Friday, April 20, 2012

Does slander per se require proof of damages? Salinas v. Salinas, No. 11-0131 (Tex. April 20, 2012)

DAMAGES IN PER SE DEFAMATION CASE - If not merely nominal, what amount? 

Texas Supreme Court has this to say in case in which it reversed a $30,000 appellate court judgment in favor of defamation plaintiff this morning:   

“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.” Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002) (plurality opinion). However, even if some mental anguish can be presumed in cases of defamation per se, and if we assume the Telemundo statement was defamatory per se, the law does not presume any particular amount of damages beyond nominal damages.2

2 We need not decide whether Norberto would have been entitled to nominal damages for slander per se if he had requested them. He did not request such an award from the trial court and did not request that the jury be instructed to award at least nominal damages. We note, however, that courts have not resolved this issue in an entirely consistent manner. See Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc. 219 S.W.3d 563, 584–85 n.22 (Tex. App.—Austin 2007, pet. denied) (discussing cases

See Denton Publ’g Co. v. Boyd, 448 S.W.2d 145, 147 (Tex. Civ. App.—Fort Worth 1969) (holding that a plaintiff in a libel per se case is entitled to nominal damages and “such actual damages as might be shown to be the proximate result of the publication”), aff’d, 460 S.W.2d 881 (Tex. 1970); Tex. Disposal Sys., 219 S.W.3d at 584 (stating that in cases of defamation per se, “the amount of actual general damages remains a question for the jury”); Adolf Coors Co. v. Rodriguez, 780 S.W.2d 477, 488 (Tex. App—Corpus Christi 1989, writ denied) (noting that under presumption of damages applicable to libel per se, damages “are within the jury’s discretion, are purely personal, and cannot be measured by any fixed rule or standard”); Bradbury v. Scott, 788 S.W.2d 31, 39 (Tex. App.—Houston [1st Dist.] 1989), writ denied) (holding, in case of libel per se, “where the amount of the actual damages is not capable of definite ascertainment, and prima facie liability is established, the determination of the amount is necessarily lodged in the discretion of the jury”); Freeman v. Schwenker, 73 S.W.2d 609, 611 (Tex. Civ. App.—Austin 1934, no writ) (same).

SOURCE: TEXAS SUPREME COURT – Salinas v. Salinas, No. 11-0131 – 4/20/12

There is, in short, no jury verdict in support of an award of damages of $30,000 or any other amount for the Telemundo statement, and the court of appeals could not sua sponte make its own award of damages. See Freeman, 73 S.W.2d at 611 (holding, in libel per se case, that “[i]t is a well-settled rule that, where a case is submitted to a jury . . . judgment of the court must be rendered upon the verdict returned”); see also Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding that appellate court could not review sufficiency of evidence under a legal standard that was not submitted to the jury if no party objected to failure to charge jury under the standard). Even if mental anguish can be presumed, the determination of the amount of mental anguish damages is an inquiry left to the finder of fact. We therefore agree with Maria that the court of appeals was not authorized to award $30,000 in mental anguish damages for the Telemundo statement, without a damages finding by the jury supporting such an award.

SOURCE: SUPREME COURT OF TEXAS – Maria Ester Salinas vs. Norberto Salinas, No. 11-0131 – 4/20/12 

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