Wise v. Dallas Southwest Media Corp.

• Decision Date: 27 December 1979
• Docket Number: No. 8369,8369
• Citation: 596 S.W.2d 533
• Parties: 6 Media L. Rep. 1569 Wes WISE v. DALLAS SOUTHWEST MEDIA CORPORATION et al.
• Court: Texas Court of Appeals

Page 533

596 S.W.2d 533

6 Media L. Rep. 1569

Wes WISE v. DALLAS SOUTHWEST MEDIA CORPORATION et al.

No. 8369.

Court of Civil Appeals of Texas, Beaumont.

Dec. 27, 1979.

Rehearing Denied Jan. 31, 1980.

George Kolb, B. Prater Monning, III, Dallas, for appellant.

Donald Templin, George Bramblet, Jr., Stanley E. Neely, Stephen Philbin, Mike McKool, Jr., Douglas Cawley, Dallas, for appellees.

KEITH, Justice.

Plaintiff below appeals from an adverse summary judgment rendered in his libel action. At all times material to this suit, plaintiff was the duly elected mayor of the City of Dallas. The publication forming the basis of his claim for damages appeared in the January 1975 issue of "D, The Magazine of Dallas", at a time when plaintiff was preparing for his third successful mayoral campaign.

Plaintiff named the following defendants: (1) Dallas Southwest Media Corporation, corporate publisher of the magazine; (2) Wick Allison, its editor and publisher; (3) Jim Atkinson, the author of the article; and (4) Ray Hunt, a stockholder and director of the corporate publisher.

It is sufficient to state at this point that plaintiff's allegations were clear, concise, and stated a cause of action for libel under the current legal teachings to be discussed hereinafter. Defendants' pleadings were likewise adequate tendering, inter alia, their first amendment privilege, statutory privilege, opinion privilege, truth, etc. After extensive pre-trial discovery, defendants filed their motions for judgment; and, after appropriate notice, such motions were granted, judgment entered for defendants and plaintiff appeals.

We have been furnished with excellent briefs by counsel for the parties wherein the leading cases on each facet of the law are discussed in detail. ¹ Plaintiff concedes the applicability of the rationale of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964). He admits that he may not recover upon a trial of the merits by proving falsity and harm alone. As a public official, he admits that he must show actual malice the publication of untrue statements with knowledge of falsity or with reckless disregard for the truth.

Upon this appeal, the parties labor long and hard over the placement of such burden in a case heard under the summary judgment procedure. A fair reading of the briefs of defendants indicates that they take the position that when the individual defendants filed their affidavits stating that they believed that the challenged article was a fair and accurate statement, they disproved actual malice. Or, stated differently, the affidavits established such fact as being true, thereby eliminating the possibility that a trier of facts might come to a contrary conclusion relying upon circumstantial evidence.

Jim Atkinson's affidavit attached to the motion for summary judgment is typical of those filed on behalf of the individual defendants. It reads in part:

"I am the author of 'The Unauthorized Biography of Wes Wise', published in the January 1975 issue of D, The Magazine of Dallas. The principal subject of this story was at the time of publication the Mayor of Dallas, Texas. I did not write anything about Wise in the story which I believed to be untrue or false or which I suspected to be untrue or false. At no time prior to the publication of the story did I entertain any doubts about the truth of the statements concerning Wes Wise, made in the story."

A similar affidavit of Wick Allison, president of the corporation and publisher of the magazine is quoted in part in the margin. ²

The affidavit of Ray Hunt is more detailed and is corroborated by affidavits from Atkinson, Allison, and one James Oberwetter. In substance, Hunt swore that Wise called him asking if the proposed article was one which would "gut" him; Hunt talked with Allison and was assured that such would not be the purpose of the article, and so relayed the news to Wise. Upon this basis, according to Wise, he consented to the interview which formed the basis of the article. Hunt swore that he did not read the article prior to its publication and relied upon the statements of Allison and Oberwetter that the article would be factually true, etc.

Under our view of the record, the cause must be remanded for trial on the merits. Consequently, we refrain from commenting upon issues of fact which remain in the case. One relatively simple fact is sufficient to illustrate our view: The article quoted some unnamed member of the City Council of the City of Dallas as having told the author Atkinson:

" 'I think it really took its toll on him,' says a current member of the council. 'Wes was different one day. I think the embarrassment broke him.' "

Five affidavits of council members were attached, each denying he made such a statement; none were filed showing the statement was made by any of the other members of the council.

The question which we must now answer may be stated in these words: Did the 1978 amendment to Tex.R.Civ.P. 166-A overturn and render inoperative the holding in Jackson v. Cheatwood, 445 S.W.2d 513, 514 (Tex.1969)? ³ Chief Justice Williams in Kennedy v. Texoma Broadcasters, Inc., 507 S.W.2d 864, 867 (Tex.Civ.App. Dallas 1974, no writ), followed Jackson v. Cheatwood. More importantly, he also collated the cases holding that the defendant's denial of knowledge of falsity and lack of malice, coming from an interested witness, would not support a summary judgment, but raised only an issue of fact for determination at the conventional trial. ⁴

The most recent expression on the subject by our Supreme Court is the Clear Lake Case (footnote 1, supra), where the Court recognized the continued existence of the rule set out in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952), as paraphrased in footnote 5:

"The function of the summary judgment is not to deprive a litigant of his right to trial by jury, but to eliminate patently unmeritorious claims and untenable defenses." (589 S.W.2d at 678 n.5)

The rule applicable to this case is also to be found in the Clear Lake Case, supra, wherein the Court upheld the continuing vitality of a rule of long standing:

"The movant still must establish his entitlement to a summary judgment on the issues expressly presented to the...