Casso v. Brand, C-7246

• Citation: 776 S.W.2d 551
• Decision Date: 10 May 1989
• Docket Number: No. C-7246,C-7246
• Parties: 16 Media L. Rep. 1929 Ramiro CASSO, M.D., Petitioner, v. Othal E. BRAND, Respondent.
• Court: Supreme Court of Texas

Page 551

776 S.W.2d 551

16 Media L. Rep. 1929

Ramiro CASSO, M.D., Petitioner, v. Othal E. BRAND, Respondent.

No. C-7246.

Supreme Court of Texas.

May 10, 1989.

Rehearing Denied Oct. 11, 1989.

David Casso and Roger Reed, McAllen, for petitioner.

Donald W. Allee, McAllen, for respondent.

OPINION

PHILLIPS, Chief Justice.

This case involves the showing a defendant must make to obtain a summary judgment in Texas courts in a defamation action brought by a public official or public figure. The court of appeals reversed the trial court's summary judgment in favor of defendant and remanded for a trial on the merits, holding that defendant had failed to establish an absence of actual malice as a matter of law. 742 S.W.2d 726. While the decision below correctly applied existing Texas case law, we overrule two prior decisions of this court to hold that, as to some of the allegedly defamatory statements in issue, defendant did negate actual malice as a matter of law. We affirm the judgment of the court of appeals in part and reverse in part, remanding a portion of this cause to the trial court for further proceedings.

Facts

Othal E. Brand brought this action based on statements allegedly made by Dr. Ramiro Casso during and after their political contest for Mayor of McAllen. Brand, the incumbent, defeated Casso on May 9, 1981, and brought this suit on July 23 of the same year.

Brand's original petition complained that he was injured by false and defamatory statements in two of Casso's radio campaign advertisements. Both advertisements focused on Casso's allegations that Brand knew of and condoned certain alleged acts of brutality by members of the McAllen Police Department. These allegations were based on testimony given in a pending federal lawsuit, Robles v. City of McAllen, No. CA B-81-58 (S.D.Tex. filed 1981), by James Borman, then senior captain of the McAllen Police Department.

In particular, Brand alleged that the following statements from the Casso ads were false and defamatory:

Brand ordered Police Captain Jim Borman, who testified this week before said judge, that Brand himself ordered him to destroy the tapes. This shows clearly that Mayor Brand gave his approval to these acts of brutality, and later he intended to destroy the evidence that indicts and convicts him.

. . . . .

[R]emember we cannot leave in power this barbarian Brand that allowed the brutalities and beatings of our children in the Police Department, when he himself, Brand, knew what was going on.

After the lawsuit was filed, The Nation magazine in its September 26, 1981, issue published several statements attributed to Casso regarding Brand. Brand timely amended his pleadings to complain of those statements as well. Specifically, he alleged that this statement was false and defamatory:

[A]ccording to Casso, "Mr. Brand tried to make a deal which would have shut the hospital doors to our city's poor, without even notifying the citizens of the plan. Apparently, he hadn't bothered to look at the city charter."

Furthermore, he complained about Casso's alleged statement that Brand ruled McAllen like an "ayatollah" and Casso's alleged characterization of the Brand administration as an "iron fist."

History of the Litigation

In February, 1986, Casso moved for summary judgment, alleging that all the statements in issue were either true or substantially true, were absolutely or conditionally privileged under Article 5432 of the Texas Revised Civil Statutes, ¹ constituted fair comment, or were made without malice. In support of this motion, Casso attached his own affidavit, together with a transcript of Captain Borman's entire testimony in the Robles case. Brand filed a response and supporting brief, but no summary judgment proof, in response to the motion.

The trial court granted Casso's motion in its entirety. The court of appeals, agreeing with Brand that Casso's summary judgment proof did not negate one or more elements of Brand's cause of action as a matter of law, reversed the judgment of the trial court and remanded the cause. We granted application for writ of error to examine our standards for granting summary judgment in public figure defamation cases.

