Adi, John v. Houston Chronicle Publishing Company, Johnson, Richard J.V. and Brewer, Steve--Appeal from 11th District Court of Harris County

Affirmed and Opinion filed January 9, 2003

Affirmed and Opinion filed January 9, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-00213-CV

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JOHN ADI, Appellant

V.

HOUSTON CHRONICLE PUBLISHING COMPANY, RICHARD J.V. JOHNSON, AND STEVE BREWER, Appellees

On Appeal from the 11th Judicial District

Harris  County, Texas

Trial Court Cause No. 00-20880

M E M O R A N D U M O P I N I O N

Appellant, John Adi, appeals from a summary judgment in a media libel case. In ten points of error, Adi claims the trial court erred in (1) granting appellees= motion for summary judgment, (2) denying his request for continuance, and (3) denying his motion for new trial. We affirm.

On January 13, 1998, Adi was indicted on a felony charge of Aengaging in organized criminal activity.@ In March 1998, he was arrested and later sentenced to 70 years= imprisonment. On April 23, 1999, the Houston Chronicle published a story written by Steve Brewer on Adi=s conviction. In the article, Brewer incorrectly reported on certain aspects of Adi=s case. Brewer relied upon his coverage of court proceedings, his review of court documents, and his interviews with court participants as the basis for the article.

Adi filed suit against Brewer, the Houston Chronicle, and the Chronicle=s publisher, Richard J. V. Johnson (hereinafter the Chronicle), for libel on April 24, 2000. Adi challenged the news article on the grounds that it was factually incorrect in reporting the following: (1) Adi was arrested in January 1998; (2) Adi owned a Houston medical clinic that filed $39,000 in insurance claims for nonexistent injuries; (3) Adi helped produce the documents needed for the scam; and (4) after co-defendant Reginald Ike told officers how to file bogus claims, they then went to Adi. The Chronicle filed a joint motion for summary judgment that the trial court granted on October 5, 2000. Adi=s motion for new trial was denied by operation of law. This appeal followed.

Summary Judgment

In seven points of error, Adi claims the trial court erred in granting summary judgment.[1] In a traditional motion for summary judgment, the movant carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a; M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). All evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant=s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When a trial court does not specify the grounds upon which it granted summary judgment, the appellate court will affirm the judgment if any one of the theories advanced in the motion is meritorious. Kovar  v. Krampitz,  941 S.W.2d 249, 251 (Tex. App.CHouston [14th Dist.] 1996, no writ).

The Chronicle argues that summary judgment was properly granted because the article is (1) substantially true and (2) privileged. Because we find the Chronicle established as a matter of law that the article was substantially true, it is unnecessary to address the privilege issue. The affirmative defense of truth protects all of the reported statements of which Adi complains.

A showing of substantial truth of allegedly defamatory words defeats a cause of action for defamation. McIlvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990) (holding broadcaster=s establishing the substantial truth of the broadcast as a matter of law defeated plaintiff=s defamation action). Determining substantial truth involves consideration of the Agist@of the article to resolve whether the allegedly defamatory statements are more damaging to appellant=s reputation, in the mind of the average reader, than truthful statements would have been. Id. at 16; see also Lewis v. A. H. Belo Corp., 818 S.W.2d 856, 858 (Tex. App.CFort Worth 1991, writ denied). Any variance with respect to items of secondary importance may be disregarded. Texas Monthly, Inc. v. Transamerican Natural Gas, 7 S.W.3d 801, 806-07 (Tex. App.CHouston [1st Dist.]1999, no pet.) (concluding it would make no difference in the mind of the ordinary reader whether the plaintiff had quit as a matter of conscience or because he was anxious and fearful about the company=s deception to others).

The reported statements are substantially true and do not cause any more damage to Adi=s reputation than literally truthful statements would have. In support of its summary judgment motion, the Chronicle filed (1) the judgment against Adi convicting him of engaging in organized criminal activity; (2) Adi=s indictment that detailed his unlawful exercising of control over checks issued by the Republic Western Insurance Company and naming the related case of Reginald Ike; and (3) Brewer=s affidavit stating his story was based on court proceedings, court documents and interviews with court participants.

Adi was convicted of engaging in organized criminal activity and had his sentence enhanced to 70 years in prison based on three prior convictions for false statements in the acquisition of firearms, dealing in firearms without a license, and making a false statement to a grand jury. The Chronicle article misreported the date of Adi=s arrest and the amount of the false claims he filed. Neither of these errors substantially change the fact that Adi was arrested and convicted for filing false insurance claims. See Fort Worth Press Co. v. Davis, 96 S.W.2d 416, 419 (Tex. Civ. App.CFort Worth 1936, no writ) (holding newspaper editorial which charged that candidate for nomination for county judge had, while mayor, wasted $80,000 of taxpayers= money on useless projects, was substantially true although only $17,500 had been spent on projects). The fact that Adi was arrested and charged with fraud for filing nonexistent claims has significantly more effect on his reputation than the date of the arrest or the precise dollar amount of the fraud. See Reeves v. Western Co. of N. A., 867 S.W.2d 385, 393 (Tex. App.CSan Antonio 1993, no writ) (statement that plaintiff=s blood alcohol reading was 0.4% when it was actually 0.04% was a variance and of secondary importance).

