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APPELLANTS REQUESTORAL ARGUMENT
05-09-01503-CV
IN THE COURT OF APPEALSFOR THE FIFTH DISTRICT OF TEXAS
Dallas, Texas
CARLA T. MAIN and ENCOUNTER FOR CULTURE AND EDUCATION, INC.,
Defendants—Appellants
v.
H. WALKER ROYALL,Plaintiff—Appellee,
On Accelerated Appeal From The 44th Judicial District CourtDallas County, Texas
Trial Court Cause No. DC-08-13480-BHonorable Carlos Cortez Presiding
APPELLANTS’ REPLY BRIEF
Matthew R. Miller (TX Bar No. 24046444) Wesley Hottot (TX Bar No. 24063851)Institute for Justice Texas Chapter816 Congress Avenue, Suite 960 Austin, TX 78701(512) 480-5936(512) 480-5937 (fax)
Dana Berliner (DC Bar No. 447686)*Institute for Justice901 N. Glebe Road, Suite 900 Arlington, VA 22203(703) 682-9320(703) 682-9321 (fax)
*Admitted pro hac vice
John J. Little (TX Bar No. 12424230)Megan Dredla (TX Bar No. 24050530)Little Pedersen Fankhauser LLP901 Main Street, Suite 4110Dallas, TX 75202(214) 573-2300(214) 573-2323 (fax)
COUNSEL FOR APPELLANTSCARLA T. MAIN ANDENCOUNTER FOR CULTURE
AND EDUCATION, INC.
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TABLE OF CONTENTS
Page
Index of Authorities .............................................................................................................................. iv
Introduction ............................................................................................................................................. 1
I. This Court has jurisdiction over this appeal by an author and book publisher ...2
A. Book authors and publishers are members of the “print media.”.............3
1. Courts treat book authors and publishers as members of the“print media” and “media defendants.”............................................3
2. The legislative history suggests that the statute applies to all“published” material .............................................................................4
3. Texas courts have not limited the interlocutory appeal statute tonewspapers, radio, or television..........................................................5
B. This Court has jurisdiction over all of Appellants’ claims ..........................6
II. Royall has not shown he does not bear the burden of proving falsity..................7
A. No court has adopted Royall’s legal standards for determining whether
someone is a limited-purpose public figure...................................................8
1. The voluntariness inquiry properly looks at whether Royall took voluntary action that led to his involvement in the controversy,not at whether he knew the project would be controversial .........8
2. The Court should look at whether there was a controversy atthe time Appellants published the allegedly defamatory statements, not when Royall first signed the developmentagreement ...............................................................................................11
B. Royall fails to show either that Appellants are not media defendants orthat the Freeport marina project was not a matter of public concern......11
1. Royall offers no argument that Appellants are not “mediadefendants” for constitutional purposes...........................................11
2. Appellants have demonstrated that the Freeport marina project was of significant public concern .......................................................12
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III. Royall has not even tried to show that Appellants wrote a single statement thatsatisfies all four elements of defamation on which Appellants brought a no-evidence motion..............................................................................................................14
A. Royall has not even argued that Appellants’ statements are verifiableassertions of fact ................................................................................................15
B. Royall has not produced evidence that the supposedly defamatory statements that do not refer to him are “of and concerning” him ...........16
C. Royall has not produced evidence that each supposedly defamatory statement is capable of defamatory meaning ................................................17
D. Royall has not produced evidence that each supposedly defamatory statement is false ................................................................................................18
E. Royall concedes that Appellants are entitled to summary judgment onthe statements that Royall does not mention................................................18
F. Appeals from denials of no-evidence summary judgment motions arenot all-or-nothing proceedings ........................................................................19
G. Royall has not shown that any of the disputed evidence wasadmissible............................................................................................................20
IV. Royall did not produce evidence in support of his gist claim.................................22
A. Royall did not make a proper gist claim.........................................................22
B. Royall produced no evidence that the gist of the book is one of verifiable fact or that it is false.........................................................................23
V. Royall has not shown he introduced evidence of each of the four elements forthe 91 individual statements..........................................................................................24
A. Greed, lust, and “unholy alliance” ..................................................................24
B. Stealing and putting Western Seafood out of business ...............................26
C. The “sweetheart deal” .......................................................................................27
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VI. “Aiding,” “abetting,” and “ratifying” are contingent claims withoutindependent elements ....................................................................................................30
Prayer..........................................................................................................................................................30
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INDEX OF AUTHORITIES
Case Law Page(s)
Am. Broad. Cos. v. Gill ,
6 S.W.3d 19 (Tex. App.—San Antonio 1999, pet. denied)(disapproved on other grounds) .............................................................................................7
Astoria Indus. of Iowa, Inc. v. SNF. Inc.,223 S.W.3d 616 (Tex. App.—Fort Worth 2007, pet. denied)............................................7
BE & K Constr. Co. v. NLRB,536 U.S. 516 (2002) ...................................................................................................................8
Bentley v. Bunton ,
94 S.W.3d 561 (Tex. 2002).....................................................................................................12
Bose Corp. v. Consumers Union of U.S., Inc.,466 U.S. 485 (1984) .................................................................................................................20
Brock v. Tandy ,2009 Tex. App. LEXIS 5171 (Tex. App.—Fort Worth July 2, 2009, pet denied)(mem. op.) ...............................................................................................................................23
Brueggemeyer v. Am. Broad. Cos., Inc.,684 F. Supp. 452 (N.D. Tex. 1988) ................................................................................. 9, 10
Castillo v. Flores ,No. 01-05-00760-CV, 2006 Tex. App. LEXIS 1627(Tex. App.—Houston [1 Dist.] Mar. 2, 2006, no pet.) .....................................................19
Cont’l Airlines, Inc. v. Kiefer ,920 S.W.2d 274 (Tex. 1996)............................................................................................19, 20
Cox Tex. Newspapers, L.P. v. Wootten ,59 S.W.3d 717 (Tex. App.—Austin 2001, pet. denied).......................................................7
Delta Air Lines, Inc. v. Norris ,949 S.W.2d 422 (Tex. App.—Waco 1997, writ denied)............................................... 7, 20
DiBella v. Hopkins ,403 F.3d 102 (2d Cir. 2005) ...................................................................................................26
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Page(s)
Dudrick v. Dolcefino,No. 14-96-01181-CV, 1998 Tex. App. LEXIS 7682 (Tex. App.—Houston[14th Dist.] Dec. 10, 1998, pet. denied) (not designated for publication) .......................9
Dyer v. Shafer, Gilliland, Davis, McCollum & Ashley, Inc.,779 S.W.2d 474 (Tex. App.—El Paso 1989, writ denied) ................................................21
Gateway Logistics Group, Inc. v. Dangerous Goods Mgmt. Australia Pty, Ltd ,No. H-05-2742, 2008 U.S. Dist. LEXIS 34246(S.D. Tex. April 25, 2008) ......................................................................................................25
Gaylord Broad. Co. v. Francis ,7 S.W.3d 279, 285-86 (Tex. App.—Dallas 1999, pet. denied)...................................22-23
Harvest House Publishers v. Local Church ,190 S.W.3d 204 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)..............................3
Hasty Inc. v. Inwood Buckhorn Joint Venture ,908 S.W.2d 494 (Tex. App.—Dallas 1995, writ denied) ...................................................22
Hennigan v. I.P. Petroleum Co., Inc.,858 S.W.2d 371 (Tex. 1993) (per curiam)............................................................................15
