                   COURT OF APPEALS
                   SECOND DISTRICT OF TEXAS
                        FORT WORTH

                       NO. 02-11-00019-CV


JEFFERY A. BELL AND WANDA E.                  APPELLANTS
BELL

                                  V.

EXPRESS ENERGY SERVICES                        APPELLEES
OPERATING, LP AND RICHARD J.
WIGGINS


                               ----------

                                AND

                       NO. 02-11-00020-CV


JEFFERY A. BELL AND WANDA E.                  APPELLANTS
BELL

                                  V.

QUICKSILVER RESOURCES INC.,                    APPELLEES
QUICKSILVER GAS SERVICES,
L.P., QUICKSILVER GAS
SERVICES, GP, LLC,
QUICKSILVER GAS SERVICES
OPERATING, LLC AND
QUICKSILVER GAS SERVICES
OPERATING GP, LLC

                               ----------
                                     AND

                             NO. 02-11-00031-CV


JEFFERY A. BELL AND WANDA E.                                     APPELLANTS
BELL

                                       V.

MICHAEL W. BARTON                                                   APPELLEE


                                    ----------

          FROM THE 271ST DISTRICT COURT OF WISE COUNTY

                                    ----------

                        MEMORANDUM OPINION1

                                    ----------

      On the court=s own motion, the above causes are hereby consolidated for

purposes of disposing of these related summary judgment appeals in a single

opinion. Each cause shall continue to bear its respective cause number.

                      I. INTRODUCTION AND BACKGROUND

      Appellant Jeffery Bell was employed as a salesman for Appellee Express

Energy Services Operating, LP (Express) for approximately one month in August

and September 2008.     Appellee Richard J. Wiggins, the district manager for

Express, received complaints from several of Express’s customers that they no


      1
      See Tex. R. App. P. 47.4.


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longer wanted Bell performing sales at their well sites. Wiggins thus met with

Bell and informed him that he would no longer be employed by Express. Bell

and his wife, Appellant Wanda E. Bell, then sued Express, Wiggins, and more

than twenty other defendants, alleging claims for defamation, intentional infliction

of emotional distress, civil conspiracy, gross negligence, and loss of consortium.

The trial court granted summary judgment in favor of each defendant, and

Appellants appealed. This opinion addresses the summary judgments granted in

favor of Express and Wiggins; Appellees Quicksilver Resources, Inc., Quicksilver

Gas Services, LP, Quicksilver Gas Services, GP, LLC, Quicksilver Gas Services

Operating, LLC, and Quicksilver Gas Services Operating GP, LLC (collectively,

Quicksilver); and Appellee Michael W. Barton (Barton).2 Appellants present a

single issue containing five subissues in each appeal.        We affirm all three

judgments.

                            II. STANDARDS OF REVIEW

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant’s


      2
        This court has issued two prior opinions deciding Appellants’ six other
appeals from the trial court’s summary judgments. See Bell v. Denbury Res.,
Inc., Nos. 02-11-00007-CV, 02-11-00017-CV, 02-11-00018-CV, 2012 WL
1739913 (Tex. App.—Fort Worth May 17, 2012, no pet. h.) (mem. op.)
(hereinafter, Denbury); Bell v. Bennett, Nos. 02-10-00481-CV, 02-11-00057-CV,
02-11-00063-CV, 2012 WL 858603 (Tex. App.—Fort Worth Mar. 15, 2012, no
pet.) (mem. op.) (hereinafter, Bennett).


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claim or defense. Tex. R. Civ. P. 166a(i). The trial court must grant the motion

unless the nonmovant produces summary judgment evidence that raises a

genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v.

Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

      The trial court granted summary judgment for Appellees on their no-

evidence and traditional motions for summary judgment without noting whether it

was granting the no-evidence motion or the traditional motion. We therefore first

analyze the propriety of the summary judgments under the no-evidence

standard. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)

(explaining that when a party moves for summary judgment under both rules

166a(c) and 166a(i), we should review the no-evidence motion first).

