                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                             ________________________

                                  No. 07-12-00527-CV
                             ________________________

                            DARRIN OPAITZ, APPELLANT

                                            V.

             GANNAWAY WEB HOLDINGS, LLC, D/B/A WORLDNOW,
             RAYCOM MEDIA, INC. D/B/A KCBD-TV NEWSCHANNEL 11
                AND JAMES CLARK, INDIVIDUALLY, APPELLEES



                          On Appeal from the 237th District Court
                                  Lubbock County, Texas
              Trial Court No. 2011-556,884-A; Honorable Les Hatch, Presiding


                                    November 18, 2014

                                       OPINION
                   Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Appellant, Darrin Opaitz, challenges the trial court’s order granting summary

judgment in favor of media Appellees, Gannaway Web Holdings, LLC, d/b/a Worldnow,

Raycom Media, Inc., d/b/a KCBD-TV NewsChannel 11 and James Clark, individually,

(collectively KCBD) in his suit for invasion of privacy, defamation by libel, defamation by

libel per quod and declaratory judgment.
                                          BACKGROUND


       Opaitz, a police officer with the City of Lubbock for over seventeen years, was

placed on paid administrative leave on March 5, 2009, amid allegations of sexual

misconduct and an internal affairs investigation.1 Beginning in April 2009 and ending on

May 27, 2010, James Clark, KCBD’s executive producer, pursued the story through a

series of five website articles. Opaitz alleged KCBD’s conduct ruined his reputation,

forcing him to retire early and move to New Mexico. In April 2011, Opaitz sued KCBD

for defamation based on these articles. KCBD moved to dismiss the claims based on

the first four website articles on the basis that those claims were barred by limitations.

The trial court granted the motion to dismiss and the case proceeded on the only

remaining claim based on the website article dated May 27, 2010, hereinafter referred

to as the prosecution statement. That article, in its entirety, provided as follows:


       After Investigation, paid leave, Opaitz not with Lubbock Police

       The Lubbock police officer who was investigated last year by Texas Rangers has
       retired.

       Darrin Opaitz was accused of sexual assault, and while the Texas Rangers took
       witness statements, no charges have been filed. KCBD NewsChannel 11 noticed
       that it was more than a year that Opaitz was placed on paid leave. So, on
       Thursday we did a little checking, and here’s what we found.

       Police say Opaitz retired from the department on January 29, 2010. He had been
       on leave starting May 5th 2009 so that means he was on paid leave for about nine
       months.

       The local office of District Attorney handed off the Texas Rangers case to the
       Texas Attorney General’s Office to act as a special prosecutor.



       1
          In his deposition, Opaitz first testified he was never given a reason for being placed on
administrative leave but later testified he was disciplined for texting on duty.


                                                2
       After a period of discovery, KCBD moved for summary judgment on traditional

and no-evidence grounds. The hybrid motion was supported by deposition excerpts

from Opaitz and Clark and other documentation.          Opaitz filed written opposition to

KCBD’s motion supported by deposition excerpts, his own affidavit and other

documentation. After a hearing, the trial court granted summary judgment in favor of

KCBD, without specifying a ground. The trial court’s order granting summary judgment

also severed Opaitz’s claims against two other media defendants, Walker Broadcasting

& Communications, Ltd. d/b/a/ NEWSRADIO [1420] and Denny Chad Rosson, from

those claims being asserted against KCBD.


       By one issue, Opaitz challenges all grounds in support of the trial court’s

summary judgment. He also presents eight sub-points in which he (1) contends the

summary judgment evidence raised fact issues on every material and necessary

element of his claims and negated any justification, privilege or affirmative defense; the

trial court erred in (2) understanding its role to hold KCBD to a proper burden of proof

on its affirmative defenses, (3) finding him to be a public official because the allegations

were made in a non-public investigation and did not result in an arrest or criminal

charges being filed against him, (4) finding the May 27, 2010 story was privileged as a

matter of law because the investigation into Opaitz’s off-duty conduct did not arise out of

the performance of his duties as a police officer and could not be a matter of public

concern, (5) finding the May 27, 2010 story that referenced the Texas Rangers’ report

was privileged as a matter of law and (6) granting summary judgment and denying his

claim for declaratory relief because it weighed the evidence which invaded the province

of the jury. By sub-point (7), Opaitz asserts the trial court’s summary judgment is not


                                             3
final because it creates irreconcilable conflicts between him and the remaining

defendants, and by his final sub-point (8), he maintains the trial court erred in not ruling

on his objection to KCBD’s factual contentions contained in his last live pleading.


