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Torts No. 03-02-00563-CV, 6/26/2003. Click here for the full text of this decision FACTS: Mark Gustafson and CPR Resources Inc. sued the city of Austin and Remedios Morris for libel, slander, defamation per se, business disparagement and tortious interference with contract. Gustafson, the city of Austin and Morris all filed cross motions for summary judgment and partial summary judgment. The trial court granted the city of Austin’s and Morris’ motions and denied Gustafson’s motions. HOLDING: Affirmed. The substantial-truth test stems from the freedom of speech and freedom of press protections of the First Amendment. McIlvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990). Under the substantial-truth test, the truth of the statement in the publication on which an action for libel is based is a defense to the action. A statement is substantially true, and thus not actionable, if its “gist” or “sting” is not substantially worse than the literal truth. This evaluation requires the court to determine whether, in the mind of the average person who read the statement, the allegedly defamatory statement was more damaging to the plaintiff’s reputation than a truthful statement would have been. When the underlying facts as to the gist of the libelous charge are undisputed, the court disregards any variance regarding items of secondary importance and determine substantial truth as a matter of law. The court first examines whether Morris’ e-mail is true or substantially true. Gustafson argues that the following two statements from Morris’s e-mail are untrue: 1. “[a]s of November 18, 1999 Mark Gustafson is no longer a valid American Heart Association (AHA) CPR instructor” and 2. “[h]is instructor status has been officially revoked by the AHA.” In her e-mail, Morris also wrote “Gustafson may still teach CPR classes but he could not hand out AHA [American Heart Association] certification cards.” In determining whether a statement is true or substantially true, the court looks at the statement in light of the surrounding circumstances. Dolcefino v. Randolph, 19 S.W.3d 906 (Tex. App. – Houston [14th Dist.] 2000, pet. denied). At the time Morris wrote her e-mail, she was working as a CPR coordinator for the city of Austin. Morris had received some complaints about the CPR classes taught by Gustafson and had discussed those complaints with representatives from the AHA. In conversations between Morris and Jan Gipson, a regional consultant for the AHA, around the time Morris wrote her e-mail, Gipson informed Morris that the AHA had sent a letter to Gustafson telling him to stop using the AHA’s servicemark, to stop issuing AHA course-completion cards, and to no longer hold himself out as being affiliated with the AHA. Gipson also informed Morris that Gustafson was no longer affiliated with CPR Trainers and Services, the Community Training Center owned by Glenice Ford. After these discussions with Gipson, Morris wrote the allegedly defamatory e-mail to six of her co-workers informing them about what she believed was Gustafson’s status as a CPR instructor. Gustafson was no longer affiliated with a Community Training Center and did not qualify as a Community Training Center on his own at the time the e-mail was written. As a result, the courses Gustafson taught would not be sanctioned by the AHA and therefore would not be valid AHA courses. Because Gustafson could not teach classes that would be sanctioned by the AHA until he affiliated with a valid Community Training Center program, he did not qualify as a valid AHA CPR instructor in terms of AHA certification when the allegedly defamatory statements were written. Therefore, the statement “Gustafson is no longer a valid American Heart Association (AHA) CPR instructor” was true when Morris e-mailed it to her colleagues. The gist of Morris’ e-mail is that Gustafson cannot teach CPR classes that are AHA approved. The undisputed underlying facts at the time Morris’ e-mail was written were that Gustafson was not affiliated with a Community Training Center and, as a result, could not teach CPR courses that were sanctioned by the AHA. Further, Gipson told Morris that she sent Gustafson a letter telling him to cease using the AHA servicemark and not to hold himself out as being affiliated with, or certified by AHA, implying his status had been revoked. The disagreement over whether the AHA officially revoked his instructor status is of “secondary importance” because the gist of the e-mail is not substantially worse than the literal truth. The allegedly defamatory statements that “Gustafson is no longer a valid American Heart Association (AHA) CPR instructor” and “[h]is instructor status with AHA has been officially revoked by the AHA” would have been no more damaging to Gustafson’s reputation in the mind of the average reader than the following truthful statements: Gustafson is no longer a valid American Heart Association CPR instructor. While he can still teach CPR courses, the courses are not AHA sanctioned. It is the AHA certification that students taking CPR classes desire. Both statements declare that Gustafson could not confer AHA certification. Because the gist of Morris’s statements is not worse than the literal truth, the statements are substantially true as a matter of law. OPINION: Puryear, J.; Law, C.J., Smith and Puryear, JJ.

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