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NEWSWORTHY DEFAMATION SUITS IN HARRIS COUNTY TRIAL COURTS
Kelly Blair v. Michael O'Keeffe, Christian Red, Teri Thompson, Nathaniel Vinton, Robin Dobbins, and Knopf
Doubleday Publishing Group; In the 11th District Court of Harris County, Texas, Cause No. 2009-50671
(defamation suit over stereoid-pushing allegations)  (click to see original petition)

Law Firm Sues Former Client for Defamation and Business Disparagement; seeks injunctive relief against bad-
mouthing. (click to read copy of original pleadings) LAW OFFICE OF PAUL N. MOODY (TEXAS
PROFESSIONAL CORP.) vs. PHI TAX & ASSOCIATES PROFESSIONAL CORPORATION (D/B/A PHI TAX USA)
and VO, HENRY. Cause No. 2009-59096; filed 9/16/2009; assigned to the 80th District Court. (Civil Case Type:
DEFAMATION OF CHARACTER).
Judge Kyle Carter signed TRO Sep 16 and set bond at $500.   

SAMPLE DEFAMATION SUIT PETITIONS: Pleadings from other (traditional and internet) defamation / libel /
slander cases are available. (
Inquire here by email)  

DEFAMATION CASE LAW FROM THE HOUSTON COURTS OF APPEALS

Negative Product Review on the Internet Survives Defamation Suit
David Rafes, Inc. v. Huml (Tex.App.- Houston [1st Dist.] Oct. 29, 2009)(Jennings) (defamation business
disparagement claim re product quality,
tortious interference with prospective business relationships,
substantial truth defense to defamation claim succeeds)
AFFIRM TC JUDGMENT: Opinion by
Justice Jennings     
Before Justices Jennings, Higley and Sharp  
01-08-00856-CV    David Rafes, Inc. v. Michael Huml and Slowboy Racing, Inc.   
Appeal from 11th District Court of Harris County
Trial Court Judge:
Hon. Mark Davidson

To maintain a cause of action for defamation, a plaintiff must establish that the defendant (1) published a
statement about the plaintiff; (2) that was defamatory; (3) while acting with either actual malice, if the plaintiff
was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of
the statement. WFAA-TV v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Henriquez v. Cemex Management,
Inc., 177 S.W.3d 241, 251 (Tex. App.--Houston [1st Dist.] 2005, pet. denied); Grotti v. Belo Corp., 188 S.W.3d
768, 774 (Tex. App.--Fort Worth 2006, pet. denied). "The truth of the statement in the publication on which an
action for libel is based is a defense to the action." Tex. Civ. Prac. & Rem. Code Ann. § 73.005 (Vernon 2005).
A defendant may also defeat a libel claim by establishing the substantial truth of the statement. Grotti, 188 S.W.
3d at 774 (citing McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990)). To determine if a publication is
substantially true, "we consider whether the alleged defamatory statement was more damaging to the plaintiff's
reputation, in the mind of the average person, than a truthful statement would have been," and "[w]e look at the
'gist' of the publication "to determine whether it is substantially true." Id. (citations omitted). The defense of truth
does not require proof that the alleged defamatory statement is literally true in every detail; substantial truth is
sufficient. Gustafson v. City of Austin, 110 S.W.3d 652, 656 (Tex. App.--Austin 2003, pet. denied); Howell v.
Hecht, 821 S.W.2d 627, 631-32 (Tex. App.--Dallas 1991, writ denied).  

