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APPELLANTS REQUEST

ORAL ARGUMENT

05-09-01503-CV

IN THE COURT OF APPEALS


FOR THE FIFTH DISTRICT OF TEXAS
Dallas, Texas

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


Defendants—Appellants
v.

H. WALKER ROYALL,
Plaintiff—Appellee,

On Accelerated Appeal From The 44th Judicial District Court


Dallas County, Texas
Trial Court Cause No. DC-08-13480-B
Honorable Carlos Cortez Presiding

APPELLANTS’ SECOND AMENDED BRIEF

Matthew R. Miller (TX Bar No. 24046444) John J. Little (TX Bar No. 12424230)
Wesley Hottot (TX Bar No. 24063851) Megan Dredla (TX Bar No. 24050530)
Institute for Justice Texas Chapter Little Pedersen Fankhauser LLP
816 Congress Avenue, Suite 960 901 Main Street, Suite 4110
Austin, TX 78701 Dallas, TX 75202
(512) 480-5936 (214) 573-2300
(512) 480-5937 (fax) (214) 573-2323 (fax)

Dana Berliner (DC Bar No. 447686)*


Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320 COUNSEL FOR APPELLANTS
(703) 682-9321 (fax) CARLA T. MAIN AND
ENCOUNTER FOR CULTURE
*Admitted pro hac vice AND EDUCATION, INC.
IDENTITY OF PARTIES AND COUNSEL

APPELLANTS:
Carla T. Main
and Encounter for Culture and Education, Inc.
c/o Counsel of Record
Matthew R. Miller (TX Bar No. 24046444)
Wesley Hottot (TX Bar No. 24063851)
Institute for Justice Texas Chapter
816 Congress Avenue, Suite 960
Austin, TX 78701

Dana Berliner (DC Bar No. 447686)*


Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203

John J. Little (TX Bar No. 12424230)


Megan Dredla (TX Bar No. 24050530)
Little Pedersen Fankhauser LLP
901 Main Street, Suite 4110
Dallas, TX 75202

*Admitted pro hac vice

APPELLEE:
H. Walker Royall
c/o Counsel of Record
Robert B. Gilbreath (TX Bar No. 07904620)
Hawkins, Parnell & Thackston, LLP
4514 Cole Avenue, Suite 500
Dallas, TX 75205

Patrick Zummo (TX Bar No. 22293450)


3900 Essex Lane, Suite 800
Houston, TX 77027

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 yacht
marina by, in part, having the city take land from his neighbor through
eminent domain for use in the marina?

2. Are statements about the Freeport marina project, eminent domain,


constitutional rights, and government action statements about matters of
public concern?

3. Are Appellants Carla T. Main and Encounter for Culture and Education, Inc.
“media defendants”?

Issues from No-Evidence Motion for Summary Judgment

4. Did Appellee present “more than a scintilla” of evidence that any of the
supposedly defamatory statements or the gist of Bulldozed meets all four of the
following criteria:

a. is a verifiable statement of fact;

b. is false or not substantially true;

c. is of and concerning Appellee; and

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

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

Page ii
Page

6. Did Appellee present “more than a scintilla” of evidence that Appellants


aided, abetted, financed, authorized, and/or ratified the defamatory speech of
book reviewer Mark Lardas?

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

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

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

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

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

Issue No. 1 Restated: Were Appellants entitled to summary judgment


that Royall was a limited-purpose public figure with respect to his voluntary
participation in the city of Freeport’s plan to acquire private property
through eminent domain so that Royall could use that property in
his marina development?..........................................................................................................6

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

Public Figure Factor 1: The Freeport marina project exploded


into a significant public controversy
before Bulldozed was published. ..................7

a. The project was the subject of local and


statewide discussion. ..............................................................7

b. The impact of the controversy would be widely


felt.. ...........................................................................................8

c. The proper inquiry is whether Royall was a


limited-purpose public figure at the time Bulldozed
was published in 2007............................................................9

Public Figure Factor 2: Royall played much “more than a trivial


or tangential role” in creating the
controversy...................................................10

Page iii
Page

Public Figure Factor 3: The supposedly defamatory statements


were about the controversy which Royall
voluntarily helped create............................12

Issues No. 2 and 3 Restated: Were Appellants entitled to summary judgment


that the statements Royall challenges—about the Freeport marina project,
eminent domain, the constitution, and government action—statements made
by “media defendants” about “matters of public concern”? ...........................................12

B. Royall also bears the burden of proving falsity because the


allegedly defamatory statements address matters of public
concern and are published by media defendants......................................12

1. The allegedly defamatory statements were about matters


of 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 evidence
as to each element that he must prove in order to establish his claim for
defamation? ..............................................................................................................................15

III. The Trial Court Erred in Denying Summary Judgment Because


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

A. Royall must offer competent evidence as to each of four


independent elements to survive Appellants’ motion. ............................18

1. 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 not
about Royall at all..............................................................................21

3. Most of the statements relied upon are not capable of


defamatory meaning because they are not specific and
offensive statements about Royall..................................................23

Page iv
Page

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

B. Five pieces of Royall’s evidence were inadmissible hearsay. ..................25

C. Appellants are entitled to summary judgment as to those pages


that Royall failed to mention and statements that Royall
refused to identify. .........................................................................................26

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

A. 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 between


city politicians and avaricious developers” is not defamatory................31

D. Rhetorically equating eminent domain with theft is not


defamatory.......................................................................................................33

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

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


on river navigation and the anticipated effect on the Gores’
businesses does not defame Royall.............................................................37

G. Statements about Royall’s positions and companies are not


defamatory.......................................................................................................41

H. Saying the city approached Royall about the project is not


defamatory.......................................................................................................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 not


defamatory.......................................................................................................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. Royall’s gist claim improperly objects to unverifiable opinion,


not implied facts.............................................................................................46

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


false...................................................................................................................48

Issue No. 6 Restated: In response to Appellants’ no-evidence summary


judgment motion, did Royall offer competent summary judgment evidence
that Appellants aided, abetted or ratified allegedly defamatory speech by
Mark Lardas? ............................................................................................................................48

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


Defamation in Mark Lardas’ Book Review of Bulldozed.......................................48

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

Certificate of Service

Appendix

Page vi
INDEX OF AUTHORITIES

Page(s)

Case Law

Amcor Inv. Corp. v. Cox Ariz. Publ’ns,


764 P.2d 327 (Ariz. App. 1998), rev. denied ..........................................................................38

Associated Press v. Boyd,


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

BE & K Constr. Co. v. NLRB,


536 U.S. 516 (2002).................................................................................................................12

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

Bose Corp. v. Consumers Union of U.S., Inc.,


466 U.S. 485 (1984).................................................................................................................16

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

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

Brueggemeyer v. Am. Broad. Cos.,


684 F. Supp. 452 (N.D. Tex. 1998) ..............................................................................7-8, 11

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

Church of Scientology v. Cazares,


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

City of San Diego v. Roe,


543 U.S. 77 (2004) ...................................................................................................................13

Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc.,


956 S.W.2d 562 (Tex. App.—Houston [14th Dist.] 1997, pet. denied).........................26

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. Moody’s Investors Servs.,


499 F.3d 520 (6th Cir. 2007)..................................................................................................38

Cox Tex. Newspapers, L.P. v. Penick,


219 S.W.3d 425 (Tex. App.—Austin 2007, pet. denied) ....................................................5

Diaz v. NBC Universal, Inc.,


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

Double Diamond, Inc. v. Van Tyne,


109 S.W.3d 848 (Tex. App.—Dallas 2003, no pet.) ..........................................................24

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

Edmond v. Hartford Ins. Co.,


27 Fed. Appx. 51 (2d Cir. 2001)............................................................................................30

Exxon Mobil Corp. v. Hines,


252 S.W.3d 496 (Tex. App.—Houston [14 Dist.] 2008) (pet. denied) ...........................16

Fort Worth Star-Telegram v. Street,


61 S.W.3d 704 (Tex. App.—Fort Worth 2001, pet. denied)..............................................5

Foster v. Laredo Newspapers, Inc.,


541 S.W.2d 809 (Tex. 1976)...................................................................................................13

Freedom Commc’ns, Inc. v. Coronado,


296 S.W.3d 790 (Tex. App.—Corpus Christi 2009, no pet.) ...........................................24

Freeport Econ. Dev. Corp. v. Western Seafood Co.,


No. CI-032664 (Co. Ct. at Law No. 3, Brazoria County, Tex. Aug. 16, 2004).............14

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

Page viii
Page(s)

Gertz v. Robert Welch, Inc.,


418 U.S. 323 (1974).................................................................................................................19

Greenbelt Coop. Publ’g Ass’n v. Bresler,


398 U.S. 6 (1970) .....................................................................................................................33

Guilford Transp. Indus., Inc. v. Wilner,


760 A.2d 580 (D.C. 2000) ............................................................................................... 28, 33

Hadlock v. Tex. Christian Univ.,


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

Harvest House Publishers v. Local Church,


190 S.W.3d 204 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)..................... 15, 22

Hays County Water Planning P’ship v. Hays County,


41 S.W.3d 174 (Tex. App.—Austin 2001, pet. denied).....................................................13

Henriquez v. Cemex Mgmt., Inc.,


177 S.W.3d 241 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)............................24

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

Holloway v. Tex. Elec. Util. Constr., Ltd.,


282 S.W.3d 207 (Tex. App.—Tyler 2009, no pet.) ............................................................27

Kelo v. City of New London,


545 U.S. 469 (2005)...................................................................................................................1

King Ranch, Inc. v. Chapman,


118 S.W.3d 742 (Tex. 2003).............................................................................................15-16

Kirch v. Liberty Media Corp.,


449 F.3d 388 (2d Cir. 2006) ...................................................................................................21

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

Lear Siegler, Inc. v. Perez,


819 S.W.2d 470 (Tex. 1991).....................................................................................................5

Page ix
Page(s)

Levinsky’s, Inc. v. Wal-Mart Stores, Inc.,


127 F.3d 122 (1st Cir. 1997) ..................................................................................................24

