                                 IN THE
                         TENTH COURT OF APPEALS

                                    No. 10-11-00083-CV

PHONG VAN METER,
                                                            Appellant
v.

BENNIE DALE MORRIS,
                                                            Appellee



                          From the 249th District Court
                             Johnson County, Texas
                           Trial Court No. C200900562


                          MEMORANDUM OPINION


      In this appeal, appellant, Phong Van Meter, challenges the trial court’s final

judgment in favor of appellee, Bennie Dale Morris, regarding Morris’s claim for

defamation. By one issue, Van Meter argues that the evidence supporting the trial

court’s judgment is “not sufficient as a matter of law.” We affirm.

                               I.      FACTUAL BACKGROUND

      The dispute in this matter pertains to comments made by Van Meter to Morris

while Morris dined in Van Meter’s restaurant. Morris, a man who, by all accounts, has
a good reputation in the community, testified that he went to Van Meter’s restaurant

two or three times a day for twenty years. According to Morris, beginning in 2007 and

continuing in 2008, Van Meter began asking him, “Where is your wife” and “Where is

your husband.” These questions were asked when the restaurant was full of customers

and allegedly referred to Morris’s friend, Glen Warren. In his affidavit, Morris averred

that Van Meter’s questions implied that he and Warren were involved in a homosexual

relationship, even though both testified that they were heterosexual. Morris asked Van

Meter to stop asking such questions, but she persisted. Van Meter purportedly told

Morris that it would take a lawsuit to get her to stop asking such questions. Morris

testified that he was embarrassed and upset about the questioning. Warren noted that

Morris became very stressed as a result of the questioning. In fact, shortly after he

stopped frequenting Van Meter’s restaurant, Morris suffered a stroke. When asked

whether Van Meter’s questions were intended to harass him, Morris responded that

Van Meter is “an evil old person” who is incapable of understanding how badly her

questions made him feel. Morris later testified that he earns a living by “build[ing]

driveways and spread[ing] sand for fixing yards around houses” and that, as a result of

Van Meter’s comments, his business suffered. However, he later admitted that his

business may have declined as a result of the economy.1

       On cross-examination, Morris stated that “some of [his] friends told [him] that

[Van Meter] was saying [he was gay].” But, he later acknowledged that Van Meter


       1  When asked about the effect of the economy on Morris’s business, Warren disagreed that the
decline associated with Morris’s business was due to the economy; rather, Warren claimed that the
decline in Morris’s business was attributable to Van Meter’s comments.

Van Meter v. Morris                                                                          Page 2
never specifically stated that he and Warren “were homosexual lovers.” Morris also

admitted that Van Meter’s comments did not prompt him to see a psychiatrist or

psychologist, nor did they cause him to attempt to commit suicide.

       Warren noted that Van Meter continued with the questioning until he stopped

frequenting the restaurant. Warren also recalled an instance where he saw Van Meter

and a waitress named Debbie outside of the restaurant, presumably on break. During

the break, Warren observed Debbie climb on the top of his truck and write the

following on his windshield, “Looking for gay friends.” Warren testified that he saw

Van Meter laugh when Debbie wrote this statement on his windshield. Like Morris,

Warren was embarrassed and upset about the comments. With respect to Morris’s

suffering as a result of the comments, Warren stated the following: “Well, he kind of

stays to himself a lot more. He doesn’t go there no more. We go like to outside of

Alvarado—or he does, I do as well. We just on occasion drive through Alvarado, but

we do not stop at Frank’s Place [Van Meter’s restaurant].” Warren later admitted that

he never heard Van Meter specifically allege that he and Morris were “homosexual

lovers.”

       Douglas Lee, Morris’s friend of about ten years, testified that he heard Van Meter

ask Morris, “Where was his girlfriend.” Lee did not understand the question to imply

that Morris and Warren were “homosexual lovers,” but he could see that others who

did not know Morris or Warren “would take it the wrong way.” Lee also recalled that

Van Meter’s questions were loud enough for others in the restaurant to hear. Lee later




Van Meter v. Morris                                                                Page 3
testified that he did not believe Van Meter’s comments were made intentionally or with

knowledge that Morris would be upset when hearing the comments.

