NUMBER 13-02-659-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
GILBERT WEISBERG AND SUSY WEISBERG, Appellants,
v.
NORA LONDON, Appellee.
On appeal from the 404th Judicial District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Hinojosa and Castillo
Memorandum Opinion by Justice Castillo
This is a case alleging intentional infliction of emotional distress and defamation. Appellants Gilbert and Susy Weisberg (the "Weisbergs") challenge the trial court's summary judgment in favor of Nora London ("London"). We affirm.
I. JURISDICTION
On December 4, 2001, the Weisbergs sued London for intentional infliction of emotional distress. They alleged that they resigned as members of Temple Emanuel in McAllen, Texas in May of 2001 because of philosophical differences regarding the treatment of less fortunate members of their community. They applied for membership at Temple Beth El in Brownsville, Texas. London, as treasurer of Temple Emanuel, informed Temple Beth El, in response to its inquiry, that the Weisbergs were not in good standing with Temple Emanuel when they resigned.
The Weisbergs claimed that the statement was false, asserting that they had paid all current Temple dues and assessments before they resigned. They asked London to retract the statement. She refused. The Weisbergs alleged Temple Beth El initially refused them membership based on the information provided by London. The Weisbergs claimed that London's false statement caused them extreme emotional distress.
On May 17, 2002, the Weisbergs filed their first amended petition, alleging substantially the same facts and adding a defamation cause of action. London filed a traditional motion for summary judgment on both the intentional-infliction and defamation claims on July 2, 2002. On July 8, 2002, the trial court set the hearing on the motion for summary judgment for August 8, 2002. On August 5, 2002, the Weisbergs responded to the motion for summary judgment. They filed a second amended petition the same day. In addition to the intentional-infliction and defamation causes of action, the second amended petition added a claim for declaratory relief and attorney fees.
The trial court held a hearing on London's summary-judgment motion on August 8, 2002. On August 9, 2004, both the Weisbergs and London filed post-hearing letters and additional summary-judgment affidavits. The trial court signed an "Order Granting Defendant's Motion for Summary Judgment" on August 20, 2002 (the "Order").
Our initial inquiry is always whether we have jurisdiction over an appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 779 (Tex. App.–Corpus Christi 2003, no pet.). We are obligated to determine, sua sponte, our own jurisdiction. N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam); Garcia, 101 S.W.3d at 779. Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Garcia, 101 S.W.3d at 784. Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order. Steeple Oil & Gas Corp. v. Amend, 394 S.W.2d 789, 790 (Tex. 1965) (per curiam); see Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2004). If the record does not affirmatively demonstrate our jurisdiction, we must dismiss the appeal. Garcia, 101 S.W.3d at 786.
An order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and parties. Lehmann, 39 S.W.3d at 205. In this case, after reviewing the Order and the record, we were uncertain about the trial court's intent in signing the summary-judgment order. Concluding that clarification did not require more than the determination of perfunctory issues that could be cured by a modified order, this Court abated the appeal. See Garcia, 101 S.W.3d at 785 (citing Lehmann, 39 S.W.3d at 196). Pursuant to rule 34.5(c)(1), we requested supplementation of the record to include (1) an order that clarified the trial court's intent with regard to finality and identified what summary-judgment materials the trial court considered in granting summary judgment, and (2) all proceedings relating to the modification of the order. See Tex. R. App. P. 27.2, 34.5(c)(1).
After remand, the trial court supplemented the record with a clarified order, including the following findings:
(a)The Second Amended Original Petition was not timely filed, no request for leave to file [it] was made or granted, and it was not considered;
(b)The Court did consider [Plaintiffs] Response to Defendant's motion for Summary Judgment and the exhibits attached to it; and
(c)The affidavit of Rabbi Cohen was not considered;
(d)The Court did consider the remaining affidavits and exhibits submitted by [Plaintiffs] August 8, 2002, letter brief to the Court and by Defendant's August 9, 2002, letter brief to the Court; and
(e)The Order signed August 20, 2002, was intended to dispose of all claims between all parties and was intended to be a final and appealable judgment.
We review the summary judgment accordingly.
