Pruitt v Ziesmer
| Decision Date | 13 June 2002 |
| Docket Number | 140000054CV,14 |
| Parties | JESSE JAMES PRUITT and WILLIAM B. ANDERS, Appellants v. RONALD W. ZIESMER, AppelleeCourt of Appeals of Texas, Houston (14th Dist.) |
| Court | Texas Court of Appeals |
On Appeal from the 152nd District Court Harris County, Texas Trial Court Cause No. 97-59284
Panel consists of Justices Yates, Edelman, and Wittig.*
This lawsuit involves claims of defamation and tortious interference with business relations. Jesse Pruitt and William Anders appeal from a judgment favoring Ronald Ziesmer. The jury awarded Ziesmer a total of $570,000 in actual damages and $350,000 in exemplary damages. On appeal, appellants contend that: (1) Ziesmer's claims were barred by a summary judgment favoring their employer, Harris County, on substantially the same claims; (2) the evidence is legally and factually insufficient to support the jury's finding of liability; (3) the evidence conclusively establishes absolute privilege and release; (4) the evidence is legally and factually insufficient to support the jury's award of actual damages; and (5) the actual and exemplary damages found by the jury were excessive. We affirm.
I. Background
Ronald Ziesmer worked as an arson investigator for the Harris County Fire Marshal's Office. Appellant Pruitt was the Harris County Fire Marshal at the time, and appellant Anders was the Chief Arson Investigator. In February 1997, Ziesmer investigated a fire in a mobile home in Atascocita. According to the appellants, Pruitt and Anders considered the investigation and the resulting report to be inadequate and ordered Ziesmer to write a better report. According to Ziesmer, the appellants pressured him to alter his report in order to support the tenant in a dispute with the landlord over the cause of the fire. Although Ziesmer filed an amended report, he refused to change his determination as to the cause of the fire. His employment was subsequently terminated.1
On March 20, 1997, as part of the job application process with the Harris County Sheriff's Department, Ziesmer executed a Personal Inquiry Waiver Authority for Release of Information. After receiving the waiver, Sheriff's Deputy William Waller sent an "Employment Information" form to the Fire Marshal's Office inquiring about Ziesmer's job performance. Anders completed the form. In his answers, Anders characterized Ziesmer's attendance record as poor and his work performance as unsatisfactory. He further stated that Ziesmer did not accept supervision, got along with others "some what [sic]", and caused problems by "undermining supervision to causing low morale and disruption of team effort." Anders also indicated that Ziesmer was not honest and trustworthy and was not eligible for rehire. Deputy Waller testified that he also spoke to Anders in person, and Anders reiterated that Ziesmer was a poor performer and had poor attendance.
Ziesmer also sought a job with the Friendswood Fire Marshal's Office. Terry Byrd, the Friendswood Fire Marshal, testified that, in May 1997, Pruitt, who was Byrd's uncle, told him essentially that Ziesmer had no business being in law enforcement, was unfit to be a law officer, and was incompetent and unqualified. Byrd further stated that in a second conversation, Pruitt repeated these criticisms. Byrd also said that Pruitt claimed to have additional information about Ziesmer, but he refused to reveal it over the telephone. Leslie Deen testified that she overheard Pruitt telling Byrd that Ziesmer wrote a sloppy report, was incompetent and a lousy investigator, and should never have been in law enforcement. Approximately five to six weeks later, Byrd offered Ziesmer an unpaid position with the Friendswood Fire Marshal's Office. In December 1998, Ziesmer became a paid Assistant Fire Marshal in Friendswood.
Ziesmer filed suit against Pruitt, Anders, Harris County, and the Harris County Fire Marshal's Office, alleging wrongful termination, defamation, tortious interference with business relations, intentional infliction of emotional distress, and conspiracy. The defendants filed a series of motions for summary judgment. The trial court granted Harris County's and the Fire Marshal's Office's motions.2 Pruitt and Anders then filed a Plea in Bar on the basis of official immunity under § 101.106 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon 1997). The trial court ultimately denied the plea.
