
                           NO. 07-09-0277-CV

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL C

                              JUNE 16, 2011








                      JOSEPH E. HANCOCK, APPELLANT


                                   v.


                     EASWARAN P. VARIYAM, APPELLEE





             FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2006-537,571; HONORABLE WILLIAM C. SOWDER, JUDGE





Before QUINN, C.J., HANCOCK and PIRTLE, JJ.[1]


                                OPINION


      Appellant, Joseph E. Hancock, appeals from a judgment entered  in
a  defamation  action  in  favor  of  Appellee,  Easwaran  P.  Variyam,
following a jury trial.  In support,  Hancock  presents  three  issues:
(1) whether the trial court erred in finding as a matter  of  law  that
Hancock's written statements were libel per se; (2)  whether  Variyam's
evidence of damages is legally  and  factually  insufficient;  and  (3)
whether the trial court erred  in  admitting  an  anonymous  letter  at
trial.  We affirm.

                               Background

      At all  relevant  times,  Hancock  and  Variyam  were  physicians
practicing internal medicine and gastroenterology  at  the  Texas  Tech
University Medical Center in Lubbock, Texas.   Both  men  were  on  the
faculty  of  Texas  Tech.   Variyam  was  formerly  the  Chief  of  the
Gastroenterology Division from September 2000 until January  2006,  and
as  such,  he  was  Hancock's  supervisor  when  the  following  events
occurred.

      On the morning of January 2, 2006, a dispute  arose  between  the
two physicians related to the transfer of patients from Hancock's  care
to Variyam's care.  After Variyam wrote a letter  to  Hancock  alleging
he had disregarded patient care, Hancock responded  with  a  letter  of
resignation wherein he stated, in pertinent part, as follows:

      Please find a copy of letter from Dr Variyam letter (sic) which I
      received today.  Due to  Dr  Variyam's  reputation  for  lack  of
      veracity, a majority of my  communications  and  interactions  is
      (sic) recorded or witnessed and subsequently verified as in  this
      case.

      My telephone conversation was over the speakerphone and witnessed
      by a third party who will dispute Dr.  Variyam's  position.   The
      interaction by and through the Department  of  Internal  Medicine
      this morning is again refutable.

      Dr Variyam deals in half truths, which legally is the same  as  a
      lie.

      It is Dr. Variyam's ethical behavior that should be challenged.



      Hancock addressed his letter to Bernhard Mittemeyer, Dean of  the
School of  Medicine,  and  copied  Donald  Wesson,  Chair  of  Internal
Medicine, David Hodges, Associate Professor and  Director  of  the  UMC
Endoscopy Center, Variyam and the Accreditation  Council  for  Graduate
Medical Education (ACGME) in  Chicago,  Illinois.[2]   In  February  of
2006, Variyam was removed as Chief of the Gastroenterology Division.

      In December 2006, Variyam filed  an  original  petition  alleging
that Hancock's letter had defamed him.  Variyam sought special  damages
for loss of past and future income  as  well  as  general  damages  for
injury to his reputation and mental anguish.  He also sought  exemplary
damages.  In November 2008, Variyam and Hancock filed an  agreed  order
wherein Variyam agreed to forego special damages  arising  out  of  his
removal as Chief of the Gastroenterology  Division,  but  retained  his
defamation claim under a per se theory.  Hancock  continued  to  assert
truth as an affirmative defense.

       In  May  2009,  a  three  day  jury  trial  was  held.   At  its
conclusion, the trial court found  that  the  statements  in  Hancock's
letter were libel per se.   The  jury  rejected  Hancock's  affirmative
defense by finding that his statements[3] regarding  Variyam  were  not
substantially true at the time they were made and that,  by  clear  and
convincing evidence, the  harm  to  Variyam  resulted  from  malice  on
Hancock's part.  The jury awarded Variyam actual damages of  $90,000[4]
and  exemplary  damages  of  $85,000.    Variyam   was   also   awarded
prejudgment  interest  of  $6,455.68  and  court  costs.   This  appeal
followed.

                               Discussion

      Hancock contends the trial court erred by finding,  as  a  matter
of law, that his statements were libel per se  because  the  statements
were ambiguous and did not injure Variyam in his office  or  occupation
as a physician.  He also asserts  that  the  evidence  is  legally  and
factually insufficient to justify  any  award  for  mental  anguish  or
injury to  reputation.   He  contends  Variyam  failed  to  prove  that
Hancock's statements caused him any  damage  and,  alternatively,  that
the trial court erred by not issuing a jury  instruction  on  proximate
cause.  Lastly, he asserts  the  trial  court  erred  by  admitting  an
anonymous letter at trial.

                        Issue One - Libel per se

      Defamation is generally defined as the  invasion  of  a  person's
interest in his or her reputation and good name.  Prosser &  Keeton  on
Torts § 111, at 771 (5th ed. 1984 &  Supp.  1988).   Defamation  claims
are divided  into  two  categories  depending  on  how  the  defamatory
statement  was  communicated:  libel  for  written  communications  and
slander for oral communications.[5]

       Defamation  claims  are  also  divided  into   two   categories,
defamation per se and defamation per quod, according to  the  level  of
proof required in order to make them actionable.  Texas  Disposal  Sys.
Landfill, Inc. v. Waste Mgmt.  Holdings,  Inc.,  219  S.W.3d  563,  580
(Tex.App.--Austin 2007, pet. denied);  Moore  v.  Waldrop,  166  S.W.3d
380,  384  (Tex.App.--Waco  2005,  no  pet.).   Statements   that   are
defamatory per quod are actionable only upon allegation  and  proof  of
damages.  Texas Disposal, 219  S.W.3d  at  580;  Alaniz  v.  Hoyt,  105
S.W.3d 330, 345 (Tex.App.--Corpus Christi 2003,  no  pet.).   That  is,
before a plaintiff can recover for defamation per quod, he  must  carry
his burden of proof as to both the defamatory nature of  the  statement
and the amount of damages caused by the publication of that  statement.
 Texas Disposal, 219 S.W.3d at 580; See  also  Leyendecker  &  Assocs.,
Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984); Peshak v.  Greer,  13
S.W.3d  421,  426  (Tex.App.--Corpus  Christi  2000,  no   pet.).    By
contrast, in cases involving defamation per se,  damages  are  presumed
to flow  from  the  nature  of  the  defamation  itself  and,  in  most
situations, a plaintiff injured by a defamatory  per  se  communication
is entitled to recover general damages without specific  proof  of  the
existence of harm.  Bentley v. Bunton, 94 S.W.3d 561, 604  (Tex.  2002)
("Our law presumes that statements that are defamatory  per  se  injure
the victim's reputation and entitle him  to  recover  general  damages,
including damages for loss of reputation and mental  anguish.");  Exxon
Mobil Corp. v. Hines,  252  S.W.3d  496,  501  (Tex.App--Houston  [14th
Dist.] 2008, pet. denied); but see Gertz v. Robert  Welch,  Inc.,   418
U.S. 323, 347-48, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)  (holding  that,
so long as they do not impose liability without fault, States are  free
to define for themselves  the  appropriate  standard  of  liability  in
defamation suits where a private plaintiff sues a media  defendant  for
speech involving a public issue).   The  United  States  Supreme  Court
later clarified that the constitutional requirements of  Gertz  do  not
prohibit the  application  of  strict  liability  to  defamation  suits
involving private-figure plaintiffs who  sue  nonmedia  defendants  for
speech  involving  nonpublic  issues.   Dun  &  Bradstreet,   Inc.   v.
Greenmoss Builders, Inc., 472 U.S. 749,  760-61,  105  S.Ct.  2939,  86
L.Ed.2d  593  (1985).   In  suits  involving  such  situations,  courts
applying Texas law have applied strict liability in defamation  per  se
causes of action.  See Thomas-Smith v.  Mackin,  238  S.W.3d  503,  509
(Tex.App.--Houston [14th Dist.]  2007, no pet.); Peshak  v.  Greer,  13
S.W.3d 421, 425-26 (Tex.App.--Corpus Christi 2000, no pet.);  Snead  v.
Redland Aggregates Ltd., 998 F.2d 1325, 1334 (5th Cir. 1993).   Because
the decision whether an alleged defamatory statement is defamatory  per
se or per quod affects the level of proof required,  that  question  is
initially determined by the trial court as a matter of law.  Turner  v.
KTRK TV, Inc.,  38  S.W.3d  103,  114  (Tex.  2000);  Musser  v.  Smith
Protective Servs., Inc., 723 S.W.2d 653, 654-55 (Tex. 1987).

