Appendix — Santiago v. K-Six Television, Inc.
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Supreme Court, U.S.
7, FILED
vo. 01181 8 WN 13 2008
INTHE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2001
ANGEL SANTIAGO,
Petitioner.
V.
K-SIX TELEVISION, INC., DEVIN HELMES,
AMANDA SALINAS, ANAHI GARCIA, DAVID CORTEZ,
JUAN ZAMORA, ALFONSO HOLGUIN, JUAN RAMIREZ, AND
PAUL RAYMOND BUITRON, III.,
Respondents.
On Petition for a Writ of Certiorari to the
Supreme Court of the State of Texas
PETITIONER'S APPENDIX
Edward P. Fahey
1800 Victoria St. Suite 2
Laredo, Texas 78040
Edward P. Fahey, Jr. (956) 753-0964
1800 Victoria St. Suite 2 Counsel for Petitioner
Laredo, Texas 78040
(956) 753-0964
Of Counsel
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2001
ANGEL SANTIAGO,
Petitioner,
V.
K-SIX TELEVISION, INC., DEVIN HELMES,
AMANDA SALINAS, ANAHI GARCIA, DAVID CORTEZ,
JUAN ZAMORA, ALFONSO HOLGUIN, JUAN RAMIREZ, AND
PAUL RAYMOND BUITRON, IIL.,
Respondents.
On Petition for a Writ of Certiorari to the
Supreme Court of the State of Texas
PETITIONER'S APPENDIX
Edward P. Fahey
1800 Victoria St. Suite 2
Laredo, Texas 78040
Edward P. Fahey, Jr. ; (956) 753-0964
1800 Victoria St. Suite 2 Counsel for Petitioner
Laredo, Texas 78040
(956) 753-0964
Of Counsel
APPENDICES
Petitioner's Petition for Writ of Mandamus in the
i cis sesh keke see cee besseciaeseco A
Order On Petition for Writ of Mandamus....................... B
Opinion and Order in the Texas Fourth Court of Appeals............ >
Trial Court's Order on K-Six' ‘Traditional’ Motion for
LCs cere seeeki thats ekesewdieenees D
Trial Court's Order on K-Six' 'No-Evidence' Motion for
rs he Lae hale ha bib. dv 00 4.0 6 sw 0 00.0% E
Transcript of Trial Court Hearing on Summary Judgment............ F
Petitioner's Motion for Rehearing and Order of the
ELSES COL TTT EEE EEE ECR TRT TTT G
Transcript; Texas Senate State Affairs Committee Hearing........... H
National Center for State Courts, Tort Filings—Selected Years........ I
Interlocutory Appeals Statute-50 States-Summary................. J
New York Interlocutory Appeals Statute.....................05. K
Arkansas Interlocutory Appeals Statute....................0005- L
AO Salt NY? PALER SIN LT
Original Proceeding No.
IN THE
SUPREME COURT
OF TEXAS
From the Fourth Court of Appeals
at San Antonio, Texas
In re ANGEL SANTIAGO, Relator
PETITION FOR WRIT OF MANDAMUS
Edward P. Fahey, Jr.
State Bar # 24009400
Emergency Relief Requested 1800 Victoria St. Suite 2
Laredo, Texas 78040
Tel: (956) 753-0964
Fax: (956) 723-1606
ATTORNEY FOR RELATOR,
ANGEL SANTIAGO
Original Proceeding No.
IN re ANGEL SANTIAGO,
RELATOR
IDENTITY OF PARTIES AND COUNSEL
Relator certifies that the following is a list of all parties and all counsel in
this matter:
1.) Relator is Angel Santiago, Jr., who is plaintiff in the underlying
case. The attorney representing Relator is:
Edward P. Fahey, Jr.
1800 Victoria St. Suite 2
Laredo, Texas 78040
Tel: (956) 753-0964
Fax: (956) 723-1606
2.) Respondents in this matter are: The Honorable Chief Justice, Phillip
D. Hardberger; The Honorable Justice Alma L. Lopez; The Honorable
Justice Paul W. Green; all of the Fourth Court of Appeals in San Antonio,
Texas.
Fourth Court of Appeals
Bexar County Justice Center
300 Dolorosa, Suite 3200
San Antonio, Texas 78205-3037
Tel: (210) 335-2635
Fax: (210) 335-2762
3.) The real parties in interest in this case are: K-Six Television, Inc.,
Devin Helmes, Amanda Salinas, Anahi Garcia, David Cortez, and Juan
Zamora. Collectively they are known as the "media defendants" in this
case. All are represented by:
The Rangel Law Firm, PC.
Jorge C. Rangel
State Bar # 16543500
William E. Maxwell
State Bar # 24002550
615 Upper North Broadway, Suite 2020
Corpus Christi, Texas 78477
Tel: (361) 883-8500
Fax: (361) 883-2611.
4.) The non media defendants in this case are: Alfonso Holguin, Juan
Ramirez, and Paul Raymond Buitron III. They are not parties to the appeal
complained of in this petition. Holguin and Ramirez are represented by:
Sergio "Keko" Martinez
State Bar # 13144550
1420 San Bernardo Ave.
Laredo, Texas 78040
Tel: (956) 726-1636
Fax: None
Buitron III is represented by:
Santiago "Jimmy" Sandoval
State Bar # 17625500
402 Washington
Laredo, Texas 78040
Tel: (956) 726-0191
Fax: (956) 724-5053.
-ii-
TABLE OF CONTENTS
Dhomtity OF Parties ORG COMMBEE,. 5 nc cece sae cncecasnes i, li
RP reer eee rr re re iv, V, Vi
Statement of the Case......... 00. cc cece ccecceeceuceeucees Vil
rrr er rr ry re Vil
NS oy cag ba oe ry Gece ae a ee eae Vill
oe es alee hae eg ak eek eae eae ee 1
eT eee ee Tee re eT Tere eT Tee ee Tee 1
1. Interlocutory appeals statute must be strictly construed.... 1
2. What a summary judgement is ‘based on’ is the same as its
(AEE ee er Tye TC Tee ee ee eee Teer e 3
3. Grounds for summary judgement must be specifically
EE ih TR I, 5 a avn cc few R Ries Keane nda een 3
4. "Fair Notice" is the reason for the rule................. 4
5. The media's right to an interlocutory appeal is not automatic;
Texas appellate decisions require a specific reference to free
6. K-Six' grounds have no specific reference to constitutional or
statutory free speech protections. Therefore its motion could
not have been "based on" such protection............... 8
7. Therefore, K-Six failed to invoke § 51.014(a)(6), and the
Fourth Court's exercise of jurisdiction was
I iia hE oa en eRe eee ea a 8
Policy Argument----Burden on Media is not Onerous............... 9
Constitutioinal Argument----Harm Done to Relator................ 10
a er rr ror rere rere ey ener era reer eT 15
PETE TE Peer eT Tere eT CRE ere 16
WI ot ea ue ackothe es ka Wes sew Eee A eo es 17
Relator’s Motion for Emergency Stay. ............. cece eens 18
Certificate of Service...... See eee ee eee 21
CN IIIS os ks osc cessed eaten ee i etascews 22
fe ere ae ee ta ka ee ee eee ee eee 23
INDEX OF AUTHORITIES
U.S. Supreme Court
1. Calder v. Jones, 465 U.S. 783 (1984). ........00...0...0000. 12,13
2. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc..,
i | re ere) Sree 12, 13, 14
3. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)... ............ 12
4. New York Times Co. v. Sullivan, 376 U.S. 254 (1964)............ 12
5. Rosenblatt v. Baer, 383 U.S. 75, 92 (1966)................000. 14
Texas Supreme Court
1. Dickson v. Strickland, 114 Tex, 176, 265 S.W. 1012
Cen CME ide hy in oe ee ee ea ee 1]
2. Ex parte Henry, 147 Tex. 315, 215 S.W.2d 588 (Tex. 1948)........ 1]
3. LaRouche v. Hannah, 822 S.W.2d 632 (Tex. 1992)........... Vil, Vili
4. McConnel v. Southside Indep. School Dist., 858 S.W.2d 337
NS I ge tee as IN Oak 3, 4, 10
5. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677
SR i ae Oe ee re eae eee eee | 2
6. Novak v. Stevens, 596 S.W.2d 848 (Tex. 1980)..............00. l
7. Turner v. KTRK Television, Inc., 38 S.W.3d 103
Se I ops seeker ere Sor eh. ay a oT 4, 40, 23
8. Univ. of Texas Southwestern Medical Center, et al., v. Margulis,
DE Oe, Wee NO CO, IE, gc ik cic tee buccasiadaccacivaa Vii
9. Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771
Ua er rare etre ore tie ee we aime 4
Texas Appeals Courts
1. *American Broadcasting Co. v. Gill, 6 S.W.3d 19-(Tex. App.—
San Antonio 1999, pet. denied) overruled in part on other
grounds, Turner v. KTRK Television Inc., 38 S.W.3d 103
Py I eras Se ea ee Ck Pe ka oaks 5
2. America Online v. Williams, 958 S.W.2d 268 (Tex. App.—
Suombabees £140 EGE) 1997, MO OUR. 2. oc ck vice ade v esx debaun 2
3. *A. H. Belo Corp. v. Corcoran, 52 S.W.3d 375 (Tex. App.___
Receetoes That Eeeet.) Boek, SO MM... cc eceeinenans » ae
4. *Delta Air Lines v. Norris, 949 S.W.2d 422 (Tex. App.—
pe mf | PPC TEV PSCC CT TTC TT 5, 6,9
5. *Dolcefino v. Randolph, 19 S.W.3d 906 (Tex. App.—
Houston [14th Dist.] 2000, pet. denied)...................8. 5
6. *Freedom Communications, Inc. v. Brand, 907 S.W.2d 614
(Tex. App.—Corpus Christi 1995, no writ.............. 5, 6,9
7. *Galveston Newspapers, Inc. v. Norris, 981 S.W.2d 797 (Tex.
App.—Houston [1st Dist] 1998, pet. denied)............... 5
8. In re Cornyn, 27 S.W.3d 327 (Tex. App.—Houston
bog ES 8 eee Creer ee re ee Vii
9. *KTRK Television, Inc. v. Fowkes. 981 S.W.2d 779 (Tex. App.—
Houston [Ist Dist] 1998, pet. deined) overruled in part on other
grounds, Turner v. KTRK Television, Inc. 38 S.W.3d 103
ye Pe re ere re ree er age 5, 6, 7,9, 12
10. Montgomery County, Texas v. Fuqua, 22 S.W.3d 662
(Tex. App.—Beaumont 2000, pet. denied)................. 2
11. Pettitte v. SCI Corp., 893 S.W.2d 746 (Tex. App.——Houston
Oe et See SP NL 0 vg 5h s ok been Seca ecw 4
12. Roberts v. Southwest Texas Methodist Hospital, 811 S.W.2d 141
(Tex. App.—San Antonio 1991, writ denied)............... 10
13. *Rogers v. Cassidy, 949 S.W.2d 439 (Tex. App.—Corpus Christi,
Sere, WN EE gk ea kk cca eke bed be iS eee eee 5,6
14. Scoggins v. Southwestern Electric Serv. Co., 434 S.W.2d 376
(Tex. Civ. App.—Tyler 1968, writ ref'd n.re.).. 2.6... 6.6068. 11
15. Texas Dept. of Transp. v. City of Sunset Valley, 8 S.W.3d 727
(Tex. App.— Austin 1999, no pet.)... 6... 6. eee eee eee 2
16. *Texas Monthly, Inc. v !
7 S.W.3d 801 (Tex. App.— Houston [1st Dist.]
ya ks ao ve-vcevecccces z
17. *Time Warner Entertainment Co. L.P. v. Hebert, 916 S.W.2d 47
(Tex. App.—Houston [1st Dist] 1996, no writ)..............
?-. *TSM AM-FM TV v. Meca Homes, Inc, 969 S.W.2d 448
(Tex. App.—E] Paso 1998, pet. denied).................. 5,7
Codes and Statutes
1. Texas Constitution article 1, §8.......................2.... 10
2. Texas Constitution article 1, §13...................05-... 10
2. Texas Constitution article 5, §3.................---0 2-20, Vii
3. Tex. Civ. Prac. & Rem. Code § 51 .014a(6)
a Vil, Vili, 1, 2, 4-12
4. Tex. Gov't Code §22.002(a) (Vernon's 1997).................. Vii
I 3, 4, 6, 8, 10
EE 8
Other
1. Black's Law Dictionaty, ( Bryan A. Garner ed. 7th ed.
es gy veces nc ken cece c ccc cucne 3
-Vi-
Statement of the Case. . ‘
3 The underlying case is a suit for defamation, brought by Angel
Santiago, Jr. against K-Six Television, Inc., it's employees, and three non-
media defendants, who are not parties to the appeal.
2. Relator complains that a three-judge panel of the Fourth Court
of Appeals erroneously exercised jurisdiction over an interlocutory appeal
brought by the media defendants under Section 51.014(a)(6) of the Texas
Civil Practice and Remedies Code.
Statement of Jurisdiction.
This Court has jurisdiction to issue a writ of mandamus under Texas
Constitution article 5, §3, and under Section 22.002(a) of the Texas
Government Code. "[M]andamus will lie to prevent a court from exercising
jurisdiction it does not have, even if there is an adequate remedy by appeal.
In re Cornyn, 27 S.W.3d 327, 332 (Tex. App.—Houston [1st Dist.] 2000,
no pet.). "[E]ven when an appeal is interlocutory, we have jurisdiction to
determine whether the court of appeals has jurisdiction of the appeal."
Univ. of Texas Southwestern Medical Center, et al., v. Margulis, 11 S.W.3d
186, 187 (Tex. 2000). ©
Compelling Reason.
This petition for writ of mandamus has not first been filed in the Fourth
Court of Appeals because of the emergency nature of the request. As in
LaRouche v. Hannah, 822 s.w.2d 632, 633-34 (Tex. 1992), there are
compelling reasons to file the mandamus directly in the Supreme Court
-Vii-
without first filing it in the court of appeals. The compelling reason for not
dong so, is that relator here complains of the wrongful exercise of
jurisdiction by that very Court. It would be futile to ask the Fourth Court of
Appeals to issue a writ of mandamus against itself.
Issue Presented.
The question presented by this petition is one that involves the
construction and application of a relatively new statute. The case is one of
first impression because this Court has not yet ruled on the application of
Tex. Civ. Prac. & Rem. Code §51.014(a) (6). Also, there is a conflict
among the appeals district about how to apply the statute.
ISSUE: The Fourth Court of Appeals erroneously exercised appellate
jurisdiction over an interlocutory appeal, brought under color
of Texas Civil Practice and Remedies Code § 51.014a(6),
where the grounds stated in appellant's motion for summary
judgement made no reference to the free speech or free press
clauses of the U.S. or Texas Constitutions, or Chapter 73 of
the Texas Civil Practice and Remedies Code.
Statement of Facts.
The underlying defamation suit was initiated in October 2000, as a
result of statements made in two news broadcasts by KVTV, Channel 13,
Laredo, Texas. At the time of the broadcast, KVTV was owned by K-Six
Television Inc., of Corpus Christi.
-Vili-
On July 11, 2001, K-Six filed a 'no evidence’ motion for summary
judgement, and a ‘traditional’ motion for summary judgement in the trial
court, the 111th District Court of Webb County, Texas. Apx. tab B&C.
Neither of K-Six' motions for summary judgement stated that they were
based on the free speech or free press clauses of the Constitution, or on
Chapter 73 of Texas Civil Practice and Remedies Code. Apx. tab B & C.
After a hearing, both of K-Six' motions were denied. Apx. tab D & E. K-
Six filed a notice of appeal. citing Tex. Civ. Prac. & Rem. Code §
51.014a(6) as the statute authorizing the interlocutory appeal. Apx. tab F.
In his appellate brief, Relator challenged the Fourth Court's jurisdiction
under that statute. Apx. tab G. However, in the opinion handed down on
Feb. 13, 2002, the Court decided that its jurisdiction was proper "because
appellant's motions relied in part on the law of libel found in Chapter 73 of
the Code." Apx. tab A.
Argument and Authorities.
1. Interlocutory appeals statute must be strictly construed.
Generally, the denial of a litigant's motion for summary judgement is
not an appealable order. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.
1980). The denial of a summary judgement is an interlocutory order.
Appellate courts do not have jurisdiction over appeals from interlocutory
orders, absent a specific grant from the legislature. New York Underwriters
Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-79 (Tex. 1990).
Chapter 51.014 of the Texas Civil Practice and Remedies Code
provides several exceptions to the qeecral rule. One such exception can
apply to media defendants. The relevant part of the statute provides:
(a) A person may appeal from an interlocutory order of a district
court, county court at law, or county court that:
(6) denies a motion for summary judgement that is
based in whole or part upon a claim against or defense
by a member of the electronic or print media, acting in
such a capacity, or a person whose communication
appears in or is published by the electronic or print
media, arising under the free speech or free press clause
of the First Amendment to the United States
Constitution, or Article 1, Section 8, of the Texas
Constitution, or Chapter 73;
Tex. Civ. Prac. & Rem. Code § 51.014(a)(6).
At least three Texas appeals courts have held that the statute authorizing
interlocutory appeals must be strictly construed because it "is a narrow
exception to the general rule that only final judgements and orders are
appealable." Montgomery County, Texas v. Fuqua, 22 S.W.2d 662, 665
(Tex. App.—Beaumont 2000, pet. denied); Tex. Dept. of Transp. v. City of
~ Sunset Valley, 8 S.W.3d 727, 730 (Tex. App.— Austin 1999, no pet.)
(citing America Online, Inc. v. Williams, 958 S.W.2d 268, 271 (Tex.
App.—Houston [14th Dist.] 1997, no pet.)).
