                                                                                             ACCEPTED
                                                                                        13-15-00506-CV
                                                                        THIRTEENTH COURT OF APPEALS
                                                                               CORPUS CHRISTI, TEXAS
                                                                                   5/12/2016 3:07:01 PM
                                                                                       Dorian E. Ramirez
                                                                                                  CLERK

                                      IN THE

              Thirteenth Court of Appeals  FILED IN
                                    13th COURT OF APPEALS
                                             CORPUS
                   CORPUS CHRISTI AND EDINBURG, TEXASCHRISTI/EDINBURG, TEXAS
                                                        5/12/2016 3:07:01 PM
                                No. 13-15-00506-CV       DORIAN E. RAMIREZ
                                                                Clerk


SCRIPPS NP OPERATING, LLC,                  Interlocutory appeal from
A WISCONSIN LIMITED LIABILITY               The 214th District Court
COMPANY, SUCCESSOR IN INTEREST              Nueces County, Texas
TO SCRIPPS TEXAS NEWSPAPERS, LP
D/B/A CORPUS CHRISTI CALLER-
TIMES
AND THE E.W. SCRIPPS CO.,
                Appellants,

     — v. —

TERRY CARTER,                               The Honorable Jose Longoria
                                            Presiding
                  Appellee



                         TERRY CARTER’S BRIEF


Bryan A. Garner               E-mail:                  Craig S. Smith
Tex. Bar No. 07672000           bgarner@lawprose.org Tex. Bar No. 18553570
Karolyne H.C. Garner            kcheng@lawprose.org LAW OFFICES OF CRAIG S.
Tex. Bar No. 24053883           tjackson@lawprose.org SMITH
Carol T. Jackson                                       14493 S.P.I.D. Suite A
Tex. Bar No. 00797783         René Rodriguez           P.M.B. 240
14180 Dallas Parkway          Tex. Bar No. 17148400 Corpus Christi, TX 78418
Suite 280                     LAW OFFICE OF RENÉ       Tel.: (361) 728-8037
Dallas, TX 75254                RODRIGUEZ              E-mail:
Tel.: (214) 691-8588          433 S Tancahua Street      ccslaw@stx.rr.com
Fax: (214) 691-9294           Corpus Christi, TX 78401
Counsel for Terry Carter
Oral Argument Requested
                                                 Table of Contents

Table of Authorities...................................................................................................... iii

Questions Presented ..................................................................................................... vi

Statement About the Record ...................................................................................... vii

List of Parties and Other People............................................................................... viii

Index to Appendixes ..................................................................................................... x

Introduction.................................................................................................................. 21

Statement of Facts ......................................................................................................... 3

Summary of Argument ................................................................................................ 13

Standard of Review ......................................................................................................14

Argument ...................................................................................................................... 16

     A. Substantial evidence shows that the articles are collectively
        defamatory and defamatory per se. ................................................................ 16

          1. Ample evidence shows that the Caller-Times’ articles were not
             substantially true. ........................................................................................ 17

          2. The publications are not constitutionally protected opinion. ............... 24

          3. The judicial-proceeding privilege does not shield the Caller-Times. ...27

     B. There is evidence aplenty of actual malice, recklessness, and
        negligence—and all factual inferences are to be drawn in Carter’s
        favor. .................................................................................................................. 29

          1. The Caller-Times’ publisher had motives to attack Carter. ................... 30

          2. The Caller-Times selectively omitted material facts and juxtaposed
             facts with innuendo. ................................................................................... 35


                                                                 i
          3. The Caller-Times deliberately avoided the truth. ...................................39

          4. The Caller-Times recklessly or negligently relied on sources it
             should have known were questionable. ................................................... 42

     C. A jury could find from the evidence that there was a conspiracy to
        defame Carter, to prevent the Chamber from renewing Carter’s
        employment contract, and to drive him to resign. .......................................56

     D. Because the owner of a media outlet is liable for the outlet’s wrongful
        act, Scripps is liable for the Corpus Christi Caller-Times’ defamatory
        articles. ............................................................................................................... 61

Conclusion .................................................................................................................... 62




                                                                ii
                                     Table of Authorities

Cases

  Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) .......... 14, 16, 25, 29, 34, 37, 38, 39

  Brown v. Kelly Broad. Co., 48 Cal. 3d 711 (Cal. 1989) ........................................... 61

  Buck v. Palmer, 381 S.W.3d 525 (Tex. 2012) ........................................................ 13

  Casso v. Brand, 776 S.W.2d 551 (Tex. 1989)......................................................... 13

  Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) .............................................. 34

  Chapman v. King Ranch, Inc., 41 S.W.3d 693 (Tex. App.—Corpus Christi
     2001), rev’d on other grounds, 118 S.W.3d 742 (Tex. 2003).............................. vii

  City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ............................................ 13

  Denton Pub. Co. v. Boyd, 460 S.W.2d 881 (Tex. 1970) .......................................... 27

  Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005)..................... 13

  Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809 (Tex. 1976) ............................ 28

  Franco v. Cronfel, 311 S.W.3d 600 (Tex. App. 2010) ..................................... 34, 38

  Garrison v. Louisiana, 379 U.S. 64 (1964) ....................................................... 28, 34

  Golden Bear Distrib. Sys. v. Chase Revel, Inc., 708 F.2d 944 (5th Cir. 1983) .........35

  Guisti v. Galveston Tribune, 150 S.W. 874 (Tex. 1912) .......................................... 14

  Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657 (1989).... 29, 37, 38, 40,
    41

  Hearst Corp. v. Skeen, 159 S.W.3d 633 (Tex. 2005) .............................................. 29

  Hooper-Holmes Bureau v. Bunn, 161 F.2d 102 (5th Cir. 1947) ....................... 17, 60



                                                  iii
Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413 (Tex. 2000)................ 34, 35

Int’l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex. 1963) .................... 55

Kapellas v. Kofman, 459 P.2d 912 (Cal. 1969) ........................................................ 14

Masson v. New Yorker Mag., 501 U.S. 496 (1991) ................................................. 16

Milkovich v. Lorain Journal Co., 497 U.S. 1, 16 (1990) .......................................... 24

Moore v. Waldrop, 166 S.W.3d 380 (Tex. App.—Waco, 2005, no pet.) ............. 15

Musser v. Smith Protective Servs., 723 S.W.2d 653 (Tex. 1987) ....................... 14, 29

Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013).......................... 17, 22, 23, 27, 28, 60

Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71
  (Tex. App.—Houston [1st Dist.] 2013) (no pet.) ............................ 28, 37, 38

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ........................................... 28

Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376
    (1973) ................................................................................................................. 60

Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74 (Tex.
   2000)................................................................................................................... 59

Roskey v. Tex. Health Facilities Comm’n, 639 S.W.2d 302 (Tex. 1982)................. 13

Scripps Texas Newspaper, LP v. Carter, 13-09-00655-CV, 2012 WL 5948955
    (Tex. App.—Corpus Christi, Nov. 21, 2012, pet. denied) .......................... 27

St. Amant v. Thompson, 390 U.S. 727 (1968) ......................................................... 41

Sudan v. Sudan, 199 S.W.3d 291 (Tex. 2006) ....................................................... 13

Turner v. KTRK Television, Inc., 38 S.W.3d 103
   (Tex. 2000) ..................................................... 13, 14, 15, 16, 17, 24, 28, 34, 35

Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) ............................. 13


                                                           iv
   Vice v. Kasprzak, 318 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 1979,
      pet. denied) ........................................................................................................15

   Waldbaum v. Fairchild Pubs., Inc., 627 F.2d 1287 (D.C. Cir. 1980)...................... 52

   WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998) .............................. 52

   Zacchini v. Scripps-Howard Broadcasting, Inc., 351 N.E.2d 454 (Ohio 1976) ........60

   Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066 (5th Cir. 1987) ........................ 36

Statutes

   Tex. Civ. Prac. & Rem. Code § 73.002 ................................................................ 27

   Tex. Penal Code § 31.03 ................................................................ 9, 16, 18, 37, 48

   Tex. Penal Code § 32.32 ................................................................ 9, 18, 20, 37, 48

   Tex. Penal Code § 32.45 .................................................... 9, 16, 18, 19, 25, 37, 48

Rules

   Tex. R. Civ. P. 166a................................................................................................ 13

   Tex. R. Civ. P. 58 ................................................................................................... vii

Other Authorities

   Bryan A. Garner, The Chicago Guide to Grammar, Usage, and Punctuation
      (2016) .......................................................................................................... 20, 24

   19 C.J.S. Corporations ............................................................................................... 60

   Merriam-Webster’s Collegiate Dictionary (11th ed.) ................................................... 20

   Restatement (First) of Agency (1933) ........................................................... 17, 60

   W. Page Keeton et al., Prosser & Keeton on Torts (Supp. 1988)........................... 35



                                                            v
                             Questions Presented

A. No truth and not opinion. In an editorial containing nothing to suggest that
   the statements were other than facts, the Caller-Times implied Carter had
   committed at least three felonies. For these statements, the Caller-Times has
   shown neither that the statements were true (or even believed to be true) nor
   that an ordinary reader would not perceive criminal acts. Has it proved a
   defense of truth or opinion?

B. No privilege applies. The judicial-proceeding privilege expressly protects
   reports of judicial proceedings and the proceedings of public meetings. In at
   least 21 articles, the Caller-Times reported about Chamber of Commerce
   meetings that were not public meetings. Does the judicial-proceeding
   privilege apply to these articles?

C. Actual malice. Evidence of actual malice is sufficient if it permits the
   conclusion that the alleged defamer made the false publication with a high
   degree of awareness of probable falsity or with reckless disregard of whether
   it was true. The Caller-Times selectively omitted or juxtaposed material facts
   to create a false impression, purposefully avoided learning the truth, and
   ignored obvious reasons to doubt the veracity of a source. Is there evidence
   of actual malice?

D. Recklessness and negligence. Recklessness is shown when appellants
   knew that the statements made were false. Negligence is the failure to
   investigate a statement’s falsity and act as a reasonably prudent person.
   Although a Caller-Times reporter admitted listening to a tape in which
   Bentley talked at length with an accountant, she published an article claiming
   that Bentley had been denied access to that accountant. Is there evidence of
   recklessness or negligence?




                                        vi
                            Statement About the Record

      Record cites in this brief are to the black, typed numbers on the bottom

right of each page. This case has been briefed and rebriefed in this Court and the

Supreme Court of Texas. There are three numbers on the bottom of many pages

in the record. These include a red number on the bottom left of many pages.

The red numbers were placed by the Supreme Court of Texas in the first appeal.

Handwritten numbers were placed on the bottom right of many pages by the

Nueces County District Clerk. This created the Clerk’s Record in the first appeal.

      This Clerk’s Record is Bates-stamped with black, typed numbers on the

bottom right of each page. There are 12,763 pages in this Clerk’s Record

numbered sequentially. Many pages are verbatim copies of the Clerk’s Record in

the first appeal. The great length of this Clerk’s Record is necessary because it

contains the proof that there is no new material evidence in this appeal, and all

of the Caller-Times’ complaints were or could have been raised in the first

appeal.

      Where necessary, Carter has referred to his previously filed summary-

judgment response and attached evidence,1 and Brief on the Merits in the

Supreme Court of Texas.2



1    2CR4199.
2    Chapman v. King Ranch, Inc., 41 S.W.3d 693 (Tex. App.—Corpus Christi 2001), rev’d on
     other grounds, 118 S.W.3d 742 (Tex. 2003) (holding parties may incorporate by reference
     other summary-judgment pleadings and evidence); Tex. R. Civ. P. 58.

                                             vii
                     List of Parties and Other People
                      (Alphabetically by Last Name)

Name                    Role

Elvia Aguilar           Reporter, Corpus Christi Caller-Times

Libby Averyt            Vice-president, Corpus Christi Caller-Times

Mike Baird              Columnist, Corpus Christi Caller-Times

Damon Bentley           Treasurer, Corpus Christi Chamber of Commerce

Patrick Birmingham      President and publisher, Corpus Christi Caller-Times

Terry Carter            President and CEO, Corpus Christi Chamber of
                        Commerce

Mary Ann Cavazos        Reporter, Corpus Christi Caller-Times

Fanny S. Chirinos       Reporter, Corpus Christi Caller-Times

Shane Fitzgerald        Editor, Corpus Christi Caller-Times

Beth Francesco          Assistant editor, Corpus Christi Caller-Times

Judy Hawley             Former executive-board member, Corpus Christi
                        Chamber of Commerce

Van Huseman             Attorney, Corpus Christi Chamber of Commerce

Nick Jiminez            Editorial page editor, Corpus Christi Caller-Times

Freddie Martinez        Chairman, Corpus Christi Chamber of Commerce

Tony Pederson           Expert witness for the Caller-Times

Jaime Powell            Reporter, Corpus Christi Caller-Times

Lucy Reta               Employee, Corpus Christi Chamber of Commerce


                                     viii
Israel Saenz       Reporter, Corpus Christi Caller-Times

Darrell Thompson   CPA, Corpus Christi Chamber of Commerce

Tom Whitehurst     Editor, Corpus Christi Caller-Times

Sylvia Whitmore    Former executive-board member, Corpus Christi
                   Chamber of Commerce




                                 ix
                           Index to Appendixes

1 Terry Carter’s First Affidavit. 2CR2684; 4CR5401.

2 Terry Carter’s Second Affidavit. 6CR12165.

3 Corpus Christi Caller-Times Articles

  A     Kimberly Vetter, “Chamber Picks New Chief,” Corpus Christi Caller-
        Times, 24 June 2004. 2CR1460.

  B     Beth Wilson, “City Undecided About Incentives for Westside Mall,”
        Corpus Christi Caller-Times, 10 June 2007, at A1. 2CR1463.

  C     Elvia Aguilar & Beth Wilson, “Council Puts Off Vote on Tax Aid,”
        Corpus Christi Caller-Times, 13 June 2007. 2CR1467.

  D     Elvia Aguilar, “Tax Incentives Split Opinions of Chambers,” Corpus
        Christi Caller-Times, 15 June 2007. 2CR1470.

  E     Elvia Aguilar & Beth Wilson, “Coastcon Pulls Out of Chamber,”
        Corpus Christi Caller-Times, 19 June 2007. 2CR1473.

  F     Elvia Aguilar, “Chamber Seeks Level Playing Field,” Corpus Christi
        Caller-Times, 23 June 2007, at A1, 8. 2CR1476.

  G     Libby Averyt, “The City Must Look Beyond Southside,” Corpus Christi
        Caller-Times, 24 June 2007, at A20. 2CR1479.

  H     Elvia Aguilar, “Tax Incentives Ok’d for Mall,” Corpus Christi Caller-
        Times, 24 Oct. 2007, at A1, 6. 2CR1481.

  I     Denise Malan, “Call to chief leads to badge inquiry,” Corpus Christi
        Caller-Times, 26 Oct. 2007. 2CR1484.

  J     Aguilar & Fanny S. Chirinos, “The Caller-Times Leaves Chamber,”
        Corpus Christi Caller-Times, 19 Dec. 2007. 2CR1487.

  K     Jaime Powell, “Financial, management questions raised at CC
        Chamber,” Corpus Christi Caller-Times, February 15, 2008. 2CR1490.


