UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-21076
DOROTHY DIANE PLUMLEY, FRIEND OF GEORGE W. PLUMLEY, DECEASED,
Plaintiff-Appellant,
VERSUS
LANDMARK CHEVROLET INC.; DONALD HAMILTON,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
September 24, 1997
Before KING, DUHÉ, and WIENER, Circuit Judges.
JOHN M. DUHÉ, JR., Circuit Judge:
George Plumley (“Plumley”) sued Landmark Chevrolet, Inc.
(“Landmark”) and Donald Hamilton (“Hamilton”), a Landmark salesman,
alleging slander, intentional infliction of emotional distress, and
violations of both the Texas Deceptive Trade Practices Act (“DTPA”)
and the Americans with Disabilities Act (“ADA”) based upon
statements Hamilton made. Plumley died before the suit was
resolved. His wife, Dorothy (“Appellant”), was substituted as
plaintiff. Landmark and Hamilton moved for summary judgment. The
magistrate judge, to whom the case was referred, recommended
summary judgment be granted on the slander and intentional
infliction of emotional distress claims only. Both parties
contested the magistrate judge’s recommendation. The district
court then granted summary judgment on all claims and alternately
found that Appellant failed to state a claim under Fed. R. Civ. P.
12(b)(6). Appellant appeals.
Appellant requests that the district court be reversed for
ruling that: 1) under Texas law, causes of action for slander,
intentional infliction of emotional distress, and the DTPA do not
survive Plumley’s death; 2) Plumley was not a consumer as defined
by the DTPA; 3) a claim under the ADA does not survive Plumley’s
death; 4) Plaintiff failed to state a cause of action under Rule
12(b)(6) of the Federal Rules of Civil Procedure. We affirm in
part and reverse and remand in part.
I. BACKGROUND
George Plumley and his son, Wesley, entered into an agreement
with Landmark Chevrolet to buy a used pickup truck. Pursuant to
the agreement, the truck was to be purchased and registered in
Wesley’s name; however, Plumley was to provide $500 of the purchase
price and to co-sign Wesley’s note. A few days later, Landmark
asked Plumley to return to the dealership to discuss alternate
financing. On this visit, Plumley brought his son, daughter-in-
law, and her daughter with him.
Plumley submitted to Hamilton a long term disability form
which revealed that Plumley had AIDS. Upon learning that Plumley
had AIDS, Hamilton allegedly became abusive and repudiated the
pending contract stating “[w]e just don’t want your business”.
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Hamilton also allegedly asked Wesley if he had a “f---ing problem”
and called Plumley a “f---ing faggot”. Both of these comments were
made in the presence of Plumley’s daughter-in-law and her young
daughter. Wesley Plumley purchased a truck elsewhere.
II. ANALYSIS
A. STANDARD OF REVIEW
This Court reviews a grant of summary judgment de novo.
Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 758
(5th Cir. 1996). Dismissal of a complaint under Rule 12(b)(6) is
also reviewed de novo. Kramer v. Smith Barney, 80 F.3d 1080, 1084
(5th Cir. 1996).
B. THE SLANDER CLAIM
The district court erroneously held that the slander cause of
action did not survive Plumley’s death. See TEX. CIV. PRAC. & REM.
CODE ANN. § 71.021 (West 1986) (stating that a cause of action for
personal injury to reputation “survives to and in favor of the
heirs, legal representatives, and estate of the injured person”);
see also Channel 4, KGBT v. Briggs, 759 S.W.2d 939, 940 n.1 (Tex.
1988) (noting that plaintiff’s defamation claim survived his
death).
Landmark argues that even if the district court erred as to
survivability, it was correct in granting summary judgment because
there was no publication of the slanderous comment and no proof of
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special damages. Because all words are not actionable, a plaintiff
must prove either special damages (slander per quod) or that the
words impute the commission of a crime, injure the plaintiff
officially, professionally, or occupationally, or impute unchastity
to a woman (slander per se). Gulf Const. Co. v. Mott (Civ. App.
1969) 442 S.W.2d 778. Here, Landmark argues that Hamilton’s
comment was not slander per se because the only crime imputed is
sodomy which in Texas is a misdemeanor punishable by fine only.
We disagree. Head v. Newton, 596 S.W.2d 209, 210 (Tex. Civ. App.--
Houston [14th Dist.] 1980, no writ), holds that calling someone
“queer” is slander per se even though sodomy is a misdemeanor no
longer punishable by imprisonment. Thus, when Hamilton called
Plumley a “faggot”, Hamilton imputed the crime of sodomy to
Plumley. Therefore, the alleged remark is slander per se and
Plumley does not have to prove special damages.
Landmark further argues that a third party must believe the
defamatory statement for the statement to be published. Landmark
contends that the statement is not published here because the
daughter-in-law did not believe the comment and her daughter was
too young to understand it. Again, we disagree.
