Encounter v. Royall Brief

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APPELLANTS REQUEST ORAL ARGUMENT

05-09-01503-CV
IN THE COURT OF APPEALS FOR 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 Court Dallas County, Texas Trial Court Cause No. DC-08-13480-B Honorable Carlos Cortez Presiding APPELLANTS’’ BRIEF Matthew R. Miller (TX Bar No. 24046444) Wesley Hottot (TX Bar No. 24063851) Institute for Justice Texas Chapter 816 Congress Avenue, Suite 960 Austin, TX 78701 (512) 480-5936 (512) 480-5937 (fax) Dana Berliner (DC Bar No. 447686)* Institute for Justice 901 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 LLP 901 Main Street, Suite 4110 Dallas, TX 75202 (214) 573-2300 (214) 573-2323 (fax)

COUNSEL FOR APPELLANTS CARLA T. MAIN AND ENCOUNTER FOR CULTURE AND EDUCATION, INC.

IDENTITY OF PARTIES AND COUNSEL APPELLANTS: Carla T. Main and Encounter for Culture and Education, Inc. c/o Counsel of Record Matthew R. Miller (TX Bar No. 24046444) Wesley Hottot (TX Bar No. 24063851) Institute for Justice Texas Chapter 816 Congress Avenue, Suite 960 Austin, TX 78701 Dana Berliner (DC Bar No. 447686)* Institute for Justice 901 N. Glebe Road, Suite 900 Arlington, VA 22203 John J. Little (TX Bar No. 12424230) Megan Dredla (TX Bar No. 24050530) Little Pedersen Fankhauser LLP 901 Main Street, Suite 4110 Dallas, TX 75202 *Admitted pro hac vice APPELLEE: H. Walker Royall c/o Counsel of Record Robert B. Gilbreath (TX Bar No. 07904620) Hawkins, Parnell & Thackston, LLP 4514 Cole Avenue, Suite 500 Dallas, 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 yacht marina by, in part, having the city take land from his neighbor through eminent domain for use in the marina? Are statements about the Freeport marina project, eminent domain, constitutional rights, and government action statements about matters of public concern? Are Appellants Carla T. Main and Encounter for Culture and Education, Inc. ““media defendants””?

2.

3.

Issues from No-Evidence Motion for Summary Judgment 4. Did Appellee present ““more than a scintilla”” of evidence that any of the supposedly defamatory statements or the gist of Bulldozed meets all four of the following criteria: a. b. c. d. 5. is a verifiable statement of fact; is false or not substantially true; is of and concerning Appellee; and is capable of conveying a defamatory meaning about Appellee?

Did the trial court err in overruling Appellants’’ objections to evidence offered in support of Appellee’’s response to Appellants’’ no-evidence motion for summary judgment?
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Page 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 Mark Lardas?

Statement of Facts..................................................................................................................................1 Summary of the Argument ...................................................................................................................3 Argument.................................................................................................................................................5 I. II. Standard of Review. .....................................................................................................5 Plaintiff Bears the Burden of Proving Falsity. .........................................................5

Issue No. 1 Restated: Were Appellants entitled to summary judgment that Royall was a limited-purpose public figure with respect to his voluntary participation in the city of Freeport’’s plan to acquire private property through eminent domain so that Royall could use that property in his marina development?..........................................................................................................6 A. Royall is a limited-purpose public figure......................................................6 Public Figure Factor 1: The Freeport marina project exploded into a significant public controversy before Bulldozed was published. ..................7

a. b. c.

The project was the subject of local and statewide discussion. ..............................................................7 The impact of the controversy would be widely felt.. ...........................................................................................8 The proper inquiry is whether Royall was a limited-purpose public figure at the time Bulldozed was published in 2007............................................................9 Royall played much ““more than a trivial or tangential role”” in creating the controversy...................................................10

Public Figure Factor 2:

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Page Public Figure Factor 3: The supposedly defamatory statements were about the controversy which Royall voluntarily helped create............................12

Issues No. 2 and 3 Restated: Were Appellants entitled to summary judgment that the statements Royall challenges——about the Freeport marina project, eminent domain, the constitution, and government action——statements made by ““media defendants”” about ““matters of public concern””? ...........................................12 B. Royall also bears the burden of proving falsity because the allegedly defamatory statements address matters of public concern and are published by media defendants......................................12 1. 2. The allegedly defamatory statements were about matters of public concern. .............................................................................13 Appellants are media defendants....................................................15

Issues No. 4 and 5 Restated: In response to Appellants’’ no-evidence summary judgment motion, did Royall offer competent summary judgment evidence as to each element that he must prove in order to establish his claim for defamation? ..............................................................................................................................15 III. The Trial Court Erred Denying Summary Judgment Because There Is No Evidence Appellants Wrote a Single Defamatory Statement About Royall.............................................................................................15 A. Royall must offer competent evidence as to each of four independent elements to survive Appellants’’ motion. ............................18 1. 2. Most of the statements cannot be defamatory because they are not verifiable assertions of fact. ...............................................18 A statement can defame a person only if it is ““of and concerning”” him; most of the statements at issue are not about Royall at all..............................................................................21 Most of the statements relied upon are not capable of defamatory meaning because they are not specific and offensive statements about Royall..................................................23

3.

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

Five pieces of Royall’’s evidence were inadmissible hearsay. ..................25 Appellants are entitled to summary judgment as to those pages that Royall failed to mention and statements that Royall refused to identify. .........................................................................................26

IV.

None of the Specific Statements Identified by Royall Defame Him.................27 A. B. C. D. E. F. The ““American Lust for Land”” does not defame Royall........................28 Calling a development agreement ““a risky sweetheart deal”” is not defamatory. ..............................................................................................28 Calling a public-private partnership an ““unholy alliance between city politicians and avaricious developers”” is not defamatory................31 Rhetorically equating eminent domain with theft is not defamatory.......................................................................................................33 Talking about the abuse of eminent domain is not defamation. ...........34 Talking about the anticipated effect of the Freeport marina project on river navigation and the anticipated effect on the Gores’’ businesses does not defame Royall.............................................................37 Statements about Royall’’s positions and companies are not defamatory.......................................................................................................41 Saying the city approached Royall about the project is not defamatory.......................................................................................................42 Saying there was no competitive bidding for the project is not defamatory.......................................................................................................42 ““He seemed to be calling on behalf of Walker Royall”” is not defamatory.......................................................................................................43

G. H. I. J.

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Page V. Royall Has Produced No Evidence of a Defamatory ““Gist”” of Bulldozed. .......................................................................................................................44 A. B. C. Royall has not brought a proper ““gist”” claim............................................44 Royall’’s gist claim improperly objects to unverifiable opinion, not implied facts.............................................................................................45 Royall has presented no evidence that the ““gist”” of Bulldozed is false...................................................................................................................48

Issue No. 6 Restated: In response to Appellants’’ no-evidence summary judgment motion, did Royall offer competent summary judgment evidence that Appellants aided, abetted or ratified allegedly defamatory speech by Mark Lardas? ............................................................................................................................48 VI. Royall Produced No Evidence That Appellants Aided, Abetted, or Ratified Defamation in Mark Lardas’’ Book Review of Bulldozed.......................................48

Prayer......................................................................................................................................................48 Certificate of Service Appendix

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INDEX OF AUTHORITIES Page(s) Case Law Amcor Inv. Corp. v. Cox Ariz. Publ’’ns, 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 Worth July 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. Moody’’s Investors Servs., 499 F.3d 520 (6th Cir. 2007)........................................................................................... 37, 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 Commc’’ns, 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. Publ’’g Ass’’n 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 P’’ship 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) Levinsky’’s, 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 Comm’’n, 817 S.W.2d 725 (Tex. App.——Texarkana 1991, writ denied) ...........................................26 Masson v. New Yorker Magazine, 501 U.S. 496 (1991).......................................................................................................... 24, 46 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. Dillard’’s, 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).............................................................................................. 44, 45 United States v. Nat’’l 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 Publ’’ns, 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, 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)..................................................................................................................... 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 defendants——the 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 court’’s denial of two of Appellants’’ motions for summary judgment (C.R. at 2868 and 2869; Appx. at Tabs 2 and 3). See Tex. 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 book’’s 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 Court’’s 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 voluntary agreement with the city of Freeport, Texas, to develop a yacht marina by, in part, having the 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. media defendants? Issues from No-Evidence Motion for Summary Judgment 4. Did Appellee present ““more than a scintilla”” of evidence that any of the supposedly defamatory statements or the gist of Bulldozed meets all four of the following criteria: e. is a verifiable statement of fact; f. is false or not substantially true; g. is of and concerning Appellee; and h. is capable of conveying a defamatory meaning about Appellee? 5. Did the trial court err in overruling Appellants’’ objections to evidence offered in support of Appellee’’s 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 Mark Lardas?