                                       x
L   Jaime Powell, “Chamber pulls two off panel,” Corpus Christi Caller-
    Times, February 16, 2008, at A1, 7. 2CR1493.

M   Elvia Aguilar, “CC Chamber meeting to discuss financial
    irregularities,” Corpus Christi Caller-Times, February 20, 2008. 2CR1496.

N   Elvia Aguilar, “Financial questions lead to call for audit,” Corpus Christi
    Caller-Times, February 21, 2008, at A1, 7. 2CR1498.

O   Elvia Aguilar, “Chamber CEO shifted funds, letter says,” Corpus Christi
    Caller-Times, February 27, 2008, at A1, 7. 2CR1500.

P   Elvia Aguilar, “Ex-chair airs her Chamber concerns,” Corpus Christi
    Caller-Times, February 29, 2008, at A1, 7. 2CR1503

Q   Editorial [unsigned], “Chamber CEO’s actions raise serious
    questions,” Corpus Christi Caller-Times, March 2, 2008, at A20.
    2CR1506.

R   Elvia Aguilar, “Petition seeks Chamber changes,” Corpus Christi Caller-
    Times, March 3, 2008, at A1, 5. 2CR1508.

S   Elvia Aguilar, “About 80 sign petition on Chamber operation,” Corpus
    Christi Caller-Times, March 4, 2008, at A1, 7. 2CR1511.

T   Elvia Aguilar, “Chamber board, CEO to enter talks,” Corpus Christi
    Caller-Times, March 8, 2008, at A1, 7. 2CR1514.

U   Elvia Aguilar, “Chamber treasurer granted temporary restraining order
    protecting tape,” Corpus Christi Caller-Times, March 19, 2008. 2CR1516.

V   Elvia Aguilar, “Chamber unrest ends up in court,” Corpus Christi Caller-
    Times, March 20, 2008, at A1, 6. 2CR1518.

W   Elvia Aguilar, “Chamber to discuss petitioners’ concerns,” Corpus
    Christi Caller-Times, March 21, 2008. 2CR1520.

X   Elvia Aguilar, “Chamber puts CEO on paid leave,” Corpus Christi
    Caller-Times, March 26, 2008. 2CR1523.



                                   xi
Y     Elvia Aguilar, “Chamber CEO on paid leave,” Corpus Christi Caller-
      Times, March 27, 2008, at A1, 6. 2CR1526.

Z     Elvia Aguilar, “Judge unifies filings on Chamber events,” Corpus Christi
      Caller-Times, March 27, 2008, at A6. 2CR1527.

AA    Elvia Aguilar, “Chamber finances moved to forefront,” Corpus Christi
      Caller-Times, March 31, 2008. 2CR1529.

BB    Elvia Aguilar & Fanny S. Chirinos, “Chamber had deficit, board tells
      members,” Corpus Christi Caller-Times, April 1, 2008. 2CR1532.

CC    Elvia Aguilar, “Chamber, in need of audit, renews accountant search,”
      Corpus Christi Caller-Times, April 29, 2008, at D1. 2CR1536.

DD    Elvia Aguilar, “Chamber offers contract settlement to Carter, his
      attorney says,” Corpus Christi Caller-Times, May 2, 2008. 2CR1538.

EE    Elvia Aguilar, “Chamber makes offer, Carter’s attorney says,” Corpus
      Christi Caller-Times, May 3, 2008, at D1. 2CR1540.

FF    Fanny S. Chirinos, “Chamber, Carter’s attorney confirm severance
      agreement,” Corpus Christi Caller-Times, May 23, 2008. 2CR1542.

GG    Fanny S. Chirinos, “Carter’s salary to be paid in full,” Corpus Christi
      Caller-Times, May 24, 2008, at A1, 11. 2CR1545.

HH Fanny S. Chirinos, “Release of chamber audio recording sought,”
   Corpus Christi Caller-Times, May 28, 2008, at B2. 2CR1547.

II    Mary Ann Cavazos, “Judge orders that chamber tape recording be
      released today,” Corpus Christi Caller-Times, May 30, 2008. 2CR1549.

JJ    Mary Ann Cavazos, “Chamber tape tells of heated exchange,” Corpus
      Christi Caller-Times, May 31, 2008, at A1, 5. 2CR1551.

KK    Mary Ann Cavazos, “Ex-Chamber CEO’s mediation to continue,”
      Corpus Christi Caller-Times, June 13, 2008, at D1. 2CR1553.




                                     xii
4 Other News Article: John Kelley, “Opponents described as ‘lynch mob,’”
  We the People, 2 Apr. 2008. 1CR1555.

5 Chamber of Commerce Newsletter: Terry Carter, “Will Someone Please
  Set the Record Straight?” Your Corpus Christi Chamber News, 22 June 2007.
  2CR1559.

6 Texas Penal Code

   A     Tex. Penal Code § 31.03.

   B     Tex. Penal Code § 32.32.

   C     Tex. Penal Code § 32.45.

7 Miscellany

       Cited Cases

         ● Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002).

         ● Brown v. Kelly Broad. Co., 48 Cal. 3d 711 (Cal. 1989).

         ● Buck v. Palmer, 381 S.W.3d 525 (Tex. 2012).

         ● Casso v. Brand, 776 S.W.2d 551 (Tex. 1989).

         ● Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

         ● Chapman v. King Ranch, Inc., 41 S.W.3d 693 (Tex. App.—Corpus
           Christi 2001), rev’d on other grounds, 118 S.W.3d 742 (Tex. 2003).

         ● City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).

         ● Denton Pub. Co. v. Boyd, 460 S.W.2d 881 (Tex. 1970).

         ● Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005).

         ● Foster v. Laredo Newspapers, 541 S.W.2d 809 (Tex. 1976).



                                       xiii
● Franco v. Cronfel, 311 S.W.3d 600 (Tex. App.—Austin 2010, no pet.).

● Garrison v. Louisiana, 379 U.S. 64 (1964).

● Golden Bear Distrib. Sys. v. Chase Revel, Inc., 708 F.2d 944 (5th Cir.
  1983).

● Guisti v. Galveston Tribune, 150 S.W. 874 (Tex. 1912).

● Harte-Hanks Commc’ns v. Connaughton, 491 U.S. 657 (1989).

● Hearst Corp. v. Skeen, 159 S.W.3d 633 (Tex. 2005).

● Huckabee v. Time Warner Entm’t, Co., 19 S.W.3d 413 (Tex. 2000).

● Int’l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex. 1963).

● Kapellas v. Kofman, 459 P.2d 912 (Cal. 1969).

● Masson v. New Yorker Mag., 501 U.S. 496 (1991).

● Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

● Moore v. Waldrop, 166 S.W.3d 380 (Tex. App.—Waco, 2005, no
  pet.).

● Musser v. Smith Protective Servs., 723 S.W.2d 653 (Tex. 1987).

● Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013).

● Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416
  S.W.3d 71 (Tex. App.—Houston [1st Dist.] 2013) (no pet.).

● New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

● Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S.
  376 (1973).

● Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74 (Tex.
  2000).


                               xiv
  ● Roskey v. Tex. Health Facilities Comm’n, 639 S.W.2d 302 (Tex. 1982).

  ● Scripps Texas Newspaper, LP v. Carter, 13-09-00655-CV, 2012 WL
    5948955 (Tex. App.—Corpus Christi, Nov. 21, 2012, pet. denied).

  ● St. Amant v. Thompson, 390 U.S. 727 (1968).

  ● Sudan v. Sudan, 199 S.W.3d 291 (Tex. 2006).

  ● Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000).

  ● Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005).

  ● Vice v. Kasprzak, 318 S.W.3d 1 (Tex. App.—Houston [1st Dist.]
    1979, pet. denied).

  ● Waldbaum v. Fairchild Pubs., Inc., 627 F.2d 1287 (D.C. Cir. 1980).

  ● WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998).

  ● Zacchini v. Scripps-Howard Broadcasting, Inc., 351 N.E.2d 454 (Ohio
    1976).

  ● Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066 (5th Cir. 1987).

Cited Dictionary Pages

  ● Merriam-Webster’s Collegiate Dictionary 284 (11th ed.) (s.v. could).

  ● Merriam-Webster’s Collegiate Dictionary 1445 (11th ed.) (s.v. would).

Cited Rules

  ● Tex. R. Civ. P. 166a(c).

  ● Tex. R. Civ. P. 166a(i).

Record Cites

  ● 2CR2330–2344 (Carter’s employment contracts in full).


                                  xv
● 2CR2332, lines 4–8 (Carter’s original employment contract,
  showing first form of performance-bonus provision).

● 2CR2337 (Carter’s original employment contract, Attachment A).

● 2CR2338 (Carter’s original employment contract, Attachment B).

● 2CR2341 ([2005] Amendment to [Carter’s] Employment Contract).

● 2CR2343 ([February 2007] Amendment Number 2 to [Carter’s]
  Employment Contract).

● 2CR2345–53 (Chamber of Commerce publications).

● 2CR2445–69 (Carter depo. excerpts).

● 2CR2460 (cover of Hola! from the Caller-Times).

● 2CR2461 (complete Aguilar affidavit citing Whitmore as source for
  claim that Carter’s bonus was tied to Chamber’s financial
  performance; showing no attempt to contact primary sources;
  listened to audiotape of 15 Feb. 2008 meeting).

● 2CR2468 (Birmingham’s 15 Feb. 2008 “rumor” e-mail: “funny stuff
  going on with their finances”).

● 2CR2469 (Pederson’s expert-opin. excerpt: citing Bentley,
  Whitmore, and Hawley depos. as sources).

● 2CR2464 (Pederson’s expert-opin. excerpt: “There is no indication
  in the record of any connection between the newspaper’s coverage
  of the plaintiff in his role as CEO of the Chamber of Commerce
  and his earlier role as a critic of Crosstown Commons, a proposed
  commercial development in the city.”).

● 2CR2465 (Pederson’s expert-opin. excerpt: the newspaper’s March
  2 editorial “suggest[ed] that the chamber get rid of [Carter] and
  move on.”).




                            xvi
● 2CR2477 (Plaintiff’s Amended Consolidated Summary Judgment
  Response: “don’t ever mess with the man that buys ink by the 50-
  gallon drum”).

● 2CR2485, lines 3–11 & 19–20 (Aguilar depo. excerpt:
  acknowledging reporter never spoke to Chamber treasurer Damon
  Bentley or Chamber CPA Darrell Thompson).

● 2CR2486, lines 4–24 (Aguilar depo. excerpt: admitting failure to
  confirm information).

● 2CR2490 (Birmingham’s Caller-Times resignation letter).

● 2CR2491 (Birmingham 15 Feb. 2008 e-mail: “some wanted to fire
  Terry”).

● 2CR2493, lines 15–17 (Bentley depo. excerpt: not mentioning
  qualifications in finance or accounting).

● 2CR2494, lines 9, 13–16 (Bentley depo. excerpt: not mentioning
  qualifications in finance or accounting).

● 2CR2495 (Bentley depo. excerpt: involvement with Mauricio Celis).

● 2CR2498, lines 15–20 & 22–25 (Bentley depo. excerpt: became
  Chamber treasurer; no knowledge of Chamber’s accounting
  method or procedures).

● 2CR2499, line 1 (Bentley depo. excerpt: no knowledge of
  Chamber’s accounting method or procedures).

● 2CR2501, lines 8–25 (Bentley depo. excerpt: accountant
  commented only generally, needed more information).

● 2CR2502, lines 1–4 (Bentley depo. excerpt: CPA refused to express
  opinion).

● 2CR2503 (Bentley depo. excerpt: describing Carter’s employment
  contract in part without referring to amendments).



                            xvii
● 2CR2504 (Bentley depo. excerpt: recounting events of scandal).

● 2CR2505 (Bentley depo. excerpt: recounting events of scandal).

● 2CR2506 (Bentley depo. excerpt: recounting events of scandal).

● 2CR2515, lines 12–25 (Hawley depo. excerpt: waffling on financial-
  performance link to Carter’s bonus).

● 2CR2521, lines 3–5 & 23 (Whitmore depo. excerpt: admission she
  never reviewed entire contract).

● 2CR2522, lines 5–8 (Whitmore depo. excerpt: admission she never
  reviewed entire contract).

● 2CR2524 (Bentley e-mail inaccurately describing Carter’s
  employment contract).

● 2CR2527 (Reta affidavit excerpt: stating she heard Carter shouting
  in a meeting).

● 2CR2530 (Caller-Times e-mail: “We need to make it clear that the
  bylaws we saw were from 2006.”).

● 2CR2531 (Tom Whitehurst e-mail altering Whitmore’s status as
  chair).

● 2CR2532 (Birmingham e-mail: Huseman hired by Carter).

● 2CR2533 (some quotations from this e-mail are attributed to
  Huseman in Appendix Q).

● 2CR2534–35 (CPA’s letter to Chamber on audit results and report).

● 2CR2536 (Caller-Times e-mail headings: “Terry Carter Watch for
  Resignation”).

● 2CR2536 (part of 15 Feb. 2008 e-mail from Whitmore to Israel
  Saenz: Whitmore expressing in vague terms that she was concerned
  about the Chamber’s finances).


                           xviii
● 2CR2538 (Birmingham’s angry e-mail).

● 2CR2539 (reader’s comment on Damon Bentley’s veracity).

● 2CR2540 (Hawley depo. excerpt: showing lack of knowledge about
  terms of Carter’s employment contract; admitting lack of
  knowledge about Chamber’s building fund).

● 2CR2541, lines 3–5 (Whitmore depo. excerpt: showing lack of
  knowledge about terms of Carter’s employment contract).

● 2CR2544, lines 5–7 (Whitmore depo. excerpt: showing lack of
  knowledge about terms of Carter’s employment contract).

● 2CR2474, lines 5–7 & 20–22 (Whitmore depo. excerpt: admitting
  lack of knowledge about Chamber’s building fund).

● 2CR2575 (complete Part 1 of transcript of audiotape from 15 Feb.
  2008 meeting: first 82 pages).

● 2CR2576 (portion of Part 1 of transcript of audiotape from 15 Feb.
  2008 meeting used for 31 May 2008 article).

● 2CR2578, lines 12–16 (excerpt from Part 1 of transcript of
  audiotape from 15 Feb. 2008 meeting: CPA was present).

● 2CR2580 (excerpt from transcript of audiotape from 15 Feb. 2008
  meeting: Whitmore and Hawley saying Huseman should leave
  meeting).

● 2CR2611 (excerpt from Part 1 of transcript of audiotape from 15
  Feb. 2008 meeting: Bentley saying he thought the bylaws did not
  apply to the accounting matter then shown otherwise; Whitmore
  saying she did not think an accountant’s opinion was necessary).

● 2CR2642 (complete Part 2 of transcript for audiotape of 15 Feb.
  2008 meeting).

● 2CR2663 (Bentley e-mail: failing to mention second amendment to
  Carter’s employment contract).


                            xix
● 2CR2664 (e-mail to Birmingham reproducing article from another
  paper: “Bentley seems to have a special pass from the Caller-
  Times”).

● 2CR2667 (e-mail informing Birmingham of “Chamber strategy
  meeting”).

● 2CR2668 (e-mail asking Birmingham to write editorial).

● 2CR2669 (Birmingham’s e-mail refusal to speak with journalist who
  defended Carter).