Vice v. Kasprzak (Tex.App.- Houston [14th Dist.] Oct. 1, 2009)(Keyes)
(
interlocutory appeal, defamation suit)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Keyes   
Before Justices Jennings, Keyes and Higley   
01-08-00168-CV  Patricia Vice and Kathie Slotter v. Daniel J. Kasprzak, Patricia C. Kasprzak and Katherine D.
Kasprzak   
Appeal from 125th District Court of Harris County
Trial Court
Judge: Hon. John Coselli

ELEMENTS OF DEFAMATION CAUSE OF ACTION AND TRUTH DEFENSE
The elements of the Pedens' defamation claim are that: (1) Pohl published a statement, (2) the statement
was defamatory concerning the Pedens, and (3) Pohl acted with negligence regarding the truth of the
statement. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). A statement is defamatory if
the words tend to injure a person's reputation, exposing the person to public hatred, contempt, ridicule, or
financial injury. Colson v. Grohman, 24 S.W.3d 414, 421 (Tex. App.--Houston [1st Dist.] 2000, pet. denied).
Truth is an affirmative defense to a claim for defamation. See Associated Press v. Cook, 17 S.W.
3d 447, 452 (Tex. App.--Houston [1st Dist.] 2000, no pet.). Similarly, a showing of
substantial truth in a
summary judgment case will defeat a defamation claim. McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990).
To determine substantial truth, we consider whether the defamatory statement was more damaging to the
plaintiff in the mind of the average reader than a true statement would have been. McIlvain, 794 S.W.2d at 16;
Barbouti v. Hearst Corp., 927 S.W.2d 37, 65 (Tex. App.--Houston [1st Dist.] 1996, writ denied). This evaluation
involves looking at the "gist" of the statement. McIlvain, 794 S.W.2d at 16; KTRK Television v. Felder, 950 S.W.
2d 100, 105 (Tex. App.--Houston [14th Dist.] 1997, no writ). If the underlying facts as to the gist of the libelous
charge are undisputed, then we can disregard any variance with respect to items of secondary importance and
determine substantial truth as a matter of law. McIlvain, 794 S.W.2d at 16; KTRK Television, 950 S.W.2d at 105-
06.
Peden v. South Texas Surveying Assoc., Inc. (Tex.App.- Houston [1st  Dist] Sep. 10, 2009)(Alcala)
(
defamation, substantial truth defense, estoppel, judicial estoppel, quasi-estoppel)  
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE
TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by
Justice Alcala   
Before Justices Jennings, Alcala and Higley  
01-08-00373-CV Tom and Paula Peden v. South Texas Surveying Associates, Inc., and Fred W. Lawton,
Stephen Pohl   Appeal from 80th District Court of Harris County
Trial Court Judge:
Hon. Lynn Bradshaw-Hull
As stated previously, the truth of a statement is an absolute defense to a claim for defamation. See Hurlbut v.
Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987). The defense of truth does not require proof that the
alleged defamatory statement is literally true in every detail; substantial truth is sufficient. Howell v. Hecht, 821 S.
W.2d 627, 631-32 (Tex. App.--Dallas 1991, writ denied). If Pohl established, as a matter of law, the substantial
truth of the statements about which the Pedens complain, he is entitled to summary judgment. McIlvain, 794 S.
W.2d at 15; Gustafson v. City of Austin, 110 S.W.3d 652, 656 (Tex. App.--Austin 2003, pet. denied).

Scott v. King (Tex. App. - Houston [1st Dist.] Mar. 27, 2008)(Hanks)
(defamation, IIED,
Election Code violation)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Nuchia, Hanks and Higley
01-06-00565-CV John C. Scott v. William E. King
Appeal from 212th District Court of Galveston County
Trial Court Judge:
Hon. Susan Elizabeth Criss

Exxon Mobil Corp. v. Hines No. 14-06-00745-CV (Tex.App. - Houston [14th Dist.] Feb. 26, 2008)(Hedges)
(
employment law, age discrimination, defamation)
AFFIRMED AS MODIFIED: Opinion by
Chief Justice Hedges
Before Price, Chief Justice Hedges, Justice Seymore
Exxon Mobil Corporation v. Dwight Hines and Shannon Everett
Appeal from 125th District Court of Harris County (
Judge John Coselli)

Looper v. HCCS (Tex.App.- Houston [14th Dist.] Nov. 29, 2007)(Hedges)(public employment, breach of
contract, defamation,
intentional infliction of emotional distress, IIED, Whistleblower Act claim, WBA)
AFFIRMED: Opinion by
Chief Justice Hedges
Before Chief Justice Hedges, Justices Hudson and Frost
14-07-00040-CV Stan H. Looper and Cynthia M. Scott v. Houston Community College System,
Bruce Leslie, Diana Castillo, and Reynaldo Garay
Appeal from 152nd District Court of Harris County (
Hon. Ken P. Wise)

