Shearson Lehman Hutton, Inc. v. Tucker

• Citation: 806 S.W.2d 914
• Decision Date: 28 March 1991
• Docket Number: No. 13-89-402-CV,13-89-402-CV
• Parties: SHEARSON LEHMAN HUTTON, INC., F/K/A Shearson Lehman Brothers, Inc., Appellant, v. Stuart TUCKER, Appellee.
• Court: Court of Appeals of Texas

Page 914

806 S.W.2d 914

SHEARSON LEHMAN HUTTON, INC., F/K/A Shearson Lehman Brothers, Inc., Appellant, v. Stuart TUCKER, Appellee.

No. 13-89-402-CV.

Court of Appeals of Texas Corpus Christi.

March 28, 1991.

Bob J. Spann, Spann & Smith, Corpus Christi, William D. Sims, Jr., Wills S. Montgomery, Jenkens & Gilchrist, Dallas, James R. Harris, Harris & Thomas, Rita C. Berthelot, Harris & Thomas, Corpus Christi, for appellee.

Jorge C. Rangel, Rangel & Chriss, Corpus Christi, Eliot P. Tucker, Mandell & Wright, Houston, for appellant.

Before NYE, C.J., and DORSEY and BENAVIDES, JJ.

OPINION

DORSEY, Justice.

Stuart Tucker, appellee, brought suit against appellant, Shearson Lehman Brothers, Inc., for fraud, breach of contract, and slander. The trial court directed a verdict against appellee on all grounds except those relating to slander. Tucker was a former employee of Shearson who was terminated for violating a Shearson company policy. Tucker alleged that a Shearson senior vice-president of sales, Jonathon Wilde, made statements that Tucker (1) was going to lose his license as a broker; (2) was in big trouble with the Securities and Exchange Commission; and (3) would never work again as a broker. Tucker alleged that Wilde made the statements to two former clients of Tucker who contacted Shearson regarding the status of their accounts. The trial court directed a verdict in favor of Wilde, individually.

A jury found that the alleged statements were false, published and slanderous, and that the statements were made with malice. The jury awarded $212,875.00 for past and future damage to Tucker's reputation, $84,525.00 for lost earnings in the past, $19,791.66 for past mental anguish, humiliation and embarrassment, and $1,000,000.00 in exemplary damages.

Appellant raises eleven points of error. Appellant complains that the evidence is legally and factually insufficient to support the jury's finding of slander and that the trial court erred in refusing to compel arbitration. Furthermore, appellant argues that the trial court erred in admitting certain evidence and in allowing an undisclosed witness to testify. Finally, appellant complains of the trial court's charge to the jury, the award of actual and exemplary damages and failure to award it attorney's fees. By a single cross-point of error, appellee complains of the trial court's granting a directed verdict in favor of Jonathon Wilde, individually. We affirm the trial court's judgment.

By points of error one and thirteen, appellant argues that the trial court erred in denying its motion to compel arbitration under 9 U.S.C. § 3 (1970) ("Arbitration Act"), and in failing to award attorney's fees against Tucker for failing to submit to arbitration in accordance with his employment contract. On November 3, 1986, the trial court heard appellant's motion to compel arbitration. In support of its position that the dispute was "referable to arbitration," appellant filed an affidavit which alleged that Tucker agreed to arbitrate any dispute arising from his employment with Shearson. An employment application, attached to the affidavit as exhibit "A" provided that Tucker agreed to "arbitrate any dispute, claim or controversy that may arise between me and my firm ... that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which I register as indicated in Question 8." (emphasis added). The rules, constitutions, or by-laws indicated in "Question 8" were not presented to the trial court. Tucker argued that Shearson had not "proved" that the dispute was subject to arbitration. The trial court agreed and refused to grant the motion to compel. At a second hearing on November 14, 1988, appellant attempted to present additional evidence regarding the motion to compel arbitration. The trial court refused to allow additional evidence stating that the original decision to deny the motion to compel would stand. Appellant did not make an offer of proof at the second hearing.

There is a strong national policy favoring arbitration and doubts regarding the availability of arbitration are resolved in favor of arbitration. Life of Am. Ins. Co. v. Aetna Life Ins. Co., 744 F.2d 409, 413 (5th Cir.1984). The Arbitration Act provides that:

If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall ... stay the trial of the action until such arbitration has been had.

