*1 312 writ). 1941, fee, interest, and costs pert’s prejudgment
Dallas no after the proportionate 1995 to the re of court.5 amendments statute, sponsibility the Fourteenth Court Appeals
of held that one has been “[w]here by
induced to enter into a contract fraudu representations, the person
lent commit defeat a
ting fraud cannot claim
damages upon plea party based truth might
defrauded have discovered the Mayes care.” v. exercising proper WOOD, Appellant, Ted Stewart, 440, 11 (Tex.App. S.W.3d denied). 2000, pet. Houston [14th Dist.] jury finding party that the defrauded “[A] DAWKINS, Appellee. Pattilou known, through have should the exercise repre of reasonable diligence, false No. 07-01-0326-CV. addition, Id. In sentations immaterial.” Texas, of Appeals Court of proportionate responsibility statute include the Amarillo. specifically does Fraud Real Estate and Stock Transactions stat 28, May 2002. ute within application, its does DTPA. PRAC. & See Tex. Civ. Ann. Rem.Code Overruling Rehearing Opinion (Vernon 33.002(h) 1997). § Neither has 27, June 2002. legislature amended fraud statute Rehearing July Overruled apply the proportionate responsibility Additionally, appel at least scheme. one has contributory negli
late court held that
gence is not a to a claim under bar section HRH, City 27.01. Inc. v. Kerrville
Kerrville, (Tex.App. denied). hold, Antonio
San writ We
therefore, proportionate responsi
bility apply statutory statute does not and, thus, Estridges’ damages
fraud
will not be or reduced their barred Accordingly, we is
negligence. overrule
sue three.
Conclusion judgment, trial court’s
We reverse the verdict, render jury
reinstate the
judgment Estridges for the the amount $9,650 $2,500 damages, actual at- trial, fees for ex-
torney’s through proves a court to the who party & Com- costs of 5. Section 27.01 of Texas Business provides the re- specifically merce Code violation of 27.01. fees, fees, expert covery attorney's witness *3 filed a traditional Dawkins 166a(c) of judgment under Rule Procedure on the basis the Rules of Civil made her were the statements true, and were opinion, constituted faith without malice. She good made in for sum- a no-evidence motion also filed 166a(i) on the under Rule mary judgment to show that there was no evidence basis issue, In his first she acted with malice. on the that we should focus argues *4 alleged that is to be de- specific language issue, he con- famatory. In his second im- was judgment tends that fact because the statement is one of proper evidence that the state- presented and he false, malice, it made with ment was him. concerned reviewing a traditional sum In show mary the movant must judgment, no issue of material genuine that there is Property Management Mr. fact. Nixon v. (Tex. Co., Inc., 548-49 690 S.W.2d 1985). to the evidence favorable We take indulge every the non-movant as true in the non- favor of reasonable inference as disprove A defendant must movant. Id. one of the essential ele a matter of law or establish ments of each cause of action defenses as a matter of law. one or more Blinderman, Amarillo, appellant. Bob Johnson, Markets, Food Inc. v. Randall’s Mullin, Brown, Mullin, Hoard & David (Tex.1995). 640, 644 891 S.W.2d Amarillo, appellee. reviewing a no-evidence mo BOYD, C.J.,
Before and REAVIS and summary judgment, we ascertain tion for JOHNSON, JJ. than a produced if more the non-movant to raise a probative scintilla BOYD, T. Chief Justice.
