main v. royall second amended brief

8/8/2019 Main v. Royall Second Amended 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.,DefendantsAppellants

v.

H. WALKER ROYALL,

PlaintiffAppellee,

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

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

APPELLANTS SECOND AMENDED BRIEF

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

Dana Berliner (DC Bar No. 447686)*

Institute for Justice901 N. Glebe Road, Suite 900Arlington, 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.


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IDENTITY OF PARTIES AND COUNSEL

APPELLANTS:

Carla T. Main

and Encounter for Culture and Education, Inc.c/o Counsel of RecordMatthew R. Miller (TX Bar No. 24046444)Wesley Hottot (TX Bar No. 24063851)Institute for Justice Texas Chapter816 Congress Avenue, Suite 960Austin, TX 78701

Dana Berliner (DC Bar No. 447686)*Institute for Justice901 N. Glebe Road, Suite 900Arlington, VA 22203

John J. Little (TX Bar No. 12424230)Megan Dredla (TX Bar No. 24050530)Little Pedersen Fankhauser LLP901 Main Street, Suite 4110Dallas, TX 75202

*Admitted pro hac vice

APPELLEE:

H. Walker Royallc/o Counsel of RecordRobert B. Gilbreath (TX Bar No. 07904620)Hawkins, Parnell & Thackston, LLP4514 Cole Avenue, Suite 500Dallas, TX 75205

Patrick Zummo (TX Bar No. 22293450)3900 Essex Lane, Suite 800

Houston, TX 77027

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TABLE OF CONTENTS

Page

Identity of Parties and Counsel.............................................................................................................i

Index of Authorities ............................................................................................................................vii

Statement of the Case.........................................................................................................................xiv

Statement Regarding Oral Argument ...............................................................................................xv

Issues Presented ..................................................................................................................................xvi

Issues from Motion for Partial Summary Judgment

1. Is Appellee H. Walker Royall a limited-purpose public figure concerning his voluntary agreement with the city of Freeport, Texas, to develop a yachtmarina by, in part, having the city take land from his neighbor througheminent domain for use in the marina?

2. Are statements about the Freeport marina project, eminent domain,constitutional rights, and government action statements about matters ofpublic concern?

3. Are Appellants Carla T. Main and Encounter for Culture and Education, Inc.

media defendants?

Issues from No-Evidence Motion for Summary Judgment

4. Did Appellee present more than a scintilla of evidence that any of thesupposedly defamatory statements or the gist ofBulldozedmeets all fourof thefollowing criteria:

a. is a verifiable statement of fact;b. is false or not substantially true;c. is of and concerning Appellee; andd. is capable of conveying a defamatory meaning about Appellee?

5. Did the trial court err in overruling Appellants objections to evidence offeredin support of Appellees response to Appellants no-evidence motion forsummary judgment?

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Page

6. Did Appellee present more than a scintilla of evidence that Appellantsaided, abetted, financed, authorized, and/or ratified the defamatory speech ofbook reviewer Mark Lardas?

Statement of Facts..................................................................................................................................1

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

Argument.................................................................................................................................................5

I. Standard of Review. .....................................................................................................5

II. Royall Bears the Burden of Proving Falsity. ............................................................5

Issue No. 1 Restated: Were Appellants entitled to summary judgmentthat Royall was a limited-purpose public figure with respect to his voluntaryparticipation in the city of Freeports plan to acquire private propertythrough eminent domain so that Royall could use that property inhis marina development?..........................................................................................................6

A. Royall is a limited-purpose public figure......................................................6

Public Figure Factor 1: The Freeport marina project explodedinto a significant public controversy

before Bulldozedwas published. ..................7

a. The project was the subject of local andstatewide discussion. ..............................................................7

b. The impact of the controversy would be widelyfelt.. ...........................................................................................8

c. The proper inquiry is whether Royall was alimited-purpose public figure at the time Bulldozed

was published in 2007............................................................9

Public Figure Factor 2: Royall played much more than a trivialor tangential role in creating thecontroversy...................................................10

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Page

Public Figure Factor 3: The supposedly defamatory statementswere about the controversy which Royallvoluntarily helped create............................12

Issues No. 2 and 3 Restated: Were Appellants entitled to summary judgmentthat the statements Royall challengesabout the Freeport marina project,eminent domain, the constitution, and government actionstatements madeby media defendants about matters of public concern?...........................................12

B. Royall also bears the burden of proving falsity because theallegedly defamatory statements address matters of publicconcern and are published by media defendants......................................12

1. The allegedly defamatory statements were about mattersof public concern. .............................................................................13

2. Appellants are media defendants....................................................15

Issues No. 4 and 5 Restated: In response to Appellants no-evidence summaryjudgment motion, did Royall offer competent summary judgment evidenceas to each element that he must prove in order to establish his claim fordefamation? ..............................................................................................................................15

III. The Trial Court Erred in Denying Summary Judgment Because

There Is No Evidence Appellants Wrote a Single DefamatoryStatement About Royall.............................................................................................15

A. Royall must offer competent evidence as to each of fourindependent elements to survive Appellants motion. ............................18

1. Most of the statements cannot be defamatory because theyare not verifiable assertions of fact. ...............................................18

2. A statement can defame a person only if it is of and

concerning him; most of the statements at issue are notabout Royall at all. .............................................................................21

3. Most of the statements relied upon are not capable ofdefamatory meaning because they are not specific andoffensive statements about Royall..................................................23

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Page

4. Royall has failed to show that any statement is false. .................24

B. Five pieces of Royalls evidence were inadmissible hearsay. ..................25

C. Appellants are entitled to summary judgment as to those pagesthat Royall failed to mention and statements that Royallrefused to identify. .........................................................................................26

IV. None of the Specific Statements Identified by Royall Defame Him.................27

A. The American Lust for Land does not defame Royall. .......................28

B. Calling a development agreement a risky sweetheart deal is

not defamatory. ..............................................................................................28

C. Calling a public-private partnership an unholy alliance betweencity politicians and avaricious developers is not defamatory................31

D. Rhetorically equating eminent domain with theft is notdefamatory.......................................................................................................33

E. Talking about the abuse of eminent domain is not defamation. ...........35

F. Talking about the anticipated effect of the Freeport marina project

on river navigation and the anticipated effect on the Goresbusinesses does not defame Royall.............................................................37

G. Statements about Royalls positions and companies are notdefamatory.......................................................................................................41

H. Saying the city approached Royall about the project is notdefamatory.......................................................................................................42

I. Saying there was no competitive bidding for the project is not

defamatory.......................................................................................................42

J. He seemed to be calling on behalf of Walker Royall is notdefamatory.......................................................................................................43

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Page

V. Royall Has Produced No Evidence of a Defamatory Gist ofBulldozed. .......................................................................................................................44

A. Royall has not brought a proper gist claim............................................44

B. Royalls gist claim improperly objects to unverifiable opinion,not implied facts. ............................................................................................46

C. Royall presented no evidence that the gist ofBulldozedisfalse...................................................................................................................48

Issue No. 6 Restated: In response to Appellants no-evidence summaryjudgment motion, did Royall offer competent summary judgment evidence

that Appellants aided, abetted or ratified allegedly defamatory speech byMark Lardas? ............................................................................................................................48

VI. Royall Produced No Evidence That Appellants Aided, Abetted, or RatifiedDefamation in Mark Lardas Book Review ofBulldozed.......................................48

Prayer......................................................................................................................................................48

Certificate of Service

Appendix

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INDEX OF AUTHORITIES

Page(s)

Case Law

Amcor Inv. Corp. v. Cox Ariz. Publns,764 P.2d 327 (Ariz. App. 1998), rev. denied..........................................................................38

Associated Press v. Boyd,No. 05-04-01172-CV, 2005 Tex. App. LEXIS 3715(Tex. App.Dallas May 16, 2005, no pet.) (mem. op.)....................................................45

BE & K Constr. Co. v. NLRB,536 U.S. 516 (2002) .................................................................................................................12

Bentley v. Bunton,94 S.W.3d 561, 580 (Tex. 2002) .....................................................................................18, 36

Bose Corp. v. Consumers Union of U.S., Inc.,466 U.S. 485 (1984) .................................................................................................................16

Brock v. Tandy,No. 2-08-400-CV, 2009 Tex. App. LEXIS 5171 (Tex. App.Fort WorthJuly 2, 2009, pet. denied) (mem. op.) .............................................................................35-36

Brownlee v. Brownlee,665 S.W.2d 111 (Tex. 1984)...................................................................................................23

Brueggemeyer v. Am. Broad. Cos.,684 F. Supp. 452 (N.D. Tex. 1998) ..............................................................................7-8, 11

Carr v. Brasher,776 S.W.2d 567 (Tex. 1989)...................................................................................................18