        Among other contentions, KCBD contends (1) Opaitz improperly assigned error,

(2) there was no evidence of actual malice and (3) the judgment does not grant more

relief than requested.       By reply brief, Opaitz responds to KCBD’s arguments and

reiterates his position that material fact issues exist which require reversal of the trial

court’s summary judgment. Opaitz also answers KCBD’s argument that his appellate

issue is multifarious and does not properly assign error on appeal by contending the trial

court’s judgment did not specify the basis of its ruling.2 We affirm the trial court’s order

that Opaitz take nothing on his claims against KCBD.


                                 FINALITY OF SUMMARY JUDGMENT


        In analyzing Opaitz’s issues, we do so in a logical rather than sequential order.

Initially, we address Opaitz’s seventh sub-point by which he questions the finality of the

summary judgment. He argues the trial court’s severance for purposes of this appeal

created a defect in parties in his claim for declaratory judgment.                 He contends the

declaratory judgment action cannot be tried as to the remaining defendants.                        We

disagree.


        After the trial court granted summary judgment, Opaitz and the remaining

defendants filed a motion to abate the proceedings below pending the outcome of this

        2
           See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (allowing a broad point of
error or issue to preserve all potential challenges to a summary judgment).


                                                   4
appeal. The trial court granted the motion and ordered a stay of all discovery, pretrial

deadlines and trial proceedings “until the appeal of Court’s Summary Judgment signed

on August 30, 2012, is final or until a party to the case moves the Court to reinstate or

dismiss the action . . . .” Opaitz concedes in his brief that the trial court properly granted

the abatement order to permit this appeal to proceed.           Moreover, the trial court’s

summary judgment is final for purposes of appeal based on severance of the remaining

parties and claims. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

Consequently, sub-point seven is overruled.


                          FAILURE TO ADDRESS ADDITIONAL CLAIMS


       By his eighth sub-point, Opaitz contends the summary judgment requires

reversal because it grants KCBD more relief than requested, in that it grants KCBD

relief as to claims added after the summary judgment motion was filed. See Lehmann,

39 S.W.3d at 204 (summary judgment is reversible when it fails to address claims timely

added by amendment after the motion was filed).             He asserts KCBD’s summary

judgment motion was not amended to address his subsequent amended petitions

resulting in a judgment on less than the entirety of his case. We disagree. Opaitz’s

subsequent amended petitions did not add new claims—they provided additional facts

alleging the negligence standard as an alternative element to his defamation claims.

Under the facts of this case, KCBD’s motion for summary judgment was sufficient to

address subsequent pleadings. See Smith v. Heard, 980 S.W.2d 693, 697 (Tex. App.—

San Antonio 1998, pet. denied) (“Courts have granted summary judgments on causes

of action not specifically addressed in a movant’s motion if the movant has conclusively

disproven an ultimate fact which is central to all causes of action alleged, or the

                                              5
unaddressed causes of action are derivative of the addressed cause of action.”). Sub-

point eight is overruled.


                                 PUBLIC OFFICIAL STATUS


       By his third and fourth sub-points, Opaitz challenges the trial court’s

determination that he was a public official. He asserts the allegations against him were

made in a non-public investigation, did not result in an arrest or criminal charges being

filed, and his alleged off-duty conduct did not arise out of the performance of his duties

as a police officer and could not be a matter of public concern. Again, we disagree.


       Public official status is a question of law for the court. Neely v. Wilson, 418

S.W.3d 52, 70 (Tex. 2014). In New York Times Co. v. Sullivan, 376 U.S. 254, 279-80,

84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Court established a rule prohibiting a public

official from recovering damages for a defamatory statement relating to his official

conduct unless he could prove the statement was made with actual malice. Rogers v.