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

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

Mary Lee Found. v. Tex. Employment Comm’n,


817 S.W.2d 725 (Tex. App.—Texarkana 1991, writ denied) ...........................................26

Masson v. New Yorker Magazine,


501 U.S. 496 (1991).......................................................................................................... 24, 47

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

McCluen v. Roane County Times, Inc.,


936 S.W.2d 936 (Tenn. Ct. App. 1996)................................................................................30

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

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

Merrell Dow Pharms. v. Havner,


953 S.W.2d 706 (Tex. 1997)...................................................................................................16

Metcalf v. KFOR-TV, Inc.,


828 F. Supp. 1515 (W.D. Okla. 1992)..................................................................................32

Milkovich v. Lorain Journal Co.,


497 U.S. 1 (1990) .............................................................................................................. 18, 19

Moldea v. N.Y. Times Co.,


22 F.2d 310 (D.C. Cir. 1994) .................................................................................................19

Morris v. Dallas Morning News,


934 S.W.2d 410 (Tex. App.—Waco 1996, writ denied)....................................................46

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. Dillard’s, Inc.,


239 S.W.3d 409 (Tex. App.—Dallas 2007, pet. denied) .....................................................5

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

Peter Scalamandre & Sons, Inc. v. Kaufman,


113 F.3d 556 (5th Cir. 1997)........................................................................................... 29, 30

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

Phila. Newspapers, Inc. v. Hepps,


475 U.S. 767 (1986)...........................................................................................................12-13

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

Republic Tobacco v. N. Atl. Trading Co.,


2007 U.S. Dist. LEXIS 38079 (N.D. Ill. 2007)...................................................................38

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

Rosanova v. Playboy Enters.,


580 F.2d 859 (5th Cir. 1978)..................................................................................................10

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).....................................................................................................45

United States v. Nat’l Treasury Employees Union,


513 U.S. 454 (1995).................................................................................................................14

UTV of San Antonio, Inc. v. Ardmore, Inc.,


82 S.W.3d 609 (Tex. App.—San Antonio 2002, no pet.) .................................................31

Page xii
Page(s)

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

W. Seafood Co. v. United States,


202 Fed. Appx. 670 (5th Cir. 2006).............................................................................2, 8, 14

Waldbaum v. Fairchild Publ’ns, Inc.,


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

WFAA-TV, Inc. v. McLemore,


978 S.W.2d 568 (Tex. 1998)................................................................................. 6, 7, 8, 9, 12

Wheeler v. New Times, Inc.,


49 S.W.3d 471 (Tex. App.—Dallas 2001, no pet.) ............................................................45

Wilkow v. Forbes, Inc.,


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

Constitutional Provisions

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

Statutes and Rules

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

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

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

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

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

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

Page xiii
STATEMENT OF THE CASE

This is a defamation case involving two media defendants—the author of a book and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 book’s author and publisher are media defendants; and whether supposedly

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

constitute defamation.

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

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

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

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

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

Court’s analysis and review of these issues. Appellants respectfully request oral argument.

Page xv
ISSUES PRESENTED

Issues from Motion for Partial Summary Judgment

1. Is Appellee H. Walker Royall a limited-purpose public figure concerning his voluntary


agreement with the city of Freeport, Texas, to develop a yacht marina by, in part, having
the city take land from his neighbor through eminent domain for use in the marina?

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

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

Issues from No-Evidence Motion for Summary Judgment

4. Did Appellee present “more than a scintilla” of evidence that any of the supposedly
defamatory statements or the gist of Bulldozed meets all four of the following criteria:

a. is a verifiable statement of fact;

b. is false or not substantially true;

c. is of and concerning Appellee; and

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

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

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

Page xvi
STATEMENT OF FACTS

Defendant-Appellant Carla T. Main is the author of Bulldozed: “Kelo,” Eminent Domain,

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

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

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

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

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

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

Bulldozed is a work of political non-fiction that examines the U.S. Supreme Court’s

decision in Kelo v. City of New London, 545 U.S. 469 (2005), and its repercussions. C.R. at 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 O’Connor and Justice Thomas. See,

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

The Founders cannot have intended this perverse result.”) (O’Connor, J., dissenting) and

518 (“Something has gone seriously awry with this Court’s interpretation of the

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

Bulldozed reflects Main’s agreement with the dissenters that Kelo was wrongly decided.

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

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

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 Royall’s company for use in the marina project.

C.R. at 1406. Specifically, the agreement said that Royall’s company would acquire the

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

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

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

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

The dispute about the city’s use of eminent domain to condemn the Gores’ land

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

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

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

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

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

discusses and criticizes Royall’s involvement in the project, although she saves most of her

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, three
years into the condemnation proceedings filed by the city against the Gores, the agreement was replaced with
a new agreement that did not mention eminent domain. C.R. at 1486-1544.

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; Encounter’s advertising for the book; a book review

by a freelance reviewer; an opinion editorial in which Main and Encounter’s President, Roger

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

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

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

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

second was a no-evidence motion regarding Royall’s lack of evidence that any statement (or

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

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

Appx. at Tabs 2 and 3.

SUMMARY OF THE ARGUMENT

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

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

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

Texas, that involved taking land from one private party and transferring it to Royall’s

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

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

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

Royall’s involvement, the conclusions she draws from disclosed facts, predictions about the

Page 3
future effects of the project, and her political views. The First Amendment fully protects

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

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

and a no-evidence motion for summary judgment. Appellants appeal the trial court’s denial

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

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

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

of discussion of the marina project—more than 60 published pieces discussed his

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

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

in such cases bear the burden of proving falsity.

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

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

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

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

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

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

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

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

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

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

render judgment for Appellants.

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 court’s orders denying Appellants’ Motion for Partial

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

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

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

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

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

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

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

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

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

Dallas 2007, pet. denied).

II. Royall Bears the Burden of Proving Falsity.

Although truth is sometimes an affirmative defense that defamation defendants must

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

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

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

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

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 the
city of Freeport’s plan to acquire private property through eminent domain so that
Royall could use that property in his marina development?

A. Royall is a limited-purpose public figure.

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

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

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

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

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

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

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

them. Instead, the parties disagree about one key legal point. Appellants argue that Royall’s

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

were made—a position supported overwhelmingly by both Texas and federal case law.

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

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

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

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

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

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 Main’s book. 2 Indeed,

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

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

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

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

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

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

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

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

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
1988); see also Swate v. Schiffers, 975 S.W.2d 70, 76 (Tex. App.—San Antonio 1998, pet. denied)

(relying on 24 articles published over a 10-year period about the poor quality of a doctor’s

medical practice to hold that the doctor was a limited-purpose public figure). Most recently,

the First Court held that because a controversy about local development plans and financing

had “played out in the local media” in approximately nine published articles and letters, the

property owners’ association board president (and attorney for the developer) was a limited-

purpose public figure. See Vice v. Kasprzak, No. 01-08-00168-CV, 2009 Tex. App. LEXIS

7725, at *31 (Tex. App.—Houston [1st Dist.] Oct. 1, 2009, no pet. h.) (Appx. at Tab 19). If

nine, 24, or 30 articles show a public controversy, more than 100 certainly suffices.

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

In determining whether a controversy is public, courts also ask whether the

resolution of the conflict will impact more than just its immediate participants. See WFAA,

978 S.W.2d at 571. The controversy at issue here had potentially far-reaching legal effects

throughout the state, because Freeport’s plan to use eminent domain for the marina project

raised issues of the constitutionality of economic development takings under the Texas

Constitution. The lawsuit challenging the use of eminent domain for the project was also

one of the first cases, if not the very first one, to interpret the new Texas statute passed in

the wake of Kelo. See W. Seafood Co. v. United States, 202 Fed. Appx. 670, 676-77 (5th Cir.

2006) (remanding to district court to consider new legislation). In the eyes of observers,

“the eventual outcome [of the controversy] extend[ed] beyond Freeport, [as it was] seen as

the first significant test of the Kelo decision.” C.R. at 2096-98.

Furthermore, the deal placed $6 million in taxpayers’ money on the line in the form

Page 8
of a loan to Royall’s company. C.R. at 1394-96. Thus, the controversy itself affected all the

citizens of Freeport, who would (depending on one’s viewpoint) either be throwing millions

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

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

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

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

convention center was a public controversy).

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


public figure at the time Bulldozed was published in 2007.

In the trial court, Royall argued that a court must determine if there was ongoing

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

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

the time the allegedly defamatory statements are published.

The Texas Supreme Court’s decision in WFAA proves the point. The case dealt

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

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

news reports implied that his actions contributed to the failure of the operation. Id. at 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 role”
in creating the controversy.

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

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

development agreement that included the city’s agreement to use eminent domain to procure

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

events creating the controversy” increases his risk of public exposure. See Dudrick v. Dolcefino,

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

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

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

figure by injecting oneself into a pre-existing public controversy. C.R. at 2754-58. That

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

deal (or business, or any other issue, for that matter) from its inception can never be a public

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

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

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

The case law does not support Royall’s position. People who have significant roles in

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

Page 10
assumption of that role, subjecting themselves to greater public scrutiny. See, e.g., Vice, 2009

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

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

(plaintiff’s “choice” to assume leadership position in convention and visitor’s corporation,

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

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

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

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

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

at company where “sales practices began to draw fire”).

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

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

one that expressly contemplated the use of eminent domain—Royall committed himself to a

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

recommitted himself by signing two amendments to the development agreement that

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

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

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

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

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

Page 11
in the public controversy that project engendered.

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

The final factor in the limited-purpose public figure inquiry is whether the purported

defamatory speech concerned the same controversy in which the plaintiff participated.

WFAA, 978 S.W.2d at 571. Appellants meet this factor; Royall does not dispute that all of

the alleged defamation relates to the marina project and his role in that controversy.

In sum, Royall satisfies all three of the factors required to find that he is a 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 Royall’s limited public figure status.

Issues No. 2 and 3 Restated: Were Appellants entitled to summary judgment that
the statements Royall challenges—about the Freeport marina project, eminent
domain, the constitution, and government action—statements made by “media
defendants” about “matters of public concern”?

