RODRIGUEZ v. PRINTONE COLOR CORPORATION (1998)

OPINION

Edward “Lalo” Rodriguez sued Printone Color Corporation, Edward's former employer, for slander in Bexar County.   After venue was transferred to Harris County, Edward added a breach of contract claim.   Edward's brother, Hector Rodriguez, intervened, asserting a claim against Printone for slander.   The trial court struck Hector's intervention, and Edward tried his claims in a bench trial.   After Edward rested his case, the trial court granted Printone's motion for directed verdict ¹ as to Edward's slander claim.   After Printone rested, the trial court ruled in favor of Printone as to Edward's breach of contract claim.

On appeal, Edward contends the trial court erred in (1) transferring venue from Bexar County to Harris County and (2) granting a directed verdict in favor of Printone as to his slander claim.   Hector contends the trial court abused its discretion by striking his plea in intervention.   We affirm.

VENUE

 In point of error one, Edward contends the trial court erred in transferring venue from Bexar County to Harris County.   We must conduct an independent review of the entire record, including trial on the merits, to determine whether venue was proper in Harris County, the ultimate county of suit.   See Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex.1993);  see also Tex.Civ.Prac. & Rem.Code Ann. § 15.064(b) (Vernon 1986).   If there is any probative evidence in the record, including evidence adduced after venue was determined, that destroys the prima facie proof relied upon by the trial court, then we must reverse.  Ruiz, 868 S.W.2d at 757.   On the other hand, if there is probative evidence to support the trial court's determination, even if the preponderance of the evidence is to the contrary, we must defer to the trial court's decision.  Ruiz, 868 S.W.2d at 758.

 Relying on Wilson v. Texas Parks and Wildlife Dep't, 886 S.W.2d 259, 261–62 (Tex.1994), Edward argues we must review the entire record to determine whether there was any probative evidence that venue was proper in Bexar County, Edward's county of choice.   In Wilson, the applicable venue statute required that suit be brought in the county in which all or part of the cause of action arose.  Id. at 262.   The plaintiff sued in Travis County alleging the defendant's negligent conduct occurred in Travis County.  Id. at 260.   The defendant moved to transfer venue to Blanco County alleging the plaintiff's injury occurred in that county.  Id.  The trial court transferred venue to Blanco county, and the supreme court held that because the plaintiff filed suit in a county of proper venue, it was reversible error to transfer venue, even if the county of transfer would have been proper if originally chosen by the plaintiff.  Id. at 261.

Unlike Wilson, the defendant in this case not only argued that venue was proper in another county, but also challenged the sufficiency of the proof to support Edward's choice of venue.   That is, unlike Wilson, Edward's choice of venue was not presumed to be proper.   If Edward's choice of venue had been presumed to be proper, then we would have been compelled to look for probative evidence to support Edward's choice.   See Wilson, 886 S.W.2d at 261–62.   This case is more closely akin to Ruiz, 868 S.W.2d at 757–60, in which the defendant challenged the evidence to support the plaintiff's claim that the defendant had an agent or representative in the county of suit.   Hence, we must follow the rule in Ruiz:  if there is any probative evidence in the entire record that venue was proper in the county where judgment was rendered, we must uphold the trial court's venue determination.  868 S.W.2d at 758.

 A suit for slander “can only be maintained in the county in which the plaintiff resided at the time of the accrual of the cause of action, or in the county in which the defendant resided at the time of filing of suit, or in the county of the residence of defendants, or any of them, or the domicile of any corporate defendant, at the election of the plaintiff.”   tex.Civ.Prac. & Rem.Code Ann. § 15.017 (Vernon 1986).   Rule 87 provides, in relevant part:

All venue facts, when properly pleaded, shall be taken as true unless specifically denied by the adverse party.   When a venue fact is specifically denied, the party pleading the venue fact must make prima facie proof of that venue fact․  Prima facie proof is made when the venue facts are properly pleaded and an affidavit, and any duly proved attachments to the affidavit, are filed fully and specifically setting forth the facts supporting such pleading.

tex.R.Civ.P. 87.

