AMELL v. VAN PELT (2025)

OPINION

In three legal and factual insufficiency issues, appellants, an insurance agency and the husband and wife who own the agency, challenge the trial court's general and exemplary damage awards, and its finding that appellants statements about appellees, another couple and their insurance agency, constituted defamation per se. Appellee wife also cross-appeals the trial court's failure to award her damages. We affirm.

I. Factual and Procedural Background

In early 2017, appellees Billy and Kim were down on hard times. The career Billy had built buying and selling books came to an abrupt end due to industry modernization and legal restrictions on his line of work. Kim had a license to sell insurance, and Billy had some experience in that business helping her. Billy obtained his own license in June 2017, but income from that business ceased after Kim parted ways with Farmers and was restricted from conducting certain business due to a non-compete. Their goal was to start their own independent insurance agency. They had a young daughter, a house note, and a need to make ends meet. Kim took a full-time job assisting with a wealth advisor and Billy waited tables at Bob's Chop House.

It was there that Billy was introduced to Appellant Leonard Amell who, along with his wife, Sabrina, had been involved in the insurance business. Following that introduction, the two spoke over the phone several times and eventually, Billy and Leonard discussed an opportunity for Billy to achieve his goals at the Amell Agency.

Leonard saw potential in Billy and his wife in the insurance business, and though he did not have a salaried position to offer, discussed the possibility of a commission-based position. Leonard mentioned in the conversation what the future might hold if Billy and Kim began working under him, including the possibility that the Van Pelts might set off with their own agency. Several times in a recorded phone call Amell discussed a scenario where this might happen.

“I would hate to see you and Kim get out of this industry because I think you guys were on a roll and really, I saw something special in meeting with the two of you guys and I think that you guys could be something great ․

And what I like about an idea like that too is, well, it's your business. So when you guys are like, hey, you know, we've got six figures coming in, we just—you know—we want, you know go on our own. Well, then, yeah, there's policies you guys just—-we just transfer them into y'all’s agency. You know what I mean? You get those appointments and—so they're essentially your business ․ And you can keep the business when you move.”

Later in the discussion, Leonard again mentioned this idea of the Van Pelts going their own way:

And again, kind of like what you're saying, you started to build experience and you've learned from your mistakes, that you'll start building yourself up a nice little book of business. You know what I'm saying? And with that book of business, I mean, hey, who knows, maybe two years, you're like, okay, hey, we're good now. You know what I mean? We're good, we feel like we got a good -- who know, maybe in two years I might be in a good financial position too to say, hey, I can bring one of you guys on with base plus commission. And that might take you guys to another year, and so now you're like three years in, you're like okay, hey, we're good now, you know what I mean? We think we want to just go ahead and go our own way and you know what I mean? You know what I mean? I'm totally cool with that, you know.

The two subsequently met at a restaurant and signed a contract drafted by the Amells for Billy to work as a commission-based agent for the Amell Agency. The contract contains this term:

To bring in and mentor a New Agent with The Arnell Agency. To continue with agent's training with Property and Casualty as well as Life and Health lines of authority in the State of Texas. To help agent build a Book of Business that he will maintain ownership of throughout his time with The Amell Agency.

The contract neither contained a non-compete provision nor any provision establishing the rights and obligations between the parties with respect to the book of business after Billy left the Amell Agency. Billy testified at trial that the understanding was made clear at the time:

Q. And in that meeting, were there statements made regarding you owning the book of business?

A. There was mention of us owning the book of business at Escalante's.

Q. Was there any mention of transferring the book of business?

A. There was the promise that we would be able to take the book of business once I left, you know, and we all agreed upon that, the four of us.

Q. And when you say “the four of us,” was that a meeting between Sabrina Amell, Kimberly Van Pelt, yourself and Leonard Amell?

A. That is correct.

Q. They knew you wouldn't sign a non-compete. Correct?

A. That is correct.

Billy began working for the Amell Agency and developing a book of business, including policies for the wrecker/tow-truck business to which Leonard and his wife introduced Billy.

After working over two years with the Amells, on January 30, 2020, Billy called Amell and advised him that he and Kim were starting their independent agency and that they needed Leonard's assistance in transferring his clients. The conversation did not go well.

Amell subsequently began a campaign to retain the clients the agency possibly stood to lose by Billy's departure, sending emails and telephone calls to them.

Several clients reported to Billy that Amell had reached out to them to retain their business, and that Amell had cast aspersions about Billy to them. As result, some chose not to do business with Billy. By April 14, 2020, Billy's counsel sent the Amells a formal request for correction, clarification, or retraction of alleged defamatory statements, and the Amells refused (and have continued to refuse) to retract their statements.

Billy, Kimberly and the Van Pelt Insurance Agency filed a lawsuit against the Amells and the Amell Insurance Agency, which as amended sought damages for defamation, among other claims not pertinent to this appeal.

The lawsuit proceeded to a bench trial on November 27, 2023. Billy, Sabrina, and Leonard testified at trial, and a number of recorded statements were admitted as exhibits, including recorded phone calls between the parties, emails sent by the Amells to clients, recorded conversations between Billy and customers the Amells had contacted. During Billy's testimony at trial, he presented a single damages calculation, without segregating his own damages from Kimberly's alleged damages.

