Carl Joiner v. Matt Wiggins ( 2024 )

Opinion issued July 23, 2024
In The
Court of Appeals
For The
First District of Texas
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NO. 01-23-00026-CV
———————————
CARL JOINER, Appellant
V.
MATT WIGGINS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case No. 21-CV-2082
MEMORANDUM OPINION
Appellant Carl Joiner sued appellee Matt Wiggins for defamation. Wiggins
subsequently moved for no-evidence summary judgment on the ground that there
was no evidence of falsity or malice, and the trial court granted the motion. On
appeal, Joiner argues that the trial court erred by granting the no-evidence motion
for summary judgment because he raised genuine issues of material fact regarding
both (1) the falsity of the statement at issue and (2) whether Wiggins acted with
actual malice. Because we conclude that Joiner raised a genuine issue of material
fact on both challenged elements, we reverse and remand for further proceedings.
Background
Joiner, the mayor of Kemah, Texas, was the incumbent re-elected to office
in May 2021. Wiggins was also a candidate in the 2021 mayoral election. During
the election, Wiggins created a billboard that stated, “Carl Joiner pleaded guilty to
spending public funds for political advertising” and referenced Texas Ethics
Commission (TEC) case number SC-31605137. He used an identical statement on
other signs.
The TEC case number identified in the billboard involved an ethics
complaint against Joiner that arose while he was mayor of Kemah in connection
with a ballot measure pertaining to the City of Kemah. The TEC issued an “Order
and Agreed Resolution” resolving the ethics complaint (the TEC Order). The TEC
Order recounted the allegations that Joiner “spent or authorized the spending of
public funds for political advertising,” and affirmatively stated that Joiner denied
the allegations. The TEC Order described the ballot measure as determining
“whether to change the city from [its] current Mayor-Council form of government
to a Council-Manager form of government.” The TEC identified the
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“communication at issue” as a newsletter titled “From the Desk of the Mayor” that
the TEC believed “oppose[d] the measure and therefore constitute[d] political
advertising.”
The TEC Order stated that “the [Ethics] Commission determined that there
is credible evidence of a violation of section 255.003(a)1 of the Election Code, a
law administered and enforced by the Commission.” The Order further recognized
that Joiner “acknowledged that the city newsletter at issue involved the use of
public resources such as paper, staff time, city equipment, and postage,” but he
“denied the allegations [of use of public funds for political advertising] and stated
that the communications did not advocate the passage or defeat of the measure.”
The TEC Order further stated, “To resolve and settle this complaint without further
proceedings, the Commission proposed this resolution to [Joiner].” Joiner agreed
to comply with ethics requirements, and the TEC further imposed “a $500 civil
penalty.” However, the TEC Order also contained the following “representation”
by Joiner: “The respondent neither admits nor denies the facts described [in the
order] or the Commission’s findings and conclusions of law described [above], and
consents to the entry of this order and agreed resolution solely for the purpose of
resolving this sworn complaint.”
1
See TEX. ELEC. CODE § 255.003(a) (providing that officer or employee of political
subdivision may not knowingly spend or authorize spending of public funds for
political advertising).
3
Joiner sued Wiggins for defamation in connection with the billboard
statement that he “pleaded guilty” to spending public funds for political
advertising. In his petition, Joiner referenced the TEC Order and asserted that the
billboard statement’s “reference to the TEC finding and how [Joiner] ‘pleaded
guilty’ when compared with the actual TEC finding [is] completely false and
probably untrue.” Joiner asserted that the TEC Order stated that he had denied the
allegations of spending public funds for political advertising. Furthermore, the
TEC Order contained the statement that Joiner “neither admits nor denies the facts
. . . or the Commission’s findings and conclusions of law . . . and consents to entry
of this order and agreed resolutions solely for the purpose of resolving this sworn
complaint.” Joiner thus alleged that Wiggins’s statement that Joiner “pleaded
guilty” to using public funds on political advertising was false because he never
pled guilty and because the language of “pleaded guilty” inferred theft or criminal
liability that did not accurately reflect the TEC Order. Joiner further alleged that
Wiggins made the statements with knowledge of their falsity or with reckless
disregard of the truth, referencing the fact that the billboard and sign recited the
TEC cause number, indicating that Wiggins was aware of the proceedings that had
actually occurred, and the related TEC Order was public information that
contradicted Wiggins’s statement.
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Wiggins moved for no-evidence summary judgment on this claim. Wiggins
asserted that “Joiner cannot prove that the complained of statement [was] false for
purposes of a defamation lawsuit.” Wiggins argued that the gist of the
communication was substantially true. Wiggins further asserted that Joiner could
not prove that Wiggins made the statement with actual malice. Thus, he asserted,
Joiner “has not and cannot produce evidence to satisfy the essential element of
actual malice in this case.”
