Hbo v Huckabee

• Decision Date: 27 August 1998
• Citation: 995 S.W.2d 152
• Parties: <!--995 S.W.2d 152 (Tex.App.-Houston 1998) HBO, A DIVISION OF TIME WARNER ENTERTAINMENT COMPANY, L.P., APPELLANT v. DEAN HUCKABEE, APPELLEE NO. 14-96-01528-CV Court of Appeals, Fourteenth District of Texas
• Court: Texas Court of Appeals

Page 152

995 S.W.2d 152 (Tex.App.-Houston[14th.Dist.] 1998)

HBO, A DIVISION OF TIME WARNER ENTERTAINMENT COMPANY, L.P., APPELLANT v DEAN HUCKABEE, APPELLEE

NO. 14-96-01528-CV

Court of Appeals, Fourteenth District of Texas

August 27, 1998

On Appeal from the 127th District Court Harris County, Texas Trial Court Cause No. 93-01166

[Copyrighted Material Omitted]

Before Justices Yates, Amidei, and Edelman.

OPINION

Maurice Amidei, Justice

This appeal arises from a defamation suit brought by Dean Huckabee (Huckabee), appellee, against HBO, a Division of Time Warner Entertainment Company, L.P.(HBO), Lee Grant, Virginia Cotts, Joseph Feury Productions, Inc., and Home Box Office, Inc. The trial court denied the motion for summary judgment filed by appellants.¹ We reverse and render.

I. FACTS

This is a defamation case arising out of a film, Women on Trial, broadcast by HBO in October of 1992. The film was made by Lee Grant and her husband's production company, Joseph Feury Production, Inc. Originally, the film was to be a documentary about divorce in general; however, after Grant and Virginia Cotts, a co-producer and researcher for the project, visited Houston, the focus of the film changed.

Ultimately, the film focused on four stories arising out of Texas courts. Three of the stories dealt with cases in the Houston family courts. The theme of the production was stated in the narration of the film: "When a woman dares to fight for the safety of her child, she is in danger of having that child taken away." The film gave voice to women who believed they were treated unfairly by the courts. Two of those women who appeared in Women on Trial had their cases heard in former Judge Dean Huckabee's court: Sandi Hebert and Ivy Raschke.

The Hebert and Raschke stories were similar. In both cases, the women came to court with allegations of abuse by the fathers of their children. Both women lost custody of their children, and contact with the children was terminated. In telling these stories, the creators and producers relied on interviews with the mothers, support groups, attorneys, child protective service personnel, a reporter, a police officer, a court-appointed psychologist, and appellee. They also reviewed documents related to each case.

After the film aired, appellee filed suit alleging the film was defamatory, unfairly and falsely criticizing his decisions in the Hebert and Raschke cases. Appellant filed a motion for summary judgment, which was denied by the trial court. Appellant then perfected this appeal.

II. STANDARD OF REVIEW

The same standard of review which governs the granting of a summary judgment applies to the denial of a summary judgment. See Harris County v. Ochoa, 881 S.W.2d 884, 886 (Tex. App.--Houston [14th Dist.] 1994, writ denied); Ervin v. James, 874 S.W.2d 713, 715 (Tex. App.--Houston [14th Dist.] 1994, writ denied); see also Oden v. Reader, 935 S.W.2d 470, 474 (Tex. App.--Tyler 1996, no writ);San Antonio Express News v. Dracos, 922 S.W.2d 242, 247 (Tex. App.--San Antonio 1996, no writ); Freedom Communications, Inc. v. Brand, 907 S.W.2d 614, 617 (Tex. App.-- Corpus Christi 1995, no writ). Additionally, the same summary judgment standard applied in other cases is applicable in defamation actions. See Casso v. Brand, 776 S.W.2d 551, 557 (Tex. 1989) (rejecting a more liberal summary judgment standard in public figure defamation cases); see also Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 425 (Tex. App.--Waco 1997, writ denied).

Summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff's theories of recovery or pleads and conclusively establishes each element of an affirmative defense. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997) (citing Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)). When reviewing a summary judgment, the appellate court must take as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor. See Science Spectrum, 941 S.W.2d at 911 (citing Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985)). If the movant's motion and summary judgment proof facially establishes its right to judgment as a matter of law, then the burden shifts to the non-movant. See City of Houston, 589 S.W.2d at 678.

