Casso v. Brand

M.D., CASSO, Petitioner, Ramiro BRAND, Respondent.

Othal E.

No. C-7246. Texas.

May 10, 1989.

Rehearing Oct. Denied correctly applied existing

dеcision below Texas case prior we overrule two deci- that, sions of this court to hold as to some allegedly defamatory statements issue, negate defendant did actual malice judg- as a matter of law. affirm the We ment of the appeals part court of part, remanding portion reverse a of this proceed- cause to the trial court for further ings.

Facts brought Othal E. Brand this action based allegedly on statements made Dr. Rami- during political ro Casso and after their Brand, Mayor contest for of McAllen. incumbent, 9, 1981, May defeated Casso on brought July on suit year. same original petition complained Brand’s injured by defamatory he was false and statements two of Casso’s radio cam- paign advertisements. Both advertise- allegations ments focused on Casso’s Brand of and knew condoned certain al- leged brutality by acts of members of the Department. allega- McAllen Police These testimony given tions were based pending lawsuit, City federal Robles v. McAllen, (S.D.Tex. No. CA B-81-58 filed 1981), Borman, cap- James then senior Department. tain of the McAllen Police particular, alleged Brand that the fol- lowing statements from the Casso ads Reed, McAllen, Roger David Casso and defamatory: were false and petitioner. Captain Brand ordered Police Jim Bor Allee, McAllen, respon- Donald W. man, who testified this week before said dent. judge, that Brand himself ordered him to

destroy tapes. This clearly shows Mayor gave approval Brand OPINION brutality, these acts of he in later PHILLIPS, Justice. Chief destroy in tended to the evidence that showing This case involves defen- him. dicts convicts dant must make to obtain defamation, in a ac- ment Texas courts power we cannot leave in [R]emember brought by tion official this barbarian Brand that allowed the figure. court of reversed beatings brutalities and of our children in trial court’s favor of himself, Department, the Police he when remanded for a trial on the defendant and Brand, going knew what was on. merits, holding that defendant had failed to filed, After the Nation establish an absence of actual malice as a lаwsuit 26, 1981, magazine September in its issue matter of law. 742 S.W.2d 726. While the published Welch, Inc., several statements attributed to on Gertz v. Robert regarding timely Brand. Brand (1974), pleadings amended his where the complain of those explained: alleged statements as well. Specifically, he that this statement was false and defam- Under the First Amendment there is no atory: thing such as a false idea. However pernicious opinion seem, we de-

[According Casso, “Mr. Brand tried to pend for its correction con- make a deal which would have shut the judges juries science of but on the hospital city’s doors poor, to our without competition of other ideas. notifying even plan. citizens of the Apparently, he hadn’t bothered to look at however, point, We do not decide this city charter.” preserve because Casso has failed to this Nothing issue for our determination. Furthermore, complained he about Casso’s summary judgment, motion for or in alleged statement that Brand ruled McAl- reply, suggested Brand’s to the trial court “ayatollah” len like alleged and Casso’s question that the stаtements in were mere characterization of the Brand administra- therefore, opinions, and not actionable. tion as an “iron fist.” Rule 166a of the Texas Rules of Pro- Civil provides cedure History Litigation “shall be rendered if forthwith ... 1986, In February, Casso for sum- moved moving party is entitled to as a mary judgment, alleging that all the state- matter of law on the expressly issues set ments issue were either true or substan- out in any the motion or in an answer or true, tially absolutely conditionally were added.) response.” (Emphasis other privileged under Article 5432 of the Texas support all theories in of a Statutes,1 Revised Civil constituted fair judgment, issues, opposing as well as all comment, or were made without In malice. presented writing to the court motion, of this Casso attached his hearing. at the As this court stated affidavit, together own transcript with a Telephone Chessher v. Southwestern Bell Captain Borman’s entire testimony in the 563, (Tex.1983): “It is Robles response case. Brand filed a granted axiomatic that one not be supporting brief, summary judg- but no judgment as a matter of law on a cause of proof, response ment to the motion. action not addressed in a judg- The granted trial court Casso’s motion in proceeding.” ment entirety. its appeals, agree- The court of summary judgment, his motion for ing with Brand that Casso’s Casso did assert that the statements were ment negate did not one or more absolutely conditionally privileged, elements of Brand’s cause of action as a by he specific limited this claim a reference matter of reversed the {repealed art. Tex.Rev.Civ.Stat. the trial court and remanded the cause. 1985). statute, That now codified as Sec- granted application We for writ of error to tion 73.002 of the Practice Civil and Reme- granting examine our standards for sum- Code, “fair, applies only dies true and mary judgment public figure defamation impartial” pro- accounts of various official cases. ceedings or to the and fair “reasonable comment on or criticism of” an official act Opinion Fact vs. newspaper periodical. or other Thе initially argues in this court simply applicability statute has no to a opin that the statements in issue are mere private By waiting defendant like Casso. ions, defamatory. and thus not application He relies until his writ error Texas, 121, repealed by Revised Civil Statutes of the State Laws Civil Practice and Reme- 1, 5432, Code, Leg., 9(1), art. 39th § 1925 Tex.Rev.Civ.Stat. dies 3242, ch. sec. 1985 Tex.Gen.Laws approved (currently amended Act Mar. codified as Tex.Civ.Prac. (Vernon 1987)). Leg., Spec. ch. 40th 1927 Tex.Gen. & & Rem.Code Ann. 73.002 §

