ORAL ARGUMENT

CONDITIONALLY REQUESTED

OS-09-01S03-CV

IN THE COURT OF APPEALS

FOR THE FIFTH DISTRICT OF TEXAS
DALLAS, TEXAS

CARLA T. MAIN and THE ENCOUNTER FOR CULTURE AND EDUCATION, INC.

Appellants

v.

H. WALKER ROYALL

Appellee

APPELLEE'S AMENDED BRIEF

From The 44th Judicial District Court

Dallas County, Texas, Honorable Carlos Cortez, District Judge

Robert Gilbreath Patrick Zummo

State Bar No. 07904620 State Bar No. 22293450
Hawkins, Parnell & Thackston, LLP 3900 Essex Lane, Suite 800
4514 Cole Avenue, Suite 500 Houston, Texas 77027
Dallas, Texas 75205 (713) 651-0590
(214) 780-5100 (713) 651-0597 (Fax)
(214) 780-5200 (fax)

ATTORNEYS FOR
APPELLEE H. WALKER ROYALL
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TABLE OF CONTENTS
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Page

I' Table of Authorities ................................................................................................. iv

r. Statement Regarding Oral Argument ....................................................................... x

!
Issues Presented ........................................................................................................ x
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I Response to Appellants= Statement of Facts ........................................................... 1

Summary of the Argument ....................................................................................... 3

Argument .................................................................................................................. 7
[
1. This Appeal Should Be Dismissed Because
The Court Lacks Jurisdiction .............................................................. 7
[

A. Appellants Are Not Among The Class

Of Defendants Authorized By Statute
To Seek An Interlocutory AppeaL .......................................... 8

B. The Issues Raised By Appellants Are Not

Among The Subjects For Which The Statute
Permits An Interlocutory Appeal.. ......................................... 12
I II. The District Court Properly Denied The Motion For
Partial Summary Judgment ............................................................... 14

A. A Plaintiff Must Engage In Voluntary

Conduct To Be Any Kind Of Public Figure .......................... 14

B. The Institute=s Motion For Partial Summary

Judgment Did Not Address Any Of
The Parts Of BULLDOZED That Are
The Subjects Of Royall's Claims .......................................... 15

C. There Was No Public Controversy When

Royall Agreed To Help Freeport With Its
Marina Proj ect. ...................................................................... 16

D. Appellants Are Not Media Defendants ................................. 22

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,. III. The District Court Properly Denied The No Evidence Motion ........ 22

A. The Institute Did Not Move For Summary

[. Judgment On All Of Walker Royall's Claims ....................... 22

[ ,
B. The Summary Judgment Record Raised
Questions Of Fact Whether Royall Was
Libeled By The "Gist" Of BULLDOZED ............................. 23

I. The Definition Of A Publication's Gist ..................... 23

I 2. The Gist Of BULLDOZED Is Virtually

Identical To The Gist Of A Statement
That The Fort Worth Court Of Appeals
Has Held To Be Defamatory ...................................... 25
I
C. Apellants Were Not Entitled To "No Evidence" Summary
I Judgment On Individual Pages of BULLDOZED ................ .31

1. Appellants Admitted That Most Of

I The Statements At Issue Are Factual
In Nature ..................................................................... 32
I
2. Appellants Could Not Obtain A No
Evidence Summary Judgment On
I Falsity Because Truth Is An
Affirmative Defense .................................................. .33

3. Appellants Were Not Entitled To A

No Evidence Summary Judgment Because
Their Statements Are "Of And Concerning"
Royall ......................................................................... 33

I 4. Appellants Were Not Entitled To A No

Evidence Summary Judgment Because Their
Statements Were Capable Of Defamatory
Meaning ..................................................................... .35

a. Greed, Lust and the "Unholy Alliance." ......... 35

II
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b. Stealing Western Seafood's Property And
r Putting The Company Out Of Business .......... 36
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c. The "Sweetheart Deal" .................................. .37

I' D. The District Court Correctly Overruled The
Objections To Royall's Summary Judgment
[ ,
Evidence ............................................................................... .42

E. Appellants Were Not Entitled To No Evidence

f
I Summary Judgment Regarding The Book Review .............. .43

IV. Walker Royall Is Entitled To Reimbursement Of All

Attorney Fees On Appeal ................................................................ .43

Conclusion and Prayer ............................................................................................ 43

Certificate of Service .............................................................................................. 46

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TABLE OF AUTHORITIES
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Cases Page

r' A.H. Bela & Co. v. Fuller,

!, ,
84 Tex. 450,19 S.W.616 (1892) ........................................................... 35, 36

,f ' Alaniz v. Hoyt,

105 S.W.3d 330 (Tex. App.--Corpus Christi 2003, no pet.) ....................... 39
..
Astoria Industries v. SNF, Inc.,
, .
223 S.W.3d 616 (Tex. App.--Fort Worth 2007, pet. denied) ............... 10, 12

Bentley v. Bunton,
94 S.W.3d 561 (Tex. 2002) ................................................................... 16,38

Brock v. Tandy,
No. 2-08-400-cv, 2009 Tex. App. LEXIS 5171
(Tex. App.--Fort Worth 2009, pet. denied) .......................... 5, 26, 27, 30, 37

r Carr v. Forbes, Inc.,

I 259 F.3d 273 (4th Cir. 2001) ........................................................... 15, 19,20

[ Case Corp. v. Hi-Class Bus. Sys. ofAm., Inc.,

184 S.W.3d 760 (Tex. App.--Dallas 2005, pet denied) .............................. 42

[ Christy v. Stauffer Publications, Inc.,

437 S.W.2d 814 (Tex. 1969) ....................................................................... 36

City ofKeller v. Wilson,

168 S.W. 3d 802 (Tex. 2005) ...................................................................... 24

Community Initiatives, Inc. v. Chase Bank,

153 S.W.3d 270 (Tex. App.--El Paso 2004, no pet.) .................................. 42

Continental Airlines, Inc. v. Kiefer,

920 S.W. 2d 274 (Tex. 1996) ...................................................................... 23

Cram Roofing, Inc. v. Parker,

131 S.W.3d 84 (Tex. App.--San Antonio 2003, no pet.) ............................ 31

IV
 , '

Dibella v. Hopkins,
,
I '
403 F.3d 102 (2d Cir. 2005) ........................................................................ 35

Dyer v. Shafer, Gilliland, Davis, McCullum & Ashley, Inc.,

r' 779 S.W.2d 474 (Tex. App.--El Paso 1989, no writ) ............................ 41, 42
I
I .

Einhorn v. LaChance,
,f ' 823 S.W. 2d 405 (Tex, App.--Houston [Ist Dist.] 1992,
writ dism'd) ., .... ,........................................................................................ 16
,.
Foster v. Laredo Newspapers, Inc.,
541 S.W.2d 809 (Tex. 1976) ....................................................................... 11

Freedom Newspapers of Texas v. Cantu,

126 S.W3d 185 (Tex. App.--Corpus Christi 2003, no pet.) ........................ 31

Gateway Logistics Group, Inc. v. Dangerous Goods Management

,. Australia Pty, Ltd,
No. H-05-2742, 2008 U.S. Dist. LEXIS 34246) ................................... 35, 39

Gaylord Broadcasting Co. v. Francis,

7 S.W. 3d at 286 .................................................................................... 30, 42

Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974) .............................................................................. 11, 14

Grant v. State,
140 Tex. Crim. 46, 143 S.W. 2d 3838 (1940) ............................................. 35
r

Grant v. Wood,
916 S.W. 2d 42 (Tex. App.--Houston [Ist Dist.] 1995,
orig. proceeding) ........................................................................................... 7

Harvest House Publishers v. Local Church,

190 S.W. 3d 204 (Tex. App.--Houston [Ist Dist.] 2006, pet. denied) ...... 10

Hutchinson v. Proxmire,
443 U.S. III (1979) .................................................................................... 19

In re NE.B.,
251 S.W. 3d 211 (Tex. App.--Dallas 2008, no pet.) ................................... 23

v
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i.

Johnson v, Brewer & Pritchard, p, C,

, '
73 S.W. 3d 204 ............................................................................................ 16

KTRK Television, Inc, v, Fowkes,

I ' 981 S.W.2d 779 (Tex. App.--Houston [1 st Dist.] 1998,
I pet. denied) .................................................................................................... 8

. Kaufman v. Islamic Society,

291 S.W.3d 130 (Tex. App.--Fort Worth 2009, pet. denied) .................. 9, 10

Klager v. Worthing,
966 S.W.2d 77 (Tex. App.--San Antonio 1996, writ denied) ..................... 42

I Klentzman v, Brady,
2009 WL 5174369 (Tex. App.--Houston [1st Dist.] 2009,
no pet.) ....................................................................................... 14, 15,21,31

Knox v, Taylor,
[ 992 S.W. 2d 40 (Tex. App.--Houston [14th Dist.] 1999, no pet.) ............... 39

LED Sign Co, v, Hwee,

No. H-08-1463, 2008 US. Dist. LEXIS 2008 (S.D, Tex. 2008) ................ 39

Little v. Breland,
93 F.3d 755 (lith Cir. 1996) ................................................................. 20,21

Market America, Inc. v . Rossi, th .

