Dell R. Cullum v. Dalene M. White and Diamond A. Ranch
399 S.W.3d 173
Tex. App.2011Background
- White owns Diamond A Ranch; Cullum worked there 2005–2006 as ranch hand and photographer.
- Cullum sent emails to Raglin, Thacker, and Feather Flage with defamatory claims about White and the Ranch.
- Cullum posted a website diamondalcoholicranch.com; comments portrayed White and Ranch in a defamatory manner.
- White sued Cullum for libel and intentional infliction of emotional distress; a temporary injunction was issued and later a permanent injunction sought as a sanction.
- Eleven of twelve jurors found the emails and website defamatory; damages awarded included $50k for mental anguish and $50k for harm to reputation, with $100k in exemplary damages; claims for business impact were not pursued at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the third amended petition was properly denied strike | Cullum argues surprise and new claims prejudiced trial | Court has discretion; no prejudice shown | No abuse of discretion; no prejudice or surprise proved |
| Admissibility of Donald Thacker’s deposition testimony | Thacker testimony was essential to damages | Testimony not shown to affect the verdict | No reversible error; verdict not shown to depend on it |
| Sufficiency of evidence to support libel | Emails and website referred to White per Milkovich test | Evidence insufficient to connect statements to White | More than scintilla; publications reasonably referred to White and the Ranch; per se libel established |
| Damages for defamation per se | Damages presumed; nominal and general damages warranted | Requires proof of damages beyond presumption | Damages for reputation and mental anguish sustained; per se damages recognized |
| Permanent injunction as pretrial sanction and exemplary damages | Inherent-power sanction appropriate to curb delaying conduct | Injunction unwarranted; improper sanction | Permanent injunction reversed; exemplary damages improper; other aspects affirmed |
Key Cases Cited
- Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) (defamation damages require support by evidence; per se damages presumed but must be reasonably tied to injury)
- Exxon Mobil Corp. v. Hines, 252 S.W.3d 496 (Tex. App.—Houston [14th Dist.] 2008) (defamation per se vs per quod; jury instruction on damages; standards for review)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (test for actionable defamation: factual statements must be objectively verifiable)
- WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998) (establishes elements of defamation claim and standard of review)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard for reviewing legal sufficiency and evidentiary support)