       Dillon Hammons, Morris’s friend of “two or three years,” testified that he had

never heard Van Meter make derogatory comments about Morris or Warren. However,

based on Morris and Warren’s statements, he believed that Van Meter had made

derogatory comments and described the effect of her comments on Morris as follows:

       It seemed like it has caused him some, I guess, mental stress or whatever.
       I know he’s had a stroke recently. But mental, you know, what—let’s see,
       what would be the word for it? I’m trying to think here. Anyway—

               ....

       Yes, that’s what I’m trying to say, emotional.

               ....

       Yeah. As far as, you know, like going back to the mental, he seems—like
       he has the stroke, it affected, repeats himself a little bit, affecting his
       character, you know, seems stressed out about the deal. He’s talked about
       it to me quite a bit.

Hammons also noted that Van Meter’s comments affected Morris’s business:

       I believe more than likely it has. I know at the time he was doing a little
       bit or work spreading gravel and if, you know, the way society is about
       that type of people, I don’t know if that [it] maybe run [sic] some of his
       business off, you know, people hearing him, you know, rumored that he
       was a homosexual.

                          II.    PROCEDURAL BACKGROUND

       On October 6, 2009, Morris filed his original petition, asserting a claim for

defamation. He later amended his petition to include: (1) claims for intentional and

negligent infliction of emotional distress; and (2) a request for injunctive relief. After a


Van Meter v. Morris                                                                   Page 4
trial before the bench, the trial court concluded that Morris had proved his defamation

claim and awarded him $5,000 in mental-anguish damages.                         The trial court also

permanently enjoined Van Meter from “making or publishing defamatory, libelous[,]

and slanderous statements to the detriment of Plaintiff and his reputation in the

community, including but not limited to statements which would convey or insinuate

that the Plaintiff and Glenn [sic] Milford Warren are homosexual partners or lovers.”2

Thereafter, Van Meter filed motions to set aside the judgment and for new trial, both of

which were overruled by operation of law. See TEX. R. CIV. P. 329b(c). Further, at the

urging of Van Meter, the trial court issued numerous findings of fact and conclusions of

law. This appeal followed.

                                     III.    STANDARD OF REVIEW

        A trial court’s findings of fact in a bench trial “have the same force and dignity as

the jury’s verdict upon questions.” Anderson v. City of Seven Points, 806 S.W.2d 791, 794

(Tex. 1991). Further, “[w]hen the trial court acts as a fact[-]finder, its findings are

reviewed under legal and factual sufficiency standards.” In re Doe, 19 S.W.3d 249, 253

(Tex. 2000).

        We review the trial court’s conclusions of law de novo. See BMC Software Belg.,

N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Conclusions of law are upheld if the

judgment can be sustained on any legal theory the evidence supports. See Stable Energy,

L.P. v. Newberry, 999 S.W.2d 538, 547 (Tex. App.—Austin 1999, pet. denied); see also



        2 On appeal, Van Meter does not challenge the propriety of the trial court’s permanent injunction.
Instead, she focuses her argument on the portion of the trial court’s judgment pertaining to defamation.

Van Meter v. Morris                                                                                Page 5
Fulgham v. Fischer, No. 05-10-00097-CV, 2011 Tex. App. LEXIS 5865, at *6 (Tex. App.—

Dallas July 29, 2011, no pet.). Thus, incorrect conclusions of law do not require reversal

if the controlling findings of fact support the judgment under a correct legal theory. See

Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App.—

Austin 1992, no writ); see also Fulgham, 2011 Tex. App. LEXIS 5865, at *6. Moreover,

conclusions of law may not be reversed unless they are erroneous as a matter of law.

