Burbage v. Burbage

• Decision Date: 29 August 2014
• Docket Number: No. 12–0563.,12–0563.
• Citation: 447 S.W.3d 249
• Parties: Allen Chadwick BURBAGE, Petitioner and Cross–Respondent, v. W. Kirk BURBAGE and Burbage Funeral Home, Respondents and Cross–Petitioners.
• Court: Texas Supreme Court

447 S.W.3d 249

Allen Chadwick BURBAGE, Petitioner and Cross–Respondent

v.W. Kirk BURBAGE and Burbage Funeral Home, Respondents and Cross–Petitioners.

No. 12–0563.

Supreme Court of Texas.

Argued Jan. 9, 2014.

Delivered Aug. 29, 2014.

David Greene, Electronic Frontier Foundation, San Francisco, CA, Marc A. Fuller, Vinson & Elkins LLP, Dallas, TX, for Amicus Curiae, Electronic Frontier Foundation.

James J. Scheske, James J. Scheske, PLLC, Peter D. Kennedy, William Gerow Christian, Graves Dougherty Hearon & Moody PC, Austin, TX, Jason P. Steed, Bell Nunnally & Martin LLP, Dallas, TX, for Petitioner, Allen Chadwick Burbage.

Gregory Scott Cagle, Savrick, Schumann, Johnson, McGarr Kaminski & Shirley, LLP, Austin, TX, for Respondent, W. Kirk Burbage and Burbage Funeral Home.

Opinion

Justice GREEN delivered the opinion of the Court.

In this defamation case, a jury assessed compensatory and exemplary damages against Allen Chadwick Burbage (Chad) for ten statements defaming his brother, W. Kirk Burbage (Kirk). The trial court also permanently enjoined Chad from making similar statements. We are presented with three issues: (1) whether any defamatory statements fell within a qualified privilege; (2) whether evidence supports the jury's damage awards; and (3) whether the trial court abused its discretion by issuing the permanent injunction. Because we hold that Chad failed to preserve error in the charge, we do not reach the issue of qualified privilege. We also hold that the permanent injunction operates as an impermissible prior restraint on freedom of speech. Accordingly, we affirm those parts of the court of appeals' judgment. But, on damages, we hold that no evidence supports the compensatory damage award. We reverse that part of the court of appeals' judgment.

I. Factual and Procedural Background

Kirk owns and operates the Burbage Funeral Home, a centuries-old family business, in Worcester County, Maryland. Chad is Kirk's older brother. Chad and Kirk's grandmother, Anna Burbage, managed the funeral home from her husband's death in the 1940s until her death in 1985. In her will, Anna left the funeral home and all of its assets to Kirk.

Anna bequeathed the land for the Burbage family cemetery to her children, Richard Burbage, Sr., Chad and Kirk's father, and Jean Burbage Prettyman. Although primarily a family cemetery, Anna and Richard gave permission for burial or entombment of several non-family members. Richard died in 1991; in his will, he left his 50% undivided interest in the family cemetery property to Chad and Kirk's mother, Virginia Burbage Markham, but the will was never probated. Virginia conveyed this interest to Kirk by quitclaim deed in 2003. Chad felt Kirk obtained the funeral home and the family cemetery interest through manipulation, first of Anna and later of Virginia.

Although the origin of the strife between Chad and Kirk remains unclear, the “Farm Property,” a 23–acre tract that Virginia inherited from Richard in 1991, aggravated any existing discord. The potential sale of the property ultimately aligned Virginia's four children against each other: Chad and Patrice Burbage Lehmann wanted to sell, while Kirk and his brother, Keith, demurred. Throughout 2006 and 2007, Chad exchanged heated emails with Kirk's attorney. In late 2007 and early 2008, Chad created a website, www.annaburbage.org, to air his grievances with Kirk. Chad placed several posters around town to publicize the website. The website contained the following allegations:

• “Anna Burbage (‘Miss Anna’) was a victim of Elder Abuse. The Abuser was her grandson, Kirk Burbage and others.”

• “Virginia Burbage Markham was the principal of Stephen Decatur High School serving northern Worcester County Maryland. At the present time, she is being abused by her son, Kirk Burbage, of the Burbage Funeral Home. She is currently a victim of ELDER as well as FAMILY ABUSE.”

• “The methods [of abuse] include: lies, trespassing, grand larceny, will tampering/undue influence, gifts with the intent to control his mother, discrediting fellow siblings, deceptively misrepresenting the contents of legal documents requiring the signature of the ABUSED for personal gain and to cover up land fraud and involving the ABUSED ELDER in Cemetery Land Fraud implicating several families including Shirley and Brice Phillips of the Phillips Crab House.”

• “Kirk Burbage has also been known to abuse the dead, specifically his cousin, Anne Prettyman Jones.”

