Deborah Downing v. Don Burns and Sherry Burns

• Court: Court of Appeals of Texas
• Decided: July 28, 2011
• Docket: 14-09-00718-CV
• Status: Published

Opinion

Reversed and Remanded and Majority and Dissenting Opinions filed July 28, 2011.

In The

Fourteenth Court of Appeals

___________________

NO. 14-09-00718-CV

Deborah Downing, Appellant

V.

Don Burns and Sherry Burns, Appellees

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 07-DCV-154732

OPINION

            Before Deborah Downing resigned from her job as an assistant to realtor Don Burns, she copied several pages from the office policy and procedures manual she had written for him.  After they learned of this, Don and his wife Sherry told several people that Downing stole from them, and that they would sue anyone who employed her if the material was not returned.  When Downing was fired from her two subsequent jobs, she sued the Burnses for tortious interference and defamation, and they countersued for theft of trade secrets.  The jury found in Downing’s favor on all three claims, but the trial court entered judgment in her favor on only the tortious-interference and theft claims.  Both sides appealed.

            We conclude that the Burnses did not defeat Downing’s recovery by conclusively proving their counterclaim for theft of trade secrets.  Further, the evidence is legally and factually sufficient to support the jury’s findings that the Burnses are liable to Downing for defamation and for tortious interference with contract; however, the record does not support the full amount of damages awarded by the trial court on Downing’s tortious-interference claim.  Because the tortious-interference claim is not separable from the defamation and theft claims without unfairness to the parties, we reverse the judgment and remand the case for a new trial without addressing the remaining issues. 

I.  Background

            For nearly two years, Deborah Downing was employed as Don Burns’s assistant at his real-estate agency.  Just before Downing resigned in late September 2006, she copied several pages from the policy and procedures manual she had written for the agency. 

            In October or November of 2006, Downing accepted two part-time jobs as the office manager for realtors Christine Fuentes and Sima Dalvandi.  Both realtors were affiliated with a Keller Williams real-estate agency.  Downing worked a total of about thirty hours per week for Fuentes and Dalvandi, and was paid separately by each.  Dalvandi paid Downing $17.50 per hour, but Fuentes paid Downing no more than $12.50 per hour. 

            In mid-November of that year, the Burnses’ attorney wrote to Downing, alleging that she had copied confidential, proprietary marketing plans and client care-packages.  The attorney demanded that Downing return the material and informed her that the Burnses would sue her if she failed to do so.  Downing responded that she had no such material, and she identified the four pages of material she had copied from the policy and procedures manual. 

            Also that autumn, Sherry learned from her friend Bernadette Hurley that Downing had begun working for realtors at a Keller Williams real estate agency.  Sherry told Hurley that Downing had stolen the Burnses’ policy and procedures manual, and by January of 2007, the story had reached Andy St. Jean, another officer manager at the Keller Williams agency.  St. Jean telephoned Sherry, but was unable to reach her.  Sherry returned St. Jean’s call and repeated her allegation that Downing had stolen the Burnses’ policy and procedures manual.  Sherry also asked St. Jean if Downing, before accepting her current employment, notified others at the Keller Williams agency that the Burnses’ attorney had demanded that she return the material.  Sherry told St. Jean that the Burnses’ attorney notified Downing that if she did not return the materials, the Burnses would sue Downing and anyone who employed her.[1] 

            Sherry’s statements to St. Jean were repeated to Fuentes, one of Downing’s employers.  When Fuentes learned that the Burnses had threatened to sue anyone that employed Downing, Fuentes fired her.  Fuentes testified that she did not believe the allegations of theft, but she fired Downing because she could not afford to be sued and “did not want to be a party to a frivolous lawsuit.”  Dalvandi terminated Downing’s employment at the same time, but Downing offered no evidence at trial that Dalvandi was aware of the Burnses’ allegations or their threat of litigation.[2]  Downing remained unemployed until April 2008, when she began working part-time at a residential facility for people with Alzheimer’s disease. 