Church of Scientology v. Cazares,

638 F.2d 1272 (5th Cir. 1981)................................................................................................32

City of San Diego v. Roe,543 U.S. 77 (2004) ...................................................................................................................13

Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc.,956 S.W.2d 562 (Tex. App.Houston [14th Dist.] 1997, pet. denied).........................26

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Page(s)

Cochran v. NYP Holdings, Inc.,58 F. Supp. 2d 1113 (C.D. Cal. 1998) ..................................................................................29

Commerce Commercial Leasing, LLC v. Broward Title Co.,No. 04-CV-04280, 2005 U.S. Dist. LEXIS 9990 (E.D. Pa. May 25, 2005)...................13

Compuware Corp. v. Moodys Investors Servs.,499 F.3d 520 (6th Cir. 2007)..................................................................................................38

Cox Tex. Newspapers, L.P. v. Penick,219 S.W.3d 425 (Tex. App.Austin 2007, pet. denied) ....................................................5

Diaz v. NBC Universal, Inc.,

No. 08-1190-cv, 337 Fed. Appx. 94 (2d Cir 2009) ............................................................21

Double Diamond, Inc. v. Van Tyne,109 S.W.3d 848 (Tex. App.Dallas 2003, no pet.) ..........................................................24

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) .....................10

Edmond v. Hartford Ins. Co.,27 Fed. Appx. 51 (2d Cir. 2001)............................................................................................30

Exxon Mobil Corp. v. Hines,252 S.W.3d 496 (Tex. App.Houston [14 Dist.] 2008) (pet. denied)...........................16

Fort Worth Star-Telegram v. Street,61 S.W.3d 704 (Tex. App.Fort Worth 2001, pet. denied)..............................................5

Foster v. Laredo Newspapers, Inc.,541 S.W.2d 809 (Tex. 1976)...................................................................................................13

Freedom Commcns, Inc. v. Coronado,296 S.W.3d 790 (Tex. App.Corpus Christi 2009, no pet.) ...........................................24

Freeport Econ. Dev. Corp. v. Western Seafood Co.,No. CI-032664 (Co. Ct. at Law No. 3, Brazoria County, Tex. Aug. 16, 2004).............14

Frinzi v. Hanson,140 N.W.2d 259 (Wis. 1996) .................................................................................................32

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Page(s)

Gertz v. Robert Welch, Inc.,418 U.S. 323 (1974) .................................................................................................................19

Greenbelt Coop. Publg Assn v. Bresler,398 U.S. 6 (1970) .....................................................................................................................33

Guilford Transp. Indus., Inc. v. Wilner,760 A.2d 580 (D.C. 2000) ...............................................................................................28, 33

Hadlock v. Tex. Christian Univ.,No. 2-07-290-CV, 2009 Tex. App. LEXIS 1330(Tex. App.Fort Worth Feb. 26, 2009, pet. denied) (mem. op.)...................................29

Harvest House Publishers v. Local Church,190 S.W.3d 204 (Tex. App.Houston [1st Dist.] 2006, pet. denied)..................... 15, 22

Hays County Water Planning Pship v. Hays County,41 S.W.3d 174 (Tex. App.Austin 2001, pet. denied).....................................................13

Henriquez v. Cemex Mgmt., Inc.,177 S.W.3d 241 (Tex. App.Houston [1st Dist.] 2005, pet. denied)............................24

Hirschkop v. Snead,594 F.2d 356 (4th Cir. 1979)..................................................................................................13

Holloway v. Tex. Elec. Util. Constr., Ltd.,282 S.W.3d 207 (Tex. App.Tyler 2009, no pet.) ............................................................27

Kelo v. City of New London,545 U.S. 469 (2005) ...................................................................................................................1

King Ranch, Inc. v. Chapman,118 S.W.3d 742 (Tex. 2003).............................................................................................15-16

Kirch v. Liberty Media Corp.,449 F.3d 388 (2d Cir. 2006) ...................................................................................................21

Klager v. Worthing,966 S.W.2d 77 (Tex. App.San Antonio 1996, writ denied)..........................................25

Lear Siegler, Inc. v. Perez,819 S.W.2d 470 (Tex. 1991).....................................................................................................5

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Page(s)

Levinskys, Inc. v. Wal-Mart Stores, Inc.,127 F.3d 122 (1st Cir. 1997) ..................................................................................................24

Liles v. Finstad,No. 01-94-00258-CV, 1995 Tex. App. LEXIS 1719(Tex. App.Houston [1st Dist.] Aug. 3, 1995, writ denied)...........................................47

Little v. Breland,93 F.3d 755 (11th Cir. 1996)........................................................................................9, 10-11

Mary Lee Found. v. Tex. Employment Commn,817 S.W.2d 725 (Tex. App.Texarkana 1991, writ denied) ...........................................26

Masson v. New Yorker Magazine,501 U.S. 496 (1991) .......................................................................................................... 24, 47

McCabe v. Rattiner,814 F.2d 839 (1st Cir. 1987) ..................................................................................................30

McCluen v. Roane County Times, Inc.,936 S.W.2d 936 (Tenn. Ct. App. 1996)................................................................................30

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

McIntyre v. Ramirez,109 S.W.3d 741 (Tex. 2003)...................................................................................................23

Merrell Dow Pharms. v. Havner,953 S.W.2d 706 (Tex. 1997)...................................................................................................16

Metcalf v. KFOR-TV, Inc.,828 F. Supp. 1515 (W.D. Okla. 1992)..................................................................................32

Milkovich v. Lorain Journal Co.,497 U.S. 1 (1990) .............................................................................................................. 18, 19

Moldea v. N.Y. Times Co.,22 F.2d 310 (D.C. Cir. 1994) .................................................................................................19

Morris v. Dallas Morning News,934 S.W.2d 410 (Tex. App.Waco 1996, writ denied)....................................................46

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Page(s)

Musser v. Smith Protective Servs., Inc.,723 S.W.2d 653 (Tex. 1987)...................................................................................................23

Myers v. Mobile Press-Register, Inc.,97 So. 2d 819 (Ala. 1957) .......................................................................................................32

NAACP v. Claiborne Hardware Co.,458 U.S. 886 (1982) .................................................................................................................19

Newspapers, Inc. v. Matthews,339 S.W.2d 890 (Tex. 1960).............................................................................................21-22

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964).............................................................................................13, 16, 35, 36

Ogg v. Dillards, Inc.,239 S.W.3d 409 (Tex. App.Dallas 2007, pet. denied) .....................................................5

Partington v. Bugliosi,56 F.3d 1147 (9th Cir. 1995).....................................................................................15, 18, 19

Peter Scalamandre & Sons, Inc. v. Kaufman,113 F.3d 556 (5th Cir. 1997)...........................................................................................29, 30

Peterson v. Grisham,594 F.3d 723 (10th Cir. 2010)................................................................................................35

Phila. Newspapers, Inc. v. Hepps,475 U.S. 767 (1986) ...........................................................................................................12-13

Plotkin v. Joekel,No. 01-06-00624-CV, 2009 Tex. App. LEXIS 7709(Tex. App.Houston [1st Dist.] Sept. 25, 2009, pet. denied).........................................27

Republic Tobacco v. N. Atl. Trading Co.,2007 U.S. Dist. LEXIS 38079 (N.D. Ill. 2007)...................................................................38

Riley v. Harr,292 F.3d 282 (1st Cir. 2002) .....................................................................................15, 18, 47

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

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Page(s)

Rosenblatt v. Baer,383 U.S. 75 (1966) ...................................................................................................................13

Ryland Group, Inc. v. Hood,924 S.W.2d 120 (Tex. 1996)...................................................................................................23

Sansing v. Garcia,No. 13-08-00211-CV, 2009 Tex. App. LEXIS 8172(Tex. App.Corpus Christi Oct. 22, 2009, no pet.) (mem. op.) ....................................29

Scott v. Godwin,147 S.W.3d 609 (Tex. App.Corpus Christi 2004, no pet.) ...........................................14

Shaw v. Palmer,197 S.W.3d 854 (Tex. App.Dallas 2006, pet. denied) ...................................................18

Silvester v. Am. Broad. Cos., Inc.,839 F.2d 1491 (11th Cir. 1988) .............................................................................................10

Snyder v. Phelps,580 F.3d 206 (4th Cir. 2009)..................................................................................................18

Swate v. Schiffers,975 S.W.2d 70 (Tex. App.San Antonio 1998, pet. denied)............................................8

Tex. Beef Group v. Winfrey,201 F.3d 680 (5th Cir. 2000)...........................................................................................19, 42

Trotter v. Jack Anderson Enters.,818 F.2d. 431 (5th Cir. 1987).................................................................................................11

Turner v. KTRK Television, Inc.,38 S.W.3d 103 (Tex. 2000).....................................................................................................45