In October 1991, Edward filed his original petition in Bexar alleging that (1) he resided in Bexar County;  (2) Printone had made slanderous statements about Edward to businesses in Bexar County;  and (3) that his injury occurred in Bexar County.   Printone filed a motion to transfer venue to Harris County in which it (1) stated that its principal office was located in Harris County and, therefore, venue was proper in Harris County;  (2) denied that it was a resident of Bexar County;  (3) specifically denied that “any cause of action alleged in Plaintiff's Original Petition” occurred in Bexar County;  and (4) specifically denied “the venue facts pleaded in Plaintiff's Petition.”   We have held that statements such as “Defendant specifically denies those venue facts pleaded in Plaintiff's Petition” do not constitute a “specific denial” as required by tex.R.Civ.P. 87.  Maranatha Temple, Inc. v. Enter. Prods. Co., 833 S.W.2d 736, 740 (Tex.App.—Houston [1st Dist.] 1992, writ denied).   Thus, Printone did not specifically deny Edward's allegations that he was a resident of Bexar County or that his injury occurred in Bexar County.

Approximately eight days before the hearing on the motion to transfer venue, Printone filed a supplement to its motion to transfer venue specifically denying that Edward was a resident of Bexar County at the time of his injury.   In support of its supplemental motion, Printone attached as evidence excerpts from the deposition testimony of two of Edward's witnesses, Joe Dena and Lydia Munoz.   Dena testified as follows:

Q. [by Printone's counsel]:  At the time of your conversation with the [Printone] person in Houston, what position did you think Lalo [Edward] had with Printone:

A. [by Dena]:  By what I understood, he was supposed to be in charge of operations over there.

Q.:  Over where?

A.:  In Houston.

Q.:  In Houston.   Did Mr. Rodriguez ever have an office in San Antonio?   And I'm talking Lalo.

A.:  Lalo? Oh, no, I don't think so.

Q.:  So Lalo Rodriguez was never in San Antonio other than to just drop by every once in a while?

A.:  He would drop by every once in a while, but I think he moved out there.   He was living over there.

Q.:  He was living over where?

A.:  In Houston.

 Because Printone properly challenged Edward's venue choice, Edward was required to plead and make prima facie proof that his venue selection was proper.   See tex.R.Civ.P. 87(3)(a).  “A prima facie case represents the minimum quantity of evidence necessary to support a rational inference that the allegation of fact is true.”  Rosales v. H.E. Butt Grocery Co., 905 S.W.2d 745, 748 (Tex.App.—San Antonio 1995, writ denied).   Such a quantum of evidence would entitle the proponent to an instructed verdict on the issue absent evidence to the contrary.   See id.   In response to Printone's supplemental motion to transfer venue,² Edward stated that he resided in Bexar County at the time of his injury.   In support of this averment, Edward attached his own affidavit in which he stated that (1) he resided in San Antonio nearly all of his adult life, except when he moved to Houston to work for Printone in November 1989;  (2) he resided in Houston until October 1, 1990, at which time he returned to San Antonio, where he has resided permanently ever since;  (3) in late October 1990, a Printone employee made defamatory statements about him to third parties in San Antonio;  and (4) his residence at the time the statements were made was, and continues to be:  15003 Enchanted Castle, San Antonio, Bexar County, Texas 78247.

After a hearing, the trial court granted Printone's motion to transfer venue to Harris County.   During the bench trial, Edward testified he moved to Houston when he began to work for Printone in 1989 or 1990 and would call on customers in San Antonio.   Sandra Garcia (formerly Touchstone), a former employee of Printone, testified that Edward ceased to be employed by Printone in October 1990.   On or about October 17, 1990, Edward testified that he called Printone from San Antonio and spoke with the vice-president.   After the conversation, Edward quit working at Printone.

On direct-examination, Edward testified as follows:

Q. [by Edward's counsel]:  ․ First of all, after you quit working for Printone in October of 1990, at that time were you living in Houston or San Antonio?

A.:  San Antonio.

Q.:  When you filed your paper work, some of which we have been looking at, with TEC [Texas Employment Commission], what address did you list?

