Main v. Royall

• Decision Date: 25 July 2011
• Docket Number: No. 05–09–01503–CV.,05–09–01503–CV.
• Citation: 348 S.W.3d 381
• Parties: Carla T. MAIN and The Encounter for Culture and Education, Inc., Appellants,v.H. Walker ROYALL, Appellee.
• Court: Texas Court of Appeals

348 S.W.3d 381

Carla T. MAIN and The Encounter for Culture and Education, Inc., Appellants,

v.H. Walker ROYALL, Appellee.

No. 05–09–01503–CV.

Court of Appeals of Texas, Dallas.

July 25, 2011.

Matthew R. Miller, Wesley Hottot, Institute for Justice Texas Chapter, Austin, TX, John J. Little, Little, Pederson Frankhauser L.L.P., Megan K. Dredla, Little Pedersen Fankhauser LLP, Dallas, TX, Dana Berliner, Institute for Justice, Arlington, VA, for Appellants.Robert B. Gilbreath, Hawkins, Parnell, Thackston & Young, LLP, Dallas, TX, Patrick Zummo, Patrick Zummo Attorney, Houston, TX, for Appellee.Before Justices BRIDGES, RICHTER, and LANG–MIERS.

OPINION

Opinion By Justice LANG–MIERS.

This interlocutory appeal arises from a libel suit brought by appellee, H. Walker Royall, against appellants, Carla T. Main and The Encounter for Culture and Education, Inc.Appellants contend that the trial court erred when it denied their no-evidence motion for summary judgment and traditional motion for partial summary judgment.Royall contends that we do not have jurisdiction to entertain this interlocutory appeal.We affirm in part and reverse and render in part.

Background

Main wrote and Encounter published Bulldozed: “ Kelo,” Eminent Domain, and the American Lust for Land, a book critical of the government's taking of private property by eminent domain to use for private development.It explores the history of eminent domain and court decisions about the government's use of the power, particularly the United States Supreme Court's decision in Kelo v. City of New London,545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439(2005).¹

Portions of the book are set in the City of Freeport, Texas and tell the story of the City's plan to use eminent domain to condemn waterfront property along the Old Brazos River to build a private yacht marina.The story is told from the viewpoint of one of the property owners—Western Seafood Company, a shrimp processing business owned by Wright “Pappy” Gore, Sr. and his family.It chronicles the Gore family's efforts over several years to prevent the City from condemning a 330–foot strip of property belonging to Western Seafood and used in their shrimp processing business.The Gores contended that this strip of property was crucial to the livelihood of Western Seafood.The book details the City's efforts to reach an agreement with the Gores and to build the marina on land adjacent to Western Seafood that was owned by the Blaffer family; its agreement with Royall, a commercial real estate developer,² to develop and operate the marina; and the many lawsuits filed over the project.

Bulldozed was published in October 2007.When Royall learned of it, he sued appellants and others contending that the book and publicity for the book defamed and injured him in his occupation and profession.He alleged claims for libel, aiding and abetting libel, and ratifying libel, and he sought nominal, general, actual, and exemplary damages.

Main and Encounter moved for no-evidence summary judgment on Royall's claims.They also filed a traditional motion for partial summary judgment on specific issues.The trial court denied both motions.Main and Encounter filed this interlocutory appeal.

Jurisdiction

Royall initially questions whether we have jurisdiction to hear this appeal.Section 51.014(a)(6) of the Texas Civil Practice and Remedies Code authorizes an interlocutory appeal when a trial court:

denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73[.]Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(6)(West 2008).³Royall contends that we do not have jurisdiction because the legislature did not intend the language of section 51.014(a)(6) to include authors and publishers of books as “member[s] of the electronic or print media,” and because Main and Encounter's motions for summary judgment were not based in whole or in part on a defense arising under the First Amendment,article I, section 8 of the Texas Constitution, or Chapter 73.We disagree.

“Member of the Electronic or Print Media”

In resolving the jurisdictional question, we first must determine whether the legislature intended the language “member of the electronic or print media” to include book authors and publishers.Section 51.014(a)(6) does not define “print media” or who is “a member of the electronic or print media.”Seeid.We have not found and the parties do not cite any Texas cases that decide this issue directly.⁴As a result, it appears to be an issue of first impression.

