Tatum v. Dall. Morning News, Inc.

• Decision Date: 30 December 2015
• Docket Number: No. 05–14–01017–CV,05–14–01017–CV
• Citation: 493 S.W.3d 646
• Parties: John Tatum and Mary Ann Tatum, Appellants v. The Dallas Morning News, Inc. and Steve Blow, Appellees
• Court: Texas Court of Appeals

493 S.W.3d 646

John Tatum and Mary Ann Tatum, Appellants

v.The Dallas Morning News, Inc. and Steve Blow, Appellees

No. 05–14–01017–CV

Court of Appeals of Texas, Dallas.

Opinion Filed December 30, 2015.

Joseph D. Sibley IV, Houston, TX, for appellants.

Paul C. Watler, James C. McFall III, Shannon Zmud Teicher, Dallas, TX, for appellees.

Before Justices Lang, Fillmore, and Whitehill

OPINION

Opinion by Justice Whitehill

Appellants John and Mary Ann Tatum sued appellees Steve Blow and The Dallas Morning News (DMN) for libel regarding a column that Blow wrote and DMN published one month after the Tatums' son Paul committed suicide. The column, captioned “Shrouding suicide leaves its danger unaddressed,” criticized people who are dishonest about loved ones' suicides. Although the column did not mention the Tatums by name, it quoted from Paul's obituary and it described him and events surrounding his death. People who were familiar with the situation understood the column to refer to Paul and his parents. In addition to their libel claims, the Tatums also asserted DTPA claims against DMN.

Appellees won a take-nothing summary judgment.

In two appellate issues, the Tatums urge that the trial court erred in granting the summary judgment dismissing their libel and DTPA claims.

We conclude that summary judgment was proper as to the Tatums' DTPA claims but not as to their libel claims. Accordingly we affirm in part, reverse in part, and remand the case to the trial court for further proceedings consistent with this opinion.

I. Background

A. Factual Allegations.

We draw this factual recitation from the allegations in the Tatums' live petition:

The Tatums were Paul Tatum's parents. In May 2010, Paul was a seventeen-year-old high school student. He was an excellent and popular student, an outstanding athlete, and had no history of mental illness.

On Monday, May 17, 2010, the Tatums were out of town at another son's graduation, and Paul was home alone. That night, Paul was involved in a one-car automobile accident. After the accident, he began sending incoherent text messages to friends.

He made his way home from the accident scene and began drinking champagne. He then called a friend, and their conversation prompted her and her mother to drive to the Tatums' house during the early morning hours of May 18. Paul's friend went in the house and found Paul “dazed, confused, irrational, incoherent, and apparently in physical anguish and holding one of the family's firearms.” Paul's friend left him alone to tell her mother the situation, and as she left she heard a gunshot. Paul died from a gunshot wound

to the head.

The Tatums wrote an obituary for Paul and paid DMN to publish the obituary in the Dallas Morning News newspaper. Believing that Paul's suicide was caused by a brain injury

he sustained in the earlier automobile accident, the Tatums stated in the obituary that Paul died “as a result of injuries sustained in an automobile accident.” The obituary was published on May 21, 2010.

One month later, on Father's Day, June 20, 2010, DMN published a column written by Blow. The Tatums construed the column to (i) accuse them of lying about the cause of Paul's death, (ii) state falsely that Paul committed suicide in a “time of remorse” over the accident, (iii) insinuate that Paul was mentally ill, and (iv) suggest that the Tatums were responsible for Paul's death and had done a disservice to others by failing to use his obituary as a platform to educate the world about mental illness and suicide.

Additionally, the summary judgment evidence established that the Tatums were out of town the day the column was published. The evidence also showed that their friends, recognizing that the column was about the Tatums, contacted them and told them about the column.

This lawsuit followed.

B. The Column.

The summary judgment evidence included a copy of the printed version of the newspaper column that prompted this suit. The column's headline was “Shrouding suicide leaves its danger unaddressed.” (Emphasis added). There was a page break in the middle of the column, and a slightly different headline appeared over the remainder of the column when it resumed on another page: “Shrouding suicide in secrecy leaves its danger unaddressed.” The column, with emphasis added, stated as follows:

So I guess we're down to just one form of death still considered worthy of deception.

I'm told there was a time when the word “cancer

” was never mentioned. Oddly, it was considered an embarrassing way to die.

