Associated Press v Cook

• Decision Date: 11 May 2000
• Parties: <!--17 S.W.3d 447 (Tex.App.-Houston 2000) THE ASSOCIATED PRESS, HOUSTON CHRONICLE PUBLISHING CO., MIKE COCHRAN, MARK SMITH, AND TERRY KEEL, Appellants v. MAURICE COOK, Appellee NO. 01-98-00773-CV In The Court of Appeals For The First District of Texas
• Court: Texas Court of Appeals

Page 447

17 S.W.3d 447 (Tex.App.-Houston[1st Dist.] 2000)

THE ASSOCIATED PRESS, HOUSTON CHRONICLE PUBLISHING CO., MIKE COCHRAN, MARK SMITH, AND TERRY KEEL, Appellants v MAURICE COOK, Appellee

NO. 01-98-00773-CV

In The Court of Appeals For The First District of Texas

May 11, 2000

On Appeal from the 411th District Court Trinity County, Texas Trial Court Cause No. 16,871

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Chief Justice Schneider and Justices Andell and Duggan.^*.

OPINION

Lee Duggan, Jr., Justice (Retired).

This libel case is an interlocutory appeal from the trial court's order denying summary judgment to news media defendants and their sources. Maurice Cook ("Cook"), the former Senior Ranger Captain of the Texas Rangers, sued the appellants, The Houston Chronicle Publishing Company ("the Chronicle") and its reporter Mark Smith ("Smith"), together with The Associated Press (the "AP") and its reporter Mike Cochran ("Cochran"), because of several articles that were published about him. Cook also sued Terry Keel ("Keel"), the former Travis County Sheriff who was quoted in the articles.¹ We reverse and render judgment in favor of the appellants.

I. Jurisdiction

As a preliminary matter, this Court has jurisdiction under Civil Practice and Remedies Code section 51.014a(6).²

II. Background

The underlying story of the news articles referring to Cook concerns the Texas Rangers' investigation of the 1990 killings of David Joost, his wife Susan, and their two small children. The Rangers theorized that David Joost killed his family in anger after discovering an affair by his wife, and then committed suicide. Relatives of the Joost family did not accept this theory.³

Because the Rangers resisted disclosing their investigative file, the relatives of the Joost family filed a lawsuit seeking access to it under the Tcxas Open Records Act. The disclosure would be permitted only if the investigation was inactive. Initially, disclosure of the file was ordered by the court. However, on February 25, 1993 (nearly three years after the shootings), the court conducted another hearing to reconsider its ruling.

At the hearing, Cook testified as Ranger Chief and Custodian of DPS records.⁴ He said the Rangers were still investigating evidence in support of the murder/suicide theory. This theory involved the assumption that Susan Joost was having an affair with Jerry Hill, her former employer, and that the affair somehow came to light during a lengthy, late night telephone call between the Joost and Hill residences immediately before the shootings. Cook specifically testified that "there was a lengthy phone call between the Joost residence and the attorney [Hill]" that occurred "the night before [the shootings] at about 12:00 midnight," but that the Rangers did not know the identity of the parties to the conversation because "it doesn't say who is talking. It just has two numbers talking." According to Cook, the Rangers theorized that the phone call may have disclosed the alleged affair, causing David Joost, in anger, to kill his family and then himself.

Following Cook's testimony at the hearing, the Joost family's request for disclosure of the Rangers' investigative file was denied. The Joost case was officially closed by the Rangers in 1995, at which time the investigative file was officially released. After it was released, Phillips learned that Cook falsely testified about the non-existent "late night telephone call." Therefore, Phillips filed a complaint with the Hays County District Attorney alleging that Cook committed perjury. Ultimately, Cook was not indicted by the grand jury. However, articles were published reporting the grand jury proceedings. Keel and Phillips were quoted in the articles.

III. Standard of Review

When the denial of summary judgment is appealed, we apply the same standard of review that governs the granting of summary judgment. Evans v. Dolcefino, 986 S.W.2d 69, 75 (Tex.App.--Houston [1st Dist.] 1999, no pet.). The movant for summary judgment must show there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). A defendant who conclusively negates at least one of the essential elements of a cause of action is entitled to summary judgment on that cause of action. Id. Likewise, a defendant who conclusively establishes each element of an affirmative defense is entitled to summary judgment. Id.