       A communication is  considered  libel  per  se  when  it  is  so
obviously hurtful  to  the  person  aggrieved  that  no  proof  of  its
injurious character is  required  to  make  it  actionable.   Clark  v.
Jenkins, 248 S.W.3d 418, 437 (Tex.App.--Amarillo  2009,  pet.  denied),
cert. denied, __  U.S.  __,  130  S.Ct.  52,  175  L.Ed.2d  21  (2009);
Houseman v. Publicaciones Paso Del Norte,  S.A.  de  C.V.,  242  S.W.3d
518, 524 (Tex.App.--El Paso 2007, no pet.).   A  false  statement  will
typically be classified as defamatory per se if it injures a person  in
his office, profession, or occupation; Morrill  v.  Cisek,  226  S.W.3d
545, 549 (Tex.App.--Houston [1st  Dist.]  2006,  no  pet.);  charges  a
person with the commission of a crime; Leyendecker, 683 S.W.2d at  374;
or imputes to him a loathsome disease.  Bolling v.  Baker,  671  S.W.2d
559, 570 (Tex.App.--San Antonio 1984, no writ).

      Whether a given statement is reasonably capable of  a  defamatory
meaning is a question to be decided by the trial  court  as  matter  of
law.  See Musser,  723  S.W.2d  at  654-55.   The  trial  court  should
construe the alleged defamatory communication as a whole  in  light  of
the surrounding circumstances based upon how  a  reasonable  person  of
ordinary intelligence would perceive it,  considering  the  surrounding
circumstances and the context of the statement.   New  Times,  Inc.  v.
Isaacks, 146 S.W.3d 144, 153 (Tex. 2003), cert. denied, 545 U.S.  1105,
125 S.Ct. 2557, 162 L.Ed.2d 276  (2005);  Turner,  38  S.W.3d  at  114.
This is an objective test, not a subjective one.  New Times, Inc.,  146
S.W.3d at 157.  Thus, the parties' opinion of  the  statements,  Musser
v. Smith, 690 S.W.2d 56,  58  (Tex.App.--Houston  [14th  Dist.]  1985),
aff'd, 723 S.W.2d 653 (Tex. 1987), or the defendant's intent in  making
the  statements  have  no  bearing  on  whether  they  are  defamatory.
Peshak, 13 S.W.3d at 426 ("We assume the words  were  intended  because
they were used.")  "Common sense  requires  courts  to  understand  the
statement as ordinary men and women would"; Moore, 166 S.W.3d  at  385,
and the question whether a statement  is  defamatory  per  se  is  only
submitted to the jury if the contested  language  is  ambiguous  or  of
doubtful import.  See Denton Pub. Co. v.  Boyd,  460  S.W.2d  881,  884
(Tex. 1970).  Otherwise, it is an issue of law for the trial  court  to
decide.  Musser, 723 S.W.2d at 655.  Therefore, according to this  body
of  law,  a  written  communication,  made  by  a  nonmedia  defendant,
concerning a private-figure individual and pertaining  to  a  nonpublic
issue, which is  obviously  hurtful  to  the  aggrieved  party  in  his
profession or occupation, is libel per se.

      Standard of Review

      The standard of review applicable to alleged error  concerning  a
question of law is de novo.  El Paso Natural Gas Co.  v.  Minco  Oil  &
Gas, 8 S.W.3d 309, 312 (Tex. 1999); Block v. Mora, 314 S.W.3d 440, 444-
45 (Tex.App.--Amarillo 2009, pet. dism'd).  Therefore, in  reviewing  a
trial court's determination of libel per se, this Court must conduct  a
de novo review.   In  doing  so,  this  Court  must  exercise  its  own
judgment and redetermine each legal issue, according  no  deference  to
the lower court's decision.  Quick v. City of  Austin,  7  S.W.3d  109,
116 (Tex. 1998); Block, 314 S.W.3d at 445.

      Analysis

      Hancock contends the statements at issue were  not  libelous  per
se because they were ambiguous and extrinsic evidence was  required  to
interpret them.  Alternatively, he  contends  the  statements  did  not
injure Variyam in his office  or  occupation  as  a  physician.[6]   We
disagree.

      The trial court found  that  Hancock's  written  statements  that
Variyam had a "reputation for lack of veracity" and  "deal[t]  in  half
truths, which legally is the same as a lie" were libelous per se.   See
Lartigue v. Southern Mut. Ben. Ass'n, 265 S.W. 742, 743 (Tex.Civ.App.--
Beaumont 1924, no writ) (printed circular held libelous  per  se  where
it "unquestionably charged appellant with untruthfulness--with being  a
liar--that he was telling lies"); Hibdon v. Moyer, 197 S.W. 1117,  1118
(Tex.Civ.App.--El Paso 1917, no writ) (article  held  libelous  per  se
where  it  unquestionably  charged  appellant  with  "untruthfulness");
Fleming v. Mattinson, 114 S.W. 650, 652 (Tex.Civ.App.--Texarkana  1908,
no writ) (newspaper  article  held  libelous  per  se  where  statement
"clearly imputes to [plaintiff] a lack of  veracity");[7]  Mitchell  v.
Spradley, 56 S.W. 134,  135  (Tex.Civ.App.--Houston  1900,  no  writ  )
(article held libelous per se where statement  denounced  plaintiff  as
"a liar").

