8/8/2019 Encounter v. Royall Brief http://slidepdf.com/reader/full/encounter-v-royall-brief 1/220 APPELLANTS REQUEST ORAL ARGUMENT 05-09-01503-CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS Dallas, Texas CARLA T. MAIN and ENCOUNTER FOR CULTURE AND EDUCATION, INC., DefendantsAppellants v. H. WALKER ROYALL, PlaintiffAppellee, On Accelerated Appeal From The 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-08-13480-B Honorable Carlos Cortez Presiding APPELLANTS BRIEF Matthew R. Miller (TX Bar No. 24046444) Wesley Hottot (TX Bar No. 24063851) Institute for Justice Texas Chapter 816 Congress Avenue, Suite 960 Austin, TX 78701 (512) 480-5936 (512) 480-5937 (fax) Dana Berliner (DC Bar No. 447686)* Institute for Justice 901 N. Glebe Road, Suite 900 Arlington, VA 22203 (703) 682-9320 (703) 682-9321 (fax) *Admitted pro hac vice John J. Little (TX Bar No. 12424230) Megan Dredla (TX Bar No. 24050530) Little Pedersen Fankhauser LLP 901 Main Street, Suite 4110 Dallas, TX 75202 (214) 573-2300 (214) 573-2323 (fax) COUNSEL FOR APPELLANTS CARLA T. MAIN AND ENCOUNTER FOR CULTURE AND EDUCATION, INC.
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IN THE COURT OF APPEALSFOR THE FIFTH DISTRICT OF TEXAS
Dallas, Texas
CARLA T. MAIN and ENCOUNTER FOR CULTURE AND EDUCATION, INC.,DefendantsAppellants
v.
H. WALKER ROYALL,
PlaintiffAppellee,
On Accelerated Appeal From The 44th Judicial District CourtDallas County, Texas
Trial Court Cause No. DC-08-13480-BHonorable Carlos Cortez Presiding
APPELLANTS BRIEF
Matthew R. Miller (TX Bar No. 24046444) Wesley Hottot (TX Bar No. 24063851)Institute for Justice Texas Chapter816 Congress Avenue, Suite 960 Austin, TX 78701(512) 480-5936(512) 480-5937 (fax)
Dana Berliner (DC Bar No. 447686)*
Institute for Justice901 N. Glebe Road, Suite 900 Arlington, VA 22203(703) 682-9320(703) 682-9321 (fax)
*Admitted pro hac vice
John J. Little (TX Bar No. 12424230)Megan Dredla (TX Bar No. 24050530)Little Pedersen Fankhauser LLP901 Main Street, Suite 4110Dallas, TX 75202(214) 573-2300(214) 573-2323 (fax)
COUNSEL FOR APPELLANTSCARLA T. MAIN ANDENCOUNTER FOR CULTURE
and Encounter for Culture and Education, Inc.c/o Counsel of RecordMatthew R. Miller (TX Bar No. 24046444) Wesley Hottot (TX Bar No. 24063851)Institute for Justice Texas Chapter816 Congress Avenue, Suite 960 Austin, TX 78701
Dana Berliner (DC Bar No. 447686)*Institute for Justice901 N. Glebe Road, Suite 900 Arlington, VA 22203
John J. Little (TX Bar No. 12424230)Megan Dredla (TX Bar No. 24050530)Little Pedersen Fankhauser LLP901 Main Street, Suite 4110Dallas, TX 75202
*Admitted pro hac vice
APPELLEE:
H. Walker Royallc/o Counsel of RecordRobert B. Gilbreath (TX Bar No. 07904620)Hawkins, Parnell & Thackston, LLP4514 Cole Avenue, Suite 500Dallas, TX 75205
Patrick Zummo (TX Bar No. 22293450)3900 Essex Lane, Suite 800
1. Is Appellee H. Walker Royall a limited-purpose public figure concerning his voluntary agreement with the city of Freeport, Texas, to develop a yachtmarina by, in part, having the city take land from his neighbor througheminent domain for use in the marina?
2. Are statements about the Freeport marina project, eminent domain,constitutional rights, and government action statements about matters of public concern?
3. Are Appellants Carla T. Main and Encounter for Culture and Education, Inc.
media defendants?
Issues from No-Evidence Motion for Summary Judgment
4. Did Appellee present more than a scintilla of evidence that any of thesupposedly defamatory statements or the gist of Bulldozed meets all four of thefollowing criteria:
a. is a verifiable statement of fact;
b. is false or not substantially true;
c. is of and concerning Appellee; and
d. is capable of conveying a defamatory meaning about Appellee?
5. Did the trial court err in overruling Appellants objections to evidence offeredin support of Appellees response to Appellants no-evidence motion forsummary judgment?
6. Did Appellee present more than a scintilla of evidence that Appellantsaided, abetted, financed, authorized, and/or ratified the defamatory speech of book reviewer Mark Lardas?