Cassidy, 946 S.W.2d 439, 444-45 (Tex. App.—Corpus Christi 1997), disapproved on

other grounds, Huckabee v. Time Warner Entertainment Co., L.P., 19 S.W.3d 413, 423

(Tex. 2000). Several years after Sullivan, the Supreme Court established a minimum

test requirement for determining public official status: “The ‘public official’ designation

applies at the very least to those among the hierarchy of government employees who

have, or appear to the public to have, substantial responsibility for or control over the

conduct of governmental affairs.” Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 15

L.Ed.2d 597 (1966). A public official’s position “must be one which would invite public

scrutiny and discussion of the person holding it, entirely apart from the scrutiny and


                                             6
discussion occasioned by the particular charges in controversy.” Id. at 86 n.13. While

not every public employee is a public official, the rule is not limited to the upper

echelons of government. Villareal v. Harte-Hanks Communications, Inc., 787 S.W.2d

131, 134 (Tex. App.—Corpus Christi 1990, writ denied). “[A]nything which might touch

on an official’s fitness for office is relevant.” Id. (citing Garrison v. Louisiana, 379 U.S.

64, 76-77, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)).


       Police officers and other law enforcement officials are almost always held to be

public officials. See Pardo v. Simons, 148 S.W.3d 181, 189 (Tex. App.—Waco 2004,

no pet.) (police officer) (citing Hailey v. KTBS, Inc., 935 S.W.2d 857, 859-61 (Tex.

App.—Texarkana 1996, no writ) (deputy sheriff)); Times-Mirror Co. v. Harden, 628

S.W.2d 859, 860 (Tex. App.—Eastland 1982, writ ref’d n.r.e.) (Texas Department of

Public Safety undercover narcotics agent); Times Herald Printing Co. v. Bessent, 601

S.W.2d 487, 489 (Tex. Civ. App.—Beaumont 1980, writ dism’d w.o.j.) (Texas

Department of Public Safety officer); McKinley v. Baden, 777 F.2d 1017, 1021 (5th Cir.

La. 1985) (police officer). The public perceives a police officer as an authority figure

entrusted in upholding the law and possesses a legitimate interest in information related

to his ability to follow the law and perform his duty to protect the public. See Morales v.

Ellen, 840 S.W.2d 519, 525 (Tex. App.—El Paso 1992, writ denied). See also Monitor

Patriot Co. v. Roy, 401 U.S. 265, 277, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971) (holding that

a charge of criminal conduct, no matter how remote in time or place, can never be

irrelevant to an official’s fitness for office for purposes of the New York Times rule of

“knowing falsehood or reckless disregard”).       A criminal accusation against a police




                                             7
officer might touch on that officer’s fitness for the position.3               See Foster v. Laredo

Newspapers, 541 S.W.2d 809, 814-15 & n.7 (Tex. 1976) (noting that anything that might

touch on an official’s fitness for office is relevant). Because of the public trust placed in

Opaitz as a police officer, his fitness for that position is one which would invite public

scrutiny and discussion, distinct and apart from the scrutiny and discussion occasioned

by the particular conduct discussed. Accordingly, we conclude the trial court did not err

in holding Opaitz was a public official as a matter of law. Sub-points three and four are

overruled.


                           MERITS CHALLENGE TO SUMMARY JUDGMENT
                          STANDARD OF REVIEW—NO-EVIDENCE MOTION


        Having determined that the trial court did not err in concluding that Opaitz was a

public official for purposes of determining the appropriate burden of proof on his

defamation claim, we turn our attention to the merits of his challenge concerning the

propriety of the trial court’s summary judgment order.                   A no-evidence motion for

summary judgment is essentially a motion for a pretrial directed verdict, and we apply

the same legal sufficiency standard as we apply in reviewing a directed verdict. See

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003). In a no-evidence

summary judgment motion, the movant contends there is no evidence of one or more

essential elements of the claims for which the nonmovant would bear the burden of

proof at trial. TEX. R. CIV. P. 166a(i). Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.

2008). Once the motion is filed, the burden shifts to the nonmovant to present evidence


        3
           Opaitz retired on January 29, 2010, before the May 27, 2010 article was published. However,
his retirement was not so far removed from his position as a police officer to render the article no longer
of public interest. See Rosenblatt, 383 U.S. at 87 n.14.

