## IN THE SUPREME COURT O F TEX AS

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### W A D E 

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### K L E N T Z M A N A N D 

### C A R T E R 

### P U B L IC A T IO N S 

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F I R S T D I S T R I C T O F T E X A S

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C H IE F J U S T I C E H E C H T filed a dissenting opinion, in whic h J U S T IC E G R E E N , J U S T IC E W IL L E T T , and J U S T I C E B R O W N joined.
The jury awa

rded Wade Br ady $30,000 for past injury to his reputation and $20,000 for past mental ang uish. There is no evidenc e to support either amount, and the Court’s contra ry view would be troubling in a

ny case . But this is not a

ny case . This is a suit ag ainst media defe ndants for public speec h. Rece ntly , in W

aste Managem ent of Texas, Inc. v. T exas Disposal Systems Landf ill, Inc. , a defa mation case ag ainst a private party , we e x plained:

The damag es issue is one of constitutional dimension. I n Gertz [ v. R obert W elch, Inc. , 418 U.S. 323, 349 (1974)], the Supreme Court cautioned that “[t] he larg ely uncontrolled discretion of juries to awa rd dama ges wher e there is no loss unnece ssari l y co m p ounds the potential of any sy stem of liability for defa matory falsehood to inhibit the vigor ous exercise of F irst Amendment fre edoms.”. . . We held [i n Bentley v. Bunton ] that the First Amen d m en t require s

appellate revie w of non-ec onomic damag e awa rds, beca use any rec overy should only compensate the plaintiff for actua l injuries and not be a disguised disapproval of the defe ndant. Bentley stated: “Our law presumes that statements that are defa matory per se injure the victim’s reputation and entitle him to rec o v er gen er al damag es, including damag es for loss of reputat i o n and mental ang uish.” Even while rec og nizi ng that noneconomic damag es cannot, by their nature , be deter mined with m at hematica l prec ision and that juries must “have some latitude in awa rding such damag es,” we wer e equally clea r that such damag es are not immune from noevidenc e review on appea l. We held that the evidence must be lega lly sufficie nt as to both the exi stence and the amount of such damag es, that “[j] uries ca nnot simpl y pick a number and put it in the blank,” and that instead t he amount must fairly and rea sonably

compensate the plaintiff f or his injury
. 1 Her e is all the evide nce in the r ecor d reg ardingany injury to Wade’s re putation.

• Wade’s father testified:

Q No w, h av e y ou located any people in the community that had a neg ative impression of Wade a fter this ar ticle? A Yes. * * * Q Okay
. So did y ou come to f ind out that there was at least one person that thought poor ly

of Wade a fter this ar

ticle? A Yes. * * * Q Okay . Tell me about that. A There was an individual by the name of Clarenc e Merc er. He was a n older g entleman who lives in Richmond.

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. 2Q Did y ou know him? A No. I

had neve r met him.

• Sheriff Wright testified that Wade worke d at Speedwa y Shirts & Signs, a

n adver tising and printing business owned by Caleb and Kelly Bur ke, that had a contra ct to put depar tment deca ls on its patrol car s. Wright testified:

Q And did y ou rec eive a call from the owner s of Speedwa y Shirts & Signs within a day

or so of whe n this article appe are d in the paper ? A Idid rec eive a

call fr om Caleb Bur

ke. I cannot g ive y ou the time. Q Okay . Was it after this article ? A Yes. Q An d [] y ou may not be able to g ive me a prec ise time, but was i t relatively close to the time that this article c ame up? A Yes, it was c lose. Q So day s, may

b e a week, but cer

tainly not months. Would you ag ree with that? A No. I

would say

day s. * * * Q Okay
. Wit hout telling me what the Bur kes told y ou, did y ou meet with the Bur kes beca use of their invitation, or did y ou call the Bur kes to meet with them? A Imet at their invitation. * * * Q Ba sed on y our obser vation, wer e the B urkes c oncer ned? A They

wer e conc erne d. 3Q Did the conce rn, based on y our observation of them, have something

to do with this article ? * * * A They

did—they

wer e conc erne d. Q About this article? A Ex actly
. Q And the B urkes ha d a contr act with the c ounty at the time, cor

rec t? A That’s c orre ct. Q And this kid, who is so unruly and intox icated, w orked f or them? A That’s c orre ct. Q Okay . And [] sometime that day , was Wade a sked to resig n? A I ' m not sure. I

don’t know about that. Q Well, let me ask it thi s way : Did Wade resign that day ? A I think—I don’t know if he resig ned that day or n o t ; but I think, ultimately , he did re sign. B ut I ' m not sure about the date. Q Okay
. Did Mr. Brady have another job lin ed up when he was asked to resig n? Do y ou know? A Idon’t know. * * * Q Okay
. After y ou spo k e with—did y ou tell the Bur kes not to worry , their contra ct was sa fe? A Idid tell them that, y es.

4Q Okay
. Did y ou tell the Burkes, “Even if y ou appea r i n t h e p ap er for employ ing this kid, [] y our contra ct is safe ”? Did y ou say any thing like that? A Pretty

much what I

said. Q Okay
. And di d M r. Br ad y —did he end up resig ning sometime afte r that? A Yes.