B. Royall also bears the burden of proving falsity because the allegedly
defamatory statements address matters of public concern and are
published by media defendants.

Even if Royall were not a limited-purpose public figure, which he is, he still would

bear the burden of proving falsity for the independent reason that the First Amendment

shifts the burden of proof in defamation cases where, as here, a media defendant publishes

allegedly defamatory statements about an issue of public concern. See BE & K Constr. Co. v.

NLRB, 536 U.S. 516, 534 (2002) (there is a constitutional “requirement that private

defamation plaintiffs prove the falsity of speech on matters of public concern”); see also Phila.

Page 12
Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986). Both requirements—a matter of

public concern and media defendants—are satisfied here.

1. The allegedly defamatory statements were about matters of


public concern.

Main’s book is a work of political criticism. She describes, analyzes, and criticizes the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Page 13
government action, constitutional rights, and eminent domain for private redevelopment.

Both federal and state courts weighed in on the legality of the city’s proposed

condemnations. See W. Seafood Co. v. United States, 202 Fed. Appx. 670 (5th Cir. 2006);

Freeport Econ. Dev. Corp. v. Western Seafood Co., No. CI-032664 (Co. Ct. at Law No. 3, Brazoria

County, Tex. Aug. 16, 2004) (Appx. at Tab 12). To Main, what was happening in Freeport

looked a lot like what happened in Kelo. In order to write about the Freeport project, Main

had to write about Royall, who was the sole developer of the project. Importantly, Main’s

discussion and criticism of Royall is limited to that particular role.

Bulldozed was released to the public in the wake of a public controversy, underscoring

the degree to which it is about a matter of public concern. “Speech made in the context of

ongoing commentary and debate in the press is of concern to the public.” Scott v. Godwin,

147 S.W.3d 609, 618 (Tex. App.—Corpus Christi 2004, no pet.); see also United States v. Nat’l

Treasury Employees Union, 513 U.S. 454, 466 (1995) (holding speech was on matter of public

concern partly because it was made “to a public audience”).

In the trial court, Royall argued that Appellants failed to explain why each and every

one of the nearly 100 statements of which he complains addresses a matter of public

concern. C.R. at 2750-53. This demand turns the analysis on its head. Bulldozed is about the

social and constitutional issues surrounding eminent domain for private development. Every

statement Royall identified involves the same set of operative facts: Freeport’s agreement

with Royall to use eminent domain to take land from one private party and give it to Royall.

These are topics of public concern. The trial court thus erred in failing to grant Appellants’

summary judgment that the matters addressed in their statements were “of public concern.”

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, 288–289 (1st Cir. 2002) (book about alleged toxic tort); Partington v. Bugliosi, 56

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

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

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

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

Issues No. 4 and 5 Restated: In response to Appellants’ no-evidence summary


judgment motion, did Royall offer competent summary judgment evidence as to
each element that he must prove in order to establish his claim for defamation?

III. The Trial Court Erred in Denying Summary Judgment Because There is No
Evidence Appellants Wrote a Single Defamatory Statement About Royall.

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

summary judgment on Royall’s libel claims because there is no evidence that any of the 91

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

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

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

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

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

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

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

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

Royall’s decision to object to so many individual statements, and the trial court’s

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

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

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

statement an identifying number. Appx. at Tab 1. 10

Appellants recognize that reviewing Royall’s summary judgment evidence (or the lack

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

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

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

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

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

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

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.3d
496, 501 (Tex. App.—Houston [14 Dist.] 2008) (pet. denied). Appellants also moved that Royall did not
have extrinsic evidence supporting any libel per quod claim. C.R. at 923. As the distinctions between the two
types of libel are not relevant to this appeal, Appellants discuss all libel issues together.
10 Those statements were identified by Royall in the trial court in his brief responding to Appellants’ no-

evidence motion for summary judgment. C.R. at 2744-2817. Appellants have taken each statement from the
responsive brief and put them in the order of the pages in the book. To assist the Court in referring to
specific statements addressed in this brief, each of the statements is individually numbered and will be
referred to herein by its “statement number,” e.g. “Stmt. 5.”

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 Royall’s claim that the “gist” of the book

is itself defamatory. Part V. And finally, Appellants briefly address Royall’s failure to

produce any evidence that Appellants aided, abetted, or ratified a supposedly defamatory

book review written and published by now-dismissed defendants. Part VI.

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

Page 17
A. Royall must offer competent evidence as to each of four independent
elements to survive Appellants’ motion.

1. Most of the statements cannot be defamatory because they are


not verifiable assertions of fact.

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

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

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

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

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

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

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

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

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

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

were statements of fact or directed at plaintiffs).

Milkovich also establishes that opinions are completely protected if the factual

referents are disclosed by the speaker. After Milkovich, the only “opinions” that are not

protected are statements that look like opinion but imply the existence of undisclosed facts.

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

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

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

(because the defendant’s statement followed a “summary of the evidence upon which it

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

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 writer’s

interpretation of the facts presented”).

The U.S. Supreme Court has long acknowledged that an author’s expression of

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

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

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

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

constitutional protection”). A bedrock principle of America’s commitment to free speech is

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

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

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

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

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

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

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

verifiable fact and unverifiable opinion. Wilkow centered around an opinion piece harshly

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

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

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

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 author’s highly negative and insulting views of Wilkow’s actions were

unverifiable opinion. Id.

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

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

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

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

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

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

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

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

statements of verifiable fact.

Page 20
2. A statement can defame a person only if it is “of and concerning”
him; most of the statements at issue are not about Royall at all.

A statement can only defame a person if it is about that person. See Newspapers, Inc. v.

Matthews, 339 S.W.2d 890, 893 (Tex. 1960). Thus, the “of and concerning” requirement

“stands as a significant limitation on the universe of those who may seek a legal remedy for

communications they think to be false and defamatory and to have injured them.” Kirch v.

Liberty Media Corp., 449 F.3d 388, 399-400 (2d Cir. 2006). Of and concerning is “a threshold,

and constitutional, matter.” Diaz v. NBC Universal, Inc., No. 08-1190-cv, 337 Fed. Appx. 94,

96 (2d Cir. 2009).

In Newspapers, Inc., the Texas Supreme Court analyzed the required connection

between the allegedly defamatory statement and the defamation plaintiff and held that the

connection must be very tight indeed. 339 S.W.2d 890. There, a newspaper published an

article claiming that certain automobile wrecking shops were illegally wrecking cars in order

to commit insurance fraud. Id. at 891-93. The article mentioned that criminal charges had

been filed against “Joe R. Rocha, and Alex Hisbrook, operators of the Texas Body Shop.”

Id. at 892. Rocha and Hisbrook were the former owners of the Texas Body Shop and, at the

time the article was published, were still employed there. Id. at 891. The business had been

purchased two months earlier by the plaintiff, Matthews, but the article alleged that fraud

had occurred during that two-month period. Id.

Matthews claimed the article defamed him because it said that the “operators of the

Texas Body Shop” were operating an illegal insurance fraud ring, and that contained the

“implication that he, Matthews, as true owner and operator of the Texas Body Shop, was

operating the shop as a front for Rocha and Hisbrook in their illicit activities.” Id. at 894.

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”

requirement—which must be satisfied as to each one of the 91 statements he has

identified—by offering a generic and conclusory affidavit by a former city employee who

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

concerning” Royall. 2d Supp. C.R. at 183-87 (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 clerk’s office, Appellants properly requested the
evidence Royall submitted in support of his no-evidence motion. However, when the clerk transmitted the
record, it omitted this evidence. Upon agreed motion, this Court granted a request for extension of time to
allow the clerk’s office to supplement the record and ordered the clerk to copy “Plaintiff’s evidence offered in
support of his combined response to the motions for summary judgment.” Appellants also sent a letter to
the clerk’s office specifically listing each piece of evidence that should be included. On the morning of
March 17, 2010, one day before this brief was due, the clerk made the supplemental record available. Instead
of the requested evidence, the clerk copied a number of cases submitted by Royall at the trial court. Rather
than further delay the briefing, Appellants submitted their brief with blanks showing the missing record cites.
Since that time, the record has been supplemented with the omitted evidence. Appellants have corrected the
missing record citations in this Amended Brief. 

Page 22
Royall….The statements in the book about the idea of the marina project, the
use of eminent domain on the project allegedly for Mr. Royall’s benefit, the
claimed effect that the project would have on Western Seafood’s ownership of
its plant, its access to the river, the continued existence of the company and
the comparison of the Freeport marina project to other projects involving
eminent domain were all clearly, in my reading of the book, directed at Walker
Royall and his involvement.

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

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

Royall is incorrect.

Under Texas law, this single conclusory statement cannot carry Royall’s burden. The

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

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

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

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

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

112 (Tex. 1984).

3. Most of the statements relied upon are not capable of defamatory


meaning because they are not specific and offensive statements
about Royall.

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

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

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

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

Page 23
statements are not capable of defamatory meaning. See, e.g., Henriquez v. Cemex Mgmt., Inc.,

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

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

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

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

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

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

are vague or identify Royall’s family connections or business activities also are not capable of

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

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

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

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

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

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

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

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

not met this burden on any statement at all.

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

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

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

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

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

Page 24
B. Five pieces of Royall’s evidence were inadmissible hearsay.

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

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

were inadmissible—as noted in Appellants’ objections to that evidence, C.R. at 2858-80. See

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

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

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

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

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

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

third-party deponents here—two members of the Gore family and Royall’s expert witness in

his case against the Gores—were unavailable. That fact alone rendered the depositions

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

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

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

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

15Contrary to the trial court’s determination, Appellants did not “waive” their objections to this evidence.
C.R. at 2884. As to one of the deposition transcripts—that of David Cole, 2d Supp. C.R. at 378-502 (Pl.’s
Ex. 26), who purports to be an expert on navigation, and upon whose testimony Royall primarily relies for his
evidence about river navigation, C.R. at 2785, Royall never attempted to introduce it previously, so Appellants
could not possibly have waived their objections. As to the other depositions (of Gore family members), 2d
Supp. C.R. at 117-60 and 223-65 (Pl.’s Exs. 3 and 13) Royall previously cited those depositions only with
regard to whether Royall was a public figure, C.R. at 740-45, which was not an issue in the previous summary
judgment motion. See C.R. 46-115. Accordingly, there was no reason for Appellants to object to the
evidence when it was used for that purpose. One does not waive an objection to the use of evidence for one
purpose by not objecting to its use for another purpose. For example, if Royall is correct about his theory of
waiver, Appellants should be able to use the newspaper articles that they introduced to show public figure
status (and to which Royall did not object) for the truth of the matters asserted therein in all future
proceedings in this case.