JOHN questions pre fact on the material issue Sideris, (Wood) appeals Ted sented. Kimber Appellant 1999, no (Tex.App.-Amarillo pet.). ordering granting take-nothing 675-76 from us, When, the trial in the case before as summary judgment appellee favor of (Dawkins) grounds on which in an action court does not state Pattilou Dawkins summary judgment granted, motion is against her as a result of brought for libel if stated any ground affirm it newspapers. to two For we must letter she wrote v. Brash forth, is meritorious. Carr judg- affirm the the motion the reasons set we (Tex.1989). er, the trial court. ment of jail, emp- when Wood, County Judge building and the current who was Randall County the Randall Com- more room. Until ty, provide and a member of will finished, publication at the time of mission the Norwest build- new is libel, letter to the complains of a alleged If more ing provides enough room. Canyon The News edi- published now, editor lease be had then space must 24, 1999.1 opinion page torial on October being. the time something for para- letter six Although the contains make, however, I is point wish paragraphs first two graphs, is the cover begin million will not are libelous. Neverthe- which he contends they plan on doing the cost of what less, argues that the first because Dawkins county does not need doing and what viewed in the paragraphs two must be “Skip” Huskey’s quote or want! whole, letter as a we context of the entire money scary. Putting the downright entirety: in its will set forth the letter go” my tantamount to “as far as it will stupidity2 ‘Extravagant piece of thing saying, “There’s no such mother’s go again. Here we The Randall The minute being pregnant.” little shifty and the County Commissioners building, another dime the old put subterfuge big time this judge are into that we not require the state will *5 time! started, but that finish what we First, jail. There let’s talk about the And many stipulations. their agree to who engineer was not an or architect from the even if we do receive funds jail believed the new could be built state, just one courthouse million for $10 million told this and the court was $13 figure. a more realistic probably is But the bond issue previous fact. since commission to “Pressing” the historical and the commission- for a had failed laughable. When fund the million is $3 a million bond issue ers court felt $16 agency a state was the last time fail, solution, they be- would also the money? pressured for lieved, was to lower the amount Craig when Gualti- And Commissioner worry issue and about the shortfall bond is- says, “This is not a courthouse ere they issuing now are certifi- later. So terribly sue,” or is lying he’s either goodness Thank it’s obligation. cates of me, the folks in Randall naive. Believe they is point million. it it as County They are not dumb. see gitgo knew from the that $13 issue is for is. The million bond enough! wasn’t courthouse, and renovating the I see we’re today’s paper And now in halfway discover we will pass, should the 1909 to renovate and restore going after the probably through project, the call going But we’re not Courthouse! demolished, that annex has been north “facilities The overt name is it that. is expansion” “facilities the real cost of Please, when will please, expansion.” going to be closer to $15 realize that the Court Commissioners a Parker do Did Commissioner Gene County do not the citizens of Randall he voted on this survey little before courthouse? want to restore the old stupidity? terribly extravagant piece of has this issue been many How times the progresses, I’m that as the time a fine sure The north annex is defeated? by the supplied apparently 2. The title was to the Amarillo 1. The letter was also sent News, appear Daily did not in the news- newspaper, but paper. of what some- details, regardless account of events in the vot- devil will be account, such a County ers of Randall will defeat conclude from might one money. waste of senseless true when there is not hold same does facts, misleading Pattilou Dawkins or a of material omission Amarillo facts. juxtaposition of true presentation or based on claiming A defamation person Id. reaffirmed alleges also Dawkins Wood prove a whole must publication on KGNC radio. as these statements false and defamato- “gist” is publication’s that, in ana Initially, posits ry. Id. statement, defamatory alleged lyzing para
we should focus on the first two gist of the defam- argues letter, other graphs of the because to do that ‘Wood and atory statement yield completely different wise would County the Randall other members of the first two result.3 He asserts new knew from the Commissioners Court should be taken as a whole paragraphs very beginning that the jail project’s themselves, recognizes he although and of purposely rep- million but would cost $16 a particular to determine whether being project’s cost resented is defama publication statement within pass million in a bond issue.”4 order tory, publication as a whole must be gist of the letter reasons, Dawkins focuses on necessary, This is he considered. para because the sentences those two contends is that the Randall which she create a false im graphs combination had misled the vot- County Commissioners if pression, individually they even do new and were on the cost of the ers do so. misleading voters on probably therefore *6 renovating of the old courthouse. the cost allegedly defamatory