Hutchinson v. Proxmire
443 U.S. 111 (1979) ...........................................................................................................10-11
In re N.E.B.251 S.W.3d 211, 212 (Tex. App.—Dallas 2008, no pet.)..................................................20
Kaufman v. Islamic Soc’y of Arlington ,291 S.W.3d 130 (Tex. App.—Fort Worth 2009, pet. denied)........................................ 5-6
Knox v. Taylor ,992 S.W.2d 40 (Tex. App.—Houston [14th Dist.] 1999, no pet.) ..................................28
Leutwyler v. Royal Hashemite Court of Jordan ,184 F. Supp. 2d 303 (S.D.N.Y. 2001) ....................................................................................4
Liles v. Finstad ,1995 Tex. App. LEXIS 1719(Tex. App.—Houston [1st Dist.] 1995, writ denied)...........................................................4
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Page(s)
Little v. Breland ,93 F.3d 755 (11th Cir. 1996) (not designated for publication) ..........................................8
Lohrenz v. Donnelly ,350 F.3d 1272, 1281 (D.C. Cir. 2003) ..................................................................................10
Marty’s Food & Wine, Inc. v. Starbucks Corp.,No. 05-01-00008-CV, 2002 WL 31410923(Tex. App.—Dallas 2002, no writ) .......................................................................................30
Masson v. New Yorker Magazine ,501 U.S. 496 (1991) ...................................................................................................................7
Metcalf v. KFOR-TV ,828 F. Supp. 1515 (W.D. Okla. 1992) .................................................................................26
Mfr. Home Cmtys., Inc. v. County of San Diego,544 F.3d 959 (9th Cir. 2008)............................................................................................25-26
Morrill v. Cisek,226 S.W.3d 545 (Tex. App.—Houston [1st Dist.] 2006, no pet.)...................................28
Musser v. Smith Prot. Servs., Inc.,723 S.W.2d 653 (Tex. 1987)...................................................................................................28
Nationwide Bi-Weekly Admin., Inc. v. Belo Corp.,512 F.3d 137 (5th Cir. 2007)............................................................................................... 3-4
Newspapers, Inc. v. Matthews ,339 S.W.2d 890 (Tex. 1960)...................................................................................................17
N.Y. Times v. Sullivan ,376 U.S. 254 (1964) .................................................................................................................13
Nike, Inc. v. Kasky ,539 U.S. 654 (2003) ...................................................................................................................6
Pardo v. Simons ,148 S.W.3d 181 (Tex. App.—Waco 2004, no pet.) .............................................................6
Partington v. Bugliosi ,56 F.3d 1147 (9th Cir. 1995)............................................................................................. 4, 12
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Page(s)
Phila. Newspapers, Inc. v. Hepps ,475 U.S. 767 (1986) ....................................................................................................6, 7, 8, 13
Riley v. Harr ,292 F.3d 282 (1st Cir. 2002) ............................................................................................. 4, 12
Rosanova v. Playboy Enters., Inc.,580 F.2d 859 (5th Cir. 1978)..................................................................................................10
Rosenblatt v. Baer, 383 U.S. 75 (1966) .....................................................................................................................7
Shearson Lehman Hutton, Inc. v. Tucker ,806 S.W.2d 914 (Tex. App.—Corpus Christi 1991, writ dism’d w.o.j.).........................28
Texas Monthly, Inc. v. Transamerican Natural Gas Corp.,7 S.W.3d 801 (Tex. App.—Houston [1st Dist.] 1999, no pet.) .........................................6
Trotter v. Jack Anderson Enters.,818 F.2d 431 (5th Cir. 1987)....................................................................................................9
Tucker v. Fischbein ,237 F.3d 275 (3d Cir. 2001) ...................................................................................................26
Turner v. KTRK Television, Inc.,38 S.W.3d 103 (Tex. 2000)................................................................................................ 7, 23
Turner v. Perry ,278 S.W.3d 806 (Tex. App.—Houston [14 Dist.] 2009, pet. denied).............................20
Univ. of Tex. Sw. Med. Ctr. v. Margulis ,11 S.W.3d 186 (Tex. 2000).....................................................................................................20
Vice v. Kasprzak,2009 Tex. App. LEXIS 7725(Tex. App.—Houston [1st Dist.] 2009, pet. denied) .......................................................7, 9
Waldbaum v. Fairchild Publ’ns, Inc.,627 F.2d 1287 (D.C. Cir. 1980) ...............................................................................................9
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Page(s)
WFAA-TV v. McLemore ,978 S.W.2d 568 (Tex. 1998)...................................................................................................13
Constitutional Provisions
U.S. CONST., amend I.................................................................................................................... passim
Statutes and Rules
Tex. Att’y Gen. Op., No. JC-0109 (Sep. 9, 1999)...........................................................................29
Tex. Civ. Prac. & Rem. Code § 22.021(3) ..........................................................................................6
Tex. Civ. Prac. & Rem. Code § 51.014(a)(6).....................................................................2, 3, 4, 5, 6
Tex. Loc. Gov’t Code § 380 ...............................................................................................................29
Tex. Rev. Civ. Stat. § 5190.6...............................................................................................................29
Tex. R. Evid. 804(a) .............................................................................................................................20
Tex. R. Evid. 804(b)(1)........................................................................................................................20
Other Authorities
Black’s Law Dictionary (8th ed. 2004)..............................................................................................30
Debate on Tex. S.B. 76 on the Floor of the Senate, 73rd Leg. (Feb. 25, 1993) ..........................5
Senate Research Center Bill Analysis for S.B. 76 (August 26, 199 ................................................5
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INTRODUCTION
Appellants Carla T. Main and Encounter Books wrote and published a book about
eminent domain for private development—one of the major political and social issues of our
time. The book describes the Freeport marina project, a project that Appellee Walker Royall
led, and takes the position that use of eminent domain for such a project is wrong. Royall’s
defamation suit encompasses the “gist” of the book, individual statements in the book,
Appellants’ websites, press releases, an opinion-editorial, and a book review about the book.
Appellants brought a no-evidence summary judgment motion, requiring Royall to produce
evidence that the gist and each statement he objected to was (a) verifiable, (b) of and
concerning him, (c) capable of defamatory meaning, and (d) false. In their appellate brief
(App. Br.), Appellants painstakingly explained for each statement and the gist the particular
elements for which Royall had failed to produce evidence.
In the Appellee’s Brief (Resp. Br.), Royall makes no effort to respond with
particularity. Instead, Royall complains that Appellants’ Brief is “torturous,” and asks this
Court to simply affirm without getting into the details. Resp. Br. at 23, 32. When a person
claims defamation from the gist of a 300-page book and 91 individual statements, he must
be prepared to engage in detailed explanation and discussion of evidence. Royall is not
willing to do so. Thus, where Appellants identify three elements that lack evidence for a
statement, Royall sometimes addresses one or two elements and sometimes ignores
Appellants’ arguments entirely.
Notwithstanding Royall’s numerous allegations, the situation facing this Court is
simple: Appellants published a book about a controversial redevelopment project in which
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No court or legislature has ever suggested that books are not “print media.” Moreover, the
First Amendment is the foundation of this appeal, and even if there also were other issues,
Texas courts decide such issues on interlocutory appeal.
A. Book authors and publishers are members of the “print media.”
Texas allows members of the “electronic or print media” to bring interlocutory
appeals challenging denials of summary judgment in defamation actions. Tex. Civ. Prac. &
Rem. Code § 51.014(a)(6). The plain language of the statute includes ordinary non-fiction
books, which are of course “printed.” Royall does not address the statute’s plain language.