            When Downing was leaving the Keller Williams agency, she told co-worker Eulalia Castillo of the Burnses’ threats.  As Don’s friend and former employee, Castillo telephoned him about the allegations against Downing.  Don told Castillo that Downing not only had taken a copy of his marketing secrets but also had stolen his clients’ option checks.  Castillo did not believe this and said there had to be some mistake, but Don ended the conversation.[3]

            The same month that Downing was terminated, Fuentes and the Burnses attended a meeting of the Houston Association of Realtors, referred to by the witnesses as HAR.  Fuentes introduced herself to Don, told him she had heard that the Burnses planned to sue anyone that hired Downing, and expressed the hope that she was not a party to any lawsuit.  Don walked away from Fuentes, but sent Sherry to speak to her.  Fuentes repeated to Sherry that she hoped the Burnses were not planning to sue her.  Sherry responded by asking if Downing still worked for Fuentes, and when Fuentes said that Downing did not, Sherry said, “[W]ell, then you don’t have to worry about being sued.”  Sherry also told Fuentes that Downing had stolen money or checks from the Burnses. 

            The rumor that Downing had stolen from the Burnses apparently spread to others in the industry.  At luncheon meeting of the same professional association,[4] Mary Stuart approached Sherry to discuss Downing.  As Sherry later testified, Stuart expressed disbelief, but Sherry told her, “yes, it’s true.” 

            Downing sued the Burnses for defamation and tortious interference with contract, and the Burnses asserted the affirmative defenses of justification and qualified privilege and counterclaimed for theft of trade secrets.[5]  At trial, Downing offered into evidence her own response to a request for disclosure of the amount of her economic damages, together with a description of the method used to calculate such damages.  She concluded that her known economic damages were $57,230.00.  During closing argument, her attorney told the jury that the damages caused by the Burnses’ defamation were the same as those caused by their tortious interference, and argued that the jury should answer the damage questions for each by referring to the calculation in this exhibit.  The trial court refused to submit questions to the jury about the Burnses’ affirmative defenses of justification and qualified privilege

            A unanimous jury found that Downing did not commit theft of trade secrets and that the Burnses tortiously interfered with Downing’s employment and defamed her.  As compensation, the jury found that Downing was entitled to recover $100,000.00 from the Burnses—$57,230.00 for tortious interference and $42,770.00 for defamation. 

            The Burnses moved for judgment notwithstanding the verdict.  As to the claim that they tortiously interfered with Downing’s employment contract, the Burnses argued that their statements about Downing were privileged as a matter of law, and in any event, the evidence did not support the jury’s damages finding on that claim.  The Burnses argued that Downing could not recover on her defamation claim because (a) Downing admitted copying and retaining material from the policy and procedures manual, thereby proving the truth of the Burnses’ allegedly defamatory statements; (b) there is no medical evidence that Downing suffered mental anguish; and (c) there is no evidence of any kind that the Burnses’ statements damaged Downing’s reputation.  In response to Downing’s motion for verdict on the judgment, the Burnses additionally argued that Downing could not recover on both her defamation and tortious-interference claims because such an award would be an impermissible double recovery.  The trial court granted the Burnses’ motion only as it pertained to the defamation claim and entered final judgment in Downing’s favor on the tortious-interference claim, together with interest and costs.  The Burnses immediately filed for bankruptcy protection, and Downing filed a motion for relief from the automatic stay.  When the motion was granted, Downing appealed the trial court’s partial grant of the Burnses’ motion for judgment notwithstanding the judgment.  After moving unsuccessfully for a new trial on legal and factual sufficiency grounds, the Burnses appealed the trial court’s partial denial of their motion for judgment notwithstanding the verdict.  

