Diamond Shamrock Refining & Marketing Co. v. Mendez

844 S.W.2d 198, 1992 WL 259270

• Court: Texas Supreme Court
• Decided: December 31, 1992
• Docket: D-1090
• Status: Published

Opinions

OPINION

PHILLIPS, Chief Justice.

In this action, an employee claims that his employer committed the torts of “false light” invasion of privacy and intentional infliction of emotional distress by circulating information about his termination among his fellow employees. The trial court rendered judgment on a jury verdict for the plaintiff on both theories. The court of appeals held that no evidence supported the jury’s verdict as to intentional infliction of emotional distress, but it affirmed the judgment of the trial court under the false light theory. 809 S.W.2d 514. We reverse the judgment of the court of appeals and remand for a new trial on Mendez’s false light theory.

I

Roque Mendez was a chief operator at the Diamond Shamrock oil refinery in Three Rivers, Texas. The evidence most favorable to sustaining the jury’s verdict is that on September 4, 1985, Mendez was ordered by his supervisor to clean up debris that had been left in his work area, including loose nails discarded by carpenters. He became angry at being assigned the clean-up task, which he perceived to be outside the scope of his ordinary duties. While he was cleaning, Mendez threw some of the nails, the value of which was less than five dollars, into a box and put the box into his lunch bag. He then placed the bag on a shelf while he finished cleaning. When he was finished he went to the clock house, which was on company property, placed the bag on a table, clocked out, and left the refinery.

After Mendez departed, a security officer found his lunch bag and noticed that it contained the nails. The security staff reported the finding to Wayne Billings, Human Resource and Administrative Manager, and John Hoffman, Plant Manager. Billings telephoned Mendez and asked him to return to the refinery. Confronted by Billings and Hoffman, Mendez identified the bag as his own. When asked to explain, Mendez described how he had become angered by his supervisor’s order and rudeness and how he simply threw the nails into the box and threw the box into the bag. Hoffman then told Mendez that the bag contained company property and that it appeared that Mendez was stealing. When Hoffman asked whether Mendez agreed, Mendez replied, “I guess so.” Hoffman then terminated Mendez and left the room. Left alone with Mendez, Billings asked why Mendez had not simply asked for a “gate pass” to take the nails off the premises. Mendez replied, “I don’t know, Wayne. I guess I messed up.”

Word of Mendez’s termination spread quickly in Three Rivers. Many people with whom Mendez spoke during the next few weeks, including potential employers, knew that he had been terminated for stealing. As a result, he claims to have suffered significant financial and emotional setbacks.

Mendez filed suit against Diamond Shamrock on September 1, 1987, nearly two years after his termination. In his original petition, he alleged defamation, breach of contract, bad faith and unfair dealing, and violation of certain constitutional rights. Later, he added claims for malicious and wrongful termination, intentional or reckless infliction of emotional distress, negligence, and invasion of privacy comprising the embarrassing disclosure of personal facts and placing the plaintiff in a false light in the public eye. Mendez did not pursue his defamation claim, presumably because he did not bring it within the applicable one-year limitations period. See Tex. Civ.Prac. & Rem.Code § 16.002. The trial court submitted questions to the jury on only two theories of liability: intentional infliction of emotional distress and false light invasion of privacy. With respect to false light, the court submitted the following question to the jury:

Did the Defendant, Diamond Shamrock, by and through its employees, invade the privacy of the Plaintiff, Roque Mendez?

You are instructed that the Defendant may invade the privacy of the Plaintiff if it publicized matters which placed him in a false light before the public that would be highly offensive to a reasonable person.

Diamond Shamrock objected to this question, arguing that it omitted the “actual malice” standard for false light, an essential element of Mendez’s cause of action. The trial court overruled this objection. The jury found for Mendez on both the false light and intentional infliction of emotional distress counts, awarding him $460,-000 in damages: $260,000 for past and future lost wages, $100,000 for mental anguish, and $100,000 for loss of reputation. The trial court rendered judgment on the jury verdict.

On appeal to the court of appeals, Diamond Shamrock argued that the trial court erred by failing to include the element of actual malice in its instruction to the jury on false light invasion of privacy. The court of appeals affirmed the judgment, holding that negligence, rather than actual malice, should be the standard in false light suits by private individuals. 809 S.W.2d at 520. Further, Diamond Shamrock could not complain of the absence of a negligence instruction, since it had not requested one. Although the court also held that there was no evidence that Diamond Shamrock intentionally inflicted emotional distress on Mendez, it affirmed the judgment of the trial court because it rested on alternate grounds.

II

This court has never expressly held that a tort for false light invasion of privacy exists in Texas, although we have recognized that it is one of the four usual categories of private actions for invasion of privacy. See Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 682 (Tex.1976). Although amicus curiae¹ urge us to reject the false light tort, we do not reach this issue, as it has not been adequately presented by the parties. Even assuming the availability of this cause of action, however, Mendez would not be entitled to recover on the record before us, as he did not submit all the essential elements of the false light tort.