An state in light ment must be construed as a whole make our that we should not agree We based surrounding of the circumstances of based on an examination determination upon ordinary intelligence how a person two in the first each individual sentence would it. Turner v. KTRK Tele perceive if to see each statement stand- paragraphs vision., (Tex.2000); Inc., 103, 38 114 S.W.3d examine defamatory, but must ing alone is Inc., Services, Musser v. Protective Smith However, paragraphs together. the two (Tex.1987). 653, A publi 723 655 S.W.2d be may the remainder of the letter neither convey defamatory meaning can a cation a reasonable completely ignored because facts, even by omitting juxtaposing or interpretation publication of a person’s individual consid though each statement in which the on the context may depend non- might literally alone be true or ered (i.e., defamatory appears statement alleged Turner, at 114. defamatory. alleged by paragraphs first two person’s This is so because a reasonable Wood). Therefore, frame- it is within that a entirety on the interpretation depends examina- would conduct our work that we and not individual statements. publication determining the statement tion of Thus, a defendant although Id. at 115. defamatory. whether it is presenting a true cannot be held liable issue, complain of the of the use 4. Wood does not Although as Wood's first this couched part "subterfuge.” really "shifty" on the is not a claim of error words being which we are asked to re- trial court view, being really analysis a but rule of urged by on us Wood. 318
However,
lie
Wood
to the bond
even if the state
statements
defamatory,
facility
re
that
cost of the
ment was found to be
to
election
defamation,
public figure
cover for
a
or
be $20
the defama
public
prove
official must
that
that,
because
Wood contends
tory statement was made with actual mal
witness, her affi
Dawkins is an interested
Entertain
ice. Huckabee v. Time Warner
law
may negate
davit
malice as matter of
(Tex.2000).
Co.,
413,
ment
19
420
S.W.3d
direct,
clear,
positive,
if it is
otherwise
malice, plaintiff
prove
To establish
must
credible and free from contradictions
statement
made “with knowl
readily
and able to be
con
inconsistencies
it was false or with reckless
edge
respect
is correct with
to
troverted. Wood
disregard of whether it was false or not.”
summary
Dawkins’s traditional motion for
Sullivan,
New
Times v.
376 U.S.
York
Huckabee, 19
at 424.
judgment.
279-80,
judgment, Dawkins submitted an affidavit
malice,
he
evidence of an absence of
ill
stating that she bore no malice or will
evi
presented summary judgment
has
everything
and that
toward Wood
that Dawkins acted with actual mal
dence
opinion or
letter was either her sincere
ice.
true
good
what she believed
faith to be
As to evidence that Dawkins acted
fully justified by
and was
at
malice,
to a
specifically points
with
the time. She further averred
she
affi
report,
citizens committee’s
Dawkins’s
that the statements
had no serious doubts
testimony, and the
deposition
not believe
davit and
she made were true and did
*7
of
Barrett. The citizens
Addi-
affidavit
Brian
any of the statements were false.
study
to
and
expe-
appointed
committee was
tionally, she stated that based on
the
respect to
an
of com- make recommendations with
developer
rience as
owner and
estate,
County
new Randall
Jail.
found that
construction of a
mercial real
she has
that committee.
was a member of
always costs Dawkins
“building construction almost
provided to
report
if The committee’s
was
estimate-especially
the first
more than
on De
County
the Randall
Commission
plans
does not include
the first estimate
18, 1997,
recommended the
relied
cember
for construction.” She
on
bids
jail.
signed by
It was
construction of a
being
that
the estimate
knowledge
report
Dawkins as a member.
County
the Randall
Commission
used
cost to construct
certain items and
showed an estimated
did not include costs for
contends this
jail of
million. Wood
on actual architectural
$12.46
was not based
that no archi-
Dawkins’s statement
Additionally,
pub-
she relied on
shows
drawing.
only
parties appear
argue
the merits
ment in their briefs.
5. Both
to
summary judg-
of the traditional
jail.
in the cost of
increase
be million
jail
could
engineer
or
believed
tect
deposition
in her
Dawkins further testified
because the
million was false
built
$13
May 1998 bond
time of the
that at the
an architect’s esti-
based on
report was
election,
commission-
and the other
Wood
mate.
to
going
was
idea what
ers had no
However,
that this was
undisputed
it is
asserts,
event,
this
Wood
any
cost.
that it was not based
only and
an estimate
a fact issue
to raise
is sufficient
evidence
archi-
up by the
plans
actual
drawn
on
jury
determine.
which the
should
costs
shown to include
tects and was not
the Texas
compliance
with
on
associated
However,
undisputed
also
It also did
on
Standards.