II.  Issues Presented

            Downing contends that the trial court erred in partially granting the Burnses’ motion for judgment notwithstanding the verdict, and she asks that we render judgment on both her defamation and tortious-interference claims in the full amount found by the jury.  The Burnses ask that we render judgment in their favor on their counterclaim on the ground that they conclusively established that Downing stole trade secrets from them.  They also argue that the evidence is legally and factually insufficient to support the jury’s liability and damage findings on Downing’s tortious-interference claim.  They further assert that the trial court abused its discretion in failing to submit questions to the jury concerning their affirmative defenses. 

II.  Analysis

            Before addressing those issues that would result only in remand, we must first consider the points on which we could render judgment.  Lone Star Gas Co., v. R.R. Comm’n of Tex., 767 S.W.2d 709, 710 (Tex. 1989) (per curiam).  If we accept the Burnses’ argument that they conclusively proved theft of trade secrets, we could render a take-nothing judgment on Downing’s tortious-interference claim.  And if the Burnses are correct in arguing that the record does not support the jury’s defamation-damages finding, then we could render judgment in their favor on that claim as well.  We therefore begin our analysis with these issues, each of which requires us to review the legal sufficiency of the evidence.

            Judgment without or against a jury verdict is proper only when the law does not permit reasonable jurors to decide otherwise.  City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).  We therefore review judgments notwithstanding the verdict for legal sufficiency of the evidence supporting the verdict, bearing in mind that it is the jury’s province to evaluate witness credibility and determine the weight to attach to testimony.  Envtl. Procedures, Inc. v. Guidry, 282 S.W.3d 602, 626 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (citing City of Keller, 168 S.W.3d at 819).  We consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it, crediting favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not.  See City of Keller, 168 S.W.3d at 823, 827.  If the evidence viewed in this light would enable reasonable and fair-minded people to find the challenged fact, then judgment notwithstanding the verdict is improper.  See id.  Thus, when the party who bore the burden of proof on an issue attacks the legal sufficiency of the evidence supporting the jury’s adverse finding, that party must demonstrate that the evidence conclusively established the opposite of the jury’s finding.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam).

A.        Theft of Trade Secrets

            The Burnses argue that the evidence—and in particular, Downing’s admission that she took copies of several pages of the policy and procedures manual—conclusively establishes Downing’s liability for theft.  They therefore contend that the trial court erred in failing to grant their motion for judgment notwithstanding the verdict on this basis.  We disagree.

            The jury charge regarding the Burnses’ theft counterclaim contained the following instruction:

“Theft” is defined as unlawfully appropriating property that is a trade secret.  A person commits theft if without the owner’s consent, he knowingly: (1) steals a trade secret or (2) communicates or transmits a trade secret.  “Trade secret” means the whole or any part of any scientific or technical information, design, process, procedure, formula, or improvement that has value and the owner has taken measures to prevent from becoming available to persons other than those selected by the owner to have access for limited purposes.

            By this instruction, the trial court charged the jury to determine Downing’s liability under the Texas Theft Liability Act, which pertains only to theft of trade secrets.  See Tex. Civ. Prac. & Rem. Code § 134.001 et seq. (West 2011).  To be a trade secret, “the information, design, process, formula or improvement must not only be a secret, but must also be generally unavailable to the public and it must give one who uses it an advantage over competitors that do not know of or use the trade secret.”  See McGowan v. State, 938 S.W.2d 732, 738 (Tex. App.—Houston [14th Dist.] 1996), aff’d sub nom. Weightman v. State, 975 S.W.2d 621 (Tex. Crim. App. 1998) (en banc).  When determining whether information constitutes a trade secret, courts consider factors such as (1) the extent to which the information is known outside of the owner’s business; (2) the extent to which it is known by employees and others involved in the owner’s business; (3) the extent of the measures taken to guard the information’s secrecy; (4) the information’s value to the owner and his competitors; (5) the amount of effort or money the owner expended to develop the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.  In re Bass, 113 S.W.3d 735, 739 (Tex. 2003) (citing Restatement of Torts § 757 cmt. B (1939) and Restatement (Third) of Unfair Competition § 39 cmt. d (1995)).