• And Wade testified:

Q Do y ou know that other pe ople wer e talking about the ar ticle? A Yes. Q How did y ou find that out? A Well, I g uess the first time that I rea lly found out about it was whe n my boss asked me to quit my job. Q Okay . Eventually

y ou came back to wor

k for that c ompany , rig ht? A Yes. Q Okay . What about y our fr iends? A My friends talked about it. They knew i t wa s n’t true beca use they know me. * * * Q L et me ask y ou this question: D id y our friends tell y ou any thing that led y ou to believe that it was a ffe cting y our re putation? A Yes.

5Q Okay
. And without g ett ing to the specific substance of what the

conver sations were by

other pe ople, what did y our fr iends tell y ou, in ge nera l? A The article makes me look like a criminal and my dad g ets me out of trouble. That is absolutely

all the evidenc e ther e is. Wade’s fathe r di d n o t testify that any one in the community had a neg ative impression of Wade because of the article
. He stated only that an older g entleman he had never met thought poorly of W ad e a

f t er the article. Post hoc is not propter hoc
. Wright t estified that Wade’s employ er was
conce rned that the article might aff ect its contra ct with the sheriff ’s depar tment, but he assure d them it would not. W rig ht did not know when or why Wade resigne d from his job there , or whe ther his resig nation was related to his employ er’ s conce rns. Wade himself did not testify that he was asked to quit his job because of the article. And i n fac t, Wade t estified that he returned to wor k with the
same employ er. Neither Wade, nor his fathe r, nor any one else testified that Wade’s reputation was damag ed on acc ount of the article
. One cannot fairly infer that Wade’s reputa tion was injured at all, let alone on acc ount of the article
. I f any thing, even assuming that the article was related to Wade’s being asked to quit his job, he returne d to the same job, indicating that his reputation was not injured. This was no evide nce that Wade’s re putation suffer ed in any way , and ce rtainly

no evidenc e of an injury for whic h $30,000 would be re asonable compensation. Her e is all the ev i d en ce in the rec ord reg arding Wade’s mental ang uish. Wade’s pare nts testified that Wade has “alwa y s been very quiet”, an “introver t” who “just sort of stay s to himself” and “doesn’ t talk much”. His mother testified that the article “bother ed him a lot, he was withdrawn, stay ed to himself, stay ed around the house, put on weig ht, and had some weird drea ms;” “he seeme d 6depre ssed and withdrawn.” His fathe r testified that he “starte d spending more time in his room, just

wouldn’t talk, and [was] somewhat antisocial.” A nd here is the total of Wade’s testimony :

Q Now, when I asked y ou [at y our deposition] in 2004 if you reme mber any thing that cause d y ou mental ang uish, y ou said, “Not at this time. I need more time to think about it .” Do y ou rec all that? A Yes. Q This is a y ear and a half afte r the article , y ou neede d m o re t i m e to think about what was c ausing y our mental a ng uish? A Yes. This a

rticle actua lly aff

ecte d me until about five y ear s ag o, and Icould re ally

look back on it. Q Okay
. You h aven’t seen any psy cholog ist, doctor, counselor, or any thing a bout mental anguish? A No. Q So would it be fair to say it has not substantially interrupted y our daily routine? A That’s not true. Q You believe it has? A Yes. Q But y ou still haven’ t gone to see a ny body about it? A No. I t doesn’t re ally aff ect me a ny more, not like it did. Q Well, if somebody could have helped y ou, don’t y ou think it was y our obligation to go out and try to miti g ate these damag es? A Well, I just—I ’m not the kind of per son to do that.

7Q Okay
. A Iwould rathe r stay to my self. Q All rig ht. So y ou didn’t do any thing to try

to help the situation? A No. I

hid. Ag ain, that is absolutely all the evidence there is. Ther e wa s no testimony reg ardingWade’s daily routine, whe ther or how

it was aff ecte d, or whe ther or how

any disruption related to the a rticle. I n Servic e Corp. International v. Guerra , we state d: Gene rally , an awa

rd of mental ang uish damag es must be supported by direc t evidenc e that t h e n at u re, duration and sever ity of mental ang uish was sufficie nt to cause , and cause d, either a substantial disruption in the plaintiff’s daily routine or a high de g ree of mental pa in and distress. 2 There is no such evidence i n t h i s re co rd. To the contra ry , the evidenc e is that Wade, shy and introverted be fore the ar

ticle, was shy

and introver

ted af ter the a rticle. I f this wer e a slip-and-fa ll case , there would be no evidenc e of compensa ble mental ang uish. But it is not. This case nece ssarily involves the media defe ndants’ exercise of First Amendment rig hts. J uries in defa

mation case s are not char g ed with protec ting those rig hts in awa rding damag es. That responsibility belong s to the courts revie wing the evidenc e to support jury finding s. The Court notes, but does not take se riously , that responsibility in this case.

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. 2 8As the Court acknow ledg es, Wade does not argue t h at the article was defa matory per se, entitling him to nominal d am age s . T h e media defe ndants are entitled to rendition of judgme nt in their fa vor. B eca use the Court disag ree s, Irespe ctfully dissent.

Nathan L . Hec ht Chief J ustice Opinion delivere d: J anuar y 27, 2017

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