Statement of Facts..................................................................................................................................1
Summary of the Argument ...................................................................................................................3
I. Standard of Review. .....................................................................................................5
II. Plaintiff Bears the Burden of Proving Falsity. .........................................................5
Issue No. 1 Restated: Were Appellants entitled to summary judgmentthat Royall was a limited-purpose public figure with respect to his voluntary participation in the city of Freeports plan to acquire private property through eminent domain so that Royall could use that property inhis marina development?..........................................................................................................6
A. Royall is a limited-purpose public figure......................................................6
Public Figure Factor 1: The Freeport marina project explodedinto a significant public controversy
before Bulldozed was published. ..................7
a. The project was the subject of local andstatewide discussion. ..............................................................7
b. The impact of the controversy would be widely felt.. ...........................................................................................8
c. The proper inquiry is whether Royall was alimited-purpose public figure at the time Bulldozed
was published in 2007............................................................9
Public Figure Factor 2: Royall played much more than a trivialor tangential role in creating thecontroversy...................................................10
Public Figure Factor 3: The supposedly defamatory statements were about the controversy which Royall voluntarily helped create............................12
Issues No. 2 and 3 Restated: Were Appellants entitled to summary judgmentthat the statements Royall challengesabout the Freeport marina project,eminent domain, the constitution, and government actionstatements madeby media defendants about matters of public concern?...........................................12
B. Royall also bears the burden of proving falsity because theallegedly defamatory statements address matters of publicconcern and are published by media defendants......................................12
1. The allegedly defamatory statements were about mattersof public concern. .............................................................................13
2. Appellants are media defendants....................................................15
Issues No. 4 and 5 Restated: In response to Appellants no-evidence summary judgment motion, did Royall offer competent summary judgment evidenceas to each element that he must prove in order to establish his claim fordefamation? ..............................................................................................................................15
III. The Trial Court Erred Denying Summary Judgment Because
There Is No Evidence Appellants Wrote a Single Defamatory Statement About Royall.............................................................................................15
A. Royall must offer competent evidence as to each of fourindependent elements to survive Appellants motion. ............................18
1. Most of the statements cannot be defamatory because they are not verifiable assertions of fact. ...............................................18
2. A statement can defame a person only if it is of and
concerning him; most of the statements at issue are notabout Royall at all. .............................................................................21
3. Most of the statements relied upon are not capable of defamatory meaning because they are not specific andoffensive statements about Royall..................................................23
4. Royall has failed to show that any statement is false. .................24
B. Five pieces of Royalls evidence were inadmissible hearsay. ..................25
C. Appellants are entitled to summary judgment as to those pagesthat Royall failed to mention and statements that Royallrefused to identify. .........................................................................................26
IV. None of the Specific Statements Identified by Royall Defame Him.................27
A. The American Lust for Land does not defame Royall. .......................28
B. Calling a development agreement a risky sweetheart deal is
not defamatory. ..............................................................................................28
C. Calling a public-private partnership an unholy alliance betweencity politicians and avaricious developers is not defamatory................31
D. Rhetorically equating eminent domain with theft is notdefamatory.......................................................................................................33
E. Talking about the abuse of eminent domain is not defamation. ...........34
F. Talking about the anticipated effect of the Freeport marina project
on river navigation and the anticipated effect on the Goresbusinesses does not defame Royall.............................................................37
G. Statements about Royalls positions and companies are notdefamatory.......................................................................................................41
H. Saying the city approached Royall about the project is notdefamatory.......................................................................................................42
I. Saying there was no competitive bidding for the project is not
J. He seemed to be calling on behalf of Walker Royall is notdefamatory.......................................................................................................43
V. Royall Has Produced No Evidence of a Defamatory Gist of Bulldozed . .......................................................................................................................44
A. Royall has not brought a proper gist claim............................................44
B. Royalls gist claim improperly objects to unverifiable opinion,not implied facts. ............................................................................................45
C. Royall has presented no evidence that the gist of Bulldozed isfalse...................................................................................................................48
Issue No. 6 Restated: In response to Appellants no-evidence summary judgment motion, did Royall offer competent summary judgment evidence
that Appellants aided, abetted or ratified allegedly defamatory speech by Mark Lardas? ............................................................................................................................48
VI. Royall Produced No Evidence That Appellants Aided, Abetted, or RatifiedDefamation in Mark Lardas Book Review of Bulldozed .......................................48
Associated Press v. Boyd ,No. 05-04-01172-CV, 2005 Tex. App. LEXIS 3715(Tex. App.Dallas May 16, 2005, no pet.) (mem. op.)....................................................45
BE & K Constr. Co. v. NLRB,536 U.S. 516 (2002) .................................................................................................................12
Bose Corp. v. Consumers Union of U.S., Inc.,466 U.S. 485 (1984) .................................................................................................................16
City of San Diego v. Roe ,543 U.S. 77 (2004) ...................................................................................................................13
Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc.,956 S.W.2d 562 (Tex. App.Houston [14th Dist.] 1997, pet. denied).........................26
Gertz v. Robert Welch, Inc.,418 U.S. 323 (1974) .................................................................................................................19
Greenbelt Coop. Publg Assn v. Bresler ,398 U.S. 6 (1970) .....................................................................................................................33
Guilford Transp. Indus., Inc. v. Wilner ,760 A.2d 580 (D.C. 2000) ...............................................................................................28, 33
Hadlock v. Tex. Christian Univ.,No. 2-07-290-CV, 2009 Tex. App. LEXIS 1330(Tex. App.Fort Worth Feb. 26, 2009, pet. denied) (mem. op.)...................................29
Harvest House Publishers v. Local Church ,190 S.W.3d 204 (Tex. App.Houston [1st Dist.] 2006, pet. denied)..................... 15, 22
Hays County Water Planning Pship v. Hays County ,41 S.W.3d 174 (Tex. App.Austin 2001, pet. denied).....................................................13
Hirschkop v. Snead ,594 F.2d 356 (4th Cir. 1979)..................................................................................................13
Holloway v. Tex. Elec. Util. Constr., Ltd.,282 S.W.3d 207 (Tex. App.Tyler 2009, no pet.) ............................................................27
