Affirmed and Opinion filed April 1, =
2008.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-06-00719-CV
____________
RANDOLPH=20
GOSS,=20
Appellant
V.
HOUSTON=20
COMMUNITY NEWSPAPERS AND SARAH MERTINS, =
Appellees
On Appeal from the =
113th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2005-46486
O P I N I=20
O N
Appellant=20
Randolph Goss appeals from the trial court=3Ds order=20
granting summary judgment in favor of appellees Houston Community=20
Newspapers and Sarah Mertins. We affirm.
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bsp; =20
Background
In August=20
2004, the Kingwood Observer, a community newspaper owned by =
Houston=20
Community Newspapers, ran a story written by Sarah Mertins based =
on a news=20
release from the Harris County Sheriff=3Ds=20
Department. The story, entitled ADrag=20
racers arrested by deputy,@ =
stated=20
that Goss and another man had been arrested after a Harris County=20
Sheriff=3Ds Deputy=20
observed that their vehicles appeared to be racing. The =
story=20
further reported that appellant was placed into custody for =
possession of=20
a controlled substance while the other man was charged with racing =
on a=20
highway. Goss denies that he was drag racing, and he claims =
that he=20
had a prescription for the controlled substance the deputy =
found. =20
Goss was never charged with drag racing, and the controlled =
substance=20
charge was later dismissed.
Goss sued=20
appellees for libel,=20
arguing that the information they printed was false and defamatory =
and=20
that they should have conducted an independent investigation to =
reveal all=20
the facts rather than relying on a police news release. =
Appellees=20
moved for summary judgment in two separate motions, one =
traditional and=20
the other no evidence, on the grounds that the story was true and =
not=20
capable of a defamatory meaning, they were not negligent in =
publishing the=20
story, and they are protected by both statutory and common law=20
privileges. The trial court granted both motions without =
specifying=20
the grounds. This appeal followed.
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; =
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bsp; =20
Analysis
Appellees moved for =
summary=20
judgment on both traditional and no evidence grounds. See =
Tex. R. Civ. P.=20
166a(c), 166a(i). To prevail on a traditional motion =
for=20
summary judgment, the movant must show that there is no genuine =
issue of=20
material fact and that he is entitled to judgment as a matter of=20
law. Tex. R. Civ. =
P.=20
166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d =
211, 215=20
(Tex. 2002). A defendant moving for summary judgment must=20
conclusively negate at least one essential element of each of the=20
plaintiff=3Ds causes of action or =
conclusively establish each element of an affirmative =
defense. =20
Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. =
1997);=20
Shirvanian v. DeFrates, 161 S.W.3d 102, 106 (Tex. =
App.CHouston [14th Dist.] =
2004, pet.=20
denied). When we review a summary judgment, we take as true =
all=20
evidence favorable to the non‑movant; we also indulge every =
reasonable=20
inference and resolve any doubts in favor of the =
non‑movant. =20
Grant, 73 S.W.3d at 215. As to a no evidence summary =
judgment=20
motion, the movant must state the specific elements of a cause of =
action=20
for which there is no evidence. Cuyler v. Minns, 60 =
S.W.3d=20
209, 212 (Tex. App.CHouston [14th Dist.] =
2001, pet.=20
denied). If the movant has identified specific elements he =
claims=20
lack evidence, we must then determine de novo whether the =
non‑movant has=20
produced more than a scintilla of probative evidence to raise a =
genuine=20
issue of material fact. Allen v. Connolly, 158 S.W.3d =
61, 64=20
(Tex. App.CHouston [14th Dist.] =
2005, no=20
pet.). When, as here, the trial court does not specify the =
grounds=20
it relied upon in granting the motion, we will affirm if any of =
the=20
grounds are meritorious. Oliphint v. Richards, 167 =
S.W.3d=20
513, 516 (Tex. App.CHouston [14th Dist.] =
2005, pet.=20
denied).
Appellees=20
argue that summary judgment must be affirmed without examining the =
merits=20
because, according to appellees, Goss=3Ds brief=20
fails to challenge all grounds asserted in the traditional summary =
judgment motion and does not mention the no evidence motion at =
all. =20
See de Laurentis v. United Servs. Auto. =
Ass=3Dn, 162=20
S.W.3d 714, 726 (Tex. App.CHouston=20
[14th Dist.] 2005, pets. denied) (stating that when appellant =
failed to=20
negate a summary judgment ground on appeal, court could affirm on =
that=20
basis alone). Although the statement of issues mentions only =
statutory privileges and refers only to the summary judgment =
motion, which=20
was a traditional motion, and not the supplemental motion, which =
was a no=20
evidence motion, the arguments made under those issues in the =
brief at=20
least minimally cover all grounds asserted in both motions. =
Thus, we=20
will consider the merits. See Tittizer v. Union Gas =
Corp.,=20
171 S.W.3d 857, 863 (Tex. 2005) (finding appellate court erred in =
refusing=20
to consider issue referenced in body of argument, even though =
wording of=20
the issues did not include it).