Where, as here, the trial court's order does not specify the grounds relied on for its ruling, the court of appeals will reverse and render judgment if any of the grounds in the motion has merit. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996); State Farm Fire & Cas. Co. v. S. S., 858 S.W.2d 374, 380 (Tex. 1993).

III. SUMMARY JUDGMENT GROUNDS

In this appeal, appellant raises seven points of error alleging it is entitled to summary judgment on the following grounds: (1) the film, Women on Trial, is "core political speech" and cannot be grounds for a defamation claim because the statements contained therein are not objectively verifiable, and further, are protected opinion under the First Amendment of the United States Constitution and article I, section 8 of the Texas Constitution; (2) all statements of fact in the film are true or substantially true, and other statements in the film are protected opinion under the First Amendment of the United States Constitution, article I, section 8 of the Texas Constitution, and section 73.002(2)(b) of the Texas Civil Practice and Remedies Code; (3) the film, Women on Trial, is privileged as a fair and reasonable comment on, or criticism of, an official act of a public official and a matter of public concern under section 73.002(2)(b) of the Texas Civil Practice and Remedies Code; (4) appellee's claim that the film, Women on Trial, injured him because of omissions and editing choices amounts to a claim for false light, which has been rejected by the Texas Supreme Court; (5) appellee was a public official and the summary judgment proof conclusively negated the essential element of actual malice; and (6) the promotional spots do not contain false statements of fact about appellee; rather they are true or are opinion protected under the First Amendment of the United States Constitution, article I, section 8 of the Texas Constitution, and section 73.002(2)(b) of the Texas Civil Practice and Remedies Code.² By these complaints, appellant contends it disproved at least one essential element of appellee's claim or otherwise showed he could not succeed on any theory pled. See Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex. 1975).

A. PUBLIC OFFICIAL AND ACTUAL MALICE

In point of error six, appellant contends the trial court erred in denying its motion for summary judgment because appellee was a public official, and the summary judgment proof established that no statement about appellee was published with actual malice. Appellee claims appellant failed to establish, as a matter of law, that there is no genuine issue of material fact as to whether the statements were published with actual malice.

In New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964), the United States Supreme Court first 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. See also Casso, 776 S.W.2d at 558; Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989) (recognizing the same rule in Texas courts). In the present case, both sides agree that appellee, an elected district Judge, was a public official when the broadcast aired. Accordingly, to merit summary judgment, appellant had to conclusively negate the element of actual malice.

"Actual malice," as that term is used in defamation cases, is a term of art that is separate and distinct from traditional common-law notions of malice. See Casso, 776 S.W.2d at 558; Brady v. Cox Enters., Inc., 782 S.W.2d 272, 276 (Tex App.--Austin 1989, writ denied). It does not include ill will, spite, or evil motive; rather, it is the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 328, 94 S.Ct. 2997, 3001, 41 L.Ed.2d 78 (1974); Gonzales v. Hearst Corp., 930 S.W.2d 275, 277 (Tex. App.--Houston [14th Dist.] 1996, no writ). "Reckless disregard" is defined as a high degree of awareness of probable falsity, and the evidence must show that the defendant in fact entertained serious doubts as to the truth of the publication. See St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968); Casso, 776 S.W.2d at 558. This stringent standard is imposed upon plaintiffs to prevent a chilling effect on the uninhibited debate of public issues. See Ross v. Labatt, 894 S.W.2d 393, 395 (Tex. App.--San Antonio 1994, writ dism'd w.o.j.).

Before 1989, the law was clear that an affidavit of an interested witness, usually the alleged defamer, as to his or her state of mind, even if uncontroverted, was not sufficient to negate actual malice and support a summary judgment. See Bessent v. Times-Herald Printing Co., 709 S.W.2d 635 (Tex. 1986); Beaumont Enterprise & Journal v. Smith, 687 S.W.2d 729 (Tex. 1985). The decisions in Bessent and Beaumont Enterprise made summary judgment virtually impossible to obtain in defamation cases because the movant's burden of showing the absence of malice was unreachable. See Casso, 776 S.W.2d at 557; Hailey v. KTBS, Inc., 935 S.W.2d 857, 860 (Tex. App.--Texarkana 1996, no writ). The supreme court, however, overruled Bessent and Beaumont Enterprise in 1989 when it issued its decision in Casso. 776 S.W.2d at 559.

The Texas summary judgment rule...