Turner v. KTRK Television Inc

• Decision Date: 21 December 2000
• Docket Number: No. 99-0419,99-0419
• Parties: (Tex. 2000) Sylvester Turner, Petitioner v. KTRK Television, Inc. and Wayne Dolcefino, Respondents
• Court: Texas Supreme Court

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38 S.W.3d 103 (Tex. 2000) Sylvester Turner, Petitioner
v.
KTRK Television, Inc. and Wayne Dolcefino, Respondents No. 99-0419 IN THE SUPREME COURT OF TEXAS Argued February 16, 2000.
Argued March 1, 2000.
Decided December 21, 2000.

On Petition for Review from the Court of Appeals for the Fourteenth District of Texas

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Chief Justice Phillips delivered the opinion of the Court, joined by Justice Abbott and Justice Gonzales, and joined by Justice Enoch, Justice Baker, and Justice Hankinson in all Parts except Part III, and joined by Justice Hecht and Justice Owen in all Parts except Part II.

This public-figure libel case raises two issues. First, we must decide whether a public figure can sue for defamation based on a publication as a whole, rather than by specific false statements. Second, we must determine whether Wayne Dolcefino, a reporter for KTRK Television, acted with actual malice in broadcasting a report questioning whether state representative and then Houston mayoral candidate Sylvester Turner was involved in a multi-million-dollar insurance scam. We hold that Turner established that the broadcast as a whole was false and defamatory, but that he failed to present clear and convincing evidence of actual malice. Therefore, we affirm the judgment of the court of appeals but for reasons different from those in that court's opinion. 987 S.W.2d 100.

I

We first discuss the background for this case, presenting the evidence in the light most favorable to the jury's verdict. During the events at issue, Turner was a partner in the Houston law firm of Barnes, Morse, and Turner. In late 1985, Turner's life-long friend Dwight Thomas introduced him to Sylvester Foster, who owned several beauty salons and a male modeling studio in Houston. In April 1986, Foster discussed preparing a will with Turner. Turner and an associate worked on the will in May and June, making several changes at Foster's behest. The will placed the bulk of the estate assets, including the proceeds of all life insurance policies benefitting the estate, into a trust for the benefit of Foster's father, Clinton Foster, with Thomas designated as the trustee and executor. The duration of the trust was eleven years, after which the corpus would be distributed to Clinton Foster; however, if his father died before the trust terminated, the will provided that the corpus would pass immediately to Foster's girlfriend, Christina Batura. The will was completed and ready for execution on June 16.

In the months before executing the will, Foster was in trouble with the law. In March, he was indicted in Nevada on federal credit card fraud charges. The next month, he was arrested in Nevada for driving Thomas's car, which Thomas had reported stolen, allegedly as part of a "chop-shop" scheme in which Foster would sell, the car and Thomas and Foster would share the insurance money. Finally, in June, Foster was indicted by a Houston grand jury, also on federal credit card fraud charges. When Turner drafted the will, he knew about the April 8 arrest, but he did not know about any "chop-shop" scheme or either of the federal indictments.

Also unbeknownst to Turner, Foster, who already had a sizable amount of life insurance, began acquiring more in May and June. In total, by mid-June Foster had approximately $1.7 million in life insurance, with $875,000 directly benefitting the estate.¹ He also took out credit life on

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cars and jewelry that he purchased in May and June.

On the evening of June 18, Secret Service agent Jay Bly approached Foster to arrest him on the June Houston grand jury indictment. Foster promised Bly that he would turn himself in the following morning. He did not do so. Instead Foster went the next day to Turner's office where he signed his will. Turner was not present when Foster signed the will; Turner's secretary and a partner witnessed its execution. Three days later, Foster was reported to have drowned during a sailing trip. No body was found, but Keith Anderson and Russell Reinders, who were on the boat with Foster, both swore in affidavits that Foster fell overboard. On June 28, Foster's father, Clinton Foster, and Thomas met with Turner and asked that he probate the will. Turner agreed and the next month sent letters notifying several life insurance companies of Foster's death. In August, the Coast Guard issued a formal report claiming that Foster "was presumed drowned and lost at sea." On November 21, 1986, Turner filed an application to probate the will. Three weeks later, Prudential Insurance Company, which had a policy benefitting Foster's business partner Reinders, intervened to dispute Foster's death. The parties began discovery and took depositions from many witnesses, including Agent Bly, Turner, Thomas, and Batura.

