      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-02-00563-CV



                    Mark Gustafson and CPR Resources, Inc., Appellants

                                                 v.

                      City of Austin and Remedios P. Morris, Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
         NO. GN003356, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                                          OPINION


               Mark Gustafson and CPR Resources, Inc. (“Gustafson”) sued the City of Austin and

Remedios Morris for libel, slander, defamation per se, business disparagement, and tortious

interference with contract. Gustafson, the City of Austin, and Morris all filed cross motions for

summary judgment and partial summary judgment. The trial court granted the City of Austin’s and

Morris’s motions and denied Gustafson’s motions. By six issues on appeal, Gustafson argues that

the trial court erred in finding that: (1) the City of Austin enjoyed sovereign immunity; (2) Morris

enjoyed official immunity; (3) Gustafson’s case was barred because there was a lack of notice; (4)

Morris was not liable for defamation because the statement(s) were true or substantially true; (5)

Morris was not liable because the actions complained of were protected by qualified privilege; and

in (6) overruling Gustafson’s objections to several of Morris’s affidavits. Because we conclude that
the statements made by Morris were substantially true as a matter of law, we will affirm the

judgment of the trial court.


                                  FACTUAL BACKGROUND

               Mark Gustafson is an officer and owner of CPR Resources, Inc. As part of his job,

Gustafson teaches people how to perform cardiopulmonary resuscitation (CPR) and other medical

procedures. In order to teach CPR classes that are sanctioned by the American Heart Association

(AHA), one either has to be recognized as a Community Training Center or be affiliated with an

established Community Training Center. Community Training Centers schedule and conduct AHA

courses and have the authority to issue AHA course-completion cards to people who completed the

CPR course.

               In July 1998, Joe Street, a regional consultant for the AHA, informed Gustafson that

his company’s application to become a Community Training Center had been denied. Because

Gustafson and CPR Resources, Inc. did not qualify as a Community Training Center, Gustafson

could not teach CPR classes that were sanctioned by the AHA unless he affiliated with a recognized

Community Training Center. Although he could still teach CPR classes if he was not affiliated with

a Community Training Center, the classes would not be sanctioned by the AHA.

               After receiving the letter from Street, Gustafson associated with CPR Trainers &

Services, a Community Training Center operated by Glenice Ford. As a result of his affiliation with

Ford’s Community Training Center, Gustafson was able to teach CPR courses that were AHA

certified. The City of Austin-Emergency Medical Services is also a Community Training Center,

providing instructors who teach CPR classes to the public. Gustafson is not affiliated with the City

                                                 2
of Austin’s Community Training Center. However, his company has taught CPR classes to City of

Austin Fire Department trainees in the past.

               From 1995 to November 2001, Remedios Morris worked for the City of Austin

Emergency Medical Services as the CPR coordinator. As part of her job, Morris organized CPR

classes for the public and for Emergency Medical Service employees. Additionally, she was in

charge of the certified CPR instructors who taught classes through the City of Austin and was in

charge of the City of Austin’s CPR training program. Part of Morris’s job was to notify the AHA

of any student complaints about the classes or if any other problems related to the classes occurred.

               Over the years, the AHA has received several complaints about Gustafson violating

its procedures and policies. The complaints included the following: (1) using personally produced

teaching material rather than the approved AHA text; (2) using a curriculum that did not follow the

AHA guidelines; (3) issuing AHA and non-AHA course completion cards for the same class; (4)

giving students blank course-completion cards; (5) violating the guidelines describing the correct

student-to-teacher ratio for CPR classes; and (6) refusing to notify his Community Training Center

coordinator of the time of his upcoming classes so the classes could be monitored.

               On September 13, 1999, Jan Gipson, a regional consultant for the AHA, wrote

Gustafson a cease-and-desist letter containing the following text:


       Because you are not an authorized Community Training Center or Training Site, you
       are not authorized to use the American Heart Association’s name or servicemarks in
       any way, issue American Heart Association course cards, or hold yourself out as a
       participant in the association’s ECC training program . . . . Therefore, the American
       Heart Association hereby demands that you immediately cease and desist from (1)
       any distribution of cards bearing the American Heart Association’s name or
       servicemarks; (2) directly or indirectly holding yourself out as authorized to issue

                                                 3
       American Heart Association cards or train under the association’s ECC Training
       Program; and (3) stating, suggesting, or implying that you are affiliated, endorsed,
       or sponsored by the association.1


               Between September and November 1999, there were several communications

between Gipson and Ford about Gustafson. Gipson informed Ford that there had been complaints

about the way that Gustafson was teaching his CPR courses and there had been problems with the

cards Gustafson had been passing out. Gipson told Ford that Gustafson had passed out two different

course-completion cards during the same class and that the writing on some of the cards was

illegible. Gipson warned Ford that she needed to disassociate herself from Gustafson or else the

AHA would have to take corrective action against Ford’s Community Training Center. After her

discussions with Gipson, Ford decided to end Gustafson’s association with her center and wrote

Gustafson a letter on November 16, 1999, terminating his position as an instructor for her

Community Training Center.