Page 25
Supp. C.R. at 200 (Pl.’s Ex. 10), was an open letter from officials at the city of Freeport

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

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

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

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

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

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

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

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

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

statement not proper summary judgment evidence).

C. Appellants are entitled to summary judgment as to those pages that


Royall failed to mention and statements that Royall refused to identify.

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

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

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

that form the basis of Main’s conclusions about the project and Royall—Royall provides no

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

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

Page 26
38, 59-62, 101, 212-213, or 269 but failing to identify any supposedly defamatory statement

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

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

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

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

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

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

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

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

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

The best that can be said of Royall’s claims is that he feels that Main’s

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

should have. Royall doesn’t actually claim as defamatory Main’s descriptions about what he

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

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

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

This is Royall’s defamation claim, stripped to its essentials. And under the law, it is

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

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

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

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

national issue of our time—the use of eminent domain for private projects—and a specific

Page 27
example of that issue that played out in Freeport, Texas. As demonstrated below, none of

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

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

The book’s subtitle includes the words, “The American Lust for Land” (Stmt. 2, see

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

part of the title of the book) on Encounter’s website, Main’s website, and in advertisements

for the book. See C.R. at 2780-81, 2786.

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

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

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

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

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

businessmen were “unstable” and “coveted” certain railroad lines was “quintessential”

“provocative” commentary protected by the First Amendment).

Of and Concerning: The subtitle is “the American lust for land,” and there is also a

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

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

defamatory meaning.

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

B. Calling a development agreement “a risky sweetheart deal” is not


defamatory.

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

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

Page 28
and when it appears on the websites, and he also characterizes it as the defamatory “gist” of

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 189-92 (Pl.’s Ex. 8). He does not identify as defamatory the many statements

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

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

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

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

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

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

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

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

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

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

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

are Main’s opinion of Royall’s deal, expressing her belief that Royall got quite beneficial

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

of course, can read the details of the agreement—which are described in the book at pages

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

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

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

Page 29
F.3d 556, 562-63 (5th Cir. 1997) (journalist could call business a “haul and dump operation”

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

(journalist could say that a company’s use of bankruptcy law amounted to an effort to “rob”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Freeport. The phrase “risky sweetheart deal” expresses Main’s opinion about the 2003

Page 30
development agreement between those same parties. Royall characterizes this 2003

agreement, without evidence, as “preliminary.” Bulldozed focuses upon events between 2002

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

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

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

pet.) (reversing denial of summary judgment and holding news broadcast about complaints

of cockroaches at a day-care still substantially true even though report omitted recent

government investigation showing cockroach problem was now solved).

C. Calling a public-private partnership an “unholy alliance between city


politicians and avaricious developers” is not defamatory.

The back cover of the book has a blurb from Richard Epstein, a law professor at

New York University, that refers to the Gore family’s struggle against “the machinations of

an unholy alliance between city politicians and avaricious developers.” Stmt. 3. Royall

objects to both “unholy alliance” and “avaricious developers.” C.R. at 2786-92.

Verifiability: Calling public-private partnerships that involve eminent domain

“unholy” alliances is protected opinion, not verifiable fact. To state the obvious, when

Professor Epstein referred to the deal as an “unholy alliance,” he did not make a factual

assertion about the morality of that arrangement. Rather, he spoke figuratively and

expressed his opinion that agreements between cities and developers to use eminent domain

in this fashion constitute an abuse of power and a tragedy for the individuals involved. Nor

is “avaricious” verifiable. All business people seek to turn a profit. How to characterize that

desire and whether one believes that public-private partnerships distort ordinary business

practices cannot be proved as a matter of fact. Indeed, these are the types of issues that

Page 31
have been the subject of political debate in this country for more than 100 years.

Not surprisingly, then, courts have held that similar statements are protected opinion,

not verifiable fact. See, e.g., Frinzi v. Hanson, 140 N.W.2d 259, 261-62 (Wis. 1966) (“unholy

alliance” not defamatory as a matter of law); see also Myers v. Mobile Press-Register, Inc., 97 So. 2d

819, 822-23, 825 (Ala. 1957) (“unholy combination” not defamatory as a matter of law);

Wilkow v. Forbes, 241 F.3d 552, 557 (7th Cir. 2001) (“an allegation of greed is not defamatory;

sedulous pursuit of self-interest is the engine that propels a market economy”); Church of

Scientology v. Cazares, 638 F.2d 1272, 1289 (5th Cir. 1981) (“rip-off, money motivated

operation” constitutionally protected opinion); Metcalf v. KFOR-TV, Inc., 828 F. Supp. 1515,

1530 (W.D. Okla. 1992) (“greedy doctors” non-defamatory because unverifiable opinion).

Moreover, Royall did not produce any evidence that any of the facts in the book were

defamatory. He objects only to Professor Epstein’s characterization of those facts. For

example, on pages 32-33, Main describes Royall telling the Gores that they could move their

shrimp packing house, perhaps in a no-cost land swap. C.R. at 1032-33. Then, on page 57,

Main describes a report of Royall telling the Gores that their estimate for relocating their

packing house to make way for the marina would be “too expensive.” C.R. at 1057. Royall

did not identify these passages as defamatory and produced no evidence that these facts

were defamatory, just as he produced no evidence showing that Main’s account that the city

was putting up nearly all the cash for the project and using eminent domain was defamatory.

C.R. at 1057-61. Simply put, Royall objects to Main’s conclusions, not the facts upon which

they are based. Conclusions are not defamatory under the First Amendment.

Defamatory meaning: This description is too vague to have defamatory meaning.

Page 32
Falsity: Royall has introduced no evidence either that there was no alliance or that

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

D. Rhetorically equating eminent domain with theft is not


defamatory.

Royall identifies nine supposedly defamatory statements that he claims accuse him of

“stealing.” 16 See C.R. at 2790-91, citing Stmts. 13-16, 24, 49, 61, 63, 68 (Appx. at Tab 1).

Verifiability: An allegation of theft would be both verifiable and defamatory, of

course, but the statements Royall cites contain no allegation of actual stealing. Indeed, only

one of the statements even uses the word “steal” (Stmt. 24). Even there, the statement is a

quote by one of the Gores that in context plainly refers to the city, not to Royall. C.R. at

1035. Wright Gore Jr. was discussing his attempt to convince the city to accept 100 or 150

feet of waterfront property instead of 330 and says “What could it matter? And not steal it

from us.” This is an expression of rhetorical hyperbole about the use of eminent domain,

not an accusation of stealing. The U.S. Supreme Court has held that similar analogies are

protected opinion. See Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 7-8, 14 (1970)

(holding that characterizing a developer’s negotiating position with the city council as

“blackmail” was rhetorical, not an accusation of a crime). One other statement that

supposedly accuses Royall of stealing is a quote from someone at a public meeting who

refers to “coveting thy neighbor’s house” (Stmt. 14). Whether or not one “covets” is not

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

The other statements that Royall claims accuse him of stealing actually involve

16Royall also says these references to “stealing” amount to libel per se. C.R. at 2791. However, since Main did
not actually accuse Royall of the crime of stealing—but rather used the word as rhetorical hyperbole—
Royall’s claim of libel per se must necessarily fail.

Page 33
commentary on the city’s threat to use eminent domain. See, e.g., Stmt. 13 (“My town is

trying to take my family’s shrimping business.”). Whether the city was using or threatening

eminent domain is a statement of fact, but not a fact that Royall claims is false and

defamatory. The book, for example, contains descriptions of the eminent domain lawsuit

filed by the city against the Gores and the course of that litigation. C.R. at 1086, 1171-72,

1263-65. These are not passages that Royall presented in response to the no-evidence

motion. He does not disagree that such a lawsuit was filed by the city. Instead, he objects to

commentary and characterization like Stmt. 68 (“as if taking away family businesses were not

problematic either morally or socially”). Such a statement is simply unverifiable expression

of the author’s views of the moral and social desirability of the use of eminent domain. That

is quintessential political speech, not defamation. See also Stmts. 49, 61, 63.

Of and concerning: Of the statements identified by Royall as accusing him of

stealing, two statements (Stmts. 13 and 16) identify him as the recipient of property to be

taken by eminent domain (a point he does not claim defames him). The others (Stmts. 14,

15, 24, 49, 61, 63, and 68) do not mention or refer to him at all.

Defamatory meaning: The statements that do not refer to Royall are not capable of

defamatory meaning as to him.

Falsity: Royall presented no evidence that Freeport did not seek to take the Gores’

land, nor that his company was not the planned recipient of that land. (Indeed, although

Royall claims—incorrectly—that Appellants have accused him of stealing, he introduced no

evidence that he did not seek to steal the Gores’ property.)

Page 34
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

Royall abused eminent domain. See, e.g., Stmt. 61 (“…if the Gores—who are people of

means and own a substantial business—can have their property snatched out from under

them…”; Stmt. 76 (“…the Gores, the original victims of Royall’s eminent domain abuse

effort in Freeport…”); see also Stmts. 1, 3, 13, 28, 50-51, 57, 62, 67-68, 71, 74-80, 83, 85, 86.

Verifiability: Saying that someone is abusing eminent domain is the expression of a

view on the social and moral desirability of private parties deriving the benefits of eminent

domain. That kind of commentary is wholly protected by the First Amendment. See, e.g.,

N.Y. Times Co. v. Sullivan, 376 U.S. at 269-71; Peterson v. Grisham, 594 F.3d 723, 729 n.7 (10th

Cir. 2010) (“Defendants wrote [books] about a miscarriage of justice and attempted to

encourage political and social change. To the extent their perceptions of the affair were

erroneous, we depend on the marketplace of ideas-not the whim of the bench-to correct

insidious opinions.”). As discussed in Part II, supra, eminent domain for private

development has been the subject of controversy throughout the United States for many

years. Commentary on this subject is unverifiable opinion, not verifiable fact.

