                                                                           ACCEPTED
                                                                       01-15-00173-CV
                                                            FIRST COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                                                                  9/18/2015 1:21:52 PM
                                                                 CHRISTOPHER PRINE
                                                                                CLERK

             NO. 01-15-00173-CV

                                                     FILED IN
          In the First Court of Appeals       1st COURT OF APPEALS
                                                  HOUSTON, TEXAS
                 Houston, Texas
                                              9/18/2015 1:21:52 PM
                                              CHRISTOPHER A. PRINE
                                                      Clerk
      JOAN JOHNSON, KALETA JOHNSON,
      SETH JOHNSON AND WIRT BLAFFER,
                             Plaintiffs/Appellants
                    V.

MICHAEL PHILLIPS, SPINDLE TOP PUBLISHING CO.,
    AND PHILLIPS, AKERS, WOMACK, P.C.,
                              Defendants/Appellees


              On Appeal from The
      333rd District Court of Harris County
        Hon. Joseph J. “Tad” Halbach, Jr.
       Trial Court Cause No. 2011-14027


          BRIEF FOR APPELLEES


                                  William W. Ogden
                                  State Bar No. 15228500
                                  bogden@ogblh.com
                                  Judith A. Meyer
                                  State Bar No. 13993200
                                  jmeyer@ogblh.com
                                  OGDEN, GIBSON, BROOCKS,
                                     LONGORIA & HALL, L.L.P.
                                  1900 Pennzoil South Tower
                                  Houston, Texas 77002
                                  Telephone: 713-844-3000
                                  Facsimile: 713-844-3030

                                  Attorneys for Appellees

      ORAL ARGUMENT REQUESTED
                          IDENTITY OF PARTIES AND COUNSEL

           PARTY                    TRIAL COUNSEL           APPELLATE COUNSEL

Joan Johnson,                 Patrick Zummo               Mark S. Tabolsky
Kaleta Johnson,               Two Houston Center          Yetter Coleman LLP
Seth Johnson and              909 Fannin, Suite 3500      Two Houston Center
Wirt Blaffer,                 Houston, Texas 77010        909 Fannin, Suite 3600
      Plaintiffs/Appellants                               Houston, Texas 77010

                                                          Patrick Zummo
                                                          Two Houston Center
                                                          909 Fannin, Suite 3500
                                                          Houston, Texas 77010


Michael Phillips              William W. Ogden            William W. Ogden
Spindle Top Publishing Co.,   Judith A. Meyer             Judith A. Meyer
and                           OGDEN, GIBSON, BROOCKS,     OGDEN, GIBSON, BROOCKS,
Phillips Akers Womack PC      LONGORIA & HALL, L.L.P.     LONGORIA & HALL, L.L.P.
       Defendants/Appellees   1900 Pennzoil South Tower   1900 Pennzoil South Tower
                              711 Louisiana               711 Louisiana
                              Houston, Texas 77002        Houston, Texas 77002

                              Thomas M. Gregor
                              GREGOR & RIPPY
                              700 Louisiana, Suite 395
                              Houston, Texas 77002




                                          i
                                            TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .......................................................................... i

INDEX OF AUTHORITIES............................................................................................. iv

STATEMENT OF THE CASE ......................................................................................... ix

STATEMENT REGARDING ORAL ARGUMENT ............................................................. ix

ISSUES PRESENTED ..................................................................................................... x

PRELIMINARY STATEMENT ......................................................................................... 1

STATEMENT OF FACTS ................................................................................................ 2

SUMMARY OF THE ARGUMENT ................................................................................... 5

ARGUMENT AND AUTHORITIES .................................................................................. 8

I.       The Book is privileged as a fair report of a public trial ................................. 8

         A.       The statutory privilege in § 73.002 applies. ......................................... 9

         B.       Since Appellees are media defendants and the Book addresses
                  a public concern, Appellants have the burden of proof. .................... 12

         C.       The privilege is not self-conferred. .................................................... 14

         D.       The settlement offer does not remove the fair report privilege ......... 17

II.      Literary devices and characterizations do not make the Book
         false, nor do they prevent it from being a fair report .................................... 18




