Vice v. Kasprzak

• Decision Date: 09 December 2009
• Docket Number: No. 01-08-00168-CV.,01-08-00168-CV.
• Citation: 318 S.W.3d 1
• Parties: Patricia VICE and Kathie Slotter, Appellants,v.Daniel J. KASPRZAK, Patricia C. Kasprzak, and Katherine D. Kasprzak, Appellees.
• Court: Texas Court of Appeals

318 S.W.3d 1

Patricia VICE and Kathie Slotter, Appellants,v.Daniel J. KASPRZAK, Patricia C. Kasprzak, and Katherine D. Kasprzak, Appellees.

No. 01-08-00168-CV.

Court of Appeals of Texas Houston (1st Dist.).

Oct. 1, 2009.

Rehearing Overruled Dec. 9, 2009.

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Penny Wymyczak-White, Houston, TX, for Appellants.

Jess W. Mason, Mason, Coplen & Banks, P.C., Houston, TX, for Appellees.

Panel consists of Justices JENNINGS, KEYES, and HIGLEY.

OPINION

EVELYN V. KEYES, Justice.

In this defamation suit, appellants, Patricia Vice and Kathie Slotter, bring an interlocutory appeal challenging the trial court's order that denied their summary judgment motion in favor of the appellees, Daniel J. Kasprzak, Patricia C. Kasprzak, and Katherine D. Kasprzak. In nine issues, Vice and Slotter argue that the trial court erred in denying summary judgment on three publications because (1) the publications were not “of and concerning” the Kasprzaks; (2) the publications were substantially true; (3) Daniel J. Kasprzak is a limited-purpose public figure and (4) no genuine issue of material fact exists on actual malice; (5) one of the publications as to which summary judgment was denied was authored by Lisa Worthen, a non-party; ¹ (6) Patricia Kasprzak and Katherine Kasprzak lack standing to bring suit; (7) the Kasprzaks presented no evidence of pecuniary damages; (8) the Kasprzaks failed to plead a tort recognized by the State of Texas and, therefore, their conspiracy claims fail; and (9) because the Kasprzaks have no evidence of the commission of an underlying tort, they have failed to raise a genuine issue of fact on their conspiracy claim.

We reverse and render judgment in favor of Vice and Slotter.

Background

This dispute centers around animosity between a group of residents in the Newport subdivision in Crosby, Texas and the New Property Owners' Association of Newport, Inc. (“NPOAN”). Daniel Kasprzak, who lives in the Newport subdivision, was involved in the formation of the NPOAN,² has served on the Board of Directors of NPOAN since 1996, and served as the President of NPOAN in 1996 for a one-year term. He has served continuously as the Board President since 2001. Daniel is also a licensed Texas attorney and has been a Trustee of the Crosby Independent School District. As an attorney, Daniel has represented Newport Fund, LLC, an entity related to the Newport subdivision's developer, Rampart,³ in multiple lawsuits that Newport Fund, LLC has been involved in against Newport property owners.⁴

The local newspapers, the Highlands Star and the Crosby Courier (collectively referred to as the Star Courier ), have reported on disputes among the NPOAN members, Daniel Kasprzak, and Rampart, the developer of Newport. A portion of the dispute that led up to the litigation concerned a Newport golf course that is privately owned and a proposed agreement to build and operate a health club facility in the unused portion of the golf club premises. The NPOAN Board (“the Board”) formed a committee to study the feasibility of operating a health club facility that resulted in a recommendation to move forward with the negotiations for the venture. After the Board voted to move forward, two of the Board's directors resigned because they intended to campaign for votes against the approval of the health club facility. Apparently, the two dissenting Board members believed that the health club facility would do more benefit to the privately-owned golf course than to the residents of Newport. The NPOAN members understood that the Board planned to raise their maintenance fees to help finance the health facility. The publications pertinent to this dispute include (1) an article entitled, “Newport controversy resumes,” written by Lewis Spearman and published on April 6, 2006 by the Star Courier, (2) an anonymous flyer circulated to the Newport homeowners, and (3) a letter to the editor written by Vice that was published by the Star Courier on April 13, 2006.