2. What a summary judgment is ‘based on' is the same thing as its
‘grounds. '
It is a fair reading of the statute to say that, in order to invoke appellate
jurisdiction, the media defendant's summary judgement motion must be
based——at least in part---on constitutional or statutory protections of free
speech or press. Therefore, the motion, and what it is ‘based on,’ are the
focus of the present inquiry. What were K-Six' motions based on? The
logical place to look for an answer is in the statement of grounds presented
by K-Six in its summary judgement motions. Apx. tab B & C.
The verb ‘to ground’ and the word ‘base’ are related to each other:
ground, vb. 1. To provide a basis for (something, e.g. a legal
claim or argument)...2. To base (something, e.g. a legal
principle or judicial decision) on...
Black's Law Dictionary 710 (Bryan A. Garner ed., 7th ed.,
West 1999). Therefore, what a motion for summary judgment is ‘based on,’
is the same thing as its ‘grounds.’
3. Grounds for summary judgement must be specifically stated in the
motion.
Texas law is well settled that "[a] motion for summary judgement shall
state the specific grounds therefore." Tex. R. Civ. P. 166a(c); McConnell v.
Southside Indep. School Dist., 858 S.W.2d 337, 341 (Tex. 1993) (holding
that "a motion for summary judgement must itself expressly present the
grounds upon which the motion is made"). The McConnell Court went on
to note that "...if the ground are not expressly presented in the motion
itself, the motion is legally insufficient as a matter of law." Jd. at 342.
Therefore, for K-Six to have successfully invoked appellate jurisdiction
over its interlocutory appeal, it must have complied both with §
51.014(a)(6) Tex. Civ. Prac. § Rem. Code and Tex. R. Civ. P. 166a(c), by
a.
stating expressly and specifically, in the grounds for summary judgement,
that it was relying on some constitutional guarantee of free speech. -
4. Fair Notice is the reason for specificity.
The reason for the "admittedly rigorous rule" of specificity in 166a(c)
goes to the issue of notice. McConnell, 858 S.W.2d at 341. "Rule 166a(c) is
important because it provides the opposing party with notice of all matters
expected to be asserted in arguing the motion." /d; Westchester Fire Ins.
Co. v. Alvarez, 576 S.W. 771, 772 (Tex. 1978) (noting that "the purpose of
the requirement [of specificity] is to provide the opposing party with
adequate information for opposing the motion); Pettitte v. SCI Corp., 893
S.W.2d 746, 747 (Tex. App.—Houston [1st Dist.] 1995, no writ) (stating
that the requirement of specificity is satisfied, if the grounds in the motion
give "fair notice" to the non-movant). 'Fair notice’ has sone been a
requirement of jurisdictional and even constitutional importance. It is a
mainstay of American jurisprudence.
5. The media's right to an interlocutory appeal is not automatic; Texas
appellate decisions require a specific reference to free speech protections.
Several Texas Appeals Courts have directly tackled the issue presented
by this petition: Did the appellant properly invoke higher court jurisdiction
according to § 51.014a(6). See all cases marked with an asterisk (*) in the
Index of Authorities, supra, at iv-vi. The procedural posture of the cases so
marked is the same as in the present case. In half of the cited cases, the
Courts concluded that their jurisdiction was proper without stating or
-4-
showing how the appellants complied with the statute. The Court in Texas
Monthly even seemed to suggest that the right to an interlocutory appeal
was automatic, simply when the defendant is a member of the media. 7
S.W.3d at 813, n.1. However, nothing in § 51.014(a)(6) says, or even
implies, that the media's right to an interlocutory appeal is automatic. The
legislature could have easily made it so, but did not. Therefore, the media
defendant must first ‘do something’ in order to invoke the right.
Delta Air Lines and the five cases that follow show what the media
defendant must do. 949 S.W.2d 422. In Delta Air Lines, the defendant
"...moved for summary judgment on three causes of action [sic] asserting
(1) that the claims for defamation and business disparagement must fail
because the alleged statements were either 'non-defamatory or non-
actionable statements of opinion’ protected by free speech rights; (2)
| alternatively, that the statements were substantially true; and (3) that
Norris’ claim for intentional infliction of emotional distress fails because..."
949 S.W.2d at 425.
Because one ground in Delta's motion for summary judgement
contained a specific reference to "free speech rights," the Waco Court
properly held it had jurisdiction over the appeal. 949 S.W.2d at 424. Delta
thus complied with § 51.014a(6) and Tex. R. Civ. P. 166a(c) by specifically
referring to a constitutional defense in its grounds for summary judgment.
This is what gets an appellant covered by the statute.
Support for this way of invoking appellate jurisdiction is also found in
Freedom Communications Inc. v. Brand, 907 S.W.2d 614 (Tex. App.—
-5-
eo Ot ne Pe ELT etn
Corpus Christi 1995, no writ). The Court in Freedom Communications
concluded it had proper jurisdiction over Freedom's appeal because it
found this language in Freedom's motion for summary judgement: "the
editorial published by the FREEDOM DEFENDANTS [sic] carries
absolute protection from liability under the First Amendment and the Texas
Constitution as none of the challenged statements was published with
actual malice." /d. at 619.
The statement above v as held to have invoked the Court's jurisdiction
expressly because it complied with both the relevant statutes: §
51.014(a)(6), and the specificity requirement under Tex. R. Civ. P. 166a(c).
Id.
In another Corpus Christi case, appellate jurisdiction over the media
defendant's interlocutory appeal was found to be proper on the basis that
“he was engaging in constitutionally protected political speech." Rogers v.
Cassidy, 946 S.W.2d 439 (Tex. App.—Corpus Christi 1997, no writ). This
statement was contained in ground two of defendant's motion for summary
judgment. /d.~
The Houston Court of Appeals for the First District falls in line with
the holdings in Delta Air Lines, Freedom Communications, and Rogers.
In KTRK v. Fowkes, 981 S.W.2d 779 (Tex. App.—Houston [1st Dist.]
1998, pet. denied) overruled in part on other grounds, Turner v. KTRK
Television, Inc., 38 S.W.3d 103 (Tex. 2000), the Court found that the
media appellant defended the libel claim on free speech grounds. The
affirmative statement of grounds was: "(2) that Dolcefino's conduct
was a bona fide exercise of his first amendment rights." Id. at 787.
In A.H. Belo Corp. v. Corcoran, the same Court found it jurisdiction
proper under 51.014(a)(6) where the appellants' motion for summary
judgment stated, as ground for summary judgment # 7: "imposing liability
on appellants for engaging in routine news gathering is a violation of the
First Amendment." 52 S.W.3d 375, 378 & n.1.
In the case of TSM AM-FM TV, the El Paso Court of Appeals denied a
defamation plaintiff the right to appeal under § 51.014(a)(6); saying,
correctly, the statute is meant for defendants only. 969 S.W.2d supra, page
v., at 451. But, in dicta, the Court underscored the necessity of expressly
referring to free speech protections:
Even if we were to find that Meca and Mashburn could
appeal, the grounds for summary judgment that they
relied upon do not meet the requirements of Section
51.014(6). Meca and Mashburn's grounds for summary
judgment were not based on either the First Amendment
to the United States Constitution, Article I, § 8 of the
Texas Constitution, or Chapter 73 of the Civil Practice
and Remedies Code. We can find no authority that
would confer jurisdiction upon this Court...
Id.
These six cases demonstrate that some reference to free speech, or the
Constitution, or free press, or even Chapter 73 must be specifically stated _
in the media defendant's grounds for summary judgment. Otherwise, they
do not qualify for the right to an an interlocutory appeal. The exception is
narrow. This requirement, although technical, is reasonable because it
; 3
square with Tex. R. Civ. P. 166a(c); with the meaning of ‘based on’ in
51.014(a)(6); and with Tex. R. App. P. 33.1(a), which states:
(a) In general. As a prerequisite to presenting a complaint for
appellate review the record must show that:
(1) the complaint was made to the trial court by a timely
-Tequest, objection, or motion that: (A) stated the grounds
for the ruling that the complaining party sought from the
trial court with sufficient specificity to make the trial
court aware of the complaint...
6. K-Six' grounds show no specific reference to constitutional or statutory
free speech protections. Therefore, K-Six failed to invoke § 51.014(a)(6),
and the Fourth Court's exercise of jurisdiction was improper.
K-Six' motion for summary judgment under 166a(c) is found in
Appendix, tab B. K-Six 'no-evidence' motion for summary judgment is
found in Appendix, tab C. The grounds stated in the motions are found
beginning on page 7, and in paragraph 4, respectively. Nowhere is to be
found the kind of specific reference that the decisions cited supra Say is
required to invoke appellate jurisdiction. K-Six therefore did not comply
with the requirements of the statute.
The absence of "actual malice" may be consiodered a constitutionally-
derived defense to a libel. And the absence of malice is stated in K-Six'
motions. But, the judicial interpretations of § 51.014(a)(6), as cited above,
hold that that is not enough. There must be a statement similar to those
found in Delta, Freedom Communications, Rogers, Fowkes, and A. H. Belo.
[citations omitted].
The Respondents failed to consider the judicial interpretations as to
what must be done before there jurisdiction over K-Six' appeal would be
proper. If the Respondents did consioder the decisions, then they ignored
precedent coming out of the First District in Houston. The Eighth District
in El Paso, the Tenth Court in Waco, and the Thirteenth Court in Corpus
Christi. The Fourth Court's decison in this case, therefore presents a
conflict which should be resolved by this Court.
Policy Argument----Burden on the Media is Not Onerous.
Some may argue that the requirement of making a specific reference to
free speech protections is overly technical. It may well be. But the law is
sometimes very technical. If the indictment does not state: "Against the
Peace and Dignity of the State," a conviction will be overturned. If the
motion does not say: "this continuance is not for delay only, but so justice
may be done," then the trial is today----not tomorrow, or next week.
Some may argue that the requirement of having to expressly reference
the protections of free speech in the grounds for summary judgement is
onerous or unduly burdensome for the media defendant. It is not. Any
additional burden on K-Six in this case would have consisted only in: 1.)
becoming aware of the appellate decisions mentioned in this petition; and
2.) a few keystrokes on the word processor, coupled with a few milligrams
of extra toner. These represent no burden at all.
There are four other reasons why any incremental burden on the media
is warranted. First, because, Tex. R. Civ. P. 166a(c) requires specificity.
McConnel, 858 S.W.2d at 339. And Rule 166a(c) governs all motions for
summary judgement, even ones from the media. Second, there is no other
way for the trial court, the plaintiff, or the appeals court to know that the
defendant is asserting a defense ‘arising under' constitutional or statutory
provisions. Tex. Civ. Prac. & Rem., Code § 51.014(a)(6). Third, the
requirement furthers the judicial standard of strictly construing an
exception to the general rule that only final orders may be appealed.
Finally, in the case of Roberts v. Southwest Texas Methodist Hospital,
811 S.W.2d 141, 145 (Tex. App.——San Antonio 1991, writ denied), it was
observed: "[t]here is nothing onerous or unreasonable about requiring the
movant to state the grounds upon which he seeks to win a lawsuit without a
trial." Likewise, there is nothing burdensome about requiring K-Six
Television to add the words, ‘protected by the First Amendment' to one of
its grounds for summary judgment, if it wants to win this lawsuit without a’
trial.
Constitutional Argument----Harm Done to Angel Santiago.
The Texas Constitution give Angel Santiago the right to bring his
defamation claim against K-Six Television. Tex. Const. art I, §8 & § 13;
Turner v. KTRK Television, Inc., 38 S.W.3d 103, 116-17 (Tex. 2000)
-10-
(holding that the Texas Constitution expressly guarantees the right to bring
reputational torts; and that the free speech guarantee in the Texas
Constitution---although broad---"cannot come at the expense of a
defamation claimant's right to redress."). Yet, Santiago's right to redress---
as fundamental as it is---has been cut off by the improvident exercise of
jurisdiction over K-Six' interlocutory appeal.
When a statute bumps up against the Constitution, as a general
proposition, the statute must yield. Scoggins v. Southwestern Electric Serv.
Co., 434 S.W.2d 376 (Tex. Civ. App.—Tyler 1968 writ ref'd n.re.); Ex
Parte Henry, 147 Tex. 315, 215, 5.W2d 588 (Tex. 1948); Dickson v.
Strickland, 114 Tex. 176, 265 S.W. 1012 (Tex. 1924). Here, Santiago is not
so much concerned with the ultimate constitutionality (under Texas law) of
§ 51.014(a)(6), as with the practical effect of its too liberal application.
The practical effect is that Santiago is completely denied relief. At
times, a libel plaintiff may want to reject money damages, and opt instead
for normal damages and a trial judgement that the injurious statements
made against him are false. This would have the salutary and much-desired
effect of vindicating his reputation. Yet, by the operation of 51.014(a)(6),
even this form of relief is denied Santiago. In this, he is not alone. In 10 of
the 11 cases cited with an asterisk at the Index of Authorities, supra at iv-
vi, the appellate courts reversed and rendered judgement in favor of the
media defendant. The plaintiff took nothing. That means, that by operation
of this statute, 91% of all defamation plaintiffs are effectively denied all
$4.
possible forms of relief. (Except for that pre-civilized form of relief---
taking the law into one's own hands). Perhaps this is what the Texas
Legislature intended. But the substantial nature of the two competing rights
would predict, in a real world, an outcome closer to 50-50—as in an
“evenly-matched fight.
We are told that the purpose of the Texas statute is to protect media
defendants from meritless l'bel claims, and "to eliminate the chilling effect
that the threat of extended litigation has upon the exercise of the
protections secured by the First Amendment." Fowkes, 981 S.W.2d 779,
supra, p.6, at 787-786. Yet, at least or > court has already determined that
Santiago's claim is not meritless. Apx. tab D & E. The second stated
purpose, while laudable, seems outside the purview of a state legislature.
The U.S. First Amendment protection described in Fowkes, supra, have
already been secured to the media---and everybody else---by well-settled
US. constitutional decisions. See New York Times Co. v. Sullivan, 376 U.S.
254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); and See Dun
& Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 773 & 781-
84 (1985) (holding, 9 to 0, that "the First Amendment gives no more
protection to the press in defamation suits than it does to other exercising
their freedom of speech") (White, J., concurring, and Brennan, J.,
dissenting). With this knowledge, it would seem that even purely Texas-
(
based media do not need any extra help from the Texas Legislature to
secure their free speech rights granted by the U.S. Constitution.
The U.S. Supreme Court has flatly said as much. In Calder v. Jones, 465
U.S. 783, 790-91 (1984), the Court said:
[T]he potential chill on protected First Amendment
activity stemming from libel and defamation actions is
already taken into account in the constitutional
limitations on the substantive law governing such suits.
To reintroduce those concerns at the jurisdictional stage
would be a form of double counting. We have already
declined in other contexts to grant special procedural
protections to defendants in libel and defamation actions
in addition to the constitutional protections embodied in
the substantive laws.
Thus, the "special procedural protection" granted by the Texas Legislature
to the media in § 51.014(a)(6) is superfluous, and a form of overkill. And it
undervalues Santiago's "right to redress." What is more, the-operation of
Texas statute was expressly denounced by the Court in Calder, nine years
before § 51.014(a)(6) was passed by the Texas Legislature. In Calder the
Court said that the [U.S.] Constitution does not require any special rules to
apply at summary judgement in a defamation case. /d.
Indeed, this Court, in the context of a public-figure libel case, said:
"We see no need, therefore, to impose an additional barrier to recovery not
required by the U.S. Constitution." Turner, 38 S.W.3d, supra, p. 10, at 116.
In this case, 51.014(a)(&) has been shown to be a barrier to Santiago's
recovery. And under Calder, the barrier is not required by the U.S.
Constitution.
On the other side of the balance sheet, Santiago’ interest in the
protection of his own good name has been found by the U.S. Supreme
“it
to be "strong and legitimate." Dun & Bradstreet, 472 U.S. supra, p. 12, at
757. And, in an eloquent and oft-cited phrase, Santiago's interest in
vindicating his reputation has been considered to be worthy itself of U.S.
Constitutional protection:
The right of a man to the protection of his own
reputation from unjustified invasion and wrongful hurt
reflects no more than our basic concept of the essential
dignity and worth of every human being——a concept at
the root of any decent system of ordered liberty. The
protection of private personality, like the protection of
life itself, is left primarily to the States under the Ninth
and Tenth Amendments. But this does not mean that the
right is entitled to any less recognition by this Court as a
basic of our constitutional system.
Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J.
concurring) (quoted in Dun & Bradstreet, supra, at 757-
58).
~ When two great and fundamental legal rights contend, the fight over the
boundary line between them is likely to be hotly disputed. And the
resolution of the boundary is likely to rest on very fine distinctions---e.g.
technical criteria. Because Santiago's fundamental interests are
substantially undervalued by the operation of § 51.014(a)(6), this Court
should err on the side of having the media defendant endure the (slight)
burden of conforming to the technicality, if he wants immediate review. At
least five media defendants in Texas have already proven that they can
conform to the requirements of the statute. K-Six can do it too.
Therefore, in the face of the legitimacy of Santiago's substantial
interest, it is not unreasonable for this Court to construe § 51.014(a)(6) in
-14-
the way proposed by this petition; that is by requiring the media defendants
to expressly state in his grounds for summary judgement that he is basing
his defense on the Constitution. Such a ruling would give equal dignity to
the weighty and opposing values at stake.
Prayer.
For the foregoing reason, Relator asks this Court to grant his petition;
‘grant his request for emergency stay; issue a Writ of Mandamus requiring
Respondents to vacate their judgement and opinion of February 13, 2002
for want of proper jurisdiction over K-Six' appeal; and affirm the trial
court's orders denying summary judgement.
Respectfully submitted,
Edward P. Fahey, Jr.
State Bar # 24009400
1800 Victoria Suite 2
Laredo, Texas 78040
Tel: (956) 753-0964
Fax: (956) 723-1606
ATTORNEY FOR RELATOR,
ANGEL SANTIAGO
CERTIFICATE OF SERVICE
I certify that I served by U.S. mail, on March 14, 2002, a copy of this
petition for writ of mandamus on the following parties:
Edward P. Fahey, Jr.
1. The attorney for the real parties in interest-—
Jorge C. Rangel
William E. Maxwell
The Rangel Law Firm, P.C.