United States v. Natl Treasury Employees Union,513 U.S. 454 (1995) .................................................................................................................14

UTV of San Antonio, Inc. v. Ardmore, Inc.,82 S.W.3d 609 (Tex. App.San Antonio 2002, no pet.).................................................31

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Page(s)

Vice v. Kasprzak,No. 01-08-00168-CV, 2009 Tex. App. LEXIS 7725(Tex. App.Houston [1st Dist.] Oct. 1, 2009, no pet. h.) .....................................8, 9, 11

W. Seafood Co. v. United States,202 Fed. Appx. 670 (5th Cir. 2006).............................................................................2, 8, 14

Waldbaum v. Fairchild Publns, Inc.,627 F.2d 1287 (D.C. Cir.), cert. denied, 449 U.S. 898 (1980) ..............................................11

WFAA-TV, Inc. v. McLemore,978 S.W.2d 568 (Tex. 1998)................................................................................. 6, 7, 8, 9, 12

Wheeler v. New Times, Inc.,49 S.W.3d 471 (Tex. App.Dallas 2001, no pet.) ............................................................45

Wilkow v. Forbes, Inc.,241 F.3d 552 (7th Cir. 2001).....................................................................................20, 30, 32

Constitutional Provisions

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

Statutes and Rules

Tex. Civ. Prac. & Rem. Code 51.014(a)(6)...................................................................................xiv

Tex. R. Civ. P. 166a(c) ...............................................................................................................xiv, 5, 6

Tex. R. Civ. P. 166a(i)..............................................................................................................xiv, 5, 15

Tex. R. Evid. 801(d).............................................................................................................................25

Tex. R. Evid. 804(a) .............................................................................................................................25

Tex. R. Evid. 804(b)(1)........................................................................................................................25


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STATEMENT OF THE CASE

This is a defamation case involving two media defendantsthe author of a book and

her publisher. Appellee H. Walker Royall sued Appellants Carla T. Main and Encounter for

Culture and Education, Inc., for libel, claiming unspecified damages, over a book and related

materials. C.R. at 11-30. This accelerated interlocutory appeal (C.R. at 2896-97) is taken

from the trial courts denial of two of Appellants motions for summary judgment (C.R. at

2868 and 2869; Appx. at Tabs 2 and 3). SeeTex. Civ. Prac. & Rem. Code 51.014(a)(6).

This appeal arises from two motions for summary judgment filed by Appellants in

the trial court. The first was a no-evidence motion for summary judgment under Tex. R.

Civ. P. 166a(i) that Royall has no evidence to support his claim that any statement in the

book is: (1) a verifiable statement of fact; (2) of and concerning Royall; (3) capable of

conveying a defamatory meaning about Plaintiff; (4) and false or not substantially true. C.R.

at 854-924. Appellants filed a motion for partial summary judgment, Tex. R. Civ. P. 166a(c),

that Royall is a limited-purpose public figure, that the supposedly defamatory statements are

about matters of public concern, and that Appellants are media defendants. C.R. at 935-87.

Royall opposed both motions in a combined responsive brief. C.R. at 2744-2817.

Appellants objected to certain evidence tendered by Royall in response to the no-evidence

motion on the grounds of hearsay. C.R. at 2858-66. The trial court denied both summary

judgment motions on November 30, 2009. C.R. at 2868 and 2869; Appx. at Tabs 2 and 3.

On December 7, 2009, the court also denied all of Appellants evidentiary objections. C.R.

2884-85; Appx. at Tab 4. Appellants then filed this accelerated interlocutory appeal on

December 18, 2009. C.R. at 2896-97.

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STATEMENT REGARDING ORAL ARGUMENT

Defendants-Appellants believe that oral argument will significantly aid in clarifying

the issues involved in this accelerated appeal. This case presents important issues regarding

the proper legal standards for determining whether a defamation plaintiff is a public figure;

whether a books author and publisher are media defendants; and whether supposedly

defamatory statements are verifiable facts about a plaintiff, as they must be in order to

constitute defamation.

The keystone of this appeal is the First Amendment protection for discussion of

issues of public policy. Defendant Carla Main wrote a book about the issue of eminent

domain for private development, using one situation in Freeport, Texas, to illustrate and

focus her points. The developer of that project brought this defamation suit, alleging that 91

different statements, in the book and elsewhere, defame him. Oral argument will assist this

Courts analysis and review of these issues. Appellants respectfully request oral argument.

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ISSUES PRESENTED

Issues from Motion for Partial Summary Judgment

1. Is Appellee H. Walker Royall a limited-purpose public figure concerning his voluntaryagreement with the city of Freeport, Texas, to develop a yacht marina by, in part, havingthe city take land from his neighbor through eminent domain for use in the marina?

2. Are statements about the Freeport marina project, eminent domain, constitutional rights,and government action statements about matters of public concern?

3. Are Appellants Carla T. Main and Encounter for Culture and Education, Inc. mediadefendants?

Issues from No-Evidence Motion for Summary Judgment

4. Did Appellee present more than a scintilla of evidence that any of the supposedlydefamatory statements or the gist ofBulldozedmeets all fourof the following criteria:

a. is a verifiable statement of fact;

b. is false or not substantially true;

c. is of and concerning Appellee; and

d. is capable of conveying a defamatory meaning about Appellee?

5. Did the trial court err in overruling Appellants objections to evidence offered in supportof Appellees response to Appellants no-evidence motion for summary judgment?

6. Did Appellee present more than a scintilla of evidence that Appellants aided, abetted,financed, authorized, and/or ratified the defamatory speech of book reviewer MarkLardas?


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STATEMENT OF FACTS

Defendant-Appellant Carla T. Main is the author ofBulldozed: Kelo, Eminent Domain,

and the American Lust for Land, which she wrote in the aftermath of the U.S. Supreme Courts

decision in Kelo v. City of New London. C.R. at 2574-75. Main served as an editor at the

National Law Journaland has written for various publications, including the Wall Street Journal,

American Lawyer,National Review,New York Law Journal, and Policy Review. C.R. at 2574.

Bulldozedwas published by Defendant-Appellant Encounter for Culture and Education, Inc.

(Encounter), a national book publisher. C.R. at 2579-80.

Bulldozedis a work of political non-fiction that examines the U.S. Supreme Courts

decision in Kelo v. City of New London, 545 U.S. 469 (2005), and its repercussions. C.R. at 994-

1314. The constitutional question in Kelo was whether a government could use its power of

eminent domain to take land from one private party and give it to another for the purpose of

economic development. The Court held that the Fifth Amendment allows such takings.

Kelo, 545U.S. at 489-90. The case was controversial, even at the Supreme Court. The 5-4

decision included stinging dissents from both Justice OConnor and Justice Thomas. See,

e.g., id. at 505 (Any property may now be taken for the benefit of another private party .

The Founders cannot have intended this perverse result.) (OConnor, J., dissenting) and

518 (Something has gone seriously awry with this Courts interpretation of the

Constitution.) (Thomas, J., dissenting).

Bulldozedreflects Mains agreement with the dissenters that Kelo was wrongly decided.

See, e.g.,C.R. at 1010-11. In order to explore the impact ofKelo on cities and individual

property owners, Main investigated and wrote about events in Freeport, Texas, that she

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believed paralleled what happened in Kelo. See, e.g.,C.R. at 1005. As explained by Main in

the introduction to the book, [t]he question this book sets out to answer is what price

American society pays for economic development takings. (C.R. at 1010.)

Plaintiff-Appellee H. Walker Royall is a real estate developer. C.R. at 1423. In 2003

Royall signed a development agreement with the city of Freeport to develop a yacht marina

on the Old Brazos River. C.R. at 1386-1472. As part of the agreement, the city agreed to

use its power of eminent domain to take land from Western Seafood, a shrimping business

owned by the Gore family, and transfer it to Royalls company for use in the marina project.

C.R. at 1406. Specifically, the agreement said that Royalls company would acquire the

Gore Land, whether via the citys assistance in negotiating a direct purchase of such lands

by the Project Developer or via the Citys exercise of its power of eminent domain and conveyance of such

lands to the Project Developer. C.R. at 1406 (emphasis added).1 The city of Freeport began

condemnation proceedings against the Gores in August 2004. C.R. at 2667-72.

The dispute about the citys use of eminent domain to condemn the Gores land

sparked years of litigation and political action, including both federal and state court cases.

See, e.g., W. Seafood Co. v. United States, 202 Fed. Appx. 670 (5th Cir. 2006); C.R. at 2667-72.