court, theory. City Casso waived this See 418 U.S. at 94 S.Ct. at Auth., Basin Houston v. Clear Creek at 806-07. (Tex.1979). 589 S.W.2d 671 decide, yet Court has however, this standard is also con whether the Parties Status of stitutionally required public when officials assume, pur Because we must figures private like Brand or sue review, poses of this the statements in individuals like Casso for defamation. capable being defamatory, issue were Proxmire, Ill, Hutchinson we must at the outset determine to what 133-34 2687 n. n. degree, any, the United States Constitu appro L.Ed.2d 430 n. 16 precludes or our common our tion law state priate standard is therefore left applying from its to Cas defamation laws Gertz, states for determination. alleged so’s statements. We hold that at Brand, official, as a cannot recover appeals, 807-10. Like the court of L.Ed.2d proves by convincing unless he clear and Brand, hesitancy requiring no we have evidence that Casso made false and defam under Texas common to meet the New him atory statements about with actual proof. York Times burden malice. questioned has not at 728. Brand himself Supreme public has held that Court standard, and we are reluctant to af public figures officials and must meet the greater protection ford constitutional convincing suing clear and burden when print members of the and broadcast media publishers or media defendants for def- ordinary The First than to citizens. “uninhibited, preserve amation order to equal dignity to free Amendment affords robust, wide-open” public debate speech press, and freedom of the dom of Sullivan, issues. New Times v. York Co. 731, Schuchat, n. see 510 F.2d 734 Davis v. 254, 270, 710, 721, 11 376 U.S. 84 S.Ct. (D.C.Cir.1975), 3 and the worth “[i]nherent 686, (1964). L.Ed.2d 701 As the Court ex- capacity speech in terms of its for ... plained in Gertz: informing depеnd upon the does not The New York Times standard defines identity the of its source.” First Nat’l protection ap- of constitutional the level 765, 777, Bellotti, 98 Bank v. 435 U.S. S.Ct. propriate context of defamation of We, 1407,1416, 707, (1978). 55 718 who, L.Ed.2d public person. Those reason thus, notoriety join have extended of the of their achievements or those states which vigor they the and success with which standard to def New York Times attention, public’s properly seek the are by public suits officials and amation public figures classed as and those who defendants.2 figures against non-media governmental hold office recover reputation only on injury for clear and as a Matter Law Truth

convincing proof defamatory summary judg Casso claims knowledge made falsehood was proper he ment was because established disregard falsity its or with reckless question of the statements as the truth. the truth cert, 212, denied, Exch., (1982), Antwerp 656 P.2d 216-17 461 2. See Diamond Inc. v. Better 523, 527, 945, 2122, (1983); Bureau, L.Ed.2d 1302 637 P.2d U.S. 103 S.Ct. 77 Business 130 Ariz. Filliben, Stores, 733, (1981); Dairy Publishing Inc. v. Sentinel 104 737 Jackson v. 281 A.2d 125, 153, 220, 604, (1986); (Del.1971); DeCar Mehau v. Gannett Pac. N.J. 516 A.2d 234 605 143-44, 312, DaSilva, 806, (R.I.1980); 133, A.2d 812 Corp., 66 658 P.2d 320 valho v. 414 Haw. Note, 205, (1983); Prоving Stieg, Truth or Ill.2d see abo The Burden Colson 89 449, 452-453, Setting Falsity N.E.2d a Standard 60 Ill.Dec. 433 249-50 Defamation: Comm’n, (1982); Involving Defendants, Housing Cases Nonmedia 62 N.Y.U. Anderson v. Low Rent Mertz, denied, (1987); (Iowa), Denny 106 454 L.Rev. 812 but see 304 N.W.2d cert. 141, 152-53, (1981); cert Wis.2d 318 N.W.2d 102 S.Ct. denied, (Minn. Rogers, L.Ed.2d 459 U.S. 103 S.Ct. Hirman v. 257 N.W.2d 66, 75-76, (1982). 1977); Pasma, Williams v. 202 Mont. argument per- Liberty This is not amation cases Anderson v. Lob- matter of law.3 First, claimed, Inc., by, suasive. Casso never éven proved, that all of the state-

much less L.Ed.2d summary- ments in issue were true. His Liberty Lobby, only Captain affidavit stated ruling “in on a motion for summa- held that testimony established that Brand Borman’s ry judgment, judge must view the evi- tapes ordered the destruction of certain through presented prism dence regarding police brutality. Casso’s evidentiary burden.” 477 U.S. substantive absolutely the truth or was silent about 264,106 at 91 L.Ed.2d at 215. falsity allegedly defamatory the other appropriate summary “the Moreover, proof does remarks. Casso’s question will be whether evidence not even the truth of Borman’s establish jury could a reasonable the record person That another has made testimony. finding plaintiff that the has shown either statement, oath, simply does even under convincing actual malice clear and evi- truth matter of not establish its as a law. has not.” 477 dence or that proof merely goes to his own state Casso’s 2514, 91 U.S. at 106 S.Ct. at mind, he not the truth of what said. L.Ed.2d at 216. Liberty Lobby counters that Brand Malice

Actual requirements, not on constitutional based Casso next contends that even procedure. merely on federal We question are facts and not statements granting ‍‌​‌‌​‌​‌‌​​​‌​‌​​‌‌‌​​‌‌‌‌​​​‌‌​​‌‌​‌‌​‌‌‌‌​‌​​​‍“spe- agree. The Court was not opinions, and if he has not even established procedural protections to defendants” cial truth, their he is still entitled to involved, type of the of case 477 because because, judgment a of he as matter 7, 7, 106 at 2514 n. 91 U.S. at 256 n. S.Ct. did not make the statements with actual (quoting 216 n. 7 Calder v. L.Ed.2d at prove malice. Since Brand must actual 1482, Jones, 783, 790-91,104 465 U.S. S.Ct. prevail, malice in order to Casso is entitled (1984)), L.Ed.2d 813 but 79 any as to state- to a merely applying general federal negate ment on which he can actual malice circum- particular rules to the as a matter of law. case. public figure defamation stances of a urges Casso first that a more liberal in his dissent: As Justice Brennan observed public fig standard not, holding today is of The Court’s required by ure defamation actions is the course, application to First confined its United States Constitution. Even if a com cases_ changes sum- It Amendment plainant hope has no substantial of even procedure for all liti- mary judgment vindication, tual the mere threat or act of na- gants, regardless of the substantive will, filing prosecuting he lawsuit litigation. underlying ture of the suggests, chilling have a effect on both 1,106 at 2515 n. at 257-58 n. S.Ct. 477 U.S. present the and future exercise of constitu J., (Brennan, n. 1 91 L.Ed.2d at 217-18 speech. tionally protected right of free dissenting) (emphasis original). Supreme rec claims that the Court courts Summary judgments federal ognized component constitutional assumptions, different public figure def- are based on summary judgments in time merits. We need not at this as an affirm- trial on the Both Casso and Brand treat truth every plaintiff any York Times stan- def- ative defense. Under the New decide whether dard, however, prove case, the must that regardless the of of his status or that amation part in chief. are false as of his case defendant, statements falsity prove element as an the Gertz, 94 S.Ct. at 41 418 U.S. at generally Philadel- his cause of action. of Times, 807; U.S. at York 376 L.Ed.2d at New Hepps, Newspapers, phia Inc. 11 L.Ed.2d at 706-07. 84 S.Ct. at (1986) (private- L.Ed.2d practical difference in makes no This distinction constitutionally required figure plaintiffs are summary judgment proceeding, a de- where falsity prove when su- the First Amendment either the burden in fendant movant bears event, defamation). ing defendants for media importance in a but it is of considerable purposes, summary judg summary judg- different than abandon our established procedure ment system, generally ments in In the federal either or the Texas. particular “[s]ummary facts of this case. judgment procedure proper ly regarded procedural not as a disfavored urges that Casso next the Texas Consti shortcut, integral part as an of rather summary judg tution requires a different whole, the Federal Rules as a which are Again, ment standard defamation cases. designеd just, ‘to speedy secure the disagree. recently we rec While have inexpensive every determination action.’ ognized possibility free the that our state Corp. Fed.Rule.Civ.Proc. 1.” Celotex speech guarantee be than broader Catrett, corresponding guarantee, federal see (1986). Thus, L.Ed.2d O’Quinn Bar, 397, 402 v. State S.W.2d place responsibilities federal courts on both (Tex.1988), protection, any, if that broader in the movants non-movants expense cannot come at of a def Celotex, judgment process. on decided right Un amation claimant’s to redress. day Lobby, plurali same Liberty Constitution, as like the States which United ty opinion right said: explicit guarantee contains no defamation, to sue the Texas Constitu 56c, for [Fed.R.Civ.P.j