Texas law states that actionable slander requires oral
communication or publication without legal excuse. Glenn v. Gidel,
496 S.W.2d 692, 697 (Tex. Civ. App--Amarillo, 1973, no writ).
Moreover, the oral statement must be communicated to a third party
in such a way that the third party understands the words in a
defamatory sense. Id. at 697. Here, the daughter-in-law heard the
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statement and could have understood its defamatory sense;
therefore, there is at least a question of fact whether the
statement was published. The district court erred in granting
summary judgment and the plaintiffs have alleged a prima facie case
of slander per se. Because Appellant has made a prima facie case,
the district court erred in dismissing Appellant’s claim under Rule
12(b)(6).1
B. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The Texas Survival Statute provides that a cause of action for
personal injury to health, reputation, or body survives the injured
person’s death. TEX. CIV. PRAC. & REM. CODE ANN. § 71.021 (West
1986). Plumley’s intentional infliction of emotional distress
claim does not fall within this statute because that tort does not
injure health, reputation, or body. See Boyles v. Kerr, 855 S.W.2d
593, 598 (Tex. 1993) (stating that there is no requirement that
emotional distress manifest itself physically to be compensable).
Therefore, we affirm the district court’s grant of summary judgment
on this claim.
C. THE DTPA
Appellant argues that the DTPA claim survives a plaintiff’s
death. The Texas appellate courts are split on the issue, Thomes
v. Porter, 761 S.W.2d 592, 594 (Tex. App.--Fort Worth 1988, no
1
We do not address the 12(b)(6) ruling in the other claims
because we affirm the summary judgment rulings on those claims.
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writ)(holding that DTPA claims survive), Mahan Volkswagen, Inc. v.
Hall, 648 S.W.2d 324, 333 (Tex. App.--Houston [1st Dist.] 1982,
writ ref’d n.r.e.) (holding the same), First Nat’l Bank of
Kerrville v. Hackworth, 673 S.W.2d 218, 221 (Tex. App.--San Antonio
1984, no writ)(holding that DTPA does not survive), Mendoza v.
American Nat’l Ins. Co., 932 S.W.2d 605, 609 (Tex. App.--San
Antonio 1996, no writ)(holding no DTPA survival), and the Texas
Supreme Court has declined to reach the issue. Shell Oil Co. v.
Chapman, 682 S.W.2d 257, 259 (Tex. 1984). We need not reach the
issue but affirm on other grounds.
Under the DTPA only a consumer may complain about deceptive
practices. TEX. BUS. & COM. CODE ANN. § 17.50 (West 1987). Under
§ 17.45(4), a “consumer” is:
an individual, partnership, corporation, [Texas],
or a subdivision or agency of [Texas] who seeks
or acquires by purchase or lease, any goods or
services, except that the term does not
include a business consumer that has assets
of $25 million or more, or that is owned or
controlled by a corporation or entity with assets
of $25 million or more.
Appellant argues that Plumley was a consumer because he sought to
buy a used truck for his son. She also argues that borrowers of
money are consumers when the purpose of borrowing is to purchase
goods or services. We reject these argument and hold that Plumley
was not a consumer. Plumley was not purchasing the truck; his son
was. The truck was to be purchased and registered in Wesley’s
name. Moreover, it was Wesley who was borrowing money to purchase
the truck. Wesley, then, is the consumer under DTPA § 17.45(4).
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Here, Plumley was the guarantor. He provided $500 of the purchase
price and was to be co-signor of Wesley’s note. Plumley, then,
does not fall within the DTPA because guarantors are not consumers.
Kenneth H. Hughes Interests, Inc. v. Westrup, 879 S.W.2d 229 (Tex.
App.--Houston [1st Dist.] 1994, writ denied).
E. THE ADA
Appellant asks this court to reverse the district court’s
ruling that the ADA claim did not survive Plumley’s death.
Appellant urges this Court to look to state law to determine the
fate of ADA actions when the plaintiff dies. Landmark, however,
argues that the ADA claim cannot survive because Plumley’s claim
was brought under Title III, Subchapter III of the ADA. See 42
U.S.C. § 12181 et seq. (1990).
According to 42 U.S.C. § 12188, the plaintiff is limited to
injunctive relief, and a restraining or other similar order.
Appellant requests injunctive and declaratory relief. To obtain
standing for injunctive relief, a plaintiff must show that there is
reason to believe that he would directly benefit form the equitable
relief sought. Hoepfl v. Barlow, 906 F. Supp. 317, 321 (E.D. Va.
1995). In other words, a plaintiff must face a threat of present
or future harm. Id. at 320. Here, Appellant seeks an injunction
based on a past wrong. The Supreme Court held in City of Los
Angeles v. Lyons, 461 U.S. 95, 111 (1983), that a plaintiff seeking
injunctive relief based on an alleged past wrong must show that
there is a real or immediate threat that he will be wronged again.
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Appellant cannot meet this threshold. Plumley has died and his son
bought another truck. It is unlikely that Landmark will wrong
Plumley again.
Appellant also requests declaratory relief; however, to obtain
it she must show that an actual case or controversy under the ADA
exists. Lawson v. Callahan, 111 F.3d 403, 405 (5th Cir. 1997).
Again, Appellant cannot meet this threshold. No actual controversy
exists between Plumley and Landmark because Plumley is deceased and
Wesley has bought another truck. For these reasons, we hold that
Plumley’s ADA claims do not survive.
CONCLUSION
Because Appellant has made a prima facie case of slander per
se, we reverse the district court’s grant of summary judgment and
Rule 12(b)(6) dismissal of that claim. With regard to the other
claims, the Appellant has failed to show that the ADA and
intentional infliction of emotional distress claims survive and
that Plumley was a consumer within the DTPA. As a result, we
affirm the district court’s grant of summary judgment as to those
claims. Thus, we
AFFIRM in part, REVERSE in part, and REMAND.
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