Fact vs. Opinion

Casso initially argues in this court that the statements in issue are mere opinions, and thus not defamatory. He relies on Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805 (1974), where the Supreme Court explained:

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.

We do not decide this point, however, because Casso has failed to preserve this issue for our determination. Nothing in his motion for summary judgment, or in Brand's reply, suggested to the trial court that the statements in question were mere opinions, and therefore, not actionable. Rule 166a of the Texas Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if ... the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response." (Emphasis added.) Thus, all theories in support of a summary judgment, as well as all opposing issues, must be presented in writing to the court at the hearing. As this court stated in Chessher v. Southwestern Bell Telephone Co., 658 S.W.2d 563, 564 (Tex.1983): "It is axiomatic that one may not be granted judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding."

In his motion for summary judgment, Casso did assert that the statements were absolutely or conditionally privileged, but he limited this claim by a specific reference to Tex.Rev.Civ.Stat. art. 5432 (repealed 1985). That statute, now codified as Section 73.002 of the Civil Practice and Remedies Code, applies only to "fair, true and impartial" accounts of various official proceedings or to the "reasonable and fair comment on or criticism of" an official act by a newspaper or other periodical. The statute simply has no applicability to a private defendant like Casso. By waiting until his application for writ of error in this court, Casso waived this theory. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex.1979).

Status of the Parties

Because we must assume, for purposes of this review, that the statements in issue were capable of being defamatory, we must at the outset determine to what degree, if any, the United States Constitution or our common law precludes our state from applying its defamation laws to Casso's alleged statements. We hold that Brand, as a public official, cannot recover unless he proves by clear and convincing evidence that Casso made false and defamatory statements about him with actual malice.

The Supreme Court has held that public officials and public figures must meet the clear and convincing burden when suing publishers or media defendants for defamation in order to preserve "uninhibited, robust, and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686, 701 (1964). As the Court explained in Gertz:

The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.

418 U.S. at 342, 94 S.Ct. at 3008, 41 L.Ed.2d at 806-07.

The Supreme Court has yet to decide, however, whether this standard is also constitutionally required when public officials like Brand or public figures sue private individuals like Casso for defamation. Hutchinson v. Proxmire, 443 U.S. 111, 133-34 n. 16, 99 S.Ct. 2675, 2687 n. 16, 61 L.Ed.2d 411, 430 n. 16 (1979). The appropriate standard is therefore left to the states for determination. See Gertz, 418 U.S. at 345-48, 94 S.Ct. at 3010-11, 41 L.Ed.2d 807-10. Like the court of appeals, we have no hesitancy in requiring Brand, under Texas common law, to meet the New York Times burden of proof. 742 S.W.2d at 728. Brand himself has not questioned this standard, and we are reluctant to afford greater constitutional protection to members of the print and broadcast media than to ordinary citizens. The First Amendment affords equal dignity to freedom of speech and freedom of the press, see Davis v. Schuchat, 510 F.2d 731, 734 n. 3 (D.C.Cir.1975), and the "[i]nherent worth of ... speech in terms of its capacity for informing the public does not depend upon the identity of its source." First Nat'l Bank v. Bellotti, 435 U.S. 765, 777, 98 S.Ct. 1407, 1416, 55 L.Ed.2d 707, 718 (1978). We, thus, join those states which have extended the New York Times standard to defamation suits by public officials and public figures against non-media defendants. ²

Truth as a Matter of Law

Casso claims that summary judgment was proper because he established the truth of the statements in question as a matter of law. ³ This argument is not persuasive. First, Casso never even claimed, much less proved, that all of the statements in issue were true. His summary judgment affidavit stated only that Captain Borman's testimony established that Brand ordered the destruction of certain tapes regarding police brutality. Casso's proof was absolutely silent about the truth or falsity of the other allegedly defamatory remarks. Moreover, Casso's proof does not even establish the truth of Borman's testimony. That another person has made a statement, even under oath, simply does not establish its truth as a matter of law. ...