615 Upper North Broadway, Suite 2020
Corpus Christi, Texas 78477
2. The respondents, the Honorable Chief Justice, Phillip D. Hardberger;
the Honorable Justice Alma L. Lopez; the Honorable Justice Paul W.
Green; of the Fourth Court of Appeals, in San Antonio, Texas—
Fourth Court of Appeals
Bexar County Justice Center
300 Dolorosa, Suite 3200
San Antonio Texas 78205-3037
-16-
VERIFICATION
STATE OF TEXAS §
COUNTY OF WEBB §
Before me, the undersigned notary, on this day, personally appeared
Edward P. Fahey, Jr. a person whose identity is known to me. After I
administered the oath to him, upon his oath, he said the following.
"My name is Edward P. Fahey, Jr., and I am capable of making this
affidavit and the facts in this affidavit are true and correct.
I am the attorney for the relator. All the documents included with this
petition for writ of mandamus are true copies."
SWORN TO and SUBSCRIBED before me by Edward P. Fahey, Jr., on
March 2, 2002.
& Se LAURA NUNCIO Notary Public in and for the
i} MY COMMISSION BPiRES State of Texas
rae March 23, 2004
My commission expires: 3/23/2004
it.
Original Proceeding No..
§
§
§
- 5 IN THE
IN re ANGEL SANTIAGO : SUPREME COURT
§ OF TEXAS
§
§
§
RELATOR'S MOTION FOR EMERGENCY STAY
Relator asks this Court for an emergency stay.
A. Introduction
1. Relator is Angel Santiago; real party in interest is K-Six Television,
Inc., et al; respondents are: the Honorable Chief Justice Phillip D.
Hardberger, the Honorable Justice Alma L. Lopez, the Honorable Justice
Paul W. Green,
sitting as a panel of the Fourth Court of Appeals, in San Antonio, Texas.
2. Relator files its petition for writ of mandamus concurrently with this
motion for emergency relief.
3. Relator attaches a certificate of compliance certifying that on March 12,
2002, he notified respondents and real parties in interest by fax that a
motion for temporary relief would be filed. Tex. R. App. P. 52.10(a).
4. Emergency relief is requested to stay the mandate from the Fourth Court
of Appeals to the trial court, the 111th District Court of Webb County,
Texas, the Honorable Raul Vasquez presiding. Real parties in interest
-18-
appealed the denial of their motions for summary judgement under color of
Tex. Civ. Prac. & Rem. Code § 51.014(a)(6). However K-Six failed to
comply with the requirements of that statute. The Fourth Court of Appeals
reversed the trial court's order and rendered judgement that Relator take
nothing in his defamation claim against K-Six. In his petition for writ of
mandamus filed concurrently with this motion, Relator claims that the
Fourth Court of Appeals erroneously exercised its jurisdiction over K-Six'
appeal because the statutory protections in § 51.014(a)(6) were not
properly invoked by K-Six at the trial court.
The mandate of the Fourth Court's judgement should be stayed to give
this Court time to review the construction and application of the statute.
B.A 1 Authoriti
5. The Court may grant temporary relief pending the determination of an
original proceeding under authority of Texas Rule of Appellate. Procedure
52.10(b).
6. This emergency stay is necessary to maintain the status quo of the
parties and preserve the Court's jurisdiction to consider the merits of the
original proceedings, as described above. Jn re Reed, 901 S.W.2d 604, 609
(Tex. App.—San Antonio 1995, orig. proceedings).
7. The appeal of an interlocutory order, when allowed by statute, is an
accelerated appeal. Tex. R. App. P. 28.1. In an accelerated appeal from an
interlocutory order, the Court of Appeals may issue the mandate with its
judgement, or delay the mandate until the appeal is finally disposed of Tex.
-19-
__R. App. P. 18.6. In this case, the Appellate Court therefore has discretion to
issue its mandate immediately. Because issuance of the mandate would
foreclose on Relator's possibilities for relief when the construction and
validity of a statute is in question, emergency relief should be granted. Tex.
R. App. P. 56.1(a)(3); Tex. Gov't. Code § 22.001(a)(3).
C. Prayer
8. For the reasons stated is: this motion, Relator asks the Court for an
emergency stay to maintain the status quo of the parties and preserve the
Court's jurisdiction to consider the merits of Relator’s original proceeding.
Respectfully submitted,
Edward P. Fahey, Jr.
State Bar # 24009400
1800 Victoria Suite 2
Laredo, Texas 78040
Tel: (956) 753-0964
Fax: (956) 723-1606
ATTORNEY FOR RELATOR,
ANGEL SANTIAGO
CERTIFICATE OF SERVICE
I certify that 1 served by U.S. Mail, on March 14, 2002, a copy of this
motion for emergency stay to the following parties shown below:
Edward P. Fahey, Jr.
1. The attorney for the real parties in interest:
Jorge C. Rangel
William E. Maxwell
The Rangel Law Firm, P.C.
615 Upper North Broadway, Suite 2020
Corpus Christi, Texas 78477
2. Respondents: the Honorable Chief Justice, Phillip D.
Hardberger, the Honorable Justice Alma L. Lopez, the Honorable
Justice Paul W. Green.
Fourth Court of Appeals
Bexar County Justice Center
300 Dolorosa, Suite 3200
San Antonio Texas 78205-3037
-21-
CERTIFICATE OF COMPLIANCE
Under Texas Rule of Appellate Procedure 52.10(a), I certify that on
March 12, 2002 I notified the attorney for the real parties in interest, and
the clerk of the Fourth Court of Appeals, by fax that a motion for
temporary relief would be filed.
Edward P. Fahey, Jr.
ATTORNEY FOR RELATOR
oy it
THE SUPREME COURT OF TEXAS
Orders Pronounced March 19, 2002
MISCELLANEOUS
THE FOLLOWING PETITION FOR WRIT OF MANDAMUS IS
DENIED:
02-0241 INRE ANGEL SANTIAGO
motion for emergency relief denied
Page |
March 19, 2002
JUDGMENT
NO. 04-01-00592-CV
K-SIX TELEVISION, INC., et al.,
Appellants
V.
Angel SANTIAGO,
Appellee
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2000C VQ-001052-D2
Honorable Raul Vasquez, Judge residing
BEFORE CHIEF JUSTICE HARDBERGER, JUSTICE LOPEZ, AND
JUSTICE GREEN
In accordance with this court's opinion of this date, the trial court's
orders are REVERSED, and judgment is RENDERED that appellee, Angel
Santiago, take nothing with regard to his claims against appellants. It is
ORDERED that the appellants recover their costs of this appeal from the
appellee, Angel Santiago.
SIGNED February 13, 2002.
Alma L. L3pez, Justice 7
OPINION
NO. 04-01-00592-CV
K-SIX TELEVISION, INC., et al.,
Appellants
V.
Angel SANTIAGO,
Appellee
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2000C VQ-001052-D2
Honorable Raul Vasquez, Judge Presiding
Opinion by: Alma L. Lépez, Justice
Sitting: Phil Hardberger, Chief Justice
Alma L. Lopez Justice
Paul W. Green, Justice
Delivered and Filed: February 13, 2002
REVERSED AND RENDERED
This accelerated appeal challenges the trial court's denial of both
traditional and no-evidence motions for summary judgment in a
defamation action against media defendants. The defamation action arose
out of a story aired during two news broadcasts. The appellants contend
that the trial court erred in denying their no-evidence motion for summary
judgment because no evidence was produced that the statement were
false or were made negligently or with actual malice. The appellants
further contend that the trial court erred in denying their traditional motion
for summary judgment because the broadcasts were true or substantially
true and the evidence conclusively established that the statements were not
made negligently or with actual malice. We reverse the trial court's orders
and render judgment in favor of the appellants.
BACKGROUND
Angel Santiago ("Santiago") sued K-Six Television, Inc. ("K-Six") and
several of its employees after a story was aired on two news broadcasts
regarding allegations that Santiago was responsible for funds missing from
the Laredo Amateur Boxing Club, a non-profit corporation ("LABC").
Santiago was subsidies of LABC from its inception in 1991 until June of
2000, when he resigned. As president, Santiago was the only authorized
signatory on LABC's checking account, and he maintained all of the
monthly statements and financial documents required by the United Way,
which provided funding to LABC.
David Cortez ("Cortez"), the assignments editor for K-Six, received an
unsolicited phone call from Richard Geisler regarding a possible story
involving wrongdoings at LABC. Geisler provided Cortez with numerous
financial documents. Cortez assigned the story to Devin Helmes
("Helmes"). Helmes set up a meeting with three LABC coaches - Alfonso
Holguin, Juan Ramirez, and Paul Raymond Buitron, III. The coaches
informed him that LABC was missing funds and Santiago was responsible.
The coaches provided Helmes with various examples of missing funds.
x"
The coaches informed Helmes that they had contacted the IRS and asked
the IRS to investigate. The coaches further informed Helmes that Santiago
had resigned because they told him they were beginning an investigation. In
response to Helmes's call before airing the story, Santiago declined to
comment; however, Santiago stated in his deposition that he resigned for
various reasons, including false allegations that he was maliciously tampering.
Based on the information Helmes received from the coaches, K-Six
aired a news story regarding the coaches’ allegations of missing funds on
two separate broadcasts on October 12, 2002. The first broadcast stated:
AMANDA SALINAS: Straight ahead on Newswatch
13, there's a possible connection with the USS Cole here
in Laredo. We spoke with one family member. We've got
information for you.
Also, stories of stealing money. Devin Helmes has
an exclusive. All this, plus weather and sports are
coming up on Newswatch 13.
(Fade).
(Commercial).
ANNOUNCER: Live from the KVTV studios in
Laredo, this is Newswatch 13, Thursday.
AMANDA SALINAS: Good evening, everyone, and
thanks for joining Newswatch 13. I'm Amanda Salinas.
Newswatch 13 does have some information that a
Laredo area man who is stationed in Norfolk, Virginia -
(Fade).
AMANDA SALINAS: - news of the moment.
Members of a nonprofit club are coming forward and
questioning where their funding's going. Volunteers at
the Laredo Amateur Boxing Club want answers from the
organization's former president as to what he did with
the club's money. Our Devin Helmes met with some of
the group's coaches today, and he's standing by, live in
the newsroom with the latest. Devin.
DEVIN HELMES: Thanks, Amanda. It's a club to
keep boys and girls off the street and improve the quality
of their lives, but according to some people who
volunteer there, the only person benefiting from the
4.
club is its former president.
ALFONSO HOLGUIN: And I used this money to -
for to buy some supplies for the gym, but I never saw
any - any - any new items there.
DEVIN HELMES: Coach Holguin and others are
questioning where almost $15,000 of the organization's
money went. They're curious, because they have all last
year's expense report, but it doesn't make any sense. At
that time, the gym was being renovated and wasn't open.
ALFONSO HOLGUIN: For the year - the reported
year, I think it's $14,000. nearly $15,000 in
expenditures, and the club was not operating.
DEVIN HELMES: They're alleging club president,
Angel Santiago, was taking it. They say he was the only
one who handled all the paperwork.
ALFONSO HOLGUIN: He had control of
everything. He was the president. He was the South
Texas President for the USBA. He was the treasurer.
Nobody have [sic] any access of the monies except him.
DEVIN HELMES: Just this month their accountant
decided to retire his post as treasurer because of a
supposed busy schedule. Santiago also retired this July
after the coaches told him they were investigating.
JUAN RAMIREZ: Santiago -
PERSON OFF CAMERA: Quit.
JUAN RAMIREZ: - quit because he was doing
something wrong.
DEVIN HELMES: Volunteers have pages of proof
that they say incriminate the former president.
Apparently thousands of dollars was given to them from
their supporter, United Way, and from club members in
dues, money that was supposedly never given to who it
really belonged, the children.
PAUL RAYMOND BUITRON , III: A lot of them see
me in the streets and they tell me, "Hey, what's going on
with boxing? I never got anything. I paid my dues to
Laredo Boxing Club." And I go, "What do you mean
you paid it to Laredo Boxing Club? It's supposed to be a
check to the South Texas Amateur Boxing Association."
DEVIN HELMES: Amanda, I talked to Mr. Santiago
on the phone, and he declined to comment on camera as
. se
he said, on things he knew nothing about. But he did tell
me he resigned for many reasons, one being that people
weren't happy with the way he was running things down
there. Now, as for the coaches, they said the IRS is
looking into matters. All they want to know is where the
money went, and they want it back. No lawsuits have
been filed at this time, but the coaches are looking into
one. Live in the newsroom, I'm Devin Helmes. :
AMANDA SALINAS: Now, Devin, you say no
lawsuits have been filed, and you also tell us that - or it
seems to me that this would be a matter of theft. Has the
Police Department been notified and maybe some sort of
criminal complaint already been made on Santiago?
DEVIN HELMES: Yes. Nothing has been done so
far. All they told me was the IRS was looking into
things. They said they brought it to the attention of the
board of directors and things like that. But at this time,
there's no sort of criminal investigation going on. There's
no sort of - the District Attorney is not involved, so the
IRS is the only people [sic] dealing with it at this time.
AMANDA SALINAS: Okay. Thank you very much,
Devin. In-other news, Border Area Drug Conference
continued today -
(Fade).
The second broadcast stated:
AMANDA SALINAS: - as early as tomorrow
morning. It could be later. In other news from around the
city, members of a nonprofit club are coming forward
and questioning where their funding is going. Volunteers
at the Laredo Amateur Boxing Club want answers from
the organization's former president as to what he did
with the money. Newswatch 13's Devin Helmes met
with some of the group's coaches today. He teils us that
it's a club to keep boys and girls off tiie streets and to
improve their quality of life. But according to some
people who volunteer their, the only person who
benefited from this club was its former president.
ALFONSC HOLGUIN: And I used this money to-
for to buy some supplies for the gym, but I never saw
is
any - any - any new items there.
DEVIN HELMES: Coach Holguin and others are
questioning where almost $15,000 of the organization's
money went. They're curious because they have all last
year's expense reports, but it doesn't make any sense. At
that time, the gym was being renovated and wasn't open.
ALFONSO HOLGUIN: For the year - the reported
year, I think it's $14,000, nearly $15,000 in
expenditures, and the club was not operating.
DEVIN HELMES: They're alleging former club
president, Angel Santiago, was taking it, They say he
was the only one who handled all the paperwork.
ALFONSO HOLGUIN: He had control of
everything. He was the president. He was the South -
South Texas President for the USBA. He was the
treasurer. Nobody have [sic] any access of the monies
except him.
DEVIN HELMES: Just this month their accountant
decided to retire his post as treasurer because of a
supposed busy schedule. Santiago also retired this July
after the coaches told him they were investigating.
JUAN RAMIREZ: Santiago -
PERSON OFF CAMERA: Quit.
JUAN RAMIREZ: - quit because he was doing
something wrong.
DEVIN HELMES: Volunteers have pages of proof
that they say incriminate the former president.
Apparently thousands of dollars was given to them from
their supporter, United Way, and from club members in
dues, money that was supposedly never given to who it
really belonged, the children.
PAUL RAYMOND BUITRON, III: A lot of them
them see me in the streets and they tell me, "Hey, what's
going on with boxing? I never got anything. I paid my
dies to Laredo Boxing Club." And I go, "What do you
mean you paid it to Laredo Boxing Club? It's supposed
to be a check to the South Texas Amateur Boxing
Association."
AMANDA SALINAS: Again, that was Devin
Helmes reporting, and Devin did speak to Mr. Santiago
on the phone, but Mr. Santiago declined to comment on
-6-
camera, because he said he didn't want to talk about the
situation. We are told that this club has filed charges
with the IRS - rather they have notified the IRS and then
charges will be taken later on during this year. In other
news, Border Area Drug Conference continued today at
che Civic Center. Audience members -
(Fade).
(End of videotape).
Santiago subsequently sued K-Six and several of its employees for
defamation. The appellants appeal the trial ccurt's orders denying their
traditional and no-evidence motions for summary judgment.
JURISDICTION
Santiago contends that this court does not have jurisdiction to consider this
appeal because the appellants did not raise any constitutional claims or
defenses in their motions for summary judgment.
Section 51.014(6) of the Texas Civil Practice and Remedies Code
("Code") permits a person to appeal a denial of a motion for summary
judgment "that is based in whole or part upon a claim against or defense by
a member of the electronic or print media, acting in such capacity, or a
person whose communication appears in or is published by the electronic
or print media, arising under the free speech or free press clause of the First
Amendment to the United States Constitution, or Article 1, Section 8, of
the Texas Constitution, or Chapter 73 [of the Code]." Tex. Civ. Prac. &
REM. CobE ANN. § 51.104(6) (Vernon Supp. 2001). Section 73.004 of the
Code requires a party complaining oF a defamatory statement published or
uttered as part of a televions broadcast to prove that the broadcasting party
failed to exercise due care. TEx. Civ. Prac. & REM. CopDE ANN. § 73.004
(Vernon 1997). In addition, section 73.005 of the Code provides
a.
that truth is a defense to an action for libel. Tex. Civ. Prac. & REM. CopE
ANN. § 73.005 (Vernon 1997).
The appellants’ motions for summary judgment rely in part on the law
of libel contained in chapter 73 of the Code. Therefore, the entirety of the
trial court's orders are appealable pursuant to section 51 014(6). American
Broadcasting Companies, Inc. v. Gill, 6 S.W.3d 19, 26 (Tex.App.—San
Antonio 1999, pet. denied), overruled in part on other grounds, Turner v.
KTRK Television, Inc., 38 §.W3d 103 (Tex. 2000).
TIMELINESS OF RESPONSES AND SUMMARY
JUDGMENT EVIDENCE
The appellants contend that Santiago's responses to their motions for
summary judgment were untimely; therefore, this court should not consider
the responses. The summary judgment hearing was held on August 17,
2001. Santiago filed a response to the traditional motion for summary
judgment on August 13, 2001, a response to the no-evidence motion for
summary judgment on August 13, 2001, and a first amended reponse to the
no-evidence motion for summary judgment on August 17, 2001. Both of the
responses and the first amended response state that they are untimely filed.
