Monday, January 16, 2006
In Humane Society of Dallas v. Dallas Morning News, the Texas Court of Appeals, 5th District has upheld a grant of summary judgment for the newspaper. The paper's columnist Steve Blow had written a column about
"a family's experience after discovering the family's lost dog at an adoption event sponsored by appellant." ..."Appellees filed a motion for summary judgment claiming they were entitled to judgment as a matter of law on appellant's defamation claim because: (1) the column was not defamatory; (2) the column was an opinion protected by the Texas and United States Constitutions; (3) the column was fair comment and criticism protected by Texas statute; (4) the column was true or substantially true; and (5) appellant was a public figure and appellees had negated actual malice. After appellant amended its petition adding claims for statutory libel, business disparagement, and tortious interference with prospective commercial relationships, appellees filed a supplemental motion for summary judgment claiming they were entitled to judgment as a matter of law on appellant's additional claims because the column was true, was privileged, and was published without malice. Appellees also asserted, “in the event the trial court denied summary judgment on the elements of falsity, malice and privilege,” that there was no evidence of the elements of appellant's tortious interference claim and the special damage element of the business disparagement claim.
"Appellant responded to appellees' motions, claiming: (1) material statements in the column were false; (2) Blow was malicious; (3) the column was not protected opinion because many statements in it were expressed as facts; (4) appellant is not a public figure; and (5) its summary judgment evidence was sufficient to create fact issues regarding malice, each element of the business disparagement claim, and special damages. After considering the motions, the summary judgment evidence, the objections to summary judgment evidence, and the argument of counsel, the trial court sustained appellees' objections to appellant's summary judgment evidence, denied appellant's objections to appellees' summary judgment evidence, and granted appellees' motions. The trial court did not specify a basis for its ruling on the motions for summary judgment. This appeal followed.
"Although appellant briefed the issue of the truth of the article extensively, the briefing was only in the context of state and federal constitutional protection for statements that are true or substantially true. In its brief, appellant did not address or discuss in any way appellees' ground that appellees are not liable for publication of the article because pursuant to Texas statute, the column was privileged as a fair comment or criticism on a matter of public concern. Even after appellees argued in their brief that the summary judgment should be affirmed because appellant had failed to address this ground, appellant did not address or discuss the privilege in its reply brief. Nor did appellant challenge, within the context of the fair comment or criticism privilege, appellees' assertion that because the column was true, privileged and published without fault, appellant's claims for statutory libel, business disparagement, and tortious interference with prospective commercial relationships claims must likewise fail.
"Appellant was entitled to present argument on all grounds upon which it contends summary judgment was improper....However, appellant has not done so. Appellant's failure to take advantage of the opportunity to present argument on this ground results in waiver....Because summary judgment may have been granted, properly or improperly, on a ground not challenged by appellant, we affirm the summary judgment with respect to appellant's defamation claim. ...Likewise, because summary judgment was proper on appellant's defamation claim, its claim for statutory libel must also fail....Further, appellees contended, in their supplemental motion for summary judgment, that they were entitled to judgment on appellant's business disparagement and tortious interference with prospective commercial relationships because the column was true, was privileged, and was published without malice. The fair comment or criticism privilege precludes recovery on these claims because it operates to negate an element of each of the claims.... We overrule appellant's third and fourth issues. Having done so on procedural grounds, we need not address appellant's remaining issues regarding the trial court's evidentiary rulings. Accordingly, we affirm the trial court's judgment."
Read the entire opinion here.