Westech Eng’g, Inc., 835 S.W.2d at 196.

          In reviewing for legal sufficiency of the evidence, we consider the evidence in the

light most favorable to the trial court’s finding. See AutoZone, Inc. v. Reyes, 272 S.W.3d

588, 592 (Tex. 2008).             The test for legal sufficiency “must always be whether the

evidence at trial would enable [a] reasonable and fair-minded [fact-finder] to reach the

[conclusion] under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We

must credit favorable evidence if a reasonable fact-finder could, and disregard contrary

evidence unless a reasonable fact-finder could not. Id. The fact-finder is the sole judge

of the credibility of the witnesses and the weight to be assigned to their testimony. Id.

at 819.

                                                   IV.     ANALYSIS3

          In her sole issue, Van Meter asserts that the evidence supporting the trial court’s

judgment pertaining to Morris’s defamation claim is insufficient as a matter of law. We

disagree.




          3   Morris has not filed an appellee’s brief in this matter.

Van Meter v. Morris                                                                    Page 6
A. Defamation

       For a private individual to sustain a defamation claim, the plaintiff must prove

that: (1) the defendant published a false statement about the plaintiff; (2) the statement

was defamatory concerning the plaintiff; and (3) the defendant acted with either actual

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

was a private individual, regarding the truth of the statement.            WFAA-TV, Inc. v.

McLemore, 978 S.W.2d 568, 571 (Tex. 1998). 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) (libel); RESTATEMENT

(SECOND)   OF   TORTS § 559 (1977) (defamation).         A communication that is merely

unflattering, abusive, annoying, irksome, or embarrassing, or that hurts only the

plaintiff’s feelings, however, is not actionable. Means v. ABCABCO, Inc., 315 S.W.3d 209,

214 (Tex. App.—Austin 2010, no pet.). “To be defamatory, a statement should be

derogatory, degrading, and somewhat shocking, and contain elements of personal

disgrace.” Id. (internal quotations and citations omitted).

       “Whether a given statement is reasonably capable of a defamatory meaning is a

question to be decided by the trial court as a matter of law.” Hancock v. Variyam, 345

S.W.3d 157, 164 (Tex. App.—Amarillo 2011, pet. filed) (citing Musser v. Smith Protective

Servs., Inc., 723 S.W.2d 653, 654-55 (Tex. 1987)). “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

Van Meter v. Morris                                                                       Page 7
perceive it, considering the surrounding circumstances and the context of the

statement.” Id. (citing New Times, Inc. v. Isaacks, 146 S.W.3d 144, 153 (Tex. 2003); Turner

v. KTRK TV, Inc., 38 S.W.3d 103, 114 (Tex. 2000)). “This is an objective test, not a

subjective one.” Id. (citing Issacks, 146 S.W.3d at 157). “Thus, the parties’ opinion of the

statements . . . or the defendant’s intent in making the statements have no bearing on

whether they are defamatory.” Id. (internal citations omitted).

       Slander constitutes a “defamatory statement that is orally communicated or

published to a third person without legal excuse.” Randall’s Food Mkts. v. Johnson, 891

S.W.2d 640, 646 (Tex. 1995). A statement may be slander per se or slander per quod.

Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex. App.—Waco 2005, no pet.). If the statement

is slander per quod, the plaintiff must present proof of actual damages. Id. If the

statement is slander per se, no independent proof of damage to the plaintiff’s reputation

or of mental anguish is required, as the slander itself gives rise to a presumption of

these damages. Id. To be considered slander per se, the statement must (1) impute the

commission of a crime; (2) impute contraction of a loathsome disease; (3) cause injury to

a person’s office, business, profession, or calling; or (4) impute sexual misconduct. Id.

Whether words are capable of the defamatory meaning the plaintiff attributes to them is

a question of law for the court. Id.

B. Mental-Anguish Damages

       To recover mental-anguish damages, a plaintiff must produce:             (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

Van Meter v. Morris                                                                   Page 8
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).

