*1 LANGSTON, Individually Ruble and as
Trustee the Three L et
al, Appellants,
EAGLE PUBLISHING COMPANY Eagle Printing Company,
a/k/a al, Appellees.
et
No. 10-85-214-CV. Texas, Appeals
Court of
Waco.
Sept. 1986.
Rehearing Denied Oct. 1986.
Second Motion for Rehearing Denied
Nov. *2 (3) Trailite,
Langston; Inc., corporation trailers; which manufactured livestock (4) Luther, Michael presi- a shareholder and Defendants, dent of Trailite.1 appel- now lees, Publishing are Company, publishes Bryan-College Station *3 Eagle, publisher Williams, John editor Dromgoole reporter Glenn Jann Snell. eight The suit centers around news- paper Bryan-Col- articles in the lege Station between June articles, and March In these Snell dispute chronicled Trailite’s with the Inter- nal delinquent taxes, Revenue Service over proceedings relating to Chap- Trailite’s bankruptcy, filing ter 11 of a consumer- by fraud suit Attorney then General Mark others,2 po- White Trailite and charges litical that arose between gubernatorial campaigns of Bill Clements and Mark the filing White over of the con- suit, sumer-fraud filing and the of the libel plaintiffs contend, particular, suit. The that the articles November contained libelous state- ments falsely because Snell had and mali- ciously reported attorney general that the in the consumer-fraud that up” Three Trust had been “set or “used” as a legal “sham” to avoid “direct obligations to unhappy Trailite customers”. Wesbrooks, Perry Rugeley, Hank The questions appeal Several to in- relate Firm, P.C., Falls, Wesbrooks Wichita plaintiffs. dividual con- defendants appellants. tend summary were entitled to a Jr., judgment against George, R. Luther because the arti- James H. David Donald- son, Jr., cles did not Graves, defame him as a matter of law. Dougherty, Hearon & argue summary judg- Moody, Austin, appellees.
ment properly entered Trailite and Luther because their had been claims OPINION conclusively barred Like- limitation. THOMAS, Justice. wise, the defendants insist that the summa- ry judgment against the Three L Trust was plaintiffs This a libel suit which the proper bring because a cannot a libel trust appeal summary from a judgment that was suit for its own defamation. entered in favor of the Appel- defendants. lants, plaintiffs below, who were the are: As plaintiffs far as the as whole are (1) (2) Langston; Trust, concerned, Ruble the Three the two sides differ wheth- over trustee, through which sued protected its er the Ruble defendants as a mat- were ston, majority individually 1. The Three L Trust owned a of Trail- who sued and as the Trust, ite’s shares. trustee of Three L Michael Luther and Langston’s Jane Ruble wife. 2. The defendants in consumer-fraud suit Lang- the Three L Ruble privilege ter of proof law article 5432. ment establishes a matter of law provided, among things, This statute other genuine that there is no issue of material fair, that a libel suit cannot be based on a fact on one or more of the essential ele impartial true and newspaper account plaintiff’s ments of cause of action. judicial proceedings. Tex.Rev.Civ.Stat. Corporation, See Gibbs v. General Motors 5432(1) (Vernon 1958) art. (repealed Ann. (Tex.1970). September effective and now codi- The defendants moved for a summa fied at Tex.Civ.Prac. & Rem.Code Ann. ry judgment against grounds Luther on the (Vernon 1986)). plaintiffs 73.002 ar- § gue that limitation had barred his claims and attorney general’s original pleading in the articles did not defame him as a consumer-fraud suit was part “judicial proceeding” not a of a matter of be- law. Because the court did not cause the court had specify summary not taken action on pleading challenged when grounds articles grant on which it was *4 Furthermore, were written. ed, insist challenge Luther had to each of these that material fact issues existed in the grounds appeal having or risk the sum summary-judgment malice, evidence on mary judgment summarily affirmed on the destroys privilege conditional un- unchallenged grounds. See Sullivan v. 5432, der article and on whether the arti- University League, Interscholastic 616 July 21 9,1982, cles of and November 170, (Tex.1981). S.W.2d 173 He did not fair, true impartial account of the brief or ground by point attack either attorney general’s allegations relating to error, and summary judg therefore the the Three L Trust. questions Other relate ment him is affirmed on both of the libel-proof to the doctrine and whether the unchallenged grounds. See id. summary-judgment conclusively evidence plaintiffs’ established that the reputations The defendants also moved for a could not have damaged by been the arti- summary judgment against Trailite on the cles more than they already had ground that its libel claims were conclu damaged by allegations in the consum- sively barred limitation. Trailite at er-fraud suit. The summary judgment will tacks this in the sixth against Trailite, be affirmed the Three L A error. libel action is barred unless it is Trust and Luther. the summary brought year within one after the date judgment against Langston will be re- it accrues. Tex.Rev.Civ.Stat.Ann. art. 5524 versed and his causes of action remanded (Vernon 1958) (repealed Septem effective for a trial. ber and now codified at Tex.Civ. (Vernon Prac. & Rem.Code Ann. 16.002 summary § judgment will be reviewed 1986)). Ordinarily, an action for libel ac under the rules in Nixon v. Mr. Property crues on the defamatory date that the mat Management, 546, (Tex. 690 S.W.2d 548-49 ter is and not from the date of its 1985). rules, Under these the movant has damaging consequences. Moore Associ & showing burden of there is no Ins., Metropolitan ates v. genuine S.W.2d issue of material fact and that he Life 487, Writ). (Tex.Civ.App. Dallas, no is entitled to a as a matter of — However, the Id; “discovery applicable rule” is 166-A(c). law. Tex.R.Civ.P. When de Rinkle, ciding Kelley libel actions. whether v. there is a fact material is (Tex.1976). sue, S.W.2d Under this evidence favorable non-movant rule, Nixon, begin a statute of must be taken as true. limitation does not Likewise, or, to run every injured parly at 548-49. until the learns of reasonable in diligence, ference and in the indulged doubt must be exercise of reasonable wrong resolved should have injury non-movant’s favor. Id. at learned of the giving 549. When a granted defendant has been rise to the action. Id. The dis summary here, judgment, as question covery applicable rule is not in this instance appeal summary-judg whether the allegedly because the defamatory matter through
was communicated
a mass
of himself
medi
Three
Trust. How-
um. See
the defendants
ever,
id. Because
had
plaintiffs
specify
did not
how
summary judgment, they
moved for a
had
had
Trailite
been defamed
the four arti-
showing
the burden of
that Trailite’s claims
cles, which were attached as exhibits to the
were barred
as
limitation
a matter of
original petition.