Under protects bringing rep tion expressly proper pleadings, deposi- ment is “if the guarantee free torts. In the utational tions, interrogatories, answers to and ad- itself, speech our Constitution states: file, together missions on with the affida- vits, no any, genuine person liberty that there is shall Every show speak, publish opinions as to material fact and any issue that the write any being responsible moving party subject, to a as is entitled view, privilege.... abuse plain a matter of In our law.” 56(c) language Const, en- Rule mandates the I, added). (emphasis Tex. art. 8§ try summary judgment, after ade- courts, in guaranteeing And access to the quate discovery upon time mo- provides: our Constitution further tion, against fails party who to make open, every per- All shall be courts showing sufficient to establish the exist- lands, him, injury son done in his for an par- ence of an essential element goods, person reputation, shall have ty’s party and on which will by due course of law. remedy proof the at trial. bear burden added). I, (emphasis Tex. Const. art. § at at given effect. provisions These at 273. L.Ed.2d grant protec- While on occasion we law, course, Texas is different. While beyond tions defamation defendants to similar, language rule is our the of our in Consti- required those the United States language is interpretation of not. We tution, today requiring public have as we summary judgments merеly elimi use “to prove figure plaintiffs to official and patently unmeritorious claims and un nate private un- against their defendants actions defenses,” City Houston standard, tenable have the York Times we der New Authority, Clear Creek Basin not on common based those decisions (Tex.1979), n. 5 nothing we constitutional, never shift find grounds. We proof the burden of compels non-movantunless in the Texas Constitution which his has summary judgment procedure and until movant different “establish[ed] public figure entitlement defamation cases. presented to the trial expressly issues Moreover, overriding policy no see we all by conclusively proving essential court summary judg modifying our reasons for of action defense cause elements law. under the common ment standards at 678. Id. as a matter law.” urged us have some commentators While approach only adopt current federal involve Liberty Lobby and Celotex Hitt generally, e.g., procedural summary judgments law. application of federal Liberato, Summary Judgments compels ner & us to Nothing either decision Texas, vice-presi- Mary’s 20 St. L.J. 303-05 ment with an affidavit from its (1989), procedure dent, we believe our own elimi stating allegedly defamatory that the patently nates unmeritorious cases while adopted article from a UPI release. giving regard right jury due for the to a The affidavit set forth that UPI articles disputed questions. determination of routinely were used “without substantive I, 15; V, Tex. Const. art. art. 10. And § “reliable, § changes,” and that UPI was a although recognize we the constitutional accurate, prestigious news service with encouraging considerations for free and reputation for truth and a world-wide accu- expression pub untrammeled on matters of racy.” Id. at 635. The trial court granted interest, rigor lic concern or we believe ap- summary judgment and the court of New York Times stan ous burden reversed, affirmed, stating: peals but we adequately protects dard those interests. reliability affidavit on the [Defendant’s] Brown, 751 P.2d 942-43 Moffatt very the UPI wire service is similar to Stores, (Alaska 1988); Dairy Inc. v. Senti considered in the affidavit court 125, 156-57, Publishing nel 104 N.J. Beaumont Enterprise_ Both news- respectfully A.2d We papers’ par- affidavits were interested disagree jurisdictions with those that have witnesses; ty each asserted the reliabili- applied Liberty Lobby to their own summa ty accuracy admittedly false state- ry judgment practice, whether as a matter ments; in each case and the assertions procedure.4 of constitutional law or state knowledge based on of facts under were Interestingly, attempts never newspapers’ employ- the control of the support cur- under readily ees. These affidavits cannot be rent This Texas law. is understandable As in Beaumont Enter- controverted. light of two recent decisions of this court. ..., prise hold affi- we that [defendant’s] Enterprise In Beaumont & Journal v. made to the absence of davit establish Smith, (Tex.1985), 687 S.W.2d 729 the de- support malice will fendants offered as ment. reporter’s affidavit that she be- Id. at 636. lieved the contents of her article to be affidavit, likewise, is similar to Casso’s factually accurate and true. The trial Enterprise the affidavits in Beaumont granted summary judgment, court deсisions, summary Bessent. Under those court of This reversed. court af- virtually impossible is to obtain firmed, stating reporter’s that the affidavit If any action for defamation. we follow “as to her own state of mind not evi- them, appeals, as did the court of readily dence that could have been contro- 727-29, we, too, must remand to S.W.2d at verted; therefore it is not evidence that the merits. the district court for a trial on Id. summary judgment.” will are that would be a mis following We convinced year, 730. The reaffirmed apply take. Even those states which Beaumont Bessent v. Co., to Printing traditional standards Times-Herald 709 S.W.2d cases, recognition (Tex.1986). case, there is a 635 In that the defendant defamation give judicial at supported motion for that courts must “careful its Record, Inc., Marcum, 473, (Ala. N.C. So.2d 477 v. Greensboro News & 91 4. Williams v. 519 fitt 218, Inc., 221, 292, 1987); (1988); App. Dombey Newspapers, 150 371 S.E.2d v. Phoenix 293-94 78, 81, 476, 485-91, 562, Gall, (1986); v. 35 Ohio St.3d 518 Ariz. 724 P.2d 572-74 Varanese — U.S.—, 555, 1177, denied, Television, Inc., cert. 293 Ark. N.E.2d Drew v. KATV 2849, (1988); 680, 557, (1987); Gunth Planned 108 S.Ct. 101 L.Ed.2d 886 681-82 170, 175-76, 1, Gorton, Rodaway, Cal.App.3d 107 Wash.2d 727 eroth v. Protective Serv. v. 200 982, 8, (1986); 790, Long Egnor, (1988); v. 346 S.E.2d Cal.Rptr. P.2d 985 245 793 Reed v. 495, 778, (W.Va.1986); Co., Publishing O.C.A.W. Sinclair 124 IU.2d 785-86 Northwestern 283, 512, (Wyo.1987), ‍‌​‌‌​‌​‌‌​​​‌​‌​​‌‌‌​​‌‌‌‌​​​‌‌​​‌‌​‌‌​‌‌‌‌​‌​​​‍cert. 316, 324, Corp., P.2d 288-89 474, Oil 748 Ill.Dec. 125 530 N.E.2d 482 — U.S.