Carr v. Brasher

• Decision Date: 10 May 1989
• Docket Number: No. C-7248,C-7248
• Parties: 16 Media L. Rep. 1942 Walter A. CARR and Al Thiel, Petitioners, v. Lynn BRASHER, Respondent.
• Court: Texas Supreme Court

Page 567

776 S.W.2d 567

16 Media L. Rep. 1942

Walter A. CARR and Al Thiel, Petitioners, v. Lynn BRASHER, Respondent.

No. C-7248.

Supreme Court of Texas.

May 10, 1989.

Rehearing Denied June 21, 1989.

Mithoff & Jacks, Richard Warren Mithoff, Tommy Jacks, Scott Rothenberg, Houston, for Carr.

Craig Smyser, Paul E. Stallings, Houston, for Thiel.

Beatrice Maldenka-Fowler, Houston, for respondent.

GONZALEZ, Justice.

This is a defamation action brought by a public figure. Lynn Brasher, former mayor of the City of South Houston, Texas, sued the victorious candidate, Al Thiel, alleging that Thiel had libeled him in the course of the campaign in a series of campaign brochures authored by the second defendant, Walter Carr. The court of appeals reversed the trial court's summary judgment in favor of the defendants in part on the basis that the defendants had failed to establish the absence of malice as a matter of law and remanded the cause to the trial court. 743 S.W.2d 674. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

In early 1985, Brasher, the incumbent mayor, was embroiled in an intense campaign for reelection. During the campaign, Thiel printed and published four campaign brochures. These brochures, which were written by Carr, were highly critical of Brasher and his administration. On April 6, 1985, Brasher lost his bid for reelection and Thiel was elected mayor. Several months later, Brasher filed this lawsuit alleging that Carr and Thiel published libelous statements in the four brochures which were mailed to every voter in South Houston. The brightly colored brochures criticized and ridiculed Brasher and his administration through the use of pictures, political cartoons and statements, such as:

The mayor said no tax raise? Bologna! What's wrong with City Hall?

Here's what kind of 'management' he's brought to City Government.

Brasher--you better hurry. You only have four months left to ruin us before the April Election.

On April 6, 1985, we have a choice. Continue as a 'banana republic' with a police state mentality or vote your conscience and throw the rascal and his puppets out.

The bottom line is that this public servant has no administrative ability, is totally inept, and makes up for his shortcomings and incompetence by uttering loud strident vulgarities.

Let us see if cronyism and more is involved.

One brochure stated that Brasher paid thousands of dollars with general fund checks of the City of South Houston to his "personal bookkeeper." Another brochure alleged "payoffs" were made to Brasher's "cohorts" on a grass mowing contract.

Carr and Thiel filed separate motions for summary judgment asserting, among other things, that:

(1) The statements contained in the brochures are not libelous as a matter of law;

(2) The statements are not actionable because they are either opinions or true statements of fact;

(3) Brasher is a public figure, and as a matter of law, no malice existed to support recovery for libel.

Carr, in support of his motion for summary judgment, introduced summary judgment evidence consisting of his deposition, Brasher's answers to interrogatories propounded by Carr and Thiel, and his affidavit in which he stated that:

(a) he was an attorney in Texas since 1959;

(b) he served as municipal court judge of the City of South Houston for approximately 20 years;

(c) the statements made the basis of Brasher's complaints are statements of opinion;

(d) any statements of fact contained therein are true; and

(e) he did not have any serious doubts about the truth of the statements.

In his deposition, Carr identified sources of the alleged statements of fact made in the brochures.

Thiel, in support of his motion for summary judgment, introduced summary judgment evidence consisting of his deposition and affidavit in which he stated that he:

(a) was elected mayor of South Houston in April 1985;

(b) had been in the printing business for twenty years;

(c) on many occasions, had printed material for Carr;

(d) did not edit the material or otherwise alter it but merely reproduced what was submitted by Carr; ¹ and

(e) did not have any doubts about the truth of the statements.

He further stated that:

(f) the statements Brasher complains about are statements of opinion; and

(g) the other statements in the newsletters are true statements of fact.

