Durham v. Cannan Communications, Inc.

rаte indebtedness that then they set out me hold personally responsible, and DURHAM, Jr., Appellant, D. James they, instance, when in the first never intended to extend me any credit COMMUNICATIONS, CANNAN alleged. above INC., Appellee. We hold that fails to affidavit

raise the defense of no consideration be No. 07-82-0235-CV.

cause extension of further credit to the Texas, Appeals Court of corporation, acceptance of a renewal Amarillo. consideration, note regard sufficient guarantor less of whether received 15, Dec. 1982. Gaines, benefit. See Bonner Oil Co. v. 10, Denied Rehearing Jan. 1983. 232, 191 552, Tex. (1917); S.W. Cortez v. 3, Rehearing Feb. Second Denied Brownsville, Bank National of Commerce of 578 S.W.2d 476 (Tex.Civ.App. Corpus— 1979,

Christi n.r.e.). writ ref’d

Neither does raise failure of con

sideration if because bank failed

grant loans, further as promised, such a

failure partial would be only and would not

discharge guarantor’s liability. Ward Edwards,

low v. 251 S.W. 251 (Tex.Civ.App. 1923, dism’d).

—Texarkana writ

The affidavit is insufficient also respect allegation of fraud. perform

Failure to a promise is not fraud

unless promissor had no intention to

perform at the the promise time was made. Biscoe, Turner ‍‌​​​‌​‌‌‌‌​​​‌​​‌​‌​​‌‌‌​​​​​‌‌​‌​‌​​‌​​‌​​​​​‌‌‍v. 141 Tex. 171 S.W.2d (1943); Williams, Underwood

488 S.W.2d (Tex.Civ.App. — Fort writ); Worth no Murray v. Frank

land, 347 S.W.2d (Tex.Civ.App— writ).

Houston Although

guarantor states in his affidavit that he

does not believe that the bank intended open a borrower-lender relationship with

him and that he was “duped,” opinion

concerning the bank’s does intention provide summary-judgment evidence of Davis,

fraud. Crain v. S.W.2d (Tex.1967); Manges Bar, Inc., v. Astra

S.W.2d 605 (Tex.Civ.App. Corpus Christi — ‍‌​​​‌​‌‌‌‌​​​‌​​‌​‌​​‌‌‌​​​​​‌‌​‌​‌​​‌​​‌​​​​​‌‌‍ 1980, writ); Tex.R.Civ.P. 166-A. Conse

quently, the summary judgment was prop

er.

Affirmed. Wol- Firm, M. Frederic

Wolfram Law fram, Amarillo, appellant. for Harlan, Adkins, Gibson, Joe Ochsner & Amarillo, appellee. DODSON, COUNTISS

Before BOYD, JJ.

BOYD, Justice. brings this D. Durham Appellant James in favor from a appeal Communications, Inc. Cannan of asserted grounds eleven Appellant brings out we set For reasons hereinafter error. and remand reverse the proceedings. for further ease is an reveals The record city in the practicing law attorney corporation is a Amarillo. The broadcasting station a television owning This case located in Amarillo. involves also two broadcasts made appellee’s on televi- trial on the preparation relevant to sion on station March In these merits. appellee’s reported broadcasts newsman аbove, two, in point appel As stated that after two personal investiga- weeks of requires lant contends Rule 186a dis tion he had discovered that closure certain news sources. This rule of connected with just a club located north of states in relevant part: Ranch, Amarillo called the Chicken which any the Any party may testimony take of was used as a front for various activities a person, including party, by deposition including orgies and In prostitution. the purpose discovery ... for the of or for report the newsman identified his sources use as the or for both evidence in action story for the Bryant, as Anna owner of the purposes. Unless otherwise ordered Kirkwood, lounge and Eddie in the deputy 186b, the as the provided by court Rule Potter County office. inter- Sheriff’s He deponent may regarding be examined both Bryant viewed and on Kirkwood the matter, any rele- privileged, is air both and stated that wаs in- subject vant to matter in the the involved volved with the Chicken April Ranch. On action, whether it relates to the pending 3,1978 brought this libel suit was examining party, claim or defense the of

