KTRK Television, Inc. v. Theaola Robinson , 409 S.W.3d 682 ( 2013 )

Opinion issued July 11, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00372-CV
———————————
KTRK TELEVISION, INC., Appellant
V.
THEAOLA ROBINSON, Appellee
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2011-54895
OPINION
Following a series of news reports by KTRK Television, Inc. alleging
financial mismanagement, Benji’s Special Education Academy (“BSEA”), a
charter school, and Theaola Robinson sued KTRK. KTRK moved to dismiss the
action pursuant to the then-recently enacted Texas Citizens Participation Act
(“TCPA”). 1 In a written order, the trial court denied the motion. In five issues,
KTRK contends that the trial court erred in denying KTRK’s motion to dismiss. In
her brief, the school’s former director and superintendent, Robinson, also
challenges this Court’s jurisdiction to consider KTRK’s appeal. 2 We hold that we
have jurisdiction over this appeal, that the trial court erred by denying KTRK’s
motion to dismiss, and we reverse.
Background
A. The Charter School
In May 1980, Robinson founded BSEA, a non-profit corporation, to provide
a day care and education for special needs children (“Benji’s”). In November
1998, the Texas State Board of Education (“SBOE”) granted BSEA a charter to
operate Benji’s as an open-enrollment, publicly funded pre-K through twelfth
grade charter school. 3 As such, compliance with the laws governing public schools
was required.
1
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001-.011 (West Supp. 2012).
2
BSEA is no longer a party to this case.
3
The original plaintiffs in this suit were BSEA, the non-profit corporation that ran
the charter school, and Robinson. Although both the school and the corporation
use the name “Benji’s” or “Benji’s Special Education Academy,” Benji’s (the
school) was never a plaintiff. Robinson amended her petition and dropped BSEA
from the case, leaving Robinson as the sole plaintiff. As a result, Robinson is the
sole appellee.
2
By the mid-2000s, Benji’s enrollment had increased nearly five-fold and, on
behalf of BSEA, Robinson applied for a renewal of the charter to the Texas
Education Agency (“TEA”) in April 2003. The TEA refused action on the
application, however, pending resolution of BSEA’s growing list of problems.
Indeed, five years later, the renewal application was still pending and, in December
2008, the TEA informed Robinson that it would remain pending until resolution of
BSEA’s problems in the following areas: financial management, academic
performance, performance-based monitoring activities, audit requirements, and
special education laws and policies.
By letter dated July 8, 2010, TEA Commissioner Robert Scott notified
Robinson that in light of longstanding academic, governance, and financial
concerns, and despite numerous agency investigations and interventions, the TEA
intended to appoint a Board of Managers and a new Superintendent for the school.
Following a hearing on August 19, 2010, Robinson and Benji’s board of directors
were notified on September 3, 2010, that the TEA would proceed to appoint a
Board of Managers and Superintendent, which appointments effectively suspended
any and all prior grants of authority to the former board of directors and Robinson.
On September 16, 2010, after the TEA had learned of the extent of the
financial problems at Benji’s, it issued an Order Suspending Charter Operations
and Funds, stating, in relevant part, as follows:
3
[The urgent financial conditions at Benji’s were not] known either to
the board of managers or to the new superintendent when they met on
September 6, 2010. Rather, the information leading to the conclusion
that an urgent financial condition may exist at the charter school was
disclosed by painstaking effort to assemble and evaluate information
that had not been viewed by the former administration as indicating
such a conclusion. Subsequent events have made plain that the former
administration continues to maintain that there was and is no urgent
financial condition presented by these facts.
The newly appointed Superintendent advised the parents by letter of the
immediate suspension of the school’s operations. The letter cited the school’s
critical cash flow problem, which included a virtually depleted bank account and
numerous outstanding debts (including one to the Internal Revenue Service), as the
reason that “the school cannot continue to operate as it does not have the necessary
funds to pay its staff members or meet its current financial obligations.”