Joiner responded that there were genuine issues of material fact precluding
summary judgment as to both the falsity of the billboard statement and to Wiggin’s
actual malice. Joiner cited the TEC Order from the case that Wiggins referenced on
the billboard, arguing that the Order expressly stated that he neither admitted nor
denied any of the allegations and only accepted a civil fine as settlement under
agreement. Joiner further asserted that the language of the TEC Order raised some
evidence indicating that Wiggins had actual knowledge that the representation in
the billboard was false, and, thus, “the reckless disregard as to the truth was
intentional and done for political purposes.” Joiner argued that Wiggins
“improperly seeks to escape maliciousness by claiming he had no ‘serious doubts
as to the truth’ about the [billboard statements] and/or [the statements] are an
‘understandable misrepresentation.’” Joiner argues that “there are fact issues about
these claims because Wiggins has stated under oath that he researched the [TEC
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Order] and still claims that the Signs were meant to mean something that they
simply did not say.”
As summary judgment evidence, Joiner included the TEC Order and pictures
of the billboard and other signs printed with the same statement. He also presented
the declaration of Luanna Lathrop, a resident of Kemah who saw the sign and “was
taken aback from seeing this billboard, as [she] was not aware that Carl Joiner had
committed any crimes.” She declared that she researched and “found out that no
crime was committed” and no guilty plea was entered, and she “found this to be
completely different and have a totally different meaning tha[n] what the billboard
said.” She also stated that the billboard had a negative impact on Joiner’s
reputation in the community.
Joiner presented his own affidavit relating his knowledge of the events,
including that he “did not admit any wrong doing, and did not admit the
allegations.” Joiner further averred that Wiggins had refused to remove the
billboard even after Joiner won the mayoral election, and Wiggins also had
“portable signs circulated” at events Joiner attended as mayor, leaving attendees
“to read these signs and believe [he is] a criminal.”
Finally, Joiner also provided the transcript from Wiggins’s deposition. This
included Wiggins’s testimony that he had not read the TEC report “really good”
but he had access to it online and read through it before he put the signs up. When
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asked to identify where the report indicated that Joiner had pled guilty, Wiggins—
who testified that he was an attorney—stated that “Mr. Joiner agreed to pay $500,”
later testifying that the payment of the fine meant Joiner “effectively pleaded
guilty.”
The trial court signed an order granting Wiggins’s no-evidence motion for
summary judgment and dismissing Joiner’s defamation claim with prejudice.2 This
appeal followed.
Summary Judgment on Defamation Claim
In two issues, Joiner argues that the trial court erred in granting summary
judgment because he presented evidence raising a genuine issue of material fact
precluding summary judgment on both the issues of falsity and actual malice.
A. Standard of Review
We review a trial court’s summary judgment ruling de novo. Helena Chem.
Co. v. Cox, 664 S.W.3d 66, 72 (Tex. 2023). After an adequate time for discovery, a
party may move for summary judgment on the ground that there is no evidence of
one or more essential elements of a claim on which an adverse party would bear
the burden of proof at trial. TEX. R. CIV. P. 166a(i). The trial court must grant the
motion unless the nonmovant produces summary judgment evidence raising a
2
The order contained a handwritten notation that “Defendant is precluded from
erecting any future billboards in regards to ‘attack ads’ on Plaintiff.”
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genuine issue of material fact on the challenged elements. Id.; Lightning Oil Co. v.
Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017).
A fact issue exists if more than a scintilla of evidence establishes the
existence of the challenged element. Ford Motor Co. v. Ridgway, 135 S.W.3d 598,
600 (Tex. 2004). More than a scintilla of evidence exists when “the evidence rises
to a level that would enable reasonable and fair-minded people to differ in their
conclusions.” Id. at 601 (quoting Merrell Dow Pharms., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997)). In reviewing a summary judgment ruling, “we
examine the evidence in the light most favorable to the non-moving party,
indulging reasonable inferences and resolving doubts against the party seeking
summary judgment.” Helena Chem. Co., 664 S.W.3d at 73.
B. Defamation Law
The elements of defamation “include (1) the publication of a false statement
of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with
the requisite degree of fault, and (4) damages, in some cases.” In re Lipsky, 460
S.W.3d 579, 593 (Tex. 2015); see Anderson v. Durant, 550 SW.3d 605, 617–18
(Tex. 2018).