Instead, he notes a single snippet of legislative history that lists some types of media and
then claims that this list is exhaustive. In fact, Texas and federal courts treat books as “print
media” and have never held the list Royall relies upon to be exhaustive.
1. Courts treat book authors and publishers as members of the“print media” and “media defendants.”
Royall cites no case that even hints that a book is not a type of “print media” under
Section 51.014(a)(6). Although there is no case specifically holding that books are print
media, at least one Texas appellate court has decided an interlocutory appeal under Section
51.014(a)(6) brought by book authors and publishers without raising any jurisdictional
questions. See Harvest House Publishers v. Local Church , 190 S.W.3d 204, 209 (Tex. App.—
Houston [1st Dist.] 2006, pet. denied).
Federal courts also treat books as “print media.” Discussing the “single publication
rule” in defamation cases, the Fifth Circuit concluded that the Texas Supreme Court would
hold that the rule applied to internet publications, just as it applied to “print media” like
“book[s]”. See Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 144-45 (5th Cir.
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2007); see also Leutwyler v. Royal Hashemite Court of Jordan , 184 F. Supp. 2d 303, 307 (S.D.N.Y.
2001) (interpreting license to publish photographs in “print media” to include books).
Royall himself equates “print media” under Section 51.014(a)(6) with “media
defendant” under federal constitutional law. Resp. Br. at 10-11. Bizarrely, Royall claims that
“media defendants” refers only to “newspapers or broadcasters” and thus “print media”
must also include only newspapers and broadcasters. Resp. Br. at 11. Yet many courts treat
book defendants as “media defendants.” See, e.g., Partington v. Bugliosi , 56 F.3d 1147, 1158
n.16 (9th Cir. 1995) (“statements on matters of public concern . . . are absolutely protected”
where “media defendants are involved,” referring to book author and publisher); Riley v.
Harr , 292 F.3d 282, 288–289 (1st Cir. 2002) (defamation plaintiff bore burden of showing
falsity because author and publisher of book were media defendants); Liles v. Finstad , No. 01-
94-00258-CV, 1995 Tex. App. LEXIS 1719, at *19 (Tex. App.—Houston [1st Dist.] Aug. 3,
1995, writ denied) (not designated for publication) (same).
2. The legislative history suggests that the statute applies to all“published” material.
In opposition to the straightforward conclusion that books are “print media,” Royall
points to a summary describing the purpose of Section 51.014(a)(6) being “to allow a
newspaper, radio station or television station that was sued for libel to make an immediate
appeal of a judge’s refusal to grant a summary judgment” and claims the summary is meant
to provide an exhaustive list of “electronic and print media.” Resp. Br. at 9 (citing House
Research Org., Bill Analysis, Tex. S.B. 76, 73rd Leg., R.S. (1993)). The summary does not
purport to be exhaustive, however, and the courts have not treated it as such.
Other materials in the legislative history show there was no intention to limit “print
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media” solely to newspapers. The Senate Research Center Bill Analysis for S.B. 76 describes
the “Purpose” of the bill as authorizing interlocutory appeals “in cases involving defamation
. . . or arising from a broadcast or written publication .” (August 26, 1993) (emphasis added).
Debate about the bill largely centered on whether the right of interlocutory appeal
should be available to all defamation defendants. Eventually, a compromise amendment was
proposed that broadened S.B. 76’s scope and extended the appeal right to anyone whose
opinion was published, even if that person was not a member of the media. Senator Turner,
the original sponsor of the bill, described the effect of the amendment as follows: “[i]t
extends some right to ordinary citizens as extended to corporations and other businesses in the
business of printing and publishing .” Debate on Tex. S.B. 76 on the Floor of the Senate, 73rd
Leg. (Feb. 25, 1993) (floor tape available from Senate Staff Services) (emphasis added).
The legislative history shows that the right of interlocutory appeal was meant to apply
broadly to any print or electronic media, in order to protect the First Amendment rights of
these persons and prevent the chilling of speech. Books easily fall within this protection.
3. Texas courts have not limited the interlocutory appeal statute tonewspapers, radio, or television.
Texas courts interpret the scope of Section 51.014(a)(6) broadly. At least one
appellate court has interpreted “electronic media” to include not just the “television and
radio stations” mentioned in the single section of the legislative history quoted by Royall, but
also online media. See Kaufman v. Islamic Soc’y of Arlington , 291 S.W.3d 130, 141-42 (Tex.
App.—Fort Worth 2009, pet. denied). In Kaufman , the court rejected the exact argument
advanced by Royall—that because the defendant wasn’t a newspaper, television station, or
radio station, it could not be a member of the “electronic or print media.” See id. at 140 n.21.
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Instead, the court adopted a broad, commonsense interpretation of the statute. It also noted
that the definition of “news medium” in Tex. Civ. Prac. & Rem. Code § 22.021(3) includes
the internet and, specifically, “book publisher[s].” Id. at 142.
Texas courts also treat monthly magazines as members of the “print media,” despite
the fact that they are not mentioned in Royall’s supposedly exhaustive list, either. See, e.g.,
Pardo v. Simons , 148 S.W.3d 181, 184 (Tex. App.—Waco 2004, no pet.) (describing allegedly
defamatory article as appearing in the “March 1997” issue of a publication); Tex. Monthly, Inc.
v. Transamerican Natural Gas Corp., 7 S.W.3d 801, 804 (Tex. App.—Houston [1st Dist.] 1999,
no pet.) (allegedly defamatory article appeared in Texas Monthly ).
Neither courts nor the legislature have shown the slightest inclination to limit the
scope of the interlocutory appeal statute to certain types of media but not others. Books are
the original “print media” of Western civilization, and they are plainly covered by the statute.
B. This Court has jurisdiction over all of Appellants’ claims.
Royall argues that the interlocutory appeal statute only allows interlocutory appeal of
those issues related to the First Amendment. Resp. Br. at 12-14. What Royall fails to
understand is that all of the issues on which Appellants appeal are based “in whole or in
part” on the First Amendment. Tex. Civ. Prac. & Rem. Code § 51.014(a)(6). The public
figure, public concern, and media defendant doctrines (discussed at section II, infra ) all
originate from the First Amendment—as does the concurrent burden-shifting on questions
of falsity and malice. See, e.g., Nike, Inc. v. Kasky , 539 U.S. 654, 663-64 (2003) (Stevens, J.,
concurring) (public figure); Phila. Newspapers, Inc. v. Hepps , 475 U.S. 767, 777 (1986) (public
concern plus media defendant). Similarly, questions about whether a statement is protected
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alternative, he also bears that burden if Appellants are media defendants writing about
matters of public concern. See BE & K Constr. Co. v. NLRB, 536 U.S. 516, 534 (2002); see also
Phila. Newspapers , 475 U.S. at 776-77. All of those conditions are satisfied here.
A. No court has adopted Royall’s legal standards for determining whethersomeone is a limited-purpose public figure.
Royall makes two essential errors in his public figure analysis. First, he argues that
the only way to become a public figure is to knowingly inject oneself into a pre-existing
controversy. Second, he argues that the Court must look at whether the project was
controversial at the time he first became involved, rather than at the time the allegedly
defamatory statements were published. Royall is flat wrong on both of these points and is,
therefore, a limited-purpose public figure with the burden of proving falsity.
1. The voluntariness inquiry properly looks at whether Royall took voluntary action that led to his involvement in the controversy,not at whether he knew the project would be controversial.