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

App.—Fort Worth July 2, 2009, pet. denied) (mem. op.) (Appx. at Tab 9), relied upon by

Royall below, is easily distinguishable. In Brock, a landowner had been in an escalating

disagreement with his city about the platting of his property, drainage, flooding, and eminent

domain. Id. at *1 & n.3. He published a somewhat-rambling paid advertisement in the local

paper that accused Tandy, the mayor, of a felony and official corruption. Id. at *2-5

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(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

document is a felony”). The court found this statement was defamatory and that the overall

gist of the advertisement, which repeatedly accused the mayor of corruption, was defamatory

as well. Id. at *12-13. Such accusations certainly can be defamatory. See Bentley v. Bunton, 94

S.W.3d 561, 581-83 (Tex. 2002). Main’s book, however, does not come close to accusing

Royall of committing a crime or of being corrupt. To the contrary, Main acknowledges that

the actions of Royall and the city were legal. See, e.g., C.R. at 1101 (“Legally, there is nothing

wrong with [the financial terms of the agreement].”); Stmt. 57 (admitting Freeport

condemnation is “public use” under Kelo).

The Brock advertisement also included a statement that the mayor had stolen Brock’s

property by eminent domain, 2009 Tex. App. LEXIS 5171 at *3-4, and from this, Royall

incorrectly concludes that accusing someone of abusing eminent domain is defamatory. C.R.

at 2778-79. The Brock opinion does not say this, and indeed, under well-established First

Amendment law, it could not. Such a ruling would fly in the face of decades of Texas and

Supreme Court precedent protecting political commentary and criticism. See, e.g., N.Y. Times

Co. v. Sullivan, 376 U.S. 254 (1964) (criticism of police department’s treatment of 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.

Page 36
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.

Falsity: Royall has presented no evidence that Freeport did not initiate an eminent

domain action against the Gores or that his company was not the intended recipient of the

land being taken. Nor, for that matter, has he presented evidence that he did not abuse the

power of eminent domain or that being the recipient of condemned property is not abusive.

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


river navigation and the anticipated effect on the Gores’ businesses
does not defame Royall.

A large number of the statements to which Royall objects relate to predictions about

the future effects of the marina project on the Gores’ business, navigation, and Freeport.

C.R. at 2781-83, 2791, 2799-2806. (Royall also claims that some of these statements “are

part of the gist” of the book. C.R. at 2887.) According to the Gores and their lawyer, and as

explained by Main, the proposed project would destroy the Gores’ business 17 in two ways:

(1) the shrimp boats would find it difficult or impossible to reach the shrimp unloading area

and would stop patronizing Western Seafood; 18 and (2) the 330 feet of property that the city

sought to acquire included waterfront access vital to the business. 19 There are additional

statements that do not fall easily into these categories but also relate to the effect of the

project on the Gores’ business. 20

Verifiability: Each statement about future navigation and the future of the Gores’

business is ultimately unverifiable. Indeed, courts have routinely held that predictions about

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.

Page 37
future business events are unverifiable opinion, not verifiable fact. See, e.g., Compuware Corp.

v. Moody’s Investors Servs., 499 F.3d 520, 529 (6th Cir. 2007) (holding credit rating is “a

predictive opinion, dependent on a subjective and discretionary weighing of complex

factors”); Republic Tobacco v. N. Atl. Trading Co., No. 06-2738 2007 U.S. Dist. LEXIS 38079,

*34-35 (N.D. Ill. May 10, 2007) (statement that consumer confusion will occur between two

products not defamatory as “a prediction of future events can neither be true nor false”);

Amcor Inv. Corp. v. Cox Ariz. Publ’ns, 764 P.2d 327, 330-31 (Ariz. Ct. App. 1988), rev. denied

(criticism of government officials regarding approval of development near airport not

capable of being defamatory because “predictions of future events or conditions” are not

generally understood as allegations of fact).

Royall objects to statements he views as creating “the impression that the marina

required a choice between the progress promised by the marina and the continued existence

of Western Seafood.” See C.R. at 2799-2806 (citing Stmts. 6-13, 18, 20-21, 25-30, 32-44, 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

city’s application for a marina permit, says that he anticipates the project will “so constrain

and confine navigation” on the river that the shrimp vessels “will elect to” go elsewhere.

Stmts. 39. That prediction of what will happen in the future is no different than a

downtown business predicting that a city’s new traffic plan will discourage pedestrian traffic

and thus ruin his business—and just as unverifiable.

Page 38
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

ability to operate Western Seafood. Had they lost water access, the value of their riverfront

property would have been practically nil. They certainly would have lost all leverage. It would have

been over before the Gores ever had a fighting chance.” See Stmt. 34 (emphasis added). That

statement is couched in conditional, predictive language. It is the Gores’ opinion about what

would happen in the future if the Army Corps of Engineers granted the city’s application.

The book’s statements that “a family business was at stake” (Stmt. 35) is the same type of

prediction. One of the supposedly defamatory statements is Main’s summary of a federal

court decision about the dispute, which Main saw as taking a cavalier attitude toward

“wiping out” the Gores’ business (Stmt. 56). The Gores believed the project would destroy

their business; Royall believed it would not. Royall is certainly entitled to his opinion. But

he is not entitled to ban Main’s book or dictate its contents to match his own views about

unprovable predictions of future events.

Nor can a defamation claim be based on statements about the risks inherent in

economic development projects. See Stmts. 65 (“And here’s what is galling about the 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? It’s hard

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

not verifiable. Main’s book expresses her view that Freeport’s policymaking is “galling.”

Some—perhaps including Royall—may well disagree and call it “visionary.” The First

Page 39
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.

Here, Royall seeks to punish an author for describing a lawyer’s written objection to

an Army Corps of Engineers application; for explaining why an owner fought the use of

eminent domain; for describing a federal court decision; and for expressing her views about

what constitutes sound policymaking. Concern about protecting such speech is exactly why

courts repeatedly have refused to allow defamation law to be used to suppress commentary

on important political and social issues.

Of and Concerning: Of the statements on this issue, most do not mention Royall at

all, and thus are not of and concerning him. 21 The few that do mention him do so only in

the context of being the recipient of the property being taken. See Stmts. 6, 8, 13, 50-51.

Defamatory meaning: Statements that do not refer to Royall are not capable of

defamatory meaning as to him.

Falsity: For virtually all of the supposedly defamatory statements, Royall presents no

evidence of falsity other than on the issue of whether the Gores’ business would be

destroyed. Statement 50 provides a good example:

And now the city was insisting that his land was worth only $260,000—leaving
him with an absurd “buffer zone” that meant the end of Western Seafood—
and turning it over to a partnership owned by heirs of the Blaffer family, who
didn’t even have to pay hard cash for it. The city was going to loan them
money to build a private marina. Saying it out loud made it sound unreal.

Royall tries to present evidence that the project would not “mean the end of Western

Seafood,” but he presents no evidence that the facts in this statement are false, including the

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

Page 40
$260,000, the use of eminent domain, giving the property to Royall’s family, the fact that

they would not have to pay cash, or even the fact that Wright Gore Jr. believed the project

would destroy the business. 22 See C.R. at 2799-2708.

As discussed above, the evidence Royall relies upon for “falsity” of these predictions

is inadmissible hearsay. Part III.B. If the Court agrees it is inadmissible, then Royall has no

evidence of falsity at all. However, even if the Court believes the evidence is admissible, it

cannot carry Royall’s burden on the no-evidence motion. Royall offered deposition

testimony in an effort to show that the marina project would not disrupt navigation on the

river and thus not harm Western Seafood’s business. 23 C.R. at 2784-86. Because the future

of Western Seafood’s business is unverifiable, Royall’s supposed “evidence” concerning his

opinion of that future is wholly irrelevant.

G. Statements about Royall’s positions and companies are not


defamatory.

Two statements identified by Royall as defamatory say that he sat on the board of

another company, Sun Resorts. See Stmts. 17, 22. One says that his company, Freeport

Waterfront Properties, was formed in March 2002, shortly before a new Freeport master

plan suggesting a marina on the project site. See Stmts. 45.

Defamatory Meaning: Such statements are not capable of defamatory meaning.

Falsity: Royall introduced evidence that he did sit on the advisory board of Sun

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 be
defamatory that discuss the marina project and river navigation. See Stmts. 26, 27, 36-39, 58.
23 Royall also introduces deposition testimony to show that the condemnation would not take the actual

shrimp packing house but only adjacent land. 2d Supp. C.R. at 117-60 and 223-65 (Pl.’s Exs. 3 and 13). As
Bulldozed makes this same point repeatedly, see, e.g., Stmts. 25, 30, 32, 34, 40, 44, the deposition testimony does
not show anything in the book to be false.

Page 41
Resorts. 2d Supp. C.R. at 189-92 (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

Sun Resorts joined the project, at Sun Resorts’ request. 2d Supp. C.R. at 189-92 (Pl.’s Ex. 8).

This additional fact does not render Main’s account false. See, e.g., Winfrey, 201 F.3d at 689

(omitting additional explanatory facts not defamatory). Moreover, Royall offered no

evidence of the date of formation of Freeport Waterfront Properties or the master plan.

H. Saying the city approached Royall about the project is not


defamatory.

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

and approached Royall’s family about doing it. See Stmts. 5, 53, 70, 89. Royall claims,

incorrectly, that these say that he initiated the project. C.R. at 2792-94. 24 He then argues

that he did not initiate the project. C.R. at 2793-94.

Defamatory Meaning: Royall claims the defamation lies in the claim that he

initiated the project. This statement would not be defamatory, but it does not matter,

because Appellants have consistently said that Royall was approached by the city.

