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Deckard v. O'Reilly Automotive8/1/2000
O'Reilly Automotive, Inc. appeals the judgment of the trial court entered in favor of Carlos Deckard in the amount of $275,830 in his defamation action. O'Reilly raises several points on appeal. First, it claims that the trial court erred in denying its motion to vacate the judgment and dismiss Mr. Deckard's petition because the court lacked subject matter jurisdiction. Second, O'Reilly argues that the trial court erred in denying its motion for judgment notwithstanding the verdict because Mr. Deckard did not present sufficient evidence to make a submissible case of defamation. Finally, O'Reilly claims that the trial court erred in denying its motion for a new trial based on instructional error. The judgment of the trial court is reversed, and the case is remanded for a new trial.
Carlos Deckard is a former employee of O'Reilly Automotive, Inc. Mr. Deckard worked for O'Reilly for nearly eight years. At the time of his termination, Mr. Deckard was the assistant manager at the O'Reilly retail store in El Dorado Springs. His job duties included counter sales, paperwork, checking and approving invoices, and supervising the store when the store manager, Kevin Greven, was not working.
On Friday, January 26, 1996, Mr. Greven went home sick at 11:00 a.m. leaving Mr. Deckard in charge of the store. Four other employees were working in the store that day with Mr. Deckard --Gregg Fast, Mike Spencer, Jami Crouch, and Juanita Boram. Each had been assigned an exclusive "counter number" to transact O'Reilly's business. Between 11:40 a.m. and 12:30 p.m., someone stole approximately $160 by creating a fraudulent charge sale invoice and two fraudulent cash refund invoices. Two of the fraudulent invoices were written by someone who used Mr. Deckard's exclusive counter number. The third fraudulent invoice was written using Gregg Fast's exclusive counter number. When Mr. Fast discovered the fraudulent refund invoice with his counter number imprinted on it, he became suspicious and telephoned Earl Kaltenbach, the district manager. Mr. Kaltenbach made plans to travel to the El Dorado Springs store the following Monday to investigate.
The next day, Saturday, January 27, was the store manager's scheduled day off; therefore, Mr. Deckard, as assistant store manager, was in charge of the store. As the manager on duty, Mr. Deckard processed all of the previous day's paperwork and approved the previous day's invoices including initialing the two fraudulent cash refund invoices.
Earl Kaltenbach arrived at the El Dorado Springs store on Monday morning, January 29, to investigate the suspicious invoices. He and Mr. Greven spoke with Mr. Deckard about the invoices. Initially, Mr. Deckard thought the men were seeking his help in determining who had created the fraudulent invoices. By the end of the meeting, Mr. Deckard understood that Mr. Kaltenbach was "upset with" or "accusing" him.
Mr. Deckard met with Bruce Dowell and David Bellamy, loss prevention auditors with O'Reilly, the next day, Tuesday, January 30. Mr. Dowell asked Mr. Deckard to explain the three fraudulent invoices, and Mr. Deckard denied writing them. At the end of the meeting, Mr. Dowell informed Mr. Deckard that he was suspended indefinitely without pay and asked Mr. Deckard to leave the store.
On January 31, Mr. Greven, the store manager, told Jami Crouch and Jerry McCullick, employees of the store, that Mr. Deckard was no longer with the company because he had been making false tickets and stealing company money. On February 1 or 2, Mr. Kaltenbach informed Joe Barger, the customer on whose account the fraudulent charge sale had been written, that his account had been credited and that Mr. Deckard
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