Royall says that someone cannot be a public figure unless he “thrust[s] himself to the
forefront of the dispute.” Resp. Br. at 15. Certainly, one way to become a public figure is to
publicly enter a pre-existing public dispute. As Appellants explained, however, courts find
that persons whose actions create a public controversy also are public figures. See App. Br. at
10-12 (citing cases). In response, Royall says only that one of Appellants’ cases, Little v.
Breland , 93 F.3d 755 (11th Cir. 1996), involved an organization that had already experienced
some controversy before the plaintiff voluntarily joined it. Resp. Br. at 21. The key point,
however, was that the plaintiff had taken a leadership role at an organization likely to
experience controversy, Little , 93 F.3d at 758, just as Royall voluntarily became the developer
of a project that was likely to experience controversy. Moreover, in the other cases cited in
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Appellants’ Brief, there is no mention of controversy prior to the plaintiffs’ voluntary
actions. See Vice , 2009 Tex. App. LEXIS 7725, at *30-32; Trotter v. Jack Anderson Enters., 818
F.2d 431, 435-36 (5th Cir. 1987); Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d 1287, 1290 (D.C.
Cir. 1980); Brueggemeyer v. Am. Broad. Cos., 684 F. Supp. 452, 453-54 (N.D. Tex. 1988); see also
Dudrick v. Dolcefino, No. 14-96-01181-CV, 1998 Tex. App. LEXIS 7682, at *2-4 (Tex. App.—
Houston [14th Dist.] Dec. 10, 1998, pet. denied) (not designated for publication).
Royall does not deny that he worked with the city to create the Freeport marina
project nor that he was the leader of that project. There are only three signatures on the
2003 development agreement: Royall’s, the Mayor’s, and that of the director of the economic
development corporation. C.R. at 506. Royall’s own Brief points out that he agreed to “lead
development of the project.” Resp. Br. at 1. As Appellants explained, the project Royall
agreed to lead was inherently controversial, because it involved both eminent domain and a
loan to Royall’s company that amounted to more than 40 percent of the annual city budget.
App. Br. at 2, 11. That agreement plainly states that Royall’s company would acquire the
“Gore Land, whether via the city’s assistance in negotiating a direct purchase of such lands
by the Project Developer or via the City’s exercise of its power of eminent domain and conveyance of such
lands to the Project Developer .” C.R. at 1406 (emphasis added). Not only did Royall sign the
2003 agreement, he continued to amend it well after the controversy appeared in the media.
See App. Br. at 11. Royall’s own voluntary actions—signing the agreement, renewing the
agreement, and leading the project—created the highly controversial marina project.
Royall thinks this is not “voluntary” action because he didn’t know that the project he
voluntarily agreed to lead would be controversial. Resp. Br. at 17-19. When courts look at
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whether someone took voluntary action, they look at whether the person meant to take the
actions he did, not whether he intended that his actions garner negative publicity. See, e.g.,
Rosanova v. Playboy Enters., 580 F.2d 859, 861 (5th Cir. 1978); Brueggemeyer , 684 F. Supp. at 458.
Royall might have hoped that eminent domain wouldn’t be used, or that there would be no
controversy about the use of eminent domain, but he thrust himself to the forefront of the
project, at a time when there had been both local and national controversy about eminent
domain for private development.1 He is a limited-purpose public figure.
Royall’s use of Hutchinson v. Proxmire is unavailing. 443 U.S. 111 (1979). The plaintiff
in Hutchinson was one of many recipients of public grant money but his research was singled
out for a “Golden Fleece Award” by the defendants. Id . at 114. By contrast, Royall was not
one of many people who happened to have a government contract; he was the “lead[er]” of
a major public-private project, which received a large amount of public money and used a
highly controversial government power. See Resp. Br. at 1. Likewise, the Court noted that
the Hutchinson plaintiff did not have access to the media. 443 U.S. at 136. Royall did. He
was interviewed by the local paper and gave presentations at public meetings. See C.R. at
1909-11; 1913-14; 1917-18; 1920; 1929; 1950; 1966-67; and 2614-15.2 Main even tried three
times to interview him for her book. C.R. at 442. Finally, the Court noted that the
Hutchinson plaintiff never “assumed any role of public prominence.” 443 U.S. at 135. Aside
1 Appellants introduced evidence that any developer in the Dallas-Fort Worth area should have recognized that eminentdomain for private development was bound to be controversial in 2003. At least one highly controversial eminentdomain project took place in Royall’s own backyard between 1995-2000, when the city of Hurst used eminent domain toclear homes for the expansion of Northeast Mall. See C.R. at 2534-58 (articles from Dallas Morning News and Fort Worth Star-Telegram ). Texas and national publications also featured similar eminent domain controversies. App. Br. at 11 n.7.
2 Royall also incorrectly asserts that he always avoided publicity. In fact, the record shows at least eight instances whenRoyall was interviewed by the media or presented at public meetings. See C.R. at 1909-11; 1913-14; 1917-18; 1920; 1929;1950; 1966-67; and 2614-15. Further, even someone who avoids the media can become a public figure. See, e.g., Lohrenz v. Donnelly , 350 F.3d 1272, 1281 (D.C. Cir. 2003); Rosanova , 580 F.2d at 861; Brueggemeyer , 684 F. Supp. at 456.
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defendants. See , e.g., Riley , 292 F.3d at 288–89; Partington , 56 F.3d at 1158 n.16. Royall has
cited no case from any court rejecting a book publisher or author as a media defendant.
Encounter, a national book publisher, and Main, an author, are plainly media defendants.
2. Appellants have demonstrated that the Freeport marina project was of significant public concern.
Royall makes no attempt to argue that the gist of the book or the statements he
identifies are not on matters of public concern. Instead, he claims that Appellants “did not
address whether the statements that plaintiff contends are defamatory are about matters of
public concern.” Resp. Br. at 16. This remarkable accusation is refuted by section II.B.1 of
Appellants’ opening brief, which discusses how the gist of the book and the statements
Royall complains about all center around the same set of operative issues: the Freeport
marina project, the use of eminent domain for private development, constitutional rights,
and the proper scope of government action. App. Br. at 13-14. Each of these issues is a
matter of public concern for First Amendment purposes. Id . (citing cases).
Royall’s complaint seems to be that Appellants should have said, “Statement 1 is
about eminent domain for private use, which is a matter of public concern; statement 2 is
about eminent domain for private use, which is a matter of public concern; etc.”3 Royall
cites a single case for this assertion, Bentley v. Bunton , 94 S.W.3d 561, 580 (Tex. 2002). Resp.
Br. at 16. Bentley , however, does not even discuss the issue. See 94 S.W.3d at 579. Although
the page Royall cites uses the phrase “of public concern,” it is talking about the doctrine that
statements of unverifiable opinion on matters of public concern are not actionable as
3 Royall claims, incorrectly, that Appellants’ motion for partial summary judgment did not talk about any of thestatements Royall claims to be defamatory. Resp. Br. at 16. In fact, the “public concern” section talked at length aboutthe gist of the book , C.R. at 962-66, and several of the specific statements Royall identified, C.R. at 951-53, 958.
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defamation. Id. at 580. There is not the slightest hint that the determination of whether a
publication is “of public concern” requires a recitation of each supposedly defamatory
statement when it is apparent from their face that they are all on the same topic.