first amended
Burns,
Delgado
law.
See
S.W.2d
aBy
original
second amended
petition,
(Tex.1983).
January
filed on
Trailite and Lu-
synopsis
A brief
of the events is in order
joined
libel
plaintiffs
ther
suit as
question
before the limitation
can be decid-
right, and
plaintiffs
their own
recited in
Langston, acting individually
ed.
and as
pleading
suit,
that the derivative
originally
the trustee of the Three
Langston and Luther
purportedly
had
filed
filed the
the defendants
shareholders,
behalf of Trailite and its
alleged
February
1983. He
was “discontinued”.
remained in
articles,
original petition that
two
dated
plaintiff
as
right
the suit
in his own
and November
had libeled as
the trustee
the Three L Trust. The
him and
falsely
the trust because Snell had
original petition,
second amended
to which
maliciously reported
attorney
plaintiffs
attached the four articles dat-
general
in the consumer-fraud
July 21,
ed
14 and
November
up
suit that
the trust had been set
1982, and March
contained essen-
legal
used
a sham to avoid direct
obli-
tially
same
as the first
gations
unhappy
Trailite customers.
original petition.
amended
plaintiffs
*5
copy
a
attached
of both articles
allege
still did not
how Trailite had been
original petition.
by
defamed
the four articles.
18, 1983, in
July
On
a first amended
When the defendants moved for a sum-
original petition, Langston
pur-
and Luther
judgment
mary
against Trailite on the limi-
portedly instituted a derivative libel action
ground, they argued
tation
that the deriva-
against the
of
defendants
behalf Trailite
tive suit had not tolled the statute of limita-
and its shareholders under article 5.14 of
tion on Trailite’s libel claims because the
Corporation
the Texas Business
Act. See
derivative
had been improperly
suit
(Vernon
Tex.Bus.Corp.Act Ann. art. 5.14
brought as a matter of law. Consequently,
1980). Langston alleged
he
that
was a
they
that
contended
Trailite had not tolled
capacity
shareholder of Trailite
as
the
until
joined
statute of limitation
it
the
Trust,
the trustee of the Three
and Lu-
plaintiff in
right
suit
its own
as
Janu-
ther also
that he was
of
one
Trail-
26,1984.
ary
They argued
of
that all Trail-
orig-
ite’s shareholders. The first amended
claims,
they
ite’s libel
to the extent that
petition
essentially
inal
contained
the same
published prior
were based on the articles
complaints
July
21
about
articles of
and
January 26, 1983,
to
been conclusively
had
petition.
original
November
as the
by
barred
limitation.
plaintiffs,
Lang-
as
derivative
ston and
Luther
asserted that Trailite
bring
Before
shareholder can
articles,
by
had been
these two
libeled
right
corporation,
derivative suit in the
of a
by
well as
two other articles
something
he must
that
un
beyond
show
October
and March
1983. The
governed
has
sound business
reported
14
dispute
article
of
board
directors’ refusal
act. Zauber
developed
political
between
cam-
Ass’n,
Murray
v.
Sav.
paigns of Bill Clements and Mark White
1979),
(Tex.Civ.App.
writ
ref’d
filing
of
over
the consumer-fraud suit.
—Dallas
n.r.e.,
(Tex.1980).
He can
S.W.2d
The headline
the March article errone-
corpo
not institute a
suit on
ously
derivative
stated that Trailite had filed the libel
defendants,
by
merely showing
ration’s behalf
that
suit
while the
body
correctly reported
of the article
of the
of directors not to
decision
board
act
unwise,
inexpedient, negligent
suit
been filed
on behalf was
or im-
legal owner of shares
is a record
Sparkman, 73 Tex.
prudent.
Cates
L Trust in
Instead,
by the Three
(1889).
of stock owned
S.W.
Trailite,
matter is
at the time the
Inc.
that the
plead
prove
must
shareholder
herein,
that Mi-
complained
about
refusal
to act was
board of directors’
show that he is a
Luther will also
fraudulent,
chael
vires,
“characterized
ultra
Inc.,
Trailite,
a domestic
Shareholder
practices,
power,
injurious
abuse
such Shareholders
corporation. That
company
part
of the
oppression
as Share-
show that heretofore
would
clearly subversive
controlling agency
or its
sought to have the Board of
holders
minority, or of a share-
rights
of the
Trailite,
bring
Inc. to
a law-
Directors of
holder,
which,
interfer-
without such
Trailite, Inc. and its
behalf
ence,
leave the latter remediless.”
would
defamation af-
for libel and
Shareholders
Id.
