Barbouti v. Hearst Corp.

• Decision Date: 29 January 1996
• Docket Number: No. 01-94-00907-CV,01-94-00907-CV
• Citation: 927 S.W.2d 37
• Parties: 24 Media L. Rep. 2313 Haidar BARBOUTI, Individually; Highland Village Holding, Inc.; and Por, Inc., Appellants, v. The HEARST CORPORATION d/b/a the Houston Chronicle Publishing Company, and Jerry Urban, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 37

927 S.W.2d 37

24 Media L. Rep. 2313

Haidar BARBOUTI, Individually; Highland Village Holding Inc.; and Por, Inc., Appellants, v. The HEARST CORPORATION d/b/a the Houston Chronicle Publishing Company, and Jerry Urban, Appellees.

No. 01-94-00907-CV.

Court of Appeals of Texas Houston (1st Dist.).

Jan. 29, 1996.

Opinion Adopting Dissent on Rehearing

En Banc July 18, 1996.

Rehearing Overruled Aug. 12, 1996.

Published in Part Pursuant to Tex.R.App.P. 90.

Thomas Herter, Houston, Steven J. Watkins, Houston, for Appellants.

Joel R. White and William W. Ogden, Houston, for Appellees.

Before OLIVER-PARROTT, C.J., and TAFT and O'CONNOR, JJ.

OPINION

O'CONNOR, Justice.

Haidar Barbouti, individually, Highland Village Holding, Inc., and Por, Inc. (collectively, the plaintiffs), sued the Hearst Corporation d/b/a the Houston Chronicle Publishing Company, and Jerry Urban (collectively, the Chronicle), for libel, based on two articles appearing in the Houston Chronicle newspaper in 1992. In 48 points of error, the plaintiffs attack the summary judgment the trial court granted for the Chronicle. We reverse and remand.

Statement of facts

This lawsuit involved two articles written by reporter Jerry Urban and published by the Chronicle newspaper. The first article, published on February 21, 1992, carried the headline, "Letter triggers new probe of Barbouti." Here is the article in its entirety.

The U.S. Defense Intelligence Agency is looking into possible ties between an owner of two Houston retail centers and a suspected Libyan terrorist, congressional sources say.

The agency is reviewing a letter purportedly written to Haidar Barbouti, an Iraqi who is principal owner of Houston's Windsor Plaza and Highland Village, and which mentions Abdullah al-Senoussi, a brother-in-law of Libya's Moammar Gadhafi.

The French government has named Senoussi, identified as Libya's chief foreign intelligence officer, as a suspect in the September 1989 bombing of a French UTA airline. French investigators have also said they had evidence Senoussi may have been involved in ordering the 1988 bombing of Pan Am Flight 103 over Scotland, which killed more than 400 people.

Barbouti and his family are subjects of an ongoing U.S. Customs investigation into their alleged involvement in the illegal export of dual-purpose (military-industrial) technology to Libya and Iraq.

U.S. authorities have named Barbouti's father, Dr. Ihsan Barbouti, as the primary contractor for a chemical weapons plant at Rabta, Libya.

A spokesman for the DIA, a division of the Department of Defense, late Thursday could not confirm or deny the agency is reviewing the letter.

Tom McDade, an attorney representing Barbouti interests, said the document could be forged.

Dr. Barbouti allegedly died on his 63rd birthday in July 1990, but some former business associates believe he feigned his death to avoid prosecution or even death by Israeli intelligence.

The Oct. 27, 1990, letter in question is from the Iraqi State Establishment for Textile to IBI Services LTD, Dr. Barbouti's former corporate headquarters in London. The letter is to the attention of Haidar Barbouti and Arie David, an attorney who represents the Barboutis.

The letter is signed on behalf of Raja Hassan Ali, an Iraqi national named by the U.S. Department of Justice as a defendant in the Banca Nazionale del Lavoro indictment in Atlanta.

The indictment alleges Ali and others conspired to defraud a loan program sponsored by the U.S. Department of Agriculture's Commodity Credit Corp. Ali was director general of the Economic Department of the Ministry of Industry and Military Production of the Republic of Iraq.

The brief letter says, "We expect the assistance that you promised to the Enterprise For Pesticide Production. Additional supplies of the raw materials will insure future funding by the foreign minister. Abudul [sic] Senoussi knows our requirements."

The Forward, a New York City weekly newspaper dealing with Jewish issues, reported in today's edition that Iraq's State Establishment For Pesticide Production is purportedly a front for Iraq's chemical weapons complex at Samarra.

The paper said the letter suggests Senoussi's duties at the time included supervising purchases of supplies for Libya's chemical-warfare program, and indicates Libya cooperated with Iraq to a greater degree than previously suspected.

