Allen Chadwick Burbage v. W. Kirk Burbage and Burbage Funeral Home
447 S.W.3d 249
| Tex. | 2014Background
- Kirk Burbage owned and operated the family-run Burbage Funeral Home; his brother Allen Chadwick (Chad) published website posts, posters, and letters accusing Kirk of elder abuse, fraud, cemetery land fraud, and other misconduct.
- Chad sent letters to Shirley and Brice Phillips (non-family third parties) warning they had no title to inter the Phillips mausoleum in the family cemetery.
- Kirk and the Burbage Funeral Home sued Chad for defamation per se in Bastrop County, Texas; trial court submitted ten liability questions (one per statement) and broad-form damages questions.
- Jury found statements not substantially true, awarded Kirk ~$6.55 million and the funeral home ~$3.05 million in compensatory and exemplary damages; trial court also entered a permanent injunction barring Chad from repeating listed topics.
- Court of appeals reduced exemplary damages, vacated the injunction; Texas Supreme Court granted review and addressed privilege preservation, sufficiency of damages evidence, and the injunction’s constitutionality.
Issues
| Issue | Plaintiff's Argument (Kirk) | Defendant's Argument (Chad) | Held |
|---|---|---|---|
| Whether qualified privilege shields Chad’s letters to the Phillipses | Privilege does not apply because communications exceeded any common interest and were defamatory | Letters were protected by a qualified (common-interest) privilege; communications concerned mutual interests about cemetery rights | Court did not reach the merits because Chad failed to preserve charge error on privilege (objection was not specific enough) |
| Whether charge error (commingling valid and potentially privileged theories) was preserved | Charge was proper; no reversible error | Trial court submitted potentially privileged questions and broad-form damages, which commingled valid and invalid theories | Error waived — Chad failed to make a timely, specific objection at the charge conference so appellate review on that ground is barred |
| Whether evidence supports compensatory damages award ($3.8M) | Evidence (community awareness, cancelled prepaid contracts, business value) supports large damages for reputational harm | Awards are speculative, lack concrete proof of actual reputational or economic injury; First Amendment concerns about excessive awards | No evidence supports compensatory damages; award reversed and judgment rendered that plaintiffs take nothing on compensatory damages |
| Whether permanent injunction barring future similar statements is permissible | Injunction necessary to prevent continued defamation | Injunction is an unlawful prior restraint on speech | Injunction is an unconstitutional prior restraint as issued; that portion of the judgment affirmed as vacated by court of appeals |
Key Cases Cited
- Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994) (qualified-privilege standard)
- Dun & Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896 (Tex. 1970) (burden-shifting when privilege established)
- Casteel v. Crown Life Ins. Co., 22 S.W.3d 378 (Tex. 2000) (harm from commingling valid and invalid liability theories in broad-form questions)
- In re B.L.D., 113 S.W.3d 340 (Tex. 2003) (preservation requirement for jury-charge complaints)
- Romero v. KPH Consol., Inc., 166 S.W.3d 212 (Tex. 2005) (broad-form submission error reversible when invalid theories included)
- Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Ltd., 434 S.W.3d 142 (Tex. 2014) (need concrete evidence to support valuation/lost-profits-type injury)
- Hancock v. Variyam, 400 S.W.3d 59 (Tex. 2013) (limitations on inferring reputational injury from meager circumstantial evidence)
- Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) (review of noneconomic defamation damages and First Amendment concerns)
- MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660 (Tex. 2009) (appellate court may render take-nothing judgment when record shows only nominal damages)