Despite having been relieved of her duties as superintendent, Robinson
directed staff to continue reporting to work as usual and asked parents to continue
sending their children to school. Robinson also conducted a televised press
conference at which she stated that she would not allow the new superintendent to
carry out the TEA’s decision and that the school would remain open despite the
board’s decision. Notwithstanding the State-mandated closure, on September 15,
2010, Robinson re-opened Benji’s as an unaccredited private school using the
same public school property and buses.
4
The next day, TEA Commissioner Scott ordered the immediate suspension
of all of Benji’s funding as well as its open-enrollment charter. Commissioner
Scott subsequently sent a letter to Robinson and BSEA’s board outlining the
various grounds for revoking Benji’s charter, including its “failure to satisfy
generally accepted accounting standards of fiscal management.” The letter
detailed examples of the school’s fiscal mismanagement, which had resulted in
significant wasting of financial resources. Examples of Benji’s financial problems
while under Robinson’s direction included the following:
(1) BSEA was the subject of a warrant hold following its nonpayment
to the Teachers Retirement System in the amount of $43,000 for
retirement contributions and $13,000 in health coverage;
(2) The Department of Agriculture cancelled BSEA’s participation in
child nutrition programs because of BSEA’s failure to demonstrate
fiscal responsibility;
(3) BSEA owed a debt of $87,000 to the IRS in unpaid taxes;
(4) BSEA’s board failed to oversee or adequately supervise its
financial resources; and
(5) BSEA had been in poor financial condition for many years.
In his letter, the TEA Commissioner also noted the irregularities in Benji’s
rental arrangement and payments: BSEA leased the property from the City of
Houston for $1 per year and re-leased this same property to Benji’s for $9,000 per
month, an arrangement for which the City had never given its permission.
5
B. KTRK’s Statements at Issue
A public outcry ensued over the charter revocation and the school’s closing.
Several local media outlets—including KTRK—broadcast and posted numerous
reports about the ongoing controversy. KTRK’s reports included the following
statements upon which Robinson bases her defamation claim:
(1) “According to the State[,] millions in taxpayer dollars cannot be
accounted for” and “[t]he State closure is based on a lack of
sufficient financial records, meaning the State doesn’t know where
over three million dollars of taxpayer money given last year has
been spent.” (4:30 p.m., September 15, 2010 broadcast)4
(2) “For the State, the issue is simple—where is the money? They say
millions of taxpayer dollars are unaccounted for . . . The State
closure is based on a lack of sufficient financial records, meaning
the State doesn’t know where the more than $3 million of taxpayer
money given last year has been spent . . . .” (September 15, 2010
article published on KTRK’s website)
(3) “Where is taxpayer money going and how is a taxpayer-owned
building being used? . . . The Texas Education Agency says it
doesn’t know how Benji’s spent $3 million of taxpayer money, and
a lease agreement obtained by Eyewitness News raises even new
questions.” (September 25, 2010 article published on KTRK’s
website)
(4) “The Texas Education Agency doesn’t know how the academy
spent $3 million of state money.” (September 27, 2010 article
published on KTRK’s website)
(5) “The [S]tate says it had no choice, alleging Benji’s did not provide
proper financial records to account for over $3 million in state
4
As an exhibit to its Motion to Dismiss, KTRK attached the affidavit of KTRK
reporter Cynthia Cisneros. In her affidavit, Cisneros states “I was [] informed by
the TEA that Benji’s had received $3.3 million in 2009-2010.”
6
funding for the past year.” (September 30, 2010 article published
on KTRKs website)
(6) “On September 14, the TEA ordered Benji’s Academy to close,
citing millions of dollars in State funding that was not accounted
for.” (October 11, 2010 article published on KTRK’s website)
C. Trial Court Proceedings
On September 14, 2011, Robinson and BSEA sued KTRK for defamation. 5
On December 21, 2011, KTRK filed a motion to dismiss under the TCPA. See
TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001-.011 (West Supp. 2012). KTRK
argued that it was entitled to dismissal because (1) plaintiffs’ claim was based on,
related to, or in response to KTRK’s exercise of its right of free speech, and (2)
plaintiffs could not establish by clear and specific evidence a prima facie case for
each essential element of their case. Robinson filed a response.6 Both parties
attached affidavits and other evidence to their pleadings.