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STATEMENT OF FACTS Defendant-Appellant Carla T. Main is the author of Bulldozed: ““Kelo,”” Eminent Domain, and the American Lust for Land, which she wrote in the aftermath of the U.S. Supreme Court’’s decision in Kelo v. City of New London. C.R. at 2574-75. Main served as an editor at the National Law Journal and 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. Bulldozed was published by Defendant-Appellant Encounter for Culture and Education, Inc. (““Encounter””), a national book publisher. C.R. at 2579-80. Bulldozed is a work of political non-fiction that examines the U.S. Supreme Court’’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), and its repercussions. C.R. at 9941314. 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, 545 U.S. at 489-90. The case was controversial, even at the Supreme Court. The 5-4 decision included stinging dissents from both Justice O’’Connor 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.””) (O’’Connor, J., dissenting) and 518 (““Something has gone seriously awry with this Court’’s interpretation of the Constitution.””) (Thomas, J., dissenting). Bulldozed reflects Main’’s agreement with the dissenters that Kelo was wrongly decided. See, e.g., C.R. at 1010-11. In order to explore the impact of Kelo 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 Royall’’s company for use in the marina project. C.R. at 1406. Specifically, the agreement said 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).1 The city of Freeport began condemnation proceedings against the Gores in August 2004. C.R. at 2667-72. The dispute about the city’’s 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. Main’’s book discusses and criticizes Royall’’s involvement in the project, although she saves most of her
The agreement was assigned in 2003 to another company Royall managed, and amended in 2004 and 2005 without any change to the language regarding eminent domain. C.R. at 1474-76, 1478-84. In 2007, three years into the condemnation proceedings filed by the city against the Gores, the agreement was replaced with a new agreement that did not mention eminent domain. C.R. at 1486-1544.
1

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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; Encounter’’s advertising for the book; a book review by a freelance reviewer; an opinion editorial in which Main and Encounter’’s 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 Royall’’s 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 Royall’’s 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 Royall’’s 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 Royall’’s 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 court’’s 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 project——more than 60 published pieces discussed his involvement in the marina project prior to the publication of Bulldozed. 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 court’’s 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. Dillard’’s, 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 Royall was a limited-purpose public figure with respect to his voluntary participation in the city of Freeport’’s plan to acquire private property through eminent domain so that Royall 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 Royall’’s ““public figure”” status must be assessed at the time the supposedly defamatory statements were made——a 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 Bulldozed was published in 2007. Royall’’s 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 significant public controversy before Bulldozed was 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 Main’’s 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.
See 61 news articles cited infra at 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. 3 See C.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, 200507, 2009-10, 2012-14, 2035-37, 2041-43, 2045-46, 2057-58, 2074-75, 2077-78. 4 See C.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. 5 See C.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. 6 See C.R. at 2057-58, 2451-55, 2060-65, 2067-68, 2070, 2072, 2074-75, 2077-78, 2080-81.
2

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1988); see also Swate v. Schiffers, 975 S.W.2d 70, 76 (Tex. App.——San Antonio 1998, pet. denied) (relying on 24 articles published over a 10-year period about the poor quality of a doctor’’s medical practice to hold that the doctor was a limited-purpose public figure). Most recently, the First Court held that because a controversy about local development plans and financing had ““played out in the local media”” in approximately nine published articles and letters, the property owners’’ association board president (and attorney for the developer) was a limitedpurpose public figure. See Vice v. Kasprzak, No. 01-08-00168-CV, 2009 Tex. App. LEXIS 7725, at *31 (Tex. App.——Houston [1st Dist.] Oct. 1, 2009, no pet. h.) (Appx. at Tab 19). If nine, 24, or 30 articles show a public controversy, more than 100 certainly suffices. b. The impact of the controversy would be widely felt.

In determining whether a controversy is public, courts also ask whether the resolution of the conflict will impact more than just its immediate participants. See WFAA, 978 S.W.2d at 571. The controversy at issue here had potentially far-reaching legal effects throughout the state, because Freeport’’s plan to use eminent domain for the marina project raised issues of the constitutionality of economic development takings under the Texas Constitution. The lawsuit challenging the use of eminent domain for the project was also one of the first cases, if not the very first one, to interpret the new Texas statute passed in the wake of Kelo. See W. Seafood Co. v. United States, 202 Fed. Appx. 670, 676-77 (5th Cir. 2006) (remanding to district court to consider new legislation). In the eyes of observers, ““the eventual outcome [of the controversy] extend[ed] beyond Freeport, [as it was] seen as the first significant test of the Kelo decision.”” C.R. at 2096-98. Furthermore, the deal placed $6 million in taxpayers’’ money on the line in the form

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of a loan to Royall’’s company. C.R. at 1394-96. Thus, the controversy itself affected all the citizens of Freeport, who would (depending on one’’s 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 (developer’’s 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 time Bulldozed was published in 2007.

In the trial court, Royall argued that a court must determine if there was ongoing public debate before the 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 Court’’s 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 56970. 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 role”” in creating the controversy.

Royall did not just play a significant role in an ongoing controversy; he had a significant role in creating the controversy. It is undisputed that he entered into the development agreement that included the city’’s 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 creating the 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 a pre-existing public 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 never be a public figure no matter how controversial that deal turns out to be. Under Royall’’s 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 Royall’’s 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 (plaintiff’’s role as property owners’’ association board president and attorney for developer subjected him to scrutiny); Little, 93 F.3d at 758 (plaintiff’’s ““choice”” to assume leadership position in convention and visitor’’s 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 Publ’’ns, 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 domain——Royall 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. See C.R. at 1478-80, 1482-84. As the person in charge of the developer side of a major public-private project, see C.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 Royall signed 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 the late 1990s, C.R. at 2534-35, 2537-39, 2541-42, 2544-45, 2547-50, 2552-53, 2555-58., as well as other eminent domain projects in Texas, see C.R. at 2560-61, 2563-64, 2566-67, that generated media coverage. Page 11

in the public controversy that project engendered. Public Figure Factor 3: The supposedly defamatory statements were about the controversy which Royall voluntarily helped create.

The final factor in the limited-purpose public figure inquiry is whether the purported defamatory speech concerned the same controversy in which the plaintiff participated. WFAA, 978 S.W.2d at 571. Appellants meet this factor; Royall does not dispute that all of the alleged defamation relates to the marina project and his role in that controversy. In sum, Royall satisfies all three of the factors required to find that he is a limitedpurpose public figure with respect to his involvement in the Freeport marina project. Royall therefore has the burden of proving falsity. Because Royall offered no contrary evidence, but instead relied only an incorrect legal theory, the trial court erred in denying Appellants’’ partial motion for summary judgment as to Royall’’s limited public figure status. Issues No. 2 and 3 Restated: Were Appellants entitled to summary judgment that the statements Royall challenges——about the Freeport marina project, eminent domain, the constitution, and government action——statements made by ““media defendants”” about ““matters of public concern””? B. Royall also bears the burden of proving falsity because the allegedly defamatory statements address matters of public concern and are published by media defendants.

Even if Royall were not a limited-purpose public figure, which he is, he still would bear the burden of proving falsity for the independent reason that the First Amendment shifts the burden of proof in defamation cases where, as here, a media defendant publishes allegedly defamatory statements about an issue of public concern. See BE & K Constr. Co. v. NLRB, 536 U.S. 516, 534 (2002) (there is a constitutional ““requirement that private defamation plaintiffs prove the falsity of speech on matters of public concern””); see also Phila.