II. FACTUAL BACKGROUND
Under the bylaws of Temple Emanuel, its members paid both regular dues and special assessments. It is undisputed that the Weisbergs paid the entirety of their dues for the fiscal year 2000 - 2001. At issue in this case, however is a special assessment that the Temple's congregation approved at a meeting on March 21, 2001. The Weisbergs attended this meeting but left before the special assessment was voted on and passed by the Temple's membership. The Weisbergs received a letter dated April 1, 2001 from the Temple budget committee stating that the assessment was due by June 30, 2001. On May 1, 2001, the Weisbergs resigned from Temple Emanuel without paying the special assessment. According to the Temple bylaws, "Resignation of any member shall not relieve him from the payment of any obligation due the congregation at the time of resignation."
In July 2001, the Weisbergs met with London and board member Larry Safir, who attempted to convince the Weisbergs to return to Temple Emanuel. Mr. Weisberg told London he would think about returning and would let her know his decision at a later time. In August, Mr. Weisberg told London the Weisbergs would not return. That same month, the Weisbergs submitted an application for membership to Temple Beth El.
Temple Beth El has a policy or practice of determining whether applicants left their former places of worship in "good standing," which refers to the applicants' financial standing. Gay Greenspan, the administrator of Temple Beth El, testified by affidavit she had made numerous inquiries regarding applicants' standing at their former places of worship throughout the United States. She also had responded to many requests for similar information from Temple Beth El.
On receipt of the Weisbergs' application for membership in Temple Beth El, Greenspan called Temple Emanuel and asked to speak to the treasurer. She was referred to London. Greenspan asked London if the Weisbergs were in good standing with Temple Emanuel. London told her that they were not in good standing. They had neither paid the assessment nor had they made alternative payment arrangements with the Temple's board. According to London's affidavit, the Temple Emanuel's board authorize the waiver of payments or specialized payment plans. If the Weisbergs had requested, they could have made other arrangements. However, the Weisbergs did not do so. Therefore, they were not members in good standing.
Meanwhile, Temple Beth El informed the Weisbergs of the difficulty with their application. The Weisbergs asked for another meeting with London and Safir. Mr. Weisberg and his daughter, Monica, met with London and Safir on September 10, 2001. They asked London to retract her statement. London told them she could not retract her statement without board approval. Monica asked that London call an emergency board meeting. London told her that Temple bylaws did not authorize her to call an emergency meeting. However, London explained, the regular board meeting was set the following week.
That same day, pursuant to Greenspan's request for written confirmation that the Weisbergs were not in good standing, London sent Greenspan a fax stating that a special assessment had been issued in March 2001 that the Weisbergs had not paid. The letter further described the Weisberg's viewpoint that they did not owe it because they resigned their membership with the Temple before the due date of the assessment of June 30, 2001.
Temple Beth El's board met on September 12, 2001. Meanwhile, the High Holy Days of the Jewish religious calendar, the most significant holidays of the Jewish religion, approached. Non-members and members who are not in good financial standing may not attend High Holy Day services. No longer members of Temple Emanuel, the Weisbergs could not attend services there. Their application for membership in Temple Beth El had not yet been approved because of the report from London they were not in good standing at Temple Emanuel. However, Temple Beth El's custom permitted the Weisbergs to pay to attend the High Holy Day services as visitors. The Weisbergs asked that they be allowed to do so, with their payment to be credited toward their dues if they were ultimately accepted as members of the Temple. Temple Beth El's board agreed. The Weisbergs attended High Holy Days at Temple Beth El. However, they did not feel comfortable or welcomed.
Temple Beth El requested additional information regarding the Weisbergs from Temple Emanuel's board. Martin Morris, Temple Emanuel's secretary, responded with a letter stating that the Weisbergs had paid their dues for fiscal year 2000 - 2001 in full. He explained the history of the additional assessment. The letter specifically stated that the assessment occurred in March of 2001 with a due date for payment at the end of June of 2001. The letter explained that the Weisbergs submitted their resignation on May 1, 2001. The letter concluded: "Under the current circumstance, the Board of Directors of Temple Emanuel requests that Temple Beth El not apply any reciprocal understanding between the Temples which would deny the Weisbergs the right to membership in Temple Beth El." However, the board of Temple Emanuel also determined that the Weisbergs would be required to pay the special assessment if they were to reapply for membership with Temple Emanuel. In November 2001, Temple Beth El accepted the Weisbergs as members.
