# Appendix — Santiago v. K-Six Television, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1328%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2002 - **Citation:** 537 U.S. 823 ## Text 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 appel [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1328%3A2. Public record. Not legal advice.