A.:  San Antonio.

Edward's claim for benefits that was submitted on October 25, 1990, to the Texas Employment Commission listed the following address:  15003 Enchanted Castle, San Antonio, Texas.

On cross-examination, Edward testified as follows:

Q. [by Printone's counsel]:  When you moved from Houston to San Antonio in September 1990, is that correct?

A. [by Edward]:  Yes.

Q.:  Did you ever come back to Houston to live?

A.:  Yes, ma'am.

Q.:  When was that?

A.:  It was a couple of—about until the middle of October, something like that.   I had an apartment here [in Houston] until November.   The last of October.

Applying the standard of review set out in Ruiz, 868 S.W.2d at 757–58, we conclude there was probative evidence to support the trial court's determination to transfer venue to Harris County.   Edward's affidavit stated the slanderous statements were made in October 1990.   Further, Edward's testimony at trial indicated he resided in Houston until the end of October.

We overrule point of error one.

The discussion of the remaining points of error does not meet the criteria for publication, tex.R.App.P. 47, and is, thus, ordered not published.   We affirm the trial court's judgment.

MOTION FOR JUDGMENT

In point of error two, Edward contends the trial court erred in granting Printone's directed verdict (motion for judgment) with respect to Edward's slander claim.   Specifically, Edward challenges the legal and factual sufficiency of the trial court's finding of fact relating to his slander claim.

Standard of Review

In entering a judgment at the close of the plaintiff's case, the trial judge, acting as fact finder, is presumed to have ruled on the legal sufficiency of the evidence and the weight of the evidence.  Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 305 (Tex.1988).   The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury's answer to a jury question.  Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994);  National Commerce Bank v. Stiehl, 866 S.W.2d 706, 707 (Tex.App.—Houston [1st Dist.] 1993, no writ).

If an appellant attacks the legal sufficiency of an adverse finding on an issue on which he had the burden of proof, the appellant must overcome two hurdles.  Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989);  $18,800 in U.S. Currency, One 1990 Nissan Automobile 240SX VIN JN1HS36POLW144462 v. State, 961 S.W.2d 257, –––– (Tex.App.—Houston [1st Dist.] 1997, no writ).   First, we must examine the record for evidence and inferences supporting the challenged finding, ignoring all evidence to the contrary.   Id.  Second, if there is no evidence to support the finding, then we will examine the entire record to determine if the contrary position is established as a matter of law.  Id.

If an appellant challenges the factual sufficiency of the evidence to support an adverse finding, we must consider and weigh all the evidence, both that in support of and contrary to the challenged finding.  $18,800 in U.S. Currency, slip op. at 6, at ––––.  We must uphold the finding unless it so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust.  Id.

Slander

In his first amended petition, Edward alleged that Printone defamed him by telling its customers that (1) he had been terminated for stealing money or inventory from Printone and (2) they should not do business with him.   The trial court made the following express factual finding:  “Printone Color Corporation did not defame Edward Rodriguez.”   Slander is a defamatory, false oral statement that refers to an ascertainable person and that is published to a third person without a legal excuse.  Randall's Food Mkts. Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.1995);  Hardwick v. Houston Lighting & Power Co., 943 S.W.2d 183, 184 (Tex.App.—Houston [1st Dist.] 1997, no writ);  Reeves v. Western Co. of N. Am., 867 S.W.2d 385, 393 (Tex.App.—San Antonio 1993, writ denied).  “One who falsely imputes to another the crime of theft commits slander per se.”  Bennett v. Computer Assoc. Int'l, Inc., 932 S.W.2d 197, 200 (Tex.App.—Amarillo 1996, no writ);  cf. Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 630 (Tex.App.—Houston [1st Dist.] 1984, writ ref'd n.r.e.) (“Charging one falsely with the commission of any crime for which he may be punished by imprisonment is libel per se;”  therefore, proof of the injurious character of the words is not required).   Falsely accusing someone of stealing property falls within the parameters of slander per se.   Bennett, 932 S.W.2d at 200.   Truth is an affirmative defense to slander.   Randall's Food Mkts., 891 S.W.2d at 646.