Trailite, Inc. and its Sharehold-
fecting
meet-
The minutes of the
ers,
Board of Directors
but that such
directors, which
ing
Trailite’s board of
bring
Resolution has declined
Board
oppo-
affidavit
were attached to Luther’s
by reason of the fact
such action
for a sum-
to the defendants’ motion
sition
jurisdiction
Inc.
still under the
following:
mary judgment,
reflected
Court,
Bankruptcy
States
of the United
Langston, Board Chairman
Dr. Ruble
Texas,
Divi-
District of
Dallas
Northern
L Trust
as Trustee of The Three
381-01112, Chapter 11
in Bk. No.
sion
running
pursu-
that time was
out
stated
That
fur-
Reorganization proceeding.
against the
filing
ant to the
of a libel suit
by reason of the fact
thermore
newspaper
Bryan-College
Station
Newspapers,
Texas in
Supreme
Court
Directors
and moved that the Board of
Matthews,
Tex.
Inc. v.
284]
[161
Bryan-College
Sta-
file suit
[1960], has held that
own-
S.W.2d 890
brought
Eagle.
The matter was
right of
corporation may
have a
ers of
Lang-
and Jane
vote with Duane Johnson
and con-
under the circumstances
action
stating
voting against the motion
ston
herein, and in addition
presented
ditions
Reorganization imple-
the Plan of
Luther, as a Shareholder of
that Michael
*6
Ru-
mentation would have to come first.
Trailite, Inc.,
hereby
he
gives notice
Langston and Michael Luther voted
ble
proper time that this
shall move at the
for the motion but concurred that
the
Rule 42 of the
permitted under
action be
implementation of the Plan was all-im-
class
Procedure as a
Texas Rules of Civil
result
portant as a valid reason. The end
of
in behalf of all Shareholders
action
majority
by
vote
the
of the lack of a
Trailite, Inc.
Board of Directors was a recommenda-
only
Luther not
Board of Directors that a
the
the board of directors
plead
failed to
brought
by Trail-
class action suit be
not
questionable
of
had refused to sue because
ite, Inc.,
by the shareholders
but
motives,
to introduce sum
but
failed
newspa-
Bryan-College
Eagle
the
Station
to raise
evidence sufficient
mary-judgment
of
per for the benefit of all shareholders
the board’s decision be
a fact issue about
Inc.,
request of Ruble
at the
by any improper motives.
ing governed
Langston as Trustee of the Three
evidence
summary-judgment
Because
Luther,
of Michael
President
Trust and
that Trailite’s
conclusively established
Trailite, Inc.
of
sue
had refused to
be
board of directors
original petition, The first amended
considerations, cause of business
18, 1983,
July
contained the
was filed on
prosecute
could not institute or
and Luther
following allegations:
on Trailite’s behalf as a
derivative
Cates,
brought in
[Tjhis suit is a derivative suit of law. matter See Trailite, Inc., attempt file the deriv right corpo- Accordingly, a Texas their to Plaintiff, matter of Langston in was ineffective as a Ruble ative suit ration. law, suit did purported and the derivative capacity as Trustee of the Three not toll on any summary judgment against the statute limitation it on this ground. claim could that Trailite have asserted right.
its own 5430, Article which defined libel at the Trailite did not toll the of limita- summary judgment entered, statute time the it provided: tion until asserted libel claim its own 26, right January Consequently, on 1984. expressed A libel is a defamation concerned, far are as as its causes action printing writing, or by signs pic- or one-year statute of limitation conclu- tures, drawings tending or to blacken the sively all which Trailite barred libel claims dead, memory tending injure or to could have asserted based on the articles reputation alive, of one who is 26, Thus, January published before 1983. thereby expose public hatred, him to con- published the articles June June tempt ridicule, or or injury, financial or and on Octo- to impeach honesty, integrity, or vir- ber 15 and November not could tue, one, reputation pub- of any or to supported have as a Trailite’s libel action lish the any natural defects of one and matter of law. six be- Point is overruled thereby expose person public to such ha- properly cause the court sum- entered the tred, ridicule, injury. or financial mary judgment against Trailite on the (Vernon Tex.Rev.Civ.Stat.Ann. art. 5430 ground respect with of limitation to all of 1958) September 1, (repealed effective January the articles before 1985, and now codified at Tex.Civ.Prac. & 1983. 1986)) (Vernon Rem.Code Ann. 73.001 § only articles which Trailite could added). (emphasis injury To for an recover base a libel claim were those statute, reputation under this the def- However, March 2 and March “injure reputation amation must of one ground defendants asserted as iswho alive”. Id. summary judgment that Trailite had Apparently, question a trust whether been defamed arti- either these its def- can assert libel claim for own cles a matter of law or the erroneous never amation has been decided Texas. headline, li- “Trailer firm sues parties At least have not cited
bel”,
accompanied
the March 2 arti-
authority
support
direct
of their conten-
summary judgment,
respect
cle. The
with
tions,
authority
no
such
has been
articles of March 2 and March
question
found.
a similar
has
particular
must be affirmed on this
respect
corporations
decided with
ground
chal-
because Trailite has failed to
partnerships.
Newspapers,
In
Inc. v.
lenge
appeal by
Matthews, 161 Tex.