To the contrary, courts frequently look at the overall publication or purpose of the
publication. For example, in Philadelphia Newspapers , the U.S. Supreme Court described the
“general theme” of the allegedly defamatory newspaper articles, set out a smattering of
quotes, and then later stated in a conclusory fashion that “[h]ere, as in Gertz , the plaintiff is a
private figure and the newspaper articles are of public concern.” 475 U.S. at 769, 776; see also
N.Y. Times v. Sullivan , 376 U.S. 254, 266 (1964) (holding that a challenged advertisement
“expressed opinion, recited grievances, protested claimed abuses, and sought financial
support on behalf of a movement whose existence and objectives are matters of the highest
public interest and concern”); WFAA-TV v. McLemore , 978 S.W.2d 568, 572-73 (Tex. 1998)
(discussing the similar issue of whether there was a public controversy for purposes of public
figure analysis and holding that the topic of why the ATF raid on the Branch-Davidian
compound failed was a matter of public controversy, without discussing the particular
statements alleged to be defamatory).
Appellants did what they were required to do: They discussed why the topics of the
supposedly defamatory statements are each of public concern. Royall provides no argument
that Appellants are incorrect—he merely argues without authority that they should have
framed their contentions in his preferred manner. Thus, even if Royall were not a public
figure (which he is), he would still have the burden of proving falsity because Appellants are
media defendants and the defamatory statements are about issues of public concern.
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III. Royall has not even tried to show that Appellants published a single statementthat satisfies all four elements of defamation on which Appellants broughttheir no-evidence motion.
In their opening brief, Appellants explained that they were entitled to summary
judgment because there is no evidence that any of the 91 allegedly defamatory statements or
the “gist” identified by Royall is (1) a statement of verifiable fact; (2) of and concerning
Royall; (3) capable of defamatory meaning; and (4) false. App. Br. at 27-48. As explained in
the opening brief, a statement or gist must meet all four elements to be defamation, and
Appellants moved on all four. App. Br. at 23. Royall seems irritated by the demand that he
produce evidence on all four elements for the gist and the individual statements. His
response is, roughly, that Appellants conceded there were some verifiable facts in the book
so he does not have to discuss verifiability; that there is some mention of Royall in the book
so he does not have to discuss “of and concerning;” that his interpretation of the book,
without reference to any of its text, is capable of defamatory meaning; and that he does not
have to prove falsity but if he did, he has provided evidence of falsity for a few statements.
Appellants show for each point that Royall has utterly failed to respond to their
arguments or on-point caselaw and that he has not produced evidence of the four elements
for either the gist or any of the individual statements. First, in Part III.A-D, Appellants
discuss Royall’s response on verifiability, of and concerning, defamatory meaning, and
falsity. In Part III.E, Appellants point out that Royall has conceded he was not defamed by
statements he did not identify. In Part III.F, Appellants address Royall’s suggestion that this
Court simply affirm without examining whether Royall has met his no-evidence burden. In
Part III.G, Appellants then show that Royall’s evidence continues to be inadmissible hearsay.
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Part IV then addresses gist, and Part V goes through the individual statements.
A. Royall has not even argued that Appellants’ statements are verifiableassertions of fact.
In their opening brief, Appellants describe the rule that statements cannot be
defamatory unless they are verifiable statements of fact, App. Br. at 18-20, and cite 18 cases
discussing the requirement that a statement be verifiable in order to be defamatory. App. Br.
at 28-40. Appellee’s Brief contains no discussion of any of the cases on verifiability and fails
to address whether any of the 91 statements or the gist are statements of verifiable fact.
Instead, Royall’s sole response is that Appellants “judicially admitted” the factual
nature of some of the 91 statements (which he never identifies) in a heading of an earlier
motion for summary judgment. Resp. Br. at 32-33. That heading read: “Royall complains
about some statements that are factual in nature; but these statements could not possibly
convey a defamatory meaning about Royall.” C.R. at 85.
As a matter of law, a judicial admission must be “deliberate, clear and unequivocal” to
support summary judgment. Hennigan v. I.P. Petroleum Co., 858 S.W.2d 371, 372 (Tex. 1993)
(per curiam). The “admission” identified by Royall is nothing of the sort:
The supposed judicial admission appears in an earlier summary judgment motion,not the motion on appeal in this case. C.R. 46-115.
The actual text of the section under the heading expressly disclaims Royall’sinterpretation—”Because the statements also are predictions of the effect of apublic plan on navigation and the Gores’ business, they are not objectively
verifiable,” C.R. at 91. The brief further explains that the statements are groupedin that particular section for organizational purposes only, “because they soobviously do not concern Royall, but they also could have been included in theearlier ‘opinion’ section above.” C.R. at 91, n.12. The brief even cites cases abouthow similar predictions of future events are not verifiable fact. C.R. at 92.
Royall claims that Appellants admitted that 41 of the 61 pages contain statementsof fact. Resp. Br. at 32. He does not identify which statements on those pages nor
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The motion Royall claims to be an admission of verifiability says exactly the opposite.
It is not a “deliberate, clear, and unequivocal” admission of anything. Royall has offered no
other argument that either the gist or statements are verifiable.
B. Royall has not produced evidence that the supposedly defamatorystatements that do not refer to him are “of and concerning” him.
In their opening brief, Appellants demonstrated that 57 of the 91 supposedly
defamatory statements were not “of and concerning” Royall, because they did not name or
refer to him. App. Br. at 22 & n.12. Rather than addressing any of the statements
specifically, Royall’s Brief makes three unpersuasive arguments: (1) some of the supposedly
defamatory statements appear on pages that mention Royall; (2) summaries of the book refer
to Royall; (3) a former Freeport employee submitted an affidavit saying that “in [his]
reading,” everything in the book related to Freeport is about Royall. Resp. Br. at 34-35; 2d
Supp. C.R. at 183-87. Each of these arguments fails.
First, Royall’s Brief says that “26 of the pages designated in the no evidence motion
expressly mention Walker Royall.” Resp. Br. at 34. But the fact that Royall is mentioned
somewhere on a page is neither here nor there; the question is whether the supposedly
defamatory statement refers to him. A statement is not “of and concerning” Royall simply
because he is mentioned elsewhere on the page.4 See, e.g., Stmt. 62 (“…the City was
condemning one of the oldest employers in Freeport and wiping out real jobs”), which
4 Many of the pages listed in the Appellee’s Brief do not even contain statements that Royall has identified as supposedly defamatory—pages 1031, 1038, 1059-61, 1100, 1220-21, and 1277; Resp. Br. at 34. Some of the other 26 pagesidentified by Royall as “of and concerning” him contain statements that Appellants admit are of and concerning Royall.See C.R. at 1003 (Stmts. 4 & 5), 1005 (Stmt. 8), 1018 (Stmt. 16), 1021 (Stmt. 17), 1030 (Stmt. 19), 1072 (Stmt. 51), 1074(Stmt. 53), & 1261 (Stmt. 70).
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appears on the same page as a discussion of public opposition to loaning $6 million to
Royall.
Royall also seems to argue that all statements in the book must be about him because
descriptions of the book on Appellants’ websites and in their op-ed mention Royall. Resp.
Br. at 34-35. That Royall is referred to in a book summary does not mean that any particular
statement in the book is necessarily of and concerning him. To make that determination,
one must actually read the statements. If they do not mention or refer to Royall, they are
not of and concerning him. “The settled law requires that the false statement point to the
plaintiff and to no one else.” Newspapers, Inc. v. Matthews , 339 S.W.2d 890, 894 (Tex. 1960).
Finally, Royall claims that anything in the book that relates to Freeport is of and
concerning him, relying on the affidavit of former city economic development corporation
employee Lee Cameron. Resp. Br. at 35. As explained in Appellants’ opening brief, App.