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Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986). Both requirements——a matter of public concern and media defendants——are satisfied here. 1. The allegedly defamatory statements were about matters of public concern.

Main’’s 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) (quoting Rosenblatt 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 P’’ship 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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government action, constitutional rights, and eminent domain for private redevelopment. Both federal and state courts weighed in on the legality of the city’’s proposed condemnations. See W. Seafood Co. v. United States, 202 Fed. Appx. 670 (5th Cir. 2006); Freeport Econ. Dev. Corp. v. Western Seafood Co., No. CI-032664 (Co. Ct. at Law No. 3, Brazoria County, Tex. Aug. 16, 2004) (Appx. at Tab 12). To Main, what was happening in Freeport looked a lot like what happened in Kelo. In order to write about the Freeport project, Main had to write about Royall, who was the sole developer of the project. Importantly, Main’’s discussion and criticism of Royall is limited to that particular role. Bulldozed was released to the public in the wake of a public controversy, underscoring the degree to which it is about a matter of public concern. ““Speech made in the context of ongoing commentary and debate in the press is of concern to the public.”” Scott v. Godwin, 147 S.W.3d 609, 618 (Tex. App.——Corpus Christi 2004, no pet.); see also United States v. Nat’’l Treasury Employees Union, 513 U.S. 454, 466 (1995) (holding speech was on matter of public concern partly because it was made ““to a public audience””). In the trial court, Royall argued that Appellants failed to explain why each and every one of the nearly 100 statements of which he complains addresses a matter of public concern. C.R. at 2750-53. This demand turns the analysis on its head. Bulldozed is about the social and constitutional issues surrounding eminent domain for private development. Every statement Royall identified involves the same set of operative facts: Freeport’’s agreement with Royall to use eminent domain to take land from one private party and give it to Royall. These are topics of public concern. The trial court thus erred in failing to grant Appellants’’ summary judgment that the matters addressed in their statements were ““of public concern.””

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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, 288––289 (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 summary judgment motion, did Royall offer competent summary judgment evidence as to each 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 No Evidence 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 Royall’’s 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 Royall’’s 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 also King
The first three elements are necessary for any defamation claim. The fourth one, falsity, is Royall’’s burden if he is a public figure or if the topic is one of public concern and Appellants are media defendants. As shown in Part II above, those requirements are satisfied here, so Royall bears the burden on falsity as well.
8

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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 Royall’’s decision to object to so many individual statements, and the trial court’’s 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 Royall’’s 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) (quoting N.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

Appellants moved that the book, other documents, and gist do not satisfy the elements of ““defamation,”” C.R. at 923, which includes both libel per se and libel per quod. See, e.g., Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 501 (Tex. App.——Houston [14 Dist.] 2008) (pet. denied). Appellants also moved that Royall did not have extrinsic evidence supporting any libel per quod claim. C.R. at 923. As the distinctions between the two types 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’’ noevidence motion for summary judgment. C.R. at 2744-2817. Appellants have taken each statement from the responsive brief and put them in the order of the pages in the book. To assist the Court in referring to specific statements addressed in this brief, each of the statements is individually numbered and will be referred to herein by its ““statement number,”” e.g. ““Stmt. 5.””
9

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statements relied upon by Royall comes close to meeting the rigorous legal standard for defamation. Appellants’’ no-evidence summary judgment should have been granted and judgment rendered for Appellants. 11 Below, appellants first discuss the law governing the four elements on which Appellants have moved: (1) verifiable statement of fact; (2) of and concerning; (3) capable of defamatory meaning; and, (4) falsity. Part III.A. Appellants next explain their objections to the admissibility of certain evidence proffered by Royall in response to the no-evidence motion. Part III.B. Appellants then discuss the statements as to which Royall failed to produce any evidence (objectionable or otherwise) and show that the trial court should have granted summary judgment with respect to all those statements. Part III.C. Appellants proceed to review each of the statements that Royall claims are defamatory, organizing them into groups where possible, and demonstrate that Royall has failed to meet his no-evidence burden for each and every statement by failing to show that each satisfies all four elements of defamation. Part IV. Appellants next address Royall’’s claim that the ““gist”” of the book is itself defamatory. Part V. And finally, Appellants briefly address Royall’’s failure to produce any evidence that Appellants aided, abetted, or ratified a supposedly defamatory book review written and published by now-dismissed defendants. Part VI.

argued in the trial court that Appellants did not move on the press release and the opinion editorial. C.R. at 2815-16. However, Appellants did in fact move on ““the book …… and all other items identified by Plaintiff as containing allegedly defamatory statements.”” C.R. at 903. Further, Royall listed statements from the press release, Stmts. 75-81, and opinion editorial, Stmts. 86-91, in his responsive brief as representing the defamatory ““gist”” of the book. C.R. at 2771-72, 2782-83. Therefore, because those statements were moved on by Appellants and were at issue in Royall’’s response to the no-evidence motion, they can be properly disposed of here. Page 17

11 Appellee

A.

Royall must offer competent evidence as to each of four independent elements to survive Appellants’’ motion. 1. Most of the statements cannot be defamatory because they are not 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.”” Shaw v. 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). Milkovich also establishes that opinions are completely protected if the factual referents are disclosed by the speaker. After Milkovich, the only ““opinions”” that are not protected are statements that look like opinion but imply the existence of undisclosed facts. 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 defendant’’s 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 after Milkovich have 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 writer’’s interpretation of the facts presented””). The U.S. Supreme Court has long acknowledged that an author’’s 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 America’’s 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. Wilkow centered 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 author’’s highly negative and insulting views of Wilkow’’s 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. See Stmts. 1-3, 6-16, 18, 20, 24-30, 32-43, 47-52, 54-69, 71, 74-81, 82, 8486, 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 Main’’s opinion were statements of verifiable fact.

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2.

A statement can defame a person only if it is ““of and concerning”” him; most of the statements at issue are not about Royall at all.

A statement can only defame a person if it is about that person. See Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 893 (Tex. 1960). Thus, the ““of and concerning”” requirement ““stands as a significant limitation on the universe of those who may seek a legal remedy for communications they think to be false and defamatory and to have injured them.”” Kirch v. Liberty Media Corp., 449 F.3d 388, 399-400 (2d Cir. 2006). Of and concerning is ““a threshold, and constitutional, matter.”” Diaz v. NBC Universal, Inc., No. 08-1190-cv, 337 Fed. Appx. 94, 96 (2d Cir. 2009). In Newspapers, Inc., the Texas Supreme Court analyzed the required connection between the allegedly defamatory statement and the defamation plaintiff and held that the connection must be very tight indeed. 339 S.W.2d 890. There, a newspaper published an article claiming that certain automobile wrecking shops were illegally wrecking cars in order to commit insurance fraud. Id. at 891-93. The article mentioned that criminal charges had been filed against ““Joe R. Rocha, and Alex Hisbrook, operators of the Texas Body Shop.”” Id. at 892. Rocha and Hisbrook were the former owners of the Texas Body Shop and, at the time the article was published, were still employed there. Id. at 891. The business had been purchased two months earlier by the plaintiff, Matthews, but the article alleged that fraud had occurred during that two-month period. Id. Matthews claimed the article defamed him because it said that the ““operators of the Texas Body Shop”” were operating an illegal insurance fraud ring, and that contained the ““implication that he, Matthews, as true owner and operator of the Texas Body Shop, was operating the shop as a front for Rocha and Hisbrook in their illicit activities.”” Id. at 894.
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The court rejected this reasoning, finding that the defamatory statement must ““point to the plaintiff and 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 entities——not to 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 Newspapers ““of 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”” requirement——which must be satisfied as to each one of the 91 statements he has identified——by 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 ____ (Pl.’’s Ex. 7). 13 Specifically, the affidavit states: The parts of the book that involve Freeport clearly refer to Walker
See Stmts. 2, 9-12, 14-15, 18, 20-21, 24-44, 46-49, 52, 54-69, 74, 77-78, 81-85. In their initial record designation to the District Court clerk’’s office, Appellants properly requested the evidence Royall submitted in support of his no-evidence motion. However, when the clerk transmitted the record, it omitted this evidence. Upon agreed motion, this Court granted a request for extension of time to allow the clerk’’s office to supplement the record and ordered the clerk to copy ““Plaintiff’’s evidence offered in support of his combined response to the motions for summary judgment.”” Appellants also sent a letter to the clerk’’s office specifically listing each piece of evidence that should be included. On the morning of March 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. Rather than further delay the briefing, Appellants here submit their brief with blanks showing the missing record cites. When the record has been supplemented with the correct documents, Appellants will supplement their brief to fill in these blanks.
12 13