Kenny Fox, president of Temple Emanuel, testified that London, as Temple treasurer, was the custodian of all financial documents and information concerning the Temple congregation. She was responsible for maintaining an accurate record of all receipts and disbursements, including but not limited to payment of dues and assessments. She was the person with the most knowledge of each member's financial status and standing. She had the duty and official authority to determine a member's financial standing and, if necessary, to inform another temple about a member's financial standing in response to the other temple's inquiry. Fox testified that London had the authority to determine the Weisbergs' financial standing with Temple Emanuel at the time they resigned.
According to Greenspan and Harry Holzman, president of Beth El, London was doing her job when she responded to the inquiry regarding the Weisbergs. Holzman denied that Temple Emanuel had a "reciprocal understanding" with Temple Beth El regarding the admission of only members who left their former places of worship in good standing. Rather, Holzman testified, "We will not accept anybody that has left any other location, temple, synagogue, that is not in good standing. . . . That left not in good standing . . . not necessarily just McAllen."
Holzman testified that if a member of Temple Beth El were to resign from membership while still owing an assessment, the member would not be considered to be in good standing on resignation. Holzman testified that the special assessment was due when it had been voted on and approved by the Temple membership, even if the final delinquent due date had not arrived. Holzman and Greenspan both testified that the Weisbergs owed the assessment to Temple Emanuel. Accordingly, the Weisbergs did not leave Temple Emanuel in good standing.
In their summary-judgment affidavits, the Weisbergs testified that the phrase "not in good standing" was a code phrase for "deadbeat." They believed that London's actions were malicious, vicious, and vindictive. They believed that London purposely gave false information to Temple Beth El to tarnish their good names and prevent their attendance at Temple during High Holy Days. In their faith, the only thing a person has is one's good name. London's actions affected their ability to worship and could potentially adversely affect their mercantile business. They consistently met their financial obligations in general and particularly with regard to the Temple.
The Weisbergs believed that London's actions were motivated by dislike of their daughter, Monica, because of Monica's viewpoints regarding the Temple's former rabbi and the Temple's administration. They believed that London did not have the authority to determine their standing without authorization from the board.
In contrast, London thought she had a good relationship with the Weisbergs, but not as good a relationship with their daughter. They had different viewpoints on certain issues, including disagreements regarding the Temple's previous rabbi and certain financial aspects of the Temple. Nevertheless, London testified Monica and she had a cordial relationship. London never spoke with Monica about her viewpoints.
III. SUMMARY-JUDGMENT ANALYSIS
A. Standard of Review
The function of summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial. Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App.–Corpus Christi 2003, no pet.). We review the evidence "in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences." See KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.–Corpus Christi 2003, no pet.). The movant bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law. Alaniz, 105 S.W.3d at 345. We affirm a trial court's ruling on a summary-judgment motion if any of the theories advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Boren v. Bullen, 972 S.W.2d 863, 865 (Tex. App.–Corpus Christi 1998, no pet.). We review a summary judgment de novo to determine whether a party established its right to prevail as a matter of law. Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.–Corpus Christi 2003, no pet.).
The non-movant has the burden to respond to a traditional summary-judgment motion if the movant conclusively: (1) establishes each element of its cause of action or defense; or (2) negates at least one element of the non-movant's cause of action or defense. Alaniz, 105 S.W.3d at 345. Thus, summary judgment for a defendant is proper if the defendant disproves at least one element of each of the plaintiff's claims or affirmatively establishes each element of an affirmative defense to each claim. Id. The trial court did not specify the ground or grounds on which it granted the motion for summary judgment. Accordingly, we will uphold the summary judgment if any of the grounds raised in the summary-judgment motion has merit. Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999); Alaniz, 105 S.W.3d at 344.