The only photograph to accompany the article was of the Libyan leader Moammar Gadhafi.

The second article was published on March 6, 1992. The headline to the second article was "Barbouti's son found liable in technology theft scheme" and in its entirety, read:

A state civil court jury Thursday found that a principal owner of two prominent Houston shopping centers conspired to steal technology for export to the Middle East.

The jury also found that Haidar Barbouti, a principal owner of Highland Village and Windsor Plaza, and other Barbouti interests damaged a Dallas man by more than $12 million.

The findings were the result of a lawsuit[ ¹] by Pipeline Recovery Systems Inc. and its owner Bruce Munden, who said his company's pipe-coating technology was illegally stolen and exported to Libya and Iraq. The technology has military and nuclear as well as industrial uses.

Judge Scott Brister, fearing that jurors might be prejudiced, would not allow attorneys to mention that the technology was destined specifically for Libya and Iraq.

Attorneys representing Munden in the two-week trial would not comment, while Tom McDade, a Barbouti attorney, could not be reached.

Munden is a grand jury witness in an ongoing federal investigation of Haidar Barbouti, 24, his father, Dr. Ihsan Barbouti, and their corporate activities in the United States and Europe.

U.S. authorities, in court documents, say Dr. Barbouti was the primary contractor of a chemical weapons plant in Rabta, Libya.

Dr. Barbouti reportedly died on his 63rd birthday in July 1990, but some former business associates believe he feigned his death to avoid prosecution or death at the hands of Israeli intelligence agents.

The jury also found that several other people and entities conspired to defraud Munden, including Dr. Barbouti, IBI Industries, Inc., a Barbouti company; Highland Village Holding Inc., nominal owner of the shopping center, and Plaza on Richmond Inc., nominal owner of Windsor Plaza.

The jury today is to consider punitive damages against Barbouti interests.

The plaintiffs filed suit in 1993. About a year later, the Chronicle moved for summary judgment, on four grounds, asserting that: (1) the articles were substantially true; (2) the articles were privileged; (3) the summary judgment evidence attached to the motion conclusively negated a finding of actual malice; and (4) the plaintiffs' "conspiracy to defame" theory was barred as a matter of law. ² In support of its motion for summary judgment, the Chronicle attached Urban's affidavit, along with certified copies of certain documents filed in the Munden suit; copies of documents filed in other court cases; copies of letters to Ihsan or Haidar Barbouti; and copies of magazine and newspaper articles about Iraq's nuclear weapons program, Libya's chemical weapons program, Ihsan Barbouti, Ihsan and Haidar Barbouti, and a transcript from the television program "Nightline" which focused on Ihsan and briefly mentioned Haidar.

Plaintiffs filed a response and to it attached Haidar Barbouti's affidavit, along with copies of certain documents filed in other court cases; copies of the two articles; and the affidavit of one of Haidar Barbouti's attorneys, authenticating attached excerpts from the transcript of Urban's oral deposition.

The trial court granted summary judgment for the Chronicle. This appeal followed.

Standard of review

Under TEX.R.CIV.P. 166a(c), a summary judgment is proper only when a movant establishes there is no genuine issue of material fact and it is entitled to judgment as a matter of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986); Goldberg v. United States Shoe Corp., 775 S.W.2d 751, 752 (Tex.App.--Houston [1st Dist.] 1989, writ denied). In a summary judgment proceeding, the burden of proof is on the movant, and all doubts about the existence of a genuine issue of fact are resolved against the movant. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994); Goldberg, 775 S.W.2d at 752. Once the movant has established a right to a summary judgment, the burden shifts to the nonmovant. The nonmovant then must 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); United Business Mach. v. Entertainment Mktg., Inc., 792 S.W.2d 262, 264 (Tex.App.--Houston [1st Dist.] 1990, no writ).

On review of a summary judgment, we assume all evidence favorable to the nonmovant is true. MMP, 710 S.W.2d at 60; Goldberg, 775 S.W.2d at 752. We indulge every reasonable inference in favor of the nonmovants, and resolve any reasonable doubt in its favor. Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988); Goldberg, 775 S.W.2d at 752.

A defendant is entitled to summary judgment if it can establish, as a matter of law, there is no genuine issue of material fact about one or more of the essential elements of the plaintiff's cause of action or if it can establish all elements of an affirmative defense as a matter of law. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Goldberg, 775 S.W.2d at 752.

Where, as here, a trial court's order granting summary judgment does not specify the grounds relied on for its ruling, we will affirm the summary judgment if any of the grounds in the motion has merit. Insurance Co. of N. Am. v. Security Ins. Co., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no writ).

A. Substantial truth

In points of error one through six, the plaintiffs contend the Chronicle did not meet its...