                                                           ii
III.     Appellants do not have a valid claim for “libel as a whole” ........................ 23

         A.       This is not a proper “libel as a whole” claim. .................................... 24

         B.       Libel as a whole is based on verifiable facts
                  not testimonials................................................................................... 26

         C.       Appellants ignore context................................................................... 26

IV.      The defamatory “gists” and constituent statements are substantially
         true, privileged, or not reasonably capable of the defamatory
         meaning Appellants attribute to them........................................................... 30

         A.       “Domestic Violence Gist”. ................................................................. 31

         B.       “Perjury and Dishonesty Gist” ........................................................... 39

         C.       “Drug and Alcohol Gist”.. .................................................................. 45

         D.       “Parental Neglect Gist”. ..................................................................... 49

         E.       “Child Abuse Gist”. ............................................................................ 55

V.       Appellants other claims are waived. ............................................................. 64

CONCLUSION ............................................................................................................ 65

CERTIFICATE OF COMPLIANCE ................................................................................. 66

CERTIFICATE OF SERVICE ......................................................................................... 67




                                                           iii
                                             INDEX OF AUTHORITIES

Cases
Alpert v. Crain, Caton & James, P.C.,
   178 S.W.3d 398 (Tex.App.—Houston [1st Dist.] 2005, pet. denied).......................... 17

Bantam Books, Inc. v. Sullivan,
   372 U.S. 58 (1963) ....................................................................................................... 10

Bentley v. Bunton,
   94 S.W.3d 561 (Tex. 2002) .......................................................................................... 26

Bob v. Cypresswood Community Ass’n,
   _____ S.W.3d _____, 2015 WL 3423753
   (Tex.App.—Houston [1st Dist.] 2015, no pet.) ........................................................... 65

Brewer v. Capital Cities/ABC, Inc.,
   986 S.W.2d 636 (Tex.App.—Fort Worth 1998, no pet.) ............................................. 50

Cantey Hanger, LLP v. Byrd,
  2015 WL 3976267 (Tex. 2015) ................................................................................... 17

City of Keller v. Wilson,
   168 S.W.3d 802 (Tex. 2005) ........................................................................................ 27

Computer Aid, Inc. v. Hewlett-Packard Co.,
  56 F.Supp. 2d 526 (E.D. Pa. 1999) .............................................................................. 15

Cox Broadcasting Corp. v. Cohn,
  420 U.S. 469 (1975) ..................................................................................................... 12

Craig v. Harney,
   331 U.S. 367, 374 (1947) ............................................................................................. 12

Crites v. Mullins,
   697 S.W.2d 715 (Tex.App.—Corpus Christi 1985, writ ref’d n.r.e.) ...................... 9, 19

Crumrine v. Harte-Hanks Television, Inc.,
   37 S.W.3d 124 (Tex.App.—San Antonio 2001, pet. denied) ...................................... 12

Double Diamond, Inc. v. Van Tyne,
  109 S.W.3d 848 (Tex.App.—Dallas 2003, no pet.)..................................................... 24

                                                              iv
Doubleday & Co., Inc. v. Rogers,
  674 S.W.2d 751 (Tex. 1984) ........................................................................................ 10

Escobar v. Harris County,
   442 S.W.3d 621 (Tex.App.—Houston [1st Dist.] 2014, no pet.) ................................ 65

Falk & Mayfield, L.L.P. v. Molzan,
   974 S.W.2d 821 (Tex.App.-Houston [14th Dist.] 1998, pet. denied) .................... 50, 56

Freedom Communications, Inc. v. Sotelo,
   2006 WL 1644602 (Tex.App.—Eastland 2006, no pet.) ............................................... 9

Goss v. Houston Community Newspapers,
  252 S.W.3d 652 (Tex.App.—Houston [14th Dist.] 2008, no pet.) ...................... 8, 9, 20

Granada Biosciences, Inc. v. Forbes, Inc.,
   49 S.W.3d 610 (Tex.App.—Houston [14th Dist.] 2001)
   rev’d on other grounds, 124 S.W.3d 167 (Tex. 2003)................................................... 9