The trial court conducted a hearing on February 13, 2012. On February 23,
2012, the trial court entered an amended order denying KTRK’s motion to dismiss.
On February 29, 2012, KTRK filed its request for findings and conclusions
regarding the court’s denial of its motion to dismiss. On March 20, 2012, the trial
5
Robinson originally filed this suit against KTRK’s parent company, The Walt
Disney Company, in federal court. After the suit was dismissed, Robinson
attempted to add Disney and KTRK to a federal lawsuit against the TEA in which
she had joined. The federal court denied leave to add Disney and KTRK as
defendants in the federal action.
6
BSEA was no longer a plaintiff in the case.
7
court issued its “Findings of Fact In Connection with CPRC §27.007.” KTRK
timely appealed.
Discussion
A. Appellate Jurisdiction
As a threshold matter, we address Robinson’s contention that we do not have
jurisdiction over this interlocutory appeal. See Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (“[A] court must not proceed on the
merits of a case until legitimate challenges to its jurisdiction have been decided.”)
Generally, courts of appeals have jurisdiction only over appeals from final
judgments. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).
Further, appellate courts have jurisdiction over interlocutory orders only when that
authority is explicitly granted by statute. Tex. A & M Univ. Sys. v. Koseogtu, 233
S.W.3d 835, 840 (Tex. 2007). Statutes authorizing interlocutory appeals are
strictly construed because they are a narrow exception to the general rule that
interlocutory orders are not immediately appealable. CMH Homes v. Perez, 340
S.W.3d 444, 447 (Tex. 2011).
Section 27.008 of the TCPA, entitled “Appeal,” provides:
(a) If a court does not rule on a motion to dismiss under Section
27.003 in the time prescribed by Section 27.005, the motion is
considered to have been denied by operation of law and the moving
party may appeal.
8
(b) An appellate court shall expedite an appeal or other writ, whether
interlocutory or not, from a trial court’s order on a motion to dismiss a
legal action under Section 27.003 or from a trial court’s failure to rule
on that motion in the time prescribed by Section 27.005.
(c) An appeal or other writ under this section must be filed on or
before the 60th day after the date the trial court’s order is signed or the
time prescribed by Section 27.005 expires, as applicable.
TEX. CIV. PRAC. & REM. CODE ANN. § 27.008.
Robinson relies on the Fort Worth Court of Appeals’s decision in Jennings
v. Wallbuilders Presentations, Inc. to argue that although section 27.008(a)
authorizes an interlocutory appeal when a movant’s motion to dismiss is denied by
operation of law, the TCPA does not authorize an interlocutory appeal of a trial
court’s signed order denying a motion to dismiss. See Jennings, 378 S.W.3d 519,
524–27 (Tex. App.—Fort Worth 2012, pet. filed). There, the court held that the
language in the TCPA conferred jurisdiction to review a decision under the TCPA,
but only if the motion is denied by operation of law, and not if the trial court signs
an order denying the motion. See id. at 526–27. The Jennings court concluded
that the legislature intended to ensure that a court would review and rule on the
motion, but not that its ruling would be subject to appellate review. See id. at 527.
Since Jennings, several other courts of appeals have considered the issue. In
Direct Commercial Funding, Inc. v. Beacon Hill Estates, LLC, the Fourteenth
Court of Appeals declined to follow Jennings. See No. 14–12–00896–CV, 2013
9
WL 407029 (Tex. App.—Houston [14th Dist.] Jan. 24, 2013, order). The Beacon
Hill Estates court noted that section 27.008(b) requires an appellate court to
“expedite an appeal or other writ, whether interlocutory or not, from a trial court
order on a motion to dismiss . . . or from a trial court’s failure to rule.” Id. at *3.