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Royall…….The statements in the book about the idea of the marina project, the use of eminent domain on the project allegedly for Mr. Royall’’s benefit, the claimed effect that the project would have on Western Seafood’’s ownership of its plant, its access to the river, the continued existence of the company and the comparison of the Freeport marina project to other projects involving eminent domain were all clearly, in my reading of the book, directed at Walker Royall and his involvement. 2d Supp. C.R. at ____ (Pl.’’s Ex. 7). According to Royall, ““Mr. Cameron’’s 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 Royall’’s 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 defamatory meaning because they are not specific and offensive statements about 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 Royall’’s business partner in the marina project 2d Supp. C.R. at ____ (Pl.’’s Ex. 7), and, as such, he is an interested witness. ““An interested witness’’ affidavit which recites that the affiant ‘‘estimates,’’ or ‘‘believes’’ certain facts to be true will not support summary judgment.”” Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). The affiant’’s only statement is that his ““reading”” of the book is that it is about Royall. 2d Supp. C.R. at ____ (Pl.’’s Ex. 7). Page 23

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); Levinsky’’s, 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. See Stmts. 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 Royall’’s family connections or business activities also are not capable of defamatory meaning. See Stmts. 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 Commc’’ns, 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”” (quoting Masson v. New Yorker Magazine, 501 U.S. 496, 517 (1991)).

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B.

Five pieces of Royall’’s evidence were inadmissible hearsay.

In the trial court, Royall relied on several pieces of evidence, 2d Supp. C.R. at ____ (Pl.’’s Exs. 3, 6-10, 13, and 26), that were inadmissible——as 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. See Tex. R. Evid. 804(a) & (b)(1). Royall made no attempt to show that the third-party deponents here——two members of the Gore family and Royall’’s expert witness in his case against the Gores——were 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 Supp. C.R. at ____ (Pl.’’s Ex. 10), was an open letter from officials at the city of Freeport
15

Contrary to the trial court’’s determination, Appellants did not ““waive”” their objections to this evidence. C.R. at 2884. As to one of the deposition transcripts——that of David Cole, 2d Supp. C.R. at ____ (Pl.’’s Ex. 26), who purports to be an expert on navigation, and upon whose testimony Royall primarily relies for his evidence 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), 2d Supp. C.R. at ____ (Pl.’’s Exs. 3 and 13) Royall previously cited those depositions only with regard to whether Royall was a public figure, C.R. at 740-45, which was not an issue in the previous summary judgment motion. See C.R. 46-115. Accordingly, there was no reason for Appellants to object to the evidence when it was used for that purpose. One does not waive an objection to the use of evidence for one purpose by not objecting to its use for another purpose. For example, if Royall is correct about his theory of waiver, Appellants should be able to use the newspaper articles that they introduced to show public figure status (and to which Royall did not object) for the truth of the matters asserted therein in all future proceedings in this case. Page 25

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 ____ (Pl.’’s Ex. 6), expressing his views about the lawsuit and Royall’’s 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 Comm’’n, 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 that Royall 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 book——pages that contain, among other things, the factual assertions that form the basis of Main’’s conclusions about the project and Royall——Royall provides no evidence whatsoever of any of the elements of defamation. See C.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, 6366, 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. See C.R. at 2769 (citing Bulldozed at 18, 31, 38, 59-62, 101, 212-213, or 269 but failing to identify any supposedly defamatory statement
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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 Royall’’s claims is that he feels that Main’’s characterization of the Freeport controversy is unfair and reflects worse on him than it should have. Royall doesn’’t actually claim as defamatory Main’’s descriptions about what he did or facts about him. Instead, his primary complaint is that she provides a dramatic portrayal of the city’’s 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 Royall’’s 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 time——the use of eminent domain for private projects——and a specific example of that issue that played out in Freeport, Texas. As demonstrated below, none of

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the supposedly defamatory statements Royall cites can support a claim for defamation. A. The ““American Lust for Land”” does not defame Royall.

The book’’s 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 Encounter’’s website, Main’’s website, and in advertisements for the book. See C.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 ____ (Pl.’’s Ex. 8), and therefore presumably interested in land. The degree of Royall’’s 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 ““the American lust 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 not defamatory.

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 and when it appears on the websites, and he also characterizes it as the defamatory ““gist”” of
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the book. See Stmts. 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 ____ (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 Main’’s opinion of Royall’’s 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 agreement——which are described in the book at pages 57-60——and 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 deals——especially public ones. See, e.g., Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F.3d 556, 562-63 (5th Cir. 1997) (journalist could call business a ““haul and dump operation””

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that had ““poisoned”” the people of Texas); Wilkow v. Forbes, 241 F.3d 552, 556 (7th Cir. 2001) (journalist could say that a company’’s 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 city’’s $6 million loan. 2d Supp. C.R. at ____ (Pl.’’s Ex. 11). Main’’s 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 Main’’s opinion about the 2003 development agreement between those same parties. Royall characterizes this 2003

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agreement, without evidence, as ““preliminary.”” Bulldozed focuses 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 pet.) (reversing denial of summary judgment and holding news broadcast about complaints of cockroaches at a day-care still substantially true even though report omitted recent government investigation showing cockroach problem was now solved). C. Calling a public-private partnership an ““unholy alliance between city politicians and avaricious developers”” is not defamatory.

The back cover of the book has a blurb from Richard Epstein, a law professor at New York University, that refers to the Gore family’’s struggle against ““the machinations of an unholy alliance between city politicians and avaricious developers.”” Stmt. 3. Royall objects to both ““unholy alliance”” and ““avaricious developers.”” C.R. at 2786-92. Verifiability: Calling public-private partnerships that involve eminent domain ““unholy”” alliances is protected opinion, not verifiable fact. To state the obvious, when Professor Epstein referred to the deal as an ““unholy alliance,”” he did not make a factual assertion about the morality of that arrangement. Rather, he spoke figuratively and expressed his opinion that agreements between cities and developers to use eminent domain in this fashion constitute an abuse of power and a tragedy for the individuals involved. Nor is ““avaricious”” verifiable. All business people seek to turn a profit. How to characterize that desire and whether one believes that public-private partnerships distort ordinary business practices cannot be proved as a matter of fact. Indeed, these are the types of issues that have been the subject of political debate in this country for more than 100 years.
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Not surprisingly, then, courts have held that similar statements are protected opinion, not verifiable fact. See, e.g., Frinzi v. Hanson, 140 N.W.2d 259, 261-62 (Wis. 1966) (““unholy alliance”” not defamatory as a matter of law); see also Myers v. Mobile Press-Register, Inc., 97 So. 2d 819, 822-23, 825 (Ala. 1957) (““unholy combination”” not defamatory as a matter of law); Wilkow v. Forbes, 241 F.3d 552, 557 (7th Cir. 2001) (““an allegation of greed is not defamatory; sedulous pursuit of self-interest is the engine that propels a market economy””); Church of Scientology v. Cazares, 638 F.2d 1272, 1289 (5th Cir. 1981) (““rip-off, money motivated operation”” constitutionally protected opinion); Metcalf v. KFOR-TV, Inc., 828 F. Supp. 1515, 1530 (W.D. Okla. 1992) (““greedy doctors”” non-defamatory because unverifiable opinion). Moreover, Royall did not produce any evidence that any of the facts in the book were defamatory. He objects only to Professor Epstein’’s characterization of those facts. For example, on pages 32-33, Main describes Royall telling the Gores that they could move their shrimp packing house, perhaps in a no-cost land swap. C.R. at 1032-33. Then, on page 57, Main describes a report of Royall telling the Gores that their estimate for relocating their packing house to make way for the marina would be ““too expensive.”” C.R. at 1057. Royall did not identify these passages as defamatory and produced no evidence that these facts were defamatory, just as he produced no evidence showing that Main’’s account that the city was putting up nearly all the cash for the project and using eminent domain was defamatory. C.R. at 1057-61. Simply put, Royall objects to Main’’s conclusions, not the facts upon which they are based. Conclusions are not defamatory under the First Amendment. Defamatory meaning: This description is too vague to have defamatory meaning. Falsity: Royall has introduced no evidence either that there was no alliance or that

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the alliance was not unholy. Nor has he introduced any evidence that he is not avaricious. D. Rhetorically equating eminent domain with theft is not defamatory.

