IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JUNE 27, 2002
______________________________
TED WOOD, APPELLANT
V.
PATTILOU DAWKINS, APPELLEE
_________________________________
FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
NO. 48,492-A; HONORABLE JOHN T. FORBIS, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
ON MOTION FOR REHEARING
Appellant Ted Wood (Wood) has filed a motion for rehearing of our opinion sustaining a take-nothing summary judgment in favor of appellee Pattilou Dawkins (Dawkins) in Wood's action for libel as a result of a letter written to the newspaper. He complains that we improperly considered evidence and inferences favoring Dawkins, who moved for summary judgment, in determining whether Wood produced more than a scintilla of probative evidence to raise a material fact issue on the question of actual malice. The letter, which is the subject of the libel suit, as well as the history giving rise to the letter, was set forth in our prior opinion and we will not restate it.
In asserting his position, Wood contends that it is well-settled that in reviewing a no-evidence motion for summary judgment, we must "disregard all evidence and inferences that do not favor the non-movant." Wood posits that we failed to look at the evidence favorable to him and instead examined Dawkins's affidavit, as well as her deposition, which was evidence that favored her and should have had no place in our analysis. According to Wood, we also made inferences contrary to Wood's position with respect to the citizen's committee report and made an improper inference that Brian Barrett and Dawkins had differing opinions as to whether Wood knew at the time of the bond election that the jail would cost $16 million.
We noted in our original opinion that Dawkins filed both a traditional motion for summary judgment and a no-evidence motion for summary judgment. Further, the trial court did not state the basis on which the summary judgment was granted, and it therefore must be upheld if any ground is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). We additionally noted that the parties appeared to argue only the merits of the traditional motion for summary judgment in their briefs and, in upholding the summary judgment, we stated that Dawkins's affidavit "negated the element of malice in the absence of controverting evidence," which is the standard for a traditional motion for summary judgment.
Under a traditional motion for summary judgment, the movant must show that there is no genuine issue of material fact. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). In determining whether there is a genuine issue of material fact, we are required to take as true evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in favor of the non-movant. (1) Id. Further, we may not consider evidence that favors the movant's position unless it is uncontroverted. Putthoff v. Ancrum, 934 S.W.2d 164, 168 (Tex.App.--Fort Worth 1996, writ denied).
It is Wood's position that we should not consider any evidence provided by Dawkins unless it is favorable to him. However, in asserting her traditional motion for summary judgment, the burden is on Dawkins to establish an absence of malice as a matter of law. In Huckabee v. Time Warner Entertainment Co., L.P., 19 S.W.3d 413 (Tex. 2000), the defendants filed a traditional motion for summary judgment based on the absence of malice supported by affidavits of employees, which stated they did not believe the subject film contained false statements. The affidavits further provided the facts upon which those persons relied in producing and editing the story. The court stated that the affidavits could negate actual malice as a matter of law only if clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and able to be readily controverted. Id. at 24. Further, such affidavits must establish the defendant's belief in the truth of the challenged statements and provide a basis for the belief. Id. The court then went on to consider the affidavits in its analysis. Thus, we are not required to automatically ignore any evidence provided by Dawkins that is not supportive of Wood's position.
As stated in our original opinion, we relied on Dawkins's affidavit that the alleged defamatory statements were based on (1) her past experience with respect to construction costs, (2) her knowledge that certain costs were not included in the estimate of the cost of the jail, (3) her knowledge the estimate was not based on architectural drawings, (4) her understanding that the jail commission had not approved any plans, (5) statements made by Wood prior to the bond election that the cost of the jail facility would be $20 million, and (6) a 1999 newspaper article that the costs had increased to $16 million. Wood has cited no evidence in his motion for rehearing that controverts these facts were the basis for her statements.
