Encounter v. Royall Brief

8/8/2019 Encounter v. Royall Brief

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APPELLANTS REQUESTORAL ARGUMENT

05-09-01503-CV

IN THE COURT OF APPEALSFOR THE FIFTH DISTRICT OF TEXAS

Dallas, Texas

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

v.

H. WALKER ROYALL,

PlaintiffAppellee,

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

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

APPELLANTS 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.



IDENTITY OF PARTIES AND COUNSEL

APPELLANTS:

Carla T. Main

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

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

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

*Admitted pro hac vice

APPELLEE:

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

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

Houston, TX 77027

Page i



TABLE OF CONTENTS

Page

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

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

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

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

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

Issues from Motion for Partial Summary Judgment

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

2. Are statements about the Freeport marina project, eminent domain,constitutional rights, and government action statements about matters 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 thesupposedly defamatory statements or the gist of Bulldozed meets all four of thefollowing criteria:

a. is a verifiable statement of fact;

b. is false or not substantially true;

c. is of and concerning Appellee; and

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

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

Page ii



Page

6. Did Appellee present more than a scintilla of evidence that Appellantsaided, 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. Standard of Review. .....................................................................................................5

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

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

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

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

before Bulldozed was published. ..................7

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

b. The impact of the controversy would be widely felt.. ...........................................................................................8

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

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

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

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Page

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

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

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

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

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

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

III. The Trial Court Erred 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 fourindependent elements to survive Appellants motion. ............................18

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

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

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

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

Page iv



Page

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

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

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

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

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

B. Calling a development agreement a risky sweetheart deal is

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

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

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

E. Talking about the abuse of eminent domain is not defamation. ...........34

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

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

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

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

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

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

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

Page v



Page

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

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

B. Royalls gist claim improperly objects to unverifiable opinion,not implied facts. ............................................................................................45

C. Royall has presented no evidence that the gist of Bulldozed isfalse...................................................................................................................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 RatifiedDefamation in Mark Lardas Book Review of Bulldozed .......................................48

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

Certificate of Service

Appendix

Page vi



INDEX OF AUTHORITIES

Page(s)

Case Law

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

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

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

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

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

Brock v. Tandy ,No. 2-08-400-CV, 2009 Tex. App. LEXIS 5171 (Tex. App.Fort 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

Page vii



Page(s)

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

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

Compuware Corp. v. Moodys Investors Servs.,499 F.3d 520 (6th Cir. 2007)...........................................................................................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 Commcns, Inc. v. Coronado,296 S.W.3d 790 (Tex. App.Corpus Christi 2009, no pet.) ...........................................24

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

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

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Page(s)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Page(s)

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

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

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

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

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

Page x



Page(s)

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

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

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

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

N.Y. Times Co. v. Sullivan ,

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

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

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

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

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

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

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

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

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

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

Page xi



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

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

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Page xiii

Page(s)

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

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

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

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



STATEMENT OF THE CASE

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

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

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

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

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

2868 and 2869; Appx. at Tabs 2 and 3). 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.

Page xiv



STATEMENT REGARDING ORAL ARGUMENT

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

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

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

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

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

constitute defamation.

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

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

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

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

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

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

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Page xvi

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. mediadefendants?

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 supportof Appellees response to Appellants no-evidence motion for summary judgment?

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



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 Courts

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 Courts

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

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

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

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

Kelo, 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 OConnor and Justice Thomas. See,

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

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

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

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

Bulldozed reflects Mains 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

Page 1



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Page 2



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

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

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

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

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

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

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

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

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

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

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

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

Appx. at Tabs 2 and 3.

SUMMARY OF THE ARGUMENT

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

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

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

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

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

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

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

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

Page 3



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

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

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

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

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

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

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

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

involvement in the marina project prior to the publication 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.

Page 4



ARGUMENT

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

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

discuss the issues presented in each denial separately below.

I. Standard of Review.

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

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

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

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

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

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

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

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

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

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

Dallas 2007, pet. denied).

II. Royall Bears the Burden of Proving Falsity.

Although truth is sometimes an affirmative defense that defamation defendants must

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

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

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

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

Page 5



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 thecity of Freeports plan to acquire private property through eminent domain so thatRoyall could use that property in his marina development?

A. Royall is a limited-purpose public figure.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Page 6



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 Mains book.2

Indeed,

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

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

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

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

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

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

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

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

2 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, 2005-07, 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.

Page 7



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

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

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

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

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

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

convention center was a public controversy).