Royall identifies nine supposedly defamatory statements that he claims accuse him of ““stealing.”” 16 See C.R. at 2790-91, citing Stmts. 13-16, 24, 49, 61, 63, 68 (Appx. at Tab 1). Verifiability: An allegation of theft would be both verifiable and defamatory, of course, but the statements Royall cites contain no allegation of actual stealing. Indeed, only one of the statements even uses the word ““steal”” (Stmt. 24). Even there, the statement is a quote by one of the Gores that in context plainly refers to the city, not to Royall. C.R. at 1035. Wright Gore Jr. was discussing his attempt to convince the city to accept 100 or 150 feet of waterfront property instead of 330 and says ““What could it matter? And not steal it from us.”” This is an expression of rhetorical hyperbole about the use of eminent domain, not an accusation of stealing. The U.S. Supreme Court has held that similar analogies are protected opinion. See Greenbelt Coop. Publ’’g Ass’’n v. Bresler, 398 U.S. 6, 7-8, 14 (1970) (holding that characterizing a developer’’s negotiating position with the city council as ““blackmail”” was rhetorical, not an accusation of a crime). One other statement that supposedly accuses Royall of stealing is a quote from someone at a public meeting who refers to ““coveting thy neighbor’’s house”” (Stmt. 14). Whether or not one ““covets”” is not verifiable. See, e.g., Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 586, 602 (D.C. 2000). The other statements that Royall claims accuse him of stealing actually involve commentary on the city’’s threat to use eminent domain. See, e.g., Stmt. 13 (““My town is
16

Royall also says these references to ““stealing”” amount to libel per se. C.R. at 2791. However, since Main did not actually accuse Royall of the crime of stealing——but rather used the word as rhetorical hyperbole—— Royall’’s claim of libel per se must necessarily fail. Page 33

trying to take my family’’s shrimping business.””). Whether the city was using or threatening eminent domain is a statement of fact, but not a fact that Royall claims is false and defamatory. The book, for example, contains descriptions of the eminent domain lawsuit filed by the city against the Gores and the course of that litigation. C.R. at 1086, 1171-72, 1263-65. These are not passages that Royall presented in response to the no-evidence motion. He does not disagree that such a lawsuit was filed by the city. Instead, he objects to commentary and characterization like Stmt. 68 (““as if taking away family businesses were not problematic either morally or socially””). Such a statement is simply unverifiable expression of the author’’s views of the moral and social desirability of the use of eminent domain. That is quintessential political speech, not defamation. See also Stmts. 49, 61, 63. Of and concerning: Of the statements identified by Royall as accusing him of stealing, two statements (Stmts. 13 and 16) identify him as the recipient of property to be taken by eminent domain (a point he does not claim defames him). The others (Stmts. 14, 15, 24, 49, 61, 63, and 68) do not mention or refer to him at all. Defamatory meaning: The statements that do not refer to Royall are not capable of defamatory meaning as to him. Falsity: Royall presented no evidence that Freeport did not seek to take the Gores’’ land, nor that his company was not the planned recipient of that land. (Indeed, although Royall claims——incorrectly——that Appellants have accused him of stealing, he introduced no evidence that he did not seek to steal the Gores’’ property.) E. Talking about the abuse of eminent domain is not defamation.

A number of the statements to which Royall objects say or imply that the city or

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Royall abused eminent domain. See, e.g., Stmt. 61 (““……if the Gores——who are people of means and own a substantial business——can have their property snatched out from under them……””; Stmt. 76 (““……the Gores, the original victims of Royall’’s eminent domain abuse effort in Freeport……””); see also Stmts. 1, 3, 13, 28, 50-51, 57, 62, 67-68, 71, 74-80, 83, 85, 86. Verifiability: Saying that someone is abusing eminent domain is the expression of a view on the social and moral desirability of private parties deriving the benefits of eminent domain. That kind of commentary is wholly protected by the First Amendment. See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. at 269-71; Peterson v. Grisham, 594 F.3d 723, 729 n.7 (10th Cir. 2010) (““Defendants wrote [books] about a miscarriage of justice and attempted to encourage political and social change. To the extent their perceptions of the affair were erroneous, we depend on the marketplace of ideas-not the whim of the bench-to correct insidious opinions.””). As discussed in Part II, supra, eminent domain for private development has been the subject of controversy throughout the United States for many years. Commentary on this subject is unverifiable opinion, not verifiable fact. The decision in Brock v. Tandy, No. 2-08-400-CV, 2009 Tex. App. LEXIS 5171 (Tex. App.——Fort Worth July 2, 2009, pet. denied) (mem. op.) (Appx. at Tab 9), relied upon by Royall below, is easily distinguishable. In Brock, a landowner had been in an escalating disagreement with his city about the platting of his property, drainage, flooding, and eminent domain. Id. at *1 & n.3. He published a somewhat-rambling paid advertisement in the local paper that accused Tandy, the mayor, of a felony and official corruption. Id. at *2-5 (claiming mayor ““backdated the signatures [on an official document] to cover up the corruption. More than corruption, this amounts to fraud. And recording a fraudulent

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document is a felony””). The court found this statement was defamatory and that the overall gist of the advertisement, which repeatedly accused the mayor of corruption, was defamatory as well. Id. at *12-13. Such accusations certainly can be defamatory. See Bentley v. Bunton, 94 S.W.3d 561, 581-83 (Tex. 2002). Main’’s book, however, does not come close to accusing Royall of committing a crime or of being corrupt. To the contrary, Main acknowledges that the actions of Royall and the city were legal. See, e.g., C.R. at 1101 (““Legally, there is nothing wrong with [the financial terms of the agreement].””); Stmt. 57 (admitting Freeport condemnation is ““public use”” under Kelo). The Brock advertisement also included a statement that the mayor had stolen Brock’’s property by eminent domain, 2009 Tex. App. LEXIS 5171 at *3-4, and from this, Royall incorrectly concludes that accusing someone of abusing eminent domain is defamatory. C.R. at 2778-79. The Brock opinion does not say this, and indeed, under well-established First Amendment law, it could not. Such a ruling would fly in the face of decades of Texas and Supreme Court precedent protecting political commentary and criticism. See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) (criticism of police department’’s treatment of AfricanAmerican protesters protected by First Amendment). An allegation of abuse of power might be defamatory if, as in Brock, it is coupled with specific false factual allegations of illegal or corrupt activity, but otherwise, it is wholly protected opinion. Again, Main does not accuse Royall of illegal activity; instead she expresses her opinion that the use of eminent domain for private development is an abuse of power. That opinion cannot be defamatory. Of and Concerning: Some of these statements do not mention or refer to Royall at all, see Stmts. 28, 57, 61-62, 67-68, 77, 78, 83, 85, and are thus not of and concerning him.

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Falsity: Royall has presented no evidence that Freeport did not initiate an eminent domain action against the Gores or that his company was not the intended recipient of the land being taken. Nor, for that matter, has he presented evidence that he did not abuse the power of eminent domain or that being the recipient of condemned property is not abusive. F. Talking about the anticipated effect of the Freeport marina project on river navigation and the anticipated effect on the Gores’’ businesses does not defame Royall.

