                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00334-CV


TRANSPORT CARE SERVICES                                           APPELLANTS
CORPORATION; ROBERT W.
HOGAN; AND JULIA HOGAN

                                       V.

SCOTT SHAW                                                           APPELLEE


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          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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                        MEMORANDUM OPINION 1

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      Appellants Transport Care Services Corporation, Robert W. Hogan, and

Julia Hogan appeal the trial court’s judgment in favor of appellee Scott Shaw for

defamation, intentional interference with past employment, and intentional

interference with future employment. We reverse and render.



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

         Shaw is a licensed paramedic. He began working for Transport Care, an

emergency medical services company owned by the Hogans, in June 2008. The

Hogans issued Shaw a company credit card to use for business purchases.

Shaw would occasionally use the credit card for personal expenses such as

lunch.    When Shaw made such purchases that were not legitimate business

expenses, the Hogans would deduct the funds from his paycheck to cover the

charges. Shaw also asked the Hogans to pay some of his bills directly out of his

pay. Shaw would not bring home any money from his job at Transport Care

some pay periods because of the deductions from his check.

         In order to earn extra money, Shaw began seeking additional employment

in early 2010. When Shaw told Robert Hogan about his intention to work a

second job, Robert became upset.       Then, in May 2010, Robert fired Shaw.

According to Shaw, Robert terminated him because of unauthorized credit card

purchases and because Shaw was going to start working for a competitor,

Guardian. Shaw began working for Guardian in June 2010.

         In August or September 2010, Robert filed a complaint with the Texas

Department of State Health Services (the Department). The complaint stated

that Shaw had used the company credit card for personal items and that he had

attempted to transport a patient from Red River Hospital without authorization

from Transport Care. In October 2010, Guardian asked Shaw to resign in lieu of




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termination.   Shaw contends Guardian asked him to resign because of the

complaint Robert filed with the Department.

      Four days after resigning from Guardian, Shaw began working as a

paramedic for North Star EMS. On November 15, 2010, Shaw’s subordinate at

North Star, Eddie Jackson, received two phone calls from Robert. North Star

recorded the calls. During the course of the first call, Robert learned that Shaw

worked as the company’s operations manager. Robert told Jackson that he felt

sorry for him and that North Star should conduct a background check on Shaw.

When Jackson asked Robert for his name, Robert said he was “Bob Harbin.”

Immediately after the first phone call, Robert called back and confessed that he

was not really Harbin but rather that he had worked with Shaw at Cooke County

EMS Association and that Harbin had been their boss. In fact, Robert had never

worked for Harbin at Cooke County EMS.

      After the phone conversations between Jackson and Robert, North Star

asked Shaw to sign a noncompete agreement.          Shaw refused and resigned.

Shaw was unsuccessful in his job search in the paramedic field after leaving

North Star. He believed it was because of the statements Robert had made to

Jackson and the complaint Robert had filed with the Department.

      Shaw sued Transport Care and the Hogans. A jury found that Robert had

intentionally interfered with Shaw’s employment with North Star, had intentionally

interfered with Shaw’s future employment, and had slandered Shaw in his

conversation with Eddie Jackson. The trial court awarded Shaw $50,000 for the


                                        3
intentional interference with his job with North Star, $50,000 for the intentional

interference with his prospective employment, and $50,000 in damages for lost

earnings caused by Robert’s slander.          The Hogans and Transport Care

subsequently filed this appeal.

                               Standard of Review

      All three of the appellants’ issues on appeal challenge the legal and factual

sufficiency of the evidence supporting the jury’s findings.

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).




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      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence that the answer should be set aside and

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)

(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,

395 S.W.2d 821, 823 (Tex. 1965).

                                    Discussion

I. Sufficiency of the Evidence for Defamation

      In their first issue, the appellants argue that there is insufficient evidence to

uphold the trial court’s damages award for slander. Defamation is the invasion of

a person’s interest in his or her reputation and good name, and it includes both

libel and slander.    Tomlinson v. McComas, No. 02-11-00175-CV, 2011 WL

5607604, at *4 (Tex. App.—Fort Worth Nov. 17, 2011, pet. denied) (mem. op.).

