MAIN v. ROYALL No. 05-09-01503-CV.
348 S.W.3d 381 (2011)
Carla T. MAIN and The Encounter for Culture and Education, Inc., Appellants, v. H. Walker ROYALL, Appellee.
Court of Appeals of Texas, Dallas.
July 25, 2011.
Matthew R. Miller , Wesley Hottot , Institute for Justice Texas Chapter, Austin, TX, John J. Little , Little, Pederson Frankhauser L.L.P., Megan K. Dredla , Little Pedersen Fankhauser LLP, Dallas, TX, Dana Berliner , Institute for Justice, Arlington, VA, for Appellants.
Robert B. Gilbreath , Hawkins, Parnell, Thackston & Young, LLP, Dallas, TX, Patrick Zummo , Patrick Zummo Attorney, Houston, TX, for Appellee.
Before Justices BRIDGES, RICHTER, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
This interlocutory appeal arises from a libel suit brought by appellee, H. Walker Royall, against appellants, Carla T. Main and The Encounter for Culture and Education, Inc. Appellants contend that the trial court erred when it denied their no-evidence motion for summary judgment
Main wrote and Encounter published BULLDOZED: "KELO," EMINENT DOMAIN, AND THE AMERICAN LUST FOR LAND, a book critical of the government's taking of private property by eminent domain to use for private development. It explores the history of eminent domain and court decisions about the government's use of the power, particularly the United States Supreme Court's decision in Kelo v. City of New London, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005).
Portions of the book are set in the City of Freeport, Texas and tell the story of the City's plan to use eminent domain to condemn waterfront property along the Old Brazos River to build a private yacht marina. The story is told from the viewpoint of one of the property owners—Western Seafood Company, a shrimp processing business owned by Wright "Pappy" Gore, Sr. and his family. It chronicles the Gore family's efforts over several years to prevent the City from condemning a 330-foot strip of property belonging to Western Seafood and used in their shrimp processing business. The Gores contended that this strip of property was crucial to the livelihood of Western Seafood. The book details the City's efforts to reach an agreement with the Gores and to build the marina on land adjacent to Western Seafood that was owned by the Blaffer family; its agreement with Royall, a commercial real estate developer,
BULLDOZED was published in October 2007. When Royall learned of it, he sued appellants and others contending that the book and publicity for the book defamed and injured him in his occupation and profession. He alleged claims for libel, aiding and abetting libel, and ratifying libel, and he sought nominal, general, actual, and exemplary damages.
Main and Encounter moved for no-evidence summary judgment on Royall's claims. They also filed a traditional motion for partial summary judgment on specific issues. The trial court denied both motions. Main and Encounter filed this interlocutory appeal.
Royall initially questions whether we have jurisdiction to hear this appeal. Section 51.014(a)(6) of the Texas Civil Practice and Remedies Code authorizes an interlocutory appeal when a trial court:
"Member of the Electronic or Print Media"
In resolving the jurisdictional question, we first must determine whether the legislature intended the language "member of the electronic or print media" to include book authors and publishers. Section 51.014(a)(6) does not define "print media" or who is "a member of the electronic or print media." See id. We have not found and the parties do not cite any Texas cases that decide this issue directly.
When we construe a statute, we read the language used in the statute and construe the statute in its entirety. Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000); see In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 380 (Tex.1998) (orig. proceeding); Taylor v. Firemen's & Policemen's Civil Serv. Comm'n, 616 S.W.2d 187, 190 (Tex.1981). If the language is not ambiguous, we interpret it according to its plain meaning. State ex rel. State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). And if words are not defined, we use their plain and common meaning unless the context of the statute indicates a contrary intention or it leads to an absurd result. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008). We presume the legislature intended a just and reasonable result when it enacted the statute. Id. at 626. In construing the statute, we may consider factors such as the statute's purpose; circumstances under which it was enacted; its legislative history; the common law and former versions of the statute; statutes on the same or similar subjects; and the consequences of a particular construction. TEX. GOV'T CODE ANN. § 311.023 (West 2005).
Royall argues that the legislature did not intend the statute to apply to book authors and publishers because books were an existing technology when the statute was passed, but the legislature did not include book authors and publishers in the express terms of the statute and the legislative history of the statute does not refer to book authors and publishers. He also argues that the term "media defendants" has never been broadened to include defendants beyond the "newspaper or broadcaster" category.
