JOAN JOHNSON, KALETA JOHNSON, SETH JOHNSON, AND WIRT BLAFFER, Appellants
MICHAEL PHILLIPS, SPINDLE TOP PUBLISHING, AND PHILLIPS AKERS WOMAC, P.C., Appellees
Appeal from the 333rd District Court Harris County, Texas
Trial Court Case No. 2011-14027.
consists of Justices Jennings, Massengale, and Huddle.
siblings Kaleta and Seth Johnson sued Dinesh Shah for
Shah's protracted abuse of their family, Michael
Phillips, a Houston attorney, defended Shah against the
allegations in a 2008 civil trial. Phillips later published a
book, titled "Monster in River Oaks, " about the
events giving rise to the suit. According to its prologue,
the book tells the "story of a predatory monster that
set out to control and then dominate a famous Houston family,
" the Johnsons. Kaleta and Seth, along with their
mother, Joan Johnson, and their brother, Wirt Blaffer, sued
Phillips, his law firm, and the book's publisher,
alleging that the book libeled them.
defendants moved for traditional and no-evidence summary
judgment, arguing that the book constituted a fair report of
the 2008 trial and that neither the book as a whole nor any
of the complained-of passages was defamatory. The trial court
granted summary judgment without specifying its reasons, and
the family appealed, arguing that the book is defamatory and
not protected by the fair report privilege. We hold that the
book as a whole and the complained-of passages are not
defamatory as a matter of law, and, accordingly, we affirm
the trial court's summary judgment.
gravamen of Kaleta and Seth's suit against Shah was that
he and his friend David Collie systematically isolated the
family and moved into their River Oaks home, where they
abused them and siphoned millions of dollars for Shah's
In particular, Kaleta and Seth alleged that Shah coerced Joan
to send their oldest sibling, 16-year-old Wirt, away to
school to clear the path for Shah to inflict physical and
mental abuse on Joan, Seth, and Kaleta, and, most
horrifically, to sexually abuse the youngest sibling, Seth.
While Collie eventually left the family home voluntarily,
Shah's reign spanned years, until he was forcibly removed
by police, arrested and charged with injury to a child for
and Seth asserted claims for assault, intentional infliction
of emotional distress, breach of fiduciary duty, and
conspiracy. Phillips represented Shah during the two-week
jury trial, after which the jury returned a $20 million
verdict in Kaleta and Seth's favor.
years after the trial, Phillips self-published "Monster
in River Oaks." The book relates the history of the
family beginning with R.L. Blaffer, a founder of Exxon and
great-grandfather of the siblings. It describes Joan's
marriage to Luke Johnson, the siblings' father, and
Luke's sudden death in 1995. It goes on to describe how
Joan, a widow with three young children, met Shah and Collie
soon after Luke's death. It details how Shah and Collie
befriended Joan, pretended to have expertise managing
investments, and began to help Joan manage her finances.
book relates that Joan and Collie were romantically involved
for a time, but the romantic aspect of the dynamic is not the
book's focus. Instead, the book devotes itself primarily
to describing in significant detail Shah's escalating
physical and psychological control over every aspect of the
family's life-he dictated the family's financial,
social and educational affairs for years-until he was finally
arrested and forcibly removed from the home in 2002. The
epilogue then informs the reader that Phillips, the
book's author, was Shah's lawyer in the 2008 trial,
and that he felt moved to write the book so that others would
learn from the "sordid tale."
