*1 407 Castro, 476, Mauricio v. 287 S.W.Sd 480 2009,
(Tex.App.-Dallas pet.) (holding no plaintiff
suit barred limitations when explain thirty-one day delay
failed to be- expiration
tween of limitations and ser-
vice); Houser, Rodriguez v. Tinsman &
Inc., 47, (Tex.App.-San 13 S.W.Sd Anto- denied) 1999, pet.
nio (upholding summary
judgment expiration based on of limita- plaintiff explain
tions because failed to
twenty-five-day delay expiration between service);
of limitations and Perkins v.
Groff, (Tex.App.-Dal- denied)
las writ (upholding summary
judgment expiration based on of limita- plaintiff explain
tions because failed to
eighteen-day delay expiration between service).3
limitations and affirm the judgment.
We MEMON, Appellant
Manzoor SHAIKH, Appellee.
Haroon
No. 14-12-00015-CV. Texas, of Appeals
Court (14th Dist.).
Houston
April 2013. Waggoner "prejudiced” by hearing. asserts she was proposed new trial No affidavit was failing the trial court to allow her to amend argument presented, analysis no of the response summary judg- her to the motion for made, authority issue is and no is cited. Con- ment and attach an affidavit which had been sequently, nothing we find to address. omitted. This was asserted at a motion for *3 Edelman, Houston, Ap- H.
Richard pellant. King, Kingwood, Appel-
Howard R. lee. FROST,
Panel consists of Justices CHRISTOPHER, and JAMISON. Background I. OPINION Factual ProCedural an accountant who is Haroon is CHRISTOPHER, Justice. TRACY civic, variety religious, in a active case organizations serving the Houston this defamation cultural The defendant and re- judgment generally area and the Islamic Paki- asks us to reverse He Several particular. for a new trial. stani communities the case mand publish- ago, began Manzoor Memon required years because this result actual-damages variety defamatory single ing to the jury’s answer emails, findings letters, blogs, on its question predicated about Shaikh defamatory monthly state- ensuing nine newsletter. In Shaikh’s published that he Memon, known knew or have suit *4 against that he should defamation ments false, legally produced. is in- facts below was but the evidence of the recounted were of was that one the statements sufficient 2008 or Shaikh owned sever- Until damages the He also asserts that false. both adult al video stores that stocked that we are excessive and asks awarded He testified that he mainstream movies.1 the actual- suggest reducing remittitur opinions legal August obtained $350,002 $20,000 award from to August 2009 that the stores could again from exemplary-damages award and the city from the operated be without a license $5,000. Finally, he contends to sexually-oriented to a business. operate permanently trial court erred in that the further he did testified that not same publishing him from the enjoining stores” promote the stores as “adult its on which the based statements stores; them as advertise adult video findings, and that the find- liability so; ask to do anyone he did not else necessary injunction to ings support promote pornography. he did not He by the contrary actually to those found are operating has never been cited for sexu- jury. ally-oriented business without license. that, 15, 2009, regard April to the On Memon wrote We conclude with Society of the challenge legal president to the sufficien- Islamic Greater appellant’s (“ISGH”) cy urging stop certain of the Houston him to em- support of evidence nine firm. findings concerning ploying accounting one of the Shaikh’s jury’s issue, letter, govern- “recent any error is harmless Memon wrote that fac- that Mr. the statements were different ment documents still show Ha- because single theory liability roon Shaikh is and CEO of a tual bases for President Adult liability promoting store[s] than different theories. chain of Book rather Additionally, urging organization if could pornography” even each statement relationship with a separate liability theory, [its] be a then to “terminate com- preserve appellate working against whose owner is all appellant pany failed stated, charge at values.” further by objecting to the Islamic arguments “[M]y suggestion the evi- be to take trial. We further conclude that would action factually support any publicity the without before this matter dence is sufficient main There challenged findings, perma- that the leaks to stream media.” is no government injunction nent inconsistent with evidence such docu- ments, affirm the and no that Shaikh an jury’s findings. accordingly We evidence a chain officer in of adult bookstores. judgment. concerning flicting. con- this date is 22, 2009, On June Memon wrote to sexually[-]oriented They’re business. directors ISGH and fourteen branches closed now. quite We lost a bit money organization suggesting and 14 people jobs lost their as of to- organization’s president was “supporting day.” condoning
Haroon Shaikh and what he does[,] indirectly supporting pornography.” police [The assistant chief stated that day, The next Memon wrote may- to the the] stores had never been targeted by complaining or of Houston about Shaikh’s police for SOB enforcement because appointment Mayor’s to the Advisory they were not identified as “an extreme Board for International Affairs and to the violator of vice laws.” County-Houston Harris Sports Authority (“Sports Authority”). According to Mem- Shaikh said he sold the businesses to his on, Shaikh multiple was the “owner of in July brother months before he sexually[-]oriented outlets of businesses” was even considered for appointment to and had been appointed Sports to the Au- [S]ports [Authority board. In the thority’s board proper investiga- without stores, decade he owned the he had op- tion based on his financial contributions or erated under the assumption af- —made *5 mayor’s the recommendations of the sup- ter consulting attorney his they —that “ethics, porters rather than on the basis of did not legal meet the definition of a moral character community and service.” sexually[-]oriented businesses be- [sic] Memon sent copies of the letter to the cause 60 percent to 70 of their revenue chairpersons of both boards and to “[a]ll was from the sale of mainstream feature resigned media outlets.” Shaikh from the films. Sports Authority on August 2009. Two Monday, On the store at 10855 Tele- later, days appeared an article in the one, phone, appeared to have far concerning Houston Chronicle the same more adult titles for sale than main- Memon, allegations made including stream films. statements from Memon. The article pro- in pertinent part vided as follows: Legal experts said state statute and case
A prominent local businessman gen- law sexually[-]oriented associated with City campaign erous Hall donor has re- businesses “primary have defined busi- signed post on [Sports Authority] ness” as “not incidental” to company’s board amid questions about his owner- revenue and have stipulated that if the ship of several adult video stores.