      The trial court's determination is supported  by  the  fact  that
Hancock imputes dishonesty to Variyam in his profession  or  occupation
by addressing the letter to  Variyam's  superiors  at  Texas  Tech  and
ACGME.  See Bradbury v. Scott, 788  S.W.2d  31,  38  (Tex.App.--Houston
[1st Dist.] 1990, writ denied) (letter libelous per  se  where  writing
accused employee of a lack of fidelity  and  honesty  in  her  dealings
with her employer).  See also Bolling, 671 S.W.2d at  571  ("Generally,
spoken words imputing that a person is dishonest or  unethical  in  the
practice of his employment have been held to be  actionable  per  se.")
Hancock's  open-ended  statements  affirmatively  questioned  Variyam's
ethical behavior as well as  his  reputation  for  being  truthful  and
honest to his co-workers and employers at Texas Tech and  ACGME,  where
he  had  submitted  an  application  requesting   that   Texas   Tech's
fellowship  program  be  reinstated.   Hancock  agreed  with  Variyam's
counsel at trial  that,  if  his  statements  about  Variyam  having  a
reputation for  untruthfulness  were  not  true,  then  his  statements
"could have a very, very serious affect on [Variyam's]  character"  and
would represent "character assassination."  At trial, Variyam  attested
to the importance of his professional reputation for telling the  truth
in dealing with patients and other doctors, patient care, and  research
when publishing abstracts and book chapters.  He  also  testified  that
"being untruthful would  [also]  affect  his  relationship  with  other
physicians that might send him business or  work."   Like  lawyers  and
bankers, a physician such as Variyam, by  definition,  depends  greatly
on his reputation.  See generally First Bank of Corpus Christi v.  Ake,
606 S.W.2d 696, 702 (Tex.Civ.App.--Corpus  Christi  1980,  writ  ref'd)
(citing Eidinoff v. Andress, 321 S.W.2d 368,  372-73  (Tex.Civ.App.--El
Paso 1959, writ ref'd n.r.e.)).

      Hancock asserts that the term "veracity" is ambiguous because  it
is subject to two interpretations.  In support he  cites  the  parties'
testimony, i.e., Hancock  testified  "veracity"  means  accuracy  while
Variyam testified "veracity" means truthfulness.  It  is  well  settled
that "the meaning of a publication, and thus whether it  is  false  and
defamatory,  depends  on  a  reasonable  person's  perception  of   the
entirety of the publication and not merely on  individual  statements."
Bentley, 94 S.W.3d at 584.  Moreover, as we stated  earlier,  the  test
applied by the court to interpret the meaning  of  the  publication  is
objective; New Times,  Inc.,  146  S.W.3d  at  157,  and  the  parties'
interpretations and intentions are irrelevant.  Peshak,  13  S.W.3d  at
426; Musser, 690 S.W.2d at 58.  Having duly considered the entirety  of
the publication, the surrounding circumstances and the context  of  the
statement, we find that a reasonable person  of  ordinary  intelligence
would perceive the statements in Hancock's  letter  as  defamatory  per
se.  See State Medical Ass'n of Texas  v.  Committee  for  Chiropractic
Education, Inc., 236 S.W.2d 632, 634 (Tex.Civ.App.--Galveston 1951,  no
pet.) ("It has been uniformly held by the courts of this state that  to
impugn the veracity of a person is to defame him.")

      Hancock next asserts that he was merely expressing an  opinion[8]
when he stated that Variyam had a "reputation for  lack  of  veracity."
We disagree.  However, even where statements may  be  characterized  as
opinions, the statements may be defamatory nonetheless if they  clearly
imply the existence of undisclosed facts that  the  person  engaged  in
conduct which would adversely  reflect  on  his  reputation.   Shearson
Lehman Hutton, Inc., v. Tucker, 806 S.W.2d 914,  920  (Tex.App.--Corpus
Christi 1991, writ dism'd w.o.j.).   True,  as  Hancock  suggests,  the
only way to gauge a person's reputation is through  an  examination  of
the  opinions  expressed  by  others,  however,  Hancock's  affirmative
statements imply that he had already undertaken that task and made  his
conclusion.  In other words, his statement  implies  the  existence  of
undisclosed facts known to Hancock indicating  that  Variyam  had  been
untruthful in the past with others.  See Milkovich  v.  Lorain  Journal
Co., 497 U.S. 1, 18-19, 110 S.Ct. 2695, 111 L.Ed.2d 1  (1990).[9]   See
also Bentley, 94 S.W.3d at 584.

      Hancock also contends that his statement "deals in  half  truths"
is ambiguous because  of  the  phrase  "deals  in."   The  entirety  of
Hancock's statement  is  "Dr.  Variyam  deals  in  half  truths,  which
legally is the same as a  lie."   (Emphasis  added).   Considering  the
entire publication objectively,  we  believe  a  reasonable  person  of
ordinary intelligence would understand that Hancock is using the  terms
"half truths" and "lies" interchangeably  and  the  phrase  "deals  in"
means  that  Variyam  "tells"  half-truths  or   lies.[10]    This   is
particularly so given Hancock's prior  statement  that  Variyam  has  a
"reputation for lack of veracity."  In  addition  the  phrase,  Variyam
"deals in half truths, which legally  is  the  same  as  a  lie,"  also
implies knowledge of facts that  lead  to  Hancock's  conclusion.   See
Milkovich, 491 U.S. at 18-19.  See also Bentley, 94 S.W.3d at 584.

       Lastly,  Hancock  cites  a  string  of  slander  cases  for  the
proposition that merely calling someone a "liar," "thief," or  "crook,"
by itself, is not defamatory.  See Gateway  Logistics  Group,  Inc.  v.
Dangerous Goods Management Australia  PTY,  LTD,  No.  H-05-2742,  2008
U.S. Dist. LEXIS 34246 (S.D. Houston  Apr.  25,  2008)  (statements  in
question were oral statements even though the litigation involved  both
libel and slander allegations); Moore, 166 S.W.3d  380;  Billington  v.
Houston Fire & Casualty Ins. Co., 226  S.W.2d  494  (Tex.Civ.App.--Fort
Worth 1950, no writ).

      The law has long recognized a difference between written  charges
of falsehood or lack of veracity and oral charges in the  area  of  per
se liability.  Billington, 226 S.W.2d at 497 (quoting 53  C.J.S.  LIBEL
AND SLANDER § 18, at 63) ("Written charges  of  falsehood  or  want  of
veracity generally are libelous  per  se;  but  oral  charges  of  this
character ordinarily are not slanderous per se"); Arant v.  Jaffe,  436
S.W.2d 169, 176 (Tex.Civ.App.--Dallas 1968, no writ) (in  the  area  of
per se defamation,"[t]he law recognizes the  distinction  between  oral
and written imputations").[11]  Because the cases cited by Hancock  are
slander  cases,  we  find  these  cases  to  be   distinguishable   and
inapposite.

      Therefore, applying a de novo review, we  find  the  trial  court
did not err in finding that the defamatory statements in question  were
libel per se.  Accordingly, issue one is overruled.

