05-09-01503-cv (main v. royall) appellants' reply brief

8/8/2019 05-09-01503-CV (Main v. Royall) Appellants' Reply Brief

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APPELLANTS REQUESTORAL ARGUMENT

05-09-01503-CV

IN THE COURT OF APPEALSFOR THE FIFTH DISTRICT OF TEXAS

Dallas, Texas

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

Defendants—Appellants

v.

H. WALKER ROYALL,Plaintiff—Appellee,

On Accelerated Appeal From The 44th Judicial District CourtDallas County, Texas

Trial Court Cause No. DC-08-13480-BHonorable Carlos Cortez Presiding

APPELLANTS’ REPLY BRIEF

Matthew R. Miller (TX Bar No. 24046444) Wesley Hottot (TX Bar No. 24063851)Institute for Justice Texas Chapter816 Congress Avenue, Suite 960 Austin, TX 78701(512) 480-5936(512) 480-5937 (fax)

Dana Berliner (DC Bar No. 447686)*Institute for Justice901 N. Glebe Road, Suite 900 Arlington, VA 22203(703) 682-9320(703) 682-9321 (fax)

*Admitted pro hac vice

John J. Little (TX Bar No. 12424230)Megan Dredla (TX Bar No. 24050530)Little Pedersen Fankhauser LLP901 Main Street, Suite 4110Dallas, TX 75202(214) 573-2300(214) 573-2323 (fax)

COUNSEL FOR APPELLANTSCARLA T. MAIN ANDENCOUNTER FOR CULTURE

AND EDUCATION, INC.



TABLE OF CONTENTS

Page

Index of Authorities .............................................................................................................................. iv

Introduction ............................................................................................................................................. 1

I. This Court has jurisdiction over this appeal by an author and book publisher ...2

A. Book authors and publishers are members of the “print media.”.............3

1. Courts treat book authors and publishers as members of the“print media” and “media defendants.”............................................3

2. The legislative history suggests that the statute applies to all“published” material .............................................................................4

3. Texas courts have not limited the interlocutory appeal statute tonewspapers, radio, or television..........................................................5

B. This Court has jurisdiction over all of Appellants’ claims ..........................6

II. Royall has not shown he does not bear the burden of proving falsity..................7

A. No court has adopted Royall’s legal standards for determining whether

someone is a limited-purpose public figure...................................................8

1. The voluntariness inquiry properly looks at whether Royall took voluntary action that led to his involvement in the controversy,not at whether he knew the project would be controversial .........8

2. The Court should look at whether there was a controversy atthe time Appellants published the allegedly defamatory statements, not when Royall first signed the developmentagreement ...............................................................................................11

B. Royall fails to show either that Appellants are not media defendants orthat the Freeport marina project was not a matter of public concern......11

1. Royall offers no argument that Appellants are not “mediadefendants” for constitutional purposes...........................................11

2. Appellants have demonstrated that the Freeport marina project was of significant public concern .......................................................12

Page i



Page

III. Royall has not even tried to show that Appellants wrote a single statement thatsatisfies all four elements of defamation on which Appellants brought a no-evidence motion..............................................................................................................14

A. Royall has not even argued that Appellants’ statements are verifiableassertions of fact ................................................................................................15

B. Royall has not produced evidence that the supposedly defamatory statements that do not refer to him are “of and concerning” him ...........16

C. Royall has not produced evidence that each supposedly defamatory statement is capable of defamatory meaning ................................................17

D. Royall has not produced evidence that each supposedly defamatory statement is false ................................................................................................18

E. Royall concedes that Appellants are entitled to summary judgment onthe statements that Royall does not mention................................................18

F. Appeals from denials of no-evidence summary judgment motions arenot all-or-nothing proceedings ........................................................................19

G. Royall has not shown that any of the disputed evidence wasadmissible............................................................................................................20

IV. Royall did not produce evidence in support of his gist claim.................................22

A. Royall did not make a proper gist claim.........................................................22

B. Royall produced no evidence that the gist of the book is one of verifiable fact or that it is false.........................................................................23

V. Royall has not shown he introduced evidence of each of the four elements forthe 91 individual statements..........................................................................................24

A. Greed, lust, and “unholy alliance” ..................................................................24

B. Stealing and putting Western Seafood out of business ...............................26

C. The “sweetheart deal” .......................................................................................27

Page ii



Page

VI. “Aiding,” “abetting,” and “ratifying” are contingent claims withoutindependent elements ....................................................................................................30

Prayer..........................................................................................................................................................30

Page iii



INDEX OF AUTHORITIES

Case Law Page(s)

Am. Broad. Cos. v. Gill ,

6 S.W.3d 19 (Tex. App.—San Antonio 1999, pet. denied)(disapproved on other grounds) .............................................................................................7

Astoria Indus. of Iowa, Inc. v. SNF. Inc.,223 S.W.3d 616 (Tex. App.—Fort Worth 2007, pet. denied)............................................7

BE & K Constr. Co. v. NLRB,536 U.S. 516 (2002) ...................................................................................................................8

Bentley v. Bunton ,

94 S.W.3d 561 (Tex. 2002).....................................................................................................12

Bose Corp. v. Consumers Union of U.S., Inc.,466 U.S. 485 (1984) .................................................................................................................20

Brock v. Tandy ,2009 Tex. App. LEXIS 5171 (Tex. App.—Fort Worth July 2, 2009, pet denied)(mem. op.) ...............................................................................................................................23

Brueggemeyer v. Am. Broad. Cos., Inc.,684 F. Supp. 452 (N.D. Tex. 1988) ................................................................................. 9, 10

Castillo v. Flores ,No. 01-05-00760-CV, 2006 Tex. App. LEXIS 1627(Tex. App.—Houston [1 Dist.] Mar. 2, 2006, no pet.) .....................................................19

Cont’l Airlines, Inc. v. Kiefer ,920 S.W.2d 274 (Tex. 1996)............................................................................................19, 20

Cox Tex. Newspapers, L.P. v. Wootten ,59 S.W.3d 717 (Tex. App.—Austin 2001, pet. denied).......................................................7

Delta Air Lines, Inc. v. Norris ,949 S.W.2d 422 (Tex. App.—Waco 1997, writ denied)............................................... 7, 20

DiBella v. Hopkins ,403 F.3d 102 (2d Cir. 2005) ...................................................................................................26

Page iv



Page(s)

Dudrick v. Dolcefino,No. 14-96-01181-CV, 1998 Tex. App. LEXIS 7682 (Tex. App.—Houston[14th Dist.] Dec. 10, 1998, pet. denied) (not designated for publication) .......................9

Dyer v. Shafer, Gilliland, Davis, McCollum & Ashley, Inc.,779 S.W.2d 474 (Tex. App.—El Paso 1989, writ denied) ................................................21

Gateway Logistics Group, Inc. v. Dangerous Goods Mgmt. Australia Pty, Ltd ,No. H-05-2742, 2008 U.S. Dist. LEXIS 34246(S.D. Tex. April 25, 2008) ......................................................................................................25

Gaylord Broad. Co. v. Francis ,7 S.W.3d 279, 285-86 (Tex. App.—Dallas 1999, pet. denied)...................................22-23

Harvest House Publishers v. Local Church ,190 S.W.3d 204 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)..............................3

Hasty Inc. v. Inwood Buckhorn Joint Venture ,908 S.W.2d 494 (Tex. App.—Dallas 1995, writ denied) ...................................................22

Hennigan v. I.P. Petroleum Co., Inc.,858 S.W.2d 371 (Tex. 1993) (per curiam)............................................................................15