            On this record, a reasonable jury could find that Downing retained copies of only four pages from the manual, and that these pages contained no trade secrets.  One of these pages contains instructions for adding a picture to an email template and saving the template.  One page contains instructions for purchasing postage online from the United States Postal Service, together with Don’s password for that website.  The remaining two pages contain step-by-step instructions for accessing the website of the Houston Association of Realtors and the website of a company identified as Centralized Showing Service, together with Don’s password for each of these sites. 

            Turning first to the information other than Don’s passwords, the Burnses did not establish that the steps to access these websites or to attach a template to an email were secret.  Sherry considered the policy and procedures manual as a whole to be confidential, but of these four pages, Sherry identified only the passwords as confidential.  Downing testified that the Burnses never told her the manual was confidential; the material is not marked as confidential; and she was not asked to sign any confidentiality agreements.  Castillo, who was formerly employed by the Burnses and was familiar with the policy and procedures manual, testified that it contained no confidential information and that the Burnses took no steps to protect the material.  Both Downing and Castillo testified that the information in the manual was generally known in the industry.  Such information is not eligible for trade-secret protection.  See Gonzales v. Zamora, 791 S.W.2d 258, 264 (Tex. App.—Corpus Christi 1990, no writ). 

            As for Don’s passwords, the record shows that all of Don’s employees had access to them.  Some of the employees took the manual home, and some even had copies of it on their personal computers.  The jury heard evidence that a couple of days after Downing resigned, the Burnses changed the passwords when another of Don’s employees told the Burnses that Downing had copied the policy and procedures manual.  The Burnses offered no evidence of the time, effort, or cost expended in developing the passwords, and no evidence that a competitor who possessed copies of the passwords Don used to access these websites in September 2006 would have an advantage over someone who did not have that information. 

            The Burnses also contend that “because the trial court had ruled that the pages contained trade secrets, the theft of a trade secret was established as a matter of law.”  In support of this argument, the Burnses cite to the trial court’s statements in the record expressing the view that passwords are trade secrets or protected information.  These statements explain two of the the trial court’s rulings, but are not themselves rulings or findings to be considered by this court.  This is apparent when the statements are considered in context.  Downing moved for a directed verdict on the ground that there was no evidence to support the claim that she had stolen trade secrets, and the trial court denied the motion, stating, “Certainly in this day and age passwords are protected information.  The court recognizes that as such and considers that to be a trade secret, so your motion as to that part of it is denied.” (emphasis added).  Downing then objected on no-evidence grounds to submission of a theft question to the jury, and the trial court overruled that objection for the same reason.  The Burnses, however, did not move for a directed verdict on their theft counterclaim.  Moreover, the trial court did not grant a partial directed verdict sua sponte, but included the Burnses’ theft issue in the jury charge without objection from the Burnses.  Thus, despite these isolated statements on the record, the trial court treated the question of whether Downing knowingly stole trade secrets as a question of fact to be decided by the jury.[6]

            In sum, the Burnses did not conclusively prove that Downing knowingly stole  trade secrets.  We therefore conclude that the trial court did not err in denying their request for judgment notwithstanding the verdict as to that claim. 

B.        Defamation

            A trial court may grant a motion for judgment notwithstanding the verdict if no evidence supports the findings on which the jury relied.  Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 77 S.W.3d 253, 268 (Tex. 2002).  We review such a judgment by viewing all the evidence in the light most favorable to the jury’s finding, and reverse if more than a scintilla of competent evidence supports the finding.  Id. 

            The dispositive arguments on this issue turn on the distinction between statements that are defamatory per quod and those that are defamatory per se.  See Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 501 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).  To recover for defamation per quod, a plaintiff must prove both the existence and amount of damages.  Id.  But in cases involving defamation per se, “damages are presumed to flow from the nature of the defamation itself; thus, such an action can be sustained even without specific proof of the existence and amount of harm.”  Id. 