2011, the family sued Phillips, his law firm, and his
publisher, for libel. The defendants moved for summary
judgment, arguing in their traditional motion that the book
was protected by the statutory, common law, and
constitutional fair-report privileges because it is a fair
report of the 2008 trial. They also argued that the book and
the complained-of passages were not defamatory because they
presented a fair and true account of the trial and the
evidence and argument adduced therein, and Phillips's
characterizations of the trial evidence were not actionable
because they are opinions, not objectively verifiable
statements. In the no-evidence motion, the defendants
similarly contended that there was no evidence that any of
the complained-of statements or gists of the book (1) had a
defamatory meaning, (2) were objectively verifiable as
opposed to opinion or unverifiable characterizations; or (3)
were substantially false.
family responded, arguing that the fair-report privilege did
not apply and identifying passages they contended were not
fair or accurate reports of the trial or opinions and were
defamatory. The trial court granted Phillips summary judgment
on all claims without specifying its reasons. The family
their sole issue on appeal, the family argues that the trial
court erred in granting summary judgment. Specifically, they
argue that the book is not protected by the fair-report
privilege and that, at a minimum, there are fact issues
regarding whether the book as a whole or the complained-of
passages are defamatory. We first address whether the book as
a whole or the complained-of passages are defamatory because
this issue is dispositive.
Standard of Review
review a trial court's summary judgment de novo.
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862
(Tex. 2010). If a trial court grants summary judgment without
specifying the grounds for granting the motion, we must
uphold the trial court's judgment if any of the grounds
are meritorious. Beverick v. Koch Power, Inc., 186
S.W.3d 145, 148 (Tex. App.-Houston [1st Dist.] 2005, pet.
denied). When reviewing a summary judgment, we take as true
all evidence favorable to the nonmovant, and we indulge every
reasonable inference and resolve any doubts in the
nonmovant's favor. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
prevail on a no-evidence motion for summary judgment, the
movant must establish that there is no evidence to support an
essential element of the nonmovant's claim on which the
nonmovant would have the burden of proof at trial.
See Tex. R. Civ. P. 166a(i); Hahn v. Love,
321 S.W.3d 517, 523-24 (Tex. App.-Houston [1st Dist.] 2009,
pet. denied). The burden then shifts to the nonmovant to
present evidence raising a genuine issue of material fact as
to each of the elements specified in the motion. Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006);
Hahn, 321 S.W.3d at 524.
traditional summary judgment motion, the movant has the
burden to show that no genuine issue of material fact exists
and that the trial court should grant judgment as a matter of
law. Tex.R.Civ.P. 166a(c); KPMG Peat Marwick v. Harrison
Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).
to prevail on a cause of action for libel, a plaintiff who is
a private individual must prove that the defendant (1)
published a statement (2) that was defamatory concerning the
plaintiff (3) while acting with malice, if the defendant is a
media defendant, or while acting with negligence, if the
defendant is not a media defendant. Klentzman v.
Brady, 312 S.W.3d 886, 897 (Tex. App.- Houston [1st
Dist.] 2009, no pet.) (citing WFAA-TV, Inc. v.
McLemore, 978 S.W.2d 568, 571 (Tex. 1998)).
a statement is reasonably capable of defamatory meaning is a
question of law for the court. Turner v. KTRK Television,
Inc., 38 S.W.3d 103, 114 (Tex. 2000); Musser v.
Smith Protective Servs., Inc., 723 S.W.2d 653, 655 (Tex.
1987); Schauer v. Mem'l Care Sys., 856 S.W.2d
437, 446 (Tex. App.- Houston [1st Dist.] 1993, no pet.),
disapproved on other grounds by Huckabee v. Time Warner
Entmt. Co., 19 S.W.3d 413 (Tex. 2000). If a statement is
not reasonably capable of a defamatory meaning, the statement
is not defamatory as a matter of law, and the claim fails.
Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013).
statement is defamatory if it tends to injure the
subject's reputation, to expose him to public hatred,
contempt, ridicule, or financial injury, or to impeach his
honesty, integrity, or virtue. Blanche v. First
Nationwide Mortg. Corp., 74 S.W.3d 444, 456 (Tex.