—, 65, deniеd, (1988); Corp., 102 L.Ed.2d 414 N.W.2d 109 Behr v. Meredith Lowenthal, (Iowa 1987); (1988). News See also Della-Donna v. Gore 535 So.2d Bussie v. (Fla.Dist.Ct.App.1987) (La. 1988); papers Haygood First Natl 510 So.2d 984 n. 2 J., (Anstead, Bank, (Miss.1987); concurring). specially So.2d 555-56 Prof summary judgment nity prevail tention to motions to on the merits becomes more the context of the first amendment.” remote. Those actions with the least Mof fatt, Jersey 751 P.2d at 946. As the New likely chance of success are the most to be explained: pur- accorded a full trial. This stands the then, dispositive question, pose is on its head. whether genuine any there is a issue readily We that “could have believe been displayed disregard defendants reckless simply controverted” does not mean that publishing the two factual statements. summary judgment proof the movant’s implicates Because the issue the defen- easily conveniently have could been mind, approach dants’ state of we it with Rather, testimony it means that rebutted.5 respect difficulty granting for the due at issue is of a nature which can be effec Nonetheless, summary judgment. tively by opposing countеred evidence. If recognize summary judgment also that credibility deponent is of the affiant practice particularly is well-suited for the likely dispositive to be a factor the reso actions, determination of the fear of libel summary judgment lution of the then which can inhibit comment on matters of hand, other if the inappropriate. On the public concern. likelihood, must, come non-movant in all Stores, Dairy 104 N.J. at 516 A.2d at independent prevail, forth with evidence (citation omitted). prop summary judgment may well be then agree the courts of Alas- While we controverting of such er the absence Jersey that the Constitution ka and New proof. preferential does not mandate treatment trial, plaintiff prevail at To def- summary judgment for the motions of that defendant made false defendants, show their concern amation we share defamatory of fact “with knowl op- statement summary judgment procedures not rights. edge it false or with reckless discourage constitutional erate to or not.” opinion, approach disregard it was false In our Beaumont whether Bessent, being Sullivan, far from Enterprise York Times Co. v. New speech press con- to free and free 11 L.Ed.2d at sensitive 84 S.Ct. at at cerns, actually malice, defamation defen- treats in defamation as used 706. Actual sum- harshly more than movants for cases, separate dants of art which is is a term types of mary judgment in most other from traditional common law and distinct unconstitu- not be cases. While will, spite ill It does not include malice. tional, certainly insensitive to the vital it is motive, requires “sufficient rather evil liberty issues involved. permit the conclusion that the evidence serious in fact entertained defendant per rule Our publication.” truth of his as to the doubts granting of a mits the Thompson, Amant v. St. testimonial of uncontroverted on the basis 20 L.Ed.2d 88 S.Ct. if that an interested witness evidence of enough jury for the It is not direct, clear, oth positive and “is evidence Rather, testimony. disbelieve defendant’s free from contradic erwise credible clear and convinc must offer inconsistencies, could have tions and support a recov ing affirmative Tex.R.Civ.P. readily controverted.” been at 255- Lobby, 477 U.S. ery. Liberty appli 166a(c). in the difficulty arises at 216. liter prong. If read too the final cation of defendant’s that a it is conceivable While and Bes- as in Beaumont ally, rigors of cross- testimony, under the more trial sent, summary judgment becomes requisite examination, provide that could opportu- plaintiffs to as the difficult obtain (1977)). precise no antecedent It has readily controverted” have been 5. The "could State Bank v. Lewisville to rule 166a case see first added Texas standard was (Tex.1975), ap- Blanton, Civil Texas Riiles of and is amendments 525 S.W.2d 696 Court, Order of practice. See Texas unique Procedure. parently to Texas (reprinted 711— July in 40 Tex.B.J. proof, likely judicata, provides it is more res fails that will it because it no If proof judgment legal have to secure that evidence elsewhere. of such other or its during discovery he cannot secure it Finally, attempts negate effect. if it to process, unlikely he is to stumble on to it at malice, provides it no aсtual information as trial. knowledge statements to Casso’s that the were not false or were not made with reck- cases, types In other do all our courts disregard falsity. less to their truth ordinarily deny appropriate not otherwise short, proof meets none of the tests of summary judgment of a motions because clear, direct, posi- not rule 166a. It is subjective determination that the movant’s tive, from and it is not free contradictions proof readily cannot controverted. Nei- inconsistencies, and it could not have been they ther should do a defamation case involving readily 166a. public figure. official or controverted. Tex.R.Civ.P. say We therefore overrule our decisions We do not that Casso could not meet Enterprise Beaumont Bessent. and burden as to this case; that, part only say of the on this we Turning finally to the facts of this record, he has failed to do so. case, presented hold that suffi Accordingly, judgment of we affirm the proof summary judg cient to appeals the court of and return to the trial ment as tо all the statements in the adver portion proceedings court for further tisements Brand’s of the about destruction involving alleged Casso’s state- tapes. case Casso’s affidavit establishes as a ment to The Nation magazine. matter of We re- law he did not believe the allegations were false and did not act of the court of with verse disregard portion reckless as to their truth or falsi as to the radio ads and return this ty repeating allegations those his cam entry case to trial court for paign advertising. presented As Brand no partial summary judgment.6 controverting proof, summary judgment as proper.

