Ester Salinas v. Pat Townsend and Norberto Salinas
365 S.W.3d 368
Tex. App.2011Background
- Ester Salinas sued Pat Townsend and Norberto Salinas for defamation based on four statements (2003 city council, 2005 city council, 2008 TV interview, and comments to private witnesses) alleging criminal conduct or corrupting behavior related to Hayes-Sammons contamination in Mission, Texas.
- Townsend served as mayor (1984–1992) and city manager (1995–2001); Norberto Salinas is the current mayor.
- Salinas acted as a community activist on contaminated-site issues and uncovered EPA-designated Superfund sites, advocating relocation for affected residents.
- Salinas had a prior fee-sharing arrangement with an attorney she later believed violated ethics rules, and she helped hire toxicologists in 2000 to test contaminated sites.
- The trial court held the March 24, 2003 statement defamatory per se as to Townsend and the other statements defamatory per se as to Salinas; the jury determined actual malice for the statements, and Townsend was awarded damages while Salinas was awarded damage as well; on appeal, the court reversed Townsend’s liability and affirmed other aspects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2003 statement was defamatory per se | Townsend argues the remarks alleged criminal conduct | Salinas contends the remarks are per se defamatory | Not defamatory per se; Townsend's claims dismissed |
| Whether the 2008 TV statement was defamatory per se and made with actual malice | Salinas argues per se defamation and absence of malice | Salinas contends insufficient proof of malice | Defamatory per se; evidence supports actual malice; damages upholding affirmed for Salinas |
| Whether mental anguish proof was required where statements are per se | Salinas claims mental anguish proof needed | Appellees need not prove mental anguish for per se defamation | Mental anguish proof not required where statements are per se defamatory |
| Variance between pleadings and proof regarding the 2008 TV statement | Salinas argues pleading did not match proof | Variance not substantial or prejudicial | Not reversible; broad damages verdict sustains as of valid grounds |
| Admission of the fee-sharing agreement evidence | Evidence was irrelevant and prejudicial | Evidence relevant to ordinary malice and motive | Admissible; probative value outweighed prejudice; issue not reversible |
Key Cases Cited
- New Times, Inc. v. Isaacks, 146 S.W.3d 144 (Tex. 2004) (defamatory meaning requires consideration of surrounding circumstances; public figure standard)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (opinion vs fact distinction; statements may imply assertions of fact)
- Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000) (defamation involving public figures; requires falsity and malice standard)
- Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640 (Tex. 1995) (elements of slander; falsity, publication, and damages; truth as defense)
- Gill, American Broad. Cos., Inc. v. Gill, 6 S.W.3d 19 (Tex. App. – San Antonio 1999) (statements must be capable of defamatory meaning; ambiguous language factual test)
- Minyard Food Stores, Inc. v. Goodman, 50 S.W.3d 131 (Tex. App. – Fort Worth 2001) (per se categories; when per se, no need for extra damages proof)
- Bose Corp. v. Consumers Union, 466 U.S. 485 (U.S. 1984) (actual malice standard for public figures)
- Hustler Magazine v. Falwell, 485 U.S. 46 (U.S. 1988) (public figure protections and opinion versus fact)