Hailey v. KTBS, Inc.

• Decision Date: 25 October 1996
• Docket Number: No. 06-96-00020-CV,06-96-00020-CV
• Citation: 935 S.W.2d 857
• Parties: Jerry HAILEY, Appellant, v. KTBS, INC. and Advance Magazine Publishers, Inc. d/b/a Gentleman's Quarterly Magazine, Appellees.
• Court: Texas Court of Appeals

Page 857

935 S.W.2d 857

Jerry HAILEY, Appellant, v. KTBS, INC. and Advance Magazine Publishers, Inc. d/b/a

Gentleman's Quarterly Magazine, Appellees.

No. 06-96-00020-CV.

Court of Appeals of Texas,

Texarkana.

Argued Oct. 1, 1996.

Decided Oct. 25, 1996.

Barry A. Bryant, Texarkana, for appellant.

Thomas Leatherbury, William H. Church, Jr., Vinson & Elkins, David C. Myers, Jackson & Walker, Dallas, James N. Haltom, Patton, Haltom, Roberts, Texarkana, for appellees.

Before CORNELIUS, C.J., and GRANT and STARR, JJ.

OPINION

STARR, Justice.

This is a defamation case. The trial court granted summary judgment to appellee KTBS, Inc. (a television broadcaster) and appellee Advance Magazine Publishers (publisher of Gentlemen's Quarterly Magazine ). Appellant now appeals from the summary judgment upon the issue of defamation, as well as the denial of relief to appellant grounded upon intentional infliction of emotional distress.

On January 26, 1992, Gerri Faye Butts and her two daughters, ages eleven and three, were murdered in their home in Atlanta, Texas. Kevin Hailey, appellant's son, was arrested in connection with the murders, but was not indicted by a grand jury that was convened. During the investigation of the murders, the syndicated national television show "A Current Affair" produced two reports on the investigation, which were broadcast on appellee station KTBS, Inc. In addition, Gentleman's Quarterly Magazine, operated by appellee Advance Magazine Publishers, Inc., published a story about the investigation written by Melinda Henneberger, a free-lance reporter.

Jerry Hailey brought this suit alleging that the KTBS broadcasts and the Gentleman's Quarterly article made false and defamatory statements about him. The suit complains of the following statements from the broadcasts of "A Current Affair":

The loved ones of Gerri Faye Butts and her two daughters cry out not only in grief, but in a scream for what they say is "junk justice" for this man, Kevin Hailey.

....

William Parker is a retired Dallas cop and was brought in as a Special Investigator for the Atlanta Police Department in a crime which friends of the victims alleged reeked of a fix because Kevin Hailey's father, Jerry Hailey, was a Deputy Sheriff at the time.

Did I have reason to believe that Kevin Hailey's father intervened or became involved or effected [sic] the investigation of this case and I said yes I do have a reason.

....

Then they report that Hailey's father, the Deputy Sheriff, refused to let his son take a lie detector test.

....

Kevin Hailey may have been cleared, but his father wasn't. He was fired as Deputy Sheriff for interfering in the investigation.

....

Find out why they let the Sheriff's son off the hook.

....

Parents come to their children's rescue for many of life's mistakes but in the case of Kevin Hailey his mistake may have been murder. And, his father's rescue got him fired. Kevin was the prime suspect in a triple murder and his father was a man of law, a local sheriff. Steve Dunleavy investigates how a father's badge may have saved Hailey from the life behind bars when he was let off the hook.

The suit complains of the following statements from the Gentleman's Quarterly article:

But the people of Atlanta seem doubly disturbed by their near certainty that no son of a Cass County deputy will ever go on trial for murder, no matter how compelling the evidence.

... In a state notorious for overzealous prosecution, one local observer says the D.A.'s tender treatment of the deputy's son "is what we call serving him up a dish of home cookin'."

....