At the close of trial, the trial court indicated that it had concluded that the Amells had defamed the Van Pelts, but requested briefing before it concluded how to rule on damages. After the parties filed their briefs, on December 13, 2023, the trial court signed the original judgment and on the same day issued findings of fact and conclusions of law. Consistent with its observations at the close of trial, the trial court concluded that the Amells had committed defamation per se against the Van Pelts, and awarded $141,140.62 in loss of reputation damages to Billy on Billy's defamation claim against the Amells and awarded Billy the same amount in exemplary damages, but found “that there was insufficient evidence of damages to [Kimberly].”

The original judgment stated: “Kimberly Van Pelt and the Van Pelt Insurance Agency shall take nothing by way of their claims and causes of action.” The Amells filed a motion asking the trial court to modify its final judgment. Among other things, the Amells noted that the trial court erred in imposing breach of contract damages against Leonard and Sabrina individually. The Van Pelts agreed that the trial court should modify its judgment “with regard to removing liability of the individual Defendants Sabrina and Leonard Amell for breach of contract damages,” and the Van Pelts tendered a new proposed form of final judgment for the trial court's consideration. The proposed judgment awarded the same damages to Billy but lacked the “take nothing” language regarding Kim and the Agency, but included no language disposing of either of their claims. The court signed that proposed judgment, the final judgment for purposes of this appeal.¹

II. Legal and factual sufficiency of evidence supporting defamation liability, reputational damages, and exemplary damages

We first review the three legal and factual sufficiency issues raised by the Amells pertaining to the judgment in favor of appellee Billy Van Pelt.

A. Legal Standards

1. Relevant Standards of Review

In an appeal from a bench trial, we review a trial court's conclusions of law de novo and will uphold them if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Stavinoha v. Stavinoha, 126 S.W.3d 604, 608 (Tex. App.—Houston [14th Dist.] 2004, no pet.). We review the legal conclusions drawn from the facts to determine their correctness. BMC Software, 83 S.W.3d at 794; Stavinoha, 126 S.W.3d at 608. Incorrect conclusions of law do not require reversal if the controlling findings of fact support the judgment under a correct legal theory. BMC Software, 83 S.W.3d at 794; Stavinoha, 126 S.W.3d at 608.

Legal insufficiency challenges may be sustained only when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).

The ultimate test for legal sufficiency always must focus on whether the evidence would enable a reasonable and fair-minded fact-finder to reach the judgment under review. See id. at 827. Legal sufficiency review in the proper light must credit favorable evidence if a reasonable fact-finder could do so, and must disregard contrary evidence unless a reasonable fact-finder could not do so. Id. The reviewing court cannot substitute its judgment for that of the trier of fact if the evidence falls within this zone of reasonable disagreement. Id. at 822.

We apply these standards mindful that the factfinder is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See City of Keller, 168 S.W.3d at 819, 822; 2900 Smith, Ltd. v. Constellation NewEnergy, Inc., 301 S.W.3d 741, 745 (Tex. App.—Houston [14th Dist.] 2009, no pet.). When, as here, there is a complete reporter's record of the trial, the trial court's findings of fact will not be disturbed on appeal if there is any evidence of probative force to support them. Summit Glob. Contractors, Inc. v. Enbridge Energy, Ltd. P'ship, 594 S.W.3d 693, 698–99 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

In reviewing factual sufficiency, we must consider and weigh all the evidence. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). We can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Id.

When a party challenges the factual sufficiency of the evidence supporting a finding for which he did not have the burden of proof, we may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. In re Estate of Parrimore, No. 14-14-00820-CV, 2016 WL 750293, at *5 (Tex. App.—Houston [14th Dist.] Feb. 25, 2016, no pet.); Nip v. Checkpoint Sys., Inc., 154 S.W.3d 767, 769 (Tex. App.—Houston [14th Dist.] 2004, no pet.). When a party attacks the factual sufficiency of an adverse finding on which he bore the burden of proof, he must establish that the finding is against the great weight and preponderance of the evidence. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

In assessing the evidence, we do not act as a factfinder; we may not pass on the credibility of the witnesses or substitute our judgment for that of the factfinder. George Joseph Assets, LLC v. Chenevert, 557 S.W.3d 755, 765 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). Instead, the trial court, as the trier of fact in this case, is the “sole judge of the credibility of the witnesses and the weight to afford their testimony.” Id. (citing In re Estate of Parrimore, No. 14-14-00820-CV, 2016 WL 750293, at *5).

2. Defamation liability and damage laws

Generally, recovery for defamation requires proof (1) of the publication of a false statement of fact to a third party, (2) that defamed the plaintiff, (3) with the requisite degree of fault (with respect to knowledge of the falsity of the statement), and (4) that proximately caused damages. Mem'l Hermann Health Sys. v. Gomez, 649 S.W.3d 415, 423 (Tex. 2022). But in a case such as this, where there is not alleged to be a public figure plaintiff, a media defendant, or a defamatory statement involving a matter of public concern, the falsity of the statement is generally presumed, and the truth of the statement is an affirmative defense that must be proved by the defendant. Thomas-Smith v. Mackin, 238 S.W.3d 503, 509 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995)); see also Schmitz v. Cox, No. 01-15-00199-CV, 2015 WL 6755427, at *3 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015, no pet.). Similarly, in the absence of a privilege, fault (or constitutional malice) is inferred from the fact that a defamatory statement is false. Mackin, 238 S.W.3d at 509 citing Int'l & G.N.R. Co. v. Edmundson, 222 S.W. 181, 183 (Tex. Comm'n App. 1920, holding approved); Bradstreet Co. v. Gill, 72 Tex. 115, 121, 9 S.W. 753 (1888).