A response to a motion for summary judgment, including opposing
summary judgment evidence, may be filed no later than the seventh day
before the date of the hearing "[e]xcept on leave of court." Tex. R. Civ. P.
166a(c); Neimes v. Ta, 985 S.W.2d 132, 139 (Tex. App.—San Antonio
1998, pet. dism'd by agr.). The record must contain an affirmative
indication that the trial court permitted the late filing of a response or the
response is a nullity. Neimes v. Ta, 985 S.W.2d at 139. If the record
contains nothing indicating that the trail court considered a late-filed
-8-
response,we presume the trail court did not consider it, and the response
will not be considered on appeal. /d. Permission to file a late response may
be reflected in a recital in the summary judgment. /d.
In this case, each of the orders denying appellants’ motions recite that
the trial court considered the response. Neither order recites that the trial
court considered the amended response. Therefore, this court will presume
that the trial court did not consider the amended response, and we will not
consider the amended response on appeal. See id.
The appellants note that the appendix to Santiago's brief contains
deposition exhibits that were not on file with the trial court. Although we
can consider the depositions contained in our clerk's record that were on
file at the time of the summary judgment hearing and were referenced in
Santiago's response, we cannot consider the exhibits to those depositions
which were not on file with the trial court and are not contained in our
clerk's record. See Tex. R. Civ. P. 166a(c); Till v. Thomas, 10 S.W.3d 730,
733-34 (Tex. App.—Houston [1st Dist.}] 1999, no pet.) (holding appellate
courts cannot consider documents attached to briefs that do not appear in
the appellate record).
STANDARD OF REVIEW
The appellants filed both a traditional motion for summary judgment
and a no evidence motion for summary judgment.
Under traditional summary judgment standards, a party moving for
summary judgment has the burden of establishing as a matter of law that
no genuine issue of material fact exists as to one or more essential elements
of the plaintiff's cause of action. Casso v. Brand, 776 S.W.2d 551, 556
(Tex. 1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546-
-9-
— (Tex. 1985). If the defendant meets this burden, the plaintiff must
then
raise a genuine issue of material fact on that element. Gonzalez v. City of
Harlingen, 814 S.W.2d 109, 112 (Tex. App.—Corpus Christi 1991, writ
denied). In reviewing a summary judgment, an appellate court accepts as
true all evidence supporting the non-movant. Nixon, 690 S.W.2d at 549. All
inferences are indulged in favor of the non-movant, and all doubts are
resolved in his favor. /d.
We apply the same legal sufficiency standard in reviewing a no-
evidence summary judgment as we apply in reviewing a directed verdict.
Moore v. K-Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio
1998, pet. denied). We look at the evidence in the light most favorable to
the respondent against whom the summary judgment was rendered,
disregarding all contrary evidence and inferences. Moore, 981 S.W2d at
269. A no-evidence summary judgment is improperly granted if the
respondent brings forth more than a scintilla of probative evidence to raise
a genuine issue of material fact. /d. Less than a scintilla of evidence exists
when the evidence is "so weak as to do no more than create a mere surmise
or suspicion" of a fact. Jd. More than a scintilla of evidence exists when the
evidence rises to a level that would enable reasonable and fair-minded
people to differ in their conclusions. /d.
NEGLIGENCE/ACTUAL MALICE
One ground on which the appellants moved for both a traditional and a
no-evidence summary judgment was the absence of fault.
The appellants contend that Santiago was public figure and, as such,
-10-
the applicable "fault" standard was actual malice. Alternatively, the
appellants argue that even if negligence was the applicable standard,
Santiago did not produce any evidence of negligence and the absence of
negligence was conclusively established.
For purposes of this appeal, we will assume, without deciding, that
Santiago is not a public figure and that the applicable "fault" standard is
negligence. Under this standard, Santiago is only entitled to recover if he
shows that the appellants were negligent with regard to the alleged falsity
of the broadcast. Foster v. Laredo Newspapers, Inc., 541 S.W,.2d 809, 819-
20 (Tex. 1976).
A. No Evidence
The appellant's no-evidence motion for summary judgment asserted,
“there is no evidence that the broadcasts or statements contained therein
were false; there ie no evidence that K-Six broadcast the statements with
actual malice; and there is no evidence that K-Six was negligent in the
broadcast or in the airing of the statements complained of." In response to
the appellants’ no-evidence motion for summary judgment on this issue,
Santiago was required to produce a scintilla of evidence to show that the
appellants has acted negligently. The only evidence produced in response
to the no evidence motion was a transcript of the broadcasts. Nothing
contained in the transcript evidences any negligence on the part of the
appellants.
Santiago states in his brief that "[a] transcript of Helmes deposition was
given to the court. And in oral argument, the negligence points set forth in
nts
section 4 of this brief were recited to the court. It's in the transcript of the
hearing." Our record does not contain a transcript of the hearing, and the
response to the no-evidence motion for summary judgment does not rely
on the transcript of Helmes's deposition to point out specific instances of
negligence.
The trial court erred in denying the no-evidence motion for summary
judgment because Santiago failed to produce a scintilla of evidence to
show that the appellants kad acted negligently.
A. Traditional
The appellants also moved for summary judgment on traditional
ground contending that as a matter of law no genuine issue of material fact
existed as to the negligence element of Santiago's claim.
Helmes affidavit, which was attached to the motion, detailed the steps
he took in investigating the story and checking several sources. In addition,
the appellants presented the affidavit of an expert, a journalism professor,
who reviewed the investigation undertaken in view of the applicable
standard of care and opined that the appellants did not act negligently.
Santiago counters that Helmes was a young reporter whose story was
not reviewed for defamatory content. Although Helmes' story was not
reviewed by the station manager, the producer told Helmes to verify his
facts after she was informed of the nature of the story. Santiago complains
that the appellants were negligent by not investigating further;' however,
Santiago offered no evidence to support his assertions regarding the facts
additional investigation would have revealed. Therefore, no evidence is
-12-
-ontained in our record that controverts the nature of the investigation
undertaken by Helmes or the expert's opinion that such investigation was
not negligent
lhe trial court erred in denying the traditional motion for summary
judgment because the appellants established as a matter of law that no
genuine issue of material fact existed as to the negligence element of
Santiago's claim.
CONCLUSION
The trial court's orders are reversed, and judgment is rendered that
Angel Santiago take nothing with regard to his claims against appellants.
Alama L. Lopez, Justice
PUBLISH
54.
CAUSE NO. 2000CVQ-001052-D2 rasp
§ WEBB COUNTY, TEXAS
MANUEL GUTIERREZ
; CLERK OF THE DIST. COURTS
ANGEL SANTIAGO, 5 IN THE DASTRICRE URE
Plaintiff, - \ aa
v.. § 111TH JUDICIAL D
§
ALFONSO HOLGUIN, etal.
Defendants §
ORDER DENYING SUMMARY JUDGMENT
On this 17th day of August, 2001, came to be heard the Motion for
Summary Judgment filed by Defendants K-Six Television, Inc., Devin
Helmes, Amanda Salinas, David Cortez, Ana E. Garcia, and Juan Zamora.
The Court, having considered the Motion, the Response, the summary
judgment evidence, and the argument of counsel, is of the opinion that the
Motion is without merit and should be, and is hereby, DENIED.
i, 1S, THEREFORE ORDERED, ADJUDGED, AND DECREED, that
Defendants K-Six Television, Inc., Devin Hel manda Salinas, David
Cortez, Ana E. Garcia, and Juan Zampr4 Motiogf for Summary Judgment is
DENIED;
SIGNED this 28th day of Aug
a ye ees - ~ . ’ = ~ Oe eee
CAUSE NO. 2000CVQ-001052-D2
§
§
ANGEL SANTIAGO, ; IN THE DISTRICT COURT
Plaintiff ; OF WEBB COUNTY TEXAS
vs. § 111TH JUDICIAL DISTRICT
§
ALFONSO HOLGUIN, et al. §
Defendants. §
ORDER DENYING "NO EVIDENCE" SUMMARY JUDGMENT
On this 17th day of August, 2001, came to be heard the "No-Evidence”
Motion for Summary Judgment filed by Defendants K-Six Television, Inc.,
Devin Helmes, Amanda Salinas, David Cortez, Ana E. Garcia, and Juan
Zamora. The Court, having considered the Motion, the Response, the
summary judgment evidence, and the argument of counsel, is of the
opinion that the Motion is without merit and should be, and is hereby,
DENIED.
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED,
that Defendants K-Six Television, Inc., Devin Helmes, Amanda Salinas,
ae
je
David Cortez, Ana E. Garcia, and J otion for
Summary Judgment is DENIED;
PK Of iE ~ - . W
cE COUNTY co -
\=
a
ae
REPORTER'S RECORD
VOLUME 1 OF 1 VOLUMES
TRIAL COURT CAUSE NO. 2000CVQ001052-D2
ANGEL SANTIAGO, JR.,
PLAINTIFF,
IN THE DISTRICT COURT
VS. WEBB COUNTY, TEXAS
ALFONSO HOLGUIN: JUAN RAMIREZ;
PAUL RAMOND BUITRON, III;
DEVIN HELMES, INDIVIDUALLY,
AND AS AGENT OF KVTV CHANNEL
13 LAREDO, OWNED BY K-SIX
TELEVISION, INC.; AMANDA
SALINAS, INDIVIDUALLY, AND
AS AGENT FOR KVTV-CHANNEL 13
LAREDO, OWNED BY K-SIX
TELEVISION, INC.; ANAHI G. GARCIA,
INDIVIDUALLY, AND AS NEWS
DIRECTOR OF KVTV-CHANNEL 13
7 LAREDO, OWNED BY K-SIX
TELEVISION, INC.; JUAN ZAMORA,
INDIVIDUALLY, AND AS STATION
MANAGER OF KVTV CHANNEL 13
LAREDO, OWNED BY K-SIX
TELEVISION, INC.; DAVID R. CORTEZ,
INDIVIDUALLY, AND AS AGENT FOR
KVTV CHANNEL 13 LAREDO,
OWNED BY K-SIX TELEVISION, INC.;
K-SIX TELEVISION, INC., A TEXAS
CORPORATION, DEFENDANTS
Nee Ne eee ee eee OO OO i ie a ll”
111TH JUDICIAL DISTRICT
MOTIONS FOR SUMMARY JUDGMENT
4 On the 17th day of August, 2001, the following proceedings came on to
:
y
a
=
s-
=,
_
y
¥,
be held in the above-titled and numbered cause before the Honorable Raul
Vasquez, Judge Presiding, held in Laredo, Webb County, Texas.
Proceedings reported by computerized stenotype machine.
APPEARANCES
MR. Edward P. Fahey, Jr.
SBOT NO. 24009400
ATTORNEY AT LAWS
1800 Victoria St., Suite 2
Laredo, Texas 78040
Telephone: (956) 753-0964
Attorney for Plaintiff
Mr. William E. Maxwell
SBOT NO. 24002550
Mr. Steve Schiwetz
SBOT NO. 17750900
LAW OFFICES OF JORGE C. RANGEL
615 Upper North Broadway, Suite 900
Corpus Christi, Texas 78403
Telephone: (361) 883-8500
Attorneys for Defendants K-Six Television
Devin Helmes, Ana E. Garcia, Amanda Salinas, Juan Zamora
and David Cortez, Jr.
Mr. Sergio "Keko" Martinez
SBOT NO. 13144550
ATTORNEY AT LAW
1420 San Bernardo
Laredo, Texas 78040
Telephone: (956) 726-1636
Attorney for Defendants Alfonso Holguin and Juan Ramirez
The following proceedings were had in open court, with all respective
counsel being present, and all respective parties being present before the
Court, to wit:
THE COURT: In the matter of Angel Santiago v. Alfonso Holguin,
2000C VQ01052.
Counsel, approach the Bench, please, quickly. I don't think I'm going to
have time to do it yet, until I get the jury back into the deliberations, so - I
just want to talk to you-all a little bit about this motion. And I want to
know who's here, also, on this case.
MR. SCHIWETZ: Steve Schiwetz and Bill Maxwell are here on behalf
of the media defendants, and it's our motion. We're the movants.
MR. FAHEY: Good morning, Your Honor. Ed Fahey on behalf of the
Plaintiff, Angel Santiago.
THE COURT: All right.
MR. MARTINEZ: Sergio Martinez, Your Honor, representing the
Defendant Attensa Holguin and Juan Ramirez.
THE COURT: But you don't have anything pending in this motion.
MR. MARTINEZ: I don't think we're in it. I don't know if Mr. Sandoval
is, Your Honor. I don't think he's got any interest ii: this.
THE COURT: This is strictly a motion for partial summary judgment
by the media defendants against the plaintiffs, so, you know--
MR. MARTINEZ: Yes, sir. We're out. We don't have any evidence or
anything to argue.
THE COURT: All right.. That's fine. We'll argue your motion for
summary judgment as soon as I get the jury back into deliberation form.
KK KE
THE COURT: All right. Mr. Fahey and Mr. Schiwetz and Mr. Maxwell,
on the matter of Angel Santiago v. Alfonso Holguin, et al. Your motion.
MR. MAXWELL: Yes, Your Honor. May | proceed?
THE COURT: Yes, sir. And let me just get the file up here. All right.
MR. MAXWELL: Your Honor, as you're aware, this is a defamation
case involving a media defendant. I'd like to give you a little bit of
background, for refresher purposes, as far as who the defendants are.
The movants, today, are K-Six Television, Inc., a corporation that
operates KVTV Channel 13.
THE COURT: Mr. Maxwell, let me assure you that I'm ready for your
motion, sir. And so let me dispense with the facts, and let's get on to the
law and let's get this done.
MR. MAXWELL: Very good. Essentially, Your Honor, the way that I
see this case, it boils down to whether or not there is evidence, in the
record of an omission of a material fact, or just disposition of facts that led
to a false impression being laid in this broadcast. Or, if there is not,
whether this was an accurate and, in that sense, if there was an omission of
material facts, it might fall under the Supreme Court's holding in the
Turner case, which is a recent case.
We contend that there is no evidence of such an omission or such an
arrangement of facts to leave a false impression with the viewer. What we
contend is this was an accurate, substantially true account of allegations
that were made against the Plaintiff as a former president of a local
nonprofit organization.
In that sense, we feel that this case falls squarely within the holding of
the KTRK v. Felder case, which is a Houston Court of Appeals decision in
1997, which states that when a media defendant is reporting on allegations
made against a public figure or private figure, public official, as long as --
and reports that there are allegations being made and allegations are under
investigation, as long as the allegations, themselves, were made, and as
long as the allegations are under investigation, the broadcast is
substantially true.
THE COURT: When you say they were under investigation,
investigation by whom?
MR. MAXWELL: By the three coaches. The three coaches who were -
- one of them --
THE COURT: So you're telling me that if somebody calls you and
says, You know what? I thank Judge Vasquez is taking money and, you
know, there's no way that this thing should have happened, and you're
going to run the story without verifying whether I'm taking money or not?
MR. MAXWELL: Well, Your Honor, what our reporter had was,
initially, he was --
THE COURT: Three people called him, or three coaches told him that
this gentleman was taking -- was supposedly misappropriating money.
MR MAXWELL: Correct. And they were -- I'm sorry.
THE COURT: And, so, he starts the story on the basis of these
particular allegations Am I correct?
MR. MAXWELL: Well, there was a prior source that had approached
Mr. Cortez, the assignments editor for KVTV. And Mr. Cortez had dealt
with this source in the past, and he was the one that initially informed him.
THE COURT: That's correct. Mr. Geisler. I'm familiar with him.
MR. MAXWELL: Correct. So this was what Mr. Cortez considered to
be a reliable source. He sent Mr. Helmes out to interview these three
coaches.
I think the evidence shows that, I believe, Mr. Holguin was a coach at
this club for 13 years, had been very involved in the affairs. And they were
making allegations against the former president of the club; allegations
that. essentially, revolved around the fact that there were expense reports
totaling over $15,000, when they understood that club was closed for most
of the period of the year.
THE COURT: Well, I guess my question was directly in relation to
your idea of “investigation,” because you have three people that were part
of this particular club that made these allegations, pursuant to your source,
or whatever, but what investigation was going? I mean, they were
questioning; if I can remember their statements, they were questioning
where these funds were. But what investigation was being done, is my
question to you.
MR MAXWELL: Well, they informed our reporter that they had
notified the IRS.
THE COURT: That's not an investigatory type of complaint.
MR. MAXWELL: Well, the coaches, themselves, were in the process
of investigating. They had gathered documents. They were attempting to
determine what happened to these funds. And that was what the station was
reporting on. The station was reporting on allegations made by --
THE COURT: Okay. Well, I guess -- and I keep on going back to my
own idea of what you're doing, okay, because -- by the way, I was a
journalist major, and so I know a little bit about the factual basis for writing
stories, bat that's neither here nor there.
The question to you is, all right, so three people are, all of a sudden,
doing something in regards to the court system and they find out that there
is something missing from the courthouse and they, for whatever reasons,
think it's me. And they go out and tell you-all that they're investigating. Do
you think that, just on that basis, you're going to go out and put it on the
news that Judge Vasquez is, perhaps, stealing something, or
misappropriating something, because three people are looking into it?
MR. MAXWELL: Well, Your Honor, respectfully, as long as it is
reported as allegations are being made about a public official, a private
official, what have you -- I mean, the Felder case sets it out very clearly.
You know, quoting it, it says, /f the law were otherwise, the media would
be subject to potential liability every time that they reported an
investigation of alleged misconduct or wrongdoing by a private person,
public official, or public figure.
They would never be reported by the media for fear that they would,
ultimately -- the allegations would, ultimately, be untrue and would subject
media defendants to defamation and liability on every score.
THE COURT: Well, but you're going on the defensive issue of
substantially true in regards to the story and regards to reporting., I mean,
your affirmative defense of this issue, you know, perhaps, may come to
being in the ultimate trial of the case, but why would I want to grant it,
summarily?