The Restatement (Second) of Torts § 652E defines the false light tort to include an actual malice requirement as follows:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Moreover, the Texas courts of appeals that have recognized this tort have applied the actual malice standard, see Clarke v. Denton Publishing Co., 793 S.W.2d 329, 331 (Tex.App.—Fort Worth 1990, writ denied); Covington v. Houston Post, 743 S.W.2d 345 (Tex.App.—Houston [14th Dist.] 1987, no writ); Gill v. Snow, 644 S.W.2d 222, 224 (Tex.App.—Fort Worth 1982, no writ), as have most courts in other jurisdictions. See, e.g., Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979), cert. denied, Little Rock Newspapers, Inc. v. Dodrill, 444 U.S. 1076, 100 S.Ct. 1024, 62 L.Ed.2d 759 (1980); Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982); McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882 (Ky.1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2239, 72 L.Ed.2d 849 (1982); McCormack v. Oklahoma Publishing Co., 613 P.2d 737 (Okla.1980); Gill v. Curtis Pub. Co., 38 Cal.2d 273, 239 P.2d 630 (1952); Eastwood v. Cascade Broadcasting Co., 106 Wash.2d 466, 722 P.2d 1295 (1986). But see Jones v. Palmer Communications, Inc., 440 N.W.2d 884, 898 (Iowa 1989), Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70, 90 (1984), adopting a negligence standard. Thus, if the tort of false light invasion of privacy exists in Texas, it requires a showing of actual malice as an element of recovery. Because the trial court’s instruction omitted an element of Mendez’s cause of action, Diamond Shamrock properly preserved error by objecting. Tex.R.Civ.P. 274, 279. See Moulton v. Alamo Ambulance Serv., 414 S.W.2d 444, 449-50 (Tex.1967). Since Mendez failed to establish an essential element of the false light cause of action under the Restatement and the preponderance of case law, the court of appeals’ judgment in favor of Mendez on this claim must be reversed. McKinley v. Stripling, 763 S.W.2d 407, 409-410 (Tex.1989).

Because of the conflict between jurisdictions regarding the proper standard of conduct, and because this Court has not yet either recognized or disapproved the tort, we remand this cause of action for a new trial in the interest of justice, giving Mendez an opportunity to prove actual malice and Diamond Shamrock an opportunity to object to the theory of recovery in its entirety. Tex.R.App.P. 180.

The concurring and dissenting opinions assert that we should not remand for a new trial on false light without expressly deciding whether the tort exists in Texas. While we appreciate the difficulties inherent in our disposition, we believe the actions of the parties compel such a result. For its part, Diamond Shamrock did not challenge the existence of the tort in the trial court, the court of appeals, or by a distinct point of error even in this Court. Moreover, neither Diamond Shamrock nor Mendez adequately briefed or argued the issue to us. It would ill serve the State’s jurisprudence to decide whether this tort exists on such a sparse record. Neither, of course, is Mendez without fault, since, despite timely objection, he failed to establish actual malice, an essential element of false light if it does exist in Texas. On that basis alone, the concurring and dissenting justices would render judgment against him. As the dissenting opinion points out, however, the elements of false light have not been definitively established. In addition to the minority case law, we note that Restatement § 652E contains the following caveat:

The Institute takes no position on whether there are any circumstances under which recovery can be obtained under this Section if the actor did not know of or act with reckless disregard as to the falsity of the matter publicized and the false light in which the other would be placed but was negligent in regard to these matters.

Also, the United States Court of Appeals for the Fifth Circuit, in a false light case under Texas law, predicted that this Court would adopt a negligence standard if presented with the issue. Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1091 (5th Cir.1984). Because of this uncertainty, the least objectionable alternative, among several bad choices, is to remand for a new trial without expressly deciding whether the false light tort exists in Texas.

The concurring and dissenting justices point to our holding in Westgate v. State, 843 S.W.2d 448 (1992), where we refused to remand in the interest of justice to allow a plaintiff to pursue a legal theory not recognized under Texas law. In Westgate, however, the uncertain legal theory, bad-faith delay by a condemning authority, had never been advanced by the plaintiff at any stage of the case. Thus the defendant had been given no opportunity to object to the existence of the cause of action. Under those circumstances, it would have been unfair to subject the defendant to a second trial. Here, Mendez consistently asserted a claim for false light, yet Diamond Shamrock failed to challenge the existence of the tort in an appropriate manner. This failure by Diamond Shamrock precludes the Court from deciding whether the tort exists; therefore it is not unfair to subject Diamond Shamrock to a second trial on an uncertain theory. The rule of Westgate is sound, but it does not control under these unique circumstances.

Ill

The court of appeals reversed the trial court's judgment that Diamond Shamrock intentionally inflicted emotional distress on Mendez, finding no evidence of such an infliction. By cross-point, Mendez urges us to reverse this holding.

The Restatement (Second) of Torts § 46 (1965) defines the tort of intentional infliction of emotional distress as follows:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. ...