Harvest House Publishers v. Local Church,
  190 S.W.3d 204 (Tex.App.—Houston [1st Dist.] 2006, pet. denied),
  cert. denied, 127 S.Ct. 2987 (2007) ............................................................................. 11

Howell v. Hecht,
  821 S.W.2d 627 (Tex.App.—Dallas 1991, writ denied) ............................................... 8

Huff v. Hirsch,
   2010 WL 3294232 (Tex.App.—Houston [1st Dist.] 2010, no pet.) ............................ 17

Hurlbut v. Gulf Atl. Life Ins. Co.,
  749 S.W.2d 762 (Tex. 1987) ........................................................................................ 13

In re J.A.J.,
    225 S.W.3d 621 (Tex.App.—Houston [14th Dist.] 2006),
    aff’d and rev’d in part on other grounds, 243 S.W.3d 611 (Tex. 2007) ..................... 38

Jacobs v. Satterwhite,
   65 S.W.3d 653 (Tex. 2001) .......................................................................................... 65

Kaufman v. Islamic Soc’y of Arlington,
  291 S.W.3d 130 (Tex.App.—Fort Worth 2009, pet. denied) ........................................ 9


                                                            v
Klentzman v. Brady,
   456 S.W.3d 239 (Tex.App.—Houston [1st Dist.] 2014, pet. filed) ............................. 13

Langston v. Eagle Printing Co.,
   797 S.W.2d 66 (Tex.App.—Waco 1990, no writ) ......................................................... 9

Liles v. Finstad,
    1995 WL 457260 (Tex.App.—Houston [1st Dist.] 1995, writ denied) ....................... 11

Louis v. Mobil Chem. Co.,
   254 S.W.3d 602, 610-11 (Tex.App.—Beaumont, pet. denied) ................................... 63

Main v. Royall,
  348 S.W.3d 381 (Tex.App.—Dallas 2011, no pet.)................................................. 1, 10

Masson v. New Yorker Magazine, Inc.,
  501 U.S. 496 (1991) ..................................................................................................... 10

Maxwell v. Henry,
  815 F.Supp. 213 (S.D. Tex. 1993) ................................................................................. 9

Metzger v. Sebek,
  892 S.W.2d 20 (Tex.App.—Houston [1st Dist.] 1994, writ denied) ........................... 18

Mitchell v. Chapman,
   10 S.W.3d 810 (Tex.App.—Dallas 2000, pet. denied),
   cert. denied, 531 U.S. 1152 (2001) .............................................................................. 18

Morris v. Blanchette,
  181 S.W.3d 422 (Tex.App.—Waco 2005, no pet.) ..................................................... 26

Neely v. Wilson,
   418 S.W.3d 52 (Tex. 2013) .............................................................................. 13, 21, 31

New Times, Inc. v. Isaacks,
  46 S.W.3d 144 (Tex. 2004) .................................................................................... 24, 26

Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
  416 S.W.3d 71 (Tex.App.—Houston [1st Dist.] 2013, pet. denied)...................... 22, 50

Pardo v. Simmons,
   148 S.W.3d 181, 192-3 (Tex.App.—Waco 2004, no pet) ........................................... 63


                                                             vi
Philadelphia Newspapers, Inc. v. Hepps,
   475 U.S. 767 (1986) ..................................................................................................... 13

Raymer v. Doubleday & Co., Inc.,
   615 F.2d 241 (5th Cir. 1980) ....................................................................................... 21

Reagan Nat’l Advertising v. Hazen,
   2008 WL 2938823 (Tex.App.—Austin 2008, no pet.) ................................................ 17

Rehak Creative Services, Inc. v. Witt,
   404 S.W.3d 716 (Tex.App.—Houston [14th Dist.] 2013, pet. denied) ........... 27, 49, 50

Republic Tobacco Company v. North Atlantic Trading Company,
   381 F.3d 717 (7th Cir. 2004) ....................................................................................... 14

Rosenberg v. Helsinki,
   616 A2d 866 (Md. 1992), cert. denied, 509 U.S. 924 (1993) ...................................... 14