Royall cites Rogers v. Cassidy, 946 S.W.2d 439, 443 (Tex.App.-Corpus Christi
In Cassidy, a city attorney filed a defamation lawsuit against a private citizen who accused the city attorney of improprieties in an election. Cassidy, 946 S.W.2d at 441. Both parties filed motions for summary judgment, which were denied, and both filed interlocutory appeals under this statute. The jurisdictional question in that case was whether the legislature intended the statute to apply to a plaintiff who claimed to have been libeled by the media. Id. at 443. The court concluded it did not:
Id. at 443. Although the court referred specifically to "a newspaper, radio station or television station" when describing the purpose of the statute, the issue in that case was whether a plaintiff could file an interlocutory appeal under the statute. Consequently, we do not agree that Cassidy decided the issue before us. See id. at 441-43.
In Quebe, private citizens accused a police officer of sexually assaulting a minor and the officer sued for defamation. The focus of the appeal was the meaning of "published" as used in the statute because the libel defendants' and the libel plaintiff's names were never used in the publication and the specific allegations were not stated. Quebe, 201 S.W.3d at 169-70. In a footnote, the court cited the statute's legislative history:
Id. at 170 n. 5. Again, as with Cassidy, the question of whether the statute was intended to apply to book authors and publishers was not an issue in Quebe.
We construe the statute understanding that the legislature's purpose in enacting section 51.014(a)(6) was to provide members of the media with a mechanism to obtain immediate appellate review when a trial court denies their motion for summary judgment and when that motion was based on a claim or defense "arising under the free speech or free press clause of the First Amendment...." TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(6); see TSM AM-FM TV v. Meca Homes, Inc., 969 S.W.2d 448, 451 (Tex.App.-El Paso 1998, pet. denied) (citing legislative history); Grant v. Wood, 916 S.W.2d 42, 46 (Tex. App.-Houston [1st Dist.] 1995, orig. proceeding). Allowing members of the electronic and print media to file an immediate appeal of issues arising under the free speech or free press clause avoids the time and expense of a trial when the defendant
Although section 51.014(a)(6) does not refer specifically to book authors and publishers, it also does not refer specifically to newspapers, radio and television stations, or internet publications. But the statute has been interpreted to apply to these types of media. See, e.g., Klentzman v. Brady, 312 S.W.3d 886, 891 (Tex.App.-Houston [1st Dist.] 2009, no pet.) (applying interlocutory appeal statute to newspaper); Kaufman v. Islamic Soc. of Arlington, 291 S.W.3d 130, 133 (Tex.App.-Fort Worth 2009, pet. denied) (internet article); Fox Entm't Group, Inc. v. Abdel-Hafiz, 240 S.W.3d 524, 529 (Tex.App.-Fort Worth 2007, pet. denied) (television station); Meca Homes, 969 S.W.2d at 448 (television and radio stations). And case law shows that the "press" has been interpreted to include book authors and publishers. See, e.g., Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 496, 501, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (applying First Amendment standards of review in appeal of libel action by book author and publisher); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64 n. 6, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) (stating "[t]he constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication"); Doubleday & Co. v. Rogers, 674 S.W.2d 751, 752-57 (Tex.1984) (applying First Amendment standards to appeal of defamation action by author and publisher of book). For purposes of this statute, we see no meaningful distinction between book authors and publishers and other forms of media. And we conclude that interpreting the statute as Royall asks us to do would cause an inconsistent application of the statute and lead to an absurd result. Hughes, 246 S.W.3d at 627.
Royall also contends that if we construe Main and Encounter to be "member[s] of the electronic or print media," then anyone with a computer, typewriter, or printer will also fall into this category and have the right to file an interlocutory appeal. He contends that only people using "a pen and pencil to handwrite his statements" would fall outside the statute's meaning. But our decision is limited to authors and publishers of traditional books because that is the issue in this case. We do not decide, and our opinion should not be interpreted to decide, as appellee argues, whether "anyone with a computer, typewriter, or printer" would qualify as a "member of the electronic or print media." See Kaufman, 291 S.W.3d at 142 (explaining factors used to consider whether author of internet article qualified as a "member of the electronic or print media").
