Court of Appeals of Texas, Eighth District, El Paso
from the 171st District Court of El Paso County, Texas (TC#
Barajas, C.J., McClure, and Chew, JJ.
WELLINGTON CHEW, Justice
Fernando Mendivil sued his former employer, Richard Rosen,
Inc., and its vice-president Kirk Sales for intentional
infliction of emotional distress and defamation based on
their conduct leading to and after the end of Mr.
Mendivil's employment with the company. The jury found in
favor of Mr. Mendivil on both causes of action. The
defendants filed a motion for judgment notwithstanding the
verdict (“JNOV”) and after a hearing, the trial
court took the motion under advisement. The trial court
granted the JNOV with respect to the punitive damages award
as to Mr. Sales. The trial court then rendered judgment on
the verdict and awarded Mr. Mendivil $290, 120 in actual
damages and $25, 000 in exemplary damages, plus costs and
interest. In three issues, Appellant Richard Rosen, Inc.
contends the trial court erred in denying its amended motion
for JNOV because there was no evidence to support Mr.
Mendivil's causes of action or the award of exemplary
damages. We affirm the trial court's judgment in part and
reverse and render in part.
1992 to 1995, Appellant operated numerous retail stores in
Texas and New Mexico. In late August 1992, a former employer
of Mr. Mendivil recommended him for a managerial position
with Appellant. Mr. Mendivil had previously managed a
clothing store in El Paso. Mr. Mendivil interviewed with the
owner Richard Rosen,  Mark Rosen, and Kirk Sales and was
November 1992, Mr. Mendivil started employment with Appellant
as a supervisor for the company's stores in New Mexico.
Mr. Mendivil moved to Santa Fe, New Mexico for the job. He
was to receive a salary, a ten percent bonus or commission
based on the gross profits for each store he supervised, an
apartment, and sometime in the future, a van. Mr. Mendivil
reported to Kirk Sales, the vice president of the company. To
start, Mr. Mendivil made some quick changes to the Santa Fe
store and the holiday season went very well. He then took
over supervision of the Las Vegas store and increased sales
at that store after remodeling it. By 1994, Mr. Mendivil was
supervising six stores in New Mexico. In March 1995, the
company issued a memorandum formally announcing Mr.
Mendivil's position as the immediate supervisor of the
company's New Mexico operations. The memorandum praised
Mr. Mendivil as having “a good track record” and
for being a “hard worker.”
Mendivil traveled between the New Mexico stores on a weekly
basis, to delegate certain tasks and to see how each store
was progressing. When he traveled between the stores, Mr.
Mendivil would also transport special orders, and certain
products to balance out inventory. Mr. Mendivil was required
to attend weekly management meetings in El Paso. Six months
after he started with the company, Mr. Sales and Mr. Rosen
offered to buy Mr. Mendivil a car, but he suggested that they
buy him a van so that he could move products between the
stores as needed. The company purchased a 1994 Chevy Astro
Van for Mr. Mendivil's use and it reimbursed his gas and
March 1995, Mr. Mendivil began having communication problems
with Mr. Sales and Mr. Rosen following a disagreement about
the sales strategy for the fabric department. In April, Mr.
Mendivil began to have additional problems with Mr. Sales and
Mr. Rosen because they wanted to cut back on mailing costs.
In a letter to Mr. Mendivil, Mr. Rosen complained about the
need to cut expenses and criticized Richard Garcia, the
manager of the Alamogordo store. Mr. Mendivil received more
letters similar to the April letter from Mr. Rosen. In
addition, Mr. Rosen reversed changes that Mr. Mendivil had
made in remodeling the stores. Mr. Mendivil decided to resign
from the company because he felt he was not getting
cooperation from Mr. Rosen and Mr. Sales. Prior to making his
decision to resign, he had no indication that they had any
intention to fire him.
Mendivil met with Mr. Sales on June 10, 1995 at the Santa Fe
store. He told Mr.Sales that he planned to resign. Mr. Sales
asked him why and Mr. Mendivil explained to him he was not
getting cooperation from Mr. Rosen, particularly with regard
to the remodeling changes he had ordered. Mr. Sales as was
his custom, reminded Mr. Mendivil about being the highest
paid employee and having a van, as his company perk. Mr.
Mendivil told him that up until then, he had done a very good
job in the stores, had increased sales, and trained good
managers, but felt it was better that he move on because he
did not want it to become a bad situation between them. Mr.
Mendivil said he would stay on to do the inventory and then
settle up on his bonuses. Mr. Sales thanked Mr. Mendivil for
wanting to stay on to do all the inventory, praised him for
his work, and promised to give him a good recommendation.
During their conversation, Mr. Mendivil mentioned the company
van because they had bought the van for him after he
“ran [his] truck into the ground.” Mr. Sales told
Mr. Mendivil that he would talk to Mr. Rosen and work out a
deal. He and Mr. Sales agreed that the resignation would be
effective August 1.
deal with Mr. Sales, Mr. Mendivil gave his notice of
resignation, but wanted to settle up on the bonus, which was
based on the inventory taken of all the stores. Mr. Sales
told Mr. Mendivil that it would take until August 1 to
tabulate the inventory, so the date of August1 was chosen for
purposes of settling up the bonus and also Mr. Mendivil would
have time to finish remodeling the stores.
Mendivil and Mr. Sales telephoned Mr. Rosen and informed him
that “Fernie just resigned.” Mr. Sales gestured
to Mr. Mendivil to leave so he could continue the
conversation in private and Mr. Mendivil left the room to
continue preparing the store for inventory that afternoon.