Summerville v. Allied Barton Security Services (Tex.App.- Houston [1st. Dist.] Nov. 1, 2007)(Hanks)
(
malicious prosecution claim, criminal trespass)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
01-06-00757-CV Nicholas Summerville v. Allied Barton Security Services, LLC,
Individually and d/b/a Allied Security and Tom Smith
Appeal from 270th District Court of Harris County (
Hon. Brent Gamble)

Thomas-Smith v. Mackin (Tex.App.- Houston [14th Dist.] Sep. 27, 2007)(Edelman)(defamation)
REVERSED AND REMANDED: Opinion by Justice Edelman
Before Justices Fowler, Edelman and Frost
14-05-00852-CV V.E. Joahanne Thomas-Smith v. James E. Mackin
Appeal from 155th District Court of Waller County (Judge Daniel R. Beck)

El-Khoury v. Kheir (Tex.App.- Houston [1st Dist.] Jun 14, 2007)(Radack)(defamation)(Radack)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by
Chief Justice Radack
Before Chief Justice Radack, Justices Keyes and Higley
01-06-00088-CV        John El-Khoury v. Benjamine Kheir
Appeal from 334th District Court of Harris County (
Hon Sharon McCally)
Concurring and Dissenting Opinion by Justice Keyes

Atchison v. Spawnmaxwell Co, LP (Tex.App.- Houston [1st Dist.] May 24, 2007)(Bland)
[breach of contract, defamation, summary judgment affirmed]
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Nuchia, Jennings and Bland
01-06-00488-CV        Burl Atchison v. Spawmaxwell Company, L.P., Steve Keffeler and Fred Maxwell
Appeal from 269th District Court of Harris County (Judge: The
Honorable John T. Wooldridge)

Rerich v. Lowe's Home Center, Inc. (Tex.App.- Houston [1st Dist.] May 10, 2007)(Radack)
(defamation, false imprisonment)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Jennings and Bland
01-05-01165-CV Terry Rerich v. Lowe's Home Center, Inc.
Appeal from 149th District Court of Brazoria County (Judge Robert E. May)

Plaintiff prevails in malicious prosecution suit based on false accusations of theft
Musselwhite v. Howard (Tex.App.- Houston [1st Dist.] May 10, 2007)(Alcala)(malicious prosecution, defamation)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Alcala
Before Justices Taft, Alcala and Hanks
01-05-00839-CV Mike Musselwhite, Mike's Pools and Spas, Pat Stalsby and Amanda Watson v. John Howard
and Terry Watson
Appeal from 269th District Court of Harris County (
Judge John Thomas Wooldridge)

Izen v. Sjostrom and Atlas Legal Defense Fund (Tex.App.- Houston [14th Dist.] Apr. 3, 2007)(Former Justice
Frank Price)(breach of contract, breach of fiduciary duty, libel, attorney's fees arising from investor tax dispute
with IRS)

Thomas-Smith v. Mackin (Tex.App.- Houston [14th Dist.] Sep. 27, 2007)(Edelman)(defamation)
REVERSED AND REMANDED: Opinion by Justice Edelman
Before Justices Fowler, Edelman and Frost
14-05-00852-CV V.E. Joahanne Thomas-Smith v. James E. Mackin
Appeal from 155th District Court of Waller County (Judge Daniel R. Beck)

O P I N I O N

In this defamation case, V.E. Joahanne Thomas-Smith appeals  on numerous grounds a judgment entered in
favor of James E. Mackin.  We reverse and remand.
                                          
