Date: 10-17-2013

Case Style: LeaAnne Klentzman and Carter Publications, Inc., d/b/a The West Fort Bend Star v. Wade Brady

Case Number: 01-11-00765-CV

Judge: Evelyn V. Keyes

Court: Texas Court of Appeals, First District on appeal from the 240th District Court of Fort Bend County

Plaintiff's Attorney: Todd William Mensing, Kinan Hab Romman and John Zavitsanos for Wade Brady

Defendant's Attorney: John Kiley Edwards for LeaAnne Klentzman and Carter Publications, Inc., d/b/a The West Fort Bend Star

Description: Appellee, Wade Brady, sued appellants, Carter Publications, Inc. d/b/a The West Fort Bend Star (“The Star”) and LeaAnne Klentzman, a reporter for The Star, alleging that they defamed him in a January 15, 2003 article (“the Article”). Based

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on the jury’s verdict in Wade’s favor, the trial court signed its final judgment awarding him actual and exemplary damages. In nine issues, Klentzman and The Star argue that: (1) the trial court erred by ruling that neither the Article nor any of the particular complained-of statements reported on a matter of public concern; (2) the trial court erred by ruling that the Article and all complained-of statements were “of and concerning” Wade; (3) the trial court erred by submitting a question on defamatory impression without conditioning the question on a jury finding that each of the complained-of statements was true or substantially true; (4) the trial court erred by submitting a “libel per se” instruction, because libel per se is a question of law for the court to determine, and by improperly combining libel per se and libel per quod, impacting the burden of proof required for damages; (5) the trial court erred in submitting a “libel per se” instruction with the question on defamatory impression because Texas does not recognize the theory of “defamatory impression per se”; (6) the trial court erred by failing to rule that the Article and all complained-of statements were privileged under the “Fair Report Privilege” or the “Neutral Reportage Privilege,” which would have required a finding of actual malice by clear and convincing evidence to overcome the privilege and impose liability; (7) the evidence is factually insufficient to support the jury’s findings that the gist of the Article and the individual complained-of statements were not substantially true; (8) the evidence is factually insufficient to

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support the jury’s award of $20,000 for past mental anguish; and (9) the evidence is factually insufficient to support the jury’s award of $30,000 for past injury to Wade’s reputation.

We reverse the award of mental anguish damages and remand for reevaluation of the punitive damages award in light of this holding. We affirm the remainder of the judgment.

Background

Wade’s father is Craig Brady, the Chief Deputy of the Fort Bend County Sheriff’s Office (“FBCSO”). Craig and Klentzman both began working for the FBCSO in 1981, and both Klentzman and Craig acknowledged at trial that they had a tumultuous and negative relationship. After Klentzman left the FBCSO office and began working as a news reporter, she wrote several articles that were critical of Craig, his performance at the FBCSO, and his alleged intervention on behalf of his sons, Cullen and Wade Brady, regarding their various interactions with other law enforcement personnel, including FBCSO deputies.

On January 15, 2003, The Star published the Article that is the basis of this suit on its front page. It was entitled “Deputy Brady’s Tape Collecting Called ‘Roadside Suppression.’” The Article began by stating, Since November 21, 2002, Sheriff’s Department Chief Deputy Craig Brady has been collecting audio tapes from deputies regarding a Minor in Possession charge that one of his sons faced early in 2001. This is the same son who stated that he loaned his cell phone to a

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stranger who then absconded with it. The alleged robbery resulted in a police pursuit through the streets of Rosenberg with the chief deputy driving his unmarked police car in the pursuit with his then 16-year-old son and friend in the vehicle. The pursuit ended when the alleged robber crashed his car into someone’s property.

The Article then mentioned Wade by name in reference to his August 2001 trial on the MIP citation and discussed over the space of two paragraphs the testimony elicited at that trial. Omitting any reference to the outcome of the trial, which resulted in Wade’s acquittal on the MIP charge, the Article further stated, “Minor in Possession citations are not uncommon. Justices of the peace deal with them on a weekly basis. What makes this case unique is that the father of Wade Brady, Fort Bend County Sheriff’s Department Chief Deputy Craig Brady, continually made contact with the officers involved.” The Article then included several paragraphs detailing Craig’s interactions with the deputies involved in Wade’s MIP citation, including “numerous twilight meetings held in various parking lots scattered throughout the northwest quadrant of the county” that the Article claimed FBCSO personnel had dubbed “‘roadside suppression hearings,’ making jest of a legal maneuver by defense lawyers to keep evidence out of court.”

The Article then recounted a third incident involving Wade that occurred while Craig was involved in an alleged “Roadside Suppression Hearing”:

Brady’s sons had led a DPS Trooper from the streets of Rosenberg winding down narrow roads all the way to their riverside home.

In the DPS video tape viewed by the Star and then later obtained through the Freedom of Information Act, Wade Brady was

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so unruly and intoxicated that the Trooper had to handcuff him and place him in the backseat of the police car for safety.

The Article provided more details of Cullen’s interaction with the DPS Trooper and the statement that the Sheriff informed Craig over the county radio system “that he [Craig] needed to get home where ‘an incident’ was occurring.”

The rest of the Article was devoted to discussing an expunction order:

While rehashing just a few of the events that have occurred over the past year it should be glaringly apparent why the officers involved in the MIP incident with Wade Brady were intimidated when their boss, Chief Deputy Craig Brady, notified them that he had an order of expunction and demanded any and all audio tapes or notes from that incident in their possession.

The Article further stated that “[t]here is some controversy over the validity of the order,” recounting some statutory authority governing the issuance of expunction orders and quoting Texas Municipal Police Association lawyer Larry McDougal as stating that “[b]ased on the law, this order is void” and that TMPA was going to file documents to get the order set aside. The Article also stated that Bud Childers, the county attorney at that time, opined that Craig “could not legally use that order to get the tapes from the officers.” The Article concluded, “For now, the ‘Roadside Suppression Hearings’ have ended with personnel at the sheriff’s office just wondering when the other shoe will drop.” Wade filed suit against Klentzman and The Star on April 17, 2003 alleging defamation based on the Article. Klentzman and The Star moved for summary

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judgment on the bases that there was no evidence of the material falsity of any of the statements in the Article, that there was no evidence of actual malice, and that a portion of the Article was an expression of opinion and not actionable as defamation. The trial court denied the motion for summary judgment, and Klentzman and The Star pursued an interlocutory appeal in this Court. See Klentzman v. Brady, 312 S.W.3d 886, 891 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (affirming the denial of summary judgment). The case proceeded to a jury trial on Wade’s defamation claims.

At trial, Wade presented evidence regarding the various events that were recounted in the Article. The evidence established that in May 28, 2000, when Wade was sixteen years old, his cell phone was stolen. Craig testified that after Wade reported the theft of the phone to him, he created an offense report and took action to locate the suspected thief. Craig located the suspect using the license plate number obtained by Wade during the theft and followed the suspect, who was “driving maybe 5 miles an hour” until a marked police car arrived. The suspect hit Craig’s car and was “forced . . . to take a turn onto a side road,” at which point the suspect jumped out of the car while it was still moving. The car “struck a man’s house, but didn’t cause any damage to it.” Craig Brady further testified that the incident was not an “alleged robbery” as stated in the Article, because the suspect was arrested and later convicted of theft.

