Tuesday, July 16, 2013

Defamation law principles - Elements of cause of action and defenses to defamation suit

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.
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

Monday, July 15, 2013

Forcible Detainer ... Huh? What?

What do lawyers and landlords mean by "forcible detainer"?

It's what leads to eviction; -- the failure to move out when the renter or previous owner no longer has the right to be in the house or in the apartment ("premises"), and denies the rightful owner the right to have control over it ("possession"). A forcible detainer action is an eviction suit, whose purpose is to get a justice of the peace to order the occupant(s) out of the habitation. The landlord or property manager will typically also ask for any unpaid rent.   

Forcible detainer occurs when a person, who is a tenant at sufferance, refuses to surrender possession of real property after his right to possession has ceased. See TEX. PROP. CODE ANN. § 24.002; ICM Mortg. Corp. v. Jacob, 902 S.W.2d 527, 530 (Tex. App.-El Paso 1994, writ denied).

A forcible detainer action is "a summary, speedy, and inexpensive" procedure for determining the right to immediate possession of real property where no claim of unlawful entry exists. Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 926-27 (Tex. App.-Dallas 2010, no pet.). To maintain the intended simplicity, the applicable rule of civil procedure, rule 746, provides that "the only issue shall be as to the right to actual possession; and the merits of the title shall not be adjudicated."[5] TEX. R. CIV. P. 746; Williams, 315 S.W.3d at 927. In other words, entitlement to possession of premises is decided "without resorting to an action upon the title." Rice v. Pinney, 51 S.W.3d 705, 710 (Tex. App.-Dallas 2001, no pet.) (quoting Scott v. Hewitt, 127 Tex. 31, 35, 90 S.W.2d 816, 818-19 (Tex. 1936)). Proof of the existence of a landlord-tenant relationship establishes a plaintiff's entitlement to possession. Pinney, 51 S.W.3d at 712. 

SOURCE: DALLAS COURT OF APPEALS - 05-12-00899-CV - 7/10/2013

Application of Law to Facts

[Former home owner's] issue on appeal mirrors his argument to the trial court. He does not dispute that (1) he defaulted on the loan, (2) the property was sold at foreclosure, (3) GMAC purchased the property at the foreclosure sale and subsequently conveyed it to FNMA, (4) he did not surrender possession of the property upon demand, and (5) the home equity agreement provided that, upon sale of the property and his failure to surrender, a tenancy at sufferance was created, which established a landlord-tenant relationship, and which established FNMA's entitlement to possession. See id. Rather, he disputes the validity of the foreclosure sale in light of the automatic bankruptcy stay, which addresses the merits of the title. Because [former home owner's] issue as to the merits of the title may not be raised in a forcible detainer action, we resolve his sole issue against him. See Williams, 315 S.W.3d at 927.  

Monday, July 8, 2013

Suit on sworn account is not a cause of action, but a different way to plead a common-law suit on account

San Antonio Court of Appeals reiterates that a sworn account is not a cause of action in its own right, but instead a procedural vehicle to present a prima facie case. The benefit of a prime facie case under Rule 185 are lost when the defendant files a sworn denial. When that happens, the plaintiff must prove the suit on account under the ordinary evidentiary standards (i.e. those applicable to a trial on the merits, or for summary judgment).  


A suit on a sworn account is not an independent cause of action. Southern Mgmt. Servs., Inc. v. SM Energy Co., No. 14-12-00377-CV, 2013 WL 793153, at *2 (Tex. App.-Houston [14th Dist.] Mar. 5, 2013, no pet. h.). "It is based instead on Rule 185, which affords a procedural right of recovery in certain contract disputes." Id.; see also Pine Trail Shores Owners Ass'n v. Aiken, 160 S.W.3d 139, 144 (Tex. App.-Tyler 2005, no pet.) (noting Rule 185 is not a rule of substantive law and suit on sworn account is not a cause of action).

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-12-00029-CV – 6/5/2013

Under rule 185 of the Texas Rules of Civil Procedure, when an action is founded on an open account on which a systematic record has been kept and is supported by an affidavit, the account shall be taken as prima facie evidence of the claim, unless the party resisting the claim files a written denial under oath. See Tex. R. Civ. P. 185; Panditi v. Apostle, 180 S.W.3d 924, 926 (Tex. App.-Dallas 2006, no pet.).
SUBSTANTIVE ELEMENTS OF SWORN ACCOUNT (common-law suit on account) 
The essential elements to prove a sworn account are: (1) that there was a sale and delivery of merchandise or performance of services; (2) that the amount of the account is just, that is, that the prices were charged in accordance with an agreement or were customary and reasonable prices; and (3) that the amount is unpaid. Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 773 (Tex. App.-Corpus Christi 2001, no pet.). See also Cass v. Stephens, 156 S.W.3d 38, 70 (Tex. App.-El Paso 2004, pet. denied); Burch v. Hancock, 56 S.W.3d 257, 264 (Tex. App.-Tyler 2001, no pet.); Tex. R. Civ. P. 185.   
A "sale and delivery of merchandise or performance of services" is one of the elements essential to prove a sworn account. Adams, 41 S.W.3d at 773.
A "sale" consists in the passing of title from the "seller" to the "buyer" for a price. Tex. Bus. & Com. Code Ann. § 2.106(a) (Vernon 1994). "Buyer" means a person who buys or contracts to buy goods. Tex. Bus. & Com. Code Ann. § 2.103(a)(1) (Vernon Supp. 2006). "Seller" means a person who sells or contracts to sell goods. Id. § 2.103(a)(4). Unless otherwise agreed by the parties, title to goods passes to the buyer at the time and place of delivery. Tex. Bus. & Com. Code Ann. § 2.401(b) (Vernon Supp. 2006).
SOURCE: DALLAS COURT OF APPEALS05-06-00216-CV - 2/23/2007