LeaAnne Klentzman and Carter Publications, Inc., D/B/A the West Fort Bend Star v. Wade Brady , 456 S.W.3d 239 ( 2014 )

Opinion issued December 18, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00765-CV
———————————
LEAANNE KLENTZMAN AND CARTER PUBLICATIONS, INC. D/B/A
THE WEST FORT BEND STAR, Appellants
V.
WADE BRADY, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Case No. 03CV129531
OPINION ON REHEARING
Appellee, Wade Brady, sued appellants, Carter Publications, Inc. d/b/a The
West Fort Bend Star (“The Star”) and LeaAnne Klentzman, a reporter for The Star,
alleging that they defamed him in a January 15, 2003 article (“the Article”). Based
on the jury’s verdict in Wade’s favor, the trial court signed its final judgment
awarding him actual and exemplary damages. In nine issues, Klentzman and The
Star argue that: (1) the trial court erred by ruling that neither the Article nor any of
the particular complained-of statements reported on a matter of public concern;
(2) the trial court erred by ruling that the Article and all complained-of statements
were “of and concerning” Wade; (3) the trial court erred by submitting a question
on defamatory impression without conditioning the question on a jury finding that
each of the complained-of statements was true or substantially true; (4) the trial
court erred by submitting a “libel per se” instruction, because libel per se is a
question of law for the court to determine, and by improperly combining libel per
se and libel per quod, impacting the burden of proof required for damages; (5) the
trial court erred in submitting a “libel per se” instruction with the question on
defamatory impression because Texas does not recognize the theory of
“defamatory impression per se”; (6) the trial court erred by failing to rule that the
Article and all complained-of statements were privileged under the “Fair Report
Privilege” or the “Neutral Reportage Privilege,” which would have required a
finding of actual malice by clear and convincing evidence to overcome the
privilege and impose liability; (7) the evidence is factually insufficient to support
the jury’s findings that the gist of the Article and the individual complained-of
statements were not substantially true; (8) the evidence is factually insufficient to
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support the jury’s award of $20,000 for past mental anguish; and (9) the evidence
is factually insufficient to support the jury’s award of $30,000 for past injury to
Wade’s reputation.
Following the issuance of our October 17, 2013 opinion, in which we
reversed the award of mental anguish damages on legal sufficiency grounds,
remanded for reevaluation of punitive damages, and affirmed the remainder of the
trial court’s judgment, Klentzman and The Star moved for rehearing and en banc
reconsideration. Accordingly, we grant the motion for rehearing and withdraw our
opinion and judgment of October 17, 2013. We issue this opinion and judgment in
their stead. We reverse and remand for a new trial.1
Background
A. The Article
Wade’s father is Craig Brady, the Chief Deputy of the Fort Bend County
Sheriff’s Office (“FBCSO”). Craig and Klentzman both began working for the
FBCSO in 1981, and both Klentzman and Craig acknowledged at trial that they
had a tumultuous and negative relationship. After Klentzman left the FBCSO and
began working as a news reporter, she wrote several articles that were critical of
Craig, his performance at the FBCSO, and his alleged intervention on behalf of his
1
Our withdrawal and reissuance of our opinion and judgment renders Klentzman
and The Star’s motion for en banc reconsideration moot. See Poland v. Ott, 278
S.W.3d 39, 40–41 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
3
sons, Cullen and Wade Brady, regarding their various interactions with other law
enforcement personnel, including FBCSO deputies.
On January 15, 2003, The Star published the Article that is the basis of this
suit on its front page. It was entitled “Deputy Brady’s Tape Collecting Called
‘Roadside Suppression.’” The Article stated that Craig Brady “has been collecting
audio tapes from deputies regarding a Minor in Possession charge that one of his
sons faced early in 2001.” It recounted details regarding the theft of Wade’s cell
phone, which “resulted in a police pursuit through the streets of Rosenberg with
the chief deputy driving his unmarked police car” and “ended when the alleged
robber crashed his car into someone’s property.”
The Article also recounted a third incident involving Wade and his brother,
Cullen. The Article stated that “Brady’s sons had led a DPS Trooper from the
streets of Rosenberg winding down narrow roads all the way to their riverside
home” and that “Wade Brady was so unruly and intoxicated that the Trooper had
to handcuff him and place him in the backseat of the police car for safety.”
The Article also mentioned Wade by name in reference to his 2001 citation
for being a minor in possession of alcohol (“MIP”) and his subsequent trial.
Omitting any reference to the outcome of the trial, which resulted in Wade’s
acquittal on the MIP charge, the Article included several paragraphs detailing
Craig’s allegedly continuous interactions with the deputies involved in Wade’s
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MIP citation, including “numerous twilight meetings held in various parking lots
scattered throughout the northwest quadrant of the county” that the Article claimed
FBCSO personnel had dubbed “‘roadside suppression hearings,’ making jest of a
legal maneuver by defense lawyers to keep evidence out of court.”
The rest of the Article was devoted to discussing an expunction order:
While rehashing just a few of the events that have occurred over the
past year it should be glaringly apparent why the officers involved in
the MIP incident with Wade Brady were intimidated when their boss,
Chief Deputy Craig Brady, notified them that he had an order of
expunction and demanded any and all audio tapes or notes from that
incident in their possession.
The Article further stated that “[t]here is some controversy over the validity of the
order,” recounting some statutory authority governing the issuance of expunction
orders and quoting Texas Municipal Police Association (“TMPA”) lawyer Larry
McDougal as stating that “[b]ased on the law, this order is void” and that TMPA
was going to file documents to get the order set aside. The Article also stated that
Bud Childers, the county attorney at that time, opined that Craig “could not legally
use that order to get the tapes from the officers.” The Article concluded, “For now,
the ‘Roadside Suppression Hearings’ have ended with personnel at the sheriff’s
office just wondering when the other shoe will drop.”
B. The Trial
Wade filed suit against Klentzman and The Star on April 17, 2003, alleging
defamation based on the Article. Klentzman and The Star moved for summary
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judgment on the bases that there was no evidence of the material falsity of any of
the statements in the Article, that there was no evidence of actual malice, and that a
portion of the Article was an expression of opinion and not actionable as
defamation. The trial court denied the motion for summary judgment, and
Klentzman and The Star pursued an interlocutory appeal in this Court. This Court
affirmed the trial court’s order denying the motion for summary judgment. See
Klentzman v. Brady, 312 S.W.3d 886, 891 (Tex. App.—Houston [1st Dist.] 2009,
no pet.) (affirming denial of summary judgment) (hereinafter “Klentzman I”). The
case proceeded to a jury trial on Wade’s defamation claims.
At trial, Wade presented evidence regarding the various events that were
recounted in the Article. The evidence established that, in May 28, 2000, when
Wade was sixteen years old, his cell phone was stolen. Craig testified that after
Wade reported the theft of the phone to him, he created an offense report and took
action to locate the suspected thief. Craig located the suspect using the license
plate number obtained by Wade during the theft and followed the suspect, who was
“driving maybe 5 miles an hour,” until a marked police car arrived. The suspect
hit Craig’s car and was “forced . . . to take a turn onto a side road,” at which point
the suspect jumped out of the car while it was still moving. The car “struck a
man’s house, but didn’t cause any damage to it.” Craig further testified that the
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incident was not an “alleged robbery” as stated in the Article, because the suspect
was arrested and later convicted of theft.
The evidence at trial also demonstrated that, on February 10, 2001, Wade
received an MIP citation from a FBSCO deputy. Craig testified that Cullen, his
oldest son, who was twenty-one at that time, had been at the beach with friends
when an intoxicated third party struck his truck and “disabled” it. Wade drove to
Galveston to pick Cullen up and loaded Cullen’s property, including a cooler, into
the truck. The boys returned home around 3:00 a.m. Later that same day, Wade
left to meet friends at a restaurant without removing the cooler, which contained
several beers. He was pulled over by FBSCO deputies and was given an MIP
citation.
Craig testified that, after Wade had received the ticket and returned home,
Wade told him that the FBCSO deputy who cited him was rude to him and used
profanity. Craig testified that he met with the deputies involved in the MIP citation
one time each to discuss what happened during the MIP stop. He stated that he
chose the location of the meetings—at gas stations within the deputies’ patrol
areas—for the convenience of the deputies and that the meetings lasted “maybe ten
minutes.” He testified that he discussed the use of profanity with Deputy Costello,
one of the deputies involved in the MIP citation, and Costello told him that he
directed the profanity toward another officer, not toward Wade. Craig testified that
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the sheriff also requested a meeting with the deputies involved “[t]o reassure all the
deputies involved that they weren’t in trouble and there was going to be no
repercussions because they had given my son a citation.”
The deputies involved in the MIP citation testified that, in spite of their
meeting with Craig, they testified fully and truthfully at Wade’s MIP trial. They
each testified that they did not withhold any testimony or other evidence during the
trial, and they further stated that Craig never asked them to do so.
A jury acquitted Wade on the MIP charge. On September 23, 2002, Wade
moved for an expunction. The Justice of the Peace issued the expunction order on
November 21, 2002. Craig testified that he did not demand the return of the tapes
from any of the deputies involved in the MIP charge. The deputies each testified
that they either personally destroyed the tapes pursuant to the court order of
expunction or turned the evidence over to other personnel for destruction pursuant
to the order.
Regarding the statements in the Article concerning the validity of the
expunction order, TMPA lawyer Larry McDougal testified that he was
misrepresented in the Article. He did not opine on the validity of Wade’s
expunction order, and, to his knowledge, the TMPA was not involved in any way
in seeking to void the order. Bud Childers also testified that his comments were
misstated in the Article. He also stated that he did not form or express any opinion
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on the validity of Wade’s expunction order and that his statement about the scope
of an expunction order was based on a very narrow hypothetical posed by
Klentzman and not on the facts of Wade’s case.