Kelo v. City of New London ,545 U.S. 469 (2005) ...................................................................................................................1
King Ranch, Inc. v. Chapman ,118 S.W.3d 742 (Tex. 2003)............................................................................................15, 16
Kirch v. Liberty Media Corp.,449 F.3d 388 (2d Cir. 2006) ...................................................................................................21
Klager v. Worthing ,966 S.W.2d 77 (Tex. App.San Antonio 1996, writ denied)..........................................25
Lear Siegler, Inc. v. Perez ,819 S.W.2d 470 (Tex. 1991).....................................................................................................5
Levinskys, Inc. v. Wal-Mart Stores, Inc.,127 F.3d 122 (1st Cir. 1997) ..................................................................................................24
Liles v. Finstad ,No. 01-94-00258-CV, 1995 Tex. App. LEXIS 1719(Tex. App.Houston [1st Dist.] Aug. 3, 1995, writ denied)...........................................47
Little v. Breland ,93 F.3d 755 (11th Cir. 1996).......................................................................................9, 10, 11
Mary Lee Found. v. Tex. Employment Commn ,817 S.W.2d 725 (Tex. App.Texarkana 1991, writ denied) ...........................................26
Masson v. New Yorker Magazine ,501 U.S. 496 (1991) .......................................................................................................... 24, 46
McCabe v. Rattiner ,814 F.2d 839 (1st Cir. 1987) ..................................................................................................30
McCluen v. Roane County Times, Inc.,936 S.W.2d 936 (Tenn. Ct. App. 1996)................................................................................30
McIlvain v. Jacobs ,794 S.W.2d 14 (Tex. 1990).....................................................................................................15
McIntyre v. Ramirez ,109 S.W.3d 741 (Tex. 2003)...................................................................................................23
Merrell Dow Pharms. v. Havner ,953 S.W.2d 706 (Tex. 1997)...................................................................................................16
Metcalf v. KFOR-TV, Inc.,828 F. Supp. 1515 (W.D. Okla. 1992)..................................................................................32
Milkovich v. Lorain Journal Co.,497 U.S. 1 (1990) .............................................................................................................. 18, 19
Moldea v. N.Y. Times Co.,22 F.2d 310 (D.C. Cir. 1994) .................................................................................................19
Musser v. Smith Protective Servs., Inc.,723 S.W.2d 653 (Tex. 1987)...................................................................................................23
Myers v. Mobile Press-Register, Inc.,97 So. 2d 819 (Ala. 1957) .......................................................................................................32
NAACP v. Claiborne Hardware Co.,458 U.S. 886 (1982) .................................................................................................................19
Newspapers, Inc. v. Matthews ,339 S.W.2d 890 (Tex. 1960)............................................................................................21, 22
N.Y. Times Co. v. Sullivan ,
376 U.S. 254 (1964).............................................................................................13, 16, 35, 36
Peter Scalamandre & Sons, Inc. v. Kaufman ,113 F.3d 556 (5th Cir. 1997)...........................................................................................29, 30
Peterson v. Grisham ,594 F.3d 723 (10th Cir. 2010)................................................................................................35
Phila. Newspapers, Inc. v. Hepps ,475 U.S. 767 (1986) .......................................................................................................... 12, 13
Republic Tobacco v. N. Atl. Trading Co.,2007 U.S. Dist. LEXIS 38079 (N.D. Ill. 2007)...................................................................38
Riley v. Harr ,292 F.3d 282 (1st Cir. 2002) .....................................................................................15, 18, 47
Rosanova v. Playboy Enters.,580 F.2d 859 (5th Cir. 1978)..................................................................................................10
Rosenblatt v. Baer ,383 U.S. 75 (1966) ...................................................................................................................13
Ryland Group, Inc. v. Hood ,924 S.W.2d 120 (Tex. 1996)...................................................................................................23
Sansing v. Garcia ,No. 13-08-00211-CV, 2009 Tex. App. LEXIS 8172(Tex. App.Corpus Christi Oct. 22, 2009, no pet.) (mem. op.) ....................................29
Scott v. Godwin ,147 S.W.3d 609 (Tex. App.Corpus Christi 2004, no pet.) ...........................................14
Snyder v. Phelps ,580 F.3d 206 (4th Cir. 2009)..................................................................................................18
Swate v. Schiffers ,975 S.W.2d 70 (Tex. App.San Antonio 1998, pet. denied)............................................8
Tex. Beef Group v. Winfrey ,201 F.3d 680 (5th Cir. 2000)...........................................................................................19, 42
Trotter v. Jack Anderson Enters.,818 F.2d. 431 (5th Cir. 1987).................................................................................................11
Turner v. KTRK Television, Inc.,38 S.W.3d 103 (Tex. 2000)..............................................................................................44, 45
United States v. Natl Treasury Employees Union ,513 U.S. 454 (1995).................................................................................................................14
UTV of San Antonio, Inc. v. Ardmore, Inc.,82 S.W.3d 609 (Tex. App.San Antonio 2002, no pet.) .................................................31
W. Seafood Co. v. United States ,202 Fed. Appx. 670 (5th Cir. 2006).............................................................................2, 8, 14
Waldbaum v. Fairchild Publns, Inc.,627 F.2d 1287 (D.C. Cir.), cert. denied , 449 U.S. 898 (1980) ..............................................11
WFAA-TV, Inc. v. McLemore ,978 S.W.2d 568 (Tex. 1998)......................................................................................6, 8, 9, 12
Wheeler v. New Times, Inc.,49 S.W.3d 471 (Tex. App.Dallas 2001, no pet.) ............................................................45
1. Is Appellee H. Walker Royall a limited-purpose public figure concerning his voluntary
agreement with the city of Freeport, Texas, to develop a yacht marina by, in part, having the city take land from his neighbor through eminent domain for use in the marina?
2. Are statements about the Freeport marina project, eminent domain, constitutional rights,and government action statements about matters of public concern?
3. Are Appellants Carla T. Main and Encounter for Culture and Education, Inc. mediadefendants?
Issues from No-Evidence Motion for Summary Judgment
4. Did Appellee present more than a scintilla of evidence that any of the supposedly defamatory statements or the gist of Bulldozed meets all four of the following criteria:
e. is a verifiable statement of fact;
f. is false or not substantially true;
g. is of and concerning Appellee; and
h. is capable of conveying a defamatory meaning about Appellee?
5. Did the trial court err in overruling Appellants objections to evidence offered in supportof Appellees response to Appellants no-evidence motion for summary judgment?
6. Did Appellee present more than a scintilla of evidence that Appellants aided, abetted,financed, authorized, and/or ratified the defamatory speech of book reviewer Mark Lardas?
believed paralleled what happened in Kelo. See , e.g., C.R. at 1005. As explained by Main in
the introduction to the book, [t]he question this book sets out to answer is what price
American society pays for economic development takings. (C.R. at 1010.)
Plaintiff-Appellee H. Walker Royall is a real estate developer. C.R. at 1423. In 2003
Royall signed a development agreement with the city of Freeport to develop a yacht marina
on the Old Brazos River. C.R. at 1386-1472. As part of the agreement, the city agreed to
use its power of eminent domain to take land from Western Seafood, a shrimping business
owned by the Gore family, and transfer it to Royalls company for use in the marina project.
C.R. at 1406. Specifically, the agreement said that Royalls company would acquire the
Gore Land, whether via the citys assistance in negotiating a direct purchase of such lands
by the Project Developer or via the Citys exercise of its power of eminent domain and conveyance of such
lands to the Project Developer . C.R. at 1406 (emphasis added).1 The city of Freeport began
condemnation proceedings against the Gores in August 2004. C.R. at 2667-72.