                          Issue Two - Damages

      Hancock next asserts there is no evidence supporting  the  jury's
award of damages for mental anguish or injury to reputation.   He  also
asserts there is no evidence his statements proximately caused  Variyam
any injury and the trial court erred by failing to  instruct  the  jury
on proximate cause.  Further, he contends Variyam's damages  should  be
denied because Variyam self-published  Hancock's  letter  when  he  was
aware it was defamatory.

      Legal and Factual Sufficiency

      In conducting a legal sufficiency review, we  must  consider  the
evidence in  the  light  most  favorable  to  the  challenged  finding,
indulge every reasonable inference to support it;  City  of  Keller  v.
Wilson, 168 S.W.3d 802, 822 (Tex. 2005), and credit favorable  evidence
if reasonable jurors could while disregarding contrary evidence  unless
reasonable jurors could  not.   Id.  at  827.   A  challenge  to  legal
sufficiency will be sustained when, among other  things,  the  evidence
offered to establish a vital fact  does  not  exceed  a  scintilla.[12]
Id. at 810.  In addition, so long as  the  evidence  falls  within  the
zone of reasonable disagreement, we may  not  invade  the  fact-finding
role of the jurors, who alone determine the credibility  of  witnesses,
the weight to be given  their  testimony,  and  whether  to  accept  or
reject all or a part of their testimony.  City of  Keller,  168  S.W.3d
at 822.

      In reviewing a factual sufficiency  challenge,  we  consider  all
the evidence and set aside a finding only  if  it  is  so  against  the
great weight and preponderance of the evidence as to be  clearly  wrong
or unjust.  Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.  1996).   If,  as
here, the appellant is  challenging  the  factual  sufficiency  of  the
evidence to support a finding on an issue on which the other party  had
the  burden  of  proof,  we  must  overrule   the   complaint   unless,
considering  all  the  evidence,  the  finding  is  clearly  wrong  and
manifestly unjust.  See Santa  Fe  Petroleum,  L.L.C.  v.  Star  Canyon
Corp., 156 S.W.3d 630, 637  (Tex.App.--Tyler  2004,  no  pet.)  (citing
Garza v. Alviar, 395 S.W.2d 821,  823  (Tex.  1965)).   Inferences  may
support a judgment only if they are reasonable  in  light  of  all  the
evidence, id., and, again, the trier of fact is the sole judge  of  the
credibility  of  the  witnesses  and  the  weight  to  be  given  their
testimony.  GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61  S.W.3d
599, 615-16 (Tex.App.--Houston [14th Dist.] 2001, pet. denied).

      General Damages--Defamation

      Compensatory damages allowable for defamation  are  divided  into
two categories: general  and  special.   Pershak,  13  S.W.3d  at  427.
General damages include mental anguish, loss of  reputation,  and  like
damages that naturally flow from the  defamation  and  are  not  easily
susceptible to monetary valuation.   Id.   General  damages  are  those
conclusively presumed to  have  been  foreseen  by  the  defamer  as  a
necessary and usual result of his or her wrongful act.  Fox v.  Parker,
98 S.W.3d 713, 726 (Tex.App.--Waco 2003, pet.  denied)  (citing  Arthur
Anderson & Co. v. Parker Equip. Co., 945 S.W.2d 812, 816 (Tex.  1997)).
 As noted earlier, Variyam chose not to seek "special"  damages,  i.e.,
damages which must be specifically stated and proved, such as  loss  of
earning capacity, which are foreseeable to the defendant  but  are  not
the necessary and usual result of the wrong.  Id.

      Because Hancock's statements were determined by the  trial  court
to be defamatory  per  se,  Variyam  is  entitled  to  recover  general
damages without proof of other  injury.   Leyendecker,  683  S.W.2d  at
374.  "The law presumes a statement which is libelous per se defames  a
person, injures  his  reputation";  id.,  and  causes  mental  anguish.
Ryder Truck Rentals, Inc. v. Latham, 593 S.W.2d 334, 337 (Tex.Civ.App.-
-El Paso 1979, writ  ref'd  n.r.e.)  (general  damages  for  injury  to
character, reputation, feelings, mental suffering or anguish, or  other
wrongs not susceptible to monetary valuation are presumed); Peshak,  13
S.W.3d at 427 ("In actions of  libel  per  se,  the  law  presumes  the
existence of some actual damages, requiring  no  independent  proof  of
general damages.")  Because the damages are presumed,  "there  need  be
no inquiry in the [jury] charge about whether there  was  a  defamation
or about 'proximate cause' and injury (or the jury  may  be  instructed
to so find.”)  Fox, 98 S.W.3d at 726.

      Further, because the damages are purely personal  and  cannot  be
measured by any fixed rule or standard, the amount of  general  damages
suffered in a defamation case is difficult to determine.   First  State
Bank of Corpus Christi v. Ake,  606  S.W.2d  696,  702  (Tex.Civ.App.--
Corpus Christi 1980, writ ref'd n.r.e.) (citing Bayoud v.  Sigler,  555
S.W.2d 913 (Tex.Civ.App.--Beaumont 1977, writ dis'md)).  Thus,  because
of their uncertain nature, their measurement is generally left  to  the
discretion of the finder of fact, subject only to a determination  that
the award was clearly excessive or the result of  "passion,  prejudice,
or other improper influences."  See Morrill, 226 S.W.3d at 550  (citing
Bolling, 671 S.W.2d at 549).  See also Tranum v. Broadway,  283  S.W.3d
403, 422 (Tex.App.--Waco 2008, pet. denied).




      Mental Anguish

       An  award  of  mental  anguish  damages  will  survive  a  legal
sufficiency challenge when the plaintiff  has  introduced  (1)  "direct
evidence  of  the  nature,  duration,  or  severity  of   [plaintiff's]
anguish, thus establishing a substantial disruption in the  plaintiff's
daily routine"; or (2) other evidence of "a high degree of mental  pain
and  distress  that  is  more  than  mere  worry,  anxiety,   vexation,
embarrassment, or anger."  Parkway Co. v.  Woodruff,  901  S.W.2d  434,
444 (Tex. 1995).  Direct evidence may be in the form  of  the  parties'
own testimony, that of third parties, or  experts.   Id.   "There  must
also be some evidence to justify the amount awarded"; Saenz v.  Fid.  &
Guar. Ins. Underwriters, 925 S.W.2d  607,  614  (Tex.  1996),  and  the
amount awarded must be fair and reasonable.  Id.

       Hancock  relies  on  two  cases  in  asserting  that   Variyam's
testimony portrays nothing more than common anxiety, embarrassment  and
anger.  See Parkway Co., 901 S.W.2d at  444;  Exxon  Mobil  Corp.,  252
S.W.3d at 505.  In Parkway, the Texas Supreme Court  found  plaintiff's
proof of damages for mental anguish  lacking  where  he  addressed  his
mental state in only two passages of testimony saying he "was hot"  and
"was very disturbed about that."  Parkway,  901  S.W.2d  at  444.   His
wife testified that "[their]  life  changed,"  "just  upsetting,"  "her
husband was very quiet," and she  was  "just  upset  it  changed  their
lifestyle."  Id.  The Exxon Mobil  Court  found  plaintiff's  proof  of
damages for mental anguish lacking where the plaintiff  testified  that
he found being terminated  from  his  employment  "devastating,"  "life
changing," and "horrible."  Exxon Mobil Corp., 252 S.W.3d at 505.   His
wife testified that her husband was "devastated" when he  had  to  tell
his children that he lost his job.  Id.  A co-worker of  the  plaintiff
also testified that, when plaintiff was told  of  his  termination,  he
was "devastated," reacted  with  an  "emotional  outburst,"  was  in  a
"state of disbelief and  shock,"  "extremely  upset,"  and  "could  not
sleep that night."  Id.  (emphasis added).