Finally, regarding the incident that occurred in Brady’s driveway, Wade
testified that he was not intoxicated and unruly, as the Article claimed. He testified
that he complied with the DPS trooper and the incident ended without any citations
or arrests being made. Wade also submitted a video recording of the DPS
trooper’s stop of Cullen and himself, which showed the interaction between
Cullen, Wade, and the trooper. Craig was not present at any point during Wade’s
interaction with the DPS trooper.
Wade testified at trial that he was concerned that people were thinking
poorly of him based on the Article. He testified that he knew other people were
talking about the Article when his boss asked him to quit his job. He
acknowledged that he was eventually able to return to his employment at the same
organization. He also testified that his friends talked about the Article and let him
know that other people in the community were talking about the Article and
thought that it made Wade “look like a criminal” whose father would “get [him]
out of trouble.” Wade also testified about how the Article’s publication changed
his behavior: “Anytime I would meet somebody, I would wonder if it was
somebody that had read this article and thought I was a bad person. And
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sometimes I still think that whenever I meet somebody.” He testified that he did
not see a doctor about his condition after the Article’s publication because he is
“not the kind of person to talk about [his] feelings” and he found it
“embarrassing”; rather, he “hid.” Wade also testified that he gained thirty pounds
and that the Article “actually affected [him] until about five years ago.”
Wade’s mother Jackie testified that the publication of the article “bothered
him a lot.” She stated, “He seemed to get more withdrawn. He seemed to sort of
stay to himself a lot. He has stayed around the house more. It seemed like he just
put on some weight.” She also testified that Wade seemed depressed and talked to
her about having weird dreams. She and Craig discussed the possibility of Wade’s
seeing a therapist, but Wade refused.
At the close of Wade’s case, Klentzman and The Star moved for a directed
verdict, arguing, among other things, that the Article addressed a matter of public
concern, thus requiring Wade to prove falsity and actual malice to be entitled to
damages. They also argued that neither the Article as a whole nor all of the
complained-of statements were “of and concerning” Wade and that Klentzman and
The Star were entitled to certain privileges protecting the reporting of newsworthy
events which would also require Wade to prove actual malice. The trial court
denied their motion for directed verdict. Klentzman and The Star also filed written
objections to the charge and proposed jury questions addressing their complaints
10
regarding various errors in the jury charge, including, among others, jury questions
that placed the burden for proving falsity on Wade and questions using the actual
malice standard for fault. The trial court denied Klentzman and The Star’s
objections to the jury charge.
The case was submitted to the jury.
C. The Jury Charge
Question 1 asked the jury: “Did the Article as a whole, and not merely
individual statements contained in it, either by omitting certain material facts or by
suggestively juxtaposing facts in a misleading way, create a substantially false and
defamatory impression of Plaintiff Wade Brady?” It also defined “false” as
meaning “that the impression created, if any, is not literally true or not
substantially true.” Question 1 also instructed that “[a]n impression is not
‘substantially true’ if, in the mind of the average person, the gist of the impression
is more damaging to the person affected by it than a literally true impression would
have been.” The question also defined “defamatory.” Additionally, the instruction
stated, “[A] ‘defamatory’ statement is ‘libel per se’ if it falsely charges a person
with the commission of a crime.” The jury answered, “Yes.”
In response to Questions 2 and 3, the jury found that Klentzman and The
Star, respectively, knew or should have known, “in the exercise of ordinary care,
11
that the impression created by the Article was false and had the potential to be
defamatory.”
Question 4 listed twenty-one specific “Complained of Statements” from the
Article and asked: “Do you find that any of the individual statements of fact listed
below from the Article . . . were defamatory concerning Wade Brady?” It again
defined “defamatory” and “libel per se.” The jury answered, “Yes,” finding that at
least one of the individual complained-of statements was defamatory concerning
Wade.
Question 5 asked: “Were all the defamatory statements from the list of
Complained of Statements referenced in Question 4 substantially true at the time
they were made as they related to Wade Brady?” The question defined
“substantially true” as meaning a statement “that varies from the literal truth in
only minor details or if, in the mind of the average person, the gist of it is no more
damaging to the person affected by it than a literally true statement would have
been.” The jury answered, “No.”
In response to Questions 6 and 7, the jury found that Klentzman and The
Star, respectively, knew or should have known, “in the exercise of ordinary care,
that any of the Complained of Statements were false and had the potential to be
defamatory.”
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In Question 8, the jury was instructed to consider only three isolated
statements recounting facts related during Wade’s MIP trial that the trial court had
determined were protected by privilege. The three statements from the Article that
were identified in Question 8 were not included in the complained-of statements
identified by Wade in his pleadings or in Question 4 relating to the specific
complained-of statements. Question 8 then asked whether the jury found “by clear
and convincing evidence that, at the time the Article was published, [Klentzman
and the Star] knew the [three privileged] statements were false as they related to
Wade Brady, or that [they] made the above statements with a high degree of
awareness that they were probably false, to the extent that [they] in fact had serious
doubts as to the truth of the above statements.” The jury answered “No” for both
Klentzman and the Star.
Question 9 addressed the issue of damages, asking what sum of money
would compensate Wade Brady for his injuries, if any, that were proximately
caused as a result of the publication of the Article. In relevant part, the jury was
instructed, “If you have found in answering Questions 1 or 4 that there was ‘libel
per se,’ you must award at least nominal damages for injury to reputation in the
past.” The jury awarded Wade $30,000 for past injury to his reputation and
$20,000 for past mental anguish. The jury charge never asked the jury to make a
separate determination regarding whether the Article or the complained-of
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statements were defamatory per se, it did not define “nominal damages,” and it did
not instruct the jury on the issue of defamation per quod.
In response to Question 10, the jury found that “the harm to Plaintiff Wade
Brady resulted from malice by Klentzman,” where the charge defined malice as
either “specific intent by Klentzman to cause substantial injury to” Wade or an act
or omission by Klentzman that involved an extreme degree of risk or of which
Klentzman had “actual, subjective awareness of the risk involved, but nevertheless
proceed[ed] with conscious indifference to the rights, safety, or welfare of others.”
In response to Question 11, the jury awarded Wade $30,000 in exemplary damages
against Klentzman.
In response to Question 12, the jury found that the harm to Wade did not
result from “malice by The Star.” However, it found in response to Question 13
that the harm to Wade “resulted from malice attributable to The Star.” In response
to Question 14, it awarded Wade $1,000,000 in exemplary damages against The
Star.
The trial court rendered judgment on the jury’s verdict, awarding Wade
$50,000 in actual damages against Klentzman and The Star, jointly and severally;
$30,000 in punitive damages against Klentzman; $200,000 in punitive damages
against The Star; $47,741.50 in attorney’s fees associated with the interlocutory
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appeal taken in the case; costs; and pre- and post-judgment interest. This appeal
followed.
Legal Rulings
In their first, second, third, and sixth issues, Klentzman and the Star
complain that certain legal rulings by the trial court resulted in a defective jury
charge that probably caused the rendition of an improper judgment, requiring
reversal. We first address those rulings to determine whether they caused
submission of the case to the jury on an incorrect charge.
A. Standard of Review of Legal Rulings
Appellate courts review legal determinations de novo. Reliance Nat’l
Indem. Co. v. Advance’d Temps., Inc., 227 S.W.3d 46, 50 (Tex. 2007). “What
might otherwise be a question of fact becomes one of law when the fact is not in
dispute or is conclusively established.” Id. Because a trial court has no discretion
in determining what the law is, which law governs, or how to apply the law, we
review this category of rulings de novo. Okorafor v. Uncle Sam & Assocs., Inc.,
295 S.W.3d 27, 38 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citing In re
D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006), and Walker v. Packer,
827 S.W.2d 833, 840 (Tex. 1992)).
However, when the ruling under review results from the trial court’s having
resolved underlying facts, we must defer to the trial court’s factual resolutions and
15
any credibility determinations. Id.; see also Reliance Nat’l Indem. Co., 227
S.W.3d at 50 (holding that factual determinations receive more deferential review
based on sufficiency of evidence); Bentley v. Bunton, 94 S.W.3d 561, 597 (Tex.
2002) (“On questions of law we ordinarily do not defer to a lower court at all. But
the sufficiency of disputed evidence to support a finding cannot be treated as a
pure question of law when there are issues of credibility.”). Challenges to the legal
sufficiency of the evidence may only be sustained when: (1) there is a complete
absence of evidence of a vital fact; (2) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact;
(3) the evidence offered to prove a vital fact is not more than a mere scintilla; or
(4) the evidence establishes conclusively the opposite of the vital fact. City of
Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).
B. Privilege
In their sixth issue, Klentzman and The Star argue that the trial court erred in
failing to rule that the Article and complained-of statements were privileged under
the “Fair Report Privilege” or the “Neutral Reportage Privilege.” They argue that
the Article as a whole and the individual complained-of statements were
privileged, and, thus, Wade was required to establish “actual malice” by clear and
convincing evidence to overcome the privilege.
16
Conditional privileges, like the fair report privilege as it is recognized at
common law and in the Civil Practice and Remedies Code, “arise out of the
occasion upon which the false statement is published” and are “based on public
policy concerns which elevate the good to be accomplished by the free and open
exchange of information over the harm which may result from a falsehood.”
Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex. 1987); Writt v. Shell
Oil Co., 409 S.W.3d 59, 66 (Tex. App.—Houston [1st Dist.] 2013, pet. granted)
(citing RESTATEMENT (SECOND) OF TORTS ch. 25, title B, intro. note (1977)); see
also Neely v. Wilson, 418 S.W.3d 52, 69 (Tex. 2013) (discussing “conditional
judicial proceedings privilege” outlined in Civil Practice and Remedies Code
section 73.002); Langston v. Eagle Pub. Co., 719 S.W.2d 612, 624 (Tex. App.—
Waco 1986, writ ref’d n.r.e.) (identifying Texas’s statutory fair report privilege as
“a qualified or conditional privilege”). To prevail on a defamation claim when a
conditional privilege applies, the plaintiff must establish that the privilege was
abused, i.e., that the person making the defamatory statement knew the statement
was false or did not act for the purpose of protecting the interest for which the
privilege exists. Hurlbut, 749 S.W.2d at 768; Writt, 409 S.W.3d at 66.
The Star asserted the qualified privilege based on Civil Practice and
Remedies Code section 73.002(b)(1)(A) and (b)(2). Section 73.002 provides:
17
(a) The publication by a newspaper or other periodical of a matter
covered by this section is privileged and is not a ground for a libel
action. . . .
(b) This section applies to:
(1) a fair, true, and impartial account of:
(A) a judicial proceeding . . . ; and
(2) reasonable and fair comment on or criticism of an official act
of a public official or other matter of public concern published
for general information.
TEX. CIV. PRAC. & REM. CODE ANN. § 73.002 (Vernon 2005); see also Denton
Publ’g Co. v. Boyd, 460 S.W.2d 881, 883 (Tex. 1970) (holding that article in
question would be privileged under predecessor statute to section 73.002 “as long
as it purported to be, and was, only a fair, true and impartial report of what was
stated at the meeting, regardless of whether the facts under discussion at such
meeting were in fact true, unless the report was made with actual malice”).
The privileges outlined by section 73.002 are similar to the privilege
recognized in the Restatement (Second) of Torts, which provides that “[t]he
publication of a defamatory matter concerning another in a report of an official
action or proceeding or of a meeting open to the public that deals with a matter of
public concern is privileged if the report is accurate and complete or a fair
abridgement of the occurrence reported.” RESTATEMENT (SECOND) OF TORTS § 611
(1977); see also Boyd, 460 S.W.2d at 883–84 (citing, in part, Restatement section
18
611 in analyzing privilege under predecessor statute to section 73.002); Freedom
Commc’ns, Inc. v. Sotelo, No. 11-05-00336-CV, 2006 WL 1644602, at *3 (Tex.
App.—Eastland June 15, 2006, no pet.) (mem. op.) (discussing Restatement
section 611). The privilege “extends to the report of . . . any action taken by any
officer or agency of the government of the United States, or of any State or of any
of its subdivisions.” RESTATEMENT (SECOND) OF TORTS § 611 cmt. d; Sotelo, 2006
WL 1644602, at *3. However, “[t]he reporter is not privileged under this Section
to make additions of his own that would convey a defamatory impression.”
RESTATEMENT (SECOND) OF TORTS § 611 cmt. f; Sotelo, 2006 WL 1644602, at *3.
Where the facts are undisputed and the language used in the publication is
not ambiguous, the question of privilege is one of law for the court. Boyd, 460
S.W.2d at 884; Sotelo, 2006 WL 1644602, at *3. To determine whether a media
defendant’s account of a judicial proceeding is “fair and impartial,” it must be
interpreted in the sense that the ordinary reader would understand; the statutory
requirement that the published account be true is satisfied if it is substantially
correct. Tex. Monthly, Inc. v. Transam. Natural Gas Corp., 7 S.W.3d 801, 805
(Tex. App.—Houston [1st Dist.] 1999, no pet.). The substantial truth test involves
consideration of whether the alleged defamatory statement was more damaging to
the plaintiff’s reputation in the mind of the average listener than a truthful
statement would have been. Id.
19
Thus, an article is a “fair, true, and impartial” account “in reference to the
court record . . . [i]f the effect on the reader’s mind would be the same [and] any
difference between the statements made in the record and the media account of the
proceeding should be disregarded.” Id. at 807. Under section 73.002(b)(2), the
proper comparison should be between a news report or broadcast and an otherwise
unprivileged record of the state or federal government. Sotelo, 2006 WL 1644602,
at *5.
Here, the Article contains references to Wade’s MIP charge, his ensuing trial
on that charge, and an expunction order. However, it does not state at any point
that a jury acquitted him of the MIP charge. Because the Article omitted that key
information regarding the judicial proceedings, it was not a fair, true, and complete
account as it related to Wade. Interpreted in the sense that the ordinary reader
would understand, this omission—that Wade was acquitted of the charge against
him—was more harmful to Wade’s reputation in the mind of the average listener
than a truthful statement would have been. See Tex. Monthly, Inc., 7 S.W.3d at
805. The Article also addressed other details regarding Wade’s conduct that could
not be considered a “reasonable and fair comment” on Chief Deputy Craig Brady’s
alleged “roadside suppression hearings.” See Boyd, 460 S.W.2d at 883 (holding
that article is privileged only if it purports to be and actually is fair, true, and
impartial report).
20
Thus, we disagree with Klentzman and The Star that they satisfied their
burden of establishing their entitlement to privilege under section 73.002(b).
Because we hold that no privilege applies here, Wade need not prove actual malice
to prevail on his defamation claim and recover actual damages. See Hurlbut, 749
S.W.2d at 768 (holding that plaintiff must prove actual malice to overcome
conditional privilege). We overrule Klentzman and The Star’s sixth issue.
C. Statements “Of and Concerning” Wade Brady
In their second issue, Klentzman and The Star argue that the trial court erred
in ruling that the Article and complained-of statements were “of and concerning”
Wade. Specifically, Klentzman and The Star argue that the trial court’s ruling that
the Article as a whole was “of and concerning” Wade was “contrary to this Court’s
prior ruling [in the interlocutory appeal] . . . that the gist of the Article was about
Chief Deputy Craig Brady.” They also complain of the trial court’s ruling “that all
of the Complained-of Statements were ‘of and concerning’ [Wade] when, on their
face, many of the challenged statements did not refer to or concern him at all.”
They argue that the trial court’s erroneous ruling that the Article and complained-
of statements were of and concerning Wade constituted reversible error because it
resulted in the submission of liability questions on non-actionable statements.
We construe an allegedly defamatory publication as a whole in light of the
surrounding circumstances and based upon how a person of ordinary intelligence
21
would perceive it. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex.
2000); Main v. Royall, 348 S.W.3d 381, 390 (Tex. App.—Dallas 2011, no pet.). A
“person of ordinary intelligence” is one who “exercises care and prudence, but not
omniscience, when evaluating allegedly defamatory communications.” New
Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex. 2004); Main, 348 S.W.3d at
390.
“A defamatory statement must be directed at the plaintiff as an ascertainable
person to be actionable.” Vice v. Kasprzak, 318 S.W.3d 1, 13 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied) (citing Newspapers Inc. v. Matthews, 339
S.W.2d 890, 893 (Tex. 1960), and Cox Tex. Newspapers, L.P. v. Penick, 219
S.W.3d 425, 433 (Tex. App.—Austin 2007, pet. denied)). To maintain a
defamation action, a plaintiff must be referenced in the complained-of statement.
Id. (citing Newspapers, Inc., 339 S.W.2d at 893). Whether a plaintiff is referenced
in a statement is a question of law. Id. A publication is “of and concerning the
plaintiff” if persons who knew and were acquainted with him understood from
viewing the publication that the defamatory matter referred to him. Id. (citing
Allied Mktg. Grp., Inc. v. Paramount Pictures Corp., 111 S.W.3d 168, 173 (Tex.
App.—Eastland 2003, pet. denied), and Newspapers, Inc., 339 S.W.2d at 894).
It is not necessary that the plaintiff be specifically named in the
communication to be defamatory. Id. (citing Penick, 219 S.W.3d at 433 and Allied
22
Mktg. Grp., 111 S.W.3d at 173). The plaintiff need not prove that the defendant
intended to refer to him. Id. “A defamatory communication is made concerning
the person to whom its recipient correctly, or mistakenly but reasonably,
understands that it was intended to refer.” Id. (citing RESTATEMENT (SECOND) OF
TORTS § 564 (1977)). The false statement must point to the plaintiff and no one
else. Id.
Here, the Article, including some of the complained-of statements,
mentioned Wade by name. The Article recounted, over the space of several
paragraphs, details regarding the theft of Wade’s cell phone, the circumstances
surrounding his MIP charge, and details regarding another interaction Wade had
with a DPS trooper in his driveway. The Article mentioned Wade by name more
than once, mentioned his MIP trial, and stated that an expunction order pertaining
to his MIP charge had been issued. These statements point to Wade and no one
else. See id. (holding that publication is “of and concerning” plaintiff if it can be
understood from viewing publication that defamatory matter referred to plaintiff).
The trial court’s conclusion that the Article and complained-of statements
were “of and concerning” Wade does not conflict with this Court’s prior
interpretation of the “gist” of the Article. Klentzman and The Star are correct that
we stated in Klentzman I that Craig Brady was the “target” of the Article and that
the gist of the Article was that Craig Brady “in an effort to help his son, Wade,
23
abused his official position by intervening on his son’s behalf in an effort to
‘suppress’ evidence.” Klentzman I, 312 S.W.3d at 901. However, we also
acknowledged that the Article contained “many extraneous details and digressions”
and “many details regarding Wade’s encounters with law enforcement.” Id. We
specifically “[did] not address whether, and, if so, to what extent, the Article was
‘of and concerning’ Wade.” Id. at 901 n.16. We then affirmed the trial court’s
denial of Klentzman’s motion for summary judgment on the basis that Wade raised
a genuine issue of material fact as to whether the “gist” of the Article was false and
as to whether the “gist” of the Article was more damaging to Wade’s reputation
that the truth. Id. at 901–03.