Hutchinson v. Proxmire

443 U.S. 111 (1979) ...........................................................................................................10-11

In re N.E.B.251 S.W.3d 211, 212 (Tex. App.—Dallas 2008, no pet.)..................................................20

Kaufman v. Islamic Soc’y of Arlington ,291 S.W.3d 130 (Tex. App.—Fort Worth 2009, pet. denied)........................................ 5-6

Knox v. Taylor ,992 S.W.2d 40 (Tex. App.—Houston [14th Dist.] 1999, no pet.) ..................................28

Leutwyler v. Royal Hashemite Court of Jordan ,184 F. Supp. 2d 303 (S.D.N.Y. 2001) ....................................................................................4

Liles v. Finstad ,1995 Tex. App. LEXIS 1719(Tex. App.—Houston [1st Dist.] 1995, writ denied)...........................................................4

Page v



Page(s)

Little v. Breland ,93 F.3d 755 (11th Cir. 1996) (not designated for publication) ..........................................8

Lohrenz v. Donnelly ,350 F.3d 1272, 1281 (D.C. Cir. 2003) ..................................................................................10

Marty’s Food & Wine, Inc. v. Starbucks Corp.,No. 05-01-00008-CV, 2002 WL 31410923(Tex. App.—Dallas 2002, no writ) .......................................................................................30

Masson v. New Yorker Magazine ,501 U.S. 496 (1991) ...................................................................................................................7

Metcalf v. KFOR-TV ,828 F. Supp. 1515 (W.D. Okla. 1992) .................................................................................26

Mfr. Home Cmtys., Inc. v. County of San Diego,544 F.3d 959 (9th Cir. 2008)............................................................................................25-26

Morrill v. Cisek,226 S.W.3d 545 (Tex. App.—Houston [1st Dist.] 2006, no pet.)...................................28

Musser v. Smith Prot. Servs., Inc.,723 S.W.2d 653 (Tex. 1987)...................................................................................................28

Nationwide Bi-Weekly Admin., Inc. v. Belo Corp.,512 F.3d 137 (5th Cir. 2007)............................................................................................... 3-4

Newspapers, Inc. v. Matthews ,339 S.W.2d 890 (Tex. 1960)...................................................................................................17

N.Y. Times v. Sullivan ,376 U.S. 254 (1964) .................................................................................................................13

Nike, Inc. v. Kasky ,539 U.S. 654 (2003) ...................................................................................................................6

Pardo v. Simons ,148 S.W.3d 181 (Tex. App.—Waco 2004, no pet.) .............................................................6

Partington v. Bugliosi ,56 F.3d 1147 (9th Cir. 1995)............................................................................................. 4, 12

Page vi



Page(s)

Phila. Newspapers, Inc. v. Hepps ,475 U.S. 767 (1986) ....................................................................................................6, 7, 8, 13

Riley v. Harr ,292 F.3d 282 (1st Cir. 2002) ............................................................................................. 4, 12

Rosanova v. Playboy Enters., Inc.,580 F.2d 859 (5th Cir. 1978)..................................................................................................10

Rosenblatt v. Baer, 383 U.S. 75 (1966) .....................................................................................................................7

Shearson Lehman Hutton, Inc. v. Tucker ,806 S.W.2d 914 (Tex. App.—Corpus Christi 1991, writ dism’d w.o.j.).........................28

Texas Monthly, Inc. v. Transamerican Natural Gas Corp.,7 S.W.3d 801 (Tex. App.—Houston [1st Dist.] 1999, no pet.) .........................................6

Trotter v. Jack Anderson Enters.,818 F.2d 431 (5th Cir. 1987)....................................................................................................9

Tucker v. Fischbein ,237 F.3d 275 (3d Cir. 2001) ...................................................................................................26

Turner v. KTRK Television, Inc.,38 S.W.3d 103 (Tex. 2000)................................................................................................ 7, 23

Turner v. Perry ,278 S.W.3d 806 (Tex. App.—Houston [14 Dist.] 2009, pet. denied).............................20

Univ. of Tex. Sw. Med. Ctr. v. Margulis ,11 S.W.3d 186 (Tex. 2000).....................................................................................................20

Vice v. Kasprzak,2009 Tex. App. LEXIS 7725(Tex. App.—Houston [1st Dist.] 2009, pet. denied) .......................................................7, 9

Waldbaum v. Fairchild Publ’ns, Inc.,627 F.2d 1287 (D.C. Cir. 1980) ...............................................................................................9

Page vii



Page viii

Page(s)

WFAA-TV v. McLemore ,978 S.W.2d 568 (Tex. 1998)...................................................................................................13

Constitutional Provisions

U.S. CONST., amend I.................................................................................................................... passim

Statutes and Rules

Tex. Att’y Gen. Op., No. JC-0109 (Sep. 9, 1999)...........................................................................29

Tex. Civ. Prac. & Rem. Code § 22.021(3) ..........................................................................................6

Tex. Civ. Prac. & Rem. Code § 51.014(a)(6).....................................................................2, 3, 4, 5, 6

Tex. Loc. Gov’t Code § 380 ...............................................................................................................29

Tex. Rev. Civ. Stat. § 5190.6...............................................................................................................29

Tex. R. Evid. 804(a) .............................................................................................................................20

Tex. R. Evid. 804(b)(1)........................................................................................................................20

Other Authorities

Black’s Law Dictionary (8th ed. 2004)..............................................................................................30

Debate on Tex. S.B. 76 on the Floor of the Senate, 73rd Leg. (Feb. 25, 1993) ..........................5

Senate Research Center Bill Analysis for S.B. 76 (August 26, 199 ................................................5



INTRODUCTION

Appellants Carla T. Main and Encounter Books wrote and published a book about

eminent domain for private development—one of the major political and social issues of our

time. The book describes the Freeport marina project, a project that Appellee Walker Royall

led, and takes the position that use of eminent domain for such a project is wrong. Royall’s

defamation suit encompasses the “gist” of the book, individual statements in the book,

Appellants’ websites, press releases, an opinion-editorial, and a book review about the book.

Appellants brought a no-evidence summary judgment motion, requiring Royall to produce

evidence that the gist and each statement he objected to was (a) verifiable, (b) of and

concerning him, (c) capable of defamatory meaning, and (d) false. In their appellate brief

(App. Br.), Appellants painstakingly explained for each statement and the gist the particular

elements for which Royall had failed to produce evidence.

In the Appellee’s Brief (Resp. Br.), Royall makes no effort to respond with

particularity. Instead, Royall complains that Appellants’ Brief is “torturous,” and asks this

Court to simply affirm without getting into the details. Resp. Br. at 23, 32. When a person

claims defamation from the gist of a 300-page book and 91 individual statements, he must

be prepared to engage in detailed explanation and discussion of evidence. Royall is not

willing to do so. Thus, where Appellants identify three elements that lack evidence for a

statement, Royall sometimes addresses one or two elements and sometimes ignores

Appellants’ arguments entirely.

Notwithstanding Royall’s numerous allegations, the situation facing this Court is

simple: Appellants published a book about a controversial redevelopment project in which

Page 1



No court or legislature has ever suggested that books are not “print media.” Moreover, the

First Amendment is the foundation of this appeal, and even if there also were other issues,

Texas courts decide such issues on interlocutory appeal.

A. Book authors and publishers are members of the “print media.”

Texas allows members of the “electronic or print media” to bring interlocutory

appeals challenging denials of summary judgment in defamation actions. Tex. Civ. Prac. &

Rem. Code § 51.014(a)(6). The plain language of the statute includes ordinary non-fiction

books, which are of course “printed.” Royall does not address the statute’s plain language.