Jail
Commission
publicly be
made statements
-that Wood
landscap-
costs associated with
not include
that the
would
election
fore the bond
buildings re-
furnishings,
ancillary
ing,
Although Wood
project.
million
be
$20
department,
the sheriffs
quired
in those
including financing
he was
claims
left blank
items had been
which those
true,
costs,
may
that distinction
which
be
Thus,
to show
nothing
there is
report.
at all or did
either not made
associated with construction
that
costs
portion of the
delineate what
$20
million and
be
costs, and thus
financing
of
up
was made
might
that Dawkins
have been
the fact
that
have believed
Dawkins could well
in her belief that those additional
wrong
election that
to the bond
knew
than
mil-
would have been more
costs
$13
than
million.
higher
be
the cost would
$13
might
there
have been
lion or
of her letter
by the time
She also knew
engineer
actually
or
who
believed
architect
at least
costs were
fact
that the
mil-
total cost would be less than
deciding,
Assuming, without
It must be
lion is not evidence malice.
let
of Dawkins’s
paragraphs
the first two
doubts
shown that Dawkins entertained
public
to the
gave
impression
a false
ter
the archi-
about her assertion as what
jail would
the cost of the
that Wood knew
engineers believed. See Colson
tects and
the time of the
actually
million at
be $16
Grohman,
(Tex.App.-
24 S.W.3d
election,
no evidence
there is still
bond
denied).
2000, pet.
[1st Dist.]
Houston
that state
did not believe
that Dawkins
of facts
presentation
true. The
if the committee ment to be
argues
that even
does
misleading, but
falsity may
negligently
be
did not show a
report
there is
actual malice unless
not establish
engineers
with
to what other
or
respect
strongly
or
the author knew
believed,
it still shows a knowl-
architects
as a whole
publication
suspected
state-
falsity
respect
with
to her
edge
Turner,
at
misleading.
that,
Wood knew was
prior May
ment
falsity of a statement
jail would be 120.
that the cost to construct the
*8
the truth
so,
investigate
alone or a failure
particularly
million. This
$16
Times,
malice. El Paso
contends,
that Daw- does not show
light
of the fact
(Tex.
403,
Trexler,
406
447 S.W.2d
testimony
Inc.
deposition
kins’s affidavit
Communications,
1969);
Inc. v.
Freedom
shows that she obtained
$16
(Tex.
614, 620,
Brand,
907 S.W.2d
newspaper
published
a
article
figure from
writ);
1995, no
John-
13, 1999,
App.-Corpus
a
Christi
reported
which
on October
plans
that,
actual
fact,
to obtain
quired the commission
undisputed
at one of the
it is
meetings,
a bond
County
proposing
specifications
Commission
before
Randall
of one of the
to second motion
declined
election.
re-
which would have
other commissioners
son v. Southwestern Newspapers Corp.,
the costs had increased to
182,
855 S.W.2d
188 (Tex.App.-Amarillo These statements show the basis of Daw-
1993,
denied).
writ
and,
kins’s belief
even if wrong, we believe
her affidavit
negate
is sufficient to
Wood additionally argues that the affi-
element of malice in the absence of contro-
davit of Brian Barrett
proof
raises
of mal-
verting evidence. Although
parties
ice. Barrett also served on the citizens
quibble over
expenses
what
were actually
committee, and he stated that he believed
included at
various times
the other
the estimated cost of
million to
$12.46
be
party when reference was made to the cost
conservative.
when he took of-
jail,
to construct the new
those differences
fice as a
County
Randall
Commissioner on-
in understanding
meaning
or
do not show
1, 1999,
January
he did not anticipate that Dawkins did not have a reasonable
necessary
would be
any more
borrow
basis for her belief.
than
jail.
million to build a
$12.46
Howev-
er,
1999,
in September
Having
he was
found that
informed
Dawkins’s
one
judgment
of the architects that
may
the cost to build
be sustained on the basis
million,
exist,
be about
malice does not
which
it is not neces-
was the
sary
first time he
for us to
county
learned the
address Wood’s contentions
would need to
money.