main draw of a business involves the images, qualifies sale of sexual it as its operate The stores ... did not with “primary business.” sexually[-]oriented permits, business churches, schools, are close to ... day centers,
care neighborhoods residential ... ap- Manzoor Memon said Shaikh’s apartment complexes. City ordi- pointment was inappropriate given his prohibits businesses, nance such ownership re- of the video stores. SOBs,
ferred operating to as from with- appear though every- “This makes it as 1,500 feet of such areas. sale,” thing Memon, is for said who not-
ed campaign Shaikh’s contributions. SOB,” “We didn’t it know was an Shaikh “The people big money go who have out said. “The buy intention was never to run a positions.” these not have a criminal knows Shaikh does
he record. Khan said [City M.J.] member council of those “of the nature
he was not aware again September On ap- suggested he when businesses” in which he stated a mass email sent to the board of the Shaikh pointment [of article about after Chronicle’s Authority]. Sports activi- immoral and un-Islamic “Shaikh’s their char- showed ties Houston Christians resign from he decided Shaikh said Au- Sports him from [the] acter and fired board, [A]uthority effective [S]ports It is many other boards....” thority and were raised questions when Thursday, however, resigned undisputed, stores, he no though even about Authority before Sports from the owns them. longer and that his appeared, article newspaper arti- that when the Shaikh testified at trial article. in the resignation was discussed from the Houston appeared, officers cle boards, from other resign He did not came to vice division Department’s Police that he was invol- there is no evidence stores, that it determined one of the video any position from untarily terminated law, compliance” with was “still any time. operate that no license to confirmed sexually-oriented business store as a day, one of the email’s On the same required. stating, to Memon recipients reply sent a appeared, the article days Four after jail.” should be in Ac- “Haroon Shaikh hundreds of a mass email to trial, Memon sent testimony at cording to Shaikh’s Muslim stating, [the] “On behalf people, reply this email to 500 Memon forwarded community I demand [the] and Pakistani people. *6 Mr. Haroon Shaikh from resignation of published Memon his January In main following stream representing [the] newspaper again reporting own in his involvement organizations due to from resign been “forced to Shaikh had neighbor- close to promoting pornography County Sports Authority [and] Harris hoods, educational institu- religious and He City Sister Boards.” Karachi Houston city limit.” City in of Houston tions April the same statements made resign for Shaikh to as Memon called additionally reported that another Sister of the Houston-Karachi chairman man, G.B.,2 pornography “used services of and as the financial ad- City Commission buy ... kingpin Haroon Sheikh [sic] ISGH,
visor and accountant ” assets.... Memon asserted foreclosed Society American of Greater Pakistani “have been success- that G.B. and Shaikh Houston, and the Pakistan Chamber defrauding many financial institu- ful He stated “[b]efore Commerce-USA. trial, testified without tions.” At Shaikh runs more stories Houston Chronicle [the] buy the as- that he did not contradiction we must clean about Mr. Haroon Shaikh separate In a article sets described. and eliminate community organizations our issue, Memon referred “Con- same criminal records to show case people with pornography Haroon At demned Promoter preach.” we practice that we what trial, however, acknowledged [Shaikh].” Memon action, using him initials. we have identified person has sued Memon for defa- 2. This also part of this mation. Because he is not newspaper, the June 2010 issue of his eial frauds and crimes within the South Memon stated that engaged Shaikh in “fi- Asian community, in decades.” One such nancial frauds and unethical ac- business “critical document” was Memon’s list of Shaikh, tivities” and that whom Memon sixteen people he claims are involved in again “pornography king- described as a hiding assets “swindled from financial in- pin,” was one of several people who had stitutions.” The first name on the list is filed a series of lawsuits “to harass Memon that of Haroon Shaikh. Memon referred family.”3 and his to the listed individuals as “white[-]collar criminals” and asserted that “this is a Pak- 29, 2010, On June Memon sent another istani Mafia operating in close circle help- mass email stating that Shaikh “was bust- ing each other and defrauding innocent ed by Houston [C]hronicle and Houston investors, financial and mortgage institu- Police Dept squad Vice for running those tions and even (Sexu- treasury.” [the] U.S. porno shops without obtaining SOB Business) testified at trial that such ally[-]Oriented allega- All licenses. his tions about him were false. stores were shut and Haroon was fired from Sports Authority] [the director- 28, 2011, On March Memon wrote a ” ship .... letter to a federal judge in which Memon July In the August issues identified Shaikh aas member of a “finan- paper, placed his front-page ad cial fraud Mafia” that “very active in in which he described Shaikh and a former Houston area [the] defrauding American City member the Houston Council as financial institutions.” buying “covermen for assets bankcrupt In the August 2011 issue of his newspa- [G.B.],” [sic] businessman and stated that per, Memon wrote a column listing the “looking he was for eye witnesses who saw paper’s accomplishments under the head- this criminal activity.” Shaikh’s trial testi- ing “Mission Accomplished.” capital In all mony buy that he did not such assets was letters, Memon wrote “Haroon Shaikh uncontroverted. forced to leave County Sports