Background

During a telephone conversation, Thomas-Smith, the Provost and Senior Vice President of Academic and
Student Affairs of Prairie View A&M University (“Prairie View), questioned Dr. Gerard Rambally, the Dean of Arts
and Science of Prairie View, about Rambally's reasons for recommending Mackin, a Ph.D. in chemical
oceanography, to be appointed interim Chairman of the Prairie View Chemistry Department and about not
having assigned Mackin a full teaching load for the upcoming semester.  One of Thomas-Smith's questions or
comments in this conversation was to the effect that Mackin and Rambally had a “love” or “lover” relationship.  
After Mackin, a married man, learned of this comment (the ”comment), he filed this action for slander against
Thomas-Smith.  The case was tried to a jury, and judgment was entered in accordance with the jury's verdict,
awarding Mackin $40,000 in damages against Thomas-Smith.
                                      
Directed Verdict

Thomas-Smith's first issue contends that the trial court erred by denying her motion for directed verdict[1] on
the ground that the comment was not defamatory as a matter of law because it was a rhetorical hyperbole
rather than a statement of fact.[2]

Slander is a defamatory statement[3] that is orally communicated to a third person without legal excuse.  
Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).  Among other things, a defamatory
statement must be sufficiently factual to be susceptible of being proved objectively true or false, as contrasted
from a purely subjective assertion.  See Milkovich v. Lorain Journal Co., 497 U.S. 1, 21-22 (1990).  It must also
be such that a reasonable factfinder could conclude that the statement implies an actual assertion of the
purported fact, as contrasted from loose, figurative, or hyperbolic language that would negate the impression
that the declarant was seriously maintaining that the fact was literally true.  See id.[4]

An allegedly defamatory publication is construed as a whole in light of the surrounding circumstances based on
how a person of ordinary intelligence would perceive it.  New Times, Inc. v. Isaacks, 146 S.W.3d 144, 154 (Tex.
2004).  The appropriate inquiry is thus objective, not subjective.  Id. at 157.  Whether a statement is capable of
a defamatory meaning is generally a question of law for the court.  Id. at 155.  But when a publication is of
ambiguous or doubtful import, the jury must determine its meaning.  Id.

In this case, by describing a relationship between individuals, the comment was sufficiently factual to be
susceptible of being proved true or false.  However, it is not clear from the context and surrounding
circumstances whether Thomas-Smith was making the comment: (1) sarcastically, to figuratively express her
disbelief concerning the recommendation; or (2) sincerely, out of concern that the recommendation had been
made for improper motives.  Because of this ambiguity, Thomas-Smith's first issue fails to demonstrate that the
comment was not defamatory as a matter of law, and is overruled.

Thomas-Smith's second issue contends the evidence conclusively proves there was no publication because the
parties who heard the comment did not understand it to be defamatory.  A person publishes a slanderous
remark if she communicates it to a third person who is capable of understanding its defamatory meaning and in
such a way that the person did understand its defamatory meaning.  Lozano v. Lozano, 983 S.W.2d 787, 793
(Tex. App.- Houston [14th Dist.] 1998), aff'd in part, rev'd in part on other grounds, 52 S.W.3d 141 (Tex. 2001).

The undisputed evidence in this case shows that two people heard and understood the comment.  One was
Rambally, who understood it to assert that Mackin had a sexual or romantic relationship with him and that he
(Rambally) was appointing people to positions based on his relationship with them rather than their credentials.  
The second person was Darlene Knebel, Rambally's secretary, who understood it to assert that Rambally was
recommending Mackin to be Chemistry Department Head because of Rambally's “'love relationship' with
Mackin.  Because there was evidence of publication, Thomas-Smith's second issue fails to demonstrate that the
trial court erred in denying the motion for directed verdict on this ground, and is overruled.

Jury Charge

Thomas-Smith's fifth issue contends, in part, that the trial court erred by refusing her requests to include in the
court's charge to the jury questions on the defenses of official immunity and qualified privilege.

A trial court must submit the questions, instructions, and definitions that are raised by the pleadings and
evidence.  Tex. R. Civ. P. 278.  A judgment cannot be permitted to stand when a trial court's refusal to submit a
question denies a party the submission of a viable affirmative defense that has been so raised.  Exxon Corp. v.
Perez, 842 S.W.2d 629, 631 (Tex. 1992).