The anonymous flyer asked, “What is going on in Newport?” It asserted that the authors had discovered from Harris County real property records: (1) the assignment of property owner's delinquent maintenance fee accounts from the bankruptcy trustee for the former Newport developer to Rampart that “gave Rampart the right to collect maintenance fees ONLY (not keep them or spend them for us)”; (2) “[v]arious assignments of an additional 93 properties delinquent on maintenance fees from the NPOAN (signed personally by Dan Kasprzak) to Newport Fund”; and (3) “[t]he 2nd Amendment to the Assignment of Rights and Assumption of Obligations between the NPOAN and [Rampart] filed in December, 2005 which ‘forgives all past due assessments on lots [Rampart] obtained through foreclosure on past due accounts....' ” The flyer demanded “to see where [Rampart] and/or Newport Fund has EVER turned over to the NPOAN the proceeds from collected past due maintenance fees or from the sale of the foreclosed lots/properties”; to see the meeting records that approved the conveyance of the properties delinquent on maintenance fees to Newport; and to see where the Amendment to the Assignment of Rights and Assumption of Obligations between NPOAN and Rampart forgiving all past due assessment on lots Rampart obtained through foreclosure “was discussed and voted on in PUBLIC that this was in the best interest of the residents of Newport who continue to bear the burden of paying forever increasing maintenance fees.”

The flyer pointed out that Rampart and Newport Fund were both owned by Jim Carpenter, the developer of Newport through Rampart, and that “Dan Kasprzak is the NPOAN President & attorney of record for Newport Fund.” The flyer further demanded “to see the meeting records that there was full disclosure of Dan's representation of Newport Fund and that this was understood and approved.” It asserted that the authors of the flyer had learned from the Harris County District Clerk Records that “Newport Fund (with Dan Kasprzak as attorney of record) has brought lawsuits for delinquent maintenance fees on at least 347 properties[,] which court records show Judgment amounts of over $942,566.” It declared:

The former & current Board Member(s) of the NPOAN have some explaining to do. They are giving away our money to the developer. That money could have been used for more amenities and avoided the current rise in maintenance fees. Dan Kasprzak has been assigning to Newport Fund the delinquent maintenance fee accounts (not included in the Assignment from the Bankruptcy Court), representing Newport Fund (not the NPOAN) in ALL collection actions, & filing the 2nd Amended Assignment of Rights and Assumption of Obligations Agreement which “forgives all past due assessments on lots ... Rampart obtained through foreclosure on past due accounts....”

Finally, the flyer stated that numerous requests for information had been denied by the NPOAN. It stated, “We didn't agree to any of this.... We want answers.... Don't YOU?,” and it urged homeowners “to attend the Quarterly Meeting April 13th at the Country Club at 7:00 PM to ask your questions of the NPOAN Board.”

The letter titled “Newport residents need to wake up” was written by Vice as a Newport “Property-Owner” and appeared on the “Opinion Page” of the April 13, 2006 Star Courier. It stated that the Newport homeowners had “recently learned” that Carpenter, the owner of Rampart, the developer of Newport, “ha[d] been purchasing Newport properties obtained through Harris County Public Tax Sales even when his companies are significantly delinquent in current taxes on other pieces of properties that he has owned for many years in Newport,” and it asked, “Isn't this illegal?” It then stated,

In a current flyer we have also learned that our current NPOAN Board President Dan Kasparzak [sic] makes his living by handling legal matters for Newport properties for the developer Jim Carpenter. We are not talking a few thousand dollars, we are talking millions of dollars. As President of NPOAN and attorney of record for the developer and his many companies he is playing both side [sic] of the fence. This is unethical business and should be reported to the Texas Bar Association by everyone in the subdivision.

Newport property owners are being deceived and exploited by the developer and our current NPOAN Board Members. We need to wake up and take back control and management of running our subdivision.

The April 6, 2006 Star Courier article, written by Lewis Spearman and titled “Newport controversy resumes,” stated, “The controversy over Newport Subdivision Board's activities with the subdivision's developer is reopened by residents making fresh inferences based on county records.” It stated that the controversy was “headed to a showdown on April 13 at the Quarterly Meeting of NPOAN at the Country Club at 7:00 p.m.” It further stated, “Newport Funds [sic] brought lawsuits for delinquent maintenance fees on at least 347 properties which court records show collected amounts over $942,566 with the NPOAN Board President as Attorney of Record for Newport Fund, according to Harris County Tax Records.” In addition, the article referenced the contents of the flyer and stated that Slotter “indicates that proceeds (legal fees, maintenance fees collected on the foreclosed lots), from the homeowner are paid directly to the NPOAN President's law firm and/or the deed was conveyed directly to Newport Fund (not NPOAN).” It concluded, “The question is, has the outstanding maintenance fee portion of the collection, or the market value of the lot, ever been remitted to the NPOAN?”

On September 29, 2006, the Kasprzaks sued Vice, Slotter, Dian Demma, Mary Lee Anderson, Bruce Lindsay, Lewis Spearman, Gilbert Hoffman individually and d/b/a Grafikpress, and Grafikpress, Corporation, d/b/a Star Courier Newspapers, the Highlands Star, the ...