Br. at 22-23, the Cameron affidavit is generic, conclusory, and inadequate to establish the
wholly implausible proposition that every discussion of the marina project in the book is
about Royall. Royall quotes the language in the Cameron affidavit, without acknowledging
Appellants’ argument that the affidavit should be disregarded and without addressing any of
the on-point caselaw cited by Appellants. Resp. Br. at 35.
C. Royall has not produced evidence that each supposedly defamatorystatement is capable of defamatory meaning.
Royall uses the “capable of defamatory meaning” section of his brief as the only
section to address the individual statements he claims to be defamatory. Resp. Br. at 36-41.
This is a confusing structure, as Appellee should be trying to show that each statement meets
all four elements on which Appellants moved, not just one. Moreover, Royall fails to
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address the only two points that Appellants made in their Brief about defamatory meaning—
statements that are not of and concerning Royall are not capable of defamatory meaning as
to him and some of the statements identified by Royall as supposedly defaming him are too
vague to be capable of defamatory meaning. App. Br. at 23-24. Thus, Royall has not
shown that Appellants’ statements were capable of defamatory meaning.
D. Royall has not produced evidence that each supposedly defamatorystatement is false.
As explained in Appellants’ Brief, Royall bears the burden of showing falsity if either
(a) Royall is a limited-purpose public figure or (b) Appellants are media defendants and the
subject is one of public concern. App. Br. at 5-15, 15 n.8. Royall responds by stating that it
was not his burden to show that the statements are false. Resp. Br. at 33. On those few
occasions where Royall discusses falsity at all, Resp. Br. at 28-31, 38, 41, his brief simply
ignores and fails to respond to Appellants’ discussion. See Parts V.B & V.C, infra .
E. Royall concedes that Appellants are entitled to summary judgment on
the statements that Royall does not mention.
In their opening Brief, Appellants explained that Royall identified no statements that
supposedly defamed him on the vast majority of pages of the book and provided no
evidence that these pages contained statements that met the four elements of defamation.
App. Br. at 26-27. Appellants thus asked the trial court to grant no-evidence summary
judgment that those pages did not defame him, C.R. at 2832-33, and appealed the court’s
refusal to do so. This is an important point, because these pages contain the facts that form
the basis of many of the opinions that Royall finds objectionable. App. Br. at 26. In his
Brief, Royall makes no mention of this issue, apparently conceding that summary judgment
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is appropriate for pages on which he identified no supposedly defamatory statements.
F. Appeals from denials of no-evidence summary judgment motions arenot all-or-nothing proceedings.
Royall argues, incorrectly, that this Court has only two options: reverse and hold that
summary judgment be granted in its entirety or, if there is any minor claim on which
summary judgment was properly denied, affirm the trial court’s denial of everything. Resp.
Br. at 23. This argument is based on Royall’s mistaken contention that Appellants failed to
move for summary judgment on an op-ed, one press release, and the allegation that
Appellants aided and abetted each other. As Appellants explained, they did move for
summary judgment on all of these points. App. Br. at 17, n.11.5 But even if this Court
agreed that Appellants did not move on these few items, a ruling in Appellants’ favor on the
book, gist, websites, book review, advertisements, and other press release would resolve
every major issue in the case, leaving only minor proceedings in the trial court afterward.
Moreover, Texas caselaw directly contradicts Royall’s assertion that appellate courts
take an all-or-nothing approach to denials of summary judgment. In fact, courts routinely
affirm in part and reverse in part on appeals from denials of summary judgment. See, e.g.,
Castillo v. Flores , No. 01-05-00760-CV, 2006 Tex. App. LEXIS 1627, at *40-41 (Tex. App.—
Houston [1st Dist.] Mar. 2, 2006, no pet.) (reversing in part “because Flores alleged seven
separate incidents of defamation—each of which allegations appears separable without
unfairness to the parties, and on only some of which allegations the trial should have
5 In addition to the book, websites, and advertising, Appellants moved for no-evidence summary judgment on “all otheritems identified by Plaintiff as containing allegedly defamatory statements.” C.R. at 903; see also Continental Airlines, Inc. v.Kiefer , 920 S.W.2d 274, 276 (Tex. 1996) (holding that a motion that says the defendant is moving “on all claims broughtby” the plaintiff, constitutes a motion on all claims even if the motion omits argument on one of them). Moreover,moving that there was no defamation necessarily includes a lack of aiding and abetting the nonexistent defamation.
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rendered summary judgment”); Delta Air Lines, Inc. v. Norris , 949 S.W.2d 422, 430 (Tex.
App.—Waco 1997, writ denied) (court affirmed some claims, reversed and granted summary
judgment on others, and remanded for trial on the remaining issues). Moreover, a party can
seek review of a denial of partial summary judgment in a defamation case, as well as denial of
summary judgment in its entirety. See Univ. of Tex. Sw. Med. Ctr. v. Margulis , 11 S.W.3d 186,
187-88 (Tex. 2000) (holding that court of appeals had jurisdiction over interlocutory appeal
of denial of motion for partial summary judgment); Turner v. Perry , 278 S.W.3d 806, 815, 825-
26 (Tex. App.—Houston [14 Dist.] 2009, pet. denied) (on appeal of denial of partial
summary judgment, the court reversed and rendered judgment on some claims, while
affirming others and remanding for trial).6 Contrary to Royall’s urging that this Court avoid
the important First Amendment issues, appellate courts have an obligation to examine the
entire record and ensure that the judgment does not infringe free speech. Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984).
G. Royall has not shown that any of the disputed evidence was admissible.
Appellants showed in their Brief that five pieces of evidence—three depositions and
two unsworn statements—were inadmissible hearsay. App. Br. at 25-26. As to the
depositions, Appellants showed that Texas Rules of Evidence 804(a) and (b)(1) require a
party to show that the deponent is unavailable before admitting a deposition from a prior
case. App. Br. at 25. Royall argues that one case holds that depositions from other cases are
6 In support of the claim that appeals from denials of summary judgment are all-or-nothing affairs, Royall cites twocases, neither of which says anything of the kind. See Resp. Br. at 23. Cont’l Airlines , 920 S.W.2d at 276-77, involved adetermination of whether a judgment was final for purposes of appellate jurisdiction. One can bring an interlocutory appeal from a non-final judgment in a defamation case, so Kiefer does not apply. In re N.E.B., 251 S.W.3d 211, 212 (Tex. App.—Dallas 2008, no pet.) holds that arguments are not properly raised on appeal when no argument or citation ispresented for them. Although true as a general proposition, it has no relevance here, where Appellants have presentedsignificant argument and citation.
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admissible even if the deponents are available. Resp. Br. at 42 (citing Dyer v. Shafer, Gilliland,
Davis, McCollum & Ashley, Inc., 779 S.W.2d 474, 477 (Tex. App.—El Paso 1989, writ
denied)). Royall’s reading of Dyer is incorrect. Dyer says that, in a case where a party has waived
his hearsay objection , depositions from another case are admissible. 779 S.W.2d at 477. In the
instant case, unlike Dyer , Appellants did not waive their hearsay objection, and thus the
depositions from the other case were inadmissible unless the deponents were unavailable.7
As to the two unsworn statements, Royall claims that they have “independent legal
significance regardless of whether they are truthful or not,” Resp. Br. at 43, but his use of the
statements contradicts that assertion. He used the statement by the newspaper publisher in
an attempt to show that the book review was a “statement of verifiable fact” and “false.”