2000 U.S. App. LEXIS 29022 (4 Cir. 2000) ....................................... 35, 40

McDowell v. Paiewonsky,
769 F.2d 942 (3d Cir. 1985) ........................................................................ 21

McIlvain v. Jacobs,
794 S.W2d 14 (Tex. 1990) ................................................................... 11,24

Metcalfv, KFOR-TV,
828 F. Supp. 1515 (W. D. Okla. 1992) ....................................................... 35

Milkovich v, Lorain Journal Co.,

497 U.S. 1 (1990) ........................................................................................ 44

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Morrill v. Cisek,
226 S.W.3d 545, 550 (Tex. App.--Houston [lst Dist.] 2006,
no pet.) ......................................................................................................... 39
, . New Times, Inc. v. Isaacks,
146 S.W.3d 144 (Tex. 2004) ....................................................................... 32

New York Underwriters Ins. Co. v. Sanchez,

799 S.W.2d 677 (Tex. 1990) ......................................................................... 7

Newspapers, Inc. v. Matthews,

161 Tex. 284, 339 S.W. 2d 890 (1960) ........................................... 33, 34, 35

Partington v. Bugliosi,
56 F.3d 1147 (9 th Cir. 1995) ........................................................................ 10

Philadelphia Newspapers, Inc. v. Hepps,

475 U.S. 767 (1986) .................................................................................... 11

Poe v. San Antonio Express-News Corp.,

590 S.W. 2d 537 (Tex. Civ. App.--San Antonio 1979, no writ) ................. 33

Quebe v. Pope,
201 S.W.3d 166 (Tex. App.--Houston [14th Dist.] 2006,
pet. denied) .......................................................................................... 8, 9, 10

Randall's Food Mkts v. Johnson,

891 S.W.2dat646 ...................................................................................... 33

Riley v. Harr,
292 F .3d 282 (1 st Cir. 2002) ........................................................................ 10

Rogers v. Cassidy,
946 S.W. 2d 439 (Tex. App.--Corpus Christi 1997, no pet.) .................. 9,10

Rosenblatt v. Baer,
383 U.S. 75 (1966) .................................................................................... 44

Scripps Texas Newspapers, L.P. v. Belalcazar,

99 S.W.3d 829 (Tex. App.--Corpus Christi 2003, pet. denied) ....... 30-31,32

Vll
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Shearson Lehman Hutton, Inc, v. Tucker,

! ' 806 S.W.2d 914 (Tex. App.--Corpus Christi 1991,
, ' writ dism'd w.o.j.) ....................................................................................... 39
,
j
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Snead v. Redland Aggre~ates, Ltd.,
998 F.2d 1325 (5 Cir. 1993) ...................................................................... 37
f •
I
( State Fair v. Iron Mountain Information Management, Inc.,
299 S.W.3d 261 (Tex. App.--Dallas 2009, no pet.) .................................... 13

TSM AM-FM TV v. Meca Homes, Inc.,

969 S.W. 2d 448 (Tex. App.--El Paso 1998, pet. denied) .......................... 16

Texas A&M Univ. System v. Koseoglu,

233 S.W.3d 835 (Tex. 2007) ......................................................................... 7

Tucker v. Fishbein,
I. 237 F.3d 275 (3d Cir. 2001) ............................................................ 35, 39, 40
i
Turner v. KTRK, Inc.,
38 S.W.3d 103 (Tex. 2000) ................................................................... 24,31
[
United States v. Young Bros" Inc.,
[ 728 F.2d 682 (5 th Cir. 1984) ........................................................................ 41

United States ex. rei. Marcus v. Hess,

r 317 U.S. 537 (1943) ......................................... ,.... ,..................................... 41

WFAA-TV, Inc. v. McLemore,

978 S.W.2d 568 (Tex. 1998) ........................................................... 14,16,30

Whitehead v. State,
148 Tex. Crim. 190, 185 S.W. 2d 725 (1945) ............................................. 35

Wolston v. Reader's Digest Ass 'n,

443 U.S. 157 (1979) .................................................................. 14, 15, 17,20

I
Constitutions and Statutes

I United States Constitution, Amendment 1 ................................................... 7, 12, 13

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f ' Texas Constitution, Article I, Section 8 ""'''''''"."." .. ,,'''''','''''','',,'''''''' 7, 12, 13,44

Tex. Civ. Prac. & Rem, Code § 5LOI4(a)(6) ....... "."."".""."""" .. "",,,, .... 3,4,7-13
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Tex. Civ. Prac. & Rem. Code § 5LOI4(d) " .................................... " .... " .. """ .. ,,. 13
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Tex. Civ. Prac. & Rem. Code § 51.015 ... " ......... " .................... " ........................ 6,42

Tex. Civ. Prac. & Rem. Code Chapter 73 ............................................... "." 7, 12, 13

Tex. Civ. Prac. & Rem. Code § 73.005 ........................ " ........... " ........ " ......... 5,8,33
i .
Tex. Loc. Gov't Code Chapter 252 .......... " ....................................... " .................. 41

Tex. Loc. Gov't Code Chapter 271 ........................................................................ 41

Rules

Tex. R. App. P. 38.1(h) .......................................................................................... 23

Tex. R. Civ. P. Rule 166a ........................ " ....................................................... 6,32

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l.
I . Secondary Authorities
I
Prosser & Keeton on Torts (1984) ....................................................................... 24

Restatement (Second) of Torts § 563 (1977) ......................................................... 24

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STATEMENT REGARDING ORAL ARGUMENT
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Oral argument is unnecessary because Appellants have not shown that this

Court has jurisdiction of this interlocutory appeal. Appellee objects to jurisdiction

because Appellants are not members of the "electronic or print media" as required
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by Tex. R. Civ. Prac. & Rem. Code I S1.014(a)(6), and because the issues raised

by Appellants do not fall within those allowed by that Section. If, however, the
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Court decides to hear this interlocutory appeal, Appellee requests that he also be
I
permitted to present oral argument.

ISSUES PRESENTED

I 1. Does the Court have jurisdiction over this interlocutory appeal under

I I S1.014(a)(6) ofthe Texas Civil Practice & Remedies Code.

2. Were Appellants properly denied partial summary judgment on the issue of

I
whether Walker Royall must prove actual malice and falsity when this case is tried

to a jury?

3. Did the district court properly deny Appellants' no evidence motion for

summary judgment?

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RESPONSE TO APPELLANTS' STATEMENT OF FACTS
I .

,. Appellee H. Walker Royall is a private citizen who has never sought publicity and
!' who values his privacy. (1 2d SUpp. C.R. 189-90)1 Royall does not agree with the
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Institute's statement of facts.

Royall and members of his family owned property in Freeport, Texas on the Old
,.
Brazos River. Based on a study by an independent consultant, the City of Freeport

decided that building a marina would lead to badly needed economic development. The

City chose a location for the marina that included the land owned by Royall's family. (1

2d SUpp. C.R. 185,201-04; 2 2d SUpp. C.R. 350-55)2

[ The City approached Royall and asked him to lead the development of the marina

project because none of the other landowners had real estate development experience. (1
[
2d SUpp. C.R. 185, 202-04) The City told Royall that all of the landowners involved
[
supported the marina project. (Jd. at 190-91) Royall has never been involved in any real

r estate development where eminent domain was to be used to acquire the land, and he had

no reason to believe that it would be used for the marina. (1 2d SUpp. C.R. 191) In June
I
2002 Royall agreed to assist the City, but he would not have gotten involved if there had

been opposition to either the marina project or his personal involvement in it. (Id. at 162-

67, 190-91)

Western Seafood Company is also located on the Old Brazos River. (2 2d SUpp.

C.R. 472-74) Western is owned by a family limited partnership controlled by Wright

I Gore, Jr. (1 2d SUpp. C.R. 122-23) Western has a shrimp processing facility with two

I 1 Royall's affidavit is attached as Appendix A.

2 The Lee Cameron Affidavit is attached as Appendix B.
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docks extending into the river where shrimp boats are unloaded. Western and other Gore
,'
,. entities own over 2,500 feet of river frontage where shrimp boats tie up until they can

unload. (1 2d Supp. C.R. 141-47,267-68; 2 2d Supp. C.R. 372-76) Three hundred and

thirty feet of this frontage is between the processing plant and Royall's family property,

and the City proposed including this tract in the marina. (Id.) There were no indications

that Western objected to this until Western sued the City in September 2003, more than a

year after Royall had agreed to be involved. (l2d Supp. C.R. 186, 190) Western did not

name Royall in this suit. (ld. at 190)

The Institute for Justice assisted Western in the litigation, including filing an

amicus curiae brief when Western appealed to the Fifth Circuit. (2 2d Supp. C.R. 514-

17) In April 2004, Western began a public relations campaign targeting Royall as the
I
instigator of the marina project. (Id. at 508-12) Western's websites included links to the
I Institute for Justice and another Institute group called the Castle Coalition. (Id.) In fact,

Royall never suggested or encouraged the use of eminent domain in connection with the

marina. (l 2d Supp. C.R. 192,200-01)

In late 2004, Wright Gore III met Main at a workshop on the subject of eminent

domain. Main asked Gore to stay in touch with her. (5 C.R. 994, p. 7_8)3 Main

contracted with Encounter to write a book about eminent domain. (2 2d Supp. C.R. 525-

33) Because it was hard to get people interested in the topic (5 C.R. 994, p. 7), they

needed a "hook." (l C.R. 64) They decided that describing the Freeport marina project

3 In this brief, Royall will cite to BULLDOZED by citing the first page of this exhibit in the record, 5 C.R. 994,
followed by the page number of the book itself.

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as an "unholy alliance between city politicians and avaricious developers" would be a

good hook. (6 C.R. 1314) BULLDOZED, "Kelo", Eminent Domain, and the American

Lust for Land was published in late 2007. (5 C.R. 998) The book is a combination of

r' the history of eminent domain and the Kelo decision (Id., Ch. 5-8) and a claimed "unholy
I
alliance" between the City and Royall to steal the Gores' land and destroy Western

Seafood. (/d., Ch. 1-4,9-11)

Royall has sued Main and Encounter for defaming him. He specifically identified

what in the book was defamatory (4 C.R. 899-934) and what was not. (2 2d Supp. C.R.

601-04) Royall made it clear that his claims did not involve the parts of BULLDOZED

describing the general history of eminent domain, or appellants' opinions about its use or

abuse. If Appellants had not decided that they needed to defame him in order to sell their

book, this lawsuit would not have been necessary.

[
SUMMARY OF THE ARGUMENT

[ The Court lacks jurisdiction over this appeal. A party's right to appeal an

interlocutory order is limited. Tex. Civ. Prac. & Rem. § 51.014. Appellants rely on sub-

section 6, which allows "a member of the electronic or print media" to appeal the denial

of a motion for summary judgment, to provide a path to the courthouse, but they are not

members of that Class. Tex. Civ. Prac. & Rem. § 51.014(a)(6). Though Appellants are

the author and publisher of a book, the section applies only to members of the media

involved in the dissemination of news. The Court's acceptance of jurisdiction over this

3
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appeal would create a right of interlocutory appeal in virtually all libel cases, allowing the
, '

exception to swallow the rule,

SectionS 1,014(a)(6) further limits the issues that this court may consider to claims

or defenses under the First Amendment, the Texas Bill of Rights or Chapter 73 of the

Texas Civil Practice & Remedies Code, Id. Appellants have geared their brief towards

the first issue, framing their First Amendment argument around their motion for partial

summary judgment, which sought only to obtain pretrial rulings regarding the pertinent

standard of proof in a libel case, But section SL014(a)(6) was not intended to authorize
[
interlocutory appeal for the purpose of giving advisory rulings,

[ The trial court correctly denied Appellants' motion for partial summary judgment

Appellants have not shown that the burden of proving falsity should be shifted to RoyalL
[

Moreover, Appellants' summary judgment argument that eminent domain is a matter of

I
public concern is directed at sections of BULLDOZED that Royall does not even contend
I
are defamatory,

Appellants were not entitled to a ruling that plaintiff is a "limited purpose public

figure" because there is a genuine issue of material fact on that issue, In a libel action,

the existence of a public controversy is judged at the time the plaintiff made the decision

leading to his involvement in the allegedly controversial issue, Here, there is no evidence

as to the existence of any controversy concerning the Freeport marina at the time Royall

agreed to assist the City of Freeport,

4
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Appellants were not entitled to partial summary judgment that they are media
I '

defendants for the same reasons that there is no appellate jurisdiction of this appeal, as
r' discussed above.
I
!' Appellants were not entitled to a no evidence summary judgment because their
I
motion failed to address all of Walker Royall's claims, including his claims based on the

Institute for Justice press release and the "editorial" published by Main and Roger

Kimball, an agent of Encounter.

