Mitre v. Brooks Fashion Stores, Inc.

• Decision Date: 31 August 1992
• Docket Number: No. 13-91-370-CV,13-91-370-CV
• Citation: 840 S.W.2d 612
• Parties: Gonzalo MITRE and Monica Aguirre Canseco, Appellants, v. BROOKS FASHION STORES, INC., et al., Appellees.
• Court: Texas Court of Appeals

Page 612

840 S.W.2d 612

Gonzalo MITRE and Monica Aguirre Canseco, Appellants, v. BROOKS FASHION STORES, INC., et al., Appellees.

No. 13-91-370-CV.

Court of Appeals of Texas Corpus Christi.

Aug. 31, 1992.

Rehearing Overruled Nov. 6, 1992.

M. Lloyd Seljos, McAllen, for appellants.

Jaime A. Drabek, Hirsch, Glover, Robinson & Sheiness, Kathleen H. Henley, Willette & Associates, John William Black, Black, Hamilton, Roerig & Yanez, Brownsville, Kathleen Walsh Beirne, Kruse, Laser & Griffin, Houston, Stephen C. Haynes, Anthony B. James, Thornton, Summers, Biechlin, Dunham & Brown, McAllen, Patricia Kelly, Roger W. Hughes, Adams & Graham, Harlingen, Edward G. Aparicio, Michael E. Hearn, Jones, Galligan, Key & Pena, Weslaco, Alan J. Couture, Brin & Brin, P.C., Corpus Christi, for appellees.

Before SEERDEN, KENNEDY and GILBERTO HINOJOSA, JJ.

OPINION

SEERDEN, Justice.

Gonzalo Mitre and Monica Canseco appeal from a take-nothing summary judgment granted against them on their claims for defamation, intentional infliction of emotional distress, invasion of privacy, negligence and gross negligence against individual stores in a shopping mall in McAllen, Texas, ¹ which allegedly displayed pictures of Mitre and Canseco falsely accusing them of passing counterfeit money. We reverse in part, and affirm in part.

By their First Amended Original Petition, Mitre and Canseco sued both La Plaza Mall ² and the individual stores for libel and slander (i.e., defamation), intentional infliction of emotional distress, invasion of privacy, negligence, gross negligence, and a violation of the Texas Deceptive Trade Practices Act. The petition alleged that Mitre, Canseco and Olga Verduzco went shopping together in the La Plaza Mall in McAllen, Texas. While apart from the other two and shopping at Brooks Fashion Stores, Verduzco attempted to pay for clothing with hundred dollar bills which the store clerk believed to be counterfeit. A mall security officer detained Verduzco while a McAllen Police Officer confirmed with a local financial institution that the bills were not counterfeit. However, before finding out that the bills were not counterfeit, the mall security officer obtained photographs from Verduzco of Mitre and Canseco, under the guise of helping her to find the other two. Mall security made copies of the photographs and distributed them to the shops in the mall, telling them that the people in the photographs, Mitre and Canseco, were passing counterfeit bills in the mall. These shops then prominently displayed the photographs and told anyone that inquired that the people in the photographs had been passing counterfeit bills in the mall. Numerous people that knew Mitre and Canseco saw the photographs and heard that they were being accused of passing counterfeit bills.

The shops answered by general denial and, among other things, asserted the affirmative defense of a conditional or qualified privilege to communicate the allegedly defamatory matters, and that they acted in good faith, with proper motive, and without malice. In addition, the shops all filed substantially similar motions for summary judgment on all causes of action asserted by Mitre and Canseco. ³ All parties then filed summary judgment evidence in the form of affidavits and deposition excerpts. ⁴ The trial court granted summary judgment for the individual mall shop defendants, and severed the claims against them into a separate cause of action from the claims against La Plaza Mall.

On appeal, Mitre and Canseco complain generally that the trial court erred in granting summary judgment because material issues of fact remain on all of their causes of action. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. In deciding whether there is a disputed material fact issue precluding a summary judgment, evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in the non-movant's favor, and any doubts must be resolved in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant who moves for summary judgment has the burden of showing by summary judgment evidence that at least one element of the plaintiff's cause of action has been conclusively established against the plaintiff. Sakowitz, Inc. v. Steck, 669 S.W.2d 105 (Tex.1984); Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970).