B. London's Summary-Judgment Grounds
London moved for a traditional summary judgment on the grounds that London could not be held personally liable for her actions because she was acting in her corporate capacity as treasurer for Temple Emanuel. London's motion for summary judgment also attacked the Weisbergs' defamation claim on the grounds that her statement was substantially true, protected by a qualified privilege, or was an expression of opinion. London further argued that the Weisbergs could not prevail on their claims for intentional infliction of emotional distress because her conduct was not extreme and outrageous, and the Weisbergs had not shown severe emotional distress. C. The Weisbergs' Issues on Appeal
1. Sufficiency of the Motion and Pleadings
In their first three issues, the Weisbergs attack the sufficiency of London's motion for summary judgment and the pleadings underlying the motion. In issue one, the Weisbergs contend that London's motion is fatally deficient in that it fails to specify what evidence supports it or how the evidence supports its contentions. We agree that general reference to a voluminous record that does not direct the court or the parties to the evidence on which the movant relies is not sufficient. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989); Upchurch v. Alviar, 5 S.W.3d 274, 285 (Tex. App.–Amarillo 1999, pet. denied). Nonmovants are entitled to "fair notice" of summary-judgment movants' contentions. Upchurch, 5 S.W.3d at 285; Pettite v. SCI Corp., 893 S.W.2d 746, 747 (Tex. App.–Houston [1st Dist.] 1995, no writ); Dear v. City of Irving, 902 S.W.2d 731, 734 (Tex. App.–Austin 1995, writ denied). Here, however, London's motion for summary judgment identified and incorporated five attached exhibits, including an affidavit and excerpts from four depositions. The motion included specific citations to the exhibits, including references to the deposition excerpts by page and line. We conclude that London's motion for summary judgment adequately directed the court and the Weisbergs to the evidence made the basis of the motion. We overrule the Weisbergs' first issue.
The Weisbergs' complaint in their second issue centers on London's request that the trial court take judicial notice of its file. The Weisbergs argue that a trial court may not take judicial notice in a summary-judgment proceeding. However, the only requirement for summary-judgment proof is that it be "on file at the time of the hearing, or filed thereafter and before judgment with permission of the court." Tex. R. Civ. P. 166a(c). When considering a summary-judgment motion, the trial court may judicially notice documents that are part of its record in the case at issue, since they are already on file and available for the court's consideration. See Jones v. Jones, 888 S.W.2d 849, 852-53 (Tex. App.–Houston [1st Dist.] 1994, writ denied) (citing McCurry v. Aetna Cas. & Sur. Co., 742 S.W.2d 863, 867-68 (Tex. App.–Corpus Christi 1987, writ denied)); see also Mowbray v. Avery, 76 S.W.3d 663, 689 (Tex. App.–Corpus Christi 2002, pet. denied) (requiring documents in court's file to be in form acceptable for summary-judgment proceedings). We reject the Weisbergs' premise. Moreover, we note that the Weisbergs have not specifically identified any documents in the court's file that would be inappropriate for judicial notice. Accordingly, we overrule the Weisbergs' second issue.
In their third issue, the Weisbergs contend London did not plead the affirmative defenses of truth, substantial truth, or privilege in response to the Weisbergs' defamation claim. A properly pleaded affirmative defense, supported by uncontroverted summary-judgment evidence, may serve as the basis for a summary judgment. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991). An unpleaded affirmative defense may also serve as the basis for a summary judgment when it is raised in the summary-judgment motion, but the opposing party does not object in either its written response or before the rendition of judgment. See id.
2. Waiver
The record confirms that London failed to plead truth as an affirmative defense. The Weisbergs objected. Accordingly, we sustain the Weisbergs' third issue with regard to London's summary-judgment ground of truth as an affirmative defense. However, the Weisbergs did not object that London had not pleaded privilege. We hold that the Weisbergs waived any complaint on appeal that London's summary-judgment ground of privilege is not supported by her pleadings. See id. Accordingly, we overrule the Weisberg's third issue with regard to London's summary-judgment ground of privilege as an affirmative defense.
D. Deficiency of Order Granting Summary Judgment
In their sixth issue, the Weisbergs contend that the trial court should have specified the grounds on which it granted summary judgment. They argue that the trial court's failure to do so "raises constitutional concerns." However, it is well-settled that the trial court need not identify the ground it relied on in granting summary judgment. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). Accordingly, we overrule the Weisbergs' sixth issue.