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The evidence at trial also demonstrated that, on February 10, 2001, Wade was cited for being a minor in possession of alcohol (“MIP”). Craig testified that Cullen, his oldest son, who was twenty-one at that time, had been at the beach with friends when an intoxicated third party struck his truck and “disabled” it. Wade drove to Galveston to pick Cullen up and loaded Cullen’s property, including a cooler, into the truck. The boys returned home around 3:00 a.m. Later that same day, Wade left to meet friends at a restaurant without removing the cooler, which contained several beers. He was pulled over and was ticketed for being a minor in possession of alcohol.

Craig testified that, after Wade had received the ticket and returned home, Wade told him that the FBCSO deputy who cited him was rude to him and used profanity. Craig testified that he met with the deputies involved in the MIP citation one time each to discuss what happened during the MIP stop. He stated that he chose the location of the meetings—at gas stations within the deputies’ patrol areas—for the convenience of the deputies and that the meeting lasted “maybe ten minutes.” He testified that he discussed the use of profanity with Deputy Costello, one of the deputies involved in the MIP citation, and Costello told him that he directed the profanity toward another officer, not toward Wade. Craig testified that the Sheriff also requested a meeting with the deputies involved “[t]o reassure all

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the deputies involved that they weren’t in trouble and there was going to be no repercussions because they had given my son a citation.”

The deputies involved in the MIP citation testified that, in spite of their meeting with Craig, they testified fully and truthfully at Wade’s MIP trial. They each testified that they did not withhold any testimony or other evidence during the trial, and they further stated that Craig never asked them to do so.

A jury acquitted Wade on the MIP charge. On September 23, 2002, Wade moved for an expunction. The Justice of the Peace issued the expunction order on November 21, 2002. Craig testified that he did not demand the return of the tapes from any of the deputies involved in the MIP charge. The deputies each testified that they either personally destroyed the tapes pursuant to the court order of expunction or turned the evidence over to other personnel for destruction pursuant to the order.

Regarding the statements in the Article concerning the validity of the expunction order, Texas Municipal Police Association lawyer Larry McDougal testified that he was misrepresented in the Article. He did not opine on the validity of Wade’s expunction order, and, to his knowledge, the TMPA was not involved in any way in seeking to void the order. Bud Childers also testified that his comments were misstated in the Article. He also stated that he did not form or express any opinion on the validity of Wade’s expunction order and that his

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statement about the scope of an expunction order was based on a very narrow hypothetical posed by Klentzman and not on the facts of Wade’s case.

Finally, regarding the incident that occurred in the Bradys’ driveway, Wade testified that he was not intoxicated and unruly, as the Article claimed. He testified that he complied with the DPS trooper and the incident ended without any citations or arrests being made. Wade also submitted a video recording of the DPS trooper’s stop of Cullen and himself, which showed the interaction between Cullen, Wade, and the trooper. Craig was not present at any point during Wade’s interaction with the DPS trooper.

Wade testified at trial that he was concerned that people were thinking poorly of him based on the Article. He testified that he knew other people were talking about the Article when his boss asked him to quit his job. He acknowledged that he was eventually able to return to his employment at the same organization. He also testified that his friends talked about the Article, but “[t]hey knew it wasn’t true because they know me.” However, his friends also let him know that other people in the community were talking about the Article and that other people believe that the Article made Wade “look like a criminal” whose father would “get [him] out of trouble.” Wade admitted that he had not personally spoken with any person who thought worse of him because of the Article’s publication.

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Wade also testified about how the Article’s publication changed his behavior: “Anytime I would meet somebody, I would wonder if it was somebody that had read this article and thought I was a bad person. And sometimes I still think that whenever I meet somebody.” He testified that he did not see a doctor about his condition after the Article’s publication because he is “not the kind of person to talk about [his] feelings” and he found it “embarrassing.” Regarding his mental anguish claims, the following exchange occurred:

[counsel]: Okay. You haven’t seen any psychologist, doctor, counselor, or anything about mental anguish?”

[Wade]: No.

[counsel]: So would it be fair to say [the Article] has not substantially interrupted your daily routine?

[Wade]: That’s not true.

. . . .

[counsel]: But you still haven’t gone to see anybody about it?

[Wade]: No. It doesn’t really affect me anymore, not like it did.

[counsel]: Well, if somebody could have helped you, don’t you think it was your obligation to go out and try to mitigate these damages?

[Wade]: Well, I just—I’m not the kind of person to do that. . . . I would rather stay to myself.

[counsel]: All right. So you didn’t do anything to try to help the situation?

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[Wade]: No. I hid.

Wade also testified that he gained thirty pounds and that the Article “actually affected [him] until about five years ago.”

Wade’s mother Jackie testified that the publication of the article “bothered him a lot.” She stated, “He seemed to get more withdrawn. He seemed to sort of stay to himself a lot. He has stayed around the house more. It seemed like he just put on some weight.” She also testified that Wade seemed depressed and talked to her about having weird dreams. She and Craig discussed the possibility of Wade seeing a therapist, but Wade refused.

Question 1 asked the jury: “Did the Article as a whole, and not merely individual statements contained in it, either by omitting certain material facts or by suggestively juxtaposing facts in a misleading way, create a substantially false and defamatory impression of Plaintiff Wade Brady?” It also defined “false,” “substantially true,” and “defamatory.” Additionally, the instruction stated, “[A] ‘defamatory’ statement is ‘libel per se’ if it falsely charges a person with the commission of a crime.” The jury answered, “Yes.”

In Questions 2 and 3, the jury found that Klentzman and The Star, respectively, knew or should have known, “in the exercise of ordinary care, that the impression created by the Article was false and had the potential to be defamatory.”

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Question 4 listed twenty-one specific “Complained of Statements” from the Article and asked: “Do you find that any of the individual statements of fact listed below from the Article . . . were defamatory concerning Wade Brady?” It again defined “defamatory” and “libel per se.” The jury answered, “Yes,” finding that at least one of the individual complained-of statements was defamatory concerning Wade.

Question 5 asked: “Were all the defamatory statements from the list of Complained of Statements referenced in Question

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4 substantially true at the time they were made as they related to Wade Brady?” The question defined “substantially true.” The jury answered, “No.”

In Questions 6 and 7, the jury found that Klentzman and The Star, respectively, knew or should have known, “in the exercise of ordinary care, that any of the Complained of Statements were false and had the potential to be defamatory.” Question 9 addressed the issue of damages, asking what sum of money would compensate Wade Brady for his injuries, if any, that were proximately caused as a result of the publishing of the Article. In relevant part, the jury was instructed, “If you have found in answering Questions 1 or 4 that there was “libel per se,” you must award at least nominal damages for injury to reputation in the past.” The jury awarded Wade $30,000 for past injury to his reputation and

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$20,000 for past mental anguish. The jury charge never asked the jury to make a separate determination regarding whether the Article or the complained-of statements were defamatory per se, it did not define “nominal damages,” and it did not instruct the jury on the issue of defamation per quod.