C.R. at 2811. It is hard to imagine that a statement could ever be relevant “regardless of its
truthfulness” while simultaneously being introduced to show falsity. It also appears that
Royall intended to use the statement by city officials to show the respective roles of the city
and Royall, i.e., for the truth of the matters asserted. C.R. at 2752-54.
Finally, Royall says that Appellants have not shown how these challenged exhibits led
to any error. Resp. Br. at 43. In fact, Appellants showed that the deposition transcripts were
the only support offered for the supposed falsity of the statements about the anticipated
effect of the Freeport project on river navigation and the Gores’ businesses. See App. Br. at
41. Similarly, the unsworn letter from the newspaper publisher was the only support offered7 Royall also claims that Appellants failed to object to these deposition transcripts when Royall introduced them inopposition to an earlier motion for summary judgment and thus waived their objections to the evidence in this motion.Resp. Br. at 42. Appellants responded to this claim already, explaining that (1) Royall had never used one of thedepositions before and thus Appellants could not have waived their objection; (2) Royall had used two of thedepositions in an earlier summary judgment opposition only to contest public figure status, which was not even at issuein the motion; and (3) if Royall’s theory of waiver were correct, then the 100 articles Appellants used for public figureevidence are now admissible to show truth and falsity of Appellants’ statements, as Royall did not object to theirintroduction on the issue of public figure. See App. Br. at 25 n.15. Royall makes no response.
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that the book review was “of and concerning” Royall and capable of defamatory meaning,
and it was combined with other evidence in an attempt to show falsity. See C.R. at 2810-11.
As the only evidence offered in response to a no-evidence motion for summary judgment,
the erroneous evidence was prejudicial. See Hasty Inc. v. Inwood Buckhorn Joint Venture , 908
S.W.2d 494, 503 (Tex. App.—Dallas 1995, writ denied) (erroneous admission of evidence
held “harmful” where there was no other evidence introduced on the issue).
IV. Royall did not produce evidence in support of his gist claim.
Royall emphasizes throughout his brief that the Court must evaluate the entire
publication, not individual statements. Resp. Br. at 24-26, 32, 34-35. Appellants agree that a
gist claim is a claim about overall message. But Royall incorrectly assumes that the nature of
the gist analysis absolves him from having to provide any evidence from the text itself.
A. Royall did not make a proper gist claim.
In their opening brief, Appellants explained that this Court requires that a gist claim
be a claim that the author “got the details right” but the gist wrong. App. Br. at 44-45. In
response, Royall asserts that this Court in Gaylord Broad. Co. v. Francis “found that there was
evidence from which a jury could find that individual statements were false, and also that
there was a jury question whether the gist of the broadcast was false.” Resp. Br. at 31 citing
7 S.W.3d 279, 285-86 (Tex. App.—Dallas 1999, pet. denied). What Gaylord actually says,
however, is that there was a jury question about both the plaintiff’s claim the statements in
the broadcast were false and the defense of “substantial truth.” The plaintiffs in Gaylord did
not even bring a gist claim. See id . at 282. The “substantial truth” doctrine, although it uses
the word “gist,” is a doctrine that disregards minor factual inaccuracies in allegedly
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defamatory statements. 7 S.W.3d at 285-86. A gist claim, unlike the claim brought in
Gaylord , requires an explanation of how the publication got the details right but the gist
wrong. See App. Br. at 44-45 (explaining gist cases).
B. Royall produced no evidence that the gist of the book is one of verifiablefact or that it is false.
The gist of a publication, just like an individual statement, may only be defamatory if
it is verifiable, about the plaintiff, capable of defamatory meaning, and false. See, e.g., Turner
v. KTRK TV, Inc., 38 S.W.3d 103, 117-20 (Tex. 2000) (discussing how strategic juxtapositions
and omissions gave false factual impression of plaintiff’s actions). Appellants showed that
the gist of the book is different than what Royall claims and that he failed to produce
evidence on two of the necessary elements—verifiability and falsity. App. Br. at 45-48.
Appellee’s Brief makes no response to Appellants’ arguments.
In their Brief, Appellants explained that the gist of Bulldozed was political opinion, not
verifiable fact. App. Br. at 45-47. Appellants also discussed Royall’s incorrect claim that
Bulldozed is similar to the advertisement in Brock v. Tandy , 2009 Tex. App. LEXIS 5171 (Tex.
App. Fort Worth July 2, 2009) (mem. op.) (pet. denied), because they both discuss the abuse
of eminent domain. Appellants showed that Brock is utterly distinguishable because the
advertisement at issue in that case accused the defendant of a felony and official corruption
and contained admittedly false facts. App. Br. at 35-36. Royall makes no response to
Appellants’ two-page analysis of Brock but simply repeats his same argument that Brock is
controlling. Resp. Br. at 26-27. Nor does Royall respond to the argument or case citations
that predictions of future effects of the project on river navigation and the Gore’s business
are “predictive opinion.” App. Br. at 37-38, 47. Nor does he respond to the case citations
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that nonfiction authors may tell stories from a particular perspective. Id. at 47.
Appellee’s gist section does discuss falsity, but, in doing so, it fails to acknowledge
that Appellants addressed, and rebutted, each specific point in their opening brief. As he did
in his briefing in the lower court, Royall points to four supposedly false and defamatory facts
in the book. These “facts” are listed on page 46 of Appellants’ opening brief and rebutted
on pages 46-47. As Appellants have already explained, the supposedly defamatory “facts”
are either not in the book, trivial, and/or unverifiable. App. Br. at 46-47.
V. Royall has not shown he introduced evidence of each of the four elements for
the 91 individual statements.In their opening brief, Appellants went through every statement that Royall has
claimed to be defamatory, identified which of the four elements Royall had failed to produce
evidence of, and cited relevant caselaw. Royall’s Brief, however, does not directly respond.
It does not seek to show that Royall did introduce evidence of the four elements; nor does
the Brief address or distinguish the caselaw cited by Appellants.
Below, Appellants show how Royall still has not produced evidence for each of the
four elements for any of the statements. Royall does not follow the order of statements in
Appellants’ Brief. Appellants will follow Royall’s order for the ease of the Court, identifying
which section of Royall’s Brief responds to which section of the Appellants’ Brief.
A. Greed, lust, and “unholy alliance.”
Part III.C.4.a of Appellee’s Brief seems to respond to Parts IV.A and IV.C of
Appellants’ Brief. As Appellants explained, Royall produced no evidence that the title
“American Lust for Land” (Stmt. 2) or the back-page blurb’s reference to an “unholy
alliance between city politicians and avaricious developers” (Stmt. 3) were verifiable
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statements of fact, capable of defamatory meaning, or false. App. Br. at 28, 31-33. Royall
makes no response at all on verifiability or falsity. Resp. Br. at 36-37. He addresses only
defamatory meaning, claiming “[m]any courts have found that one can commit libel by
calling someone greedy.” Resp. Br. at 36. The cases he cites, however, do not actually hold
that “calling someone greedy” is defamatory.
What Royall’s cases show is that specific, verifiable, and false accusations of illegal,
dishonest, or highly embarrassing conduct can be defamatory. An accusation of “greed”
that accompanies such accusations may also be defamatory, but only because it appears in
conjunction with verifiable factual allegations. These cases do not help Royall, however,
because he identifies no such factual allegations made by Appellants. In fact, as explained in
the Appellants’ Brief, Royall has not challenged any of the book’s factual descriptions of his
conduct nor the detailed explanation of his contract with Freeport. App. Br. at 32.