Royall also sued the Gores for defamation. See, e.g., C.R. at 2674-75. In writing about Kelo

and Freeport, Main covered this whole story, as well as describing legal developments in the

rest of the country and the history of eminent domain. C.R. at 995-1314. Mains book

discusses and criticizes Royalls involvement in the project, although she saves most of her

1 The agreement was assigned in 2003 to another company Royall managed, and amended in 2004 and 2005without any change to the language regarding eminent domain. C.R. at 1474-76, 1478-84. In 2007, threeyears into the condemnation proceedings filed by the city against the Gores, the agreement was replaced witha new agreement that did not mention eminent domain. C.R. at 1486-1544.

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criticism for the city of Freeport. See, e.g., C.R. at 1002-06 and 1237-65.

Royall sued Main and Encounter for defamation over what Main wrote in Bulldozed.

C.R. at 11-43. He also sued them over a blurb by law professor Richard Epstein on the back

of the book; their respective websites; Encounters advertising for the book; a book review

by a freelance reviewer; an opinion editorial in which Main and Encounters President, Roger

Kimball, discuss the lawsuit; and a press release about the lawsuit. C.R. at 11-43. Main and

Encounter made two motions that are the subjects of this appeal. The first was a motion for

partial summary judgment on whether Royall is a public figure, the Freeport marina project

is an issue of public concern, and Appellants are media defendants. C.R. at 935-87. The

second was a no-evidence motion regarding Royalls lack of evidence that any statement (or

gist) of which he complains meets the legal standard for defamation. C.R. at 854-924. The

trial court denied both motions, prompting this accelerated appeal. C.R. at 2868 and 2869;

Appx. at Tabs 2 and 3.

SUMMARY OF THE ARGUMENT

In bringing this lawsuit, Royall seeks to control and punish public discourse about a

public-private development project in which he chose to become involved. Main wrote a

book about constitutional rights, eminent domain, and a controversial project in Freeport,

Texas, that involved taking land from one private party and transferring it to Royalls

company, along with a large public loan, in order to build a private yacht marina. Royall

does not dispute these facts, or, indeed, any factual descriptions of things he said or did.

Instead, he claims to have been defamed by the way Main characterizes the project and

Royalls involvement, the conclusions she draws from disclosed facts, predictions about the

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future effects of the project, and her political views. The First Amendment fully protects

such speech, and Royalls attempt to ban it by way of this libel suit must be rejected.

Main and Encounter brought both a partial motion for traditional summary judgment

and a no-evidence motion for summary judgment. Appellants appeal the trial courts denial

of both of these orders. The first part of this Brief (Part II) addresses the denial of the

partial motion for summary judgment, demonstrating that Royall had the burden of proving

falsity for two independent reasons. First, he is a limited-purpose public figure for purposes

of discussion of the marina projectmore than 60 published pieces discussed his

involvement in the marina project prior to the publication ofBulldozed. Second, Royall has

challenged statements made by media defendants on issues of public concern, and plaintiffs

in such cases bear the burden of proving falsity.

Parts III and IV of this Brief show that Royall has not produced competent evidence

that the statements of which he complains meet the legal standard for defamation. Royall

has identified 91 supposedly defamatory statements, and he bears the burden of

demonstrating that each one meets all four elements of defamation(1) a statement of fact;

(2) of and concerning Royall; (3) capable of defamatory meaning; and (4) false. He has not

met this burden for any statement. In Part V, Appellants show that Royall has produced no

evidence that he has been defamed by the gist of the book. Finally, in Part VI, Appellants

briefly explain that Royall has produced no evidence that Appellants aided, abetted, or

ratified the defamation by an independent reviewer of the book. The trial court erred in

denying the motions for summary judgment, and Appellants ask this Court to reverse and

render judgment for Appellants.

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ARGUMENT

The trial court denied both Appellants motion for partial summary judgment and

Appellants no-evidence motion for summary judgment. Appellants Main and Encounter

discuss the issues presented in each denial separately below.

I. Standard of Review.

This Court reviews the district courts orders denying Appellants Motion for Partial

Summary Judgment and No-Evidence Motion for Summary Judgment de novo. See Fort Worth

Star-Telegram v. Street, 61 S.W.3d 704, 708 (Tex. App.Fort Worth 2001, pet. denied); Cox

Tex. Newspapers, L.P. v. Penick, 219 S.W.3d 425, 433 (Tex. App.Austin 2007, pet. denied).

A traditional motion for summary judgment must be granted when the movant shows there

is no genuine issue of a material fact and judgment should be granted as a matter of law.

Tex. R. Civ. P. 166a(c); see Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). For a

no-evidence motion for summary judgment, the reviewing court must grant the motion

unless the non-movant produces competent summary judgment evidence raising a material

fact issue. Tex. R. Civ. P. 166a(i); see Ogg v. Dillards, Inc., 239 S.W.3d 409, 416 (Tex. App.

Dallas 2007, pet. denied).

II. Royall Bears the Burden of Proving Falsity.

Although truth is sometimes an affirmative defense that defamation defendants must

prove, in this case, Royall bears the burden of proving falsity. That is so for two

independent reasons: (1) Royall is a limited-purpose public figure, and (2) the allegedly

defamatory statements involve matters of public concern, published by media defendants.

Appellants moved for partial summary judgment that there was no genuine issue as to any

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material fact on each of these questions. Tex. R. Civ. P. 166a(c). Despite well-established

law and an overwhelming and uncontested factual record, the trial court mistakenly denied

summary judgment on each of these grounds. That decision should be reversed.

Issue No. 1 Restated: Were Appellants entitled to summary judgment that Royallwas a limited-purpose public figure with respect to his voluntary participation in thecity of Freeports plan to acquire private property through eminent domain so thatRoyall could use that property in his marina development?

A. Royall is a limited-purpose public figure.

There are cases where the issue of public-figure status may be a close call. This case

is not one of them. Whether a defamation plaintiff is a limited-purpose public figure is a

pure question of law. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).

Three factors guide the analysis: 1) whether there was a public controversy; 2) whether the

plaintiff played more than a trivial or tangential role in that controversy; and 3) whether

the alleged defamation related to his role in the controversy. Id. All three are satisfied here.

In the trial court, Royall disputed neither these factors nor the evidence that supports

them. Instead, the parties disagree about one key legal point. Appellants argue that Royalls

public figure status must be assessed at the time the supposedly defamatory statements

were madea position supported overwhelmingly by both Texas and federal case law.

Royall argues that the Court should look only at whether he was a public figure when he

first said he was interested in doing the marina project. Thus, Royall points the Court to

2002, when the project was in its earliest planning stages, while Appellants point to the time

Bulldozedwas published in 2007. Royalls view is wrong as a matter of law, and this Court

should reverse the trial court and hold that he is a limited-purpose public figure.

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Public Figure Factor 1: The Freeport marina project exploded into a significantpublic controversy before Bulldozedwas published.

A controversy is public if people are discussing it and people other than the

immediate participants in the controversy are likely to feel the impact of its resolution[.]

WFAA, 978 S.W.2d at 571. That requirement is easily satisfied here.

a. The project was the subject of local and statewide discussion.

The marina project was the subject of extensive local and state-wide debate and

discussion. All told, the controversy was covered by at least 100 articles, editorials, letters to

the editor, and even law review articles prior to the publication of Mains book.2

Indeed,

articles about the marina project appeared on the front page of the local daily newspaper 26

times, once along with a photograph of Royall himself.3 At least 30 published pieces

mentioned Royall by name,4 while another 31 referred to him as the developer of the

Freeport marina project (or something similar)5 or identified his company or his family.6

This level of media exposure renders the controversy a very public one indeed. By

way of comparison, courts have held that a mere 30 news articles related to a plaintiff, his

companies, and his industry generally sufficed to show that he was part of a public

controversy. See Brueggemeyer v. Am. Broad. Cos., 684 F. Supp. 452, 456-457 (N.D. Tex.

2 See61 news articles cited infraat fns 3-5; C.R. at 2117-19, 1839-42, 1844-46, 1848-49, 1851-55, 2121-22,2124-30, 2132-33, 2135, 1857-61, 2137-40, 2142-43, 2145-46, 1863-65, 2148-49, 2135, 2153-54, 1867-70,1871-73, 2156-58, 1879-82, 2160-61, 2163-65, 2167-68, 2170-71, 2176-77, 2179-80, 2182-92, 2194-95, 2617.3SeeC.R. at 1888-90, 1895-96, 1898-1901, 1906-07, 1909-11, 1913-14 (photograph of Royall on front page),1925-26, 1928-30, 1935-36, 1945-47, 1958-60, 1962-64, 1969-71, 1980-82, 1984-85, 1990-91, 2001-03, 2005-07, 2009-10, 2012-14, 2035-37, 2041-43, 2045-46, 2057-58, 2074-75, 2077-78.4SeeC.R. at 2449, 1836-37, 1884-86, 1888-90, 1892-93, 1895-96, 1898-1901, 1903-04, 1906-07, 1909-11,1913-14, 1916-18, 1920, 1922-23, 1925-26, 1928-30, 1932-33, 1935-36, 1938, 1940-43, 1945-47, 1949-50,1952-55, 1958-60, 1962-64, 2096-98, 1966-67, 1969-71, 1980-82, 2614-15.5SeeC.R. at 1984-85, 1987-88, 1990-91, 1993-94, 1996, 1998-99, 2001-3, 2005-7, 2009-10, 2012-14, 2016,2018, 2020-21, 2023-24, 2026, 2028-30, 2032-33, 2035-37, 2039, 2041-43, 2045-46, 2048-55.6SeeC.R. at 2057-58, 2451-55, 2060-65, 2067-68, 2070, 2072, 2074-75, 2077-78, 2080-81.

