Palestine Herald-Press Co. v. Zimmer

• Decision Date: 25 June 2008
• Docket Number: No. 12-07-00139-CV.,12-07-00139-CV.
• Citation: 257 S.W.3d 504
• Parties: PALESTINE HERALD-PRESS CO., Newspaper Holdings, Inc., and Scott Tyler, Appellants v. Mark ZIMMER, Appellee.
• Court: Texas Court of Appeals

257 S.W.3d 504

PALESTINE HERALD-PRESS CO., Newspaper Holdings, Inc., and Scott Tyler, Appellants v. Mark ZIMMER, Appellee.

No. 12-07-00139-CV.

Court of Appeals of Texas, Tyler.

June 25, 2008.

James M. McCown, J. Brian Dear, Addison, TX, for Appellant.

Charles H. Clark, Tyler, TX, for Appellee.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.

OPINION

BRIAN HOYLE, Justice.

Palestine Herald-Press Co., NewsPaper Holdings, Inc, and Scott Tyler (collectively "Appellants") appeal the trial court's denial of their traditional and no evidence motions for summary judgment in favor of Appellee Mark Zimmer. Appellants raise twelve issues on appeal. We reverse and render.

BACKGROUND

Zimmer is the defensive coordinator and assistant coach for the Jacksonville High School football team of Jacksonville, Texas. Jacksonville High School and Palestine High School of Palestine, Texas are public high schools in neighboring counties and have a longstanding football rivalry.

On September 22, 2006, the two teams competed against one another in an annual rivalry game held in Palestine, Texas. The game was hard fought. As the last minute of game play began to elapse, the Jacksonville team led by only two points. The Palestine team drove the ball into the Jacksonville team's territory and set up for a field goal attempt that would assure their victory. But the Jacksonville team doused its opponent's hopes when it blocked the kick.

Jacksonville High School's players, fans, and coaches erupted with excitement. The exuberance Zimmer had exhibited during the game reached a crescendo as time expired. As the Jacksonville players and coaches celebrated, Zimmer ran onto the field with his right arm overhead. Zimmer leapt into one of his players' arms near the middle of the field between the twenty and thirty yard lines. As the player released Zimmer from the embrace, Zimmer, who was still in the immediate vicinity of the celebrating Jacksonville players, turned generally toward the Palestine team's sideline as he pumped his right fist in the air once. Zimmer then raised both fists to the side of his head, and abruptly thrust his arms downward to his hips three times while slightly bending his knees and sidestepping toward the thirty yard line. Zimmer was yelling with elevated excitement as he motioned. Zimmer then turned toward his players, one of whom immediately bumped his shoulder pad into Zimmer's shoulder, causing Zimmer, who was still spiritedly shouting, to turn once again toward the Palestine sideline briefly before he walked toward the Jacksonville sidelines, relatively subdued, with the Palestine players.¹

Among those who observed Zimmer's conduct was Scott Tyler, a sports editor for the Palestine Herald-Press newspaper. Tyler was standing on the Palestine team's sideline near the thirty-five yard line at the time. Thereafter, Tyler wrote an article that appeared in the September 24, 2006 edition of the Palestine Herald in "From the Cheap Seats," Tyler's weekly editorial column. Tyler's article entitled "Sportsmanship comes first" reads as follows:

In high school football, winning and losing is not always the most important factor.

OK, before I get run out of town for that statement, there is some truth, so just hold on and listen.

At the high school level, while winning football games is nice, when it comes down to the bottom line, the most important thing that needs to come out of a high school football game is not winning but sportsmanship.

Maybe I have been fortunate with covering Palestine for four years. Starting with Jeff Harrell and now with Glen Tunstall, the Palestine coaches have strived to make sure they and their players demonstrate the best sportsmanship possible.

Win or lose, Palestine has shown what sportsmanship means. Yes, I have seen the Palestine players and coaches celebrate with a close victory, but what else is expected. And even with losses, they still keep their heads up while shaking hands with the other team.

Last week, when Palestine was at Henderson, one of the chain gang members for Henderson made a comment of how pleasant the Palestine sideline was. Just another example of the Wildcats' good sportsmanship.

And before I get the phone calls and e-mails telling me that Palestine runs up the score, don't even try. When Palestine gets a big lead, all the second- and third-string players are in the game, but what do you expect they do, just sit on the ball?

However, there have been instances through the years where the sportsmanship demonstrated on the Palestine sideline has not been duplicated on the other sideline.

I have heard and seen many things over from across the sidelines, including bad language, inappropriate gestures and name calling toward both their own players and the opposing team's players.

However, what I saw Friday night was the worse [sic] yet.

In a great game between Palestine and Jacksonville at Wildcat Stadium, that went to the end, the Indians prevailed with a 19-17 comeback win.

When Palestine missed a long field goal attempt at the end of the game, there was celebration on the Jacksonville sideline, which is understandable.

Palestine had beaten Jacksonville the year before and the Indians had to come back in the fourth quarter to win Friday night. So go ahead, jump up and down, enjoy the win.

However[,] while the Jacksonville players and coaches celebrated the win, the Jacksonville defensive coordinator, Mark Zimmer, stood at mid-field, facing the Palestine sideline and started making an obscene gesture with his arms.

This is ABSOLUTELY uncalled for! After a hard-fought contest by both teams for 48 minutes, there is no place for this in the game, and for a coach to do this is beyond any words I can think of.

After what I witnessed, I have no respect for Jacksonville and it is because of one coach. He not only put a black mark on the Jacksonville football team[,] but also Jacksonville High School and the city of Jacksonville.

This coach should feel embarrassed and ashamed of what he did and how he acted. This is not acceptable behavior by anyone on the football field and for it to be a coach makes it even worse.

Zimmer owes the Palestine team, the Wildcat fans[,] and the city of Palestine an apology for his actions.

There is no place for this in sports.

Within weeks of the publication of Tyler's article, Zimmer filed suit for defamation against Appellants. On January 22 2006, Appellants filed both traditional and no evidence motions for summary judgment, to which Zimmer responded. On April 3, 2007, the trial court denied Appellants' motions for summary judgment. This interlocutory appeal followed.²

STANDARD OF REVIEW AND GOVERNING LAW

The standard for reviewing summary judgment is the same for defamation cases as for other types of cases. See Simmons v. Ware, 920 S.W.2d 438, 443 (Tex.App.-Amarillo 1996, no writ) (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)). In reviewing a traditional motion for summary judgment,³ we must apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985), which are as follows:

(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 [nonmovant] will be taken as true.

(3) Every reasonable inference must be indulged in favor of the [nonmovant] and any doubts resolved in its favor.

Nixon, 690 S.W.2d at 548-49; see May v. Nacogdoches Mem'l Hosp., 61 S.W.3d 623, 628 (Tex.App.-Tyler 2001, no pet.). A defendant moving for summary judgment must either negate at least one essential element of the nonmovant's cause of action, or prove all essential elements of an affirmative defense. See Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits and other summary judgment proof. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952). The only question is whether or not an issue of material fact is presented. See TEX.R. CIV. P. 166a(c). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). Summary judgment should be affirmed on appeal if any of the grounds presented in the motion are meritorious. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

Furthermore, after adequate time for discovery, a party without presenting summary judgment evidence may also move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. TEX.R. CIV. P. 166a(i). The motion must state the elements as to which there is no evidence. Id. Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence. See Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 316-17 (Tex.App.-Houston [14th Dist.] 1999, no pet.). A no evidence motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). If the evidence supporting a finding rises to a level that would enable reasonable, fair minded persons to differ in their conclusions, then more than a...