A large number of the statements to which Royall objects relate to predictions about the future effects of the marina project on the Gores’’ business, navigation, and Freeport. C.R. at 2781-83, 2791, 2799-2806. (Royall also claims that some of these statements ““are part of the gist”” of the book. C.R. at 2887.) According to the Gores and their lawyer, and as explained by Main, the proposed project would destroy the Gores’’ business 17 in two ways: (1) the shrimp boats would find it difficult or impossible to reach the shrimp unloading area and would stop patronizing Western Seafood; 18 and (2) the 330 feet of property that the city sought to acquire included waterfront access vital to the business. 19 There are additional statements that do not fall easily into these categories but also relate to the effect of the project on the Gores’’ business. 20 Verifiability: Each statement about future navigation and the future of the Gores’’ business is ultimately unverifiable. Indeed, courts have routinely held that predictions about future business events are unverifiable opinion, not verifiable fact. See, e.g., Compuware Corp. v. Moody’’s Investors Servs., 499 F.3d 520, 529 (6th Cir. 2007) (holding credit rating is ““a
See Stmts. 6-13, 15, 18, 20, 25, 27-30, 32-35, 37, 39-41, 43, 47-52, 54-57, 59-60, 62-64, 67-69, 75, 81, 84-85. 18 See Stmts. 26, 36, 37, 38, 39, 58. 19 See Stmts. 25, 30, 32-34, 40, 42, 55, 81, 82, 84. 20 See Stmts. 16, 44, 65-66, 73.
17

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predictive opinion, dependent on a subjective and discretionary weighing of complex factors””); Republic Tobacco v. N. Atl. Trading Co., No. 06-2738 2007 U.S. Dist. LEXIS 38079, *34-35 (N.D. Ill. May 10, 2007) (statement that consumer confusion will occur between two products not defamatory as ““a prediction of future events can neither be true nor false””); Amcor Inv. Corp. v. Cox Ariz. Publ’’ns, 764 P.2d 327, 330-31 (Ariz. Ct. App. 1988), rev. denied (criticism of government officials regarding approval of development near airport not capable of being defamatory because ““predictions of future events or conditions”” are not generally understood as allegations of fact). Royall objects to statements he views as creating ““the impression that the marina required a choice between the progress promised by the marina and the continued existence of Western Seafood.”” See C.R. at 2799-2806 (citing Stmts. 6-13, 18, 20-21, 25-30, 32-44, 4752, 54-60, 62-69); see also Stmts. 15, 75, 81, 82, 84, 85 (statements concerning the Gores’’ theory that the proposed project would destroy their business). These statements are unverifiable and thus cannot be defamatory. For example, Royall objects to a statement in the book in which the Gores’’ lawyer, writing to the Army Corps of Engineers opposing the city’’s application for a marina permit, says that he anticipates the project will ““so constrain and confine navigation”” on the river that the shrimp vessels ““will elect to”” go elsewhere. Stmts. 39. That prediction of what will happen in the future is no different than a downtown business predicting that a city’’s new traffic plan will discourage pedestrian traffic and thus ruin his business——and just as unverifiable. Similarly, Royall objects to the statement that ““[T]he Gores would have been crippled financially and legally by having lost their access to the Old Brazos River and hence their

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ability to operate Western Seafood. Had they lost water access, the value of their riverfront property would have been practically nil. They certainly would have lost all leverage. It would have been over before the Gores ever had a fighting chance.”” See Stmt. 34 (emphasis added). That statement is couched in conditional, predictive language. It is the Gores’’ opinion about what would happen in the future if the Army Corps of Engineers granted the city’’s application. The book’’s statements that ““a family business was at stake”” (Stmt. 35) is the same type of prediction. One of the supposedly defamatory statements is Main’’s summary of a federal court decision about the dispute, which Main saw as taking a cavalier attitude toward ““wiping out”” the Gores’’ business (Stmt. 56). The Gores believed the project would destroy their business; Royall believed it would not. Royall is certainly entitled to his opinion. But he is not entitled to ban Main’’s book or dictate its contents to match his own views about unprovable predictions of future events. Nor can a defamation claim be based on statements about the risks inherent in economic development projects. See Stmts. 65 (““And here’’s what is galling about the taxrevenue comparison in an economic development taking: it is a comparison of a real, live revenue stream against anticipated taxes from a phantom””) (emphasis original), 66 (““Does Western Seafood stimulate the economy in Freeport? Certainly. Will the marina? It’’s hard to say.””). Such statements about the wisdom of municipal development policy choices are not verifiable. Main’’s book expresses her view that Freeport’’s policymaking is ““galling.”” Some——perhaps including Royall——may well disagree and call it ““visionary.”” The First Amendment allows each side in a debate about public policy to express its views, just as it forbids each side from trying to use defamation law to suppress the views of the other.

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Here, Royall seeks to punish an author for describing a lawyer’’s written objection to an Army Corps of Engineers application; for explaining why an owner fought the use of eminent domain; for describing a federal court decision; and for expressing her views about what constitutes sound policymaking. Concern about protecting such speech is exactly why courts repeatedly have refused to allow defamation law to be used to suppress commentary on important political and social issues. Of and Concerning: Of the statements on this issue, most do not mention Royall at all, and thus are not of and concerning him. 21 The few that do mention him do so only in the context of being the recipient of the property being taken. See Stmts. 6, 8, 13, 50-51. Defamatory meaning: Statements that do not refer to Royall are not capable of defamatory meaning as to him. Falsity: For virtually all of the supposedly defamatory statements, Royall presents no evidence of falsity other than on the issue of whether the Gores’’ business would be destroyed. Statement 50 provides a good example: And now the city was insisting that his land was worth only $260,000——leaving him with an absurd ““buffer zone”” that meant the end of Western Seafood—— and turning it over to a partnership owned by heirs of the Blaffer family, who didn’’t even have to pay hard cash for it. The city was going to loan them money to build a private marina. Saying it out loud made it sound unreal. Royall tries to present evidence that the project would not ““mean the end of Western Seafood,”” but he presents no evidence that the facts in this statement are false, including the $260,000, the use of eminent domain, giving the property to Royall’’s family, the fact that they would not have to pay cash, or even the fact that Wright Gore Jr. believed the project

21

See Stmts 9-12, 15, 18, 20-21, 25-29, 30, 32-44, 47-49, 52, 54-60, 62-69, 81, 82, 84, 85 (Appx. at Tab 1). Page 40

would destroy the business. 22 See C.R. at 2799-2708. As discussed above, the evidence Royall relies upon for ““falsity”” of these predictions is inadmissible hearsay. Part III.B. If the Court agrees it is inadmissible, then Royall has no evidence of falsity at all. However, even if the Court believes the evidence is admissible, it cannot carry Royall’’s burden on the no-evidence motion. Royall offered deposition testimony in an effort to show that the marina project would not disrupt navigation on the river and thus not harm Western Seafood’’s business. 23 C.R. at 2784-86. Because the future of Western Seafood’’s business is unverifiable, Royall’’s supposed ““evidence”” concerning his opinion of that future is wholly irrelevant. G. Statements about Royall’’s positions and companies are not defamatory.

Two statements identified by Royall as defamatory say that he sat on the board of another company, Sun Resorts. See Stmts. 17, 22. One says that his company, Freeport Waterfront Properties, was formed in March 2002, shortly before a new Freeport master plan suggesting a marina on the project site. See Stmts. 45. Defamatory Meaning: Such statements are not capable of defamatory meaning. Falsity: Royall introduced evidence that he did sit on the advisory board of Sun Resorts. 2d Supp. C.R. at ____ (Pl.’’s Ex. 8). His objection is that he thinks Main should have mentioned that he did not sit on the board prior to the marina project but joined when
The other predictive statements for which Royall provides no evidence of falsity other than on the issue of whether the Gores’’ business will be destroyed are Stmts. 6, 8-13, 15, 16, 18, 20, 25, 29, 30, 32-35, 40-43, 4752, 54-57, 59, 60, 62-69, 73, 75, 81, 84-85. There were also several statements Royall claimed to be defamatory that discuss the marina project and river navigation. See Stmts. 26, 27, 36-39, 58. 23 Royall also introduces deposition testimony to show that the condemnation would not take the actual shrimp packing house but only adjacent land. 2d Supp. C.R. at ____ (Pl.’’s Exs. 3 and 13). As Bulldozed makes this same point repeatedly, see, e.g., Stmts. 25, 30, 32, 34, 40, 44, the deposition testimony does not show anything in the book to be false.
22

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Sun Resorts joined the project, at Sun Resorts’’ request. 2d Supp. C.R. at ____ (Pl.’’s Ex. 8). This additional fact does not render Main’’s account false. See, e.g., Winfrey, 201 F.3d at 689 (omitting additional explanatory facts not defamatory). Moreover, Royall offered no evidence of the date of formation of Freeport Waterfront Properties or the master plan. H. Saying the city approached Royall about the project is not defamatory.

