El-Khoury v. Kheir

241 S.W.3d 82, 2007 WL 1718859
CourtCourt of Appeals of Texas
DecidedJune 14, 2007
Docket01-06-00088-CV
StatusPublished
Cited by31 cases

This text of 241 S.W.3d 82 (El-Khoury v. Kheir) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
El-Khoury v. Kheir, 241 S.W.3d 82, 2007 WL 1718859 (Tex. Ct. App. 2007).

Opinions

OPINION

Sherry RADACK, Chief Justice.

This defamation case arises from a dispute between private individuals. Appel-lee, Benjamine Kheir claimed that appellant, John El-Khoury, defamed him by accusing him of not paying a debt. Both parties disputed the underlying debt at trial. A jury found that El-Khoury defamed Kheir, that Kheir incurred $25,000 in actual damages for his mental anguish, and that El-Khoury acted with malice that entitled Kheir to $147,000 in punitive damages. The jury also rejected the parties’ cross-actions on the claimed debt and awarded attorney’s fees to Kheir for trial and contingent attorney’s fees for appeal. In five points of error, El-Khoury contends that remand for a new trial is proper because (1) the evidence is (a) legally and factually insufficient to support the jury’s finding that he defamed Kheir, (b) legally insufficient to support either the actual damage or punitive damage awards, and (c) factually insufficient “to support entry of judgment for Kheir on [his] declaratory judgment action” and (2) the award of attorney’s fees to Kheir is “inequitable and unjust.”

We affirm in part and reverse and remand in part.

[84]*84Factual and Procedural Background

Kheir and El-Khoury are residents of the same village in Lebanon and are acquainted with one another. Kheir’s claims in this lawsuit pertain to an “Agreement to Transfer Partnership Interest and Stock Ownership in Corporation” (agreement to transfer). The corporation in question is a Texas corporation known as K & K Investment, Inc. (K & K), which operated a car dealership with two locations in Houston. Kheir’s and El-Khoury’s names and signatures appear in various forms and on several documents relating to the sale of a Texas corporation, including the agreement to transfer itself. The version of the agreement to transfer that forms the basis of this lawsuit recites that Kheir is indebted to El-Khoury in the amount of $147,000 in connection with the sale of K & K. Before Kheir filed this action, El-Khoury sued him in Lebanon to enforce the agreement to transfer. Kheir has asserted counterclaims in that action.

Concerning the defamation claim, it is undisputed that both Kheir and El-Khoury are private individuals. Kheir claimed that El Khoury slandered him by communicating to others that Kheir had agreed to pay El Khoury $147,000, but had not kept his promise. Kheir’s pleadings state that El Khoury’s statements were “entirely false” and made maliciously, thus entitling Kheir to general damages for injury to his reputation, special damages, and punitive damages. Kheir also sought to set aside the agreement to transfer on grounds of fraud. Kheir claimed that he had never signed the agreement to transfer and sought a declaration to rescind it. El-Khoury filed a counterclaim contending that Kheir owed the $147,000 and denied making allegedly defamatory statements.

After a four-day trial, the trial court submitted 14 questions to the jury, which found as follows:

• El-Khoury did not fail to comply with the agreement to transfer and did not commit fraud in selling his interest in K & K (questions 1 and 2);1
• El-Khoury’s statements, “that he had not been paid and/or fully paid for his interest” in K & K, were defamatory (question 5);
• El-Khoury’s defamatory statements proximately caused Kheir $25,000 in mental anguish and suffering2 (question 6);
• clear and convincing evidence that the harm to Kheir resulted from malice (question 7);
• $147,000 should be assessed against El-Khoury as exemplary damages (question 8);
• Kheir did not promise $147,000 to El-Khoury in exchange for the agreement to transfer concerning K & K (question 10);
• A reasonable fee for Kheir’s attorney’s services was $40,000 for preparation and trial, $7,500 for an appeal to this Court, and $5,000 for an appeal to the Supreme Court of Texas (question 11);
• Kheir and El-Khoury did not enter into an agreement providing that Kheir would purchase all of El-Khoury’s interest in K & K for $147,000, and Kheir did not “fail to comply with the [ajgreement (question 12).”3

[85]*85Defamation — Sufficiency of Evidence of Damages

A. Elements of Defamation Claim

To prevail on his claim that El-Khoury defamed him, Kheir had to prove that El-Khoury (1) published a statement about Kheir, a private individual rather than a public figure, (2) that was defamatory concerning Kheir, while (S) acting negligently regarding the truth of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998); Harvest House Publishers v. Local Church, 190 S.W.3d 204, 210 (Tex.App.-Houston [1st Dist.] 2006, pet. denied); Saudi v. Brieven, 176 S.W.3d 108, 117-18 (Tex.App.-Houston [1st Dist.] 2004, pet. denied).4 To constitute defamation, the published statement must have been false, which Kheir had the burden to prove. See Hearst Corp. v. Skeen, 159 S.W.3d 633, 636-37 n. 1 (Tex.2005) (citing Bentley v. Bunton, 94 S.W.3d 561, 586-87 (Tex.2002)).

B. Actual Damages — Mental Anguish

It is axiomatic that Kheir could not prevail unless he also proved that he suffered actual damages as a result of the alleged defamation. See WFAA-TV, 978 S.W.2d at 571; Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 382 (Tex.App.-Houston [1st Dist.] 2005, no pet.). In this case, the jury awarded nothing for the following elements of claimed damages: lost profits; harm to Kheir’s “good name and character among his ... friends, neighbors, or acquaintances”; his “good standing in the community”; or his “personal humiliation.” The only damages awarded were for Kheir’s “mental anguish and suffering,” which the jury assessed at $25,000 as fair and reasonable compensation for damage caused by El-Khoury’s alleged statements. In his second point of error, El-Khoury contends that the evidence is legally insufficient to support the jury’s $25,000 award for mental anguish and suffering. We agree.5

[86]*861. Error Preserved in Motion for New Trial

To preserve a complaint for appellate review, the record must show that El-Khoury complained to the trial court by a timely request, objection, or motion, and that the trial court ruled on or refused to rule on the request, objection, or motion. See Tex.R.App. P. 33.1(a).

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Bluebook (online)
241 S.W.3d 82, 2007 WL 1718859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/el-khoury-v-kheir-texapp-2007.