Whether a communication is defamatory is in the first instance a legal question for the court. Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013). A statement is defamatory only if it is reasonably capable of a defamatory meaning. Id. (citing Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987)); see also Restatement (Second) of Torts § 614, cmt. b (noting that it is for the court to decide “whether the communication was reasonably capable of conveying the particular meaning, or innuendo, ascribed to it by the plaintiff” and “whether that meaning is defamatory in character”). A defamatory statement is a statement of fact about a person that tends to diminish the plaintiff's reputation. See Hancock, 400 S.W.3d at 63. If a statement is not reasonably capable of a defamatory meaning, the statement is not defamatory as a matter of law, and the claim fails. Id. at 66. This determination is not based on individual statements read in isolation; rather, a publication is defamatory if, construed as a whole in light of the surrounding circumstances, a person of ordinary intelligence would perceive it to be so. Chehab v. Edgewood Dev., Ltd., 619 S.W.3d 828, 835 (Tex. App.—Houston [14th Dist.] 2021, no pet.)

A defamatory statement can be classified as either defamatory per se or defamatory per quod. See Hancock v. Variyam, 400 S.W.3d at 63.

A statement is defamatory per se if it injures a person in his office, business, profession, or occupation or if it falsely charges a person with the commission of a crime.” Cummins v. Bat World Sanctuary, No. 02-12-00285-CV, 2015 WL 1641144, at *4 (Tex. App.—Fort Worth Apr. 9, 2015, pet. denied). “A statement is defamatory per se if it is defamatory on its face, that is, if it is so obviously hurtful to the person aggrieved that the law requires no proof of its injurious character to make it actionable.” Id. at *4. Statements are defamatory per quod if they are not obviously hurtful and require the plaintiff to show their defamatory meanings through extrinsic evidence. Id.

Three types of damages may be at issue in defamation per se proceedings: (1) nominal damages; (2) actual or compensatory damages; and (3) exemplary damages. Hancock, 400 S.W.3d at 65.

Nominal damages “are a trivial sum of money awarded to a litigant who has established a cause of action but has not established that he is entitled to compensatory damages.” Id. (citing Restatement (Second) of Torts § 907 cmt. a (1977)).

Our law presumes that statements that are defamatory per se injure the victim's reputation and entitle him to recover general damages, including damages for loss of reputation and mental anguish. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 159–60 (Tex. 2014).

Even if noneconomic damages cannot be determined with mathematical precision, factfinders are granted latitude in awarding such damages. However, such damages are not immune from no-evidence review on appeal—loss of reputation damages should be more than theoretical. Brady v. Klentzman, 515 S.W.3d 878, 887 (Tex. 2017). On review, evidence must be legally sufficient as to both the existence and the amount of such damages; the factfinder cannot present a baseless award. The amount must fairly and reasonably compensate the plaintiff for his injury. Waste Mgmt. of Tex., Inc., 434 S.W.3d at 160.

To secure an award of exemplary damages, a private plaintiff suing a non-media defendant not involving a public concern must also plead and prove actual malice. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 334, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (requiring proof of actual malice to obtain exemplary damages and defining a statement made with actual malice as one made “with knowledge that it was false or with reckless disregard of whether it was false or not”). Our Supreme Court has held that “recovery of exemplary damages are appropriately within the guarantees of the First Amendment if the plaintiff proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice.” Hancock, 400 S.W.3d at 66.

Actual malice means that a defendant published the defamatory falsehood with “knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (defining the actual malice standard and applying it to public officials); Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (applying the New York Times actual malice standard to public figures); WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998), cert. denied, 526 U.S. 1051, 119 S.Ct. 1358, 143 L.Ed.2d 519 (1999).

Reckless disregard “means that the defendant ‘entertained serious doubt as to the truth of his publication.’ ” Scripps Tex. Newspapers, L.P. v. Belalcazar, 99 S.W.3d 829, 839 (Tex. App.—Corpus Christi 2003, pet. denied) (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). The standard is subjective; “there must be sufficient evidence to permit the conclusion that the defendant actually had a ‘high degree of awareness of ․ probable falsity.’ ” Scripps, 99 S.W.3d at 839, quoting Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 657, 688, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). Failure to investigate, without more, cannot establish actual malice. Scripps, 99 S.W.3d at 839.

B. Is the trial court's defamation determination supported by factually and legally sufficient evidence?

In their first issue, the Amells complain that the evidence presented to the trial court was legally and factually insufficient to support its finding that the Amells defamed Billy. First, the Amells contend two categories of statements presented in the evidence—(1) statements about contractual rights, and (2) statements about Billy's ethics and professionalism—are not defamatory.

The record contains various emails where the Amells made statements to clients and other contacts in the insurance industry. Several of these emails were directed to carrier representatives responsible for granting appointments with potential customers to agents like appellees and appellants.²

1. Emails to carrier representatives

On February 5, 2020, Leonard and Sabrina both sent emails about Billy Van Pelt which contained much of the same and similar language to individuals working for carriers in the insurance industry. For example, on Feb. 5, 2020, at 10:45 a.m. Leonard sent an email to individuals at Risk Solutions, with the subject line “remove agent–William Van Pelt” includes, the following statements:

This past Friday, January 31st, William (we refer to him as Bill) had met with me letting me know that he was leaving our agency and demanding that we sign over all his clients to him as he was starting his own agency and had appointments already. This was NOT our agreement per our contract with him. He loses his book of business upon terminating his relationship with us. He didn't see it that way and had all sorts of lovely things to say to me which revealed to us that he had not been very honest in our dealings with him. He has been an agent of ours since late 2017.