The jury further found, in Question 10, that “the harm to Plaintiff Wade Brady resulted from malice by Klentzman,” and in Question 11, it awarded Wade $30,000 in exemplary damages against Klentzman. In Question 12, the jury found that the harm to Wade did not result from “malice by The Star.” However, it found in Question 13 that the harm to Wade “resulted from malice attributable to The Star.” In Question 14, it awarded Wade $1,000,000 in exemplary damages against The Star. The trial court rendered judgment on the jury’s verdict, awarding Wade $50,000 in actual damages against Klentzman and The Star, jointly and severally; $30,000 in punitive damages against Klentzman; $200,000 in punitive damages against The Star; $47,741.50 in attorney’s fees associated with the interlocutory appeal taken in the case; costs; and pre- and post-judgment interest. This appeal followed.

Legal Rulings

In their first, second, and sixth issues, Klentzman and The Star argue that the trial court erred in making various legal rulings.

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A. Standard of Review

Appellate courts review legal determinations de novo. Reliance Nat’l Indem. Co. v. Advance’d Temps., Inc., 227 S.W.3d 46, 50 (Tex. 2007). “What might otherwise be a question of fact becomes one of law when the fact is not in dispute or is conclusively established.” Id. Because a trial court has no discretion in determining what the law is, which law governs, or how to apply the law, we review this category of rulings de novo. Okorafor v. Uncle Sam & Assocs., Inc., 295 S.W.3d 27, 38 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citing In re D. Wilson Constr. Co., 196 S.W.3d 774, (Tex. 2006) and Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).

However, when the ruling under review results from the trial court’s having resolved underlying facts, we must defer to the trial court’s factual resolutions and any credibility determinations. Id.; see also Reliance Nat’l Indem. Co., 227 S.W.3d at 50 (holding that factual determinations receive more deferential review based on sufficiency of evidence); Bentley v. Bunton, 94 S.W.3d 561, 597 (Tex. 2002) (“On questions of law we ordinarily do not defer to a lower court at all. But the sufficiency of disputed evidence to support a finding cannot be treated as a pure question of law when there are issues of credibility.”). Challenges to the legal sufficiency of the evidence may only be sustained when: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of

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evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is not more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).

B. “Of and Concerning” Wade Brady

In their second issue, Klentzman and The Star argue that the trial court erred in ruling that the Article and complained-of statements were “of and concerning” Wade. Specifically, Klentzman and The Star argue that trial court’s ruling that the Article as a whole was “of and concerning” Wade was “contrary to this Court’s prior ruling [in the interlocutory appeal] . . . that the gist of the Article was about Chief Deputy Craig Brady.” They also complain of the trial court’s ruling “that all of the Complained-of Statements were ‘of and concerning’ [Wade] when, on their face, many of the challenged statements did not refer to or concern him at all.”

To prevail on his defamation claim, Wade had to prove that Klentzman and The Star (1) published a statement (2) that was defamatory about him (3) while acting with negligence regarding the truth of the statement. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); see also Klentzman, 312 S.W.3d at 897, 907 (providing elements of libel against media defendant and holding that Wade Brady was not public figure, so he was not required to prove actual malice to prevail). We construe an allegedly defamatory publication as a whole in light of

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the surrounding circumstances and based upon how a person of ordinary intelligence would perceive it. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000); Main v. Royall, 348 S.W.3d 381, 390 (Tex. App.—Dallas 2011, no pet.). A “person of ordinary intelligence” is one who “exercises care and prudence, but not omniscience, when evaluating allegedly defamatory communications.” New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex. 2004); Main, 348 S.W.3d at 390.

“A defamatory statement must be directed at the plaintiff as an ascertainable person to be actionable.” Vice v. Kasprzak, 318 S.W.3d 1, 13 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citing Newspapers Inc. v. Matthews, 339 S.W.2d 890, 893 (Tex. 1960) and Cox Tex. Newspapers, L.P. v. Penick, 219 S.W.3d 425, 433 (Tex. App.—Austin 2007, pet. denied)). To maintain a defamation action, a plaintiff must be referenced in the complained-of statement. Id. (citing Newspapers, Inc., 339 S.W.2d at 893). Whether a plaintiff is referenced in a statement is a question of law. Id. A publication is “of and concerning the plaintiff” if persons who knew and were acquainted with him understood from viewing the publication that the defamatory matter referred to him. Id. (citing Allied Mktg. Grp., Inc. v. Paramount Pictures Corp., 111 S.W.3d 168, 173 (Tex. App.—Eastland 2003, pet. denied) and Newspapers, Inc., 339 S.W.2d at 894).

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It is not necessary that the plaintiff be specifically named in the communication to be defamatory, but it must be clear to those who know and are acquainted with him that the defamatory statement is directed to him. Id. (citing Penick, 219 S.W.3d at 433 and Allied Mktg. Grp., 111 S.W.3d at 173). The plaintiff need not prove that the defendant intended to refer to him. Id. “A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably, understands that it was intended to refer.” Id. (citing RESTATEMENT (SECOND) OF TORTS § 564 (1977)). The false statement must point to the plaintiff and no one else. Id.

Here, the Article, including some of the complained-of statements, mentioned Wade by name. The Article recounted, over the space of several paragraphs, details regarding the theft of Wade’s cell phone, the circumstances surrounding his MIP charge, and details regarding another interaction Wade had with a DPS trooper in his driveway. The Article mentioned Wade by name more than once, mentioned his MIP trial, and stated that an expunction order pertaining to his MIP charge had been issued. These statements point to Wade and no one else. See id. (holding that publication is “of and concerning” plaintiff if it can be understood from viewing publication that defamatory matter referred to plaintiff).

The trial court’s conclusion that the Article and complained-of statements were “of and concerning” Wade does not conflict with this Court’s prior

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interpretation of the “gist” of the Article. In the interlocutory appeal, this Court stated:

The target of the Article is Chief Brady and the subject of the Article, albeit with many extraneous details and digressions, is the alleged demand by Chief Brady for deputies to turn over certain audiotapes and the propriety of such alleged action. To the extent that the Article addresses Wade’s incidents with the law, the emphasis is on Wade’s father’s reaction to those incidents, and not on Wade. Construing the Article as a whole, in light of the surrounding circumstances and based upon how a person of ordinary intelligence would perceive it, we conclude that the gist of the Article is that Chief Brady, in an effort to help his son, Wade, abused his official position by intervening on his son’s behalf in an effort to “suppress” evidence, specifically, by intimidating and coercing the deputies who issued Wade a ticket and illegally demanding and requiring them to turn over to him audiotapes related to the incident.

Although many details regarding Wade’s encounters with law enforcement appear in the Article, the “gist” of the Article is not Wade’s alleged misdeeds; Wade is a secondary character, portrayed as the beneficiary of his father’s purportedly improper actions, whose dealings with the law provided the catalyst for his father’s alleged misconduct.

Klentzman, 312 S.W.3d at 901. The Court specifically “[did] not address whether, and, if so, to what extent, the Article was ‘of and concerning’ Wade.” Id. at 901 n.16. We then affirmed the trial court’s denial of Klentzman’s motion for summary judgment on the basis that Wade raised a genuine issue of material fact as to whether the “gist” of the Article was false and as to whether the “gist” of the Article was more damaging to Wade’s reputation that the truth. Id. at 901–03.