During trial, Edward's attorney asked the court to review the deposition testimony of Joe Dena and Lydia Munoz.   Their depositions disclosed the following.   Dena owns a print shop in San Antonio.   Before the institution of this lawsuit, Hector and Edward asked him to sign an affidavit that stated the following:  (1) in the month of October 1990, Dena called Printone in Houston to order ink from Edward, who had serviced his company for years;  (2) a Sandra Touchstone answered the phone and told him that Edward was no longer general manager or employed at Printone because Edward had stolen some money;  (3) Sandra Touchstone also told him that he should not conduct business with Edward again;  and (4) several weeks after this conversation, Dena received a letter from Printone stating the same information that Ms. Touchstone had told him over the phone.   During his deposition, Dena testified that (1) he did not prepare the affidavit and did not sign it before a notary public;  (2) he did not know the name of the woman at Printone with whom he had spoken;  (3) he could not remember whether he called Printone in October 1990;  (4) Edward had only been doing business with him for less than a year;  (5) he did not have the letter that Printone purportedly sent;  (6) when he called Printone and asked for Edward, the female employee told him that Edward and Hector had stolen some checks from Printone and that he should not give Hector and Edward checks;  (7) in December 1991, Dena told Printone's attorney that the woman at Printone did not mention any names, but he had the impression that Printone was accusing someone of stealing money.

Lydia Munoz, a production manager at a print shop in San Antonio, signed the same affidavit that Dena had signed.   Like Dena, Munoz testified in her deposition that she did not know the name of the woman at Printone with whom she had the conversation, did not remember when she called, and did not sign the affidavit in the notary public's presence.   Munoz admitted that she did not receive the defamatory letter which she claimed she had received in her affidavit.   Munoz initially testified that when she called Printone, she could not remember if the Printone employee mentioned Edward's name, but then she testified the Printone employee said Edward had stolen the money and that she should not deal with him.   Munoz also testified that the Printone employee had said not to “deal with them,” so Munoz assumed the employee was talking about Edward.   Later, she testified that in December 1991, she may have told Printone's attorney that she did not think that the Printone employee mentioned Edward or Hector's names.   Munoz could not produce a phone record of an October phone call to Printone that corresponded with the number that she claimed in her affidavit to have called.   Munoz also could not remember whether she called Printone collect that day.

During trial, Edward's attorney called Sandra Touchstone as a witness.   Touchstone testified that she worked as a secretary at Printone from May 1990, until March 1991.   Jesus McKelligan and Dave Sharp, two employees at Printone, instructed her to tell customers, who called from San Antonio and asked for Edward, that he was no longer working there because he had been stealing from the company.   Touchstone testified that she made such a statement to two or three customers from San Antonio, but she could not remember talking to Lydia Munoz or Joe Dena. Touchstone testified she never saw Edward stealing.

Edward contends the uncontested testimony of Touchstone, Dena, and Munoz establishes that Printone told, at a very minimum, Dena and Munoz that Edward had stolen money.   Evidence that at least one hearer understood Touchtone's words as defamatory is necessary for there to be an actionable publication of slander.   See Bergman v. Oshman's Sporting Goods, Inc., 594 S.W.2d 814 (Tex.Civ.App.—Tyler 1980, no writ).

The trial court, as fact finder, is the sole judge of the credibility of the witnesses.  Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex.App.—Houston [1st Dist.] 1992, writ denied).   The trial court may consider the facts and circumstances in connection with the testimony of each witness and accept or reject all or part of that testimony.  Id.  It is clear from Munoz' and Dena's deposition testimony that their affidavits were not based on personal knowledge.   Further, their deposition testimony, which was introduced at trial, had many inconsistencies.   That is, Dena and Munoz did not make it clear whether Touchstone was referring to Edward or Hector, both of them, or neither of them.   Hence, their testimony not only calls into question their credibility, but also whether Touchstone was referring to an ascertainable person.