In his=20
first two issues, Goss asserts the trial court erred in granting =
summary=20
judgment. Appellees argue that summary judgment was proper =
based, in=20
part, on the common law fair reporting privilege. When, as =
here, the=20
relevant facts are not disputed and the language is not ambiguous, =
the=20
question of privilege is a matter of law for the court to =
decide. =20
See Dixon v. Sw. Bell Tel. Co., 607 S.W.2d 240, 241 (Tex. =
1980);=20
Richard Rosen, Inc. v. Mendivil, 225 S.W.3d 181, 195 (Tex.=20
App.CEl Paso=20
2005, pet. denied). Section 611 of the Restatement (Second) =
of Torts=20
provides that A[t]he=20
publication of defamatory matter concerning another in a report of =
an=20
official action or proceeding or of a meeting open to the public =
that=20
deals with a matter of public concern is privileged if the report =
is=20
accurate and complete or a fair abridgment of the occurrence=20
reported.@ =20
Freedom Commc=3Dns, Inc.=20
v. Sotelo, No.=20
11-05-00336-CV, 2006 WL 1644602, at *3 (Tex. App.CEastland=20
June 15, 2006, no pet.) (mem. op.); Restatement (Second) of =
Torts=20
' =
611=20
(1977). Official statements from law enforcement, including =
press=20
releases, trigger application of the privilege. See =
Yohe=20
v. Nugent, 321 F.3d 35, 38B39 (1st=20
Cir. 2003) (official statement from police chief); Kennedy v. =
Scripps=20
Howard Broad. Co., 259 F.3d 922, 924 (8th Cir. 2001) (pick-up =
order,=20
missing person report, investigative report); Sotelo, 2006 =
WL=20
1644602, at *1 (press release); Steer v. Lexleon, Inc., 472 =
A.2d=20
1021, 1022 (Md. Ct. Spec. App. 1984) (press release); Restatement (Second) of =
Torts=20
' =
611 cmt.=20
h (arrest report). So long as the publication fairly and =
accurately=20
reports the contents of the law enforcement statement without=20
embellishment, the publication is privileged, even if the =
underlying facts=20
being reported on are untrue or defamatory. See Yohe, =
321=20
F.3d at 43B44;=20
Mathis v. Philadelphia Newspapers, Inc., 455 F. Supp. 406, =
417=20
(E.D. Pa. 1978); Sotelo, 2006 WL 1644602, at *3; =
Steer, 472=20
A.2d at 1026B27; Restatement (Second) of =
Torts=20
' =
611 cmts.=20
a, f. In other words, the accuracy of the publication is =
determined=20
not by comparing it to the actual facts but to the law enforcement =
statement upon which the publication is based. See =
Yohe, 321=20
F.3d at 44; Mathis, 455 F. Supp. at 417; Sotelo, =
2006 WL=20
1644602, at *3; Steer, 472 A.2d at =
1026.
After=20
comparing appellees=3D =
story=20
with the press release in this case, we conclude that the story is =
fair=20
and accurate. Though some of the information is arranged in =
a=20
different order, the story quotes nearly verbatim large portions =
of the=20
press release and fairly summarizes other portions. Goss =
argues that=20
the privilege does not apply here because by relying solely on the =
press=20
release instead of conducting an independent investigation, the =
story was=20
biased and inaccurate because it omitted important facts, such as =
the=20
prescription for his medication and that he was never charged with =
drag=20
racing. However, in reporting on this police action, =
appellees had=20
no duty to investigate. See Yohe, 321 F.3d at 39, 44 =
(finding=20
defendants=3D =
report of=20
police chief=3Ds=20
statements privileged, even though defendants conducted no =
independent=20
investigation and thus did not discover and publish related =
positive=20
information about plaintiff); Lami v. Pulitzer =
Publ=3Dg=20
Co., 723=20
S.W.2d 458, 460 (Mo. Ct. App. 1986) (A[D]efendant=3Ds=20
obligation was to publish a fair and accurate account of the =
[government]=20
record. There was no concomitant duty to investigate the =
truth or=20
the falsity of the information contained in the =
record.@). =20
Rather, they were entitled to rely on official information from =
the=20
police. See Sotelo, 2006 WL 1644602, at *4; =
Steer, 472=20
A.2d at 1027. Goss asserts that appellees forfeited the =
privilege by=20
embellishing the details in the news release, but he provides no =
examples=20
of any such embellishments, and we cannot find any. =20
The story was an accurate report of the news release, and thus =
even if=20
Goss is innocent and the underlying facts are not complete or =
accurate,=20
the publication is privileged. We overrule Goss=3Ds first=20
two issues.