*7
Sullivan,
error. See
The same asserting corporation partnership from allegations”. Although sumer fraud defamation a libel claim based on its own plaintiffs attached these two articles to from preclude must likewise a trust assert original petition third amended as ex- their ing right. such in its There an action own allege they 1 and did not hibits fore, any cause of action for defamation of any articles contained libelous statements. belonged Langston as trustee trust They merely asserted that the two articles or to the trust’s owners. Point five is by repetition “were evidence of later malice properly en overruled because the court through in exhibits 3 8”. summary judgment tered a Lang- mentioned article which first Three L Trust on the that it could L ston and the Three Trust was not claim on its own assert libel based July 1982. The statements Therefore, defamation as a matter of law. article, attached as exhibit 3 to which was summary judgment against the Three original petition, the third amended are at L Trust is affirmed. Langston’s complaint. the center of point, summary judgment To this has Among the are these: statements Trailite, been affirmed Luther and attorney general Tuesday The state’s only question the Three Trust. The re- deceptive filed a consumer fraud and maining properly is whether the court en- practices against Bryan-based trade suit summary judgment against Lang- tered the Inc., goose- Trailite a manufacturer of ston. The defendants moved for a summa- type neck livestock trailers. against Langston ry grounds that: Mark White’s Attorney General suit (1) articles and November filed 85th District Court claims that as privileged under 5432 as article many persons paid as 70 in advance for law; (2) a matter of the article of March they trailers never received between Oct. accompanied by which was the erro- 1, 1979, and June 1981. Trailite col- neous headline “Trailer firm sues $270,000, libel”, lected in excess of the suit privileged was under article 5432 claims. and did not defame as a matter law; (3) the article of October Trailite officers took the orders for privileged under article 5432 and did payments, trailers and the advance law; not defame as a matter of knowing company says, (4) Langston could not be defamed purchase didn’t have the resources articles, they of the if even were de- materials to build the trailers or ever fill famatory privileged, and not because he their customers’ orders. “libel-proof” as a matter of law. brief, chronological A description of each Ruble affiliated with Trailite article place perspective will the issues in and a trustee of Three Trust which summary judgment relate to the majority owns the interest at against Langston. pub- In the first article copy he not said received reported lished on June Snell suit and on the alle- would comment
the Internal Revenue had sched- Service gations attorney. until advised uled an auction of Trailite’s land and build- ings satisfy tax liens for excise taxes *8 employment reported in taxes. She suit, According the Three L article, published the second on June up Trust was set as a sham trust to postponed that the auction had been obligations legal unhappy to avoid direct reorganization when Trailite filed for under Trailite customers. Chapter 11 Bankruptcy Snell Code. also claims Langston
did not The suit that the Trailite mention or the Three L $40,000 article, misappropriated report Trust in either she did officials of their but being investigated by personal that Trailite was the advance trailer funds for their gain which “significantly a fraud-deceptive contributed to consumer practic- trace corporation’s the to inability meet its es filed by against suit the state a local debts, obligations and liabilities.” farm trailer manufacturer. Langston complained in third amended Attorney Mark White’s General office .the original petition that Snell falsely had Trailite, against filed the suit located maliciously reported that attorney gen- the Highway near the intersection eral had in the consumer-fraud suit Highway last in the 85th District that up “the Three L Trust set was as a Court. obligations sham trust to direct legal avoid unhappy to Trailite He customers.” al- Along sending with the Clements’ cam- leged that this statement was false because paign a copy complaint, of their Ruble L organized the Three Trust in Langston, representative, a Trailite also 1971 before Trailite had ever been char- provided accusing a written letter the tered the state and that attorney the attorney general’s office of various un- general had not made such allegation an and unprofessional ethical actions. against the in trust the consumer-fraud suit. Langston, charges who denies all the suit, in White’s is trustee of Three article, published The fourth on October Trust, majority owns interest 14, 1982, Langston did mention and the in Trailite and as mentioned Three L Trust in politi- connection with attorney general’s defendant in the suit. charges cal governor’s in that arose race filing over the of the consumer-fraud against suit Trailite: prove Bowers said he intends that Ruble owner the ma- many paid as persons as 70 in advance jority interest in who denies the trailers never between received fraud the consumer-fraud [in Oct. 1979 and June 1981. Trailite suit], supplied headquarters Clements’ $270,000, the suit collected excess complaints against with staff White’s [in claims. attorney general’s which run office] Further, plans to Bowers said he show gamut incompetent from unethical to L Trust used as the Three behavior. legal obligations sham to avoid direct This article was attached as exhibit 4 to the unhappy Trailite customers. original petition. third amended allegations, say- these denies reported article, Snell publish- fifth ing early the trust created in the ed on October that the consumer- 1970’s has been used as a never against fraud “put suit Trailite had been sham for Trailite. hold bankruptcy federal court.” This reported On March Snell article, which did not mention following article in the ser- seventh Three was attached to the ies: petition third amended original exhibit as libel Trailer firm sues article, In her sixth on Novem- representative Bryan A of a farm trail- reported