Harris Au- 19, 2010, August On Memon wrote to thority gives up presidency mayor Houston’s complaining of Shaikh’s Houston Karachi City Sister Commission membership City’s on the Affirmative Ac- Chairmanship of Pakistan Chamber of tion Compliance Contract Commission and *7 Commerce USA.”4 again stated that Shaikh had been “re- moved” represented from the board of the Memon Sports during Au- himself thority. trial objection and made no jury to the charge, which focused on the following In January Memon wrote to the specific nine statements allegedly publish- Investigation Criminal Division of the In- by ed Memon: ternal convey Revenue Service to “critical documents and fired, clues about and his [G.B.] A. Haroon Shaikh was forced to very close associates possibly which could resign, or asked resign to from the you lead to uncovering the biggest finan- County Sports Authority; Harris testified, May 3. Shaikh filed this suit in April "This is of 2009.... campaign.... That’s when I started the I complete 4. This is not list of Memon’s state- give wanted to him his own medicine because Shaikh, which, according ments about to responsible he anguish was for all the mental Shaikh, began in 2005 or 2006. Memon I have.” campaign April dates his from 2009. As affirmative, then the fired, in the questions to these was forced Shaikh B. Haroon separately asked to state jury was from the resign to or asked resign, fairly reasonably that would amounts City Com- Sister Houston-Karachi mental an- past Shaikh for compensate boards; many other mission anguish, past damage future mental guish, a member of the Shaikh is Haroon C. to his damage and future reputation, Mafia; Pakistani affirmative an- jury gave The reputation.5 a criminal or has Shaikh is D. Haroon every question regarding each swers to laws; violated criminal statement, assessed bankrupt purchased Shaikh E. Haroon $100,000 anguish, mental for past for $1 to defraud cred- companies [G.B.] past anguish, future mental itors, mortgage compa- banks and reputation, to Shaikh’s damage $1 nies; jury The reputation. to his future in a participated F. Haroon found, convincing evi- by clear and also as- purchase fraudulent scheme dence, resulted the harm to Shaikh with bankrupt companies sets of gross negli- from malice and also from any person; or other [G.B.] exemplary dam- assessed gence. purchased the as- Haroon Shaikh G. $850,000. ages of owned any business sets judgment rendered The trial court bankruptcy or out of [G.B.] judg- In its with the verdict. accordance defrauded, cheat- manner that other ment, additionally provided the trial court ed, any credi- or confused mislead as follows: tor, lender, agency; governmental ORDERED, AD- It is further owns or owned vid- H. Haroon Shaikh AND DECREED JUDGED required that were eo stores re- and the court record jury’s verdict Business Sexually[-]Oriented have a engaged Defendant has flect Houston; City of from the license up that has continued wrongful conduct and/or likely continue after the trial and will pornography Shaikh is I. Haroon Judgment; the continued entry of this kingpin or a con- king, pornography harm the Plaintiff irreparable imminent kingpin. pornography demned consequence likely to suffer as a statement, was asked each wrongful justi- As to conduct the Defendant’s (a) publish- whether Memon in- imposition permanent to determine of a fies the (b) statement; Defendant; and, was ac- statement junction against ed (c) false; Manzoor defamatory; statement the Defendant cordingly, (d) im- should have forthwith to Memon knew or Memon is commanded care, desist and known, ordinary mediately permanently in the exercise writing, publishing, repub- potential- was false and refrain from that the statement *8 circulating, broadcasting, or If, lishing, least one of the defamatory. as to at ly any following of the de- statements, communicating of jury answered each nine the jury to consider question, the was instructed question phrased, "What sum of This 5. cash, fairly anguish past money, paid now in would only past if and future mental reasonably compensate Shaikh for Haroon damage reputation, and Memon and future loss, any, pecuniary if that was actual his types of that these are not does not contend any by of the false defam- proximately caused loss,” pecuniary or otherwise address "actual you were made atory have found statements charge. phrase jury of this in the the inclusion answering the by Memon?” Manzoor Analysis famatory statements or comments con- 11. Plaintiff,
cerning the HAROON Legal Sufficiency Liability A. of the SHAIKH.... Findings the by This was followed a list of same issue, In his first jury in the nine statements described the trial court denying erred in his judgment The as fol- charge. judgment notwithstanding continued motion for the lows: verdict and his motion for new trial. Judgment without or against verdict applies permanent This commandment any proper is course of proceedings the websites, emails, broadcasts, blogs, to all only when the law does not permit reason blasts, tweets, messages, text memoran- jurors able to reach a different result. da, transmissions, radio television trans- Wilson, City Keller v. of missions, faxes, newsletters, flyers, (Tex.2005). A trial may court render memoranda, newspapers, correspon- judgment notwithstanding the verdict if a books, e-books, dence, or other written directed verdict would have proper, been of it fur- any type; communications or if supports no evidence the court’s trial requires ther the Defendant to remove findings. Tex.R. Civ. P. 301. Stated dif archives, pages, web postings, all web ferently, judgment notwithstanding the any or on prior publications, other items proper verdict is if the legally evidence is
