Smith v. Beaumont Enterprise & Journal
| Decision Date | 23 August 1984 |
| Docket Number | No. 09,09 |
| Citation | 677 S.W.2d 176 |
| Parties | Clyde E. SMITH, Appellant, v. BEAUMONT ENTERPRISE & JOURNAL and Linda Gilchriest, Appellees. 83 194 CV. |
| Court | Texas Court of Appeals |
Plaintiff below, Clyde E. Smith, State District Judge, a "public figure", duly elected in Tyler and Hardin County for the past ten (10) years and so serving at the time of the publication of the article in question, appeals from an adverse summary judgment rendered in his libel action.
The article forming the basis for his libel claim was published in the Beaumont Enterprise and Journal on Sunday, October 4, 1981, under the by-line of Linda Gilchriest, staff writer. The newspaper and the writer were named as defendants. 1
The plaintiff's cause of action alleged that the article accused Judge Smith of engaging in political gamesmanship by selecting a biased grand jury to influence the outcome of a probe into missing funds from the County Attorney's office, stating that Judge Smith violated the law governing grand jury appointments by selecting not only the grand jury commissioners but also the members making up the jury panel; that the story refers to "the Controversial Grand Jury Show" as being Judge Smith's production; and further, that the article branded Judge Smith with "reprehensible activities and dishonesty". Judge Smith sought actual damages and punitive damages.
The defendants answered denying all allegations, and setting forth, inter alia, the first amendment privilege, statutory privilege, truth, no malice, the unconstitutionality of the Texas Libel Statutes, and fair comment and opinion as to a public official.
On February 7, 1983, a jury was selected and the case proceeded to trial. After extensive testimony, including that of the plaintiff and the defendant staff writer, the case was submitted to the jury on February 9, 1983. The jury was unable to arrive at a verdict and a mistrial was ordered by the trial court that same date.
According to the record before us, no motion for an instructed verdict was filed at any time.
On May 31, 1983, the defendants filed their Motion for Summary Judgment, attaching a self-serving affidavit by the defendant Linda Gilchriest which stated that in her opinion the article was a valid and legitimate one, that it was based on fact and that she believed at the time of the writing of the article and the making of the affidavit that the commentary was true.
In response to the movants' motion for summary judgment, the plaintiff non-movant filed his response which set forth that Linda Gilchriest was guilty of actual malice, that any suggestion that Judge Smith played a part in the selection of the members of the grand jury panel would be false, that it would be a gross impropriety for Judge Smith to involve himself in the selection of the grand jury panel, that Judge Smith did not select the grand jury panel, and that both defamation and actual malice are fact issues which must be resolved by a jury. Plaintiff relied upon and attached the depositions on file and the transcript which included the testimony taken during the trial.
The plaintiff's contentions are that the trial court erred in granting the Defendants' Motion for Summary Judgment alleging that it was error to find that the article was not defamatory or libelous as a matter of law and that it was error to find that the defendants did not act with actual malice as a matter of law.
The main thrust of plaintiff's case is that contrary to TEX.CODE CRIM.PROC.ANN. arts. 19.01-19.41 (Vernon 1977 and Vernon Supp.1984) which sets forth the legal requirements, including the duties of the court, for the organization of a grand jury, which are: that the District Judge shall appoint not less than three nor more than five persons to perform the duties of jury commissioners and that the jury commissioners shall select not less than fifteen nor more than twenty persons from the citizens of the county to be summoned as grand jurors. Thus, there were defamatory statements in the article when it recited that Under the law, a judge appoints a jury commission whose responsibility it is to nominate members for consideration on the jury panel. The names of those nominated, and in this case the names of the commissioners, were placed on the list of those to be selected by Smith for the new 12-member jury.
The plaintiff further contends that the article states that Judge Smith will "select" the twelve member jury, wherein in truth and in fact he does not have said power but merely qualifies those who have been selected by the grand jury. Judge Smith testified that the article accused him of "stacking" the grand jury, that he didn't follow the law and that "the whole article portrays to me that I'm a crooked judge, that I'm dishonest, that I play games." Corroborating witnesses also testified that this was the effect of the article.
The defendants on the other hand contend that the article was not defamatory as a matter of law, that the evidence established the absence of actual malice, that there was no cause of action because the record is totally lacking in proof of publication with "actual malice" and that the article does not accuse Judge Smith of violating the law but, at most, is political criticism of some members of the grand jury panel. The defendant further contends that to be defamatory, the language must be a false statement of fact and that an opinion cannot support a libel action.
The legal hill which a public figure plaintiff must climb in order to prevail in a defamation suit is indeed steep. The "white horse" case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), sets forth the standard of proof required in such cases; i.e., proof of actual malice which is a knowing falsity or reckless disregard of the truth or falsity of the statement. Our Texas Supreme Court has affirmed that standard in Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751 (1984) 2 with the legal caviat requiring the appellate court to independently review the evidence to determine whether actual malice is proven with convincing clarity. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). Additionally, proof of failure to investigate amounts to no evidence of malice El Paso Times, Inc. v. Trexler, 447 S.W.2d 403 (Tex.1969) and "reckless disregard" means proof that "the defamor entertained serious doubts that his declaration was true." Doubleday & Co., Inc. v. Rogers, supra; Foster v. Upchurch, 624 S.W.2d 564 (Tex.1981).
The legal hill which a defendant must climb in order to prevail in a motion for summary judgment in tort and negligence actions is equally steep, because such actions "often involve disputed fact issues which may preclude summary judgment." Hittner, Summary Judgments in Texas, 35 Baylor L.Rev., 207, 211 (1983).
In reviewing a summary judgment record it is the duty of appellate courts to apply the following rules which are applicable to this case:
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. Rule 166-A(c), Texas Rules of Civil Procedure; Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970).
2. In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant ... will be taken as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957).
3. Every reasonable inference must be indulged in favor of the non-movants and any doubts resolved in their favor. Hudnall v. Tyler Bank & Trust Co., 458 S.W.2d 183 (Tex.1970); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233 (1956).
Wilcox v. St. Mary's University of San Antonio, 531 S.W.2d 589, 592 (Tex.1975).
When a person elects to file a motion for summary judgment pursuant to Rule 166-A of the Texas Rules of Civil Procedure, he takes upon himself an extraordinary burden. In a summary judgment proceeding, the burden is on the movant to establish, as a matter of law, all the matters constituting his cause of action or his defense. All doubts as to the existence of a genuine issue of a material fact are resolved against the movant. If the motion involves the credibility of affiants or deponents, or the weight of the showings, or a mere ground of interference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Evidence which favors the movant's position is not considered unless it is uncontradicted. If such uncontradicted testimony is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive, and there are no circumstances in evidence tending to discredit or impeach such testimony. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965).
In such cases, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of the plaintiff's claim or cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. The provisions of Rule 166-A are applicable to defendants and plaintiffs who move for summary judgment; the judgment should be granted, and if granted should be affirmed, only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors...
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Beaumont Enterprise & Journal v. Smith
...there were fact issues presented, the court of appeals reversed the judgment of the trial court and remanded the cause for a new trial. 677 S.W.2d 176. We affirm the judgment of the court of The article which forms the basis for Judge Smith's libel claim was written by Linda Gilchriest and ......