Opinion
No. 10-01-00228-CV
Opinion Delivered and Filed May 26, 2004.
Appeal from the 18th District Court, Johnson County, Texas, Trial Court # C-199900150.
Reversed and remanded.
Marc F. Gault, Attorney at Law, Fort Worth, TX, for appellant/relator.
D. Keith Harrison, Harrison Dial, P.C., Burleson, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA
This case was submitted with former Chief Justice Davis on the panel, but he resigned effective August 4, 2003. See TEX. R. APP. P. 41.1(c). Justice Reyna, who took the oath of office on January 5, 2004, participated in the decision of the Court.
MEMORANDUM OPINION
This is an appeal of the granting of a summary judgment. Appellant sued Appellees, Burleson Publishing Co. doing business as the Burleson Star and the publisher and an editor of the Star (collectively "Burleson"), for libel and invasion of privacy. Burleson moved for summary judgment. The trial court granted the motion. Appellant appeals. We will reverse and remand In connection with the appeal, Burleson has filed a motion for attorney's fees. We will deny the motion.
1. Summary Judgment.
Summary judgment is appropriate only if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." TEX. R. CIV. P. 166a(c); Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 252 (Tex. 2002). "In reviewing a traditional motion for summary judgment, . . . the reviewing court must resolve every doubt and indulge every reasonable inference in the nonmovant's favor." Grizzle at 252. Moreover, "[a]ll evidence favorable to the nonmovant will be taken as true." Id.
An appellate court must review all summary-judgment grounds on which the trial court ruled and which are dispositive of the appeal. Baker Hughes, Inc. v. Keco R. D., Inc., 12 S.W.3d 1, 5 (Tex. 1999). "When a trial court's order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious." State Farm Fire Cas. Co. v. S.S., 858 S.W.2d 374, 379 (Tex. 1993).
Here, the trial court did not specify on which grounds it granted the summary-judgment motion. We thus consider them in turn.
1. a. Privilege. Burleson's motion for summary judgment asserted a statutory media privilege under Texas Civil Practice and Remedies Code Section 73.002. See TEX. CIV. PRAC. REM. CODE ANN. § 73.002 (Vernon 1997). In relevant part, Section 73.002 provides that a newspaper's publication of "a fair, true, and impartial account" of judicial proceedings or certain public meetings, or publication of "reasonable and fair comment" on matters of public concern, is privileged. Id. § 73.002(a), (b)(1)(A), (D). A qualified defamation privilege is an affirmative defense. In re Lee, 995 S.W.2d 774, 776 (Tex. App.-San Antonio 1999, orig. proceeding [mand denied]); Dealers Nat'l Ins. Co. v. Rose, 396 S.W.2d 535, 536 (Tex.Civ.App.- Waco 1965, writ dism'd by agr.); see Gen. Motors Acceptance Corp. v. Howard, 487 S.W.2d 708, 711 (Tex. 1972).
An affirmative defense must be specially pleaded. Tex. R. Civ. P. 94; see T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 223 (Tex. 1992). However, "an unpleaded affirmative defense may . . . serve as the basis for a summary judgment when it is raised in the summary judgment motion, and the opposing party does not object to the lack of a Rule 94 pleading in either its written response or before the rendition of judgment." Roark v. Stallworth Oil Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991).
Here, in Appellant's response to the motion for summary judgment, he objected that Burleson's live answer did not plead Section 73.002 as an affirmative defense. Although superseded answers had done so, Burleson's third amended answer did not. Nor does the record show that Burleson thereafter amended its answer.
Thus, the trial court could not have correctly granted summary judgment for Burleson on the ground of the affirmative defense of privilege.
1. b. Substantial Truth. Next, Burleson's summary-judgment motion asserted truth as an affirmative defense and as a negation of an element of Appellant's case. In either case, Burleson failed to establish its case conclusively.
In general, the truth of a published statement is a defense to defamation liability for the statement. See TEX. CIV. PRAC. REM. CODE ANN. § 73.005 (Vernon 1997); Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987). However, when a public-figure plaintiff sues a media defendant for defamation, the plaintiff has the burden of proving that the defendant's statements about the plaintiff were false. Bentley v. Bunton, 94 S.W.3d 561, 586 (Tex. 2002). In a media defendant's motion for summary judgment against a public-figure defamation plaintiff, the defendant bears the burden of proving the statements true, whether on an affirmative defense or as the negation of the plaintiff's proof of falsity. Casso v. Brand, 776 S.W.2d 551, 555 n. 3 (Tex. 1989).
The standard of truth in defamation cases is "substantial truth." See McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 n. 1 (Tex. 1990). A publication is not "substantially true" when "the alleged defamatory statement was more damaging to [the plaintiff's] reputation, in the mind of the average listener, than a truthful statement would have been." Id. at 16. "Conversely, a statement is substantially true if it is no more damaging than a true statement would have been." Provencio v. Paradigm Media, Inc., 44 S.W.3d 677, 680 (Tex. App.-El Paso 2001, no pet.).
Appellant complains of the following statements:
According to copies of Tarrant County court documents sent anonymously to the Burleson Star, Lucas pleaded guilty to theft of property on Jan. 4, 1985, and was sentenced to three years in the Texas Department of Corrections. However, that term was probated.
According to court records from the 1980s, Lucas has also been in court for burglary of a building, forgery, and assault with bodily injury. The Tarrant County records show that Lucas served over 50 days in jail in the 1980s.