In addition, a motion for summary judgment must specifically set forth the grounds relied upon, on the basis of which it will either stand or fall, and a summary judgment may not be granted on grounds which were not raised in the motion. See Wilson v. H.E. Butt Grocery Co., 758 S.W.2d 904, 906 (Tex.App.--Corpus Christi 1988, no writ); Life Insurance Co. of North America v. Klingler, 730 S.W.2d 32, 35 (Tex.App.--Corpus Christi 1987, writ ref'd n.r.e.); Ortiz v. Spann, 671 S.W.2d 909, 914 (Tex.App.--Corpus Christi 1984, writ ref'd n.r.e.) (on rehearing).

DEFAMATION

By their first through fifth points of error, Mitre and Canseco complain that the trial court erred in granting the summary judgment on their defamation actions. The mall shops raised as grounds for summary judgment on the defamation claims that the uncontradicted summary judgment evidence established that there was no publication of the defamatory material to any customer or third person, and that the shops had a qualified or conditional privilege with regard to materials given to them by mall security for the purpose of protecting their businesses. In addition, the shops raised as a ground for summary judgment generally on all claims that the summary judgment evidence conclusively showed that Mitre and Canseco suffered no compensable damages.

The managers for each of the ten shops submitted affidavits generally claiming that a La Plaza Mall security guard had given each a copy of the flyer containing the photographs of Mitre and Canseco. Some of the shops taped the flyer to or near the cash register for their employees to see, others taped it behind the counter, placed it on a clipboard located on a shelf near the cash register, or put it in a file. Half of the shops indicated that the flyer was placed where it was not visible to customers. Most of the managers also claimed that neither they nor their employees discussed the flyer with anyone, and that the photographs on the flyer were so dark as to be "not recognizable" or "almost not recognizable." All of the managers claimed that they had never met Mitre or Canseco, that they relied on mall security personnel, and that they had no reason to doubt the information given to them by mall security.

In addition, the shops also offered excerpts from the depositions of Mitre and Canseco as summary judgment evidence. Mitre and Canseco testified that neither had suffered injuries any more severe than humiliation and embarrassment as a result of the incident. Both also testified that they believe that they still have good reputations in their community, and that their friends would disbelieve the accusations of counterfeiting, although Mitre was concerned that his neighbors might believe the accusations and give him a bad reputation.

Mitre and Canseco submitted the controverting affidavit of Bob Jeffreys, an investigator who claimed that when he had visited the mall, he saw the flyer displayed to the public in Brooks, Spencer, Attivo, Cutlery, Joe Brand, Jeans West, Lerners, 5-7-9, Joan Bari, and Oak Tree shops. A copy of the flyer was attached as an exhibit to Jeffreys' affidavit. It contains darkened copies of the photographs of Mitre and Canseco ⁵, who are listed as "suspects," with an admonition to the shops to "check your $100 bills," and a further notation of the serial numbers on two allegedly counterfeit $100 bills.

Specifically by their first point of error, Mitre and Canseco complain that they raised an issue concerning whether the defamatory flyer was published.

Publication is either a negligent or an intentional act that communicates a defamatory matter to a person other than the person defamed. Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 921-22 (Tex.App.--Corpus Christi 1991, writ dism'd w.o.j.); First State Bank v. Ake, 606 S.W.2d 696, 701 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.). Moreover, it is not necessary that the plaintiff be named, so long as those who know and are acquainted with him understand that the defamatory publication referred to him. See Newspapers, Inc. v. Matthews, 161 Tex. 284, 339 S.W.2d 890, 894 (Tex.1960); Diaz v. Rankin, 777 S.W.2d 496, 499 (Tex.App.--Corpus Christi 1989, no writ).

In the present case, we are concerned with two general acts of publication: first, the distribution of the flyers by mall security to the individual managers, and the posting and discussion of the flyers between the employees of the individual shops; second, display of these flyers in a manner that they could be seen by the general public. The first act of publication is generally admitted by the shops, which nevertheless contend that these publications are protected by a conditional or qualified privilege.

With regard to the publication of the flyer to customers, however, the mall shops contend that the affidavits submitted by their managers constituted uncontroverted summary judgment evidence that the flyer was not visible to the public, that none of their employees discussed the flyer with the public, and that the images of Mitre and Canseco were not recognizable.

Tex.R.Civ.P. 166a(e) provides that affidavits submitted in support of or in opposition to a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." See Radio Station KSCS v. Jennings, 750 S.W.2d 760,...