Appellants were not entitled to a no evidence summary judgment because the

"gist" of their publication and statements at issue here are virtually identical to an

advertisement that the Fort Worth Court of Appeals recently held was capable of a

defamatory meaning. Brock v. Tandy, No. 2-08-400-cv, 2009 Tex. App. LEXIS 5171

(Tex. App. - Fort Worth 2009, pet. denied) (not designated for publication) (statement
I that mayor and city government tried to steal land using eminent domain was capable of

defamatory meaning.) Royall's allegations of defamation are well supported by Texas

law.

Appellants were not entitled to no evidence summary judgment concerning 72

identified pages of BULLDOZED because:

(a) Each page identified states verifiable facts that are capable of defamatory

meaning.

(b) The truth is an affirmative defense. Tex. Civ. Prac. Rem. § 73.005. No

evidence surnmary judgment cannot be granted against a plaintiff on any issue

5
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where the plaintiff does not have the burden of proof. Without waiving his
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. objection that Appellants have the burden of proof, Royall also showed that there
,.
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was a genuine issue regarding the truth or falsity of statements on the identified
I
pages.
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(c) The defamatory portions of BULLDOZED were "of and concerning" Royall

because (i) most of the portions identified specifically named Royall, (ii)

Appellants' own statements show that the book concerned Royall, and (iii) a

witness who is familiar with Royall and who read BULLDOZED understood that

those portions of the book were directed at Royall.

(d) The statements were all capable of defamatory meaning when viewed in

context.

The district court correctly overruled Appellants' objections to Royall's summary

r
l judgment evidence. The deposition testimony was admissible under Rule 166a(c) as that

[ rule has been interpreted by the courts. The other challenged exhibits were non-hearsay

statements of operative fact.

I
Appellants were not entitled to no evidence summary judgment on Royall's claims

that they aided, abetted and ratified defamation in a book review because Appellants did

not identifY any of the elements of these causes of action in their motion, as required by

Rule 166a(i). In addition, Royall presented summary judgment evidence that Appellants

ratified and republished the book review.

,

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Royall will be entitled to his costs and attorneys' fees on this appeal under Tex.
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Civ. Prac. & Rem. Code §51.oI 5.

I'
ARGUMENT
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I. This Appeal Should Be Dismissed Because The Court Lacks Jurisdictiou.

I This interlocutory appeal should be dismissed because the Court lacks jurisdiction.

Unless authorized by statute, a party may not appeal the denial of a motion for summary
I

judgment because it is not a final judgment. Texas A&M Univ. System v. Koseoglu, 233

S.W.3d 835, 840 (Tex. 2007). It is fundamental error for a court to assume jurisdiction of

an appeal of an interlocutory order unless authorized by statute. New York Underwriters

I Ins. Co. v. Sanchez, 799 S.W.2d 677,679 (Tex. 1990). The Institute assumes that there is
I .

jurisdiction here without presenting any supporting evidence or argument.

The only basis for appellate jurisdiction mentioned by the Institute follows its

statement of the case, where it says "See Tex. Civ. Prac. & Rem. Code § 51.014(a)(6)."

The Institute does not explain its contention that this Section authorizes this appeal.

§ 51.014(a)(6) allows appeal of an interlocutory order that:

denies a motion for summary judgment that is based in whole

or in part upon a claim against or defense by a member of the
electronic or print media, acting in such capacity, or a person
whose communication appears in or is published by the
electronic or print media, arising under the free speech or free
press clause of the First Amendment of the United States
Constitution, or Article 1, Section 8, of the Texas
Constitution, or Chapter 73.

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Tex. Civ. Prac. & Rem. Code Ann. § Sl.014(a)(6). The purpose of this statute is to
! '
provide a prompt interlocutory appeal to electronic or print media defendants so that they

can avoid the expense of a trial. Grant v. Wood, 916 S.W. 2d 42, 46 (Tex. App. -

Houston [1 st Dist.] 1995, orig. proceeding).

r.
The Institute makes no effort to show that this appeal qualifies under §
!'
i Sl.014(a)(6). Its brief does not show that Main or Encounter are members of the
, "electronic or print media;" in fact, it never even mentions this phrase. The Institute also
t,

,
I ' fails to show that the subject matter of this appeal concerns claims or defenses based on

, ,
the constitutional and statutory provisions specified in Sl.014(a)(6). The Institute

. , apparently assumes that any defendant in a defamation case is entitled to an interlocutory

, '
appeal.
!I '

It is not so. The legislature did not create a right of interlocutory appeal in all libel

cases. In Quebe v. Pope, 201 S.W.3d 166, 170 n.S (Tex. App. - Houston [14th Dist.]

2006, pet. denied), the defendant in a libel case argued that interlocutory appeal was
, .

authorized because the underlying motion for summary judgment was based on the

affirmative defense of truth, pursuant to Tex. Civ. Prac. & Rem. Code § 73.00S. Id. at

169. The court held that the statute was not intended to provide an interlocutory appeal

to every libel defendant asserting truth as a Chapter 73 defense. Id.

A. Appellants Are Not Among The Class Of Defendants Authorized By

"
Statute To Seek An Interlocutory Appeal.

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Main is the author of the book "Bulldozed," and Encounter published the book.
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I, Are Main and Encounter members of the "electronic or print media"? The courts that

r'" have addressed the scope of the class of "e1ectronic or print media" say "No."

f' In KTRK Television, Inc. v. Fowkes, 981 S.W.2d 779 (Tex. App. - Houston [I't
i
Dist.] 1998, pet. denied), the court upheld Tex. Civ. Prac. & Rem. Code § S1.014(a)(6)
I .

against a constitutional challenge. The court described the class of "media defendants"
.. eligible to file an interlocutory appeal:
l
[§ 51.014(a)(6)] applies to metropolitan television stations,
small-town newspapers, family-owned radio stations, school
newspapers, individual reporters, and anyone else who
disseminates news to the public.
[
Id. at 784 (emphasis added). This is consistent with the statute's legislative history:
[
The purpose of the section is "to allow a newspaper, radio
station or television station that was sued for libel to make an
[ ,
immediate appeal of a judge's refusal to grant a summary
judgment." House Research Org., Bill Analysis, Tex. S.B.
76, 73 rd Leg., RS. (41).
[
Rogers v. Cassidy, 946 S.W. 2d 439, 443 (Tex. App. - Corpus Christi 1997, no pet.).

I More recently, the Fourteenth Court of Appeals looked to the statute's legislative history

to determine the meaning of the phrase "published by the electronic or print media." A

note accompanying an amendment explained: "For example, it would cover persons who

have letters or op-ed pieces published in newspapers or magazines or who express their

opinions on radio or television programs." Quebe v. Pope, 201 S.W.3d 166, 170 n.S (Tex.

I. App. - Houston [14th Dist.] 2006, pet. denied). Main and Encounter are not newspapers,

9
, '

,r' ,

,I, '
radio stations, television stations or otherwise members of the electronic or print media,

They wrote and published a book in late 2007, about events that occurred years earlier.

They were not disseminating any "news."

In 2009, the Fort Worth Court of Appeals applied § Sl.014(a)(6), which was
r'
[
, .
enacted in 1993, to the evolving technology of online journalism. Kaufman v. Islamic

Society, 291 S.W.3d 130 (Tex. App. - Fort Worth 2009, pet. denied). Reasoning that the

statute should conform to new technology, it found that an internet magazine publisher

was a member of the electronic media authorized to pursue an interlocutory appeal under

Tex. Civ. Prac. & Rem. Code § Sl.014(a)(6). Traditional print books like BULLDOZED

I were obviously an existing technology when § Sl.014(a)(6) was adopted, and were not

mentioned in the express terms of the statute or in its legislative history.

I
In a different context, the Institute relies on just three cases to argue that authors
I and publishers of books are "media defendants." (Brief at p.1S) Two of these cases,

l Riley v. Harr, 292 F.3d 282 (l'1 Cir. 2002) and Partington v. Bugliosi, S6 F.3d 1147 (9 th

Cir. 1995) are from jurisdictions other than Texas and do not interpret the Texas Civil
[

Practice & Remedies Code. In both cases, the plaintiffs did not contest the defendants'

contentions that writing and publishing books made them "media defendants" for

purposes of the burden of proving truth or falsity. The Institute's sole Texas case never

discusses Tex. Civ. Prac. & Rem. Code § Sl.014(a)(6) because the defendants' status as

media defendants was not contested. Harvest House Publishers v, Local Church, 190
I

I S.W. 3d 204 (Tex. App. - Houston [1 sl Dist.] 2006, pet. denied). When jurisdiction has

10
 been contested, courts of appeals have strictly applied the statute, limiting the right of

interlocutory appeal to conform to the Legislature's intent. See, e.g., Kaufman v. Islamic
['
Society; Astoria Industries v. SNF, Inc., 223 S.W.3d 616 (Tex. App. - Fort Worth 2007,
i;

f' pet. denied); Quebe v. Pope; Rogers v. Cassidy.

If the term "media defendants" is considered synonymous with "electronic or print

media," the Court should consider how the term "media defendants" came to be used. In

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court considered whether

a "newspaper or broadcaster" was subject to strict liability for defamation when the

plaintiff is neither a public official nor a public figure. Id. at 332. The Court held that the

First Amendment required that liability for defamation be based on proof of fault greater

than common law strict liability. Id. at 347-48. Later, in Philadelphia Newspapers, Inc.

v. Hepps, 475 U.S. 767 (1986), the Supreme Court held that a plaintiff suing a "media

defendant" for statements about matters of "public concern" bears the burden of proving

that such statements were false. Id. at 793. The court described the Gertz holding as

applying to "media defendants." Id. at 790.

