Scripps NP Operating, LLC v. Carter

• Decision Date: 21 December 2016
• Docket Number: NUMBER 13-15-00506-CV
• Parties: SCRIPPS NP OPERATING, LLC, a Wisconsin Limited Liability Company, Successor in Interest to Scripps Texas Newspapers, LP d/b/a Corpus Christi Caller-Times and the E.W. Scripps Company, Appellants, v. Terry CARTER, Appellee.
• Court: Texas Court of Appeals

567 S.W.3d 1

SCRIPPS NP OPERATING, LLC, a Wisconsin Limited Liability Company, Successor in Interest to Scripps Texas Newspapers, LP d/b/a Corpus Christi Caller-Times and the E.W. Scripps Company, Appellants,

v.Terry CARTER, Appellee.

NUMBER 13-15-00506-CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed December 21, 2016

Hon. Jorge C. Rangel, The Rangel Law Firm, Corpus Christi, TX, for Appellant(s).

Hon. Craig S. Smith, Attorney at Law, Corpus Christi, TX, for Appellee(s).

Before Justices Garza, Benavides, and Longoria

MEMORANDUM OPINION

Memorandum Opinion by Justice Garza

This is the second appeal arising from the denial of a summary judgment motion in a defamation case. Appellants Scripps NP Operating, LLC, successor in interest to Scripps Texas Newspapers, LP, d/b/a Corpus Christi Caller-Times (the "Caller-Times ") and the E.W. Scripps Company ("E.W. Scripps") contend by sixteen issues that the trial court erred by denying their second motion seeking summary judgment in a suit brought by appellee Terry Carter.

We find that the statements at issue are defamatory per se. However, though the evidence may support a finding that appellants were negligent in their reporting, it does not support a finding that they acted with actual malice. Accordingly, we affirm in part and reverse and render in part.

I. BACKGROUND

Carter served as the president and chief executive officer of the Corpus Christi Chamber of Commerce (the "Chamber"). Between February 15 and June 13, 2008, the Caller-Times published twenty-five newspaper articles, including one editorial, reporting that Carter had been accused of financial improprieties by other Chamber officials.

Carter filed suit against appellants and others for defamation, conspiracy, breach of fiduciary duty, and breach of contract, alleging that the articles "falsely accus[ed him] of mismanagement, financial improprieties, and of stealing a tape recording of a [Chamber of Commerce] board meeting."

Appellants moved for no-evidence and traditional summary judgment on grounds that there was no evidence of actual malice, but the trial court denied the motions. Appellants appealed, arguing that Carter was a public figure and was thus required to prove actual malice, but we disagreed and affirmed the trial court's ruling. See Scripps Tex. Newspapers, LP v. Carter , No. 13-09-00655-CV, 2012 WL 5948955, at *1 (Tex. App.—Corpus Christi Nov. 21, 2012, pet. denied) (mem. op.).¹ We reasoned that (1) Carter's position as Chamber CEO did not, alone, make him a public figure, and (2) he was not a limited-purpose public figure because the alleged defamatory articles were "not germane to Carter's participation in the controversy" at issue—namely, whether the mayor of Corpus Christi gave the city council enough time to consider a tax incentive proposal. Id. at *2–5 ("[W]e apply a three-part test in deciding whether [a] person is ... a limited-purpose public figure: (1) was the controversy at issue public both in the sense that people were discussing it and people other than the immediate participants in the controversy were likely to feel the impact of its resolution; (2) did the plaintiff have more than a trivial or tangential role in the controversy; and (3) was the alleged defamation germane to the plaintiff's participation in the controversy."). Because Carter was not a public figure, he did not need to prove actual malice, and because the only ground raised in appellants' summary judgment motions was the absence of evidence of malice, the trial court did not err in denying summary judgment. Id.

On remand, appellants again moved for no-evidence and traditional summary judgment. This time, appellants argued that the alleged defamatory articles were not actionable because they were: (1) not defamatory, (2) substantially true, (3) statements of opinion, (4) privileged as fair reports of judicial proceedings, and (5) published without negligence. The motion further argued that E.W. Scripps did not publish the articles in question. Appellants attached over 100 exhibits to their motion, comprising over 1,100 pages; Carter filed a response accompanied by over 11,000 pages of exhibits, consisting primarily of the entire clerk's record from the 2012 appeal. The trial court again denied summary judgment, and this appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(6) (West, Westlaw through 2015 R.S.) (permitting immediate appeal of interlocutory order denying a motion for summary judgment made by a media defendant that is based on the free speech or free press clause of the First Amendment).²

II. DISCUSSION

A. Standard of Review and Applicable Law

We review the denial of summary judgment de novo. Neely v. Wilson , 418 S.W.3d 52, 59 (Tex. 2013) ; Nalle Plastics Family L.P. v. Porter, Rogers, Dahlman & Gordon, P.C. , 406 S.W.3d 186, 199 (Tex. App.—Corpus Christi 2013, pet. denied). In doing so, we review the evidence in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Neely , 418 S.W.3d at 59 ; City of Keller v. Wilson , 168 S.W.3d 802, 824 (Tex. 2005). The party moving for summary judgment bears the burden of proof. Neely , 418 S.W.3d at 59 (citing Roskey v. Tex. Health Facilities Comm'n , 639 S.W.2d 302, 303 (Tex. 1982) ).