● 2CR2670 (e-mail thanking Birmingham for “heads up” about
  Carter’s impending resignation).

● 2CR2671 (undated, unattributed article about Carter in previous
  hometown).

● 2CR2672 (e-mails from editor Shane Fitzgerald about readers’
  online comments).

● 2CR2673 (article: Michael Grey, “Spat over a renovated mansion
  turns ugly,” Wall St. J. Online, [undated]).

● 2CR2674 (21 Feb. 2008 e-mail from Aguilar, identifying “source”
  as “Sylvia”).

● 2CR2675 (Feb. 2008 e-mail from Aguilar, referring to “reliable
  source”).

● 2CR2676 (e-mails related to incorrect information provided by
  Whitmore).

● 2CR2673 (Birmingham e-mail: Carter had “issues” at previous job).

● 2CR2680 (reader’s comment asking “is Bentley an auditor? I’m
  confused.”).

● 2CR2684; 4CR5401 (Carter’s first affidavit).



                            xx
          ● 2CR2687 (Amended Affidavit of Damon Bentley identifying
            attached transcript [1 Supp. 2 C.R. 66–75] as part of taped Feb. 15
            2008 meeting).

          ● 2CR2688 (Bentley’s amended-affidavit excerpt: acknowledging he
            saw all provisions and both amendments).

          ● 2CRE2695 (Bentley amended-affidavit attachment: complete copy
            of Carter’s employment contractd).

          ● 2CR2710 (Bentley amended-affidavit attachment: remaining 9
            pages of transcript for audiotape of 15 Feb. 2008 meeting;
            transcript of Bentley’s talk with Chamber accountant).

          ● 2CR2711, lines 8–23 (Part 2 transcript excerpt: CPA’s statement).

          ● 2CR2721 (Bentley e-mail: showing Bentley knew that Carter did
            not have the audiotape).


                                   Introduction

      No genuine constitutional question exists in this case. It is not about

freedom of speech or press. It’s about defaming a private person who did no

wrong but angered powerful people. Newspapers are protected by the

Constitution and Texas law when they make honest and factual reports of

judicial proceedings and public meetings. But the First Amendment and Texas

law give no protection to news reports of meetings that are not open to the

public, if those reports are made with knowledge that statements are false or

with reckless disregard for the truth.




                                         xxi
      This is not the first time these parties have come to this Court after the

trial court denied the appellants’ motion for summary judgment. In the previous

appeal, the appellants argued that Terry Carter was a public figure who would

have to prove actual malice to prevail on his defamation claim. After Carter

proved that he was not a public figure, he presented ample evidence that the

statements were defamatory and ample evidence of actual malice. This Court

rejected the appellants’ appeal. The Texas Supreme Court denied their petition.

      Back in the trial court 8 years after this suit was filed, the parties were

within days of going to trial when the appellants again sought summary

judgment on grounds that they could have raised before: that there was no

evidence of malice or negligence, that the defamatory statements were true or

merely opinion, and that a statutory privilege protects them from prosecution.

Carter has previously shown this Court that a jury could find the publications

conveyed false impressions and were published maliciously or negligently or

both. We regret that this evidence must be presented again and urge the Court to

rule with dispatch so that trial may begin.
                                Statement of Facts

       In September 2004, Terry Carter was hired as CEO and president of the

Corpus Christi Chamber of Commerce.3 He had a distinguished record of

military service and exemplary chamber-of-commerce leadership.4

       Patrick Birmingham was publisher and president of Caller Times.5 He sat

on the editorial board, which debates Caller-Times editorials.6 He was a board

member of the Chamber of Commerce, and the Caller-Times was a member.7

       Before 2007, Carter’s contract provided for a performance bonus based

on the Chamber’s financial performance.8 But in February 2007, the contract’s

terms were changed and the bonus was no longer based on financial

performance: it was amended to give him a “performance” bonus with no

specified financial or other goals.9

       The problems underlying this case began in 2007 when investors

proposed a multimillion-dollar mall, Crosstown Commons, conditioned upon

the City of Corpus Christi’s offering tax-increment financing.10 The City Council




3    Appendix 3A (article, 24 June 2004).
4    Id.
5    1CR634 (Birmingham aff.).
6    3CR3847 (Birmingham aff.).
7    1CR634 (Birmingham aff.).
8    2CR2332 (¶ IVC). See also Carter Dep. 1CR953.
9    2CR2344. See also Carter Dep. 1CR894.
10   Appendix 3F (article, 23 June 2007).
had only four days’ notice of the proposal before a vote would be held.11

Birmingham favored the proposal.12 Carter urged the Council not to act hastily

and to take time in reviewing the proposal so the public could be informed.13

Birmingham quickly concluded that Carter’s position was based on “favoritism”

and cited that belief when, on December 18, 2007, he noisily withdrew his

newspaper from the Chamber of Commerce and resigned from the board,

announcing that Terry Carter “is a divisive influence in the community who

shows favoritism toward some businesses at the expense of others.”14 He added:

“The only way to show he [Carter] doesn’t speak for the Caller-Times is to not

be a member of the organization.”15 Carter shrugged off the Caller-Times’

withdrawal: “I don’t think the withdrawal of one member has an effect on other

members withdrawing. . . . I don’t think we’re going to miss a beat.”16

      Sometime after the withdrawal, Birmingham held a private meeting in his

office with Whitmore, Hawley, and several others to discuss “concerns.”17




11   Id. See also Appendix 5 (newsletter, 22 June 2007); 2CR2455, lines 1–2 (Carter depo.);
     Appendix 5 (newsletter, 22 June 2007); Appendix 3F (article, 23 June 2007) (Carter’s
     alarm at four days’ notice).
12   1CR643.
13   Appendix 3C (article, 13 June 2007); Appendix 3F (article, 23 June 2007). See also
     2CR2454, lines 24–25; 2CR2455, lines 1–10 (Carter depo.).
14   Appendix 3J (article, 19 Dec. 2007).
15   Id.
16   Id.
17   4CR6520. See also 5CR7971, lines 10–22 (Whitmore depo.).
       Birmingham’s animosity toward Carter did not subside. On February 10,

2008, the Caller-Times’ Sunday Hola! newspaper supplement ran a front-page

photo of Terry Carter and his wife dancing, beside the heading “Regents Kick

Up Heels to Ol’ Blue Eyes.”18 At 8:08 that morning, Patrick Birmingham sent an

angry e-mail to vice-president Libby Averyt and editor Shane Fitzgerald,

suggesting that the photo’s purpose was “to piss me off”19 and that Averyt and

Fitzgerald were “not paying attention to what goes in the paper.”20

       On February 15, Birmingham sent an e-mail to Jaime Powell and Libby

Averyt saying that he’d heard that “funny stuff has been going on with the

Chamber of Commerce finances.”21 That same day, the Caller-Times published

the first of 25 articles alleging various improprieties by Carter.22

       The Chamber of Commerce’s executive committee also met in the

morning of February 15. Before the meeting, Freddie Martinez, the Chamber’s

chairman, raised doubts about whether two members of the committee, Sylvia

Whitmore and Judy Hawley, were still members under the Chamber’s bylaws




18   2CR2460.
19   2CR2538.
20   Id.
21   2CR2468.
22   Appendix 3K (article, 15 Feb. 2008).
and sought legal advice.23 The lawyer, Van Huseman, determined that they were

not eligible to be committee members under the bylaws.24

       As CEO, it fell to Carter to inform Whitmore and Hawley of the facts at

the beginning of the executive-committee meeting. They refused to believe him

and would continue to act as members of the executive committee for months

to come. After a few heated exchanges during which no one yelled at anyone,25

Carter left the meeting.26

       The purpose of the executive-committee meeting was to discuss concerns

about the Chamber’s finances. Chamber Treasurer Damon Bentley had no

qualifications in finance or accounting27 and claimed he did not know what

accounting method or procedures the Chamber used,28 even though the

Chamber’s Accounting Policies and Procedures Manual states the modified

accrual method is used.29 He did not tell anyone about his ignorance before

making his report and falsely claiming: “It is undeniable the financials for 2007

as presented to the executive committee and board are inaccurate, inconsistent



23   2CR2533 (some quotations from this e-mail are attributed to Huseman in the editorial:
     see Tom Whitehurst e-mail).
24   2CR2533.
25   2CR2575–83 (transcript of tape does not mention any shouting).
26   2CR2583, lines 24–25 (“Terry’s left.”).
27   2CR2578, lines 12, 15–16 (stating, “I’m not a CPA. . . . That’s why I asked a CPA to be
     here.”); 2CR2493, lines 15–17; 2CR2494, lines 9, 13–16 (Bentley depo. excerpt: not
     mentioning qualifications in finance or accounting).
28   2CR2498, lines 15–25; 2CR2499, line 1 (Bentley depo. excerpt: no knowledge of
     Chamber’s accounting method or procedures).
29   4CR5252.
with the process used in previous years and a misrepresentation of the

Chamber’s bottom line.”30 Bentley never identified the method by which he

altered the financial statements. At the executive-committee meeting, he stated

that he believed there were financial irregularities with the Chamber’s books and

financial reports,31 even though he did not know what accounting method to

use32 or what method had been used or should be used.33 He also spoke at length

with an accountant, who did not confirm his statements.34 At the end of the

meeting, Freddie Martinez took the audiotape of the meeting and gave it to

Carter.35 Carter then gave the tape to Van Huseman, a lawyer, who kept it until

ordered to deliver it to a court in March.36

           The next day, February 16, and for several days after, internal Caller-

Times e-mails carried the title, “Terry Carter Watch for Resignation.”37 The

barrage of articles ran from mid-February to mid-June as follows (please read the

titles):

            Jaime Powell, “Financial, management questions raised at CC

30    1CR302–03.
31    2CR2565–2617.
32    2CR2498, lines 15–25; 2CR2499, line 1.
33    2CR2589, lines 17–23; 2CR2590, line 1; 2CR2591, lines 14–24 (evidencing Bentley’s lack
      of knowledge and understanding of accounting methods).
34    2CR2463–61.
35    1CR659 (citing Depo. of Terry Carter, 24 Sept. 2008, p. 118).
36    Carter Dep. 1CR896; 2CR1518, Appendix 3V (article, 20 Mar. 2008) (mentioning that
      Huseman had the tape since 15 Feb. 2008); 2CR1551, Appendix 3JJ (article, 31 May
      2008) (id.).
37    2CR2536–37 (internal e-mail headings in exchanges between Mike Baird, Beth
      Francesco, Tom Whitehurst, Israel Saenz, and Elvia Aguilar).
         Chamber,” Corpus Christi Caller-Times, February 15, 2008.38

       Powell, “Chamber pulls two off panel,” Corpus Christi Caller-Times,
        February 16, 2008, at A1, 7.39

       Elvia Aguilar, “CC Chamber meeting to discuss financial
        irregularities,” Corpus Christi Caller-Times, February 20, 2008.40

       Aguilar, “Financial questions lead to call for audit,” Corpus Christi
        Caller-Times, February 21, 2008, at A1, 7.41

       Aguilar, “Chamber CEO shifted funds, letter says,” Corpus Christi
        Caller-Times, February 27, 2008, at A1, 7.42

       Aguilar, “Ex-chair airs her Chamber concerns,” Corpus Christi Caller-
        Times, February 29, 2008, at A1, 7.43

       Editorial, “Chamber CEO’s actions raise serious questions,” Corpus
        Christi Caller-Times, March 2, 2008, at A20.44

       Aguilar, “Petition seeks Chamber changes,” Corpus Christi Caller-Times,
        March 3, 2008, at A1, 5.45

       Aguilar, “About 80 sign petition on Chamber operation,” Corpus Christi
        Caller-Times, March 4, 2008, at A1, 7.46

       Aguilar, “Chamber board, CEO to enter talks,” Corpus Christi Caller-
        Times, March 8, 2008, at A1, 7.47

       Aguilar, “Chamber treasurer granted temporary restraining order

38   Appendix 3K.
39   Appendix 3L.
40   Appendix 3M.
41   Appendix 3N.
42   Appendix 3O.
43   Appendix 3P.
44   Appendix 3Q.
45   Appendix 3R.
46   Appendix 3S.
47   Appendix 3T.
          protecting tape,” Corpus Christi Caller-Times, March 19, 2008.48

       Aguilar, “Chamber unrest ends up in court,” Corpus Christi Caller-Times,
        March 20, 2008, at A1, 6.49

       Aguilar, “Chamber CEO on paid leave,” Corpus Christi Caller-Times,
        March 27, 2008, at A1, 6.50

       Aguilar, “Judge unifies filings on Chamber events,” Corpus Christi
        Caller-Times, March 27, 2008, at A6.51

       Aguilar & Fanny S. Chirinos, “Chamber had deficit, board tells
        members,” Corpus Christi Caller-Times, April 1, 2008.52

       Aguilar, “Chamber, in need of audit, renews accountant search,”
        Corpus Christi Caller-Times, April 29, 2008, at D1.53

       Aguilar, “Chamber offers contract settlement to Carter, his attorney
        says,” Corpus Christi Caller-Times, May 2, 2008.54

       Aguilar, “Chamber makes offer, Carter’s attorney says,” Corpus Christi
        Caller-Times, May 3, 2008, at D1.55

       Chirinos, “Chamber, Carter’s attorney confirm severance agreement,”
        by Corpus Christi Caller-Times, May 23, 2008.56

       Chirinos, “Carter’s salary to be paid in full,” Corpus Christi Caller-Times,
        May 24, 2008, at A1, 11.57

       Chirinos, “Release of chamber audio recording sought,” Corpus Christi

48   Appendix 3U.
49   Appendix 3V.
50   Appendix 3X, 3Y.
51   Appendix 3Z.
52   Appendix 3BB.
53   Appendix 3CC.
54   Appendix 3DD.
55   Appendix 3EE.
56   Appendix 3FF.
57   Appendix 3GG.
          Caller-Times, May 28, 2008, at B2.58

       Mary Ann Cavazos , “Judge orders that chamber tape recording be
        released today,” Corpus Christi Caller-Times, May 30, 2008.59

       Cavazos, “Chamber tape tells of heated exchange,” Corpus Christi
        Caller-Times, May 31, 2008, at A1, 5.60

       Cavazos, “Ex-Chamber CEO’s mediation to continue,” Corpus Christi
        Caller-Times, June 13, 2008, at D1.61

Only two weeks after the initial article, the Caller-Times began pressing for

Carter’s removal.62 The newspaper’s March 2 editorial “suggest[ed] that the

chamber get rid of [Carter] and move on.”63 The Caller-Times repeatedly alleged

instances of financial malfeasance64—insinuating felonies65—until the Chamber

forced Carter to resign.66

      In November 2008, a full audit of the Chamber’s finances was completed

by an outside accounting firm.67 All of the accusations against Carter were




58   Appendix 3HH.
59   Appendix 3II.
60   Appendix 3JJ.
61   Appendix 3KK.
62   Appendix 3P (article, 29 Feb. 2008).
63   Appendix 3Q.
64   See, e.g., Appendix 3M (article, 20 Feb. 2008); Appendix 3N (article, 21 Feb. 2008);
     Appendix 3O (article, 27 Feb. 2008); Appendix 3P (article, 29 Feb. 2008); Appendix 3Q
     (editorial, 2 Mar. 2008); Appendix 3R (article, 3 Mar. 2008); Appendix 3S (article, 4 Mar.
     2008); Appendix 3T (article, 8 Mar. 2008).
65   Tex. Penal Code §§ 31.03, 32.32, 32.45.
66   Appendix 3Y (article, 27 Mar. 2008); Appendix 3FF (article, 23 May 2008).
67   4CR5433–37.
proved baseless.68 Although the auditor comments that “[t]he misstatements

detected as a result of audit procedures and corrected by management were

material, either individually or in the aggregate, to the financial statements as a

whole,”69 the auditor never identifies the nature of the misstatements, who made

them, how material they were, or describes any effects on the bottom-lines of

the financial statements. Transfers (not “expenditures”)70 from the building fund

were “a breach of the intended purpose of the funds” but the auditor did not

state what effect, if any, this had on anything.71 Similarly, the auditor’s statement

that there was a “very high possibility of management override” was made in the

context of identified weaknesses in the system’s structure but does not indicate

that there was any abuse of that weakness or any others by anyone at any time.72

The audit did not reveal any wrongdoing by anyone or that the financial

statements were in any way incorrect. The auditor did not conclude that

generally accepted accounting principles had been violated. The Caller-Times

never reported these facts.