The dispute about the citys use of eminent domain to condemn the Gores land
sparked years of litigation and political action, including both federal and state court cases.
See, e.g., W. Seafood Co. v. United States , 202 Fed. Appx. 670 (5th Cir. 2006); C.R. at 2667-72.
Royall also sued the Gores for defamation. See, e.g., C.R. at 2674-75. In writing about Kelo
and Freeport, Main covered this whole story, as well as describing legal developments in the
rest of the country and the history of eminent domain. C.R. at 995-1314. Mains book
discusses and criticizes Royalls involvement in the project, although she saves most of her
1 The agreement was assigned in 2003 to another company Royall managed, and amended in 2004 and 2005 without any change to the language regarding eminent domain. C.R. at 1474-76, 1478-84. In 2007, threeyears into the condemnation proceedings filed by the city against the Gores, the agreement was replaced witha new agreement that did not mention eminent domain. C.R. at 1486-1544.
material fact on each of these questions. Tex. R. Civ. P. 166a(c). Despite well-established
law and an overwhelming and uncontested factual record, the trial court mistakenly denied
summary judgment on each of these grounds. That decision should be reversed.
Issue No. 1 Restated: Were Appellants entitled to summary judgment that Royall was a limited-purpose public figure with respect to his voluntary participation in thecity of Freeports plan to acquire private property through eminent domain so thatRoyall could use that property in his marina development?
A. Royall is a limited-purpose public figure.
There are cases where the issue of public-figure status may be a close call. This case
is not one of them. Whether a defamation plaintiff is a limited-purpose public figure is a
pure question of law. See WFAA-TV, Inc. v. McLemore , 978 S.W.2d 568, 571 (Tex. 1998).
Three factors guide the analysis: 1) whether there was a public controversy; 2) whether the
plaintiff played more than a trivial or tangential role in that controversy; and 3) whether
the alleged defamation related to his role in the controversy. Id. All three are satisfied here.
In the trial court, Royall disputed neither these factors nor the evidence that supports
them. Instead, the parties disagree about one key legal point. Appellants argue that Royalls
public figure status must be assessed at the time the supposedly defamatory statements
were madea position supported overwhelmingly by both Texas and federal case law.
Royall argues that the Court should look only at whether he was a public figure when he
first said he was interested in doing the marina project. Thus, Royall points the Court to
2002, when the project was in its earliest planning stages, while Appellants point to the time
Bulldozed was published in 2007. Royalls view is wrong as a matter of law, and this Court
should reverse the trial court and hold that he is a limited-purpose public figure.
449 U.S. 898 (1980) (same); Brueggemeyer , 684 F. Supp. at 458 (plaintiff owned and set policy
at company where sales practices began to draw fire).
Here, by signing an agreement with the city that obligated it to loan his company an
amount greater than 40 percent of the annual city budget (C.R. at 1645)not to mention
one that expressly contemplated the use of eminent domainRoyall committed himself to a
project that would inevitably garner significant public attention and scrutiny.7 He
recommitted himself by signing two amendments to the development agreement that
continued to include the use of eminent domain, one in 2004 and one in 2005. See C.R. at
1478-80, 1482-84. As the person in charge of the developer side of a major public-private
project, see C.R. at 1382, and the signatory of every major agreement related to the project, see
C.R. at 1380-84, 1386-1472, 1474-1544, Royall played more than a trivial or tangential role
7 Eminent domain for private development was a subject of national public controversy at the time Royallsigned the agreement. C.R. at 2457-58, 2460-61, 2463-64, 2466-67, 2469-71, 2473-74, 2476-78, 2480-84,2486-87, 2489-93, 2495-99, 2501-02, 2504-06, 2508-10, 2512-13, 2515-20, 2522-23, 2525-28, 2530-32.Indeed, there was a highly controversial eminent domain project in Hurst, Texas, just outside of Dallas, in thelate 1990s, C.R. at 2534-35, 2537-39, 2541-42, 2544-45, 2547-50, 2552-53, 2555-58., as well as other eminentdomain projects in Texas, see C.R. at 2560-61, 2563-64, 2566-67, that generated media coverage.
in the public controversy that project engendered.
Public Figure Factor 3: The supposedly defamatory statements were about thecontroversy which Royall voluntarily helped create.
The final factor in the limited-purpose public figure inquiry is whether the purported
defamatory speech concerned the same controversy in which the plaintiff participated.
WFAA, 978 S.W.2d at 571. Appellants meet this factor; Royall does not dispute that all of
the alleged defamation relates to the marina project and his role in that controversy.
In sum, Royall satisfies all three of the factors required to find that he is a limited-
purpose public figure with respect to his involvement in the Freeport marina project. Royall
therefore has the burden of proving falsity. Because Royall offered no contrary evidence,
but instead relied only an incorrect legal theory, the trial court erred in denying Appellants
partial motion for summary judgment as to Royalls limited public figure status.
Issues No. 2 and 3 Restated: Were Appellants entitled to summary judgment thatthe statements Royall challengesabout the Freeport marina project, eminentdomain, the constitution, and government actionstatements made by media
defendants about matters of public concern?
B. Royall also bears the burden of proving falsity because the allegedlydefamatory statements address matters of public concern and are
published by media defendants.
Even if Royall were not a limited-purpose public figure, which he is, he still would
bear the burden of proving falsity for the independent reason that the First Amendment
shifts the burden of proof in defamation cases where, as here, a media defendant publishes
allegedly defamatory statements about an issue of public concern. See BE & K Constr. Co. v.
NLRB, 536 U.S. 516, 534 (2002) (there is a constitutional requirement that private
defamation plaintiffs prove the falsity of speech on matters of public concern); see also Phila.
Main, the author of a non-fiction book, and her publisher are media defendants for
purposes of defamation analysis. See McIlvain v. Jacobs , 794 S.W.2d 14, 15 (Tex. 1990). Book
authors and publishers are routinely treated as media defendants. See , e.g., Riley v. Harr , 292
F.3d 282, 288289 (1st Cir. 2002) (book about alleged toxic tort); Partington v. Bugliosi , 56
F.3d 1147, 1158 n.16 (9th Cir. 1995) (book about murder trial); Harvest House Publishers v.