There are several statements that say the city of Freeport initiated the marina project and approached Royall’’s family about doing it. See Stmts. 5, 53, 70, 89. Royall claims, incorrectly, that these say that he initiated the project. C.R. at 2792-94.24 He then argues that he did not initiate the project. C.R. at 2793-94. Defamatory Meaning: Royall claims the defamation lies in the claim that he initiated the project. This statement would not be defamatory, but it does not matter, because Appellants have consistently said that Royall was approached by the city. Falsity: In support of his claim that he did not initiate the project, Royall cites to non-existent evidence. See C.R. at 2793, citing non-existent exhibits G, P, and Y. I. Saying there was no competitive bidding for the project is not defamatory.

Royall also objects to statements in the book that the marina project was not subject to competitive bidding. See Stmts. 31, 46. Of and Concerning: There is no suggestion in the book that Royall was responsible for whether the city opened the project up to competitive bidding. Competitive bidding, or lack thereof, is an action of the city of Freeport, not Royall.
24

Royall also claims that Stmts. 4, 6, 7, 19, 23 say he initiated the project. See C.R. at 2792-93. None of these statements say anything about who initiated the project, or the agreement, or eminent domain. Page 42

Defamatory Meaning: These statements are not about Royall and thus not capable of defamatory meaning as to him. Falsity: Royall’’s evidence shows that there was no competitive bidding. Royall relies upon a statement by Lee Cameron, former director of the Freeport EDC, saying that he once phoned another developer to see if that person would be interested in the project. 2d Supp. C.R. at ____ (Pl.’’s Ex. 7). Main says ““there is nothing in the public record to suggest that the city ever considered any other builder, much less opening up the process to competitive bidding.”” See Stmt. 46. Sequentially approaching two developers is not ““competitive bidding.”” The fact that Cameron once made an unsuccessful phone call to another developer does not disprove Main’’s statement that there is nothing in the public record. Cameron’’s affidavit confirms the truth of Main’’s statements about the lack of competitive bidding on the project. J. ““He seemed to be calling on behalf of Walker Royall”” is not defamatory.

Royall also claims that he was defamed by a passage about a phone call from Lee Cameron to Wright Gore, Jr. The book quotes Wright Gore, Jr. as saying ““he seemed to be calling on behalf of Walker Royall.”” See Stmt. 19. Falsity: To supposedly contradict this, Royall presents a statement from Cameron that says Bulldozed makes ““a claim that I [Cameron] called Wright Gore, Jr., and claimed to be representing Walker Royall. I never made any such statement.”” 2d Supp. C.R. at ____ (Pl.’’s Ex. 7). But the book never says that Cameron made such a statement. It quotes Gore Jr. quoting Cameron as saying ““Walker wants to buy this property.”” Cameron’’s affidavit does not deny he said that Walker wanted to buy the property.
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V.

Royall Has Produced No Evidence of a Defamatory ““Gist”” of Bulldozed. Royall contends he has been defamed by the ““gist”” of Bulldozed. His discussion of the

gist of the book focuses not on the text of the book, but on summaries of the book from the book cover and other documents. See C.R. at 2780-83 (citing Stmts. 1-3, 73-85). He also incorporates his discussion of certain other statements by reference. See C.R. at 2794-95, 2807. Royall’’s ““gist”” claim fails, and the trial court should have granted Appellants’’ motion for summary judgment. First, although titled a claim about ““gist,”” Royall’’s claim badly misunderstands Texas law on gist claims. He entirely fails to argue, as this Court requires, that the book got the details right but the gist wrong. Second, even assuming Royall has brought a proper gist claim, Appellants were entitled to summary judgment on that claim. Royall’’s allegedly defamatory ““gist”” is simply a differing opinion about the marina project, not implied facts. It cannot give rise to a defamation claim. Even if one considers in their own right the statements from the book cover, press releases, websites, independent book review, and editorial that Royall identifies as conveying the gist of the book, they are unverifiable statements of opinion and protected by the First Amendment. Additionally, Royall has presented no evidence that the gist of the book is false. A. Royall has not brought a proper ““gist”” claim.

A claim that one has been defamed by the gist of a publication is a unique claim under Texas law. As described by both the Texas Supreme Court and this Court, it is a claim that a publication has got the details right but has, ““by omission or misleading juxtaposition connote[d] false facts even though it does not state them directly.”” Turner v.

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KTRK Television, Inc., 38 S.W.3d 103, 116 (Tex. 2000). This Court, interpreting Turner, has held that a plaintiff failed to bring a proper gist claim where, as here, there was no allegation that the publication ““got the details right but fail[ed] to put them in the proper context, thereby getting the ‘‘gist’’ wrong.”” Wheeler v. New Times, Inc., 49 S.W.3d 471, 476 (Tex. App.—— Dallas 2001, no pet.); see also Associated Press v. Boyd, No. 05-04-01172-CV, 2005 Tex. App. LEXIS 3715, at *4-5 (Tex. App.——Dallas May 16, 2005, no pet.) (mem. op.) (explaining Turner to mean that ““the plaintiff may recover even if the discrete facts are literally or substantially true, provided they are published in such a way that they create a substantially false and defamatory impression by omitting material facts or juxtaposing facts in a misleading way”” (Appx. at Tab 8)). Royall has not brought this type of claim. In response to the no-evidence motion, he did not argue that Main’’s book got the details right but created a false and defamatory impression of fact. He did not identify facts the book supposedly omitted or juxtapositions that created a misleading impression. See Turner, 38 S.W.3d at 116. The failure to engage in this analysis contrasts sharply with Turner, which engaged in painstaking textual analysis to show how the juxtaposition of sentences and the omission of certain facts conveyed a false factual impression——that the plaintiff, a lawyer, had known about a fraudulent scheme undertaken by a client. See Turner, 38 S.W.3d at 117-19. Because Royall has failed to make any such showing here, his gist claim fails as a matter of law. B. Royall’’s gist claim improperly objects to unverifiable opinion, not implied facts.

In his response to the no-evidence motion, Royall identified what he believes to be the false and defamatory statements of fact that he claims are conveyed by the book.
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According to Royall, Bulldozed claimed ““that plaintiff and city of Freeport were attempting to take away the business of Western Seafood, which [it] repeatedly describe[d] as owned by three generations of the Gore family, and property that the Gore family owned for 56 years. [Bulldozed falsely characterized] the marina plan as a conflict between the ‘‘unholy alliance’’ between plaintiff and the city government on the one hand, and the three generation family business on the other[.]”” C.R. at 2784. This gist is false, Royall claims, because: Bulldozed says that the Gore family owned the particular tract to be taken for 56 years, but in fact, the Gores had not owned the tract that long; they began leasing it in the 1980s and purchased it later. C.R. at 2783-84. The city only ““planned to include in the marina development”” 330 feet of the Gores river frontage, and, according to Royall, Main portrays this land as part of the shrimp processing plant, which it is not. C.R. at 2784. ““It was false to state that plaintiff and Freeport were trying to take the business itself and turn it into a marina,”” because Freeport was taking only a part of the land, which did not contain ““the plant or docks themselves.”” C.R. at 2784. Bulldozed claims that the loss of the 330 feet of river frontage would block necessary access to the unloading docks, but in fact ““qualified”” shrimp boat captains would still be able to access the docks if they were ““willing to try.”” C.R. at 2784-85. With regard to the first of these points, Royall does not dispute that the Gore shrimping business is a three-generation family business. He just points out that the Gores (or their business, Western Seafood) have owned the particular tract the city tried to condemn for less than 50 years. This is the kind of trivial distinction that courts routinely ignore. See, e.g., Morris v. Dallas Morning News, 934 S.W.2d 410, 416 (Tex. App.——Waco 1996, writ denied) (““law on defamation overlooks minor inaccuracies and concentrates upon substantial truth”” (citing Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991))). Moreover, although the quotes provided by Royall certainly talk about the multi-generation business, not one of them states that the particular tract of land being condemned had been

