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Johnson v. Phillips

Court of Appeals of Texas, First District

May 23, 2017


         On Appeal from the 333rd District Court Harris County, Texas Trial Court Case No. 2011-14027.

          Panel consists of Justices Jennings, Massengale, and Huddle.


          Rebeca Huddle Justice

         After 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.

         The 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.


         The 2008 trial

         The 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 use.[1] 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 striking Kaleta.

         Kaleta 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.

         The book

         Two 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.

         The 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."

         The underlying case

         In 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.

         The 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 appealed.[2]


         In 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.

         A. Standard of Review

         We 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).

         To 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.

         In a 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).

         B. Applicable Law

         Generally, 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)).

         Whether 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).

         A 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.").

         The 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.

         Opinions 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.).

         A 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.).

         Whether 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.

         C. The book as a whole, and the gists and passages, are not defamatory.

         In the trial court, the family complained that the book as a whole, and 91 of its passages, which they categorized into 8 "gists, " were defamatory.[3] 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:[4]

• 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 ...

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