Freedom Communications, Inc. v. Brand

• Decision Date: 03 August 1995
• Docket Number: 13-94-599-CV,Nos. 13-94-207-C,s. 13-94-207-C
• Citation: 907 S.W.2d 614
• Parties: FREEDOM COMMUNICATIONS, INC. (Formerly Freedom Newspapers, Inc.) d/b/a The Monitor and R. Daniel Cavazos, Appellants, v. Othal E. BRAND, Sr., Appellee.
• Court: Texas Court of Appeals

Page 614

907 S.W.2d 614

FREEDOM COMMUNICATIONS, INC. (Formerly Freedom Newspapers Inc.) d/b/a The Monitor and R. Daniel Cavazos, Appellants, v. Othal E. BRAND, Sr., Appellee.

Nos. 13-94-207-CV, 13-94-599-CV.

Court of Appeals of Texas Corpus Christi.

Aug. 3, 1995.

Rehearing Overruled Sept. 21, 1995.

Lisa D. Powell, Gary L. Gurwitz, Rex N. Leach, Atlas & Hall, McAllen, John A. Bussian, III, Durham, Jeffery T. Nobles, Haynes and Boone, L.L.P., Houston, for appellants.

R.W. Armstrong, R.W. Armstrong & Associates, Brownsville, Brian Turner, Austin, John L. Barnes, Houston, for appellee.

Before FEDERICO G. HINOJOSA, Jr., CHAVEZ and RODRIGUEZ, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

Freedom Communications, Inc. publishes The Monitor, a daily newspaper in McAllen, Texas. Othal E. Brand, Sr., the Mayor of McAllen, sued the newspaper for libel allegedly ensuing from a column written by the newspaper's editor, R. Daniel Cavazos. Cavazos wrote five editorials which appeared in The Monitor between June 7, 1992 and April 11, 1993. Brand alleged generally that the editorials constituted a personal and malicious attack on his character and impliedly accused him of criminal conduct and dishonesty in office. Specifically, Brand alleged that one editorial implied that Brand engaged in the same conduct as George Parr, a South Texas politician who was convicted of criminal acts.

Appellants moved for summary judgment on January 26, 1994. The trial court denied the motion on March 23, 1994, and appellants perfected interlocutory appeal Case No. 13-94-207-CV. On December 22, 1994, we affirmed the trial court's ruling and subsequently overruled appellants' motion for rehearing.

On June 7, 1994, appellants filed a second "Defendants' Motion for Summary Judgment." The trial court denied this second motion, and appellants perfected interlocutory appeal Case No. 13-94-599-CV.

The parties, in a joint motion, asked us to vacate our judgment in Case No. 13-94-207-CV and requested that we consolidate Case No. 13-94-207-CV with Case No. 13-94-599-CV. On March 2, 1995, we granted the parties' joint motion. We withdrew our opinion and vacated our judgment in Case No. 13-94-207-CV. We also consolidated Case No. 13-94-207-CV with Case No. 19-94-599-CV. We will address each appeal separately.

Interlocutory Appeals

Under Texas procedure, appeals are allowed only from final orders or judgments. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex.1992); North East Ind. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). Unless a statute specifically authorizes an interlocutory appeal, Texas appellate courts have jurisdiction only over final judgments. Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex.1985) (orig. proceeding); Aldridge, 400 S.W.2d at 895. Section 51.014(6) of the Texas Civil Practice and Remedies Code specifically allows appeal of an interlocutory order that, "denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article 1, Section 8, of the Texas Constitution." TEX.CIV.PRAC. & REM.CODE § 51.014(6) (Vernon Supp.1995). We conclude that we have jurisdiction to review both appeals.

Standard of Review

The standards for reviewing a motion for summary judgment are well established:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

Upon appeal of a summary judgment, the question is not whether the summary judgment proof raises a fact issue, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more of the essential elements of plaintiff's cause of action. Munoz v. Gulf Oil Co., 693 S.W.2d 372, 373 (Tex.1984); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

A defendant who moves for summary judgment must show that the plaintiff has no cause of action. A defendant may meet this burden by either 1) disproving at least one essential element of each theory of recovery, or 2) conclusively proving all elements of an affirmative defense. Mitchell v. City of Dallas, 855 S.W.2d 741, 748 (Tex.App.--Dallas 1993), aff'd, 870 S.W.2d 21 (Tex.1994). If the defendant is the movant, and he submits summary judgment evidence disproving at least one element of the plaintiff's case, then summary judgment should be granted. Tirres v. El Paso Sand Products, Inc., 808 S.W.2d 672, 674 (Tex.App.--El Paso 1991, writ denied); Bradley v. Quality Service Tank Lines, 659 S.W.2d 33, 34 (Tex.1983).