website under the direct or indirect con- to support insufficient verdict. containing any trol the Defendant legal sufficiency test for is accordingly defamatory these or com- statements judgments notwithstanding same for from the com- ments This internet!.] verdict, verdicts, directed and appellate specifically prohibits mandment the de- Keller, no-evidence review. City any from of the republishing fendant S.W.3d at 823. foregoing defamatory reviewing suffi legal When way comments form or fashion on evidence, ciency of the we consider Judgment or after the date this is in the light most favorable to the signed. indulge every verdict and reasonable infer Memon retained counsel after support ence that would it. See id. at verdict, through its acting returned We favorable credit evidence if a reason counsel, timely he for new filed a motion juror disregard contrary able could and trial, modify judgment a motion to juror evidence unless reasonable could permanent and a mo- injunction, delete the not. would Id. If evidence at trial notwithstanding judgment tion for the ver- enable reasonable and people fair-minded issue, dict.6 These motions were overruled to find the facts at then the evidence law, jurors operation perfected legally and Memon sufficient. Id. Because appeal.7 judges credibility are the sole witness untimely supplemental cept upheld legal-sufficiency 6. Memon also filed an court that the trial, motion for new but that this concedes challenge past the evidence future preserve grounds could motion no new reputation to Shaikh’s and directed review. parties judgment. to submit a modified A however, later, week the trial court vacated by opera- 7. After motions were overruled again post- this order denied Memon’s plenary but tion of law before the trial court’s *9 trial motions. expired, signed jurisdiction an the trial court motions, denying post-trial order Memon's ex- 416 liability subparts of the answers to these testimony, we give to to weight error because was harmful questions for that of opinion our
cannot substitute the total to determine jury was asked at 819. jury. See id. damages of of each element amount has “considerable A trial court which on by all of the statements caused jury aside a verdict. to set discretion” based. He as- liability findings were Colinas, Las re Med. Ctr. Columbia asked to was serts that because 204, L.P., 211 290 S.W.3d Subsidiary, each amount of only the cumulative state Thus, (Tex.2009) we (orig. proceeding). by all nine damages caused element of the abuse-of-discretion generally apply statements, properly pres- to he is unable reviewing the trial court’s when standard According to appeal. case on ent his trial. Mindis on a motion for new ruling Memon, what way to determine there is no Control, Metals, Motor & Inc. v. Oilfield awarded for a of the were portion 477, Inc., (Tex.App.-Hous 485 statement, thus, cannot we particular denied). 2004, If the pet. Dist.] ton [14th based its as- whether the determine a chal trial based on for new is motion liability damages on a “valid sessment the evidence sufficiency of lenge to the theory.” verdict, review the then we supporting the by apply of the motion trial court’s denial based on the as argument This is that corre standard of review ing the listed in the that each statement sumption En sufficiency challenge. sponds to the liability the charge separate constituted a Distribution, Inc., 330 v. right Goodman was invalid See ory, at least one of which 392, (Tex.App.-Houston [14th 396 S.W.3d Casteel, 22 S.W.3d Ins. Co. Crown Life case, then, 2010, pet.). In this no Dist.] (Tex.2000). plaintiff al 389 When of re legal-sufficiency standard the same instances of the same leges multiple that trial court’s denial of applies view to the by the same de kinds of acts committed notwith judgment motion for Memon’s the same liability fendant result to its denial of his standing the verdict and action, question as to open cause of it is an trial. motion for new multiple theo whether the acts constitute simply multiple factual Here, liability the trial ries of or theory of supporting single allegations motions be denying erred in these court liability. that on the facts insufficient We conclude legally “the evidence was cause case, allegation in which each factual findings on some of this support jury’s elements and proof of the same single ques required and a liability questions only one injuries, in the same each element of resulted tion was submitted on See For theory liability presented. was he contends there damages.” Specifically, Int’l, (“Haroon Kajima Corp., Plastics USA v. H mosa is no evidence statement Inc., (Tex.App. & n. or video stores that Shaikh owns owned denied) (op. on Corpus pet. Christi Sexually have a required [-] were Orient banc) construction com reh’g (plaintiff en City license from the of Hous ed Business ton”) damaged by it defen false, pany’s claim that was or that Memon knew was conduct in the contract- dant’s fraudulent have known that this statement should induce Thus, process and its fraudulent bidding that the evidence he asserts false. extra-contractual work constituted jury’s ment of legally support insufficient to 3(H) liability—fraud—even single theory questions affirmative answers 4(H). five differ though alleged acts concerned legal insuffi He contends contracts); Med. Las Ctr. support jury’s ent Columbia ciency of the evidence
417 Bush, Romero, rel. 122 166 229 (appellant Colinas v. Bush ex S.W.3d S.W.3d at was 835, 2003, (Tex.App.-Fort pet. required 858 Worth request multiple to appor- denied) (where only is the theo- negligence tionment questions; it was sufficient that ry liability, negligence of acts of specific appellant objected to the inclusion of an (cited liability) are not separate theories liability invalid theory of in the single ap- approval with Rio Grande Columbia portionment question).