                                                    8
raising an issue of material fact as to the elements of its cause of action. See Mack

Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The trial court must grant the

motion unless the nonmovant produces more than a scintilla of evidence raising a

genuine issue of material fact on the challenged elements. See Hamilton, 249 S.W.3d

at 426. The nonmoving party is Anot required to marshal its proof; its response need

only point out evidence that raises a fact issue on the challenged elements.@ TEX. R.

CIV. P. 166a(i), Notes and Comments (1997); Hamilton, 249 S.W.3d at 426.


       We review a no-evidence summary judgment for evidence that would enable

reasonable and fair-minded jurors to differ in their conclusions. See City of Keller v.

Wilson, 168 S.W.3d 802, 827 (Tex. 2005). A no-evidence challenge will be sustained

when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to prove a

vital fact, (c) the evidence offered to prove a vital fact is no more than a scintilla, or (d)

the evidence conclusively establishes the opposite of the vital fact. King Ranch, 118

S.W.3d at 751.


       When a no-evidence and traditional motion for summary judgment are filed which

assert the plaintiff has no evidence of an element of its claim and alternatively, that the

movant has conclusively negated that same element, we address the no-evidence

motion first. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). In other

words, we first review the trial court’s summary judgment under the standards of Rule

166a(i) of the Texas Rules of Civil Procedure, and if the nonmovant fails to produce

more than a scintilla of evidence, there is no need to analyze the summary judgment

under the standards of Rule 166a(c). Id.

                                              9
                                         DEFAMATION


       Defamation claims are divided into two categories—defamation per se and

defamation per quod—according to the level of proof required to make them actionable.

KTRK TV, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.—Houston [1st Dist.] 2013,

pet. denied). In defamation per se cases, damages are presumed to flow from the

nature of the defamation itself and specific proof of harm is not generally required. Id. at

689-90. Defamation per quod is actionable only upon allegation and proof of damages.

Id. at 689. Libel, defamation expressed in written form, “tends to injure a living person’s

reputation and thereby expose the person to public hatred, contempt or ridicule, or

financial injury or to impeach any person’s honesty, integrity, virtue, or reputation . . . .”

TEX. CIV. PRAC. & REM. CODE ANN. § 73.001 (West 2011).


       To maintain a claim for defamation, a plaintiff must prove a defendant (1)

published a statement (2) that defamed the plaintiff (3) while either acting with actual

malice if he is a public figure or public official, or negligence if he is a private individual,

regarding the truth of the statement. Neely, 418 S.W.3d at 61 (citing WFAA-TV v.

McLemore, 978 S.W.2d 568, 571 (Tex. 1998)). The burden to prove actual malice lies

with the complainant and it is his obligation to satisfy that burden by clear and

convincing evidence. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 116 (Tex. 2000);

Darby v. New York Times, No. 07-12-00193-CV, 2014 Tex. App. LEXIS 2197, at *17

(Tex. App.—Amarillo, Feb. 26, 2014, pet. filed) (mem. op.). Therefore, because we

have concluded that Opaitz was a public figure, KCBD would be entitled to summary

judgment unless Opaitz presented more than a scintilla of evidence to raise a material

fact issue that KCBD published the prosecution statement with actual malice. In other

                                              10
words, in order to defeat a no-evidence summary judgment on his defamation claim,

Opaitz was required to present at least a scintilla of evidence that KCBD acted with

actual malice when it published the article that allegedly defamed him.


       Actual malice in a defamation case is a term of art.        Pardo, 148 S.W.3d at 186.

Unlike common-law malice, it does not include ill-will, spite or evil motive. Huckabee,

19 S.W.3d at 420) (citing Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989)). To

establish actual malice, a plaintiff must prove the defendant made a statement with

“knowledge of, or reckless disregard for, the falsity.” Waste Mgmt. of Tex., Inc. v. Tex.

Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 158 (Tex. 2014) (emphasis in original);

Freedom Newspapers v. Cantu, 168 S.W.3d 847, 853 (Tex. 2005).


       Knowledge of falsity is a relatively clear standard. Hearst Corp. v. Skeen, 159

S.W.3d 633, 637 (Tex. 2005) (per curiam). Reckless disregard is a subjective standard

and requires evidence that the defendant entertained serious doubts as to the truth of

the article at the time of its publication. Id.