E. Defamation
The Weisbergs' fourth and fifth issues generally assert that fact issues preclude summary judgment. Issues nine through fourteen attack the propriety of summary judgment on their claim for defamation.
Texas law recognizes two types of defamation: libel and slander. Alaniz, 105 S.W.3d at 345. Libel is a defamation expressed in written or other graphic form that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt, ridicule, or financial injury, or to impeach any person's honesty, integrity, virtue, or reputation. See Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 1997); see Alaniz, 105 S.W.3d at 345. Slander is a defamatory statement that is orally communicated or published to a third person without legal excuse. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995); Alaniz, 105 S.W.3d at 345.
1. Elements of Defamation
For a private individual to prevail on a defamation claim, the plaintiff must prove that the defendant: (1) published a statement (2) that was defamatory about the plaintiff (3) while acting with negligence regarding the truth of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Entravision Communications Corp. v. Belalcazar, 99 S.W.3d 393, 398-99 (Tex. App.–Corpus Christi 2003, pet. denied). The threshold issue of whether the words used are capable of a defamatory meaning is a question of law for the court. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000); Columbia Valley Reg'l Med. Ctr. v. Bannert, 112 S.W.3d 193, 198 (Tex. App.–Corpus Christi 2003, no pet.). We construe the statement as a whole in light of surrounding circumstances based on how a person of ordinary intelligence would perceive the entire statement. Turner, 38 S.W.3d at 114; Musser v. Smith Prot. Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987).
2. Privilege
Slanderous statements are subject to a conditional or qualified privileged. TRT Dev. Co.-KC v. Meyers, 15 S.W.3d 281, 286 (Tex. App.–Corpus Christi 2000, no pet.) (quoting Rogers v. Cassidy, 946 S.W.2d 439, 447 (Tex. App.–Corpus Christi 1997, no writ)); Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85, 92 (Tex. App.–Dallas 1996, writ denied); Lomas Bank USA v. Flatow, 880 S.W.2d 52, 54 (Tex. App.–San Antonio 1994, writ denied); Assoc. Tel. Directory Publishers, Inc. v. Better Bus. Bureau of Austin, Inc., 710 S.W.2d 190, 192 (Tex. App.–Corpus Christi 1986, writ ref'd n.r.e.). Conditionally or qualifiedly privileged statements, even though slanderous, are not actionable when made in good faith on a subject matter in which the author has an interest or a duty to another person having a corresponding interest or duty. TRT Dev. Co.-KC, 15 S.W.3d at 286. A privilege attaches to statements that occur under circumstances where "any one of several persons having a common interest in a particular subject matter may reasonably believe that facts exist that another, sharing that common interest, is entitled to know." See Hanssen, 938 S.W.2d at 92.
A conditional or qualified privilege arises out of the circumstances in which the allegedly false statement is published in a lawful manner for a lawful purpose. Hearst Corp. v. Skeen, 130 S.W.3d 910, 926 (Tex. App.–Fort Worth 2004, pet. filed). An interest giving rise to a qualified privilege may be that of the publisher of the communication, the recipient of the communication, or a third person. TRT Dev. Co.-KC, 15 S.W.3d at 286; Pioneer Concrete of Tex., Inc. v. Allen, 858 S.W.2d 47, 50 (Tex. App–Houston [14th Dist.] 1993, writ denied); Kaplan v. Goodfried, 497 S.W.2d 101, 105 (Tex. Civ. App.–Dallas 1973, no writ).
Privilege is an affirmative defense. Denton Pub'g Co. v. Boyd, 460 S.W.2d 881, 884 (Tex. 1970); TRT Dev. Co.-KC, 15 S.W.3d at 286. London has the burden of proving that the communication is privileged. Boyd, 460 S.W.2d at 884; TRT Dev. Co.-KC, 15 S.W.3d at 286. When the facts are undisputed and the language used in the publication is not ambiguous, the question of privilege is ordinarily one of law for the court. TRT Dev. Co.-KC, 15 S.W.3d at 286; see Dixon v. Southwestern Bell Tel. Co., 607 S.W.2d 240, 241 (Tex. 1980).