                                 III. DEFAMATION

      In the first subissue in each appeal, Appellants argue that the trial court

erred by granting summary judgment for Appellees on Appellants’ claims for

defamation. To maintain a defamation cause of action, the plaintiff must prove

that the defendant (1) published a statement, (2) that was defamatory concerning

the plaintiff, and (3) while acting with negligence, if the plaintiff was a private

individual, regarding the truth of the statement.        See WFAA-TV, Inc. v.

McLemore, 978 S.W.2d 568, 571 (Tex. 1998), cert. denied, 526 U.S. 1051

(1999).




                                        4
      A.      Quicksilver

      Quicksilver argued in its motion for no-evidence summary judgment that

Appellants had no evidence that Quicksilver had made a defamatory statement.

Responding to that ground on appeal, Appellants argue that “Quicksilver

company men had called in to Express and complained about Bell and instructed

Express not to send Bell back out to their jobsites, for reasons they ‘didn’t want to

get into.’”   Appellants also contend that Quicksilver claimed “that Bell had

somehow had problems or issues or had made misrepresentations or committed

misconduct while working for a previous employer, Premiere, Inc. or Frank’s

Casing and/or that company men did not want him on their job sites.” To support

these contentions, Appellants direct us to a portion of Wiggins’s deposition

testimony that states the following:

             Q. Quicksilver, same question. Who was it at Quicksilver that
      told you they didn’t want Jeff Bell on-site?

              A. I couldn’t say.

              Q. Why did Quicksilver not want Jeff Bell on-site?

            A. The only thing I was told by one of the Quicksilver – and it
      was on the airport district for Quicksilver, is that they would prefer to
      have a different salesman, would not disclose anything outside of
      that.

           Q. Did they tell you why they didn’t want to disclose any other
      reasons?

              A. No.

              Q. Did you ask them?

              A. That’s a yes.


                                         5
             Q. What did they say?

             A. They’d prefer not to get into it.

             Q. Was it because it was of a sensitive nature?

             A. I couldn’t say.

We must decide whether the words used by the unidentified Quicksilver

representative are reasonably capable of a defamatory meaning, which is a

question of law. Musser v. Smith Protective Serv., Inc., 723 S.W.2d 653, 655

(Tex. 1987); see Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex.

2000). A statement is defamatory if it tends to injure the person’s reputation,

exposing the person to public hatred, contempt, ridicule, or financial injury, or if it

tends to impeach that person’s honesty, integrity, or virtue. See Tex. Civ. Prac.

& Rem. Code Ann. § 73.001 (West 2011) (addressing libel). “To be defamatory,

a statement should be derogatory, degrading, and somewhat shocking, and

contain ‘element[s] of personal disgrace.’”         Means v. ABCABCO, Inc., 315

S.W.3d 209, 214 (Tex. App.—Austin 2010, no pet.). When considering whether

a statement is defamatory, we construe the statement as a whole, in light of the

surrounding circumstances, based on how a person of ordinary intelligence

would perceive the entire statement. See Musser, 723 S.W.2d at 655.

      Here, Appellants have not identified any alleged defamatory statement

made by a Quicksilver representative.         Wiggins’s deposition testimony—that

excerpt being the only evidence Appellants point to in support of their contention

that Quicksilver defamed Bell—established that the Quicksilver representative


                                          6
did not say why Quicksilver did not want Bell on their job-site. Construed in light

of the surrounding circumstances and based on how a person of ordinary

intelligence would perceive it, the statement identified by Appellants—that

Quicksilver would prefer to have a different salesman—is not defamatory as a

matter of law because it is not reasonably capable of a defamatory meaning.

Accordingly, we hold that the trial court did not err by granting summary judgment

for Quicksilver on Appellants’ defamation claim because there is no evidence that

Quicksilver made a defamatory statement about Bell. See Denbury, 2012 WL

1739913, at *2. We overrule Appellants’ first subissue in cause 02-11-00020-CV.