One of the elements of the defense of official immunity is good faith, which requires an objective determination
of whether a reasonably prudent official, under the same or similar circumstances, could have believed that his
conduct was justified based on the information he possessed when the conduct occurred.  Joe v. Two Thirty
Nine Joint Venture, 145 S.W.3d 150, 162, 164 (Tex. 2004).  As evidence of the element of good faith to support
the submission of a jury question on official immunity, Thomas-Smith relies on the testimony of George C.
Wright, President of Prairie View, and Thomas-Smith.

However, the testimony of Wright that Thomas-Smith's brief cites for this purpose  is deposition testimony that
was attached as an exhibit to Thomas-Smith's motion for summary judgment.  Because Thomas-Smith's brief
cites no portion of the record where any such testimony by Wright was admitted into evidence at trial, it does
not establish that this evidence was before the jury so as to support a question in the court's charge.  Similarly,
the relied upon testimony by Thomas-Smith was the following:

Q:      And in that conversation, August of 2002, whatever statement that was, that was said, do you believe it
was lawful?

A:      Yes.  Whatever statement was said in the conversation about the teaching load or whatever, I believe it
was lawful.

*        *        *        *

Q:      When you were asked about whether it was lawful, what did you, what was your definition of being lawful?

A:      Well, within the role and scope of my job and not against the constitution, or policies or whatever.

Q:      [I]f the statement was made that you say may have been made, and that statement was that you, Dr.
Rambally and Dr. Mackin have a lover relationship, and that is why you wanted to appoint him as interim dean,
interim department, would that be lawful?

A:      Sir, if I said that, it would be lawful.

However, this testimony does not raise a fact issue on the good faith element of official immunity because: (1) it
does not address the good faith standard (whether a reasonably prudent official, under the same or similar
circumstances, could have believed that his conduct was justified based on the information he possessed when
the conduct occurred); (2) it is Thomas-Smith's subjective view rather than evidence of an objective standard;
and (3) it is conclusory, providing no factual basis or foundation to support the stated conclusion.  Accordingly,
we overrule the portion of Thomas-Smith's fifth issue that challenges the trial court's denial of her request to
submit a jury question on official immunity and turn to her challenge the denial of a jury question on the
defense of qualified privilege.

Where, as here, there is not alleged to be a public figure plaintiff, a media defendant, or a defamatory
statement involving a matter of public concern, the falsity of the statement is generally presumed,[5] and the
truth of the statement is an affirmative defense that must be proved by the defendant.  See Randall's food
Markets Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).  Similarly, in the absence of a privilege, malice[6] is
inferred from the fact that a defamatory statement is false.  See Int'l & G.N.R. Co. v. Edmundson, 222 S.W. 181,
183 (Tex. Comm'n App. 1920, holding approved); Bradstreet Co. v. Gill, 72 Tex. 115, 9 S.W. 753, 121 (Tex.
1888).  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.

In this case, Thomas-Smith requested a jury question on whether she was entitled to the following qualified
privilege:

“Qualified privilege exists when a communication is made in good faith and the author, the recipient, or a third
person has an interest that is sufficiently affected by the communication.  The effect of the privilege is to justify
the communication which is made with proper motive and without actual malice.  A finding of actual malice must
be supported by clear and convincing proof.[[7]]

There is no dispute that such a qualified privilege exists under Texas law.  See, e.g., Cain v. Hearst Corp., 878
S.W.2d 577, 582 (Tex. 1994).  Because Thomas-Smith pleaded the affirmative defense of qualified privilege,
the trial court was required to submit this question if the defense was raised by the evidence.  See Tex. R. Civ.
P. 278.

In that regard, Thomas-Smith testified that she made the comment during discussions on a subject about which
she had a duty to communicate with Rambally.  At the time, Rambally needed to fill the position of interim head
of the Chemistry Department, and needed Thomas-Smith's approval to do so.  Thomas‑Smith and Rambally
also had the mutual task of coordinating Mackin's teaching load as a chemistry professor following a reduction
in force.  Thomas‑Smith made the comment during a telephone conversation with Rambally concerning these
matters.  This evidence was sufficient to raise a fact issue whether the comment was made concerning a matter
on which Thomas-Smith and Rambally had a common interest.

