McCullough v. Cook

• Decision Date: 22 August 1996
• Docket Number: No. 93-CA-00405-SCT,93-CA-00405-SCT
• Citation: 679 So.2d 627
• Parties: Derwood McCULLOUGH v. Martin M. COOK.
• Court: Mississippi Supreme Court

Page 627

679 So.2d 627

Derwood McCULLOUGH v. Martin M. COOK.

No. 93-CA-00405-SCT.

Supreme Court of Mississippi.

Aug. 22, 1996.

As Corrected Dec. 5, 1996.

Kenneth M. Burns, Okolona, Grady F. Tollison, Jr., E. Farish Percy, Tollison Law Firm, Oxford, for Appellant.

Kenna L. Mansfield, Jr., Wells Marble & Hurst, Jackson, for Appellee.

Before DAN LEE, C.J., and McRAE and SMITH, JJ.

SMITH, Justice, for the Court:

On October 11, 1991, Derwood McCullough filed a libel action against Journal Publishing Company, Martin M. Cook, and Sid Scott in the Circuit Court of Chickasaw County, Second Judicial District. Scott had written an article about a drug bust in Chickasaw County on July 15, 1991. In the article, he alleged that one of the seized vehicles belonged to Derwood McCullough. On April 28, 1992, defendant Cook filed a summary judgment motion, arguing that there was no factual basis for McCullough's allegation that Cook made a libelous statement concerning McCullough. The Circuit Court granted the Summary Judgment motion and entered a final judgment dismissing Cook as a defendant on April 7, 1993. Aggrieved, McCullough appeals to this Court the following issues:

I. Was there a genuine issue of material fact precluding the trial court's granting summary judgment?

II. Did the trial court err in ruling that Cook's statement to Scott was not false?

III. Did the trial court err in ruling that no reasonable jury could find, based on the evidence before the trial court, that McCullough proved by clear and convincing evidence that Cook maliciously made a false and misleading statement about McCullough?

FACTS

Derwood McCullough had served as Chancery Clerk of Chickasaw County for thirty-six years, and held this position during the time that the alleged defamatory statement was printed. The statement at issue appeared in a front page article of the local section of the Northeast Mississippi Daily Journal on July 16, 1991. The article concerned a three month investigation culminating in a drug bust on July 15, 1991, at which time officers arrested five people, including Earl Gladney and his wife Gail, on various counts of distributing marijuana. Law enforcement officers also confiscated four vehicles. The article, written by Sid Scott, stated,

Four vehicles were confiscated during the raid, Sheriff Mack Cook said. One of them, a Ford pickup, is registered to Derwood McCullough, Chickasaw County Chancery Clerk, according to records at the State Tax Commission. The truck registered to McCullough was confiscated from Gladney's mobile home in Van Vleet, Cook said.

The article also stated, "McCullough and Gladney, also known as E.G. Harris, have been linked before on suspected criminal charges. In September they were indicted on criminal fraud charges in Federal court in Oxford.... The charges against them were dismissed ... in February." The headline was "Five arrested in Chickasaw County drug bust" and had a tag line which read "Chancery clerk's truck seized." The article explained that McCullough could not be McCullough filed an action for damages against Journal Publishing Company, Martin M. "Mack" Cook, and Sid Scott for libelous statements made concerning him. Cook was serving as Chickasaw County Sheriff at the time. Sid Scott was a reporter for the Northeast Mississippi Daily Journal, and its publisher, the Journal Publishing Company.

reached for comment to explain why his truck was at the scene of the drug bust.

McCullough, in his complaint claimed that Cook told Scott that McCullough owned the pickup. However, Cook contends that he gave the tag numbers to Scott and let him find out who the owners of the vehicles were on his own. McCullough called Sheriff Cook between 3:00 and 4:00 p.m. on July 15, 1991, the day of the drug bust, and told him that the confiscated pickup truck had been sold to Gladney on June 24, 1991, even though the tag on the pickup may still be registered to McCullough. McCullough said that he did not take the tag off the truck because it had expired and did not have any trade-in value. McCullough said he requested that Cook correct any impression of McCullough's ownership that Cook may have left with any journalists or television reporters. McCullough claims that Cook knew when he gave the license tag numbers to Scott, that Scott would discover that the tag was registered to McCullough and then claim that McCullough owned the pickup confiscated in connection with the arrests.