Slander is oral defamation. Bayoud v. Sigler, 555 S.W.2d 913, 915 (Tex. App.—

Waco 1977, writ dism’d).      A statement that tends to harm the reputation of

another as to lower him in the estimation of the community or to deter third

persons from associating or dealing with him is defamatory.              Hardwick v.

Houston Lighting & Power Co., 881 S.W.2d 195, 197 (Tex. App.—Corpus Christi

1994, writ dism’d w.o.j.).




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      A statement must contain a verifiable fact to be defamatory. Fort Worth

Star-Telegram v. Street, 61 S.W.3d 704, 709 (Tex. App.—Fort Worth 2001, pet

denied). Opinions are not defamatory. Vice v. Kasprzak, 318 S.W.3d 1, 22 (Tex.

App.—Houston [1st Dist.] 2009, pet denied). Whether a statement is a fact or an

opinion is a question of law for the court. Carr v. Brasher, 776 S.W.2d 567, 570

(Tex. 1989).

      The jury found three of Robert’s statements defamatory. For two of the

statements, made to the manager of an Exxon station, the jury awarded no

damages.       The appellants make no argument on appeal regarding those

statements, and we will not address them.

      Robert made the third allegedly defamatory statement during a phone call

with Shaw’s subordinate, Eddie Jackson, at North Star.           When Jackson told

Robert that Shaw was North Star’s operations manager, Robert said,

             I would suggest strongly that you check into his background,
      whoever—and—and check with people that he’s worked for in the
      last six years. . . . Because if he’s your new operations manager, I—
      I—I feel sorry for you. . . . I would tell his boss, whoever it is, to do a
      thorough background check. . . . There’s a lot that y’all don’t know,
      a whole lot. But because of HIPAA, everything is constrained. . . .
      And I—you know, for the betterment of EMS and your company, I
      would do a real thorough check, check here, real thorough.

      As stated above, an actionable defamatory statement must contain a

verifiable fact. Fort Worth Star-Telegram, 61 S.W.3d at 709. Nothing in Robert’s

statement is a fact that is capable of being verified. Robert’s sentiment that he

“fel[t] sorry” for North Star is nothing more than Robert’s opinion. See Brown v.



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Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 383 (Tex. App.—Houston [1st

Dist.] 2005, no pet.) (holding that the statement that the plaintiff was a “walking E

& O” was not an assertion of fact because it only expressed an opinion that the

plaintiff was likely to perform his work in a manner that would require his

employer’s errors and omissions insurer to provide coverage when he made a

mistake).

      His suggestion that North Star perform a background check is also not a

verifiable fact. Robert claims, “There’s a lot that y’all don’t know,” but he does

not state enough detail that would give rise to an actionable statement of fact.

See Associated Press v. Cook, 17 S.W.3d 447, 454 (Tex. App.—Houston [1st

Dist.] 2000, no pet.) (holding that statements that the plaintiff was “a blight on law

enforcement” and that his departure from law enforcement “was a culmination of

a lot of things, things too numerous to discuss” were defendant’s assertions of

opinion and not statements of fact). Shaw never explains what information would

be uncovered through the background check that Robert suggested North Star

perform.    At trial and on appeal, Shaw references the complaint that Robert

made to the Department, accusing Shaw of making unapproved charges on

Transport Care’s credit card and of inappropriately getting power of attorney over

a patient. But Shaw did not submit the statements that Robert made to the

Department to the jury and there is no finding that such statements were

defamatory.    If North Star conducted a background check and found these

complaints, any statement of Robert’s that the complaints existed certainly would


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not be false. Shaw argues that Robert’s statement, “There’s a lot that y’all don’t

know, a whole lot. But because of HIPAA, everything is constrained,” implies

undisclosed facts, thereby making Robert’s opinion actionable. See Bentley v.