Thus, our prior opinion issued in the interlocutory appeal reflected that both Wade Brady and Chief Deputy Craig Brady were referenced in the Article, and the

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opinion contemplated Wade’s ability to establish Klentzman’s and The Star’s liability for defamation of him in the Article. The fact that the Article also discussed the actions of another person in addition to Wade does not prohibit it from being defamatory concerning Wade. See Sellards v. Express-News Corp., 702 S.W.2d 677, 680 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.) (holding that allegedly defamatory article about car crash was “of and concerning” one of several passengers, even though she was not mentioned by name, and stating, “When a group is named and the plaintiff is a readily identifiable member of the group, a cause of action for defamation exists if those who know and are acquainted with the plaintiff understand the article refers to the plaintiff”).1 Thus, the trial court did not err in concluding that the Article was “of and concerning” Wade Brady. We overrule Klentzman and The Star’s second issue.

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1 Klentzman and The Star also argue that the trial court erred in concluding “that all of the complained-of statements were ‘of and concerning’ Brady when, on their face, many of the challenged statements did not refer to or concern him at all.” Specifically, they identify only twelve of the twenty-one complained-of statements listed in Question 4, which asked whether “any” of the individual complained-of statements were defamatory concerning Wade Brady. However, they do not assign any error in this issue to the other statements included in the charge, each of which could have served as an independent basis to support the jury’s answer. Generally speaking, an appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment. Britton v. Tex. Dept. of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.). When an appellant fails to challenge an independent ground supporting the ruling or judgment in question, we must accept the validity of the unchallenged independent ground and conclude that any error in the challenged grounds is harmless because the unchallenged ground fully supports the complained-of ruling or judgment. Id.

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C. Matter of Public Concern

In their first issue, Klentzman and The Star argue that the Article as a whole and the complained-of statements reported on a matter of public concern, and, thus, Wade faced a higher burden of proof in order to obtain damages on his claim. Klentzman and The Star argue that the trial court erred in concluding that the Article was not reporting a matter of public concern.

When an allegedly defamatory statement involves a matter of public concern, even a private plaintiff must meet the higher standard of proving actual malice in order to recover any presumed or punitive damages against a media defendant. Klentzman, 312 S.W.3d at 898; see also Philadelphia Newpapers, Inc. v. Hepps, 475 U.S. 767, 776–77, 106 S. Ct. 1558, 1564 (1986) (holding that common-law presumption that defamatory speech is false cannot stand when plaintiff sues media defendant for speech of public concern); Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S. Ct. 2997, 3011 (1974) (“[W]e hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.”). This is so because “speech on ‘matters of public concern’” is “at the heart of the First Amendment’s protection,” and it is “more than self-expression; it is the essence of self-government.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758–59, 105 S. Ct. 2939, 2944–45 (1985). “Accordingly, the

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[United States Supreme Court] has frequently reaffirmed that speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.” Id. at 759, 105 S. Ct. at 2945. “In contrast, speech on matters of purely private concern is of less First Amendment concern” because “there is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of self-censorship by the press.” Id. at 759–60, 105 S. Ct. 2945–46.

“[W]hether . . . speech addresses a matter of public concern must be determined by [the expression’s] content, form, and context . . . as revealed by the whole record.” Id. at 761–62, 105 S. Ct. at 2946–47 (holding that petitioner’s credit report did not involve matter of public concern because “[i]t was speech solely in the individual interest of the speaker and its specific business audience”; was “wholly false and clearly damaging to the victim’s business reputation”; and did not “involve[] any ‘strong interest in the free flow of commercial information’”) (quoting Connick v. Myers, 461 U.S. 138, 147–48, 103 S. Ct. 1684, 1690 (1983)). Speech seeking to “bring to light actual or potential wrongdoing or breach of public trust” on the part of a government official is speech on a matter of public concern that is protected by the First Amendment. Connick, 461 U.S. at 148, 103 S. Ct. at 1691; Klentzman, 312 S.W.3d at 900 n.15; see also Hepps, 475

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U.S. at 769, 776, 106 S. Ct. at 1560, 1563 (holding that newspaper’s articles asserting that private businessman had links to organized crime and used those links to influence governmental processes were on issues of public concern); Brawner v. City of Richardson, 855 F.2d 187, 191–92 (5th Cir. 1988) (holding that alleged misconduct by public officials, particularly by law enforcement officials, is matter of public concern).

Klentzman and The Star argue, correctly, that an article holding a public official accountable in the exercise of his authority is a matter of public concern. However, Chief Deputy Craig Brady was not a party to this lawsuit and does not challenge the portions of the Article that referred to him or to his exercise of authority in this case. As we have already held, the Article also contained statements “of and concerning” Wade, and this Court’s own previous interpretation of the gist of the Article included references to Wade’s behavior and actions. The details of the theft of Wade’s cell phone, the circumstances surrounding his MIP charge and the resulting legal proceedings, and his later interaction with a DPS trooper in his driveway are not matters of public concern. See TSM AM-FM TV v. Meca Homes, Inc., 969 S.W.2d 448, 453 (Tex. App.—El Paso 1998, pet. denied) (“Private concerns do not become public controversies because they attract attention. Rather, a public controversy is a dispute that in fact has received public

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attention because its ramifications will be felt by persons who are not direct participants.”).

Nor did Wade’s private concerns become public controversies because they were discussed in an article that also related a public controversy. The Article contained details of Wade’s MIP charge that were not necessary to discuss Chief Deputy Craig Brady’s resulting actions. This is in contrast to cases like Connick, Hepps, or Brawner, in which the involvement of non-public figures, if mentioned at all, was limited to only the facts necessary to explain the actions of governmental officials or other entities of public concern. Connick, 461 U.S. at 145, 148, 103 S. Ct. at 1689, 1690–91; Hepps, 475 U.S. at 769, 776, 106 S. Ct. at 1560, 1563; Brawner, 855 F.2d at 191–92. The Article also recounted two other incidents—the theft of Wade’s cell phone and his interaction with the DPS trooper in his driveway—that were not connected with Chief Deputy Brady’s alleged “Roadside Suppression Hearings.” It is these details that are at the heart of Wade’s defamation lawsuit, and allowing redress for the harmful publication of these types of statements when untruthful would not present a “threat to the free and robust debate of public issues.” See Dun & Bradstreet, Inc., 472 U.S. at 758–60, 105 S. Ct. at 2944–46.

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We conclude that the trial court did not err in detrmining that the statements in the Article relating to Wade Brady were not statements that raised issues of public concern.2

We overrule Klentzman and The Star’s first issue.

D. Privilege

In their sixth issue, Klentzman and The Star argue that the trial court erred in failing to rule that the Article and complained-of statements were privileged under the “Fair Report Privilege” or the “Neutral Reportage Privilege.” They argue that the Article as a whole and the individual complained-of statements were privileged, and, thus, Wade was required to establish “actual malice” by clear and convincing evidence to overcome the privilege. The Star raised the affirmative defense of qualified privilege based on Civil Practice and Remedies Code section 73.002(b)(1)(A) and (b)(2). Section 73.002 provides:

(a) The publication by a newspaper or other periodical of a matter covered by this section is privileged and is not a ground for a libel action. . . .

(b) This section applies to:

(1) a fair, true, and impartial account of:

________________________

2 Klentzman and The Star also argue that the trial court’s ruling that the speech at issue here was not a matter of public concern “led to three additional errors in the trial court’s Charge, which in turn resulted in an improper judgment.” Because we have concluded that the trial court did not err on this basis, we do not address these arguments.

