Med. Gardens, LLC v. Wikle
| Decision Date | 29 May 2013 |
| Docket Number | No. 07-12-00111-CV,07-12-00111-CV |
| Parties | MEDICAL GARDENS, LLC; SHADOW HILLS SHOPPING CENTER, LLC; AND DAVID FLEMING, INDIVIDUALLY, APPELLANTS v. LEIGH ANN WIKLE, APPELLEE |
| Court | Texas Court of Appeals |
On Appeal from the 99th District Court
Lubbock County, Texas
Trial Court No. 2010-554,778, Honorable William C. Sowder, Presiding
Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1
Medical Gardens, LLC (Medical Gardens), Shadow Hills Shopping Center, LLC (Shadow Hills), and David Fleming (Fleming) appeal from a judgment entered in favor of Leigh Ann Wikle (Wikle). She sued them and others alleging causes of action for breached contract, breach of fiduciary duty, tortious interference with existing business relationship, and defamation. Trial was to a jury which found, among other things, that1) Medical Gardens and Shadow Hills breached their contracts with Wikle, 2) Fleming tortiously interfered with Wikle's Shadow Hills agreement, and 3) Fleming defamed Wikle, among other things. The issues before us concern whether there existed sufficient evidence to support the jury's finding that the defamation caused Wikle to suffer damages of $45,000 to her reputation in the past and whether the trial court erred in purportedly failing to require Wikle to segregate her attorney's fees incurred in prosecuting her claims against Medical Gardens from those incurred in pursing her Shadow Hills' causes of action. We affirm.
Fleming manages, leases, and sells commercial realty. He finds property that he believes will make a profit, puts together a group of investors, and then manages and leases the real estate on behalf of those investors. Medical Gardens and Shadow Hills were two such investment groups he formulated and for whom he acts as property manager.
No one disputes that Wikle was an investor/member of both Medical Gardens and Shadow Hills. Nor is it disputed that Fleming caused her expulsion from those investment opportunities. Similarly uncontested is that he defamed her while causing her to be so expelled; that is, he does not contest the jury's finding that his words "create[d] the substantially false and defamatory impression that . . . Wikle was in breach of the Company Agreements." Whether that defamation resulted in Wikle suffering damage to her reputation prior to trial in the sum of $45,000 is being disputed. Because no evidence allegedly supports the award, each appellant prays that it bereversed and that we "RENDER a take-nothing judgment in favor of Appellants relative to Ms. Wikle's defamation claim against Mr. Fleming."3 Wikle responded by arguing not only that various of the defamatory statements were defamatory per se requiring that damage to her reputation be presumed but also that some evidence supports the monetary award. We overrule the issue.
It is true that the mere proof of a defamatory statement does not necessarily entitle one to recovery. Often, the complainant must also show injury. This is not so, though, if the statements are defamatory per se. Hancock v. Variyam, No. 11-0772, 2013 Tex. LEXIS 394, at *6 . Such utterances "are [deemed] so obviously hurtful to a plaintiff's reputation that the jury may presume general damages, including for loss of reputation and mental anguish."4 Id. Furthermore, the category of statements that are per se defamatory include 1) those accusing one of untruthfulness, dishonesty or fraud, State Medical Ass'n v. Committee for Chiropractic. Education, Inc., 236 S.W.2d 632, 634 (Tex. Civ. App.-Galveston 1951, no writ); Hibdon v. Moyer, 197 S.W. 1117, 1118 (Tex. Civ. App.-El Paso 1917, no writ), 2) those that impute to the complainant the commission of a crime, indicate he contracted a loathsome disease, or indicate that he engaged in sexual misconduct, and 3) those causing injury to a person's office, business, or profession. Hancock v. Variyam, 2013 Tex. LEXIS 392, at *15; Oliva v. Davila, 373 S.W.3d 94, 101 (Tex. App.-Dallas 2011, pet. denied); In re Jennings, 203 S.W.3d 32, 36 (Tex. App.-San Antonio 2006, orig. proceeding).