App.-Dallas 2002, no pet.). Whether a publication is false
and defamatory depends upon a reasonable person's
perception of the entire publication. Turner, 38
S.W.3d at 115 (defamation determined by looking at entire
communication); City of Keller v. Wilson, 168 S.W.3d
802, 811 (Tex. 2005) ("[P]ublications alleged to be
defamatory must be viewed as a whole-including accompanying
statements, headlines, pictures, and the general tenor and
reputation of the sources itself."); Schauer,
856 S.W.2d at 446 ("To determine if a publication is
defamatory, the court must look at the entire communication
and not examine separate sentences or portions.").
reasonable person is someone of "ordinary
intelligence"-"a prototype of a person who
exercises care and prudence, but not omniscience."
New Times, Inc. v. Isaacks, 146 S.W.3d 144, 154, 157
(Tex. 2004) (question is how hypothetical "reasonable
reader"-someone of "ordinary
intelligence"-would understand statement). This person
is "no dullard" and represents "reasonable
intelligence and learning, " not the "lowest common
denominator." Id. at 157.
are not defamatory. Neely v. Wilson, 418 S.W.3d 52,
62 (Tex. 2013); see also Carr v. Brasher, 776 S.W.2d
567, 570 (Tex. 1989) ("[A]ll assertions of opinion are
protected by the [F]irst [A]mendment . . . ."). Thus, to
be actionable, a statement must assert an objectively
verifiable fact rather than an opinion. Neely, 418
S.W.3d at 62. We classify a statement as fact or opinion
based on the statement's verifiability and the entire
context in which the statement was made. Bentley v.
Bunton, 94 S.W.3d 561, 581 (Tex. 2002). Whether a
statement is a statement of fact or opinion is a question of
law to be decided by the court. See id.;
Robertson v. Sw. Bell Yellow Pages, Inc., 190 S.W.3d
899, 903 (Tex. App.-Dallas 2006, no pet.).
statement may be false, abusive, unpleasant, or objectionable
without injuring a person's reputation such that it is
defamatory. See Double Diamond, Inc. v. Van Tyne,
109 S.W.3d 848, 854 (Tex. App.-Dallas 2003, no pet.);
Schauer, 856 S.W.2d at 446. Moreover, if "[t]he
taint of the alleged defamatory statement is . . . no greater
in the mind of the average reader than a more exacting
truthful statement would have been, " it is not
defamatory. Basic Capital Mgmt., Inc. v. Dow Jones &
Co., 96 S.W.3d 475, 482 (Tex. App.-Austin 2002, no
pet.). In other words, if the truth about the person would
injure their reputation just as much as the allegedly
defamatory statement, then the statement is not defamatory.
See id. Only if the court determines the language is
ambiguous should the jury decide the statement's meaning
and the effect of the statement's publication on an
ordinary reader. Schauer, 856 S.W.2d at 446;
Einhorn v. LaChance, 823 S.W.2d 405, 411 (Tex.
App.-Houston [1st Dist.] 1992, writ dism'd w.o.j.).
or not a particular plaintiff is required to prove the
falsity of the challenged statement, a defendant may assert
truth as an affirmative defense to a libel action. Tex. Civ.
Prac. & Rem. Code § 73.005; Randall's Food
Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).
The truth of a statement is an absolute defense to a claim
for defamation. See Klentzman, 312 S.W.3d at 898. A
true account is not actionable-regardless of the conclusions
that people may draw-so long as it does not create a
substantially false and defamatory impression by omitting
material facts or suggestively juxtaposing them in a
misleading way. Turner, 38 S.W.3d at 115, 118.
The book as a whole, and the gists and passages, are not
trial court, the family complained that the book as a whole,
and 91 of its passages, which they categorized into 8
"gists, " were defamatory. On appeal, the family
contends that they raised a fact issue regarding whether the
book as a whole is defamatory. They also contend that they
raised fact issues regarding the defamatory nature of 58 of
the passages, all of which fall into 5 gists:
• 19 passages the family contends are defamatory because
their gist is that the family was violent;
• 8 passages the family contends are defamatory because
their gist is that the family members are dishonest and