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(A) a judicial proceeding . . . ; and

(2) reasonable and fair comment on or criticism of an official act of a public official or other matter of public concern published for general information.

TEX. CIV. PRAC.& REM. CODE ANN. § 73.002 (Vernon 2005).

b> The privileges outlined by section 73.002 are similar to the privilege recognized in the Restatement (Second) of Torts, which provides that “[t]he publication of a defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.” RESTATEMENT (SECOND) OF TORTS § 611 (1977); see also Denton Publ’g Co. v. Boyd, 460 S.W.2d 881, 883–84 (Tex. 1970) (citing, in part, Restatement section 611 in analyzing privilege under predecessor statute to Civil Practice and Remedies Code section 73.002); Freedom Commc’ns, Inc. v. Sotelo, No. 11-05-00336-CV, 2006 WL 1644602, at *3 (Tex. App.—Eastland June 15, 2006, no pet.) (mem. op.) (discussing Restatement section 611). The privilege “extends to the report of . . . any action taken by any officer or agency of the government of the United States, or of any State or of any of its subdivisions.” RESTATEMENT (SECOND) OF TORTS § 611 cmt. d (1977); Sotelo, 2006 WL 1644602, at *3. However, “[t]he reporter is not privileged under this Section to make additions of his own that would convey a defamatory impression.”

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RESTATEMENT (SECOND) OF TORTS § 611 cmt. f (1977); Sotelo, 2006 WL 1644602, at *3.

In Denton Publishing, the supreme court held that the newspaper article in question would be privileged under the predecessor statute to Section 73.002 “as long as it purported to be, and was, only a fair, true and impartial report of what was stated at the meeting, regardless of whether the facts under discussion at such meeting were in fact true, unless the report was made with actual malice.” 460 S.W.2d at 883.

Where the facts are undisputed and the language used in the publication is not ambiguous, the question of privilege is ordinarily one of law for the court. Id. at 884; Sotelo, 2006 WL 1644602, at *3. To determine whether a media defendant’s account of a judicial proceeding is “fair and impartial,” it must be interpreted in the sense that the ordinary reader would understand; the statutory requirement that the published account be true is satisfied if it is substantially correct. Tex. Monthly, Inc. v. Transamerican Natural Gas Corp., 7 S.W.3d 801, 805 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The substantial truth test involves consideration of whether the alleged defamatory statement was more damaging to the plaintiff’s reputation in the mind of the average listener than a truthful statement would have been. Id. Although it may greatly exaggerate the libel-plaintiff’s alleged misconduct that was the subject of a judicial proceeding, an

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article is substantially true if an ordinary reader would not attach any more opprobrium to the plaintiff’s conduct merely because of the exaggeration. Id. at 805–06. The defendant need not prove the truth of the allegations that it repeats to its readers; rather, it need only prove that the statements in the article are a “fair, true, and impartial” account of the trial record. Id. at 806.

Thus, an article is a “fair, true, and impartial” account “in reference to the court record . . . [i]f the effect on the reader’s mind would be the same [and] any difference between the statements made in the record and the media account of the proceeding should be disregarded.” Id. at 807. Under section 73.002(b)(2), the proper comparison should be between a news report or broadcast and an otherwise unprivileged record of the state or federal government. Sotelo, 2006 WL 1644602, at *5.

In the absence of a privilege, malice is inferred from the fact that a defamatory statement is false. Thomas-Smith v. Mackin, 238 S.W.3d 503, 509 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Conversely, where a defamatory statement is privileged, the inference of malice is overcome, and it becomes the plaintiff’s burden to establish malice by evidence other than the falsity of the statement, if any. Id.; see Humane Soc’y of Dallas v. Dallas Morning News, L.P., 180 S.W.3d 921, 923 (Tex. App.—Dallas 2005, no pet.).

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Here, the Article contains references to Wade’s MIP charge, his ensuing trial on that charge, and an expunction order.

However, it does not state at any point that a jury acquitted him of the MIP charge. Because the Article omitted that key information regarding the judicial proceedings, it was not a fair, true, and complete account as it related to Wade. Interpreted in the sense that the ordinary reader would understand, this omission—that Wade was acquitted of the charge against him—was more harmful to Wade’s reputation in the mind of the average listener than a truthful statement would have been. See Tex. Monthly, Inc., 7 S.W.3d at 805.

The Article also recounts two other interactions between Wade Brady and local law enforcement that were not related to the MIP proceeding or any alleged exercise of authority on Chief Deputy Brady’s part. And, as we have already discussed, the Article also contains descriptions of Wade Brady’s behavior in these incidents that are not matter of public concern.3 See also Klentzman, 312 S.W.3d at 905 (“A person does not become a public figure . . . because his actions become a matter of controversy as a result of the media defendant’s actions.”).

Thus, we disagree with Klentzman and The Star that they satisfied their burden of establishing their entitlement to privilege under section 73.002(b)(1)(A).

____________________

3 We further observe that the question of whether the privilege would apply to the portions of the Article relating to the conduct of Chief Deputy Craig Brady is not before us for consideration.

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We conclude that the trial court did not err in determining that the privileges invoked by Klentzman and The Star did not apply to the statements that were the basis of Wade’s allegations. We overrule their sixth issue.

Charge Error

In their third, fourth, and fifth issues, Klentzman and The Star argue that there was error in the jury charge.

A. Standard of Review

We review a trial court’s decision to submit or refuse a particular instruction under an abuse of discretion standard. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles. Moss v. Waste Mgmt. of Tex., Inc., 305 S.W.3d 76, 81 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). A trial court has wide discretion in submitting instructions and jury questions. Id. This discretion is subject only to the requirement that the questions submitted must (1) control the disposition of the case; (2) be raised by the pleadings and the evidence; and (3) properly submit the disputed issues for the jury’s determination. TEX. R. CIV. P. 277, 278; Moore v. Kitsmiller, 201 S.W.3d 147, 153 (Tex. App.—Tyler 2006, pet. denied); see also Shupe, 192 S.W.3d at 579 (“When a trial court refuses to submit a requested instruction on an issue raised by the pleadings and evidence, the question on appeal

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is whether the request was reasonably necessary to enable the jury to render a proper verdict.”).

To determine whether an alleged error in the jury charge is reversible, we must consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety to determine if the trial court abused its discretion. Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 653 (Tex. App.—Dallas 2002, pet. denied) (citing Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 555 (Tex. 1986) (op. on reh’g)). We reverse if the trial court denied a proper submission of a valid theory of recovery raised by the pleadings and the evidence. Id. (citing Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex. 1992) (per curiam)). Otherwise, we do not reverse unless harm results, i.e., unless the error probably caused the rendition of an improper judgment. Id. (citing TEX. R. APP. P. 44.1(a)(1)); see also Shupe, 192 S.W.3d at 579 (“Error in the omission of an issue is harmless ‘when the findings of the jury in answer to other issues are sufficient to support the judgment.’”).

B. Order of Questions

In their third issue, Klentzman and The Star argue that the trial court erred in failing to condition Jury Question 1—regarding the defamatory impression created by the Article as a whole—on a finding that the complained-of statements were true or substantially true. Stated another way, Klentzman and The Star argue that a

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charge on defamatory impression is proper only when the individual complained-of statements are literally or substantially true.