Falsity: In support of his claim that he did not initiate the project, Royall cites to

non-existent evidence. See C.R. at 2793, citing non-existent exhibits G, P, and Y.

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


defamatory.

Royall also objects to statements in the book that the marina project was not subject

to competitive bidding. See Stmts. 31, 46.

Of and Concerning: There is no suggestion in the book that Royall was responsible

24Royall also claims that Stmts. 4, 6, 7, 19, 23 say he initiated the project. See C.R. at 2792-93. None of these
statements say anything about who initiated the project, or the agreement, or eminent domain.

Page 42
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.

Defamatory Meaning: These statements are not about Royall and thus not capable

of defamatory meaning as to him.

Falsity: Royall’s evidence shows that there was no competitive bidding. Royall relies

upon a statement by Lee Cameron, former director of the Freeport EDC, saying that he

once phoned another developer to see if that person would be interested in the project. 2d

Supp. C.R. at 183-87 (Pl.’s Ex. 7). Main says “there is nothing in the public record to suggest

that the city ever considered any other builder, much less opening up the process to

competitive bidding.” See Stmt. 46. Sequentially approaching two developers is not

“competitive bidding.” The fact that Cameron once made an unsuccessful phone call to

another developer does not disprove Main’s statement that there is nothing in the public

record. Cameron’s affidavit confirms the truth of Main’s statements about the lack of

competitive bidding on the project.

J. “He seemed to be calling on behalf of Walker Royall” is not


defamatory.

Royall also claims that he was defamed by a passage about a phone call from Lee

Cameron to Wright Gore, Jr. The book quotes Wright Gore, Jr. as saying “he seemed to be

calling on behalf of Walker Royall.” See Stmt. 19.

Falsity: To supposedly contradict this, Royall presents a statement from Cameron

that says Bulldozed makes “a claim that I [Cameron] called Wright Gore, Jr., and claimed to

be representing Walker Royall. I never made any such statement.” 2d Supp. C.R. at 183-87

(Pl.’s Ex. 7). But the book never says that Cameron made such a statement. It quotes Gore

Page 43
Jr. quoting Cameron as saying “Walker wants to buy this property.” Cameron’s affidavit

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

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

Royall contends he has been defamed by the “gist” of Bulldozed. His discussion of the

gist of the book focuses not on the text of the book, but on summaries of the book from the

book cover and other documents. See C.R. at 2780-83 (citing Stmts. 1-3, 73-85). He also

incorporates his discussion of certain other statements by reference. See C.R. at 2794-95,

2807. Royall’s “gist” claim fails, and the trial court should have granted Appellants’ motion

for summary judgment.

First, although titled a claim about “gist,” Royall’s claim badly misunderstands Texas

law on gist claims. He entirely fails to argue, as this Court requires, that the book got the

details right but the gist wrong. Second, even assuming Royall has brought a proper gist

claim, Appellants were entitled to summary judgment on that claim. Royall’s allegedly

defamatory “gist” is simply a differing opinion about the marina project, not implied facts.

It cannot give rise to a defamation claim. Even if one considers in their own right the

statements from the book cover, press releases, websites, independent book review, and

editorial that Royall identifies as conveying the gist of the book, they are unverifiable

statements of opinion and protected by the First Amendment. Additionally, Royall has

presented no evidence that the gist of the book is false.

A. Royall has not brought a proper “gist” claim.

A claim that one has been defamed by the gist of a publication is a unique claim

under Texas law. As described by both the Texas Supreme Court and this Court, it is a

Page 44
claim that a publication has got the details right but has, “by omission or misleading

juxtaposition connote[d] false facts even though it does not state them directly.” Turner v.

KTRK Television, Inc., 38 S.W.3d 103, 116 (Tex. 2000). This Court, interpreting Turner, has

held that a plaintiff failed to bring a proper gist claim where, as here, there was no allegation

that the publication “got the details right but fail[ed] to put them in the proper context,

thereby getting the ‘gist’ wrong.” Wheeler v. New Times, Inc., 49 S.W.3d 471, 476 (Tex. App.—

Dallas 2001, no pet.); see also Associated Press v. Boyd, No. 05-04-01172-CV, 2005 Tex. App.

LEXIS 3715, at *4-5 (Tex. App.—Dallas May 16, 2005, no pet.) (mem. op.) (explaining

Turner to mean that “the plaintiff may recover even if the discrete facts are literally or

substantially true, provided they are published in such a way that they create a substantially

false and defamatory impression by omitting material facts or juxtaposing facts in a

misleading way” (Appx. at Tab 8)).

Royall has not brought this type of claim. In response to the no-evidence motion, he

did not argue that Main’s book got the details right but created a false and defamatory

impression of fact. He did not identify facts the book supposedly omitted or juxtapositions

that created a misleading impression. See Turner, 38 S.W.3d at 116. The failure to engage in

this analysis contrasts sharply with Turner, which engaged in painstaking textual analysis to

show how the juxtaposition of sentences and the omission of certain facts conveyed a false

factual impression—that the plaintiff, a lawyer, had known about a fraudulent scheme

undertaken by a client. See Turner, 38 S.W.3d at 117-19. Because Royall has failed to make

any such showing here, his gist claim fails as a matter of law.

Page 45
B. Royall’s gist claim improperly objects to unverifiable opinion, not
implied facts.

In his response to the no-evidence motion, Royall identified what he believes to be

the false and defamatory statements of fact that he claims are conveyed by the book.

According to Royall, Bulldozed claimed “that plaintiff and city of Freeport were attempting to

take away the business of Western Seafood, which [it] repeatedly describe[d] as owned by

three generations of the Gore family, and property that the Gore family owned for 56 years.

[Bulldozed falsely characterized] the marina plan as a conflict between the ‘unholy alliance’

between plaintiff and the city government on the one hand, and the three generation family

business on the other[.]” C.R. at 2784. This gist is false, Royall claims, because:

 Bulldozed says that the Gore family owned the particular tract to be taken for 56 years, but
in fact, the Gores had not owned the tract that long; they began leasing it in the 1980s
and purchased it later. C.R. at 2783-84.
 The city only “planned to include in the marina development” 330 feet of the Gores
river frontage, and, according to Royall, Main portrays this land as part of the shrimp
processing plant, which it is not. C.R. at 2784.
 “It was false to state that plaintiff and Freeport were trying to take the business itself
and turn it into a marina,” because Freeport was taking only a part of the land, which did
not contain “the plant or docks themselves.” C.R. at 2784.
 Bulldozed claims that the loss of the 330 feet of river frontage would block necessary
access to the unloading docks, but in fact “qualified” shrimp boat captains would still be
able to access the docks if they were “willing to try.” C.R. at 2784-85.

With regard to the first of these points, Royall does not dispute that the Gore

shrimping business is a three-generation family business. He just points out that the Gores

(or their business, Western Seafood) have owned the particular tract the city tried to

condemn for less than 50 years. This is the kind of trivial distinction that courts routinely

ignore. See, e.g., Morris v. Dallas Morning News, 934 S.W.2d 410, 416 (Tex. App.—Waco 1996,

writ denied) (“law on defamation overlooks minor inaccuracies and concentrates upon

Page 46
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

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

As to Royall’s claim that the book says the land being taken included the shrimp

processing plant or packing house, again, none of the quotes provided by Royall actually say

that. See C.R. at 2780-83. And, indeed, the book is quite clear that the city was not taking

any of the processing plant or packing house but instead was taking other waterfront land.

See, e.g., C.R. at 1035, 1041, 1044, 1045, 1049, 1056

This leaves the same argument discussed in Part IV.F above—the Gores thought the

project would destroy their business and Royall disagreed. Bulldozed largely takes the Gores’

side in this disagreement. As discussed above, this type of prediction of the future effect of

a public project on an existing business is a classic example of “predictive opinion” that

cannot be proven true or false and thus cannot be defamatory. Moreover, nonfiction books

frequently tell their stories from the perspective of certain people, and it is not defamatory to

do so. See, e.g., Riley v. Harr, 292 F.3d 282, 297-98 (1st Cir. 2002) (describing one person’s

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

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

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

plaintiff’s failure to convey tipoff not defamatory) (Appx. at Tab 15).

The true gist of Bulldozed is political and social criticism of the use of eminent domain

for private development. Royall is certainly entitled to disagree. But he cannot, by way of

Page 47
this lawsuit, seek to elevate that disagreement to a claim for defamation—much less attempt

to suppress Appellants’ speech by banning the book altogether.

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

As already demonstrated supra at Part IV.F, Royall’s evidence that the Gores’ business

would not be destroyed does not overcome his no-evidence summary judgment burden of

proving falsity. He has presented no other evidence that the “gist” of the book is false.

Accordingly, the trial court should have granted summary judgment for Appellants.

Issue No. 6 Restated: In response to Appellants’ no-evidence summary judgment


motion, did Royall offer competent summary judgment evidence that Appellants
aided, abetted, or ratified allegedly defamatory speech by Mark Lardas?

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


Defamation in Mark Lardas’ Book Review of Bulldozed.

Royall also alleged that Appellants “aided and abetted” and “ratified” the publication

of what he claims to be a defamatory book review written and published by now-dismissed

defendants, Mark Lardas and Southern Newspapers. C.R. at 27-8. Appellants moved for

summary judgment that Royall had no evidence that Appellants aided and abetted or ratified

the defamation of anyone else. C.R. at 923. Royall produced no evidence that Appellants

aided, abetted, or ratified the book review. See C.R. at 2811-15. The trial court erred in

denying summary judgment.

PRAYER

For the foregoing reasons, and pursuant to Texas Rule of Appellate Procedure 43,

Appellants Carla T. Main and Encounter for Culture and Education, Inc., ask this Court to

sustain the issues presented, hold that the trial court erred by overruling their objections to

Royall’s summary judgment evidence, reverse the district court’s orders denying their

Page 48
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


Plaintiff’s 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.)
Pg. in
Pl’s
# Allegedly Defamatory Statement Source Resp.
1 Three generations of Gores built Western Seafood into a thriving business Book Cover, C.R.
that stood up against fierce competition and market flux. But Freeport was Websites 2770,
struggling, and city officials decided that a private yacht marina on the Old C.R. 995, 2780-
Brazos River might save it. They would use eminent domain to take the 1320, 1340, 81
Gores’ waterfront property and hand it over to the developer, an heir of a 1368
legendary Texas oil family, in a risky sweetheart deal.