In summary, we conclude that the legislature intended section 54.014(a)(6) to include authors and publishers of traditional books as "member[s] of the electronic or print media" and that Main and Encounter are "member[s] of the electronic and print media."
Defenses Arising Under First Amendment or Chapter 73
Royall also contends that even if Main and Encounter are "member[s] of the ...
ISSUES ON APPEAL
Appellants raise three issues which relate to the merits of the no-evidence motion for summary judgment: whether Royall presented more than a scintilla of evidence on each element of his defamation claims (issue four); whether the trial court erred by overruling Main and Encounter's objections to Royall's summary judgment evidence (issue five); and whether Royall presented more than a scintilla of evidence that Main and Encounter aided, abetted, and ratified another's defamation (issue six). See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004) (stating that court should address no-evidence motion for summary judgment before considering traditional motion).
OBJECTIONS TO SUMMARY JUDGMENT EVIDENCE
We consider Main and Encounter's fifth issue first because it could impact our analysis of the trial court's ruling on the summary judgment motions. Main and Encounter objected to the admissibility of deposition excerpts that Royall submitted in response to their motions on the ground that the depositions were taken in a different proceeding and were inadmissible hearsay. Royall argued that the depositions were reliable and that Main and Encounter waived any error by not objecting when he offered the same excerpts in response to their earlier motion for summary judgment. The trial court overruled the objections, ruling that the depositions were reliable and that Main and Encounter waived their objections.
We review a trial court's evidentiary rulings for an abuse of discretion. Carbonara v. Tex. Stadium Corp., 244 S.W.3d 651, 655 (Tex.App.-Dallas 2008, no pet.). To reverse a judgment on the ground of improperly admitted evidence, a party must show that the error probably caused the rendition of an improper judgment. TEX.R.APP. P. 44.1(a); Carbonara, 244 S.W.3d at 655. To do this, the complaining party typically must demonstrate that the judgment turns on the particular evidence admitted or excluded. Finger v. Ray, 326 S.W.3d 285, 290 (Tex.App.-Houston [1st Dist.] 2010, no pet.).
Main and Encounter do not argue that the order denying summary judgment turned on this particular evidence or otherwise explain how the admission of this evidence probably resulted in an improper judgment. See TEX.R.APP. P. 44.1(a); Ray, 326 S.W.3d at 290; Carbonara, 244 S.W.3d at 655. Consequently, we conclude that they have not shown reversible error on appeal.
We resolve issue five against appellants.
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
In issue four, Main and Encounter argue that the trial court erred by denying their no-evidence motion for summary judgment because Royall did not present more than a scintilla of evidence on each element of his defamation claims.
Standard of Review
We conduct a de novo review of a trial court's decision to grant or deny a no-evidence motion for summary judgment. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex.2004). After an adequate time for discovery, the party without the burden of proof may move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant's claim. TEX.R. CIV. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id. The burden then shifts to the nonmovant to produce more than a scintilla of summary judgment evidence that raises a genuine issue of material fact as to each essential element identified in the motion. Id. & cmt. (1997); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). More than a scintilla of evidence exists if the evidence would allow reasonable and fair-minded people to reach the verdict under review. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.2003). Less than a scintilla of evidence exists when the evidence is so weak that it does no more than create a mere surmise or suspicion of a fact. Forbes, 124 S.W.3d at 172. We must credit favorable evidence if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d at 827.
To determine whether the nonmovant met its burden, we review the summary judgment evidence in the light most favorable to the nonmovant, "indulging every reasonable inference and resolving any doubts against the motion." Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006) (per curiam) (quoting City of Keller, 168 S.W.3d at 823). We consider all the grounds for summary judgment ruled on by the trial court and that are necessary for final disposition of the appeal. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).