Once the movant has established a right to a summary judgment, the burden shifts to the nonmovant. Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App.--Houston [1st Dist.] 1993, writ denied). The nonmovant must respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Marchal, 859 S.W.2d at 412. We must accept as true evidence in favor of the non-movant, indulging every reasonable inference and resolving all doubts in his or her favor. Evans, 986 S.W.2d at 75.

On appeal, we cannot consider any ground for reversal that was not expressly presented to the trial court by written motion, answer, or other response to the motion for summary judgment. Clear Creek Basin Auth., 589 S.W.2d at 677; Hussong v. Schwan's Sales Enter., Inc., 896 S.W.2d 320, 323 (Tex.App.--Houston [1st Dist.] 1995, no writ). We will affirm the summary judgment if any of the theories advanced in the motion for summary judgment is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); Cigna Ins. Co. v. Rubalcada, 960 S.W.2d 408, 411 (Tex.App.--Houston [1st Dist.] 1998, no pet.).

IV. The Houston Chronicle and Mark Smith

A. Analysis

In the Chronicle and Smith's point of error one, they argue the trial court erred in denying their motion for summary judgment because they negated at least one element of each of Cook's libel claims.⁵ For the reasons that follow, we agree.

To maintain a defamation cause of action, the plaintiff must prove that the defendant: (1) published a false statement about the plaintiff; (2) that was defamatory; (3) while acting with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). It is undisputed that Cook, as Captain of the Rangers, was a public official.

Under Civil Practice and Remedies Code section 73.005, "The truth of the statement in the publication on which an action for libel is based is a defense to the action." Tex. Civ. Prac. & Rem. Code §73.005. Similarly, a showing of substantial truth in a summary judgment case will defeat a defamation claim. McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990); Evans, 986 S.W.2d at 76. To determine substantial truth, we consider whether the defamatory statement was more damaging to the plaintiff in the mind of the average reader than a true statement would have been. McIlvain, 794 S.W.2d at 16; Barbouti v. Hearst Corp., 927 S.W.2d 37, 65 (Tex. App.--Houston [1st Dist.] 1996, writ denied). This evaluation involves looking at the "gist" of the broadcast. McIlvain, 794 S.W.2d at 16; KTRK Television v. Felder, 950 S.W.2d 100, 105-106 (Tex. App.--Houston [14th Dist.] 1997, no writ). If the underlying facts as to the gist of the libelous charge are undisputed, then we can disregard any variance with respect toitems of secondary importance and determine substantial truth as a matter of law. McIlvain, 794 S.W.2d at 16; Felder, 950 S.W.2d at 106. Moreover, this Court has held "the implication of a true statement however unfortunate, does not vitiate the defense of truth." Hardwick v. Houston Lighting & Power Co., 943 S.W.2d 183, 185 (Tex.App.--Houston [1st Dist.] 1997, no writ).

B. The Disputed Statements

Cook's claims against the Chronicle and Smith are limited to four statements printed in three articles. The disputed statements refer to (1) the late night telephone call; (2) Cook's Fifth Amendment right; (3) Keel's statement that Cook was a "blight on law enforcement"; and (4) attorney John Phillips' statement that there was "probable cause" to indict Cook.

1. The Chronicle's February 8, 1996 article: "Embattled Rangers Chief Cook to Retire"

The first Chronicle article, published February 8, 1996, stated:

The Chronicle investigation also found that Cook may have embellished or misstated facts during closed-session court testimony when he claimed he had telephone records proving a "lengthy" late-night telephone call from the Joost home to the home of Susan Joost's boss the night of the killings.

In fact, phone records show no such call was made.

This disputed statement was repeated in two subsequent articles.⁶

The summary judgment evidence produced by the Chronicle and Smith establishes that this statement is substantially true. A copy of Cook's closed-court testimony at the February 25, 1993 hearing--which was the subject of the Chronicle's articles--shows Cook testified as follows:

A: But the thing that bothered us about this was the night before [the killings] at about 12:00 midnight or late at night, there was a lengthy phone call between the Joost residence and the attorney [Hill].

***

A: . . . And with that possible affair and a conversation from the telephone, you know, one night before this, a lengthy call from one house to the other house--

Q: What time of night are we talking about?

A: We're talking about 11:00 or 12:00, if I'm not mistaken, a little unusual, and it was reasonably late.

The Chronicle's report summarizing Cook's testimony was accurate, because it was later shown that there was no late night telephone call between the Joost and Hill residences on the night before the killings. The telephone records from the Joost and...