When Kevin was called in for questioning that evening, he agreed to take a lie-detector test too, until his father quickly vetoed the idea.

....

When word got out that Kevin was the leading suspect, Jerry Hailey threatened to sue the city, and town officials asked Scott to stop the investigation.

....

In the weeks following the hearing, Sheriff Paul Boone fired Jerry Hailey, saying his deputy had interfered with the murder investigation.

This suit was filed May 11, 1993. On July 20, 1995, after extensive discovery by both sides, KTBS and Gentleman's Quarterly moved for summary judgment on the following grounds: (1) the statements complained of were either true statements of fact or were statements of opinion; (2) the statements were privileged under TEX.CIV.PRAC. & REM.CODE ANN. § 73.002 (Vernon 1986) and therefore not valid grounds for a libel action; (3) Hailey was a public figure and had failed to offer any evidence of actual malice on the part of defendants; and (4) Hailey had failed to offer any evidence to support a cause of action for intentional infliction of emotional distress. KTBS also argued that the claim against it was barred by the wire service defense. On September 19, 1995, the court granted summary judgment to both defendants.

In granting summary judgment in this case the trial judge did not specify or limit his ruling to any one or more of the particular grounds urged. To the contrary, the written order grants the summary judgment on all grounds urged in the motions. The trial judge sent a letter to the parties accompanying his summary judgment order, outlining some of the grounds on which he based his ruling. Only the written order, itself, and not the letter, is controlling on appeal. Martin v. Southwestern Elec. Power Co., 860 S.W.2d 197, 199 (Tex.App.--Texarkana 1993, writ denied). We must therefore affirm the summary judgment if any of the theories advanced in the motions is meritorious. See State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

Appellees contend the summary judgments should be affirmed because appellant failed to challenge several of the grounds urged in the motions for summary judgment. Briefing and reply points have been presented to us asserting that appellant has failed to meet his burden to overcome each and all of the four grounds upon which the motions for summary judgment were granted.

If appellant Jerry Hailey was a public official at the time of publication of the alleged defamations, he cannot recover in the absence of clear and convincing evidence that appellees made false and defamatory statements about him with actual malice. Casso v. Brand, 776 S.W.2d 551, 554 (Tex.1989). No evidence of malice was presented as a part of the summary judgment proof. Indeed, at oral arguments in this case counsel for appellant informed the court that malice was not shown. We must make a decision, therefore, as to whether appellant Hailey was a "public official" within the meaning of Casso, supra.

In the case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court held that the First and Fourteenth Amendments to the United States Constitution require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to the performance of official duties without clear and convincing proof that the statement was made with actual malice. In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), the Supreme Court noted that in the New York Times case there was no occasion "to determine how far down into the lower ranks of government employees the 'public official' designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included." In Rosenblatt, the Court stated at 383 U.S. at 85, 86 S.Ct. at 675-76:

There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the "public official" designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.

Rosenblatt went on to hold that "it is for the trial judge in the first instance to determine whether the proofs show" that the individual is to be regarded as a "public official."

The inquiry concerning whether a plaintiff in a defamation suit is a "public official" was intensified by the case of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In Gertz, the United States Supreme Court held that it is not constitutionally required that courts apply the New York Times rule to defamation actions involving private individuals, even when such individuals were discussed because of matters of public concern. The distinction between public officials and private individuals became more sharply focused.

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), the Supreme Court of Texas applied the New York Times rule to a summary judgment case, acknowledging Gertz, supra. These two Texas cases made summary judgments almost unobtainable in defamation cases. The summary judgment movant's burden of showing the absence of malice was unattainable. However, in Casso, supra, the Texas Supreme Court overruled Bessent and Beaumont Enterprise [as to their affidavit requirements] but declined to modify Texas summary judgment standards in order to establish a different summary judgment procedure for public figure defamation cases. The holding of the court was stated thusly, at page 554:

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.

Accordingly, under the decisions of both the United States Supreme Court and the...