Our opinion in Klentzman I reflected that both Wade Brady and Chief
Deputy Craig Brady were referenced in the Article, and the opinion contemplated
Wade’s ability to establish Klentzman’s and The Star’s liability for defamation of
him in the Article. The fact that the Article also discussed the actions of other
people in addition to Wade does not prohibit it from being defamatory concerning
Wade. See Sellards v. Express-News Corp., 702 S.W.2d 677, 680 (Tex. App.—
San Antonio 1985, writ ref’d n.r.e.) (holding that allegedly defamatory article
about car crash was “of and concerning” one of several passengers, even though
she was not mentioned by name, and stating, “When a group is named and the
plaintiff is a readily identifiable member of the group, a cause of action for
24
defamation exists if those who know and are acquainted with the plaintiff
understand the article refers to the plaintiff”).2
Thus, the trial court did not err in concluding that the Article was “of and
concerning” Wade Brady.
We overrule Klentzman and The Star’s second issue.
D. Order of Questions
In their third issue, Klentzman and The Star argue that the trial court erred
by submitting a question on Wade’s claim of defamatory impression without
conditioning it on jury finding that each of the complained-of statements was true
or substantially true.3 They cite Turner v. KTRK Television, Inc. to support their
2
Klentzman and The Star also argue that the trial court erred in concluding “that all
of the complained-of statements were ‘of and concerning’ Brady when, on their
face, many of the challenged statements did not refer to or concern him at all.”
Specifically, they identify only twelve of the twenty-one complained-of statements
listed in Question 4, which asked whether “any” of the individual complained-of
statements were defamatory concerning Wade Brady. However, they do not
assign any error in this issue to the other statements included in the charge, each of
which could have served as an independent basis to support the jury’s answer.
And, we ultimately sustain Klentzman and The Star’s first issue and conclude that
the case must be reversed and remanded for a new trial. Thus we do not address
these arguments on appeal.
3
Wade again argues in his brief on appeal that Klentzman and The Star waived this
complaint by failing to object to the charge on this ground. However, Klentzman
and The Star’s written objections to the charge included an objection “to the order
of questions: defamation instructions and question should be placed before
defamatory impression instructions and question.” In their written objections,
Klentzman and The Star argued that “the question and instructions for defamation
should be submitted to the jury first, before the question and instructions for
defamatory impression. A finding that the complained-of statements . . . create a
25
argument. See 38 S.W.3d at 114. However, nothing in the supreme court’s
analysis in Turner indicates that a plaintiff cannot recover for both the defamatory
impression caused by an article as a whole and for individual false and defamatory
statements. Klentzman and The Star further contend that the trial court erred in
failing to submit to the jury a question addressing the falsity or substantial truth of
the individual complained-of statements before the question addressing the
defamatory impression created by the Article as a whole. We conclude that this
argument has no merit.
The Turner court stated, “Because a publication’s meaning depends on its
effect on an ordinary person’s perception, . . . a publication can convey a false and
defamatory meaning by omitting or juxtaposing facts, even though all the story’s
individual statements considered in isolation were literally true or non-
defamatory.” Id. It held that “the meaning of a publication, and thus whether it is
false and defamatory, depends on a reasonable person’s perception of the entirety
of a publication and not merely on individual statements.” Id. at 115. Thus,
“while all the statements in a publication may be true when read in isolation, the
publication may nevertheless convey a substantially false and defamatory
impression by omitting material facts or suggestively juxtaposing true facts.” Id.
false and defamatory impression before they are determined to be false and/or
defamatory is improper.” Accordingly, this complaint is properly before the
Court. See Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868
(Tex. 2007).
26
Accordingly, the Turner court held that the substantial truth doctrine
precludes liability when a publication correctly conveys a story’s “gist” or “sting,”
although it errs in the details, but that Texas law permits liability when a
publication gets the details right but does not put them in the proper context and
gets the gist wrong. Id.; see also Neely, 418 S.W.3d at 63–64 (“Assessing a
broadcast’s gist is crucial. A broadcast with specific statements that err in the
details but that correctly convey the gist of a story is substantially true.”). Thus, to
find that the gist of the article is defamatory, the trial court or jury does not need to
determine the substantial truth of the individual statements; rather, a finding that
the gist was defamatory requires only that details be omitted or juxtaposed in a
way that conveys a defamatory impression. Turner, 38 S.W.3d at 115. Turner did
not address allegations like those in this case that not only were individual
statements false and defamatory but also the impression, or gist, created by the
omission or juxtaposition of certain details was false and defamatory. Klentzman
and The Star do not cite any authority indicating that Wade could not allege a
cause of action for defamation on both of these bases.
Klentzman and The Star also rely on Wheeler v. New Times, Inc., 49 S.W.3d
471 (Tex. App.—Dallas 2001, no pet.). However, Wheeler is factually
distinguishable from the present case. Wheeler, a rental property owner, claimed
that it was defamed in a portion of a newspaper article criticizing the City of
27
Dallas’s urban rehabilitation and building code enforcement in certain poor
minority communities. Id. at 473. The court stated that the plaintiffs “contend the
facts are inaccurate and the article was not substantially true,” but they did not
allege, as in Turner, that the “article ‘got the details right but fail[ed] to put them in
the proper context, thereby getting the “gist” wrong.’” Id. at 476. Thus, the court
in Wheeler determined that Turner was not controlling. Id. It went on to hold that
the gist of the publication did not concern the Wheeler plaintiffs and the article was
not defamatory of them. Id.
Here, Wade alleged both that individual statements were false and
defamatory and that the Article omitted key facts and juxtaposed other facts in
such a way that it created a defamatory impression in the mind of a reasonable
reader. However, there is no requirement in Turner or in other Texas law that the
gist of an article may be false only if the individual statements made in the article
are true.
Klentzman and The Star have failed to demonstrate that their proposed jury
charge—submitting a question addressing the falsity or substantial truth of the
individual complained-of statements before the question addressing the defamatory
impression created by the Article as a whole as a condition of reaching the second
question—was required by a valid legal theory. See Rosell v. Cent. W. Motor
Stages, Inc., 89 S.W.3d 643, 653 (Tex. App.—Dallas 2002, pet. denied) (holding
28
that we reverse if trial court denied proper submission of valid theory of recovery
raised by pleadings and evidence) (citing Exxon Corp. v. Perez, 842 S.W.2d 629,
631 (Tex. 1992) (per curiam)).
We overrule Klentzman and The Star’s third issue.
Matter of Public Concern
In their first issue, Klentzman and The Star argue that the trial court erred in
concluding that the Article was not reporting on a matter of public concern. They
argue that the Article’s content, form, and context deal with issues of law
enforcement, criminal activity, and related judicial proceedings, which are all
matters of public concern. They further argue that, as a result of this legal error,
the jury charge was improperly submitted, such that Wade failed to secure jury
findings on the falsity of the statements published in the Article or on either actual
damages or malice, as required for a private individual to recover actual and
punitive damages in a case brought against a media defendant for statements
regarding a matter of public concern.
Wade argues that the Article does not address a matter of public concern.
He relies in part on our holding in Klentzman I that he had not involved himself in
a public controversy and thus was not a limited-purpose public figure and on cases
analyzing what constitutes a public controversy for purposes of determining a
plaintiff’s status as a public or private figure. Wade also argues that, to the extent
29
the Article related details about Wade personally, it did not report on matters of
public concern. Therefore, he argues, the damages award was proper.
A. Law Regarding Matters of Public Concern
Whether a plaintiff is a limited-purpose public figure who has involved
himself in a public controversy and whether an article addresses a matter of public
concern are two separate legal inquiries with their own implications for defamation
law.
Whether a publication involves a matter of public concern is a question of
law. See Rankin v. McPherson, 483 U.S. 378, 385–86 & n.9, 107 S. Ct. 2891,
2897–98 & n.9 (1987); Scott v. Godwin, 147 S.W.3d 609, 618 (Tex. App.—Corpus
Christi 2004, no pet.). Appellate courts review legal determinations de novo.
Reliance Nat’l Indem. Co., 227 S.W.3d at 50.
In considering whether the Article addressed a matter of public concern, we
examine “all the circumstances of the case.” See Snyder v. Phelps, 131 S. Ct.
1207, 1215 (2011); see also Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 474
(Tex. 1995) (“The determination whether a given matter is one of legitimate public
concern must be made in the factual context of each particular case, considering
the nature of the information and the public’s legitimate interest in its disclosure.”).
“[S]peech on ‘matters of public concern’ . . . is ‘at the heart of the First
Amendment’s protection.’” Snyder, 131 S. Ct. at 1215 (quoting Dun & Bradstreet,
30
Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758–59, 105 S. Ct. 2939, 2944–45
(1985) (plurality op.)). Because “speech concerning public affairs . . . is the
essence of self-government,” the First Amendment protects such speech on the
principle that “debate on public issues should be uninhibited, robust, and wide-
open.” Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 74–75, 85 S. Ct. 209, 216
(1964), and New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 721
(1964)).
The Supreme Court has held that “[s]peech deals with matters of public
concern when it can ‘be fairly considered as relating to any matter of political,
social, or other concern to the community’” or when it “is a subject of legitimate
news interest; that is, a subject of general interest and of value and concern to the
public.” Id. at 1216 (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct.
1684, 1690 (1983), and City of San Diego v. Roe, 543 U.S. 77, 83–84, 125 S. Ct.
521, 526 (2004)).