Instead, he notes a single snippet of legislative history that lists some types of media and

then claims that this list is exhaustive. In fact, Texas and federal courts treat books as “print

media” and have never held the list Royall relies upon to be exhaustive.

1. Courts treat book authors and publishers as members of the“print media” and “media defendants.”

Royall cites no case that even hints that a book is not a type of “print media” under

Section 51.014(a)(6). Although there is no case specifically holding that books are print

media, at least one Texas appellate court has decided an interlocutory appeal under Section

51.014(a)(6) brought by book authors and publishers without raising any jurisdictional

questions. See Harvest House Publishers v. Local Church , 190 S.W.3d 204, 209 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied).

Federal courts also treat books as “print media.” Discussing the “single publication

rule” in defamation cases, the Fifth Circuit concluded that the Texas Supreme Court would

hold that the rule applied to internet publications, just as it applied to “print media” like

“book[s]”. See Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 144-45 (5th Cir.

Page 3



2007); see also Leutwyler v. Royal Hashemite Court of Jordan , 184 F. Supp. 2d 303, 307 (S.D.N.Y.

2001) (interpreting license to publish photographs in “print media” to include books).

Royall himself equates “print media” under Section 51.014(a)(6) with “media

defendant” under federal constitutional law. Resp. Br. at 10-11. Bizarrely, Royall claims that

“media defendants” refers only to “newspapers or broadcasters” and thus “print media”

must also include only newspapers and broadcasters. Resp. Br. at 11. Yet many courts treat

book defendants as “media defendants.” See, e.g., Partington v. Bugliosi , 56 F.3d 1147, 1158

n.16 (9th Cir. 1995) (“statements on matters of public concern . . . are absolutely protected”

where “media defendants are involved,” referring to book author and publisher); Riley v.

Harr , 292 F.3d 282, 288–289 (1st Cir. 2002) (defamation plaintiff bore burden of showing

falsity because author and publisher of book were media defendants); Liles v. Finstad , No. 01-

94-00258-CV, 1995 Tex. App. LEXIS 1719, at *19 (Tex. App.—Houston [1st Dist.] Aug. 3,

1995, writ denied) (not designated for publication) (same).

2. The legislative history suggests that the statute applies to all“published” material.

In opposition to the straightforward conclusion that books are “print media,” Royall

points to a summary describing the purpose of Section 51.014(a)(6) being “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” and claims the summary is meant

to provide an exhaustive list of “electronic and print media.” Resp. Br. at 9 (citing House

Research Org., Bill Analysis, Tex. S.B. 76, 73rd Leg., R.S. (1993)). The summary does not

purport to be exhaustive, however, and the courts have not treated it as such.

Other materials in the legislative history show there was no intention to limit “print

Page 4



media” solely to newspapers. The Senate Research Center Bill Analysis for S.B. 76 describes

the “Purpose” of the bill as authorizing interlocutory appeals “in cases involving defamation

. . . or arising from a broadcast or written publication .” (August 26, 1993) (emphasis added).

Debate about the bill largely centered on whether the right of interlocutory appeal

should be available to all defamation defendants. Eventually, a compromise amendment was

proposed that broadened S.B. 76’s scope and extended the appeal right to anyone whose

opinion was published, even if that person was not a member of the media. Senator Turner,

the original sponsor of the bill, described the effect of the amendment as follows: “[i]t

extends some right to ordinary citizens as extended to corporations and other businesses in the

business of printing and publishing .” Debate on Tex. S.B. 76 on the Floor of the Senate, 73rd

Leg. (Feb. 25, 1993) (floor tape available from Senate Staff Services) (emphasis added).

The legislative history shows that the right of interlocutory appeal was meant to apply

broadly to any print or electronic media, in order to protect the First Amendment rights of

these persons and prevent the chilling of speech. Books easily fall within this protection.

3. Texas courts have not limited the interlocutory appeal statute tonewspapers, radio, or television.

Texas courts interpret the scope of Section 51.014(a)(6) broadly. At least one

appellate court has interpreted “electronic media” to include not just the “television and

radio stations” mentioned in the single section of the legislative history quoted by Royall, but

also online media. See Kaufman v. Islamic Soc’y of Arlington , 291 S.W.3d 130, 141-42 (Tex.

App.—Fort Worth 2009, pet. denied). In Kaufman , the court rejected the exact argument

advanced by Royall—that because the defendant wasn’t a newspaper, television station, or

radio station, it could not be a member of the “electronic or print media.” See id. at 140 n.21.

Page 5



Instead, the court adopted a broad, commonsense interpretation of the statute. It also noted

that the definition of “news medium” in Tex. Civ. Prac. & Rem. Code § 22.021(3) includes

the internet and, specifically, “book publisher[s].” Id. at 142.

Texas courts also treat monthly magazines as members of the “print media,” despite

the fact that they are not mentioned in Royall’s supposedly exhaustive list, either. See, e.g.,

Pardo v. Simons , 148 S.W.3d 181, 184 (Tex. App.—Waco 2004, no pet.) (describing allegedly

defamatory article as appearing in the “March 1997” issue of a publication); Tex. Monthly, Inc.

v. Transamerican Natural Gas Corp., 7 S.W.3d 801, 804 (Tex. App.—Houston [1st Dist.] 1999,

no pet.) (allegedly defamatory article appeared in Texas Monthly ).

Neither courts nor the legislature have shown the slightest inclination to limit the

scope of the interlocutory appeal statute to certain types of media but not others. Books are

the original “print media” of Western civilization, and they are plainly covered by the statute.

B. This Court has jurisdiction over all of Appellants’ claims.

Royall argues that the interlocutory appeal statute only allows interlocutory appeal of

those issues related to the First Amendment. Resp. Br. at 12-14. What Royall fails to

understand is that all of the issues on which Appellants appeal are based “in whole or in

part” on the First Amendment. Tex. Civ. Prac. & Rem. Code § 51.014(a)(6). The public

figure, public concern, and media defendant doctrines (discussed at section II, infra ) all

originate from the First Amendment—as does the concurrent burden-shifting on questions

of falsity and malice. See, e.g., Nike, Inc. v. Kasky , 539 U.S. 654, 663-64 (2003) (Stevens, J.,

concurring) (public figure); Phila. Newspapers, Inc. v. Hepps , 475 U.S. 767, 777 (1986) (public

concern plus media defendant). Similarly, questions about whether a statement is protected

Page 6



alternative, he also bears that burden if Appellants are media defendants writing about

matters of public concern. See BE & K Constr. Co. v. NLRB, 536 U.S. 516, 534 (2002); see also

Phila. Newspapers , 475 U.S. at 776-77. All of those conditions are satisfied here.

A. No court has adopted Royall’s legal standards for determining whethersomeone is a limited-purpose public figure.

Royall makes two essential errors in his public figure analysis. First, he argues that

the only way to become a public figure is to knowingly inject oneself into a pre-existing

controversy. Second, he argues that the Court must look at whether the project was

controversial at the time he first became involved, rather than at the time the allegedly

defamatory statements were published. Royall is flat wrong on both of these points and is,

therefore, a limited-purpose public figure with the burden of proving falsity.

1. The voluntariness inquiry properly looks at whether Royall took voluntary action that led to his involvement in the controversy,not at whether he knew the project would be controversial.