Local Church , 190 S.W.3d 204, 209 (Tex. App.Houston [1st Dist.] 2006, pet. denied) (book
treated as print media under Texas statute). Thus, the trial court erred in denying
Appellants motion for summary judgment that they be declared media defendants.
Issues No. 4 and 5 Restated: In response to Appellants no-evidence summaryjudgment motion, did Royall offer competent summary judgment evidence as toeach element that he must prove in order to establish his claim for defamation?
III. The Trial Court Erred in Denying Summary Judgment Because There is NoEvidence Appellants Wrote a Single Defamatory Statement About Royall.
Main and her publisher demonstrated to the trial court that they were entitled to
summary judgment on Royalls libel claims because there is no evidence that any of the 91
allegedly defamatory statements he identified was (1) a statement of verifiable fact; (2) of and
concerning Royall; (3) capable of defamatory meaning; and (4) false. Because all four
elements must be satisfied with respect to each allegedly defamatory statement, a failure of
proof on any one of them is fatal to Royalls libel claim with respect to that statement.8
Royall was required to come forward with more than a scintilla of evidence
regarding each ground upon which Appellants moved. Tex. R. Civ. P. 166a(i); see also King
8 The first three elements are necessary for any defamation claim. The fourth one, falsity, is Royalls burden if he is a public figure or if the topic is one of public concern and Appellants are media defendants. As shownin Part II above, those requirements are satisfied here, so Royall bears the burden on falsity as well.
Ranch, Inc. v. Chapman , 118 S.W.3d 742, 750-51 (Tex. 2003). Evidence constitutes more
than a scintilla if it rises to a level that would enable reasonable and fair-minded people to
differ in their conclusions. Merrell Dow Pharms. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997).
The evidence introduced by Royall fails to carry this burden with regard to a single one of
the supposedly defamatory statements.9
Royalls decision to object to so many individual statements, and the trial courts
failure to grant summary judgment with respect to any of them, unfortunately means that
Appellants must discuss all of them in this brief. To assist the Court, Appellants have
compiled all 91 of the statements relied upon by Royall in a single table and assigned to each
statement an identifying number. Appx. at Tab 1.10
Appellants recognize that reviewing Royalls summary judgment evidence (or the lack
thereof) with respect to almost 100 separate statements is a formidable task. Nevertheless,
Appellants know that this Court will recognize its obligation to make an independent
examination of the whole record in order to make sure that the judgment does not
constitute a forbidden intrusion on the field of free expression. Bose Corp. v. Consumers
Union of U.S., Inc., 466 U.S. 485, 499 (1984) (quoting N.Y. Times Co. v. Sullivan , 376 U.S. at
284-86). When the Court makes that examination here, it will find that none of the
9 Appellants moved that the book, other documents, and gist do not satisfy the elements of defamation,
C.R. at 923, which includes both libel per se and libel per quod . See, e.g., Exxon Mobil Corp. v. Hines , 252 S.W.3d496, 501 (Tex. App.Houston [14 Dist.] 2008) (pet. denied). Appellants also moved that Royall did nothave extrinsic evidence supporting any libel per quod claim. C.R. at 923. As the distinctions between the twotypes of libel are not relevant to this appeal, Appellants discuss all libel issues together.10 Those statements were identified by Royall in the trial court in his brief responding to Appellants no-evidence motion for summary judgment. C.R. at 2744-2817. Appellants have taken each statement from theresponsive brief and put them in the order of the pages in the book. To assist the Court in referring tospecific statements addressed in this brief, each of the statements is individually numbered and will bereferred to herein by its statement number, e.g. Stmt. 5.
statements relied upon by Royall comes close to meeting the rigorous legal standard for
defamation. Appellants no-evidence summary judgment should have been granted and
judgment rendered for Appellants.11
Below, appellants first discuss the law governing the four elements on which
Appellants have moved: (1) verifiable statement of fact; (2) of and concerning; (3) capable of
defamatory meaning; and, (4) falsity. Part III.A. Appellants next explain their objections to
the admissibility of certain evidence proffered by Royall in response to the no-evidence
motion. Part III.B. Appellants then discuss the statements as to which Royall failed to
produce any evidence (objectionable or otherwise) and show that the trial court should have
granted summary judgment with respect to all those statements. Part III.C. Appellants
proceed to review each of the statements that Royall claims are defamatory, organizing them
into groups where possible, and demonstrate that Royall has failed to meet his no-evidence
burden for each and every statement by failing to show that each satisfies all four elements
of defamation. Part IV. Appellants next address Royalls claim that the gist of the book
is itself defamatory. Part V. And finally, Appellants briefly address Royalls failure to
produce any evidence that Appellants aided, abetted, or ratified a supposedly defamatory
book review written and published by now-dismissed defendants. Part VI.
11 Appellee argued in the trial court that Appellants did not move on the press release and the opinioneditorial. C.R. at 2815-16. However, Appellants did in fact move on the book and all other itemsidentified by Plaintiff as containing allegedly defamatory statements. C.R. at 903. Further, Royall listedstatements from the press release, Stmts. 75-81, and opinion editorial, Stmts. 86-91, in his responsive brief asrepresenting the defamatory gist of the book. C.R. at 2771-72, 2782-83. Therefore, because thosestatements were moved on by Appellants and were at issue in Royalls response to the no-evidence motion,they can be properly disposed of here.
The court rejected this reasoning, finding that the defamatory statement must point to the
plaintiff and to no one else . Id . (emphasis added).
Here, most of the statements identified by Royall do not point to him at all. Rather,
they refer to the city of Freeport, other individuals, or other entities not to Royall. Of the
nearly 100 statements identified by Royall, 57 do not mention or refer to him in any way.12
They certainly do not point to Royall and to no one else. As such, they do not satisfy the
Newspapers of and concerning standard. See id.; see also Harvest House Publishers v. Local
Church , 190 S.W.3d 204, 212-13 (Tex. App.Houston [1st Dist.] 2006, pet. denied) (list of
characteristics of cults, including serious crimes like murder and rape, did not point to
plaintiff church as committing those crimes and thus was not of and concerning it).