In deciding whether speech is of public or private concern, courts must
examine the content, form, and context of the speech as revealed by the whole
record. Id. (citing Dun & Bradstreet, 472 U.S. at 761, 105 S. Ct. at 2946, and
Connick, 461 U.S. at 147–48, 103 S. Ct. at 1690). “In considering content, form,
and context, no factor is dispositive, and it is necessary to evaluate all of the
31
circumstances of the speech, including what was said, where it was said, and how
it was said.” Id.
Courts have routinely held that matters related to the reporting of crimes and
related proceedings are matters of public concern. Cox Broad. Corp. v. Cohn, 420
U.S. 469, 492, 95 S. Ct. 1029, 1045 (1975) (“The commission of crime,
prosecutions resulting from it, and judicial proceedings arising from the
prosecutions . . . are without question events of legitimate concern to the public
and consequently fall within the responsibility of the press to report the operations
of government.”). Likewise, the activities of government officials and law
enforcement personnel are matters of public concern. See Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767, 769, 776, 106 S. Ct. 1558, 1560, 1563
(1986) (holding that newspaper’s articles asserting that private businessman had
links to organized crime that he used to influence governmental processes were on
issues of public concern); Connick, 461 U.S. at 148, 103 S. Ct. at 1691 (holding
that speech seeking to “bring to light actual or potential wrongdoing or breach of
public trust” by government official constitutes speech on matter of public
concern); Brawner v. City of Richardson, 855 F.2d 187, 191–92 (5th Cir. 1988)
(holding that alleged misconduct by public officials, particularly by law
enforcement officials, is matter of public concern).
32
However, when details about the lives of private citizens are reported in a
publication on a matter of public concern, the Texas Supreme Court has held that
there must be a “logical nexus” between the private facts disclosed and the general
subject matter. Star-Telegram, Inc., 915 S.W.2d at 474; accord Lowe v. Hearst
Commc’ns, Inc., 487 F.3d 246, 251 (5th Cir. 2007) (declining “to get involved in
deciding the newsworthiness of specific details in a newsworthy story where the
details were ‘substantially related’ to the story”). This “logical nexus” test was
intended to protect the privacy and reputational interests of private citizens without
causing “an unacceptable chilling effect on the media itself,” thereby serving the
legitimate public interest in allowing media outlets to cover matters of public
concern. Star-Telegram, Inc., 915 S.W.2d at 474–75.
1. Public figure analysis in Klentzman I does not preclude ruling that
Article addresses matter of public concern
In Klentzman I, we considered Klentzman and The Star’s argument that
Wade was a limited-purpose public figure. 312 S.W.3d at 904–08. Our analysis
considered the “character of the plaintiff as a private or public figure rather than
the nature of the subject-matter at issue.” Id. at 904 (citing Times, Inc. v.
Firestone, 424 U.S. 448, 455–56, 96 S. Ct. 958, 966 (1976)). We observed that
limited-purpose public figures are persons who “thrust themselves to the forefront
of particular public controversies in order to influence the resolution of the issues
involved. . . .” Id. We applied the three-part test for determining whether Wade
33
was a limited-purpose public figure, which includes a requirement that “the
controversy at issue must be public both in the sense that people are discussing it
and people other than the immediate participants in the controversy are likely to
feel the impact of its resolution.” See id. at 904–05 (providing that other elements
are that plaintiff had more than trivial role in controversy and that alleged
defamation must be germane to plaintiff’s participation in controversy) (citing
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)).
We concluded that the summary judgment evidence did not support a
finding that there was any public controversy involving “people discussing a real
question . . . the resolution of which was likely to impact persons other than those
involved in the controversy.” Id. at 905. We concluded that Wade was not a
limited-purpose public figure. Id. at 906–07. However, we stated that we were not
considering the separate question of whether the Article raised a matter of public
concern because Klentzman and The Star did not argue to the trial court in the
summary judgment proceeding that the allegedly defamatory statements made by
Klentzman and The Star involved a matter of public concern as opposed to
involving a public controversy. Id. at 907 n.20.
We went on to recognize in Klentzman I that the standard for determining
whether a defamatory statement involves a matter of public concern requires a
different analysis than determining whether a statement addresses a “public
34
controversy” that would elevate a private citizen to a limited-purpose public figure.
Compare Snyder, 131 S. Ct. at 1216 (stating that “[s]peech deals with matters of
public concern when it can ‘be fairly considered as relating to any matter of
political, social, or other concern to the community’” or when it “is a subject of
legitimate news interest; that is, a subject of general interest and of value and
concern to the public”), and Klentzman I, 312 S.W.3d at 898 (holding that when
defamatory statement involves matter of public concern, even private individual
must prove malice to recover presumed or punitive damages against media
defendant), with McLemore, 978 S.W.2d at 572 (stating that public controversy
exists, for purposes of determining whether plaintiff was limited-purpose public
figure, if “persons actually were discussing some specific question” and that “[a]
general concern or interest will not suffice”).
Also, the standard for determining whether a statement involves a matter of
public concern potentially includes a broader range of topics. For example, while
an alleged criminal or crime victim may not be involved in a public controversy
that would make him a limited-purpose public figure, an article or statement
addressing the crime may nevertheless involve a matter of public concern. See
Hepps, 475 U.S. at 769, 776, 106 S. Ct. at 1560, 1563 (holding that newspaper’s
articles asserting that private businessman had links to organized crime that he
used to influence governmental processes were on issues of public concern); Star-
35
Telegram, Inc., 915 S.W.2d at 474 (holding that personal details identifying rape
victim, when viewed in their full context, although private, nonetheless served
legitimate public concern).
Thus, to the extent that Wade relies on the holding in Klentzman I that he
was not a limited-purpose public figure, and on cases analyzing whether a plaintiff
is involved in a public controversy for purposes of determining his status as a
private or public figure, those arguments are unavailing in determining whether the
Article addressed a matter of public concern and is therefore subject to a higher
standard of proof with respect to presumed and punitive damages.
2. The Article addresses a matter of public concern
We turn now to an analysis of the Article’s content, form, and context as
revealed by the whole record to determine whether it can “be fairly considered as
relating to any matter of political, social, or other concern to the community” or
whether it “is a subject of legitimate news interest; that is, a subject of general
interest and of value and concern to the public.” See Snyder, 131 S. Ct. at 1216.
The Article, which was published in a public form as a news article in a
local newspaper, contained reports of the theft of Wade’s cell phone by an
unidentified individual, details of Wade’s MIP citation, related investigations and
proceedings, interactions between law enforcement officers and Wade and his
brother Cullen, and, significantly, official conduct on the part of Chief Deputy
36
Craig Brady in all of these circumstances. As discussed above, we held in
Klentzman I that Chief Brady was the target of the Article and that the subject of
the Article was “the alleged demand by Chief Brady for deputies to turn over
certain audiotapes and the propriety of such alleged action.” 312 S.W.3d at 901.
We stated, “To the extent that the Article addresses Wade’s incidents with the law,
the emphasis is on Wade’s father’s reaction to those incidents, and not on Wade.”
Id. Thus, “the gist of the Article is that Chief Brady, in an effort to help his son,
Wade, abused his official position by intervening on his son’s behalf in an effort to
‘suppress’ evidence, specifically, by intimidating and coercing the deputies who
issued Wade a ticket and illegally demanding and requiring them to turn over to
him audiotapes related to the incident.” Id. We concluded in Klentzman I that the
gist of the Article was not Wade’s misdeeds, as Wade was only “a secondary
character.” Id.
Chief Deputy Craig Brady’s conduct and activities undertaken in his official
capacity raise a matter of public concern. See, e.g., Kinney v. Weaver, 367 F.3d
337, 361 (5th Cir. 2004) (en banc) (holding that bringing official impropriety to
light is matter of public concern, “especially when it concerns the operation of a
police department”); Connick, 461 U.S. at 148, 103 S. Ct. at 1691 (holding that
speech seeking to “bring to light actual or potential wrongdoing or breach of public
trust” by government official constitutes speech on matter of public concern);
37
Brawner, 855 F.2d at 191–92 (holding that alleged misconduct by public officials,
particularly by law enforcement officials, is matter of public concern).
Wade argues, however, that to the extent the Article related personal details
about him, a private citizen, it does not touch on matters of public concern.
In Star-Telegram, Inc., a newspaper article about a sexual assault disclosed
private details about the victim, and the victim filed suit against the newspaper
alleging invasion of privacy by publically disclosing embarrassing private facts’
one element of the suit required that the plaintiff establish that “the matter
publicized is not of legitimate public concern.” 915 S.W.2d at 473–74. The Texas
Supreme Court held that “[w]hile the general subject matter of a publication may
be a matter of legitimate public concern, it does not necessarily follow that all
information given in the account is newsworthy.” Id. at 474 (citing Ross v.
Midwest Commc’ns, Inc., 870 F.2d 271, 274 (5th Cir. 1989), and Anonsen v.
Donahue, 857 S.W.2d 700, 704 (Tex. App.—Houston [1st Dist.] 1993, writ
denied)). Thus, the supreme court concluded that a “logical nexus” should exist
between the private facts disclosed about the victim and the general subject matter
of the crime. Id. The court held that “[p]rivate details about a rape victim or the
victim’s identity may be irrelevant when the details are not uniquely crucial to the
case, or when the publisher’s ‘public concern’ goes to a general, sociological
issue.” Id. (citing Ross, 870 F.2d at 274–75 (holding that identification of
38
particular victim, details of her attack, and her knowledge were of unique
credibility and persuasive force in story)).