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of a loan to Royalls company. C.R. at 1394-96. Thus, the controversy itself affected all the

citizens of Freeport, who would (depending on ones viewpoint) either be throwing millions

of dollars down the drain while violating the rights of its citizens or benefiting from a new

marina and increased tourism. See Vice, 2009 Tex. App. LEXIS 7725 at *30-32 (developers

actions were public controversy because they affected residents of subdivision); Little v.

Breland, 93 F.3d 755, 757-58 (11th Cir. 1996) (construction and operation of publicly funded

convention center was a public controversy).

c. The proper inquiry is whether Royall was a limited-purpose

public figure at the timeBulldozed

was published in 2007.In the trial court, Royall argued that a court must determine if there was ongoing

public debate beforethe plaintiff first became involved in the issue. C.R. at 2754-58. But that

is not the correct standard. Rather, whether a public controversy exists is determined as of

the time the allegedly defamatory statements are published.

The Texas Supreme Courts decision in WFAA proves the point. The case dealt

with a reporter who covered the raid on the Branch Davidian compound alongside the ATF

agents who died in the raid. WFAA, 978 S.W.2d at 569. The plaintiff reporter thought that

news reports implied that his actions contributed to the failure of the operation. Id. at 569-

70. The court identified the public controversy at issue [a]s the broader question of why

the ATF agents failed to accomplish their mission. Id. at 572. Thus, the court defined the

controversy as one that did not even exist at the time the plaintiff first became involved. Id.

Texas courts, like the courts in other jurisdictions, look to whether there is a public

controversy at the time of the publication of the allegedly defamatory statements. See, e.g.,

Little v. Breland, 93 F.3d at 758 (looking at 12 news reports prior to the allegedly defamatory

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statement); Silvester v. Am. Broad. Cos., Inc., 839 F.2d 1491, 1495 (11th Cir. 1988) (It is clear

that the public controversy preexisted the 20/20 broadcast and that the issues addressed in

the broadcast were being discussed in a public forum prior to the 20/20 show.); Rosanova

v. Playboy Enters., 580 F.2d 859, 861 (5th Cir. 1978) (holding that Mr. Rosanova must be

seen as he was when the article was published by this appellee.)

Public Figure Factor 2: Royall played much more than a trivial or tangential rolein creating the controversy.

Royall did not just play a significant role in an ongoing controversy; he had a

significant role in creatingthe controversy. It is undisputed that he entered into the

development agreement that included the citys agreement to use eminent domain to procure

land for his company. C.R. at 1386-1472. A person like Royall who participates in the

events creatingthe controversy increases his risk of public exposure. See Dudrick v. Dolcefino,

No. 14-96-01181-CV, 1998 Tex. App. LEXIS 7682, at *25 n.11 (Tex. App.Houston [14th

Dist.] Dec. 10, 1998, pet. denied) (not designated for publication) (Appx. at Tab 11).

In the trial court, Royall argued that one can only become a limited-purpose public

figure by injecting oneself into apre-existingpublic controversy. C.R. at 2754-58. That

argument defies common sense. It would mean that someone who involves himself in a

deal (or business, or any other issue, for that matter) from its inception can neverbe a public

figure no matter how controversial that deal turns out to be. Under Royalls theory, then, as

long as a public-private deal is negotiated in secret, so that there is no controversy before the

private party becomes involved, what happens next cannot affect the public-figure analysis.

The case law does not support Royalls position. People who have significant roles in

business ventures that generate public controversy are, by virtue of their voluntary

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assumption of that role, subjecting themselves to greater public scrutiny. See, e.g., Vice, 2009

Tex. App. LEXIS 7725, at *30-32 (plaintiffs role as property owners association board

president and attorney for developer subjected him to scrutiny); Little, 93 F.3d at 758

(plaintiffs choice to assume leadership position in convention and visitors corporation,

an organization involving public scrutiny, shows a voluntary decision to place himself in a

situation where there was a likelihood of public controversy); Trotter v. Jack Anderson Enters.,

818 F.2d 431, 435-36 (5th Cir. 1987) (plaintiff was president of company and set company

policy); Waldbaum v. Fairchild Publns, Inc., 627 F.2d 1287, 1299-1300 (D.C. Cir.), cert. denied,

449 U.S. 898 (1980) (same); Brueggemeyer, 684 F. Supp. at 458 (plaintiff owned and set policy

at company where sales practices began to draw fire).

Here, by signing an agreement with the city that obligated it to loan his company an

amount greater than 40 percent of the annual city budget (C.R. at 1645)not to mention

one that expressly contemplated the use of eminent domainRoyall committed himself to a

project that would inevitably garner significant public attention and scrutiny.7 He

recommitted himself by signing two amendments to the development agreement that

continued to include the use of eminent domain, one in 2004 and one in 2005. SeeC.R. at

1478-80, 1482-84. As the person in charge of the developer side of a major public-private

project, seeC.R. at 1382, and the signatory of every major agreement related to the project, see

C.R. at 1380-84, 1386-1472, 1474-1544, Royall played more than a trivial or tangential role

7 Eminent domain for private development was a subject of national public controversy at the time Royallsigned the agreement. C.R. at 2457-58, 2460-61, 2463-64, 2466-67, 2469-71, 2473-74, 2476-78, 2480-84,2486-87, 2489-93, 2495-99, 2501-02, 2504-06, 2508-10, 2512-13, 2515-20, 2522-23, 2525-28, 2530-32.Indeed, there was a highly controversial eminent domain project in Hurst, Texas, just outside of Dallas, in thelate 1990s, C.R. at 2534-35, 2537-39, 2541-42, 2544-45, 2547-50, 2552-53, 2555-58., as well as other eminentdomain projects in Texas, seeC.R. at 2560-61, 2563-64, 2566-67, that generated media coverage.

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Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986). Both requirementsa matter of

public concern and media defendantsare satisfied here.

1. The allegedly defamatory statements were about matters of

public concern.

Mains book is a work of political criticism. She describes, analyzes, and criticizes the

use of eminent domain for private development in general, and she criticizes the Freeport

marina project in particular. Such criticism of government is at the very center of the

constitutionally protected area of free discussion. Foster v. Laredo Newspapers, Inc., 541

S.W.2d 809, 819 (Tex. 1976) (quotingRosenblatt v. Baer, 383 U.S. 75, 85 (1966)).

On every level of analysis, criticism of the Freeport marina project involves issues of

public concern. The book criticizes government action, which is a textbook issue of public

concern. See, e.g., City of San Diego v. Roe, 543 U.S. 77, 80 (2004) (government policies); Hays

County Water Planning Pship v. Hays County, 41 S.W.3d 174, 181-82 (Tex. App.Austin 2001,

pet. denied) (transportation development project). Similarly, constitutional rights (and the

prospect of governmental infringement upon them) are matters of the highest public

interest and concern. See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 266 (1964). The

government action criticized here, eminent domain, has itself been recognized as an issue of

public concern. See, e.g., Hirschkop v. Snead, 594 F.2d 356, 373 (4th Cir. 1979) ([T]he need of

the government to exercise its power of eminent domain is a question of public concern);

Commerce Commercial Leasing, LLC v. Broward Title Co., No. 04-CV-04280, 2005 U.S. Dist.

LEXIS 9990, at *7 (E.D. Pa. May 25, 2005) (eminent domain procedures are [e]xamples of

matters of substantial public import or substantial public concern) (Appx. at Tab 10).

What occurred in Freeport was likewise a matter of public concern. It involved

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2. Appellants are media defendants.

Main, the author of a non-fiction book, and her publisher are media defendants for

purposes of defamation analysis. See McIlvain v. Jacobs, 794 S.W.2d 14, 15(Tex. 1990). Book

authors and publishers are routinely treated as media defendants. See, e.g., Riley v. Harr, 292

F.3d 282, 288289 (1st Cir. 2002) (book about alleged toxic tort); Partington v. Bugliosi, 56

F.3d 1147, 1158 n.16 (9th Cir. 1995) (book about murder trial); Harvest House Publishers v.