A statement is defamatory if it "tends to ... injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation...." Tex. Civ. Prac. & Rem.Code Ann. § 73.001 (West 2005); Wheeler v. New Times, Inc., 49 S.W.3d 471, 474 (Tex.App.-Dallas 2001, no pet.). To maintain a defamation action, a plaintiff must prove that the defendant (1) published a statement of fact; (2) that was defamatory concerning the plaintiff; (3) while acting with actual malice regarding the truth of the statement if the plaintiff was a public official or public figure, or while acting with negligence regarding the truth of the statement if the plaintiff was a private individual. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). To be actionable, a statement must assert an objectively verifiable fact. Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990); Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex.2002). Whether a publication is an actionable statement of fact or a constitutionally protected opinion is a question of law. Bentley, 94 S.W.3d at 580. If we determine that the statements are not capable of a defamatory meaning,
Additionally, defamatory statements are either defamatory per se or defamatory per quod. Sw. Bell Yellow Pages, Inc. v. Thomas, No. 05-04-01722-CV, 2006 WL 217665, at *2 (Tex.App.-Dallas Jan. 30, 2006, no pet.) (mem. op.). A written defamatory statement is libel per se if the words in and of themselves are so obviously hurtful to the person aggrieved by them that they require no proof of injury. Id. These include statements that (1) unambiguously charge a crime, dishonesty, fraud, rascality, or general depravity, or (2) are falsehoods that injure one in his office, business, profession, or occupation. Id. If the court must resort to innuendo or extrinsic evidence to determine that the statement was defamatory, then it is libel per quod and requires proof of injury and damages. See id.; Bingham v. Sw. Bell Yellow Pages, Inc., No. 2-06-229-CV, 2008 WL 163551, at *3-5 (Tex. App.-Fort Worth Jan. 17, 2008, no pet.) (mem. op.); Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex.App.-Waco 2005, no pet.).
We construe an allegedly defamatory publication as a whole in light of the surrounding circumstances and based upon how a person of ordinary intelligence would perceive it. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex.2000); Wheeler, 49 S.W.3d at 474. A "person of ordinary intelligence" is one who "exercises care and prudence, but not omniscience, when evaluating allegedly defamatory communications." New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex.2004).
Prior to moving for summary judgment, Main and Encounter sent interrogatories to Royall asking him to identify each statement in BULLDOZED that he alleged to be defamatory concerning him. We quote his answers:
Main and Encounter asserted 83 grounds in their no-evidence motion for summary judgment, 79 of which related to Royall's claims that the gist of the book defamed him or that individual statements in or about the book defamed him. Those 79 grounds addressed every page of the book that Royall identified in his response to interrogatories as a basis for his defamation claims. For each of those 79 grounds, Main and Encounter asserted that, as to each identified page, Royall had no evidence that any of the statements on that page contained (1) a verifiable statement of fact, (2) capable of conveying a defamatory meaning, (3) concerning him, (4) that is false. The remaining 4 of the 83 grounds asserted that Royall had no evidence Main and Encounter aided, abetted, and ratified others' defamatory statements concerning him; that Royall had no evidence he was not a limited-purpose public figure; and that Royall had no evidence of any extrinsic fact to prove the statements are defamatory.
Main and Encounter moved for no-evidence summary judgment on each of the four elements of a defamation claim for each of the 79 grounds relating to statements in the book. To overcome the motion and to satisfy his burden, Royall had to produce more than a scintilla of evidence raising a genuine issue of material fact on each of the four elements for each of the 79 grounds. See TEX.R.CIV. P. 166a(i) & cmt. (1997); Grant, 73 S.W.3d at 215; Kaye/Bassman Int'l Corp. v. Help Desk Now, Inc., 321 S.W.3d 806, 812 (Tex. App.-Dallas 2010, pet. denied).
Royall filed a combined response to Main and Encounter's no-evidence and traditional motions for summary judgment and attached over 600 pages of documents to his response. These documents included press releases and other publicity about the book, excerpts from depositions, letters and other documents about the marina project, and affidavits. He argued that his lawsuit pertained only to the "Freeport-related events in BULLDOZED," which he defined as:
Royall excluded the portions of the book dealing with the general history of eminent domain and the discussion of the Supreme Court cases about eminent domain. But he did not respond to the specific grounds in the no-evidence motion for summary judgment. And he did not address each element of a defamation claim with regard to each of the 79 grounds. Instead, Royall addressed one ground (relating to his gist claim) separately and addressed the other 78 grounds together within categories he
To the extent we are able to discern the arguments, we address them below. We begin with ground 74 in the no-evidence motion for summary judgment, which relates to Royall's allegation that the gist of the book defamed him. Then we will address the remaining 78 grounds relating to statements in or about the book.