ber Snell federal manufacturing er firm filed a suit bankruptcy court had ruled the attor- Bryan-College Sta- ney general Monday proceed could with the consum- Eagle, complaining newspaper suit er-fraud Trailite state falsely details of consumer article, court. statements brought against fraud firm by was attached the third amended original petition Attorney Texas General. exhibit are also at the Langston’s heart of complaint: suit, specific which names no bankruptcy Judge Dallas sought damages, John C. Ford amount was filed in has decided a local district try Lang- court can 85th District Court Ruble G. *9 doctrine, prem- proof on the ston, L which is based trustee of Three Trust which with- Inc., that defamation is not actionable maker of livestock ise owns Trailite plaintiff’s reputation, Eagle damage to the action contends the out trailers. The first announced Cardillo v. Double- Three L Trust was was incorrectly stated that (2nd Co., Inc., F.2d 638 Cir. up day trust to avoid direct & “set as a sham 1975).3 libel-proof plaintiff, by defini- A obligation unhappy Trailite cus- legal minimal, damage tion, any, if has suffered tomers.” by defamatory a commu- reputation to his contained in an ar- The statement was doctrine has not Apparently, the nication. decep- about a ticle last any decisions to subject Texas been against practices filed tive trade suit date. state attor- Langston and Trailite
ney general’s office. That suit contend- decade, li During its first orders for ed that Trailite officers took developed along bel-proof doctrine has two knowing payments, trailers and advance path develop pathways. distinct One of its company did not the means have “issue-specific”, bars ment has been build the trailers. plaintiffs have tarnished libel claims of who the headline The defendants admitted that reputations particular issues accompanied this article was errone- issue-specific specific behavior. Under However, the corrected ous. headline was approach, plaintiff’s libel claim is barred eighth article which was publicity or criminal convic previous when on March 1983: similar or identical to tions for behavior challenged that described in the communi Correction reputation his cation have so tarnished The headline on an article in Wednes- or minimal only he could recover nominal day’s Eagle being filed about a Although not damages as a matter of law. against Eagle was incorrect. The convictions, repeated, arising from criminal said, headline negative widely-distributed untested and firm “Trailer sues for libel.” As regarding publicity plaintiff, about stated, the article the suit was filed challenged as the subject same or issue Ruble G. trustee of Three communication, his libel un will bar action majority which owns a interest issue-specific branch of the doc der the Inc., Trailite maker of trailers. livestock trine. Trailite itself did not file the suit. issue-specific approach Illustrative of eighth The seventh and articles at- in Logan is the decision v. District Co original peti- tached to the third amended lumbia, (D.D.C.1978), in F.Supp. tion as exhibits 7 and 8. newspaper plaintiff which the had sued falsely an article which The defendants summa for libel because of moved positively for against Langston reported that he had tested ry judgment found that drug con use. the court libel-proof. that he was defamatory, it were conclusive the article was false and tended that his libel claims plaintiff li allegations in nevertheless held that the ly barred because the bel-proof specific drug use damaged reputa his issue articles could not have user, drug he was an admitted already more than it had because book, drugs publicized him use of had been damaged by narcotics consumer- he had been convicted of a federal and the Three Trust charged with another federal suit. contends violation and fraud violation, com erred narcotics and he had been fourth of error that the court drug under a federal summary judgment mitted for treatment when it entered the As program. Id. at 1332. ground. him The libel- treatment application. See “The Law Review con- evolution 3. An article Harvard Libel-Proof Doctrine", (1985). Harv.L.R. 1909 of the doctrine's tains an informative discussion Plaintiff *10 622 example,
further Although convicted bank robber developed in the courts, federal would libel-proof be under the issue-specific the libel-proof garnered doctrine has not branch of the if doctrine he is re falsely support sys unanimous even the federal ported shoplifter. to be a The same would tem. In Liberty Lobby, Anderson, Inc. v. rapist be true of a falsely convicted who is 1563, (D.C.Cir.1984), 746 F.2d the Cir newspaper being accused of article Appeals cuit Court of for the District of window-peeper. rejected Columbia both branches of the li bel-proof “fundamentally doctrine as a bad libel-proof The doctrine has also Although libel-proof idea”. the doctrine developed along path, a second the called discussed, accepted has reject not been or approach, requires “incremental” which the decision, ed in any name Texas the court to evaluate defendant’s communi Supreme rejected Texas spe Court has cation in entirety its and to consider the argument cific plaintiff’s that a libel claim challenged of portion effects was barred his reputation because had plaintiff’s reputation communication damage- been so tarnished as it to make in the context entire communication. proof. Engi In Bell v. Pub. Co. Garrett This branch was first announced in Sim Co., neering 141 Tex. 170 S.W.2d Ford, ons Inc. v. Consumers Union of (1943), the court commented: States, (S.D.N. F.Supp. United Y.1981). We overrule defendants’ contention approach The incremental comes play plaintiff into when only challenges showed as a matter of law that or tangential part a small plaintiffs’ an overwhelm reputation was bad and that ingly negative communication. damages. therefore it had suffered no plead name, not or mentioned de upon subject plain- The evidence essentially fendants a summary moved for good reputation tiffs’ conflict- or bad was judgment against Langston in under the ing. Many sides witnesses both testi- libel-proof cremental branch of the doc upon testimony fied subject. They alleged trine. that the statements in plaintiff’s reputation bad could relating the articles and the properly urged complete not be as a bar challenged, Three which he could proper to the cause action but damaged reputation have his more mitigation be jury considered unchallenged allegations than the in the damages. suit, consumer-fraud re were also Traditionally, legislature and the ported articles, already damaged zealously guarded courts in Texas have reputation. his right of a reputation citizen to defend his In Jackson Longcope, v. 394 Mass. name, tarnished, from however libelous (1985), plain- N.E.2d 618-19 publications. Fitzjarrald Panhandle libel-proof tiff was held under the incre- Co., Pub. 149 Tex. approach challenged mental he when (1950). quote from Bell Pub. Co. portion of an article which misstated his merely policy. reiterates that See also activities connection with a stolen car Hardy, Publications v. Macfadden’s challenge but failed the remaining por- (Tex.Civ.App. S.W.2d 1024-25 —Waco tions of the reported article which he ref’d) (plaintiff, falsely writ who was had a criminal record rape. for murder and publi- accused of murder in the defendant’s plaintiff challenges When certain state- cation, had a charged record of communication, damage ments in twenty-eight with other felonies which his reputation far damage less than the mitigation could be shown in of his actual necessarily inflicted on his reputation by fact, damages). In provided article 5431 unchallenged other statements in the same communication, previously rep- that evidence of libel-proof tarnished incremental doctrine bars may claim. proved mitigation utation be of ac- *11 1914, ref’d); exemplary damages.4 App. writ Sutton v. tual or Tex.Rev.Civ. —Austin (Vernon 1958)(repealed Co., 686, (Tex.Civ. Stat.Ann. art. 5431 687 A.H. Belo & S.W. 1985, 1, writ). codi- September case, and now effective In the court App.1901,no each Ann. fied at Tex.Civ.Prac. & Rem.Code pleading part not a of held that a is (Vernon 1986)). 