MR. MAXWELL: Well, again, the issue, Your Honor, is we don't have
a dispute about what the gist of these --
THE COURT: I grant you that. The story is in its full context and
video, and there's no question about that. I think the question is whether or
not the substantial truth of it imputes any type of wrongdoing by Mr.
Santiago without any basis for it, or with malice in some form. I guess, in
this case, we don't really need malice. I don't agree with you that he's a
limited public figure. I'll tell you that now. But, you know, in any case, let's
go on to your argument.
MR MAXWELL: Well, and just for the purposes of the record, I want
to make sure -- we have a traditional motion for summary judgment before
the court --
THE COURT: And a no-evidence motion.
MR MAXWELL: --as well as a no-evidence. And we have challenged
that -- in our no-evidence motion, we have challenged that element of the
Plaintiff's burden of proof, which is the burden of proving falsity of
statements --
THE COURT: And we'll go through them --
MR. MAXWELL: -- or falsity of the broadcast.
THE COURT: All right.
MR. MAXWELL: But, again, it is our cnsmeatiion and the station's
contention that the Felder case is very close to these facts. The Felder case
involved a TV news reporter reporting on allegation that a school teacher
had been verbally abusing and intimidating students.
The reporter goes out and interviews the parents and they say, Yes, you
know, these are our complaints against this teacher; tried to get interviews
with the -- with the teacher herself and could not; tried to get interviews
and spoke briefly with the principal who said, Yes, in fact, these allegations
are under investigation,. We're looking into this matter. They go back and
they air.the story that day. And, again, the court held that, you know, as
long as we're talking about allegations of wrongdoing.
The station was not accusing Mr. Santiago of anything. They were
reporting on allegations made by fairly high-ranking officials within this
local nonprofit organization, and reporting this matter of general interest;
that there were questions being raised about his management and
accounting for the club's finances, and they were reported as such. They
were reported as allegations and reported as fact that these coaches were
looking into these questions. And that's all it was.
THE COURT: All right. Mr. Schiwetz.
MR. SCHIWETZ: The only thing I would add to that, Your Honor, is
that you used the analogy of what if somebody comes up and says, The
court is mismanaging funds, something like that. The analogy appropriate
in this case, I think, would be what if it's people who are associated and
work with this court, regularly? That's the distinction here,
The people that were reporting their allegation on would be like if your
clerk ond your bailiff were the ones that were doing the reporting. These
were people that were intimately tied up with the boxing club. You know,
We're looking into this. We think something is amiss here. We talked to the
IRS about it. We talked to United Way, or trying to talk to the United Way,
or things like that.
And that's where -- I think the analogy is a good one, but the
appropriate comparison is with people who are real close to the person
who's being accused. It's not just, you know, some citizens group, or
something like that, that can walk in off the street saying, Hey, there's
money missing, and we think he did it.
THE COURT: All right, sir. Mr. Fahey.
MR. FAHEY: Your Honor, for the K-Six Television to succeed on this
motion for summary judgment, they must prove every element of the
affirmative defense of substantial truth. In their motion, they have
excerpted piecemeal portions of the broadcast and allege that each little
piecemeal portion is a true, literally true or substantially true statement.
That method has been frowned upon by the Supreme Court of Texas in the
case of KTRK vs. Turner.
That case said you have to look at the entire broadcast as a whole and
you have to look at the embedded meaning, and they must prove the
substantial truth of the embedded meaning in the broadcast.
So if they're saying, We're KVTV and here's a coach and he's saying
that Santiago stole money, well, the embedded meaning there and the part
that's false is that Santiago stole money. And that is the impression that the
viewers, who are people of reasonable and normal intelligence, are going
to be left with.
_ That is their burden today, to prove the substantial truth, none of what
Helmes said, but they have to prove the substantial truth that Santiago stole
$15,000. They have not even alleged that today, much less, taken one step
in the direction of proving that.
THE COURT: All right.
MR. FAHEY: The other question that they brought up about the case of
the other KTRK -- well, I don't know what it was, but the one in Houston,
is that allegations -- an were just reporting allegations. The question is,
allegations by whom, and by what virtue do these three coaches have any
investigatory power, whatsoever?
Is it a police investigation? Is it a governmental investigation? I would
not try to use the precedent off of that case. I would rely on Turner to say
that this whole broadcast has to be viewed as one big whole, and the
embedded meaning is that he's a thief yet.
THE COURT: All right, sir. In regards to the no-evidence summary
judgment that they have filed, sir, what is your response to that?
MR. FAHEY: The no-evidence motion claims that there is no evidence
to show any of our alleged elements of our pleading. One of -- the first
element to plead in the defamation claim is that there was a false statement
made about the Plaintiff. We are alleging that the impression that he's a
thief is a false statement.
Now , they say there's no evidence of that. I presented to he court a
taped video of the broadcast which was received from KTV Television in a
request for production. And I think anyone who views that video will see
that there is more than a scintilla of evidence that a reasonable intelligent
person could leave with the impression that, Hey, this guy really did it.
So that is my attempt to defeat their no-evidence motion, because there
is a scintilla of evidence and it is inside that video.
MR. MAXWELL: Well, Your Honor, he has accurately portrayed what
he contends to be the implication of this broadcast, but he has not proven it
to be false. I mean, I -- you know, I don't know whether Mr. Santiago is a
thief or not, but there is no evidence before the court where he has denied
doing it. There's not an affidavit. I haven't been favored with a cite to the
record where he denies any of the allegations that were specifically made
against him in the pleadings.
MR. FAHEY: That's not our burden here today. The burden is on the
movant.
THE COURT: I'll allow your response when I tell you, sir.
MR. MAXWELL: Respectfully, Your Honor, in a no-evidence context,
a no-evidence motion for summary judgment, we have pointed out to the
nonmovant the element of which there is no evidence in the record on
which he will bear the burden of proof at trial. -
He will bear the burden of proof in proving that false defamatory
statements were made about him at trial. He has to come forward with
more than a scintilla of evidence that false statements were made about
him.
And, now, I agree, in a traditional sense, in the traditional motion for
summary judgment, which we're also here on, it is our burden to negate the
falsity by showing that the statements were substantially true, which we
feel we have done. But as far as the no-evidence goes, it's his burden to
come forward with evidence sufficient to take the case to a jury on the
particular elements of his defamation claim.
THE COURT: All right. Anything else, Mr. Schiwetz?
MR SCHIWETZ: I do think it's interesting that he's sitting there, as
part of his argument both in his brief and his response, and in his argument
here, saying, They haven't even alleged that he's a thief. I mean, that's kind
of the point. |
THE COURT: Well, he hasn't denied he's a thief either.
MR. SCHIWETZ: Well, that's true, too. You know, I thought it was
kind of curious that he's saying that our story is saying that he's a thief, or
our story is saying is that some people are alleging that the-e's something
peculiar going on over there, and then he complain because we haven't
specifically alleged that he's a thief. That's right. We haven't.
THE COURT: All right. Guys I will tell you that I have a real hard time
with your motion for summary judgment and your no-evidence summary
judgment. I really -- your motion for summary judgment is denied. Your
no-evidence motion for summary judgment, I've got problems because of
what you've done in regards to the response. Once a no-evidence motion
for summary judgment is filed and is shown to you, you have to come - -
the burden shifts to you, sir, and you've only given me the videotape. Quite
frankly, I haven't seen it. I actually just read a transcript of it.
So what I'm going to do is go look at it and look at the voice inflection
and all that kind of stuff from the videotape. It sounds like you-all are -- the
story is implying, rather, not you-all, but the story is implying that Mr.
Santiago is a thief, in some form or another, and it leaves little to be
desired. An I thought the reporter should have gone beyond the idea of just
talking to someone that is making allegations, and then calling the
responding party and not getting any comment, but not investigating any
further.
You know, unfortunately for you-all, I know this boxing club. I'm not
involved with it, Two judges are involved with it. I have never had to worry
about that, so I'm glad that I'm not in it. But, you know, it was easily
verifiable stuff that could have been, you know, information gotten.
As far as reporting is concerned, I think the most important thing to do
is to verify your source and verify your story. And the fact that you may
have had some information is kind of an unusual twist. I'm going to read
your case again regarding that teacher and see how I fit it, but, quite
frankly, at this point in time, I am not looking at granting your motion for
summary judgment.
MR. SCHIWETZ: One matter, Your Honor.
THE COURT: Yes, sir. |
MR. SCHIWETZ: When we appeared before you before on the motion
for continuance on this matter regarding the trial, we pointed out to the
court that we're set for trial in September and that, depending on what the
court's rulings were on this, either side was likely to conduct an
interlocutory appeal. I wanted to remind the court of that, that the court
said at that time that we would not be bound to that September trial date.
We would be allowed time to --
THE COURT: September 10th?
MR. SCHIWETZ: I think that's right.
THE COURT: Well, don't worry. I'm not going to be here on the 10th,
so I don't think you would have to worry about that trial date.
All right. Well, let's talk about that, then. When do you want to do this
trial, assuming that you go through ail the particulars?
MR. MAXWELL: I would suspect -- I don't know what the docket is
like on the Fourth Court, but I would suspect we're looking at 10, 12
months.
THE COURT: Oh, no. They don't take that long anymore. Not for these
type of things. Not on interlocutory stuff. They dish it out pretty good. But
you got to make sure you file it.
All right. Well, I'll do this. Let me leave the September docket on for
pretrial. Let me see what I'm going to do with you-all on pretrial. Maybe I
can make you work enough to where we can start talking about settling this
case, and see if we can get some of these defendants in or out and find out
who's going to wind up.
Your main cause of action, I will tell you, is against the other
defendants. This is still questionable. The fact that I may not have granted
summary judgment today on -- doesn't mean that, on the trial, I would not
grant an instructed or directed verdict, you know. I'll caution you as to that.
I mean, I'm going to go back and read a couple of these cases again, but,
you know, you really should have responded more affirmatively on the no
evidence motion for summary judgment.
Anything else?
MR. MAXWELL: No, Your Honor.
THE COURT: All right. We'll see you here on pretrial, September 6th, I
think. Is that correct?
MR. FAHEY: Are the motions denied?
THE COURT: The motion for summary judgment is denied sir. The
motion for no-evidence summary judgment I'm taking under advisement.
anything else?
MR. FAHEY: That' all, Your Honor. May we be excused?
MR. MAXWELL: Your Honor, will we have a ruling, do you think, by
the time of the pretrial conference?
THE COURT: Yes, sir. For sure. Yeah. What I need to use -- did you
submit an order on the motion for summary judg:nent?
MR. MAXWELL: We did.
THE COURT: I'll sign that one.
MR. MAXWELL: Thank you, Your Honor.
THE COURT: Thank you, sir.
MR. SCHIWETZ: May we be excused?
THE COURT: Yes, sir.
** KKK
STATE OF TEXAS
COUNTY OF WEBB
I, Debra Alvarado Cameron, Official Court Reporter in and for the
111th District Court of Webb, State of Texas, do hereby certify that the
above and foregoing contains a true and correct transcription of all portions
of evidence and other proceedings requested in writing by counsel for the
parties to be included in this volume of the Reporter's Record in the above-
styled and numbered cause, all of which occurred in open court or in
chambers and were reported by me.
I further certify that this Reporter's Record of the proceedings truly and
correctly reflects the exhibits, if any, offered by the respective parties.
I further certify that the total cost for the preparation of this Reporter's
Record is $94.00 and was paid/will be paid by Mr. Edward P. Fahey, Jr.
WITNESS MY OFFICIAL HAND this the 8th day of April, 2002.
Debra Alvarado Cameron, CSR, RPR
Texas CSR 5014
Official Court Reporter
111th District Court
Webb County, Texas
1110 Victoria, Suite 301
Laredo, Texas 78040
Telephone: (956) 721-2674
Expiration: 12/31/02
No. 64-01-00592-CV
K-SIX TELEVISION, INC., et al.,
Appellants,
v.
Angel SANTIAGO,
Appellee.
APPELLEE'S MOTION FOR REHEARING
Appellee, Angel Santiago, submits this motion for rehearing in
response to the opinion issued by the Court on February 13, 2002, and
requests that the Court consider the following points:
Point 1: The Court of Appeals erred in not considering Helmes'
handwritten notes.
Point 2: The Court of Appeal erred in assessing costs against the
appellee.
Argument and Authorities
Point 1. Helmes' Handwritten Notes Must Be Considered By The Court
This Court has held that it may not consider Devin Helmes' notes
because they were not on file with the trial court, and not part of the record.
However, this Court is to consider the notes, because they are competent
summary judgment evidence and part of the summary judgment record.
This conclusion is dictated by the Texas Supreme Court holding in Morgan
v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000). Morgan sued Anthony for
intentional infliction of emotional distress. /d. at 928. The trial court
Se eae Le Oe en pee oe ee Fee ree 4 hl oe *
——
granted Anthony's motion for summary judgment on the basis that there
was no evidence he acted intentionally. /d. at 929. The Appeals Court for
the Ninth District affirmed. /d. In finding legally sufficient evidence to
raise a fact issue about the disputed element of Morgan's claim, the
Supreme Court considered answers to Morgan's own interrogatory, in
conjunction with excerpts from her deposition. /d. The interrogatory had
been challenged as not being competent summary judgment proof. /d.
However, the Court noted, "Morgan was questioned in one of her
depositions about her seven-page interrogatory answer that described in
detail the events that are the basis for this suit, and the interrogatory answer
was attached to her deposition as an exhibit." /d. The Court held that the
excerpts of Morgan's deposition relating to the interrogatory, and the
interrogatory itself, were "part of the ummary judgment record.," /d. The
Morgan Court's reasoning was based on three elements: 1) "The
interrogatory answer became competent summary judgment evidence when
it became a deposition exhibit;" 2) "Morgan affirmed in her deposition that
it was correct;" and 3) "she was subject to cross-examination about the
assertions in her interrogatory answer." /d. In Santiago's case, if you
substitute the words, "Helmes' handwritten notes" for the word
"interrogatory," in Morgan, you have the same set of facts.
Helmes' handwritten notes were obtained pursuant to Plaintiff's First
Request for Production, served on defendants on December 11, 2000.
However, the notes were not actually produced by K-Six Television, until
March 9, 2001, the day of Helmes' deposition, and 60 days after they were
due. Depo Devin Helmes 27 :10 to 28:17. At the deposition, Helmes
confirmed that the notes were correct. Depo Devin He:mes 28:7 to 28:11.
And, exactly as in Morgan, Helmes was cross-examined about the content
of his notes----for 43 consecutive pages of his deposiiion testimony. Depo
Devin Helmes 27:10 to 70:16. At the end of the deposition, Helmes'
handwritten nctes, like the interrogatory in Morgan, were attached to the
deposition as an exhibit. See Appendix "A" Helmes swore the contents of
his deposition were true and correct on July 3, 2001; See Appendix "B."
The court reporter's certifications are attached in Appendix "C." Thee facts
square perfectly with Morgan; therefore, this Court must consider the notes
of Helmes as "competent summary judgment evidence." Morgan, 27
SW.3d at 929.
The evidence, once considered by this Court under a de novo review,
American Broadcasting Companies v. Gill, 6 S.W.3d 19, 27 (Tex.
App.—San Antonio 1999 pet, denied), overruled in part on other grounds,
Turner v. KTRK Television, Inc. 38 S.W.3d 103 (Tex. 2000), requires
affirmation of the trial court's judgment. It is dispositive of K-Six' appeal. It
dictates a remand for trial on the merits.
Whether Helmes' notes were considered by the trial court in ruling on
summary judgment is irrelevant to this appeal, because "[t]he appellate
presumption is that the omitted summary judgment evidence supports the
trial _— judgement." Cantu v. Western Fire and Casualty Inc. Co., 723
S.W.2d 668 (Tex. 1987); DeSantis v. Wackenhut Corp., 793 S.W. 2d 670,
689 (Tex. 1990).
Reviewed in the light most favorable to Santiago, the notes reveal that:
3
the Treasurer of the LABC believes Angel Santiago is an honest man.
See Appellee's Brief, Section B.5. This evidence raises a fact issue as to the
truth of falsity of the statements made in K-Six' broadcasts. You cannot be
an honest man and steal $15,000 at the same time.
This evidence, when viewed in the light most favorable to Santiago,
reveals that: Helmes knew, before the broadcast, that a knowledgeable, un--
biased, and reliable informant believed Santiago to be an honest man.
Helmes' fault lies in what he did with the information. He ignored it. He
didn't publish it. He didn't try to find out more about why the Treasurer of
LABC considered Santiago an honest man. According to the authorities
cited in Appellee's Brief, Section B.5.(a), supra, Helmes actions, (or in-
actions) constitute "actual malice." Alternatively, Helmes' actions show he
was negligent about discovering the truth. With this understanding, and
with every inference indulged in favor of Santiago, a fact inoue has been
raised about the element of "fault."
There are three other elements of Santiago's cause of action. And there
is sufficient evidence, in the record, on each remaining element, to send his
case back to the trial court. One, "the defendant published a statement,."
WFAA v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). This fact is un-
controverted, and evidenced by the videotape of the broadcast and the
transcript of the broadcast. Two, "the statement concerned the plaintiff." /d.
The broadcast referred to Angel Santiago by name. Evidence for this is
found in the transcript of the broadcast. Element two is also
uncontroverted. Three, "the statement was defamatory to the plaintiff." /d.
The statements made in the broadcast, "when viewed as a whole," Turner v
KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000), are defamatory on
their face. That is because they falsely charge Santiago with a crime. Such
statements are libel per se. Christy v. Stauffer Pub'g, 437 S.W.2d 814, 815
(Tex. 1969). Alternatively. Santiago asks this Court to determine that "the
statements are reasonably capable of a defamatory meaning." Musser v.
Smith Protective Servs., 723 S.W.2d 653, 654 & n.1 (Tex. 1987); Carr v.
Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
In sum, there is "some evidence" in the record for each element of
Santiago's claim against K-Six. The newly considered evidence as to
"fault" and "falsity" is material because it relates to the substantive law, i.e.
the elements of defamation. Moore v. K Mart Corp., 981 S.W.2d 266, 269
(Tex. App.—San Antonio 1998, no writ). It is "more than a scintilla,”
because reasonable persons could differ in their conclusions as to whether
Santiago is an honest man or a thief. /d. And it is genuine because a
reasonable jury, if given the evidence, could find that they believe the
Treasurer, instead of the defamers. /d.
Summary judgment, under TRCP 166a or 166a(i), is therefore
improper in this case.
Point 2. The Court Erred in Assessing Costs Against Santiago.
Section 51.015 »f the Texas Civil Practice and Remedies Code
provides:
In the case of an appeal brought pursuant to Section
51.014(6), if the order appealed from is affirmed, the
court of appeals shall order the appellant to pay all costs
and reasonable attorney fees of the appeal; otherwise,
5
each party shall be liable for and taxed its own costs of
the appeal.
By the Court's judgment, dated February 13, 2002, the order appealed from
was reversed. Therefore, the relevant part of the statute begins with the
word, "otherwise." And each party is liable for their own costs. Santiago
therefore cannot be liable for K-Six' costs, as was erroneously recited in
the judgment.
For the reasons stated in this brief, appellee asks the Court to grant this
motion for rehearing, withdrawn its opinion, affirm the trial court's
judgment, and remand the case for a trial on the merits.
Respectively submitted,
Edward P. Fahey, Jr.
State Bar No. 24009400
1800 Victoria, Suite 2
Laredo, Texas 78040
Tel. (956) 753-0964
Fax. (956) 723-1606
ATTORNEY FOR APPELLEE,
ANGEL SANTIAGO
CERTIFICATE OF SERVICE
I certify that on February 18, 2002, I faxed a copy of Appellee's Motion
for Rehearing to William E. Maxwell, counsel of record for K-Six
Television, Inc. et al., and whose address a fax number are shown below.
cbt ph /V)
Edward P. Fahey, Jr.
William E. Maxwell
The Rangel Law Firm, P.C.
615 Upper N. Broadway
Suite 2020
Corpus Christi, Texas 78477
Fax: (361) 883-261 1
Tel: (361) 883-8500
CERTIFICATE OF CONFERENCE
I certify that on February 18, 2002, I have conferred with William E.
Maxwell, of The Rangel Law Firm, P.C., and have attempted in good faith
to reach an agreement about Appellee's Motion for Rehearing. We have
been unable to reach an agreement, because Mr. Maxwell would oppose it.
Edward P. Fahey, Jr.
CORRECTED JUDGMENT
NO. 04-01-00592-CV
K-SIX TELEVISION, INC., et al.,
Appellants
¥.
Angel SANTIAGO,
Appellee
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2000C VQ-001052-D2
Honorable Raul Vasquez, Judge Presiding
BEFORE CHIEF JUSTICE HARDBERGER, JUSTICE LOPEZ,
AND JUSTICE GREEN
This court's judgment of February 13, 2002, is withdrawn. In
accordance with this court's opinion of February 13, 2002, the trial court's
orders are REVERSED, and judgment is RENDERED that appellee, Angel
Santiago, take nothing with regard to his claims against appellants. It is
ORDERED that costs of the appeal are taxed against the parties who have
incurred them. See Tex. Fam. Code Ann. § 51.015 (Vernon 1997).
SIGNED March 1, 2002.
Alma L. Lopez, Justice
OP eRe ina IRR ee a Es ee
TRANSCRIPTION OF AUDIO TAPE
LABELED:
73rd LEG SENATE STATE AFFAIRS COMMITTEE
2 SB 76
| 2-17-93 9:00A.M.
TAPE | OF |
MALE VOICE: The State Affairs Committee will come to
order. The Clerk will call the roll.
| FEMALE VOICE: Senator Harris.
MALE VOICE: Here.
FEMALE VOICE: Senator Rossen.
FEMALE VOICE: Here
FEMALE VOICE: Senator Carricker (phonetical spelling).
(No response audible.)
FEMALE VOICE: Senator Henderson.
(No response audible.)
FEMALE VOICE: Senator Leedham.
MALE VOICE: Here.
FEMALE VOICE: Senator Lucio.
MALE VOICE: Here.
FEMALE VOICE: Senator Luna.
MALE VOICE: I can say Aye.
FEMALE VOICE: Senator Nelson.
FEMALE VOICE: Here.
FEMALE VOICE: Senator Patterson.
MALE VOICE: Yes. Here.
FEMALE VOICE: Senator Shelley.
(No response audible.)
FEMALE VOICE: Senator Sibley.
MALE VOICE: Here. |
FEMALE VOICE: Senator West.
(No response audible.)
FEMALE VOICE: Senator Whitmeyer.
MALE VOICE: Here.
THE CHAIR: A quorum is present. The Chair will lay out -- will '
deviate from the order just briefly. Tne Chair will lay out Senate Bill 178
and recognize Senator Parker.
SENATOR PARKER: Mr. Chairman, in 1979, we - we authorized the --
MALE VOICE: Here.
SENATOR PARKER: -- the investigators for the State Board of
Pharmacy and - and later a Racing Commission to be Certified Peace
Officers. Because the retirement legislation for Certified Peace Officers
was also passed in 1979, these are the only categories of peace officers that
work for the State that aren't eligible to participate in the retirement
benefits for Certified Peace Officers. And this simply cleans that up and
allows them to be in the program. I have no witnesses. There is no
occurrence filed in behalf or against the Bill.
THE CHAIR: Anybody have any questions of Senator Parker? ,
SENATOR LEEDHAM: Mr. Chairman, just one.
THE CHAIR: Senator Leedham. :
SENATOR LEEDHAM: Senator Parker, I notice in - I'm sure you have
a concern not now but eventually possibly that the lee course of, is really,
ee
has no secure adequate funding. It - It comes from a portion of the -
: One of them.
SENATOR LEEDHAM: - - packs that comes in and isn't really related
to the beneficiary. So, although it's well funded now, eventually it'd be
desirable to these folks and yourself and all will realize that it needs to
begin to get a reliable source of funding depending upon the participates,
or you're half-way where I'm talking, because it - this -
: AS soon as we pass your income tax, so it's
gonna - we're gonna one for it.
(laughter)
SENATOR LEEDHAM: You have to relate to funny even then to the
individual paying it in, but the degree to which - - in the long run as we
hire these people more for it, I think you need to be aware that sooner or
later that the funding source has to be defined by the participants rather
than just - -
SENATOR PARKER: I'm just trying to fix one problem at a time,
Senator Leedham.
SENATOR LEEDHAM: I understand.
THE CHAIR: Any other questions for Senator Parker?
SENATOR PARKER: That's our problem.
THE CHAIR: If not, Senator Lucio more that Senate Bill 178 be
reported back to the Senate with the recommendation to be passed and be
. Clerk, call the roll.
CLERK: Senator Harris.
SENATOR HARRIS: Aye.
CLERK: Senator Ost (phonetical spelling).
SENATOR _ : Uh.
CLERK: Senator Carricker (phonetical spelling).
SENATOR CARRICKER: Aye.
CLERK: Senator Henderson.
SENATOR HENDERSON: (not understandable)
: You sure we'll - -
CLERK: Senator Leedham.
SENATOR LEEDHAM: Aye.
: - - re-elect him, though?
CLERK: Senator Lucio.
SENATOR LUCIO: Aye. (Laughing) I'm just kidding.
CLERK: Senator Luna.
(No audible response.)
CLERK: Senator Nelson.
SENATOR NELSON: Aye.
CLERK: Senator Patterson.
SENATOR PATTERSON: Aye.
CLERK: Senator Shelly.
(No audible response.)
CLERK: Senator Sibley.
SENATOR SIBLEY: Aye.
CLERK: Senator West.
(No audible response.)
THE CHAIR: Aren't they eight AYEs and Nos. The Bill will be
reported in favor.
SENATOR PARKER: I thank you all for completing my Law
Enforcement Program for the session.
[LOUD LAUGHTER]
: Really.
THE CHAIR: Now, the Chair's gonna lay out Senate Bill 76 and
recognize Senator Turner.
SENATOR TURNER: Thank you, Mr. Chairman. Senate Bill 76 is a
Bill that allows an interlocutory appeal in a case involving suit of libel or
slander against the media. It's designed really not to change the substantive
law in any way but simply designed to hold down the cost of litigation
which I think we all are concerned about these days.
Under - Under current law, you can have an Interlocutory appeal. That
is, appeal before the final trial in five different situations which I won't go
into. But all this bill's gonna do is add a sixth circumstance under which
you can have an interlocutory appeal.
A lot of times in these cases involving freedom of the press, you find
that there are often times when the case has to go through the full trial, it - -
sometimes plaintiff will prevail but gets on appeal turns out that the upper
courts, higher courts will rule that no, that freedom of press protected the
media and reversed the judgment.
There's not a lot of cases on these kinds of issues, but there are enough
to make it troublesome to have to go through the full cost of an appeal just
to show when you get to the higher court that freedom of press protected
the media.
So this is gonna allow an appeal from an adverse ruling on a summary
judgment at the trial court level, allow a direct appeal to the Court of
Appeals, thus saving the parties the expense of going through a full trial
only to find out later that the District Judge should have granted the Motion
for Summary Judgment.
As I say, this Bill doesn't change the substantive law in this area in any
way, but it certainly cuts down the procedural delays and allows the parties
to get the matter settled without spending an undue amount on attorneys’
fees.
We have four witnesses who are here and available to testify and
several who signed up in favor of the Bill. Those who signed up in favor of
the Bill may want to testify.
Lyndol Williams who is Executive Vice President of Texas Press
Association if here. Ann Arnold with the Texas Association of
Broadcasters. Joe Jerkins who is the past President of Texas Association of
Broadcasters, and Barbra Tante who is Director of Services with the Texas
Daily Newspaper Association. Have all signed up in favor of the Bill.
We have here today to - to offer testimony Mr. Robert Deckert, who is
Chairman of the Board and Chief Executive Order - Officer of the Belo
Corporation, which as you know owns the Dallas Morning News ad WFAA
Television among others.
We have Ken Long, who is up here from my District and Long Round
Rock, who is the publisher of the Round Rock Leader, who will offer some
brief testimony.
And by way of resource witnesses, if you have any question, we have
Dean Udhoff from the UT Law School and Kirte Kenser, who is a First
Amendment lawyer and practices extensively in that area.
I have two Committee Amendments that I'm gonna lay out before you
that Senator Rosson has agreed to offer for me. Actually, I - Actually I
understand that they're all - - it's all combined with one Amendment.
: Senator Turner, we have two different here.
: Yes.
SENATOR TURNER: Okay.
: And if I - if - if you can reasonably put - -
(FEMALE VOICE) : Six hundred one...
SENATOR TURNER: If you wanted to have - -
: (not understandable)
SENATOR TURNER: - - both items on it - -
(MALE VOICE) : That'd be just one Amendment -
SENATOR TURNER: Okay.
(MALE VOICE) : For floor debate - -
SENATOR TURNER: All right.
(MALE VOICE) : -- would make it two.
SENATOR TURNER: All right. We'll - - I understand we have both
those changes laid out in one Amendment. Basically what the Amendment
is going to do is to clear up the language of the proposal to make it clear
that this only applies to a claim or defense in a lawsuit against a member of
the electronic or print media.
The earlier language wasn't quite as clear, quite as narrow. This
language was worked out in negotiations between lawyers who represent
plaintiffs and those who represent defendants, and the second addition
that's on the same Amendment that Senator Rosson will offer simply states
that in the case of an appeal brought under this provision, that each party
will be liable and taxed for its own cost of appeal.
Thus, whichever party wants to - wants to appeal summary judgment,
then they both - either of them, of course, have to carry their own costs of
that on appeal.
Mr. Chairman, if you would, I'd like to have you recognize our first
witness, Mr. Deckert.
SENATOR CARRICKER: Mr. Chairman, - -
THE CHAIR: Uh, yes. The last name?
SENATOR CARRICKER: - - could I ask Senator Turner a question
before it - -
THE CHAIR: Surely.
SENATOR CARRICKER: Senator Turner, in this - This Amendment
brings up a question that had already risen in my mind looking at the
original Bill, and that is, why the claim arising only from broadcast or
written publication, and then the Amendment clarifies the intent would
only apply to the electronic or print media? Why shouldn't an interlocutory
appeal not be available to someone who's not in the electronic or print
media but who is defending a - a - or prosecuting a - a libel or a slander
claim?
SENATOR TURNER: Well, what we ran into in the objections that
were - were levied against the earlier language by plaintiffs’ bar was that
basically we had drafted language that in their judgment would have
included a whole lot of things that we weren't really aiming at.
For example, you could say and argue that an insurance policy is a
written publication, and we didn't see any reason to have anybody ever
claim that because of some language an insurance policy ought to be able
to have an interlocutory appeal but thought there was some libel slander
involved.
If somebody writes a letter and sends it to somebody else, you could
argue that that's a written publication, and this Bill clearly wouldn't entitle
to cover those kinds of situations. So, to - to vary - -
SENATOR CARRICKER: Well, I can understand that in the case of an
insurance company - -
SENATOR TURNER: Right.
SENATOR CARRICKER: - - an insurance policy. What I can't
understand is - is in the case of a letter that I write to you, for example, and
- and you - - there may arise from that letter a claim of - a claim of libel.
Uh, I'm not sure why the court procedure should be different for me as an
individual as they are for Dallas Morning News or - -
SENATOR TURNER: I raised that same question, and Mr. Kinser, who
is here as a resource witness who practices extensively in that area, I'd like
for him to address that question, because I'll - I'll raise the very same
question with him.
Uh,, obviously, we all know that the media, the printed media - print
media - the electronic media, have a very special place, a very special area
of protection on the Constitution, and obviously that's what we were trying
to - to aim at here.
Any person or any person who is a member of - of that electronic or
print media is covered and is allowed to have this interlocutory appeal, and
- and by member under the new language we will offer, we - we intend to
cover not only the corporations and the partnerships and other legal
business entities that may be engaged in the print or electronic media, but
reporters, any free lancers who might be working for, on a part-time basis,
a newspaper or - or a radio station, television station, and I guess if you and
I decide we're gonna set up a little newspaper in the basement of our house,
you know, or in the garage, then we're gonna be covered and be able to
have this protection.
—_— ——_——_
The whole purpose of the amendment is to try to remove the chilling
effect that would naturally exist against the exercise of the freedom of press
that we all know that we all believe in, but to remove that chilling effect is
brought about by the fact that when suits are brought against the media, it
can result in protracted litigation that even though the media is certainly
gonna be protected ultimately on appeal based on the Constitutional
protection, they have to go through all this lengthy litigation to get there.
And, so that's really what this Bill is designed to do.
SENATOR CARRICKER: Okay.
SENATOR TURNER: But I - I would like Mr. Kinser to more
specifically address your concern, because I also shared it and - -
SENATOR CARRICKER: That - - That'll be fine.
SENATOR TURNER: - - and receive some explanation I think will
satisfy you.
THE CHAIR: Senator Lucio.
SENATOR LUCIO: Senator, somewhere along the line maybe one of
the witnesses, if - if you don't have access to statistics - - statistics play a
vital part on any - anything we take up, I'd like to know, you know, how
many cases were filed in the last - last couple of years of the 1980's, the
first two years in the 1990's. I'd like to know by category, if possible, who's
been suing the media, the lawyers, doctors, has it been politicians, who out
there has been suing, and the last one is I'd - I'd like to have a feel who in
Texas is being sued, have been mostly the favors in Houston or Dallas or
San Antonio or the Valley, where - -
SENATOR TURNER: All right. We - We have that information. I think
I'll let Mr. Deckert or Mr. Kinser share it with you to give you the exact
information -
: (Unintelligible)
SENATOR TURNER: I've - I've read it, and, you know, there's really
not a lot of cases that are filed in this area. It's a very limited area of law
practice and not a lot of litigation.
I had a call the other day from - from a newspaper man who I was
telling about the Bill, and he got real excited about it, and he said, "You
know, my - my professional liability insurance is so high," he said, "I can
hardly afford it any more." He said, "Anything we can do to hold down the
cost of litigation in this area is gonna help me."
And a lot of these little - little newspapers in small towns like I have in
my District, you know, they're scared to death that they're gonna get sued
and if they get sued and insurance coverage is not adequate, that they're
gonna end up being put out of business by one lawsuit.
And so what we're trying to do here is ensure that when those kind of
cases arise, we want to be sure that they're disposed of in the most efficient
manner possible - -
SENATOR LUCIO: Quite frankly, I'm - I'm trying to help you with
your Bill. I - I - I support your Bill, but - -
SENATOR TURNER: I know you do, and I appreciate that. [Two
people talking at same time.]
SENATOR LUCIO: - - who's being sued and what - what is causing
this.
SENATOR TURNER: I think that information would be helpful and
Mr. Kinser has it, and I know Mr. Deckert also has it.
THE CHAIR: Senator Luna?
SENATOR LUNA: Usually the Judge is - or Judges hearing determine
who or assess the cost. Why are you assessing the cost by the Bill?
SENATOR TURNER: Senator Luna, frankly, that language that 's in
that Amendment is - is a compromise between plaintiff's bar and defense
bar. They've - They took the Position that plaintiff's bar did, that if they
were going to go along and - and say that they would support this Bill to
allow these interlocutory appeals in these type of cases, they wanted the
party that's taking the appeal up to pay for the cost of it.
It's a little bit of a departure granted from usual practice of having a
judge determine who pays the cost, but frankly it was just sort of part of
the deal that was struck between the plaintiff's bar and the defense bar on
this particular issue. :
And I'll be honest with you. I'm not wedded to it, and I - I have in fact
even expressed my interest and taken a look at it before we go to the floor
because I thought it was a little bit odd for the plaintiff bar and the defense
bar to agree to it in light of the fact that as you have so clearly stated,
normally the Judge makes that determination.