Bunton, 94 S.W.3d 561, 584 (Tex. 2002). However, in the context of Robert’s

statements, Robert implied that if North Star did a background check on Shaw, it

would discover the information that Robert was “constrained” to reveal. The facts

underlying Robert’s opinion were therefore available for North Star to consider

and thus this case does not involve “an implication of undisclosed facts.” See

Rehak Creative Servs., Inc. v. Witt, No. 14-12-00658-CV, 2013 WL 2211654, at

*13 (Tex. App.—Houston [14th Dist.] May 21, 2013, no. pet. h.) (holding that

there was no implication of undisclosed facts when the documents that the

defendants claimed to rely upon for their opinion were linked to the website

where the allegedly defaming statements were made). 2


      2
        Shaw cites Milkovich v. Lorain Journal Co., 497 U.S. 1, 17–19, 110 S. Ct.
2695, 2705–06 (1990), and El Paso Times, Inc. v. Kerr, 706 S.W.2d 797, 799
(Tex App.—El Paso 1986, writ ref’d n.r.e.), cert. denied, 480 U.S. 932 (1987), in
support of his argument that there is no distinction between opinion and fact in
defamation. We first note that Milkovich and El Paso Times both involve media
defendants, which involve questions of freedom of speech particular to broadcast
media. See, e.g., Channel 4, KGBT v. Briggs, 759 S.W.2d 939, 944 (Tex. 1988)
(noting burdens on media defendants to defend their constitutionally guaranteed
rights “causes an erosion of freedom of expression and has a chilling effect on
the media’s role as a forum for the dissemination of ideas and information”).
Secondly, the supreme court affirmed in Milkovich that “a statement of opinion
relating to matters of public concern which does not contain a provably false
factual connotation will receive full constitutional protection.” 497 U.S. at 20, 110
S. Ct. at 2706; see El Paso Times, 706 S.W.2d at 798 (“All assertions of opinion
are protected by the First Amendment of the United States Constitution.”).


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      As a matter of law, Robert’s statements to Jackson do not rise to the level

of actionable defamation. Because those statements were the only ones for

which the jury awarded damages, the evidence is legally insufficient to support

the award of damages. The trial court therefore erred by awarding damages to

Shaw on his defamation claim, and we sustain the appellants’ first issue.

II. Intentional Interference with Past and Future Employment

      The appellants argue in their second and third issues that there is

insufficient evidence to support the trial court’s judgment that they intentionally

interfered with Shaw’s past and future employment.        To establish liability for

interference with a prospective contractual or business relation, Shaw must have

proved that he was harmed by conduct on the part of the appellants that was

either independently tortious or unlawful. See Wal–Mart Stores, Inc. v. Sturges,

52 S.W.3d 711, 713 (Tex. 2001).         Conduct that would violate some other

recognized tort or duty is “independently tortious.”     Id.   A claim of tortious

interference with existing employment also requires evidence of willful or

intentional interference. See Prudential Ins. Co. of Am. v. Fin. Review Servs.,

Inc., 29 S.W.3d 74, 77 (Tex. 2000).

      The only independent tortious acts to which Shaw points are Robert’s

recorded statements. 3    But as we have held, those statements were not


      3
      On appeal, Shaw arguably also points to the complaints filed by Robert to
the Department as other intentional acts committed by Robert meant to interfere
with Shaw’s employment. There was, however, no finding that the complaints
were defamatory or otherwise tortious or unlawful. See Wal–Mart Stores, 52

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defamatory as a matter of law. Shaw therefore did not prove an independently

tortious act by the Hogans or by Transport Care that would support his claim of

intentional interference. The trial court erred by granting judgment in Shaw’s

favor on his intentional interference with past and future employment causes of

action. See Tabor, Chhabra & Gibbs, P.A. v. Med. Legal Evaluations, Inc., 237

S.W.3d 762, 776 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding that

because plaintiff’s allegations of defamation were insufficient, his allegations of

intentional interference with past and prospective employment were also

insufficient when the defamation claim formed the basis of his claims of

intentional interference).   Accordingly, we sustain the appellants’ second and

third issues.

                                   Conclusion

      Having sustained the appellants’ three issues, we reverse the trial court’s

judgment in favor of Shaw. When we sustain a legal sufficiency issue, it is our

duty to render judgment for the appellants because that is the judgment the trial

court should have rendered. Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176

(Tex. 1986); see Tex. R. App. P. 43.3. We therefore render judgment that Shaw

take nothing on his claims against Transport Care and the Hogans.




S.W.3d at 713 (requiring the interfering act to be independently tortious or
unlawful). The complaints filed with the Department could not therefore support
Shaw’s intentional interference claims.


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                                          LEE GABRIEL
                                          JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DELIVERED: September 26, 2013




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