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

public figure at the timeBulldozed

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

public debate 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 Courts decision in WFAA proves the point. The case dealt

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

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

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

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

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

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

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

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

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

Page 9



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

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

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

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

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

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

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

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

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

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

events 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 Royalls theory, then, as

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

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

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

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

Page 10



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

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

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

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

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

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

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

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

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

at company where sales practices began to draw fire).

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

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

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

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

recommitted himself by signing two amendments to the development agreement that

continued to include the use of eminent domain, one in 2004 and one in 2005. 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 Royallsigned the agreement. C.R. at 2457-58, 2460-61, 2463-64, 2466-67, 2469-71, 2473-74, 2476-78, 2480-84,2486-87, 2489-93, 2495-99, 2501-02, 2504-06, 2508-10, 2512-13, 2515-20, 2522-23, 2525-28, 2530-32.Indeed, there was a highly controversial eminent domain project in Hurst, Texas, just outside of Dallas, in thelate 1990s, C.R. at 2534-35, 2537-39, 2541-42, 2544-45, 2547-50, 2552-53, 2555-58., as well as other eminentdomain projects in Texas, 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 thecontroversy 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 limited-

purpose 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 Royalls limited public figure status.

Issues No. 2 and 3 Restated: Were Appellants entitled to summary judgment thatthe statements Royall challengesabout the Freeport marina project, eminentdomain, the constitution, and government actionstatements made by media

defendants about matters of public concern?

B. Royall also bears the burden of proving falsity because the allegedlydefamatory 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 requirementsa matter of

public concern and media defendantsare satisfied here.

1. The allegedly defamatory statements were about matters of

public concern.

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

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

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

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

S.W.2d 809, 819 (Tex. 1976) (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 Pship v. Hays County , 41 S.W.3d 174, 181-82 (Tex. App.Austin 2001,

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

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

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

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

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

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

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

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

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

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

Page 13



government action, constitutional rights, and eminent domain for private redevelopment.

Both federal and state courts weighed in on the legality of the citys 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, Mains

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. Natl

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: Freeports 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.

Page 14



2. Appellants are media defendants.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Page 15



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

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

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

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

the supposedly defamatory statements.9

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

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

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

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

statement an identifying number. Appx. at Tab 1.10

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

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

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

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

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

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

9 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.3d496, 501 (Tex. App.Houston [14 Dist.] 2008) (pet. denied). Appellants also moved that Royall did nothave extrinsic evidence supporting any libel per quod claim. C.R. at 923. As the distinctions between the twotypes of libel are not relevant to this appeal, Appellants discuss all libel issues together.10 Those statements were identified by Royall in the trial court in his brief responding to Appellants no-evidence motion for summary judgment. C.R. at 2744-2817. Appellants have taken each statement from theresponsive brief and put them in the order of the pages in the book. To assist the Court in referring tospecific statements addressed in this brief, each of the statements is individually numbered and will bereferred to herein by its statement number, e.g. Stmt. 5.

Page 16



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 Royalls claim that the gist of the book

is itself defamatory. Part V. And finally, Appellants briefly address Royalls 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.

11 Appellee argued in the trial court that Appellants did not move on the press release and the opinioneditorial. C.R. at 2815-16. However, Appellants did in fact move on the book and all other itemsidentified by Plaintiff as containing allegedly defamatory statements. C.R. at 903. Further, Royall listedstatements from the press release, Stmts. 75-81, and opinion editorial, Stmts. 86-91, in his responsive brief asrepresenting the defamatory gist of the book. C.R. at 2771-72, 2782-83. Therefore, because thosestatements were moved on by Appellants and were at issue in Royalls response to the no-evidence motion,they can be properly disposed of here.

Page 17



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

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

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

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

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

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

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

statement be a statement of fact rather than opinion. 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 defendants statement followed a summary of the evidence upon which it

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

Page 18



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 writers

interpretation of the facts presented).

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

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

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

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

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

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

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

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

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

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

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

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

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

verifiable fact and unverifiable opinion. 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

Page 19



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

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

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

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

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

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

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

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

unverifiable opinion. Id .

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

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

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

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

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

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

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

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

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

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

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

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

statements of verifiable fact.

Page 20



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

Page 21



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

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

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

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

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

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

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

allow the clerks office to supplement the record and ordered the clerk to copy Plaintiffs evidence offered insupport of his combined response to the motions for summary judgment. Appellants also sent a letter tothe clerks office specifically listing each piece of evidence that should be included. On the morning 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. Ratherthan further delay the briefing, Appellants here submit their brief with blanks showing the missing recordcites. When the record has been supplemented with the correct documents, Appellants will supplement theirbrief to fill in these blanks.