      Here, Variyam testified  to  mental  anguish  that  substantially
affected his mental state at home and at work.  He  testified  that  he
was devastated, very  distraught,  and  disappointed.   The  defamation
disrupted his family and distracted him at home.  He acted  differently
at home and was  more  introspective---spending  time  looking  at  the
information.  He considered moving his family from Lubbock.   Work  was
also  disrupted  and  stressful.   He  was  distracted,   uncomfortable
returning  to  work,  embarrassed  when  he  saw  his  colleagues,  and
paranoid that people might  be  talking  behind  his  back.   He  still
thinks about the defamatory  statements---the  accusations  "are  still
stuck in his mind."  He fears that  others  who  saw  the  letter  will
communicate the statements further, worries how the letter will  affect
his future ability to practice medicine, fears  how  the  communication
to ACGME will affect him in the future practice of his profession,  and
continues  to  suffer  from  sleeplessness.    Because   of   Hancock's
statements, he testified he has  suffered  emotional  difficulties  and
has seen "an institutional person who has supported [him]."

      We agree with Variyam that his circumstances are  more  like  the
plaintiff's circumstances in Bentley  where  the  Texas  Supreme  Court
held that the plaintiff  satisfied  his  burden  of  proof  in  proving
mental anguish.  In Bentley, the plaintiff testified at trial that  the
defamation cost him time, deprived him of  sleep,  embarrassed  him  in
the community, disrupted his family life, distressed  his  children  at
school, depressed him, impugned his honor and integrity, was the  worst
experience in his life and caused his family to  suffer.   Bentley,  94
S.W.3d at 606.

      Having reviewed all the evidence, we  find  that  the  record  in
this case does not indicate that the jury's award of  past  and  future
mental anguish damages in the amount of $30,000  is  either  excessive,
or the result of passion, prejudice, or other improper influence.   The
amount was within the jury's discretion and we will not substitute  our
judgment for that of the jury.  See Peshak, 13 S.W.3d at  427  ("amount
of general damages is very difficult to  determine,  and  the  jury  is
given wide discretion in its estimation  of  them").   Accordingly,  we
find Variyam's evidence is legally and factually sufficient to  support
the  jury's  determination  that  $30,000  is  "fair  and   reasonable"
compensation for  past  and  future  mental  anguish  Variyam  suffered
because of Hancock's libel per se.

      Loss of Reputation

      In  support  of  his  contention  that  the  evidence  supporting
Variyam's award for past and future injury to his reputation,  $60,000,
is legally and factually insufficient, Hancock again cites Exxon  Mobil
Corp., supra.  Hancock asserts that, although  Variyam  felt  paranoid,
there is no evidence his colleagues believed Hancock's  statements  and
Dr. Wesson, who demoted Variyam, did not receive Hancock's  letter  and
had no opinion about Variyam's reputation for truthfulness.

      Because the  trial  court  correctly  determined  that  Hancock's
statements were libel  per  se,  "the  law  presumes  that  [Variyam's]
reputation has been injured thereby."  Leyendecker, 683 S.W.2d at  374;
see Mustang Athletic Corp. v. Monroe, 137 S.W.3d 336,  339  (Tex.App.--
Beaumont 2004, no pet.); ("In  Leyendecker  and  Bentley,  the  Supreme
Court of Texas held statements which are defamatory per  se  entitle  a
plaintiff, as a matter of law, to recover actual damages for injury  to
reputation."); Peshak, 13 S.W.3d at 427 ("In actions of libel  per  se,
the law presumes the existence of some  actual  damages,  requiring  no
independent proof of general damages.");  Ryder  Truck  Rentals,  Inc.,
593 S.W.2d at  337 (defamation per se entitles a plaintiff to  presumed
general damages for injury to character, reputation,  feelings,  mental
suffering or anguish, and other  wrongs  not  susceptible  to  monetary
valuation).  As such, Variyam was not required to  present  independent
evidence  that  his  reputation  was  harmed  or  that  his  colleagues
believed Hancock's statements.  Peshak, 13  S.W.3d  at  427.[13]   That
said, having reviewed the entire record, there is  sufficient  evidence
from which the jury could have inferred that  Variyam's  demotion  from
his position as Chief of  the  Gastroenterology  Division  and  ACGME's
denial of his application to  reinstate  the  Fellowship  Program  were
due, at least in part, to the statements in Hancock's letter which  was
published only weeks before these events took place.

        Furthermore, contrary to Hancock's  argument  that  Dr.  Wesson
did not receive Hancock's letter and had  no  opinion  about  Variyam's
reputation for truthfulness,  the  record  indicates  that  Dr.  Wesson
testified that he did "not remember receiving the letter"  although  he
"remembered the issues."  Further, in addition to  being  listed  as  a
recipient of Hancock's letter on its second page, Dr.  Wesson  appeared
very familiar with the letter's contents in subsequent e-mails  between
Dr. Wesson, Variyam, and other Texas Tech  officials  in  January  2006
and testified that he recalled consulting  with  Variyam  on  Hancock's
letter   and   its   potential   harm   to    the    application    for
reinstatement.[14]  Although Dr. Wesson may not have had an opinion  on
Variyam's reputation for truthfulness,  he  testified  that,  from  his
personal interactions with Variyam, he found Variyam to be  a  truthful
person and disagreed with  Hancock's  statements  that  Variyam  had  a
"reputation for lack of veracity," "deals  in  half  truths,"  and  his
"ethical behavior should be  challenged."   He  indicated  that  anyone
from the University Medical Center, Physician Network Services  or  any
physician who complained of  having  personality  issues  with  Variyam
never complained that Variyam was untruthful or dishonest.

       Hancock's  citation  to  Exxon  Mobil  Corp.,  supra,  is   also
unavailing.  The portions of Exxon Mobil Corp. cited  by  Hancock  were
relevant only to the Exxon Mobil Court's analysis of whether there  was
sufficient evidence to support the plaintiff's  award  of  damages  for
mental anguish, not injury  to  reputation.   Exxon  Mobil  Corp.,  252
S.W.3d at 505 n.10.  Moreover, Hancock fails to cite a single  case  in
support of his assertion that, where libel  per  se  is  found  by  the
trial court, the plaintiff must present independent evidence of  injury
to his or her reputation.