The Star-Telegram court concluded that the articles in question—which
disclosed details such as the victim’s age, the location of her residence, the nature
of her business enterprises, and the fact that she drove a 1984 black Jaguar
automobile—when considered in their full context, did not disclose embarrassing
private facts which were not of legitimate public concern. Id. In reaching this
conclusion, the court stated:
Newspapers and other media should take precautions to avoid
unwarranted public disclosure and embarrassment of innocent
individuals who may be involved in otherwise newsworthy events of
legitimate public interest. But it would be impossible to require them
to anticipate and take action to avoid every conceivable circumstance
where a party might be subjected to the stress of some unpleasant or
undesired notoriety without an unacceptable chilling effect on the
media itself. Facts which do not directly identify an innocent
individual but which make that person identifiable to persons already
aware of uniquely identifying personal information, may or may not
be of legitimate public interest. To require the media to sort through
an inventory of facts, to deliberate, and to catalogue each of them
according to their individual and cumulative impact under all
circumstances, would impose an impossible task; a task which
foreseeably could cause critical information of legitimate public
interest to be withheld until it becomes untimely and worthless to an
informed public.
Id. at 474–75.
Other courts have adopted a similarly broad view of what constitutes a
matter of public concern. In Lowe, the Fifth Circuit “declined to get involved in
39
deciding the newsworthiness of specific details in a newsworthy story where the
details were ‘substantially related’ to the story.” 487 F.3d at 251. The plaintiff in
Lowe argued that “while the details of the alleged blackmail scheme may be
matters of public concern, other details within the article . . . were not matters of
public concern.” Id. The court concluded that it would not “circumscribe the
paper’s coverage in this case by imposing judicial rules on what is relevant and
appropriate in a story that is based on very personal [details], which became
newsworthy by their connection to the alleged crimes.” Id.; see also Cinel v.
Connick, 15 F.3d 1338, 1346 (5th Cir. 1994) (“[W]e are not prepared to make
editorial decisions for the media regarding information directly related to matters
of public concern.”); Ross, 870 F.2d at 275 (“Exuberant judicial blue-penciling
after-the-fact would blunt the quills of even the most honorable journalists.”).
Here, just as in Star-Telegram and Lowe, the Article identified Wade as the
son of a prominent local law-enforcement official who, as we held in Klentzman I,
allegedly “abused his official position by intervening on his son’s behalf in an
effort to ‘suppress’ evidence.” 312 S.W.3d at 901. It also related personal details
about Wade, a private citizen. It provided his name, general age, and details of his
behavior. Placed in this context, there is a logical nexus between statements
disclosing details about Wade and the official misconduct described in the Article.
Identifying Wade by name as Craig Brady’s son and describing his various
40
interactions with law enforcement put Craig’s official conduct into context and
explained the purpose behind his alleged misdeeds. See Star-Telegram, Inc., 915
S.W.2d at 474–75; Lowe, 487 F.3d at 251. As we stated in Klentzman I, Wade “is
a secondary character” in the Article, “portrayed as the beneficiary of his father’s
purportedly improper actions, whose dealings with the law provided the catalyst
for his father’s alleged misconduct.” 312 S.W.3d at 901.
A private citizen’s encounters with law enforcement and the related legal
proceedings also constitute matters of public concern. See Cox Broad. Corp., 420
U.S. at 492, 95 S. Ct. at 1045 (“The commission of crime, prosecutions resulting
from it, and judicial proceedings arising from the prosecutions . . . are without
question events of legitimate concern to the public and consequently fall within the
responsibility of the press to report the operations of government.”). Thus, the
details of Wade’s various interactions with law enforcement—as the victim of a
cell phone theft, as the subject of a MIP citation and trial, or as a citizen who was
briefly handcuffed and questioned by an officer—are also matters of public
concern. See Lowe, 487 F.3d at 250 (“[T]here is a legitimate public interest in
facts tending to support an allegation of criminal activity, even if the prosecutor
does not intend to pursue a conviction.”); Cinel, 15 F.3d at 1346 (holding that
materials related to plaintiff’s guilt or innocence of criminal conduct constituted
matter of legitimate public concern).
41
Wade emphasizes the biased and untruthful manner of Klentzman’s
reporting on this topic, including the fact that the Article implied his guilt on the
MIP charge when, in fact, he was actually acquitted by a jury—a fact that
Klentzman failed to report—and the Article’s mischaracterization of his other
encounters with law enforcement. However, whether a statement is defamatory
and whether it is false are separate issues that must be examined independently
from our analysis of whether the Article addressed a matter of public concern. See
McLemore, 978 S.W.2d at 571 (providing elements of defamation cause of action
as including (1) publication of statement (2) that was defamatory concerning
plaintiff (3) while acting with either negligence or malice); see also Hepps, 475
U.S. at 776–77, 106 S. Ct. at 1564 (holding that common-law presumption that
defamatory speech is false cannot stand when plaintiff sues media defendant for
speech of public concern, and thus plaintiff bears burden of proving falsity).
While a statement or the gist of statements made about the plaintiff may be
defamatory, the “arguably ‘inappropriate or controversial character of a statement
is irrelevant to the question [of] whether [the statement] deals with a matter of
public concern.’” See Snyder, 131 S. Ct. at 1216 (quoting Rankin, 483 U.S. at 387,
107 S. Ct. at 2898). Rather, under the standards set out by both Texas state and
federal courts, to avoid creating “an unacceptable chilling effect on the media
itself,” courts ought not to define matters of public concern in so narrow a way as
42
to require media outlets “to anticipate and take action to avoid every conceivable
circumstance where a party might be subjected to the stress of some unpleasant or
undesired notoriety” or that would require them “to sort through an inventory of
facts, to deliberate, and to catalogue each of them according to their individual and
cumulative impact [on private citizens] under all circumstances.” See Star-
Telegram, Inc., 915 S.W.2d at 474–75.
We therefore decline to consider Wade’s allegations that Klentzman’s
reporting was biased and untruthful as going to whether the facts as stated in the
Article were newsworthy or matters of public concern. Rather, because we have
concluded that there is a logical nexus between the details about Wade that were
included in the Article and the public interest in official conduct and the criminal
justice system, we decline “to get involved in deciding the newsworthiness of
specific details in a newsworthy story where the details were ‘substantially related’
to the story.” See Lowe, 487 F.3d at 251 (declining to “circumscribe the paper’s
coverage in this case by imposing judicial rules on what is relevant and appropriate
in a story that is based on very personal [details], which became newsworthy by
their connection to the alleged crimes”); Ross, 870 F.2d at 275 (stating that
“judges, acting with the benefit of hindsight, must resist the temptation to edit
journalists aggressively” because “[e]xuberant judicial blue-penciling after-the-fact
would blunt the quills of even the most honorable journalists”); see also Cinel, 15
43
F.3d at 1346 (“[W]e are not prepared to make editorial decisions for the media
regarding information directly related to matters of public concern.”).
We conclude that the Article addresses a matter of public concern, and the
trial court erred in ruling to the contrary. We must now consider the effect this
error had on the burden of proof of defamation.
B. Proof of Defamation Claim Made by Private Individual against Media
Defendant in Matter of Public Concern
As we stated in Klentzman I, to prevail on his cause of action for libel
against a media defendant, Wade had to prove that Klentzman and The Star
(1) published a statement (2) that was defamatory concerning him (3) while acting
with negligence regarding the truth of the statement. 312 S.W.3d at 897, 907
(providing elements of libel against media defendant); see also McLemore, 978
S.W.2d at 571. “The third requirement [of a defamation claim] relates to a
showing of fault on the part of the media defendant, which is a constitutional
prerequisite for defamation liability.” Klentzman I, 312 S.W.3d at 897.
A private plaintiff like Wade need only prove negligence on the part of the
media defendant—that is, the private plaintiff must show that the defendant knew
or should have known that the defamatory statement was false—in order to recover
actual damages even in a matter of public concern. See id. at 898 (citing
McLemore, 978 S.W.2d at 571). However, we recognized in Klentzman I that
when a private individual brings a defamation suit that involves a matter of public
44
concern against a media defendant, damages cannot be presumed, as they are in a
defamation suit under the common law; nor must the defendant prove the
substantial truth of the statement to avoid liability. See id. Rather, “the
constitutional requirements of the First Amendment supersede the common law
presumption of falsity, and the plaintiff—whether a public plaintiff or a private
individual—is required to prove the falsity of the challenged statement by a
preponderance of the evidence before recovering any damages. Id.; see Hepps,
475 U.S. at 776–77, 106 S. Ct. at 1563-64 (stating, “[O]n matters of public
concern, . . . a private-figure plaintiff must bear the burden of showing that the
speech at issue is false before recovering damages for defamation from a media
defendant,” and holding that common-law presumption that defamatory speech is
false must fall to “a constitutional requirement that the plaintiff bear the burden of
showing falsity, as well as fault, before recovering damages”).
In addition, when a private plaintiff’s defamation action against a media
defendant arises out of a matter of public concern, the plaintiff must establish
actual malice to recover either presumed or punitive damages. Hearst Corp. v.
Skeen, 159 S.W.3d 633, 637 (Tex. 2005); Klentzman I, 312 S.W.3d at 898; see
Gertz v. Robert Welch, Inc., 418 U.S. 323, 334, 349, 94 S. Ct. 2997, 3004, 3011
(1974) (stating that “the States may not permit recovery of presumed or punitive
damages, at least when liability is not based on a showing of knowledge of falsity
45
or reckless disregard for the truth” and defining statement made with actual malice
as one made “with knowledge that it was false or with reckless disregard of
whether it was false or not”).
The Supreme Court has held that defamation plaintiffs who do not prove a
media defendant’s knowledge of the falsity of his statement or reckless disregard
for the truth are restricted to recovering only compensation for their actual injuries.
Gertz, 418 U.S. at 349–50, 94 S. Ct. at 3012. Notably, the court specifically
declined to define or limit the scope of “actual injury,” stating,
We need not define “actual injury,” as trial courts have wide
experience in framing appropriate jury instructions in tort actions.
Suffice it to say that actual injury is not limited to out-of-pocket loss.