lant. During pretrial discovery proceed- the . .. of including identity and location ings, appellant deposed, others, among ap- persons having knowledge ... of rele- pellee’s news director and Ben anchorman [Emphasis vant facts. added.] Boyett. At numerous during dep- times the Thе trial in court allowed wide latitude osition, appellant Boyett asked to disclose its on or not to order decision whether appellee’s sources for the broadcast. While discovery and its action cannot be set aside Boyett disclosed the names of those sources unless is a of of showing there clear abuse who were mentioned in the broadcast he Rutledge, v. discretion. Martinez to refused disclose the names of оther any (Tex.Civ.App.1979, S.W.2d 398 writ ref’d sources who have may assisted in n.r.e.). question presented by The investigations. After hearing, the tri- of point is whether the facts show abuse al court appellee’s refused compel motion to on the of in part discretion the trial court Boyett to appellee’s disclose sources. On refusing order disclosure. the day April, 20th of the summary question in was on the rendered upon appellant, The burden is as basis that was a аs the moving party, plead prove to both and matter of law requiring showing of relevancy sought of information and a mere actual malice on the part appellee and or conclusion assertion is not sufficient. nothing existed which would raise Tewell, Lueg (Tex.Civ. 572 S.W.2d 97 issue question. on this history). writ App. Corpus Christi — At question, the time of the broadcast in Appellant raises eleven points of asserted considering was the broadcast of error. points These of error can be divided story concerning appellant’s alleged another general First, into two areas. appellant, in conspiracy involvement in a fix beef point second asserts error in denying prices. story other This was never broad compel disclosure of news sources cast. deposition Boyett At the was exten because such answers are un- discoverable an sively questioned der in effort to obtain the Secondly, Tex.R.Civ.P. 186a. appellant, ‍‌​​​‌​‌‌‌‌​​​‌​​‌​‌​​‌‌‌​​​​​‌‌​‌​‌​​‌​​‌​​​​​‌‌‍any in names who have may played his first sources and in his through third eleventh points argues part investigation development error in granting of the Boyett motion for did reveal judgment. dispo- story. either The sition which we sources on the air as a source of the points through make five named eight renders, or think, proof we There is question. discussion of the broadcast points remainder of attacking sum- sources showing suggest appellee’s mary judgment unnecessary. in the of the investigation We discuss actions beef point two we because that question price fixing story think which was never broad

cast any had connection or shed readily apparent would tional malice. It is light on actions in developing question the initial and crucial for our deci- and broadcasting story. the Chicken Ranch correctly sion is the trial court whether Rule to permit 186a not intended “fish official” оr classified as ing excursions.” Bryan General Electric “public figure.” Corp., (Tex.Civ. Credit S.W.2d I. Public Official App. 1977, no writ his [1st Dist.] — Houston record six The shows about tory). question Boyett Since so months before broadcasts pertains broad and to sources stories appointed counsel other than that in cannot question, say alleged inquiry investigating court of the record reveals an abuse of discretion in irregularities County Fund man Potter the action of the court trial in overruling report agement. the final question. Appellant’s point motion in inquiry court of returned some two of error two is overruled. months to the and at the prior broadcasts Appellant argues points groups his a time of the broadcasts was not eight five through together and we will special county payroll. counsel or on the together. likewise consider them In these that a Supreme The U.S. Court has stated points appellant that argues the trial court is, one public among things, official other erred in as a determining matter law “who office.” Gertz governmental hold [s] that appellant public public was a official or 323, 342, 2997, Welch, 94 v. 418 U.S. S.Ct. and, figure it consequently, applied the 3008, (1974) [Emphasis 41 789 add L.Ed.2d legal in wrong determining standard Baer, cites v. 383 Appellee Rosenblatt ed.] appellee’s whether or not for sum- 75, 14, 669, 14, 86 676 n. 15 U.S. 87 n. S.Ct. mary judgment granted. should be a (1966) proposition L.Ed.2d the that 597 for Under the promulgated by standard the рublic a person can still be deemed official Supreme United States Court in New York the even purposes a defamation suit Sullivan, 254, Times Co. v. 376 U.S. 84 S.Ct. if, at the statement was the time offensive 710, (1964), “public 11 L.Ed.2d 686 a offi- longer serving gov made he in his was no cial” in plaintiff an action such as this can- is it true that position. ernmental While not damages defamatory recover for a the state that under Court in Rosenblatt did relating falsehood to his official conduct person could be certain circumstances a proves the unless he that statement was he no public though deemed a official even malice, is, made with “actual that with at the longer governmental position held his that it or knowledge was false with reckless defamatory time the state allegedly that it was not.” disregard whether false or made, ment even under that believe Id. at 84 S.Ct. at 726. The New York it improper classify appel case would be rulе, re- previously Times which had been con lant as a official. Rosenblatt public application “public in stricted officials” newspa cerned a local statements made “public figures” extended cover that per reporter arguably implied Publishing Company Curtis Butts its case, funds companion Walker, plaintiff mismanaged public the had Associated Press 18 of a state-run charge U.S. S.Ct. L.Ed.2d 1094 while he had been in (1967). argu recreation area. These statements he con in which ably way concerned The basis of for summa- appellee’s motion was an official. ducted his duties while he court, ry judgment, accepted by trial is case, defamato allegedly In the instant that appellant was either a official” manner did not concern the ry statements or “public figure” and consequently there his official in which conducted could be no unless estab- recovery Instead, special prosecutor. duties as convincing lished clear and evidence that alleged involvement they dealt with appellee knowingly broadcast that which it It is true that prostitution. with house of knew to be false or that which it had a where a have case recognized courts strong suspicion was untrue or false or that so in his com public broadcasts were made with constitu- is well-known official question plaintiff that the whether the munity general public automaticаl sidered the ly position associates him with his to the respect official was a public express and an reference to the individual’s particular controversy giving rise capacity official is and the ref unnecessary defamation and concluded: implied. erence is Foster v. Laredo News plain petitioner “In this context that Inc., papers, (Tex.1976), 541 S.W.2d plainly ... public figure was not a He denied, cert. U.S. S.Ct. into did not thrust himself the vortex However, 573. L.Ed.2d wе do not believe issue, did he engage nor would evidence public’s attempt in an to influ- attention finding such a justify in this case. Since [Emphasis ence outcome. added.] appellant was not a holder governmen of a at at U.S. S.Ct. tal office at the time of the broadcast question It appears presented thus question and since the did broadcast for our determination is twofold. Is performance discuss his duty and, lant all “public figure” purposes рrosecutor, we “pub conclude he was not not, “public figure” if for the issues is he lic official” within the purview New here? discussed in broadcast York Times v. progeny. Sullivan and its proceed We now judg consideration the summary Examination of “public figure” question. ment had evidence reveals notoriety certain achieved a amount of