      Accordingly, we  find  the  evidence  is  legally  and  factually
sufficient to support the jury's award of $60,000 in damages  for  past
and future injury to Variyam's reputation  as  a  result  of  Hancock's
letter.

      Causation--Self-Publication

       Hancock  next  asserts  that,  because  Variyam   self-published
Hancock's   statements   a   week   after   Hancock    published    the
statements,[15] Variyam can recover no damages because he  suffered  no
harm or the trial court should have issued a charge that sought a  jury
determination of proportionate fault, i.e., did Variyam cause  some  of
his damages due to self-publication.  In support he cites the cases  of
Doe v. SmithKline  Beecham  Corp.,  855  S.W.2d  248  (Tex.App.--Austin
1993), aff'd as modified, 903 S.W.2d  347  (Tex.  1995)  and  Glenn  v.
Gidel, 496 S.W.2d 692, 698 (Tex.Civ.App.--Amarillo 1973, no writ).

      In Doe, an employment applicant, Doe,  asserted  that  SmithKline
libeled or slandered her by placing her in a  situation  in  which  she
felt  obligated  to  disclose  to  other  prospective   employers   the
circumstances of a drug test and the revocation of  SmithKline's  offer
of employment.  Doe, 855 S.W.2d at 259-260.  She did  not  allege  that
SmithKline published the defamatory  statement.   Id.   The  Doe  Court
affirmed summary judgment in favor of the defendant on  the  defamation
claim because there was no indication that Doe was compelled by law  or
other authority to report the  alleged  defamatory  statement  made  by
SmithKline.  Id. at 259.  In so doing, the  Doe  Court  relied  on  the
rule of law espoused in Lyle v. Waddle, 144 Tex.  90,  188  S.W.2d  770
(Tex. 1944), that "if the publication of which plaintiff complains  was
consented to, authorized, invited or procured by plaintiff,  he  cannot
recover for injuries sustained by reason of the publication."   Id.  at
772.

      Here, the circumstances are quite dissimilar.  First,  the  trial
court determined that Hancock's statements represented  libel  per  se.
Hence, there was no  need  to  show  Hancock's  statements  proximately
caused the injury to Variyam's reputation or mental anguish.  See  Fox,
98 S.W.3d at 726.  Secondly, the jury was specifically asked  to  limit
his damages to those damages "caused by the  January  2,  2006  letter"
from Hancock to Variyam's superiors and ACGME. Finally,  there  was  no
evidence at trial that Variyam "consented to,  authorized,  invited  or
procured" Hancock's publication.

      Neither does Glenn v. Gidel, supra, have  any  application  here.
On appeal it was determined that the trial court properly instructed  a
verdict favorable to all defendants where the record was devoid of  any
evidence  that  the  alleged  defamatory  statement  was  overheard  or
communicated to a third party.  Glenn,  496  S.W.2d  at  698.   In  the
absence of evidence of publication, the Glenn Court  held  the  alleged
defamation is not actionable citing the rule  in  Lyle,  supra.   Here,
there was ample evidence of the publication of Hancock's letter  before
Variyam sought a retraction.[16]

      To resolve what Hancock  asserts  to  be  equal  inferences  that
Variyam's injury resulted from his  own  self-publication  rather  than
Hancock's publication, he asserts the trial court should have issued  a
jury instruction which proportioned fault between Variyam and  Hancock,
i.e.,  asked  the  jury  whether  Variyam's  injuries  were  caused  by
Hancock's publication or Variyam's publication.  A party  objecting  to
a charge must point out distinctly the  objectionable  matter  and  the
grounds of the objection to the trial court.  See Wilgus v.  Bond,  730
S.W.2d 670, 672 (Tex. 1990).   Here,  the  trial  court  was  given  no
opportunity to correct the error Hancock now asserts.   Hancock  failed
to  state  such  an  objection  clearly  designating  the   error   and
explaining the grounds for the complaint.  See Wilgus,  730  S.W.2d  at
672.  As a result, any complaint  as  to  a  question,  definition,  or
instruction, on account of the alleged defect  or  omission  concerning
submission of the issue to the jury was waived.  See Tex.  R.  Civ.  P.
275; Kirkpatrick v. Memorial Hosp., 862  S.W.2d  762,  769  (Tex.App.--
Dallas 1993, writ denied); Borden, Inc. v. Rios, 850  S.W.2d  821,  826
(Tex.App.--Corpus Christi 1993, no writ).

      Exemplary Damages

       In   reviewing   whether   an   exemplary   damages   award   is
constitutional, we consider three "guideposts":  (1) the nature of  the
defendant's conduct, (2) the ratio between exemplary  and  compensatory
damages, and (3) the size  of  civil  penalties  in  comparable  cases.
Tony Gullo Motors I. L.P. v. Chapa, 212 S.W.3d  299,  308  (Tex.  2006)
(citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,  418,
123 S.Ct. 1513, 155  L.Ed.2d  585  (2003)).   The  reprehensibility  of
Hancock's  conduct  (the  most  important  of  these  guideposts);  id.
(quoting BMW of North America, Inc. v. Gore, 517  U.S.  559,  575,  116
S.Ct. 1589, 134 L.Ed.2d 809 (1996)),  depends  in  turn  on  five  more
factors, i.e., whether Hancock's conduct  (1)  caused  physical  rather
than economic harm, (2) threatened the health or safety of others,  (3)
threatened  someone  who  had  financial  vulnerability  (4)   involved
repeated action rather than an isolated  incident,  and  (5)  the  harm
resulted from intentional malice, trickery, or  deceit  as  opposed  to
mere accident.  Bennett v. Reynolds, 315 S.W.3d 867,  874  (Tex.  2010)
(citing State Farm, 538 U.S. at 419).[17]

      We find that the exemplary damages awarded to  Variyam  were  not
excessive because the ratio of general  damages  to  exemplary  damages
was less than 1 to 1; see Bennett, 315 S.W.3d  at  877  ("an  award  of
more than four times the amount of compensatory damages might be  close
to the line of constitutional impropriety") (quoting  State  Farm,  538
U.S. at 425), and we have two Bennett factors  present  that  establish
the  reprehensibility  of  Hancock's  conduct,  i.e.,  his   defamatory
statements were sent to multiple recipients, and his  conduct  was  the
result of intentional malice.  Compare Tony Gullo Motors I.  L.P.,  212
S.W.3d at 308-09 (exemplary  damages  push  the  constitutional  limits
where the ratio between general/economic and exemplary damages is  4.33
to 1 and only one factor of five  factors  analyzed  in  BMW  of  North
America, Inc., 517 U.S. 559, is present).