Royall says that someone cannot be a public figure unless he “thrust[s] himself to the

forefront of the dispute.” Resp. Br. at 15. Certainly, one way to become a public figure is to

publicly enter a pre-existing public dispute. As Appellants explained, however, courts find

that persons whose actions create a public controversy also are public figures. See App. Br. at

10-12 (citing cases). In response, Royall says only that one of Appellants’ cases, Little v.

Breland , 93 F.3d 755 (11th Cir. 1996), involved an organization that had already experienced

some controversy before the plaintiff voluntarily joined it. Resp. Br. at 21. The key point,

however, was that the plaintiff had taken a leadership role at an organization likely to

experience controversy, Little , 93 F.3d at 758, just as Royall voluntarily became the developer

of a project that was likely to experience controversy. Moreover, in the other cases cited in

Page 8



Appellants’ Brief, there is no mention of controversy prior to the plaintiffs’ voluntary

actions. See Vice , 2009 Tex. App. LEXIS 7725, at *30-32; Trotter v. Jack Anderson Enters., 818

F.2d 431, 435-36 (5th Cir. 1987); Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d 1287, 1290 (D.C.

Cir. 1980); Brueggemeyer v. Am. Broad. Cos., 684 F. Supp. 452, 453-54 (N.D. Tex. 1988); see also

Dudrick v. Dolcefino, No. 14-96-01181-CV, 1998 Tex. App. LEXIS 7682, at *2-4 (Tex. App.—

Houston [14th Dist.] Dec. 10, 1998, pet. denied) (not designated for publication).

Royall does not deny that he worked with the city to create the Freeport marina

project nor that he was the leader of that project. There are only three signatures on the

2003 development agreement: Royall’s, the Mayor’s, and that of the director of the economic

development corporation. C.R. at 506. Royall’s own Brief points out that he agreed to “lead

development of the project.” Resp. Br. at 1. As Appellants explained, the project Royall

agreed to lead was inherently controversial, because it involved both eminent domain and a

loan to Royall’s company that amounted to more than 40 percent of the annual city budget.

App. Br. at 2, 11. That agreement plainly states that Royall’s company would acquire the

“Gore Land, whether via the city’s assistance in negotiating a direct purchase of such lands

by the Project Developer or via the City’s exercise of its power of eminent domain and conveyance of such

lands to the Project Developer .” C.R. at 1406 (emphasis added). Not only did Royall sign the

2003 agreement, he continued to amend it well after the controversy appeared in the media.

See App. Br. at 11. Royall’s own voluntary actions—signing the agreement, renewing the

agreement, and leading the project—created the highly controversial marina project.

Royall thinks this is not “voluntary” action because he didn’t know that the project he

voluntarily agreed to lead would be controversial. Resp. Br. at 17-19. When courts look at

Page 9



whether someone took voluntary action, they look at whether the person meant to take the

actions he did, not whether he intended that his actions garner negative publicity. See, e.g.,

Rosanova v. Playboy Enters., 580 F.2d 859, 861 (5th Cir. 1978); Brueggemeyer , 684 F. Supp. at 458.

Royall might have hoped that eminent domain wouldn’t be used, or that there would be no

controversy about the use of eminent domain, but he thrust himself to the forefront of the

project, at a time when there had been both local and national controversy about eminent

domain for private development.1 He is a limited-purpose public figure.

Royall’s use of Hutchinson v. Proxmire is unavailing. 443 U.S. 111 (1979). The plaintiff

in Hutchinson was one of many recipients of public grant money but his research was singled

out for a “Golden Fleece Award” by the defendants. Id . at 114. By contrast, Royall was not

one of many people who happened to have a government contract; he was the “lead[er]” of

a major public-private project, which received a large amount of public money and used a

highly controversial government power. See Resp. Br. at 1. Likewise, the Court noted that

the Hutchinson plaintiff did not have access to the media. 443 U.S. at 136. Royall did. He

was interviewed by the local paper and gave presentations at public meetings. See C.R. at

1909-11; 1913-14; 1917-18; 1920; 1929; 1950; 1966-67; and 2614-15.2 Main even tried three

times to interview him for her book. C.R. at 442. Finally, the Court noted that the

Hutchinson plaintiff never “assumed any role of public prominence.” 443 U.S. at 135. Aside

1 Appellants introduced evidence that any developer in the Dallas-Fort Worth area should have recognized that eminentdomain for private development was bound to be controversial in 2003. At least one highly controversial eminentdomain project took place in Royall’s own backyard between 1995-2000, when the city of Hurst used eminent domain toclear homes for the expansion of Northeast Mall. See C.R. at 2534-58 (articles from Dallas Morning News and Fort Worth Star-Telegram ). Texas and national publications also featured similar eminent domain controversies. App. Br. at 11 n.7.

2 Royall also incorrectly asserts that he always avoided publicity. In fact, the record shows at least eight instances whenRoyall was interviewed by the media or presented at public meetings. See C.R. at 1909-11; 1913-14; 1917-18; 1920; 1929;1950; 1966-67; and 2614-15. Further, even someone who avoids the media can become a public figure. See, e.g., Lohrenz v. Donnelly , 350 F.3d 1272, 1281 (D.C. Cir. 2003); Rosanova , 580 F.2d at 861; Brueggemeyer , 684 F. Supp. at 456.

Page 10



defendants. See , e.g., Riley , 292 F.3d at 288–89; Partington , 56 F.3d at 1158 n.16. Royall has

cited no case from any court rejecting a book publisher or author as a media defendant.

Encounter, a national book publisher, and Main, an author, are plainly media defendants.

2. Appellants have demonstrated that the Freeport marina project was of significant public concern.

Royall makes no attempt to argue that the gist of the book or the statements he

identifies are not on matters of public concern. Instead, he claims that Appellants “did not

address whether the statements that plaintiff contends are defamatory are about matters of

public concern.” Resp. Br. at 16. This remarkable accusation is refuted by section II.B.1 of

Appellants’ opening brief, which discusses how the gist of the book and the statements

Royall complains about all center around the same set of operative issues: the Freeport

marina project, the use of eminent domain for private development, constitutional rights,

and the proper scope of government action. App. Br. at 13-14. Each of these issues is a

matter of public concern for First Amendment purposes. Id . (citing cases).

Royall’s complaint seems to be that Appellants should have said, “Statement 1 is

about eminent domain for private use, which is a matter of public concern; statement 2 is

about eminent domain for private use, which is a matter of public concern; etc.”3 Royall

cites a single case for this assertion, Bentley v. Bunton , 94 S.W.3d 561, 580 (Tex. 2002). Resp.

Br. at 16. Bentley , however, does not even discuss the issue. See 94 S.W.3d at 579. Although

the page Royall cites uses the phrase “of public concern,” it is talking about the doctrine that

statements of unverifiable opinion on matters of public concern are not actionable as

3 Royall claims, incorrectly, that Appellants’ motion for partial summary judgment did not talk about any of thestatements Royall claims to be defamatory. Resp. Br. at 16. In fact, the “public concern” section talked at length aboutthe gist of the book , C.R. at 962-66, and several of the specific statements Royall identified, C.R. at 951-53, 958.

Page 12



defamation. Id. at 580. There is not the slightest hint that the determination of whether a

publication is “of public concern” requires a recitation of each supposedly defamatory

statement when it is apparent from their face that they are all on the same topic.