2 The American Lust for Land Book, Book C.R.


Cover 2780-
Websites, 81
Ads
C.R. 994,
1318-21,
1340, 1343,
1347, 1352,
1354-68,
1370

3 Like a Greek tragedy unfolding, Carla Main’s book chronicles the eminent Book Cover, C.R.
domain struggles in Freeport, Texas, which pitted the Gore family, with its Press 2770,
longtime shrimp business, against the machinations of an unholy alliance Release, 2781,
between city politicians and avaricious developers. If you have ever shared Websites 2787
the Supreme Court’s unquestioned deference to the public planning process C.R. 1314,
that shaped its ill-fated Kelo decision, you’ll surely change your mind as you 1318-19,
follow this sordid saga to its bitter end. You’ll never look at eminent domain 1321, 1324,
in the same way again. 1344, 1374

4 But there is more than one way to acquire a piece of land. The young man has Book C.R.
a limited partnership. A deal is negotiated between his limited partnership and C.R. 1003 2792
the city; copies circulate of a development agreement for a marina in Freeport.
The city works hard to make the agreement happen.

5 Walker has agreed to the proposition put to him by the town—at least that’s Book C.R.
how people on the city council tell it. That is to say, Walker did not seek out C.R. 1003 2792
this deal. No, no, no.

6 And what of the Gores’ land? Here is where the city must grit its teeth and Book C.R.
make good on its promise if this deal is to happen: It must choose among its C.R. 1004 2793,
sons. The Gores have been in business in this thirteen-square-mile town for 2800
half a century. They employ fifty-six people, not counting the dozens of
shrimp trawlers who sell their catch to them. The Gores’ fate is closely tied to
Trico Inc., a shrimp boat operator on the Old Brazos River. Trico will also be
affected by the marina plan. If one falls, so will the other.

Appellants’ Appendix Tab 1 Page 1 of 10


Pg. in
Pl’s
# Allegedly Defamatory Statement Source Resp.
7 But a deal is a deal, and a bright gleaming future lies ahead. In addition to Book C.R.
coughing up $6 million, the town must make the Gores’ land available, as well C.R. 1004 2793,
as the land of all the other businesses on the Old Brazos River. 2800

8 A rising tide lifts all boats. Well, not all boats; a few of them have to be sunk Book C.R.
first to make way for the developer. C.R. 1005 2801

9 …they spend more than $450,000 in legal fees to save their business. Book C.R.
C.R. 1005 2802

10 …the Gores watch and wait during the winter and spring of 2004–2005 for Book C.R.
the decision in Kelo that will likely seal their fate. C.R. 1005 2802

11 The justices on the Supreme Court have no idea that their decision in Kelo Book C.R.
could determine whether those Vietnamese shrimp trawlers will find Western C.R. 1006 2802
Seafood still there when they come back to the Old Brazos River next year.

12 The Gores believe that the free market should decide whether they stay in Book C.R.
business or fold. C.R. 1006 2802

13 “Ma’am,” he said politely, in a drawl I couldn’t quite place, “I hope it’s all Book C.R.
right if I record this event. My town is trying to take my family’s shrimping C.R. 1007 2790,
business. They want to build a marina. And the worst thing is, they want to 2802
give the land to our next-door neighbor.”

14 They call it sound economic planning. At a town hall meeting in Freeport Book C.R.
about the marina controversy, a woman in the audience had another name for C.R. 1011 2791
it: “coveting thy neighbor’s house.”

15 An old man lies in bed surrounded…. The old man tells him, “Don’t let them Book C.R.
take it from me.” It wasn’t the way Pappy Gore’s life was supposed to end. C.R. 1015 2791
Not given how far he had come.

16 …H. Walker Royall was slated to be the developer of the Freeport marina Book C.R.
project, for which the City of Freeport wanted to take Pappy Gore’s property. C.R. 1018 2791

17 He runs an investment company in Dallas and serves on the advisory board of Book C.R.
a company called Sun Resorts, which operates commercial marinas in the C.R. 1021 2794
Texas Gulf region and in the Caribbean.

18 For fifty-six years, Freeport was very glad to have them there. Book C.R.
C.R. 1027 2802

Appellants’ Appendix Tab 1 Page 2 of 10


Pg. in
Pl’s
# Allegedly Defamatory Statement Source Resp.
19 He seemed to be calling on behalf of H. Walker Royall, which was odd, Book C.R.
because Lee worked for the city and Walker was a private citizen. “Walker C.R. 1030 2793
wants to buy this property,” he said.

20 …their children’s future and their own retirement on the assumption that Book C.R.
Western Seafood would continue as a family business as long as the market C.R. 1030 2802
held out.

21 “…that they were gonna put the marina on our property.” Book C.R.
C.R. 1030 2802

22 Walker sits on the advisory board of Sun Resorts, a well-known marina Book C.R.
management company on the Gulf Coast. C.R. 1033 2794

23 That the whole point of the project was to develop the part of the river where Book C.R.
the Blaffer land sat, and to make a happy marriage of that parcel and C.R. 1034 2793
everything else that Freeport, a willing bride, could give away as its dowry.

24 “And not steal it from us.” Book C.R.


C.R. 1035 2791

25 Now the city was pestering Wright Jr. in earnest about 330 linear feet of Book C.R.
Western Seafood property directly east of the packing house. If the city were C.R. 1035 2802
actually to take this waterfront land by eminent domain, as they were
threatening to do with some of the properties downriver, the docks and the
packing house would be unusable. The Gores repeatedly offered to negotiate
a compromise: Take 100 feet. Hell, take 150. Leave us the rest, the upriver
portion, they said, so we can still access the river and offload the shrimp.

26 [T]he Old Brazos is too narrow and too shallow for oceangoing barges or Book C.R.
container ships to navigate, but the shrimping boats do just fine. C.R. 1037 2803

27 But Western Seafood—with its river traffic of lumbering shrimp boats and an Book C.R.
industrial-looking packing house—was standing in the way of progress. Never C.R. 1040 2801
mind that there was far uglier stuff on the north side of the river. The
guillotine that Wright Jr. made possible was about to come down on his head.

28 The city is prepared to elbow out anyone it has to from the land inside the Book C.R.
guillotine gate in order to do this deal—to put an end to those silent rebukes C.R. 1040 2801
once and for all.

29 It would be insanity to put them out of business. Book C.R.


C.R. 1041 2801

Appellants’ Appendix Tab 1 Page 3 of 10


Pg. in
Pl’s
# Allegedly Defamatory Statement Source Resp.
30 Wright Jr. explained to them that the 330 linear feet of property directly to the Book C.R.
east of the blue packing house meant life or death for Western Seafood. C.R. 1041 2803

This was the crucial waterfront land used for offloading shrimp from the
boats into the processing plant. The 330 feet constituted the “packing line,”
where boats lined up and a complex system of cranes and conveyors brought
millions of pounds of shrimp out of the ships’ hulls and hauled it into the
plant. Without that land, the packing house would be like an airport without a
runway.

31 The newspaper had another wild idea: competitive bidding, at least for some Book C.R.
of the project. C.R. 1042 2795

32 If the Army Corps approved the plans, “they would have had everything of Book C.R.
value associated with that 330 feet of waterfront property in front of Western C.R. 1044 2803
Seafood,” Wright Jr. explained. Imagine an airplane terminal that lacks
clearance for planes to take off. Without river access, there could be no
Western Seafood. Without Western Seafood, there is no need for Marine and
Industrial Specialties, as the shrimp trawlers would have no reason to moor
their boats on the Old Brazos River and buy supplies there. The Gores would
go out of business.

33 Without opposition, it’s far likelier that the right to build the docks would Book C.R.
have been granted. The fish house would have been cut off from the river C.R. 1045 2803
permanently.

34 [T]he Gores would have been crippled financially and legally by having lost Book C.R.
their access to the Old Brazos River and hence their ability to operate Western C.R. 1045 2803
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.

35 …a family business was at stake. Book C.R.


C.R. 1046 2803

36 … serious safety concerns about the marina plans. Book C.R.


C.R. 1047 2804

37 Randy alleged that the overall design was aimed at pushing out the shrimping Book C.R.
industry. C.R. 1048 2801

Appellants’ Appendix Tab 1 Page 4 of 10


Pg. in
Pl’s
# Allegedly Defamatory Statement Source Resp.
38 [If] ships had much less room to navigate than it appeared, then this was “an Book C.R.
accident waiting to happen” when ships passed under the bridge, Randy C.R. 1048 2804
wrote. The piers would restrict visibility near the bridge for ships passing
beneath. And they would eliminate the deepest, central channel of the river
for navigation by larger boats—namely, the shrimp trawlers. The result would
be that shrimp trawlers would have to avoid the docks by passing under the
bridge at the far end, a much more dangerous and restricted kind of
navigation in shallower waters.

39 The “applicant” plans to so constrain and confine navigation of [the channel Book C.R.
downstream from Western Seafood] that the vessels that the business has C.R. 1048-49 2804
served for years will elect to go elsewhere.

40 [C]ity representatives had been engaged in negotiations with the Gores about Book C.R.
Western Seafood’s 330 feet of waterfront property without dropping any hint C.R. 1049 2803-
about the noose tightening around their necks—without mentioning the 04
application to the Army Corps for permission to build docks that would
choke off their river access and render their shrimp-packing plant a useless
hulk.

41 Wright Jr.’s experience of having only four days to save his business… Book C.R.
C.R. 1053 2803

42 “[T]hey went behind our backs to the U.S. Army Corps of Engineers and Book C.R.
applied for a permit that would literally remove our docks and our access to C.R. 1053 2804
our waterfront property.”

