Cullum v. White

• Decision Date: 14 December 2011
• Docket Number: No. 04–09–00695–CV.,04–09–00695–CV.
• Citation: 399 S.W.3d 173
• Court: Texas Court of Appeals
• Parties: Dell R. CULLUM, Appellant, v. Dalene M. WHITE and Diamond A Ranch, Appellees.

399 S.W.3d 173

Dell R. CULLUM, Appellant,
v.
Dalene M. WHITE and Diamond A Ranch, Appellees.

No. 04–09–00695–CV.

Court of Appeals of Texas,
San Antonio.

Dec. 14, 2011.

[399 S.W.3d 177]

Delphine James, Law Office of Delphine James, P.L.L.C., Houston, TX, for Appellant.

Dennis P. Bujnoch, Nunley, Jolley, Cluck, Aelvoet, Boerne, TX, for Appellee.

[399 S.W.3d 178]

Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, STEVEN C. HILBIG, Justice.

OPINION
Opinion by: SANDEE BRYAN MARION, Justice.

Dell Cullum appeals the judgment awarding Dalene White actual and punitive damages on her libel claim and the permanent injunction entered as a pretrial sanction.

Background

White is the owner of Diamond A Ranch in Leakey, Texas, which among other enterprises, operates an exotic game ranch. White and her family are well known in the community as long-time residents and ranchers. White hired her son Damon to run the hunting operation on the Ranch, and witnesses testified he was a proficient ranch manager. Residents of the community and family friends testified that White has a reputation of honesty, and she ran the Ranch in a professional manner. White testified she sees herself as Diamond A Ranch and considers comments about the Ranch to be about her.

Cullum worked for White from 2005 to 2006 as a ranch hand. He is also a photographer who took photographs of the Ranch. Cullum testified White treated him as family, was always nice to him, and he thought of her as a second mother. Damon testified that when the Ranch's website went up in June 2006 it included photographs taken by Cullum and that Cullum did not object. Cullum left the ranch in August 2006. Damon testified he took Cullum's photographs off the website that same month. However, Cullum testified that after leaving his employment at the Ranch his photographs were being used on the Ranch's website without his permission so he filed a copyright lawsuit in federal court.

The evidence demonstrates that Cullum sent emails to Roger Raglin and Donald Thacker, both of whom had hunted at the Ranch. Raglin is the owner of a company that films hunting and fishing shows. The email to Raglin included information regarding Damon and made comments on how the Ranch was operated. Cullum stated he left the Ranch due to Damon's “behavior,” referred to a “severe drinking issue,” and called him a “pathological liar.” He stated he was suing the Ranch for copyright infringement and insinuated White and Damon would be federally charged. He also stated he had tape recordings of Damon admitting to shooting and killing a Mexican transient on the Ranch and that Damon was being “flagged” by the FBI for possible “terrorist activity.” Cullum wrote he offered the tapes to Damon's “mother but she refused to acknowledge them.”

The email also included information regarding one of Raglin's hunting trips at the Ranch. Cullum stated that the blackbuck deer Raglin shot was domesticated and Cullum had been instructed not to inform Raglin of that fact. Cullum explained he was instructed “to rile [the blackbuck] up” before Raglin arrived so “it wouldn't just walk up to you the first night,” which Cullum said he did by chasing it with his four wheeler. Cullum also made claims regarding how the hog hunts were conducted in the same manner. After setting out these facts Cullum wrote “[t]his is the kind of behavior and ethic they run their business on....”

Cullum also sent an email to Donald Thacker. Thacker owned a production company called Big Timber Trails Outdoor Production. Thacker testified he paid for his first hunting trip at the Ranch and thereafter he traded hunting on White's

[399 S.W.3d 179]

property for advertisement on his national television show. In the email, Cullum accused Thacker of infringing on his copyright by posting the Ranch link and logo on his webpage. Cullum also made comments in the email about tapes he sent to the FBI and wrote that after the copyright case was finalized “we will be filing Federal Charges.” Thacker testified that after receiving the email, he informed the Whites he would not be able to advertise or promote the Ranch on his show or on his website. Cullum also sent an email to Feather Flage, a company that sells hunting clothing, after seeing its link on the Ranch's website. The email made similar representations as in the emails to Raglin and Thacker.