To the contrary, courts frequently look at the overall publication or purpose of the

publication. For example, in Philadelphia Newspapers , the U.S. Supreme Court described the

“general theme” of the allegedly defamatory newspaper articles, set out a smattering of

quotes, and then later stated in a conclusory fashion that “[h]ere, as in Gertz , the plaintiff is a

private figure and the newspaper articles are of public concern.” 475 U.S. at 769, 776; see also

N.Y. Times v. Sullivan , 376 U.S. 254, 266 (1964) (holding that a challenged advertisement

“expressed opinion, recited grievances, protested claimed abuses, and sought financial

support on behalf of a movement whose existence and objectives are matters of the highest

public interest and concern”); WFAA-TV v. McLemore , 978 S.W.2d 568, 572-73 (Tex. 1998)

(discussing the similar issue of whether there was a public controversy for purposes of public

figure analysis and holding that the topic of why the ATF raid on the Branch-Davidian

compound failed was a matter of public controversy, without discussing the particular

statements alleged to be defamatory).

Appellants did what they were required to do: They discussed why the topics of the

supposedly defamatory statements are each of public concern. Royall provides no argument

that Appellants are incorrect—he merely argues without authority that they should have

framed their contentions in his preferred manner. Thus, even if Royall were not a public

figure (which he is), he would still have the burden of proving falsity because Appellants are

media defendants and the defamatory statements are about issues of public concern.

Page 13



III. Royall has not even tried to show that Appellants published a single statementthat satisfies all four elements of defamation on which Appellants broughttheir no-evidence motion.

In their opening brief, Appellants explained that they were entitled to summary

judgment because there is no evidence that any of the 91 allegedly defamatory statements or

the “gist” identified by Royall is (1) a statement of verifiable fact; (2) of and concerning

Royall; (3) capable of defamatory meaning; and (4) false. App. Br. at 27-48. As explained in

the opening brief, a statement or gist must meet all four elements to be defamation, and

Appellants moved on all four. App. Br. at 23. Royall seems irritated by the demand that he

produce evidence on all four elements for the gist and the individual statements. His

response is, roughly, that Appellants conceded there were some verifiable facts in the book

so he does not have to discuss verifiability; that there is some mention of Royall in the book

so he does not have to discuss “of and concerning;” that his interpretation of the book,

without reference to any of its text, is capable of defamatory meaning; and that he does not

have to prove falsity but if he did, he has provided evidence of falsity for a few statements.

Appellants show for each point that Royall has utterly failed to respond to their

arguments or on-point caselaw and that he has not produced evidence of the four elements

for either the gist or any of the individual statements. First, in Part III.A-D, Appellants

discuss Royall’s response on verifiability, of and concerning, defamatory meaning, and

falsity. In Part III.E, Appellants point out that Royall has conceded he was not defamed by

statements he did not identify. In Part III.F, Appellants address Royall’s suggestion that this

Court simply affirm without examining whether Royall has met his no-evidence burden. In

Part III.G, Appellants then show that Royall’s evidence continues to be inadmissible hearsay.

Page 14



Part IV then addresses gist, and Part V goes through the individual statements.

A. Royall has not even argued that Appellants’ statements are verifiableassertions of fact.

In their opening brief, Appellants describe the rule that statements cannot be

defamatory unless they are verifiable statements of fact, App. Br. at 18-20, and cite 18 cases

discussing the requirement that a statement be verifiable in order to be defamatory. App. Br.

at 28-40. Appellee’s Brief contains no discussion of any of the cases on verifiability and fails

to address whether any of the 91 statements or the gist are statements of verifiable fact.

Instead, Royall’s sole response is that Appellants “judicially admitted” the factual

nature of some of the 91 statements (which he never identifies) in a heading of an earlier

motion for summary judgment. Resp. Br. at 32-33. That heading read: “Royall complains

about some statements that are factual in nature; but these statements could not possibly

convey a defamatory meaning about Royall.” C.R. at 85.

As a matter of law, a judicial admission must be “deliberate, clear and unequivocal” to

support summary judgment. Hennigan v. I.P. Petroleum Co., 858 S.W.2d 371, 372 (Tex. 1993)

(per curiam). The “admission” identified by Royall is nothing of the sort:

The supposed judicial admission appears in an earlier summary judgment motion,not the motion on appeal in this case. C.R. 46-115.

The actual text of the section under the heading expressly disclaims Royall’sinterpretation—”Because the statements also are predictions of the effect of apublic plan on navigation and the Gores’ business, they are not objectively

verifiable,” C.R. at 91. The brief further explains that the statements are groupedin that particular section for organizational purposes only, “because they soobviously do not concern Royall, but they also could have been included in theearlier ‘opinion’ section above.” C.R. at 91, n.12. The brief even cites cases abouthow similar predictions of future events are not verifiable fact. C.R. at 92.

Royall claims that Appellants admitted that 41 of the 61 pages contain statementsof fact. Resp. Br. at 32. He does not identify which statements on those pages nor

Page 15



The motion Royall claims to be an admission of verifiability says exactly the opposite.

It is not a “deliberate, clear, and unequivocal” admission of anything. Royall has offered no

other argument that either the gist or statements are verifiable.

B. Royall has not produced evidence that the supposedly defamatorystatements that do not refer to him are “of and concerning” him.

In their opening brief, Appellants demonstrated that 57 of the 91 supposedly

defamatory statements were not “of and concerning” Royall, because they did not name or

refer to him. App. Br. at 22 & n.12. Rather than addressing any of the statements

specifically, Royall’s Brief makes three unpersuasive arguments: (1) some of the supposedly

defamatory statements appear on pages that mention Royall; (2) summaries of the book refer

to Royall; (3) a former Freeport employee submitted an affidavit saying that “in [his]

reading,” everything in the book related to Freeport is about Royall. Resp. Br. at 34-35; 2d

Supp. C.R. at 183-87. Each of these arguments fails.

First, Royall’s Brief says that “26 of the pages designated in the no evidence motion

expressly mention Walker Royall.” Resp. Br. at 34. But the fact that Royall is mentioned

somewhere on a page is neither here nor there; the question is whether the supposedly

defamatory statement refers to him. A statement is not “of and concerning” Royall simply

because he is mentioned elsewhere on the page.4 See, e.g., Stmt. 62 (“…the City was

condemning one of the oldest employers in Freeport and wiping out real jobs”), which

4 Many of the pages listed in the Appellee’s Brief do not even contain statements that Royall has identified as supposedly defamatory—pages 1031, 1038, 1059-61, 1100, 1220-21, and 1277; Resp. Br. at 34. Some of the other 26 pagesidentified by Royall as “of and concerning” him contain statements that Appellants admit are of and concerning Royall.See C.R. at 1003 (Stmts. 4 & 5), 1005 (Stmt. 8), 1018 (Stmt. 16), 1021 (Stmt. 17), 1030 (Stmt. 19), 1072 (Stmt. 51), 1074(Stmt. 53), & 1261 (Stmt. 70).

Page 16



appears on the same page as a discussion of public opposition to loaning $6 million to

Royall.

Royall also seems to argue that all statements in the book must be about him because

descriptions of the book on Appellants’ websites and in their op-ed mention Royall. Resp.

Br. at 34-35. That Royall is referred to in a book summary does not mean that any particular

statement in the book is necessarily of and concerning him. To make that determination,

one must actually read the statements. If they do not mention or refer to Royall, they are

not of and concerning him. “The settled law requires that the false statement point to the

plaintiff and to no one else.” Newspapers, Inc. v. Matthews , 339 S.W.2d 890, 894 (Tex. 1960).

Finally, Royall claims that anything in the book that relates to Freeport is of and

concerning him, relying on the affidavit of former city economic development corporation

employee Lee Cameron. Resp. Br. at 35. As explained in Appellants’ opening brief, App.