The court reasoned that “[i]f no interlocutory appeal is available when the trial
court expressly rules on a motion to dismiss by signing an order, then the phrase
‘from a trial court order on a motion to dismiss’ appearing after the phrase
‘whether interlocutory or not’ is rendered meaningless.” Id. The court further
concluded the most natural reading of the phrase “whether interlocutory or not” is
to read it as modifying both of the subsequent references to “a trial court order”
and “a trial court’s failure to rule.” Id. Finally, the court noted that section
27.008(c) states an appeal “must be filed on or before the 60th day after the date
the trial court’s order is signed or the time prescribed by section 27.005 expires, as
applicable.” Id. at *4. The court concluded that “[i]f no signed order can be the
subject of an interlocutory appeal, then the reference to the date on which ‘the trial
court’s order is signed’ also is superfluous.” Id. The Fifth and Thirteenth Courts
of Appeals have since adopted the Fourteenth Court of Appeals’s interpretation of
section 27.008. See Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., __
S.W.3d __, No. 05-12-00587-CV, 2013 WL 2077636, at *6 (Tex. App.—Dallas
May 15, 2013, no pet. h.) (finding reasoning of Fourteenth Court of Appeals
10
persuasive and concluding that it had jurisdiction under TCPA over interlocutory
appeal of trial court’s order denying defendant’s motion to dismiss); San Jacinto
Title Svcs., LLC v. Kingsley Props., LP., __ S.W.3d __, No. 13-12-00352-CV,
2013 WL 1786632, at *4 (Tex. App.—Corpus Christi Apr. 25, 2013, no pet. h.)
(agreeing with Fourteenth Court of Appeals that to conclude that no signed order
can be subject of interlocutory appeal would render portions of section 27.008(b)
and (c) meaningless).
We agree with the Fourteenth Court of Appeals’s reasoning in Beacon Hill
Estates. We conclude that section 27.008 permits an interlocutory appeal from the
trial court’s written order denying a motion to dismiss under the TCPA.
B. Application of the TCPA
In enacting the TCPA, the Legislature explained that the statute’s purpose
“is to encourage and safeguard the constitutional rights of persons to petition,
speak freely, associate freely, and otherwise participate in government to the
maximum extent permitted by law and, at the same time, protect the rights of a
person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. &
REM. CODE ANN. § 27.002. The statute is to “be construed liberally to effectuate
its purpose and intent fully.” Id. § 27.011(b).
In deciding whether to grant a motion under the TCPA and dismiss the
lawsuit, the statute directs the trial court to “consider the pleadings and supporting
11
and opposing affidavits stating the facts on which the liability or defense is based.”
Id. § 27.006. The court must then determine whether (1) the moving defendant has
shown “by a preponderance of the evidence that the legal action is based on, relates
to, or is in response to the party’s exercise of the right of free speech, the right to
petition, or the right of association”; and (2) the plaintiff has shown “by clear and
specific evidence a prima facie case for each essential element of the claim in
question.” Id. § 27.005(b), (c). The first step of this inquiry is a legal question we
review de novo. Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
No. 01-12-00581-CV, 2013 WL 1867104, at *6 (Tex. App.—Houston [1st Dist.]
May 2, 2013, no pet. h.).
The Legislature’s use of the term “prima facie case” in the second step
implies a minimal factual burden: “[a] prima facie case represents the minimum
quantity of evidence necessary to support a rational inference that the allegation of
fact is true.” Id. at *6 (quoting Rodriguez v. Printone Color Corp., 982 S.W.2d 69,
72 (Tex. App.—Houston [1st Dist.] 1998, pet. denied)). Nonetheless, the statute
requires that the proof offered address and support each “essential element” of
every claim asserted with “clear and specific evidence.” See TEX. CIV. PRAC. &
REM. CODE ANN. § 27.005(b), (c). Because the statute does not define “clear and
specific” evidence, these terms are given their ordinary meaning. See TGS-
NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). “Clear”
12
means “unambiguous,” “sure,” or “free from doubt.” BLACK’S LAW DICTIONARY
268 (8th ed. 2004). “Specific” means “explicit” or “relating to a particular named
thing.” Id. at 1167. Accordingly, we examine the pleadings and the evidence to
determine whether Robinson marshaled “clear and specific” evidence to support
each alleged element of her cause of action.