However, Wood complains that we improperly inferred that the $12.46 million figure was only an estimate, was not based on actual plans drawn by architects, did not include costs associated with compliance with standards promulgated by the Texas Jail Standards Commission, and did not include costs associated with landscaping, furnishing, and ancillary buildings. Instead, he argues, we should have made the following inferences:
1. The $12.46 million estimate was based on factors commonly used by architects in estimating a new building's cost and was intended to be a number upon which the commissioners court could rely in attempting to obtain financing for the new jail;
2. Although actual plans were not yet drawn, the architect's estimate was the architect's best professional opinion of the new jail's cost and was intended to be a number upon which the commissioners court could rely in attempting to obtain financing for the new jail;
3. Costs associated with compliance with Texas Jail Standards Commission were taken into account by the architects when making their $12.46 million estimate; and
4. Costs associated with landscaping, furnishing, and ancillary buildings were either relatively insignificant or costs that were associated with but not part of the new jail.
Even if we accept these inferences, they do not change our opinion. That is so because even assuming some or all of the underlying factors upon which Dawkins states she relied in making her statements were incorrect or false, that itself is not evidence that the allegedly defamatory statements were made with malice. See Johnson v. Southwestern Newspaper Corp., 855 S.W.2d 182, 185 (Tex.App.--Amarillo 1993, writ denied) (failure to inquire more fully into accuracy of statements is insufficient to show malice).
Nevertheless, Wood asserts that we should have inferred knowledge of falsity from her statement that she obtained the $16 million jail cost figure from a newspaper article published more than a year after the bond election and her testimony that, at the time of the bond election, Wood had no idea what the jail would cost. Further, he claims, we were only able to arrive at the opposite conclusion because we incorrectly gave consideration to the fact that Wood had made statements publicly before the bond election that the jail would be a $20 million project and the fact that, by the time of Dawkins's letter, the jail cost was at least $16 million. The fallacy with this argument is that Wood does not dispute the truth of those facts in his motion for rehearing. He only contends that we may not consider them because they are unfavorable to him. Contrary to his assertion, we did not determine that Wood's evidence had no probative value. We accepted as true the two statements that Wood claims are favorable to him. We also recognize we are required to make reasonable inferences and resolve doubts in favor of the non-movant. However, reasonable inferences cannot be made by ignoring relevant facts that are undisputed by the parties. We believe we are entitled to rely on those undisputed facts that provide a basis for Dawkins's belief that her statements about Wood were true.
Finally, Wood complains that we improperly inferred that Dawkins merely had a different belief than Brian Barrett, who served on the citizens committee, about the cost of the new jail at the time of the committee report and the 1988 bond election. Barrett stated in his affidavit that he believed the $12.46 million estimate to be conservative and did not anticipate any more would have to be borrowed. Barrett became a county commissioner on January 1, 1999, and he did not learn that the jail cost would be $16 million until September 1999, more than a year after the bond election. Wood asserts that if we consider these facts in the light most favorable to him, we would conclude there is some evidence that Dawkins knew he did not believe the jail would cost $16 million at the time of the bond election. Once again, we do not believe that to be a reasonable inference. Accepting these statements as true, they merely recite what Barrett believed from the committee report about the cost of the jail and when he knew it would increase. They do not provide evidence as to what Wood or Dawkins believed about the cost of the jail from the committee report and when they knew the cost would increase.
Based on the factors noted in our original opinion and which we have reiterated again, Dawkins established her belief in the truth of the allegedly defamatory statements and a basis for her belief in their truth. Finding no error in our original disposition of the matter, we overrule appellant's motion for rehearing.
John T. Boyd
Chief Justice
Publish.
1. In determining if the non-movant produced more than a scintilla of probative
evidence to raise a fact issue in response to a no-evidence motion for summary judgment,
we must also consider the evidence in the light most favorable to the party against whom
the summary judgment was rendered and disregard all contrary evidence and inferences.
Zipp Industries, Inc. v. Ranger Ins. Co., 39 S.W.3d 658, 663 (Tex.App.--Amarillo 2001, no
pet.)