Although Touchstone testified she made the statement that Edward had stolen from the company to two or three customers in San Antonio, she could not recall talking to either Munoz or Dena, the two third parties to whom Edward claims defamatory statements were made.   Munoz could not produce a phone record of a phone call to Printone in Houston and could not recall whether she called Printone collect on the day she claimed Touchstone made the defamatory statement.

We conclude that the trial court was free to reject the testimony of Munoz, Dena, and Touchstone in making the finding that Printone never made defamatory statements about Edward to Dena and Munoz.   Given the inherent weakness of their testimony, we further conclude the evidence was legally and factually sufficient to support this finding.

We overrule point of error two.

MOTION TO INTERVENE

In point of error three, Hector contends the trial court abused its discretion by striking his plea in intervention.   Edward sued Printone in Bexar County in October 1991.   In June 1994, or almost three years after Edward filed suit, Hector filed a plea in intervention asserting the same slander claim that forms the basis of Edward's claim against Printone.   In September 1995, or approximately one month before trial, Printone filed a motion to strike Hector's plea in intervention, arguing that (1) Hector's plea was barred by the statute of limitations;  (2) Hector's intervention would complicate the litigation;  and (3) Hector suborned perjured testimony in support of his and his brother's claim.   In response, Hector argued (1) Printone's statute of limitations argument should have been asserted in a motion for summary judgment;  (2) even if the statute of limitations argument was the proper subject of a motion to strike a plea in intervention, it was a disputed issue that should be resolved at trial;  and (3) Printone's allegation that Hector suborned perjury is irrelevant and untrue.   The trial court granted Printone's motion to strike Hector's intervention.

Rule 60 of the Texas Rules of Civil Procedure provides:  “Any party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party.”  Tex.R.Civ.P. 60.   The party who opposes the intervention has the burden to challenge it by a motion to strike.  Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.1990);  Tony's Tortilla Factory, Inc. v. First Bank, 857 S.W.2d 580, 589 (Tex.App.—Houston [1st Dist.] 1993), aff'd in part and rev'd on other grounds, 877 S.W.2d 285 (Tex.1994).

The trial court has broad discretion to determine whether to strike an intervention.  Id.  We review the trial court's exercise of its discretion for abuse of discretion.  Id.  It is an abuse of discretion to strike a plea in intervention if (1) the intervenor could have brought the same action, or any part thereof, in his own right;  (2) the intervention will not complicate the case by an excessive multiplication of the issues;  and (3) the intervention is almost essential to effectively protect the intervenor's interest.  Id.

Hector meets the first and second requirements.   Hector, Edward's brother, was hired by Printone to work as a salesperson in Austin, San Antonio, and the Rio Grande Valley.   Edward alleged the same facts and circumstances surrounding Edward's slander claim.   Hector also sought the same relief as Edward.   Under rule 60, Hector had the right to intervene because he could have brought in his own name the same slander action against Printone brought by Edward.   Because Hector asserted most of the same causes of action, 3 made the same factual allegations regarding slander, and sought the same relief as Edward, the intervention would not have complicated the case by an excessive multiplication of the issues.

As to the third requirement, Printone argues Hector's intervention was not necessary to protect his interests, but rather was an attempt to avoid the consequences of having allowed the statute of limitations to have run on his slander claim.4  Hector argues Printone's limitations argument goes to the merits of the case.   Hector relies on Inter–Continental Corp. v. Moody, 411 S.W.2d 578, 589 (Tex.Civ.App.—Houston [1st Dist.] 1966, writ ref'd n.r.e.), for the proposition that the merits of a claim of an intervenor should be decided by a motion for summary judgment, rather than by a motion to strike an intervention.   In Moody, the opponent of the intervention argued the intervenor was not acting for himself but as an agent for the corporation.   Id. at 587.   In dismissing the plea, the trial court found that the intervenor did not intervene on behalf of himself but intervened on behalf of the corporation.  Id. at 588–89.   We held that the intervention should not be stricken because it was essential to effectively protect his interests.   That is, the intervenor asserted a cause of action in a suit pending between parties who were required to be joined if the intervenor initiated suit.   Id. at 589.   We further held that there should be a “hearing on the merits, under appropriate pleadings, which could, ․ encompass a decision of the intervenor's rights by way way of a motion for summary judgment.”   We noted that under the facts shown, no such agency was established and that we did not know what a fuller development of the facts would show.  Id. at 590.