borrow more
as to the other
Even
elements of defamation.
true,
accepting
Accordingly,
all of
they
these facts as
do
we affirm the judgment.
raise
fact issue as to malice. The
ON MOTION FOR REHEARING
fact that
may
Dawkins and Barrett
have
differed in their beliefs as to the
(Wood)
cost of
Appellant Ted Wood
has filed a
the new
at the time of the committee motion for
rehearing
opinion
our
sus-
election,
report,
the 1998 bond
or even taining
take-nothing
summary judgnent
during
part
the first
of 1999 does not
appellee
favor of
Pattilou Dawkins
constitute
Gaylord
(Dawkins)
malice.
in Wood’s action for libel as a
Co.,
Broadcasting
Francis,
L.P. v.
7 result of a letter written to the newspaper.
279,
284-85 (Tex.App.-Dallas
He complains
improperly
that we
consid-
denied);
pet.
American Broadcasting
ered evidence and inferences
favoring
Gill,
Companies,
Inc. v.
Dawkins,
who moved for summary judg-
(Tex.App.-San
denied),
pet.
Antonio
ment, in determining
pro-
whether Wood
overruled on
grounds by
other
Turner v. duced more than a
probative
scintilla of
Television, Inc.,
KTRK
321 Ancrum, v. that uncontroverted. deposition, which was evidence is her Putthoff 164, 168 Worth place (Tex.App.-Fort her had no favored and should have 934 S.W.2d denied). Wood, 1996, to we writ analysis. According in our to contrary also made inferences Wood’s we is that position It Wood’s com- respect with to the citizen’s position provided any not consider evidence should infer- report improper and mittee made him. it to unless is favorable by Dawkins had Brian Dawkins ence that Barrett and However, mo asserting in her traditional whether Wood differing opinions as to summary judgment, the burden tion for that knew at the time of the bond election of to establish an absence on Dawkins cost the v. of In Huckabee malice as a matter law. in our original opinion noted We Co., L.P., 19 Entertainment Time Warner for filed both traditional motion Dawkins (Tex.2000), filed the defendants S.W.3d mo- summary judgment and a no-evidence summary judg motion for a traditional Further, summary the judgment. tion for sup of malice on the absence ment based which court did not state the basis on trial which employees, affidavits of ported by summary judgment granted, and film subject not they did believe the stated any ground must be if upheld it therefore affidavits false The contained statements. Brasher, 776 is meritorious. Carr v. upon the facts which provided further (Tex.1989). 567, 569 addition- S.W.2d We in relied and edit persons producing those to ally appeared noted that the parties story. The court stated ing the only the the traditional argue merits of malice as a negate actual affidavits could summary in their judgment motion for clear, if and positive, matter of law and, summary upholding briefs direct, free from otherwise credible and judgment, we stated that Dawkins’s affida- inconsistencies, and and contradictions in the “negated vit element of malice at 424. readily Id. able to be controverted. evidence,” which controverting absence Further, must establish such affidavits for a is the standard traditional motion chal truth of the defendant’s belief summary judgment. a basis for provide statements lenged went on to Id. court then belief. Under traditional motion analysis. the affidavits in its consider summary judgment, must the movant automatically Thus, required not to we are there is issue of genuine show that no provided by Dawkins ignore any evidence Property material fact. Mr. Nixon v. position. supportive of Wood’s that is Co., Inc., Management (Tex.1985). we opinion, in our determining original In wheth As stated 548-49 fact, the al- Dawkins’s genuine er there is a issue of material relied on affidavit based defamatory to statements were required leged we are take as true evidence (1) experience respect indulge past her with favorable to non-movant and on (2) costs, any every reasonable inference and resolve construction in the esti- Id. costs were not included doubts favor the non-movant.1 certain (3) knowl- jail, cost of the may we not consider evidence mate of the archi- was not based on position edge that favors the unless the estimate movant’s against determining party produced if able to the whom the non-movant disregard con judgment was rendered all probative than a scintilla evidence more Zipp Indus response trary evidence inferences. raise a fact issue to a no-evidence Co., tries, Ranger summary judgment, must also Ins. Inc. pet.). (Tex.App.