Adi also contends the Chronicle erroneously reported that he helped produce documents used to commit the offense and that police approached him after contacting Reginald Ike, a co-defendant. Again, the gist of the article does no more damage to Adi=s reputation than the true actions of Adi himself. A jury convicted and sentenced him for an insurance fraud scheme, which is exactly what the article reported. Therefore, the trial court properly granted summary judgment for appellees. We overrule points of error four through nine.

Motion for Continuance

In points three and ten, Adi claims the trial court erred in refusing to grant a continuance for the purpose of conducting discovery prior to the summary judgment hearing. The granting or denial of a motion for continuance is within the trial court=s sound discretion, and we will not disturb the court=s action on appeal unless the record discloses a clear abuse of that discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). AThe test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court=s action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles.@ Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Accordingly, we review Adi=s argument not to determine if we would have ruled differently, but to determine if the trial court=s ruling was arbitrary or unreasonable. See id. at 242.

Under Texas Rule of Civil Procedure 166a(g), the trial court may order a continuance to permit discovery when it appears from the affidavits of a party opposing a motion for summary judgment that he cannot present by affidavit facts sufficient to justify his opposition. Tex. R. Civ. P. 166a(g); Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). In deciding whether the trial court abused its discretion in denying a Rule 166a(g) motion for continuance, the following factors may be considered: the length of time the case had been on file; the materiality of the discovery sought; and whether the party seeking the continuance had exercised due diligence in attempting to obtain the discovery sought. Laughlin v. Bergman, 962 S.W.2d 64, 65 (Tex. App.CHouston [1st Dist.] 1998, pet. denied).

Adi filed suit only six months prior to the trial court=s ruling on the motion for continuance and granting of summary judgment. Texas courts have found that denial of a continuance for cases on file for less than eleven months may constitute abuse of discretion. See Laughlin, 962 S.W.2d at 66; Verkin v. Southwest Ctr. One, 784 S.W.2d 92 (Tex. App.CHouston [1st Dist.]1990, writ denied). Adi also exhibited the due diligence necessary for granting a continuance. A party who does not diligently utilize the procedure for discovery can seldom claim reversible error when the trial court refuses a continuance. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1998). Nothing in the record indicates that Adi did not diligently pursue discovery; he served the Chronicle with interrogatories, properly made a motion for disclosure, and requested a continuance when the Chronicle provided no response to his requests.

In his affidavit in opposition to the Chronicle=s motion for summary judgment, Adi argued that he needed information regarding the court participants interviewed by Brewer. As discussed above, Adi claims four factual inaccuracies within the article. The truth or falsity of these matters is not affected by the information sought by Adi. To the contrary, Adi himself, as well as court records, would be a better source of information in challenging the validity of these statements. Adi already knew the amount of false claims filed, whether he had helped produce documents, when he was arrested, and when or if officers interviewed him. The discovery sought would not have assisted in determining the truth or falsity of the statements. Therefore, the trial court did not abuse its discretion in denying Adi=s motion for continuance. Adi=s third and tenth points of error are overruled.

Motion for New Trial

In his second point of error, Adi argues the trial court erred in denying his motion for new trial as being untimely filed. The trial court=s denial of a motion for new trial is reviewed under an abuse of discretion standard. See Superior Packing, Inc. v. Worldwide Leasing & Fin., Inc., 880 S.W.2d 67, 71 (Tex. App.CHouston [14th Dist.] 1994, writ denied). An abuse of discretion occurs only when the trial court reaches a decision that is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam). An appellate court may not substitute its discretion for that of the trial judge. Johnson v. Fourth Ct. of App., 700 S.W.2d 916, 918 (Tex. 1985).

Adi relies upon the trial court=s March 2, 2001 order sustaining a Contest to the Affidavit of Inability to Give Cost Bond of Affiant, in which the court stated that A[a]ffiant [Adi] filed his motion for new trial untimely.@ Adi argues that this reason underlies the trial court=s denial of his motion for new trial as well. However, in a prior ruling, this court required the trial court to issue findings addressing the issue of whether appellant=s motion for new trial was timely filed. As a result, the trial court issued findings of fact on October 8, 2001, stating that Adi timely filed the motion for new trial. Thereafter, Adi=s motion for new trial was denied by operation of law. Tex. R. Civ. P. 329b(c).

Adi=s only argument is that the trial court denied his motion for new trial as being untimely. Because the trial court explicitly found the motion to be timely, and in the absence of any other evidence, we find no abuse of discretion. Adi=s second point of error is overruled.

The trial court=s judgment is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed January 9, 2003.

Panel consists of Justices Yates, Anderson, and Fowler.

[1] Adi=s first point of error argues the Chronicle was not entitled to summary judgment as a matter of law on the affirmative defense of statute of limitations. The Chronicle concedes this point and therefore the court need not address it further.