       After the audit, the Chamber’s leadership concluded that its 2007 financial

statements had been “fairly presented in conformity with U.S. generally accepted



68   2CR2534 (CPA’s letter to Chamber on audit results); 2CR2535 (independent auditor’s
     report).
69   ANTBrp30; 4CR5436.
70   ANTBrp30.
71   4CR5431.
72   ANTBrp30; 4CR5446.
accounting principles.”73 Four days later, Joaquin Sanchez, the Chamber of

Commerce’s CPA, certified that as of December 31, 2007, the Chamber’s

financial statements “present fairly, in all material respects, the financial position

of the [Chamber] . . . and the changes in its net assets and cash flows for the year

ended in conformity with accounting principles generally accepted in the United

States of America.”74 The Caller-Times never reported these facts.

       When Terry Carter filed suit against the Caller-Times, Birmingham, and

the other appellants (collectively the “Caller-Times”) for defamation and related

claims, the Caller-Times stalled going to trial with motions for summary

judgment, which were denied, followed by unsuccessful appeals to this Court

and the Texas Supreme Court.




73   2CR2534 (CPA’s letter to Chamber on audit results).
74   2CR2534 (independent auditor’s report).
                             Summary of Argument

      Over four months, the Caller-Times published 25 articles containing

misleading and false statements about Terry Carter and his performance as CEO

of the Corpus Christi Chamber of Commerce. Though the Caller-Times tries to

show otherwise, it improperly cherry-picks specific statements in disregard of the

established legal standard requiring an entire publication—or series of

publications—to be reviewed for defamatory effect. It dismisses the blatantly

false statements by conclusively stating that they are “substantially true” or

“opinions.” It attempts to hide behind a statutory shield of privilege that cannot

cover it because the shield is limited to public meetings and not closed meetings

of a private organization. And it asserts that there is no evidence of actual malice

or negligence without addressing the ample quantities of evidence Carter has

adduced time and again.

      The Caller-Times has been playing a game of keep-away with the courts,

using baseless motions for summary judgment followed by years of fruitless

appeals in an effort to avoid letting a jury evaluate the evidence. This Court

should stop the game.
                                  Standard of Review

       The Court reviews de novo a trial court’s grant of summary judgment75

and reviews the entire record.76 As the party moving for summary judgment, the

Caller-Times bears the burden of proof.77 The Caller-Times moved for both

traditional and no-evidence motions, but the ultimate question is whether a fact

issue exists.78 A fact issue exists if there is more than a scintilla of probative

evidence.79 This Court should review the summary-judgment record “in the light

most favorable to the nonmovant, indulging every reasonable inference and

resolving any doubts against the motion”80 and “consider all grounds presented

to the trial court and preserved on appeal in the interest of judicial economy.”81

Constitutional concerns over defamation do not affect the summary-judgment

standard of review.82

       The gist or “meaning of a publication, and thus whether it is false and

defamatory, depends on a reasonable person’s perception of the entirety of a

publication and not merely on individual statements.”83 A “reasonable person” is




75   Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
76   Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).
77   Roskey v. Tex. Health Facilities Comm’n, 639 S.W.2d 302, 303 (Tex. 1982).
78   Buck v. Palmer, 381 S.W.3d 525, 527 & n.2 (Tex. 2012).
79   See id. at 527; Tex. R. Civ. P. 166a(c), (i).
80   City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).
81   Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).
82   Casso v. Brand, 776 S.W.2d 551, 555 n.3 (Tex. 1989).
83   Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000).
a person of ordinary intelligence,84 an average reader rather than one trained to

subject a publication to a critical legal analysis.85

       Throughout its brief, the Caller-Times asks this Court to review the

evidence in selected bits and pieces rather than as a whole and consider whether

those fragments are defamatory. It asks the Court to review fragments of articles,

not even whole articles, let alone all the articles collectively. But this is not the

standard for review established by the Texas Supreme Court. All statements that

collectively have a defamatory meaning should be considered together under all

the circumstances.86

       Initially, the Court must determine whether a defamatory meaning could

be perceived in an entire publication,87 which “should be construed as a whole in

light of the surrounding circumstances based upon how a person of ordinary

intelligence would perceive it”88 because “the meaning of a publication, and thus

whether it is false and defamatory, depends on a reasonable person’s perception




84   Musser v. Smith Protective Servs., 723 S.W.2d 653, 655 (Tex. 1987).
85   See Kapellas v. Kofman, 459 P.2d 912, 920 (Cal. 1969) (en banc) (publication should be
     viewed “not so much by its effect when subjected to the critical analysis of a mind
     trained in the law, but by the natural probable effect on the mind of the average reader”
     (citations omitted)).
86   Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002).
87   Musser, 723 S.W.2d at 655.
88   Turner, 38 S.W.3d at 114 (citing Musser, 723 S.W.2d at 655); Guisti v. Galveston Tribune, 150
     S.W. 874, 878 (Tex. 1912); see also Kapellas, 459 P.2d at 920 (publication should be viewed
     “not so much by its effect when subjected to the critical analysis of a mind trained in the
     law, but by the natural probable effect on the mind of the average reader” (citations
     omitted)).
of the entirety of a publication and not merely on individual statements.”89 When

the publication is ambiguous or cannot be understood without the use of

extrinsic evidence, the Court should then consider innuendo.90

       To defeat the motion for summary judgment and show more than a

scintilla of actual malice or negligence, Carter need show only that a reasonable

person would have drawn a false perception of Carter from the publications.


                                       Argument

A. Substantial evidence shows that the articles are collectively defamatory
   and defamatory per se.

       To distinguish between an actionable statement of fact and a

constitutionally protected expression of opinion, the analysis focuses on the

statement’s verifiability and the entire context in which it was made.91 A jury

could reasonably find that the gist of the Caller-Times’ 25 articles is that Carter, a

fiduciary to a nonprofit, was committing financial malfeasance and crimes to

justify a raise, bonus, and contract extension for himself—and that when caught,

he blocked the truth with actions such as yelling, dismissing board members to

stymie further inquiries and investigation, concealing the audiotape of a critical




89   Turner, 38 S.W.3d at 115.
90   Vice v. Kasprzak, 318 S.W.3d 1, 17 (Tex. App.—Houston [1st Dist.] 1979, pet. denied)
     (citing Turner, 38 S.W.3d at 114; Moore v. Waldrop, 166 S.W.3d 380, 386 (Tex. App.—
     Waco, 2005, no pet.).
91   Vice, 318 S.W.3d at 17.
meeting, and denying the Chamber of Commerce’s treasurer access to

documents and barring him from speaking to an accountant for fear that the

treasurer’s accusations would be proved. All these elements of the gist are false.

The Caller-Times’ articles published on February 15, 16, 20, 27, and 29 amount

to much more than a scintilla of evidence of this intended gist. Its March 2

editorial reinforces this, as do the remaining articles that injured Carter in his

office, profession, and occupation.92

       Taken together, the articles accuse Carter of theft and misapplication of

fiduciary property.93 They convey the definite idea that Carter was acting on a

corrupt motive to get unearned compensation.

       This Court should conclude that ample evidence shows the entirety of

these articles to be capable of a defamatory meaning. Alternatively, this Court

should hold as a matter of law that the articles were capable of defamatory

meaning and that a material fact question about their meaning remains.


     1. Ample evidence shows that the Caller-Times’ articles were not
        substantially true.

       Under the doctrine of “substantial truth,” if a news article has the same

effect on the mind of the average reader as a true statement, slight inaccuracies




92    Bunton, 94 S.W.3d at 579.
93    Tex. Penal Code §§ 31.03(f)(3)(B), 32.45(b).
in the details won’t make the article false.94 Although the Texas Supreme Court

has not addressed a case in which publications may be mere allegation reporting,

it has suggested that the measure for the truth of the publication “could be

whether it accurately relayed the allegations of a third party.”95 Also, even if “the

specific statements in a broadcast may be substantially true when viewed in

isolation, the gist can be false by omitting or juxtaposing facts.”96 The entire

article—or series—should be examined to determine whether the gist is

substantially true.

       The Caller-Times has the burden to conclusively prove that the gist of its

statements in all the publications were true.97 If a fact issue exists, a jury must

decide.98 The statements in the March 2 editorial are not entitled to automatic

constitutional protection as opinions. A newspaper is liable for an editorial

writer’s defamatory statements. As the Fifth Circuit explained:

        A servant under a duty to gather information on the wrongful
        conduct of another person subjects his corporation to liability for
        malicious statements made in connection with his employment
        and with a purpose to serve it. An act may be done within the
        scope of employment although done in part to serve the purpose
        of the servant.99



94   See Masson v. New Yorker Mag., 501 U.S. 496, 516–17 (1991); Turner, 38 S.W.3d at 115.
95   Neely v. Wilson, 418 S.W.3d 52, 65 (Tex. 2013).
96   Id. (citing Turner, 38 S.W.3d at 114–15).
97   Turner, 38 S.W.3d at 115.
98   Neely, 418 S.W.3d at 62.
99   Hooper-Holmes Bureau v. Bunn, 161 F.2d 102, 104–05 (5th Cir. 1947) (citing Restatement
     (First) of Agency § 247 cmt. c & illustrations (1933)).
       The Caller-Times points to only 2 of the 25 articles it published and

argues that they provide an accurate account of allegations advanced by Bentley

and others to the Chamber’s board. But it says nothing about the accuracy of the

other 23 publications, including an editorial. And because this Court should

consider whether the gist of the 25 publications—collectively—was substantively

true, the Caller-Times has not met its burden of proof. When all 25 articles are

reviewed, a material fact question remains.

       For example, the writer of the unsigned March 2, 2008 editorial did not

use any qualifiers or otherwise suggest that anything stated was only an allegation

or at least not a proven fact. The editorial implies that Carter committed at least

three felonies: (1) theft;100 (2) false statement to obtain property or credit;101 and

(3) misapplication of fiduciary property.102

       The editorial’s headline, “Chamber CEO’s actions raise serious

questions,” was immediately followed by the subheadline “Funds were shifted

that made a loss look like a profit, entitling CEO to a bonus.”103 Read together,

these insinuate that Carter deliberately and wrongfully shifted funds to corruptly

gain a bonus from the Chamber. The Caller-Times openly accuses Carter: “The

fund-shifting, including the deferring of Carter’s salary, allowed the chamber to



100   Tex. Penal Code §§ 31.03, 32.32, 34.45.
101   Tex. Penal Code § 32.32.
102   Tex. Penal Code § 32.45.
103   2CR1507, Appendix 3Q (editorial, 2 Mar. 2008).
show a profit, thus qualifying Carter for a bonus.”104 This suggests that Carter

violated his fiduciary duties and misapplied the Chamber’s funds to wrongfully

gain a bonus.105

       The truth is that Carter’s eligibility for a bonus at the end of 2007 was not

based on whether the Chamber showed a profit.106 In January 2007, the

Chamber’s executive committee reviewed Carter’s contract and amended the

bonus provision.107 As a member of the board of directors at the time, the

Caller-Times’ publisher, Birmingham, knew or should have known this fact.

The Caller-Times argues that it reported Carter’s explanation and is therefore

protected under the substantial-truth defense. But Carter’s explanation was

followed by a misleading and false statement:

         Carter’s explanation, made in a letter to board members, is that
         the fund-shifting was allowed by the chamber’s accounting
         methods, that the deferral of salary was for tax purposes with the
         failure to show deferral properly on the books explained as a
         bookkeeping error. The use of capital money from the chamber’s
         foundation for operating expenses, Carter said, had been
         discussed with the chamber’s accountant. But that accountant,
         Darrell Thompson, Bentley wrote, warned that the use of foundation money
         in such a way would threaten the chamber’s nonprofit status.108




104   Id.
105   Tex. Penal Code § 32.45.
106   2CR2695–27 et seq. (Carter’s contracts).
107   Id.
108   2CR1507, Appendix 3Q (editorial, 2 Mar. 2008) (presenting “opinions” as facts)
      (emphasis added).
       The last sentence in this passage implies that if one of Carter’s actions was

wrongful, then all of Carter’s actions were wrongful. It further implies that

Carter’s explanation was a lie to cover up efforts to illegally obtain a bonus.109

This is misleading and false, and the Caller-Times knew it was false. It had a

copy of the letter Damon Bentley sent to the Chamber’s members.110 In that

letter, Bentley wrote that Darrell Thompson, the Chamber’s accountant said:

         [U]se of Building Fund dollars to supplement the Chamber
         operating expenses could possibly forfeit the [Chamber]
         foundation’s [nonprofit] status because of the link between the
         CEO’s bonus to the financial performance of the Chamber.111

       The Caller-Times’ use of would (as opposed to could possibly) connotes

probability,112 and to an ordinary reader, the sentence as a whole—warned that the

use of foundation money in such a way would threaten the chamber’s nonprofit status—

suggests imminent harm. But the Caller-Times knew that Bentley had described

Thompson as saying only could, which connotes only possibility,113 not a dire

threat, and certainly not criminality.

