Martin v. Southwestern Electric Power Co.

BLEIL, Justice,

dissenting.

I dissent from the majority’s decision. I believe that the statements made by John Turk were defamatory, and I agree with the majority’s legal conclusion that Turk had a qualified privilege to communicate the information. It is my view, however, that the summary judgment evidence raises a fact question whether the statements were made in reckless disregard of the truth or falsity of the statements. Therefore, I would reverse the summary judgment.

In summary judgment cases, the burden of showing that there is no issue of material fact is on the movant and all doubts are resolved against the movant.3 El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex.1987); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). Here, the summary judgment evidence shows that Mike Martin was injured while on the job with SWEPCO. Thereafter, he returned to work and learned that a letter, written by SWEPCO’s president, John Turk, Jr., had been widely circulated throughout the company. This letter attacked his honesty, integrity and reputation.4 Martin swore that most of the allegations about him in Turk’s letter were not true and that, for this reason, the letter must have been written with malice towards him. I believe that the *201evidence in response to the summary judgment motion raises a fact question precluding the summary judgment.

In this case, Martin would be required to plead and prove at trial that Turk published the statements about him with actual malice. But, on a defendant’s motion for summary judgment in cases like this, the defendant-movant can prevail only as to any statement' on which it can negate actual malice as a matter of law. Casso v. Brand, 776 S.W.2d 551, 555 (Tex.1989). This, SWEPCO has not done.

Turk’s affidavit says that he wrote the letter relying on a lengthy report from an investigation committee, that he had no reason to believe the statements about Martin were false, and that he held no ill will or malice towards Martin. The motion for summary judgment proof was controverted by Martin, who stated that the contents of the publication were false and that the publication was made with malice.5 Obviously, with conflicting affidavits as to the truth or falsity of the contents of the publication and as to whether the publication was made with malice, the credibility of the affiant might likely be a dispositive factor in the resolution of this case. Under such circumstances, summary judgment is inappropriate. Id. at 558.

In addition to my belief that SWEPCO has not negated actual malice, generally, I also believe it has not negated actual malice on certain specific remarks made by Turk. Turk’s various disparaging remarks included that,

(1)Martin had a long history of having to be reminded to wear his safety gloves;
(2) Martin had no interest in his safety book; and
(3) Martin should have been laid off in the past.

Nothing in the report given to Turk supports these allegations. Thus, based on Turk’s affidavit and the attached report, SWEPCO has failed to negate the claim that these statements were made with malice.

Furthermore, it seems to be of significant factual importance that Turk selected all the negative information about Martin and included it in the letter, while omitting all of the positive remarks about the man and his work. Martin’s line foreman or boss for several years said Martin was a quality worker and that he would be welcomed back on the job, if able. Martin’s most senior coworker said that Martin was as safety conscious as anyone else.6 Actual malice may be inferred from the relation of the parties, the circumstances attending the publication, the terms of the publication itself and from the words or acts of the defendant before, at, or after the time of the communication. International & G.N.R. Co. v. Edmundson, 222 S.W. 181, 184 (Tex.Comm’n App.1920, holding approved). A jury should be able to look at Turk’s letter, compare it with the report, and consider Turk’s selection of only the negative material from a lengthy report as a circumstance from which malice might be inferred. It is quite possible that a fact finder might conclude that, because the letter covered matters not in the extensive report, Turk was exaggerating or “stretching” the truth in order to make his point to the addressees. This could be considered reckless disregard for the truth.

*202Martin had a right to a jury determination of the disputed fact questions in this case. Tex. Const, arts. I, § 15; V, § 10. The summary judgment should be reversed.

. The majority seems to have wholly neglected to consider this basic standard of review applicable to all appeals from summary judgments.

. The majority mischaracterizes the breadth of the circulation of this letter, claiming that the letter was published only to those who had corresponding duties (see majority opinion, pp. 198, 199). I agree that Turk enjoyed a qualified privilege in writing the letter. The majority’s emphasis on its assertion that the letter went only to those with “corresponding duties" mostly relates to the legal question of whether any privilege exists. However, the letter was sent to all of the line managers and line foremen. In the letter, Turk analogized SWEPCO to the military as an organization, saying, e.g., that a sergeant is responsible for a group of men, a master sergeant responsible for a group of sergeants, and so forth up to the "general ranks,” saying that it was just like that in the case of SWEPCO. Then, at the conclusion of his letter, he ordered that his letter be distributed in all other SWEPCO divisions. A reasonable inference is that Turk intended, and most likely accomplished, distribution of his letter to every SWEPCO employee.

. Before 1989, the law was clear that an affidavit of an interested witness, usually the alleged defamer, as to his or her state of mind to negate malice, even if uncontroverted, was not sufficient evidence to support a summary judgment. See Bessent v. Times-Herald Printing Co., 709 S.W.2d 635 (Tex.1986); Beaumont Enterprise & Journal v. Smith, 687 S.W.2d 729 (Tex.1985). However, Casso v. Brand, 776 S.W.2d 551 (Tex.1989), overruled those decisions, holding that malice can be negated by an interested witness and that summary judgments are proper in a case like this when there is no controverting proof. Id. at 559.

In this case, however, summary judgment still is not proper because Martin gave controverting proof.

. The report does contain various irrelevant coworkers' statements — given in response to the investigator's questions. Statements of this nature included that Martin's wife was not friendly with Martin’s fellow workers and that they were of a “different religion,” that they did not attend parties or local gatherings, and that Martin had personal problems related to a previous divorce and child custody dispute. A reading of the entire report and the questions asked might make a reader wonder just what sort of information about Martin was being sought.