II. Figure Public region. no evidence Amarillo notoriety beyond In the Gertz indicates his extended case the Supreme Court figure” region. Supreme further elaborated on the Amarillo While U.S. The concept. plaintiff in that case was an opinion specifically Court deals with attorney representing a murder victim’s be an person to whether can family against in a civil police suit officer public only if he all-purpose figure has who had been convicted of the murder. regional notoriety, achieved Court U.S. The magazine giving article rise the libel have for at least two circuits Appeals suit falsely implied plaintiff that the had a an all held an can be ‍‌​​​‌​‌‌‌‌​​​‌​​‌​‌​​‌‌‌​​​​​‌‌​‌​‌​​‌​​‌​​​​​‌‌‍deemed individual record; criminal awas “Leninist” or a purpose figure such public under circum “Communist-fronter,” and identified stances. Walbaum v. Fairchild Publica plaintiff as a former official aof Marxist tions, 1287, (D.C. Inc., 627 1295 22 F.2d n. organization. In making the determination 898, Cir.1980), denied, 449 cert. U.S. as to whether Gertz was a “public figure” 128; Mem S.Ct. 66 L.Ed.2d Brewer v. the court observed “public figures” fall Inc., phis Co., Publishing 626 F.2d general into categories: two Cir.1980), denied, (5th cert. 452 U.S. “In some instances an may individual (1981). 69 L.Ed.2d 973 S.Ct. pervasive achieve such notoriety fame or such in order to be classified as that he public becomes a for figure all public an the fame and all-purpose figure purposes and in all contexts. More com- Indeed, high be of level. notoriety must an monly, voluntarily injects individual Appeals Court of for District himself or is into particular pub- drawn be an person Columbia has stated that can lic controversy thereby and becomes a public only “if he is a all-purpose figure public figure for range a limited of issues. ‘celebrity’ his name a ‘household word’— In persons special either case such assume public whose and ideas actions prominence public in the resolution of Walbaum, 627 great follows with interest.” questions. [Emphasis added], 418 U.S. F.2d This seems consist at 1292. definition 323 at S.Ct. at Supreme approach ent with the U.S. Court’s L.Ed.2d it here. adopt Gertz and The plain- Court there concluded that evidence reveals The tiff did fit category within indi- notoriety had achieved some viduals who are “public figures” for all purposes city and in all contexts. It then con- when he acted as defense counsel for patrolman all-purpose public figure an is an by who had been dismissed individual police chief of alleged discipli placed various we note that the court Gertz nary were re infractiоns. These activities that the upon considerable reliance the fact ported by press. on the local He also presented proof defendant had that the degree notoriety achieved some when he population plaintiff. local had heard of the to serve on a investi appointed panel public In he was not a determining that gating jail the causes riot in Potter figure following the court used the lan- County. press rеported The local on both guage: appointment and on the panel We assume that a citi- lightly would not report by panel issued a few months participation community pro- zen’s However, appellant later. achieved his fessional rendered him a affairs greatest notoriety appointed when he was all Absent clear evi- purposes. special counsel for a court of inquiry notoriety fame or in the general dence charged ir investigating alleged involvement in community, pervasive regularities way in the in which Potter an individual should society, the affairs of County being managed. funds were As a for all public personality not be deemed a result by of information uncovered preferable life. It aspects of his Inquiry, County Court of the Potter Sheriff to a public figure question reduce the deputy and a sheriff The were indicted. meaningful by looking more context report cоurt of in a written inquiry, an the nature and extent of individual’s appellant, also recommended that the Pot controversy in the participation particular ter County Auditor should be forced to re [Emphasis giving rise to the defamation. sign for Potter allegedly mismanaging 351, 94 323 at S.Ct. U.S. added]. County Appellant’s appointment funds. 41 L.Ed.2d 789. the court of and the inquiry subsequent failed to In this instant case regularly actions of the court were reported well known the present any proof as to how on the local news also Appellant media. community. in the Counter press during held a number of conferences balancing proof the lack of as to his tenure as counsel —at least two press cover general fame is the substantial press televised conferences appellant’s activities, his age appellant’s particularly own ques admission —in which he answered for the court of special conduсt as counsel tions progress investiga about the of the availa appellant’s general and the inquiry, Appellant’s tion. appointment as No press during period. to the this bility counsel took six months to place prior about v. Fair Walbaum dispositive. one factor is appellee’s broadcasts. The court of in child, all the fac supra Weighing at 1295. quiry’s final about two report was issued tors, however, that the summa we conclude think, It that apparent, months later. is insufficient to es ry judgment evidence appellant notoriety had achieved for his act appellant matter of law that However, tablish as a ivities.