The Gist of the Book 8
Royall alleged that both the gist of the book as a whole and the gist of individual portions of the book defamed him by implying
Main and Encounter contend that Royall did not raise a proper gist claim.
When a plaintiff alleges that the gist of a publication defamed him, we construe the allegedly defamatory publication as a whole in light of the surrounding circumstances and based upon how a person of ordinary intelligence would perceive it. Wheeler, 49 S.W.3d at 474. Texas law recognizes that a publication may be entirely true in its details yet still "convey a substantially false and defamatory impression by omitting material facts or suggestively juxtaposing true facts." Turner, 38 S.W.3d at 115; Wheeler, 49 S.W.3d at 476. When a publication "gets the details right but fails to put them in the proper context and therefore gets the story's `gist' wrong," Texas law permits liability for defamation. Turner, 38 S.W.3d at 115. Conversely, Texas law precludes liability for a publication that gets the story's "gist" correct,
But even if Royall had raised a proper gist claim, we nevertheless conclude that the gist of BULLDOZED is not about him. Portions of the book tell of the Gores' fight against the City to prevent the City from taking Western Seafood's waterfront property to build a private yacht marina. Other portions of the book focus on other examples of the government's use of eminent domain, describe the history of eminent domain, and explain court decisions relating to eminent domain. The portions of the book about the marina project are obviously written from the Gores' perspective and are critical of government generally and the City in particular. Portions of the book also concern Royall and his involvement in the marina project. But a person of ordinary intelligence would not read the entire book, or even the portions about the marina controversy, and conclude that the gist was that Royall "formed a partnership for the purpose of, and in anticipation of developing a marina in Freeport, Texas by taking property from the owners of Western Seafood Company and putting Western Seafood out of business."
Royall cites Brock v. Tandy, No. 2-08-400-CV, 2009 WL 1905130 (Tex.App.-Fort Worth July 2, 2009, pet. denied) (mem. op. on reh'g), in which our sister court concluded that the gist of an advertisement was defamatory, and argues that the gist of BULLDOZED is "virtually identical" to the gist of the advertisement in that case. We disagree.
In Brock, a public official sued a landowner for defamation over an advertisement in a newspaper. Id. at *1. In the ad, the landowner accused the public official of recording a fraudulent document, of voting to "steal [the landowner's land] the old-fashioned way—eminent domain," and of ruining the landowner's "pasture by condemning a strip of land through the middle of [his] property. . . ." Id. at *1-2. Viewing the ad as a whole, the court concluded that "[a] reasonable person could view the Ad as appearing to impeach [the public official]'s honesty or reputation and to expose her to public hatred, contempt, or ridicule." Id. at *4. The court concluded that the "publication as a whole, as well as at least one of its individual statements," was capable of a defamatory meaning. Id. The individual statement that the court cited in reaching its conclusion was the statement accusing the public official of filing a false document. Id. at *4 & n. 8. Consequently, Brock is not persuasive.
We conclude that the trial court erred by denying the no-evidence motion for summary judgment with respect to ground 74.
The remaining 78 grounds concerned statements in or about the book that Royall contended defamed him. He responded to the no-evidence motion for summary judgment by addressing the "concerning" element of a defamation claim first.
Evidence that Statements are Concerning Royall
For a statement to be actionable as defamation, it must refer to an ascertainable person. Robertson v. Sw. Bell Yellow Pages, Inc., 190 S.W.3d 899, 902 (Tex.App.-Dallas 2006, no pet.); Double Diamond, Inc. v. Van Tyne, 109 S.W.3d 848,
Royall's response was that 26 of the 78 grounds referred to pages in the book that "expressly mention" him by name. He asked the trial court to compare grounds 1, 3, 11, 12, 14, 15, 16, 17, 18, 20, 23, 32, 33, 34, 35, 36, 42, 44, 49, 50, 51, 56, 57, 58, 65, and 68 to specific pages in the book and argued that "[a] statement that names the plaintiff is `of and concerning' him." He did not identify any specific statements on those pages. However, we have reviewed the pages that relate to those 26 grounds that Royall specifically identified in his response and agree that they contain statements that mention him by name. As a result, we conclude that, with regard to those 26 grounds, Royall produced more than a scintilla of evidence that statements on the pages relating to those grounds are concerning him.