Healthcare, Hawley, L.P. v. 284 S.W.3d sum, we that if conclude the evidence (Tex.2009)). 851, 864 was legally to support insufficient the sub- if, contends, Even each as Memon fac- 3(H) 4(H), mission of questions defamation tual basis for Shaikh’s claim harmless, error was because each state- independent theory liability was an simply ment is allega- a different factual single damage ques- submission of the theory tion a supporting single liability. prevents tion under these circumstances a Moreover, even if is this incorrect and damage finding determination that the is each separate statement constitutes a lia- liability theory,” based on a “valid then bility theory, then pre- Memon failed to preserve Memon to ar- required was this serve appellate arguments his with a time- specific objec- gument timely with a ly objection charge. to the We therefore See, e.g., tion to Romero v. charge. overrule Memon’s first issue. Inc., Consolidation, 212, KPH 166 S.W.3d (Tex.2005) (error preserved 228-30 was Sufficiency Damage B. Factual of the objection single apportion- an Awards question ment to con- required theory sider a for liability which there issue, In his Memon second contends evidence); was no Harris County v. the trial in denying court erred his Smith, 230, (Tex.2002) 96 S.W.3d 231-32 motion for new trial because evidence (County preserved by objecting error to factually to support insufficient damage broad-form ques- submission jury’s exemplary award of actual and dam- tion that elements for which included ages. suggest He asks that we remittitur evidence). Here, however, there was no to reduce the total amount of actual dam- object Memon failed to to the ages exemplary to dam- Moreover, he question. pred- $5,000. ages icating asking single question analyze complaint We of excessive damages total for each element caused damages standard of using the same re- by all of the statements issue was not applicable factual-sufficiency view to other erroneous because the would have challenges. Corp. Maritime Overseas v. had no on to allocate basis which (Tex.1998) (cit- Ellis, 971 406 S.W.2d among the statements. But various Moore, ing Pope v. making argument, this has as- (Tex.1986)). weigh all of We consider damage questions sumed that if additional evidence, only the verdict and set aside required, objection were not no then if contrary overwhelming it is so required appeal argu- preserve weight clearly of the as to be regarding single damage ques- ments wrong unjust. 407. Id. at tion. This is incorrect. Tex. Com’n Cf. Morrison, on Human Rights Damages Mental-Anguish (Tex.2012) curiam) (per (“We objections, require compensable, not correct To be mental an only “ error.”); guish high degree ‘a questions, Casteel must consist of preserve
418
contrast,
made false state
In
Memon
that
is ‘more
and distress’
pain
mental
vexation, em
nature about
worry, anxiety,
of a more serious
mere
ments
than
” and which instead
anger’
or
Shaikh,
have
years.
barrassment
did so for
We
disrupt
plaintiffs
da
substantially
may
an individual
no other case in which
found
Woodruff, 901
Parkway
v.Co.
ily routine.
is not a
person
who
singled
has
out
(Tex.1995)
434,
(addressing le
444
S.W.2d
many
target
of so
public figure8 to be
mental-anguish evidence
sufficiency of
gal
over such an ex
defamatory statements
Design
Bldg.
&
Custom
quoting
J.B.
time. The closest case
period
tended
38,
Clawson,
(Tex.App.
43
794 S.W.2d
v.
made
we have found concerns statements
writ)).
1990,
In his
no
Dist.]
Houston [1st
public
official.
many months about
over
insufficiency
factual
for the
only argument
in the case
litigation
the extended
Because
the amount of
supporting
evidence
of the
ap
resulted in five
Bentley
v. Bunton
by the
mental-anguish damages found
opinions
we
pellate opinions,
denote
“any
jury,
mental[-]an
Bentley through
I
Bent
chronologically as
by Shaikh were
damages suffered
guish
1
Bentley,
176 S.W.3d
ley V. See Bunton
for the
necessarily many
greater
times
(“Bent
granted)
(Tex.App.-Tyler
pet.
in
article
made
Chronicle
[the]
”),
part, rev’d and remanded
ley I
in
aff'd
writings”
in
those made Memon’s
than for
(Tex.2002) (“Bent
561
part,
94 S.W.3d
far more credi
is a
because “the Chronicle
(Tex.
”);
remand,
II
past
Judge Bentley’s
Khan,
According to
Shaikh was
reputation
character and
“very disturbed that his name is being
past
anguish.
million for
mental
Id. at
$7
maliciously maligned by these kind of false
12. The Texas Supreme
agreed
court
accusations.”
*12
the award for
to the judge’s repu
Shaikh’s own testimony was much more
tation was “well within a range that the
detailed. He stated that
the emotional
evidence supports,” but reversed and re
strain from Memon’s prolonged attacks
appellate
manded for the
court to recon
“beyond
imagination,”
and he de-
sider the amount of damages awarded for
scribed how Memon had hurt Shaikh’s
II,
anguish.
mental
Bentley
94 S.W.3d at
family
damaged
and
his health:
607.
When he
me,
started [his] attack on
remand,
On
appellate
intermediate
my daughter
years
was eleven
old.
court described the evidence of mental an
She is now 13. She needed me and I
guish admitted at
Judge
trial.