The Weisbergs dispute that any privilege applies. They cite Holzman's testimony, in which he specifically denied the existence of a reciprocal agreement between the two Temples. The record shows that Holzman testified, "We don't have an understanding – a reciprocal understanding." However, Holzman further clarified that "We will not accept anybody that has left any other location, temple, synagogue, that is not in good standing. . . . That left not in good standing . . . not necessarily just McAllen." Considering the entirety of Holzman's testimony, along with that of Greenspan, London, and Fox, it is clear that various temples share in a common practice to ascertain whether or not applicants are in good standing with their former temples. London, who had a duty to ascertain the Weisbergs' standing, reasonably believed she had a duty to report the information to Greenspan. Greenspan and the members of Temple Beth El's board who received the information had an interest in the information as it related to the Weisbergs' application for membership. See Hanssen, 938 S.W.2d at 92-93. Assuming without deciding that the communications and actions at issue are defamatory, we hold they were subject to a qualified privilege. See id.
3. Malice
The Weisbergs next argue that any privilege was defeated by malice. A conditional or qualified privilege is defeated when the privilege is abused, such as when the person making the defamatory statement knows the statement is false or acts for some purpose other than protecting the privileged interest. Hearst Corp., 130 S.W.3d at 926. The speaker abuses the privilege by making the statement with actual malice. TRT Dev. Co.-KC, 15 S.W.3d at 286; Grant v. Stop-N-Go Mkt. of Tex., Inc., 994 S.W.2d 867, 874 (Tex. App.–Houston [1st Dist.] 1999, no writ). The defendant communicates defamatory words with actual malice when the defendant knows the words are false or recklessly disregards whether the words are false or not. Randall's Food Mkts., 891 S.W.2d at 646; Alaniz, 105 S.W.3d at 346. "Reckless disregard" is defined as a "high degree of awareness of probable falsity, for proof of which the plaintiff must present sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts about the truth of [the] publication." Carr v. Brasher, 776 S.W.2d 567, 571 (Tex. 1989); TRT Dev. Co.-KC, 15 S.W.3d at 286.
Actual malice is a term of art distinct from traditional common-law malice. Hagler, 884 S.W.2d at 771; Alaniz, 105 S.W.3d at 346; Wal-Mart Stores, Inc. v. Lane, 31 S.W.3d 282, 291 (Tex. App.–Corpus Christi 2000, pet. denied). Actual malice does not include ill will, spite, or evil motive. Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771, 771 (Tex. 1994) (per curiam); Alaniz, 105 S.W.3d at 346; Lane, 31 S.W.3d at 291.
In a defamation case, 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. Alaniz, 105 S.W.3d at 347. Accordingly, the failure to investigate or verify information, without more, cannot establish actual malice. Id.; Freedom Communications, Inc. v. Brand, 907 S.W.2d 614, 622 (Tex. App.–Corpus Christi 1995, no writ).
The law presumes good faith and want of malice where a party has a qualified privilege. Ching v. Methodist Children's Hosp., 134 S.W.3d 235, 242 (Tex. App.–Amarillo 2003, pet. denied); Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 630 (Tex. App.–Houston [1st Dist.] 1984, writ ref'd n.r.e.). Here, London testified to her belief regarding the truth of her statements. Greenspan's and Holzman's testimony supported her belief in the veracity of her statement. The Weisbergs and their daughter presented testimony they believed London's actions to be motivated by spite and ill will. However, none of the evidence suggests London entertained serious doubts as to the truth of her statements or made the statements with a high degree of awareness of their probable falsity. We have examined the summary-judgment record and find no other controverting proof on the question of actual malice.
The Weisbergs brought a common-law defamation claim against London in a civil court, which we have resolved by applying secular law. We do not review the ecclesiastical judicial process or determine the efficacy of the parties' religious beliefs and practices. See Tilton v. Marshall, 925 S.W.2d 672, 678 (Tex. 1996) (orig. proceeding) ("To avoid conducting 'heresy trials,' courts may not adjudicate the truth or falsity of religious doctrines or beliefs."). We conclude that the Weisbergs did not overcome the presumption of good faith and want of malice that attached to London's qualifiedly privileged statements. See Marathon Oil Co., 682 S.W.2d at 630. Accordingly, we hold that London conclusively established her affirmative defense of qualified privilege. See Alaniz, 105 S.W.3d at 345. Consequently, the trial court properly granted London's summary judgment on the Weisbergs' claim of defamation. See id. We overrule the Weisbergs' fourth, fifth, eleventh, twelfth, thirteenth, and fourteenth issues.
