MAIN v. ROYALL
CARLA T. MAIN AND THE ENCOUNTER FOR CULTURE AND EDUCATION, INC., Appellants,
v.
H. WALKER ROYALL, Appellee.
No. 05-09-01503-CV.
Court of Appeals of Texas, Fifth District, Dallas.
Opinion Filed July 25, 2011.
Before Justices BRIDGES, RICHTER and LANG-MIERS.
OPINIONOpinion 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 and traditional motion for partial summary judgment. Royall contends that we do not have jurisdiction to entertain this interlocutory appeal. We affirm in part and reverse and render in part.
BackgroundMain 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 (2005).1 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,2 to develop and operate the marina; and the many lawsuits filed over the project. 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.
1. In Kelo, the Supreme Court concluded that the city's taking of property by eminent domain from one citizen and giving it to another who would improve the property and increase its value was a "public use" under the Fifth Amendment to the United States Constitution because the taking was for the benefit of the city by providing increased taxes. 545 U.S. 469 passim.
2. Royall is a descendant of the Blaffer family and was a co-owner of the land on which the City proposed to build the marina.
3. The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." U.S. Const. amend. I. Article I, section 8 of the Texas Constitution provides that "[e]very person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. . . ." Tex. Const. art. I, § 8. "Chapter 73" refers to the libel statute in the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. §§ 73.001-.006 (West 2005).
4. In Harvest House Publishers v. Local Church, 190 S.W.3d 204 (Tex. App.-Houston [1st Dist.] 2006, pet. denied), the court considered a book author's interlocutory appeal under this statute. Jurisdiction was not raised as an issue in that case. See id. at 209.
5. Our conclusion is supported by a statute recently enacted by the legislature granting a privilege to certain witnesses against disclosing information about their sources. See Tex. Civ. Prac. & Rem. Code Ann. § 22.021(3) (West Supp. 2010); Kaufman, 291 S.W.3d at 142. It defines "news medium" to mean "a newspaper, magazine or periodical, book publisher . . . that disseminates news or information to the public by any means, including: (A) print;. . . ." Tex. Civ. Prac. & Rem. Code Ann. § 22.021(3) (emphasis added); Kaufman, 291 S.W.3d at 142. And it defines" journalist" to mean "a person, . . who for a substantial portion of the person's livelihood or for substantial financial gain, . . writes . . . news or information that is disseminated by a news medium . . . ." Tex. Civ. Prac. & Rem. Code Ann. § 22.021(2).
6. In his response, Royall argued that the no-evidence motion for summary judgment "takes individual pages, and specific parts of the book's cover and dust jacket, and makes the blanket assertion that there is no evidence of the same four elements." He contended that Main and Encounter" have clearly chosen not to think seriously about their own book" because the statements he identified as defamatory "involve multiple pages; many others require related pages for context." He argued that the motion did "not fairly or clearly present the issues or elements," but stated that he would respond, despite his objection to the motion, by grouping the grounds "by subject matter . . . ." Main and Encounter argue that we must review each statement individually. Although Royall argued in his response and in his appellate briefing that we must consider the statements in context, in oral argument he also stated that we must review each statement separately. However, because Royall's response and appellate brief did not address each statement separately but, instead, by subject matter, we will review the statements separately to the extent possible and, if not, by subject matter.
7. Royall argues that Main and Encounter judicially admitted, in a previous motion for summary judgment, that a majority of the statements were "factual in nature." We reviewed the record that Royall cites, but were unable to locate where Main and Encounter stated that certain statements were "factual in nature" except in a heading in the pleading. The substance of the argument under that heading does not support Royall's contention. Consequently, we do not conclude that these are judicial admissions to which they are bound.
8. "Gist" means the "essence" or "main point or material part." Webster's Third New International Dictionary 959 (1981). Royall cites other publications to support his gist claim, but we consider only the book itself in determining whether its gist defamed him.