Sacks v. Zimmerman,
   401 S.W.3d 336 (Tex.App.—Houston [14th Dist.] 2013, pet. denied) ....................... 17

Schade v. Rhodes,
   2004 WL 1355094 (Tex.App.—Houston [1st Dist.] 2004, no pet.) ............................ 18

Striedel v. Striedel,
    15 S.W.3d 163 (Tex.App.—Corpus Christi 2000, no pet.) ......................................... 18

Swank v. Sverdlin,
  121 S.W.3d 785 (Tex.App.—Houston [1st Dist.] 2003, pet. denied),
  cert denied, 544 U.S. 1033 (2005) ............................................................................... 65

Texas Monthly, Inc. v. TransAmerican Nat’l Gas Corp.,
   7 S.W.3d 801 (Tex.App.—Houston [1st Dist.] 1999, no pet.) ........................ 19, 20, 34

Traweek v. Radio Brady, Inc.,
   441 S.W.2d 240 (Tex.App.—Austin 1969, writ ref’d n.r.e.) ......................................... 9

Turner v. KTRK Television, Inc.,
   38 S.W.3d 103 (Tex. 2000) ........................................................................ 24, 25, 26, 43

Vecchio v. Jones,
   2013 WL 3467195 (Tex.App.—Houston [1st Dist.] 2013, no pet.) ............................ 49


                                                             vii
Vice v. Kasprzak,
   318 S.W.3d 1 (Tex.App.—Houston [1st Dist.] 2009, pet. denied).............................. 50

Waring v. William Morrow & Co.,
  821 F.Supp. 1188 (S.D. Tex. 1993) ............................................................................. 21


Wavell v. Caller-Times Publishing Co.,
  809 S.W.2d 633 (Tex.App.—Corpus Christi 1991, writ denied) ................................ 12


Statutes
TEX. CIV. PRAC. & REM. CODE § 22.021(3) ...................................................................... 10

TEX. CIV. PRAC. & REM. CODE § 27.001(7) ...................................................................... 13

TEX. CIV. PRAC. & REM. CODE § 73.002.................................................................... passim

TEX. FAMILY CODE § 151.001(a)(2).................................................................................. 38

TEX. PENAL CODE § 9.61(a) .............................................................................................. 38


Other Authorities
R. Sack, On Defamation § 7:3.5 (4th Ed. 2012).................................................................. 8

RESTATEMENT 2D TORTS § 611 ........................................................................................... 8

TEX. ATT’Y GEN. OP. GA-374 (2005) ............................................................................... 38


Rules
TEX. R. APP. P. 38.1(f), (i) ................................................................................................. 65


Constitutional Provisions
Article I § 8 of the Texas Constitution ................................................................................ 9

United States Constitution, Am. 1 ....................................................................................... 9




                                                              viii
                            STATEMENT OF THE CASE

Nature of the Case:       Claims for libel and related non-libel claims (invasion of
                          privacy, infliction of emotional distress, theft and
                          conversion, aiding and abetting, ratification, and
                          injunction) all arising from publication of the book
                          Monster in River Oaks. 1 CR 213.

Trial Court:              333rd District Court of Harris County
                          Hon. Joseph J. “Tad” Halbach presiding

Course of proceedings:    Defendants filed a Traditional and No-Evidence Motion
                          for Summary Judgment. 2 CR 511. Plaintiffs filed a
                          Motion for Partial Summary Judgment. 3 CR 3211.

Trial Court Disposition: On February 9, 2015, the trial court granted the
                         Defendants’ Motion for Summary Judgment on all
                         claims, and denied Plaintiffs’ motion. 4 CR 3780.