The first element of defamation is the publication of a false statement of fact
to a third party. Lipsky, 460 S.W.3d at 593. “Establishing the falsity of an allegedly
defamatory article is not as simple as showing that the article contains a statement
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that falls short of literal truth.” Polk Cnty. Publ’g Co. v. Coleman, 685 S.W.3d 71,
76 (Tex. 2024). “A statement need not be perfectly true; as long as it is
substantially true, it is not false.” Id. (quoting KBMT Operating Co. v. Toledo, 492
S.W.3d 710, 714 (Tex. 2016)). Courts do not assess the substantial truth of a
statement by “merely asking whether one statement plucked from a lengthy article
is true or false”; instead, “the meaning of a publication, and thus whether it is false
and defamatory, depends on a reasonable person’s perception of the entirety of a
publication and not merely on individual statements.” Id. (quoting Turner v. KTRK
Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000)). A statement is substantially true
if its “gist” is correct, regardless of whether it “err[s] in the details.” Id. (citing
Dall. Morning News v. Tatum, 554 S.W.3d 614, 629 (Tex. 2018), and Neely v.
Wilson, 418 S.W.3d 52, 63–64 (Tex. 2013)); see Toledo, 492 S.W.3d at 714
(holding that substantial truth may be measured by whether report “taken as a
whole is more damaging to the plaintiff’s reputation than a truthful [report] would
have been”).
“Identifying the gist of an allegedly defamatory publication is a question of
law for the court.” Coleman, 695 S.W.3d at 76–77; see Turner, 38 S.W.3d at 114
(“Whether a publication is capable of a defamatory meaning is initially a question
for the court.”). We determine a statement’s “gist or meaning by examining how a
person of ordinary intelligence would view it.” Coleman, 695 S.W.3d at 77
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(quoting Neely, 418 S.W.3d at 64). “This inquiry is objective and asks how a
‘hypothetical reasonable reader’ would understand the article, not how any
particular reader actually understood it.” Id. (quoting New Times, Inc. v. Isaacks,
146 S.W.3d 144, 157 (Tex. 2004)).
Regarding the third element, we determine the requisite degree of fault
based on the status of the person allegedly defamed: “A private individual need
only prove negligence, whereas a public figure or official must prove actual
malice.” Lipsky, 460 S.W.3d at 593 (citing WFAA–TV, Inc. v. McLemore, 978
S.W.2d 568, 571 (Tex. 1998)). “Actual malice” in this context means that the
statement was made with knowledge of its falsity or with reckless disregard for its
truth. Lipsky, 460 S.W.3d at 593 (citing Huckabee v. Time Warner Entm’t Co., 19
S.W.3d 413, 420 (Tex.2000)).
“Knowledge of falsehood is a relatively clear standard; reckless disregard is
much less so.” Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002). Reckless
disregard focuses on the defendant’s state of mind; the plaintiff must show that the
defendant “entertained serious doubts as to the truth of his [statement].” Id.(quoting Huckabee, 19 S.W.3d at 420, and St. Amant v. Thompson, 390 U.S. 727,
731 (1968)).
“[A] defendant’s state of mind can—indeed, must usually—be proved by
circumstantial evidence.” McShirley v. Lucas, No. 02-23-00229-CV, 2024 WL
10976512, at *8 (Tex. App.—Fort Worth Mar. 7, 2024, no pet.) (mem. op.) (citing
Miller v. Watkins, No. 02-20-00165-CV, 2021 WL 924843, at *15 (Tex. App.—
Fort Worth Mar. 11, 2021, no pet.) (mem. op.), and quoting Forbes, Inc. v.
Granada Biosciences, Inc., 124 S.W.3d 167, 171 (Tex. 2003) (internal quotation
marks omitted)). For example, evidence that the defendant purposefully avoided
the truth is evidence of actual malice. Id. (citing Forbes, 124 S.W.3d at 171).
Evidence that a story has been fabricated, or discrepancies between the parties’
accounts of events, may also be evidence that the defendant acted with actual
malice. Id. Furthermore, while an injurious motive is not determinative of actual
malice, it is another factor that may be considered. Id.; see Bentley, 94 S.W.3d at
597. “The defendant’s self-serving protestation of sincerity in making the
statement does not negate proof of actual malice.” Bentley, 94 S.W.3d at 596.
C. Analysis
Joiner asserts that he presented sufficient evidence to raise a genuine issue of
material fact as to the elements of falsity and actual malice. We agree.
1. Evidence of falsity
We begin by construing the “gist” or general meaning conveyed by the
billboard statement. See Coleman, 695 S.W.3d at 76–77 (holding that identifying
gist is question of law for court). Considering the billboard statement as a person of
ordinary intelligence would view it, we conclude that the gist of the statement is
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relatively straight-forward. See id. at 77. A “hypothetical reasonable reader” would
interpret the statement that Joiner “pleaded guilty to spending public funds for
political advertising” as meaning the Joiner admitted to misusing public funds for
political advertising. See id.