43 That would be the only way to save the business if the marina were pressed up Book C.R.
close to it, cheek to jowl, as that little Xerox picture showed. C.R. 1056 2804

44 So in the case of Western Seafood, the city planned to take a long, skinny strip Book C.R.
of waterfront property just to the east of the packing house. It wasn’t going to C.R. 1056 2804
take the land that the packing house sat on. Heavens, no.

45 The company had been formed in March 2002, six months before the Book C.R.
consultants retained by the city issued the master plan suggesting that C.R. 1057 2793
Freeport build a marina on the Old Brazos River.

46 There is nothing in the public record to suggest that the city ever considered Book C.R.
any other builder, much less opening up the process to competitive bidding. C.R. 1062 2795

47 First, the parties negotiated a deal to save a family business… Book C.R.
C.R. 1067 2805

Appellants’ Appendix Tab 1 Page 5 of 10


Pg. in
Pl’s
# Allegedly Defamatory Statement Source Resp.
48 Wright III demanded that they take the “gun away from our temples.” Book C.R.
C.R. 1067 2805

49 The city was taking away his grandfather’s business, ripping the land out from Book C.R.
under them—the irreplaceable 330-foot chunk of America… C.R. 1069 2791,
2804

50 And now the city was insisting that his land was worth only $260,000— Book C.R.
leaving him with an absurd “buffer zone” that meant the end of Western C.R. 1069 2801
Seafood—and turning it over to a partnership owned by heirs of the Blaffer
family, who didn’t even have to pay hard cash for it. The city was going to
loan them money to build a private marina. Saying it out loud made it sound
unreal.

51 There was no doubt that Walker had become the object of Wright III’s Book C.R.
deepest anger, the personification of the calamity that had befallen his family. C.R. 1072 2801
The idea that someone born into the upper echelons of America’s class
structure should benefit from an eminent domain deal involving the taking of
Pappy’s business was too much for him. And for Wright, it was always Pappy’s
business.

52 In countless interviews with local media, Wright III does not speak about Book C.R.
saving his father’s business, though Wright Jr. has been the head of the C.R. 1073 2805
business for twenty years now. Nor does he talk about saving “the family
business” or even “Western Seafood.” He talks about saving “my
grandfather’s business.”

53 One gets the impression that it was simply a case of noblesse oblige. The city Book C.R.
called upon Walker, he answered the call. And what a fuss and bother C.R. 1074 2792
afterward!

54 Wright III would save his grandfather’s business, or he would die trying. Book C.R.
C.R. 1074 2805

55 They had gone into court on an emergency basis to obtain an injunction to Book C.R.
stop the Army Corps from granting the city a permit that would have resulted C.R. 1081 2804-
in cutting off Western Seafood’s access to the Old Brazos River, putting them 05
out of business entirely.

56 Wiping out Western Seafood, the judge’s dicta suggested, is no big woof Book C.R.
because, gee whiz, it was slated for the mothballs soon anyway and everyone C.R. 1091 2805
knows that freshwater shrimping has gone out of style.

Appellants’ Appendix Tab 1 Page 6 of 10


Pg. in
Pl’s
# Allegedly Defamatory Statement Source Resp.
57 The fate of Western Seafood would be determined not by the free market, but Book C.R.
by five men voting on the city council, and by a federal judge who believed C.R. 1092 2805
that a viable business, still earning a profit, should be shelved in a museum to
make way for a plan that even the court called “speculative.” This is public
use. This is now the American way.

58 But his concern when he attended that meeting was to make sure people Book C.R.
wouldn’t be killing each other on the river. It seemed to him that people C.R. 1101 2804
weren’t taking into account the navigation issues on the Old Brazos.

59 They were trying to keep their lifesaving injunction from unraveling before Book C.R.
their eyes in federal court… C.R. 1179 2805

60 At the moment, as long as they have their land, the Gores are hanging… Book C.R.
C.R. 1181 2805

61 …if the Gores—who are people of means and own a substantial business— Book C.R.
can have their property snatched out from under them… C.R. 1204 2791

62 …the city was condemning one of the oldest employers in Freeport and Book C.R.
wiping out real jobs. C.R. 1208 2805

63 …the taking of a family business that employs fifty-six Freeport residents. Book C.R.
C.R. 1245-46 2791,
2805

64 [P]eople who now held the Gores’ fate in their hands with an unabashedly Book C.R.
pro-marina agenda. C.R. 1250 2805

65 And here’s what is galling about the tax revenue comparison in an economic Book C.R.
development taking: it is a comparison of a real, live revenue stream against C.R. 1252 2801
anticipated taxes from a phantom.

66 Does Western Seafood stimulate the economy in Freeport? Certainly. Will the Book C.R.
marina? It’s hard to say. C.R. 1252 2801

67 It doesn’t matter who gets rolled over by those huge wagon wheels in the Book C.R.
process. The past be damned. In the meantime, the pressure mounts… C.R. 1252 2801

68 …as if taking away family businesses were not problematic either morally or Book C.R.
socially… C.R. 1259 2791,
2805-
06

Appellants’ Appendix Tab 1 Page 7 of 10


Pg. in
Pl’s
# Allegedly Defamatory Statement Source Resp.
69 The city had framed the marina project as one in which a smattering of Book C.R.
businesses along the Old Brazos River would be sacrificed for the economic C.R. 1259-60 2802
good of all the homeowners in the entire city, while no homeowners would
ever have to sacrifice their homes. Only those Gores (who live in Lake Jackson,
anyway) and two or three other businessmen would lose…

70 They were rebutting the position of the Gore family that the whole marina Book C.R.
idea was dreamed up by Walker. To the contrary, they insisted it was the city’s C.R. 1261 2793
idea and believed the city should get the credit for it.

71 They would use eminent domain to take the Gores’ waterfront property and Encounter C.R.
hand it over to the developer, an heir of a legendary Texas oil family, in a risky Website 2770
sweetheart deal. C.R. 1320,
1340, 1368

72 But then things change in Freeport; the city government decides to build a Main C.R.
commercial marina on the river, loaning money to the heir of a great Texas oil Website 2770
family – a family that owns land on the river next door to Western Seafood. C.R. 1318-
… 19, 1321
The city wants to turn the land over to Western Seafood’s next door neighbor
– a descendant of a great Texas oil family – who will build the marina.

73 Small Town Texas Family vs. Big Oil Tycoon Encounter C.R.
The Story of Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land Press Release 2770-
… 2d Supp. 71,
But as time went on, a young man by the name of Royall (a descendant of the C.R. 295 2782
Exxon and Texaco family), came into this small town and saw something in
Freeport. Something that didn’t exist yet. He saw yachts, a great resort, and a
private marina. And he saw it right where Western Seafood stood.

74 What is Bulldozed about? Main C.R.


Website 2781
Bulldozed tells the story of the Gore family, who have owned a shrimp
C.R. 1316,
processing plant in Freeport, Texas for three generations. The book
chronicles their struggle as they fight, for three years, to stop the town council 1334
from taking their land in eminent domain and turning it over to their neighbor
to build a riverfront marina. Against that backdrop, Bulldozed also takes a look
at American history and addresses the question: how did we get here?

Appellants’ Appendix Tab 1 Page 8 of 10


Pg. in
Pl’s
# Allegedly Defamatory Statement Source Resp.
75 Royall worked with the city of Freeport, Texas, to try to condemn a Press Release C.R.
generations-old shrimp business owned by the Gore family to make way for a C.R. 1373 2771,
luxury marina. 2782-
… 83
Bulldozed tells the story of Freeport’s plan to take the Gore’s waterfront
property for Royall’s luxury marina development project.

76 …the Gores—the original victims of Royall’s eminent domain abuse effort in Press Release C.R.
Freeport… C.R. 1373 2771,
2783

77 ...the threat of condemnation continues to hang over the Gores. Press Release C.R.
C.R. 1373 2783

78 After journalist Main wrote her book exposing the Freeport land grab… Press Release C.R.
C.R. 1373 2783

79 …his indefensible effort to have the government take someone’s land for his Press Release C.R.
private redevelopment project… C.R. 1373 2783

80 …eminent domain abuse by governments and private developers. Press Release C.R.
C.R. 1374 2783

81 Bulldozed… follows the struggle of a family named Gore to save the shrimp Editorial C.R.
processing business founded by their grandfather from being destroyed. A C.R. 1376-77 2783
plan to build a commercial marina in Freeport would seize critical waterfront
property from the Gores, making it impossible for their business to survive.

82 [Western Seafood] needed access to the riverside. The land and buildings that Lardas C.R.
Western Seafood owned were worth $2.3 million. Review 2781
C.R. 1370

83 The City decided to seize the land for the marina through eminent domain. Lardas C.R.
The full $2.3 million was too expensive, so the City went after a small Review 2782
waterfront strip worth a few hundred thousand. C.R. 1370

84 Losing waterfront access would put Western Seafood out of business. The Lardas C.R.
City viewed that as a plus. Review 2782
C.R. 1370

85 When the City needed the land on which the processing plant stood, it would Lardas C.R.
be abandoned. It could then be condemned at salvage prices. Review 2782
C.R. 1370

Appellants’ Appendix Tab 1 Page 9 of 10


Pg. in
Pl’s
# Allegedly Defamatory Statement Source Resp.
86 Royall is a wealthy man who, having volunteered to be the developer in a Editorial C.R.
municipal construction project that involved eminent domain… C.R. 1376 2771

87 Royall is one of many people who figure in the book Bulldozed… Editorial C.R.
C.R. 1376 2771

88 When they set up a website that talked about Royall, he sued them for libel. Editorial C.R.
C.R. 1377 2771

89 A significant chunk of land along the river was owned by Royall’s family; it Editorial C.R.
happened to be next door to the Gores’ land. The Royall family was C.R. 1377 2771
approached by the head of Freeport’s economic development corporation.
Would Royall develop the marina? He would.

90 In the schoolyard, someone who acts like Royall is called a bully. Editorial C.R.
C.R. 1378 2772

91 …In his complaint, Royall does not identify a single word of Bulldozed that Editorial C.R.
libels him. He says only that “the gist” of the book defames him. C.R. 1377-78 2772

Royall has picked on the most vulnerable people he could find …

Appellants’ Appendix Tab 1 Page 10 of 10