               After talking with Gipson, Morris learned that the AHA had sent the September 13,

1999 letter to Gustafson asking him to cease using the AHA servicemark and to not hold himself out

as affiliated or associated with the AHA. Morris also learned that Gustafson was no longer affiliated

with Ford’s Community Training Center. On November 18, 1999, Morris sent an e-mail to six

Emergency Medical Service employees, including David Gruell, stating the following:




       1
         Gustafson argues that Gipson acknowledged the September 13 letter was a mistake but
does not indicate where in the record Gipson makes this admission. Our review of the record
revealed nothing to support this contention.

                                                 4
       As of November 18, 1999 Mark Gustafson is no longer a valid American Heart
       Association (AHA) CPR instructor. His instructor status with AHA as [sic] been
       officially revoked by the AHA. He can still teach CPR, just not under the AHA name
       or give out AHA cards.


               Gustafson learned of the e-mail in November 1999 when David Gruell asked him if

the statements in the e-mail were true. Gustafson denied that the statements were true. After

learning of the e-mail, Gustafson sued Morris and the City of Austin.


                                          DISCUSSION

               The standard for reviewing a motion for summary judgment is well established: (i)

the movant for summary judgment has the burden of showing that no genuine issue of material fact

exists and that the movant is entitled to judgment as a matter of law; (ii) in deciding whether there

is a disputed material fact issue precluding summary judgment, evidence favorable to the non-

movant will be taken as true; and (iii) every reasonable inference must be indulged in favor of the

non-movant and any doubts resolved in its favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

548-49 (Tex. 1985); Basic Capital Mgmt. v. Dow Jones & Co., 96 S.W.3d 475, 480 (Tex.

App.—Austin 2002, no pet.). When both parties have moved for summary judgment and the trial

court denies one motion and grants the other motion, “we review the summary judgment evidence

presented by both sides and determine all questions presented.” Commissioners Court v. Agan, 940

S.W.2d 77, 81 (Tex. 1997). We then render the judgment the trial court “should have rendered.”

Id. Because the motion for summary judgment raised multiple grounds and the trial court does not

specify which ground it relied on, we may affirm if any of the grounds are meritorious. Hanson v.




                                                 5
Republic Ins. Co., 5 S.W.3d 324, 327 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (citing

Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996)).

               In his fourth issue, Gustafson alleges the trial court erred in granting summary

judgment in favor of Morris and the City of Austin on the ground that the statements in Morris’s

e-mail were true or substantially true. To prevail on a defamation claim, the plaintiff must prove that

the defendant published a statement that was defamatory about the plaintiff, while acting with actual

malice if the plaintiff was a public official or public figure, or with negligence if the plaintiff was

a private individual, about the truth of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568,

571 (Tex. 1998); Basic Capital Mgmt., 96 S.W.3d at 480. A written statement is defamatory if it

exposes a person to public contempt or financial injury, or if it impeaches a person’s reputation.

Basic Capital Mgmt., 96 S.W.3d at 480; see also Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West

1997). The truth of a statement is a defense to a claim for defamation. See Hurlbut v. Gulf Atl. Life

Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987); Basic Capital Mgmt., 96 S.W.3d at 480. The defense

of truth does not require proof that the alleged defamatory statement is literally true in every detail;

substantial truth is sufficient. Howell v. Hecht, 821 S.W.2d 627, 632 (Tex. App.—Dallas 1991, writ

denied). Therefore, if Morris and the City of Austin establish the substantial truth of the statement

as a matter of law, they are entitled to summary judgment. McIlvain v. Jacobs, 794 S.W.2d 14, 15

(Tex. 1990); Basic Capital Mgmt., 96 S.W.3d at 481.

               The substantial-truth test stems from the freedom of speech and freedom of press

protections of the First Amendment. Basic Capital Mgmt., 96 S.W.3d at 481 (citing Masson v. New

Yorker Magazine, Inc., 501 U.S. 496, 512-17 (1991)). Under the substantial-truth test, the truth of



                                                   6
the statement in the publication on which an action for libel is based is a defense to the action.

McIlvain, 794 S.W.2d at 15; Basic Capital Mgmt., 96 S.W.3d at 481; see also Tex. Civ. Prac. &

Rem. Code Ann. § 73.005 (West 1997). A statement is substantially true, and thus not actionable,

if its “gist” or “sting” is not substantially worse than the literal truth. McIlvain, 794 S.W.2d at 16;

Basic Capital Mgmt., 96 S.W.3d at 481; Dolcefino v. Randolph, 19 S.W.3d 906, 921 (Tex.