Joiner presented evidence that, contrary to the billboard statement that he
“pleaded guilty to spending public funds for political advertising,” public records
reflected that he denied the TEC’s allegations against him. The TEC Order further
stated Joiner “neither admit[ted] nor denie[d] the facts described [in the order] or
the Commission’s findings and conclusions of law described [in the order], and
consent[ed] to the entry of this order and agreed resolution solely for the purpose
of resolving this sworn complaint.” In short, this document states that Joiner
denied the allegations but settled the complaint by paying the $500 civil fine. Thus,
Joiner presented evidence that the billboard statement was not literally true.
Wiggins argues that Joiner can present no evidence that the billboard
statement was not substantially true. While we agree that “a statement need not be
perfectly true” and that “as long as it is substantially true, it is not false,” id. at 76,
we conclude that Joiner’s evidence raised a genuine issue of material fact as to
whether the billboard statement was substantially true. Substantial truth may be
measured by whether a statement “is more damaging to the plaintiff’s reputation
than a truthful [statement] would have been.” Toledo, 492 S.W.3d at 714.
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Construing the evidence in the light most favorable to Joiner, the
nonmovant, as we must in a summary-judgment review, we conclude that
reasonable minds could differ as to whether the statement that Joiner “pleaded
guilty to spending public funds for political advertising” is more damaging to his
reputation than a statement that he settled an ethics complaint by paying a civil
fine. See id. (holding that substantial truth may be measured by whether report
“taken as a whole is more damaging to the plaintiff’s reputation than a truthful
[report] would have been”); see also Bentley, 94 S.W.3d at 587 (“If the evidence is
disputed, falsity must be determined by the finder of fact.”).
Furthermore, we are mindful that a statement may be considered defamatory
when facts, whether “literally or substantially true, are published in such a way that
they create a substantially false and defamatory impression by omitting material
facts or juxtaposing facts in a misleading way.” Turner, 38 S.W.3d at 115. Again,
the evidence presented by Joiner in response to Wiggins’s motion for summary
judgment could permit reasonable minds to differ regarding whether the statement
that Joiner “pleaded guilty”—implying criminal liability for misuse of public
funds—created a substantially false and defamatory impression of the actual ethics
proceedings.
We conclude that Joiner presented sufficient evidence raising a question of
fact on the issue of falsity. We therefore sustain Joiner’s first issue.
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2. Evidence of actual malice
Because Joiner is a public figure or official, he was required to provide some
evidence raising a genuine issue of material fact regarding whether Wiggins made
the billboard statement with actual malice. See Lipsky, 460 S.W.3d at 593 (holding
that “actual malice” means that defendant made statement with knowledge of its
falsity or with reckless disregard for its truth).
Joiner presented deposition transcripts indicating that Wiggins was an
attorney and that he was aware of and had read the TEC Order prior to publishing
the billboard statement. We conclude this is some evidence that Wiggins had actual
knowledge that Joiner did not “plead guilty,” but instead denied the ethics
allegations and settled with the TEC to resolve the claims without further
proceedings. See id.
Wiggins argues that Joiner cannot show that Wiggins acted with actual
malice because Wiggins testified, in his deposition testimony, that he believed
paying the $500 fee was the equivalent of pleading guilty. However, a defendant’s
self-serving protestation of sincerity in making the statement does not negate proof
of actual malice. See Bentley, 94 S.W.3d at 596. We further observe that Wiggins’s
state of mind can be proved by circumstantial evidence. See McShirley, 2024 WL
976512, at *8. Thus, Wiggins’s deposition testimony that he did not read the TEC
Order thoroughly enough to learn that Joiner did not plead guilty but instead
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denied the claims, and the discrepancy between what was stated in the TEC Order
and what was published on the billboard, are some evidence that a fact-finder
could consider in determining whether Wiggins acted with actual malice or
reckless disregard for the truth of the statement. See id. (giving as examples of
circumstantial evidence of reckless disregard evidence that defendant purposefully
avoided truth or evidence of discrepancies between parties’ accounts of events may
be evidence with defendant acted with actual malice).
Accordingly, we conclude that Joiner presented sufficient evidence raising a
question of material fact on the issue of actual malice. We therefore sustain
Joiner’s second issue. Because Joiner raised a genuine issue of material fact on
both elements challenged in his no-evidence motion for summary judgment, we
conclude that the trial court erred in granting the motion. See TEX. R. CIV. P.
166a(i); Lightning Oil Co., 520 S.W.3d at 45.
Conclusion
We reverse the order of the trial court granting Wiggins’s motion for
summary judgment and dismissing Joiner’s defamation claim. We remand for
further proceedings.
Richard Hightower
Justice
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.
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