Since then, the term "media defendants" has been used to describe the class of

defendants entitled to a standard of fault greater than strict liability. This includes the

United States Supreme Court. Id. The Texas Supreme Court also uses this shorthand

term. See, e.g., Foster v. Laredo Newspapers, Inc. 541 S.W.2d 809, 818 (Tex. 1976)

(following Gertz); McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex. 1990) (following

Philadelphia Newspapers v. Hepps). But no court has broadened the scope of the term

11
,'

r'
I,
"media defendants" beyond the "newspaper or broadcaster" category that was the subject
I '
i , of the holding in Gertz.

r' Accepting jurisdiction of this interlocutory appeal would mean that virtually all
L
summary judgment denials in libel cases are appealable under § Sl.014(a)(6). If Main is

a "member of the electronic or print media," then so is anyone with a computer or

typewriter. If Encounter is "a member of the electronic or print media," then so is anyone

r' with any kind of printer. Endorsement of an interpretation of § Sl.014(a)(6) that any

., '
use of electronics or printing makes one a member of the "electronic or print media" will
, ,

expand the limited right of interlocutory appeal intended by the Legislature to almost

every libel case. To lose the right of interlocutory appeal, a libel defendant would have to
,, '
use a pen or pencil to handwrite his statements. This would be an absurd result, contrary
\ ,

to the legislative intent.

. ,
B. The Issues Raised By Appellants Are Not Among The Subjects For
Which The Statute Permits An Interlocutory Appeal.
L.
In addition, the subject matter of the Institute's brief does not support appellate

jurisdiction under § Sl.014(a)(6). The statute allows an interlocutory appeal of the denial

of a motion for summary judgment that is based upon a claim or defense:

• Arising under the free speech or free press clause of the First Amendment
to the United States Constitution, or

• Article I, Section 8, of the Texas Constitution, or

• Chapter 73 [of the Texas Civil Practice & Remedies Code]

An interlocutory appeal under § Sl.014(a)(6) must be restricted to these sUbjects.

12
,.

I,
In Astoria Industries v. SNF, Inc., the court rejected a defendant's claim that there
r•
\ , was appellate jurisdiction of the entire motion for summary judgment if any part of the

motion concerned the issues enumerated in § 51.014(a)(6). 224 S.W.3d at 625-28. The

court noted that there was a split among courts of appeals on this subject, and based its

holding on the principal that there is no jurisdiction of an interlocutory appeal of the

denial of a motion for summary judgment except as specifically provided by statute. Id.

r Should this Court entertain this appeal, Walker Royall respectfully contends that the
I
holding of the Fort Worth Court of Appeals, and of those courts in agreement with it, are
[
correct.

[ The Institute makes its First Amendment arguments in only one section of its

brief, which complains about the denial of its motion for partial summary judgment.

(Brief at pp. 5-15) The purpose of this motion, as stated in the district court, was to
[ ,
impose on Royall the burden of proving malice and falsity "in future proceedings in this

case." (5 C. R. 935-36) Even if granted, this motion would not have disposed of any

parties or claims.

The purpose of § 5 1.0 14(a)(6), as shown above, is to provide a prompt

interlocutory appeal so that the defendant can avoid the expense of a trial. Grant v.
r.
I Wood, 916 S.W.2d at 46. The statute does not permit a party to seek advisory rulings

from the court of appeals about how to conduct the trial. See, e.g., State Fair v. Iron
I '
Mountain Information Management, Inc., 299 S.W.3d 261 (Tex. App. - Dallas 2009, no
I

I .

13
, '

f'
~ ;

pet.)(appeal of interlocutory order granting partial summary judgment was not

I '
•. specifically authorized by § SLOI4(d»

ir •, In the alternative, should the Court choose to entertain this appeal, Walker Royall

r' moves to limit the issues considered to those identified in § SLOI4(a)(6), The Institute's
1
brief does not mention the Texas Constitution or Chapter 73, Only ten pages of the brief

argue any issues under the First Amendment. (Brief at pp, 6-IS) This Court's

jurisdiction is limited at most to the ten pages of the Institute's brief attempting to stake

out positions based on the First Amendment.

I
II. The District Court Properly Denied The Motion For Partial Summary
Judgment.
I
The Institute's lengthy limited purpose public figure argument is ill conceived,

1 (Brief at pp, S-14) As the United States Supreme Court has observed: "A private

individual is not automatically transformed into a public figure just by becoming

I.
involved in or associated with a matter that attracts public attention," Wolston v. Reader
I DigestAss'n, 443 U.S. IS7, 168 (1979).

I A. A Plaintiff Must Engage In Voluntary Conduct To Be Any Kind Of Public

Figure.

Wolston explained that public figures are those who "have thrust themselves to the

forefront of particular public controversies in order to influence the resolution of the

issues involved," ld. at 164 (quoting Gertz, 418 U.S. at 24S). Gertz, the Wolston Court

noted, "held that an attorney was not a public figure even though he voluntarily

14
 · '

f'
i.
associated himself with a case that was certain to receive extensive media exposure." Id.
! '

\. at 167.
f!
Given the First Amendment's role here, Texas law is, of course, the same. See
I.
Klentzman v. Brady, 2009 WL 5174369, at *12-13 (Tex. App.-Houston [1st Dist.]

2009) To be a limited-purpose public figure, the plaintiff must have voluntarily engaged
r.
I in activities that necessarily involved the risk of increased exposure and injury to

reputation. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 572-73 (Tex. 1998). "A

person does not become a public figure merely because he is 'discussed' repeatedly by a
I
I
media defendant or because his actions become a matter of controversy as a result of the

[ media defendant's actions." Klentzman, 2009 WL 5174369, at *13. Instead, a

defamation defendant "must show that the plaintiff 'relinquished ... his interest in the
[

protection of his own name' by 'engag[ing] the attention of the public in an attempt to
[

influence the resolution' of 'an[ ] issue of public concern.'" Id. quoting Wolston, 443

l. u.s. at 168.
The Institute did not establish that Royall is a limited purpose public figure. It
[

points to no evidence showing that Royall thrust himself to the forefront of the dispute

concerning the marina project to influence the resolution of the issues involved. Nor has

the Institute shown that by getting involved in the marina project in the first place, Royall

voluntarily engaged in activities that necessarily involved the risk of increased exposure

and injury to reputation. As one court observed, "[o]ne does not become a limited-
[
purpose public figure merely by contracting with the government or accepting public

[
15
I '

f'

money, but one who contracts with the government can become such a public figure
I '

because of the way in which he conducts himself in connection with those public
I' contracts." Carr v. Forbes, Inc., 259 F.3d 273, 280 (4th Cir. 2001) (holding that the
I
,
f· plaintiff was a limited purpose public figure because he "did not merely contract with the
I
government; he personally and affirmatively took actions that invited public attention in
/ .
connection with public contracts. ").

B. The Institute's Motion For Partial Summary Judgment Did Not Address Any
Of The Parts Of BULLDOZED That Are The Subjects Of Royall's Claims.
I
I The Institute's entire "public concern" argument is a straw man. In its motion for

partial summary judgment, the Institute relied entirely on citations to parts of

[
BULLDOZED that involve a general discussion of eminent domain. As Royall explained
[
in the Statement of Facts above, he specifically identified the defamatory portions of the

[ book in answer to Main's interrogatories, and specified the sections that were not the

subject of his claims in his own discovery. (4 C.R. 899-934; 2 2d SUpp. C.R. 601-04)

All of the portions of BULLDOZED cited in the Institute's Partial Summary Judgment
[
Motion are specifically excluded from Royall's claims.

The "public concern" inquiry in this case is not whether BULLDOZED contains

some historical, nondefamatory material. Instead, it is whether the statements that

plaintiff contends are defamatory were about matters of public concern. Bentley v,

Bunton, 94 S.W.3d 561, 580 (Tex. 2002). Because Appellants did not address any of the

statements that Walker Royall contends are defamatory in their motion for partial
I
[
16
, '

r•
I.
summary judgment, the district court properly denied it. Johnson v. Brewer & Pritchard,
r'
P.e., 73 S.W.3d 193,204 (Tex. 2002).

C. There Was No Public Controversy When Royall Agreed To Help Freeport

With Its Marina Project.
r'
,!
\ ,
A public issue is not simply something of interest to the public. Einhorn v.

! ' LaChance, 823 S.W. 2d 405, 411 (Tex. App. - Houston [lst Dist.] 1992, writ dism'd).

, '
The issue must be "public" both in the sense that people are discussing it and because

people other than the immediate participants in the controversy are likely to feel the

, ,
impact of its resolution. WFAA-TV, Inc. v. McLemore, 978 S.W. 2d at 571-72. A private

issue does not become a public issue just because it attracts attention. TSM AM-FM TV v.

Meca Homes, Inc., 969 S.W. 2d 448, 453 (Tex. App. - EI Paso 1998, pet. denied).

I The Institute claims that the relevant time is the date of publication, but this is

I contrary to both'the cases and the policy behind the limited purpose public figure

doctrine. If a person cannot be treated as a limited purpose public figure without some
l voluntary, knowing conduct on his part, the evaluation of whether there was a "public

f controversy" must occur as of the time when the plaintiff chose to become involved.

People become limited purpose public figures when they "thrust themselves into the

forefront of particular public controversies ... " Wolston, 443 U.S. at 164. Royall could

not have voluntarily thrust himself into a controversy that did not yet exist.

17
r'
I ,
The summary judgment evidence conclusively showed that Royall's involvement

in the Freeport marina project began before there was any public controversy. This
f•
evidence included:
I
The Affidavit of Lee Cameron. Lee Cameron was the Director of the Freeport

Economic Development Corporation. (1 2d Supp. C.R. 183) He asked Walker Royall to

( .

take on the marina project in 2002 because no other landowner had any real estate

r development experience. (Id. at 184) At that time, there was no public discussion or
I
controversy. The Gore family and Western Seafood claimed to support the project, and
!
i.
never said that they would not sell the tract. (Id. at 185) The Gores claimed to be
I
I negotiating up to the day they filed their lawsuit against the City. (Id. at 185-86) This

was the first indication of any opposition to the marina project. (Jd. at 186)

The Gore Depositions. Both Wright Gore, Jr. and Wright Gore III testified that
[
there was no public discussion or media coverage of the marina project until they filed

l suit against the City in September 2003. (1 2d Supp. C.R..151-54, 231-32) Neither of the

I. Gores had ever heard of or met Walker Royall before a meeting in Houston in the

summer of 2002 at which the City described the marina proposal. (Jd. at 13 8-39, 228-30)

Wright Gore III even described Royall as "reclusive," even after the Gores began their

public relations campaign against him. (Id. at 250"52)

The Deposition of the Local Newspaper. The editor of the local newspapers that

cover the news in. Freeport was presented as corporate representative of the publisher. (1
t .
2d Supp. C.R. 169) After a diligent search, he could find no coverage in any of its

l . 18
1•
; .