Page 22



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

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

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

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

Royall is incorrect.

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

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

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

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

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

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

112 (Tex. 1984).

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

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

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

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

14 Moreover, the affiant was the director of an agency that was Royalls business partner in the marina project2d Supp. C.R. at ____ (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 affiants only statement is thathis 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); Levinskys, Inc. v.

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

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

about Royall are not capable of defamatory meaning as to him. 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 Royalls 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 Commcns, Inc. v.

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

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

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

Page 24



B. Five pieces of Royalls evidence were inadmissible hearsay.

In the trial court, Royall relied on several pieces of evidence, 2d Supp. C.R. at ____

(Pl.s Exs. 3, 6-10, 13, and 26), that were inadmissibleas noted in Appellants objections to

that evidence, C.R. at 2858-80. See Tex. R. Evid. 801(d). That evidence included (1) three

deposition transcripts from the defamation case Royall brought against the Gores and (2)

two unsworn open letters to the public. The trial court erred when it overruled Appellants

objections to this evidence; this Court can and should reverse the trial court and sustain

Appellants objections.

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

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

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

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

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

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

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

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

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

15 Contrary to the trial courts determination, Appellants did not waive their objections to this evidence.C.R. at 2884. As to one of the deposition transcriptsthat of David Cole, 2d Supp. C.R. at ____ (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 Appellantscould not possibly have waived their objections. As to the other depositions (of Gore family members), 2dSupp. C.R. at ____ (Pl.s Exs. 3 and 13) Royall previously cited those depositions only with regard to whetherRoyall 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 usedfor 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 shouldbe able to use the newspaper articles that they introduced to show public figure status (and to which Royalldid 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 Royalls actions that was introduced

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

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

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

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

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

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

statement not proper summary judgment evidence).

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

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

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

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

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

evidence whatsoever of any of the elements of defamation. 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, 63-

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

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

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

evidence of any of the elements of defamation. 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

Page 26



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Page 27



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

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

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

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

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

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

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

Page 29



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

that the city had to agree to some favorable terms to get the project done. C.R. at 1062.

Nor has plaintiff identified as false and defamatory the lengthy passage where Main describes

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

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

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

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

development agreement between those same parties. Royall characterizes this 2003

Page 30



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 familys 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.

Page 31



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 Epsteins 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 Mains 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 Mains 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

Page 32



the alliance was not unholy. Nor has he introduced any evidence that he is not avaricious.

D. Rhetorically equating eminent domain with theft is notdefamatory.

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. Publg Assn v. Bresler , 398 U.S. 6, 7-8, 14 (1970)

(holding that characterizing a developers 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 neighbors 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 citys 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 didnot actually accuse Royall of the crime of stealingbut rather used the word as rhetorical hyperbole Royalls claim of libel per se must necessarily fail.

Page 33



trying to take my familys 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 authors 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 claimsincorrectlythat 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

Page 34



Royall abused eminent domain. See, e.g., Stmt. 61 (if the Goreswho are people of

means and own a substantial businesscan have their property snatched out from under

them; Stmt. 76 (the Gores, the original victims of Royalls 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). Mains 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 Brocks

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 departments treatment of African-

American 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.

Page 36



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 onriver navigation and the anticipated effect on the Gores businessesdoes 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 business17 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. Moodys Investors Servs., 499 F.3d 520, 529 (6th Cir. 2007) (holding credit rating is a

17 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.

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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. Publns , 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, 47-

52, 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

citys 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 citys new traffic plan will discourage pedestrian traffic

and thus ruin his businessand 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

Page 38



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 citys application.

The books statements that a family business was at stake (Stmt. 35) is the same type of

prediction. One of the supposedly defamatory statements is Mains 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 Mains 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 heres what is galling about the tax-

revenue 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? Its hard

to say.). Such statements about the wisdom of municipal development policy choices are

not verifiable. Mains book expresses her view that Freeports policymaking is galling.

Someperhaps including Royallmay 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.

Page 39



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 Royalls 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 Seafoods business.23 C.R. at 2784-86. Because the future

of Western Seafoods business is unverifiable, Royalls supposed evidence concerning his

opinion of that future is wholly irrelevant.

