830 F.2d 47 (5th Cir. 1987), 86-2718, Jauch v. Corley

Docket Nº:86-2718.
Citation:830 F.2d 47
Party Name:Michael JAUCH, Plaintiff-Appellee, v. Joe CORLEY, Sheriff of Montgomery County, Texas, Defendant-Appellant.
Case Date:October 19, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 47

830 F.2d 47 (5th Cir. 1987)

Michael JAUCH, Plaintiff-Appellee,


Joe CORLEY, Sheriff of Montgomery County, Texas, Defendant-Appellant.

No. 86-2718.

United States Court of Appeals, Fifth Circuit

October 19, 1987

Page 48

Robert E. DeLong, Jr., Huntsville, Tex., for defendant-appellant.

Steve Bickerstaff, Ann Clarke Snell, Austin, Tex., for amicus curiae Texas Ass'n of Counties.

Harry H. Walsh, III, Huntsville, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas

Before WISDOM, HIGGINBOTHAM and DAVIS, Circuit Judges.

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WISDOM, Circuit Judge:

This appeal presents two questions: whether the district court committed reversible error in admitting a deposition at trial; and whether the trial court's jury instructions were deficient. The defendant, Joe Corley, argues that the deposition contained highly prejudicial testimony that was admitted without the plaintiff, Michael Jauch, having furnished the predicate for its admission required by Federal Rule of Civil Procedure 32(a)(3). This rule requires a showing, before the deposition is admissible, that the witness giving the deposition is unavailable or that exceptional circumstances justify admission of the deposition. The defendant also argues that the trial court improperly allowed the jury to find the defendant-sheriff liable for his deputy's defamatory remarks if the sheriff knew or should have known about the deputy's statements. Texas law requires a finding that the sheriff authorized the deputy's remarks. On both issues, we agree with the defendant/appellant and accordingly we reverse the judgment of the district court.


The plaintiff, Michael Jauch, was employed as a deputy sheriff in Montgomery County, Texas, until Chief Deputy Steve Graeter, after an investigation of Jauch's alleged misconduct, discharged him. The plaintiff sued Deputy Graeter, Sheriff Joe Corley, and Montgomery County for allegedly defamatory statements made about him and reported in newspaper articles and television broadcasts. The media had reported that Jauch distributed and personally used stolen drugs, and that Graeter had told the media that Jauch admitted the wrongdoing. The plaintiff, however, had consistently maintained that he was innocent. Deputy Graeter was never served, Montgomery County was dismissed during the trial, and the jury trial proceeded against Sheriff Corley alone. The plaintiff asserted that the Sheriff should be held vicariously liable for the defamatory remarks of Deputy Graeter.

The record unquestionably shows that the case turned on Graeter's remarks to the media. At trial the defendant's counsel objected to the use of Graeter's deposition without a showing that the witness was unavailable under Fed.R.Civ.P. 32(a)(3). The plaintiff's counsel then stated: "I don't know where Steve Graeter is." When the court asked the defendant's counsel if he knew where Graeter could be found, counsel responded, "I know he works for the Harris County Rehabilitation Center, and he is a Harris County deputy or something." The plaintiff's counsel offered no explanation for his failure to make any effort to locate Graeter and produce him as a witness. The court then allowed the use of the deposition. The court stated that the defendant's counsel was free to subpoena Mr. Graeter for cross-examination. But there is no burden on a defendant to subpoena a hostile witness.

The jury found that Sheriff Corley "knew or should have known that Graeter was making false statements or statements with a reckless disregard for their truth or falsity". The district court entered judgment against Sheriff Corley for $250,000 in compensatory damages and $100,000 in exemplary damages. The court denied Sheriff Corley's motions for judgment on the verdict and for judgment notwithstanding the verdict.

In addition to contending that the district court erroneously admitted the deposition of Graeter, the defendant makes the following arguments on appeal: the district court erred in holding that under Texas law the sheriff was liable for the statements of his deputy; the court erred in holding the sheriff liable absent a finding of actual malice on the sheriff's part; the court erred in awarding the plaintiff exemplary damages absent a finding of fraud or malice on the sheriff's part; and the court committed additional reversible errors during the trial.


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