According to Mr. Mendivil, no one ever told him that he was
abusive, he never was told he was a bully, and they never
told him of any complaints against him.
26, 1995, Mr. Mendivil had a conversation with Mr. Sales at
the store in El Paso on the sales floor. Mr. Mendivil was
there to pick up some merchandise to take back to Santa Fe on
his return. Mr. Sales suggested that they move up the date
that he was suppose to be leaving because it might be better
for the company. Mr. Mendivil reminded him that they had made
an agreement and told him that he had already set up his
schedule based on that date and it would be an inconvenience.
Mr. Sales said “[a]ll right” and
“[w]e'll go discuss it with [Mr. Rosen].” Mr.
Rosen, however, had already left that day. Mr. Mendivil tried
to talk to Mr. Rosen on June27, but Mr. Rosen had gone out to
28, Mr. Mendivil spoke with Mr. Rosen. By that time all the
physical inventories of the New Mexico stores were complete.
Mr. Mendivil went to Mr. Rosen's office and told him that
Mr. Sales had mentioned to him the other day that he was
thinking about changing his leaving date. Mr. Mendivil
reminded Mr. Rosen that they had agreed upon the August 1
leaving date. He also told him that it was only fair that Mr.
Rosen honor the agreed upon date since he had not left them
hanging with inventories and so forth. Mr. Rosen agreed and
then questioned him about why he was leaving. Mr. Rosen tried
to talk Mr. Mendivil out of leaving, told him that he would
call him, and said “I think we can fix all of
days later, Mr. Mendivil wrote a letter to Mr. Rosen. In the
letter, Mr. Mendivil stated the following in part:
As you are well aware, I gave notice to resign as supervisor
of your stores, on Sat. June 10th. I explained to you that my
reason was that I felt I was being forced to resign by you,
because of lack of your support from you as owner of this
company. I felt it impossible to do my job properly as I have
been, without this support which you had shown me in the
previous years. In addition, the constant references by Kirk
Sales made toward paying me the highest salary in the company
and paying for my apartment and that [the] company bought me
a van. This plication [sic] that I wasn't worth these
expenses and constant harassment about this, was to much to
be dealing with. I believe the van was to haul merchandise
from store to store, or do I get to keep it?
My resignation was accepted by Mr. Kirk Sales. After
discussion, we both agreed my last day of employment would be
8/1/95. I offered to stay and complete the year end
inventories and releave [sic] Robert Garcia during his
vacation. In addition it would give Kirk enough time to
finish the year end finacial [sic] statements. Kirk thanked
me and accepted this very fair notice. He said he was very
appreciative of my effort to make a smooth transition.
On Monday, 6/26/95, Kirk and I again discussed my departure.
He stated that you all had discussed my leaving and felt it
best I leave at once. I stated that I had made up my schedule
and plans to leave on 8/1/95, as previously agreed. I told
him it was not very fair to displace me in this manner, since
he had accepted the time table we discussed on Sat. June
10th; when I first gave him my resignation. I tryed [sic] to
finish our discussion, but he was too busy on the phone with
Phil. He suggested I talk to you, but you had left the
building. I again tryed [sic] to talk to you on Tues.
6/27/95, but he told me you were at >the ranch.' When
you and I finally were able to talk on Wed. 6/28/95, I was
able to explain why I felt you were forcing me to resign, but
you had to leave before we discussed my departure date etc.
You asked for my home phone number and said you would call,
but never did.
At this writing, I am not sure what you actually want me to
Mendivil also requested that they meet to discuss how he
should account for his time through August 1 as well as
severance-related matters. Mr. Mendivil received no response
to the June 30 letter.
about July 1, Mr. Mendivil began to hear rumors from other
employees of the company that he had been fired. He told them
that he had resigned and that they had misunderstood the news
of his resignation. Mr. Mendivil decided to fax a letter to
all store managers as well as to Mr. Rosen. The July 1 letter
stated in part:
There have been incorrect rumors spread, that I have been
fired by Mr. Richard Rosen. Employees at several stores have
stated that they recieved [sic] a call from Mr. Rosen
himself. This incorrect and damaging and vicious rumors are
very damaging to my character. I would like to correct this
by making you aware of the truth! I resigned on 6/10/95. I
gave notice to Mr. Kirk Sales that my last day would be
8/1/95, and he agreed and accepted this date. If there is any
change to this date, it will be at the request of Mr. Rosen,
and new arrangements will be made. I will honor my word to
stay till 8/1/95 and will make myself to you, available.
in the company contacted Mr. Mendivil about the July 1
before the July 4 weekend, Mr. Mendivil received a message
from the Santa Fe store manager that he was wanted in El Paso
on Monday. Mr. Mendivil packed up a few items of clothing and
picked up some merchandise to deliver to the Alamogordo store
on his way to El Paso. When Mr. Mendivil arrived at the store
in Alamogordo, the store manager, Richard Garcia, asked him
what he was doing there and told him Mr. Rosen said he had
been fired. Mr. Mendivil was shocked by Mr. Garcia's
statement and could not believe what he was hearing.
to Mr. Garcia, Mr. Rosen called him that day and told him
that Mr. Mendivil was no longer with the company and had been
fired. Mr. Garcia was shocked by the news and, at first,
thought less of Mr. Mendivil because “when someone gets
fired there's probably a reason for it.” Mr. Garcia
recalled that Mr. Mendivil wondered aloud how Mr. Garcia