73.003 § has acted judicial proceeding until the court way. reasoning behind in some The on it A kernel of and common truth holding by is best illustrated such libel-proof sense underlies the doctrine: opinion from in quote taken Sutton: reputation Adolph of an Hitler or Charles damaged not matter Manson could be as a pleadings If and other other documents law, and of and therefore a court’s time anyone by to world can be expended litigat should not in resources be them, gets access to no more effec- who spurious Perhaps, in ing their libel claims. way doing mischief with tual of malicious considering a libel an individual action filing pa- impunity could be than devised equally despicable reputation, the with an containing scurrilous pers false and libel-proof doctrine invoked in should be charges, getting printed those judicial economy. of furtherance public rights any to news. have no say reputation, it that Langston’s suffice to private they in suits until information tarnished of however public in up hearing come for or action in wrongdoing the consumer-fraud civil court, and, open any publication when suit, require does not the invocation of matters, involving they pos- such made libel-proof branch of the doctrine to either privilege, publication sess no and the summarily his bar action for defamation. on either character must rest nonlibelous point Accordingly, four is sustained. truth to defend it. or contends of in his third Sutton, at 64 S.W. granted that the court it error erred when holdings in Sutton summary judgment against him based pre- have not Houston Chronicle Pub. Co. privilege contained in article 5432. viously rejected, they must now be been provided This statute claim that no libel decision in Cox rejected because fair, impartial on a could be based true and Cohn, Corporation Broadcasting v. by newspaper “proceedings account in 95 S.Ct. 43 L.Ed.2d U.S. justice”. a court of Tex.Rev.Civ.Stat.Ann. There, (1975). States Su- the United 5432(1) (Vernon 1958) (repealed art. effec may held preme Court that “the States September codified at tive 1985 and now publication impose sanctions Tex.Civ.Prac. & Ann. 73.002 Rem.Code § in official truthful information contained (Vernon 1986)). Langston argues that the open public inspection” court records to attorney general’s original petition least, that, very and noted “[a]t part “ju consumer-fraud suit of a was not will not First and Fourteenth Amendments proceeding” dicial because the court liability for exposing press allow pleading not acted on the at the time the truthfully publishing information released challenged articles Two ear were written. public in records.” 95 support argument in this to the official court ly Texas cases regard. holdings See Houston Pub. Co. S.Ct. at 1047. Sutton Chronicle McDavid, (Tex.Civ. clearly v. S.W. Houston Chronicle Pub. Co. are libel, of, provided: may complained 4. Article 5431 "In action ed him of the evidence, determining pleaded give specially the extent and source of actual if mitigation damage, damage exemplary puni- mitigation exemplary punitive and in or or damage, may give publication in evi- with which tive defendant intention the libelous statement, dence, specially pleaded, if material facts made. The truth or state- all was ments, surrounding publication circumstances such claim of in such be a defense to shall thereto, damage and the and also all art. 5431 defense such action." Tex.Rev.Civ.Stat.Ann. (Vernon 1958) (repealed September the libel- facts and circumstances under which effective made, publication any public apol- Rem. and now codified at Tex.Civ.Prac. & ous (Vernon 1986)). publish- ogy, or Ann. § correction retraction made and Code 73.003 contrary article, principle assuming announced Cox Each Corporation. Broadcasting could libelous have separate basis for a cause of attorney general’s Because the Drug action libel. Co. See v. Renfro original petition in the consumer-fraud Lawson, 138 Tex. 160 S.W.2d open public’s inspection as an (1942). provided Article 5432 qualified record, official court the defendants could privilege. conditional Denton Publishing truthfully publish, malice, any without alle Company Boyd, *12 gation contained in pleading the without (Tex.1970). protec A needs newspaper the liability. fear of A newspaper is sheltered subject of only this statute when the by privilege long the under article 5432 as newspaper matter of the account false publishes, malice, fair, as it without true defamatory. qualified privilege impartial account of the by proof under that the article is lost pleading open public’s which is by defendant when he was actuated malice inspection part as a of the official court published defamatory the false and matter. case, regardless records of the of whether Ordinarily, prove plaintiff Id. the must any the court has then taken action on the trial privilege malice to defeat the in a on pleading. Accordingly, point three is overr However, the merits. Id. the de when uled.5 summary judgment fendant for a moves privi plaintiff’s based on the claim original In their petition, third amended lege the must under article defendant operative which was the pleading when the negate malice as a of Beau matter law. court entered summary judgment, the Smith, mont Enterprise & Journal plaintiffs generally alleged that they had (Tex.1985). suffi S.W.2d Malice been libeled by published articles privilege cient to defeat conditional July October No- publication article 5432 means with knowl 9,1982, publish- vember well as those as edge or with reckless it was false ed on March 2 and March 1983. Of disregard it was Dun of whether false. articles, they only quoted these as libelous Bradstreet, O’Neil, Inc. v. portion of the articles (Tex.1970). 