Gateway Logistics Group, Inc. v. Dangerous Goods Mgmt. Australia Pty, Ltd , No. H-05-2742,
2008 U.S. Dist. LEXIS 34246, at *34 (S.D. Tex. April 25, 2008), cited by Royall on page 36,
explicitly says that an accusation of greed can be defamatory only when paired with serious
factual accusations. The Gateway defendant stated that the plaintiff had “acted with reckless
disregard for the welfare of its client, knowingly risked subjecting its client to significant legal
penalties,” “intentionally lied to its client,” “sought to defraud a client,” and “had a ‘cashback
arrangement’ with a third party that it concealed from its client.” Id. at *25, 32-33. The
court acknowledges that a comment about greed would have just been “general
disparagement” (and hence not actionable) had it not been linked to these more specific
allegations of illegality and dishonesty. Id. at *34; see also Manufactured Home Cmtys., Inc. v.
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County of San Diego, 544 F.3d 959, 964 & n.5 (9th Cir. 2008) (finding accusation that a party
“lied” to be verifiable fact but “unscrupulous” and “greedy” to be unverifiable opinion).
The other cases cited by Royall, Resp. Br. at 36, likewise require a false accusation of
verifiable fact in order to find defamation. See Tucker v. Fischbein , 237 F.3d 275, 280, 283 (3d
Cir. 2001) (article’s claim that couple had sued for $1 million for damage to their sex life was
verifiable and false; no discussion of calling someone greedy); DiBella v. Hopkins , 403 F.3d
102, 108-09, 117 (2d Cir. 2005) (statements accused the plaintiff of taking bribes to place the
defendant in boxing matches, of taking the money in secret, and of using his position at
HBO to secure those bribes, all of which were verifiable and false); Metcalf v. KFOR-TV , 828
F. Supp. 1515, 1530 (W.D. Okla. 1992) ( “greedy doctors” not defamatory because not
verifiable). As Royall did not even address verifiability in his opposition brief, he has not
met his no-evidence burden.
B. “Stealing” and putting Western Seafood out of business.
Part III.C.4.b of Royall’s Brief seems to respond to Parts IV.D and IV.F of
Appellants’ Brief. Regarding the rhetorical equation of eminent domain with theft,
Appellants showed that only one of the statements actually mentions theft, and it does so in
a way that is plainly rhetorical. Moreover, most of the statements were not of and
concerning Royall and, as such, were not capable of defamatory meaning. Appellants further
showed that Royall offered no evidence of falsity. App. Br. at 33-34. Royall responds to
none of this. He simply points out that an accusation of theft is defamatory. Resp. Br. at
37. It may well be, but there is no statement in the book that accuses Royall of theft, and he
has failed to introduce any evidence to the contrary.
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of verifiable illegal or unethical business conduct can be defamatory. Resp. Br. at 39-40
(citing LED Sign Co. v. Hwee , No. H-08-1463, 2008 U.S. Dist. LEXIS 97851, *26-27 (S.D.
Tex. 2008) (calling plaintiff “bad dealer with terrible reputation” implied existence of
objective facts relating to his performance as a dealer); Morrill v. Cisek, 226 S.W.3d 545, 550
(Tex. App.—Houston [1st Dist.] 2006, no pet.) (allegations that plaintiff forged documents,
committed fraud against employer, and misappropriated funds from his child’s bank
account); Shearson Lehman Hutton, Inc. v. Tucker , 806 S.W.2d 914, 921-22 (Tex. App.—Corpus
Christi 1991, writ dism’d w.o.j.) (verifiable statements included that the plaintiff was about to
lose his stockbroker’s license and was in trouble with the SEC); Knox v. Taylor , 992 S.W.2d
40, 51 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (verifiable fact was whether
defendant actually made the statements that plaintiff allegedly falsely attributed to him)).
Royall’s effort to show falsity repeats the exact points that Appellants discussed and
rebutted in their opening brief, again without any acknowledgement. Resp. Br. at 39; App.
Br. at 30-31. As explained in Appellants’ opening brief, the book goes into great detail
analyzing the actual agreement, including the issue of whether Royall’s company would have
to expend $1 million for the project. App. Br. at 30. Royall did not designate any of these
verifiable facts as defamatory, yet they provide the basis for Main’s opinion. Nor does
Royall address any of the caselaw holding that opinions are not defamatory when the basis
for them is explained. App. Br. at 18-19.
Regarding statements about Royall’s relationship to Sun Resorts, Appellants
explained in their Brief that the statements were not capable of defamatory meaning and that
Royall’s evidence showed the statements to be true. App. Br. at 37-38. Royall ignores these
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arguments and instead simply repeats that he joined Sun Resorts after the project began and
that Main should have included this additional fact. Resp. Br. at 38.
Regarding the issue of Freeport approaching Royall about the project, Appellants
explained in their opening brief that the book plainly states that the City approached Royall,
that Royall has misread the book, and that he has provided no evidence that the statements
in the book are false. App. Br. at 42. In response, Royall now claims that the book merely
has an “implication” that Royall initiated the project, through its supposedly sarcastic tone,
according to Royall. Resp. Br. at 40-41. In fact, the book explains in some detail how the
City—not Royall—initiated the project. C.R. at 1031, 1037, 1048-49, 1074, 1101. Moreover,
sarcastic tone is not a basis for a defamation action, as the Texas Supreme Court held in
Musser v. Smith Prot. Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987).
Appellants explained in their opening brief that the statements about competitive
bidding were not of and concerning Royall, were not capable of defamatory meaning as to
him, and were true, as shown by Royall’s own evidence. App. Br. at 42-43. Royall ignores
these arguments and makes no attempt to explain why his evidence—that one person from
the city called two potential developers on the telephone—does not prove there was no
competitive bidding. Instead, he provides a citation supposedly showing that lack of
competitive bidding is a crime in Texas. Resp. Br. at 41. However, that statutory section is
inapplicable to the Freeport project. See Tex. Loc. Gov’t Code § 380; Tex. Rev. Civ. Stat.
§ 5190.6; see also Tex. Att’y Gen. Op., No. JC-0109 (Sep. 9, 1999) (explaining that
competitive bidding requirements do not apply to economic development corporations).
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VI. “Aiding,” “abetting,” and “ratifying” are contingent claims withoutindependent elements.
Royall incorrectly asserts that Appellants were required to list the independent
elements of “aiding,” “abetting,” and “ratifying” libel. Those torts do not have independent
elements. Each is wholly contingent upon first proving the underlying tort on which it is
based. See, e.g., Marty’s Food & Wine, Inc. v. Starbucks Corp., No. 05-01-00008-CV, 2002 Tex.
App. LEXIS 7672, at *32 (Tex. App.—Dallas Oct. 28, 2002, no writ) (not designated for
publication) (allegation that there was no evidence that any employee “acted affirmatively in
committing trespass” was sufficient to also defeat aiding and abetting claims). A search of
Texas cases reveals no discussion of specific elements for aiding, abetting, or ratifying libel,
and Royall identifies no such elements himself. Appellants were only required to move—as
they did—that Royall had no evidence that they aided, abetted, or ratified the libel of any
third party. Cf. Black’s Law Dictionary (8th ed. 2004) (“aid and abet” means to “assist or
facilitate the commission of a crime”; ratification is the “acceptance of a previous act”).
PRAYER
Appellants renew their request for the relief specified in their principal brief.
Appellants request all other appropriate relief to which they are entitled.
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