to those statements was COOK, HIGHTOWER, SPEARS, DOGGETT, JJ., However, join opinion. in this negate Casso has failed to ac- tual malice as to the statements attributed JJ., MAUZY, file a GONZALEZ magazine to him in the article. His affida- concurring dissenting opinion. vit states: my is not THE fault what NATION PHILLIPS, C.J., dissenting

[I]t files a MAGAZINE and its writers stated in COOK, J., opinion joins. in which their article. That is another and I J., dissenting Ray, opinion. files a already understand that a has against rendered Brand. been Hecht, J., sitting. not At no time did I ever aсt with malice Justice, GONZALEZ, concurring and Brand, and did I toward Othal never dissenting. knowingly. I make an untrue statement regret person, that he is such a sensitive the court has cho disappointed I am logical I did to make but all first merely pay lip service to sen justified inference from facts known and has decided not amendment values personally. me growing of states that join the number their stan have revised This will not sustain give greater scrutiny dards to standards. If it at- judgment under our cases. figure public official defamation actually not tempts to state that Casso did only overrule Bessent statements, I would not it fails it is make the because Printing to Times-Herald attempts sufficiently specific. If it and Beaumont (Tex.1986) estoppel collateral or 635 assert the defense of dissenting opinion. disagrees opinion with this 6. The author of the separate disposition and notes his reasons in a Smith, (Tex. (a) & Journal v. 687 S.W.2d 729 he in City was medical doctor the 1985), give vitality McAllen; but would to the free of speech values embodied in our Texas Con (b) main campaign the issue in the was by applying summary stitution a striсter complaints brutality police by citizens’ of types standard in of def these Depart- of the members McAllen Police amation cases. ment; join I not the opinion do court’s for two (c) police Captain in the brutality First, reasons. the the court overlooks Borman, captain a senior on the McAllen question fact that the in were statements Department, Police testified under oath campaign. made in the heat of political given Brand, by that he was order an Second, because Casso asserted that the Police, through the to erase Chief of the privilege pro- common law fair comment videotapes; and Brand, tected the criticisms he leveled (d) at no time did he ever act with effectively Casso raised the issue malice never towards Brand and know- constitutionally pro- comments these were ingly made untrue statement. opinion. judg- I the tected would reverse Captain copy testimony A of Borman’s of the court of hold that appeals ment and Brand was attached the affidavit. filed granted court properly the trial Casso’s response any he present did not sum- summary judgment. motion for though mary judgment evidence even he 1981, Brand, early may- In the incumbent years had almost five to discover evidence or, campaign was embroiled an intense controverting allegations. Casso’s During for reelection. the course of the court motion granted The trial the for police involving campaign, brutality case specifying the without City being McAllen tried in the grounds ground or on it relied. The which district court in This federal Brownsville. appeals, relying court of court’s publicity case received extensive because and Beaumont Enter decisions Bessent during the trial videotapes the release prise held that Casso’s showing beatings by of prisoners McAllen malice, negate not one of did actual police officers. It is in this context that elements of cause of Brand’s action. said that Brand condoned acts of Casso the court of reversed the charged brutality by police, the McAllen judgment of the trial court and remanded ordered that Brand the distraction the cause for trial on the merits. When a tapes, Brand and an called a “barbarian” granting summary judg order trial court’s ruling him “ayatollah,” and criticized ground specify ment does filed City “an iron fist.” Brand with ruling, grounds summary relied on for its July, essen- this suit case appeal any will be affirmed on tially summary judg- laid dormant until the theories advanced are meritorious. hearing in February, ment Corp. Acceptance Borg-Warner summary judgment, motion for In his 140,142 (Tex.App. Corp., 679 S.W.2d C.I.T. asserted, things, that: among other Casso n.r.e.). I ref’d will —Amarillo writ (1) question ... the statements grounds any of the discuss whether now and were justified the occasion were support Casso asserted were and criticism and fair comment judgment. interest; faith, mal- (2) good he acted without Opinion Fact or ice; good cause and reasonable of the state- that the contents to believe cases, need to types of distin- In these true. ments were opinions statements of guish between opinion Derogatory statements fact. motion exempted by the common from libel are judgment, presented Texas Con- United States consisting of his affidavit law ment evidence False are statements that: stitutions. he stated which

561 Cir.1984). Thus, so exempted. publication To the sustain a defamation whether is action, public public expression opinion cause of official or of protected a or an figure (1) prove question that the defendant statement of is a actionable (2) published fact; a false statement of of for the court. The law Oilman court concerning defamatory public offi- a four devised factor test facilitate this (3) public figure; cial or and state- 979; Kerr, that the distinction. Id. at 706 S.W.2d ment was made with actual malice. New at These factors be discussed and 798. will Sullivan, 254, York Times Co. 376 v. U.S. opinion. later in applied this 279-80, 710, 725-26, 84 S.Ct. argue specifically did not before (1964); 4, Briggs, 686 Channel KGBT v. ques- court the trial that the statements 939, (Tex.1988).1 759 S.W.2d 941 opinion of tion mere statements and were noted, however, previously did,

As all of assertions therefore not He actionable. protected by are opiniоn the first amend assert that the statements came within the of ment the United States Constitution and purview of the law fair comment common I, of section 8 article Texas Constitu privilege applicable only opin- which is Inc., Welch, 418 Thus, tion. See Gertz v. Robert effect, ions. Casso raised and 323, 3006-07, 2997, 94 S.Ct. 41 preserved argument the state- O’Quinn (1974); Bar, 789 L.Ed.2d v. State question mere ments were statements of 397, (Tex.1988); 763 S.W.2d 402 El Paso opinion. Times, Kerr, 797, Inc. v. 706 S.W.2d 798 (Tex.App. n.r.e.), Paso writ Fair Comment ref’d —El

cert, denied, 480 U.S. quali common Under there exists a (1987). 94 L.Ed.2d 761 (defense) opinions privilege fied for in the The core values the first amendment privilege form fair comment. The is “recognition reflect a of the fundamental qualified is because after it established importance of the free flow ideas defendant, showing by opinions public on matters of interest privilege. destroys actual malice Criti Falwell, Magazine concern.” Hustler regarding ‍‌​‌‌​‌​‌‌​​​‌​‌​​‌‌‌​​‌‌‌‌​​​‌‌​​‌‌​‌‌​‌‌‌‌​‌​​​‍the acts or conduct cism official 46, —, 108 public public officials and candidates L.Ed.2d office, qualifications office, is or their privileged and not Sеe Rawlins v. Gertz, libelous. Court stated: McKee, (Tex.Civ.App. Under the First Amendment there no n.r.e.). d —Texarkana ref What writ thing such as false idea. However qualification of a candi pertains ever to the

