The General Law Concerning Defamation
"Defamation" is generally defined as the invasion of a person's interest in his or her reputation and good name. PROSSER & KEETON ON TORTS § 111, at 771 (5th ed. 1984 & Supp. 1988). "Defamation" encompasses both libel and slander. By statute, Texas law defines "libel" as a defamation expressed in written or other graphic form that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt, ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury. TEX. CIV. PRAC. & REM. CODE ANN. § 73.001 (Vernon 2011).
To prevail on a defamation cause of action, the plaintiff must prove that the defendant (1) published a statement, (2) that was defamatory concerning the plaintiff, (3) while acting with actual malice regarding the truth of the statement where the plaintiff was a limited purpose public figure. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 574 (Tex. App.-Austin 2007, pet. denied).
Whether a statement is capable of a defamatory meaning is a question of law. See Fort Worth Star-Telegram v. Street, 61 S.W.3d 704, 708 (Tex. App.-Fort Worth 2001, pet. denied) (citing Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex. 1987)). We must view the statements alleged to be defamatory as a whole and in light of the surrounding circumstances; the determination is based upon how a person of ordinary intelligence would perceive the entire statement. Ezrailson v. Rohrich, 65 S.W.3d 373, 376 (Tex. App.-Beaumont 2001, no pet.). Statements alleged to be defamatory must be viewed in their context; they may be false, abusive, unpleasant, or objectionable to the plaintiff and still not be defamatory in light of the surrounding circumstances. Id. We must consider the entire communication, not mere isolated sentences or portions. Musser, 723 S.W.2d at 655.
Purely subjective assertions or opinions that do not imply the existence of undisclosed facts and do not misconstrue the facts are not actionable as defamation. See Bentley v. Bunton, 94 S.W.3d 561, 583-84 (Tex. 2002); see also Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989) (explaining that "[a]ll assertions of opinion are protected by the first amendment of the United States Constitution and article I, section 8 of the Texas Constitution"). This is particularly so when the facts underlying an opinion are set out in the publication itself, thereby allowing the listener to evaluate the facts and either accept or reject the opinion. Brewer, 986 S.W.2d at 643. Instead, to be actionable as defamation, a statement must be an assertion of verifiable fact, that is, a statement that purports to be verifiable. Bentley, 94 S.W.3d at 583-84.
The determination of whether a publication is an actionable statement of fact or a constitutionally protected statement of opinion, like the determination whether a statement is false and defamatory, is a question of law. Bentley, 94 S.W.3d at 580; see also Turner v. KTRK, Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000). And, like the determination whether a publication is false and defamatory, the determination whether a publication is an actionable statement of fact or a protected expression of opinion depends upon a reasonable person's perception of the entirely of the publication. Bentley, 94 S.W.3d at 579.
Statements 1 through 4 listed above are all statements reflecting Jones's opinion that Vecchio was not properly appointed or elected according to Huisache Acres' Bylaws. Specifically, Jones considered Vecchio "a threat" to the HOA because he "[held] himself out as an elected director," brought "reckless" lawsuits, "deemed" himself a director though never "duly elected," and brought suits for "questionable" HOA violations.
In Falk & Mayfield LLP v. Molzan, 974 S.W.2d 821, 822-23 (Tex. App.-Houston [14th Dist.] 1998, pet. denied), the defendant placed a sign in from of his place of business stating, "Ask me about lawsuit abuse & the Law Firm of Falk & Mayfield." Id. at 822. The law firm referenced in the sign filed a suit for defamation against the defendant. Id. The court of appeals held that, although the term "lawsuit abuse" is an accusation of legally manipulating the civil justice system to gain an unfair advantage, it was "an individual judgment that rests solely in the eye of the beholder" and was "an expression of opinion which is absolutely protected." Id. at 824.
Despite Vecchio's claims that Jones's statements amounted to accusations of barratry, we hold that the statements by Jones that Vecchio was a "threat" and brought "reckless lawsuits" for "questionable" HOA violations to be, like the term "lawsuit abuse" in Falk, nothing more than Jones's opinions, thus not actionable. See also Tomlinson v. McComas, No. 02-11-00175-CV, 2011 WL 5607604, at *8 (Tex. App.-Fort Worth Nov. 17, 2011, pet. denied) (holding that statements regarding how president of homeowners' association presided over matters constituted opinions that were not actionable for defamation).