In the trial court, Royall attempted to offer evidence on the of and concerning
requirementwhich must be satisfied as to each one of the 91 statements he has
identifiedby offering a generic and conclusory affidavit by a former city employee who
asserts that in [his] reading, anything in the book relating to Freeport is of and
concerning Royall. 2d Supp. C.R. at ____ (Pl.s Ex. 7).13 Specifically, the affidavit states:
The parts of the book that involve Freeport clearly refer to Walker
12 See Stmts. 2, 9-12, 14-15, 18, 20-21, 24-44, 46-49, 52, 54-69, 74, 77-78, 81-85.13 In their initial record designation to the District Court clerks office, Appellants properly requested theevidence Royall submitted in support of his no-evidence motion. However, when the clerk transmitted therecord, it omitted this evidence. Upon agreed motion, this Court granted a request for extension of time to
allow the clerks office to supplement the record and ordered the clerk to copy Plaintiffs evidence offered insupport of his combined response to the motions for summary judgment. Appellants also sent a letter tothe clerks office specifically listing each piece of evidence that should be included. On the morning of March 17, 2010, one day before this brief was due, the clerk made the supplemental record available. Instead
of the requested evidence, the clerk copied a number of cases submitted by Royall at the trial court. Ratherthan further delay the briefing, Appellants here submit their brief with blanks showing the missing recordcites. When the record has been supplemented with the correct documents, Appellants will supplement theirbrief to fill in these blanks.
Royall.The statements in the book about the idea of the marina project, theuse of eminent domain on the project allegedly for Mr. Royalls benefit, theclaimed effect that the project would have on Western Seafoods ownership of its plant, its access to the river, the continued existence of the company andthe comparison of the Freeport marina project to other projects involving
eminent domain were all clearly, in my reading of the book, directed at WalkerRoyall and his involvement.
2d Supp. C.R. at ____ (Pl.s Ex. 7). According to Royall, Mr. Camerons affidavit is
sufficient to establish that BULLDOZED is of and concerning Plaintiff. C.R. at 2772.
Royall is incorrect.
Under Texas law, this single conclusory statement cannot carry Royalls burden. The
affiant provides no explanation as to why in his reading the statements are about Royall.
He identifies no quotations or pages from the book. He refers to no other facts that might
show that reasonable people would understand the statements to be about Royall. Such
conclusory and unsupported statements are inadequate summary judgment evidence.14 See
McIntyre v. Ramirez , 109 S.W.3d 741, 749-50 (Tex. 2003); Brownlee v. Brownlee , 665 S.W.2d 111,
112 (Tex. 1984).
3. Most of the statements relied upon are not capable of defamatorymeaning because they are not specific and offensive statementsabout Royall.
Whether a statement is capable of defamatory meaning is an issue of law. See Musser
v. Smith Protective Servs., Inc., 723 S.W.2d 653, 654-55 (Tex. 1987). Ordinary statements about
legal business dealings are not capable of defamatory meaning. See id. at 655. Non-specific
14 Moreover, the affiant was the director of an agency that was Royalls business partner in the marina project2d Supp. C.R. at ____ (Pl.s Ex. 7), and, as such, he is an interested witness. An interested witness affidavit which recites that the affiant estimates, or believes certain facts to be true will not support summary judgment. Ryland Group, Inc. v. Hood , 924 S.W.2d 120, 122 (Tex. 1996). The affiants only statement is thathis reading of the book is that it is about Royall. 2d Supp. C.R. at ____ (Pl.s Ex. 7).
B. Five pieces of Royalls evidence were inadmissible hearsay.
In the trial court, Royall relied on several pieces of evidence, 2d Supp. C.R. at ____
(Pl.s Exs. 3, 6-10, 13, and 26), that were inadmissibleas noted in Appellants objections to
that evidence, C.R. at 2858-80. See Tex. R. Evid. 801(d). That evidence included (1) three
deposition transcripts from the defamation case Royall brought against the Gores and (2)
two unsworn open letters to the public. The trial court erred when it overruled Appellants
objections to this evidence; this Court can and should reverse the trial court and sustain
Appellants objections.
First, a deposition transcript from another case is admissible only if the deponent is
unavailable. See Tex. R. Evid. 804(a) & (b)(1). Royall made no attempt to show that the
third-party deponents heretwo members of the Gore family and Royalls expert witness in
his case against the Goreswere unavailable. That fact alone rendered the depositions
inadmissible.15 See Klager v. Worthing , 966 S.W.2d 77, 82 (Tex. App.San Antonio 1996, writ
denied) (upholding exclusion of deposition from related case because it could be admitted, if
at all, as a party admission and it was not an admission).
Second, the letters are hearsay that do not fall within any hearsay exception. One, 2d
Supp. C.R. at ____ (Pl.s Ex. 10), was an open letter from officials at the city of Freeport
15 Contrary to the trial courts determination, Appellants did not waive their objections to this evidence.C.R. at 2884. As to one of the deposition transcriptsthat of David Cole, 2d Supp. C.R. at ____ (Pl.s Ex.26), who purports to be an expert on navigation, and upon whose testimony Royall primarily relies for his
evidence about river navigation, C.R. at 2785, Royall never attempted to introduce it previously, so Appellantscould not possibly have waived their objections. As to the other depositions (of Gore family members), 2dSupp. C.R. at ____ (Pl.s Exs. 3 and 13) Royall previously cited those depositions only with regard to whetherRoyall was a public figure, C.R. at 740-45, which was not an issue in the previous summary judgment motion.See C.R. 46-115. Accordingly, there was no reason for Appellants to object to the evidence when it was usedfor that purpose. One does not waive an objection to the use of evidence for one purpose by not objecting to its use for another purpose. For example, if Royall is correct about his theory of waiver, Appellants shouldbe able to use the newspaper articles that they introduced to show public figure status (and to which Royalldid not object) for the truth of the matters asserted therein in all future proceedings in this case.
the alliance was not unholy. Nor has he introduced any evidence that he is not avaricious.
D. Rhetorically equating eminent domain with theft is notdefamatory.
Royall identifies nine supposedly defamatory statements that he claims accuse him of
stealing.16 See C.R. at 2790-91, citing Stmts. 13-16, 24, 49, 61, 63, 68 (Appx. at Tab 1).