      Hancock's wrongful conduct involved the simultaneous  publication
of  his  defamatory  statements  to  two  of  Variyam's  superiors,   a
colleague and ACGME.  His conduct was also "the result  of  intentional
malice rather  than  mere  accident."   Bennett,  315  S.W.3d  at  878.
Hancock testified at trial  that  he  wrote  the  letter  when  he  was
extremely angry about his  dispute  with  Variyam  related  to  patient
transfers.  He knew the status of the ACGME application and  was  aware
that his letter would be seen by people at ACGME  including  physicians
from across the country.  His letter violated the established  protocol
at Texas Tech for communication with ACGME[18] and  he  was  aware  his
statements that Variyam had "a reputation  for  lack  of  truthfulness"
could have a "very, very serious effect on [Variyam's] character."   If
the letters were not true,  as  subsequently  found  by  the  jury,  he
testified he was "basically assassinating Variyam's  character."   From
this evidence, the jury could infer that Hancock not only  intended  to
injure Variyam's prospects with his present employer, Texas  Tech,  but
possible future prospects  of  employment  by  sending  the  letter  to
ACGME, an independent  organization  that  accredits  all  institutions
where medical training takes place nationwide.[19]

      In addition, the exemplary damages award is  comparable  in  size
to other defamation cases.  See Clark, 248 S.W.3d at 427 (jury  awarded
$100,000 in exemplary damages each against  two  defendants  for  libel
per se); Bunton v. Bentley, 176 S.W.3d 21,  23  (Tex.App.--Tyler  2005,
pet. denied), cert. denied, 547 U.S. 1013, 126 S.Ct. 1476, 164  L.Ed.2d
266  (2006)  ($1,000,000  exemplary   damages   award   reasonable   in
defamation case); Bradbury, 788 S.W.2d at 39 ($50,000 punitive  damages
award in libel per se case not excessive); Bolling, 671 S.W.2d  at  572
($60,000 punitive damages award in slander per se case not  excessive).
 Accordingly, issue two is overruled.

                     Issue Three - Anonymous Letter


       Hancock  next  asserts  the  trial  court  erred  in   admitting
testimony of the existence of an anonymous  letter  mailed  nearly  two
weeks after Hancock's January  2nd  letter  that  complained  to  ACGME
about the  Fellowship  Program.   Hancock  asserts  the  testimony  was
irrelevant; see Tex.  R.  Evid.  402,  and  the  original  writing  was
required to prove the content of the anonymous  letter.   See  Tex.  R.
Evid. 1002.

       Evidentiary  rulings  admitting  or   excluding   evidence   are
committed to the trial court's sound discretion;  Bay  Area  Healthcare
Group, LTD. v. McShane, 239  S.W.3d  231,  234  (Tex.  2007);  American
Protection Ins.  Co.  v.  Johnson,  171  S.W.3d  921,  923  (Tex.App.--
Amarillo 2005, no pet.), and, even if a trial court errs by  improperly
admitting evidence, reversal is warranted only if  the  error  probably
caused the rendition of an improper judgment.   See  Tex.  R.  App.  P.
44.1; Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43  (Tex.
1998).   Further,  we  review  the  entire  record  and   require   the
complaining party  to  demonstrate  that  the  judgment  turns  on  the
particular evidence admitted.  Bay Area  Healthcare  Group,  LTD.,  239
S.W.3d at 234.  See Allen v.  Creditwatch  Services,  LLC,  236  S.W.3d
315, 324 (Tex.App.--Corpus Christi 2007, pet.  denied  )  ("complaining
party must usually show that the whole case turned on the  evidence  at
issue").

      Hancock asserts the trial court should have excluded any and  all
evidence of the anonymous letter sent to ACGME.[20]  At trial,  Variyam
acknowledged, when testifying about the continuing process  related  to
the ACGME reinstatement application, that ACGME had received  a  letter
"from  an  anonymous  source"  and  he  wrote   a   letter   "basically
[responding] to the anonymous complaints"  received  by  ACGME  against
Drs. Farooq and Parupudi.  Variyam's letter to ACGME,  admitted  as  an
exhibit,  referenced  an  "unnamed  complainant"  and  summarized   the
anonymous complaints made against Drs. Farooq and Parupudi in a  single
paragraph.  The remainder of Variyam's five-page letter  addressed  the
qualifications and actions of Drs. Farooq and Parupudi,  and  Variyam's
efforts to assure ACGME that the Fellowship Program had sufficient  key
clinical faculty to maintain  the  program.   In  the  second  to  last
paragraph, the letter stated that  "[w]e  suspect  that  the  complaint
came from a disgruntled person who has some, but  incomplete  knowledge
of our division."  Dr. Hancock's name was not mentioned  in  connection
with Variyam's testimony regarding the anonymous letter sent to ACGME.

      Without specifically  stating  how  the  case,  or  any  material
issue, turned on this particular evidence, Hancock simply asserts  that
this testimony caused the rendition of  an  improper  judgment  because
the jury was  permitted  to  speculate  whether  Hancock  authored  the
anonymous letter.  Because Hancock's  statements  in  his  January  2nd
letter were found by the trial court to be libel per se, the  anonymous
letter was wholly irrelevant to the issue of  whether  Hancock's  prior
letter defamed Variyam.  See Allen, 236 S.W.3d  at  324.   Furthermore,
Variyam's responsive letter indicates that  the  anonymous  complainant
was someone other than Hancock who, from the record, appeared  to  have
complete knowledge of the Gastroenterology Division.   Accordingly,  we
find that, even if the trial court erred in admitting evidence  of  the
anonymous letter, any error was harmless.   See  Shearson  Lehman,  806
S.W.2d  at  927  (admission  of  anonymous  letter  harmless  error  in
defamation case where letter did not refer to a matter  dispositive  of
the case and did not establish that the  defendant  was  attempting  to
damage  the  plaintiff's  reputation).   Hancock's   third   issue   is
overruled.

                               Conclusion

      The trial court’s judgment is affirmed.


                                        Patrick A. Pirtle
                                              Justice
Quinn, C.J., not participating.

-----------------------
[1]For purposes of disclosure, we note  that  Justice  Hancock  is  not
related to Appellant.



[2]At all times relevant to this case, Hancock knew that ACGME  was  an
independent organization  that  accredits  institutions  where  medical
training takes place nationwide.  When Hancock  wrote  his  letter,  he
was aware  that  an  application  for  reinstatement  of  Texas  Tech's
Gastroenterology Fellowship was pending with ACGME and that Texas  Tech
and ACGME were scheduled to meet toward the  end  of  January  2006  to
decide the fate of Texas Tech's Fellowship  Program  of  which  Variyam
was the Program Director.  Hancock  was  also  aware  that  the  letter
would be received by ACGME's Residency Review  Committee,  a  committee
comprised of physicians who were  national  experts  in  the  field  of
gastroenterology  or  internal  medicine.   In  addition  to  Hancock's
letter,  ACGME  received  an  anonymous   letter   dated   January   19
complaining about two doctors, Farooq  and  Parupudi,  participants  in
the gastroenterology training program.

[3]From the Charge of the Court, question  1  addressed  the  statement
"reputation for lack of veracity"; whereas, question  2  addressed  the
statement "deals in half truths, which is legally the same as a lie."

[4]The jury awarded Variyam $30,000  for  loss  of  reputation  in  the
past, $30,000 for future loss of reputation, $15,000  for  past  mental
anguish and $15,000 for future mental anguish.