Lucas was sentenced to probation again, this time for six months, in May 1988 when, according to court records, he pleaded guilty to the assault.
Although the copies of the records appear to be authentic, as of press time, the Star could not verify that fact.
The only "Lucas" referred to in the article was Appellant. The article unambiguously states that "court records from the 1980s" show that Appellant was formally charged with forgery and second-degree-felony burglary. The article also states that "Tarrant County records" show that Appellant was convicted of Class-A misdemeanor assault and spent over fifty days in jail. As to the 1985 conviction for felony theft, the article somewhat ambiguously refers to copies of Tarrant County records, and states that the copies appear to be authentic; the article does not express any doubt as to the authenticity of the original documents. Nowhere does the article express any doubt that such records, if they exist, pertain to Appellant. Viewed under the proper legal standard, that is, from the perspective of the "average listener," the average reader of Burleson's article would conclude that official court records demonstrated that Appellant had been convicted of assault and felony theft, and that he had been charged with other felonies or misdemeanors. See McIlvain, 794 S.W.2d at 16. Lucas's summary-judgment evidence was that he had never been convicted of a crime other than traffic offenses.
Thus, the trial court could not have correctly granted summary judgment on the grounds of truth.
1. c. Actual Malice. Lastly, Burleson's summary-judgment motion contended that it published the article without actual malice. "[P]ublic figures cannot recover for damaging statements made about them absent proof of actual malice." Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 171 (Tex. 2003). "`[A]ctual malice' requires proof that the defendant made a statement `with knowledge that it was false or with reckless disregard of whether it was true or not.'" Id. (quoting Huckabee v. Time Warner Entm't Co., 19 S.W.3d 413, 420 (Tex. 2000) (internal quotation marks omitted)). "To establish reckless disregard, a public-figure plaintiff must prove that the defendant `entertained serious doubts as to the truth of his publication.'" Id. (quoting Huckabee at 420 (internal quotation marks omitted)). That is, "the plaintiff must establish `that the defendant entertained serious doubts as to the truth of his publication,' or had a `high degree of awareness of . . . [the] probable falsity' of the published information." Id. (quoting Huckabee at 420 (internal quotation marks omitted)) (bracketed word and ellipsis in Forbes).
"Once the defendant has produced evidence negating actual malice as a matter of law, the burden shifts to the plaintiff to present controverting proof raising a genuine issue of material fact." Huckabee, 19 S.W.3d at 420. In order to defeat actual malice, a defendant's affidavit "must establish the defendant's belief in the challenged statements' truth and provide a plausible basis for this belief." Id. at 424.
Although "actual malice" generally does not signify common-law malice or "bad motive or ill will," actual malice may include consideration of the defendant's motivation in publishing the statement. Bentley, 94 S.W.3d at 590, 596, 602. Likewise, while a defamation defendant's failure to investigate as a prudent and reasonable person would is insufficient to establish actual malice, a defendant's "lack of care" can be considered. Id. at 591, 596; see id. at 601. Too, while the negligent failure to investigate, standing alone, is insufficient to establish actual malice, "the purposeful avoidance of the truth is in a different category." Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 692 (1989); see Huckabee, 19 S.W.3d at 427-28. That is, "evidence of an intent to avoid the truth" is some evidence of actual malice. Harte-Hanks at 693; see Huckabee at 427-28.
Appellant concedes that he is a public figure. Appellant argues that the "self-serving" affidavits by Burleson's publisher and editor are insufficient to refute actual malice. Burleson replies that affidavits that are "clear and direct" are sufficient to do so. See TEX. R. CIV. P. 166a(c). We assume without deciding that Burleson's summary-judgment proof negated actual malice.
Nonetheless, even if Burleson did negate actual malice, Appellant raised a fact issue on actual malice. Appellant points to several matters that, he contends, show that Burleson had actual malice. Over a month before the publication of the article, Appellant met with the publisher and editor, and told them that he had never been convicted of a felony, and that any purported copies of court records that were being publicized did not pertain to him. Appellant also points to the fact that, on their face, the papers that Burleson had received raised questions of whether they pertained to him: for the most part, the papers name Spencer Ray Lucas only as an alias of the true name of the defendant. Appellant also points to the fact that Burleson had had the papers for more than a month, but had never attempted to verify either that they were copies of court documents, or that, if so, those documents pertained to Appellant. Moreover, the papers had been sent to Burleson anonymously, and the publisher and editor had lied to Appellant, in telling him that they had not received the papers when they in fact had. There is also summary-judgment evidence of ill will between Appellant and the editor because of prior disputes over her decision not to publish Appellant's side of the story in a conflict between him and his opponent in the city-council election.
Accordingly, the trial court could not have correctly granted summary judgment on the ground of the absence of actual malice.
Therefore, since the trial court could not correctly have granted summary judgment on any of the three grounds in Burleson's motion for summary judgment, the judgment of the trial court is reversed. We remand to the trial court for further proceedings.
2. Motion for Attorney's Fees.
Burleson also brings a motion for attorney's fees under Texas Civil Practice and Remedies Code Section 51.015 and Texas Rule of Appellate Procedure 45. See TEX. CIV. PRAC. REM. CODE ANN. § 51.015 (Vernon 1997); TEX. R. APP. P. 45. This statute and rule provide for fees for prevailing parties. Id. Burleson does not prevail. Accordingly, the motion is denied. Motion for attorney's fees denied.