As a preliminary matter, we note that Robinson has never asserted, either in
the trial court below or on appeal, that her claim is not covered by the TCPA. That
is, she does not argue that her defamation claim is not based on, related to, or in
response to KTRK’s exercise of its right to “petition, speak freely, associate freely,
and otherwise participate in government to the maximum extent permitted by law.”
As such, we begin with the second step of the inquiry—whether Robinson has
demonstrated by clear and specific evidence a prima facie case for each essential
element of her claim.
C. Prima Facie Case
To maintain a defamation cause of action, a plaintiff must prove that the
defendant (1) published a statement; (2) that was defamatory concerning the
plaintiff; (3) while acting with either actual malice, if the plaintiff was a public
official or public figure, or with negligence, if the plaintiff was a private
individual, regarding the truth of the statement. WFAA–TV, Inc. v. McLemore, 978
S.W.2d 568, 571 (Tex. 1998). “Whether words are capable of the defamatory
13
meaning the plaintiff attributes to them is a question of law for the court.” Carr v.
Brasher, 776 S.W.2d 567, 569 (Tex. 1989). Questions of law are subject to de
novo review. In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994). Whether a
publication is an actionable statement of fact depends on its verifiability and the
context in which it was made. See Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex.
2002).
Defamatory Statement
Robinson argues that she has demonstrated that KTRK “made up” the
complained-of statements and, in doing so, has established a prima facie case of
defamation per se. KTRK contends that Robinson failed to establish with clear
and specific evidence that the complained-of statements were defamatory per se.
We initially address KTRK’s contention that Robinson has alleged only a
claim of defamation per se. Defamation claims are divided into two categories—
defamation per se and defamation per quod—according to the level of proof
required to make them actionable. See Texas Disposal Sys. Landfill, Inc. v. Waste
Mgmt. Holdings, Inc., 219 S.W.3d 563, 580 (Tex. App.—Austin 2007, pet.
denied). Statements that are defamatory per quod are actionable only upon
allegation and proof of damages. Id. at 580; Alaniz v. Hoyt, 105 S.W.3d 330, 345
(Tex. App.—Corpus Christi 2003, no pet.). That is, before a plaintiff can recover
for defamation per quod, she must carry her burden of proof as to both the
14
defamatory nature of the statement and the amount of damages caused by its
publication. See Texas Disposal, 219 S.W.3d at 580 (citing Leyendecker &
Assocs., Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984)). By contrast, in cases
involving defamation per se, damages are presumed to flow from the nature of the
defamation itself and, in most situations, a plaintiff injured by a defamatory per se
communication is entitled to recover general damages without specific proof of the
existence of harm. Bentley, 94 S.W.3d at 604 (“Our law presumes that statements
that are defamatory per se injure the victim’s reputation and entitle him to recover
general damages, including damages for loss of reputation and mental anguish.”).
KTRK argues that Robinson neither pleaded nor presented any proof of the
amount of alleged damages, and thus, her claim is one for defamation per se only.
In her petition, Robinson alleged that KTRK’s statements damaged her reputation.
In her prayer, Robinson sought judgment “[f]or libel per se damages found by the
trier of fact without proof of special damages [and] for actual damages and
exemplary damages for malicious libel . . . .” In her appellate brief, Robinson does
not dispute KTRK’s contention that her claim sounds only in defamation per se.
Indeed, she asserts that she has “established by clear and specific evidence a prima
facie case on each element of her claim that the complained of statements were
defamatory per se.” Based upon the record before us, we agree that Robinson has
15
not alleged a claim for defamation per quod and, therefore, our analysis treats upon
Robinson’s claim as one for defamation per se.