Truth is a defense to defamation. Klentzman v. Brady, 312 S.W.3d 886, 898 (Tex. App.-Houston [1st Dist.] 2009, no pet.) A showing of substantial truth of defamatory words likewise will defeat a defamation cause of action. McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990); Gustafson v. City of Austin, 110 S.W.3d 652, 656 (Tex. App.-Austin 2003, pet. denied) ("The defense of truth does not require proof that the alleged defamatory statement is literally true in every detail; substantial truth is sufficient."). The test of substantial truth is "whether the alleged defamatory statement was more damaging to [plaintiff's] reputation, in the mind of the average listener, than a truthful statement would have been." McIlvain, 794 S.W.2d at 16; see Turner, 38 S.W.3d at 115 (noting substantial truth doctrine "precludes liability for a publication that correctly conveys a story's `gist' or `sting' although erring in the details"); Langston v. Eagle Printing Co., 797 S.W.2d 66, 69-70 (Tex. App.-Waco 1990, writ ref'd n.r.e.) (concluding statement is substantially true even if it greatly exaggerates plaintiff's misconduct, as long as the average reader would not attach any more opprobrium to the plaintiff's conduct merely because of the exaggeration). In making the determination as to substantial truth, we look to the "gist" of the statement alleged to be defamatory. See McIlvain, 794 S.W.2d at 16.
To establish a defamation claim, a limited purpose public figure must show that the defendant published the allegedly defamatory statements with actual malice. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 3008 (1974); McLemore, 978 S.W.2d at 571. A defendant may prevail on his motion for summary judgment by offering evidence negating the actual malice element as a matter of law. See Hearst Corp. v. Skeen, 159 S.W.3d 633, 637 (Tex. 2005); Huckabee v. Time Warner Entm't Co. L.P., 19 S.W.3d 413, 420 (Tex. 2000). Once the defendant meets this burden, then the plaintiff must present evidence raising a genuine issue of material fact regarding actual malice to avoid summary judgment. Huckabee, 19 S.W.3d at 420.
The actual malice standard serves to protect innocent, but erroneous, speech on public issues, while deterring "calculated falsehoods." Turner, 38 S.W.3d at 120. A showing of "actual malice" in a defamation suit requires proof that the defendant made a statement with knowledge that it was false or with reckless disregard of whether it was true or false. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 162 (Tex. 2004); Huckabee, 19 S.W.3d at 420. In this context, actual malice refers to the defendant's attitude toward the truth of what he said, McLemore, 978 S.W.2d at 573, and means that the defendant made the statement knowing that it was false or with reckless disregard about whether the statement was false or not. HBO v. Harrison, 983 S.W.2d 31, 36 (Tex. App.-Houston [14th Dist.] 1998, no pet.).
Reckless disregard is a subjective standard, focusing on the defendant's state of mind. Isaacks, 146 S.W.3d at 162; Bentley, 94 S.W.3d at 591. Specifically, the plaintiff must establish that the defendant in fact entertained serious doubts as to the truth of his publication, or had a high degree of awareness of the probable falsity of the published information. Isaacks, 146 S.W.3d at 162 (citing Bentley, 94 S.W.3d at 591) (internal quotations omitted).
Thus, we look to the record to determine whether Jones has negated actual malice, thus shifting the burden to Vecchio. In Casso v. Brand, 776 S.W.2d 551, 559 (Tex. 1989), the court considered the adequacy of Casso's evidence negating actual malice and concluded some of Casso's summary judgment proof was sufficient to negate actual malice, and some of it was not. Id. When Casso testified "he did not believe the allegations were false and did not act with reckless disregard as to their truth or falsity in repeating those allegations," summary judgment was proper. Id. When Casso's proof provided "no information as to Casso's knowledge that the statements were not false or were not made with reckless disregard to their truth or falsity," it was not sufficient. Id. In Huckabee, the supreme court further explained that to negate actual malice, an affidavit from an interested witness "must establish the defendant's belief in the challenged statements' truth and provide a plausible basis for this belief." Huckabee,19 S.W.3d at 424.
"Actual malice" in the defamation context is a term of art. Id. Unlike common-law malice, it does not include ill will, spite, or evil motive. Id. Rather, to establish actual malice, a plaintiff must prove that the defendant made the statement "with knowledge that it was false or with reckless disregard of whether it was true or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 727 (1964); Huckabee, 19 S.W.3d at 420. "Reckless disregard" is also a term of art. Huckabee, 19 S.W.3d at 420. To establish reckless disregard, a public official or public figure must prove that the publisher "entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1326 (1968); Huckabee, 19 S.W.3d at 420. "Actual malice concerns the defendant's attitude toward the truth, not toward the plaintiff." Isaacks, 146 S.W.3d at 165.
SOURCE: HOUSTON COURT OF APPEALS - 01-12-00442-CV – 7/9/2013