pernicious seem, opinion may an we de- certainly legit date for office is pend for its correction con- not on the subject imate for discussion comment juries science judges on the campaign. political in a competition of other ideas. But there is no constitutional value in state- false privilege fair comment has been co- ments of lie fact. Neither the intentional part respect press dified in materially nor the careless error ad- our statutes. Tex.Civ.Prac. & libel “uninhibited, society’s vances interest in (Vernon 1986). Ann. Rem.Code 73.002 § robust, wide-open debate on However, this codification does not affect issues.” the existence of common law defenses to Gertz, 3006- Tex.Civ.Prac. Rem.Code Ann. U.S. at 94 S.Ct. at libel. & (Vernon Gertz, Times, 1986). (quoting U.S. at after New York 73.006 § 721). statement, By privilege 84 S.Ct. at the common law fair comment vitality, principle elevated to continues to have at least insofar Gertz constitutional opinion. preserves point assertion of the distinction between fact and as the it (D.C. Evans, alleged defamatory 750 F.2d that the statements are Oilman Briggs, plurality It is odd that the does not cite of law. writing area this court’s most recent in this protected Oilman, constitutionally expressions of Under the statements “barbarian,” opinion. See Prosser and Keeton on the Brand was a ruled McAllen (W. Torts, “ayatollah,” Law 115.5 Keeton 5th ed. like an and that his adminis- § 1984). unmistakably tration was “iron fist” are “loosely “variously definable” and inter- practice litigants is for better pretable” opinion statements of made in specifically particular assert that a state- political campaign. the heat of a The state- ment is not actionable is a because it state- Thus, obviously ments are unverifiable. as if opinion, ment of this is their defense. a matter of these are statements of Nevertheless, because the fair comment opinion. privilege protects only opin- statements of I Finally, ques- to more turn the difficult ion, I conclude that the issue of whether following tion of the whether statement opinion the word was an “barbarian” was magazine published is in The Nation ac- review, preserved for our as were the tionable: ruled statements that Brand McAllen like Casso, [According to “Mr. Brand tried to “ayatollah,” leadership style fist,” amake deal which would have shut the City to rule an “iron was the with hospital city’s poor, to doors our without to that Brand tried “make a deal which plan. the notifying even citizens of the hospital ... would have shut doors [the] he to look Apparently, hadn’t bothered poor_”2 I apply ... would the four City charter.” previously Oilman factors mentioned to determine whether these statements were Oilman, is Under this statement closer opinion. of fact or of published opinion. than It was af- campaign ter the had ended and is consid- Analysis The Oilman erably previously more verifiable than the Nevertheless, mentioned statements. as requires The first factor a сourt to ana- section, will in the next sum- be discussed lyze usage meaning of the common proper mary judgment because still allegedly defamatory words themselves to satisfy failed to his burden of Brand determine whether the statements have on the issue of malice under either precise meaning giving rise to clear factual procedure I current standard Oilman, implications. 750 F.2d at 979-80. propose. “Loosely “variously inter- definable” or pretable” in most statements cannot con- Actual Malice texts an action for defamation. Id. argues factor re- that even he failed to

at 980. The second Oilman true, degree prove sum- quires a that the statements were court to consider the mary judgment should have been sustained which the statements are verifiable. Id. at prove by clear and rationally A view an because Brand failed to reader cannot convincing that malice existed. conveying as actual evidence unverifiable statement has declared that is to con- The facts. third Oilman factor “prohibits a оfficial linguistic allegedly first amendment sider the context recovering defamatory for a defamatory damages from statements. Id. at 982. relating to conduct opinion can his official fact and falsehood distinction between proves he that the statement only in context. The fourth Oilman unless made New York the social made with ‘actual malice’....” directs a court to examine factor Times, 84 S.Ct. at 725- 376 U.S. at the statements occur. context which Briggs, at 941. quoted into fully take account the Courts should standard was later or customs in The New York Times different social conventions brought by public (or suits settings). extended libel types writing Id. different figures Publishing Co. v. as well. Curtis at 984. Torts, (Second) Robertson, com- § Restatement First also 2. See Defamation Welch, (1977). In Praise v. Robert Amendment: ment a Gertz Inc., 201 & n. 17 54 Tex.L.Rev. Butts, 130, 164, er to actual malice clear and 388 U.S. 87 S.Ct. find (1967)(Warren, C.J., convincing sum, 18 L.Ed.2d 1094 evidence.... concurring). present In the un- it is conclude that determination disputed that Brand is a official. given dispute requires whether a factual action, an element of his as cause of guided jury to a must be submission proving by Brand had the burden at trial of the substantive evidentiary standards convincing clear and evidence that Casso apply This is true at case. Corp. malice. See Bose acted actual both the directed verdict and States, v. Consumers Union United stages. Inc., 30,104 n. Liberty Lobby, Anderson v. (1984); Gertz, 1965 n. 80 L.Ed.2d 502 418 U.S. at 94 S.Ct. at 3008. Actual added). However, (1986) (emphasis making malice is the of a statement with opinion as to there exists a difference of false, knowledge that it is or reckless Liberty Lobby was based on first whether Gertz, disregard of whether it is true. merely or on amendment substantive law U.S. at 94 S.Ct. at 3001. “Reckless Briggs, See procedure. federal disregard” high degree is defined as of a (Gonzalez, J., concurring). at 943-44 probable falsity, proof of awareness of present In the the court of present which the must “sufficient Liberty Lobby. did not discuss or consider permit the conclusion that the evidence ‍‌​‌‌​‌​‌‌​​​‌​‌​​‌‌‌​​‌‌‌‌​​​‌‌​​‌‌​‌‌​‌‌‌‌​‌​​​‍Instead, appeals applied court of tradi- in defendant fact entertained serious summary judgment tional Texas standards publication.” doubts as to the of his truth Liberty Lobby рrior formulated which Thompson, 727, 731, St. Amant 390 U.S. plaintiffs are tilted favor of defamation 1323, 1325, 20 L.Ed.2d 262 place on the defendants at and the burden enough. An error in is not summary judgment to show of ac- absence Time, 279, 290, Pape, Inc. v. Enterprise, tual malice. Beaumont (1971); 28 L.Ed.2d 45 Bessent, 730; See also S.W.2d at Briggs, 759 S.W.2d at 941. at 636. S.W.2d question presented in this case Bessent, In Beaumont and official, is: must a at the ability the defendant’s to sat- we restricted judgment stage, prove by clear and con- holding isfy by that affidavits this burden vincing evidence that the defendant made of malice are not made to establish absence false statements or entertained serious that will evidence doubts as to the truth of the statements Thus, Texas, obtaining a summa- ment. question? way, another is the con- Stated mal- ry judgment on the basis of no actual requirement public offi- stitutional that a I impossible. While ice has next been prove cial the existence of actual malice decisionto overrule these join in the court’s convincing clear in a def- evidence cases, goes far trial, I do not think the court two applicаble only or amation action today’s I deci- enough. am concerned necessary inquiry at is this a relevant and go permit plaintiffs to may sion still libel stage as well? they if do not their case even arguably forward with answered convincing of actu- have clear and evidence question when it said: so, may is defendants al malice. If this determining genuine factual When put up only with the costs still have to to actual malice exists a libel issue as litiga- protracted of also the burdens brought public figure, a trial suit constitutionally tion in order to vindicate quan- in mind the actual court bear rights. system guaranteed Our current necessary to quality proof tum and provide it does not fails them because support liability under New York Times. out meritless system to filter effective genuine is no issue there example, For full trial. blown oppos- cases without presented the evidence if ing of a being put to the defense caliber threat of of insufficient affidavits frivolous, lawsuit, in order to vin- a rational however quality to allow find- Lobby, rights speech chilling separate indepen dicate of free has a is based on principle pub- on on grounds. effect “the debate dent state uninhibited, robust, and lic issues ... be wide-open, and that it well include Texas Constitution vehement, caustic, unpleas- and sometimes I, Article section 8 of the Texas Constitu- antly sharp government attacks on provides: tion Brown, officials.” Moffatt Every person liberty speak, shall be at (Alaska 1988) (quoting New P.2d opinions any publish write or sub- Times, York 376 U.S. at 84 S.Ct. at ject, being responsible for the abuse of 721). privilege; and no law shall ever be Therefore, self-censorship pres- to lessen curtailing speech passed liberty sure, I evi- would view press. interpretive dence with no bias favor Rights Bill of states: The United States either side and allocate the burden abridging “Congress shall make no law ... persuasion minimize the self- so as to speech press....” or of the the freedom litigation. censorship effects defamation Const, rights Arguably, amend. I. A This is not a novel or a new idea. guaranteed by speech press free our growing number of оur sister states have are more extensive than Texas Constitution special summary judgment pro- adopted a guaranteed by the Con- those United States brought by pub suits cedure defamation O’Quinn, 402; stitution. See at S.W.2d See, e.g., figures public lic or officials. (Gon- Briggs, 759 S.W.2d at 944. see also Inc., Newspapers,