Cullum posted a website called “diamondalcoholicranch.com” that White believes referred to her and the Ranch. The webpage appeared as follows:

COMING SOON

The Whole Story—The Real Story

The Pictures—The Video—The Audio Tapes

The Letters—The Photo Shoot—The Witness's

The Scams—The Lies—The Secrets

The Claims—The Crimes THE PROOF

Pornography—Alcohol Sickness—Drugs—Murder—Militia—Terrorism

Child Endangerment—Animal Abuse—Sabotage—CIA—FBI

Corruption

Dysfunctional Family—Mental Illness—Sex—Adultery—Felony

Thievery—Pathological Liar—Family Secrets

Bad Business—Dishonesty—Illegal Alien—Tax Evasion—Failure

Arrogance—Racism—Cheating Girlfriend—Porn Star—Exhibitionism

Military School Secrets—The Excuses—The Spics—The Insider

The Set Up's—The Stupidity—The Slander

The English Connection—The Cosmetic Connection

The Cowboy in a Woman's Body—The Piranha Girl—The Crazy Mexican

And the Evil that Rules it All!!

A fictional tale of the most bizarre Ranch in America You'll never look at Hunting the same.

There was evidence that individuals associated with the Ranch saw Cullum's website. A friend of White testified that when he viewed the Ranch's official website he observed a posting on the guestbook that had a link to “diamondalcoholicranch.com.” The posting identified the author as a former ranch hand and included derogatory comments about how the Ranch was run. A friend of White testified he saw the link on the guestbook posting and clicked through to the “diamondalcoholicranch.com” webpage.

The Ranch as a limited partnership and White individually sued Cullum for libel. White also sued for intentional infliction of emotional distress. White sought a temporary and permanent injunction to enjoin Cullum from ever speaking or posting anything on the internet about White or the Ranch. The trial court granted the temporary injunction and ordered the website taken down. Cullum complied. Before trial White moved for a permanent injunction as a death penalty sanction against Cullum for alleged misconduct on the part of Cullum and his counsel. The trial court conducted a pretrial hearing and entered a

[399 S.W.3d 180]

permanent injunction as a sanction that provided in part:

IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that Defendant, DELL R. CULLUM be, and hereby is, commanded to desist and refrain from:

1. contacting any existing or former clients of Plaintiffs for any purpose;

2. posting any information, on any internet medium, about Plaintiff White, the Diamond A Ranch, or any operations, affiliations, or employees associated therewith;

3. communicating with third parties, either orally or in writing via the internet or any recognized postal delivery method any information regarding Plaintiff White, the Diamond A Ranch, or any operations, affiliations, or employees associated therewith;

4. creating or assisting in the creation of any website which mentions Leakey, Real County, Plaintiff White, Diamond A Ranch, or any operations, affiliations, or employees associated therewith;

5. publishing, by any means, any material that in any way refers to Plaintiff White, the Diamond A Ranch (or any operations, affiliation, or employees associated therewith);

6. publishing, by any means, any information or material that has been recorded electronically, digitally, or by video, and whether or not created by Defendant, his agents, or anyone acting on his behalf, that in anyway refers to Plaintiff White, the Diamond A Ranch (or any operations, affiliation, or employees associated therewith); and

7. posting the website “diamondalcoholicranch.com” on the internet.

The case proceeded to trial, however, during trial the Ranch's claims were dropped and only White's individual claims were submitted to the jury. Eleven of the twelve jurors found that each of the three emails and the content of the website referred to White and were defamatory. A unanimous jury awarded White $50,000.00 for mental anguish and $50,000.00 for damage to her reputation. ¹ The jury unanimously found that the harm to White was the result of malice and awarded $100,000.00 in exemplary damages. Cullum appeals.

Discussion Denial of motion to strike third amended petition

In his first issue, Cullum asserts the trial court abused its discretion in allowing White to file a third amended petition five days before trial. Cullum contends the third amended petition “changed the whole nature” of White's suit and “operated as a surprise.” Cullum also contends the third amended petition alleged for the first time business disparagement and slander claims, which he argues led to the admission of evidence that prejudiced the jury.

We review a trial court's ruling on whether to allow an amended pleading under an abuse of discretion standard. Hardin v. Hardin, 597 S.W.2d 347, 349–50 (Tex.1980). Pleadings may be amended within seven days of trial “only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.”

[399 S.W.3d 181]

Tex.R.

[399 S.W.3d 181]

Civ. P. 63. “A trial court has no discretion to refuse an amended pleading unless (1) the opposing party presents evidence of surprise or prejudice; or (2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its face, and the opposing party objects to the amendment.” Halmos v. Bombardier Aerospace Corp., 314 S.W.3d 606, 622 (Tex.App.-Dallas 2010, no pet.); see also Hakemy Bros., Ltd. v. State Bank & Trust Co., 189 S.W.3d 920, 924 (Tex.App.-Dallas 2006, pet. denied) (citing State Bar of Tex. v. Kilpatrick, ...