Br. at 22-23, the Cameron affidavit is generic, conclusory, and inadequate to establish the

wholly implausible proposition that every discussion of the marina project in the book is

about Royall. Royall quotes the language in the Cameron affidavit, without acknowledging

Appellants’ argument that the affidavit should be disregarded and without addressing any of

the on-point caselaw cited by Appellants. Resp. Br. at 35.

C. Royall has not produced evidence that each supposedly defamatorystatement is capable of defamatory meaning.

Royall uses the “capable of defamatory meaning” section of his brief as the only

section to address the individual statements he claims to be defamatory. Resp. Br. at 36-41.

This is a confusing structure, as Appellee should be trying to show that each statement meets

all four elements on which Appellants moved, not just one. Moreover, Royall fails to

Page 17



address the only two points that Appellants made in their Brief about defamatory meaning—

statements that are not of and concerning Royall are not capable of defamatory meaning as

to him and some of the statements identified by Royall as supposedly defaming him are too

vague to be capable of defamatory meaning. App. Br. at 23-24. Thus, Royall has not

shown that Appellants’ statements were capable of defamatory meaning.

D. Royall has not produced evidence that each supposedly defamatorystatement is false.

As explained in Appellants’ Brief, Royall bears the burden of showing falsity if either

(a) Royall is a limited-purpose public figure or (b) Appellants are media defendants and the

subject is one of public concern. App. Br. at 5-15, 15 n.8. Royall responds by stating that it

was not his burden to show that the statements are false. Resp. Br. at 33. On those few

occasions where Royall discusses falsity at all, Resp. Br. at 28-31, 38, 41, his brief simply

ignores and fails to respond to Appellants’ discussion. See Parts V.B & V.C, infra .

E. Royall concedes that Appellants are entitled to summary judgment on

the statements that Royall does not mention.

In their opening Brief, Appellants explained that Royall identified no statements that

supposedly defamed him on the vast majority of pages of the book and provided no

evidence that these pages contained statements that met the four elements of defamation.

App. Br. at 26-27. Appellants thus asked the trial court to grant no-evidence summary

judgment that those pages did not defame him, C.R. at 2832-33, and appealed the court’s

refusal to do so. This is an important point, because these pages contain the facts that form

the basis of many of the opinions that Royall finds objectionable. App. Br. at 26. In his

Brief, Royall makes no mention of this issue, apparently conceding that summary judgment

Page 18



is appropriate for pages on which he identified no supposedly defamatory statements.

F. Appeals from denials of no-evidence summary judgment motions arenot all-or-nothing proceedings.

Royall argues, incorrectly, that this Court has only two options: reverse and hold that

summary judgment be granted in its entirety or, if there is any minor claim on which

summary judgment was properly denied, affirm the trial court’s denial of everything. Resp.

Br. at 23. This argument is based on Royall’s mistaken contention that Appellants failed to

move for summary judgment on an op-ed, one press release, and the allegation that

Appellants aided and abetted each other. As Appellants explained, they did move for

summary judgment on all of these points. App. Br. at 17, n.11.5 But even if this Court

agreed that Appellants did not move on these few items, a ruling in Appellants’ favor on the

book, gist, websites, book review, advertisements, and other press release would resolve

every major issue in the case, leaving only minor proceedings in the trial court afterward.

Moreover, Texas caselaw directly contradicts Royall’s assertion that appellate courts

take an all-or-nothing approach to denials of summary judgment. In fact, courts routinely

affirm in part and reverse in part on appeals from denials of summary judgment. See, e.g.,

Castillo v. Flores , No. 01-05-00760-CV, 2006 Tex. App. LEXIS 1627, at *40-41 (Tex. App.—

Houston [1st Dist.] Mar. 2, 2006, no pet.) (reversing in part “because Flores alleged seven

separate incidents of defamation—each of which allegations appears separable without

unfairness to the parties, and on only some of which allegations the trial should have

5 In addition to the book, websites, and advertising, Appellants moved for no-evidence summary judgment on “all otheritems identified by Plaintiff as containing allegedly defamatory statements.” C.R. at 903; see also Continental Airlines, Inc. v.Kiefer , 920 S.W.2d 274, 276 (Tex. 1996) (holding that a motion that says the defendant is moving “on all claims broughtby” the plaintiff, constitutes a motion on all claims even if the motion omits argument on one of them). Moreover,moving that there was no defamation necessarily includes a lack of aiding and abetting the nonexistent defamation.

Page 19



rendered summary judgment”); Delta Air Lines, Inc. v. Norris , 949 S.W.2d 422, 430 (Tex.

App.—Waco 1997, writ denied) (court affirmed some claims, reversed and granted summary

judgment on others, and remanded for trial on the remaining issues). Moreover, a party can

seek review of a denial of partial summary judgment in a defamation case, as well as denial of

summary judgment in its entirety. See Univ. of Tex. Sw. Med. Ctr. v. Margulis , 11 S.W.3d 186,

187-88 (Tex. 2000) (holding that court of appeals had jurisdiction over interlocutory appeal

of denial of motion for partial summary judgment); Turner v. Perry , 278 S.W.3d 806, 815, 825-

26 (Tex. App.—Houston [14 Dist.] 2009, pet. denied) (on appeal of denial of partial

summary judgment, the court reversed and rendered judgment on some claims, while

affirming others and remanding for trial).6 Contrary to Royall’s urging that this Court avoid

the important First Amendment issues, appellate courts have an obligation to examine the

entire record and ensure that the judgment does not infringe free speech. Bose Corp. v.

Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984).

G. Royall has not shown that any of the disputed evidence was admissible.

Appellants showed in their Brief that five pieces of evidence—three depositions and

two unsworn statements—were inadmissible hearsay. App. Br. at 25-26. As to the

depositions, Appellants showed that Texas Rules of Evidence 804(a) and (b)(1) require a

party to show that the deponent is unavailable before admitting a deposition from a prior

case. App. Br. at 25. Royall argues that one case holds that depositions from other cases are

6 In support of the claim that appeals from denials of summary judgment are all-or-nothing affairs, Royall cites twocases, neither of which says anything of the kind. See Resp. Br. at 23. Cont’l Airlines , 920 S.W.2d at 276-77, involved adetermination of whether a judgment was final for purposes of appellate jurisdiction. One can bring an interlocutory appeal from a non-final judgment in a defamation case, so Kiefer does not apply. In re N.E.B., 251 S.W.3d 211, 212 (Tex. App.—Dallas 2008, no pet.) holds that arguments are not properly raised on appeal when no argument or citation ispresented for them. Although true as a general proposition, it has no relevance here, where Appellants have presentedsignificant argument and citation.

Page 20



admissible even if the deponents are available. Resp. Br. at 42 (citing Dyer v. Shafer, Gilliland,

Davis, McCollum & Ashley, Inc., 779 S.W.2d 474, 477 (Tex. App.—El Paso 1989, writ

denied)). Royall’s reading of Dyer is incorrect. Dyer says that, in a case where a party has waived

his hearsay objection , depositions from another case are admissible. 779 S.W.2d at 477. In the

instant case, unlike Dyer , Appellants did not waive their hearsay objection, and thus the

depositions from the other case were inadmissible unless the deponents were unavailable.7

As to the two unsworn statements, Royall claims that they have “independent legal

significance regardless of whether they are truthful or not,” Resp. Br. at 43, but his use of the

statements contradicts that assertion. He used the statement by the newspaper publisher in

an attempt to show that the book review was a “statement of verifiable fact” and “false.”