,. newspapers of the marina project as of July 1, 2002, after Royall agreed to be involved.

(Id. at 170-71)

f ' The Affidavit of Walker Royall. Walker Royall would not have become involved
i
in the marina project if anyone had objected to his involvement or if there had been any

controversy. (l2d Supp. C.R. 189-90) Royall was told by the City that all of the property

owners within the area proposed for the marina, including Western Seafood and Wright

r Gore, Jr., supported the project. (Id. at 190)

I
BULLDOZED Itself. Main and Encounter describe no controversy about the

Freeport marina project until Western Seafood filed its lawsuit in September 2003 and

began its website, billboard and newspaper advertisement campaign in April 2004.

The voluminous mound of articles cited by the Institute in support of its partial
1
summary judgment motion (Brief at pp. 7-8) are not relevant. None of these articles
I. about the Freeport controversy were published before Royall agreed to be involved in

l June 2002. In fact, the first article of any kind is dated over a year later, in August 2003.

Virtually all of the coverage is dated after the Western Seafood public relations campaign
I
began in April 2004.

The Institute has actively attempted to create the controversy that it would now

use to tum Royall into a limited purpose public figure. The Western Seafood websites

included links to the Institute and its "Castle Coalition". (2 2d Supp. C.R. 508-13) The

Institute claims credit for creating interest in the subject of eminent domain through its
I

I 19
1,

['
,.
,

representation of the plaintiff in the Kelo case and its public relations efforts after the
I'

Supreme Court ruled against them in 2006.

! !
The Institute and Appellants, being adamant opponents of eminent domain for

,' private development, consider participation in any such project to be ipso facto a

controversial matter that makes the participants public figures. But that is not the law.

See Hutchinson v. Proxmire, 443 U.S. 11 I, 135 (1979) (use of "such subject-matter

classifications to determine the extent of constitutional protections afforded defamatory

falsehoods may too often result in an improper balance between the competing interests

in this area."). On the contrary, "'activity likely to engender publicity, even criminal

activity, does not equate to taking on a role of special prominence in a public

controversy.'" Carr v. Forbes, 259 F.3d at 280.

The Institute's argument is contrary to Appellants' own book. Appellants

admitted in the introduction to BULLDOZED that, as late as November 2004, "it was

tough in those days to generate interest in eminent domain among the general public and

the nonlegal press." (5 C.R. 994, p. 7) The evidence shows that Royall had never been

involved in a project where eminent domain was used to acquire land. (1 2d Supp. C.R.

190) When he signed the letter of intent, there was no potential for eminent domain

proceedings because all of the landowners concerned all supported the project and were

negotiating the contribution or sale of their property. (1 2d Supp. C.R. 190) And when

the controversy did develop, Royall attempted to avoid the press. Wright Gore III

regularly gave reporters Royall's telephone number, but Royall would not talk to them.

20
I.
II .
Gore described Royall as "reclusive." (l 2d Supp. C.R. 250-51) Royall "was dragged

unwillingly into the controversy." Walston, 443 U.S. at 166.

In Carr v. Forbes, the plaintiff, who was a private participant in a public project,
r:
became a limited-purpose public figure because he "voluntarily assumed a prominent
r.
public presence: he attended public meetings, spoke out in favor of the sewer project,

I wrote editorials for the local press, and was quoted in the local media, all in an effort 'to

engender public support' for the project." 259 F.3d at 281. Here, there is no evidence

that Walker Royall engaged in such activities in connection with the marina project.

Among other cases, the Institute cites Little v. Breland, 93 F.3d 755 (lIth Cir.

1996) in support of its arguments. There, the plaintiff accepted a position as president of

the Mobile Convention & Visitors Corporation. The court described the organization as

one "involving public scrutiny" and "whose success depends in large part on publicity."

Id. at 758. Moreover, even before the plaintiff accepted his position, the media was

intensely scrutinizing the organization. As the court explained, "[t]he previous president

had been forced out five months earlier, receiving 'a good deal of coverage' in the local

media." Id. at 757. The media also covered the plaintiffs hiring and his plans for the

organization "quite extensively." Id. Thus, the court concluded that for purposes of a

story published shortly after the plaintiff was hired about his firing for alleged sexual

misconduct, the plaintiff was a limited purpose public figure. Little is plainly

distinguishable, as are the other cases appellants cite in support of their arguments.

21
 In sum, Royall did not thrust himself into the forefront of a public debate. Unlike
,.
the plaintiff in another case involving a public project, he became involved in the marina
,,
project before any public controversy had developed. See McDowell v. Paiewonsky, 769

,. F.2d 942, 950 (3d Cir. 1985) (architect who designed public school was limited-purpose

public figure where project was already receiving substantial media attention when he

took over).

Make no mistake about it, to further their political causes, the Institute and

Appellants are urging this Court to become the nation's first to hold that eminent domain

for private development is so controversial that any involvement in such a project is the

equivalent of giving up First Amendment rights. The Court should decline the invitation,

just as the United States Supreme Court declined a similar invitation in Hutchinson. See

443 U.S. at 135 (scientist who secured public research grant was not a limited-purpose

public figure merely because of the general public concern over public expenditures).

There was no public controversy concerning the Freeport marina when Royall

agreed to help the City of Freeport in June 2002. He is a private figure, not a public

figure. There were, at minimum, fact questions that prevented the district court from

granting the Institute's motion for partial summary judgment. Klentzman v. Brady, 2009

WL 5174369 (fact issues on limited purpose figure and matter of public concern

supported denial of summary judgment)

D. Appellants Are Not Media Defendants.

22
I .

r'
i
Royall here incorporates his argument that there is no appellate jurisdiction, in

Section I, above, as his response to the Institute's claim that Main and Encounter are

"media defendants." (Brief at 15)

III. The District Court Properly Denied The No Evidence Motion.

The district court properly denied the Institute's no evidence motion for summary

judgment. The motion failed to address all of Walker Royall's causes of action, and the

Institute's brief in this Court also fails to do so. In addition, the summary judgment

record raised questions of material fact on the challenged elements of Royall's claim.

A. The Institute Did Not Move For Summary Judgment On All Of

Royall's Claims.
I

Royall alleges that Main and Encounter libeled him in a December 10,2008 press

I release issued by their agents at the Institute for Justice and in an "editorial" authored by

Main and Roger Kimball of Encounter. (1 C.R. 24-25; 2 2d Supp. C.R. 343-49) The

Institute did not· mention these publications in their "no evidence" motion. Final

summary judgment cannot be granted on a motion that does not address all claims.

Continental Airlines, Inc. v. Kiefer, 920 S.W. 2d 274, 276-77 (Tex. 1996).

The Institute's brief does not include any argument about Royall's claims

regarding the mutual aiding, abetting and ratification of libel by Main and Encounter.

The failure to address claims in a summary judgment appeal waives any error by the

district court. Tex. R. App. P. 38.1(h); In re NE.B., 251 S.W. 3d 211, 212 (Tex. App.-

23
, .
Dallas 2008, no pet.) For these reasons alone, the district court's denial of no evidence
r'

summary judgment should be affirmed.

r•
B. The Summary Judgment Record Raised Questions Of Fact Whether
I Royall Was Libeled By The "Gist" Of BULLDOZED.

In Response to the Institute's "no evidence" motion, Walker Royall showed that

the gist of BULLDOZED was false and defamatory. Under established case law, this was

enough at least to raise a question of fact and summary judgment was properly denied.

Indeed, a recent decision of the Fort Worth Court of Appeals on virtually identical

defamatory statements found that they were a per se libel.

1. The Definition Of A Publication's Gist.

In Turner v. KTRK TV, Inc., 38 S.W.3d 103, 115 (Tex. 2000), the Texas Supreme

Court held that the defamatory must be judged based on the publication as a whole:

Because a publication=s meaning depends on its effect on an

ordinary person=s perception, courts have held that under
Texas law a publication can convey a false and defamatory
meaning by omitting or juxtaposing facts, even though all of
the story=s individual statements considered in isolation were
literally true or non-defamatory.

Id. at 114.

This is not a recently developed concept. In Turner, the Court said, "We have

long held that an allegedly defamatory publication should be construed as a whole in light

of the surrounding circumstances based upon how a person of ordinary intelligence

would perceive it." Id. In McIlvain v. Jacobs, 794 S.W. 2d 14, 16 (Tex. 1990), the court

24
 :! '

examined the gist of a broadcast to find that it was substantially true. The court followed
r'
I earlier Texas cases and also cited Prosser & Keeton on Torts (1984).

The Institute claims that this "is a unique claim under Texas law." (Brief at p. 44)

Not so. Texas law is consistent with the common law, as set out in the Restatement of

Torts: to determine the meaning of a communication, the words must be considered in

I their context. Restatement (Second) of Torts § 563 cmt. d. (1977)(Appx. C). A

statement's context also includes all of the circumstances in which the statement was

made. Id., cmt. e. There is nothing novel, or uniquely Texan, about evaluating the

entirety of a publication.

This requirement is so basic to Texas law that the Texas Supreme Court used it as

I . the first example of the need to address contextual evidence in conducting "no evidence"

appellate review. In City of Keller v. Wilson, 168 S.W. 3d 802 (Tex. 2005), the court

explained that in a number of instances, an appellate court must review all evidence in

context to decide a "no evidence" point:

For example, publications alleged to be defamatory must be

viewed as a whole B including accompanying statements,
headlines, pictures and the general tenor and reputation of the
source itself. A court reviewing legal sufficiency cannot
disregard parts of a publication, considering only false
statements to support a plaintiff=s verdict or only true ones to
support a defense verdict.

Id. at 811. (citations omitted) The court concluded this portion of its opinion with a

common sense observation: "if evidence may be legally sufficient in one context but

insufficient in another, the context cannot be disregarded .... " [d. at 812.

25
 The Institute cannot cope with this elemental requirement of Texas law. In its
r•

Second Amended Motion for Summary Judgment, it questioned whether Royall was

"making a defamatory 'gist' claim at all." (1 C.R. 97) In the "editorial", however,

Appellants acknowledged that Royall pleaded the gist of their book:

In his complaint, Royall does not identifY a single word of

Bulldozed that libels him. He says only that "the gist" of the
book defames him.