[5]Libel is defined by statute as "defamation expressed in  written  or
other graphic form that tends  to  .  .  .  injure  a  living  person's
reputation and thereby expose the person to . . . financial  injury  or
to impeach any person's honesty, integrity, virtue, or reputation  .  .
. ."  Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 2005).   Although
slander  is  not  statutorily  defined,  at  common  law  a  slanderous
statement is one that is orally communicated or published  to  a  third
person without legal excuse.  Randall's Food Markets  v.  Johnson,  891
S.W.2d 640, 646 (Tex. 1995).

[6]Hancock does not challenge whether the evidence  was  sufficient  to
establish that his statements  were  false,  published,  or  made  with
malice.

[7]"There can be no doubt that, at common law, to publish of  a  person
in writing that he was mendacious, or that he had uttered a  falsehood,
was libelous per se."  Fleming, 114 S.W. at 652.  "Such  a  publication
is a direct impeachment of the honesty  and  integrity  of  the  person
against whom it is directed, and its tendency necessarily is to  injure
him by exposing him to public hatred and contempt."  Id.

[8]If Hancock's  statements  were  constitutionally  protected  opinion
speech, his statements would  not  be  actionable.   See  Pisharodi  v.
Barrash, 116 S.W.3d  858,  862  (Tex.App.--Corpus  Christi  2003,  pet.
denied).

[9]In Milkovich, the United States Supreme Court stated as follows:

      If a speaker says, "In my opinion  John  Jones  is  a  liar,"  he
      implies knowledge of facts which  lead  to  the  conclusion  that
      Jones told an untruth.  Even if the speaker states the facts upon
      which he bases his opinion, if those facts are  either  incorrect
      or incomplete, or if his assessment of  them  is  erroneous,  the
      statement may still imply a  false  assertion  of  fact.   Simply
      couching such statements in terms  of  opinion  does  not  dispel
      these implications; and the statement, "In my opinion Jones is  a
      liar," can cause as much damage to reputation as  the  statement,
      "Jones is a liar."  As Judge Friendly aptly stated:  "[It]  would
      be destructive of the law of  libel  if  a  writer  could  escape
      liability for  accusations  of  [defamatory  conduct]  simply  by
      using, explicitly or  implicitly,  the  words  'I  think.'"   See
      Cianci v. New Times Publishing Co., 639  F.2d  54,  64  (2d  Cir.
      1980).

Milkovich, 497 U.S. at 18-19.

[10]Other courts  have  not  found  the  term  "dealing"  ambiguous  or
troubling in the defamation context.  For example,  see  Bradbury,  788
S.W.2d at 38 (letters that accused employee of "a lack of fidelity  and
honesty in her dealings with her employer"  were  actionable  per  se);
Butler v. Central Bank & Trust Co., 458 S.W.2d 510, 514 (Tex.Civ.App.--
Dallas 1970, writ dism'd) ("[t]o charge an employee with dishonesty  in
his dealing with his employer" is actionable per se).

[11]“In general, oral words, however opprobrious,  are  not  actionable
without proof of specific damages, unless they impute  to  another  the
commission of a crime or affect a person  injuriously  in  his  office,
profession  or  occupation.   Written   or   printed   words   charging
dishonesty,  fraud,  rascality,  or  general  depravity  are  generally
libelous per se, but not so when spoken orally."  Arant, 436 S.W.2d  at
176 (quoting 36 Tex.Jur.2d, Libel and Slander, § 3, pp. 282-83).

[12]Less than a scintilla of evidence exists when the  evidence  is  so
weak as to do no more than create a mere surmise or suspicion of  fact.
 King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751  (Tex.  2003),  cert.
denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004).

[13]"A third party is deemed to have understood the  defamatory  nature
of a statement  if  a  reasonable  person  would  have  understood  the
statement under the circumstances."  In re Perry,  423  B.R.  215,  267
(Bankr. S.D.  Tex.  2010)  (citing  Marshall  Fields  Stores,  Inc.  v.
Gardiner, 859 S.W.2d 391,  396  (Tex.App.--Houston  [1st  Dist.]  1993,
writ dism'd w.o.j.)).  A finding that a statement is defamatory per  se
subsumes the need for  such  a  determination.   See  Leyendecker,  683
S.W.2d at 374.

[14]Dr. Wesson testified that the effect of  Hancock's  letter  on  the
pending  reinstatement  application  with  ACGME   to   reinstate   the
Fellowship Program would have been negative.

[15]Hancock refers to a letter sent January  9,  2006,  by  Variyam  to
Hancock wherein Variyam references the defamatory  statements  made  in
Hancock's letter and requests that he make a retraction in the form  of
a written letter addressed to all the recipients of  Hancock's  January
2nd letter.  With the exception of ACGME, Variyam's letter copied  only
the recipients  of  Hancock's  letter,  Dean  Bernard  Mittemeyer,  Dr.
Donald Wesson,  and  Dr.  David  Hodges.   Thus,  Hancock  had  already
published his  libelous  statements  to  the  recipients  of  Variyam's
letter at least a  week  before  they  received  a  copy  of  Variyam's
letter.

[16]The evidence at trial showed that, in addition  to  the  addressees
of Hancock's letter, some form of publication of the letter's  contents
was made to Dr.  Eugene  Dabezies,  then  Chairman  of  the  Orthopedic
Surgery Department at Texas Tech.  He testified at trial that he  heard
of a  controversy  in  the  Gastroenterology  Department  involving  an
allegation that Variyam had a reputation for not  being  truthful,  but
it didn't make sense to him.  To the contrary, Dr.  Dabezies  testified
at trial that Variyam "was a truthful person," "well respected  in  the
medical community as  a  person  to  take  care  of  patients"  and  "a
scholar."



[17]Because we have determined Variyam is entitled to  recover  damages
for injury to reputation and  mental  anguish,  we  need  not  consider
Hancock's argument that Variyam is entitled  to  no  exemplary  damages
because  he  did  not  recover  actual  damages.   Under   Texas   law,
generally, the recovery of actual damages  is  a  prerequisite  to  the
receipt of exemplary damages.   Nabours  v.  Longview  Savings  &  Loan
Association, 700 S.W.2d 901, 903 (Tex. 1985).

[18]Dr. Surendra Varma, Associate Dean for Graduate  Medical  Education
and Chair of the Graduate Medical Education Committee  at  Texas  Tech,
testified that it was inappropriate for anyone to communicate  directly
with ACGME unless they were  the  Program  Director,  Variyam,  or  the
Designated  Information  Officer,  Jim  Watters.    In   addition,   he
testified it was an ACGME  requirement  that  all  correspondence  with
ACGME go through the Graduate Medical Education Committee.

[19]The fact that Hancock unnecessarily mailed an  additional  copy  of
the letter to ACGME reflects  a  malicious  intent.   Leyendecker,  683
S.W.2d at 375.

[20]We note that record references to an anonymous  letter  represented
isolated statements contained in four pages out of  over  five  hundred
thirty pages of testimony over a three day trial.   Further,  Variyam's
counsel did not mention the anonymous letter in either his  opening  or
closing statements.