* we believe it is another name as celebrity a or household matter as to whether this evidence indicates was such figure. appellant purpose public that was or household him an all celebrity a to make figure. name all-purpose public and thus an support does not While the evidence all-purpose appellant an finding a that was never Supreme While the Court has appel if public figure, we must determine towards specifically articulated the factors the figure for determining public which a court in if lant was a limited should look * public figure. public figure ques ual is a See Hutchinson v. Prox In our consideration of the tion, mire, April appellee 61 L.Ed.2d to an 443 U.S. 99 S.Ct. directs our attention logical. newsрaper story dealing appel (1979). oth think this To do with We permit press alleged turn a be to the to lant’s the erwise would involvement with Chicken figure by publicizing story person public the this was written after into a Ranch. therefore, We, story question. con cannot had broadcast the in defamation itself. story determining or not Supreme this in whether The U.S. has indicated that we sider Court public figure. post-defamation press appellant should not consider cov was erage determining in or not an individ whether particular has to summa- subject Appellee right issue which was the not asserted broadcast, appellee’s allegedly defamatory judgment ry upon negligence standard. i.e., controversy surrounding Chick- We therefore to deter- unnecessary find en public Ranch. are Commonly, persons summary judgment proof mine whether the figures they when “have thrust themselves negates the existence of issues of particular public forefront contro- regard with we have negligence. Since versies in order influence resolution concluded that the evi- Gertz, of issues involved.” at U.S. dence did not that as a support finding case, at was appellant S.Ct. 3009. In this appellant matter of law that was certainly controversy of the forefront “public figure” purposes official” or for the surrounding alleged mismanagement summary suit we reverse must public offi- County funds certain Potter Aрpellant’s points of judgment rendered. Indeed, cials. all the record evidence eight five through error are sustained and appellant’s predefamation con- activities the case remanded. cerns his involvement with the controver- involving sies the management of the coun- ON FOR REHEARING MOTIONS ty might funds. It be that well concluded public figure limited Both and have filed those particular public controversies. rehearing in Appel- motions this case. (1) reversing lee asserts this court erred: in case, however, In this the broadcast judgment point assigned; (2) on a not in appellant’s alleged concerned reversing point in on a not stated or with involvement the Chicken Ranch. This briefed; (3) holding that plaintiff was controversy apart public from the pur- public controversies in not a official for defamation which had thrust himself to the (4) forefront. There is evi poses; by failing to hold as a matter of dence alleged involvement law that both a official public with the Chicken anything Ranch had to do (5) that a figure; by holding and a legal his investigative activities damages news media can held be liable county for the government. There is no (6) upon story accurately reported; a news evidence suggests that appellant had by, ruling, violating the established sought publicity over alleged Chicken duty rule of law that it is Ranch activities or that the Chicken Ranch late court to of the judgment sustain had become a controversy center of public if upon trial court is correct prior to the time of appellee’s broadcast. law; any theory (7) denying due We therefore conclude that reversing the process by judgment of the judgment evidence failed establish upon grounds supported by trial court appellant had pub achieved the status of a on the Appellant record. asserts error figure lic within the context of his involve part this reverse the failing of court in ment with the Chicken Ranch. of appellant’s trial court’s denial private A individual who is not compel answers to disclose names of wit- public official or public figure may recover nesses. damages a publisher from or of broadcaster assertions, ap- advancing In its first two a defamatory falsehood compensation as pellee apparently points has of overlooked upon actual injury showing pub that the five, six of brief error and seven lisher or broadcaster knew or should have finding wherein he specifically attacked known that the defamatory statement pub- of the trial court that Inc., false. Foster v. Newspapers, Laredo lic as a matter of law and coun- supra. Appellees summary motion for terpoint five wherein asserted judgment sought to establish the applicabil that, a matter law was а as of ity of New York Times standard to Exami- public figure. official and a a “public “public official” or figure” opinion and then to nation of the will reveal that negate the existence of any fact regard through issue with points actual malice. lant’s of five seven error

