Stegall v. WTWV, Inc.

• Decision Date: 10 June 1992
• Docket Number: No. 89-CA-0333,89-CA-0333
• Citation: 609 So.2d 348
• Parties: 20 Media L. Rep. 1280 J.P. STEGALL v. WTWV, INC., a Mississippi Corporation, and Catherine (Cathy) Coggin Nash.
• Court: Mississippi Supreme Court

Page 348

609 So.2d 348

20 Media L. Rep. 1280

J.P. STEGALL v. WTWV, INC., a Mississippi Corporation, and Catherine (Cathy) Coggin Nash.

No. 89-CA-0333.

Supreme Court of Mississippi.

June 10, 1992.

As Modified on Denial of Rehearing Dec. 10, 1992.

Dissenting Opinion of Presiding

Justice Hawkins on Denial of

Rehearing Dec. 10, 1992.

Roy O. Parker, Roy O. Parker, Jr., Roy O. Parker & Associates, Tupelo, for appellant.

Guy W. Mitchell, III, Donna M. Barnes, Mitchell McNutt Threadgill Smith & Sams, Tupelo, and Florence Snyder Rivas, Milledge & Iden, Palm Beach, Fla., for appellee.

Terryl K. Rushing, Leonard D. Van Slyke, Jr., Thomas Price Alston Jones & Davis, John C. Henegan, E. Marcus Wiggs III, W. Wayne Drinkwater, Jr., Butler Snow O'Mara Stevens & Cannada, Jackson, Thomas Wicker, Holland Ray & Upchurch, Tupelo, Henry Laird, Mize Blass Lenoir & Laird, Gulfport, and Luther T. Munford, and John P. Sneed, Helps Dunbar Firm, Jackson, for amicus curiae.

Before HAWKINS, P.J., and PITTMAN and BANKS, JJ.

PITTMAN, Justice, for the Court:

J.P. Stegall, of Pontotoc County, Mississippi, commenced this action on December 2, 1987, alleging that Cathy Coggin, a WTWV reporter, and WTWV, Inc., a television station broadcasting over Channel Nine in Northeast Mississippi, had willfully, maliciously, and knowingly issued a false broadcast on August 4, 1987, during the evening newscast regarding Stegall. Summary judgment was granted in favor of WTWV and Coggin by Judge Thomas J. Gardner, III, of the Lee County Circuit Court. Because the trial court's summary judgment was error, we reverse and remand for further proceedings.

I.

August 4, 1987, was a primary election day. J.P. Stegall was a candidate for District 5 Supervisor in Pontotoc County, Mississippi. The holder of the District 5 position had been Stegall's cousin, Bobby Dean Stegall. Bobby Dean Stegall vacated the position after being arrested and indicted during the FBI undercover investigation of corrupt county purchasing practices in Mississippi. A WTWV news reporter, Catherine Coggin, was covering the race. WTWV was relaying information about more than 380 races in 27 counties.

Stegall submitted three affidavits of Mary Evelyn Jones, a deputy circuit clerk in Pontotoc County, wherein Mary Evelyn Jones stated that she received a phone call at the courthouse from Coggin on the afternoon of the primary election around 12:30 p.m. Mary Evelyn Jones stated the caller "identified herself as Cathy Coggin of Nine Alive News". Mary Evelyn Jones stated that she recognized the voice to be that of Coggin because the two had spoken several times before, including a conversation only a few days before the election day. Mary Evelyn Jones said the caller "was definitely Cathy Coggin". Mary Evelyn Jones claimed that Coggin wanted a list of all candidates running for all elections and that Mary Evelyn Jones gave her all the names and identified the incumbents in various races. According to Mary Evelyn Jones, when she reached the supervisors' races, Coggin asked about indictments on all incumbents. Mary Evelyn Jones claims that she then gave Coggin the names of candidates running in the Fifth District and that when she stated the name of J.P. Stegall as a candidate in that race, Coggin said that he was an incumbent and had been indicted. Mary Evelyn Jones said, "No, Mam [sic], I don't know if they are related or not, but Bobby Dean Stegall was the supervisor who was indicted and resigned from office." Mary Evelyn Jones claims that she completed the listing and that Coggin again asked if J.P. Stegall was the incumbent to which Mary Evelyn Jones again replied, "No."

WTWV and Coggin asserted that Coggin never called Mary Evelyn Jones or anyone at the Pontotoc County Circuit Clerk's Office on August 4, 1987. Coggin gave deposition testimony and signed an affidavit to that effect, and WTWV General Manager Mark Ledbetter supplied a WATTS line log of long distance telephone calls made from WTWV as well as the South Central Bell telephone bill. Both documents reflected that no long distance call to the Pontotoc County Circuit Clerk's Office was made on August 4, 1987.