                   STATEMENT REGARDING ORAL ARGUMENT

      Appellees request oral argument. While this case was resolved on summary

judgment, the record is lengthy. The book at issue, Monster in River Oaks, is an

account of a 2008 civil trial (the “Shah Trial”). The record includes a complete

copy of the entire book as Joint Exhibit 1, 2d Supp. CR Vol. I, pp. 4-317, and a

complete copy of the 12 Volume Reporter’s Record of the Shah Trial as Joint

Exhibit 2. 2d Supp. CR Vol. I p. 318- Vol. V p. 2580. Not surprisingly, the parties

have sharply divergent views about the record, and there are missing pages in the

clerk’s record that the parties have cooperated in trying to fix. The decisional

process of the Court would be aided by oral argument, to clarify any questions

regarding the facts, the record or the proceedings below.
                                         ix
                               ISSUES PRESENTED

1.   Is the book privileged as a fair report of the Shah Trial?

2.   Was summary judgment on the libel claims properly granted on other
     grounds?

     A.    Are the statements substantially true?

     B.    Are the statements objectively verifiable?

     C.    Do the statements convey a defamatory meaning to the reasonable
           reader?

3.   Are the non-libel claims waived by Appellants’ failure to brief?




                                         x
                                 PRELIMINARY STATEMENT

         Appellees’ central contention in this appeal is that the Book is privileged as

a fair report of the Shah Trial. To demonstrate the point, Exhibit A to the Motion

for Summary Judgment was a 70 page document listing 91 statements Appellants

claimed were defamatory, divided into nine topics or “gists.”1 Following this,

Exhibit B was a chart prepared by Appellees showing the Shah Trial references

that supported each challenged statement.2 Following the chart, grouped in tabs

labeled B-1 through B-88, Appellees assembled the Book pages containing each

challenged statement, together with record references from which the Book

passage was derived.3

         The trial court had the tedious task of sorting through 91 challenged

statements and hundreds of pages of testimony in support. This was a deliberate

tactic, and one that Appellants have employed before.           In another libel case

brought by another Blaffer descendant against a different author, using the same

trial lawyer, the Dallas Court of Appeals sorted through hundreds of pages

challenging 83 statements in the book.           Main v. Royall, 348 S.W.3d 381

(Tex.App.—Dallas 2011, no pet.). That plaintiff’s failure to present a clear and

concise statement of the alleged defamation did not deter the Dallas Court of

1
    CR Vol. 2 pp. 636-707.
2
    CR Vol. 2 pp. 708-724.
3
    CR Vol. 2 pp. 725 - 3 CR 2581.
                                            1
Appeals from rendering a defense judgment. The same tactics should not deter this

Court here.

         In addition to the fact that the list of challenged statements is overlong and

repetitive, Appellants have misleadingly edited many passages to completely

distort their context. For illustration, quotations from the Book will use bold font

to indicate how Appellants edited the passage, and underlining to highlight the

context alerting the reader that the passage is trial testimony.        For example,

Appellants present Statement 14 as follows: “the children suffered from neglect

and physical abuse.”4 For context, this Brief quotes the Book as follows:

         Dinny’s further testimony painted an increasingly bleak picture. . . .
         Joan, he claimed, was battling alcoholism, and the children suffered
         from neglect and physical abuse. According to Dinny, there wasn’t
         even food in the house . . .5

    Bold font shows the redacted fragment that Appellants challenged as defamatory.

    Underlining shows that the reader is alerted that this characterization comes from

    trial testimony.

                                 STATEMENT OF FACTS

         This is a libel case. Defendant Michael Phillips (“Phillips”) wrote Monster

in River Oaks (the “Book”). Plaintiffs are Joan Blaffer Johnson and her three




4
    CR Vol. 2 p. 650.
5
    2d Supp. CR Vol. I p. 80.
                                            2
children: Wirt, Seth and Kaleta. Joan is a granddaughter and heiress of R. L.

Blaffer, a founder of Exxon.

         The Book describes how the Plaintiffs were victimized by a con man named

Dinny Shah. From 1997 to 2002, Shah befriended the Plaintiffs, moved into their

home, misappropriated their property, and verbally and physically abused them.

The trauma ended when Shah was arrested in 2002.

         The Johnsons sued Shah for assault and infliction of emotional distress. Seth

and Kaleta Johnson v. Dinesh Shah, No. 2006-38382, 295th District Court (Hon.

Tracy Christopher) (the “Shah Trial”). The Appellants’ 30 page petition recounted

Shah’s abuse in vivid detail.6          All four Appellants testified about their

victimization by Shah. No part of the Shah Trial record was sealed.