       Bentley’s letter also shows Thompson’s opinion was based on incorrect

information. There was no link between the CEO’s bonus and the Chamber’s




109   Tex. Penal Code § 32.32.
110   2CR1501, Appendix 3O (article, 27 Feb. 2008).
111   Id. (emphasis added).
112   Merriam-Webster’s Collegiate Dictionary 1445 (11th ed.).
113   Id. at 284. See Bryan A. Garner, The Chicago Guide to Grammar, Usage, and Punctuation 248
      (2016) (“Could is better for a sense of uncertainty.”).
financial performance.114 Yet the op-ed falsely states that because the Chamber

showed a profit, Carter qualified for a bonus.115 Further, the accountant had

spoken from “a general standpoint”116 and “was very specific that he needed

more information, and that he would have to review [documents].”117

       The Caller-Times claimed it did not acquire the letter from Bentley, but

verified that he had sent it to Chamber board members.118 It did not contact the

accountant to determine the accuracy of this article.119 If the Caller-Times had

simply asked Thompson—or any other accountant—directly about the effect of

the action on a nonprofit based on the cited information, it would have learned

the truth: the Chamber was not in a grave situation. Thompson had not warned

or even expressed an opinion that the Chamber’s nonprofit status was in

jeopardy120 and never stated Carter had done anything wrong.121 Instead, the

Caller-Times relied on Bentley, without verifying his qualifications in

accounting.122 And it never made another effort to contact Thompson.123




114 2CR2695–2709 (Carter’s contracts).
115 Id. Compare 2CR1507 (“The fund-shifting, including the deferring of Carter’s salary,
    allowed the chamber to show a profit, thus qualifying Carter for a bonus.”).
116 2CR2501, lines 8–25; 2CR2502, lines 1–4 (Bentley depo.).
117 2CR2501, lines 16–18.
118 2CR1501 (article, 27 Feb. 2008).
119 2CR2485, lines 3–11 & 19–20 (Aguilar depo. excerpt: acknowledging reporter never
    spoke to Chamber treasurer Damon Bentley or Chamber CPA Darrell Thompson)
120 2CR2720, lines 8–23 (transcript of talk with accountant).
121 See generally 2CR2710–20 (transcript of talk with accountant).
122 2CR2493, lines 15–17; 2CR2494, lines 9, 13–16 (Bentley depo.).
123 2CR2464 (Aguilar affidavit).
       The Caller-Times’ other articles parrot these allegations implying that

Carter’s actions were criminal. The statements were false, and the articles supply

plentiful evidence that an ordinary reader would perceive defamatory criminal

accusations—only a scintilla being needed.

       Even if this Court indulged the Caller-Times and engaged in an article-by-

article review, the editorial is plainly not substantially true.

       The Caller-Times attempts to distinguish Neely v. Wilson124 from this case.

In Neely, a television station argued that the gist of a broadcast concerned

allegations about a physician’s care of two patients that led to malpractice

lawsuits, a report by the medical examiner, a public disciplinary action by the

Medical board, and the physician’s responses to the allegations. But the

broadcast expressly stated that the physician had been disciplined for taking

drugs.125 The Texas Supreme Court noted that the Medical Board had disciplined

the physician “for prescribing himself dangerous drugs or controlled substances”

but not for “taking or using dangerous drugs or controlled substances.”126 The

physician himself swore in an affidavit that he had never abused any kind of

dangerous drugs.127 The Court also noted that the station was aware that it had

no independent evidence to support its statements that the physician had



124   418 S.W.3d 52, 65–66 (2013).
125   Id. at 65.
126   Id.at 66.
127   Id.
performed surgery while impaired,128 indicating the station knew or should have

known the statement to be false. The Court held that the physician’s affidavit

was sufficient to raise a fact issue about the truth or falsity of the gist.129 The

substantial-truth defense failed.130

         Neely shows that merely including a targeted person’s responses in a news

report is not enough when the facts are inaccurately reported, as they were here.

Although it isn’t clear whether the television station in Neely had a copy of the

Medical Board’s disciplinary order, there’s no doubt the Caller-Times had a copy

of the letter referred to in the editorial and knew or should have known it was

misstating the contents. Further, Carter responded to and refuted the Caller-

Times’ allegations in a lengthy affidavit. These factors were sufficient to raise a

fact issue in Neely. They are sufficient here as well.

         The Caller-Times did not conclusively prove the substantial-truth defense;

Carter raised a fact issue.131 This Court should therefore remand for trial.


      2. The publications are not constitutionally protected opinion.

         The Caller-Times’ next argument is that all its libels about Carter are

protected opinions, not fact statements.132 It offers no argument to explain how



128    Id. at 67
129    Id.
130    Id.
131    Id. at 65.
132    ANT BR p. 56.
they are opinions—only conclusory statements that they are opinions. Even if

they were opinions (they are not), the First Amendment does not protect all

statements of opinion on issues of public concern.133 For constitutional

purposes, the falsity of a publication depends on whether “a statement carries a

‘provably false factual connotation.’”134 In interpreting precedent, the Texas

Supreme Court has said: “courts should determine falsity for constitutional

purposes based on the meaning a reasonable person would attribute to a

publication and not on a technical analysis of each individual statement.”135

       In Milkovich v. Lorain Journal Co.,136 the United States Supreme Court

warned against allowing defamatory statements to be craftily “couched”:

         If a speaker says, “In my opinion John Jones is a liar,” he implies
         a knowledge of facts which lead to the conclusion that Jones told
         an untruth. Even if the speaker states the facts upon which he
         bases his opinion, if those facts are either incorrect or incomplete,
         or if his assessment of them is erroneous, the statement may still
         imply a false assertion of fact. Simply couching such statements in
         terms of opinion does not dispel these implications; and the
         statement, “In my opinion Jones is a liar,” can cause as much
         damage to reputation as the statement, “Jones is a liar.” As Judge
         Friendly aptly stated: “[It] would be destructive of the law of libel
         if a writer could escape liability for accusations of [defamatory
         conduct] simply by using, explicitly or implicitly, the words ‘I
         think.’”137


133 Turner, 38 S.W.3d at 115 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18–20 (1990)).
134 Id. at 116 (citing Milkovich, 497 U.S. at 18). See Bryan A. Garner, The Chicago Guide to
    Grammar, Usage, and Punctuation 422 (2016) (defining connotation as “[t]he feeling or idea
    that a word carries in addition to its literal or principal meaning”).
135 Turner, 38 S.W.3d at 116.
136 497 U.S. 1, 16 (1990).
137 Id. 19–20.
       The Caller-Times claims that its March 2 editorial is protected opinion,

but it does not explain how or why.138 There is no “opinion” defense for a

publication conveying a false gist of corrupt or dishonorable motives in

connection with an established set of facts.139 In addition to the statements

reproduced above, the editorial’s headline, “Chamber CEO’s Actions Raise

Serious Questions,” was immediately followed by the subheadline “Funds were

shifted that made a loss look like a profit, entitling CEO to a bonus.”140 Read

together, these insinuate that Carter deliberately and wrongfully shifted funds to

corruptly gain a bonus from the Chamber. The Caller-Times then openly

accused Carter (given that he is identified as head of the Chamber): “The fund-

shifting, including the deferring of Carter’s salary, allowed the chamber to show

a profit, thus qualifying Carter for a bonus.”141 This suggests that Carter violated

his fiduciary duties and misapplied the Chamber’s funds to wrongfully gain a

bonus.142 But as explained above, the Caller-Times knew there was no

connection between a profit (or loss) and Carter’s eligibility for a bonus. The

editorial also accused him of engaging in “duplicitous dealings” and “highly

questionable stewardship of the financial affairs,” and causing “severe damage to




138   ANTBrp58.
139   Bunton, 94 S.W.3d at 582.
140   2CR1507, Appendix 3Q (editorial, 2 Mar. 2008).
141   Id.
142   Tex. Penal Code § 32.45.
a very important civic organization.” All were stated as facts, not as opinions or

even allegations made by others.

       These statements provide much more than the required scintilla of

evidence. The Caller-Times conveyed the impression that Carter was corrupt,

criminal, untrustworthy, and abusive of his fiduciary position for personal gain.

Like the other articles, this op-ed omits the critical facts.

       The rest of the Caller-Times’ publications fare no better because they, too,

trumpet the same defamatory gist. The Caller-Times plucks out snippets of its

publications and declares without explanation that they were protected opinion.

It ignores the proper standard of review: this Court considers all the publications

and the surrounding circumstances to determine whether a jury could find a

libelous gist.

       A jury could reasonably conclude the Caller-Times defamed Carter in all

of its articles collectively by creating the innuendo that he was engaging in

financial misdeeds, breaching fiduciary duties for personal gain, yelling at

respected female leaders, and blocking the investigation into his misdeeds. This

gist is provably false. It is not an opinion.


   3. The judicial-proceeding privilege does not shield the Caller-Times.

       Of the Caller-Times’ 25 publications, at least 21 do not fall within the

judicial-proceeding privilege.
       Texas law codifies the judicial-proceeding privilege, which includes

judicial or other proceedings to administer the law, executive or legislative

proceedings, and “the proceedings of a public meeting dealing with a public

purpose.”143 Publications about such proceedings are privileged if they are “a

fair, true, and impartial account”144 and also make “ reasonable and fair comment

on or criticism of an official act of a public official or other matter of public

concern.”145 The privilege applies only to statements that (1) are substantially

true and impartial reports of the proceedings, and (2) are identifiable by the

ordinary reader as statements that were made in the proceeding.146

       The privilege does not apply to at least 21 of the publications for two

reasons. First, they are not reports on the official acts of a public official.147 Terry

Carter was CEO of a private organization and is not a public figure.148 Second,

as a private organization, the Chamber of Commerce’s meetings are not open to

the general public and discussion of its financial affairs is not a public purpose.149

       The Caller-Times conclusively states that its publications of March 19,

March 20, May 29, and May 31, 2008, are fair reports of judicial proceedings.150


143 Tex. Civ. Prac. & Rem. Code § 73.002.
144 Tex. Civ. Prac. & Rem. Code § 73.002(b)(1).
145 Tex. Civ. Prac. & Rem. Code § 73.002(b)(2).
146 Neely, 418 S.W.3d at 67 (citing Denton Pub. Co. v. Boyd, 460 S.W.2d 881, 884 (Tex. 1970)).
147 Tex. Civ. Prac. & Rem. Code § 73.002(b)(2).
148 Scripps Texas Newspaper, LP v. Carter, 13-09-00655-CV, 2012 WL 5948955, at *5 (Tex.
    App.—Corpus Christi, Nov. 21, 2012, pet. denied).
149 Tex. Civ. Prac. & Rem. Code § 73.002(b)(1)(D).
150 ANTBrp58.
It quotes a few sentences from each. The Caller-Times must show that the

privilege applies to the publications as a whole. It has not even attempted to do

so.


B. There is evidence aplenty of actual malice, recklessness, and
   negligence—and all factual inferences are to be drawn in Carter’s
   favor.

       Evidence of actual malice is sufficient if it permits concluding that the

defendant made the false publication with a “high degree of awareness of . . .

probable falsity,”151 or “with reckless disregard of whether it was false or not.”152

To defeat the motion for summary judgment and show more than a scintilla of

actual malice, Carter need only show that a reasonable person would have drawn

a false perception of Carter from the publications.153 Carter may show

recklessness and negligence through evidence that the Caller-Times had

information from which it knew or should have known defamatory statements

were false.154 Ample evidence also shows the Caller-Times was negligent because

it failed to investigate the falsity of the statements it published, and failed to act

as a reasonably prudent person.155 When the publication is ambiguous or its



151 Garrison v. Louisiana, 379 U.S. 64, 74 (1964).
152 New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).
153 Turner, 38 S.W.3d at 115.
154 Neely, 418 S.W.3d at 72 (citing Foster v. Laredo Newspapers, Inc., 541 S.W.2d 809, 820 (Tex.
    1976)).
155 Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 85 (Tex.
    App.—Houston [1st Dist.] 2013) (no pet.).
importance is doubtful, a jury must determine its meaning.156 The primary means

of proving actual malice is by circumstantial evidence.157


   1. The Caller-Times’ publisher had motives to attack Carter.

       Ill-will, spite, or evil motive, standing alone, do not amount to actual

malice on the part of an entity.158 But it is a factor. In the right case it may be a

big factor. Here, a jury could decide that personal malice played a role in

explaining why the Caller-Times published so many devastating and false

statements about Carter. When combined with other evidence, the owner and

publisher’s ill-will leads to a finding that the Caller-Times knowingly published

false statements with actual malice, entitling Carter to punitive damages.

       Although Birmingham denies having any personal animosity toward

Carter, the evidence shows otherwise. A reasonable inference of personal malice

may be drawn from the Caller-Times’ article of December 19, 2007—the day

after Birmingham abruptly resigned from the Chamber board and withdrew his

newspaper’s Chamber membership.159 He called Carter “divisive” and accused

him of “favoritism.”160 Carter tried to be positive: “I don’t think we’re going to


156 Musser, 723 S.W.2d at 655.
157 Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989).
158 Bunton, 94 S.W.3d at 581 (injurious motive is not proof of actual malice but it is a factor
    to be considered); Hearst Corp. v. Skeen, 159 S.W.3d 633, 639 (Tex. 2005); see also Harte-
    Hanks Commc’ns, 491 U.S. at 668.
159 2CR3011. See also 2CR2490 (Birmingham letter to Chamber of Commerce); 2CR1488,
    Appendix 3J.
160 2CR3011.
miss a beat.”161 Birmingham then responded with what he thinks is “the only

way to show [Carter] he doesn’t speak for the Caller-Times.”162 Birmingham

ordered the Chamber to remove the Caller-Times from contact lists163 and then

became angry when, in obedience to Birmingham’s order, Carter stopped

inviting the Caller-Times to high-profile Chamber functions.164

       Birmingham wrote the first e-mail accusing Carter of financial

misdeeds165—and later testified in deposition that he couldn’t remember his

source,166—immediately after which Caller-Times staff members began

exchanging e-mails with the subject line “Terry Carter Watch for Resignation.”167

Later articles and editorials directly reflecting Birmingham’s personal views offer

more than a scintilla of evidence he could and did influence, control, and

manipulate the Caller-Times’ content.168 Birmingham was also on the

newspaper’s editorial board,169 and in March 2008, he was asked to write a




161 Id.
162 Id.
163 2CR2490.
164 3CR4603–04.
165 3CR4298.
166 3CR4286, lines 24–25, and 3CR4287, lines 1–7 (Birmingham depo.).
167 2CR2537 (internal e-mail headings in exchanges between Mike Baird, Beth Francesco,
    Tom Whitehurst, Israel Saenz, and Elvia Aguilar).
168 See also 2CR2532 (“rumor” e-mail); 2CR2468 (Birmingham 15 Feb. 2008 e-mail: “some
    wanted to fire Terry”); 2CR2669 (refusing to speak with journalist who defended
    Carter).
169 3CR3847.
Sunday editorial.170 He admitted knowing about the contents of the March 2,

2008 editorial.171 It reflected his opinions.172

       In his deposition, Birmingham explained all his business and personal

reasons for wanting Carter eliminated.173 These include Carter’s reaction to the

Caller-Times’ unfavorable reports about a Chamber of Commerce member

(CITGO),174 Carter’s allegedly “dressing down” Aguilar when she asked a

question,175 Carter’s supposed refusal to work out his problems with

Birmingham,176 the Caller-Times’ voluntary withdrawal from the Chamber,177 a

television interview where Carter allegedly said hurtful things about

Birmingham,178 and Carter’s supposed favoritism.179 The “dressing down”

incident turned out to be Aguilar’s asking Carter after a press conference why

she hadn’t been told something earlier and Carter’s reply that he’d been out of

town on a family emergency and unable to call her back.180




170 2CR2668 (e-mail asking Birmingham to write editorial).
171 3CR3847.
172 See 3CR3785 (Jiminez aff.) (“The March 2, 2008 editorial reflected the opinions of the
    editorial board of the Caller-Times regarding the matters discussed in the editorial.”).
173 3CR4283; 4CR5879–81; 4CR6519.
174 3CR4283, lines 1–10; 3CR4284, lines 13–16; 4CR6523, lines 2–25.
175 4CR6521–22.
176 3CR4284, lines 13–22.
177 4CR6525, lines 4–22.
178 4CR6556. See also 2CR3217–18 (“First Edition” excerpt).
179 4CR6556.
180 4CR6521–22.
       The transcripts in the record of television interviews show that

Birmingham made disparaging statements about Carter181 but Carter made none

about Birmingham or the Caller-Times.182

       Although Birmingham denied it, some evidence shows he exercised

leadership and control over what the Caller-Times published. He showed open

animosity toward Carter to the newspaper’s staff. One example is a February 10,

2008 e-mail from Birmingham to Libby Averyt and Shane Fitzgerald.