A jury determined that Pruitt and Anders each defamed Ziesmer and tortiously interfered with his ability to find work. The jury also found that Pruitt and Anders acted maliciously, in bad faith, and without privilege. In response to Pruitt and Anders's motion for judgment notwithstanding the verdict, the trial court struck the jury's answers regarding tortious interference as against Anders. The final judgment awarded total actual and exemplary damages in the amount of $295,000 against Anders and $625,000 against Pruitt.
II. Tex. Civ. Prac. & Rem. Code Ann. § 101.106
In their first four issues, appellants contend that operation of section 101.106 of the Civil Practice and Remedies Code barred Ziesmer's defamation and tortious interference claims because the trial court granted summary judgment favoring the county on those claims. Consequently, they contend the trial court erred in granting Ziesmer's motion for reconsideration of the summary judgment order and in denying their motion for judgment notwithstanding the verdict. Section 101.106 states:
A judgment in an action or a settlement of a claim under [the Texas Tort Claims Act] bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106. Basically, appellants contend that because Ziesmer originally pled his claims of defamation and tortious interference against the county as well as against them individually, the trial court's summary judgment order favoring the county bars Ziesmer's claims against them individually.3
The procedural chronology in this case is convoluted, but we list some events necessary to this appeal: (1) Harris County filed motions for summary judgment; (2) the trial court granted partial summary judgment for the county on "all . . . claims . . . except [the] whistleblower claim," but without specifically identifying on which claims judgment was granted; (3) Pruitt and Anders filed a Plea in Bar, claiming that (a) Ziesmer's pleadings alleged defamation and tortious interference against the county, (b) the partial summary judgment therefore covered those intentional tort claims, and (c) consequently, the same claims were barred as against Pruitt and Anders under section 101.106; (4) Ziesmer filed a Motion For Reconsideration contending that his petition did not allege the intentional torts against the county and that, therefore, the summary judgment did not address those claims; (5) Ziesmer filed a Third Amended Original Petition, which specifically avoided making the intentional tort claims against the county; (6) the trial court issued an opinion in which it interpreted Ziesmer's Second Amended Original Petition and the summary judgment order as being ambiguous as to whether they contemplated intentional tort claims against the county; and (7) the trial court issued a new order specifically stating the claims against the county on which summary judgment was being granted and specifically omitting defamation and tortious interference.
Appellants contend that as soon as the trial court signed the original order granting summary judgment on behalf of the county, the intentional tort claims were automatically and immediately barred as against the individual defendants. Although appellants do not expressly say so, their argument presupposes that a court's interlocutory summary judgment order becomes immediately final and irrevocable. This argument misinterprets both the nature of a trial court's plenary power over its own orders and the nature of the events which transpired in this case.
As noted, the trial court granted partial summary judgment favoring the county. It then issued an opinion explaining that Ziesmer's petition and the partial summary judgment order were ambiguous as to whether they addressed defamation and tortious interference claims against the county. In effect, the trial court did not reverse its grant of summary judgment on those issues; it simply clarified that its order did not address those claims. Consequently, the court denied the appellants' Plea in Bar and allowed the defamation and tortious interference claims to proceed against the appellants.
Generally, a trial court has the inherent authority to modify or clarify any interlocutory order until the judgment becomes final. See Rush v. Barrios, 56 S.W.3d 88, 98-99 (Tex. App.--Houston [14th Dist.] 2001, pet. denied). Appellants cite two supreme court cases dealing with section 101.106, Newman v. Obersteller, 960 S.W.2d 621 (Tex. 1997), and Thomas v. Oldham, 895 S.W.2d 352 (Tex. 1995), in support of their contention that, under the circumstances of this case, the trial court lacked the authority to modify or clarify its summary judgment order. These cases, however, are contra to the appellants' assertions.
In Newman, the governmental entity received a summary judgment that was then severed from the case against the employee (involving the same subject matter), and it became a final judgment. 960 S.W.2d at 622. The supreme court held that the trial court should have granted summary judgment for the employee based on immunity because the plaintiff had failed to attack the summary judgment favoring the government employer.4 Id. at 622-23. In the present case, the plaintiff, Ziesmer, did attack the summary judgment for the county by filing a motion for reconsideration. The summary judgment had not been severed and had not become final, so the court had...
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