After that meeting, we started digging around into his client records and emails and realized he had been behaving very unethically. He had been representing his own agency (The Van Pelt Agency) while under OUR agency's E&O and utilizing OUR agency's appointments, systems, operations, processes and staff for servicing all his clients and gaining new clientele this way. He focused on sales, we did all the servicing in house but he was very aware of how we were doing things. So he took his notes apparently.

In short, he was placing business with our carriers and using an outside email account (from The Van Pelt Agency) that was not one of ours for his direct communications with customers. He was doing his [sic] for most of his time with us. Using us. And we had no Idea.

He is now trying to gain all the exact same appointments with our carriers (which of course he knows all the ones we use) so he can do agent of record changes to get all those customers anyway. We cannot change this as we didn't have a non compete with him BUT we can slow him down a bit. Technically, now that he has left those are OUR clients. So, I am working on notifying all our carrier contacts of what has transpired.

We are currently working with an attorney to gather all information needed to possibly sue him at best and to report him to TDI at the very least to get his license suspended or revoked.

In regards to his wife Kimberly Van Pelt ․ Apparently, they have done this before where they switch lead spots to fly under the radar. They used to be with Farmers and he had used her license to operate his agency due to old convictions he still had on his record. But she isn't really the agent, HE is. I can further give you phone numbers, home address and license information as well as their business address if you need any of this information.

If requested, I would encourage you NOT to work with this duo. Agents who behave like this give us all a bad reputation. No professionalism, no respect and unethical to the core.

Sabrina and I helped him to continue in the industry when they left Farmers and were stuck not knowing what to do,

We gave him the benefit of the doubt and trusted him, mentoring him as he is still a fairly new agent (only a few years).

To be treated In this manner is appalling and we are still in shock over the amount of betrayal over what he has done and is trying to do. It seems like each day we are finding out new things that he was doing.

At 6:02 a.m. the same day, Sabrina sent a virtually identical letter with the subject line “Re: Producer info” to Dustin Miller, the territory representative for a carrier called Select Insurance Markets. Miller responded, “I'll be sure to bring my team up to speed and advise they remove carrier access immediately. I will tread lightly if they reach out to me for market assistance, but it's safe to say I do not wish to partner with an unethical agency.”

At 6:08 a.m. the same day, Sabrina sent another virtually identical letter with the subject line “Re: remove agent” to Becky Martin, the territory representative for a carrier called Allied Trust. Becky responded, “So sorry you're having to deal with such frustration, but I really appreciate you letting me know; sadly this happens more often than you know! I will also alert Home Office in case Bill or Kimberly try to ‘go around me’.”

At 6:12 a.m. the same day, Sabrina sent another virtually identical letter with the subject line “Re: Removal of agent” to Ryan Williams, the territory representative for a carrier called Mercury Insurance.

Leonard's 10:45 a.m. email to George Karlis, Kate Eddinger, and Anthony Karlis with Quantum Risk Solutions, with the subject line “remove agent - William Van Pelt” includes in substantial part the same statements verbatim as the emails sent by Sabrina.

Analysis

We consider the statements made in the emails sent on February 5 to the various insurance carrier representatives:

• Breach of contract: He is demanding that we turn over clients; “This was NOT our agreement.”

• Unethical: He has been representing his own agency (The Van Pelt Agency) while under OUR agency's E&O” and “unethical to the core.”

• Dishonesty: Billy “had not been very honest in our dealings with him.”

• Deception: “He was doing this for most of his time with us. Using us. And we had no idea.”

• That Leonard and Sabrina were contacting the Texas Department of Insurance, suggesting that Billy's insurance license was in jeopardy.

• Past convictions: Billy and his wife “switch lead spots to fly under the radar” “due to old convictions he still had on his record.”

• Unprofessional: “Agents who behave like this give us all a bad reputation. No professionalism.”

The gist of the emails was to establish that Billy was a disreputable insurance agent to be avoided based on facts suggesting that Billy had operated unethically prior to and while working for the Amells. A reasonable factfinder could conclude that statements in these emails taken as a whole conveyed a false and defamatory message.³ See Turner v. KTRK Television, Inc., 38 S.W.3d 103, 119 (Tex. 2000); see also Consultants in Pain Med., PLLC v. Ellen Boyle Duncan, PLLC, 690 S.W.3d 739, 758 (Tex. App.—San Antonio 2024, pet. denied).

2. Emails to customers

Following the morning emails to carrier representatives, that afternoon Sabrina also sent at least seven emails directly to Billy's clients wherein she suggested that if the customer did business with Billy the customer would be complicit in violating Billy's agreement with her agency. The emails each stated:

Although Bill is not with our agency any longer, he may attempt to contact you to move you to another insurance carrier or do an ‘Agent/broker of record change’. This is a direct violation of his agreement with us. Please feel free to forward any communications of this nature to us so that we may do our best to service you and protect your best interests and current your policies.

Additionally, if you could respond to this email or call our office line, I have a few questions regarding any of Bill's previous email communications with you. He was misrepresenting himself as his own agency (The Van Pelt Agency) when he was under our agency, The Amell Agency. Any help on this matter would be greatly appreciated.

One recipient responded, “I have no intention of moving my account,” and “I want to make sure he doesn't have access to my accounts. Can you confirm that for me?”