9 U.S.C. § 3 (1970) (emphasis added). When a written arbitration agreement exists, the courts must decide whether a dispute is subject to arbitration on the basis of the contract between the parties. Life of Am. Ins. Co., 744 F.2d at 413. Arbitration is mandated when the arbitration clause on its face is broad enough to encompass the parties' claims. Id. Hence, in considering whether to stay proceedings under the Arbitration Act, the trial court must determine whether the parties agreed to arbitrate and the scope of the arbitration agreement. Creative Sec. Corp. v. Bear Stearns & Co., 671 F.Supp. 961, 965 (S.D.N.Y.1987).

Here, the arbitration clause does not provide any basis for determining whether the parties' dispute is referable to arbitration. The clause explicitly conditions arbitration upon a showing "that [the dispute] is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which [appellee] register[s]...." No evidence was before the trial court regarding the applicable rules, constitutions or by-laws governing the type of disputes subject to arbitration. Arbitration is warranted unless it can be said with positive assurance that an arbitration clause is not susceptible to an interpretation which would cover the dispute at issue. Wire Serv. Guild v. United Press Int'l, 623 F.2d 257, 260 (2nd Cir.1980). The evidence before the trial court is clearly susceptible to an interpretation that the dispute at issue was not subject to arbitration. Similarly, regarding attorney's fees, no evidence was presented to the trial court that Tucker breached his employment contract to arbitrate.

Appellant, as movant, had the burden to present evidence of an arbitration agreement which governed the dispute at issue. The evidence before the trial court merely established the existence of a conditional agreement to arbitrate. While doubts regarding the scope of an arbitration clause are to be resolved in favor of arbitration, there must be an initial showing that the parties agreed to arbitration. Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). Absent such evidence, we find that the trial court did not err in denying appellant's motion to compel arbitration and in refusing to award attorney's fees. We overrule points of error one and thirteen.

By points of error two and three, appellant assails the legal and factual sufficiency of the evidence to support the jury findings that the statements were slanderous, false, and published. Shearson argues that, as a matter of law, the alleged statements are not slanderous because the statements are predictions regarding future events which can not be proven false. Accordingly, Shearson contends that the statements are opinions protected by the First Amendment. We disagree.

In a defamation action involving public figures, officials and/or matters of public concern, a plaintiff must prove "actual malice." Gertz v. Robert Welch, Inc., 418 U.S. 323, 384, 94 S.Ct. 2997, 3029, 41 L.Ed.2d 789 (1974). Under the First Amendment "actual malice" is defined as a false statement of fact made with knowledge that the statement was false or with reckless disregard as to whether the statement was true. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964). However, in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), the Supreme Court upheld a state court award of actual and presumed damages against a credit reporting agency which negligently reported that a business had filed for bankruptcy, which was untrue. Dun & Bradstreet, 472 U.S. at 760, 105 S.Ct. at 2946. The Court held that speech on matters of purely private concern is of less First Amendment importance and that proof of "actual malice" is not required to recover actual, presumed, or punitive damages under state defamation law. Id. at 763, 105 S.Ct. at 2947. Here, it is undisputed and the record establishes that this case involves purely private persons and matters of private concern.

Moreover, in Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), the Supreme Court held that there was no separate constitutional privilege for opinion under the First Amendment. Milkovich, at ----, 110 S.Ct. at 2707. The Court recognized that a statement of "opinion" may include an implied assertion of objective fact. Id. at ----, 110 S.Ct. at 2705. Thus, opinions or ideas may be actionable if they imply false statements of objective fact. Id. at ---- - ----, 110 S.Ct. at 2705-2707. Texas defamation law embraces this view. This Court has held that an opinion may be actionable in a defamation case if the statement contains an implied assertion of fact. See First State Bank v. Ake, 606 S.W.2d 696, 699 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.).

Whether statements are capable of the defamatory meaning the plaintiff attributes to them is initially a question of law for the court. Diaz v. Rankin, 777 S.W.2d 496, 498 (Tex.App.--Corpus Christi 1989, no writ). The allegedly slanderous statements must be construed as a whole, in light of the surrounding circumstances or context in which a person of...