Langston v. Eagle Publishing Co.

OPINION ON REHEARING

The Three L Trust, acting through Ruble Langston as its trustee, and Trailite, Inc., have filed a motion for a rehearing of that portion of the opinion in which this court affirmed the summary judgment against the trust and the corporation. Michael Luther has not asked for a rehearing.

They contend in their first point that this court erred when it held that the derivative suit did not toll the statute of limitation on Trailite’s libel claims because the derivative suit had been improperly brought as a matter of law. They argue that the summary judgment could not be affirmed against the corporation on this basis because that particular ground had not been asserted in the motion for the summary judgment. In their second point, they contend that this court erroneously held that the derivative suit was ineffective to toll the statute of limitation on Trailite’s libel claims as a matter of law. They base this point on the failure of defendants-ap-pellees to attack Langston’s and Luther’s capacity to bring the derivative suit by a plea in abatement under Rule 93. See Tex.R.Civ.P. 93. These two points are overruled because they raise arguments and issues which were not raised by points of error in their appellate briefs. See Aycock v. Travis County, 255 S.W.2d 910, 914 (Tex.Civ.App. — Austin 1953, writ ref’d).

They argue in their fifth point that the summary judgment against them should have been reversed because a fact issue existed on the application of article 5432. The question relating to the application of article 5432 is never reached because Trail-ite’s claims were conclusively barred by *626limitation and the Three L Trust, as an entity, could not assert any libel claim for its own defamation as a matter of law. Therefore, point five and all other points urged in the motion for a rehearing are overruled, and the motion is denied.

Eagle Publishing Company, John Williams, Glenn Dromgoole and Jann Snell, defendants-appellees, also seek a rehearing of that portion of the opinion in which this court reversed the summary judgment against Langston, individually and in his capacity as trustee of the Three L Trust, and remanded his causes of action for a trial on the merits. The following points in their motion for rehearing must be overruled because they are based on grounds that were not asserted in the motion for a summary judgment: (point two) the summary judgment against Langston should have been affirmed because the articles published on July 21 and November 9, 1982, were constitutionally protected under the First and Fourteenth Amendments to the United States Constitution and Article I, Section 8, of the Texas Constitution; (point six) the summary judgment against Langston should have been affirmed because he had not plead a cause of action for libel based on the articles published on October 14 and 15, 1982, and March 2 and 3, 1983; (point seven) the summary judgment against Langston should have been affirmed because any libel claims that he could have asserted based on the articles published on October 15, 1982, and March 3, 1983, have been barred by limitation; and (point eight) the summary judgment against Langston should have been affirmed because the articles published on October 14 and 15, 1982, and March 2 and 3, 1983, were constitutionally protected under the First and Fourteenth Amendments to the United States Constitution and Article I, Section 8, of the Texas Constitution. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 675 (Tex.1979) (holding that a summary judgment cannot be affirmed on a ground which was not urged in the motion for the summary judgment).

Each of the eight articles could have been the basis for a separate cause of action, assuming they were false and defamatory as to Langston. See Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 251 (1942). Defendants-appel-lees contend in point one that the summary judgment should have been affirmed against Langston because they were conclusively protected by the privilege under article 5432. As noted in the opinion on the merits, defendants-appellees failed to conclusively negate malice with respect to the publication of any of the articles which precluded a summary judgment on the basis of privilege. See Beaumont Enterprise & Journal v. Smith, 687 S.W.2d 729, 730 (Tex.1985). Point one is overruled.

Point three, in which they argue that the summary judgment against Langston should have been affirmed on the basis of the libel-proof doctrine, is overruled because this point merely restates the argument in their brief.

They contend in point four that the summary judgment against Langston should have been affirmed because the articles published on October 14 and 15, 1982, and March 2 and 3,1983, did not defame him as a matter of law. With respect to the articles of October 15, 1982, and March 3, 1983, defendants-appellees did not move for a summary judgment against Langston on the ground that these articles did not defame him as a matter of law. Because this ground was not asserted in the motion for the summary judgment, it cannot be considered on appeal as a basis for an affirmance. See City of Houston, 589 S.W.2d at 675.

However, one of the grounds on which they moved for a summary judgment against Langston was that the articles published on October 14, 1982, and March 2, 1983, did not defame him as a matter of law. The article on October 14 reported the political controversy which developed during the 1982 gubernatorial campaigns of Mark White and Bill Clements over White’s handling of the consumer-fraud suit against Trailite. In this article, Snell *627referred to the allegations in the consumer-fraud suit in which then Attorney General White had alleged that Trailite had “defrauded 70 persons by selling them $270,-000 worth of trailers that were never delivered and that company officials knew could never be delivered.” In the very next paragraph Snell wrote: “Ruble Langston, the owner of the majority interest in Trailite, who denies the fraud allegations, supplied Clements’ headquarters with complaints against White’s [attorney general] staff which run the gamut from unethical to incompetent behavior.”