App.—Houston [14th Dist.] 2000, pet. denied). This evaluation requires us to determine whether,

in the mind of the average person who read the statement, the allegedly defamatory statement was

more damaging to the plaintiff’s reputation than a truthful statement would have been. McIlvain,

794 S.W.2d at 16; Basic Capital Mgmt., 96 S.W.3d at 481; Dolcefino, 19 S.W.3d at 921. When the

underlying facts as to the gist of the libelous charge are undisputed, we disregard any variance

regarding items of secondary importance and determine substantial truth as a matter of law.

McIlvain, 794 S.W.2d at 16; Basic Capital Mgmt., 96 S.W.3d at 481.

               We first examine whether Morris’s e-mail is true or substantially true. Gustafson

argues that the following two statements from Morris’s e-mail are untrue: (1) “[a]s of November 18,

1999 Mark Gustafson is no longer a valid American Heart Association (AHA) CPR instructor” and

(2) “[h]is instructor status has been officially revoked by the AHA.” In her e-mail, Morris also wrote

“Gustafson may still teach CPR classes but he could not hand out AHA certification cards.”

               In determining whether a statement is true or substantially true, we must look at the

statement in light of the surrounding circumstances. Dolcefino, 19 S.W.3d at 917. At the time

Morris wrote her e-mail, she was working as a CPR coordinator for the City of Austin. Morris had

received some complaints about the CPR classes taught by Gustafson and had discussed those



                                                  7
complaints with representatives from the AHA. In conversations between Morris and Gipson around

the time Morris wrote her e-mail, Gipson informed Morris that the AHA had sent a letter to

Gustafson telling him to stop using the AHA’s servicemark, to stop issuing AHA course-completion

cards, and to no longer hold himself out as being affiliated with the AHA. Gipson also informed

Morris that Gustafson was no longer affiliated with CPR Trainers and Services, the Community

Training Center owned by Ford. After these discussions with Gipson, Morris wrote the allegedly

defamatory e-mail to six of her co-workers informing them about what she believed was Gustafson’s

status as a CPR instructor.

               Gustafson was no longer affiliated with a Community Training Center and did not

qualify as a Community Training Center on his own at the time the e-mail was written. As a result,

the courses Gustafson taught would not be sanctioned by the AHA and therefore would not be valid

AHA courses.2 Because Gustafson could not teach classes that would be sanctioned by the AHA

until he affiliated with a valid Community Training Center program, he did not qualify as a valid

AHA CPR instructor in terms of AHA certification when the allegedly defamatory statements were

written.3 Therefore, the statement “Gustafson is no longer a valid American Heart Association

(AHA) CPR instructor” was true when Morris e-mailed it to her colleagues.




       2
         In Janis Gipson’s affidavit, she stated that at the time the e-mail was written Gustafson
could not teach classes that were AHA certified unless he affiliated with another Community
Training Center or re-affiliated with his previous Community Training Center.
       3
           At oral argument, Gustafson conceded that at the time the e-mail was written, he was not
affiliated with a Community Training Center and, as a result, could not hand out AHA completion
cards.

                                                8
                The gist of Morris’s e-mail is that Gustafson cannot teach CPR classes that are AHA

approved. The undisputed underlying facts at the time Morris’s e-mail was written were that

Gustafson was not affiliated with a Community Training Center and, as a result, could not teach CPR

courses that were sanctioned by the AHA. Further, Gipson told Morris that she sent Gustafson a

letter telling him to cease using the AHA servicemark and not to hold himself out as being affiliated

with, or certified by AHA, implying his status had been revoked. The disagreement over whether

the AHA officially revoked his instructor status is of “secondary importance” because the gist of the

e-mail is not substantially worse than the literal truth.4 McIlvain, 794 S.W.2d at 16.

                The allegedly defamatory statements that “Gustafson is no longer a valid American

Heart Association (AHA) CPR instructor” and “[h]is instructor status with AHA has been officially

revoked by the AHA” would have been no more damaging to Gustafson’s reputation in the mind of

the average reader than the following truthful statements:


        Gustafson is no longer a valid American Heart Association CPR instructor. While
        he can still teach CPR courses, the courses are not AHA sanctioned.


It is the AHA certification that students taking CPR classes desire. Both statements declare that

Gustafson could not confer AHA certification. Because the gist of Morris’s statements is not worse

than the literal truth, the statements are substantially true as a matter of law. Id.




        4
         Also, a February 2, 2000 letter from Kevin Sheeran, one of the directors of the Emergency
Cardiovascular Care program at the AHA, to Gustafson stated, “I agreed to look into the process by
which your position as an American Heart Association instructor under your CTC . . . was
terminated,” implying that Gustafson’s status as an AHA instructor was, indeed, revoked.
(Emphasis added.)

                                                   9
                                         CONCLUSION

               We hold that the statements in Morris’s November 18, 1999 e-mail are substantially

true as a matter of law. Because we affirm the trial court’s grant of summary judgment for Morris

and City of Austin on the grounds that the statements were true or substantially true, we need not

address the other issues raised on appeal. The judgment of the trial court is affirmed.




                                              David Puryear, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: June 26, 2003




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