852 granted

were and the basis therefor ex- plained. ‍‌​​​‌​‌‌‌‌​​​‌​​‌​‌​​‌‌‌​​​​​‌‌​‌​‌​​‌​​‌​​​​​‌‌‍PETERSON, Appellant, Howard Lee v.

It must also be remembered appeal granting was an from the Texas, Appellee. The of STATE summary judgmеnt. a motion for In No. 12-81-0122-CR. summary cases the judgment granted should be affirmed only Texas, Appeals Court if the summary judgment record establishes Tyler. right thereto as a matter of law Dec. movant must establish that it is entitled to judgment by reason of the matters set out the motion. Clear Creek Basin Auth. Houston, City (Tex.

v. 573 S.W.2d 839

1978); Corpora Gibbs v. General Motors

tion, (Tex.1970); 828 Har S.W.2d

rington Young Men’s Christian Associa

tion of County, Houston and Harris (Tex.1970).

S.W.2d The burden of

demonstrating genuine the lack of a issue upon material fact is the movant and all against

doubts are resolved him. Womack Company,

v. Allstate Ins. 156 Tex. Smith, (1957); Lindley

S.W.2d (Tex.Civ.App. Corpus S.W.2d — 1975, writ); Christi Cox v. Bancoklaho Agri-Service Corp.,

ma S.W.2d 1982, writ).

(Tex.App. — Amarillo

This did not court hold that a news media damages upon

could be held liable in a news

story hold accurately reported. We did

that, governing under the rules the consid- judg-

eration of an from a appeal summary

ment, the un- summary judgment evidence

der appeal sup- consideration in this did not law, that,

port finding as a matter of “public official” or

figure.” pointed We out that since right summary judg-

had not asserted a upon

ment negligence theory was

necessary to determine if the proof negated the existence regard negligence. issue over-

Appellee’s rehearing motion for

ruled. mo-

We have also considered rehearing

tion for and we remain convinced ruling point Appel-

our on this was correct. rehearing

lant’s is also over-

ruled.

Case Details

Case Name: Durham v. Cannan Communications, Inc.

Court Name: Court of Appeals of Texas

Date Published: Dec 15, 1982

Citation: 645 S.W.2d 845

Docket Number: 07-82-0235-CV

Court Abbreviation: Tex. App.