Whether a statement is defamatory per se is a question of law. Hancock v. Variyam, No. 11-0772, 2013 Tex. LEXIS 394, *13-14. And, while there is a presumption of general damages if the comments are per se defamatory, no particular amount beyond nominal is presumed. Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012); see e.g. MBM Financial Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 665 (Tex. 2009) (). That is, ". . . nominal damages are awarded when 'there is no proof that serious harm has resulted from the defendant's attack upon the plaintiff's character and reputation' or 'when they are the only damages claimed, and the action is brought for the purpose of vindicating the plaintiff's character by a verdict of a jury that establishes the falsity of the defamatory matter.'" Hancock v. Variyam, No. 11-0772, 2013 Tex. LEXIS 394, at *11-12. So, to award more than a nominal sum, the jury must have evidence before it to support its decision. Id. at *13 (); Bentley v. Bunton, 94 S.W.3d 561, 605-06 (Tex. 2002) (). With that said, we now address the issue urged by appellants.
Here, the record contains the following evidence. First, Fleming drafted various letters to be used in causing Wikle's expulsion from each investment group. Second, the letters were sent to the membership of each group. Third, in those letters, Fleming expressly invoked a provision of the agreements under which he formed Medical Gardens and Shadow Hills that permitted the removal of an investor/member for "fraud, theft, or gross negligence against the Company." Fourth, the letters also contained allegations of multiple instances of misconduct by Wikle purporting to evince "fraud,theft, or gross negligence." Fifth, only some of those supposed examples of misconduct pertained to the properties or operations of either Medical Gardens or Shadow Hills. Sixth, Wikle testified that Fleming wrote the letters to "make her look bad," "taint" her, and harm her reputation in the real estate community. Seventh, through the letters, Fleming accused Wikle of things such as 1) filing a complaint against him with the Texas Association of Realtors which complaint allegedly "insinuat[ed] that [he] personally was withholding the money due her for a commission on [a] . . . lease," 2) presenting Medical Gardens with a bill for over $4000 for "a general contractor fee" for a project that allegedly did not require a general contractor, 3) refusing to sign the consent form and guaranty required for a loan for a remodeling project at Medical Gardens, 4) violating the terms of a Property Management Agreement on another property by altering the agreement without his consent, 5) refusing to "allow the member buyout provisions" (i.e. provisions allowing for the buyout of a member or partner) of another investment property agreement, 6) filing an unfounded felony theft and embezzlement complaint against him, 7) helping another individual file an unfounded complaint against him with the Texas Real Estate Commission, and 8) voting to remove Fleming as the property manager of another property. Eighth, Fleming agreed to indemnify each entity from any attorney's fee "required to enforce this expulsion" and "fund the required expulsion price to the LLC." Ninth, he also informed them that the expulsion could be "done in writing without holding a meeting" and that "it is best to handle the situation in this manner" since he had "been insulating . . . [his] investors from the grief that [h]as been brought upon me by a former employee." (Emphasis added). So, a "meeting . . . to air these complaints would not be beneficial to anyone," in his view, and that lead him to attach "a proxy vote sheet" to the letters. Tenth, one could reasonably infer that thelack of a formal meeting would tend to hamper Wikle's ability to personally address the accusations. Eleventh, his success in ousting Wikle from the Medical Gardens group was also cited as a reason for expelling her from Shadow Hills.5 Twelfth, the investment agreements required unanimity among the remaining members to successfully expel a member. Thirteenth, Fleming had earlier threatened Wikle (via email) with "becom[ing] [her] worst nightmare," vowing that though he "may not win anything . . . you will be out a lot of money for attorney's fees and your reputation in the local real estate community will be sever[e]ly damaged." Fourteenth, due to the manner in which Fleming described Wikle's conduct, one of her business partners testified that she had the impression Wikle was charging more than necessary, believed that Wikle had engaged in wrongful acts, and that a person who took advantage of a situation once would try to do so again. Fifteenth, another co-investor testified that he thought Wikle was trying to gain control of certain properties. Sixteenth, the jury found that Fleming's accusations in the letters "omitt[ed] material facts" or "juxtapos[ed] facts in a misleading way" to create a "substantially false and defamatory impression" of Wikle's conduct viz her investor agreements with Medical Gardens and Shadow Hills, which finding Fleming does not contest.
It cannot reasonably be denied that those false utterances were made to divest Wikle of various business interests, implicated and impugned the manner in which she operated her business affairs, were cited as examples of fraud, theft, or wrongdoing against the entities from which she was removed, and induced her co-investors to expel her. Nor can it reasonably be denied that the characteristics of truthfulness, honesty, and fidelity are qualities that are, or at least...
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