In his=20
third issue, Goss argues the trial court erred in denying his =
motion to=20
strike appellees=3D =
summary=20
judgment evidence. However, the record does not reflect that =
the=20
trial court ever ruled on this objection, and thus he failed to =
preserve=20
any error regarding this evidence. See Am. Med. Techs., =
Inc. v.=20
Miller, 149 S.W.3d 265, 270 n.4 (Tex. App.CHouston=20
[14th Dist.] 2004, no pet.) Even if Goss had preserved this =
issue,=20
we conclude the trial court would not have erred in denying his=20
motion. We review a trial court=3Ds decision=20
to admit or exclude evidence for an abuse of discretion.=20
Interstate Northborough P=3Dship v.=20
State, 66=20
S.W.3d 213, 220 (Tex. 2001); Hooper v. Chittaluru, 222 =
S.W.3d 103,=20
107 (Tex. App.CHouston=20
[14th Dist.] 2006, pets. denied). Portions of =
Goss=3Ds arrest=20
record and file are at issue here. About five months after =
his=20
arrest, Goss successfully moved to have his arrest expunged under =
Chapter=20
55 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. =
Ann. arts.=20
55.01B.05=20
(Vernon 2006). Goss argues that because the expunction =
statute=20
provides that when an expunction order is final, the Ause of the=20
expunged records and files for any purpose is =
prohibited,@ =
id. art. 55.03(1), appellees were prohibited from using =
this=20
information in defending Goss=3Ds=20
lawsuit. We disagree. Assuming a private individual =
and a=20
corporation not named in an expunction order could ever be =
prohibited from=20
using information covered by that order, by bringing this lawsuit=20
regarding his arrest, Goss put the expunged records at issue, and =
thus=20
appellees are entitled to use them. See W.V. v. =
State,=20
669 S.W.2d 376, 379 (Tex. App.CDallas=20
1984, writ ref=3Dd n.r.e.)=20
(noting that plaintiff filing a lawsuit arising out of an expunged =
arrest=20
Anecessarily=20
by his own allegations makes the materials contained in the =
expunged=20
records . . . a matter of public record subject to discovery=20
proceedings@); see=20
also Thomas v. City of Selma, No. SA-06-CA-0119-XR, =
2006 WL=20
2854405, at *3 (W.D. Tex. 2006) (granting motion to produce =
expunged=20
records because plaintiff=3Ds lawsuit=20
made them relevant). The remedy of expungement was never =
intended as=20
a device for a plaintiff in a lawsuit related to the expunged =
matter to=20
control the availability of relevant evidence. See =
W.V., 669=20
S.W.2d at 379. Further, Goss made details of his arrest =
public by=20
filing his lawsuit and summary judgment affidavit, and thus even =
if=20
appellees should not have used the expunged records, Goss suffered =
no=20
harm. We conclude the trial court would not have abused its=20
discretion in denying Goss=3Ds motion=20
to strike, and we overrule his third issue.
In their=20
cross-issue, appellees request this court to sanction Goss for a =
frivolous=20
appeal under Texas Rule of Appellate Procedure 45. =
Whether to=20
grant sanctions for a frivolous appeal is a matter of discretion =
that this=20
court exercises with prudence and caution and only after careful=20
deliberation in truly egregious circumstances. See =
Conseco Fin.=20
Servicing Corp. v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 676 =
(Tex.=20
App.CHouston=20
[14th Dist.] 2002, no pet.). If an appellant=3Ds argument=20
on appeal fails to convince us but has a reasonable basis in law =
and=20
constitutes an informed, good-faith challenge to the trial=20
court=3Ds=20
judgment, sanctions are not appropriate. Id. =
Although=20
Goss=3Ds appeal=20
lacks merit, we conclude that it is not frivolous, and we overrule =
appellees=3D =
cross-issue.
We affirm=20
the trial court=3Ds=20
judgment.
/s/ =20
Leslie B. Yates
Justice
Judgment=20
rendered and Opinion filed April 1, 2008.
Panel=20
consists of Justices Yates, Fowler, and Guzman.
Goss also sued for negligence and =
intentional=20
infliction of emotional distress, but=20
Goss has not challenged the trial court=3Ds summary judgment as to these=20
claims.
Goss argues that the paper =
Ahighlighted@ the story, thereby giving it the =
appearance of an=20
investigative report, which would not be covered by the =
privilege. =20
The story was printed inside a box, and while this may have been =
designed=20
to draw readers=3D attention to the story, we cannot =
conclude that=20
this constitutes an embellishment or otherwise creates an =
ambiguity in the=20
plain language of the story as reporting on arrests in connection =
with a=20
drag racing=20
incident. |