C.R. at 2811. It is hard to imagine that a statement could ever be relevant “regardless of its

truthfulness” while simultaneously being introduced to show falsity. It also appears that

Royall intended to use the statement by city officials to show the respective roles of the city

and Royall, i.e., for the truth of the matters asserted. C.R. at 2752-54.

Finally, Royall says that Appellants have not shown how these challenged exhibits led

to any error. Resp. Br. at 43. In fact, Appellants showed that the deposition transcripts were

the only support offered for the supposed falsity of the statements about the anticipated

effect of the Freeport project on river navigation and the Gores’ businesses. See App. Br. at

41. Similarly, the unsworn letter from the newspaper publisher was the only support offered7 Royall also claims that Appellants failed to object to these deposition transcripts when Royall introduced them inopposition to an earlier motion for summary judgment and thus waived their objections to the evidence in this motion.Resp. Br. at 42. Appellants responded to this claim already, explaining that (1) Royall had never used one of thedepositions before and thus Appellants could not have waived their objection; (2) Royall had used two of thedepositions in an earlier summary judgment opposition only to contest public figure status, which was not even at issuein the motion; and (3) if Royall’s theory of waiver were correct, then the 100 articles Appellants used for public figureevidence are now admissible to show truth and falsity of Appellants’ statements, as Royall did not object to theirintroduction on the issue of public figure. See App. Br. at 25 n.15. Royall makes no response.

Page 21



that the book review was “of and concerning” Royall and capable of defamatory meaning,

and it was combined with other evidence in an attempt to show falsity. See C.R. at 2810-11.

As the only evidence offered in response to a no-evidence motion for summary judgment,

the erroneous evidence was prejudicial. See Hasty Inc. v. Inwood Buckhorn Joint Venture , 908

S.W.2d 494, 503 (Tex. App.—Dallas 1995, writ denied) (erroneous admission of evidence

held “harmful” where there was no other evidence introduced on the issue).

IV. Royall did not produce evidence in support of his gist claim.

Royall emphasizes throughout his brief that the Court must evaluate the entire

publication, not individual statements. Resp. Br. at 24-26, 32, 34-35. Appellants agree that a

gist claim is a claim about overall message. But Royall incorrectly assumes that the nature of

the gist analysis absolves him from having to provide any evidence from the text itself.

A. Royall did not make a proper gist claim.

In their opening brief, Appellants explained that this Court requires that a gist claim

be a claim that the author “got the details right” but the gist wrong. App. Br. at 44-45. In

response, Royall asserts that this Court in Gaylord Broad. Co. v. Francis “found that there was

evidence from which a jury could find that individual statements were false, and also that

there was a jury question whether the gist of the broadcast was false.” Resp. Br. at 31 citing

7 S.W.3d 279, 285-86 (Tex. App.—Dallas 1999, pet. denied). What Gaylord actually says,

however, is that there was a jury question about both the plaintiff’s claim the statements in

the broadcast were false and the defense of “substantial truth.” The plaintiffs in Gaylord did

not even bring a gist claim. See id . at 282. The “substantial truth” doctrine, although it uses

the word “gist,” is a doctrine that disregards minor factual inaccuracies in allegedly

Page 22



defamatory statements. 7 S.W.3d at 285-86. A gist claim, unlike the claim brought in

Gaylord , requires an explanation of how the publication got the details right but the gist

wrong. See App. Br. at 44-45 (explaining gist cases).

B. Royall produced no evidence that the gist of the book is one of verifiablefact or that it is false.

The gist of a publication, just like an individual statement, may only be defamatory if

it is verifiable, about the plaintiff, capable of defamatory meaning, and false. See, e.g., Turner

v. KTRK TV, Inc., 38 S.W.3d 103, 117-20 (Tex. 2000) (discussing how strategic juxtapositions

and omissions gave false factual impression of plaintiff’s actions). Appellants showed that

the gist of the book is different than what Royall claims and that he failed to produce

evidence on two of the necessary elements—verifiability and falsity. App. Br. at 45-48.

Appellee’s Brief makes no response to Appellants’ arguments.

In their Brief, Appellants explained that the gist of Bulldozed was political opinion, not

verifiable fact. App. Br. at 45-47. Appellants also discussed Royall’s incorrect claim that

Bulldozed is similar to the advertisement in Brock v. Tandy , 2009 Tex. App. LEXIS 5171 (Tex.

App. Fort Worth July 2, 2009) (mem. op.) (pet. denied), because they both discuss the abuse

of eminent domain. Appellants showed that Brock is utterly distinguishable because the

advertisement at issue in that case accused the defendant of a felony and official corruption

and contained admittedly false facts. App. Br. at 35-36. Royall makes no response to

Appellants’ two-page analysis of Brock but simply repeats his same argument that Brock is

controlling. Resp. Br. at 26-27. Nor does Royall respond to the argument or case citations

that predictions of future effects of the project on river navigation and the Gore’s business

are “predictive opinion.” App. Br. at 37-38, 47. Nor does he respond to the case citations

Page 23



that nonfiction authors may tell stories from a particular perspective. Id. at 47.

Appellee’s gist section does discuss falsity, but, in doing so, it fails to acknowledge

that Appellants addressed, and rebutted, each specific point in their opening brief. As he did

in his briefing in the lower court, Royall points to four supposedly false and defamatory facts

in the book. These “facts” are listed on page 46 of Appellants’ opening brief and rebutted

on pages 46-47. As Appellants have already explained, the supposedly defamatory “facts”

are either not in the book, trivial, and/or unverifiable. App. Br. at 46-47.

V. Royall has not shown he introduced evidence of each of the four elements for

the 91 individual statements.In their opening brief, Appellants went through every statement that Royall has

claimed to be defamatory, identified which of the four elements Royall had failed to produce

evidence of, and cited relevant caselaw. Royall’s Brief, however, does not directly respond.

It does not seek to show that Royall did introduce evidence of the four elements; nor does

the Brief address or distinguish the caselaw cited by Appellants.

Below, Appellants show how Royall still has not produced evidence for each of the

four elements for any of the statements. Royall does not follow the order of statements in

Appellants’ Brief. Appellants will follow Royall’s order for the ease of the Court, identifying

which section of Royall’s Brief responds to which section of the Appellants’ Brief.

A. Greed, lust, and “unholy alliance.”

Part III.C.4.a of Appellee’s Brief seems to respond to Parts IV.A and IV.C of

Appellants’ Brief. As Appellants explained, Royall produced no evidence that the title

“American Lust for Land” (Stmt. 2) or the back-page blurb’s reference to an “unholy

alliance between city politicians and avaricious developers” (Stmt. 3) were verifiable

Page 24



statements of fact, capable of defamatory meaning, or false. App. Br. at 28, 31-33. Royall

makes no response at all on verifiability or falsity. Resp. Br. at 36-37. He addresses only

defamatory meaning, claiming “[m]any courts have found that one can commit libel by

calling someone greedy.” Resp. Br. at 36. The cases he cites, however, do not actually hold

that “calling someone greedy” is defamatory.

What Royall’s cases show is that specific, verifiable, and false accusations of illegal,

dishonest, or highly embarrassing conduct can be defamatory. An accusation of “greed”

that accompanies such accusations may also be defamatory, but only because it appears in

conjunction with verifiable factual allegations. These cases do not help Royall, however,

because he identifies no such factual allegations made by Appellants. In fact, as explained in

the Appellants’ Brief, Royall has not challenged any of the book’s factual descriptions of his

conduct nor the detailed explanation of his contract with Freeport. App. Br. at 32.