With regard to the other 52 grounds (grounds 2, 4, 5, 6, 7, 8, 9, 10, 13, 19, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 37, 38, 39, 40, 41, 43, 45, 46, 47, 48, 52, 53, 54, 55, 59, 60, 61, 62, 63, 64, 66, 67, 69, 70, 71, 72, 73, 75, 76, 77, 78, and 79), Royall quoted statements from the cover of the book, appellants' websites, and press releases, but he did not connect any specific statement to any specific ground in the motion. He also attached the affidavit of Lee Cameron, the director of the Freeport Economic Development Corporation, who testified that he read the book and that "the parts of the book that involve Freeport clearly refer to Walker Royall." Cameron also generally testified that statements about the idea for the marina project, the use of eminent domain for the project, the claimed effect on Western Seafood, and other statements about the marina project "were all clearly, in my reading of the book, directed at Walker Royall and his involvement." But Royall did not connect any of those statements or evidence to any specific ground raised in the motion. And he did not argue that those individual statements were concerning him, only that "defendants' own descriptions of BULLDOZED show that [the book ] was directed at" him. (emphasis added). Consequently, we conclude that, with regard to those 52 grounds, Royall did not carry his burden to produce more than a scintilla of evidence that any of the statements relating to those grounds were concerning him. See TEX.R. CIV. P. 166a(i); Grant, 73 S.W.3d at 215; Milo v. Martin, 311 S.W.3d 210, 213 (Tex.App.-Beaumont 2010, no pet.). We conclude that the trial court erred by denying the no-evidence motion for summary judgment with respect to grounds 2, 4, 5, 6, 7, 8, 9, 10, 13, 19, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 37, 38, 39, 40, 41, 43, 45, 46, 47, 48, 52, 53, 54, 55, 59, 60, 61, 62, 63, 64, 66, 67, 69, 70, 71, 72, 73, 75, 76, 77, 78, and 79. However, to the extent Royall raised any additional arguments in response to those 52 grounds elsewhere in his response to the motion, we will also consider them elsewhere in our analysis.
Evidence of Other Elements of Defamation Claim
We may eliminate ground 68 because Royall's response did not address that ground with regard to any element of a defamation claim other than the element that the statement was concerning him. Consequently, we conclude that the trial
As we stated previously, Royall did not respond to each ground separately (except for ground 74), and, instead, grouped the no-evidence grounds and his response into categories, which he labeled as: "`Lust for Land, `Avaricious' and `Unholy Alliance'"; "Stealing"; "The Genesis of the Marina Project"; "The `Sweetheart Deal'"; and "Threats to the Existence of Western Seafood." We will address the remaining grounds of the motion in the same way that Royall addressed them in his response.
"`Lust for Land,' `Avaricious' and `Unholy Alliance'"
Royall's response grouped grounds 52, 71, 72, 75, 76, and 77 into a category of statements that he alleged accused him of being motivated by a lust for land. We previously concluded that Royall did not produce any evidence that any of the statements on the pages relating to those grounds were concerning him. Additionally, Royall identified only one statement—a commentary on the book's dust jacket that did not mention Royall by name—but did not tie it to a specific ground within this category:
Because the statement did not mention Royall by name, his burden required him to produce more than a scintilla of evidence that the statement was concerning him. But he did not cite any summary judgment evidence relating to any element of his defamation claim for this statement. And he did not assert or explain how he raised a genuine issue of material fact with regard to the six grounds under this category. Consequently, we conclude that the trial court erred by denying the no-evidence motion for summary judgment with respect to grounds 52, 71, 72, 75, 76, and 77.
Under this category, Royall did not tie his response to the specific grounds in the motion or explain how his response established the existence of a genuine issue of material fact on each element of each ground raised in the motion. He grouped certain grounds, here grounds 5, 9, 10, 11, 40, 55, 59, 60, 64, and 79, contending that they related to "defendants' accusation that [he] was attempting to steal land by using eminent domain," but he did not connect the statements in his response to those grounds. And with respect to nine of those ten grounds (all but ground 11), we previously concluded that Royall failed to produce more than a scintilla of evidence that the statements were concerning him.