Bentley
am not available to her.... And she
testified that he was “unable to tend to his
asked me what is
with
wrong
you Papa?
family obligations
sulking
because he was
I
just
And am
going, coming from work
worrying”
and
and that
the defamation
going
and
to my bedroom. Couldn’t
“affected his family’s ability
enjoy
each
talk,
speak,
couldn’t
because of that
III,
Bentley
other.”
mental-anguish IV, damages. Bentley man, But this with animosity, with at whatever, jealousy, just with it ruined my years. life for two I cannot—I am Here, the jury found that shaking. Even now I am shaking_ would fairly reasonably compensate I go need to home to sleep without Shaikh past mental anguish, and the I taking pills. my need health I back. evidence supports the plain award. The now, am—I have high pressure blood tiff was target of Memon’s attacks for taking pressure blood medicine. I have months, more than 27 compared as to 18 diabetes now. Bentley. months in M.J. Khan testified that he had seen “how disturbed If Mr. Memon [Shaikh] wants to know he hurt- had been for ... year maybe Yes, over a two ed me? he Big did. Bad time. since these things (emphasis came about.” my family. time. He hurted Big time. actually been reputation, it must have read my daughter, she cries with
He hurted person well wife, someone who knew the cries with me. My me. she (or him enough opinion have an about in our name house- The most famous reading least a statement about remember What did he hold is Manzoor Memon. him), statement, and believed the lowered today? Why you upset, are you so do person a result opinion their of the as Papa. believing He reading and the statement.” her help I cannot talk. I could says of the number of there is no evidence This was bad. the homework. too with statements, and people read the no who sorry. (Crying) I’m who person evidence that a reasonable had record, conclude that On this we opinion a neutral or favorable *13 supports assessment would statements have found Memon’s anguish rea past mental as opinion her credible or lowered his or compensation for substantial sonable reading result of Shaikh as a state- daily routine in Shaikh’s and his disruption Although cites no authori- ments. Memon pain and high degree mental distress. ty jurors in this support argument, Fid. Ins. See Saenz v. & Guar. Underwrit presented could infer from the evidence (Tex.1996). ers, Thus, negative that statements had a Memon’s challenge to fac we overule Memon’s reputation. effect Shaikh’s See Olson on sufficiency of to support tual the evidence 13-10-00054-CV, No. Westergren, the amount awarded. (Tex.App.-Corpus at *5-6 WL 3631963 Damage Reputation to denied) (mem. 18, 2011, Aug. pet. Christi $20,000 for op.) (affirming award of dam- argues pur Memon that “Shaikh’s age despite to “substantial evi- reputation ported damage to reputation evidence for plaintiffs “positive dence” of the and distin- largely was instead for business disparage guished community” reputation ment,” that Shaikh did evidence that a coworker “couldn’t believe” to an support offer sufficient evidence the allegations, because the statements disparagement. award for business This imputed made radio sexual on the miscon- merit. Shaikh argument without sued se). defamatory per duct and thus were defaming personally Memon for him damaging personal reputation, and as general way M.J. Khan testified in a infra, further Shaikh offered evi discussed concerning the effect of Memon’s state- supporting dence awarded. asked, “Have ments. Khan these reputation statements harmed his additionally Memon contends that “if answered, “Yes, I community?” He would significant suffered such Shaikh dam- so, yes.” Although think Khan testified age reputation, overwhelming to his very a friend and Shaikh is close majority already would have been caused in the proof, absence of Khan would not by rather the Chronicle article than Mem- negative things believe the said about writings, on’s which almost all came after Shaikh, telling Khan it is returned Although the article implied it.” Chronicle contributions that Shaikh made to Khan’s required that the video stores were to be political campaigns. by the almost City, licensed none of the by remaining published statements explicit The record also contains more suggested were the article. Memon sent evidence. emails hundreds area, and theory, Memon also states that “in for a of Pakistani Muslims in the de- resignation a from his person’s written statement manded Shaikh’s vari- defamatory Houston Pakistani or statement positions per ous with also is se if it is organizations Islamic “due to his involve- one that ment in close to promoting pornography tends to memory blacken the of the dead neighborhoods, religious and educational or that injure living person’s tends to City city of Houston institutions reputation thereby expose per- stated, limit.” He “Before Houston [the] hatred, public son to contempt or ridi- stories about Mr. Chronicle runs more Ha- cule, or injury financial or to impeach roon clean community Shaikh we must our any person’s virtue, honesty, integrity, organizations people and eliminate with or reputation or publish the natural criminal records to show case that we anyone thereby defects of expose practice A preach.” recipient what we hatred, ridicule, the person public (and emails multiple Memon’s mass whom injury. financial know) Shaikh he testified that does not § Civ. Prac. & Rem.Code Ann. 73.001 Tex. responded, “Haroon should be in (West 2011). “If the court must resort to
jail.” This is some evidence that a reason- innuendo or extrinsic evidence to deter able person opinion would have lowered mine that the statement was defamatory, of Shaikh Memon’s based on then it is per quod requires proof libel implying that he criminal record had *14 injury of and damages.” Royall, Main v. promoting pornography. 381, 2011, 348 (Tex.App.-Dallas S.W.3d 390 argues Memon further that the pet.). no damages presumed cannot be to have been Memon contends that the following by caused his statements because at least defamatory per statements are not se: upon four of the which nine statements the fired, A. Haroon was Shaikh forced to liability findings based its were not resign, to resign or asked from the defamatory per se. Statements that are County Sports Authority. Harris presumed defamatory per injure se are to fired, B. Haroon Shaikh was forced to plaintiff’s the reputation, but if the defam to resign, resign or asked from the atory only defamatory per statement is City Houston-Karaehi Sister Com- quod, plaintiff prove must the exis boards; many mission other II, tence damages. Bentley and amount of H. Haroon owns Shaikh or owned vid- 94 at S.W.3d required eo stores that were to law, common Under a Sexually[-]Oriented have a Business defamatory per only statement se if it City Houston; License of from the falls within following categories: one of the and/or (1) (2) crime; imputation imputation of a of I. Haroon is a pornography Shaikh (3) disease; a injury per loathsome to a king, kingpin, or a con- pornography office, business, son’s profession, calling; or demned pornography kingpin. (4) imputation of sexual misconduct. 4, Gray See v. HEB Store Although Food No. 941 Memon contends 327, S.W.2d that are (Tex.App.-Corpus defamatory 329 Christi these statements 1997, denied). statute, se,9 By per writ a written the distinction between statements additionally 9. Memon See that Statement convicted of a crime. Webster’s New all; however, (3d 1996) College "I” defamatory is not a 289 ed. read- Dictionary World (definitions reasonably er could understand of include "to declare Memon’s "condemn” guilty por- wrongdoing; statement that is a "condemned to be convict” and of "to on”). nography pass judicial kingpin” mean that See also Turner to Shaikh was sentence 422 See, damages e.g., awarded. Pitts & defamatory per se and those that