Appellants' summary judgment motion was brought on both no-evidence and traditional grounds. See TEX. R. CIV. P. 166a(c), (i). Though the burden varies for traditional and no-evidence summary judgment motions, all parties here brought forth summary judgment evidence; therefore, the differing burdens are immaterial and the ultimate issue is whether a fact issue exists. Neely , 418 S.W.3d at 59 (citing Buck v. Palmer , 381 S.W.3d 525, 527 n.2 (Tex. 2012) ). A fact issue exists, thereby precluding summary judgment, if there is more than a scintilla of probative evidence to support the plaintiff's claim. Id. Evidence is more than a scintilla if it "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Serv. Corp. Int'l v. Guerra , 348 S.W.3d 221, 228 (Tex. 2011). Evidence is less than a scintilla is if it is "so weak as to do no more than create a mere surmise or suspicion that the fact exists." Regal Fin. Co. v. Tex Star Motors, Inc. , 355 S.W.3d 595, 603 (Tex. 2010).

To recover defamation damages in Texas, a non-public-figure plaintiff must prove that the media defendant: (1) published a statement; (2) that defamed the plaintiff; (3) while acting with negligence regarding the truth of the statement. Neely , 418 S.W.3d at 61 ; WFAA–TV, Inc. v. McLemore , 978 S.W.2d 568, 571 (Tex. 1998). We construe an allegedly defamatory publication as a whole in light of the surrounding circumstances and based upon how a person of ordinary intelligence would perceive it. Turner v. KTRK Television, Inc. , 38 S.W.3d 103, 114 (Tex. 2000). A "person of ordinary intelligence" is one who "exercises care and prudence, but not omniscience, when evaluating allegedly defamatory communications." New Times, Inc. v. Isaacks , 146 S.W.3d 144, 157 (Tex. 2004).

B. Summary Judgment Evidence

Carter's 2004 employment contract with the Chamber provided that he was entitled to a "performance bonus" of $7,000 "based on [his] attainment of financial goals" for the Chamber as set forth elsewhere in the contract. An amendment to the contract was signed in 2005 that increased Carter's base salary but left the performance bonus provision intact. In deposition testimony, Carter agreed that, based on the 2004 contract and 2005 amendment, his performance bonus "had some connection to the financial performance of the Chamber." He stated: "If I bankrupted the [Chamber], it would certainly have an adverse effect." In 2007, however, the parties executed another amendment to the contract providing that Carter's performance bonus would be $10,000 and would not be based on the attainment of financial goals, but would instead "be made to Carter as soon as feasible, after ratification of this contract."

In 2007, investors planned to develop a mall in Corpus Christi called Crosstown Commons and requested $40 million in tax incentives from the city, which included tax rebates and reimbursements for road and utility improvements. Scripps , 2012 WL 5948955, at *1. The city council was asked to vote on the $40 million tax incentive. Id. Patrick Birmingham, publisher and president of the Caller-Times at that time, supported the tax proposal. At a city council meeting on June 12, 2007, Carter suggested that the city council "slow down" its decision on the tax incentives. He noted in deposition testimony that the city council had been given only four days prior to the meeting to consider the proposal.

On December 19, 2007, the Caller-Times published an article stating that it was cancelling its own membership with the Chamber, effective on December 31, "because of differences with [Carter]." The article reported that Birmingham had sent a letter to Freddie Martinez Jr., chairman of the Chamber's board of directors, stating that Carter was a "divisive influence." The letter further stated as follows:

I believe strongly that the role of a chamber and its president should be to unite the business community, work with government officials to foster growth and, when called for, be an advocate for the business community—all of the business community, both existing companies and new companies trying to enter the market.

I find the actions of your president to be contrary to these beliefs. Therefore, I can no longer in good conscience permit the Caller-Times to be a member of an organization with a president who actively engages in name calling and shows favoritism toward one business over another.

The December 19 article quoted Birmingham as saying: "I don't think [Carter] represents the interests of the business community nor the company.... The only way to show he doesn't speak for the Caller-Times is not...