G. Statements about Royalls positions and companies are notdefamatory.

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

22 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, 47-52, 54-57, 59, 60, 62-69, 73, 75, 81, 84-85. There were also several statements Royall claimed to bedefamatory 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 actualshrimp packing house but only adjacent land. 2d Supp. C.R. at ____ (Pl.s Exs. 3 and 13). As Bulldozed makesthis 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.

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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 Mains 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 notdefamatory.

There are several statements that say the city of Freeport initiated the marina project

and approached Royalls 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 notdefamatory.

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 thesestatements 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: Royalls 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 Mains statement that there is nothing in the public

record. Camerons affidavit confirms the truth of Mains statements about the lack of

competitive bidding on the project.

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

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. Camerons affidavit

does not deny he said that Walker wanted to buy the property.

Page 43



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 Mains 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 impressionthat 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. Royalls gist claim improperly objects to unverifiable opinion, notimplied 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, butin fact, the Gores had not owned the tract that long; they began leasing it in the 1980sand purchased it later. C.R. at 2783-84.

The city only planned to include in the marina development 330 feet of the Goresriver frontage, and, according to Royall, Main portrays this land as part of the shrimpprocessing 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 didnot 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 beable 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

Page 46



owned for either three generations or 56 years. See C.R. at 2780-83.

As to Royalls 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 abovethe 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 persons

opinion that plaintiffs acts had killed children not defamatory); Liles v Finstad , No. 01-94-

00258-CV, 1995 Tex. App. LEXIS 1719 at *24-25 (Tex. App.Houston [1st Dist.] Aug. 3,

1995, writ denied) (describing one persons opinion that police could not stop murder due to

plaintiffs 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 defamationmuch less attempt

to suppress Appellants speech by banning the book altogether.

Page 47



Page 48

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

As already demonstrated supra at Part IV.F, Royalls 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 judgmentmotion, did Royall offer competent summary judgment evidence that Appellantsaided, abetted, or ratified allegedly defamatory speech by Mark Lardas?

VI. Royall Produced No Evidence That Appellants Aided, Abetted, or RatifiedDefamation 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

Royalls summary judgment evidence, reverse the district courts 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.



Respectfully submitted,

INSTITUTE FOR JUSTICE

________________________________

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)[email protected]

[email protected]

Dana Berliner (DC Bar No. 447686)*Institute for Justice901 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 LLP901 Main Street, Suite 4110Dallas, TX 75202(214) 573-2300(214) 573-2323 (fax)

ATTORNEYS FOR DEFENDANTS-APPELLANTSCarla T. Main andEncounter for Culture and Education, Inc.

* Admitted pro hac vice

Page 49



CERTIFICATE OF SERVICE

On March 18, 2010, in compliance with Texas Rule of Appellate Procedure 9.5, Iserved a copy of this brief upon all other parties to the trial courts judgment by first-class

United States mail, properly posted and deliverable as follows:

Robert B. GilbreathHawkins, Parnell & Thackston, LLP4514 Cole Avenue, Suite 500Dallas, TX 75205Counsel of Record for Appellee H. Walker Royall

Patrick Zummo

3900 Essex Lane, Suite 800Houston, 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. Order Denying Defendants Motion for Partial Summary Judgment

3. Order Denying Defendants No-Evidence Motion for Summary Judgment

4. Order Regarding Defendants Objections to Evidence Offered In Support of Plaintiffs Responses to Defendants Motion for Partial Summary Judgment and No-Evidence Motion for Summary Judgment

Relevant Statutory and Constitutional Authority

5. Tex. Civ. Prac. & Rem. Code §73.001

6. U.S. Const. Amend. 1

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

Unpublished and Memorandum Opinions and Other Judgments Cited in Brief

8. Associated Press v. Boyd , No. 05-04-01172-CV, 2005 Tex. App. LEXIS 3715 (Tex.

App.Dallas May 16, 2005, no pet.) (mem. op.)

9. Brock v. Tandy , No. 2-08-400-CV, 2009 Tex. App. LEXIS 5171 (Tex. App.Fort Worth July 2, 009, pet. denied) (mem. op.)

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

11. 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)

12. Freeport Econ. Dev. Corp. v. Western Seafood Co., No. CI-032664 (Co. Ct. at Law No. 3,Brazoria County, Tex. November 29, 2006)

13. Freeport Econ. Dev. Corp. v. Western Shellfish Co., No. CI-032662 (Co. Ct. at Law No. 2,Brazoria County, Tex. February 13, 2007)

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

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

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

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

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

Encounter v. Royall Brief

Documents

Transcript of Encounter v. Royall Brief