            An oral statement is defamatory per se only if it falls within one of the following categories: (1) imputation of a crime; (2) imputation of a loathsome disease; (3) injury to a person’s office, business, profession, or calling; or (4) imputation of sexual misconduct.  Gray v. HEB Food Store No. 4, 841 S.W.2d 327, 329 (Tex. App.—Corpus Christi 1997, writ denied).  If the jury finds that the defendant made the allegedly defamatory statement about the plaintiff, and the statement is defamatory per se, then the factfinder may presume that the statement injured the plaintiff’s reputation.  Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002).  When the presumption applies, the plaintiff is entitled to recover general damages, such as for loss of reputation and mental anguish.  Id.  At a minimum, the plaintiff in such a case is entitled to nominal damages.  Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 581 (Tex. App.—Austin 2007, pet. denied) (citing Bentley, 94 S.W.3d at 604).  If the statement is only defamatory per quod, then the plaintiff must prove the existence and amount of damages.  Id. at 580.

            Downing contends that because Don’s statement to Castillo that Downing stole clients’ option checks is defamatory per se, legally sufficient evidence supports the jury’s liability finding, and thus, the trial court erred in granting the Burnses’ motion for judgment notwithstanding the verdict as to her defamation claim.  We agree. 

            The Burnses’ statements that Downing stole from them and from their clients fall within the categories of statements that are defamatory per se.  See Gray, 841 S.W.2d at 329 (imputation of a crime is defamatory per se); see also Bradbury v. Scott, 788 S.W.2d 31, 38 (Tex. App.—Houston [1st Dist.] 1990, writ denied) (a statement that an employee was dishonest in his dealings with his employer is defamatory per se because it falls within the general classification of “words that affect a person injuriously in his profession or occupation”).  And because the statements are defamatory per se, general damages are presumed.  See Leyendecker & Assocs., Inc.v . Wechter, 683 S.W.2d 369, 374 (Tex. 1984) (op. on reh’g) (“The law presumes a statement which is libelous per se defames a person and injures his reputation.”);[7] see also Bentley, 94 S.W.3d at 587 (defining “defamatory” as “injurious to reputation.”).  The Burnses therefore are liable to Downing for general damages, even in the absence of any evidence of harm.  The amount to award for harm to the plaintiff’s reputation lies within the jury’s discretion.  Bolling v. Baker, 671 S.W.2d 559, 570 (Tex. App.—San Antonio 1984, writ dism’d w.o.j.).  At a minimum, the plaintiff is entitled to a nominal sum, but is not limited to that amount, and the jury may choose to award damages that are “substantial.”  W. Tex. Utils. Co. v. Wills, 164 S.W.2d 405, 408 (Tex. Civ. App.—Austin 1942, no writ).

            The Burnses argue that Downing cannot recover for defamation per se because in her pleadings she alleged only “defamation”; however, they cite no authority in support of this contention.  But see, e.g., Bentley, 94 S.W.3d at 576, 582 (plaintiff asserted claim for defamation; trial court did not err in granting motion for directed verdict in that the statements were defamatory per se);[8] Salinas v. Townsend, No. 13-09-00421-CV, 2011 WL 61844, at *4, *9 (Tex. App.—Corpus Christi Jan. 9, 2011, no pet. h.) (plaintiff alleged defamation; court affirmed trial court’s conclusion that the statement was defamatory as a matter of law).  A statement that defames a private individual necessarily is either defamatory per se or defamatory per quod, and the term “defamation” does not imply defamation per quod any more than it implies defamation per se.  In most cases, the question of whether a statement is defamatory per se or defamatory per quod is instead a matter of law to be decided by the court.  Terry v. Schiro, No. 01-07-00060-CV, 2007 WL 2132461, at *3 n.3 (Tex. App.—Houston [1st Dist.] July 26, 2007, pet. denied) (mem. op.).  Moreover, defamation per se and defamation per quod are not separate causes of action; the distinction between them instead “‘is based on a rule of evidence, the difference between them lying in the proof of the resulting injury.’”  Goree v. Carnes, 625 S.W.2d 380, 384 (Tex. App.—San Antonio 1981, no writ) (quoting 36 Tex. Jur. 2d Libel and Slander § 2). 

