Durham v. Cannan Communications, Inc.

• Decision Date: 15 December 1982
• Docket Number: No. 07-82-0235-CV,07-82-0235-CV
• Citation: Durham v. Cannan Communications, Inc., 645 S.W.2d 845 (Tex. App. 1982)
• Parties: James D. DURHAM, Jr., Appellant, v. CANNAN COMMUNICATIONS, INC., Appellee.
• Court: Texas Court of Appeals

Page 845

645 S.W.2d 845

James D. DURHAM, Jr., Appellant, v.CANNAN COMMUNICATIONS, INC., Appellee.

No. 07-82-0235-CV.

Court of Appeals of Texas Amarillo.

Dec. 15, 1982.

Rehearing Denied Jan. 10, 1983.

Second Rehearing Denied Feb. 3, 1983.

Wolfram Law Firm, Frederic M. Wolfram, Amarillo, for appellant.

Gibson, Ochsner & Adkins, Joe Harlan, Amarillo, for appellee.

Before DODSON, COUNTISS and BOYD, JJ.

BOYD, Justice.

AppellantJames D. Durham brings this appeal from a summary judgment in favor of appelleeCannan Communications, Inc.Appellant brings eleven grounds of asserted error.For reasons hereinafter set out we reverse the summary judgment and remand the case for further proceedings.

The record reveals that appellant is an attorney at law practicing in the city of Amarillo.The appellee is a corporation owning a television broadcasting station also located in Amarillo.This case involves two broadcasts made on appellee's television station on March 31, 1978.In these broadcasts appellee's newsman reported that after two weeks of personal investigation he had discovered that appellant was connected with a club located just north of Amarillo called the Chicken Ranch, which was used as a front for various activities including orgies and prostitution.In the report the newsman identified his sources for the story as Anna Bryant, owner of the lounge and Eddie Kirkwood, a deputy in the Potter County Sheriff's office.He interviewed both Bryant and Kirkwood on the air and both stated that appellant was involved with the Chicken Ranch.On April 3, 1978 this libel suit was brought by appellant.During pretrial discovery proceedings, appellant deposed, among others, appellee's news director and anchorman Ben Boyett.At numerous times during the deposition, appellant asked Boyett to disclose appellee's sources for the broadcast.While Boyett disclosed the names of those sources who were mentioned in the broadcast he refused to disclose the names of any other sources who may have assisted appellee in its investigations.After a hearing, the trial court refused appellee's motion to compel Boyett to disclose appellee's sources.On the 20th day of April, 1982, the summary judgment in question was rendered on the basis that appellant was a public figure as a matter of law requiring the showing of actual malice on the part of appellee and nothing existed which would raise a fact issue on this question.

Appellant raises eleven points of asserted error.These points of error can be divided into two general areas.First, appellant, in his second point asserts error in denying the motion to compel disclosure of news sources because such answers are discoverable under Tex.R.Civ.P. 186a.Secondly, appellant, in his first and in his third through eleventh points argues error in the granting of the motion for summary judgment.The disposition which we make of points five through eight renders, we think, discussion of the remainder of the points attacking the summary judgment unnecessary.We discuss point two because we think that question relevant to preparation for any trial on the merits.

As stated above, in point two, appellant contends that Rule 186a requires disclosure of certain news sources.This rule states in relevant part:

Any party may take the testimony of any person, including a party, by deposition ... for the purpose of discovery or for use as evidence in the action or for both purposes.Unless otherwise ordered by the court as provided by Rule 186b, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party, including the ... identity and location of persons ... having knowledge of relevant facts.[Emphasis added.]

The trial court is allowed wide latitude in its decision on whether or not to order discovery and its action cannot be set aside unless there is a clear showing of abuse of discretion.Martinez v. Rutledge, 592 S.W.2d 398(Tex.Civ.App.1979, writ ref'd n.r.e.).The question presented by this point is whether the facts show abuse of discretion on the part of the trial court in refusing to order disclosure.