Ground 11 referred to page 18 of the book. Because the following statement is found on page 18 of the book and is one of the statements that Royall quoted in his response, we presume the statement corresponds to ground 11:
This statement does not accuse Royall of theft as he contends. On appeal, he generally claims, without explanation, that there was summary judgment evidence to raise a fact issue. But he did not cite that evidence in his response to the motion for summary judgment. And he did not otherwise explain or argue how he raised a genuine issue of material fact about whether this statement defamed him.
We conclude that Royall did not produce more than a scintilla of evidence raising a genuine issue of material fact that any statement relating to the grounds argued under this category is capable of a defamatory meaning concerning him. We further conclude that the trial court erred by denying the no-evidence motion for summary judgment with respect to grounds 5, 9, 10, 11, 40, 55, 59, 60, 64, and 79.
"Genesis of the Marina Project"
Royall grouped nine grounds (grounds 1, 2, 3, 14, 15, 17, 32, 44, and 65) into a category he labeled as accusing him of conceiving and initiating the marina project. He argued that statements on pages relating to those grounds are false because he did not initiate the marina project. He also argued that, to the extent the book correctly states that the City approached him about the marina project, it states it in a tone of sarcasm or skepticism. He quoted nine statements from the book. Of those nine, we previously concluded that Royall did not produce more than a scintilla of evidence that four of them (grounds 2, 3, 17, and 32) were concerning him. The other five mention him by name:
Royall argued in his response to the motion that these statements implied that he initiated the marina project and that they are false. He also cited summary judgment evidence in which City officials stated that the City talked to other developers about the marina project before approaching Royall. But Royall did not argue or cite summary judgment evidence that the statements were capable of a defamatory meaning, which is an element of a defamation claim and one of the bases on which Main and Encounter moved for no-evidence summary judgment. We conclude that a person of ordinary intelligence would not perceive the statements about who initiated the marina project as defamatory per se, and Royall did not produce any evidence that the statements are defamatory
Royall grouped 14 grounds (grounds 1, 2, 12, 16, 20, 23, 33, 34, 35, 36, 41, 50, 57, and 58) into a category he labeled as the "sweetheart deal." Under this category, he alleged that the book defamed him by making it appear that he got involved in the marina project to benefit a company on whose advisory board he served. He argued that he did not become an advisory board member of the resort development company until after the company became involved in the project. He quoted the following statements from the book to support his response:
These statements do not indicate one way or the other whether Royall was already on the advisory board of Sun Resorts when Sun Resorts got involved in the marina project. And Royall does not explain how he raised a genuine issue of material fact on each element of his defamation claim with regard to the statements.
Royall also alleged under this category that the book defamed him by making the accusation that the marina project was not open to competition and that he and the City had made a "sweetheart deal." But Royall did not cite any summary judgment evidence or quote any statement from the book that used the term "sweetheart deal." He quoted only the following statements:
And we previously concluded that Royall did not produce more than a scintilla of evidence that these statements were concerning him.
Royall also argued generally that the book repeatedly misrepresented the terms of the agreement, repeatedly assured the readers that Main had thoroughly researched and investigated the issues, and invoked knowledge of facts that were incorrect and incomplete. He generally cited summary judgment evidence—consisting of four exhibits and over 120 pages—attached to Main and Encounter's traditional motion, but he did not cite to any specific page or provision in those exhibits, and he did not cite to his own summary judgment evidence to support his argument. See Hadlock v. Tex. Christian Univ., No. 2-07-290-CV, 2009 WL 485669, at *2 (Tex.App.-Fort Worth Feb. 26, 2009, pet. denied) (mem. op.) (stating that court not required to search for evidence to support party's argument); Burns v. Canales, No. 14-04-00786-CV, 2006 WL 461518, at *6 (Tex.App.-Houston [14th Dist.] Feb. 28, 2006, pet. denied) (mem. op.). He stated that the "facts" in the book about the agreement were "both incorrect and incomplete," but he did not cite to specific summary judgment evidence supporting this argument. He also did not challenge any specific terms of the agreement as expressed in the book other than to contend generally that they are "incorrect and incomplete."
"Threats to the Existence of Western Seafood"
Royall alleged that the book described the marina project as a threat to Western Seafood's existence and the Gore family's livelihood and as an endangerment to the navigation of the Old Brazos River. His response grouped 42 grounds under this category (grounds 1, 2, 3, 4, 5, 6, 7, 10, 13, 14, 18, 19, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 39, 40, 42, 43, 44, 45, 46, 47, 48, 49, 51, 53, 54, 56, 59, 60, 61, 62, 63, and 64). Although Royall quoted 52 statements from the book in his response to those grounds, he did not connect any of those statements to any specific element or any particular ground in the motion. And with respect to all of the grounds except ground 42, we previously concluded that Royall did not produce evidence that the statements relating to those grounds were concerning him.
