paul's statements that Deacon Feminelli had given him a guitar, a denim jacket, and cash payments, and that the deacon conditioned the gifts on Paul engaging him in wrestling matches. Paul also stated that the wrestling matches were to take place in a motel. Neither Paul nor Mrs. Kelly ever said that any sexual contact took place, and Paul stated that no wrestling match had occurred. The commission determined that no immoral genital contact had occurred and that no ecclesiastical impediment existed to prohibit Deacon Feminelli's ordination as a priest.

Before appearing before the commission, Mrs. Kelly sent a copy of the letter to Paul's father, Bob Kelly, in Beaumont. While the commission was investigating the allegations, Mr. Kelly contacted Dr. Larry Pirmantgen, a Eucharistic minister and an adult advisor for the Catholic youth ministry. Mr. Kelly read the letter to Dr. Pirmantgen, and Dr. Pirmantgen called Monsignor Kinehman to discuss the allegations. Monsignor Kinehman told Dr. Pirmantgen that he could neither confirm nor deny the existence of the letter but could state that an investigation was taking place. A week later, Monsignor Kinehman called Dr. Pirmantgen and stated that he believed the letter had been fabricated, that there was nothing in the letter to prevent Deacon Feminelli's ordination, and that he believed the letter was not true. Dr. Pirmantgen testified that Monsignor Kinehman said the entire letter was false and that Monsignor Kinehman used the word "fabricated" when referring to allegations in the letter about sexual misconduct.

Before Deacon Feminelli's ordination, Father Bill Elliott was approached by two parishioners who inquired about the letter. Even though Father Elliott had no prior knowledge of the letter or the investigation, he called Monsignor Kinehman because he was concerned about the allegations. Monsignor Kinehman told him that Paul had recanted the story.

Apparently, by this point, many parishioners had become aware of the investigation of Deacon Feminelli. The Diocese's personnel board met to discuss the ordination and to prepare for anticipated protests. At this meeting, according to Father Richard Shirley, Bishop Gracida stated that he had a letter of apology from Paul and that Paul admitted that he had made up the story. The ordination took place as scheduled. Spectators protested and were removed, and another group rose and...