Indeed, the more customary types of actual harm inflicted by
defamatory falsehood include impairment of reputation and standing
in the community, personal humiliation, and mental anguish and
suffering. Of course, juries must be limited by appropriate
instructions, and all awards must be supported by competent evidence
concerning the injury, although there need be no evidence which
assigns an actual dollar value to the injury.
Id.
In the instant case, Wade is a private individual who sued media defendants
Klentzman and The Star for defamation in statements made about him in the
Article that had a logical nexus with a matter of public concern. Therefore, to
recover actual damages from Klentzman and The Star, he was required to prove
both the falsity of the statements made by the defendants and his own actual injury,
such as “impairment of reputation . . . , personal humiliation, and mental anguish
46
and suffering.” See id. To recover either presumed damages—damages presumed
to follow on a defamatory statement without proof of actual injury—or punitive
damages, he had to prove actual malice on the part of Klentzman and the Star. See
id. at 349, 94 S. Ct. at 3011. That is, he had to prove that Klentzman and The Star
made a false statement about him with knowledge that it was false or with reckless
disregard of whether it was false or not. See id.
We sustain Klentzman and The Star’s first issue insofar as they argue that
Wade’s case against them involves a matter of public concern that places a
heightened burden of proof on Wade. We turn, therefore, to whether the jury
charge accurately reflected the burden of proof.
Jury Charge Error
Klentzman and the Star also argue in their first issue that the trial court
refused, over their objection, to submit the correct jury charge for a defamation
case brought by a private individual against a media defendant regarding
statements that addressed a matter of public concern and that this error resulted in
the submission of an erroneous charge that probably caused the rendition of an
improper judgment, requiring reversal. See TEX. R. APP. P. 44.1(a) (providing that
no judgment may be reversed on appeal based on error of law unless we conclude
that error probably caused rendition of improper judgment). Specifically,
Klentzman and The Star argue that, in Question 5, the jury charge incorrectly
47
placed the burden for proving the substantial truth of the statements made about
Wade on them, rather than placing the burden of proving the falsity of the
statements on Wade. They further argue that the jury charge erroneously
instructed the jury in Question 9 that it could award presumed damages, and it
improperly allowed the jury, in response to Question 10, to award punitive
damages without requiring Wade to prove actual malice under the proper
definition. Klentzman and The Star filed written objections on these grounds in
the trial court and submitted alternative questions addressing their claims.
A. Standard of Review
We review a trial court’s decision to submit or refuse a particular instruction
under an abuse of discretion standard. Shupe v. Lingafelter, 192 S.W.3d 577, 579
(Tex. 2006). A trial court abuses its discretion when it acts in an arbitrary or
unreasonable manner, or if it acts without reference to any guiding rules or
principles. Moss v. Waste Mgmt. of Tex., Inc., 305 S.W.3d 76, 81 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied). A trial court has wide discretion in
submitting instructions and jury questions. Id. This discretion is subject only to
the requirement that the questions submitted must (1) control the disposition of the
case; (2) be raised by the pleadings and the evidence; and (3) properly submit the
disputed issues for the jury’s determination. TEX. R. CIV. P. 277, 278; Moore v.
Kitsmiller, 201 S.W.3d 147, 153 (Tex. App.—Tyler 2006, pet. denied); see also
48
Shupe, 192 S.W.3d at 579 (“When a trial court refuses to submit a requested
instruction on an issue raised by the pleadings and evidence, the question on appeal
is whether the request was reasonably necessary to enable the jury to render a
proper verdict.”).
When a proper objection is made about the omission of an essential element,
the failure to include it in the charge is reversible error. Ford Motor Co. v.
Ledesma, 242 S.W.3d 32, 44 (Tex. 2007). “It is fundamental to our system of
justice that parties have the right to be judged by a jury properly instructed in the
law.” Id. (quoting Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex.
2000)). While the plaintiff bears the burden to obtain affirmative answers to jury
questions as to necessary elements of his cause of action, we observe that
“submission of the charge is the trial court’s responsibility, and the consequences
of the trial court’s error should not fall unduly upon plaintiffs.” See id.; Spencer v.
Eagle Star Ins. Co., 876 S.W.2d 154, 158 (Tex. 1994).
To determine whether an alleged error in the jury charge is reversible, we
must consider the pleadings of the parties, the evidence presented at trial, and the
charge in its entirety to determine if the trial court abused its discretion. Rosell, 89
S.W.3d at 653 (citing Island Recreational Dev. Corp. v. Republic of Tex. Sav.
Ass’n, 710 S.W.2d 551, 555 (Tex. 1986) (op. on reh’g)). We reverse if the trial
court denied a proper submission of a valid theory of recovery raised by the
49
pleadings and the evidence. Id. (citing Perez, 842 S.W.2d at 631). Otherwise, we
do not reverse unless harm results, i.e., unless the error probably caused the
rendition of an improper judgment. Id. (citing TEX. R. APP. P. 44.1(a)(1)); see also
Shupe, 192 S.W.3d at 579 (“Error in the omission of an issue is harmless ‘when the
findings of the jury in answer to other issues are sufficient to support the
judgment.’”).
B. Defects in the Charge
Because the Article addressed a matter of public concern, Wade could not
obtain presumed damages, and he bore the burden of proving that the statements
were false and negligently made to obtain actual damages. See Hepps, 475 U.S. at
776–77, 106 S. Ct. at 1564 (holding that common-law presumption that
defamatory speech is false cannot stand when plaintiff sues media defendant for
speech of public concern). He also had to prove actual malice under the
appropriate standard in order to obtain punitive damages. See id.; Gertz, 418 U.S.
at 349, 94 S. Ct. at 3011 (“[T]he States may not permit recovery of presumed or
punitive damages, at least when liability is not based on a showing of knowledge
of falsity or reckless disregard for the truth.”).
However, the jury charge improperly asked the jury in Question 5 whether
the defamatory statements referenced in Question 4 were “substantially true at the
time they were made as they related to Wade Brady”—defining “substantially
50
true” as meaning a statement “that varies from the literal truth in only minor details
or if, in the mind of the average person, the gist of it is no more damaging to the
person affected by it than a literally true statement would have been”—rather than
placing the burden on Wade to establish whether either the allegedly defamatory
statements or the gist of the Article were false.
The charge also incorrectly instructed the jury with respect to Question 9
that if it found that the Article was defamatory “per se,” then it was required to
presume “at least nominal damages for injury to reputation in the past,” although
the jury could not award presumed damages. It did not require that the jury find
actual damages, and it did not define “nominal damages.”
Finally, the jury charge improperly instructed the jury with respect to
Question 10 that it could award punitive damages based on a finding of common-
law malice, rather than requiring that Wade prove actual malice under the
appropriate defamation standard. Specifically, Question 10 defined malice as
either “specific intent by Klentzman to cause substantial injury to” Wade or an act
or omission by Klentzman that involved an extreme degree of risk or involved risk
of which Klentzman had “actual, subjective awareness . . . , but nevertheless
proceed[ed] with conscious indifference to the rights, safety, or welfare of others.”
And it relied on this same instruction in asking whether exemplary damages should
be awarded to Wade against The Star in Questions 12, 13, and 14. It did not define
51
a statement made with actual malice as a false statement made about Wade with
knowledge that it was false or with reckless disregard of whether it was false or
not, as required for an individual to obtain exemplary damages against a media
defendant for defamatory statements made against him that have a logical nexus to
a matter of public concern. See Gertz, 418 U.S. at 334, 349, 94 S. Ct. at 3004,
3011 (requiring proof of actual malice to obtain exemplary damages in such
circumstances and defining statement made with actual malice as one made “with
knowledge that it was false or with reckless disregard of whether it was false or
not”).
We conclude that there were errors in the jury charge. We sustain this part
of Klentzman and The Star’s first issue and turn to whether these errors probably
caused the rendition of an improper judgment so that rendition or remand for a new
trial is the proper remedy.
C. Effect of Jury Charge Error
In their first issue, Klentzman and The Star seek reversal of the trial court’s
judgment due to the errors in the jury charge. However, they provide no argument
regarding whether remand for a new trial or rendition of judgment is the
appropriate remedy.
52
1. Reversal for Defective Jury Charge
A case will be reversed for jury charge error only if the error probably
caused rendition of an improper judgment. TEX. R. APP. P. 44.1(a).
Here, the jury was improperly charged on proof of falsity, actual damages,
and actual malice, and, consequently, on the requirement for finding exemplary
damages. We conclude, therefore, that the judgment was improper.
When a proper objection is made about the omission of an essential element,
the failure to include that element in the charge is reversible error. Ledesma, 242
S.W.3d at 44. If the theory of recovery was defectively submitted, as opposed to a
situation in which the plaintiff “refused to submit a theory of liability” after
defendant’s objection, the proper remedy is to remand for a new trial if there is
legally sufficient evidence to support the plaintiff’s claim. See id.; Arthur
Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex. 1997) (holding
that remand is appropriate if charge improperly instructed the jury and legally
sufficient evidence exists to support claim); see also Spencer, 876 S.W.2d at 157
(holding that trial court may disregard jury finding only if it is unsupported by
evidence or if issue is immaterial).
Here, Wade submitted several theories of liability and questions regarding
substantial truth, fault, and malice to the jury, but the charge used improper
definitions and questions. Thus, this is a case where the plaintiff submitted jury
53
questions on his claim that were “defective” rather than immaterial or completely
omitted. See Ledesma, 242 S.W.3d at 44.