Analysis

The gist of the statements in the customer emails contain some truth, sprinkled with inaccuracy and innuendo. First, the emails inaccurately purport that doing business with Billy would be “a violation of his agreement with us.” Further, evidence in the record was sufficient for a reasonable fact finder to conclude that the statement that Billy was “misrepresenting himself as his own agency when he was under our agency” was misleading because evidence in the record shows the Amells had been made aware of this, benefitted from Billy's unrestricted access to certain clients, and did not address and condoned this conduct while Billy was working for them. Finally, the request for information about previous email communications with Billy is suggestive of ongoing suspicious conduct. The comments also disregard the pre-employment comments by Leonard that Billy would be able to take his book of business if and when he left the Amell agency. Because of these material omissions and misleading juxtapositions, we conclude a reasonable factfinder could conclude that the emails mischaracterized Billy's conduct as unauthorized and suspicious and thereby cast more suspicion on Billy's action than an accurate account would have warranted. The emails as a whole conveyed a false and defamatory message. See Turner v. KTRK Television, Inc., 38 S.W.3d at 119.

3. Defamation per se

Under this issue, the Amells also challenge the defamation per se finding. A written defamatory statement is libel per se if the words in and of themselves are so obviously hurtful to the person aggrieved by them that they require no proof of injury. Scripps NP Operating, LLC v. Carter, 567 S.W.3d 1, 16 (Tex. App.—Corpus Christi–Edinburg 2016), order withdrawn (Jan. 18, 2019), aff'd, 573 S.W.3d 781 (Tex. 2019). These include statements that (1) unambiguously charge a crime, dishonesty, fraud, rascality, or general depravity, or (2) are falsehoods that injure one in his office, business, profession, or occupation. Id. If the court must resort to innuendo or extrinsic evidence to determine that the statement was defamatory, then it is libel per quod and requires proof of injury and damages. Id. At trial, Leonard agreed that in the insurance business reputation is paramount. Likewise, this court has observed the significance of an insurance professional's “reputation for honesty” as a valuable possession, “essentially a requirement for licensing, as well as a primary determinant in the successful maintenance of business relationships with others in the industry.” Bellefonte Underwriters Ins. Co. v. Brown, 663 S.W.2d 562, 583 (Tex. App.—Houston [14th Dist.] 1983), aff'd in part, rev'd in part, 704 S.W.2d 742 (Tex. 1986) (reversed on other grounds). All of the statements above unambiguously charge Billy with dishonest and potentially criminal conduct in his practice as an insurance agent such that the court reasonably concluded that the statements constituted per se defamation. See Carter, 567 S.W.3d at 16.

4. Truth and Falsity

Finally, the Amells contend that “all of the Amells’ statements about Bill were entirely true or at least substantially true.” Under the principles of horizontal stare decisis our court retains the strict liability standard with respect to fault and the burden of proving the truth of statements in cases such as this—private plaintiff, non-media defendant, matter not involving a public concern. Thomas-Smith, 238 S.W.3d at 509; cf. French v. French, 385 S.W.3d 61, 73 (Tex. App.—Waco 2012, pet. denied) (applying the negligence standard and noting the split among courts). Thus, where, as here, there is not alleged to be a public figure plaintiff, a media defendant, or a defamatory statement involving a matter of public concern, the falsity of the statement is generally presumed, and the truth of the statement is an affirmative defense that must be proved by the defendant. Thomas-Smith, 238 S.W.3d at 509, citing Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). Similarly, in the absence of a privilege, malice is inferred from the fact that a defamatory statement is false. Thomas-Smith, 238 S.W.3d at 509, citing See Int'l & G.N.R. Co. v. Edmundson, 222 S.W. 181, 183 (Tex. Comm'n App. 1920, holding approved); Bradstreet Co. v. Gill, 72 Tex. 115, 121, 9 S.W. 753 (1888).

Appellants’ only pleading (and thus live pleading) on file includes only a general denial; they asserted no affirmative defense, including the affirmative defense to the truth or any other privilege. Accordingly, the trial court's judgment, at least with respect to the question of defamation liability, would not need to be supported by any quantum of sufficient evidence of fault and malice, over and above the presumption provided the court. See Thomas-Smith, 238 S.W.3d at 509. However, though neither party has asserted the questions of truth and falsity were tried by consent, the record tends to show that they were.

Presuming for the sake of argument that Billy was required to show some degree of fault with respect to the truth, i.e., negligent disregard for the truth, we would reach the same conclusion on our analysis of the evidence to support the judgment on defamation liability. At the time the Amells drafted the various emails, they knew that Billy was not subject to a non-compete, knew that Leonard had encouraged the idea of allowing the Van Pelts take their business following two to three years of employment, and knew Billy was free under the contract to pursue competitive business yet suggested his ongoing actions were brought about by prior misdeeds in such a way that his status as a lawful insurance agent was in jeopardy with the Texas Department of Insurance. In fact, the emails themselves stated that the goal was to prevent or “slow down” Billy from doing business with the contacts he had made while at Amell's insurance agency. See Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 578 (Tex. App.—Austin 2007, pet. denied): Bentley v. Bunton, 94 S.W.3d 561, 602 (Tex. 2002) (“[W]hile a defendant's ill will toward a plaintiff does not equate to, and must not be confused with, actual malice, such animus may suggest actual malice.”). Additionally, under our presumption for the sake of argument, the court's omitted finding on the fault element (negligent disregard for the truth)—having not been requested yet supported by evidence—does not operate to create reversible error. Tex. R. Civ. P. 299.

Therefore, Appellants first issue is overruled.

