Sunday, November 20, 2011

Defamation & Summary Judgment: Applicable Standards

What does the Defendant have to show to be entitled to summary judgment against the Plaintiff when sued for libel or slander?
[The Court of Appeals reviews] a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A defendant who conclusively negates, as a matter of law, at least one essential element of a cause of action is entitled to summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); Brewer v. Capital Cities/ABC, Inc., 986 S.W.2d 636, 643 (Tex. App.––Fort Worth 1999, no pet.); see Tex. R. Civ. P. 166a(b), (c).
Thus, to be entitled to summary judgment, a defendant in a defamation suit has the negative burden to prove the absence of one of the essential elements of defamation, e.g., that the statement complained of was not defamatory. Ramos v. Henry C. Beck Co., 711 S.W.2d 331, 333–34 (Tex. App.—Dallas 1986, no writ).
The General Law Concerning Defamation       
"Defamation" is generally defined as the invasion of a person’s interest in his or her reputation and good name. Prosser & Keeton on Torts § 111, at 771 (5th ed. 1984 & Supp. 1988). "Defamation" encompasses both libel and slander. By statute, Texas law defines "libel" as a defamation expressed in written or other graphic form that tends to injure a living person’s reputation and thereby expose the person to public hatred, contempt, ridicule, or financial injury or to impeach any person’s honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury. Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 2011). Although "slander" is not statutorily defined, at common law, slander is a defamatory statement that is orally communicated or published to a third party without legal excuse. Randall’s Food Mkts, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).
To prevail on a defamation cause of action, the plaintiff must prove that the defendant (1) published a statement, (2) that was defamatory concerning the plaintiff, (3) while acting with actual malice regarding the truth of the statement where the plaintiff was a limited purpose public figure. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998), cert. denied, 526 U.S. 1051 (1999); Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 574 (Tex. App.—Austin 2007, pet. denied). In this context, actual malice refers to the defendant’s attitude toward the truth of what he said. WFAA-TV, Inc., 978 S.W.2d at 573. Actual malice means that the defendant made the statement knowing that it was false or with reckless disregard about whether the statement was false or not. HBO v. Harrison, 983 S.W.2d 31, 36 (Tex. App.—Houston [14th Dist.] 1998, no pet.).
Whether a Statement Is Capable of Defamatory Meaning Is a Question of Law  
Whether a statement is capable of a defamatory meaning is a question of law. See Fort Worth Star-Telegram v. Street, 61 S.W.3d 704, 708 (Tex. App.—Fort Worth 2001, pet. denied) (citing Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987)). We must view the statements alleged to be defamatory as a whole and in light of the surrounding circumstances; the determination is based upon how a person of ordinary intelligence would perceive the entire statement. Ezrailson v. Rohrich, 65 S.W.3d 373, 376 (Tex. App.—Beaumont 2001, no pet.). Statements alleged to be defamatory must be viewed in their context; they may be false, abusive, unpleasant, or objectionable to the plaintiff and still not be defamatory in light of the surrounding circumstances. Id. We must consider the entire communication, not mere isolated sentences or portions. Musser, 723 S.W.2d at 655. Purely subjective assertions or opinions that do not imply the existence of undisclosed facts and do not misconstrue the facts are not actionable as defamation. Bentley v. Bunton, 94 S.W.3d 561, 583–84 (Tex. 2002); see also Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989) (explaining that "[a]ll assertions of opinion are protected by the first amendment of the United States Constitution and article I, section 8 of the Texas Constitution"). This is particularly so when the facts underlying an opinion are set out in the publication itself, thereby allowing the listener to evaluate the facts and either accept or reject the opinion. Brewer, 986 S.W.2d at 643. Instead, to be actionable as defamation, a statement must be an assertion of verifiable fact, that is, a statement that purports to be verifiable. Bentley, 94 S.W.3d at 583–84.