Dombey v. Phoenix 150 zalez, J., concurring). The Texas Constitu- 476, 562, 485-91, Ariz. 724 P.2d 571-76 provides tion also that: Superior Digest Ass’n v. (1986); Reader’s Court, 244, 251-52, 37 Cal.3d Cal.Rptr. per- 208 open, every All courts shall be 610, (1984); lands, 137, him, 690 P.2d 613-14 in his injury son for an done Gorton, Serv., Protective Inc. v. Planned goods, person reputation, shall have 790, 1, 8, Cal.Rptr. 245 Cal.App.3d 200 course of the law. remedy due Nestande, 192 Cal. (1988); Miller v. 793 I, art. Tex. Const. § 359, 191,196-98, Cal.Rptr. 237 361- App.3d Thus, competing in the have values Koltnow, 119, DiLeo v. (1987); 200 Colo. 62 speech Texas freedom Constitution: Reed v. 318, (1980); 125, 323 613 P.2d hand; protect one’s one the intent Co., Publishing Ill.2d Northwestern 124 state other. Given our reputation on the (1988); 495, 512, 474, 481-82 530 N.E.2d principle that debate on to the commitment Lowenthal, 378, n. Bussie v. 535 So.2d 380 uninhibited, robust and public issues be Fox, v. (La.1988); NJ.Super. 215 Hudak 2 speech embodied wide-open, the free values (1987); 889, 233, A.2d 891-92 521 strong- have the in the Texas Constitution Co., 497, 123 A.D.2d v. Gannett Sсacchetti safeguards procedural special est claim (1986); Vara 498, 337, 339 507 N.Y.S.2d stan- apply a stricter mandate that we 81, Gall, 518 nese v. 35 Ohio St.3d figure def- official dard — cert, denied, 1177, 1181, N.E.2d Tucker, Ex Parte amation actions. See 886 —, (1920). 75, 76 110 Tex. 220 S.W. Hubbart, 111 (1988); Margóles v. Wash.2d proce Thus, modify our current I would (1988); Her 195, 200, P.2d 326-27 760 I of cases. would types dure these Co., Publishing 108 ron v. Tribune place practice current continue P.2d 255-56 736 Wash.2d on the initial burden Long Egnor, v. (1987); 346 S.E.2d presence of actual negate the defendant Frontier (W.Va.1986); Adams v. 785-86 satisfied can now be This burden malice. Co., (Wyo. 562 Broadcasting 555 P.2d affidavit, as well as by the defendant’s own prove 1976). heightened This burden evi other forms convincing evi by clear and malice actual in Texas. See Tex.R. authorized stage, dence dence at has met defendant Liberty Civ.P. 166a. Once the spirit of with the consistent while

565 Justice, MAUZY, concurring and burden, modify I our cur initial would dissenting. hold practice rent burden persuasion shifts to the