C. Is the trial court's award of general damages for loss of reputation supported by factually and legally sufficient evidence?

In their second issue, the Amells challenge the trial court's award for reputational damages for legal and factual insufficiency.

A plaintiff's damages may be presumed if he establishes the defendant's statement is defamatory per se and either that the defendant published the statement with actual malice or that the statement involves a private plaintiff and a private concern. Hancock, 400 S.W.3d at 65-66. General damages are recoverable in an action for defamation. Kelly v. Diocese of Corpus Christi, 832 S.W.2d 88, 94 (Tex. App.—Corpus Christi 1992, writ dism'd). In a libel or slander action, general damages are noneconomic damages that do not require the plaintiff to prove that it suffered a pecuniary loss. See Hancock, 400 S.W.3d at 65–66. General damages include compensation for injury to character or reputation, injury to feelings, mental anguish, and similar wrongs. Bentley, 94 S.W.3d at 604.

Reputational damages can be recovered for the plaintiff's loss of reputation in the past and future. See Anderson v. Durant, 550 S.W.3d 605, 621 (Tex. 2018). Damages for injury to reputation are non-economic damages. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156 (Tex. 2014). Assessing injury to reputation is an inexact measurement, but the factfinder is not unconstrained in its discretion. Id. at 161. Awards must both be fair and compensate the plaintiff for the injury and must not amount to disguised disapproval of the defendant. Id.

Rumors within a community or speculation alone are insufficient to prove reputational damages. Id.; see Burbage, 447 S.W.3d at 262. To recover reputational damages, the plaintiff must present evidence that people within a community believed the rumors and that the plaintiff's reputation was affected. Anderson, 550 S.W.3d at 621; see e.g., Brady v. Klentzman, 515 S.W.3d 878, 887 (Tex. 2017) (reputational damage award affirmed where evidence that people within community had changed opinion of the plaintiff). Direct evidence that people changed their opinion of the plaintiff because of the defamatory statement can meet this threshold. Anderson, 550 S.W.3d at 621. Evidence of lost jobs or business opportunities may be some evidence of reputational damages only if the plaintiff can show the lost job or business opportunity was connected to the defamatory statement. Innovative Block of S. Tex., Ltd. v. Valley Builders Supply, Inc., 603 S.W.3d 409, 425 (Tex. 2020); see e.g., Anderson, 550 S.W.3d at 621 (award approved where plaintiff presented testimony from prospective employer who did not hire plaintiff because of rumors). Evidence assigning an actual dollar value to the injury is not required; rather, reasonable compensation is the touchstone for quantifying damages. Anderson, 550 S.W.3d at 621.

Relevant to the Amells’ damage challenge, the trial court made the following findings and conclusions:

34. In a defamation case, Plaintiff can recover actual or compensatory damages, nominal damages, and exemplary damages. Actual or compensatory damages are intended to compensate a plaintiff for the injury incurred and include general damages and special damages.

35. General damages are non-economic damages, and can include loss of reputation, mental anguish, embarrassment, humiliation, or loss of respect caused by the defamatory publication. Because reputational damages “are not amendable to exact calculation” the factfinder “must use ‘sound judgment’ in determining the amount of such damages.”

․

45. Plaintiffs suffered damages as a result of the defamatory statements.

46. The defamatory statements constitute defamation per se.

47. The Court finds that BVP had loss of reputation damages in the amount of $141,140.62. The Court finds that there was insufficient evidence of loss of business or lost profits.4

The Van Pelts provided proof not that they lost all business, but that they had lost a number of opportunities and showed that a number of carriers and clients who had received the Amells’ defamatory communications made statements illustrating their unfavorable view of Billy in light of the defamation. They presented evidence of the client representatives’ and the customers’ responses to the Amells’ emails, including

• “I'll be sure to bring my team up to speed and advise they remove carrier access immediately. I will tread lightly if they reach out to me for market assistance, but it's safe to say I do not wish to partner with an unethical agency.”

• “So sorry you're having to deal with such frustration, but I really appreciate you letting me know; sadly this happens more often than you know! I will also alert Home Office in case Bill or Kimberly try to ‘go around me’.”

• “I have no intention of moving my account,” and “I want to make sure he doesn't have access to my accounts. Can you confirm that for me?”

The court also heard a recording of Mary Gilbert who decided that she wanted nothing to do with both the Van Pelt Agency or the Amell Agency after receiving an email impugning Billy. The Amells argue that the trial court improperly used special damages—Billy's 1099 compensation of $141,140.62 from the Amell Agency in 2019—as a proxy for proving general damages—the harm to Billy's reputation in the industry, relying on Innovative Block.⁵ Innovative Block, however, is markedly different from this case and involved facts on the issue that are dissimilar to those in this case. Importantly, the Innovative Block plaintiff provided no evidence of the kind shown in this case—that the defamatory comments about the plaintiff's professionalism prompted third parties to disfavor the plaintiff based on the negative light shed on the plaintiff's reputation. Instead, the only evidence that the plaintiff's reputation was harmed in Innovative Block was expert testimony using quantitative measurements to determine the ratio of parallel alternate universes wherein the plaintiff would suffer the same profit losses. See Innovative Block, 603 S.W.3d at 420 (“The only evidence supporting that award is the testimony of Dr. Kenneth Lehrer. Lehrer's testimony focused on the Quasi-Monte Carlo methodology, which he used to quantify the possible harm done to Valley's reputation as a percentage of Valley's business losses during the years it competed with Innovative.”).