4

Klentzman and The Star cite Turner v. KTRK Television, Inc. to support their argument. In Turner, mayoral candidate Sylvester Turner sued a news reporter and television station for libel relating to the broadcast of a story questioning Turner’s role in an attempted multi-million dollar life insurance scam. 38 S.W.3d 103, 109 (Tex. 2000). The supreme court rejected the defendants’ argument that Texas law does not recognize a cause of action for defamation based on a publication as a whole, reasoning that “the omission of material facts or misleading presentation of true facts” can render an account “just as false as an outright misstatement.” Id. at 115. It further stated, “Just as the substantial truth doctrine precludes liability for a publication that correctly conveys a story’s ‘gist’ or ‘sting’ although erring in the details, these cases permit liability for the

________________________

4 Wade argues in his brief on appeal that Klentzman and The Star waived this complaint by failing to object to the charge on this ground. However, Klentzman and The Star’s written objections to the charge included an objection “to the order of questions: defamation instructions and question should be placed before defamatory impression instructions and question.” In their written objections, Klentzman and The Star argued that “the question and instructions for defamation should be submitted to the jury first, before the question and instructions for defamatory impression. A finding that the complained-of statements . . . create a false and defamatory impression before they are determined to be false and/or defamatory is improper.” Accordingly, this complaint is properly before the Court. See Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007) (holding that timely objection to make trial court aware of complaint is required to preserve complaint about error in charge for consideration on appeal).

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publication that gets the details right but fails to put them in the proper context and thereby gets the story’s ‘gist’ wrong.” Id. The supreme court concluded that “[b]y omitting key facts and falsely juxtaposing others, the broadcast’s misleading account cast more suspicion on Turner’s conduct than a substantially true account would have done.” Id. at 118.

Nothing in the supreme court’s analysis in Turner indicates that a plaintiff cannot recover for both the defamatory impression caused by an article as a whole and for individual false and defamatory statements. The Turner court concluded that Texas law precludes liability when a publication correctly conveys a story’s “gist” or “sting” although it errs in the details. Id. at 115. This statement of law implies that a defamation plaintiff must demonstrate that a story’s gist was defamatory as part of a suit seeking liability for errors in the details. See id. The fact that the Turner court also recognized a cause of action based on a publication that gets the details right but fails to put them in the proper context, and thereby gets the story’s gist wrong, does not mandate a conclusion that a trial court or jury must first find that the individual statements are substantially true. See id.; see also Neely v. Wilson, No. 11-0228, 2013 WL 3240040, at *7 (Tex. June 28, 2013) (“Assessing a broadcast’s gist is crucial. A broadcast with specific statements that err in the details but that correctly convey the gist of a story is substantially true.”).

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Klentzman and The Star also rely on Wheeler v. New Times, Inc., 49 S.W.3d 471 (Tex. App.—Dallas 2001, no pet.). However, Wheeler is factually distinguishable from the present case. In Wheeler, the court stated that “appellants [plaintiffs] contend the facts are inaccurate and the article was not substantially true,” but they did not allege, as in Turner, that the “article ‘got the details right but fail[ed] to put them in the proper context, thereby getting the ‘gist’ wrong.’” Id. at 476. Thus, the court in Wheeler determined that Turner was not controlling. Id.

Here, however, Wade alleged both that individual statements were false and defamatory and that the Article omitted key facts and juxtaposed other facts in such a way that it created a defamatory impression in the mind of a reasonable reader. These allegations are different from those made in Wheeler. Furthermore, the jury found both that the Article created a defamatory impression (Question 1) and that the individual complained-of statements were both defamatory of Wade Brady (Question 4) and were not substantially true as they related to Wade Brady (Question 5). Klentzman and The Star have failed to demonstrate that their proposed jury charge—submitting Question 5, addressing the substantial truth of the individual complained-of statements, before Question 1, addressing the defamatory impression created by the Article as a whole—was required by a valid legal theory. See Rosell, 89 S.W.3d at 653 (holding that reversal is warranted

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where trial court denies proper submission of valid theory of recovery raised by pleadings and evidence). Considering the pleadings of the parties, the evidence presented at trial, and the charge in its entirety, we conclude that the trial court did not abuse its discretion in submitting these questions in the order that it did. See id.

We overrule Klentzman and The Star’s third issue.

C. Libel Per Se and Damages

In their fourth issue, Klentzman and The Star argue that the trial court erred in submitting a libel per se instruction in Jury Questions 1, 4, and 9 because libel per se is a question of law for the Court to determine.

Although the issue of whether statements are defamatory per se is generally a legal question, a trial court “may . . . pass the inquiry to the jury if it determines that an ambiguity exists about the meaning and effect of the words or that a predicate fact question remains about whether the statements were published or were false.” Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 581 (Tex. App.—Austin 2007, pet. denied); see also Hancock v. Variyam, 400 S.W.3d 59, 66 (Tex. 2013) (“If the [trial] court determines that an ordinary reader could only view the statement as defamatory and further concludes that the statement is defamatory per se, it should so instruct the jury and have the

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jury determine damages. If the court determines that a statement is ambiguous or of doubtful import, the jury should determine the statement’s meaning.”).

We held in our opinion in the related interlocutory appeal that genuine issues of material fact existed on the question of the falsity of the statements in the Article. Klentzman, 312 S.W.3d at 901–03. Thus, it was proper for the jury, as the fact-finder, to consider whether the Article and complained-of statements were defamatory, and if so, whether they were defamatory per se. See Moore, 201 S.W.3d at 153 (holding that trial court has obligation to submit to jury questions that control disposition of case and are raised by pleadings and evidence). We conclude that the trial court did not abuse its discretion in submitting a libel per se instruction to the jury to aid it in determining whether the Article or complained-of statements were defamatory. See Moss, 305 S.W.3d at 81 (holding that trial court has wide discretion in submitting instructions and jury questions).

Klentzman and The Star further argue that the trial court improperly combined libel per se and libel per quod in Questions 1 and 4, making it impossible to determine whether the jury found the complained-of statements to be libel per se or libel per quod, impacting the level of proof required for damages.5

_______________________________

5 Wade again argues that Klentzman and The Star waived this issue by failing to object on this basis before the trial court’s charge was read and submitted to the jury. However, the record reflects that they submitted their proposed, separate charge on libel per se that was refused by the trial court and that they objected to Question 9, the damages question ultimately submitted to the jury.

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Defamatory statements are either defamatory per se or defamatory per quod. Hancock, 400 S.W.3d at 63; Main v. Royall, 348 S.W.3d 381, 390 (Tex. App.—Dallas 2011, no pet.). “Historically, defamation per se has involved statements that are so obviously hurtful to a plaintiff’s reputation that the jury may presume general damages, including for loss of reputation and mental anguish.” Hancock, 400 S.W.3d at 63–64 (citing Bentley, 94 S.W.3d at 604). These include statements that (1) unambiguously charge a crime, dishonesty, fraud, rascality, or general depravity, or (2) are falsehoods that injure one in his office, business, profession, or occupation. Main, 348 S.W.3d at 390. If the court must resort to innuendo or extrinsic evidence to determine that the statement was defamatory, then it is libel per quod and requires proof of injury and damages. Id. Statements that are defamatory per quod are actionable only upon allegation and proof of damages. Tex. Disposal Sys. Landfill, Inc., 219 S.W.3d at 580. “Thus, before a plaintiff can recover for defamation per quod, the plaintiff must carry his burden of proof on both the existence of and amount of damages.” Id.

