Freedom Communications, Inc. v. Coronado
| Decision Date | 14 August 2009 |
| Docket Number | No. 13-08-00628-CV.,13-08-00628-CV. |
| Citation | 296 S.W.3d 790 |
| Parties | FREEDOM COMMUNICATIONS, INC. d/b/a the Brownsville Herald and the Valley Morning Star, Appellant, v. Juan Antonio CORONADO, et al., Appellees. |
| Court | Texas Court of Appeals |
Brian G. Janis, Brownsville, John A. Bussian, III, Raleigh, NC, Christina Crozier, Jeffery T. Nobles, Haynes & Boone, Houston, for appellant.
Marc G. Rosenthal, Rosenthal & Watson, Charles L. Levy, Austin, for appellees.
Before Chief Justice VALDEZ and Justices GARZA and VELA.
In this interlocutory appeal, appellant, Freedom Communications, Inc. d/b/a the Brownsville Herald and the Valley Morning Star ("Freedom"), challenges the trial court's denial of its motion for summary judgment. Freedom, a newspaper publisher, was sued by appellees, Juan Antonio Coronado, Francisco Solis Ramirez, Roberto Rivera, III, and Ruben Contreras, for defamation and invasion of privacy arising out of political advertisements printed in Freedom's newspapers in February and March of 2008. On appeal, Freedom argues that the trial court erred by denying its motion for summary judgment because: (1) the fair report privilege, as provided at common law and by statute, bars the appellees' suit; (2) the advertisements at issue are substantially true; and (3) the appellees cannot establish the elements of invasion of privacy. We affirm.
This case concerns a full-page newspaper advertisement taken out by the campaign of Peter Zavaletta, a candidate for District Attorney of Cameron County, Texas, in 2008. Different versions of the advertisement appeared in two newspapers published by Freedom—the Brownsville Herald and the Valley Morning Star—on the days leading up to the Texas Democratic primary election on March 4, 2008.
The advertisement, first printed on February 26, 2008 in both the Herald and the Morning Star, was prepared by an advertising agency hired by Zavaletta, and was intended to criticize the record of the incumbent District Attorney, Armando Villalobos. The advertisement stated in large type on the top of the page that "`ARMANDO VILLALOBOS IS AGAINST OUR CHILDREN'" (emphasis in original). The left half of the page contained a chart entitled "Cases Involving Children (2007)" which consisted of five columns and 103 rows of data purportedly detailing the disposition of child-related cases by the Cameron County District Attorney's office in 2007. The chart included the following typical entries:
The right half of the advertisement contained, in part, the following text:
The District Attorney must always protect those who are unable to protect themselves, and always stand up for the weak, the defenseless, and for those with no voice.
As these records from 2007 only establish, Armando Villalobos has invariably stood against children who have been sexually abused, sexually assaulted, or physically injured, and stood with those who would commit such heinous crimes.
Armando Villalobos' record proves he is morally unfit for public office.
. . . .
As your District Attorney, my team and I will aggressively prosecute these cases and insist that the convicted be incarcerated.
(Emphases in original.)
A second version of the advertisement ran in the Herald on February 29, 2008. This version included only the initials of those individuals listed in the chart, such as the appellees, whose cases were declined at intake by the District Attorney's office. This second version also included a table summarizing the information provided in the chart:
ARMANDO VILLALOBOS' RECORD ON CHILDREN (2007)
DISPOSITION
Declined at Intake 77
Deferred Adjudication 17
Sent to Pretrial Diversion and Dismissed 2
Dismissed 4
Acquitted by Jury 1
Probation 1
Plea Bargained to Public Lewdness 1
Incarcerations [1]
TOTAL AMOUNT OF CASES 103
(Emphasis in original.) Below the summary table was a sentence further distilling the information provided in the chart to its essence: "In 103 cases involving crimes against children, Armando Villalobos couldn't even send one defendant to prison!" (Emphasis in original.) This version of the advertisement ran again in the newspapers on March 2, 3, and 4.2
On March 18, 2008, Coronado and Ramirez filed suit against Freedom, Zavaletta, and Yolanda De Leon, a board member of the Cameron County Children's Advocacy Center ("CCCAC"), asserting causes of action for invasion of privacy by disclosure, and defamation. An amended petition was later filed on September 23, 2008, adding Rivera and Contreras as plaintiffs and requesting exemplary damages.3 The petitions specifically alleged that the advertisements contained false and defamatory statements of fact about the appellees, that the defendants acted negligently and maliciously, and that the appellees suffered injury as a result.
The petitions noted that the information contained in the chart that appeared in the advertisements was excerpted from a originally prepared by the District Attorney's office. According to the plaintiffs, De Leon obtained the report from the District Attorney's office in her capacity as a CCCAC board member, and she then provided the report to the Zavaletta campaign for use in the advertisement.4 The plaintiffs contended in their petition that the information provided in the report
is, pursuant to the laws of the State of Texas, strictly confidential, and is not to be published for general or public information and every report (and the information set forth in such report) remains confidential when it is transmitted to the CCCAC pursuant to the laws of the State of Texas, including Texas Family Code section 264.408.[5]
Freedom filed a motion for traditional summary judgment on April 11, 2008, arguing that it is entitled to judgment as a matter of law on all of the appellees' claims because, among other reasons: (1) the advertisements are protected by the common law and statutory fair report privilege; (2) the advertisements do not, as a matter of law, constitute an actionable public disclosure of private facts concerning appellees; and (3) the advertisements do not, as a matter of law, constitute an actionable defamation because they are "true or substantially true."6 Accompanying Freedom's motion were affidavits by Juan Avila, an employee of the Herald, and Maribel Villarreal, an employee of the Morning Star. In their affidavits, both Avila and Villarreal stated that Zavaletta's advertising agency provided the Case Disposition Report to the respective newspapers in order to substantiate the factual allegations made in the advertisements. Avila further stated that:
Neither I nor anyone employed by The Brownsville Herald had knowledge of any inaccuracies in the political ads prior to the publication of the political advertisements. Neither I nor anyone employed by The Brownsville Herald had any reason to doubt the accuracy of any factual statements contained in the political ads.
Villarreal made a similar statement in her affidavit with respect to herself and employees of the Morning Star.
Attached to the affidavits were copies of the Case Disposition Report, which bore the name, letterhead, and seal of the District Attorney's office. It is undisputed that the information in the Case Disposition Report was used to compile the chart that appeared in the advertisements. The Case Disposition Report, like the chart in the advertisements, purportedly detailed the names, case numbers, charges, and dispositions of cases involving children in Cameron County in 2007. However, the Case Disposition Report included dozens more entries and provided more detailed information regarding each case as compared to the chart in the advertisements. For example, unlike the chart in the advertisements, the Case Disposition Report included columns entitled "Victim Name," "Jury/No Jury," and "SANE Y/N."7 Further, the report...
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