      B.      Barton

      Barton argued in the no-evidence part of his motion for summary judgment

that Appellants had no evidence that Barton published a statement about Bell

that was defamatory. Responding to that ground on appeal, Appellants contend

that Barton

      contacted Express and verbally instructed and advised Express:
      1) not to send Bell back out to his jobsite again and 2) the reason
      Barton stated that he did not want Bell on his jobsite was because
      Bell had made misrepresentations to Sam Sizemore to make sales
      when Bell worked as an oilfield salesman for a previous employer,
      Premiere, Inc.

Appellants do not cite any portion of the record in the argument section of their

brief. In the factual background section of their brief, Appellants include the

same factual assertion and cite to a portion of Bell’s deposition testimony. The

cited deposition testimony, however, does not support Appellant’s assertion



                                        7
because it establishes only that Bell informed Barton that Barton had said

something to Wiggins about misrepresentations to Sizemore. When asked in his

deposition whether Wiggins knew about the supposed misrepresentations to

Sizemore before Express terminated his employment, Bell answered that he did

not know. Moreover, Bell testified in the same deposition excerpt that Barton did

not tell Bell about anything Barton allegedly said to Wiggins before Express

terminated Bell’s employment. The portion of Bell’s deposition testimony upon

which Appellants rely constitutes no evidence that Barton published a statement

about Bell, and Appellants do not cite us to any other part of the summary

judgment record to support this element of their defamation claim against Barton.

See Tex. R. App. P. 38.1(g) (requiring the appellant’s brief to contain citations to

the record in support of the contentions made); Aleman v. Ben E. Keith Co., 227

S.W.3d 304, 309 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“In determining

whether a respondent to a no-evidence motion for summary judgment has

produced sufficient evidence to raise a genuine issue of material fact, courts are

not required to search the record without guidance.”).            Appellants have

consequently failed to identify any evidence of a defamatory statement made by

Barton about Bell, and we hold that the trial court did not err by granting

summary judgment for Barton on Appellants’ defamation claim. We overrule

Appellants’ first subissue in cause 02-11-00031-CV.




                                         8
      C.    Express and Wiggins

      Express and Wiggins asserted in the no-evidence portion of their motion

for summary judgment that Appellants could present no evidence that Express or

Wiggins published a defamatory statement about Bell. Responding to this point

on appeal, Appellants argue that Express’s customers made defamatory

statements about Bell and that “Express published all of these defamatory

statements . . . by stating these false complaints in Jeff Bell’s termination letter

that was placed in Bell’s personnel file with Express.”        To avoid summary

judgment, however, Appellants were required to produce evidence that Express

or Wiggins published the termination letter to a third party, and Appellants have

not done so. See Rodriguez v. NBC Bank, 5 S.W.3d 756, 766 (Tex. App.—San

Antonio 1999, no pet.) (affirming summary judgment on libel claim because there

was no evidence that the employee’s notes, which recited what another person

told the employee, were ever published to a third party). It is not enough for

Appellants that Wiggins informed Bell of what others had allegedly said to

Wiggins or that Wiggins and Express recorded the statements of others in the

termination notice without further publishing the statements to third parties. See

id.; Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 380 (Tex. App.—

Texarkana 1989, no writ). Appellants do not direct us to any summary judgment

evidence that Express or Wiggins communicated the alleged defamatory

statements to any third parties. We thus hold that the trial court did not err by

granting Express and Wiggins’s motion for summary judgment on Appellants’


                                         9
defamation claim, and we overrule Appellants’ first subissue in cause 02-11-

00019-CV.

               IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

      In the second subissue in each appeal, Appellants argue that the trial court

erred by granting summary judgment on their claims for intentional infliction of

emotional distress (IIED). IIED is a gap-filler tort that has no application when

the conduct at issue invades some other legally protected interest.              See

Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004)

(stating that “[w]here the gravamen of a plaintiff’s complaint is really another tort,

intentional infliction of emotional distress should not be available” and citing with

approval three defamation cases in which IIED was not available as an

independent claim). Appellants’ IIED claims must fail because they are based on

the same conduct as Appellants’ defamation claims against Appellees. See id.