       Proving actual malice carries a high burden for a plaintiff. “A failure to investigate

fully is not evidence of actual malice; a purposeful avoidance of the truth is.” Bentley v.

Bunton, 94 S.W.3d 561, 591 (Tex. 2002).                An understandable misinterpretation of

ambiguous facts does not show actual malice, but improbable assertions and

statements made on information that is obviously dubious may show actual malice. Id.

at 596. “A lack of care or an injurious motive in making a statement is not alone proof of

actual malice, but care and motive are factors to be considered.” Id. Publication of

defamatory material in order to increase profits in the form of a paid advertisement is


                                                  11
insufficient to prove actual malice. New York Times Co., 376 U.S. at 265-66. A media

defendant’s motive in publishing a story cannot provide a sufficient basis for finding

actual malice. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 665,

109 S.Ct. 2678, 105 L.Ed.2d 562 (1989).


       In reviewing the prosecution statement for defamatory content, we begin with the

first sentence which provides “[t]he Lubbock police officer who was investigated last

year by Texas Rangers has retired.” According to the summary judgment evidence,

regardless of whether the investigation was for internal affairs or otherwise, it is true that

the Texas Rangers were involved with the investigation and that Opaitz retired.


       The next sentence provides that Opaitz was “accused of sexual assault” and the

Texas Rangers “took witness statements.” According to the first two pages of a lengthy

report from the Texas Rangers provided to KCBD under the Public Information Act,4

and made a part of KCBD’s summary judgment evidence, two females were interviewed

by Texas Rangers after making allegations that a Lubbock police officer had sexually

assaulted them. The evidence supports this portion of the May 27, 2010 article.


       Next, the article reports that Opaitz had been on paid administrative leave

commencing on “May 5th 2009” and that he retired on January 29, 2010. Documents in

the record show Opaitz was actually placed on paid administrative leave on March 5,

2009, and that he retired on January 29, 2010.              Therefore, the article inaccurately

provides May 5, 2009, instead of March 5 as the date Opaitz was placed on leave.

Such minor inaccuracies do not amount to falsity so long as “the substance, the gist, the


       4
           TEX. GOV’T CODE ANN. § 552.001-.353 (West 2012 and Supp. 2014).

                                                 12
sting, of the libelous charge be justified.” Masson v. New Yorker Magazine, 501 U.S.

496, 517, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991).


       The final sentence of the article which Opaitz challenges as defamatory provides

“[t]he local office of District Attorney handed off the Texas Rangers case to the Texas

Attorney General’s Office to act as a special prosecutor.”         By his affidavit, Opaitz

averred that because “no case was ever filed, no case could ever have been referred to

the Attorney General’s Office.” He asserted KCBD’s article omitted that he retired in

good standing, there was never an offense report and he was never arrested.              His

affidavit provided as follows:


       Just based on the fact that [Lubbock Police Department] and the Texas
       Rangers never arrested me, KCBD should have known the allegations
       were groundless. That un-contradicted fact alone was enough for KCBD
       to know the falsity of what it was representing.

       In his deposition testimony, Clark testified that page two of the Texas Rangers

Report designated the investigation as “criminal” which caused him to believe a crime

was being investigated. He also testified the information he had at the time of the May

27, 2010 article was that the Texas Attorney General was the special prosecutor. Clark

also denied ever knowing or learning that the report belonged to an internal affairs

investigation.


       Opaitz offered conclusory statements unsupported by facts that KCBD published

the article in question with knowledge of its falsity or reckless disregard for its truth. He

has not provided more than a scintilla of evidence to establish that KCBD acted with

actual malice in publishing the prosecution statement. Without more than a scintilla of

evidence of actual malice, Opaitz cannot prevail in his defamation claims against KCBD.

                                             13
Hearst Corp., 159 S.W.3d at 637. Moreover, the “gist” of the article is substantially true.

McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex. 1990). Opaitz’s global challenge to the

trial court’s summary judgment is overruled and consideration of his remaining sub-

points is pretermitted. We conclude the trial court did not err in granting KCBD’s no-

evidence motion for summary judgment.


                                       CONCLUSION


      The trial court’s summary judgment is affirmed.




                                                 Patrick A. Pirtle
                                                     Justice




                                            14