Birmingham was outraged because the Caller-Times had published a picture

showing Carter dancing with his wife.183 Birmingham exploded:

         I have a lot tolerance for things one might describe as mistakes,
         but after looking at today’s Hola front of section I can honestly
         say that you and Shane are either not paying attention to what goes
         in the paper or the editorial department has some sort of strange
         passion to simply piss me off. If it is the latter, mission
         accomplished!184

       This e-mail is direct evidence of Birmingham’s personal animus toward

Carter. That Birmingham accused Averyt and Fitzgerald of not paying attention

to what goes on in the paper suggests that a plan to eliminate Carter was already

in place and they were not following it.


181 2CR2317–18 (transcript excerpt of “First Edition” broadcast on 19 Dec. 2007).
182 Id.; 2CR3233–36 (transcript excerpt of “First Edition” broadcast on 10 Sept. 2007);
    2CR2316–17 (transcript excerpt of “First Edition” broadcast on 19 July 2007);
    2CR2326–31 (transcript excerpt of “First Edition” broadcast on 23 June 2007);
    2CR2332–34 (transcript excerpt of “First Edition” broadcast on 22 June 2007);
    2CR2360–65 (transcript excerpt of “First Edition” broadcast on 11 June 2007).
183 2CR2460 (Hola! cover).
184 2CR2538.
       Immediately after the Chamber’s executive-committee meeting of

February 15, 2008, the Caller-Times began a “Terry Carter Watch for

Resignation.”185 The record shows that only Damon Bentley, whom the Caller-

Times was shielding from scandal,186 was demanding Carter’s dismissal.187 And

on February 16, the Caller-Times began looking into Carter’s past because of a

rumor that “there were issues at his previous job”188 years ago. This indicates

that the Caller-Times was motivated and preparing to drive Carter to resign.

       By late February, the Caller-Times had purportedly dug up dirt about

Carter. Birmingham provided the material to Caller-Times editor Shane

Fitzgerald.189 None of the material had anything to do with Carter’s job

performance before or since joining the Chamber.190 Its only purpose was to

sully Carter’s reputation. Although it was never published, it shows that the

Caller-Times was motivated to injure Carter by whatever means necessary.

       This disquieting evidence of personal malice explains why the Caller-

Times published so many defamatory articles. All in all, the record contains far

more than a scintilla of evidence that the Caller-Times acted with actual malice: it



185 2CR2537 (internal e-mail headings in exchanges between Mike Baird, Beth Francesco,
    Tom Whitehurst, Israel Saenz, and Elvia Aguilar).
186 See pp. 46–47 of this brief.
187 2CR2632, lines 9–10; 2CR2634, lines 14–15.
188 2CR2679.
189 2CR2673–75 (Michael Grey, “Spat over a renovated mansion turns ugly,” Wall St. J.
    Online, [undated]). See also 2CR2671 (undated, unattributed article).
190 2CR2673–75; 2CR2671.
presents a triable issue of fact. The jury could decide all these false, designedly

hurtful publications were not a series of good-faith accidents but part of a

pernicious plan.


   2. The Caller-Times selectively omitted material facts and juxtaposed
      facts with innuendo.

       When a publisher knows or strongly suspects the gist of a writing is

misleading, it is a “calculated falsehood” to publish it.191 The Texas Supreme

Court has declared the Texas rule for when innuendo crosses over to

defamation:

         Calculated falsehood falls into that class of utterances which “are
         no essential part of any exposition of ideas, and are of such slight
         social value as a step to truth that any benefit that may be derived
         from them is clearly outweighed by the social interest in order and
         morality.” Hence the knowingly false statement and the false
         statement made with reckless disregard of the truth, do not enjoy
         constitutional protection.192

       Selectively omitting facts or suggestively juxtaposing actual facts against

innuendo to create a false impression is evidence of actual malice.193 A

publication’s meaning depends on how it affects an ordinary person’s

perception.194 Even if individual statements considered in isolation may be



191 Turner, 38 S.W.3d at 120 (citing Garrison, 379 U.S. at 75).
192 Bunton, 94 S.W.3d at 591 (citing Garrison, 379 U.S. at 75 and quoting Chaplinsky v. New
    Hampshire, 315 U.S. 568, 572 (1942)).
193 Turner, 38 S.W.3d at 114; Franco v. Cronfel, 311 S.W.3d 600, 607 (Tex. App. 2010) (citing
    Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 425–26 (Tex. 2000)).
194 Turner, 38 S.W.3d at 114.
literally true or nondefamatory, a publication may still convey a false and

defamatory impression by omitting or juxtaposing facts.195 Defamation may be

shown when the publication “gets the details right but fails to put them in the

proper context”196 so that as a whole the arrangement of the discrete facts is

misleading.197

       One example of a misleading omission is the article headed “Chamber

Tape Tells of Heated Exchange.”198 The recording of the February 15, 2008

meeting was just over one hour long.199 The article quotes some of the

exchanges among those present,200 making it appear that Carter had been out of

control for most of the meeting. But the article fails to mention that those

exchanges lasted only a few minutes and Carter left the room almost

immediately—not “later.”201 The transcript of the meeting is 91 pages long;202

the portion excerpted is only 4 pages.203 During the remainder, among much

else, several things happened: Judy Hawley and Sylvia Whitmore demanded that



195 Id. (citing Golden Bear Distrib. Sys. v. Chase Revel, Inc., 708 F.2d 944, 948–49 (5th Cir.
    1983)). See also Huckabee, 19 S.W.3d at 425.
196 Turner, 38 S.W.3d at 115 (citing W. Page Keeton et al., Prosser & Keeton on Torts § 116, at
    117 (Supp. 1988)).
197 Turner, 38 S.W.3d at 115.
198 2CR1551, Appendix 3JJ (article, 31 May 2008).
199 Id.
200 Id.
201 Id.
202 2CR2575 et seq. (first 82 pages of transcript); 2CR2687 (Amended Affidavit of Damon
    Bentley identifying attached transcript as part of taped 15 Feb. 2008 meeting); 2CR2720
    (remaining 9 pages of transcript).
203 2CR2577 et seq.
the Chamber’s attorney, Van Huseman, leave before Damon Bentley’s

treasurer’s report,204 Bentley stated he did not think the bylaws applied to the

accounting matter (even though he was immediately shown otherwise),205

Whitmore said she did not think an accountant’s opinion was necessary,206 and

Bentley had a long talk with an accountant.207

       The Caller-Times ignored all of this, saying only that “Bentley could be

heard giving his financial report.”208 Despite having the truth in hand, the Caller-

Times made no effort to correct its false publications.209 Aguilar never

mentioned that there was in fact no shouting210 or that Carter never returned to

the meeting, which raises the question how he could have “seized” the tape and

stormed out, as the Caller-Times had previously reported.211 Nor did she

mention that Bentley had in fact talked at length with the accountant at the

meeting,212 despite previous claims published in the Caller-Times213 about Carter

“denying the treasurer access to critical information and advice of financial


204   Id.
205   Id.
206   Id.
207   2CR2710–25 (transcript).
208   2CR1551, Appendix 3JJ (article, 31 May 2008).
209   Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1071 (5th Cir. 1987) (failure to correct
      false statement when truth is uncovered is evidence of actual malice).
210   2CR1487, Appendix 3K (article, 15 Feb. 2008); 2CR1493, Appendix 3L (article, 16 Feb.
      2008); 2CR1500, Appendix 3O (article, 27 Feb. 2008); 2CR1503, Appendix 3P (article,
      29 Feb. 2008).
211   2CR1500, Appendix 3O (article, 27 Feb. 2008); 2CR1503, Appendix 3P (article, 29 Feb.
      2008).
212   2CR2634–22 (transcript); 2CR2710–19 (transcript).
213   2CR1503, Appendix 3P (article, 29 Feb. 2008).
professionals employed by the chamber of commerce.”214 If Aguilar failed to

listen to the entire tape—despite the many articles written about what

supposedly did and didn’t happen—then she either deliberately avoided learning

the truth215—which is also evidence of actual malice216—or was negligent.217

       One allegation of financial malfeasance repeated several times by the

Caller-Times was that Carter improperly shifted Chamber funds between

accounts.218 The allegation implies that Carter did so with no one’s knowledge—

a felony.219

       This is not true. Patrick Birmingham, president and publisher of the

Caller-Times,220 was a member of the Chamber’s board of directors from

January 2005 through October 2007.221 He had actual knowledge of relevant

information concerning the financial operations of the Chamber. Carter reported

to all Chamber board members about the Chamber’s financial status on a

monthly basis, and financial statements showed that Carter transferred funds

from the building fund to another account in the ordinary course of Chamber



214 Id.
215 See Bunton, 94 S.W.3d at 596; Harte-Hanks Commc’ns, 491 U.S. at 692 (reporter avoided
    listening to tape).
216 Bunton, 94 S.W.3d at 596; see also Harte-Hanks Commc’ns, 491 U.S. at 692.
217 Newspaper Holdings, 416 S.W.3d at 85 (failing to investigate falsity and act as a reasonably
    prudent person is negligence).
218 See, e.g., 1CR1500, Appendix 3O (article, 27 Feb. 2008); 2CR1503, Appendix 3P (article,
    29 Feb. 2008); 2CR1514, Appendix 3T (article, 8 Mar. 2008).
219 See Tex. Penal Code §§ 31.03, 32.32, 32.45.
220 2CR2684 (Carter’s first affidavit).
221 Id.
business.222 Board members were required to and did vote to approve,

disapprove, or abstain on each monthly financial report.223 Each voting board

member, including Birmingham, Bentley, Hawley, and Whitmore, voted to

approve each of the financial reports.224 As a board member, Birmingham knew

this. The Caller-Times and Scripps knew it as well.

         By selectively omitting the fact that Chamber board members knew that

Carter properly transferred funds between accounts and approved the monthly

financial reports, the Caller-Times created a damagingly false impression that

Carter secretively engaged in financial improprieties.

         Standing alone, or combined with other factors, this is much more than a

scintilla of evidence that the Caller-Times acted with actual malice225 or was at

the very least negligent.226


      3. The Caller-Times deliberately avoided the truth.

         Although merely failing to fully investigate is not evidence of actual

malice, purposefully avoiding the truth is.227




222    Id. at 2684–85.
223    Id. at 2685.
224    Id.
225    See Franco, 311 S.W.3d at 607.
226    See Newspaper Holdings, 416 S.W.3d at 85.
227    Bunton, 94 S.W.3d at 596; see also Harte-Hanks Commc’ns, 491 U.S. at 692.
       In Bentley v. Bunton,228 a local judge sued the host of a call-in talk show for

defamation after the host repeatedly accused him of being corrupt.229 Although

the host claimed his accusations were based on his own investigations, evidence

showed that he had deliberately ignored investigating all the relevant people who

could have shown his accusations to be false.230 The Court noted the absence of

any evidence supporting the host’s accusations.231

       The Caller-Times repeatedly and consistently ignored evidence showing it

to be wrong about the gist and details of its publications about Carter. It

published the March 2, 2008, editorial ignoring facts in its possession and

showing an avoidance of truth. It referred to the attempted removals of

Chamber executive-board members Hawley and Whitmore as “duplicitous

dealings by Carter in his relations with . . . the executive council.”232 It also

disparaged the “convenient, for Carter, rereading of the bylaws” as “nothing less

than an attempt to intimidate critics of his conduct.”233

       But the evidence shows that the Caller-Times purposely ignored known

facts before making those statements: (1) Martinez, not Carter, sought legal




228   94 S.W.3d 561 (Tex. 2002).
229   Id. at 566–67.
230   Id. at 601.
231   Id.
232   2CR1506, Appendix 3Q (editorial, 2 Mar. 2008).
233   Id.
advice about Hawley’s and Whitmore’s executive-council membership;234 (2) Van

Huseman, not Carter, determined that they were not members under the

bylaws;235 (3) Whitmore was not immediate past chair,236 and an editor had tried

to improperly change her status;237 (4) Hawley’s eligibility had expired because

the Port of Corpus Christi’s contract had expired; (5) the Caller-Times had an

out-of-date copy of the bylaws238 and did not inquire what the current bylaws

provided, let alone how they could be interpreted. The Caller-Times downplayed

or disregarded Huseman’s legal opinion, perhaps because he had been hired to

represent the Chamber by Carter.239 This information came from Birmingham,

who hated Carter.240 Birmingham and others even ignored calls and a pointed

article from a rival publisher explaining the “lynch mob” attack on Carter and

correcting many details.241

       Similarly, in Harte-Hanks Communications v. Connaughton,242 a newspaper

made a deliberate decision not to acquire knowledge of facts that might confirm

the probable falsity of allegations it made about a judicial candidate.243 By failing



234 2CR2533 (some quotations from this e-mail are attributed to Huseman in the editorial:
    see Tom Whitehurst e-mail, 2CR2531).
235 2CR2533.
236 2CR2531 (Tom Whitehurst e-mail).
237 Id. (“it’s because she’s now the immediate past chairman with Doug Allen leaving”).
238 2CR2530 (“We need to make it clear that the bylaws we saw were from 2006.”).
239 2CR2532 (Birmingham e-mail).
240 Id.
241 2CR1556; 3CR5033.
242 491 U.S. 657 (1989).
243 Id. at 692.
to conduct a routine investigation by interviewing the key witness, listening to a

recorded statement, or meeting with two sources who could verify the

allegations, the newspaper purposefully avoided the truth, turning from facts that

might have shown the allegations to be false.244

         The U.S. Supreme Court found that “[t]he newspaper’s decision not to

listen to the tapes of the Stephens interview in Connaughton’s home also

supports the finding of actual malice.”245 The Caller-Times had the entire tape-

recording of the meeting, yet it did not accurately report facts it revealed. This

shows the Caller-Times knew the truth and didn’t report it, or was purposefully

avoiding the truth. Either way, this is evidence of actual malice. At the very least,

the newspaper negligently failed to correctly report the facts.


      4. The Caller-Times recklessly or negligently relied on sources it
         should have known were questionable.

         As the U.S. Supreme Court has held, a defamation defendant may be

found to have acted recklessly or negligently “where there are obvious reasons to

doubt the veracity of the informant or the accuracy of his reports.”246 The Caller-

Times says the initial source of the troubles in the Chamber of Commerce was

Ruben Bonilla and cites the affidavits of Tom Whitehurst and Jamie Powell.247



244    Id.
245    Id. at 683.
246    St. Amant v. Thompson, 390 U.S. 727, 732 (1968).
247    ANTBrp30.
But Whitehurst identified only Sylvia Whitmore and Judy Hawley as sources.248

Powell said he had spoken to Bonilla on February 15, 2008, but did not say what

was discussed.249 Bonilla was not a primary source. The only information he

provided is found in an article published on February 16.250 He says nothing at

all about the financial controversy in the Chamber of Commerce.251 And he is

never again referred to as a source. But Sylvia Whitmore, Judy Hawley, and

Damon Bentley are repeatedly quoted in articles and mentioned in Caller-Times

e-mails. Nothing shows Bonilla ever contacted the Caller-Times again. Instead

the Caller-Times relied on questionable sources.