Gateway Logistics Group, Inc. v. Dangerous Goods Mgmt. Australia Pty, Ltd , No. H-05-2742,

2008 U.S. Dist. LEXIS 34246, at *34 (S.D. Tex. April 25, 2008), cited by Royall on page 36,

explicitly says that an accusation of greed can be defamatory only when paired with serious

factual accusations. The Gateway defendant stated that the plaintiff had “acted with reckless

disregard for the welfare of its client, knowingly risked subjecting its client to significant legal

penalties,” “intentionally lied to its client,” “sought to defraud a client,” and “had a ‘cashback

arrangement’ with a third party that it concealed from its client.” Id. at *25, 32-33. The

court acknowledges that a comment about greed would have just been “general

disparagement” (and hence not actionable) had it not been linked to these more specific

allegations of illegality and dishonesty. Id. at *34; see also Manufactured Home Cmtys., Inc. v.

Page 25



County of San Diego, 544 F.3d 959, 964 & n.5 (9th Cir. 2008) (finding accusation that a party

“lied” to be verifiable fact but “unscrupulous” and “greedy” to be unverifiable opinion).

The other cases cited by Royall, Resp. Br. at 36, likewise require a false accusation of

verifiable fact in order to find defamation. See Tucker v. Fischbein , 237 F.3d 275, 280, 283 (3d

Cir. 2001) (article’s claim that couple had sued for $1 million for damage to their sex life was

verifiable and false; no discussion of calling someone greedy); DiBella v. Hopkins , 403 F.3d

102, 108-09, 117 (2d Cir. 2005) (statements accused the plaintiff of taking bribes to place the

defendant in boxing matches, of taking the money in secret, and of using his position at

HBO to secure those bribes, all of which were verifiable and false); Metcalf v. KFOR-TV , 828

F. Supp. 1515, 1530 (W.D. Okla. 1992) ( “greedy doctors” not defamatory because not

verifiable). As Royall did not even address verifiability in his opposition brief, he has not

met his no-evidence burden.

B. “Stealing” and putting Western Seafood out of business.

Part III.C.4.b of Royall’s Brief seems to respond to Parts IV.D and IV.F of

Appellants’ Brief. Regarding the rhetorical equation of eminent domain with theft,

Appellants showed that only one of the statements actually mentions theft, and it does so in

a way that is plainly rhetorical. Moreover, most of the statements were not of and

concerning Royall and, as such, were not capable of defamatory meaning. Appellants further

showed that Royall offered no evidence of falsity. App. Br. at 33-34. Royall responds to

none of this. He simply points out that an accusation of theft is defamatory. Resp. Br. at

37. It may well be, but there is no statement in the book that accuses Royall of theft, and he

has failed to introduce any evidence to the contrary.

Page 26



of verifiable illegal or unethical business conduct can be defamatory. Resp. Br. at 39-40

(citing LED Sign Co. v. Hwee , No. H-08-1463, 2008 U.S. Dist. LEXIS 97851, *26-27 (S.D.

Tex. 2008) (calling plaintiff “bad dealer with terrible reputation” implied existence of

objective facts relating to his performance as a dealer); Morrill v. Cisek, 226 S.W.3d 545, 550

(Tex. App.—Houston [1st Dist.] 2006, no pet.) (allegations that plaintiff forged documents,

committed fraud against employer, and misappropriated funds from his child’s bank

account); Shearson Lehman Hutton, Inc. v. Tucker , 806 S.W.2d 914, 921-22 (Tex. App.—Corpus

Christi 1991, writ dism’d w.o.j.) (verifiable statements included that the plaintiff was about to

lose his stockbroker’s license and was in trouble with the SEC); Knox v. Taylor , 992 S.W.2d

40, 51 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (verifiable fact was whether

defendant actually made the statements that plaintiff allegedly falsely attributed to him)).

Royall’s effort to show falsity repeats the exact points that Appellants discussed and

rebutted in their opening brief, again without any acknowledgement. Resp. Br. at 39; App.

Br. at 30-31. As explained in Appellants’ opening brief, the book goes into great detail

analyzing the actual agreement, including the issue of whether Royall’s company would have

to expend $1 million for the project. App. Br. at 30. Royall did not designate any of these

verifiable facts as defamatory, yet they provide the basis for Main’s opinion. Nor does

Royall address any of the caselaw holding that opinions are not defamatory when the basis

for them is explained. App. Br. at 18-19.

Regarding statements about Royall’s relationship to Sun Resorts, Appellants

explained in their Brief that the statements were not capable of defamatory meaning and that

Royall’s evidence showed the statements to be true. App. Br. at 37-38. Royall ignores these

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arguments and instead simply repeats that he joined Sun Resorts after the project began and

that Main should have included this additional fact. Resp. Br. at 38.

Regarding the issue of Freeport approaching Royall about the project, Appellants

explained in their opening brief that the book plainly states that the City approached Royall,

that Royall has misread the book, and that he has provided no evidence that the statements

in the book are false. App. Br. at 42. In response, Royall now claims that the book merely

has an “implication” that Royall initiated the project, through its supposedly sarcastic tone,

according to Royall. Resp. Br. at 40-41. In fact, the book explains in some detail how the

City—not Royall—initiated the project. C.R. at 1031, 1037, 1048-49, 1074, 1101. Moreover,

sarcastic tone is not a basis for a defamation action, as the Texas Supreme Court held in

Musser v. Smith Prot. Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987).

Appellants explained in their opening brief that the statements about competitive

bidding were not of and concerning Royall, were not capable of defamatory meaning as to

him, and were true, as shown by Royall’s own evidence. App. Br. at 42-43. Royall ignores

these arguments and makes no attempt to explain why his evidence—that one person from

the city called two potential developers on the telephone—does not prove there was no

competitive bidding. Instead, he provides a citation supposedly showing that lack of

competitive bidding is a crime in Texas. Resp. Br. at 41. However, that statutory section is

inapplicable to the Freeport project. See Tex. Loc. Gov’t Code § 380; Tex. Rev. Civ. Stat.

§ 5190.6; see also Tex. Att’y Gen. Op., No. JC-0109 (Sep. 9, 1999) (explaining that

competitive bidding requirements do not apply to economic development corporations).

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VI. “Aiding,” “abetting,” and “ratifying” are contingent claims withoutindependent elements.

Royall incorrectly asserts that Appellants were required to list the independent

elements of “aiding,” “abetting,” and “ratifying” libel. Those torts do not have independent

elements. Each is wholly contingent upon first proving the underlying tort on which it is

based. See, e.g., Marty’s Food & Wine, Inc. v. Starbucks Corp., No. 05-01-00008-CV, 2002 Tex.

App. LEXIS 7672, at *32 (Tex. App.—Dallas Oct. 28, 2002, no writ) (not designated for

publication) (allegation that there was no evidence that any employee “acted affirmatively in

committing trespass” was sufficient to also defeat aiding and abetting claims). A search of

Texas cases reveals no discussion of specific elements for aiding, abetting, or ratifying libel,

and Royall identifies no such elements himself. Appellants were only required to move—as

they did—that Royall had no evidence that they aided, abetted, or ratified the libel of any

third party. Cf. Black’s Law Dictionary (8th ed. 2004) (“aid and abet” means to “assist or

facilitate the commission of a crime”; ratification is the “acceptance of a previous act”).

PRAYER

Appellants renew their request for the relief specified in their principal brief.

Appellants request all other appropriate relief to which they are entitled.

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05-09-01503-cv (main v. royall) appellants' reply brief

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