The law presumes certain categories of statements are defamatory per se,
including statements that (1) unambiguously charge a crime, dishonesty, fraud,
rascality, or general depravity or (2) are falsehoods that injure one in his office,
business, profession, or occupation. Main v. Royall, 348 S.W.3d 381, 390 (Tex.
App.—Dallas 2011, no pet.). Robinson complains of the following statements
made by KTRK:
(1) “According to the State[,] millions in taxpayer dollars cannot be
accounted for” and “[t]he State closure is based on a lack of
sufficient financial records, meaning the State doesn’t know where
over three million dollars of taxpayer money given last year has
been spent.” (4:30 p.m., September 15, 2010 broadcast)
(2) “For the State, the issue is simple—where is the money? They say
millions of taxpayer dollars are unaccounted for . . . The State
closure is based on a lack of sufficient financial records, meaning
the State doesn’t know where the more than $3 million of taxpayer
money given last year has been spent . . . .” (September 15, 2010
article published on KTRK’s website)
(3) “Where is taxpayer money going and how is a taxpayer-owned
building being used? . . . The Texas Education Agency says it
doesn’t know how Benji’s spent $3 million of taxpayer money, and
a lease agreement obtained by Eyewitness News raises even new
questions.” (September 25, 2010 article published on KTRK’s
website)
(4) “The Texas Education Agency doesn’t know how the academy
spent $3 million of state money.” (September 27, 2010 article
published on KTRK’s website)
16
(5) “The [S]tate says it had no choice, alleging Benji’s did not provide
proper financial records to account for over $3 million in state
funding for the past year.” (September 30, 2010 article published
on KTRKs website)
(6) “On September 14, the TEA ordered Benji’s Academy to close,
citing millions of dollars in state funding that was not accounted
for.” (October 11, 2010 article published on KTRK’s website)
Robinson argues these statements to be defamatory per se because they
insinuate that she embezzled over $3 million and thereby falsely imputed criminal
behavior to her. Robinson also contends that KTRK’s statements have damaged
her reputation and, in support of her argument, points to the following third-party
comments posted by readers on KTRK’s website in response to the broadcasts and
articles:
• “Call and ask where the money went. I’m sure Theola [sic] Robinson
tell you.”
• “Could it be in somebody’s pockets?”
• “Ms. Robinson should be arrested, not because she’s black, because
she’s a thief!”
• “I am just amazed as to why the parents are not suing Theaola
Robinson and the old Board of Director[s], they are the ones who are
stealing their children’s future . . . .”
• “You bet they want to keep it open, if its [sic] closed an investigation
will show they were all taking money not to mention they won’t be
able to afford their new house, Hummer and boat payments the school
and taxpayers were helping to buy.”
17
• “The state is not to blame here. They need to sue the administrators to
find out where the money is followed by prosecution of those who
may have ‘mis-spent’ it. Put blame where blame is due!”
• “Simple! No money! Can not account for $9 million! Close the
doors and take the administrators to court for mis-use of government
(your) money . . . .”
• “The only thing organized about this plan is the organized crime.”
• “The parents are supporting the administrators who have a little
charisma along with a talent for lining their pockets . . . .”
• “The mgmt. of this facility will continue to steal under the guide [sic]
of a school, where the kids will continue to suffer.”
Robinson’s reliance on third-party comments posted on KTRK’s comment
board to prove defamation per se is misplaced. To be defamatory per se, the
defamatory nature of the challenged statement must be apparent on its face without
reference to extrinsic facts or “innuendo.” Moore v. Walthrop, 166 S.W.3d 380,
386 (Tex. App.—Waco 2005, no pet.) (noting that “the very definition of ‘per se,’
‘in and of itself,’ precludes the use of innuendo”). If the court must resort to
innuendo or extrinsic evidence to determine whether a statement is defamatory,
then it is defamation per quod and requires proof of injury and damages. Main,
348 S.W.3d at 390. There is nothing intrinsically defamatory about KTRK’s
reports on the State’s investigation into Benji’s mismanaged funds. The reports
did not say or imply that the entire $3 million in state funds had been
18
misappropriated or embezzled. Rather, the statements speak to the insufficiency of
financial records to account for spent state funds. Similarly, the September 25th
broadcast questioning the lease situation neither states nor implies that state funds
were misappropriated.