Earl Gladney bought the pickup from McCullough on June 24, 1991 and filed a title application that day. On July 15, 1991, certain State Tax Commission records showed that Gladney had filed a title application, was the owner of the pickup, and had purchased the truck June 24, 1991. However, this information was only available if a check was run on title applications. The checks in question were checks on the license tag number rather than the title application and therefore indicated that the tag was registered to McCullough. Both Scott and Cook testified in deposition that they were not aware that checks could be run based on title applications. Cook stated that McCullough told him about running checks on the applications at the tax assessor's office, but Cook claimed that he did not know as to what McCullough was referring.

Earl Gladney stated in an affidavit that he told Sheriff Cook on the morning of his arrest that the pickup belonged to him and that he had previously purchased the pickup from McCullough. Cook did not deny this, rather he said that he did not recall talking to Gladney about the ownership of the pickup. Cook did state that Gail Gladney, Earl Gladney's wife who was also arrested, told him on the morning of the arrest that the pickup was in Earl's name and that Earl had borrowed some money against it.

In addition, Cook told several other reporters that a truck registered to McCullough was confiscated at Gladney's mobile home and that Gail Gladney stated that the truck belonged to her husband. However, as the day progressed, the Sheriff's office became busier and Cook stated that when journalists called regarding the drug bust, he began simply giving out the tag numbers and not the names associated with these numbers. Cook said that after McCullough called him later in the afternoon to ask him to clear up any misunderstandings about the ownership of the vehicle, Cook then called some of the journalists to which he had given McCullough's name and let them know that the vehicle had been sold to Gladney, even though the tag reflected that McCullough owned the truck. He did not call Scott because he had not named any names in his earlier conversation with Scott about the confiscated vehicles.

On July 17, 1991, the Northeast Mississippi Daily Journal published another article by Sid Scott about the drug bust and confiscated vehicles. This article stated that "[a] pickup truck found at the scene of a drug bust Monday is registered in Chickasaw County Chancery Clerk Derwood McCullough's name, though the title shows it no longer belongs to him." Additionally, we are reminded that Scott, in his July 16 article, emphasized McCullough's connections to Gladney when he wrote of the indictment, later dismissed, that the two men faced in federal court. On July 16, Scott wrote, "McCullough and Gladney have been linked before on suspected criminal charges." The

July 16 article and the July 17 article were published just days before the qualifying deadline for the chancery clerk election. McCullough claims that he did not run for reelection as chancery clerk primarily because of negative publicity caused by the July 16, 1991 and the July 17, 1991 articles published by Sid Scott in the Northeast Mississippi Daily Journal.

DISCUSSION OF LAW

I. Was there a genuine issue of material fact precluding the trial court's granting of summary judgment?

The standard for reviewing the granting or the denying of summary judgment is the same standard as is employed by the trial court under Rule 56(c). This Court conducts de novo review of orders granting or denying summary judgment and examines all

the evidentiary matters before it--admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exits is on the moving party. That is, the non-movant would be given the benefit of the doubt.

Mantachie Natural Gas Dist. v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (1992); Clark v. Moore Memorial United Methodist Church, 538 So.2d 760, 762 (Miss.1989)(citing Short v. Columbus Rubber & Gasket Co. Inc., 535 So.2d 61 (Miss.1988)).

McCullough first contended in his complaint that Sheriff Cook actually told Sid Scott that the truck was owned by Derwood McCullough. However, Cook stated that he only told Scott the license tag numbers of the confiscated vehicles. Scott, in an affidavit, affirmed that Cook only gave him the tag numbers, not any names, and he then relied upon information obtained from the official state records with regard to the names of the owners of the vehicles. Scott said that after the publication of the July 16, 1991 article, he again spoke with Cook who told him about the information contained in the Mississippi State Tax Commission records. Therefore, Cook asserts that there is no genuine issue of material fact since what McCullough alleges as an issue in his complaint--that Cook told Scott that the vehicle belonged to McCullough--is rebutted...