We have never recognized this tort, but a number of Texas courts of appeals have done so, see, e.g., Tidelands Automobile Club v. Walters, 699 S.W.2d 939 (Tex.App.—Beaumont 1985, writ ref’d n.r.e.); Buskell v. Dean, 781 S.W.2d 652, 657-58 (Tex.App.—Austin 1989), rev’d on other grounds, 803 S.W.2d 711 (Tex.1991); Service Lloyds Ins. Co. v. Greenhalgh, 771 S.W.2d 688, 692 (Tex.App.—Austin 1989), rev’d on other grounds, 787 S.W.2d 938 (Tex.1990), as have courts in many other jurisdictions.² We need not decide in this case whether the tort exists in Texas, because Mendez failed to offer more than a scintilla of evidence of an essential element of the tort as it has been recognized in lower courts of this state and in courts of other jurisdictions, the presence of outrageous conduct.

Mendez argues that Diamond Shamrock’s tortious conduct occurred not by terminating him, but by falsely depicting him in the community as a thief. Even if Mendez’s charges are taken as true, however, this conduct is not sufficiently outrageous to raise a fact issue.³ Restatement § 46, comment d, describes conduct reaching the level of “outrageousness” necessary for liability for intentional infliction of emotional distress in these terms:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community-

There is no evidence that Diamond Shamrock’s conduct met this standard. We need not condone or agree with Diamond Shamrock’s actions to conclude that, as a matter of law, they fall short of being “beyond all possible bounds of decency,” “atrocious,” and “utterly intolerable in a civilized community.” While there may obviously be instances where a termination is accompanied by behavior of this sort, there would be little left of the employment-at-will doctrine if an employer’s public statement of the reason for termination was, so long as the employee disputed that reason, in and of itself some evidence that a tort of intentional infliction of emotional distress had been committed. The court of appeals did not err in denying Mendez recovery on this ground.

IV

For the foregoing reasons, we affirm the judgment of the court of appeals against Mendez on the ground of intentional infliction of emotional distress. We reverse the judgment of the court of appeals in favor of Mendez on the ground of false light, and remand that claim to the trial court for a new trial.

HIGHTOWER, J., concurs with opinion. GONZALEZ, J., concurs and dissents with opinion in which CORNYN, J., joins. HECHT, J., concurs and dissents with opinion. DOGGETT, dissents with opinion in which MAUZY and GAMMAGE, JJ., join.

1 . This amicus brief was submitted jointly by the Reporters Committee for Freedom of the Press, the A.H. Belo Corporation, the National Association of Broadcasters, the Houston Chronicle Publishing Company, Capital Cities-ABC, Inc., KTRK Television, Inc., The Fort Worth Star-Telegram, The Associated Press, The San Antonio Light, and Freedom T.V. Sub., Inc.

2 . See Gallups v. Cotter, 534 So.2d 585 (Ala.1988); Teamsters Local 959 v. Wells, 749 P.2d 349 (Alaska 1988); Ford v. Revlon, Inc., 153 Ariz. 38, 734 P.2d 580 (1987); Harris v. Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41 (1985); Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988); Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337 (1986); Eastern Airlines v. King, 557 So.2d 574 (Fla.1990); McGrath v. Fahey, 126 Ill.2d 78, 127 Ill.Dec. 724, 533 N.E.2d 806 (1988); Vinson v. Linn-Mar Community School Dist., 360 N.W.2d 108 (Iowa 1984); Naufeldt v. L.R. Foy Construction Co., 236 Kan. 664, 693 P.2d 1194 (1985); Craft v. Rice, 671 S.W.2d 247 (Ky.1984); Staples v. Bangor Hydro-Electric Co., 561 A.2d 499 (Me. 1989); B.N. v. K.K., 312 Md. 135, 538 A.2d 1175 (1988); Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315 (1976); Newberry v. Allied Stores, Inc., 108 N.M. 424, 773 P.2d 1231 (1989); Gall v. Great Western Sugar Co., 219 Neb. 354, 363 N.W.2d 373 (1985); West v. King’s Department Store, Inc., 321 N.C. 698, 365 S.E.2d 621 (1988); Williams v. Lee Way Motor Freight, Inc., 688 P.2d 1294 (Okla.1984); Reamsnyder v. Jas-kolski, 10 Ohio St.3d 150, 462 N.E.2d 392 (1984); Hall v. May Dept. Stores Co., 292 Or. 131, 637 P.2d 126 (1981); Ford v. Hutson, 276 S.C. 157, 276 S.E.2d 776 (1981); Wangen v. Knudson, 428 N.W.2d 242 (S.D.1988); Pentecost v. Harward, 699 P.2d 696 (Utah 1985); Sheltra v. Smith, 136 Vt. 472, 392 A.2d 431 (1978); Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145 (1974); Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 565 P.2d 1173 (1977); Cook v. Heck’s, Inc., 176 W.Va. 368, 342 S.E.2d 453 (1986); Mummery v. Polk, 770 P.2d 241 (Wyo.1989).

3 . Although Mendez alleges in his brief that Diamond Shamrock "told all of his fellow employees he was a thief, and spread this falsity to the community at large,” the direct evidence reflects only that Diamond Shamrock, through Billings and Hoffman, informed the plant supervisors and one chief operator, Clayson Royal, about Mendez’s termination.