Verifiability: An allegation of theft would be both verifiable and defamatory, of
course, but the statements Royall cites contain no allegation of actual stealing. Indeed, only
one of the statements even uses the word steal (Stmt. 24). Even there, the statement is a
quote by one of the Gores that in context plainly refers to the city, not to Royall. C.R. at
1035. Wright Gore Jr. was discussing his attempt to convince the city to accept 100 or 150
feet of waterfront property instead of 330 and says What could it matter? And not steal it
from us. This is an expression of rhetorical hyperbole about the use of eminent domain,
not an accusation of stealing. The U.S. Supreme Court has held that similar analogies are
protected opinion. See Greenbelt Coop. Publg Assn v. Bresler , 398 U.S. 6, 7-8, 14 (1970)
(holding that characterizing a developers negotiating position with the city council as
blackmail was rhetorical, not an accusation of a crime). One other statement that
supposedly accuses Royall of stealing is a quote from someone at a public meeting who
refers to coveting thy neighbors house (Stmt. 14). Whether or not one covets is not
verifiable. See, e.g., Guilford Transp. Indus., Inc. v. Wilner , 760 A.2d 580, 586, 602 (D.C. 2000).
The other statements that Royall claims accuse him of stealing actually involve
commentary on the citys threat to use eminent domain. See, e.g., Stmt. 13 (My town is
16 Royall also says these references to stealing amount to libel per se . C.R. at 2791. However, since Main didnot actually accuse Royall of the crime of stealingbut rather used the word as rhetorical hyperbole Royalls claim of libel per se must necessarily fail.
Falsity: Royall has presented no evidence that Freeport did not initiate an eminent
domain action against the Gores or that his company was not the intended recipient of the
land being taken. Nor, for that matter, has he presented evidence that he did not abuse the
power of eminent domain or that being the recipient of condemned property is not abusive.
F. Talking about the anticipated effect of the Freeport marina project onriver navigation and the anticipated effect on the Gores businessesdoes not defame Royall.
A large number of the statements to which Royall objects relate to predictions about
the future effects of the marina project on the Gores business, navigation, and Freeport.
C.R. at 2781-83, 2791, 2799-2806. (Royall also claims that some of these statements are
part of the gist of the book. C.R. at 2887.) According to the Gores and their lawyer, and as
explained by Main, the proposed project would destroy the Gores business17 in two ways:
(1) the shrimp boats would find it difficult or impossible to reach the shrimp unloading area
and would stop patronizing Western Seafood;18 and (2) the 330 feet of property that the city
sought to acquire included waterfront access vital to the business.19 There are additional
statements that do not fall easily into these categories but also relate to the effect of the
project on the Gores business.20
Verifiability: Each statement about future navigation and the future of the Gores
business is ultimately unverifiable. Indeed, courts have routinely held that predictions about
future business events are unverifiable opinion, not verifiable fact. See, e.g., Compuware Corp.
v. Moodys Investors Servs., 499 F.3d 520, 529 (6th Cir. 2007) (holding credit rating is a
would destroy the business.22 See C.R. at 2799-2708.
As discussed above, the evidence Royall relies upon for falsity of these predictions
is inadmissible hearsay. Part III.B. If the Court agrees it is inadmissible, then Royall has no
evidence of falsity at all. However, even if the Court believes the evidence is admissible, it
cannot carry Royalls burden on the no-evidence motion. Royall offered deposition
testimony in an effort to show that the marina project would not disrupt navigation on the
river and thus not harm Western Seafoods business.23 C.R. at 2784-86. Because the future
of Western Seafoods business is unverifiable, Royalls supposed evidence concerning his
opinion of that future is wholly irrelevant.
G. Statements about Royalls positions and companies are notdefamatory.
Two statements identified by Royall as defamatory say that he sat on the board of
another company, Sun Resorts. See Stmts. 17, 22. One says that his company, Freeport
Waterfront Properties, was formed in March 2002, shortly before a new Freeport master
plan suggesting a marina on the project site. See Stmts. 45.
Defamatory Meaning: Such statements are not capable of defamatory meaning.
Falsity: Royall introduced evidence that he did sit on the advisory board of Sun
Resorts. 2d Supp. C.R. at ____ (Pl.s Ex. 8). His objection is that he thinks Main should
have mentioned that he did not sit on the board prior to the marina project but joined when
22 The other predictive statements for which Royall provides no evidence of falsity other than on the issue of whether the Gores business will be destroyed are Stmts. 6, 8-13, 15, 16, 18, 20, 25, 29, 30, 32-35, 40-43, 47-52, 54-57, 59, 60, 62-69, 73, 75, 81, 84-85. There were also several statements Royall claimed to bedefamatory that discuss the marina project and river navigation. See Stmts. 26, 27, 36-39, 58.23 Royall also introduces deposition testimony to show that the condemnation would not take the actualshrimp packing house but only adjacent land. 2d Supp. C.R. at ____ (Pl.s Exs. 3 and 13). As Bulldozed makesthis same point repeatedly, see, e.g., Stmts. 25, 30, 32, 34, 40, 44, the deposition testimony does not show anything in the book to be false.
Sun Resorts joined the project, at Sun Resorts request. 2d Supp. C.R. at ____ (Pl.s Ex. 8).
This additional fact does not render Mains account false. See, e.g., Winfrey , 201 F.3d at 689
(omitting additional explanatory facts not defamatory). Moreover, Royall offered no
evidence of the date of formation of Freeport Waterfront Properties or the master plan.
H. Saying the city approached Royall about the project is notdefamatory.
There are several statements that say the city of Freeport initiated the marina project
and approached Royalls family about doing it. See Stmts. 5, 53, 70, 89. Royall claims,
incorrectly, that these say that he initiated the project. C.R. at 2792-94.24 He then argues
that he did not initiate the project. C.R. at 2793-94.
Defamatory Meaning: Royall claims the defamation lies in the claim that he
initiated the project. This statement would not be defamatory, but it does not matter,
because Appellants have consistently said that Royall was approached by the city.