Local Church, 190 S.W.3d 204, 209 (Tex. App.Houston [1st Dist.] 2006, pet. denied) (book

treated as print media under Texas statute). Thus, the trial court erred in denying

Appellants motion for summary judgment that they be declared media defendants.

Issues No. 4 and 5 Restated: In response to Appellants no-evidence summaryjudgment motion, did Royall offer competent summary judgment evidence as toeach element that he must prove in order to establish his claim for defamation?

III. The Trial Court Erred in Denying Summary Judgment Because There is NoEvidence Appellants Wrote a Single Defamatory Statement About Royall.

Main and her publisher demonstrated to the trial court that they were entitled to

summary judgment on Royalls libel claims because there is no evidence that any of the 91

allegedly defamatory statements he identified was (1) a statement of verifiable fact; (2) of and

concerning Royall; (3) capable of defamatory meaning; and (4) false. Because all four

elements must be satisfied with respect to each allegedly defamatory statement, a failure of

proof on any one of them is fatal to Royalls libel claim with respect to that statement.8

Royall was required to come forward with more than a scintilla of evidence

regarding each ground upon which Appellants moved. Tex. R. Civ. P. 166a(i); see alsoKing

8 The first three elements are necessary for any defamation claim. The fourth one, falsity, is Royalls burden ifhe is a public figure or if the topic is one of public concern and Appellants are media defendants. As shownin Part II above, those requirements are satisfied here, so Royall bears the burden on falsity as well.

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Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Evidence constitutes more

than a scintilla if it rises to a level that would enable reasonable and fair-minded people to

differ in their conclusions. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

The evidence introduced by Royall fails to carry this burden with regard to a single one of

the supposedly defamatory statements.9

Royalls decision to object to so many individual statements, and the trial courts

failure to grant summary judgment with respect to any of them, unfortunately means that

Appellants must discuss all of them in this brief. To assist the Court, Appellants have

compiled all 91 of the statements relied upon by Royall in a single table and assigned to each

statement an identifying number. Appx. at Tab 1.10

Appellants recognize that reviewing Royalls summary judgment evidence (or the lack

thereof) with respect to almost 100 separate statements is a formidable task. Nevertheless,

Appellants know that this Court will recognize its obligation to make an independent

examination of the whole record in order to make sure that the judgment does not

constitute a forbidden intrusion on the field of free expression. Bose Corp. v. Consumers

Union of U.S., Inc., 466 U.S. 485, 499 (1984) (quotingN.Y. Times Co. v. Sullivan, 376 U.S. at

284-86). When the Court makes that examination here, it will find that none of the

9 Appellants moved that the book, other documents, and gist do not satisfy the elements of defamation,

C.R. at 923, which includes both libelper seand libelper quod. See, e.g., Exxon Mobil Corp. v. Hines, 252 S.W.3d496, 501 (Tex. App.Houston [14 Dist.] 2008) (pet. denied). Appellants also moved that Royall did nothave extrinsic evidence supporting any libelper quodclaim. C.R. at 923. As the distinctions between the twotypes of libel are not relevant to this appeal, Appellants discuss all libel issues together.10 Those statements were identified by Royall in the trial court in his brief responding to Appellants no-evidence motion for summary judgment. C.R. at 2744-2817. Appellants have taken each statement from theresponsive brief and put them in the order of the pages in the book. To assist the Court in referring tospecific statements addressed in this brief, each of the statements is individually numbered and will bereferred to herein by its statement number, e.g. Stmt. 5.

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A. Royall must offer competent evidence as to each of four independentelements to survive Appellants motion.

1. Most of the statements cannot be defamatory because they arenot verifiable assertions of fact.

The U.S. Supreme Court holds that a statement cannot be defamatory if it is not a

statement of fact that can be verified. Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990).

If a statement is not objectively verifiable, then it is opinion that is wholly protected under

the First Amendment and cannot be the subject of a defamation claim. Id. at 19-21. This

Court has held that it is [a]n essential element of defamation . . . that the alleged defamatory

statement be a statement of fact rather than opinion. Shawv.Palmer, 197 S.W.3d 854, 857

(Tex. App.Dallas 2006, pet. denied) (internal citation omitted). Whether a statement is

verifiable fact or unverifiable opinion is a question of law, Carr v. Brasher, 776 S.W.2d 567,

570 (Tex. 1989), that must be decided by a court, not a jury. See, e.g., Snyder v. Phelps, 580

F.3d 206, 221 & n.16 (4th Cir. 2009) (error to send the jury questions of whether statements

were statements of fact or directed at plaintiffs).

Milkovichalso establishes that opinions are completely protected if the factual

referents are disclosed by the speaker. AfterMilkovich, the only opinions that are not

protected are statements that look like opinion but imply the existence ofundisclosedfacts.

See Milkovich, 497 U.S. at 31; Bentley v. Bunton, 94 S.W.3d 561, 580-81 (Tex. 2002). When a

person discloses the factual basis for her opinion, the opinion cannot be defamatory,

because the reader can decide for himself whether he agrees. See Riley, 292 F.3d at 291-292

(because the defendants statement followed a summary of the evidence upon which it

[was] based it was constitutionally protected opinion); Partington, 56 F.3d at 1156 (The

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courts of appeals that have considered defamation claims afterMilkovichhave consistently

held that when a speaker outlines the factual basis for his conclusion, his statement is

protected by the First Amendment.);Moldea v. N.Y. Times Co., 22 F.3d 310, 317 (D.C. Cir.

1994) (the reader understands that such supported opinions represent the writers

interpretation of the facts presented).

The U.S. Supreme Court has long acknowledged that an authors expression of

opinion on matters of public concern is not actionable as defamation. See, e.g., Gertz v. Robert

Welch, Inc., 418 U.S. 323, 339-40 (1974) (Under the First Amendment there is no such thing

as a false idea.); cf.Milkovich, 497 U.S. at 20 (a statement of opinion relating to matters of

public concern which does not contain a provably false factual connotation will receive full

constitutional protection). A bedrock principle of Americas commitment to free speech is

that expression on public issues has always rested on the highest rung of the hierarchy of

First Amendment values. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913

(1982) (internal quotations omitted). In addition, authors are not required to tell stories in a

light most favorable to the plaintiff, Tex. Beef Group v. Winfrey, 201 F.3d 680, 689 (5th Cir.

2000), and may employ rhetorical flourishes in order to capture and maintain the interest of

their audience, Partington, 56 F.3d at 1155.

Wilkow v. Forbes, from the Seventh Circuit, illustrates how courts distinguish between

verifiable fact and unverifiable opinion. Wilkowcentered around an opinion piece harshly

criticizing a new bankruptcy rule that was also the subject of ongoing litigation. The author

used Wilkow as an example of what she believed to be the extremely negative results of the

bankruptcy rule and expressed her strong view that the rule should be struck down by the

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Supreme Court. The author explained how the new rule allowed Wilkow to stiff[],

shaft, and rob his creditors. Wilkow v. Forbes, Inc., 241 F.3d 552, 556-57 (7th Cir. 2001).

The Seventh Circuit found the editorial patently nondefamatory. The specific facts of what

Wilkow had done (receiving exemptions, reorganizing, declaring bankruptcy) were not in

dispute. Instead, Wilkow objected to the tone and conclusions of the editorial, which the

court said drips with disapproval, and to the implication that he had done something

terrible by taking advantage of the new legal rule. Wilkow, 241 F.3d at 556. But the court

held that the authors highly negative and insulting views of Wilkows actions were

unverifiable opinion. Id.

Main does not treat Royall nearly as harshly, but her points are basically the same.

Like the author in Wilkow, Main believes current law allows something it should not allow

(eminent domain for private development). Although she acknowledges that the actions of

Freeport and Royall were perfectly legal, she also expresses her opinion that people and

governments should not engage in them and that the courts should declare such practices

unconstitutional. Most of the supposedly defamatory statements cited by Royall are not only

unverifiable opinion, but also the type of political commentary that lies at the heart of the

First Amendment. SeeStmts. 1-3, 6-16, 18, 20, 24-30, 32-43, 47-52, 54-69, 71, 74-81, 82, 84-

86, 90. Other statements use phrasing or rhetorical flourishes to which Royall objects. See

Stmts. 23, 44, 53, 73, 91. Appellants no-evidence motion for summary judgment should

have been granted as to these statements because Royall could not have produced (and did

not produce) any competent evidence that these statements of Mains opinion were

statements of verifiable fact.

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The court rejected this reasoning, finding that the defamatory statement must point to the

plaintiffand to no one else. Id. (emphasis added).