F. Intentional Infliction of Emotional Distress
The Weisbergs' fifteenth, sixteenth, and seventeenth issues attack the trial court's summary judgment on their cause of action for intentional infliction of emotional distress. In 1993, the Texas Supreme Court recognized the independent tort of intentional infliction of emotional distress, adopting the elements of section 46 of the restatement. Tiller v. McClure, 121 S.W.3d 709, 713 (Tex. 2003) (per curiam) (citing Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993)); see Restatement (Second) of Torts § 46 (1965). To recover under section 46, a plaintiff must prove: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. See Tiller, 121 S.W.3d at 713. We examine the summary-judgment evidence under the formulation applied to the claim of intentional infliction of emotional distress by the Texas Supreme Court in Tiller. See id. We decline the Weisbergs' invitation to apply a different standard in non-employment cases. We overrule the Weisbergs' fifteenth issue.
London argues that her conduct was not extreme and outrageous and that the Weisbergs have not shown that they suffered severe emotional distress. Extreme and outrageous conduct is conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Twyman, 855 S.W.2d at 621 (quoting Restatement (Second) of Torts § 46 cmt. D (1965)); see Tiller, 121 S.W.3d at 713; see also Larson v. Family Violence & Sexual Assault Prevention Ctr., 64 S.W.3d 506, 515 (Tex. App.–Corpus Christi 2001, pet. denied). The fact that a defendant's conduct is tortious or otherwise wrongful does not render it extreme and outrageous. Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001).
It is for the court to determine, in the first instance, whether a defendant's conduct was extreme and outrageous. Tiller, 121 S.W.3d at 713; Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993); Larson, 64 S.W.3d at 515. When reasonable minds may differ, it is for the jury, subject to the court's control, to determine whether, in the particular case, the conduct was sufficiently extreme and outrageous to result in liability. Tiller, 121 S.W.3d at 713. In determining whether conduct is extreme and outrageous, courts often consider the defendant's course of conduct, the context of the parties' relationship, whether the defendant knew the plaintiff was particularly susceptible to emotional distress, and the defendant's motive or intent. See, e.g., GTE S.W., Inc. v. Bruce, 998 S.W.2d 605, 615 (Tex. 1999); Fields v. Teamsters Local Union No. 988, 23 S.W.3d 517, 530-32 (Tex. App.–Houston [1st Dist.] 2000, pet. denied).
Here, London verbally informed Greenspan that the Weisbergs were not in "good standing" and confirmed the information by letter. Fox testified London had the duty and official authority to determine a member's financial standing and provide the information to another temple in response to an inquiry. London responded to Greenspan's request both verbally and in writing. The communications were within the scope of London's duties with the Temple. Both Greenspan and Holzman testified it was customary to verify applicants' standing with their prior places of worship when reviewing applications. Greenspan and Holzman agreed that London's responses to Greenspan were normal and customary and that London was performing her duties as treasurer of Temple Emanuel.
Based on the summary-judgment evidence, we conclude that reasonable minds cannot differ about whether London's actions were "atrocious, and utterly intolerable in a civilized community." See id. Thus, we hold that London disproved at least one element of the Weisbergs' cause of action for intentional infliction of emotional distress. See Alaniz, 105 S.W.3d at 345. Consequently, the trial court properly granted London's summary judgment on the Weisbergs' claim of intentional infliction of emotional distress. See id. We overrule the Weisbergs' fifteenth, sixteenth, and seventeenth issues.
V. CONCLUSION
We need not address the Weisberg's seventh, eighth, ninth, and tenth issues, as they are unnecessary to final disposition of this appeal. See Tex. R. App. P. 47.1. We do not address the Weisbergs' eighteenth issue, as it is moot. We affirm the summary judgment.
ERRLINDA CASTILLO
Justice
Memorandum Opinion delivered and
filed this 31st day of August, 2004.