Brasher filed a response to the defendants' motions for summary judgment and charged that the defendants had accused him of various things which, if true, would be official misconduct and that the defendants had manipulated "untruths, part truths, omission, juxtaposition and innuendo," to damage his good reputation.

The trial court granted summary judgment for the defendants without specifying the ground or grounds on which it relied. The court of appeals held that summary judgment could not be affirmed on any of the grounds asserted by the defendants. Particularly, the court of appeals, relying on this court's decisions in Bessent v. Times-Herald Printing Co., 709 S.W.2d 635 (Tex.1986) and Beaumont Enterprise & Journal v. Smith, 687 S.W.2d 729 (Tex.1985), held that the summary judgment proof of Carr and Thiel did not negate actual malice, one of the elements of Brasher's cause of action, as a matter of law. Thus, the court of appeals reversed the judgment of the trial court and remanded the cause to the trial court for trial on the merits. We must analyze this case in light of our decision today in Casso v. Brand, 776 S.W.2d 551 (Tex.1989).

When a trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. See Borg-Warner Acceptance Corp. v. C.I.T. Corp., 679 S.W.2d 140, 142 (Tex.App.--Amarillo 1984, writ ref'd n.r.e.). We will now consider whether any of the grounds asserted by Carr and Thiel support the summary judgment.

Not Libelous as a Matter of Law

Carr and Thiel contend that the statements contained in the brochures cannot be libelous as a matter of law. To sustain a defamation cause of action, a public official or public figure must prove that the defendant (1) published a statement; (2) that was defamatory concerning the public official or public figure; and (3) that the false statement was made with actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964); Casso, 776 S.W.2d at 555, Channel 4, KGBT v. Briggs, 759 S.W.2d 939, 941 (Tex.1988). Whether words are capable of the defamatory meaning the plaintiff attributes to them is a question of law for the court. Musser v. Smith Protective Serv., Inc., 723 S.W.2d 653, 654-55 (Tex.1987).

In Musser, Smith, the owner of a security and protective firm, wrote a letter to a former client hoping to reattract that former client's business. The letter noted that Musser was a former employee and competitor of Smith and read: "When Mr. Musser left us, he was able, as so many of our ex-employees have in the past, to relieve us of certain of our polygraph accounts." Musser brought a libel action against Smith based on the statements contained in the letter. We concluded the letter was not defamatory as a matter of law. Id. at 655. In reaching this conclusion, we stated that allegedly libelous statements must be construed as a whole, in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement. Only when the court determines the language to be ambiguous or of doubtful import should a jury be permitted to determine the statement's meaning and the effect the statement has on the ordinary reader. Id.; Denton Publishing Co. v. Boyd, 460 S.W.2d 881, 884 (Tex.1970).

In the present case, some of the statements contained in the brochures are not capable of defamatory meaning. Others are ambiguous or of doubtful import. Still other statements in the brochures are nothing more than constitutionally protected political speech. However, we need not decide this issue as we dispose of the cause on other grounds.

Fact or Opinion

Carr and Thiel next contend that the statements contained in the brochures are constitutionally protected expressions of opinion. All assertions of opinion are protected by the first amendment of the United States Constitution and article I, section 8 of the Texas Constitution. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789 (1974); O'Quinn v. State Bar, 763 S.W.2d 397, 402 (Tex.1988); El Paso Times, Inc. v. Kerr, 706 S.W.2d 797, 798 (Tex.App.--El Paso 1986, writ ref'd n.r.e.), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 761 (1987).

The core values of the first amendment reflect a "recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern." Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 879, 99 L.Ed.2d 41 (1988). In Gertz, the Supreme Court stated:

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited robust, and wide-open debate on public issues."

Gertz, 418 U.S. at 339-40, 94 S.Ct. at 3006-07 (quoting New York Times, 376 U.S. at 270, 84 S.Ct. at 720). By this statement, Gertz elevated to constitutional principle the distinction between fact and opinion. Ollman v. Evans, 750 F.2d 970, 975 (D.C.Cir.1984). Thus, whether the publication is a protected expression of opinion or an actionable statement of fact is a question of law for the court. Since the United States Supreme Court had failed to provide guidance as to the...