2. Legal Sufficiency of the Evidence
Klentzman and The Star argue that the evidence was legally insufficient for
Wade to meet his burden of proving falsity or to establish his actual and punitive
damages.4
In a legal sufficiency, or “no-evidence” review, we determine whether the
evidence would enable reasonable and fair-minded people to reach the verdict
under review. City of Keller, 168 S.W.3d at 827. In conducting this review, we
credit favorable evidence if a reasonable fact-finder could, and we disregard
contrary evidence unless a reasonable fact-finder could not. Id. We consider the
evidence in the light most favorable to the finding under review and indulge every
reasonable inference that would support it. Id. at 822. We must sustain a no-
evidence contention only if (1) the record reveals a complete absence of evidence
of a vital fact; (2) the court is barred by rules of law or of evidence from giving
weight to the only evidence offered to prove a vital fact; (3) the evidence offered to
4
In their seventh issue, Klentzman and The Star argue that the evidence was legally
and factually insufficient to support a finding that the gist of the Article or the
complained-of statements was false. In their eighth and ninth issues, Klentzman
and The Star argue that the evidence was legally and factually insufficient to
support the jury’s findings that Wade was entitled to actual damages for past
mental anguish and past injury to his reputation. As we conclude above, the
record contains legally sufficient evidence on these claims. Because we are
remanding for a new trial, we do not address the remainder of these issues.
54
prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes
conclusively the opposite of the vital fact. Id. at 810; Merrell Dow Pharms., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997); see also Formosa Plastics Corp. USA
v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998) (“Anything
more than a scintilla of evidence is legally sufficient to support the finding.”).
Wade submitted evidence to support each of the elements of his claim.
Therefore, we conclude that the evidence was legally sufficient to support Wade’s
claims and that the case should therefore be remanded for a new trial.
a. Proof of falsity
There is legally sufficient evidence to support defamation.
Regarding Wade’s burden to establish falsity, courts use the “substantial
truth” test to determine the falsity of a factual statement. Neely, 418 S.W.3d at 63–
64; Vice, 318 S.W.3d at 17 & n.9. A statement is substantially true, and thus not
actionable, if, in the mind of the average person who reads the statement, the
allegedly defamatory statement is not more damaging to the plaintiff’s reputation
than a truthful statement would have been. Neely, 418 S.W.3d at 63; Klentzman I,
312 S.W.3d at 899.
Here, the Article failed to state at any point that Wade had been acquitted by
a jury on the MIP charge. The failure to report that Wade was acquitted, leaving
the impression that he was guilty of the MIP charge, was clearly more damaging to
55
his reputation in the mind of the average reader than the truth would have been.
See Neely, 418 S.W.3d at 63. Furthermore, the facts in the Article were juxtaposed
in a way that made it seem that Craig Brady interfered with the presentation of
evidence at Wade’s MIP trial and that Craig Brady took improper actions in an
attempt to enforce an invalid expunction order. However, the testimony of both
Craig Brady and the officers involved indicated that Craig Brady did not attempt to
influence the MIP proceedings against Wade and that Craig Brady’s involvement
in implementing the expunction order following Wade’s acquittal was limited.
The Article stated that officials were questioning the validity of the expunction
order and that the TMPA was investigating the incident. However, McDougal,
with the TMPA, testified that he did not opine on the validity of the expunction
order and that he did not believe TMPA was involved with seeking to void the
order. Childers, the county attorney, also testified that he did not form or express
any opinion on the validity of Wade’s expunction order and that his statement
quoted in the Article was based on a very narrow hypothetical posed by Klentzman
and not on the facts of Wade’s case.
The Article also related the circumstances surrounding the theft of Wade’s
cell phone in May 2000 and the incident occurring in Wade’s driveway
approximately one week after the MIP citation in February 2001. Both of these
incidents were unrelated to the MIP ticket and had occurred years before the
56
Article was published in January 2003, but their inclusion strengthened the
portrayal of Wade Brady as someone who had repeated trouble with the law and
depended on his father to help him.
These misrepresentations and the juxtaposition of other, non-related
incidents between Wade and local law enforcement were also more damaging to
Wade’s reputation in the mind of the average reader than the truth would have
been. See Neely, 418 S.W.3d at 63. Thus, we conclude that although the jury was
improperly charged on proof of defamation, there is legally sufficient evidence
supporting Wade’s claim that the gist of the Article and the complained-of
statements were false. See City of Keller, 168 S.W.3d at 810 (providing elements
for legal sufficiency review).
b. Proof of actual damages
Likewise, there is legally sufficient evidence of Wade’s actual damages. In
Bentley v. Bunton, the supreme court considered whether evidence supported any
award of actual damages and, alternatively, whether the amount of damages
awarded was supported by the record. 94 S.W.3d at 605–06. Regarding the
amount of damages awarded, we are “authorized to determine whether damage
awards are supported by insufficient evidence—that is, whether they are excessive
or unreasonable.” Id. at 606. Although it is impossible to calculate the exact
amount of injury to reputation, which requires that the jury be given a measure of
57
discretion in finding damages, there must be some evidence to justify the amount
awarded. Id. (“Juries cannot simply pick a number and put it in the blank. They
must find an amount that, in the standard language of the jury charge, ‘would fairly
and reasonably compensate’ for the loss.”) (quoting Saenz v. Fid. & Guar. Ins.
Underwriters, 925 S.W.2d 607, 614 (Tex. 1996)).
Wade testified that he first became aware that the Article affected the way
people in the community viewed him when he was asked to quit his job. He also
testified that his friends told him that people were discussing the Article and said
that it made him “look like a criminal” whose father would “get[] [him] out of
trouble.” Wade testified that every time he met a new person he “would wonder if
it was somebody that had read this article and thought [he] was a bad person.” He
testified that he did not see a doctor about his condition after the Article’s
publication because he is “not the kind of person to talk about [his] feelings” and
he found it “embarrassing”; rather, he “hid.” He gained thirty pounds and was
affected by the article for “about five years.” His mother Jackie also testified about
the effect the Article had on Wade’s life, stating that he became more withdrawn
and did not socialize as much as he had prior to the Article’s publication. Jackie
also testified that Wade gained weight and had strange dreams following the
Article’s publication. See Gertz, 418 U.S. at 350, 94 S. Ct. at 3012 (stating that
defamation damages are not confined to “out-of-pocket loss,” and including
58
“impairment of reputation and standing in the community, personal humiliation,
and mental anguish and suffering” as examples of actual harm inflicted by
defamatory falsehood); Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 501 (Tex.
App.—Houston [14th Dist.] 2008, pet. denied) (holding that actual damages in
defamation action can include injury to character or reputation).
We conclude that the jury was improperly charged on the question of actual
damages. We further conclude that legally sufficient evidence exists to support
Wade’s claim for actual damages.
c. Proof of actual malice
In Question 10, the jury charge defined malice for the purpose of the jury’s
making exemplary damage findings against Klentzman and The Star as either
specific intent to cause substantial injury to Wade or an act or omission that
involved an extreme degree of risk or of which Klentzman had “actual, subjective
awareness” but nevertheless “proceed[ed] with conscious indifference to the rights,
safety, or welfare of others.” It gave no other definition with regard to Wade’s
request for exemplary damages against The Star. In neither case did it require
Wade to show that Klentzman and The Star’s statements were made with
“knowledge of falsity or reckless disregard for the truth” as required to establish
actual malice in order to support an award of exemplary damages. See Gertz, 418
U.S. at 349, 94 S. Ct. at 3011. We conclude that the jury was improperly charged
59
on the question of actual malice and therefore on the requirement for finding
exemplary damages.
Despite the improper instruction, however, the record demonstrates that the
statements made by Klentzman and The Star contained a number of misleading
omissions and juxtapositions of fact that cast Wade in a false light. Fair-minded
people, reviewing this evidence, could reasonably conclude either that Klentzman
and The Star were aware that their omission of exculpatory facts and partial
reporting and juxtaposition of facts in the Article conveyed a false impression of
Wade that impaired his reputation or that they omitted facts and juxtaposed facts
with reckless disregard for whether the impression of Wade conveyed by the gist
of the Article was true or not. We conclude, therefore, that legally sufficient
evidence exists to support Wade’s claim for exemplary damages under the proper
standard of proof. See City of Keller, 168 S.W.3d at 827 (in legal sufficiency, or
“no-evidence” review, we determine whether evidence would enable reasonable
and fair-minded people to reach verdict under review).
We conclude that the evidence is legally sufficient to support each of
Wade’s claims under proper jury instructions. Thus, the proper remedy is to
remand for a new trial. See Ledesma, 242 S.W.3d at 44; Arthur Andersen, 945
S.W.2d at 817 (holding that remand is appropriate if charge improperly instructed
jury and legally sufficient evidence exists to support claim); see also TEX. R. APP.
60
P. 44.1(b) (“The court may not order a separate trial solely on unliquidated
damages if liability is contested.”).
We sustain Klentzman and The Star’s first issue. Accordingly, we reverse
the judgment of the trial court and remand for further proceedings consistent with
this opinion.5
Conclusion
We reverse the judgment of the trial court and remand for further
proceedings consistent with this opinion.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Bland.
5
In their fourth and fifth issues, Klentzman and The Star argue that the trial court’s
instructions regarding libel per se were improper. Recently, the Texas Supreme
Court addressed the issue of defamation per se and damages. It summarized the
current law, holding that, although Texas law has allowed juries to presume the
existence of general damages without proof of actual injury in defamation per se
cases, “the Constitution only allows juries to presume the existence of general
damages in defamation per se cases where: (1) the speech is not public, or (2) the
plaintiff proves actual malice.” Hancock v. Variyam, 400 S.W.3d 59, 65–66 (Tex.
2013). Because we have already held that the Article addresses a matter of public
concern and that Wade must establish actual malice to recover presumed or
punitive damages, we need not address these issues as they would not afford
Klentzman and The Star any greater relief.
61