Coggin arrived at work at the television station around 2:00 p.m. Coggin discussed the Pontotoc County supervisors' races with the news assignment editor, Kristie Blaes. WTWV and Coggin claim that Coggin misunderstood Blaes and confused the two Stegall cousins. Kristie Blaes gave deposition testimony that she told Coggin "a Stegall" who had been District 5 supervisor of Pontotoc County had been arrested in Operation Pretense and had resigned from office. Coggin could not explain where she arrived at the name "J.P. Stegall". Kristie Blaes said that she knew about the FBI probe and arrests because of a phone conversation with U.S. Attorney Robert Whitwell sometime in the past. Coggin took notes during her meeting with Kristie Blaes.

Precinct polls were scheduled to close at 7:00 p.m. According to Stegall, Coggin aired the false broadcast over the 6:00 p.m. WTWV news broadcast. According to WTWV and Coggin, the false statement was broadcast over the live election coverage which began at 7:00 p.m. after the polls closed. The false broadcast went as follows:

J.P. Stegall was also arrested in the FBI undercover probe of corrupt county purchasing practices. Stegall pled guilty to alleged wrongdoing and he pulled out of the race. So in supervisor District 5 of Pontotoc County, Charlie Gray, W.C. Matthews and Billy Simmons are vying for that position.

Coggin agreed that this account of the broadcast over WTWV was basically what she said on August 4, 1987. Coggin made the broadcast while reading from her own notes made while talking to Kristie Blaes. She later threw her notes away.

After the false statement broadcast by WTWV, Stegall survived the primary election and qualified for the run-off election.

According to Stegall's brief, his wife called the station that evening to inform them of the falsity, and Stegall called the station himself the next day. According to WTWV and Coggin, Stegall's wife never called. WTWV and Coggin claim that they did not hear from the Stegalls until the morning following the broadcast when Stegall called Kristie Blaes and informed her of the error. WTWV broadcast a retraction on the noon and 6:00 p.m. broadcasts the day after the false statement. WTWV and Coggin claim that the noon retraction announced:

Last night we made an error in reporting the Pontotoc District Five supervisor race. We stated that candidate J.P. Stegall resigned from the race following the Federal Operation Pretense Probe. But in fact it was Bobby Dean Stegall who resigned earlier this year. J.P. Stegall is in the run-off election against Billy Simmons. And once again, J.P. Stegall is not involved in the Operation Pretense Probe.

WTWV and Coggin claim that the 6:00 p.m. retraction announced:

And in the race for Supervisor District Five in Pontotoc County, there will be a run-off between J.P. Stegall and Billy Simmons. We mentioned last night that Mr. Stegall pulled out of this race following an Operation Pretense Probe. That was an error. That reference should have been made to Bobby Dean Stegall, who was investigated, and who was the incumbent Supervisor for District Five.

Stegall has not disputed any rendition of the retraction.

In spite of the retraction, Stegall lost the run-off election of the second primary.

II.

Stegall claims that the lower court's summary judgment was erroneous because the court decided material issues of fact in making its ruling. Stegall additionally asserts that the direct contradiction between the testimony of Mary Evelyn Jones and the testimony of Coggin creates a genuine issue of material fact as to actual malice on the part of Coggin and/or WTWV.

This Court conducts de novo review of a lower court's grant of summary judgment. Short v. Columbus Rubber and Gasket Co., 535 So.2d 61, 63 (Miss.1988). The question presented is whether there are issues of material fact which should have precluded the granting of summary judgment. This Court does not resolve disputed issues of fact. Mississippi Road Supply Co. v. Zurich-American Insurance Co., 501 So.2d 412, 414 (Miss.1987). In Mink v. Andrew Jackson Casualty Insurance Co., 537 So.2d 431, 432 (Miss.1988), this Court admonished trial courts to make use of summary judgments with "great caution" and further stated:

It is also important to note that Rule 56 requires that before a summary judgment can be granted there must be no genuine issue of "material" fact. The question then becomes, what is a "material" fact? This Court has recently held that a material fact "tends to resolve any of the issues, properly raised by the parties." ... This means that if a "material" fact or facts are present in the case, summary judgment should not be granted.

Id. at 433 (citation omitted).

The role of this Court is to make the determination of whether there are material facts which would preclude the granting of summary judgment; it is not this Court's function to try these disputed issues of fact. Mink, 537 So.2d at 433; Pope v. Schroeder, 512 So.2d 905, 908 (Miss.1987); Mississippi Road Supply Co., 501 So.2d at 414. Determination of whether reasonable minds could differ on an issue is a question for the trial judge; a plaintiff is entitled to have a jury decide his claim if reasonable minds could differ. Stamps v. Estate of Watts, 528 So.2d 812, 815 (Miss.1988). There are material facts in dispute in the case at bar which would preclude the granting of summary judgment.

There is dispute as to material facts which would warrant a full jury trial. First, the parties are in dispute as to the time of the false broadcast. Stegall claims that the false statement was made during the 6:00 p.m. news, before the polls closed. WTWV and Coggin claim that the false statement was broadcast during the election coverage which began after the polls closed at 7:00 p.m....