But that's what they agreed to, and so that's why we put it in the
Amendment.
SENATOR LUNA: Okay.
THE CHAIR: Any further questions of Senator Turner? If not, then I'll
call Robert Deckert.
MR DECKERT: Good morning, Mr. Chairman. And, Senator Turner
thank you for taking the lead on this Bill and for introducing me to the
Committee. I very much appreciate the chance to appear today before you
not only on behalf of your own -
THE CHAIR: For the record, identify yourself and who you represent.
MR. DECKERT: For the record, I'm Robert Deckert, Chairman and
Chief Executive Officer of A. H. Belo Corporation in Dallas.
And not only am I representing Belo today but I'm also speaking on
behalf of an organization we have formed in the last several months to
address this issue, the Appellate Fairness Coalition.
Its members include all of the industry associations who were named
earlier and who have representatives present here today, including the
Texas Association of Broadcasters, the Texas Press Association, Texas
Daily Newspaper Association, and in addition, more than a dozen
companies that are engaged in the business of publishing newspapers and
operating television and radio stations of all sizes throughout Texas.
As a reference point for Belo, we not only publish a large newspaper
and have some large television operations, but we also operate medium
and smaller-size television stations in other states and last year went into a
partnership in the cable business which puts us in some very small markets
here in Texas.
Mr. Chairman, the members of the coalition who represent this breadth
of interest in the business are greatly concerned that the Constitutional
rights of the press have been seriously eroded in Texas by the costs and
management time associated with libel litigation at the State level.
Statistics referring to the Senator's question a moment ago tell us that
only twenty-five percent of libel jury verdicts since 1980 have survived
appeal. Two-thirds were reversed altogether and another ten percent had
the damages reduced on appeal. For the entire decade of the 1980's final
libel awards to plaintiffs amounted to no more than thirteen percent of the
initial verdicts.
The key point, of course, is that the Constitutional protections, the First
Amendment protection must be brought to bear in order to assure a fair
trial in libel litigation.
The Appellate Fairness Coalition is troubled by the fact that Texas
newspapers and television and radio stations are not receiving the
appropriate protection at the trial level.
In a series of decisions that I know many of you are familiar with going
back to the mid-1960's, and starting with the decision entitled New York
Times versus Sullivan, the Supreme Court of the United States established
very high procedural burdens for the vast majority of libel plaintiffs to
meet before a media defendant even goes to trial.
The Court's decisions contemplated that a determination of whether or
not these burdens could be met should occur at the summary judgment
stage. And that's what Senator Turner was alluding to earlier.
Now, yet this judicial process of in effect culling out unmeritorious
cases obviously isn't being followed and if we rely - rely again on statistics,
the 75% numbers compelling as a comment on - on what’ been happening
in our courts, begs the question why are these cases allowed to go to trial in
the first place.
And as I'll mention in a minute, the cost of that can be quite
extraordinary. What we're experiencing in Texas is that media defendants
of all sizes and, of course, the larger organizations tend to get the majority
of the suits but it does cut all the way across the very small markets, are
required to incur very substantial and oftentimes ruinous expenses just in
order to defend our right not to be tried at all to address this Constitutional
question.
Our fundamental principle is that freedom of expression is no freedom
at all if the speaker is bankrupted or seriously weakened as a result of
defending that freedom. . -
Now, these costs for large cases can run well under the millions of
dollars end to end going through the appeal process in almost any even are
in the hundreds of thousands of dollars of which when related to smaller
entities can be more than - than chilling - I would suggest even
intimidating.
For the smaller newspapers, radio and television stations, this appellate
victory or the prospect of an appellate victory can be Phyrric - Uh - in - in
mythological terms they've ultimately won the battle all right, but their
ability to continue publishing or broadcasting is substantially impaired.
And more importantly I think their interest or intent to undertake
reporting that might be contradic - - controversial is significantly eroded;
uh - impaired - uh - in some cases just vanishes. They cease to - to be
willing to take those kinds of risks.
So, any result that forces the press to choose between these First
Amendment protections and the kind of exchange of ideas and public
policy issues that Senator Turner addressed, was obviously never intended
by the framers of the U.S. Constitution or the Texas Constitution, and that's
what we're trying to address here.
Our feeling is that unless the unmeritorious libel cases are sorted out on
a pre-trial or summary judgment level, that our overall protection suffers.
This Bill, Senate Bill 76, would allow a libel plaintiff or defendant to make
an accelerated interlocutory appeal from the denial of a summary judgment
motion.
The Bill would be extremely useful because it would permit two layers
of appellate review on the merits of the plaintiff's claims, or the media
defendant's defense before the case enters the time consuming and
expensive trial phase.
Senator, you asked a moment ago how many cases are we talking
about, I believe between 25 and 30 cases were filed in Texas in 1992. This
isn't a huge number of cases, but once they go past the summary judgment
phase, they become extremely complex, can run four to six weeks, and
aside from the expense, have the potential to tie up the appellate courts in a
way that's much more I think counter-productive than - than having a few
cases go up from summary judgment and be dealt with.
And now, obviously the tie-back to the First Amendment protection is
this appellate process is going to ensure the application of Constitutional
questions at that early sheen.
It's important to stress that this Bill SB 76 is not designed to inhibit or
condition a plaintiff's right to bring a libel suit against any media company.
We - We don't in our Coalition ever expect to be immunized from lawsuits.
~If we haven't done our job right, then we deserve to have our conduct
reviewed by a judge and a jury and presumably pay the right - the price.
We have the right of appeal on that case, but that's the way the process
should work. We're not trying to alter that in any way.
In our view, the proposed legislation doesn't prohibit or limit legitimate
grievances against the media being tried in Texas Courts, and if there is
substance to a plaintiff's claim, it's going to be heard by the Jury, and it
should be heard. This is no change from our present system.
Mr. Chairman, within this Coalition, we have newspapers dating back
almost a hundred and eight years, a number of our members have been in
business that long, radio and television stations 40 to 50 years old in this
State, and I'd like to think that what distinguishes Texas and the press in
Texas from any other States in this country is our historical and national
reputation for free, open and often robust debate on public issues
throughout the State.
I know if I ask any of you here, or your Colleagues in the Legislature,
there'd be plenty of complaints about the media in your own districts.
That's to be expected.
We're reporters first and business men and business women next, but I
also think that you'd agree that this tradition of an open and - and
sometimes raucous discourse has been very productive for the State and
ee ea) ain oo
has helped foster the appropriate kind of debate on public issues.
This critical role is coming at an ever-increasing price for the members
of our Coalition. I can assure you that companies like Belo and the other
larger companies represented are willing to pay the price for free and open
debate to pay the litigation costs, the insurance premiums, and in some
cases if we're found to have erred, pay the judgments.
But not all of us can afford it and none of us should have to stand trial
on unmeritorious claims, and in that context we think some help; is needed
from the Legislature and that's what we're seeking through the procedural
safeguard in SB 76.
_ We can't afford to permit a situation to continue where the prospect
exists of limiting public debate. We thank you for your interest in this Bill
and I'd be happy to answer any questions or refer to our experts who are
here with us this morning.
THE CHAIR: Any - Any questions of Mr. Deckert?
SENATOR CARRICKER: Yep. Mr. Chairman, . . .
THE CHAIR: Senator Carricker.
SENATOR CARRICKER: Uhm. Could you hear the question I asked
Senator Turner a little earlier?
MR. DEKERT: Yes, sir.
SENATOR CARRICKER: About why the press should have this option
and an individual should not?
MR. DECKERT: Let - Let me address that, and, again defer to Kirte
Kinser for more a more detailed answer. When we talked about this this
morning, the language clearly is evolved from the original form. ~
I think one way to get comfortable with it is to turn the prism around
and realize that as things stand today, anyone who wants to invoke First
Amendment or Constitutional protections for free speech or - or - or
freedom of the press, has to meet that test when they take a case to court or
- or they're defending a case in court.
The act of suing that person for libel or slander or the decision to sue
for libel or slander is being made outside of - of that test. So once an action
is brought against a defendant, the defendant first has to prove up in court
that lie or she, if it's an individual or an entity, a newsletter, Senator Turner
said, is protected by the First Amendment. So that's not being altered
through this Bill.
What's being changed is that once you meet that test, if you are found
to come under the definition of media, however broadly the court chooses
to apply it, then you have the opportunity to take the summary judgment
decision and go up for appeal rather than get into this prolonged and
expensive and - and sometimes we think unmeritorious trial process.
But the definition of who's - - who the press is, the media is, or not,
isn't being addressed in this Bill, and I don't think that was the intent to
begin with. You're right that the language would - as it's evolved, gives the
flavor of a change of intent. But I think it's not the case, Senator, I - -
SENATOR CARRICKER: Is it then your contention that
Constitutionally there is a difference between the - the standards and the
applications for free speech for individuals as for the press?
MR. DECKERT: Well, again, one -- Let me defer to Kirte. The answer
is that's the body of law that the, beginning with Times versus Sullivan, the
whole libel and slander area as it relates to the media has been
differentiated from the other First Amendment protections of freedom of
speech, so there - there in that sense are two bodies of law within the same
general - - Perry or Kirte Kinser can certainly address that - -
: Okay.
MR,. DECKERT: - - in more detail.
: Okay.
SENATOR TURNER: We can call Mr. Kinser up right now if you want
to, Mr. Chairman, and get that - -
THE CHAIR: Your pleasure,
: - - by whatever you say. You're -
SENATOR TURNER: Mr. Kinser, if you will, come - come on up and
give Senator Carricker a clear view - -
THE CHAIR: You are the sponsor of that Bill and I am Co-Sponsor.
: I'd like to hold off, but you know what sympathy is.
[LAUGHTER]
MR. KINSER: Thank you, Mr. Chairman. My name is Kirte Kinser.
I'm a principal in the law firm of Magure, Craddock, Strother and Lutes in
Dallas. And a large part of my practice is in counseling members of the
media and others in areas of First Amendment.
Senator Carricker, as to your question, there are some distinctions in
the First Amendment as it deals with some particular standards that have to
be proven depending on what type of plaintiff you have and what type of
defendant you have, and sometimes that distinction is based upon whether
the defendant is a member of the media or - or not.
The reason why the amendment is drafted the way it is, much like the
reason that the cost amendment is drafted the way it is, is because of
concerns that were addressed from both sides of the Bar to make sure that
this particular piece of legislation is as Dirk - - narrowly drawn as possible
to accomplish the purpose and the problem as we perceive it in the State.
Most particlarly we do not wish to include in this Amendment such
things as employer conduct as it relates to its employees or other actions
under the Deceptive Trade Practices Act or warranties or anything that
might be declared quote unquote "a publication,” and it was in fact at - at
the request of the plaintiffs’ bar that this particular Amendment be drafted
in a way that was limited to the media in an effort to - to hit point, if you will.
And, in the State of Texas as across the country, the most significant
number of cases as well as the most significant number of large trials that
take the most time and the most money and use the most Judicial resources
are those cases brought against the media.
It is indeed a rare circumstances in which one pricate individual will
undertake the expense of litigation against another private individual over
the basis of what somebody's written in a letter.
Although that possibility does exist and a p- - a individual would be
entitled to assert whatever First Amendment rights have been granted to
them, in reality the problem lies in the administration of justice when
you're dealing with the large cases where there are large stakes of money at
- at - - Excuse me - - large amounts of money at stake.
SENATOR CARRICKER: So - So Belo gets the opportunity to an
interlocutory appeal and Carricker doesn't.
[Chuckle]
: That's one way of saying it.
MR. KINSER: That is one way of saying it, Senator, and basic- -
: Does - Does - Does that also imply that that Belo
has implicitly less responsibility and freedom of speech than Carricker?
MR. KINSER: No, Senator. I think that would - that would not be a
correct characterization. We are both attempting in any way to change the
standards by which speech or the abuse of that speech is judged in the
courts, but simply to address the problem with the administration of justice
in situations where an extreme amount of time is - is taken in the judicial
system for cases that are constitutionally at least unmeritorious.
SENATOR CARRICKER: I - I certainly understand and certainly
concur and have no problem with the i the thrust of the Bill - uh - I'd - I'd
kind of like to be under it myself.
(Laughter)
: Why? Are you about to say something
(Laughter)
MR. KINSER: Well, Senator, better - you do enjoy absolute
immunities.
SENATOR WEST: Mr. Deckert, thank you for your testimony this
morning. It sounds like we're going to be on the same side when we start
talking about judicial re-districting. It sounds a little we need to kind of do
something with our judicial system. %
When we start looking at this statute, do you have any idea how many
of the States have similar statutes which allows for interlocutory appeals in
similar situations? .
MR. DECKERT: Senator West, there's more than 20 - Kirte, what the
number?
MR. KINSER: Yeah. Nearly one-half of the other States, as well as the
Federal Courts, allow interlocutory appeals under some form, or another,
so we are certainly not the trail blazer. The advantage that we have,
Senator, is that we can look at their experiences and create a system that is
less burdensome and less awkward than what most of the other States have
adopted.
In some States they require three levels of a - a review before it gets to
the Court of Appeals. And this Bill would allow to strip away those extra
layers and - and get to the heart of the matter and get it done.
SENATOR WEST: And the basis for those statutes are arguments of
Senator Turner and Mr. Deckert as - as advanced about frivolous lawsuits
and frivolous decisions by judges, is that correct? |
MR. KINSER: Uhn,, I - I think it - it - - Again, it stems from concern
for the efficient administration of justice.
SENATOR WEST: So, that the - - So the answer to my question would
be yes?
(Laughter) 7
MR DECKERT: My answer is yes, Senator. If I may add to the
response to your question concerning other States, it's important to keep in
mind that in the media, as in so many other things, Texas represents
disproportionately a large number of the organizations that exist in this
country.
So, while half the other States may have procedures essentially the
same as this one, when you bring Texas under such a procedure where
successful with this Bill, then you're going to affect an disproportionately
large number of newspapers, television stations and radio stations most of
them very small by comparison to - to our operations, for example,
Senator.
THE CHAIR: Senator Henderson.
SENATOR HENDERSON: I guess I'm trying to understand to there's
only 20 or 25 cases, something like that - -
MR. DECKERT: That's filed in 1992 reported. Yeah.
SENATOR HENDERSON: You know, there's lots of - of - summary
judgments filed or denied on all kinds of litigation, complicated and
simple.
MR. DECKERT: Uh hum.
SENATOR HENDERSON: And you have Constitutional questions
about . . and I'm - I'm trying to understand why we should make a special
interest exception for you and your client when we don't for the rest of the
citizens of the State of Texas but very limited things that you can appeal a
denial of summary judgment for. And I - And so far, at least in my mind,
ee
you hadn't made the case.
MR. DECKERT: Well, of course, this - this permits an appeal by either
the plaintiff or the defendant of a summary judgment motion. The other
five instances, Kirte, you might want to refer to those and then I'll - I'm
going to try to address that larger question.
MR. KINSER: Well, at - at the present there are five circumstance in
Texas in which interlocutory appeals are permitted.
SENATOR HENDERSON: Yeah. I'm looking at them.
MR KINSER: Okay. And certainly, whenever a summary judgment is
granted that disposes of the case, that is - -
SENATOR HENDERSON: - - an appeal.
MR. KINSER: - - appealable.
SENATOR HENDERSON: Order. But a denial - -
MR. KINSER: A denial has - - is generally not appealable in Texas and
under procedure is really never reviewable because you cannot appeal it
immediately. Once the trial has taken place, a denial of the motion for
summary judgment becomes moot and is therefore not reviewable and such
procedures as a Writ of Mandamus or Bill of Review are also in -
determined not available in these circumstances.
The reason why we feel that this particular legislation is necessary is
because we are dealing with really the cornerstone of all the other rights
that we do have; without the ability to say or write what we wish and
without the fear of being hailed into Court every time; really don't have the
ability to enforce the other rights.
SENATOR HENDERSON: Well, you know, sometimes people lie.
MR. KINSER: Yes, sir.
SENATOR HENDERSON: And - And - And the people that they lie
about are entitled to take them to Court. And if it - We're talking about a
technical change -
MR. KINSER: Right.
SENATOR HENDERSON: - - in procedural courtroom law. And it
seems to me that this extends the litigation perhaps rather than shortens it.
MR. KINSER: If I may address that, Senator. It is in fact a technical
change only in procedure and not in substance of law.
SENATOR HENDERSON: Yeah.
MR. KINSER: And if a person in fact has a claim, it wall be prosecuted
and - and the defendant will be held liable for it, and this does not change
that. But because it's an interlocutory appeal under Texas procedure, first of
all it is a - it does not stay the underlying proceeding.
If the appeal is taken, the underlying trial procedure may continue at
the discretion of the trial judge and can in fact go to trial if the Appellate
Court does not review the matter before that time comes.
So it is not a device by which the media or anyone else can use it for
the purpose of delay. It's not like a normal appeal or some other type of
special remedy where the - where the trial would be stayed or the
underlying procedure would be stayed. It continues on.
Second of all, an interlocutory appeal under established Texas
procedure, is an accelerated appeal. The time tables are shortened for filing
your briefs, for getting your motions in, for getting the hearing done.
And therefore, it not only can it not be used for delay, but it's procedure
that's really built for speed. Get it done, get it over with, and get back to the
business.
And so we don't think this is a - a process that can be used for any
purpose other than for the legitimate purpose of taking up the issues under
the First Amendment.
Now, there are also plenty of procedures and remedies available at the
Appellate Court. In the event that the Appellate Court determines that it is a
frivolous appeal or taken for improper purposes, the Appellate Court has
the direction and the ability to sanction the Appellant in those
circumstance.
MR. DECKERT: If - If you - senator if you carry that theme and relate
it to some of the statistics I cited earlier, let's say that instead of a 75/25
history that we know exists here and across the United States in terms of
appeals decisions show they relate to the trial judgments, even if it's 50/50,
that says that half of the claims being brought for libel and slander in
media-related cases don't stand up to the Constitutional tests, and this
technical change permits the Court of Appeals on an expedited or
accelerated basis to deal with those cases where it's clearly a case that isn't
gonna stand on appeal and send them back down and in effect will change
the judge's decision (not understandable)
SENATOR HENDERSON: Only in 25 cases just doesn't sound like
very many cases.
