Dolcefino v. Turner

Full title: Wayne DOLCEFINO and KTRK Television, Inc., Appellants, v. Sylvester…

Court: Court of Appeals of Texas, Houston, Fourteenth District

Date published: Mar 25, 1999


Turner is a Harvard-educated attorney, licensed to practice in Texas. During the events at issue in this suit, he was a name partner in the Houston law firm of Barnes, Morse Turner. In late 1985, his life-long friend, Dwight Thomas, introduced him to Sylvester Foster, who had been a male model and was the owner of several beauty salons and a male modeling studio in Houston. In May of 1986, Turner began drafting Foster’s will, in which Foster appointed Thomas executor of his estate. The will was completed and ready to be executed the week of June 16, 1986, and Foster executed the will on June 19, 1986. Turner was not present and one of his law partners handled the execution of the will.

Just days later, Turner learned Foster had apparently fallen overboard during a sailing trip and was presumed to have drowned on June 22, 1986. No body was found. On June 28, 1986, Foster’s father, Clinton Foster, and Thomas, met with Turner and asked that Turner probate the Foster will. In July, Turner notified various life insurance companies of Foster’s death. On August 13, 1986, the U.S. Coast Guard issued a formal report, concluding that Foster was “presumed dead and lost at sea.” Turner applied in Harris County to probate the will on November 21, 1986. On December 15, 1986, Prudential Insurance Company intervened in the probate proceeding and presented evidence that Foster had faked his death. The parties then undertook substantial discovery, including deposition testimony, in the contested probate proceeding.



Even if we disregard Dolcefino’s testimony concerning his belief in the truth of the statements in the broadcasts, as the jury must have done, we find no clear and convincing evidence to support a finding that he did not believe the statements were true or that he entertained serious doubts about the truth of the statements. In short, there is no evidence of an intent to avoid life’s truth. See Harte-Hanks, 491 U.S. at 692, 109 S.Ct. 2678. We hold the record does not contain clear and convincing evidence to support the jury’s finding of actual malice, as alleged in the appellants’ sixth issue.

In the absence of actual malice, the judgment cannot stand, and we need not address the appellants’ remaining issues. We reverse the judgment of the trial court and render judgment that Turner took nothing.

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