Mackin argues that Thomas-Smith was not entitled to this instruction because the comment was: (1) published
to Knebel, who did not share the common interest; (2) not made in good faith; and (3) made with malice.

As to the first contention, if a defamatory statement is privileged, the casual or accidental presence of a third
party will not take it out of the privilege.  Flowers v. Smith, 80 S.W.2d 392, 393 (Tex. Civ. App.- Amarillo 1934,
no writ).  The Restatement thus explains:

One privileged to publish defamatory matter may, without abuse of the privilege use a method of
communication that involves an incidental publication of the defamatory matter to persons to whom he is not
otherwise privileged to publish it, if the method, although not the only way in which the information can be
effectively communicated, is customary and sanctioned by business or other necessity.  Thus the fact that
dictation to a stenographer involves as a necessary incident the communication of the defamatory matter to her
does not make the sending of a dictated business letter to the person to whom the writer is privileged to send it
an abuse of the privilege.  So too, the fact that it is a business custom for clerks and secretaries to open
business correspondence of their superiors does not make the sending of a business letter to the office of the
privileged recipient an abuse of the privilege.  On the other hand, when the method of communication is
unnecessary and unsanctioned by the a custom based on ordinary necessities of business, the publication of
the defamatory matter to persons not privileged to receive it that is incidental to those methods is not
privileged. Thus the use of a postcard in place of a letter is an excessive publication.  So too, the use of a
telegram to communicate information that could be effectively communicated in a sealed letter is an excessive
publication, although it would not be so if the information, to be valuable, must be speedily received.

Restatement (Second) of Torts § 604 cmt. b (1977).  In this case, when the comment was made, Knebel was in
Rambally's office to do filing, a task Knebel occasionally performed while, as here, Rambally was on the
speaker-phone.  Under these circumstances, the publication of the comment to Knebel did not itself
conclusively negate the existence of a qualified privilege so as to preclude a jury question on that defense.

Mackin's contention that a jury question on qualified privilege should not have been submitted because there is
no evidence raising a fact issue on good faith is based on the meaning of that phrase as an element of the
defense of official immunity, i.e., whether a reasonably prudent Provost could have believed that her conduct
was justified.  However, we can find no authority suggesting that the definition of good faith for official immunity
also applies to the defense of qualified privilege.  Therefore, the failure to submit a question on the defense of
qualified privilege cannot be affirmed on the lack of evidence, if any, of good faith as it would apply to official
immunity.

Texas cases refer to the concept of “good faith in the context of qualified privileges in an inconsistent manner.  
Some describe good faith as being presumed where a conditional privilege exists (as if it is simply the non-
existence of malice),[8] whereas others refer to it as an element of the conditional privilege,[9] and, thus,
something that must be proved before the privilege arises.  In addition, we have found no Texas cases which
define “good faith in this context.  Because no formal legal definition appears to exist, “good faith would have
had its commonly understood meaning pursuant to the court's general charge to the jury.[10]  Because the
circumstances surrounding the making of the comment are at least sufficient to raise a fact issue on whether it
was made in good faith, as that term is commonly understood, the failure to submit a question on qualified
immunity cannot be affirmed on a lack of evidence of good faith.

Lastly, Mackin argues that Thomas-Smith was acting with malice because she had no evidence that Mackin and
Rambally had a “love or Alover relationship that would influence Rambally's decision making.  Mackin further
points to evidence that Thomas-Smith was aware that Mackin was married with children.

In this context, malice means making the defamatory statement with knowledge of its falsity or in reckless
disregard as to its truth.  Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991); New Times, 146 S.W.
3d at 162.  However, because there was evidence that the comment was subject to a qualified privilege, Mackin
had the burden to prove malice, i.e., that Thomas-Smith actually entertained serious doubts as to the truth of
the comment.  See Masson, 501 U.S. at 510; New Times, 146 S.W.3d at 162.  Moreover, the qualified privilege
can exist even when the statement is untrue or its truth is disputed.[11]  Therefore, a lack of evidence of the
truth of the comment would also not preclude a jury question on the qualified privilege defense.

