Shohamy v. Corazza

Liat Zilkha-Shohamy and Tal Shohamy, Appellants v. Lenore Vincent Corazza, Appellee

No. 03-20-00380-CV

Court of Appeals of Texas, Third District, Austin

July 16, 2021

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO D-1-GN-18-006883, THE HONORABLE DON R. BURGESS, JUDGE PRESIDING

Before Justices Goodwin, Triana, and Smith

MEMORANDUM OPINION

Gisela D. Triana, Justice

Appellants Liat Zilkha-Shohamy and Tal Shohamy appeal from the district court's order denying their motion to dismiss under the Texas Citizens Participation Act ("TCPA"). See Tex. Civ. Prac. &Rem. Code § 27.003.^[1] In two issues on appeal, they assert that the district court erred in denying the motion to dismiss because (1) appellee Lenore Vincent Corazza failed to provide clear and specific evidence to support each essential element of a prima facie case of defamation; and (2) appellants established by a preponderance of the evidence each essential element of a valid defense to defamation. We will affirm the district court's order.

BACKGROUND

Corazza was the former office manager for White Angel Animal Hospital, a veterinary clinic owned by Liat Zilkha-Shohamy and operated by Zilkha-Shohamy's husband, Tal Shohamy. Corazza's employment with the clinic ended on August 15 2017.

In November 2018, Corazza sued appellants for defamation alleging that on or about August 31, 2017, Shohamy "sent an email with false statements accusing [Corazza] of fraudulent schemes that included embezzlement from the practice." According to the allegations in Corazza's petition, "These false allegations of fraudulent schemes were widely made known among multiple clients and others" by appellants and that "[a]s a result of the false allegations, [Corazza] has been subjected to undue strict scrutiny" and "was terminated from subsequent employment because of the continuous attack[s] made by [appellants] to her new place of employment." Corazza alleged that the false statements "constitute defamation per se because they accuse [Corazza] of engaging in illegal activity and/or they directly bear on her fitness as a manager and employee." She further alleged that the statements were "defamatory because they tend to injure [Corazza]'s reputation in the veterinary community and expose her to public hatred, contempt, ridicule, and financial injury, and impeach her honesty and integrity." Corazza added that appellants "published the defamatory statements (calling Plaintiff a thief) with the knowledge that they were false or with substantial grounds for knowing that they might be false and with reckless disregard to whether they were true or false. These defamatory remarks were made, both spoken and in writing, to others who knew Plaintiff."

Appellants filed a motion to dismiss the suit pursuant to the TCPA. In the motion, appellants asserted that the allegedly false statements were protected by the TCPA as an exercise of their free-speech rights, "were true and/or substantially true when published and/or [they] had a reasonable and good faith basis to believe such statements were true at the time of publication and in the manner published," "were opinions and/or a fair comment upon the underlying facts," and "were neither negligent, nor uttered with malice."

The district court held an evidentiary hearing on the motion to dismiss. Corazza was the sole witness to testify at the hearing. Corazza testified that she began working for the clinic in March 2014. When asked to describe the end of her employment, Corazza testified that she had decided to leave the clinic in August 2017 after she began having disagreements with Shohamy regarding some of his business decisions. Before Corazza quit, she had received a call from Zilkha-Shohamy, who "sounded distraught" and "said that there was [a] dollar raise" to Corazza's salary. Corazza testified that she told Zilkha-Shohamy, "Yeah, I know, that's something we had talked about-."^[2] The next day, Corazza gave the clinic her two weeks' notice but was told that her employment with the clinic was terminated effective immediately.

Corazza testified that after her employment with the clinic ended appellants told "multiple individuals" that Corazza had lied and stolen money from the clinic. When asked how this affected her reputation in the veterinary community Corazza testified that she was hired by Bee Cave Veterinary Clinic in September 2017 but was fired in November 2017 when appellants filed a criminal theft charge against her and sued Corazza and her employer for stealing clients from appellants' clinic. Corazza was not able to find another job until September 2018, after the theft charge against her was dismissed. She testified that her current employer "just took a chance" on Corazza because "he was told by doctors in the community" that Corazza "was a thief," and that Corazza had to "explain everything to [her] new staff." Corazza denied stealing anything from the clinic or appellants.