Although the trial court awarded $141,140.62 for reputation damages and this figure appeared on Billy's 1099, plaintiff's exhibit 9, nothing in the record illustrates that the court intended the reputation damage award to serve instead as an award for a year of employment with the Amells. Appellants’ noted that “[N]o one discussed or even mentioned PX 9 at trial.” As a result, we have no basis to conclude that the trial court improperly arrived at this figure as loss of reputation damages.

With respect to the amount of the award, we are only concerned that it is reasonable. Damage awards must both be fair and compensate the plaintiff for his injury and must not amount to disguised disapproval of the defendant. Waste Mgmt. of Tex., Inc., 434 S.W.3d at 161. Based on the facts of this case, including the evidence of members in the community acting on their belief of his diminished reputation—connected to his professional conduct, and the evidence of the value of carrier appointments, we think an award of approximately $140,000 for his past reputational damages would be supported by factually sufficient evidence. Durant v. Anderson, No. 02-14-00283-CV, 2020 WL 1295058, at *33 (Tex. App.—Fort Worth Mar. 19, 2020, pet. denied) (“We therefore determine, based on the particular facts of this case and the comparator cases discussed above, that an award of $150,000 for Anderson's past reputational damages would be supported by factually sufficient evidence.”); See, e.g., Bentley I, 94 S.W.3d at 605–07; Aldous v. Bruss, 405 S.W.3d 847, 862-63 (Tex. App.—Houston [14th Dist.] 2013, no pet.); cf. Champion Printing & Copying LLC v. Nichols, No. 03-15-00704-CV, 2017 WL 3585213, at *6-7 (Tex. App.—Austin Aug. 18, 2017, pet. denied) (finding $15,000 award for past injury to reputation not excessive); Memon v. Shaikh, 401 S.W.3d 407, 420-22 (Tex. App.—Houston [14th Dist.] 2013) (upholding $250,000 award for two-year targeted defamatory campaign against plaintiff), judgment withdrawn, No. 14-12-00015-CV, 2014 WL 6679562 (Tex. App.—Houston [14th Dist.] Nov. 25, 2014, no pet.); Pitts & Collard, L.L.P. v. Schechter, 369 S.W.3d 301, 310, 330 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (finding evidence factually sufficient to support $100,000 award for damage to reputation). Thus, the amount awarded does not appear on its face excessive or unreasonable against similar awards.

We therefore overrule appellant's second issue.

D. Is the trial court's award of exemplary damages supported by factually and legally sufficient evidence?

In their third issue, the Amells complain that the evidence is factually and legally insufficient to support the award of exemplary damages, namely that the judgment is not supported by evidence of constitutional “actual malice.”⁶

For a private plaintiff to recover exemplary damages in a defamation case against a non-media defendant not involving a matter of public concern, the plaintiff must secure an award of actual damages based on a preponderance of the evidence and demonstrate by clear and convincing evidence “malice” as defined under Chapter 41 of the Civil Practice and Remedies Code. Chapter 41 defines malice as “a specific intent to cause substantial injury or harm to the claimant.” Tex. Civ. Prac. & Rem. Code Ann. § 41.001(7). As a result, in Texas, a plaintiff seeking exemplary damages in a defamation case must demonstrate by clear and convincing evidence both malice (a specific intent to cause substantial injury or harm) and actual malice (knowledge that a statement was false or with reckless disregard of whether it was false or not).

In its findings of fact and conclusion of law, the trial court set out the following with respect to exemplary damages for the Van Pelts’ defamation claims:

37. Exemplary damages can be awarded in defamation cases when more than nominal damages are awarded, if Plaintiff proves by clear and convincing evidence that the defendant published defamatory statements with actual malice.

38. Malice is defined as a specific intent to cause substantial injury or harm to the plaintiff.

39. The Plaintiffs have established malice.

40. The Defendants have unabashedly stated that their statements were intended to harm the Van Pelts and their business.

41. The statements were coordinated in a manner intended to harm the Van Pelts.

․

43. Defendants made false statements of fact, in emails, letters and telephone calls to third parties.

44. The false statements were concerning Plaintiffs BVP, KVP, and the Van Pelt Agency.

45. Plaintiffs suffered damages as a result of the defamatory statements.

46. The defamatory statements constitute defamation per se.

47. The Court finds that BVP had loss of reputation damages in the amount of $141,140.62.

․

50. Plaintiff BVP is awarded exemplary damages in the amount of $141,140.62 against the Defendants for their intentional and malicious conduct.

Because “actual malice” is a term of art in constitutional defamation law, and is distinguishable from “malice” under Chapter 41, and the trial court used both terms, its conclusions can reasonably be construed to have referred to both constitutional fault (“actual malice”) and Chapter 41's “malice” requirement. Under Chapter 41, “malice” is defined as “a specific intent by the defendant to cause substantial injury or harm to the claimant.” This definition is distinct from “actual malice” in defamation law, as it focuses on the defendant's intent to harm rather than its attitude toward the truth of the statement. While the trial court explicitly made findings of “malice,” it omitted any finding of “actual malice” necessary to the exemplary damage award. Neither side requested additional findings. Because the court made other findings essential to the exemplary damage claim, to the extent the trial court omitted findings of constitutional fault—negligence with regard to the facts, we consider whether such a finding is supported by clear and convincing evidence. See Tex. R. Civ. P. 299.