-Amarillo no light most favor- consider the in the *10 (4) inferences, drawings, understanding accept they tectural Even if we these jail approved change opinion. that the commission had not do not our That is so (5) any even or all of plans, by assuming statements made Wood because some underlying upon to the factors which Dawkins bond election that the cost of million, making she relied in jail facility would be states statements $20 (6) false, were incorrect or that itself is not newspaper article that the costs allegedly defamatory evidence that had increased to million. has $16 Wood in statements were made with malice. See cited no evidence his motion for rehear- Newspapers ing that Johnson Southwestern controverts these facts were the Corp., (Tex.App. basis for her statements. denied) (failure Amarillo writ to in However, complains Wood that we quire fully accuracy more into of state improperly inferred that the million $12.46 malice). ments is insufficient to show estimate, figure only was not based Nevertheless, asserts that Wood architects, plans by on actual drawn did we should have inferred of fal not include costs with compli associated sity from her statement that she obtained ance promulgated by with standards jail million figure cost from $16 Commission, Texas Jail Standards and did newspaper published article more than a landscap not include costs associated with year after the bond election and her testi ing, furnishing, ancillary buildings. that, mony at the time of the bond elec Instead, argues, he we should have made tion, had no idea what the the following inferences: claims, only cost. he we were 1. The million estimate was $12.46 at opposite able to arrive conclusion commonly by based on factors used ar- incorrectly gave because we consideration in estimating building’s chitects a new to the fact that Wood had made state cost and was intended to be a number publicly ments before the bond election upon which the commissioners court project would be a million rely attempting could to obtain financ- that, fact the time of by and the Dawkins’s ing jail; for the new letter, at cost was least 2. Although plans yet actual were not fallacy argument with this drawn, the architect’s estimate was the dispute does not the truth of those professional opinion architect’s best rehearing. facts his motion for He jail’s the new cost and was intended to may that we not consider contends them upon be a number which the commis- they to him. because are unfavorable rely attempting sioners court could assertion, Contrary to his we did not de jail; financing obtain for the new pro evidence had no termine that Wood’s with compliance 8. Costs associated accepted true the two bative value. We with Texas Jail Commission Standards are favorable statements that Wood claims were taken into account the archi- him. re recognize We also are making tects when their quired to make reasonable inferences and estimate; and resolve doubts favor of the non-movant. However, landscaping, 4. Costs associated with reasonable inferences cannot be ancillary were made relevant facts that are furnishing, buildings ignoring parties. believe we relatively insignificant undisputed by either or costs We rely undisputed on those part that were associated with but not are entitled to Dawkins’s jail. provide facts that a basis for the new *11 belief that her statements about Wood Peggy Harold PARSONS
were true. Appellants, Parsons, that we Finally, complains merely inferred that Dawkins improperly Barrett,
had a Brian different belief than SRH, COMPANY FORD MOTOR committee, on who served the citizens Isuzu; Billy Billy Young Inc. d/b/a jail about of the new at the time of the cost Billy Mercury; Young Lincoln report the committee and the 1988 bond Suzuki, Young Appellees. Barrett affidavit election. stated his 03-01-00127-CV. No. that he believed million estimate be anticipate conservative and did not Texas, Appeals Court any more would have to be borrowed. Austin. a county Barrett became on commissioner June 2002. 1, 1999, January and he did not learn that jail until cost would be million Sept. Rehearing Overruled September than a year more after the bond election. Wood asserts that if we light
consider these facts in the fa most him, we
vorable to there is would conclude
some evidence Dawkins knew he did
not believe would cost
at the time of the bond election. Once
again, do not we believe to be
reasonable inference. these Accepting true,
statements as recite they merely
what Barrett believed from committee
report about cost of the and when
he it would They knew increase. do
provide evidence as to what Daw- Wood or
kins believed the cost about of the
from report they the committee and when
knew the cost increase. origi-
Based on the factors noted our opinion
nal and which we have reiterated
again, Dawkins established her belief defamatory
the truth the allegedly
statements and basis for her belief
their Finding origi- truth. no error in our matter,
nal overrule disposition
appellant’s rehearing.