Further, the evidence shows that the TEA’s longstanding concern about and
subsequent investigation into Benji’s accounting resulted in the suspension and,
ultimately, the revocation of the school’s charter due to the urgent financial
conditions and its fiscal mismanagement. Thus, KTRK’s reports that the State
found Benji’s financial records insufficient to fully account for the money spent,
and that the State did not know how the money had been spent, were based on
evidence that Robinson did not counter. Media defendants cannot be liable for
varying subjective impressions that may have been generated from the broadcast of
true statements. See ABC, Inc. v. Gill, 6 S.W.3d 19, 35–38 (Tex. App.—San
Antonio 1999, pet. denied).
Robinson also argues that because KTRK’s broadcasts on questions of
financial mismanagement reported the amount of total funding, the statements
falsely suggest that she failed to account for any of it, when, in fact, she did
provide records to show how part of the funds were spent. KTRK’s reports,
however, never recited that she had failed to account for any of it, but that the TEA
had found the records provided were insufficient to account for the full amount.
19
Moreover, discrepancies as to details do not demonstrate material falsity for
defamation purposes. See, e.g., Dolcefino v. Turner, 987 S.W.3d 100, 115 (Tex.
App.—Houston [14th Dist.] 1998), aff’d, 38 S.W.3d 103 (Tex. 2000) (showing that
insurance fraud “scam” involved $1.7 million, rather than $6.5 million, did not
demonstrate falsity of statement); Rogers v. Dallas Morning News, Inc., 889
S.W.2d 467, 471–73 (Tex. App.—Dallas 1994, writ denied) (misstatement that
charity spent 10% of its donations on actual services, rather than 43%, was
immaterial to gist of articles concerning misuse of charity funds); Finklea v.
Jacksonville Daily Progress, 742 S.W.2d 512, 514–15 (Tex. App.—Tyler 1987,
writ dism’d w.o.j.) (misstatement that plaintiff had four drug convictions, rather
than two, was substantially true); Shihab v. Express-News Corp., 604 S.W.2d 204,
206–08 (Tex. Civ. App.—San Antonio 1980, writ ref’d n.r.e.) (inaccurate
designation of which of several news stories was fabricated was insignificant
where the main charge was fabrication and one story was fabricated); Downer v.
Amalgamated Meatcutters & Butcher Workmen of N. Am., 550 S.W.2d 744, 747
(Tex. Civ. App.—Dallas 1977, writ ref’d n.r.e.) (misstatement that plaintiff
embezzled $2,187.77, rather than $840.73, was substantially true); Fort Worth
Press Co. v. Davis, 96 S.W.2d 416, 419–20 (Tex. Civ. App.—Fort Worth 1936,
writ ref’d) (article charging official with wasting $80,000 of tax money rather than
only $17,500 was substantially true).
20
In sum, there is nothing in the complained-of statements that unambiguously
charged Robinson with engaging in criminal behavior or constituted a falsehood
that injured her in her profession. Because Robinson has not adduced clear and
specific evidence that the challenged statements made by KTRK in its broadcasts
and reports are defamatory per se, she has not made a prima facie case for each
essential element of her defamation claim against KTRK. See TEX. CIV. PRAC. &
REM. CODE ANN. § 27.005 (b), (c) (West Supp. 2012).
Conclusion
Having concluded that we have jurisdiction over this interlocutory appeal
and that Robinson failed to sustain her burden to show a prima facie case for each
essential element of her defamation claim, we reverse the trial court’s denial of
KTRK’s motion to dismiss, and remand the case to the trial court for further
proceedings as required by the statute to order dismissal of the suit. See TEX. CIV.
PRAC. & REM. CODE ANN. § 27.009(a).
Jim Sharp
Justice
Panel consists of Justices Bland, Sharp, and Massengale.
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