(2 2d Supp. C.R. 347). These contradictory positions show the Institute's frustration that

the facts clearly establish a prima facie case that Main and Encounter have libeled Royall.

2. The Gist Of BULLDOZED Is Virtually Identical To The Gist Of An

Advertisement That The Fort Worth Court Of Appeals Held Defamatory.

Royall identified the "gist" of BULLDOZED in his pleadings: "The gist of this

book regarding Plaintiff is that he 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." (l
I C.R. 23). Royall also identified the gist of the book in answer to Main=s interrogatories.

I
(4 C.R. 928)

A recent decision of the Forth Worth Court of Appeals shows that such a "gist" is

capable of defamatory meaning. In Brock v. Tandy, No. 2-08-400-cv, 2009 Tex. App.

LEXIS 5171 (Tex. App. B Fort Worth 2009, pet. denied) (not designated for publication),

Tandy, the former mayor of the City of Keller, sued Brock, a landowner who had run a

newspaper advertisement before an election that Tandy lost. Id. at *2. In the

26
r•

advertisement, Brock claimed that he had a verbal agreement to sell an easement to the
r.
City, which was thwarted by the Mayor:

But our mayor and her friends voted in March 2007 to steal it
the bid-fashioned way B eminent domain. They decided to
take my land by force now and face the damage suit later.
The city ruined my pasture by condemning a strip of land
through the middle of my property, turning my one piece of
land into two separate parcels that are no longer connected.
Furthermore, by putting a drainage ditch through the middle
of my property, they have ruined what were to be 20 future
residential lots.

Id. at *3-4.

The court found that the allegations of a corrupt city hall, voting to steal Brock=s

I
land via eminent domain, ruining his pasture and development plans, and conspiring to

deny him the use of his property were capable of defamatory meaning:
I

A reasonable person could view the Ad as appearing to

impeach Tandy=s honesty or reputation and to expose her to
public hatred, contempt, or ridicule. Furthermore, the Ad
tends to impute official dishonesty and corruption to Tandy.
Therefore, we conclude that the publication as a whole, as
well as at least one of its individual statements, is capable of
being defamatory, and we overrule Brock=s first issue.

Id. at * 12-13. (Citations omitted) The court affirmed the trial court's denial of the

landowner =s motion for summary judgment.

Main, Encounter and the Institute describe the "gist" of BULLDOZED in terms

very similar to the ad in Brock v. Tandy:

$ The Cover of BULLDOZED (5 C.R. 994, 995) and the Encounter Books
Website (1 2d Supp. C.R. 87)

27
"r

Three generations of Gores built Western Seafood into a

thriving business that stood up to fierce competition and
market flux. But Freeport was struggling, and city officials
decided that a private yacht marina on the Old Brazos River
might save it. They would use eminent domain to take the
Gores~ waterfront property and hand it over to the developer,
an heir of a legendary Texas oil family, in a risky sweetheart
deal.

****

[ "Like a Greek tragedy unfolding, Carla Main~s book

chronicles the eminent domain struggles in Freeport, Texas,
which pitted the Gore family, with its longtime shrimp
[ business, against the machinations of an unholy alliance
between city politicians and avaricious developers .... follow
this sordid saga to its bitter end."

• The Carla Main Website (1 2d Supp. C.R. 95)

What is Bulldozed about?

I Bulldozed tells the story of the Gore family, who have owned
a shrimp processing plant in Freeport, Texas for three
generations. The book chronicles their struggle as they fight,
[ for three years, to stop the town council from taking their land
in eminent domain and turning it over to their neighbor to
build a riverfront marina.

$ The Institute for Justice Press Release (2 2d Supp. C.R. 343)

I.
Bulldozed tells the story of Freeport's plan to take the Gore~s

I [sic] waterfront property for Royall's lUXUry marina

development project.

$ The "Editorial" (2 2d Supp. C.R. 346-47)

BULLDOZED ... follows the struggle of a family named Gore

to save the shrimp processing business founded by their

28
 , '

r'
I,
grandfather from being destroyed, A plan to build a
f ' commercial marina in Freeport would seize critical waterfront
property from the Gores, making it impossible for their
business to survive,
r'
I The summary judgment evidence shows that these statements were false, At a minimum,

it raises fact questions that preclude summary judgment.

First, statements that Royall and the City of Freeport were trying to take land that

"Pappy" Gore had owned for 56 years, were part of Appellants' overall libel of RoyalL

Main and Encounter falsely claimed that Royall and the City were attempting to take

away the business of Western Seafood, which they repeatedly describe as owned by three

generations of the Gore family, and property that the Gore family owned for 56 years,

Characterizing the marina plan as a conflict between the "unholy alliance" and a family

business was central to the "hook" Main and Encounter felt they needed to draw attention

[ to their book (1 C.R. 64)

r In actual fact, the small tract that the City originally planned to include in the
,I '

marina development was not part of the Gore shrimp processing plant, and it represented
r '

only 330 feet of river frontage out of over 2,500 feet owned by Western Seafood and its

affiliated entities. (1 2d Supp. C.R. 141-47) It was leased by Western in the 1980's and

purchased later in a complex transaction based on shrimp harvests. Wright Gore, Jr.

admitted that it was not a true statement that the tract had been owned by the Gore family

for over 50 years. (12d Supp. C.R. 157-58; 2 2d Supp. C.R. 358-70)

, '

29
,'

r'
I.
It was also false that the development of the marina would destroy Western's
I '

shrimp processing business, It was false to state that Royall and Freeport were trying to
r' take the business itself and tum it into a marina. The Gores admitted that this was not
I:
true, The only Western tract proposed to be a part of the marina by the City was adjacent
r'
!
• •
to the Western processing plant and unloading docks, but did not contain the plant or
! .
docks themselves, (1 2d Supp. C.R, 141-46, 236, 267) Western, through Gore Jr.,
, .
admitted that it was false to say that anyone was trying to take Western's entire operation,
i
its plant, or all of its river frontage, (1 2d Supp. C.R. 147)

Faced with this falsehood, the Gores attempted to develop a backup explanation,
· .
claiming that the loss of the 330 feet of river frontage next to their plant would block

shrimp boats from access to the unloading docks. However, Wright Gore, Jr., admitted
• •

that losing the tract would not block all forms of access to Western's unloading docks,
i .
and would not block a shrimp boat "willing to try." (1 2d Supp. C.R. 147-50) Wright

Gore III also admitted that the tract was not required for shrimp boat access, (1 2d Supp.

C.R, 236)

Appellants' "access" statements were false. The adjoining tract is still only used

for shrimp boats to moor and wait their tum to unload, (1 2d Supp. C.R. 155-56,236)

The boats then cast off, maneuver out into the Old Brazos River, and dock at the

unloading docks. (/d.) If even the very first suggested plan for marina docks had

actually been constructed, it is the opinion of retired Coast Guard Commander David

Cole that qualified shrimp boat captains would have been able to access the unloading

30
,,
docks. (2 2d Supp. C.R. 406-07, 410-15, 434-36, 439-41) Commander Cole is qualified
,.
I . by education, training and experience to offer his opinion. (2 2d Supp. C.R. 382, 429-32,

453-54, 462-66, 504-06) The maneuver is what the boats had to do when the marina was

,. first proposed, and it is what the boats have to do today. (2 2d Supp. C.R. 430)
I
Appellants' claim that the proposed marina would have deprived Western Seafood of the

use of its plant is comparable to the drainage problems that Brock claimed had destroyed

the value of his land in Brock v. Tandy.

Seriously misreading McLemore, the Institute argues that a plaintiff can only

establish a defamatory gist by admitting that all of the defendants' factual statements are

true. This is definitely not the law. In Gaylord Broadcasting Co. v. Francis, 7 S.W. 3d

279 (Tex. App. - Dallas 1999, pet denied), this Court affirmed the denial of a motion for

summary judgment in a libel case. The court found that there was evidence from which a

jury could find that individual statements were false, and also that there was a jury

l. question whether the gist of the broadcast was false. Id at 285-86. See also, Scripps

Texas Newspapers, L.P. v. Belalcazar, 99 S.W. 3d 829, 836-40 (Tex. App. - Corpus

Christi 2003, pet. denied) .

At the very least, the foregoing evidence establishes that the defendants'

I statements were defamatory. Whether such statements are defamatory is a question of

fact. Klentzman v. Brady, 2008 WL 5174369; Cram Roofing, Inc. v. Parker, 131 S.W.3d
[

84, 91 (Tex. App. - San Antonio 2003, no pet.) They should be construed as a whole in

I light of the surrounding circumstances based on how a person of ordinary intelligence

31
F'

r'
I
l,
would perceive them. Turner v. KTRK, 38 S.W.3d at 114. The gist of BULLDOZED

regarding plaintiff is virtually identical to the gist of Brock's ad attacking Tandy. Similar

evidence has been held to require denial of a motion for summary judgment on the issue

r• of defamation. Freedom Newspapers of Texas v, Cantu, 126 S.W3d 185, 193 (Tex.
t
App.-Corpus Christi 2003, no pet.)

C. Appellants Were Not Entitled To "No Evidence" Summary Judgment

On Individual Pages of BULLDOZED.

Royall has shown that there are questions for the jury about whether the gist of

BULLDOZED is defamatory. This is enough for the Court to affirm the district court's

denial of the Institute's no evidence motion. The bulk of the Institute's no evidence

motion was based on individual pages. The Institute made a blanket assertion that there

I was no evidence of the same four elements as to each page. Most of the statements

identified by Royall involve multiple pages; many others require related pages for

context. This is not the correct analysis under Texas law. A reasonable person's
l interpretation is based on the entire publication, not individual statements. Scripps Texas

Newspapers, L.P. v. Belalcazar, 99 S,W. 3d at 835. It is not based on "a. technical

analysis of each statement." New Times, Inc. v. Isaacks, 146 S.W.3d 144, 154 (Tex.

2004)

The Institute's no evidence motion did not fairly or clearly present the issues as

required by rule 166a(i). Should the Court wish to review the Institute's tortuous, page

by page arguments, Royall will show that fact questions exist on these as well.

32
, '

r•
i,
1. Appellants Admitted That Most Of The Statements At Issue Are
r' Factual In Nature.
i ,

The Institute first claims that there is no evidence that each of the statements at
"
i
i .
issue is a "verifiable statement of fact" (Brief at pp. 18-20,27-40.) In one of its many
,r' earlier summary judgment motions, however, it admitted that statements on 41 of the 61

I . pages involved are "factual in nature."