Here, most of the statements identified by Royall do not point to him at all. Rather,

they refer to the city of Freeport, other individuals, or other entitiesnotto Royall. Of the

nearly 100 statements identified by Royall, 57 do not mention or refer to him in any way.12

They certainly do not point to Royall and to no one else. As such, they do not satisfy the

Newspapersof and concerning standard. See id.; see also Harvest House Publishers v. Local

Church, 190 S.W.3d 204, 212-13 (Tex. App.Houston [1st Dist.] 2006, pet. denied) (list of

characteristics of cults, including serious crimes like murder and rape, did not point to

plaintiff church as committing those crimes and thus was not of and concerning it).

In the trial court, Royall attempted to offer evidence on the of and concerning

requirementwhich must be satisfied as to each one of the 91 statements he has

identifiedby offering a generic and conclusory affidavit by a former city employee who

asserts that in [his] reading, anything in the book relating to Freeport is of and

concerning Royall. 2d Supp. C.R. at 183-87 (Pl.s Ex. 7).13 Specifically, the affidavit states:

The parts of the book that involve Freeport clearly refer to Walker

12SeeStmts. 2, 9-12, 14-15, 18, 20-21, 24-44, 46-49, 52, 54-69, 74, 77-78, 81-85.13 In their initial record designation to the District Court clerks office, Appellants properly requested theevidence Royall submitted in support of his no-evidence motion. However, when the clerk transmitted therecord, it omitted this evidence. Upon agreed motion, this Court granted a request for extension of time to

allow the clerks office to supplement the record and ordered the clerk to copy Plaintiffs evidence offered insupport of his combined response to the motions for summary judgment. Appellants also sent a letter tothe clerks office specifically listing each piece of evidence that should be included. On the morning ofMarch 17, 2010, one day before this brief was due, the clerk made the supplemental record available. Instead

of the requested evidence, the clerk copied a number of cases submitted by Royall at the trial court. Ratherthan further delay the briefing, Appellants submitted their brief with blanks showing the missing record cites.Since that time, the record has been supplemented with the omitted evidence. Appellants have corrected themissing record citations in this Amended Brief.

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Royall.The statements in the book about the idea of the marina project, theuse of eminent domain on the project allegedly for Mr. Royalls benefit, theclaimed effect that the project would have on Western Seafoods ownership ofits plant, its access to the river, the continued existence of the company andthe comparison of the Freeport marina project to other projects involving

eminent domain were all clearly, in my reading of the book, directed at WalkerRoyall and his involvement.

2d Supp. C.R. at 183-87 (Pl.s Ex. 7). According to Royall, Mr. Camerons affidavit is

sufficient to establish that BULLDOZED is of and concerning Plaintiff. C.R. at 2772.

Royall is incorrect.

Under Texas law, this single conclusory statement cannot carry Royalls burden. The

affiant provides no explanation as to why in his reading the statements are about Royall.

He identifies no quotations or pages from the book. He refers to no other facts that might

show that reasonable people would understand the statements to be about Royall. Such

conclusory and unsupported statements are inadequate summary judgment evidence.14 See

McIntyre v. Ramirez, 109 S.W.3d 741, 749-50 (Tex. 2003); Brownlee v. Brownlee, 665 S.W.2d 111,

112 (Tex. 1984).

3. Most of the statements relied upon are not capable of defamatorymeaning because they are not specific and offensive statementsabout Royall.

Whether a statement is capable of defamatory meaning is an issue of law. See Musser

v. Smith Protective Servs., Inc., 723 S.W.2d 653, 654-55 (Tex. 1987). Ordinary statements about

legal business dealings are not capable of defamatory meaning. See id. at 655. Non-specific

14 Moreover, the affiant was the director of an agency that was Royalls business partner in the marina project2d Supp. C.R. at 183-87 (Pl.s Ex. 7), and, as such, he is an interested witness. An interested witnessaffidavit which recites that the affiant estimates, or believes certain facts to be true will not supportsummary judgment. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). The affiants onlystatement is that his reading of the book is that it is about Royall. 2d Supp. C.R. at 183-87 (Pl.s Ex. 7).

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statements are not capable of defamatory meaning. See, e.g., Henriquez v. Cemex Mgmt., Inc.,

177 S.W.3d 241, 252 (Tex. App.Houston [1st Dist.] 2005, pet. denied); Levinskys, Inc. v.

Wal-Mart Stores, Inc., 127 F.3d 122, 129 (1st Cir. 1997). Here, most of the statements

identified by Royall are not capable of defamatory meaning. The statements that are not

about Royall are not capable of defamatory meaning as to him. SeeStmts. 2, 9-12, 14-15, 18,

20-21, 24-44, 46-49, 52, 54-69, 74, 77-78, 81-85.; see, e.g., Double Diamond, Inc. v. Van Tyne, 109

S.W.3d 848, 854 (Tex. App.Dallas 2003, no pet.). Second, several other statements that

are vague or identify Royalls family connections or business activities also are not capable of

defamatory meaning. SeeStmts. 1, 3, 5-6, 17, 22, 45, 53, 70-73, 89.

4. Royall has failed to show that any statement is false.

If this Court finds either that Royall is a limited-purpose public figure or that the

allegedly defamatory statements were made by media defendants on matters of public

concern, then Royall also has the burden of proving falsity. Royall has not met the burden

of introducing evidence that each statement he objects to was false or not substantially true,

either because he has not addressed the truth or falsity, or because his evidence shows the

statement to be true, or because his evidence is inadmissible or insufficient. Indeed, he has

not met this burden on any statement at all.

As long as a statement is substantially true, it is not defamatory. Minor inaccuracies

do not render a statement false for defamation purposes. See, e.g., Freedom Commcns, Inc. v.

Coronado, 296 S.W.3d 790, 800-801 (Tex. App.Corpus Christi 2009, no pet.) (courts should

overlook minor inaccuracies so long as the substance, the gist, the sting, of the libelous

charge is justified (quotingMasson v. New Yorker Magazine, 501 U.S. 496, 517 (1991)).

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B. Five pieces of Royalls evidence were inadmissible hearsay.

In the trial court, Royall relied on several pieces of evidence, 2d Supp. C.R. at 117-60;

181; 183-87; 189-92; 194-98; 200; 223-65; and 378-502 (Pl.s Exs. 3, 6-10, 13, and 26), that

were inadmissibleas noted in Appellants objections to that evidence, C.R. at 2858-80. See

Tex. R. Evid. 801(d). That evidence included (1) three deposition transcripts from the

defamation case Royall brought against the Gores and (2) two unsworn open letters to the

public. The trial court erred when it overruled Appellants objections to this evidence; this

Court can and should reverse the trial court and sustain Appellants objections.

First, a deposition transcript from another case is admissible only if the deponent is

unavailable. SeeTex. R. Evid. 804(a) & (b)(1). Royall made no attempt to show that the

third-party deponents heretwo members of the Gore family and Royalls expert witness in

his case against the Goreswere unavailable. That fact alone rendered the depositions

inadmissible.15 See Klager v. Worthing, 966 S.W.2d 77, 82 (Tex. App.San Antonio 1996, writ

denied) (upholding exclusion of deposition from related case because it could be admitted, if

at all, as a party admission and it was not an admission).

Second, the letters are hearsay that do not fall within any hearsay exception. One, 2d

15 Contrary to the trial courts determination, Appellants did not waive their objections to this evidence.C.R. at 2884. As to one of the deposition transcriptsthat of David Cole, 2d Supp. C.R. at 378-502 (Pl.sEx. 26), who purports to be an expert on navigation, and upon whose testimony Royall primarily relies for hisevidence about river navigation, C.R. at 2785, Royall never attempted to introduce it previously, so Appellants

could not possibly have waived their objections. As to the other depositions (of Gore family members), 2dSupp. C.R. at 117-60 and 223-65 (Pl.s Exs. 3 and 13) Royall previously cited those depositions only withregard to whether Royall was a public figure, C.R. at 740-45, which was not an issue in the previous summaryjudgment motion. SeeC.R. 46-115. Accordingly, there was no reason for Appellants to object to theevidence when it was used for that purpose. One does not waive an objection to the use of evidence for onepurpose by not objecting to its use for another purpose. For example, if Royall is correct about his theory ofwaiver, Appellants should be able to use the newspaper articles that they introduced to show public figurestatus (and to which Royall did not object) for the truth of the matters asserted therein in all futureproceedings in this case.

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Supp. C.R. at 200 (Pl.s Ex. 10), was an open letter from officials at the city of Freeport

introduced to show that Royall did not request the use of eminent domain. C.R. at 2752.

The other is a statement from a now-dismissed defendant in this case, 2d Supp. C.R. at 181

(Pl.s Ex. 6), expressing his views about the lawsuit and Royalls actions that was introduced

solely for the truth of the matters asserted. C.R. at 2810-11. Neither of these statements is

sworn, and both are wholly inadmissible as summary judgment (or any other kind of)

evidence. See, e.g.,Mary Lee Found. v. Tex. Employment Commn, 817 S.W.2d 725, 728 (Tex.