The scope of review and appeal from summary judgment is limited. Issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal. TEX.R.CIV.P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

The motion for summary judgment shall state the specific grounds on which judgment is sought, and a summary judgment may not be granted on grounds which are not raised by the movant in his motion. TEX.R.CIV.P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex.1993). A motion for summary judgment must stand or fall on the grounds expressed therein. McConnell, 858 S.W.2d at 341. In determining whether grounds are expressly presented, reliance may not be placed on briefs or summary judgment evidence. Id.

Summary judgments must stand or fall on their own merits. The non-movant's failure to except or respond cannot supply by default the grounds for summary judgment or the summary judgment proof necessary to establish the movant's entitlement to summary judgment. Id. at 342; Clear Creek, 589 S.W.2d at 678. Even if the nonmovant fails to except or respond, if the grounds for summary judgment are not expressly presented in the motion for summary judgment itself, the motion is legally insufficient as a matter of law. McConnell, 858 S.W.2d at 342.

Case No. 13-94-207-CV

By their first point of error, appellants complain that the trial court erred by denying their first motion for summary judgment. By their second point of error, appellants complain that the trial court erred by failing to rule that the statements made by appellants are protected by the First Amendment to the United States Constitution. By their third point of error, appellants complain that the trial court erred by failing to rule that the statements made by appellants are protected by Article 1, Section 8 of the Texas Constitution.

Appellants' first motion for summary judgment states, in relevant part, as follows:

I.

The summary judgment record properly before this Court makes it clear that the language challenged by the plaintiff, a public official, (See attached Exhibit "A") in the editorial published by the FREEDOM DEFENDANTS carries absolute protection from liability under the First Amendment and the Texas Constitution and is not actionable as a matter of law.

II.

Therefore, the FREEDOM DEFENDANTS are entitled to summary judgment on all of MAYOR BRAND's claims, as more fully set forth in the Defendants' supporting memorandum of law.

WHEREFORE, PREMISES CONSIDERED, the FREEDOM DEFENDANTS respectfully request that this motion be set for hearing and, that upon consideration of this Motion for Summary Judgment that this Motion be, in all things, GRANTED, and that judgment be entered in favor of the FREEDOM DEFENDANTS, and that the FREEDOM DEFENDANTS be granted such other and further relief, legal or equitable, special or general, to which they may be entitled.

The sole specific ground presented by the motion asserts "the language challenged by the plaintiff, a public official ... carries absolute protection from liability under the First Amendment and the Texas Constitution and is not actionable as a matter of law." Attached to the motion is a City of McAllen ordinance which summarizes election results to demonstrate that the plaintiff is the Mayor of McAllen and thus a public figure.

In McConnell, Southside Independent School District moved for summary judgment, stating in its motion only that there were "no genuine issues as to any material facts and that [they] are entitled to a judgment dismissing Plaintiff's amended complaint as a matter of law." Specific grounds were expressly presented and urged in the twelve page brief in support of the motion. McConnell filed a written exception to the motion, arguing that the motion was defective in that it failed to present any grounds. The trial court overruled the exception and rendered summary judgment for the school district. The court of appeals affirmed, holding that Rule 166a allows a summary judgment movant to set forth the specific grounds for summary judgment in a brief accompanying the motion. McConnell v. Southside Ind. Sch. Dist., 814 S.W.2d 247, 248 (Tex.App.--Austin 1991).

The Texas Supreme Court reversed the Austin Court of Appeals. The supreme court held that specific grounds for summary judgment must be expressly presented in the motion for summary judgment and not in a brief filed contemporaneously with the motion or in the summary judgment evidence. McConnell, 858 S.W.2d at 341. The supreme court stated:

If this court intended Rule 166a(c) to permit a summary judgment movant to place, or possibly hide, grounds...