      Appellants attempt to bypass this fatal deficiency by arguing that an IIED

claim is permitted “when an employee is wrongfully terminated by an employer

who is engaged in conduct ‘bordering on serious criminal acts,’” and they

contend that Appellees were engaged in an illegal kickback scheme. However, a

review of the cases Appellants cite to support this alleged “exception” reveals

that the factual circumstances in those cases are entirely distinct from the facts of

this case. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816–18 & n.24

(Tex. 2005); Morgan v. Anthony, 27 S.W.3d 928, 930–31 (Tex. 2000); GTE Sw.

v. Bruce, 998 S.W.2d 605, 613–14, 617 (Tex. 1999). Moreover, Appellants have


                                         10
not sued Express for wrongful termination, and we fail to see how evidence of an

alleged kickback scheme somehow alters the fact that the gravamen of

Appellants’ IIED claims are the defamation claims.        Evidence of an alleged

kickback scheme has no relevance whatsoever to any element of Appellants’

IIED claims or defamation claims, and Appellants’ cited cases do not support

their argument.   See Denbury, 2012 WL 1739913, at *4; Bennett, 2012 WL

858603, at *12. We hold that the trial court did not err by granting summary

judgment for Appellees on Appellants’ IIED claims, and we overrule Appellants’

second subissue in each appeal.

                                V. CIVIL CONSPIRACY

      In the third subissue in each appeal, Appellants argue that the trial court

erred by granting summary judgment for Appellees on Appellants’ claims for civil

conspiracy. Civil conspiracy is a derivative claim because a defendant’s liability

depends upon its participation in some underlying tort for which the plaintiff seeks

to hold the defendant liable.    Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.

1996). Appellants pleaded that Appellees conspired to defame and slander Bell.

Because the trial court properly granted summary judgment on each of

Appellants’ defamation claims, Appellees cannot be liable for the derivative tort of

civil conspiracy with respect to those claims. See id. Appellants additionally

contend that Appellees conspired to get Bell fired because he would not

participate in an ongoing kickback scheme, but Appellants did not plead the

kickback scheme as the basis of any type of independent tort or cause of action


                                        11
that would support their derivative claims for civil conspiracy. See Denbury, 2012

WL 1739913, at *5; Bennett, 2012 WL 858603, at *13. Accordingly, we overrule

Appellants’ third subissue in each appeal.

                             VI. GROSS NEGLIGENCE

      In the fourth subissue in each appeal, Appellants argue that the trial court

erred by granting summary judgment for Appellees on Appellants’ claims for

gross negligence.   Appellants’ gross negligence cause of action is premised,

however, on their defamation, IIED, and civil conspiracy claims, and we have

affirmed the trial court’s grant of summary judgment as to each of those causes

of action against each Appellee. Thus, there is no evidence or “underlying basis”

upon which Appellants rely to support their gross negligence claims.         See

Denbury, 2012 WL 1739913, at *5; Bennett, 2012 WL 858603, at *14.

Accordingly, the trial court did not err by granting summary judgment on

Appellants’ claims for gross negligence. We overrule Appellants’ fourth subissue

in each appeal.

                           VII. LOSS OF CONSORTIUM

      In the fifth subissue in each appeal, Appellants argue that the trial court

erred by granting summary judgment for Appellees on Wanda’s claims for loss of

consortium. Wanda’s claims for loss of consortium are derivative of Bell’s claims

against Appellees. See Motor Express, Inc. v. Rodriguez, 925 S.W.2d 638, 640

(Tex. 1996). Because summary judgment was proper for Appellees on all of

Appellants’ pleaded causes of action, Wanda’s derivative loss of consortium


                                       12
claims likewise fail. See id.; Denbury, 2012 WL 1739913, at *5; Bennett, 2012

WL 858603, at *14. We thus overrule Appellants’ fifth subissue in each appeal.

                               VIII. CONCLUSION

      Having overruled all of Appellants’ subissues in each appeal, we overrule

Appellants’ overarching issue in each appeal and affirm the trial court’s

judgments.



                                                  PER CURIAM


PANEL: GARDNER, WALKER, and MEIER, JJ.

DELIVERED: June 7, 2012




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