Dr. Jennifer Barker, a veterinarian formerly employed at appellants' clinic, provided an affidavit in which she explained that after she had been fired from the clinic, she learned that Corazza "ha[d] been fired for theft." She explained that the clinic "issued a very indepth email that they sent out to all on their email list, dealing [with] why [Corazza] was fired and that nobody should listen to anything she has to say about the situation." Bonnie Threewit, a former employee at appellants' clinic, provided an affidavit in which she averred that after she had left the clinic, she "received an email regarding [Corazza] having stolen from the company." Stephanie Foster, a former employee at the Bee Cave Veterinary Clinic, provided an affidavit in which she stated that she had "personally witness[ed]" Shohamy make "false allegations" against Corazza, although she did not explain the nature of the allegations.

Evidence submitted by appellants included a copy of the August 31, 2017 email that Corazza alleged was defamatory. The email, in its entirety, reads as follows:

Good Afternoon White Angel Animal Hospital Family,

We would like to inform our clients of a change in management at White Angel Animal Hospital. Due to financial discrepancies recently noted, Lenore is no longer employed with us.

It has come to our attention that Lenore has communicated with several of the valued rescue groups and/or clients which we serve regarding our ability or willingness to continue the relationship. This is inaccurate and not a reflection of our values or intentions. Please disregard any communications that you receive from her in association with White Angel Animal Hospital as of August 15, 2017. We sincerely apologize for any inconvenience or hurt feelings that this may have caused to our valued clients and animal welfare groups. We want you to know that we appreciate your patience and loyalty during this difficult time as always.

We will miss Lenore and we wish her the best of luck in her future endeavors!

If you have any questions or concerns, please feel free to give us a call. Dr. Zilkha will continue to be the primary veterinary practitioner at White Angel. Ali [Nelson, Corazza's replacement, ] will be managing the hospital and will be more than happy to speak with anyone who needs assistance.

Sincerely,

Your Family at White Angel Animal Hospital

Other evidence presented by appellants included an affidavit by Zilkha-Shohamy, who explained her view of the circumstances surrounding Corazza's termination:

I was absolutely devastated to learn in August 2017 of a discrepancy with regard to Lenore's payroll account. I discovered from our HR payroll processor, Hill Country Payroll, that Lenore had increased her pay rate from $18 an hour to $19 an hour without authorization from me. Lenore's responses to me regarding the matter were unsatisfactory and defensive. After reviewing White Angel, PLLC's practice accounts, I also discovered further instances of abuse of the practice's business accounts which included an unauthorized discount of clinic services and the use of White Angel's business account to make a personal order for dog food. On or about August 15, 2017, I had to make the difficult decision to terminate Lenore Corazza from White Angel, PLLC.

Writ Baese, an employee with Hill Country Payroll, provided an affidavit in which he confirmed that "on or about July 31, 2017, Lenore V. Corazza, as the authorized payroll contact for White Angel, submitted a payroll worksheet to Hill Country Payroll that changed her pay rate from $18 an hour to $19 an hour."

Zilkha-Shohamy further averred that Corazza had "refused to cooperate" with the clinic's end-of-employment policies and had interfered with the clinic's business relationships by sending unauthorized emails to the clinic's clients. It was this interference, Zilkha-Shohamy explained, that prompted the email to the clinic's clients regarding Corazza's departure. Ali Nelson, the clinic's office manager after Corazza, provided an affidavit in which she explained that she had discovered that Corazza had sent unauthorized emails to clients of the clinic and engaged in other behavior that was harmful to the clinic. Shohamy provided an affidavit in which he averred that "Corazza sent emails to White Angel clients claiming the clinic was discontinuing its relationship with the clients" and explained that "[i]t became necessary for White Angel to address this problem by sending a statement to White Angel Animal Hospital clients setting the record straight regarding Lenore Corazza's termination and her unauthorized access to White Angel's email accounts." He also denied personally sending the email to the clients but acknowledged that the clinic did so.

At the conclusion of the hearing, the district court denied ...