21 and November which referred being to the Three L up Trust as set as point in his of contends second sham to legal obligations avoid direct granted to error that the court erred when it unhappy Trailite judgment against customers. summary him based plaintiffs specify any did not how privilege of the under article 5432. He remaining They articles had argues libeled them. that the defendants failed to conclu- pleading attached these six to sively negate articles malice. The defendants ar- through affidavits, as exhibits 3 gue 8. that their which filed plaintiffs pleading copies response attached of connection with the the articles plaintiffs’ summary on June and June judgment, motion for a allege they did not negated these malice as a of law “with matter clear, articles were libelous manner but positive their direct and statements merely they “provided asserted that had concerning their and lack of involvement legal foundation for later knowledge libelous and mali- any falsity.” of The affidavits cious actions negate defendants” in the rely on which the defendants articles 3 through attached exhibits 8. publisher malice John were made point proceedings". also contended under the third the law" or “executive These reporting allega- of error that the articles two are additional contentions not reached or privi- holding tions in the attorney consumer-fraud suit were not decided because of the that the fair, leged under general’s pleading article 5432 as true in the consumer-fraud suit impartial “any proceed- part "proceedings account other official awas in a court of ings by law justice”. authorized administration Williams, Dromgoole rehearing editor Glenn and re- have filed a motion for a of that porter Snell. Jann portion opinion this court summary judgment affirmed the 166-A(c)provides Rule that a sum corporation. the trust and the Michael Lu- mary judgment may be uncon- based on the rehearing. ther has not asked for a troverted testimonial evidence of an inter clear, if the posi ested witness evidence is contend in their first direct, free tive otherwise credible and inconsistencies, erred when it from contradictions and that this court held that readily and “could have been controvert suit did not toll the statute of derivative 166-A(c). ed”. Tex.R.Civ.P. The affida limitation on Trailite’s libel claims because vits, related to the state defendants’ improperly the derivative suit had been mind, conclusively negate did not malice brought They argue as a matter of law. given by because were each interested summary judgment not be could witnesses whose denials of malicious intent corporation affirmed readily could not be controverted.6 See particular ground basis because that Journal, Enterprise Beaumont & *13 not been asserted in the motion for the Thus, at 5.W.2d 730. the affidavits could summary judgment. point, In their second support summary judgment, not a and they erroneously contend this court therefore the defendants failed to conclu- held that the derivative suit was ineffective sively they establish that were entitled to a to toll the statute of limitation on Trailite’s summary judgment against Langston on libel claims as a matter of law. base privileged that the articles were as a matter of point defendants-ap- law under article 5432. on the See failure of id. Point two is sustained. pellees Langston’s to attack and Luther’s capacity bring the derivative suit
The causes of action asserted Trust, plea in under Three L abatement Rule 93. See Tex. Trailite and Luther are sev- action, Langston’s ered from causes of and points R.Civ.P. 93. These two are over summary judgment is affirmed they arguments ruled because raise and Trust, Three Trailite and Luther. by points issues which not raised were However, points having two and four been appellate error in their briefs. Aycock See sustained, the summary judgment is re- County, v. Travis 255 S.W.2d against Langston, versed individually and ref’d). (Tex.Civ.App. writ —Austin representative trustee, in his capacity as They argue point in their fifth that the and his causes of action are remanded for a summary judgment against them should trial on the merits. Point is not one have been reversed because a fact issue reached. application
existed on the of article 5432. OPINION ON REHEARING question relating application to the Trust, article 5432 is never reached Trail- acting The Three L because through Ruble trustee, Inc., Trailite, as its conclusively ite’s claims were barred 6. Publisher John Reporter Williams’ affidavit contained ment on individuals or entities.” Jann following Snell, bearing statements and denials who also made similar denials in her policy malice: has never affidavit, "[It of The been] preparing stated: "In all of these arti- Eagle falsify newspapers. facts to sell my primary accurately, purpose cles was to policy print of The is to as news fairly impartially report the truth between accurately completely space as time and Attorney General and Trailite and related permits any ... I did not and do not have parties. any personal At no time did I have personal animosity any plaintiffs toward of the animosity against Ruble Michael Lu- any spite nor desire to harm them out of or ill ther, Trailite, Inc., Trust, any the Three L or affidavit, Dromgoole’s will.” Editor Glenn person entity other related to Inc. virtually which contained identical statements writing At no time when I was these articles did affidavit, to those in Williams' also stated that it I write what I believed to be a false statement of newspaper’s policy was not the to "color articles fact or a statement about which I had serious presumed with inaccurate or facts to the total doubts." disregard of the effects of the state- Trust, eight
limitation the Three as an Each of articles could have entity, any could not assert claim separate for been the basis for a cause of action, assuming they its own defamation as a matter of were false law. and de Therefore, point points famatory Langston. five all other See Renfro Lawson, urged Drug in the motion Tex. rehearing are Co. overruled, (1942). S.W.2d Defendants-appel- and the motion denied. in lees contend one that the summary Eagle Publishing Company, John should have been affirmed Williams, Snell, Glenn Dromgoole and Jann against Langston they because were con defendants-appellees, rehearing seek clusively protected by privilege under portion opinion which this opinion article As noted on the summary judgment court reversed merits, defendants-appellees failed to con against Langston, individually negate clusively respect malice with capacity as trustee of the Three L publication of the articles which and remanded his causes action for precluded summary judgment on the ba following points trial on the merits. The privilege. sis of See Beaumont Enter rehearing their motion for must be over prise Smith, & Journal v. they ruled grounds because are based (Tex.1985). Point one is overruled. asserted in the motion three, argue Point judgment: two) summary (point the sum summary judgment against Langston mary judgment against Langston should should have affirmed basis of have been affirmed because the articles doctrine, libel-proof is overruled be- on July 21 and November point merely cause this the argu- restates protected constitutionally *14 were under ment in their brief. and First Fourteenth