production and majority to- respectfully I dissent. of actual plaintiff to show the existence cavalierly ignores decisis and day stаre convincing by clear and evidence malice decisions the court’s recent overrules ultimately be introduced that can Printing v. Times-Herald Bessent Liberato, (Tex.1986), fact. Hittner & and Beaumont trier of See Smith, Texas, v. Summary Judgments St. & Journal (Tex.1985). decisis While stare S.W.2d Mary’s generally L.J. doctrine, I see no a flexible should remain Sakowitz, Steck, Inc. S.W.2d established compelling reason overturn (Tex.1984). If the fails to in this area summary judgment law Texas given being after an am meet this burden of the law. discovery, ple opportunity to conduct trial court should sustain the defendant’s Nonetheless, correct the trial court was summary judgment. for Casso. rendering summary judgment motion oppor- an years, Brand had For almost five an present In the Casso submitted discovery to re- his own tunity to conduct his motion for affidavit with allegations of lack of malice but Casso’s stated, part, in relevant which issue but chose attempt to raise a fact malice no time did I ever act with “At to do so. Under Channel KGBT Brand, did I make ... and never towards (Tex.1988),consid- Briggs, 759 S.W.2d knowingly.” an untrue statement parties еring presented by the the evidence negating Casso met his initial burden malice, the trial court on the issue of actual presence of actual malice. The burden rendering summary judg- was correct the existence then shifted to Brand to show reason, judg- For this ment for Casso. convincing malice clear and evidence. should be ment of the court This he failed to do. court should that of the trial reversed and public figure plaintiff filed a Briggs, affirmed. ap- suit remained dormant libel which Justice, PHILLIPS, dissenting. Chief years. and one-half proximately two discovery in at 942. All Briggs, 759 S.W.2d opinion, majority’s join I in all of the conducted the defendants. the case was authorized, decision except I for the which ample opportunity to con- The had ren- the cause should be portion that a discovery, apparently chose not to duct but to the trial than remanded dered rather Therefore, this court held that sum- Appellate do so. Procedure court. Texas Rule in a cause mary judgment favor of the defendants this court to remand 180 allows appear “it shall cause where proper. portion of a was demands an- of the cause justice Similarly, ample opportunity Brand had I Tex.R.App.P. 180. believe trial.” other (almost his dis- years) to conduct own five this is such a case. evidence, controverting covery and offer a announced this court past, In the when so. Because any, chose not to do theo- practice, and “the new change in trial allegation of failed to Casso’s Brand rebut evi- and different required new ry or rule attempt to raise a malice lack of Co., dence,” v. Cessna Duncan Aircraft issue, the identical situation we have (Tex.1984), have 414, 433 665 S.W.2d and we should presented Briggs here as a remand required recognized justice result. reach the same Corp. L.M.B. proceedings. See for further stricter sum- Briggs or the Under either (Tex.1973) 300, 303 Gurecky, v. the tri- propose, I mary judgment standard practice justify changes in the trial (“these rendering summary was correct al court ... of this cause remand this court’s judgment in favor of Casso. Liebman, 404 justice”); Scott interest (remand рroper (Tex.1966) reasons, S.W.2d I dissent. For these changes present any “when this Court the rules after Texas law to evidence in order generally tried”). has the case been to defeat Casso’s motion. Justice,” . In the Interest of Calvert, I correctly believe the court has acted Mary’s St. L.J. 291 A remand is overruling Bessent and Beaumont Enter- especially appropriate appeal in an from a prise. however, doing, In so not we should summary judgment, parties where the have deny opportunity respond Brand the to to yet expense put not been of a trial proof. re- Casso’s Parties should not be opportunity reviewing and there is no for a quired, having day at the risk of their apply court to the harmless error rule. court, anticipate supreme to court preparing response to Casso’s precedents. its I will abandon own would motion, summary judgment Brand was therefore remand this entire cause to the clearly rely entitled to on our recent deci- proceedings.1 trial court for further Enterprise sions in Beaumont & Journal Smith, (Tex.1985), 687 S.W.2d 729 and COOK, J., joins dissenting in this Co., Printing Bessent v. Times-Herald opinion. (Tex.1986). Both of these S.W.2d RAY, Justice, dissenting. sup- cases held that a defendant could not respectfully majority I dissent. The to public fig- port summary judgment a ignores needlessly day stare decisis ure defamation case mere state of mind the court’s recent decisions in overrules recognizes, evidence. As the court Casso’s Enterprise. Bessent and Beaumont Bes simply affidavit was insufficient Printing sent v. Times-Herald judgment existing evidence under case law. Beaumont Enter (Tex.1986); today, required Brand under S.W.2d 635 Until was concurring position Mauzy’s opinion supports conclusion 1. The of Justice further its by alluding "opportunity dissenting confusing at- opinion Brand’s ... is and contra- during nearly tempt raise a fact issue” dictory. purporting While follow Beaumont five-year pendency Bessent, of this case in the trial court. opinion would suggestion implicit is that nevertheless reverse the of the court favorably be more viewed when ment should and render long time to conduct the non-movant has had a judicial legerdemain wholly un- Casso. This Again, discovery prepare this fact a case. satisfactory. granting nothing the standard for has to do with cannot Casso’s affidavit summary judgment. at bar was filed The case Enterprise and Bes under Beaumont ensuing years July in the on goes only sent because it to Casso’s state oí pre-trial subject and docket con- of several Briggs, KGBT v. mind. Unlike Channel settings. and at least two trial trol conferences (Tex.1988), here did not S.W.2d the movant Defendant first moved for objective, explanation of establish an verifiable 7,1986. history strength- February Does this making allegedly de his lack of malice in so, If the concur- motion? en the defendant’s ring famatory as statement. Even Casso makes no advocating dissenting opinion summary judg to a sertion that he was entitled this rule: Bessent, Enterprise and ment under Beaumont right his A movant must establish dissenting opinion, concurring with but the law unless he is as a matter of any explanation, out so concludes. motion, bringing dilatory in which suggested by the concur- An additional reason granted on lesser motion will be event his ring dissenting opinion Brand filed is that (or perhaps regardless proof) unless summary judgment proof. is irrel- This fact no respondent forth and raises comes respondent no has evant. Under Texas issue. controverting proof duty bring any un- forth advocated, being has indeed it If this standard is hardly has, by proof, his own less and until the movant clarity ‍‌​‌‌​‌​‌‌​​​‌​‌​​‌‌‌​​‌‌‌‌​​​‌‌​​‌‌​‌‌​‌‌‌‌​‌​​​‍articulated with sufficient been judgment. right to a established his application permit to future cases. its Auth., City Creek Basin short, Houston v. Clear concurring Mauzy’s dis- Justice (Tex.1979). To relax the mov- necessary senting opinion provides vote to response simply no has day because ant’s burden as to most of deprive of his in court Brand adopt the any cognizable in essence be to providing been filed would ratio- his case without summary judgment. See If one believes federal standard that result. nale to Catrett, Corp. should remain and Bessent Celotex Beaumont Texas, join hardly only course is to This is law in L.Ed.2d things urging in all opinion's impassioned the affirmance de- the dissent with the consistent appeals. judgment of the court of the stare decisis. fense of Smith, prise & 687 S.W.2d 729 Journal v.

(Tex.1985). should re While stare decisis doctrine, I compel

main a flexible see no

ling to overturn Texas reason established

summary judgment law. majority feels must

Even if the it over- Enterprise,

rule Beaumont Bessent it do very least could would be to a new interest of

remand for trial

justice pursuant to rule of the Texas Appellate Mayor

Rules of Procedure. justifiably opinions

Brand relied on our Enterprise.

Bessent and Beaumont He punished failing to divine

should not be development future

the court’s law. A. CARR and Al

Walter

Thiel, Petitioners,

Lynn BRASHER, Respondent.

No. C-7248.

Supreme Court Texas.

May 1989.

Rehearing Denied June

Case Details

Case Name: Casso v. Brand

Court Name: Texas Supreme Court

Date Published: May 10, 1989

Citation: 776 S.W.2d 551

Docket Number: C-7246

Court Abbreviation: Tex.