“Not only must there be evidence of the existence of compensable mental anguish, 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). The fact-finder “cannot simply pick a

number and put it in the blank.” Id. “There must be evidence that the amount found is

fair and reasonable compensation.” Id.

C. Discussion

        Van Meter does not challenge a specific finding made by the trial court; instead,

she generally argues that the trial court’s judgment is not supported by sufficient

evidence.4 “A party appealing from a nonjury trial in which the trial court made

findings of fact and conclusions of law should direct his attack on the sufficiency of the

evidence at specific findings of facts, rather than at the judgment as a whole.” Shaw v.

County of Dallas, 251 S.W.3d 165, 169 (Tex. App.—Dallas 2008, pet. denied) (citing Nw.

Park Homeowners Ass’n, Inc. v. Brundrett, 970 S.W.2d 700, 704 (Tex. App.—Amarillo 1998,

pet. denied)). Unchallenged findings of fact are binding on an appellate court unless

the contrary is established as a matter of law or there is no evidence to support the

findings. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Tarrant Reg’l

Water Dist. v. Gragg, 43 S.W.3d 609, 618-19 (Tex. App.—Waco 2001), aff’d, 151 S.W.3d 546


        4  We also note that Van Meter’s appellate brief contains a section, entitled “Appendix”; however,
no documents are attached as appendices, though the record is very small. See TEX. R. APP. P. 38.1(k)
(providing that, unless voluminous or impracticable, the appendix in civil cases must include, among
other things, the trial court’s judgment or the appealable order from which relief is sought and the trial
court’s findings of fact and conclusions of law).

Van Meter v. Morris                                                                                Page 9
(Tex. 2004); see also Plantation Prod. Props., L.L.C. v. Meeks, No. 10-02-00029-CV, 2004 Tex.

App. LEXIS 8206, at *10 (Tex. App.—Waco Sept. 8, 2004, no pet.) (mem. op.).

       In its findings of fact, the trial court noted the following, among other things:

       5. In 2007, the Defendant began routinely making comments in front of
       other customers insinuating that the Plaintiff and Mr. Warren were
       homosexual partners or lovers, often referring to them as husband and
       wife. She would frequently ask who the man was and who was the
       woman in the relationship in front of employees and other customers.

       6. When asked by both men for her to stop making such comments, the
       Defendant became even more vociferous in her comments in front of other
       patrons at the cafe, which caused both the Plaintiff and Mr. Warren a great
       deal of public embarrassment and emotional distress.

       7. Plaintiff and other witnesses testified to [sic] during the trial that
       Defendant repeatedly made these types of statements over Plaintiff’s and
       Mr. Warren’s repeated objections.

       8. Plaintiff testified that he was concerned that other patrons of the
       establishment would take these statements as true, and that he definitely
       suffered humiliation and damage to his reputation.

       9. Plaintiff believed that the Defendant’s repeated statements had an
       adverse effect on his character in the community, as well as his family
       members, and impugned his character as a businessman in the
       community.

               ....

       11.  The Defendant continued to willfully and maliciously make
       comments of the same or similar nature in front of other patrons and
       employees, thus causing Plaintiff extreme public humiliation and
       embarrassment.

       12. There is ample evidence before the Court that Defendant’s comments
       were extreme and outrageous.

               ....




Van Meter v. Morris                                                                   Page 10
       17. The Plaintiff testified that he was caused to suffer pecuniary injuries in
       the amount of not less than $10,000.00, as well as court costs in the amount
       of $289.00.

