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).
Elements of defamation tort as a cause of action under Texas law
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.[4] 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.
Opinion
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).
Substantial
Truth
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.
Actual Malice
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