The burden is upon appellant, as the moving party, to both plead and prove relevancy of information sought and a mere conclusion or assertion is not sufficient.Lueg v. Tewell, 572 S.W.2d 97(Tex.Civ.App.--Corpus Christi 1978, no writ history).At the time of the broadcast in question, appellee was considering the broadcast of another story concerning appellant's alleged involvement in a conspiracy to fix beef prices.This other story was never broadcast.At the deposition Boyett was extensively questioned in an effort to obtain the names of any sources who may have played a part in the development and investigation of either story.Boyett did reveal the sources named on the air as a source of the broadcast in question.There is no proof or showing to suggest that appellee's sources and actions in the investigation of the beef price fixing story which was never broadcast had any connection or would shed any light on appellant's actions in developing and broadcasting the Chicken Ranch story.Rule 186a was not intended to permit "fishing excursions."Bryan v. General Electric Credit Corp., 553 S.W.2d 415, 419(Tex.Civ.App.--Houston[1st Dist.]1977, no writ history).Since the question of Boyett was so broad and pertains to sources for stories other than that in question, we cannot say the record reveals an abuse of discretion in the action of the trial court in overruling the motion in question.Appellant's point of error two is overruled.

Appellant groups and argues his points five through eight together and we will likewise consider them together.In these points appellant argues that the trial court erred in determining as a matter of law that appellant was a public official or public figure and, consequently, it applied the wrong legal standard in determining whether or not appellee's motion for summary judgment should be granted.

Under the standard promulgated by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686(1964), a "public official"plaintiff in an action such as this cannot recover damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not."Id. at 280, 84 S.Ct. at 726.The New York Times rule, which previously had been restricted in application to "public officials" was extended to cover "public figures" in Curtis Publishing Company v. Butts and its companion case, Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094(1967).

The basis of appellee's motion for summary judgment, accepted by the trial court, is that appellant was either a "public official" or "public figure" and consequently there could be no recovery unless appellant established by clear and convincing evidence that appellee knowingly broadcast that which it knew to be false or that which it had a strong suspicion was untrue or false or that the broadcasts were made with constitutional malice.It is readily apparent that the initial and crucial question for our decision is whether the trial court correctly classified appellant as a "public official" or "public figure."

I.Public Official

The record shows that about six months before the broadcasts in question appellant was appointed as special counsel for a court of inquiry investigating alleged irregularities in Potter County Fund management.However, the final report of the court of inquiry was returned some two months prior to the broadcasts and at the time of the broadcasts appellant was not a special counsel or on the county payroll.The U.S. Supreme Court has stated that a public official is, among other things, one "who hold [s] governmental office."Gertz v. Welch, 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789(1974)[Emphasis added.]Appellee cites Rosenblatt v. Baer, 383 U.S. 75, 87 n. 14, 86 S.Ct. 669, 676 n. 14, 15 L.Ed.2d 597(1966) for the proposition that a person can still be deemed a public official for the purposes of a defamation suit even if, at the time the offensive statement was made he was no longer serving in his governmental position.While it is true that the Court in Rosenblatt did state that under certain circumstances a person could be deemed a public official even though he no longer held his governmental position at the time that the allegedly defamatory statement was made, we believe even under that case it would be improper to classify appellant as a public official.Rosenblatt concerned statements made by a local newspaper reporter which arguably implied that the plaintiff had mismanaged public funds while he had been in charge of a state-run recreation area.These statements arguably concerned the way in which he conducted his duties while he was an official.In the instant case, the allegedly defamatory statements did not concern the manner in which appellant conducted his official duties as a special prosecutor.Instead, they dealt with his alleged involvement with a house of prostitution.It is true that the courts have recognized a case where a public official is so well-known in his community that the general public automatically associates him with his official position and an express reference to the individual's official capacity is unnecessary and the reference is implied.Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 815(Tex.1976), cert. denied, 429 U.S. 1123, 97 S.Ct. 1160, 51 L.Ed.2d 573.However, we do not believe that the summary judgment evidence would justify such a finding in this case.Since appellant was not a holder of a governmental office at the time of the broadcast in question and...