Amendments to that the contend four sum- the United States and Constitution Article mary Langston judgment against should I, 8, Constitution; Section of the Texas have been affirmed the articles because (point six) summary judgment against 15, 1982, published on October 14 and and Langston should have been affirmed be 3,1983, 2March did defame him as and not plead cause he had not a cause action for respect a matter law. to the With arti- published on based the articles on 15, 1982, 3, cles of and March October 15, 1982, October 14 and and March 2 and 1983,defendants-appellees not move for did 3, 1983; seven) (point summary judg summary against Langston on Langston ment against should have been ground that these articles did not de- affirmed because libel claims that he fame him aas matter of law. Because this could asserted have based the articles ground not was asserted motion for 1982, published on October and March summary judgment, it cannot be con- 3, 1983, limitation; have been barred sidered on for appeal as a basis an affirm- eight) (point summary judgment and City Houston, ance. See S.W.2d at against Langston should have been af 675. firmed because the articles 15, 1982, 14 and March 2 grounds October one of the on which 3, 1983, constitutionally protected summary judgment un moved against der the First and Langston pub- Fourteenth Amendments was articles 14, 1982, to the United States Constitution and Arti lished on October March I, cle Section of the Texas Constitution. did not defame him as matter of City reported See Houston v. Creek law. The Clear Basin article (Tex.1979) Authority, political 589 S.W.2d controversy developed (holding gubernatorial a summary judgment during campaigns that cannot ground be affirmed on a which was Mark White and Bill Clements over urged summary judg handling in the motion for the White’s of the consumer-fraud ment). article, Trailite. In this Snell article, referred to the in the consumer- trailers.” This which connected fraud suit in Attorney which then Trailite through General his trustee- alleged White had that Trailite had “de- ship ambiguous of the Three was persons by $270,- frauded selling meaning them in its because the article could conveyed worth of trailers that were ordinary person never deliv- have to an that company ered and Langston, officials knew could as the trustee of the trust which very para- corporation, never be delivered.” In the responsible next owned the was graph Langston, allegedly Snell wrote: “Ruble the Trailite’s decep- fraudulent and majority Accordingly, owner of the tive activities. jury interest allegations, meaning who denies the fraud should have determined supplied the article headquarters conveyed Clements’ would have complaints with an ordi- person. nary [attorney general] Defendants-appel- White’s See id. staff lees were not entitled to gamut summary judg- which run from unethical to against Langston ment incompetent behavior.” the March article did not defame description in this article of him as a matter of law. Point four is activities, Trailite’s alleged by which were overruled. attorney general to be fraudulent and Point must five also be overruled be- deceptive, undoubtedly was defamatory to cause, contrary to the contentions of de- corporation. portion That of the article fendants-appellees, Langston challenged on which linked corporation, appeal the articles of October 14 and as “the owner of the majority interest in and March as a basis Trailite”, ambiguous meaning in its summary judgment against for the him. because it could conveyed have to an ordi argued He in his supplemental nary person the meaning brief that all of the articles were libelous principal owner corporation, just and not those 21 and responsible for allegedly Trailite’s fraudu November Having overruled all lent deceptive activities. See Beau points of error in the motion for a rehear- Enterprise Journal, mont & ing by defendants-appellees, filed their mo- Thus,, at 730. a fact issue existed on what tion is denied. meaning the article would conveyed have *15 an ordinary person. Therefore, Defendants-appellees requested See id. have a defendants-appellees opinion clarification of the were not insofar as it entitled to a summary judgment against Langston’s remands Langston “causes of action” for on ground a trial on the merits. Specifically, they that the 14 ask October article did scope that the not defame him of the remand be clarified as a matter of law. respect with to the articles In 2, 1983, her article on March 15, 1982, 14 October and March 2 and accompanied by an erroneous headline 3, They 1983. that in opinion note libel”, “Trailer firm sues Snell “appears merits the court to determine reported that “Ruble G. trustee implicitly defamatory that the articles were Trailite”, the Three Trust which owns by reviewing privilege seemingly issue had filed Bryan-Col- a libel suit articles”, with reference to these while at lege Eagle. reported: Station She “The stating opinion same time in the action Eagle incorrectly contends the [libel] plaintiffs-appellants specify “did not [in stated that up Three Trust was ‘set [the] pleading] their how these articles libelled as a trust to legal sham avoid direct [obli- them”. gations] unhappy Trailite customers’.” allegations Snell also referred to the in the When a defendant moves for and by stating consumer-fraud suit that “Trail- granted summary judgment is on the ite 5432, officers took orders for trailers and reviewing basis of article court payments, knowing advance that the com- questioned publica must assume that the pany did not have the means to plaintiff. build the tion was libelous to the Kelley v. 947,
Rinkle,
(Tex.1976).
based on
articles are
S.W.2d
these six
remanded
why
That
for a trial
merits.
“implic-
is
all of the articles were
on the
itly”
assumed to be libelous to
Defendants-appellees
suggest
considering
argument
defendants-
rehearing
ed in their
motion for
that the
appellees
were
to a
entitled
Broadcasting Corporation
decision in Cox
against him
of law on
as a matter
the basis
Cohn,
1029, 1046,
95 S.Ct.
U.S.
privilege.
(1975),gave
“evidence of malice later 8.” through plain- Exhibits
tiffs-appellants relatively specific al- made
legations respect pub- with to the articles
lished on 2,1983, they
November March
did not out how been de-
famed the article March *16 original peti- third amended PRYOR, Mickey Appellant, Frank undoubtedly subject special to a v. exception Langston’s because of failure to Texas, Appellee. The STATE of through specifically allege, innuendo or otherwise, how and in what manner he had No. 05-85-01214-CR. generally been defamed six articles Texas, Appeals Court of libelous, pleading to be Dallas. plead nevertheless sufficient cause of action based on the articles Sept. and November 2 and and March 1983. See Gill, Bradstreet Tex. 9 S.W. Co. (1888). 754-55 The causes of action