In July 1987, Clinton Foster's attorneys moved to disqualify Turner because, as the will's drafter, he was likely to be a material witness. The probate judge, the Honorable Judge John Hutchison, disqualified Turner until the issue of Foster's death was resolved. Judge Hutchison also named Richard Snell as the estate's temporary administrator and instructed him to investigate Foster's death. Turner later submitted a bill of $28,000 for his representation of the estate, but Snell rejected it.

At Snell's request, Judge Hutchison appointed Elizabeth Colwell to investigate Foster's death. Colwell was paid by Clinton Foster's Kansas City attorney, Carston Johannsen. After searching for nearly two years, Colwell could not locate Foster. Accordingly, on April 12, 1989, Judge Hutchison declared Foster dead. Over a year later, however, the United States Embassy in Spain informed Clinton Foster that his son was alive and in a Spanish prison on drug charges. The probate court then rescinded its declaration of death and closed the estate.

Meanwhile, Turner pursued a successful political career. After winning election to the Texas House of Representatives in 1988 and 1990, Turner announced his candidacy for mayor of Houston in June 1991. To establish residency, Turner shared a house inside the city limits with Thomas. In November 1991, Turner won a spot in the December 7 mayoral run-off with financier Bob Lanier.

On November 27, the Wednesday before Thanksgiving, private investigator Clyde Wilson called KTRK anchor Shara Fryer. Wilson told Fryer of a possible connection between Turner and the Foster insurance swindle. Wilson also referred Fryer to two other private investigators, Peary Perry and Bill Elliott. Elliott had been hired by Turner's estranged wife Cheryl to investigate Turner in connection with their pending divorce. Perry was a former policeman who served on Lanier's finance committee.

After talking to KTRK news director Tom Doerr, Fryer passed on Wilson's tip to reporter Wayne Dolcefino. Dolcefino talked to Wilson for less than five minutes and later talked to Elliott, who told him that he knew of no evidence linking Turner to an insurance scam. Elliott also referred Dolcefino to Colwell. After talking with Elliott, Dolcefino had lunch with Perry. Perry gave Dolcefino a one-page memo discussing the Foster insurance swindle and Turner's connection to it.

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Perry told Dolcefino that he was a Lanier supporter and had people working on getting the probate court records.

Twenty minutes after Dolcefino returned to the station, he received a package of probate court documents, apparently from Perry. These documents included pleadings, Clinton Foster's motion to disqualify Turner, the order disqualifying Turner, depositions from Turner, Bly, and the Coast Guard officer who investigated Foster's "death," Turner's fee application and its denial. Although Foster's will was not included in these documents, Turner's deposition described the will's provisions in detail.

On Thanksgiving day, Dolcefino went with a camera crew to the house shared by Turner and Thomas. Dolcefino interviewed each man separately on camera. Both denied any knowledge that Foster was alive or of insurance fraud. In the following two days Dolcefino spoke with several people about Turner's involvement in the Foster matter. One of these people was Colwell, with whom he spoke on the phone twice, the first time for about five to ten minutes and the second time only briefly. Dolcefino also spoke with Clinton Foster's lawyer, Carston Johannsen, who told him that he knew of no public information suggesting Turner's involvement in an insurance scam. Johannsen also told Dolcefino that Turner's bill had been rejected because Turner had not timely filed it. Dolcefino taped another interview with Turner on Friday at the KTRK studios, and Turner once again denied any involvement in an insurance scam.

KTRK first aired the story on December 1, six days before the runoff. On KTRK's 5:30 p.m. newscast, anchor Bob Boudreux began:

We begin tonight with word of what may be one of the biggest attempted insurance swindles in recent Houston history, the apparent conspiracy to fake the death of a 30-year-old Houston man with criminal troubles and millions of dollars in life insurance. Tonight, Wayne Dolcefino with his Thirteen Exclusive undercover investigation into a mystery with an explosive political twist.

Dolcefino continued:

That's right, Bob, because among the questions: What role did Houston mayoral candidate Sylvester Turner play in this tale of multi-million dollar fraud? We have been investigating Turner's role in this attempted insurance swindle since we first heard about it on the day before the Thanksgiving holiday. Our focus, what did Sylvester Turner know and when did he know it?

Dolcefino then described Foster's attempt to fake his death, identified Thomas as Foster's closest friend in Houston, and showed Thomas denying any knowledge...