Ground 42 of the no-evidence motion referred to page 72 of the book. The following statement appears on page 72 of the book; consequently, we presume this quote was intended to identify the statement Royall claimed was defamatory on page 72 of the book:
This quote reflects Wright Gore III's attitude towards Royall. Royall did not argue or explain how it is capable of a defamatory meaning concerning him. We conclude that Royall did not raise a genuine issue of material fact with respect to grounds 1, 2, 3, 4, 5, 6, 7, 10, 13, 14, 18, 19, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 39, 40, 42, 43, 44, 45, 46, 47, 48, 49, 51, 53, 54, 56, 59, 60, 61, 62, 63, and 64, and that the trial court erred by denying the no-evidence motion for summary judgment with respect to those grounds.
In summary, we have examined the 79 grounds in the no-evidence motion that address statements in the book and have concluded that Royall did not raise a genuine issue of material fact regarding any of the grounds. We conclude that the trial court erred by denying the no-evidence motion for summary judgment with respect to grounds 1 through 79. We resolve issue four in appellants' favor.
AIDING/ABETTING AND RATIFYING DEFAMATORY STATEMENTS
In their sixth issue, Main and Encounter argue that Royall did not produce more than a scintilla of evidence to support his claims that they "intended to assist, and actually assisted and encouraged, each of the other Defendants in committing libel." Ground 82 in the no-evidence motion for summary judgment asserted: "There is no evidence that Defendants have `aided and abetted' the libel of any other person. See (Pl.'s 3d Am. Pet. at para. 69)." Ground 83 asserted: "There is no evidence that Defendants have `sponsored, financed, authorized, and/or ratified' the libel of any other person. See (Pl.'s 3d Am. Pet. at para. 70)."
Grounds 82 and 83 generally challenged Royall's evidence to support the claims for aiding, abetting, and ratifying defamation and did not assert that there was no evidence
GROUNDS NOT RAISED ON APPEAL
Main and Encounter did not appeal the trial court's denial of their no-evidence motion for summary judgment on grounds 80 and 81, which asserted that Royall did not produce more than a scintilla of evidence that he is not a limited-purpose public figure (ground 80) and that any extrinsic fact rendered any statement made by them libel per quod (ground 81). Because Main and Encounter do not raise grounds 80 and 81 as a basis for reversal of the trial court's order on appeal, those grounds are not before us and we do not consider them.
TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT
Main and Encounter argue that the trial court erred by denying their traditional motion for partial summary judgment. The motion raised three issues: (1) whether Royall is a limited-purpose public figure, (2) whether the statements are about matters of public concern, and (3) whether Main and Encounter are "members of the electronic or print media." These issues affect Royall's burden below. See Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 776, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) (stating that a private plaintiff who sues a media defendant over an issue of public concern bears the high burden of showing the defendant published a defamatory falsehood with actual malice); McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex.1990) (same); McLemore, 978 S.W.2d at 571 (stating that a public figure bears the higher burden of showing that the defendant published a defamatory falsehood with actual malice). We previously decided issue three in our analysis of the jurisdictional question. We reverse the trial court's order denying the traditional motion for partial summary judgment with respect to whether Main and Encounter are members of the electronic or print media. And we conclude that we do not need to decide the remaining two issues because they do not affect the final disposition of this appeal. See TEX.R.APP. P. 47.1 (stating court of appeals must address every issue necessary to final disposition of appeal); Cates, 927 S.W.2d at 626.
We reverse the trial court's order denying the no-evidence motion for summary judgment with respect to grounds 1 through 79 and render judgment that Royall take nothing by his claims on those grounds. We affirm the trial court's order denying the no-evidence motion for summary judgment on grounds 80, 81, 82, and 83. We reverse the trial court's order denying the traditional motion for partial summary judgment with respect to whether Main and Encounter are members of the electronic or print media. We remand this cause to the trial court for further proceedings consistent with this opinion.
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