Affirmed and Opinion and Concurring Opinion filed April 30, 2013.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-12-00015-CV

                         MANZOOR MEMON, Appellant

                                          V.

                          HAROON SHAIKH, Appellee

                     On Appeal from the 55th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2010-28636



                   CONCURRING OPINION


      The evidence is legally insufficient to support liability findings as to one of
the statements the jury found to be defamatory. The majority bases its conclusion
that this legal insufficiency does not require rendition of judgment notwithstanding
the verdict on the majority’s determination that the nine statements made the
subject of the suit were different factual bases for a single theory of liability rather
than different liability theories. This determination contravenes Texas law.

          Under his first issue, appellant Manzoor Memon asserts that the trial court
erred in denying his motion for judgment notwithstanding the verdict. In this
motion, Memon asserted that the evidence is legally insufficient to support the
jury’s findings that the eighth statement found to be defamatory (that appellee
Haroon Shaikh owns or owned video stores that were required to have a Sexually
Oriented Business license from the City of Houston) was false and that Memon
knew or should have known, in the exercise of ordinary care, that the statement
was false and potentially defamatory. Under the familiar standard of review for
legal sufficiency, the evidence is legally insufficient to support each of these
findings.

           The majority effectively holds that this legal insufficiency does not require
rendition of judgment notwithstanding the verdict because a Casteel harm analysis
does not apply. There must be more than one theory of liability for the Casteel
harm analysis to apply, and the majority bases this holding on its conclusion that
all nine statements were part of a single theory of liability. 1 Texas law holds
otherwise. The Casteel harm analysis is available based upon a valid and an
invalid theory of liability, even if both theories are based upon different actionable
conduct under the same tort. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378,
382, 387–90 (Tex. 2000) (applying presumed harm analysis to valid and invalid
liability theories based upon different alleged conduct, all of which were alleged
violations of article 21.21 of the Texas Insurance Code); Lancaster v. Fitch, 246
S.W.2d 1015, 1015–16 (Tex. 1923) (applying presumed harm analysis to valid and
invalid liability theories based upon different alleged conduct, all of which were

1
    See ante at p. 13.

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alleged negligence). In addition, Texas law treats each of the nine statements
alleged to be defamatory as a separate and independent tort. See Vieyra v. Harris
County, Texas, No. 10-CV-1412, 2010 WL 4791518, at *5 (S.D. Tex. Nov. 17,
2010); Akin v. Santa Clara Land Co., 34 S.W.3d 334, 340 (Tex. App.—San
Antonio 2000, pet. denied); Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d
391, 394 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d w.o.j.).

          Shaikh, the plaintiff in the court below, asserted defamation claims against
Memon based on nine separate statements, made at different times and to different
audiences. Thus, each such statement is a separate theory of liability for purposes
of determining the applicability of the Casteel harm analysis. See Vieyra, 2010 WL
4791518, at *5; Casteel, 22 S.W.3d at 387–90; Lancaster, 246 S.W.2d at 1015–16;
Akin, 34 S.W.3d at 340; Marshall Field Stores, Inc., 859 S.W.2d at 394. The
majority errs in concluding that “each statement is simply a different factual
allegation supporting a single theory of liability.”2

          In conclusion, the evidence is legally insufficient to support the jury’s
finding that Memon falsely stated that Shaikh owns or owned video stores for
which sexually-oriented business licenses were required and that Memon knew or
should have known, in the exercise of ordinary care, that this statement was false
and potentially defamatory. The statement was not merely one of nine factual
bases alleged in support of a single theory of liability; instead, it was the subject of
a separate tort claim and, as such, was a separate theory of liability. Nonetheless,
Memon is not entitled to a Casteel harm analysis because he failed to lay the
requisite predicate by objecting to the jury charge.          Accordingly, though I
respectfully disagree with the majority’s analysis, I concur in this court’s

2
    Ante at p. 14–15.

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judgment.




                                   /s/       Kem Thompson Frost
                                             Justice

Panel consists of Justices Frost, Christopher, and Jamison. (Christopher, J.,
majority.)




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