Little v. Bryce

733 S.W.2d 937, 44 Empl. Prac. Dec. (CCH) 37,330, 1987 Tex. App. LEXIS 7530

• Court: Court of Appeals of Texas
• Decided: June 11, 1987
• Docket: 01-86-00691-CV
• Status: Published

Opinions

SAM BASS, Justice.

The appellant, Steven Little, appeals from a summary judgment dismissing his suit for slander and wrongful termination of employment.

We reverse and remand for trial.

Little sued appellees, Jack Bryce and Randall’s Pood Markets, Inc., alleging that while he was employed as a meat cutter with Randall’s, Bryce (his co-worker) called Little, and Little told him that he was hospitalized for a ruptured hernia and that one of his roommates was being tested for AIDS. Little alleged that Bryce then informed Little’s co-workers and supervisors that Little might have AIDS and had been exposed to AIDS by his roommate. He alleged that Bryce knew the statement to be false, that it was knowingly, willfully, and maliciously communicated to third parties, and that as a result, Little was terminated from his employment. He alleged that when he was called to the office of Randall’s meat supervisor, he was asked if he had AIDS, and he denied that he did. He was told that he could either voluntarily resign or be terminated for reasons of health, and he chose to be terminated. In his petition, he sought actual damages of $30,000 and $300,000 exemplary damages for the alleged slanderous conduct. Little also alleged that his termination was wrongful because it violated the public policy of the state as set forth in the Commission on Human Rights Act of 1983, sec. 1.04(b); 2.01(7)(B) and 5.01(1), in that he was a handicapped person within the meaning of that act. He alleged that because of such wrongful termination, he was entitled to recover $30,000 in lost wages.

The appellees answered the appellant’s petition, asserting that the statements made about the appellant to Randall’s personnel were true and protected by a qualified privilege. But after the appellees changed counsel in the case, they filed an amended answer, asserting only a general denial. Because the issue of a qualified privilege in a defamation action is an affirmative defense, it must be pled; otherwise it is waived. Dealers’ National Insurance Co. v. Rose, 396 S.W.2d 535, 636 (Tex.Civ.App. — Waco 1965, writ dism'd by agr,); Tex.R.Civ.P. 94.

In point of error one, the appellant contends that the trial court's summary judgment was improperly granted, because the appellees failed to conclusively prove they were entitled to the protection of a qualified privilege.

We sustain this point, because we have concluded that the appellees were not entitled to summary judgment on their affirmative defense of qualified privilege, in the absence of a pleading raising that issue. Debord v. Muller, 446 S.W.2d 299, 301 (Tex.1969). Because of the disposition of the first point of error, we do not consider appellant’s second point of error, in which he contends that the appellees failed to negate malice, or his third point of error, in which he contends that his petition states a valid cause of action for wrongful termination of employment.

We finally direct our attention to the concurring opinion, which sets forth the author’s viewpoints on issues other than those considered by the majority and that are not necessary to the disposition of this appeal.

Our function, as an intermediate appellate court, is to state, as briefly and succinctly as possible, the dispositive issues and to declare and apply the law. We are not authorized to issue opinions that are merely advisory in nature, and we are admonished that our opinions should never be used simply to publish our particular views on a matter of special interest. See Parker, Improving Appellate Procedure, 25 N.Y.U.L.Rev. 1, 12-13 (1950); see also, Le-fler, Appellate Judicial Opinions (West Pub.Co.1974).

Our mandate, under Tex.R.App.P. 90, is to decide every substantial issue that is raised and necessary to the disposition of the appeal, and then, to hand down a written opinion that is as brief as practicable. Where, as in the case at bar, there is one clearly settled issue that disposes of the appeal, we should write a brief opinion, which “should not be published.” Id.

Here, there is no need for the court’s discussion of any matters that are not dis-positive of the appeal. The issues discussed in the concurring opinion are matters that should be determined only after a full development of the evidence in a trial on the merits. See 4 R. McDonald, Texas Civil Practice in District and County Courts, sec. 17.26.12 (1984). Because we have not considered the merits of the issues discussed in the concurring opinion, we express no views thereon, and we expressly disassociate ourselves from the views expressed by the author of the concurring opinion.

The summary judgment is reversed, and this cause is remanded for trial.