that are Schechter, Collard, v. defamatory per makes little dif- L.L.P. quod are 301, here, jury’s 310, (Tex.App.-Houston assess- [1st Dist.] ference because 330 $100,000 2011, solely not rest on a damages pet.) (affirming ment of does no award reputation Shaikh introduced on presumption damage harm.10 for to based state actual professional colleagues supports plaintiffs ments to by and awarded assessed who had plaintiff, appointed been $250,000 past for authority, trial court. award the local board of transit reputation not exceed the damage to does was and unethical in the con “dishonest evidence. supported by amount affairs”); political duct of his business and Greer, 421, 423-24, 13 Peshak v. S.W.3d Bentley, case in which the Unlike (Tex.App.-Corpus no Christi on published their statements defendants $55,000 past award pet.) (affirming so the audience for their television injury based on reputation future out, had them to seek one to the Federal Aviation Admin letter govern- his audience to include selected police and a second istration letter ac agents, judge, and mem- mental federal cusing aircraft plaintiff inspector break organizations for whom Shaikh bers of Baker, ing airplane); Bolling into his leadership or in which he held worked (Tex.App.-San Antonio Moreover, positions. recipients one of the w.o.j.) (affirming writ dism’d award repeated emails respond- of Memon’s mass reputation when jail,” ed that Shaikh “should be incident, plaintiffs employer, single friend who has known Shaikh for close plaintiffs told plaintiff coworkers that years campaign returned Shaikh’s contri- trustworthy”); “a liar” “not Whalen v. noted, previously As Memon has butions. *15 (Tex.Civ. Weaver, 176, 464 S.W.2d 181-82 letter-writing, in a engaged campaign 1970, App.-Houston writ [1st ref'd Dist.] emailing, personal meetings mass and to n.r.e.) $15,000 for Shaikh, (affirming award of a campaign defame and the has last- defendant, single in incident which the in years. Considering the num- ed for sheer presence attorneys the of three and defamatory “sev ber of statements the wide parties,” eral unnamed and unknown ac published to which Memon them audience years, “of period plaintiff embezzling company a than two we cused the over more thief’). being funds supports are confident that the evidence and of Television, Inc., 103, v. KTRK 38 S.W.3d 114 Memon’s statements have escalated from 10. ("[A] (Tex.2000) convey can publication Shaikh video assertions that owned stores defamatory meaning by omitting false and or that for offered material sale that is forbidden facts, juxtaposing though story's even all the religions in to representations certain to a in individual statements considered isolation judge Investigation the federal Criminal non-defamatory.”). literally were true This or the Internal Service Division of Revenue that by interpretation could have been reinforced member Shaikh is a of a "financial fraud (1) referring to al- Memon’s email Shaikh’s Although the statements are Mafia.” former leged pornogra- promoting ‘‘involvement in necessarily defamatory, not "it is because stating phy” and "we must our that clean doing defamatory person to accuse a that community organizations peo- and eliminate do,” legal right which he has a to Means records”; (2) ple with criminal and Memon’s ABCABCO,Inc., 209, (Tex. 315 214 asserting separate email that Shaikh "was pet.), App.-Austin no statements such as busted Houston [the] [CJhronicle plainly defamatory per the are se. latter Dept squad running Houston Police Vice porno shops obtaining without SOB those Business) (SexuaIIy[-]Oriented licenses.” accordingly conclude the record ing We that Texas Pet Foods “causing from or the past award of supports contributing threatening to cause or reputation. to Shaikh’s damage the contribute to emission of odors and other air contaminants” around its render- Exemplary Damages ing facility, though even the failed to argues dam- exemplary Memon that the find that the engaged defendant in this ages should be reduced because the conduct). of actual be re- damages awards must jury’s finding past Memon’s duced. Since we have concluded publication defamatory statements is reduced, damages actual need not be this likely only to cause nominal in is without argument merit. imply future does not that no addition We overrule Memon’s second issue. al damage would be caused if Memon re published defamatory in statements Injunction C. Permanent unspecified future to some audience. issue, argues his third Memon easily The trial court could have concluded findings necessary support that the that if republish Memon continues to injunction contrary to permanent were same statements and Shaikh must sue verdict, thus, the trial court erred time, Memon a second it will be difficult denying modify judg his motion to calculate the incremental increase injunctive ment eliminate relief. We anguish Shaikh’s mental dam and in the injunc- the trial review court’s issuance age reputation to his while com avoiding Opera tive for abuse relief of discretion. pensating Shaikh second time for dam tion Rescue-Nat’l v. Planned Parenthood ages awarded in first trial. Golden Cf. Tex., Inc., & Se. 975 S.W.2d of Hous. Eagle Archery, Jackson, Inc. v. (Tex.1998). (Tex.2003) (explaining tort that “a jury’s assess- fully compen victim be fairly should anguish ment of for future mental $1 sated,” “a recovery but double be should for future from reputation $1 avoided”). past publication defamatory Memon’s Because Memon has not shown that the (1) means that can be perma- trial court abused its discretion in (2) adequately compensated damages, *16 him nently enjoining republishing from the damages can be a certain measured defamatory statements that have already (3) standard, damages pecuniary the are Shaikh, damaged we overrule is- his third (4) calculation, the capable future sue.11 jury would be nominal. But to, not, asked determine was not and did III. Conclusion injunctive unnecessary. relief was Inc., Foods, See State v. Tex. Pet 591 We conclude that even if the (Tex.1979) 800, (“Although 803 a legally support jury’s insufficient right by jury has the litigant finding falsely a trial that Memon stated action, only an issues of or for equitable ultimate Shaikh owns owned video stores sexually-oriented fact are submitted for determination. which business licenses expedien- The does not determine were error harmless required, necessity, just nine cy, propriety re- because the statement was one of equitable lief’) (affirming injunctive prohibit- alleged support single relief factual bases of a argument speech. prior 11. Memon makes no about restraint of constitutional 424 support legally insufficient Moreover, if evidence is even each liability.