Chad also sent letters to Shirley and Brice Phillips, family friends of the Burbages who had earlier obtained permission to place a mausoleum in the Burbage cemetery. The letters espoused a common interest in settling property rights to the cemetery but stated, “You currently have no title or right to be in the Burbage Family Cemetery.” Chad made the following statements in the letters:

• “Kirk Burbage has committed numerous abuses to family members.”

• “We are the victims of the selfish, greedy and unlawful actions of Kirk Burbage.”

• “Kirk Burbage of the Burbage Funeral Home with the assistance of his attorney Robert McIntosh have fraudulently misrepresented rights which Kirk Burbage does not have....”

• “Kirk Burbage fraudulently obtained a Quit Claim [deed] from our mother by what is believed to be elder abuse....”

• “Kirk Burbage and the Burbage Funeral Home violated Maryland law by not having a license to operate a cemetery”

• “Kirk Burbage did commit fraud.”

Kirk and the Burbage Funeral Home sued Chad for defamation in Bastrop County.¹ Chad appeared pro se. The trial court submitted ten questions—one for each of the statements reproduced above—asking the jury whether Chad had proven that the statements were substantially true. The jury answered “no” to all questions. The court also asked questions on compensatory and exemplary damages for Kirk and, separately, for the Burbage Funeral Home. The court instructed the jury that all statements were defamatory per se because each statement either leveled a criminal charge or tended to cause injury to the funeral home's business or to Kirk's profession. The jury awarded Kirk $6,552,000: $250,000 for past injury to reputation; $2,500,000 for future injury to reputation; $1,000 for past mental anguish; $1,000 for future mental anguish; and $3,800,000 in exemplary damages. The jury awarded the Burbage Funeral Home $3,050,000: $50,000 for past injury to reputation; $1,000,000 for future injury to reputation; and $2,000,000 in exemplary damages. The trial court also permanently enjoined Chad from future defamatory speech in a four-page list of prohibited topics (tied to the ten defamatory statements).

Chad appealed. The court of appeals reduced the exemplary damages to $750,000 under Texas Civil Practice and Remedies Code section 41.008(b), upheld the other damage awards, and vacated the injunction. 447 S.W.3d 291, 295, 2011 WL 6756979 (Tex.App.-Austin 2011, pet. granted) (mem.op.). Each party petitioned for review; we granted both petitions. 57 Tex. Sup.Ct. J. 53 (Nov. 22, 2013).

II. Qualified Privilege and Charge Error

We first address Chad's contention that qualified privilege barred Kirk's recovery based on Chad's defamatory statements to the Phillipses. If Chad's statements were privileged, the jury's answers on damages would rest upon invalidly submitted theories of liability. We hold that, even if the privilege applied, Chad failed to preserve jury charge error on this point.

A. Chad's Qualified Privilege Claim

The common law provides a qualified privilege against defamation liability when “communication is made in good faith and the author, the recipient or a third person, or one of their family members, has an interest that is sufficiently affected by the communication.” Cain v. Hearst Corp., 878 S.W.2d 577, 582 (Tex.1994). We have recognized that defamation actions necessarily inhibit free speech and, thus, the qualified privilege offers an additional safeguard, even in cases of private, non-political speech. See id. The privilege operates as an affirmative defense in the nature of confession and avoidance; the defendant bears the burden of proving privileged publication unless the plaintiff's petition affirmatively demonstrates privilege. Denton Pub. Co. v. Boyd, 460 S.W.2d 881, 884 (Tex.1970). If a defendant establishes the privilege, the burden shifts to the plaintiff to prove that the defendant made the statements with actual malice. Dun & Bradstreet, Inc. v. O'Neil, 456 S.W.2d 896, 898 (Tex.1970). Actual malice, in the defamation context, means “the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true.” Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771, 772 (Tex.1994) (per curiam). Qualified privilege presents a question of law when the statements at issue employ unambiguous language and where the facts and circumstances of publication are undisputed. Fitzjarrald v. Panhandle Pub. Co., 149 Tex. 87, 228 S.W.2d 499, 505 (1950).

Of the ten statements that the trial court found defamatory per se, Chad made six of those statements in letters to the Phillipses, while four appeared on the web site or posters. Chad argues that a qualified privilege protects his communication with the Phillipses because both he and they had an interest “sufficiently affected by the communication.” The Phillipses obviously had an interest, Chad suggests, in whether Kirk had the right to sell them a mausoleum and whether any other Burbage family members objected to interring the Phillipses at the family cemetery. Chad contends that the court of appeals erred when it found the letter unprotected by the “common-interest privilege”; specifically, Chad objects to the court of appeals' suggestion that “antithetical” interests cannot form the basis for a qualified privilege. 2011 WL 6756979, at *9. While the court of appeals seized on the “common-interest” language, which Chad sometimes used in briefing, our case law identifies the affirmative defense at issue here as...