App.Texarkana 1991, writ denied) (letter from physician inadmissible because it did not fit

within any hearsay exceptions); Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc.,

956 S.W.2d 562, 567 (Tex. App.Houston [14th Dist.] 1997, pet. denied) (unsworn

statement not proper summary judgment evidence).

C. Appellants are entitled to summary judgment as to those pages thatRoyall failed to mention and statements that Royall refused to identify.

Through Appellants no-evidence motion for summary judgment, the burden of

identifying and supporting his specific claims of defamation shifted to Royall. For the vast

majority of pages in the bookpages that contain, among other things, the factual assertions

that form the basis of Mains conclusions about the project and RoyallRoyall provides no

evidence whatsoever of any of the elements of defamation. SeeC.R. at 2744-2817 (not citing

Bulldozed: pages 1-2, 9-10, 12-14, 16-17, 19, 22-26, 28-29, 32, 36, 39, 43, 50-52, 54-55, 58, 63-

66, 68, 70-71, 75-80, 82-87, 89-90, 93-99, 102-170, 172, 174-199, 201-211, 214-236, 239-241,

243, 246-250, 254-268, and 270-304). For several other pages, Royall cites them as

containing statements about him but fails to identify the statements and fails to provide

evidence of any of the elements of defamation. SeeC.R. at 2769 (citingBulldozedat 18, 31,

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38, 59-62, 101, 212-213, or 269 but failing to identify any supposedly defamatory statement

on those pages). Accordingly, summary judgment should have been granted to Appellants

as to all of those pages. See,e.g., Holloway v. Tex. Elec. Util. Constr., Ltd., 282 S.W.3d 207, 212

(Tex. App.Tyler 2009, no pet.) (holding no-evidence summary judgment response was

inadequate to raise fact issue when party failed to discuss challenged element anywhere in

response); Plotkin v. Joekel, No. 01-06-00624-CV, 2009 Tex. App. LEXIS 7709, at *42-44

(Tex. App.Houston [1st Dist.] Sept. 25, 2009, pet. denied) (holding no-evidence summary

judgment properly granted where response did not present evidence of each required

element of claim) (Appx. at Tab 16).

IV. None of the Specific Statements Identified by Royall Defame Him.

The best that can be said of Royalls claims is that he feels that Mains

characterization of the Freeport controversy is unfair and reflects worse on him than it

should have. Royall doesnt actually claim as defamatory Mains descriptions about what he

did or facts about him. Instead, his primary complaint is that she provides a dramatic

portrayal of the citys choice of one vision of the city over another, of his project over the

Gores business. And, according to Royall, this characterization is just not accurate.

This is Royalls defamation claim, stripped to its essentials. And under the law, it is

no defamation claim at all. Defamation plaintiffs can recover when someone publishes a

false fact, about them that is capable of defamatory meaning. Theories, conclusions,

dramatic portrayals, disputes about future events, and disagreements about political

philosophy are not actionable. Main and Encounter published a book about a major

national issue of our timethe use of eminent domain for private projectsand a specific

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example of that issue that played out in Freeport, Texas. As demonstrated below, none of

the supposedly defamatory statements Royall cites can support a claim for defamation.

A. The American Lust for Land does not defame Royall.

The books subtitle includes the words, The American Lust for Land (Stmt. 2, see

Appx. at Tab 1). Royall cites this phrase as defamatory in the book and when it appears (as

part of the title of the book) on Encounters website, Mains website, and in advertisements

for the book. SeeC.R. at 2780-81, 2786.

Verifiability: Whether Royall himself has a lust for land is plainly unverifiable. He is

a real estate developer, 2d Supp. C.R. at 189-92 (Pl.s Ex. 8), and therefore presumably

interested in land. The degree of Royalls interest and any evaluation of whether it is good or

bad is a matter of conjecture, surmise, and evaluation, not an objective statement of fact.

See, e.g., Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 586, 602 (D.C. 2000) (saying that

businessmen were unstable and coveted certain railroad lines was quintessential

provocative commentary protected by the First Amendment).

Of and Concerning: The subtitle is theAmericanlust for land, and there is also a

book section titled the lust for land. Neither of these refer to Royall and to no one else.

Defamatory Meaning: Lust for land is too vague to have an identifiable

defamatory meaning.

Falsity: Royall introduced no evidence that he does not have a lust for land.

B. Calling a development agreement a risky sweetheart deal is notdefamatory.

The inside dust cover of the book describes the agreement between Royall and the

city of Freeport as a risky sweetheart deal. Royall objects to this statement, in the book

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and when it appears on the websites, and he also characterizes it as the defamatory gist of

the book. SeeStmts. 1, 71.

Verifiability: Whether a deal exists is a matter of objective fact and fully verifiable.

Here, Royall acknowledges that there was a deal between him and the city of Freeport. 2d

Supp. C.R. at 189-92 (Pl.s Ex. 8). He does not identify as defamatory the many statements

in the book that describe, in detail, the terms of his deal with the city. See, e.g., C.R. at 1057-

64; see Hadlock v. Tex. Christian Univ., No. 2-07-290-CV, 2009 Tex. App. LEXIS 1330, at *17-

18 (Tex. App.Fort Worth Feb. 26, 2009, pet. denied) (mem. op.) (finding that, where

plaintiff did not contest factual description of his actions but only the evaluation that those

actions were unprofessional, statement was pure opinion) (Appx. at Tab 14); Sansing v.

Garcia, No. 13-08-00211-CV, 2009 Tex. App. LEXIS 8172, at *14 (Tex. App.Corpus

Christi Oct. 22, 2009, no pet.) (mem. op.) (blending of undisputed facts and opinion not

defamatory) (Appx. at Tab 18); Cochran v. NYP Holdings, Inc., 58 F. Supp. 2d 1113, 1122-24

(C.D. Cal. 1998) (statement that Cochran will say or do just about anything to win, typically

at the expense of the truth not actionable because the facts underlying this statement were

disclosed and were not themselves alleged to be defamatory.). Risky and sweetheart

are Mains opinion of Royalls deal, expressing her belief that Royall got quite beneficial

terms, while the city of Freeport and its citizens received the worse end of the deal. Readers,

of course, can read the details of the agreementwhich are described in the book at pages

57-60and form a different opinion if they choose. C.R. at 1057-60.

The First Amendment protects the right of journalists to analyze and critique

business dealsespecially public ones. See, e.g., Peter Scalamandre & Sons, Inc. v. Kaufman, 113

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F.3d 556, 562-63 (5th Cir. 1997) (journalist could call business a haul and dump operation

that had poisoned the people of Texas); Wilkow v. Forbes, 241 F.3d 552, 556 (7th Cir. 2001)

(journalist could say that a companys use of bankruptcy law amounted to an effort to rob

and stiff creditors);McCabe v. Rattiner, 814 F.2d 839, 842-43 (1st Cir. 1987) (referring to

timeshare operation as a scam not defamatory because not capable of being proven true or

false);McCluen v. Roane County Times, Inc., 936 S.W.2d 936, 938-42 (Tenn. Ct. App. 1996)

(journalist could say that there has been another sweet-heart deal at the expense of the

taxpayers and the other users of the landfill); Edmond v. Hartford Ins. Co., 27 Fed. Appx. 51,

53 (2d Cir. 2001) (classifying home as high risk for insurance purposes not defamatory).

Falsity: Royall introduced no evidence that his deal with the city was not risky.

He relies on two items supposedly showing that the deal was not a sweetheart deal. First,

he submitted an unsworn letter from by an employee of Freeport that says Royall will have

to expend $1 million of his own money before using the citys $6 million loan. 2d Supp.

C.R. at 202-3 (Pl.s Ex. 11). Mains book discusses and responds to this claim, and Royall

has not identified those passages as false or defamatory. C.R. at 1228-29. Nor has he

identified as false and defamatory the passage where the author of the letter, Ron Bottoms,

admitted that the city had to agree to some favorable terms to get the project done. C.R.

at 1062. Nor has plaintiff identified as false and defamatory the lengthy passage where Main

describes the development agreement in detail, including many other reasons that support

the opinion that it was a risky, sweetheart deal. C.R. at 1057-60.

Second, Royall relies upon a 2007 development agreement between his company and

Freeport. The phrase risky sweetheart deal expresses Mains opinion about the 2003

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development agreement between those same parties. Royall characterizes this 2003

agreement, without evidence, as preliminary. Bulldozedfocuses upon events between 2002

and 2006. C.R. at 1283-92. Royall does not explain why an agreement signed four years

later renders an opinion about the first agreement false, much less defamatory. See, e.g., UTV

of San Antonio, Inc. v. Ardmore, Inc., 82 S.W.3d 609, 11-12 (Tex. App.San Antonio 2002, no

main v. royall second amended brief

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