       The Caller-Times had reason to doubt Judy Hawley’s veracity or accuracy

as a source. She told the Caller-Times that she was shocked by her dismissal

from the Chamber’s executive committee,252 for which she blamed Carter.253 She

stated: “it was significant that she and Whitmore were the first order of

business . . . instead of their concerns about financial practices.”254 She had no




248 1CR617–18 (Whitehurst affidavit).
249 1CR585–87.
250 1CR465.
251 Id.
252 1CR465 (article of 16 Feb. 2008, quoting Hawley).
253 1CR1007 (Hawley depo. p. 19, line 25; p. 20, lines 1–10). See also 1CR465 (article of 16
    Feb. 2008, quoting Hawley).
254 1CR465 (article of 16 Feb. 2008, quoting Hawley).
direct knowledge of anything; she only knew what Damon Bentley had told

her.255

          Sylvia Whitmore was not a reliable source. She had been a member of the

board until it was determined that under the bylaws, she was no longer eligible to

serve.256 Despite having the bylaws explained,257 she was furious about her

exclusion and remained so.258 She blamed Carter even though he had not raised

the question about her eligibility.259 Whitmore became a “source” for the Caller-

Times no later than February 15, 2008.260 On that date, she sent the Caller-Times

an e-mail about the Chamber’s executive-board meeting261 and immediately

became a “reliable source.”262 She expressed in vague terms that she was

concerned about the Chamber’s finances.263 Without trying to clarify the

vagueness, the newspaper published her statements anyway. In one article, it

presented as fact—despite the blatant contradiction—Whitmore’s declaration




255 2CR2540, lines 1–20; 2CR2574, lines 5–7 & 20–22; 2CR2470 (citing Whitmore depo.;
    Hawley depo.) (both repeating what Bentley told them).
256 2CR2533.
257 Id. (some quotations from this e-mail are attributed to Huseman in the article: see Tom
    Whitehurst e-mail, 2CR2531).
258 See, e.g., 2CR2536 (part of 15 Feb. 2008 e-mail from Sylvia Whitmore to Israel Saenz);
    2CR1503, Appendix 3P (article, 29 Feb. 2008).
259 2CR2555, lines 10–17 (Whitmore depo.).
260 See 2CR2536 (part of 15 Feb. 2008 e-mail from Whitmore to Israel Saenz).
261 See id.
262 See 2CR2676 (21 Feb. 2008 e-mail from Aguilar, referring to “reliable source” and
    identifying source as “Sylvia”).
263 See 2CR2536.
that Bentley had been denied access to the Chamber’s accountant264 and

Bentley’s statement about what he’d been told by that same accountant.265 The

Caller-Times has not plausibly explained why it ignored Whitmore’s obviously

false statement and reported it as fact.

       Whitmore also gave Aguilar incorrect information about a Chamber

member’s resignation,266 which Aguilar admittedly did not verify before it was

published,267 and serious backlash resulted.268 Yet despite then knowing

Whitmore to be a fallible source, Aguilar never confirmed Whitmore’s accuracy

on more important subjects—such as the contents of Carter’s employment

contract.

       Whitmore “confirmed” to the Caller-Times that Carter’s bonus depended

on the Chamber’s financial performance,269 even though she had in fact never




264 2CR1503, Appendix 3P (article, 29 Feb. 2008) (“Whitmore said she was concerned
    about ‘denying the treasurer access to . . . advice of financial professionals employed by
    the chamber of commerce.’”).
265 Id. (“According to Bentley, the accountant told him . . . .”).
266 See 2CR2676–77.
267 See id.
268 See id. See also 2CR1498, Appendix 3N.
269 2CR1503, Appendix 3P (Whitmore reiterating Bentley’s claim that Carter’s bonus was
    tied to Chamber’s financial performance); 2CR2463 (Aguilar citing Whitmore as source).
seen the contract270 and was only repeating Bentley’s statements.271 Aguilar never

tried to contact Bentley to verify Whitmore’s statement.272

       The Caller-Times never sought a copy of Carter’s employment contract. It

relied only on Bentley’s description of the contract.273 But Bentley didn’t

accurately describe the contract he claimed to have seen.274

        The original contract promised a performance bonus based on
         attaining financial goals set forth in “Attachment C.”275 There was no
         Attachment C,276 and there never had been.

        Neither Attachment A277 nor Attachment B lists any financial
         performance objectives.278

        Bentley admitted seeing the 2005 amendment (Amendment to
         Employment Contract),279 promising a performance bonus “based on
         the attainment of financial goals” set forth in “Attachment C,”280
         which still did not exist.

        Bentley did not mention the February 2007 amendment (Amendment
         Number 2 to Employment Contract),281 which gave Carter a

270 2CR2540 (Whitmore depo.: admitting she never reviewed Carter’s contract).
271 2CR2524 (Bentley e-mail inaccurately describing contract); 2CR2503 (Bentley describing
    contract in part without referring to amendments); 2CR2663 (Bentley e-mail: failing to
    mention second amendment to contract). See also 2CR2515, lines 12–25 (Hawley depo.)
    (waffling on performance link to bonus).
272 2CR2461 (Aguilar affidavit).
273 2CR2524; 2CR2663.
274 2CR2524 (Bentley e-mail inaccurately describing contract); 2CR2687 (Bentley’s amended
    affidavit, acknowledging he saw all provisions and both amendments); 2CR2695 (copy of
    contract attached to Bentley affidavit).
275 2CR2332, lines 4–8.
276 2CR2524 (Bentley e-mail stating “contract has an attachment C [it doesn’t] but
    unfortunately it is blank”).
277 2CR2337.
278 2CR2338–40.
279 2CR2341–42.
280 2CR2342.
281 2CR2343–44.
           “performance” bonus and did not mention financial goals or Attachment C.282

Bentley also did not mention that he had seen the amendments.283

       This evidence objectively shows that Carter’s contractual bonus was not

linked to the Chamber’s 2007 financial performance. The Caller-Times could

have easily verified this by actually obtaining a copy of the contract, but made no

attempt to do so. It repeatedly published falsehoods.

       Damon Bentley, a “source” who talked directly to the Caller-Times about

the dispute,284 was known to be untrustworthy. Most of the disparaging articles

“particularly relied” on Bentley as a source and for information285 despite the

reporters’ never attempting to verify his statements.286

       Bentley had become the Chamber’s treasurer in August 2007.287After the

Crosstown Commons episode, but before the Caller-Times attacked Carter,

Bentley was involved in a scandal that could have affected the public’s

perception of his trustworthiness. Here is what the record shows. Mauricio Celis

was, among other things, Damon Bentley’s partner in Utopia World Cuisine

restaurant.288 On September 15, 2007, Bentley and his girlfriend spent an evening



282 Id.
283 2CR2687.
284 See, e.g., 1CR1493, Appendix 3L (confirming that Bentley spoke to Caller-Times).
285 2CR2461 (Aguilar affidavit); 2CR2488, lines 20–23 (Aguilar depo.) (“I took Mr.
    Bentley’s word for it”).
286 Id.
287 2CR2498, lines 15–20 (Bentley depo.).
288 2CR2495, lines 3 & 8–9 (Bentley depo.).
at Utopia drinking with Celis. They went to Celis’s home around 2 a.m.289 Celis,

Bentley, and Bentley’s girlfriend were all naked and using the hot tub or

swimming pool.290 Two hours later, the woman was sprinting naked from Celis’s

house to a convenience store over a mile away, where the police were called.291

Bentley and Celis arrived shortly after.292

       The Caller-Times reported that the responding police officer said that the

woman had fled Celis’s house when one of the men—not Celis—had attempted

to have sex with her.293 Celis, clad in a bathrobe, flashed a badge and tried to

persuade the officer to release the woman into his custody.294 The officer

refused.295

       This sexcapade involved local political, social, and law-enforcement

figures—a newsworthy event—but the Caller-Times did not report it until

October 26, 2007, well over a month later.296 It never mentioned Bentley by

name. Although he was named in the police report, the Caller-Times referred to

him only as “the other man” in the many ensuing articles about the

investigations, indictments, and court hearings.297 The Caller-Times never


289   2CR2504, lines 1–13 (Bentley depo.).
290   Id., lines 19–25 (Bentley depo.).
291   2CR1484, Appendix 3I (articles, 26 Oct. 2007).
292   Id.
293   Id.
294   Id.
295   Id.
296   Id.
297   2CR2506, lines 19–22 (Bentley depo.).
articulated a legitimate, nonculpable excuse for its favoritism toward Bentley,

who became the Caller-Times’ main “source” against Carter. Nor did it report

that Bentley, as treasurer, had consistently approved Carter’s detailed monthly

financial reports until January 2008.298

       Instead, the Caller-Times consistently cast Bentley in a heroic light,

quoting him: “[I am] personally . . . committed to the success of the chamber of

commerce and we need to make sure that the decisions we make move the

chamber in a direction that is positive for this city.”299 But it goes further. The

Caller-Times portrayed Bentley as recoiling from Carter’s alleged financial

“irregularities” to get an unearned bonus300 (which could result in felony

charges),301 fighting to recover a tape he claimed Carter had stolen302 (though he

knew Carter did not have it),303 striving to protect the tape from destruction

when it was safe,304 being appointed to the Chamber’s audit committee305 (he was

not, and the Caller-Times did not ask why not),306 and gallantly “declining to


298 See 2CR2687–88 (Bentley affidavit) (Acknowledging membership on Board of
    Directors). See also 2CR2684–85 (Carter’s first affidavit).
299 2CR1487, Appendix 3K (article, 15 Feb. 2008); 2CR1493, Appendix 3L (article, 16 Feb.
    2008) (confirming Bentley spoke to Caller-Times).
300 2CR1500, Appendix 3O (article, 27 Feb. 2008); 2CR1503, Appendix 3P (article, 29 Feb.
    2008); 2CR1508, Appendix 3R (article, 3 Mar. 2008); 2CR1511, Appendix 3S (article, 4
    Mar. 2008); 2CR1514, Appendix 3T (article, 8 Mar. 2008).
301 Tex. Penal Code §§ 31.03, 32.32, 32.45.
302 2CR1500, Appendix 3O (article, 27 Feb. 2008); 2CR1503, Appendix 3P (article, 29 Feb.
    2008); 2CR1516, Appendix 3U (article, 19 Mar. 2008).
303 2CR2721 (Bentley e-mail).
304 2CR1516, Appendix 3U (article, 19 Mar. 2008).
305 2CR1498, Appendix 3N (article, 21 Feb. 2008).
306 3CR4861 (Bentley’s letter denying appointment).
surrender” a paper copy of the PowerPoint presentation he’d just made to the

Chamber.307

       Some members of the public learned of Bentley’s adventure and

questioned his veracity.308 For example, one commenter wrote: “Bentley is the

epitome of the pot calling the kettle black. What he was involved with Celis in,

i.e. the hot tub, is not the way an upstanding person handles themselves.

Whatever the others were doing, Bentley is obviously not clean either.”309

Although the Caller-Times knew the doubts about its prime source,310 it

remained silent.

       Another obvious reason to doubt Bentley’s veracity was that as a board

member, he received monthly financial statements from Carter and never raised

any concerns or complaints.311 He approved them all.312 Bentley even presented

some of these reports. Yet in January 2008, Bentley suddenly expressed concern

when Carter’s contract came up for review.313 He didn’t know the Chamber’s

accounting system and procedures.314 He had access to the documents related to



307 2CR1498, Appendix 3N (article, 21 Feb. 2008).
308 See, e.g., 2CR2539; Appendix 4 (John Kelley, “Opponents described as ‘lynch mob,’” We
    the People, 2 Apr. 2008) (“Bentley seems to have a special pass from the Caller-Times.”).
    See also 2CR2682 (asking “is Bentley an auditor? I’m confused.”).
309 2CR2539.
310 2CR2664 (e-mail to Birmingham: “Bentley seems to have a special pass from the Caller-
    Times”); 2CR2672 (e-mails from Shane Fitzgerald about online comments).
311 2CR2684; 4CR5401 (Carter’s first affidavit).
312 4CR5401.
313 2CR1487, Appendix 3K (article, 15 Feb. 2008).
314 2CR2498, lines 22–25; 2CR2499, line 1 (Bentley depo.) (admitting no knowledge).
the matters he perceived were financially wrong.315 The CPA he consulted would

not and did not say there were serious problems and would not give a

professional opinion.316 Bentley alone, without support, decided there was a

crucial problem.317 The Caller-Times ignored Bentley’s obvious failure as a

director and as Chamber treasurer to notice any problems sooner and reported

all his words as facts.318

       One reasonable inference is that the Caller-Times was protecting Bentley’s

credibility in an effort to multiply the harm he could inflict on Carter. Another

inference is that Birmingham knew he could use Bentley to frame Carter as early

as September 15, and this is why he protected his future “source.”

       Because this is a review of an unsuccessful summary-judgment motion, all

inferences must be drawn in Carter’s favor. They raise a triable fact question

about whether the Caller-Times published with actual malice or, at the very least,

was negligent. A reasonable jury could find the Caller-Times was taking the word

of informants that it knew were not reliable or trustworthy and ignoring known

reliable evidence and a very available source—Birmingham—who could have

revealed the falsity of the statements about Carter. After Birmingham specifically



315   2CR2500, lines 23–25 (Bentley depo.).
316   2CR2501, lines 1–25; 2CR2502, lines 1–4.
317   2CR2502, lines 5–14.
318   See, e.g., 2CR1487, Appendix 3K (article, 15 Feb. 2008); 2CR1500, Appendix 3O (article,
      27 Feb. 2008); 2CR1503, Appendix 3P (article, 29 Feb. 2008); 2CR1506, Appendix 3Q
      (editorial, 2 Mar. 2008).
told the Chamber to “remove” the Caller-Times from e-mail distributions,

member lists, and contact lists, the Chamber did so.319 The Caller-Times’ action

blocked it from getting information from the Chamber or Carter. This evidence

of the Caller-Times’ purposeful avoidance is some evidence of a reckless

disregard of the truth and actual malice.

       A reasonable jury could also conclude the newspaper was deliberately

waging war against Carter through known lies—or, at the very least, acted

negligently by ignoring the facts it possessed, failing to investigate to determine

the truth.320

       The Caller-Times declares that there is no evidence of negligence because

“it is undisputed that the Articles were published with diligence, balance and in

accord with standard journalistic practices and customs.”321 But Carter has

disputed that all along, and the Caller-Times cites nothing to the contrary. The

only “support” the Caller-Times cites is the affidavits of its former and present

employees and an expert report by Tony Pederson.