The description in this article of Trailite’s activities, which were alleged by the attorney general to be fraudulent and deceptive, was undoubtedly defamatory to the corporation. That portion of the article which linked Langston to the corporation, as “the owner of the majority interest in Trailite”, was ambiguous in its meaning because it could have conveyed to an ordinary person the meaning that Langston, as the principal owner of the corporation, was responsible for Trailite’s allegedly fraudulent and deceptive activities. See Beaumont Enterprise & Journal, 687 S.W.2d at 730. Thus,, a fact issue existed on what meaning the article would have conveyed to an ordinary person. See id. Therefore, defendants-appellees were not entitled to a summary judgment against Langston on the ground that the October 14 article did not defame him as a matter of law.

In her article on March 2, 1983, which was accompanied by an erroneous headline “Trailer firm sues Eagle for libel”, Snell reported that “Ruble G. Langston, trustee of the Three L Trust which owns Trailite”, had filed a libel suit against the Bryan-College Station Eagle. She reported: “The [libel] action contends the Eagle incorrectly stated that [the] Three L Trust was ‘set up as a sham trust to avoid direct legal [obligations] to unhappy Trailite customers’.” Snell also referred to the allegations in the consumer-fraud suit by stating that “Trail-ite officers took orders for trailers and advance payments, knowing that the company did not have the means to build the trailers.” This article, which connected Langston to Trailite through his trusteeship of the Three L Trust, was ambiguous in its meaning because the article could have conveyed to an ordinary person that Langston, as the trustee of the trust which owned the corporation, was responsible for Trailite’s allegedly fraudulent and deceptive activities. Accordingly, the jury should have determined the meaning which the article would have conveyed to an ordinary person. See id. Defendants-appel-lees were not entitled to a summary judgment against Langston on the ground that the March 2, 1983, article did not defame him as a matter of law. Point four is overruled.

Point five must also be overruled because, contrary to the contentions of defendants-appellees, Langston challenged on appeal the articles of October 14 and 15, 1982, and March 2 and 3, 1983, as a basis for the summary judgment against him. He alleged and argued in his supplemental brief that all of the articles were libelous and not just those published on July 21 and November 9, 1982. Having overruled all points of error in the motion for a rehearing filed by defendants-appellees, their motion is denied.

Defendants-appellees have requested a clarification of the opinion insofar as it remands Langston’s “causes of action” for a trial on the merits. Specifically, they ask that the scope of the remand be clarified with respect to the articles published on October 14 and 15, 1982, and March 2 and 3, 1983. They note that in the opinion on the merits the court “appears to determine implicitly that the articles were defamatory by reviewing the privilege issue seemingly with reference to these articles”, while at the same time stating in the opinion that plaintiffs-appellants “did not specify [in their pleading] how these articles libelled them”.

When a defendant moves for and is granted a summary judgment on the basis of article 5432, the reviewing court must assume that the questioned publication was libelous to the plaintiff. Kelley v. *628Rinkle, 532 S.W.2d 947, 948 (Tex.1976). That is why all of the articles were “implicitly” assumed to be libelous to Langston in considering the argument that defendants-appellees were entitled to a judgment against him as a matter of law on the basis of privilege.

The scope of the remand is limited to the causes of action actually asserted by Lang-ston in the third amended original petition because the trial court could not enter a summary judgment against him on any cause of action that he had not yet plead. Likewise, this court cannot affirm a summary judgment against Langston on an unplead cause of action although, if subsequently asserted on remand, the newly-plead cause of action would clearly be subject to a plea of limitation.

Plaintiffs-appellants attached all eight articles to their third amended original petition as exhibits one through eight. They generally alleged in the pleading that exhibits three through eight, being the articles published on July 21, October 14 and 15, and November 9,1982, and March 2 and 3, 1983, were libelous to them. Exhibits one and two, which were the articles published on June 21 and 23, 1981, were not alleged to be libelous but were attached as “evidence of later malice by repetition in Exhibits 3 through 8.” Although plaintiffs-appellants made relatively specific allegations with respect to the articles published on July 21, October 14 and 15, and November 9, 1982, and March 2,1983, they did not point out how they had been defamed by the article of March 3, 1983. Although the third amended original petition was undoubtedly subject to a special exception because of Langston’s failure to specifically allege, through innuendo or otherwise, how and in what manner he had been defamed by the six articles generally alleged to be libelous, his pleading was nevertheless sufficient to plead a cause of action based on the articles published on July 21, October 14 and 15, and November 9, 1982, and March 2 and 3, 1983. See Bradstreet Co. v. Gill, 72 Tex. 115, 9 S.W. 753, 754-55 (1888). The causes of action based on these six articles are remanded for a trial on the merits.

Defendants-appellees also suggested in their motion for a rehearing that the decision in Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 1046, 43 L.Ed.2d 328 (1975), gave them license to print any allegation in a pleading open to the public in a judicial proceeding, regardless of whether they had knowledge or serious doubts of its falsity. To accept such an argument would be to hold that a newspaper has an absolute, rather than a qualified, privilege under article 5432 to publish allegations in pleadings open to the public in a judicial proceeding. In Cox Broadcasting Corporation, the United States Supreme Court held that “the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection”. 95 S.Ct. at 1047 (emphasis added). The summary-judgment evidence did not conclusively establish that the allegations against Trailite, the Three L Trust and Langston in the consumer-fraud suit were true or substantially true. Thus, defendants-appellees were not entitled to a judgment against Langston on the ground that the allegations were true or substantially true as a matter of law.