Nelson v. Pagan

377 S.W.3d 824, 2012 Tex. App. LEXIS 6507, 2012 WL 3206881
CourtCourt of Appeals of Texas
DecidedAugust 8, 2012
DocketNo. 05-09-01380-CV
StatusPublished
Cited by5 cases

This text of 377 S.W.3d 824 (Nelson v. Pagan) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelson v. Pagan, 377 S.W.3d 824, 2012 Tex. App. LEXIS 6507, 2012 WL 3206881 (Tex. Ct. App. 2012).

Opinion

OPINION

Opinion By Justice FRANCIS.

Jeffrey Nelson, Alfred P. Schoelen, Jr., Timothy Stecker, David Kattner, and Walter Clifton brought suit for defamation and other causes of action arising out of an article published in D Magazine. The trial court granted the motion for summary judgment of Albert Pagan a/k/a Nicolo Novello, Shana Lopez, Trey Garrison, D Magazine Partners, LP d/b/a D-Magazine, Allison Media, Inc., Magazine Limited Partners, L.P., and DMAG, Inc. We affirm the trial court’s judgment.

[827]*827At all times relevant to this appeal, appellants were Dallas police officers. The June 2007 issue of D Magazine, first published on May 23, 2007 by appellees D Magazine Partners, LP d/b/a D-Magazine, Allison Media, Inc., Magazine Limited Partners, L.P., and DMAG, Inc. (Media Appellees), included an article by appellee Garrison entitled, “Minus One Good Cop” (Article). The copy of the Article as posted on the magazine’s website was entitled, “How a Rookie Exposed a Ring Inside DPD.”

The “good cop” and “rookie” referenced in the titles was appellee Shanna Lopez, a March 2006 graduate of the Dallas Police Academy who was dismissed from the Dallas Police Department within a year of her graduation. She sought out the Media Appellees to investigate and report on her belief that she was dismissed because, in the words of the Article, she “snitched on” appellant Kattner, her first supervisor. According to the Article, during a conversation with another supervisor, Lopez inadvertently exposed Kattner’s practice of using the “AIS system,” a database of criminal records, to write bogus tickets to “street-level criminals.” After this conversation, Lopez’s performance evaluations “started slipping” and she was ultimately dismissed.1

The Article went on to state “it’s not just Lopez’s word” and described a “rare ‘blue on blue’ complaint” made by appellee Novello, a fellow police officer, against appellants Nelson, Stecker, and Schoelen. Nelson, Stecker, and Schoelen were described in the Article as “Kattner’s buddies” and ‘“old heads’ or veterans,” who engaged in a “phony ticket scheme, abuse of suspects, falsification of evidence, and misuse of federal resources to make bogus arrests.” According to the Article, Katt-ner and “his buddies” used the AIS database to obtain information (such as date of birth and address) on low-level criminals on their beat and would then write them tickets for misdemeanors-pedestrian in the roadway, manifesting for the purpose of prostitution, possession of drug paraphernalia. The officers would put on the tickets “refused to sign” or “signed at large.” The tickets were mailed, but because the criminals were for the most part transient, they rarely received them, which led to arrest warrants and ultimately bigger activity numbers for the arresting officers. That was important because, according to the Article, Dallas police are evaluated on the basis of their daily activity reports and accrue one point for each activity. The better an officer’s numbers, the more quickly he or she advanced. The Article alleged the officers found a way to “game” the activity points system by using the AIS database to write bogus tickets to unknowing suspects.

Appellee Novello was quoted at length in the Article as “the only cop willing to talk on the record” about these practices. The Article reported that “Novello ... says their tactics go a lot further than just writing bogus tickets and signing them at large.” Novello said the officers “detain these people and manufacture the reasons.” According to Novello, they generated “activity numbers on the backs of the disenfranchised — the whores, the street-level drug users, the people no one cares about. Meanwhile, there’s real crime happening out there. But they just get off on abusing these women. These guys take your personhood. They keep you perpetually dirty.” The Article went on to explain that Novello’s complaint was being [828]*828investigated by “[a] special five-lieutenant panel, along with the Internal Affairs and Public Integrity departments.” The Article concludes with a discussion of Lopez’s unsuccessful efforts to obtain another job in law enforcement, as well as her desire to be vindicated, “to let them know that they can’t do this and get away with it.”

Other than the Article, the subject matter was put out to the public in other ways. On May 30, 2007, Garrison was interviewed on KRLD radio. He urged listeners to purchase a copy of the June 2007 issue of D Magazine containing his article, and made additional statements critical of appellants. Appellees published additional information on their blog, “Front Burner.” Appellants complain of fourteen blog posts between May 30, 2007 and July 7, 2008 by Garrison or by D Magazine editors Tim Rogers and Eric Celeste. On December 17, 2007, for example, Garrison published a post entitled, “DMN Finally Figures out Fake Ticket Scheme.” Garrison included a link to the Article as well as a summary of his “story on a cabal of dirty DPD cops who were writing phony tickets, making people sign blank tickets, and making bogus arrests.” He criticized the Dallas Morning News for failing to “understand the full extent of what was going on” for six months after the Article appeared, as well as failing to give D Magazine credit for the original story. The blog post included the above-quoted paragraph from the Article about “Kattner and his buddies.” On December 18, 2007, Garrison followed up with a post entitled, “Ticket Scheme Cops Facing Termination?” reporting that “[w]e’re hearing from a number of sources” that Nelson, Stecker, and Schoelen “are scheduled to be fired today.” The post included an update stating that disciplinary proceedings would not take place until after “a special hearing set for Jan. 8.” The update concluded, “Recording to a separate source, the assistant chief in charge of the matter is/was recommending termination.” This post also included a link to the Article. Subsequent posts announced the firings of Nelson and Schoelen, the ten-day suspension of Stecker, Lopez’s readmission to the police academy, and the overturning of Clifton’s five-day suspension.

Appellants Nelson, Schoelen, Stecker, and Kattner brought suit on May 30, 2008, alleging claims for defamation, tortious interference with employment, and intentional infliction of emotional distress. Appellant Clifton joined the suit as a plaintiff on July 11, 2008. Appellees filed a motion for summary judgment asserting that (1) appellants’ claims based on statements made before May 30, 2007 were barred by the one-year statute of limitations; (2) the claims were barred because appellants were public officials and the statements were not made with actual malice; (3) the statements were based on information contained in public records; (4) claims against the Media Appellees were barred by section 73.002 of the Texas Civil Practice and Remedies Code; (5) the factual statements made were true, and the non-factual statements were non-actionable opinions; and (6) claims for intentional infliction of emotional distress and tortious interference with employment were barred as a matter of law. The trial court granted the motion on August 14, 2009, without specifying the grounds.

Appellants raise three issues on appeal. First, they contend the trial court erred in denying their motion for continuance. Second, they maintain the trial court erred by failing to sustain their objections to the summary judgment affidavit of Trey Garrison.

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Bluebook (online)
377 S.W.3d 824, 2012 Tex. App. LEXIS 6507, 2012 WL 3206881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-pagan-texapp-2012.