       Professor Pederson based his opinions that the Caller-Times did not act

with malice or negligence on incomplete and inaccurate information. His

conclusions are unreliable because Pederson was not informed about material



319 3CR4604.
320 See 2CR1556 (John Kelley, “Opponents described as ‘lynch mob,’” We the People, 2 Apr.
    2008).
321 ANTBrp84.
facts, such as the backgrounds of the Caller-Times’ sources and the existence of

personal animosity towards Carter. For example, Pederson mentions nothing

about the fact that Whitmore and Hawley were angered by Carter’s (justified)

effort to remove them from the executive council. He did not mention that

Whitmore’s and Hawley’s information was secondhand322 and not verified by the

Caller-Times. He does not mention the fact that the Caller-Times withheld—and

was still withholding—Bentley’s name from the public, with no explanation,

even though the scandal could bear on the public’s perception of Bentley’s

integrity.323 It is established that the public should know about a source’s talents,

education, experience, and motives because these “’help the public formulate

some judgment’ about the controversy,324 and ‘could have been relevant to the

public’s decision whether to listen to him.’”325 He does not mention Patrick

Birmingham’s animosity toward Carter or the Caller-Times’ very noisy and

public withdrawal from the Chamber of Commerce. And he does not mention

that Aguilar—who wrote 18 of the 25 articles and contributed to others326—and

Birmingham were upset because Carter had given Aguilar a “dressing down.”327



322 2CR2540, lines 1–20; 2CR2574, lines 5–7 & 20–22; 2CR2470 (citing Whitmore depo.;
    Hawley depo.) (both repeating what Bentley told them).
323 2CR1351–54.
324 WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 572 (Tex. 1998).
325 Waldbaum v. Fairchild Pubs., Inc., 627 F.2d 1287, 1298 (D.C. Cir. 1980).
326 2CR2484, lines 13–25; 2CR2485, lines 3–25 (Aguilar depo.). See also 2CR1490 (16 Feb.
    article).
327 4CR6520, lines 20–25; 4CR6521, lines 1–9 (describing “dressing down”).
If Pederson had known those facts, he likely would not have concluded that

“there was nothing of a personal nature in the criticism of Carter” or that the

articles contained “nothing that could be construed as ‘vitriolic.’”328 In fact, he

says that “there is nothing in the stories or the record to indicate the sources

were acting in bad faith.”329

       Pederson based his opinion that the Caller-Times did not act with malice

or negligence on what the Caller-Times told him about Carter’s contract. He

never saw a copy of it, and neither did the Caller-Times—it relied solely and

unquestioningly on Bentley’s description of the contract, which was materially

inaccurate330 and published Bentley’s statements as facts.

       Pederson also concluded that the Caller-Times acted without malice by

relying on information provided by Hawley and Whitmore.331 He does not say

explain how the Caller-Times could properly base its statements about the

building fund on information from Hawley and Whitmore—neither of whom

had actual knowledge about it332—and fail to verify it, especially knowing that

Whitmore had previously given Aguilar grossly inaccurate information before.333

The Caller-Times based its statements about the terms of Carter’s employment


328 1CR664.
329 Id.
330 See pp. 44–45 of this brief.
331 2CR2470 (citing Bentley, Whitmore, and Hawley depos.).
332 2CR2540, lines 1–20; 2CR2574, lines 5–7 & 20–22; 2CR2470 (citing Whitmore depo.;
    Hawley depo.) (both repeating what Bentley told them).
333 See 2CR2676–77. See also 2CR1498, Appendix 3N.
contract on “information” from Whitmore, who possessed limited, secondhand

(and inaccurate) knowledge of the terms, and from Hawley, who knew even

less.334

           Pederson does not address the Caller-Times’ repeated failures to verify

facts and publication of facts it knew were false other than to say that “nothing

stands out as lacking in conformance with journalistic standards or

professionalism” and that the newspaper had “solid sourcing”335 despite the facts

that Hawley and Whitmore lacked actual knowledge336 and that Bentley’s

information in particular was based on improper methodology337 and

unsupported by an accountant.338 Pederson seems not to have known those

facts—any many other material facts—before formulating his opinions and

conclusions.

           Pederson’s expert report is unreliable and does not support finding that

the Caller-Times acted without malice or was not negligent.



334 2CR2492, lines 12–25.
335 1CR665.
336 2CR2540, lines 1–20; 2CR2574, lines 5–7 & 20–22; 2CR2470 (citing Whitmore depo.;
    Hawley depo.) (both repeating what Bentley told them).
337 2CR2578, lines 12, 15–16 (stating, “I’m not a CPA. . . . That’s why I asked a CPA to be
    here.”); 2CR2493, lines 15–17; 2CR2494, lines 9, 13–16 (Bentley depo. excerpt: not
    mentioning qualifications in finance or accounting); 2CR2498, lines 15–25; 2CR2499,
    line 1 (Bentley depo. excerpt: no knowledge of Chamber’s accounting method or
    procedures); 2CR2591, lines 20–25; 2CR2592, lines 1–6 (confusing three different
    accounting methods and denying the correct method: modified accrual).
338 2CR2501, lines 8–25; 2CR2502, lines 1–4 (Bentley depo.) (acknowledging that
    accountant’s statements were general, based on insufficient information, and not a
    professional opinion).
       There is ample evidence in the record that Birmingham, the Caller-Times’

publisher, and at least one reporter, Aguilar, held personal grudges against

Carter, that the Caller-Times’ reporters and editors ignored and manipulated

facts or—at the very least—failed to follow up on blatant contradictions in the

“facts” and depended on assertions they knew or should have known were

unreliable or of doubtful veracity.


C. A jury could find from the evidence that there was a conspiracy to
   defame Carter, to prevent the Chamber from renewing Carter’s
   employment contract, and to drive him to resign.

       The Caller-Times challenges Carter’s tort claims as unsupported by any

evidence.339 Carter’s nondefamation claims are based on information-gathering

and the publication of the defamatory articles.340

       A civil conspiracy consists of: (1) two or more persons; (2) an object to be

accomplished; (3) a meeting of the minds; (4) one or more unlawful, overt acts;

and (5) damages as the proximate result. A conspiracy is usually proved by

circumstantial evidence.341

       Birmingham stated that he met with Hawley, Whitmore, and one or two

other board members privately in his office.342 The date is not clear, but it was




339   ANTBrp90.
340   1CR912.
341   Int’l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex. 1963).
342   4CR6519, lines 5–25; 4CR6520, lines 18–25 (Birmingham depo.).
after the Caller-Times withdrew from the Chamber of Commerce.343

Birmingham mentions a television interview in which he alleged that Carter had

“said some things that I thought were hurtful about me and the paper.”344 He

aired his “concerns” about Carter but waffled on what exactly those concerns

were.345 He specifically stated only that he was upset about Carter’s “dressing

down” a reporter346 and how Carter was referring to the Caller-Times but did

not elaborate on his meaning.347 Birmingham stated that “there was a general

consensus” among those at the meeting and that everyone “acknowledged and

recognized” his concerns.348 Reluctantly, he admitted that they agreed with him

about something but did not elaborate on just what it was.349

       Birmingham learned on February 15 that he was not the only one who’d

be happy to see Carter lose his job. Libby Averyt told him that some members

of the Chamber’s executive committee wanted Terry Carter fired.350 The

transcript of the taped executive-committee meeting shows that only one




343 2CR2570, lines 11–21 (Whitmore depo.).
344 4CR6517, lines 21–25; 4CR6518, lines 1–14 (mentioning meeting with executive council
    and membership-renewal bill); 4CR6555, lines 21–25; 4CR6556, lines 1–2 (referring to
    withdrawal and interview).
345 4CR6520.
346 Id. See also 2CR2571, lines 24–25; 2CR2572, line 1 (Whitmore depo.).
347 4CR6520.
348 Id.
349 Id.
350 2CR2490 (e-mail from Ayert).
member—Bentley—had decided on dismissal.351 Judy Hawley recommended

giving Carter a “leave,” take away an allowance, and “get him out of this

situation”352 or else “removing” him until an audit was done.353 And Whitmore

and Hawley both blamed Carter for the shock of being told they couldn’t serve

on the Chamber’s executive committee.354 They all had reasons to want Carter

neutralized or eliminated.

       Immediately after Birmingham learned about the accusations of financial

misdeeds355 and that some members of the Chamber’s executive committee

wanted Terry Carter fired,356 the Caller-Times began a “Terry Carter Watch for

Resignation.”357

       The Caller-Times had long kept secret Bentley’s identity as the “other

man” in the sexcapade. Over the four months of articles, it would cast him in

the role of hero. Birmingham told his staff that he had been given information

about “funny stuff . . . with [the Chamber’s] finances,”358 which formed the basis




351 2CR2632, lines 9–10 (“if the CEO is treating me like that, that, to me, is grounds for
    dismissal”); 2CR2634, lines 14–15 (“My recommendation for dismissal . . . .”).
352 2CR2619, lines 22–23; 2CR2320, lines 1–3.
353 2CR2622, line 25; 2CR2623, lines 1–2.
354 1CR1007 (Hawley depo. p. 19, line 25; p. 20, lines 1–10); 2CR2555, lines 10–17
    (Whitmore depo.). See also 1CR465 (article of 16 Feb. 2008, quoting Hawley).
355 2CR2468 (e-mail from Birmingham to Powell and Averyt).
356 2CR2490 (e-mail from Averyt to Birmingham).
357 2CR2536–37 (internal e-mail headings in exchanges between Mike Baird, Beth
    Francesco, Tom Whitehurst, Israel Saenz, and Elvia Aguilar).
358 2CR2468 (e-mail from Birmingham to Powell and Averyt).
of the first article published on February 15, including claims of shouting.359 The

article stated that Whitmore and Hawley could not be contacted.360 So the only

possible source of that information was Damon Bentley, who raised questions to

the Chamber’s executive council on February 15 and spoke to the Caller-Times

that day.361

       Finally, Birmingham and Caller-Times reporter Elvia Aguilar were both

upset with Carter for publicly “dressing down” Aguilar in mid-2007.362 Months

later, Birmingham was still steaming about it.363 When Birmingham was

informed of “funny stuff going on with [the Chamber’s] finances,”364 which

Whitmore made vague statements about a few days later,365 Aguilar almost

immediately became close with Whitmore as a “reliable source.”366 Of the 25

articles that followed, Aguilar wrote 18 of them, many containing unverified false

statements. She stopped writing when Carter’s resignation was imminent.367




359 2CR1491.
360 Id. See also 2CR2626, lines 9–12 & 15–17 (Whitmore declaring that information had not
    been disclosed).
361 See 2CR2626, lines 18–19 (Bentley’s limited admission of disclosure).
362 4CR6520, lines 20–25; 4CR6521, lines 1–9) (describing “dressing down”).
363 2CR2571, lines 24–25; 2CR2572, line 1 (Whitmore depo.).
364 2CR2532 (e-mail).
365 2CR2536 (part of 15 Feb. 2008 e-mail from Whitmore to Israel Saenz: Whitmore
    expressing in vague terms that she was concerned about the Chamber’s finances).
366 See 2CR2677; 2CR2676.
367 See 2CR1540 (last article by Aguilar); 2CR1542–55 (all later articles written by Mary Ann
    Cavazos).
       The apparent objective was to prevent the Chamber of Commerce from

renewing Carter’s contract and to drive Carter to resign. Immediately after

Bentley and Whitmore gave the Caller-Times inside information about Bentley’s

questionable concerns, Caller-Times staff members began sending e-mails with

the subject line “Terry Carter Watch for Resignation,”368 even though the

Chamber of Commerce board had not even thought of asking for Carter’s

resignation. The apparent means was a drawn-out smear campaign in which false

statements were repeated and the worst possible light shed on Carter.

       Whitmore, Hawley, and Bentley gave the Caller-Times the information for

the February 15, 2008 article titled “Financial, Management Questions Raised at

CC.”369 Whitmore sent the Caller-Times an e-mail about the Chamber’s

executive-board meeting370 and immediately became a “reliable source.”371 All

three of them knowingly or recklessly repeatedly fed distorted, inaccurate, and

false information and statements to the Caller-Times, which published it.

Eventually they achieved the objective revealed by the Caller-Times e-mail:

through a continual drumbeat of accusatory news items, Terry Carter (who




368   2CR2536–37.
369   2CR1491–92.
370   See 2CR2536 (part of 15 Feb. 2008 e-mail from Whitmore to Israel Saenz).
371   See 2CR2677 (21 Feb. 2008 e-mail from Aguilar, referring to “reliable source”); 2CR2676
      (identifying source as “Sylvia”).
would later be exonerated) was pressured into resigning from the Chamber of

Commerce.372

        Evidence of an agreement, followed by coordinated illegal conduct, is

some evidence of a civil conspiracy to commit tortious interference and

defamation. With this evidence, a jury could find that the Caller-Times defamed

Carter and tortiously interfered with Carter’s employment contract and

relationship with the Chamber.373 These claims must be remanded.


D. Because the owner of a media outlet is liable for the outlet’s wrongful
   act, Scripps is liable for the Corpus Christi Caller-Times’ defamatory
   articles.

        The owner of a media outlet is liable for the wrongful actions of that

outlet,374 including publishing defamatory statements made by the outlet or

republishing defamatory statements made by others.375 As owner of the Corpus

Christi Caller-Times, Scripps has republisher liability. Also, Birmingham swears

he is an officer of defendant/appellant Scripps.376 Therefore Scripps has

respondeat superior liability for his defamation and other wrongful conduct because

“[t]he defamatory statements made by a servant speaking within the scope of his


372 See 2CR4958.
373 Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 82 (Tex. 2000).
374 See Zacchini v. Scripps-Howard Broadcasting, Inc., 351 N.E.2d 454, 455 (Ohio 1976) (noting
    that Scripps-Howard Broadcasting owned the television station accused of
    misappropriation of property).
375 Neely, 418 S.W.3d at 61 (citing Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations,
    413 U.S. 376, 386 (1973)).
376 3CR3847.
employment but with a bad motive subjects the corporation to liability.”377

Evidence also shows that Scripps publishes the online version of the Caller-

Times,378 which included the defamatory articles. For all these reasons, Scripps

has republisher liability.


                                       Conclusion

       Mark Twain is said to have quipped, “Never argue with a man who buys

ink by the barrel.”379 Birmingham made good on this threat to Carter.380

       Birmingham and Aguilar published many devastating lies about Carter to

eliminate him from his position as CEO. Carter has a highly protected right to

vindicate the truth and save his reputation. This Court should dismiss this appeal

or remand for a jury trial.

                                         Respectfully submitted,

                                         /s/ Craig S. Smith
                                         Craig Smith




377 Hooper-Holmes Bureau, 161 F.2d at 104 (citing Restatement (First) of Agency § 247 cmt. c
    (1933); 19 C.J.S. Corporations § 1280).
378 3CR3862.
379 See Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 744 (Cal. 1989) (crediting Twain). N.B.:
    scholars argue over the attribution.
380 2CR2477 (Plaintiff’s Amended Consolidated Summary Judgment Response).
                     Certificate of Service and word count

      I certify that on May 12, 2016, a true and correct copy of this brief was
served on the following by email. I certify that this brief was typed in 14-point
Garamond font in the text and 12-point font in the footnotes, and contains
10583 relevant words.


                                     /s/ Craig S. Smith
                                     Craig Smith



Paul C. Watler                            Jorge C. Rangel
Shannon Zmud Teicher                      Jaime S. Rangel
JACKSON WALKER L.L.P.                     THE RANGEL LAW FIRM, P.C.
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