Recently, the Texas Supreme Court addressed the issue of defamation per se and damages. It summarized the current law, holding that, although Texas law has allowed juries to presume the existence of general damages without proof of actual injury in defamation per se cases, “the Constitution only allows juries to presume the existence of general damages in defamation per se cases where: (1) the speech

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is not public, or (2) the plaintiff proves actual malice.” Hancock, 400 S.W.3d at 65–66 (citing Dun & Bradstreet, Inc., 472 U.S. at 761, 105 S. Ct. at 2946 and Gertz, 418 U.S. at 349–50, 94 S. Ct. at 2997). The supreme court further held, “Awards of presumed actual damages are subject to appellate review for evidentiary support.” Id. at 66. The supreme court analyzed the claims of the parties, determined that the defendant’s statements were not defamatory per se, and concluded, “[W]e need not decide whether the statements were defamatory because—even if they were as a matter of law—there is no evidence of actual damages.” Id. at 66–68.

Essentially, Klentzman and The Star argue that some damages may be presumed in cases of defamation per se, and so an instruction on nominal damages, presumably in light of a separate finding that this case involved defamation per se, would have been appropriate. See Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012) (“[E]ven if some mental anguish can be presumed in cases of defamation per se, . . . the law does not presume any particular amount of damages beyond nominal damages.”). Here, the jury did not award nominal damages—it awarded Wade $50,000 in general damages as the amount that “would fairly and reasonably compensate [him] for his injuries, if any.” Hancock, 400 S.W.3d at 65 (holding that nominal damages are defined as trivial sum of money, such as $1, awarded to litigant who has established his cause of action but has not established entitlement

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to compensatory damages; actual or compensatory damages include general damages, such as loss of reputation or mental anguish). Thus, assuming, without deciding, that an instruction on nominal damages would have been appropriate, its omission was not reversible error because it did not probably cause the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1); Rosell, 89 S.W.3d at 653; see also Shupe, 192 S.W.3d at 579 (holding that error in omission of issue is harmless when finding of jury in answer to other issues is sufficient to support judgment); Waste Mgmt. of Tex. v. Tex. Disposal Sys. Landfill, Inc., No. 03-10-00826-CV, 2012 WL 1810215, at *4 (Tex. App.—Austin May 18, 2012, pet. granted) (mem. op.) (“A question that requests fair and reasonable damages cannot be said to direct a jury to award excessive damages or to allow the jury to award any amount regardless of the evidence.”).

Furthermore, regardless of whether the jury was permitted to presume damages, we are required to review the evidence supporting an award of actual damages. See Salinas, 365 S.W.3d at 320; see also Hancock, 400 S.W.3d at 66–68 (stating that “[a]wards of presumed actual damages are subject to appellate review for evidentiary support” and conducting review of evidence supporting award of actual damages). Thus, the distinction between defamation per se and defamation per quod is immaterial here because the jury’s damages award did not rest solely on a presumption of harm—as indicated by its award of actual, rather than nominal

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damages—and the damages award is subject to appellate review for evidentiary support. See Memon v. Shaikh, 401 S.W.3d 407, 421–22 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“Although Memon contends that these statements are not defamatory per se, the distinction between statements that are defamatory per se and those that are defamatory per quod makes little difference here, because the jury’s assessment of damages does not rest solely on a presumption of harm.”). Again, any error in the charge was not harmful because it did not probably cause the rendition of an improper judgment.

We overrule Klentzman and The Star’s fourth issue.

Sufficiency of the Evidence

In their seventh, eighth, and ninth issues, Klentzman and The Star argue that the evidence was insufficient to support the jury’s findings that the gist of the Article and the complained-of statements were not substantially true and that Brady was entitled to $20,000 for past mental anguish and $30,000 for past injury to his reputation.

A. Standard of Review

In a legal sufficiency, or “no-evidence” review, we determine whether the evidence would enable reasonable and fair-minded people to reach the verdict under review. City of Keller, 168 S.W.3d at 827. In conducting this review, we credit favorable evidence if a reasonable fact-finder could, and we disregard

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contrary evidence unless a reasonable fact-finder could not. Id. We consider the evidence in the light most favorable to the finding under review and indulge every reasonable inference that would support it. Id. at 822. We must sustain a no-evidence contention only if (1) the record reveals a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810; Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). “Anything more than a scintilla of evidence is legally sufficient to support the finding.” Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).

In reviewing a challenge to the factual sufficiency of the evidence, we “must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam)). We analyze a complaint of excessive damages using the same standard of review applicable to other factual-sufficiency challenges. Memon, 401 S.W.3d at 417 (citing Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998)).

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The fact-finder is the sole judge of witnesses’ credibility; it may choose to believe one witness over another, and a reviewing court cannot impose its own opinion to the contrary. City of Keller, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468. Because it is the fact-finder’s province to resolve conflicting evidence, we must assume that it resolved all conflicts in accordance with the verdict if reasonable people could do so. City of Keller, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468.

B. Substantial Truth

In their seventh issue, Klentzman and The Star argue that the evidence was insufficient to support the jury’s finding in Question 1 that “the Article as a whole, and not merely individual statements contained in it, either by omitting certain material facts or by suggestively juxtaposing facts in a misleading way” created a substantially false and defamatory impression of Wade. Klentzman and The Star argue that there was no evidence or insufficient evidence that the impression created by the Article regarding Wade was substantially false.

As part of this issue, Klentzman and The Star also argue that Wade bore the burden of proving falsity because the Article addressed a matter of public concern. However, we have already concluded that the statements regarding Wade did not involve a matter of public concern, and, thus, the burden for establishing the substantial truth of the Article fell on Klentzman and The Star. See e.g., Dun &

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Bradstreet, Inc., 472 U.S. at 758–60, 105 S. Ct. at 2944–46; Klentzman, 312 S.W.3d at 898. Nevertheless, the evidence was sufficient to support the jury’s determination that the gist conveyed by the Article was not substantially true. Courts use the “substantial truth” test to determine whether a statement is false. Klentzman, 312 S.W.3d at 899. Under this doctrine, “minor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting’” of the charge is justified. Id.; see Neely, 2013 WL 3240040, at *7. A statement is substantially true, and thus not actionable, if, in the mind of the average person who reads the statement, the allegedly defamatory statement is not more damaging to the plaintiff’s reputation than a truthful statement would have been. Klentzman, 312 S.W.3d at 899; see Neely, 2013 WL 3240040, at *7.