MR. DECKERT: Well, but there - that's where you go to the public
policy side of this. First of ali, the time and expense is extraordinary in
these cases - -
SENATOR HENDERSON: And for many other cases.
MR. DECKERT: I understand that. Four to six weeks. In the costs as it
affects companies large and small, the public policy issues I believe are
first because of the trend and the size of judgments and what's happening at
the trial court level, it is becoming increasingly difficult for medium and
small-size newspapers and radio stations, not to mention the larger
companies that are mostly the defendants in these cases, to obtain adequate
libel insurance or at least levels which reassure them that in the event they
find themselves in one of these actions, they can defend themselves
without facing financial ruin.
SENATOR HENDERSON: Why is it more and more difficult for them
not obtain libel insurance?
MR. DECKERT: Because, unfortunately, as in some -
SENATOR HENDERSON: Buying more or 1 mean -
: Well, - -
SENATOR HENDERSON: - - for cases going to go away or what?
MR. DECKERT: As - I think the recent record would show in Texas the
size of libel judgments has trebled, quadrupled, gone literally off the
charts, and aside from the fact the State is developing a reputation in this
area as in others for extraordinarily high judgments, those judgments in
turn affect the insurance rate that anyone pays for libel insurance.
SENATOR HENDERSON: Last big one I remember was, they found
the company liable, but they gave them no damages.
MR. DECKERT: I'm not sure that is - -
SENATOR HENDERSON: Channel 13 Houston was one of those
channels.
MR. DECKERT: KTRK Capitol Cities is ABC.
SENATOR HENDERSON: Capital Cities they got a judgment against
them, said yeah that they were wrong, but they they didn't grant any
damages. So, on this last one I remember - -
MR. DECKERT: The - The most notorious one I'm sorry to say, we
were the defendant, is the largest libel judgment in the history of the
United States - - $59 million dollars. (Not
understandable - blocked out)
SENATOR HENDERSON: I guess I ought to remember that one, but --
(Laughter)
court money.
MR. DECKERT: And the problem is the Constitutional questions are
never addressed because with those kinds of judgments and the proclivity
of insurance companies to exit at that point of the proceeding, it never goes
to appeal. So the - the issues of whether someone's a public figure or
whether there are other First amendment protections apply, aren't being
tested, and that is I believe contrary to the intent of - -
SENATOR HENDERSON: What - What was the style of that case, I
don't - -
MR. DECKERT: The style of that case?
SENATOR HENDERSON: Oh, that was the District Attorney - -
MR DECKERT: Correct.
SENATOR HENDERSON: - - at Waco?
MR. DECKERT: Uh hum.
: Uh - Mr. Chairman - -
SENATOR LUNA: Am I correct that summary judgments do not relate
to the amount of the judgment only whether there is libel or not?
MR. DECKERT: Well, again, I'll defer to our - our expert, but a
summary judgment motion in libel cases is generally entered early in the
proceeding - -
SENATOR LUNA: I understand what --
MR. DECKERT: - - and asks for the
SENATOR LUNA: But a summary judgment does not assess damages.
That has to be tried.
MR. DECKERT: Correct. Absolutely.
SENATOR LUNA: So these - these issues that you're bringing up,
horrendous amounts of judgments, don't have anything to do with summary
judgments.
MR. KINSER: Senator, actually, there would be two ways to address
that., If it were defendant who was raising the motion for summary
judgment, it would be oz the issue of liability or not - -
SENATOR LUNA: I understand.
MR. KINSER: - - and if the judgment was rendered in favor, then there
would be no damages to be considered because there'd be no liability
‘SENATOR LUNA: But on the opposite, - -
MR. KINSER: If it were a plaintiff, which a plaintiff would be entitled
to - to operate under this legislation, then the issue could be either one of
liability or one of damages.
SENATOR LUNA: Will
MR. KINSER: But a - -
SENATOR LUNA: Are you telling me that damages are assessed by
summary judgment?
MR. KINSER: They can be where they meet the standard. It's not often
that they are, Senator, because damages usually involve some fact issues
that can't be determined on summary judgment. But a plaintiff could take
advantage of this in determination of whether for example he was a private
figure or not - -
SENATOR LUNA: But then the issue - -
MR KINSER: - - or whether it was a defamatory statement or not.
SENATOR LUNA: The issue of divorcing the excesses judgments and
these summary judgments are not really related.
MR. KINSER: Senator, the - - that's correct. Our intent is not to
address those circumstances in which there are legitimate and - and - and
damages should be awarded because there was an error made in the
reporting process. It's really directed more to the incredible cost of
defending the unmeritorious cases that we intend this legislation to address
where the courts eventually would say that you have a First Amendment
right not to be sued and not to be tried, that you've had to go through the
cost of a trial to - -
SENATOR LUNA: I don't necessarily - -
MR. KINSER: - - to get to the point.
SENATOR LUNA: - - uh - - oppose that but I don't want to bring in
discussions of excesses judgments with summary judgments. I - I don't
think they relate. The other thing that I was wanting to ask, when you were
talking about the data of 75, 25, that sort of thing, uh, is that cases that
were tried or old or cases that involved summary judgments only?
MR. KINSER: The statistical information came from a national survey
from the Libel Defense Resource Center that dealt with cases that were
tried both to juries and to judges and then - - |
SENATOR LUNA: Well, then, since - - Let's not speak to irrelevant to 7
summary judgments either.
MR. KINSER: Senator, with all respect, I think that it does in the sense
that these were cases. The 65% that were reversed on appeal were usually
reversed on issues that should've been decided at the summary judgment
stage.
But because there was no way to appeal the denial, they had to go
through trial and then the Appellate Section, so it does relate, because most
of those cases would be resolved at the trial level rather than before trial, as
opposed to having to go through the cost of trial and then the appeal.
There was a study done in - in New York State on cases and New York
does allow an interlocutory appeal. And about 90% of the cases - -
SENATOR LUNA: You have any way to differentiate that data what
was or should've been relieved - sought relief by summary judgment?
MR. KINSER: This study in New York, Senator, was done on cases that
- that in fact summary judgment was granted or denied at the trial level. In
New York, you're allowed to take up both on - on an interlocutory appeal.
And so they studied both those that were granted and both that were
denied. And in about 90% of the cases, the Appellate Court said that
summary judgment should have been granted.
SENATOR LUNA: Thank You.
THE CHAIR: Senator Leedham?
SENATOR LEEDHAM: Somewhere along ago, somebody explained
the law to me, and in one of the laws of - known as I guess they teach it in
college, is deep pockets. And, of course, basically the clients that you have
in this Coalition have - have the deep pockets.
As we've become a litenous (phonetical spelling) society more and
more, we lose sight; I believe my question to you is, all these legal
expenses that are represented by everybody you're talking about, sooner or
later, if the company stays in business, has to become a part of their
operating expense, would that not be considered true?
MR. DECKERT: Correct. Yes.
SENATOR LEEDHAM: That being the case, and we sometimes think,
Well, this company's making money and what does a consumer have to get
out of it, or I get out my question to you, Mr. Deckert, would be, if the
media stays in business, and I think all of us would dread the day it didn't.
Uh, it's main source of revenue is advertising, is that not really correct?
MR. DECKERT: Yes, sir.
SENATOR LEEDHAM: And, to the degree the advertisers spend their
money wishing that the rates were lower, I know that advertisers wish the
rates could be lower, but your rates within reason are - are set by
competitive atmosphere, certainly a TV station versus TV stations maybe
in Dallas you have a little bit of a unique monopoly right now, but a great
majority of the media has to set their advertising rates somewhat in face of
the competition the same or otherwise harm someone.
MR. KINSER: It is only within the context of operating as a member of
the media that you would have the opportunity to take an interlocutory -
Un - -
MR. DECKERT: Yes, sir.
SENATOR SIBLEY: Would you tell me why that's true, looking at the
four corners of the document?
: Hold on just a second.
MR. DECKERT: Senator, --
SENATOR SIBLEY: I'm not talking about intent. I know what your
aE nee ing: a magi 2 oe
.
intent is. I'm talking about looking at the four corners of the document
here. Tell me why you're not setting up a special class of people. Who can
say something as private citizens and have a right to an interlocutory
appeal and Senator Carricker doesn't.
: Senator Carricker.
) ; MR. KINSER: Senators, it was certainly our purpose to draft a
carefully worded piece of legislation and a - - where it says that it may be
brought claim against or defense by a member of the electronic or print
media. Don't think courts. At least we would hope the courts would not
reasonably read that as saying that simply because he's employed as a
) ’ reporter for a newspaper, that he has the freedom outside of that context - -
SENATOR SIBLEY: Okay.
MR. KINSER: - - to be afforded the protections of this - this particular
piece of legislation.
: That'd be correct.
) MR. KINSER: He has to be operating within the context of - of a
member of the media.
: SENATOR SIBLEY: I like - I like the intent of the Bill, - -
. MR. KINSER: Uh hum.
SENATOR SIBLEY: - - but I - I think we ought to mean what we say
and say what we mean in legislation so that we don't have to start talking
about legislative intent. There has to be a way to word this.
SENATOR CARRICKER: Mr. Chairman, if - if I could respond to
t Senator Sibley on that question. Senator Sibley, it appears to me that if a
member of the press intended to defame or harm someone, they could do
so much more effectively in their capacity as a member of the press rather
than as a private citizen. So they automatically afford themselves this
protection anyway.
SENATOR SIBLEY: | agree.
MR. KINSER: Certainly we would not be opposed to - to any sort of
refinement to this that would make that quite clear that - that the intent was
only acting in the capacity or within the professional activities of a member
of the media.
SENATOR SIBLEY: Well, looks to me like in the attempt to avoid the
other - the unintended result of the DTPA or whatever, we - we've kind of
flipped back and the other way and we're creating, looks to me, like a
special class of people You know, I'd love - You know, I may start my
underground newspaper so I can go and - - You know, I can have this right.
So, you know, I'm sure Senator Turner and all of you all can put your
heads together, but that to me really creates a problem, and I do think it's a
good idea to - to have this sort of interlocutory appeal.
I don't understand why we wouldn't want to let everybody have it,
though. I mean, it's good for the newspapers. I don't understand why
Senator Carricker should not be able to avail himself of that. If he's denied,
what is the harm?
Even if you had a DTPA or some other unintended result, what would
be the harm of allowing an interlocutory appeal? What - What is it we're
trying to prevent?
: Appeals Court wouldn't have anything else to
him.
plaintiffs attorney
MR. KINSER: The underlying - - The underlying concern, Senator, is
that we don't want to - to open the flood gates of appeals and allow people
to - to try and manipulate the system just to get under this - this procedure.
The reason, again, that it was - it's limited the way it is, is because of the
concerns expressed by members of the Plaintiff Bar on that issue.
SENATOR SIBLEY: I'll tell you what
SENATOR SIBLEY: If we deny out - or - If we didn't accept the
Amendment and just save our legislative intent, we don't mean DTPA,
wouid that - and let the courts hash that out?
MR, KINSER: Again that would be acceptable to us.
: All right.
THE CHAIR: Senator Sibley?
SENATOR TURNER: I think Dean Udhoff can offer some comments.
It may be helpful to you, too, if - if the Chairman would allow me - -
THE CHAIR: Uh hum
: Yes.
MR UDHOFF: To answer your question, - -
: Well, I'm sorry.
THE CHAIR: Why don't you state your name for the record?
ARNIE UDHOFF: Amie Udhoff, lawyer in Austin.
THE CHAIR: Okay.
MR UDHOFF: There is a special Constitutional nitch. We're only
talking about cases where there's a Constitutional - a defense or the claim
is based upon the Constitution and on the First Amendment, so that
eliminates the vast majority of cases in the State.
I mean, there is great dispute as to under what circumstances one can
take a matter away from a jury in a - in a trial court. And rather than get
into that dispute about which people disagree vehemently, the point of this
I think is just to say this is an area that for all practical purposes has been
federalized.
In other words, the - the decisions of the United States Supreme Court
say that the Appellate Courts must exercise independent review of the facts
with respect to actual malice and the like.
That is, whatever Texas procedure is in other cases, it has to operate
this way in the Court of Appeals. And it has to be - the definition of malice
has to be the Federal definition of mala - - of malice. The burden of proof
has to be in accordance with the Federal Rules and not the State Rules - -
: Got a moment.
MR. UDHOFF: - - and - - so there is - There's a whole special line of
cases here, and we could argue, in a sense, till the cows come home, about
whether it should've been extended to all private individuals who write
defamatory letters and things like that, but at least so far, it has not
primarily because it come out of this sort of seditious libel public matter
type of concern. And - And I think that's really the answer to your question.
It's a different principle. It - The principle that there may be one cases
that got to trial that should not generally is one that affects all types of
litigants and litigations.
But this sort of special panlophy of Constitutional defense in
defamation and to some extent in emotional - - intentional infliction of
emotional distress is just a separate body of law.
And that's why here the change is not all that consequential, other than
to save the money. The - The Appellate Court may not defer to that Jury
verdict in the same way that it would defer to that Jury verdict if it were a
guardian for any products liability case, because the whole - the whole
thrust of it has been Federalized in the Federal Constitutional Front
Principles Trump in this area.
SENATOR SIBLEY: But at this point there's been - There will have
been no Jury trial. There's no decision really, no Jury to defer to. And my
question was, it looks like from the Amendment that we're creating a
special group of people whereby a member of the electronic media who
says something as a private citizen. Now, as I read this looking at the four
comers of the Bill, or this Amendment -
: But by - - I'm sorry.
: No. Go ahead.
MR. UDHOFF: But my answer, Senator, would simply be - - I mean, if
you consider a special interest group or - or a sort of special standard, that
standard is created by the First Amendment,. there's a press clause in - in
the First Amendment, and these cases. New York Times versus Sullivan
have interpreted that First Amendment to give these sorts of protections
over the last 30 years.
SENATOR SIBLEY: They don't need us to do it then. If they already
have that, why do they need us?
MR. UDHOFF: The problem in the case is that what frequently
happens with three-quarters of the cases, and this is not just in Texas but
around the country, being reversed, there is a tendency in many States
where the trial judge just simply said, Well, I'll let it go to trial, it goes to
trial, there is a damage recovery and then on appeal it is overturned on
these Federal Constitutional grounds with independent review.
And people have written articles and said this is a very strange sort of
phenomena; we're - we're - the reversal rate is so high on Constitutional
grounds, it must be because some District Judges aren't paying very close
attention to these Federal Rules that are applicable in this type of a case.
So you have the worst of all worlds in a way. You hae all the cost of a
trial, and then you have appellate review that ignores what the Judge and
the Jury have done at the trial level.
As I understand the Bill is to avoid that problem. If it's going to be
reversed anyhow, you mig’. as well reverse it early in the process.
SENATOR SIBLEY: You understand that I agree with that principle.
: Yeah.
SENATOR SIBLEY: What my problem is, is how can we avoid
creating a special group of people who as private citizens say something
and then because theu are a reporterm now, they don't - - they have some
protectons, or they have something that Senator Carricker doesn't have
when they said exasctly the same thing in exactly the same role.
That's - That's my only problem I have.
MR. DECKERT: Senator Sibley, if - if I may, and it's Senator Turner's
legislation, but we're amenable to inserting a phrase or phrases that clearly
eliminates that problem. That's not the intent, and - and we don't want the
absence of that phrase to enable any class.
SENATOR SIBLEY: Why don't we not amend it, and then amend it
from the floor when you all have the language worked.
SENATOR TURNER: That'd be fine. I - I - I think - - I don't know - -
Kirte?
SENATOR TURNER: Who expressed a point of view. I really would
be surprised if any judge would interpret the language member of the
electronic or print media to cover a news reporter out here acting just like
you or a - under character would in statements and - and - and things that
we might say you're right.
But to clear it up, I think we can put some language in there that will
pin it down and - and assure you that that would never happen.
: Right.
THE CHAIR: Any further questions of these witnesses?
: Yeah. Just -
: Go ahead a little bit.
SENATOR HENDERSON: Mr. Udhoff?
SENATOR HENDERSON: Am I given to understand what - I'm trying
to understand what - what you're saying. This is a money Bill; right? I
mean, you - you're trying to save some money.
MR. UDHOFF: This - This is a Bill - - I mean this - the reasons I
would give for it, if - if you're going to lose or in First Amendment
principles anyhow, you being the plaintiff, the earlier in the process that
message is communicated, the lower the communication fee.
: (Not Understandable)
SENATOR HENDERSON: Second, it seems like to me that I mean you
: Yeah.
SENATOR HENDERSON: - - sometimes in - in this - in the litigation
process you have unequal parties. Either you've got people with money in
their pockets, and you've got people that don't have money in their pockets.
MR. UDHOFF: Yeah.
SENATOR HENDERSON: Both of them have got to figure out a way
to pay to go through the litigation. I've been around the block a few times
and this would - - it - it - it might be and I can't - - and convince me that I'm
wrong on this - this might be just another way for the people who do, who
can afford to pay their lawyers, to extend the cost of litigation to the point
where the other side can't compete with them any more and has to go away
or settle.
MR. UDHOFF: I don't understand how it would add to their litigation |
cost.
SENATOR HENDERSON: An appeal?
MR. UDHOFF: No.
SENATOR HENDERSON: It's another step that they have to take.
MR. UDHOFF: It avoids a trial. With the trial - -
SENATOR HENDERSON: Only if you - -
MR. UDHOFF:
SENATOR HENDERSON: Only if they're wrong.
MR UDHOFF: The appeal - - Yes. But - But the point is they're
apparently wrong in three-quarters of the classes.
SENATOR HENDERSON: Well, but - you can't make - I mean --
SENATOR HENDERSON: Excuse me. But each case is separate and -
and - I mean, evidently there's one that that your folks had a serious
problem with, so each case is its own - -
MR. UDHOFF: No. It's - - It's really
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