            The Burnses additionally argue that Downing cannot recover for defamation per se because the jury was charged only with defamation per quod.  In support of this argument, they cite Hines, in which we held that the trial court charged the jury only on defamation per quod, and we did not apply the damage presumption applicable to defamation per se.  Here, as in Hines, the defamation-damage question in the charge did not include an instruction that damages were presumed.  Id. at 501.  Unlike the case before us, however, the plaintiff in Hines never argued that the presumption of general damages from defamation per se applied.  See id.  Further, the plaintiff in Hines also requested and received economic damages for the defamation claim, and economic damages are not general damages which can be presumed to flow from defamation per se.  Compare id. at 501–02 with 28 Tex. Jur. 3d Damages ' 161 (West 2011) (explaining that defamation per se implies general damages, not special damages).  In contrast, the trial court did not instruct the jury in this case to consider or award economic damages for defamation.[9]  Because the trial court did not charge the jury to determine Downing’s economic damages from defamation,[10] the jury’s answers do not show that Downing—unlike Hines—was awarded damages that could not have been presumed.  We therefore conclude that the trial court erred in granting the Burnses’ motion for judgment notwithstanding the verdict with regard to the defamation claim.

C.        Tortious-Interference Liability

            The Burnses offer two reasons for their assertion that the evidence is legally insufficient to support the finding that they tortiously interfered with Downing’s employment.  First, they point to evidence that Sherry telephoned Andy St. Jean only after St. Jean left a message asking Sherry to call, and that Sherry’s statements to St. Jean were made in answer to St. Jean’s questions.  But the Burnses cite no authority that such evidence is inconsistent with liability for tortious interference.  This argument therefore is waived.  See Tex. R. App. P. 38.1(i).  

            Citing Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989), they next state that the evidence of liability is legally insufficient because they did not “direct” Downing’s subsequent employers to fire her.  Their reliance on Sterner is misplaced.  In that case, the defendant did not challenge the legal sufficiency of the evidence supporting the tortious-interference claim, see id. at 688, but argued that its interference was justified because it did so in the bona fide exercise of its own rights.  Id. at 691.  The court held that the defendant did not conclusively establish its affirmative defense because there was evidence that the defendant premises owner directed the plaintiff’s employer, an independent contractor working on the premises, to fire the plaintiff.  Id.  Although the court held that such evidence prevented the defendant from conclusively proving its affirmative defense, it did not hold that such “direction” is an element of the tortious-interference cause of action.  See id.

            Here, Sherry admits she told St. Jean that if Downing did not return the allegedly stolen policy and procedures manual, then the Burnses would sue anyone that employed her.  Fuentes testified without contradiction that she fired Downing only to avoid this threatened litigation, and Downing presented evidence that the termination harmed her financially.  Because we conclude that this evidence is legally sufficient to support the jury’s liability finding, we hold that the trial court did not err in denying this portion of the Burnses’ motion for judgment notwithstanding the verdict.  See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex. 2002) (explaining that a successful claim of tortious interference with an existing contract requires proof that the defendant willfully and intentionally interfered with an existing contract, proximately causing the plaintiff actual damage or loss). 