Because the defense of qualified privilege was properly raised by the pleadings and evidence, the trial court's
refusal to submit Thomas-Smith's requested jury question on that defense was reversible error.  See Perez,
842 S.W.2d at 631.  Therefore, we sustain Thomas-Smith's fifth issue to that extent, reverse the judgment of
the trial court, and remand the case to the trial court for further proceedings; and we need not address Thomas-
Smith's remaining challenges to the judgment.[12]

/s/        
Richard H. Edelman

Senior Justice

Judgment rendered and Opinion filed September 27, 2007.

Panel consists of Justices Fowler, Frost, and Edelman.*

--------------------------------------------------------------------------------

[1]           A directed verdict is proper if no evidence of probative force raises a fact question on  an issue that is essential to the
plaintiff's right of recovery.  Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).

[2]           Although Thomas-Smith's motion for directed verdict, made in open court, asserted that the comment was not
defamatory, it gave no reason for that assertion. However, because we conclude that the reason presented on appeal is without
merit, need not rule on whether the complaint was preserved.

[3]           A defamatory statement is one that is injurious to reputation, whether true or false.  See Bentley v. Bunton, 94 S.W.3d
561, 587 (Tex. 2002).

[4]           See generally Eric Scott Fulcher, Note, Rhetorical Hyperbole and the Reasonable Person Standard: Drawing the Line
Between Figurative Expression and Factual Defamation, 38 Ga. L. Rev.. 717, 720 (2004).

[5]           See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1988).

[6]           In this context, a statement is made with malice when it is made with either knowledge of its falsity or reckless disregard
whether it is true.  Randall's, 891 S.W.2d at 646.

[7]           Definitions of "actual malice" and "clear and convincing proof" were also submitted with this question but are not
material to our disposition.

[8]           See, e.g., Edmundson, 222 S.W. at 183 (“If the occasion is privileged, a proper and sufficient motive is shown; and
thereby the inference of malice is repelled, and in lieu thereof the presumption obtains that the communication was made in
good faith.); Simmons v. Dickson, 110 Tex. 230, 213 S.W. 612, 612 (1919) (reciting both standards).

[9]           See, e.g., Cain, 878 S.W.2d at 582 (“Qualified privileges against defamation exist at common law when a
communication is made in good faith . . . .); Diamond Shamrock Ref. & Mktg. Co., 844 S.W.2d 198, 210 (Tex. 1992) (same); Perry
Bros. Variety Store, Inc. v. Layton, 119 Tex. 130, 25 S.W. 310, 313 (Tex. 1930) (same); Mo. Pac.Ry. Co. v. Richmond, 73 Tex. 568,
11 S.W. 555, 575 (1889) (“We understand the law to be that a communication made in good faith, in reference to a matter in
which the person communicating has an interest, . . . is privileged . . . .);  Bradstreet, 9 S.W. at 119-20 (“whatever was said orally
by defendants about plaintiffs and their business was said in good faith, and in confidence to their subscribers, who were by
reason of their business relations with the plaintiffs interested in knowing their financial and business standing, and in answer to
requests made by their subscribers in relation thereto.  This being so, the statements thus made by defendants are privileged
communications.).

[10]          This instruction stated, “When words are used in this charge in a sense that varies from the meaning commonly
understood, you are given a proper legal definition, which you are bound to accept in place of any other meaning.

[11]          See, e.g., Dun & Bradstreet, Inc. v. O'Neil, 456 S.W.2d 896, 898-99 (Tex. 1970); Bradstreet, 9 S.W. at 757; Richmond, 11
S.W. at 557-58.

[12]          See Tex. R. App. P. 47.1 (requiring an appeals court opinion to be as brief as practicable in addressing the issues
raised that are necessary to final disposition of appeal).

*           
Senior Justice Richard H. Edelman sitting by assignment.  




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