theory of findings. of these each separate a could be considered statement failed to liability, then theory of effectively holds that this majority The concern- arguments appellate preserve require not rendi insufficiency does legal timely charge ing that statement with notwithstanding the ver judgment tion of that the evi- further hold objection. We analysis does harm because Casteel dict exemplary the actual supports dence than one There must be more apply. awarded, perma- and that damages as harm liability for the Casteel theory of inconsistent is not injunction imposed nent bases majority and the analysis apply, accordingly jury’s findings. We with the that all nine holding on its conclusion this judgment. affirm single theory of part were of a statements otherwise. The liability.1 Texas law holds FROST, J., concurring. analysis is available based harm Casteel theory of liabil valid and an invalid upon a OPINION CONCURRING upon based if theories are ity, even both FROST, Justice. KEM THOMPSON conduct under actionable different Ins. v. See Co. same tort. Crown Life insufficient to legally The evidence is (Tex. 378, 382, Casteel, 387-90 22 S.W.3d as to one of support liability findings 2000) analysis to presumed harm (applying jury found to be defamato- statements the liability theories based and invalid valid conclusion that ry. majority bases its conduct, different all of which alleged upon insufficiency require does not legal this 21.21 of violations of article alleged were notwithstanding the judgment rendition Code); v. Lancaster the Texas Insurance majority’s on the determination verdict 293, 1015, Fitch, 1015- Tex. 246 S.W. subject made that the nine statements (Tex.1923) harm presumed (applying factual bases of the suit were different liability invalid theo analysis to valid and liability rather than dif- single theory conduct, alleged upon different ries based This determina- liability ferent theories. negligence). alleged were all of which law. tion contravenes Texas addition, nine treats each of the Texas law issue, Manzoor appellant his first Under defamatory be as a alleged to trial court erred Memon asserts that the Viey independent tort. See separate notwith- judgment denying his motion Texas, County, No. 10-CV- ra v. Harris motion, standing the verdict. In this (S.D.Tex. 4791518, 1412, at *5 2010 WL legal- that the evidence is Memon asserted 17, 2010); Land Akin v. Santa Clara Nov. jury’s find- ly support insufficient to Co., An (Tex.App.-San 34 S.W.3d be eighth statement found to ings that denied); Marshall Field pet. tonio (that defamatory appellee Haroon Gardiner, Stores, Inc. that were re- owns or owned video stores *17 (Tex.App.-Houston [1st Dist.] Sexually Oriented Busi- quired to have a w.o.j.). writ dism’d Houston) City of ness license from the below, Shaikh, the court plaintiff have and that Memon knew or should false Memon care, against claims known, ordinary asserted defamation in the exercise of statements, made separate nine potential- based on the statement was false and audi- times and different stan- at different ly defamatory. Under the familiar Thus, is a each such statement sufficiency, the ences. legal dard of review for pp. 1. See ante at 416-17.
separate theory liability purposes
determining applicability of the Casteel analysis.
harm
Vieyra,
See
2010 WL
*5; Casteel,
90; Lancaster,
1015-16; Akin,
34 S.W.3d at Marshall Field
Inc.,
ply a different allegation support factual
ing single theory liability.”2 conclusion, the evidence is in- legally
sufficient to support jury’s finding falsely stated that Shaikh owns
owned video sexually-ori- stores which
ented required business licenses were known,
that Memon knew or should have care,
in the exercise of ordinary that this potentially
statement was false and defam-
atory. The statement was not merely one
of nine factual alleged bases in support of single theory instead, of liability; it was subject and, separate of a tort claim as
such, separate was a theory liability.
Nonetheless, Memon is not entitled to a analysis
Casteel harm because he failed to
lay the requisite predicate by objecting to charge. Accordingly, I though
respectfully disagree majority’s with the
analysis, I concur in this judgment. court’s
2. Ante p.