As discussed in previous sections, throughout most of the emails, the overriding message was that Billy had left the agency, that Billy and his wife were seeking to retain appointments and customers under their own firm and thus were deceptive and unethical and violating their agreement and likely insurance laws. The accusations made against Billy were over matters such that their truth or falsity was peculiarly within Leonard's knowledge based on his pre-employment discussions with Billy. Billy made clear his intention that he and Kim planned to run their own agency. Likewise, Leonard stated that Billy and Kim may choose, after working with his agency, to go their own way.⁷

The matters discussed in their phone call—Billy's stated intentions to maintain independence in the insurance industry and Leonard's representations to Billy—are the facts that establish the falsity of Leonard's and Sabrina's defamatory statements and their knowledge that the statements in the emails were false and misleading. These circumstances were sufficient evidence to support implying the omitted finding of constitutional fault, or of reckless disregard for the truth or falsity of the statements. Tex. R. Civ. P. 299; See also Leyendecker & Associates, Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984).

We accordingly overrule appellant's third issue.

III. Kim's Cross-Appeal on Damage Award

Appellee and Cross-Appellant Kimberly Van Pelt complains that the trial court erred when it awarded her no damages following its favorable finding on her defamation claim—that the Amells’ statements constituted defamation per se as against her as well as Billy.

Kimberly Van Pelt's attorney provided the court, without qualification, a proposed amended final judgment, the judgment appealed from. Presuming without deciding that this does not prevent her from asserting her complaint on appeal, failing to testify or present evidence of her own reputational damages at trial independently from Billy significantly diminishes the merits of her complaint.

In the absence of her own evidence of damages to point to in the record, she contends that the trial court should have awarded reputational damages based on a “reasonable inference” referred to in the Anderson case.⁸ However, Kimberly was the party with the burden of proof. Therefore, we review the record of her complaint to the trial court's judgment in the light most favorable to the trial court's finding and “disregard all other inferences.” Id.

We cannot find any significant evidence in the record specifically related to Kimberly's alleged reputation damages. The trial court's refusal to award reputational damages to Kimberly was within its discretion. See Adolph Coors Co. v. Rodriguez, 780 S.W.2d 477, 488 (Tex. App.—Corpus Christi 1989, writ denied) (noting that a finding of defamation per se does not require a fact finder “actually to find any amount of damages”).

The only damages Sabrina was entitled to recover absent any further showing were nominal damages, and historically Texas courts will not reverse merely to enable that recovery. See MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 665 (Tex. 2009); see Burbage v. Burbage, 447 S.W.3d 249, 263 (Tex. 2014). Today, we do not depart from those principles of efficiency.

We therefore overrule cross-appellant's sole issue.

IV. Conclusion

Having overruled each complaint asserted in this appeal, we affirm the judgment.

FOOTNOTES

1.   The February 2, 2024 Final Judgment, though it omits reference to appellees Kim Van Pelt and the Van Pelt Agency or the claims they asserted and though it does not expressly dispose of their claims, creates the presumption of finality having followed a conventional trial on the merits. Vaughn v. Drennon, 324 S.W.3d 560, 561 (Tex. 2010) (“A judgment following a conventional trial on the merits need not dispose of every party and claim for the Aldridge presumption of finality to apply. Accordingly, we conclude that the Aldridge presumption applied in this case, and it was error for the court of appeals to dismiss the appeal for want of jurisdiction.”) referring to N. E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897 (Tex. 1966). The judgment makes no reservations, creates no conditions, or any other reference indicating that the case would run on. In the absence of any evidence rebutting the presumption of finality, the omission of the parties does not pose an impediment to finality or this court's jurisdiction over the appeal. Vaughn v. Drennon, 324 S.W.3d at 561.

2.   There is evidence in the record these appointments are an important part of an agent's source of business; Billy testified that the loss of an appointment equated to the loss the ability to compete in the market, e.g., “we did not get those appointments, which at that point, you know, pretty much game over, stick a fork in me, I'm done, because I have no markets to place my clients with.”

3.   Given the status of the parties and the nature of the allegations, this result is further supported by the applicable presumption of falsity. Thomas-Smith, 238 S.W.3d at 509 (“Where, as here, there is not alleged to be a public figure plaintiff, a media defendant, or a defamatory statement involving a matter of public concern, the falsity of the statement is generally presumed, and the truth of the statement is an affirmative defense that must be proved by the defendant.”).

4.   This last sentence is antithetical to the Amells’ first contention that the reputational damages in this case were awarded as a proxy for hypothesized special damages lost business profits. That is, the court did not find sufficient evidence of special lost profits, but did find evidence to support reputation damages.

5.   Innovative Block, 603 S.W.3d at 424 (“Lehrer's testimony here conflates special and general damages by substituting hypothesized special damages as proof by proxy for Valley's general damages and noneconomic harm for Valley's general damages and noneconomic harm”).

6.   We need not address Amells’ first argument under their third issue which is predicated on this court's reversal of the trial court's award of general damages under their second complaint. Because we overrule the Amells’ challenge to the trial court's award of general damages, we overrule the first argument under the Amells’ third issue

7.   Though their employment contract did not address how the parties would handle clients upon Billy's departure from the Amell Agency, it was not so restrictive to foreclose Billy from harboring the reasonable expectation Leonard had given Billy that Billy could retain those clients on his departure.

8.   She cites the high court's statement, “[w]e do not require conclusive proof that Anderson would have been hired, but for the defamatory statement, but rather a reasonable inference that Anderson's reputation changed for the worse.” Anderson, 550 S.W.3d at 623.

Randy Wilson, Justice