Wade Brady argued that the Article created a defamatory impression of him by omitting material facts about his MIP charge and other incidents recounted in the Article and by juxtaposing certain facts in a way that would mislead a person of ordinary intelligence. These allegations center around three incidents: (1) the cell phone theft; (2) Wade’s charge for minor-in-possession; and (3) Wade and Cullen’s interaction with a DPS trooper in their driveway approximately one week after Wade received his MIP ticket. The article was entitled, “Deputy Brady’s Tape Collecting Called ‘Roadside Suppression’” and purported to discuss Craig Brady’s allegedly improper coercion of FBCSO’s deputies related to Wade’s MIP

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citation. The Article discussed Wade’s trial, the alleged “roadside suppression hearings” during which Craig Brady and other officials with the FBCSO met with the deputies involved with the MIP citation, and an order of expunction filed in the justice court. The Article indicated that the expunction order was of questionable validity and included a statement that the MIP deputies were “intimidated” when Craig Brady “notified them that he had an order of expunction and demanded any and all audio tapes or notes from that incident in their possession.”

The Article failed to state at any point that Wade had been acquitted by a jury on the MIP charge, and the facts were juxtaposed in a way that made it seem that Craig Brady interfered with the presentation of evidence at Wade’s MIP trial. The testimony of both Craig Brady and all of the officers involved indicated that Craig Brady never attempted to influence the MIP proceedings against Wade and that Craig Brady’s involvement in implementing the expunction order following Wade’s acquittal was limited. The Article also related the circumstances surrounding the theft of Wade’s cell phone in May 2000 and the incident occurring in Wade’s driveway approximately one week after the MIP citation. Both of these incidents were unrelated to the MIP ticket and had occurred years before the Article was published in January 2003, but their inclusion strengthened the portrayal of Wade Brady as someone who had repeated trouble with the law and depended on his father to help him.

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Thus, the evidence demonstrated that the Article’s failure to report Wade’s acquittal on the MIP charge juxtaposition of other, non-related incidents between Wade and local law enforcement was more damaging to Wade’s reputation in the mind of the average reader than the truth would have been. See Neely, 2013 WL 3240040, at *7. We conclude that the evidence was sufficient to support the jury’s conclusion that the gist conveyed by the Article was not substantially true.

We overrule Klentzman and The Star’s seventh issue.6

C. Damages

In their eighth issue and ninth issues, Klentzman and The Star argue that the evidence supporting the jury’s award of $20,000 in past mental anguish damages and $30,000 for past injury to Wade’s reputation was insufficient. In Bentley, the supreme court considered whether evidence supported any award of actual damages and, alternatively, whether the amount of damages awarded was supported by the record. Regarding the amount of damages awarded, we are “authorized to determine whether damage awards are supported by insufficient evidence—that is, whether they are excessive or unreasonable.”

_______________________

6 Klentzman and The Star also argue that the evidence was insufficient to support the jury’s finding, in Question 4, that the individual complained-of statements were not substantially true and were defamatory of Wade. However, because the jury’s finding in Question 1 on the defamatory impression created by the Article as a whole supports the jury’s verdict, we need not analyze the remainder of this issue. See Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000) (holding that plaintiff can bring claim for defamation when discrete facts are published “in such a way that they create a substantially false and defamatory impression by omitting material facts or juxtaposing facts in a misleading way”).

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Bentley, 94 S.W.3d at 606. Although it is impossible to calculate the exact amount of injury to reputation, which requires that the jury be given a measure of discretion in finding damages, there must be some evidence to justify the amount awarded. Id. (“Juries cannot simply pick a number and put it in the blank. They must find an amount that, in the standard language of the jury charge, ‘would fairly and reasonably compensate’ for the loss.”).

Regarding mental anguish damages, “[t]here must be both evidence of the existence of compensable mental anguish and evidence to justify the amount awarded.” Hancock, 400 S.W.3d at 68. “Generally, an award of mental anguish damages must be supported by direct evidence that the nature, duration, and severity of mental anguish was sufficient to cause, and caused, either a substantial disruption in the plaintiff’s daily routine or a high degree of mental pain and distress.” Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011). Even when an occurrence is of the type for which mental anguish damages may be awarded, “evidence of the nature, duration, and severity of the mental anguish is required.” Id.; see also Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 95 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (stating that, while Texas law no longer requires physical manifestation of mental anguish, plaintiff “must produce direct evidence of the nature, duration, and severity of the mental anguish, establishing a substantial disruption in his or her daily routine”). The evidence

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must demonstrate that the plaintiff experienced “more than mere worry, anxiety, vexation, embarrassment, or anger.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). “[G]eneralized, conclusory descriptions of how an event affected a person are insufficient evidence on which to base mental anguish damages.” Guerra, 348 S.W.3d at 232 (citing City of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex. 1997) (“The invasion of the same legal right may lead to extreme anguish in one person while causing essentially no emotional damage to another.”)).

Here, Wade testified that he first became aware that the Article affected the way people in the community viewed him when he was asked to quit his job. He also testified that his friends told him that people were discussing the Article and said that it made him “look like a criminal” whose father would “get[] [him] out of trouble.” Wade testified that every time he met a new person he “would wonder if it was somebody that had read this article and thought [he] was a bad person.” He did not seek medical or mental health care because he found the situation “embarrassing” and because he was “not the kind of person to talk about [his] feelings.” Instead, he “hid.” His mother Jackie also testified about the effect the Article had on Wade’s life, stating that he became more withdrawn and did not socialize as much as he had prior to the Article’s publication. Jackie also testified that Wade gained weight and had strange dreams following the Article’s publication.

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There is sufficient evidence supporting the jury’s award of $30,000 for past injury to Wade’s reputation—he was asked to quit his job as a result of the Article, people in the community read and discussed the Article, stating that it made him “look like a criminal,” and it affected his social life. See Gertz, 418 U.S. at 349–50, 94 S. Ct. at 3011–12 (explaining that defamation damages are not confined to “out-of-pocket loss”); Exxon Mobil Corp. v. Hines, 252 S.W.3d 496, 501 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (holding that actual damages in defamation action can include injury to character or reputation). Thus, we overrule Klentzman and The Star’s ninth issue.

However, the evidence is not sufficient to support the jury’s award of damages for mental anguish. Although Wade testified that he was greatly upset by the Article for several years, and his mother testified that he became more withdrawn, put on weight, and had strange dreams, this is not evidence demonstrating that Wade experienced “more than mere worry, anxiety, vexation, embarrassment, or anger.” Woodruff, 901 S.W.2d at 444. At most, Wade and Jackie’s testimony amounted to “generalized, conclusory descriptions” of how the Article’s publication affected Wade, which is insufficient evidence on which to base mental anguish damages. See Guerra, 348 S.W.3d at 232 (“The daughters’ statements about their emotions, even combined with the statements of the other witnesses, did not support the jury finding that the events caused any of the

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daughters to suffer a substantial disruption of their daily routine or a high degree of mental pain and distress.”). We sustain Klentzman and The Star’s eighth issue. We remand this issue to the trial court to vacate the award of $20,000 for past mental anguish damages and, as a result, reevaluate the amount of punitive damages awarded. See Bunton v. Bentley, 153 S.W.3d 50, 53 (Tex. 2004) (“[E]xemplary damages must be reasonably proportionate to compensatory damages, and . . . adjustment of compensatory damages therefore requires reevaluation of the factors supporting an award of exemplary damages.”) (citing Tatum v. Preston Carter Co., 702 S.W.2d 186, 188 (Tex. 1986)).

Outcome: We reverse the judgment of the trial court in part and remand to the trial court to vacate the award of $20,000 in past mental anguish damages and to reevaluate the award of exemplary damages. We affirm the remainder of the judgment.

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