The pages at issue in Appellants' no evidence motion are listed in its

"Introduction." (4 C.R. 901) In their Second Amended Motion for Summary Judgment,

Appellants included a section "C," titled, "Royall complains about some statements that

,' are factual in nature .... " (1 C.R. 85) The motion identified these statements by quoting
l
Royall's answers to Main's interrogatories, and listing the pages of BULLDOZED that
[ are "factual in nature." (1 C.R. 87-88) These are pages 3-7, 15, 18,27,30,31,35,37,

[ 40-41,44-49,53,56,67,69,72-74,81,88,91,92,101,171, 173, 196,200,237,238,

242, 244-45, and 251. (Jd.) Appellants could not obtain a no evidence summary
l judgment that any of the 41 pages of BULLDOZED are not factual. Their second Motion

was a judicial admission on this point.

2. Appellants Could Not Obtain A No Evidence Summary Judgment On

Falsity Because Truth Is An Affirmative Defense.

The Texas Civil Practice and Remedies Code makes "truth" an affirmative

defense. Tex. Civ. Prac. & Rem. Code § 73.005. Walker Royall therefore does not have

the burden of proving falsity; instead, Appellants have the burden of proving truth as an
t .
affirmative defense. Randall's Food MIas v. Johnson, 891 S.W.2d at 646; Knox v.

33
, '

r'
, ,

Taylor, 992 S.W.2d 40,54 (Tex. App.-Houston [14th Dist.] 1999, no pet.) A no evidence
f '

summary judgment can only be granted where the non-movant has the burden of proof.
!. Consequently, as the parties with burden of proof at trial, defendants cannot obtain
i.
summary judgment on falsity under Rule 166a(i).

3. Appellants Were Not Entitled To A No Evidence Summary Judgment

Because Their Statements Are "Of And Concerning" Royall.

In Newspapers, Inc. v. Matthews, 161 Tex. 284, 339 S.W. 2d 890 (1960), the

Texas Supreme Court set out the test to determine whether an allegedly defamatory

statement refers to the plaintiff: whether those who knew and were acquainted with the

,' plaintiff understood from reading the publication that it referred to the plaintiff. 161

Tex. at 290,339 S.W. 2d at 894. See also Poe v. San Antonio Express-News Corp., 590

l . S.W. 2d 537, 542 (Tex. Civ. App. B San Antonio 1979, no writ) (collecting cases and

[. secondary authorities).

First, 26 of the pages designated in the no evidence motion expressly mention

Walker Royall. (5 C.R. 994, pp. 3, 5, 18,21,30,31,33-36,38,42,57,59-62,72,74,92,

100-01, 200, 212-13, 253 and 269) A statement that names the plaintiff is "of and

concerning" him. Newspapers, Inc. v. Matthews, 161 Tex. At 290,339 S.W. 2d at 894.

Second, the Institute's and Appellants' own descriptions of BULLDOZED show

that it was directed at Royall:

• The Carla Main Website. (1 2d Supp. C.R. 97-99)

***

34
f '

.. .the heir a descendant of a great Texas oil family ...

f.
• Encounter's Press Releases (2 2d Supp. C.R. 339, 341)
(emphasis added)
.,f ... Small Town Texas Family vs. Big Oil Tycoon
The Story of Bulldozed: "Kelo," Eminent Domain, and the
r'
1 American Lustfor Land

****
But as time went on, a young man by the name of Royall (a
descendent of the Exxon and Texaco family), came into this
I .
small town and saw something in Freeport.

$ The Institute for Justice Press Release (2 2d Supp. C.R. 343)4

,. Bulldozed tells the story of Freeport's plan to take the Gore's

[sic] waterfront property for Royall's lUXury marina
development project.
r
l .
• The "Editorial" (2 2d Supp. C.R. 346-47)(emphasis added)
I Royall is a wealthy man who, having volunteered to be the
I developer in a municipal construction project that involved
I eminent domain, ...
l .
Finally, there is the affidavit testimony of a person familiar with plaintiff. Lee

Cameron was the Director of the Freeport Economic Development Corporation from

plaintiffs first involvement in the marina project in 2002 until December 2008. (1 2d

Supp. C.R. 183) He is personally familiar with plaintiffs involvement in the project.

(Jd.) Mr. Cameron has read BULLDOZED. He is personally familiar with Walker

Royall and the marina project. He found that the parts of the book that involve Freeport

4While preparing this brief, Royall's counsel discovered that this exhibit is missing from the record. Pages 343-45
of the 2d Supplemental record were not present. Royall will move to supplement the record with this exhibit.

35
,.

,
r '
I ,
"clearly refer to Walker Royall." Id. Mr. Cameron is therefore the kind of person who
, '

, , knows and is acquainted with plaintiff as required by Newspapers, Inc. v. Matthews, and
!, . his affidavit is sufficient to establish that BULLDOZED is "of and concerning" to
I ,
plaintiff.
f'
!

4.
. '
Appellants Were Not Entitled To A No Evidence Summary Judgment
Because Their Statements Were Capable Of Defamatory Meaning.

The Institute's brief does not follow the form of its no evidence motion. Royall
r'
I, will respond here, as he did in the district court, by grouping statements by subject matter

to show that they are capable of defamatory meaning.

I ' a. Greed, Lust and the "Unholy Alliance."

I
The Institute gamely attempts to argue that Appellants did not defame Royall
[
when they stated that he was motivated by about half of the "seven deadly sins." (Brief

[
at pp. 28, 31-33) Royall responded to these parts of the no evidence motion. (12 C.R.

2786-89)
I Many courts have found that one can commit libel by calling someone greedy.

I The cases show that whether Agreedy@ can be part of a defamatory publication depends

on the entirety of the publication and the facts of the case. Gateway Logistics Group, Inc.

v. Dangerous Goods Management Australia Pty, Ltd, 2008 U.S. Dist. LEXIS 34246, *33-

34)(S.D. Tex. 2008)("greedy, deceitful and very stupid plan"); Tucker v. Fishbein, 237

F.3d 275 (3d Cir. 2001) (statements making the plaintiffs look "insincere, excessively

I' litigious, avaricious and perhaps unstable"); Market America, Inc. v , Rossi, Nos. 99-

36
i '
2245 and 99-2333, 2000 U.S. App. LEXIS 29022 (4th Cir. 2000)(accusing plaintiffs of

greed, avarice, of being "bandits," "the fox in the hen house"); Dibella v. Hopkins, 403

F.3d 102, 108 (2d Cir. 2005)("greed permeated the plaintiffs business.") Metcalf v.

KFOR-TV, 828 F. Supp. 1515, 1525 (W. D. Okla. 1992) ("greedy doctors").

The Texas Court of Criminal Appeals has used "unholy alliance" to describe

criminal conspiracies. Whitehead v, State, 148 Tex. Crim. 190, 195, 185 S.W. 2d 725,

728 (1945); Grant v. State, 140 Tex. Crim. 46, 143 S.W. 2d 383,384 (1940). There were

at least fact questions whether the statements about greed, avarice, lust and the "unholy

alliance" could be defamatory.

I b. Stealing Western Seafood's Property And Putting The Company Out

Of Business.

The Institute also attempts to excuse the book's claims that Royall and the City of

Freeport were trying to steal Western Seafood's property and destroy its business. (Brief

at pp. 33-41) Royall responded to these portions of the no evidence motion. (12 C.R.
I 2789-92, 2799-2808)

The Texas Supreme Court has long defined an accusation of theft as a libel per se.

In AB Bela & Co, v. Fuller, 84 Tex. 450, 19 S.W.616 (1892), a newspaper falsely

reported that the plaintiff had been arrested for theft. The Court held that this charge of a

crime required that damages to plaintiffs Acharacter and feelings@ were presumed. Id at

453,617. Bela v, Fuller is still authoritative when publication of an allegation of theft is

the basis for libel per se, See, e.g., Christy v. Stauffer Publications, Inc" 437 S.W.2d 814

37
 (Tex. 1969)(plaintiff called a "bandit"); Snead v. Redland Aggregates, Ltd., 998 F.2d
r'
I . 1325,1328 (5 th Cir. 1993)("international theft," "industrial espionage," and "international

piracy" held libel per se.)

Royall has. discussed the defamatory nature of Appellants' statements that he and
"

i
the City were trying to steal Western's property and destroy its business in addressing

Brock v. Tandy and "gist" above, and need not repeat that analysis here. There was

summary judgment evidence to raise questions of fact whether these statements were

defamatory.

c. The "Sweetheart Deal"

The Institute also claims that Appellants did not defame Royall when they said

that he engaged in illegal and unethical practices during the development of the marina.

(Brief at pp. 28-31, 41-43) These accusations were injurious to Royall's business and

professional reputation and impugned his honesty and integrity. Royall responded to

l. these portions of the no evidence motion. (12 C.R. 2792-99).

Royall was defamed by the claim that he initiated the marina project to benefit a

company of which he was already a director. By making it appear that Royall was

already on the board of in a resort development company, Main and Encounter falsely

supported the defamatory gist of their book. The truth, that Sun Resorts only asked

plaintiff to join its advisory board after the City of Freeport began the project (1 2d Supp.

C.R. 191), would not have helped their theme that Royall initiated the marina project for
I his own personal gain.

I 38
r '
I
I.
In Bentley v. Bunton, the Texas Supreme Court observed that accusations of

official corruption could be "amorphous" and "epithetic," but could also be defamatory if
r'
they were allegedly based on facts. 94 S.W. 3d at 581-83. Bunton had not only

repeatedly accused Judge Bentley of being corrupt, he had also stated that his claims

were based on fact. Id. at 583. He "claimed to have made lengthy investigations .... " Id.

The Court held that these assertions and implications of supporting facts made his charge

of official corruption defamatory. Id. at 584-85.