D.        Tortious-Interference Damages

            In closing argument, Downing’s attorney urged the jury to find that the Burnses’ tortious interference with Downing’s subsequent employment cost her $57,230.00 in lost wages.  In support of that argument, Downing’s counsel relied on an exhibit consisting of Downing’s answer to a request for disclosure concerning her damages.  The exhibit is based on the erroneous assumption that Downing was working 40 hours per week at a rate of $17.50 per hour before the Burnses’ tortious interference.  In the exhibit, Downing described her damage model, beginning with the representation that she “made $17.50/hr @ Keller Williams equaling to $700.00/week, $3,010.00/month and $36,120.00/yr.”[11]  The rate of $3,010.00 per month was then multiplied by 23, said to be the “number of months since Plaintiff’s employment ended with Keller Williams,” to arrive at the figure of $69,230.00.  From that amount, Downing deducted $3,500.00 she received in unemployment benefits and $8,500.00 she earned from subsequent employment, arriving at a total of $57,230.00—the very figure awarded by the jury on her tortious-interference claim. 

            But the record does not support the full amount of these damages.  Downing testified that she was working only about 30 hours per week.  And although she presented evidence that Fuentes fired her due to the Burnses’ tortious interference, Fuentes was only one of Downing’s two employers.  Downing also worked for Sima Dalvandi.  Both Fuentes and Dalvandi were affiliated with the Keller Williams agency, but the testimony is uncontroverted that Downing worked for these individuals and not for the agency.  There is no evidence as to the number or proportion of hours she worked for each employer, but it is undisputed that each employer paid Downing a different rate.  Fuentes paid Downing no more than $12.50 per hour, and Downing was compensated for some of the thirty hours she worked each week at this lower rate.  And although there is evidence that Dalvandi paid Downing $17.50 per hour, there is no evidence of the reason Dalvandi terminated Downing’s employment.  Thus, the evidence of the extent of Downing’s economic damages from the Burnses’ tortious interference shows no more than that she was terminated from a job that she performed less than thirty hours per week and for which she was paid no more than $12.50 per hour.  The amount awarded by the jury far exceeds this.  The excess cannot be sustained as an award of non-economic damages, because Downing presented no evidence that the Burnses’ tortious interference caused her any harm other than a temporary loss of income.  Unlike damages for defamation per se, damages from tortious interference are not presumed but instead must be proved.

            We therefore agree with the Burnses that no evidence supports the full amount of damages awarded on Downing’s tortious-interference claim.  When the evidence supports only a portion of the damages awarded, but the record does not allow us to determine the amount of remittitur to suggest, we must remand for a new trial.  Guevara v. Ferrer, 247 S.W.3d 662, 670 (Tex. 2007). 

E.        Scope of Remand

            We are left, then, with the question of the proper scope of the remand.  Because the record does not support the tortious-interference damages awarded and we cannot order a separate trial solely on unliquidated damages when liability is contested, the Burnses’ liability for tortious-interference must be retried.  See Tex. R. App. P. 44.1(b).  If the tortious-interference claim and the defamation claims are “separable without unfairness to the parties,” then we can remand the case with instructions for the trial court to sever the two claims, enter judgment in accordance with the verdict on the defamation claim, and retry the tortious-interference claim.  We conclude however, that as litigated by the parties, Downing’s defamation claim and the Burnses’ theft counterclaim are so interwoven with the tortious-interference claim that they are not separable without unfairness.

            On appeal, Downing asks us to render judgment on her defamation claim because, according to Downing, the jury’s findings of defamation liability and damages are based on Don’s statement to Castillo that Downing stole his clients’ checks.  This statement was made after Fuentes fired Downing, and thus, it could properly be separated from the tortious-interference claim.  The problem with this argument is that the record does not identify the basis for the jury’s findings.  Downing presented evidence of at least six statements that, if made falsely and negligently, were defamatory.  These included Sherry’s statements to Bernadette Hurley, Andy St. John, Mary Stuart, and Christine Fuentes that Downing stole trade secrets or marketing material; Sherry’s statement to Fuentes that Downing stole money or checks; and Don’s statement to Eulalia Castillo that Downing stole clients’ checks.  Each of the allegedly defamatory statements could have been litigated as a distinct claim with its own damages.  See Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 394 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d w.o.j.) (“Each distinct publication of slander inflicts an independent injury from which a slander cause of action may arise.”).  But Downing did not choose to do so.  The jury instead was given a single defamation-liability question and a single defamation-damage question, and neither question was identified with any particular statement.  As a result, we cannot tell whether the jury’s defamation findings were based on matters that could be tried separately from the tortious-interference claim without unfairness to the parties. 