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owned for either three generations or 56 years. See C.R. at 2780-83. As to Royall’’s claim that the book says the land being taken included the shrimp processing plant or packing house, again, none of the quotes provided by Royall actually say that. See C.R. at 2780-83. And, indeed, the book is quite clear that the city was not taking any of the processing plant or packing house but instead was taking other waterfront land. See, e.g., C.R. at 1035, 1041, 1044, 1045, 1049, 1056 This leaves the same argument discussed in Part IV.F above——the Gores thought the project would destroy their business and Royall disagreed. Bulldozed largely takes the Gores’’ side in this disagreement. As discussed above, this type of prediction of the future effect of a public project on an existing business is a classic example of ““predictive opinion”” that cannot be proven true or false and thus cannot be defamatory. Moreover, nonfiction books frequently tell their stories from the perspective of certain people, and it is not defamatory to do so. See, e.g., Riley v. Harr, 292 F.3d 282, 297-98 (1st Cir. 2002) (describing one person’’s opinion that plaintiff’’s acts had killed children not defamatory); Liles v Finstad, No. 01-9400258-CV, 1995 Tex. App. LEXIS 1719 at *24-25 (Tex. App.——Houston [1st Dist.] Aug. 3, 1995, writ denied) (describing one person’’s opinion that police could not stop murder due to plaintiff’’s failure to convey tipoff not defamatory) (Appx. at Tab 15). The true gist of Bulldozed is political and social criticism of the use of eminent domain for private development. Royall is certainly entitled to disagree. But he cannot, by way of this lawsuit, seek to elevate that disagreement to a claim for defamation——much less attempt to suppress Appellants’’ speech by banning the book altogether.

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C.

Royall presented no evidence that the gist of Bulldozed is false.

As already demonstrated supra at Part IV.F, Royall’’s evidence that the Gores’’ business would not be destroyed does not overcome his no-evidence summary judgment burden of proving falsity. He has presented no other evidence that the ““gist”” of the book is false. Accordingly, the trial court should have granted summary judgment for Appellants. Issue No. 6 Restated: In response to Appellants’’ no-evidence summary judgment motion, did Royall offer competent summary judgment evidence that Appellants aided, abetted, or ratified allegedly defamatory speech by Mark Lardas? VI. Royall Produced No Evidence That Appellants Aided, Abetted, or Ratified Defamation in Mark Lardas’’ Book Review of Bulldozed. Royall also alleged that Appellants ““aided and abetted”” and ““ratified”” the publication of what he claims to be a defamatory book review written and published by now-dismissed defendants, Mark Lardas and Southern Newspapers. C.R. at 27-8. Appellants moved for summary judgment that Royall had no evidence that Appellants aided and abetted or ratified the defamation of anyone else. C.R. at 923. Royall produced no evidence that Appellants aided, abetted, or ratified the book review. See C.R. at 2811-15. The trial court erred in denying summary judgment. PRAYER For the foregoing reasons, and pursuant to Texas Rule of Appellate Procedure 43, Appellants Carla T. Main and Encounter for Culture and Education, Inc., ask this Court to sustain the issues presented, hold that the trial court erred by overruling their objections to Royall’’s summary judgment evidence, reverse the district court’’s orders denying their motions for summary judgment, and render the judgment the trial court should have rendered. Appellants request all other appropriate relief to which they are entitled.

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Respectfully submitted, INSTITUTE FOR JUSTICE ________________________________ Matthew R. Miller (TX Bar No. 24046444) Wesley Hottot (TX Bar No. 24063851) Institute for Justice Texas Chapter 816 Congress Avenue, Suite 960 Austin, TX 78701 (512) 480-5936 (512) 480-5937 (fax) [email protected] [email protected] Dana Berliner (DC Bar No. 447686)* Institute for Justice 901 N. Glebe Road, Suite 900 Arlington, VA 22203 (703) 682-9320 (703) 682-9321 (fax) [email protected] John J. Little (TX Bar No. 12424230) Megan K. Dredla (TX Bar No. 24050530) Little Pedersen Fankhauser LLP 901 Main Street, Suite 4110 Dallas, TX 75202 (214) 573-2300 (214) 573-2323 (fax) ATTORNEYS FOR DEFENDANTS-APPELLANTS Carla T. Main and Encounter for Culture and Education, Inc. *Admitted pro hac vice

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CERTIFICATE OF SERVICE On March 18, 2010, in compliance with Texas Rule of Appellate Procedure 9.5, I served a copy of this brief upon all other parties to the trial court’’s judgment by first-class United States mail, properly posted and deliverable as follows: Robert B. Gilbreath Hawkins, Parnell & Thackston, LLP 4514 Cole Avenue, Suite 500 Dallas, TX 75205 Counsel of Record for Appellee H. Walker Royall Patrick Zummo 3900 Essex Lane, Suite 800 Houston, TX 77027

_________________________________ Matthew R. Miller

APPELLANTS’’ APPENDIX

APPELLANTS’’ APPENDIX TABLE OF CONTENTS Table of Statements 1. Table of Allegedly Defamatory Statements

Relevant Trial Court Orders 2. 3. 4. Order Denying Defendants’’ Motion for Partial Summary Judgment Order Denying Defendants’’ No-Evidence Motion for Summary Judgment Order Regarding Defendants’’ Objections to Evidence Offered In Support of Plaintiff’’s Responses to Defendants’’ Motion for Partial Summary Judgment and NoEvidence Motion for Summary Judgment

Relevant Statutory and Constitutional Authority 5. 6. 7. Tex. Civ. Prac. & Rem. Code §73.001 U.S. Const. Amend. 1 Tex. Civ. Prac. & Rem. Code § 51.014(a)(6)

Unpublished and Memorandum Opinions and Other Judgments Cited in Brief 8. 9. 10. 11. 12. 13. 14. Associated Press v. Boyd, No. 05-04-01172-CV, 2005 Tex. App. LEXIS 3715 (Tex. App.——Dallas May 16, 2005, no pet.) (mem. op.) Brock v. Tandy, No. 2-08-400-CV, 2009 Tex. App. LEXIS 5171 (Tex. App.——Fort Worth July 2, 009, pet. denied) (mem. op.) Commerce Commercial Leasing, LLC v. Broward Title Co., No. 04-CV-04280, 2005 U.S. Dist. LEXIS 9990 (E.D. Pa. May 25, 2005) 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) Freeport Econ. Dev. Corp. v. Western Seafood Co., No. CI-032664 (Co. Ct. at Law No. 3, Brazoria County, Tex. November 29, 2006) Freeport Econ. Dev. Corp. v. Western Shellfish Co., No. CI-032662 (Co. Ct. at Law No. 2, Brazoria County, Tex. February 13, 2007) 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.)

15. 16. 17. 18. 19.

Liles v. Finstad, No. 01-94-00258-CV, 1995 Tex. App. LEXIS 1719 (Tex. App.—— Houston [1st Dist.] Aug. 3, 1995, writ denied) Plotkin v. Joekel, No. 01-06-00624-CV, 2009 Tex. App. LEXIS 7709 (Tex. App.—— Houston [1st Dist.] Sept. 25, 2009, pet. denied) Republic Tobacco L.P. v. N. Atl. Trading Co., 2007 U.S. Dist. LEXIS 38079 (N.D. Ill. 2007) Sansing v. Garcia, No. 13-08-00211-CV, 2009 Tex. App. LEXIS 8172 (Tex. App.—— Corpus Christi Oct. 22, 2009, no pet.) (mem. op.) Vice v. Kasprzak, No. 01-08-00168-CV, 2009 Tex. App. LEXIS 7725 (Tex. App.—— Houston [1st Dist.] Oct. 1, 2009, no pet. h.)

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