In BULLDOZED, Main and Encounter not only accused Royall of making a

"sweetheart deal," they selectively cited and paraphrased parts of a preliminary

development agreement to allegedly support this assertion. The repeated statements that

the original Development Agreement did not require a $1,000,000 investment by

Freeport Waterfront Properties were not true. (1 2d Supp. C.R. 202-03)

Appellants also assured their readers that their statements were based on thorough

research and investigation. Main is described as a lawyer with substantial eminent

domain experience. (5 C.R. 994, inside cover) She claims to have meticulously

researched the book. (2 2d Supp. C.R. 344)

The allegation of a "sweetheart deal" is injurious to plaintiff in his profession and

occupation. Similar statements have been held to be defamatory. LED Sign Co. v. Hwee,

2008 U.S. Dist. LEXIS 97851, *26-27 (S. D. Tex. 2008) ("bad dealer with a terrible

reputation" stated claims for defamation and business disparagement); Gateway Logistics

Group v. Dangerous Goods Mgmt, 2008 U.S. Dist. LEXIS 34246 at *23-30 (collecting

39
, '

i ,
and discussing numerous examples of statements tending to injure parties III their
I '

business); Morrill v. Cisek, 226 S.W.3d 545, 550 (Tex. App.--Houston [1 st Dist.] 2006, .
r' no pet.) (Plaintiff accused of forgery, fraud and misappropriation); Alaniz v. Hoyt, 105
I.
I ,

f'
S.W.3d 330, 350 (Tex. App.--Corpus Christi 2003, no pet.) (plaintiff accused of
!
"commingling" and "skimming" funds); Shearson Lehman Hutton, Inc. v. Tucker, 806

S.W.2d at 914, 921-22 (Tex. App. - Corpus Christi 1991, writ dism'd w.o.j.)(plaintiff

would lose stockbroker license because of professional misconduct); Knox v. Taylor, 992

S.W. 2d 40,51 (Tex. App.--Houston [14th Dist.] 1999, no pet.)(plaintiffaccused of "bad

business practices").

Similarly, the cases discussed above holding "greedy" to be a defamatory term

also involved accusations against the victim's business reputation. In Tucker v. Fishbein,

Judge Alito summarized cases holding that "considerably milder" or "comparable"

, .
statements were defamatory, including:

a statement that an employee quit without notice was capable

of a defamatory meaning because recipients could conclude
that the employee lacked honor and integrity "and was not a
person to be relied upon insofar as his business dealings were
concerned." ... [A]n advertisement was capable of a
defamatory meaning because it implied that a competitor had
bad business practices and might lead a recipient to question
the competitor's integrity.

237 F .3d at 282-83 (citations omitted).

Likewise in Market America, Inc. v. Rossi, the marketing company's letters and

audiotapes claimed that the company had "received hard proof that [defendants']

40
 unscrupulous activities and plans to undermine the company and business continue ... "
, '

2000 U.S. App. LEXIS 29022 at *5. This evidence supported the jury verdict of libel.
r.
Id. at *10-11.
I
,, Main and Encounter used sarcasm and skepticism in relating any truthful

statements about whether Royall conceived the plan for the marina project. For example,
r.
"Walker did not seek out this deal. No, no, no." (5 C.R. 994, p. 3)(emphasis added)

The implication that Royall initiated the project was false. Royall did not

commission or contribute to the Freeport economic development plan. The City

approached Royall. (1 2d Supp. C.R. 183-84) City officials confirmed that they

approached plaintiff first. (1 2d SUpp. C.R. 184-87, 200) All decisions about use of

eminent domain, or plans to use eminent domain, in connection with any Western
I
Seafood property were made by the elected representatives of the people of Freeport.
I Finally, Main and Encounter stated that the marina project was not open to

l competition. This was also false. The City attempted to enlist an earlier private developer

before ever approaching Freeport Waterfront Properties, L.P., and this developer chose

not to pursue the project. (1 2d SUpp. C.R. 184-85)

I The accusation that the City made a "sweetheart deal" with Royall instead of

following competitive bidding certainly implied that the competitive bidding

requirements of Texas law were violated. See Tex. Loc. Gov't Code Chapters 252, 271.

Conspiracy to violate competitive bidding requirements is a crime. United States ex, rei,

Marcus v, Hess, 317 U.S. 537, 548 (1943) (defendants convicted of conspiracy to defraud

41
I

federal governme~t by collusive bidding); United States v. Young Bros., Inc., 728 F.2d

682 (5 th Cir. 1984) (affirming conviction for conspiring to rig bids on state highway

contract.) Like the accusations of theft: discussed above, these implications of criminal

conspiracy are not only capable of defamatory meaning; they are defamatory per se.

D. The District Court Correctly Overruled The Objections To Royall's

I Summary Judgment Evidence.
I

The Institute complains that five of Walker Royall's summary judgment exhibits

I
were inadmissible. (Brief at pp. 25-26) The Institute's objections to sworn deposition

testimony from a related lawsuit in Brazoria County, Texas are without merit. In Dyer v.
I

Shafer, Gilliland, Davis, McCollum & Ashley, Inc., 779 S.W.2d 474 (Tex. App. - El Paso

1989, writ denied), the court observed that deposition testimony was competent summary

judgment evidence, even if the depositions were taken in another case involving other

parties: "they are sworn testimony and as reliable, if not more reliable than an ex parte

affidavit..." Id. at 477. Royall cited this authority in response to defendants' motions (12

C.R. 2757, n.3) and in response to each of Appellants' earlier motions. (12 C.R. 2888)

Appellants never objected to the depositions in the earlier motions, never responded to

the citation of the Dyer case, and have not addressed the Dyer holding in their brief. The

only case cited by the Institute, Klager v. Worthing, 966 S.W.2d 77, 82 (Tex. App. - San
I Antonio 1996, writ denied) actually held that "even a deposition taken in another

proceeding is competent summary judgment proof if it complies with the rules of civil

procedure." Moreover, it would be inequitable to allow Appellants to lay behind the log

42
on this objection, a conclusion obviously reached by the district court in the handwritten

portions of the order overruling Appellants' objections. (12 C.R. 2884)

The remaining evidence challenged by Appellants is not hearsay. Both the

statement by the Mayor and Interim City Manager of Freeport (1 2d Supp. C.R. 200) and

the statement by the publisher of the Galveston County Daily News (1 2d Supp. C.R.

181) were statements of operative fact. Royall explained in response to Appellants'

objections (12 C.R. 2891-92), that both statements have independent legal significance

regardless of whether they are truthful or not, and are therefore non-hearsay. Case Corp.

v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 782 (Tex. App. - Dallas 2005, pet

denied). Appellants did not address this argument in the district court, have not

addressed it here, and their objections to these two exhibits were properly overruled.

Finally, the Institute has not shown how the consideration of these challenged

exhibits by the district court has lead to any error. In the absence of showing of harm, the

district court's rulings should not be disturbed. Community Initiatives, Inc. v. Chase

Bank, 153 S.W.3d 270, 281 (Tex. App. - EI Paso 2004, no pet.). The Institute has not

shown any abuse of discretion in the district court's evidentiary rulings.

E. Appellants Were Not Entitled To No Evidence Summary Judgment

Regarding The Book Review

Appellant's final paragraph asserts error by the district court in denying no

evidence summary judgment concerning whether they aided, abetted or ratified

defamation in a book review. (Brief at p. 48) Appellants did not move for no evidence

43
,.
summary judgment regarding the book review; instead, they moved for summary
,.
I. judgment that there was no evidence that they had aided and abetted or ratified "the libel

of any other person." (4 C.R. 923) Walker Royall responded to this motion by showing

,. that this portion of their motion did not satisfy Rule 166a(i) because it did not identify

any of the elements of these causes of action. (12 C.R. 2811) In addition, Royall pointed

out that Main's website had repeated and created links to numerous book reviews that

repeated the defamatory gist of BULLDOZED. Id. at 2815; 1 2d Supp. C.R. 99, 101-02)

IV. Walker Royall Is Entitled To Reimbursement Of All Attorney Fees On

[ Appeal.

An unsuccessful appellant under § 51.014(a)(b) must pay all costs and reasonable

attorney fees of the appeal. Tex. Civ. Prac. & Rem. Code § 51.015; Gaylord

Broadcasting Co. v. Francis, 7 S.W. 3d at 286. Walker Royall moves for an order

awarding him all such costs and fees, in an amount to be determined by the district court.

CONCLUSION AND PRAYER

l One would never know from the Institute's arguments that there is constitutional

protection from defamation. The Texas Constitution expressly protects the right to sue

for defamation in the same section that guarantees freedom of speech:

Every person shall be at liberty to speak, write or publish his

opinions on any subject, being responsible for the abuse of
that privilege ....

44
,,

Tex. Const. art. I, § 8 (emphasis added). Similarly, in Milkovich v. Lorain Journal Co.,
,'
497 U.S. I (1990), the Supreme Court concluded its discussion of the Court's First

,' Amendment jurisprudence by pointing out "the other side of the equation:"
I.
r. we have regularly acknowledged the "important social values
which underlie the law of defamation and recognized that
I "society has a pervasive and strong interest in preventing and
redressing attacks upon reputation,"

497 U.S. at 22, quoting Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). The Court then

quoted with approval from Justice Stewart's concurring opinion in Baer:

[ The right of a man to protection of his own reputation from

unjustified invasion and wrongful hurt reflects no more than
our basic concept of the essential dignity and worth of every
I human being - a concept at the root of any decent system of
ordered liberty,

I 497 U.S. at 22, quoting Rosenblatt v. Baer, 383 U.S. at 92. The Institute argues that no

I person has any protection from defamation if the subject touches on any of its own pet
I
causes. The law does not give it such an exalted position.

For all of the foregoing reasons, Walker Royall moves and prays that this appeal

[
be dismissed for want of jurisdiction. In the alternative, he prays that the orders of the

district court denying Appellants' motions for summary judgment be affirmed. In either
[

case, he further prays that he recover his attorney fees and costs on appeal.
I

45
r '

I .
Respectfully submitted,

Robert Gilbreath
State Bar No, 07904620
Hawkins, Parnell & Thackston, LLP
4514 Cole Avenue, Suite 500
Dallas, Texas 75205
(214) 780-5100
(214) 780-5200 (fax)

lsi Patrick Zummo

Patrick Zummo
State Bar No. 22293450
3900 Essex Lane, Suite 800
Houston, Texas 77027
(713) 651-0590
(713) 651-0597 (Fax)

ATTORNEYS FOR APPELLEE

H. WALKER ROYALL

46
I'
,

r:
I' CERTIFICATE OF SERVICE

I certify that on September 17, 2010, I served a true and correct copy of the
r' foregoing Brief of Appellee was served by certified mail, return receipt requested,
addressed as follows:

Matthew R. Miller Dana Berliner

Wesley Hottot
Institute for Justice Texas Chapter
816 Congress Avenue, Suite 960
Austin, Texas 78701-2475
(512) 480-5937 - Facsimile
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203-1854
(703) 682-9321 - Facsimile

John I Little
Megan K. Dredla
Little Pedersen Fankhauser LLP
901 Main Street, Suite 411 0
Dallas, Texas 75202
(214) 573-2323 - Facsimile

/s/ Patrick Zummo

Patrick Zummo

47