SOURCE: FORT WORTH COURT OF APPEALS - 02-11-00175-CV - 11/17/11

After viewing the two specific complained-of statements in the context of McComas’s entire statement, and considering the forum in which McComas read his statement—at a specially-called homeowners’ association meeting to address the issue of removal of PPOA’s president—we hold that the statements are not defamatory as a matter of law. As set forth above, McComas expressed his opinions regarding the way Lynda presided over matters affecting PPOA. He stated that her "ill-minded" or "single-minded" rejection of requests for investigation into the potential conflict of interest between PPOA and former president Lowrey concerning the settlement agreement had "not only cost PPOA serious money, thousands and possibly millions of dollars, but it eliminates our ability to limit Anthony Groups’ truck weight limits unless they are specifically working a on [sic] single family dwelling." He stated that, "Madam President’s actions were in description[:] unethical, unprofessional, and in direct conflict of interest of the best interest of our membership" and noted that "[t]he policy in this membership/Association is that it will be the policy of PPOA to maintain the highest ethical and legal standards in conduct of its business" and "[t]o avoid situations where there might, just might give the either the appearance of unethical or illegal behavior."

The two statements by McComas that the Tomlinsons allege are defamatory simply express McComas’s opinions––neither statement constitutes the assertion of a verifiable fact or purports to be verifiable––and opinions are not actionable for defamation. See id.; Vice v. Kasprzak, 318 S.W.3d 1, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (holding statement that plaintiff, who acted as president of board of directors for homeowners’ association and attorney of record for subdivision developer in actions against association members for delinquent maintenance fees, had engaged in "unethical business" was an opinion and was not actionable as defamatory statement); Brewer, 986 S.W.2d at 643 (holding that statements in "20/20" news report program that plaintiffs––nursing home owners––were responsible for patient abuse and had engaged in "profiteering" were, based on context and viewed in light of entirety of report, opinions that would not support defamation action); Falk & Mayfield, L.L.P. v. Molzan, 974 S.W.2d 821, 824 (Tex. App.––Houston [14th Dist.] 1998, pet. denied) (holding statement accusing plaintiff of "lawsuit abuse" was an opinion and was not actionable as defamatory statement); see also Double Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 854–56 (Tex. App.—Dallas 2003, no pet.) (holding statements in flyer and letter distributed to homeowners criticizing homeowner’s association’s management of subdivision were not capable of defamatory meaning); Hadlock v. Tex. Christian Univ., No. 02-07-00290-CV, 2009 WL 485669, at *3–5 (Tex. App.––Fort Worth 2009, pet. denied) (holding statements made in faculty meeting—the crux of which were that plaintiff professor had acted unethically and unprofessionally and was guilty of misconduct—were opinions that were not actionable as defamation).

Moreover, the two opinions expressed by McComas are set out in the lengthy statement that he read at the PPOA meeting, and that statement sets forth the factual basis for McComas’s opinions. See Brewer, 986 S.W.2d at 643. A listener hearing McComas’s statement and the two complained-of opinions contained in the statement would be able to hear and to evaluate the facts on which McComas based his opinions and either accept or reject the opinions. See id. Based on the facts given in McComas’s statement, the persons hearing it or reading it could easily decide for themselves the validity of McComas’s opinions concerning Lynda’s alleged conduct and its impact. See id.

Because—when viewed as a person of ordinary intelligence would perceive the entire statement—the two opinions expressed by McComas and complained of by the Tomlinsons are not actionable as defamatory statements as a matter of law, Appellees conclusively negated an essential element of the Tomlinsons’ defamation claim. Accordingly, we hold that the trial court did not err by granting Appellees’ motion for summary judgment or by denying the Tomlinsons’ motion for partial summary judgment.[4] See, e.g., Double Diamond, Inc., 109 S.W.3d at 854–55 (holding summary judgment for defendant proper because the complained-of statements were not defamatory as a matter of law); Marx v. Elec. Data Sys. Corp., No. 07-08-00022-CV, 2009 WL 1875505, at *9 (Tex. App.—Amarillo June 30, 2009, no pet.) (holding summary judgment for defendant on plaintiff’s slander claim proper because statements, such as "yeah, you know, the sneaky snake is here," were not defamatory as a matter of law).
We overrule the Tomlinsons’ sole issue.
Having overruled the Tomlinsons’ sole issue, we affirm the trial court’s judgment.

SOURCE: FORT WORTH COURT OF APPEALS - 02-11-00175-CV - 11/17/11

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