Falsity: In support of his claim that he did not initiate the project, Royall cites to
non-existent evidence. See C.R. at 2793, citing non-existent exhibits G, P, and Y.
I. Saying there was no competitive bidding for the project is notdefamatory.
Royall also objects to statements in the book that the marina project was not subject
to competitive bidding. See Stmts. 31, 46.
Of and Concerning: There is no suggestion in the book that Royall was responsible
for whether the city opened the project up to competitive bidding. Competitive bidding, or
lack thereof, is an action of the city of Freeport, not Royall.
24 Royall also claims that Stmts. 4, 6, 7, 19, 23 say he initiated the project. See C.R. at 2792-93. None of thesestatements say anything about who initiated the project, or the agreement, or eminent domain.
According to Royall, Bulldozed claimed that plaintiff and city of Freeport were attempting to
take away the business of Western Seafood, which [it] repeatedly describe[d] as owned by
three generations of the Gore family, and property that the Gore family owned for 56 years.
[ Bulldozed falsely characterized] the marina plan as a conflict between the unholy alliance
between plaintiff and the city government on the one hand, and the three generation family
business on the other[.] C.R. at 2784. This gist is false, Royall claims, because:
Bulldozed says that the Gore family owned the particular tract to be taken for 56 years, butin fact, the Gores had not owned the tract that long; they began leasing it in the 1980sand purchased it later. C.R. at 2783-84.
The city only planned to include in the marina development 330 feet of the Goresriver frontage, and, according to Royall, Main portrays this land as part of the shrimpprocessing plant, which it is not. C.R. at 2784.
It was false to state that plaintiff and Freeport were trying to take the business itself and turn it into a marina, because Freeport was taking only a part of the land, which didnot contain the plant or docks themselves. C.R. at 2784.
Bulldozed claims that the loss of the 330 feet of river frontage would block necessary access to the unloading docks, but in fact qualified shrimp boat captains would still beable to access the docks if they were willing to try. C.R. at 2784-85.
With regard to the first of these points, Royall does not dispute that the Gore
shrimping business is a three-generation family business. He just points out that the Gores
(or their business, Western Seafood) have owned the particular tract the city tried to
condemn for less than 50 years. This is the kind of trivial distinction that courts routinely
ignore. See, e.g., Morris v. Dallas Morning News , 934 S.W.2d 410, 416 (Tex. App.Waco 1996,
writ denied) (law on defamation overlooks minor inaccuracies and concentrates upon
substantial truth (citing Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991))).
Moreover, although the quotes provided by Royall certainly talk about the multi-generation
business, not one of them states that the particular tract of land being condemned had been
C. Royall presented no evidence that the gist of Bulldozed is false.
As already demonstrated supra at Part IV.F, Royalls evidence that the Gores business
would not be destroyed does not overcome his no-evidence summary judgment burden of
proving falsity. He has presented no other evidence that the gist of the book is false.
Accordingly, the trial court should have granted summary judgment for Appellants.
Issue No. 6 Restated: In response to Appellants no-evidence summary judgmentmotion, did Royall offer competent summary judgment evidence that Appellantsaided, abetted, or ratified allegedly defamatory speech by Mark Lardas?
VI. Royall Produced No Evidence That Appellants Aided, Abetted, or RatifiedDefamation in Mark Lardas Book Review of Bulldozed .
Royall also alleged that Appellants aided and abetted and ratified the publication
of what he claims to be a defamatory book review written and published by now-dismissed
defendants, Mark Lardas and Southern Newspapers. C.R. at 27-8. Appellants moved for
summary judgment that Royall had no evidence that Appellants aided and abetted or ratified
the defamation of anyone else. C.R. at 923. Royall produced no evidence that Appellants
aided, abetted, or ratified the book review. See C.R. at 2811-15. The trial court erred in
denying summary judgment.
PRAYER
For the foregoing reasons, and pursuant to Texas Rule of Appellate Procedure 43,
Appellants Carla T. Main and Encounter for Culture and Education, Inc., ask this Court to
sustain the issues presented, hold that the trial court erred by overruling their objections to
Royalls summary judgment evidence, reverse the district courts orders denying their
motions for summary judgment, and render the judgment the trial court should have
rendered. Appellants request all other appropriate relief to which they are entitled.
Matthew R. Miller (TX Bar No. 24046444) Wesley Hottot (TX Bar No. 24063851)Institute for Justice Texas Chapter816 Congress Avenue, Suite 960 Austin, TX 78701(512) 480-5936(512) 480-5937 (fax)[email protected]
Dana Berliner (DC Bar No. 447686)*Institute for Justice901 N. Glebe Road, Suite 900 Arlington, VA 22203(703) 682-9320(703) 682-9321 (fax)[email protected]
John J. Little (TX Bar No. 12424230)Megan K. Dredla (TX Bar No. 24050530)Little Pedersen Fankhauser LLP901 Main Street, Suite 4110Dallas, TX 75202(214) 573-2300(214) 573-2323 (fax)
ATTORNEYS FOR DEFENDANTS-APPELLANTSCarla T. Main andEncounter for Culture and Education, Inc.
On March 18, 2010, in compliance with Texas Rule of Appellate Procedure 9.5, Iserved a copy of this brief upon all other parties to the trial courts judgment by first-class
United States mail, properly posted and deliverable as follows:
Robert B. GilbreathHawkins, Parnell & Thackston, LLP4514 Cole Avenue, Suite 500Dallas, TX 75205Counsel of Record for Appellee H. Walker Royall
Patrick Zummo
3900 Essex Lane, Suite 800Houston, TX 77027
_________________________________ Matthew R. Miller
2. Order Denying Defendants Motion for Partial Summary Judgment
3. Order Denying Defendants No-Evidence Motion for Summary Judgment
4. Order Regarding Defendants Objections to Evidence Offered In Support of Plaintiffs Responses to Defendants Motion for Partial Summary Judgment and No-Evidence Motion for Summary Judgment
Relevant Statutory and Constitutional Authority
5. Tex. Civ. Prac. & Rem. Code §73.001
6. U.S. Const. Amend. 1
7. Tex. Civ. Prac. & Rem. Code § 51.014(a)(6)
Unpublished and Memorandum Opinions and Other Judgments Cited in Brief