       Morris testified that Van Meter repeatedly made false and derogatory comments

to other customers and employees at Van Meter’s restaurant about Warren and him,

insinuating that they had a homosexual relationship. Morris further testified that he

was very embarrassed and humiliated by the comments and that, in addition to court

costs and attorney’s fees associated with this matter, he sustained approximately

$10,000 in damages to his business and reputation as a result of the comments. While

we recognize that Morris admitted that the reduction in his business could have been

attributed to the slow-down in the economy, Warren and Hammons stated that

Morris’s business suffered due to Van Meter’s comments and Morris noted that people

probably stopped doing business with him after Van Meter began making the

comments. See Shaw, 251 S.W.3d at 169 (“Additionally, in a nonjury trial, the trial court

is the sole judge of the credibility of the witnesses and the testimony’s weight. The trial

court may believe one witness and disbelieve others and may resolve any

inconsistencies in a witness’s testimony.” (internal citation omitted)).       In addition,

Warren and Hammons implied Morris sustained a stroke because of the stress caused

by Van Meter’s comments. Furthermore, Van Meter did not call any witnesses, nor did

she offer any testimony to refute any of the evidence proffered by Morris at trial.

       In disregarding all evidence contrary to the trial court’s findings, as we are

required to do, we find that there is some evidence supporting the trial court’s factual

findings.   See McGalliard, 722 S.W.2d at 696-697 (“To determine a ‘no evidence’ or

Van Meter v. Morris                                                                     Page 11
‘matter of law’ point[,] this Court must disregard all evidence contrary to the trial

court’s finding, and if there is any remaining evidence which would support the verdict

or judgment, the trial court’s judgment must be upheld. If, after the removal of all

contrary evidence, this [C]ourt finds an absence of any evidence which would support

the verdict or judgment, a contrary conclusion to the verdict or judgment is required as

a matter of law.” (internal citation omitted)); see also City of Keller, 168 S.W.3d at 827. As

a result, in considering whether Morris proved his defamation claim, we are bound by

the findings of fact that the trial court made. See McGalliard, 722 S.W.2d at 696; Gragg,

43 S.W.3d at 618-19; see also Meeks, 2004 Tex. App. LEXIS 8206, at *10.

       In its conclusions of law, the trial court stated that Van Meter’s comments were

per se slanderous and determined that Morris sustained $5,000 in mental-anguish

damages. Using the trial court’s findings of fact and considering the surrounding

circumstances, we conclude that there is sufficient evidence to support the trial court’s

conclusions that: (1) Van Meter made derogatory and degrading false statements about

Morris to others; (2) the statements caused Morris a high degree of stress, which Warren

and Hammons testified probably caused Morris to have a stroke, and injury to his

business and reputation; and (3) the statements were made negligently with regard to

the truth and were intended to expose Morris to public hatred, contempt, ridicule, or

financial injury; and (4) Morris sustained $5,000 in mental-anguish damages as a result

of Van Meter’s extreme and outrageous comments. See Issacks, 146 S.W.3d at 153;

McLemore, 978 S.W.2d at 571; Woodruff, 901 S.W.2d at 444; Johnson, 891 S.W.2d at 646; see

also Hancock, 345 S.W.3d at 164; Means, 315 S.W.3d at 214. As a result, we further

Van Meter v. Morris                                                                    Page 12
conclude that the record contains sufficient evidence establishing that Van Meter’s

statements were per se slanderous, especially considering that the record supports the

trial court’s findings that Morris’s business sustained losses and Morris’s reputation

was harmed as a result of Van Meter’s statements. See Johnson, 891 S.W.2d at 646; see

also Moore, 166 S.W.3d at 384. Accordingly, we hold that there is sufficient evidence

establishing Morris’s defamation claim. See Issacks, 146 S.W.3d at 153; McLemore, 978

S.W.2d at 571; Woodruff, 901 S.W.2d at 444; Johnson, 891 S.W.2d at 646; see also Hancock,

345 S.W.3d at 164; Means, 315 S.W.3d at 214. Van Meter’s sole issue in this appeal is

overruled.

                                    V.     CONCLUSION

       We affirm the judgment of the trial court.



                                                AL SCOGGINS
                                                Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       Affirmed
Opinion delivered and filed December 14, 2011
[CV06]




Van Meter v. Morris                                                               Page 13
