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No. 13-01-095-CV, 7/10/2003. Torts Click here for the full text of this decision FACTS: This is an action by Julie Bannert against her former employer, Columbia Valley Regional Medical Center, and two of its managers, Charles Sexton and Rhue LaMont. The action arose after Columbia fired Bannert for dishonesty. Although Bannert alleged numerous causes of action relating to her termination, only defamation was submitted to the jury, which found for Bannert, awarding her more than $1.5 million in actual and punitive damages. The supposed defamation occurred in a memorandum dated Sept. 1, 1999, from Rhue LaMont, Columbia’s chief nursing officer (CNO), to Charles Sexton, its chief executive officer (CEO). This document, or “file,” appeared on the shared drive of the hospital’s computer system and was discovered by a hospital employee under Bannert’s supervision. The authenticity of this memorandum, as originating from appellant LaMont, is sharply contested. HOLDING: Reversed and rendered. In answering the first question, the jury found that Sexton and LaMont “proximately caused the defamation of Julie Bannert.” The jury charge defined slander and libel and instructed the jury regarding what constitutes a cause of action for defamation. In its second answer, the jury found that Sexton and LaMont’s conduct was within the “course and scope” of their authority with Columbia. The jury found damages resulting from the defamation to be $10,000 for mental anguish, past and future, $1 million for damage to reputation, past and future, and $28,000 for loss of income, past and future. The jury found that the memorandum dated Sept. 1, 1999, was not subject to a qualified privilege, and that the harm to Bannert resulted from malice and that the defamation was defamation “per se.” Exemplary damages were assessed against Columbia in the amount of $500,000. The appellants argue the September memo is not defamatory as a matter of law. By issue No. 6, they argue there is no evidence to support the jury’s findings that LaMont or Sexton authored, published or disseminated defamatory statements of any kind. Bannert testified she was defamed only by the written memorandum dated Sept. 1, 1999, and specifically identified statements in it as libelous. Libel is a written defamation that tends to “injure a living person’s reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person’s honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.” The First Amendment to the U.S. Constitution and article 1, �8 of the Texas Constitution require a plaintiff to establish that the defendant published a false, defamatory statement of fact, rather than an opinion, as an essential element of a cause of action for libel. In other words, the plaintiff must prove that the statements contained false, defamatory facts, rather than opinions or characterizations. Whether a statement is an opinion or an assertion of fact is a question of law. The threshold issue of whether the words used are capable of a defamatory meaning is a question of law for the court. The Texas Supreme Court has long held that the court construes the statement as a whole in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement. The court views the alleged defamatory statements in their context; they may be false, abusive, unpleasant, or objectionable to the plaintiff and still not be defamatory in light of the surrounding circumstances. Only when the court determines the language is ambiguous or of doubtful import should the jury then determine the statement’s meaning and the effect the statement’s publication has on the ordinary reader. An ambiguity exists if there is a question whether the hearer could reasonably understand the statement in a defamatory sense. Here, Bannert complains that two statements are libelous per se. Classifying a defamatory statement as libel per se relieves the plaintiff of the necessity of proving an injury as a result of the statement. The words are so obviously hurtful that they require no proof that they caused injury in order for them to be actionable. Certain categories of statements are classified as actionable per se, including those statements that are falsehoods that injure one in his office, business, profession, or occupation. The court reviews each statement separately that appellee Bannert has identified as libelous. Although the authenticity and authorship of the Sept. 1, 1999, memorandum is disputed by appellants, who challenge the sufficiency of the evidence supporting a conclusion that LaMont wrote it, the court reviews it consistently with the verdict and assumes that she was the author. The first statement identified by the appellee is: “the apparent lack of discipline in her [Bannert's] department is an affront to the professionalism I expect in any department under me.” This is an opinion by Bannert’s supervisor, LaMont, that Bannert does not maintain discipline in the department of perioperative services, which falls short of the professional standards demanded by LaMont. Put in context, this statement is not an attack on Bannert’s professionalism as a nurse or a director, but rather an opinion that Bannert is not performing at a level LaMont expects. For example, LaMont writes that her attempts to overload Bannert with extra work did not frustrate Bannert into resignation and that personnel working under Bannert rallied to help her with the added work. This is a testament to Bannert’s tenacity and leadership abilities. LaMont’s belief that Bannert’s dismissal would have negative consequences for the hospital is an acknowledgment that Bannert had a good working relationship with the doctors. The fact that LaMont had to increase Bannert’s workload and time outside of her department in order for problems to develop is a compliment to Bannert’s management skills, not an attack on her professionalism. The ordinary reader could not reasonably understand the complained-of statement to have a defamatory meaning. Also, Bannert admitted during trial that some of the policies and procedures in her pre-admitting department were not promptly done, therefore admitting the truth of the statement. The statement is not comprised of false, defamatory facts; rather, it is an opinion or characterization of the way Bannert ran the department. The second statement at issue is below and appears in the following context: “Employees loyal to her [Bannert] will probably leave on a wide level, following her to another position in another local organization, resulting in an immediate lack of care, and a reduction in services until replacements could be found. For this reason we must document her un-professionalism and behavior and disseminate it widely within the local community to reduce the possibility of her finding another position where her current personnel would be able to migrate immediately.” This paragraph shows that Bannert has many loyal co-workers who will follow her when she leaves Columbia, meaning that Bannert’s co-workers believe in her abilities. The phrase “we must document her unprofessionalism” is not a declaration that Bannert is unprofessional and does not accuse her of unprofessional conduct. Bannert testified that the memo did not say she was unprofessional. The memo as a whole does not accuse Bannert of unprofessionalism, lewdness or drug use. The statutory test for libel requires the writing to “expose the person to public hatred, contempt, or ridicule, or financial injury, or to impeach any person’s honesty, integrity, virtue, or reputation.” The memorandum of September 1999, contains no language that could reasonably be interpreted as impeaching Bannert’s honesty, integrity, virtue, or reputation, nor does it hold her up for contempt or ridicule. It consists merely of her supervisor’s opinion regarding her shortcomings that are not libelous. Based upon a review of the entire memo in light of the circumstances in which it was written, the statements are not reasonably capable of a defamatory meaning. Therefore, as a matter of law, the memo was not defamatory. The trial court erred in submitting any issue to the jury regarding the alleged libelous character of the memo. OPINION: Dorsey, J; Yanez, Castillo and Dorsey, JJ.

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