            It also would be unfair to separate the Burns’s theft allegations from the tortious-interference claim.  Although styled as a counterclaim, the Burnses ultimately sought no damages for Downing’s alleged theft of trade secrets.  In effect, this “claim” was the Burnses’ defense to Downing’s tortious-interference claim and to some of the statements on which her defamation claim is based.  If Downing did knowingly steal trade secrets, then Sherry’s statements to Andy St. John to that effect would not be defamatory, and the Burnses would have established justification as an affirmative defense to Downing’s tortious-interference claim.  On the other hand, if Sherry used defamation to tortiously interfere with Downing’s employment by Fuentes,[12] then the Burnses cannot rely on the affirmative defenses of justification or privilege.  See Prudential Ins. Co. v. Fin. Review Servs., 29 S.W.3d 74, 81 (Tex. 2000) (explaining that because there is no privilege or justification to defame another, privilege and justification are not available defenses to a claim that the defendant used defamation to tortiously interfere with the plaintiff’s contract). 

            In sum, evidence of defamation was used to support Downing’s tortious-inference claim and rebut the Burnses’ affirmative defenses; evidence of theft was used to support the Burnses’ affirmative defense to the tortious-interference claim.  Because these issues are not separable without unfairness to the parties, we reverse the judgment and remand all of the claims for a new trial.

IV.  Conclusion

            For the foregoing reasons, we reverse the judgment and remand the case.

                                                                        /s/        Tracy Christopher

                                                                                    Justice

Panel consists of Chief Justice Hedges and Justices Frost and Christopher (Frost, J., dissenting).

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[1] The attorney’s demand letter was offered into evidence, and it contains no threat of litigation against anyone other than Downing.

[2] According to Downing, Dalvandi “was not involved in this.”

[3] At trial, another of Don’s employees testified that immediately after Downing resigned, the Burnses learned that an option check had been associated with the wrong transaction and mailed to the wrong client, who mailed it back to Don’s agency.

[4] This may have been the same meeting at which Sherry and Don spoke to Fuentes; the record is not clear on this point.

[5] The Burnses alleged a variety of other counterclaims, but abandoned them before the trial court submitted the case to the jury.

[6] The trial court further stated, “As to the password information, I do make a finding that that is protected information.”  This is not a “finding” as that term is used in Texas Rules of Civil Procedure 296–299a.  Such findings are made only in connection with issues that are tried without a jury, and the Burnses’ theft counterclaim was decided by a jury. 

[7] “Libel” is simply a defamatory statement published in a writing or other graphic form.  See Tex. Civ. Prac. & Rem. Code § 73.001.  The same defamatory statement would be referred to as “slander” if communicated orally.  See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).

[8] Although the plaintiff presented evidence of the extent of his mental anguish, the Texas Supreme Court pointed out that the statements were defamatory per se.

[9] The jury was instructed to “[c]onsider the following elements of damages, if any, and none other,” but no elements of damages were listed.  But cf. Tex. Civ. Prac. & Rem. Code § 41.008(a) (West 2008 & Supp. 2009) (“[T]he trier of fact must determine the amount of economic damages separately from the amount of other compensatory damages.”); Arthur Andersen & Co. v. Perry Equip. Corp. , 945 S.W.2d 812, 817 (Tex. 1997) (noting that a charge that fails to instruct the jury on the proper measure of damages is fatally defective).  The Burnses, however, did not object to this aspect of the charge.

[10] The Burnses did not object to the question. 

[11] If Downing earned $17.50 per hour, her weekly wage would be $700.00 only if she worked 40 hours per week.

[12] Downing introduced no evidence that Don Burns tortiously interfered with her employment.