When we construe a statute, we read the language used in the statute and construe the statute in its entirety.Nat'l Liab. & Fire Ins. Co. v. Allen,15 S.W.3d 525, 527(Tex.2000);seeIn re Bay Area Citizens Against Lawsuit Abuse,982 S.W.2d 371, 380(Tex.1998)(orig. proceeding);Taylor v. Firemen's & Policemen's Civil Serv. Comm'n,616 S.W.2d 187, 190(Tex.1981).If the language is not ambiguous, we interpret it according to its plain meaning.State ex rel. State Dep't of Highways & Pub. Transp. v. Gonzalez,82 S.W.3d 322, 327(Tex.2002).And if words are not defined, we use their plain and common meaning unless the context of the statute indicates a contrary intention or it leads to an absurd result.City of Rockwall v. Hughes,246 S.W.3d 621, 625–26(Tex.2008).We presume the legislature intended a just and reasonable result when it enacted the statute.Id. at 626.In construing the statute, we may consider factors such as the statute's purpose; circumstances under which it was enacted; its legislative history; the common law and former versions of the statute; statutes on the same or similar subjects; and the consequences of a particular construction.Tex. Gov't Code Ann. § 311.023(West 2005).

Royall argues that the legislature did not intend the statute to apply to book authors and publishers because books were an existing technology when the statute was passed, but the legislature did not include book authors and publishers in the express terms of the statute and the legislative history of the statute does not refer to book authors and publishers.He also argues that the term “media defendants” has never been broadened to include defendants beyond the “newspaper or broadcaster” category.

Royall cites Rogers v. Cassidy,946 S.W.2d 439, 443(Tex.App.-Corpus Christi 1997, no pet.), overruled in part on other grounds byHuckabee v. Time Warner Entm't Co.,19 S.W.3d 413(Tex.2000), andQuebe v. Pope,201 S.W.3d 166, 170 n. 5(Tex.App.-Houston [14th Dist.]2006, pet. denied), to support his contention that the statute was not intended to apply to authors and publishers of books.

In Cassidy, a city attorney filed a defamation lawsuit against a private citizen who accused the city attorney of improprieties in an election.Cassidy,946 S.W.2d at 441.Both parties filed motions for summary judgment, which were denied, and both filed interlocutory appeals under this statute.The jurisdictional question in that case was whether the legislature intended the statute to apply to a plaintiff who claimed to have been libeled by the media.Id. at 443.The court concluded it did not:

The purpose of the section is “to allow a newspaper, radio station or television station that was sued for libel to make an immediate appeal of a judge's refusal to grant a summary judgment.”House Research Org., Bill Analysis, Tex.S.B. 76, 73rd Leg., R.S.(41).“Section[51.014(a)(6) ] permit[s]the courts to sort out unmeritorious libel casesbeforea case enters the time-consuming and expensive trial phase.”

Id. at 443.Although the court referred specifically to “a newspaper, radio station or television station” when describing the purpose of the statute, the issue in that case was whether a plaintiff could file an interlocutory appeal under the statute.Consequently, we do not agree that Cassidy decided the issue before us.Seeid. at 441–43.

In Quebe, private citizens accused a police officer of sexually assaulting a minor and the officer sued for defamation.The focus of the appeal was the meaning of “published” as used in the statute because the libel defendants' and the libel plaintiff's names were never used in the publication and the specific allegations were not stated.Quebe,201 S.W.3d at 169–70.In a footnote, the court cited the statute's legislative history:

As originally proposed, the amendatory legislation, Senate Bill 76, applied only to members of the media.Senate Comm. on State Affairs, Bill Analysis, Tex.S.B. 76, 73rd Leg., R.S.(1993).Senator Jim Turner, the bill's sponsor, offered an amendment that extended application to persons other than members of the media.In a note accompanying the amendment, Turner explained: “For example, it would cover persons who have letters or op-ed pieces published in newspapers or magazines or who express their opinions on radio or television programs.”FloorAmendment No. 2 to Tex. S.B. 76, 73rd Leg., R.S.(February 25, 1993).

Id. at 170 n. 5.Again, as with Cassidy, the question of whether the statute was intended to apply to book authors and publishers was not an issue in Quebe.

We construe the statute understanding that the legislature's purpose in enacting section 51.014(a)(6) was to provide members of the media with a mechanism to obtain immediate appellate review when a trial court denies their motion for summary judgment and when that motion was based on a claim or defense “arising under the free speech or free press clause of the First Amendment....”Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(6);seeTSM AM–FM TV v. Meca Homes, Inc.,969 S.W.2d 448, 451(...