In a later decision, we stated that in the absence of proof and findings supporting limitations in the trial court, and any ruling of the trial court on limitations, we could not determine that the statute of limitations prevented the cause of action asserted by the intervenors.  Tony's Tortilla Factory, 857 S.W.2d at 590.   In Tony's Tortilla Factory, the opponent of the plea in intervention affirmatively pleaded the statute of limitations, but did not assert such a bar in his motion to strike the intervention.  Id. at 590 n. 5.   Instead, he argued for the first time on appeal that any error in striking the intervention was harmless due to limitations.  Id. at 590.   We refused to pass on evidence originally and render judgment on the basis of such evidence.  Id. at 590–91.

In this case, Printone affirmatively pleaded the statute of limitations in its amended answer.   Further, unlike the opponent of the plea in Tony's Tortilla Factory, Printone alluded to and attached evidence to its motion to strike Hector's intervention.   That is, Printone included excerpts from Dena and Munoz's depositions.   Printone argues these deposition excerpts show Hector knew about the defamatory statements before February 1992, the date of the depositions.   Munoz testified that Hector had come into the shop where she worked and had asked her about what Printone had said about him and Edward.   Dena testified he had told Hector and Edward about the defamatory telephone conversation with Printone.   It is clear from their testimony that Hector knew or should have known of the defamatory statements on or before their deposition testimony was given in February 1992.

In his response to Printone's motion to strike, Hector relied on his answer to Printone's interrogatory in which he claimed he only learned of the defamatory statement in late 1993.   Answers to interrogatories may be used only against the party answering the interrogatories.  Tex.R.Civ.P. 168;  Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85, 95 (Tex.App.—Dallas 1996, writ denied) (supp. op. on reh'g).   That is, the answering party cannot use the answers to the interrogatories as evidence in discharging its burden of proof or in creating issues of fact.  Hanssen, 938 S.W.2d at 95.   Hence, Hector cannot rely on his self-serving answer to establish that he only discovered the slanderous statement about him in late 1993 or to establish a fact issue on when he discovered that statement.

Under the facts shown, the statute of limitations had run on Hector's claim when he attempted to intervene in June 1994.   We conclude Hector's intervention was not necessary to protect his interests, and, hence, the trial court did not abuse its discretion in striking Hector's plea in intervention.   Accordingly, we overrule point of error three.

We affirm the judgment of the trial court.

FOOTNOTES

1.   Because this case was tried to the bench, Printone's motion for directed verdict is more properly termed a “motion for judgment.”   Grounds v. Tolar Indep. Sch. Dist., 856 S.W.2d 417, 422 n. 4 (Tex.1993) (Gonzalez, J., concurring);  Schwartz v. Pinnacle Communications, 944 S.W.2d 427, 431 n. 1 (Tex.App.—Houston [14th Dist.] 1997, no writ).

2.   Printone objected to Edward's response on the ground that it was not filed at least 30 days before the hearing on the motion to transfer venue as required by tex.R.Civ.P. 87(1);  instead, it was filed two days before the hearing without leave of the trial court.   There is no evidence in the record of a ruling on this objection.   Further, Printone cannot complain about Edward's untimeliness when it did not specifically deny that Edward resided in Bexar County at the time of the slanderous statements until almost a week before the venue hearing.   Accordingly, we will consider Edward's response to Printone's supplemental motion to transfer venue.

3.   Hector did not intervene in Edward's breach of contract cause of action.

4.   The statute of limitations for slander is one year.  Tex. Civ.Prac. & Rem.Code Ann. § 16.002(a) (Vernon 1986);  Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 394 (Tex.App.—Houston [1st Dist.] 1993, writ dism'd w.o.j.).   A cause of action for slander accrues when the injured party learned of, or in the exercise of reasonable diligence should have learned of, the defamatory communication.   Gardiner, 859 S.W.2d at 394.

SCHNEIDER, Chief Justice.