It took a while for honesty to come to the AIDS epidemic. Ironically, the first person I knew to die of AIDS was said to have cancer.

We're open these days with just about every form of death except one —suicide.

When art expert Ted Pillsbury died in March, his company said he suffered an apparent heart attack on a country road in Kaufman County.

But what was apparent to every witness on the scene that day was that Pillsbury had walked a few paces from his car and shot himself.

Naturally, with such a well-known figure, the truth quickly came out.

More recently, a paid obituary in this newspaper reported that a popular local high school student died “as a result of injuries sustained in an automobile accident.”

When one of my colleagues began to inquire, thinking the death deserved news coverage, it turned out to have been a suicide.

There was a car crash, all right, but death came from a self-inflicted gunshot wound [page break ] in a time of remorse afterward.

And for us, there the matter ended. Newspapers don't write about suicides unless they involve a public figure or happen in a very public way.

But is that always best?

I'm troubled that we, as a society, allow suicide to remain cloaked in such secrecy, if not outright deception.

Some obituary readers tell me they feel guilty for having such curiosity about how people died. They're frustrated when obits don't say. “Morbid curiosity,” they call it apologetically.

But I don't think we should feel embarrassment at all. I think the need to know is wired deeply in us. I think it's part of our survival mechanism.

Like a cat putting its nose to the wind, that curiosity is part of how we gauge the danger out there for ourselves and our loved ones.

And the secrecy surrounding suicide leaves us greatly underestimating the danger there.

Did you know that almost twice as many people die each year from suicide as from homicide?

Think of how much more attention we pay to the latter. We're nearly obsessed with crime. Yet we're nearly blind to the greater threat of self-inflicted violence.

Suicide is the third-leading cause of death among young people (ages 15 to 24) in this country.

Do you think that might be important for parents to understand?

In part, we don't talk about suicide because we don't talk about the illness that often underlies it—mental illness.

I'm a big admirer of Julie Hersh.^[1] The Dallas woman first went public with her story of depression and suicide attempts in my column three years ago.

She has since written a book, Struck by Living. Through honesty, she's trying to erase some of the shame and stigma that compounds and prolongs mental illness.

Julie recently wrote a blog item titled “Don't omit from the obit,” urging more openness about suicide as a cause of death.

“I understand why people don't include it,” she told me. “But it's such a missed opportunity to educate.”

And she's so right.

Listen, the last thing I want to do is put guilt on the family of suicide victims. They already face a grief more intense than most of us will ever know.

But averting our eyes from the reality of suicide only puts more lives at risk.

Awareness, frank discussion, timely intervention, treatment—those are the things that save lives.

Honesty is the first step.

C. Procedural History and Appellate Issues.

The Tatums sued both appellees for libel and libel per se. They also sued DMN for DTPA violations. DMN counterclaimed for its attorneys' fees under the DTPA.

Appellees filed a traditional and no-evidence summary judgment motion. About three months later, they filed an amended traditional and no-evidence summary judgment motion. The Tatums timely responded.

The trial court granted appellees' amended summary judgment motion, and the Tatums timely filed a notice of appeal. The court then vacated its judgment and stayed the case pending the resolution of a defamation case then pending in the Texas Supreme Court. The trial court later lifted the stay and again rendered a take-nothing summary judgment against the Tatums. The court also dismissed DMN's counterclaim with prejudice. The court did not state the basis for any of its rulings. The Tatums timely filed a second notice of appeal.

The Tatums assert two appellate issues: (1) The trial court erred by granting summary judgment on their libel claims; and (2) the trial court erred by granting summary judgment on their DTPA claims. For the reasons discussed below, we accept the former and reject the latter.

II. Standard of Review

We review a summary judgment de novo. Neely v. Wilson, 418 S.W.3d 52, 59 (Tex.2013)

. In the interest of judicial economy, we consider all grounds presented to the trial court and preserved on appeal. Id. at 60.

When reviewing a traditional summary judgment for a defendant, we determine whether the defendant conclusively disproved an element of the plaintiff's claim or conclusively proved every element of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997)

. We must take evidence favorable to the nonmovant as true, and we must indulge every reasonable inference and resolve every doubt in the nonmovant's favor.

Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994)

“A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence.” In re Estate of Hendler, 316 S.W.3d 703, 707 (Tex.App.—Dallas 2010, no pet.).

When reviewing a no-evidence summary judgment, we determine whether the nonmovant adduced...