         Shah attempted (unsuccessfully) to deflect criticism by denying the charges

and blaming others. The jury didn’t buy it. The Book includes the author’s harsh

judgment that Shah was a child abuser, a thief, and a perjurer. The jury returned a

$20 million verdict for the Johnsons.

         Defendant Phillips was Shah’s lawyer in the Shah Trial. Phillips wrote the

Book based upon testimony and exhibits from the trial record. Large portions of

the Book are verbatim excerpts from the transcript. Sixteen trial exhibits are

reproduced in the Book’s Appendix.


6
    CR Vol. 4 pp. 3709 – 41.
                                           3
          Appellants’ Brief states—incorrectly—that Shah took original Johnson

family documents, gave the documents to Phillips, and that Phillips used the stolen

documents to write the Book. Appellants’ Brief at 5-6. This is not true. While

Shah lived with the Johnsons, he organized documents and financial records, and

moved boxes of records to a storage unit rented in his name.7 In the discovery

phase of the Shah Trial, Shah delivered original records from his storage unit to a

copy service. The copy service made copies, delivered the copies to Phillips for

discovery, and returned the originals to Shah. Both Phillips and the copy service

provided uncontroverted affidavits to this effect.8 Phillips never had a key to the

storage unit and has never been to the storage unit.9 Phillips paid for his own copy

of the transcript and reviewed 3,000 pages of exhibits as source material for the

Book.10

          In post-trial proceedings, Appellants moved to appoint a receiver, claiming

that Shah had transferred their documents to a different storage unit maintained by

his parents.11 Joan supplied an affidavit stating that her family’s records had been

taken to a storage unit rented by Shah’s father.12 The receiver was appointed, and


7
    CR Vol. 4 p. 3712 ¶ 13; 2d. Supp. CR Vol. III pp. 1361-62.
8
    CR Vol. 3 p. 3067-68 ¶¶ 22-23, 3072-75.
9
    CR Vol. 3 p. 3068 ¶ 23.
10
     CR Vol. 3 p. 3061 ¶ 6.
11
     CR Vol. 4 p. 3748.
12
     CR Vol. 4 p. 3757.
                                                 4
by July 2012, the Johnsons’ lawyer acknowledged that the original records were in

the storage unit maintained by Shah’s parents.13 For over three years the Johnsons

have known that their records were held by the Shah family, not by Phillips.

          Appellants’ Brief also states—again incorrectly—that Phillips “attempted to

extort $250,000 from the Johnson family.” Appellants’ Brief at 3. The “extortion

demand” was a pretrial settlement offer dated May 9, 2008.14 It was one of a series

of settlement offers traded back and forth between the parties. Before the May 9

letter, Shah offered to pay $750,000 in settlement.15       Three weeks later, Shah

offered up to $450,000 if allowed to pay over time.16 Throughout this exchange,

Shah maintained that the Johnsons had some of his personal property, including

artwork, which was why Shah claimed compensation.17 All of the settlement

negotiations involved returning property whose ownership was disputed.

                                SUMMARY OF THE ARGUMENT

          Summary judgment was proper on four grounds: (1) the Book is protected

by the fair report privilege, (2) many challenged statements are substantially true,

(3) many statements are not objectively verifiable, and (4) other statements do not

convey a defamatory meaning to a reasonable reader.

13
     CR Vol. 4 p. 3769.
14
     CR Vol. 4 p. 3428.
15
     CR Vol. 4 p. 3706 ¶ 5.
16
     CR Vol. 4 p. 3743.
17
     CR Vol. 4 p. 3744 ¶ 3; CR Vol. 4, p. 3429 ¶ 3.
                                                  5
      The Book is privileged as a fair report of a public trial. The fair report

privilege has 3 sources: constitutional law, common law, and statute. TEX. CIV.

PRAC. & REM. CODE § 73.002. Book authors are media defendants with standing to

assert the statutory privilege in § 73.002. Any speaker can claim the common law

and constitutional privileges.

      The privilege is not self-conferred. Phillips did not initiate the Shah trial;

those proceedings were filed by the Johnsons themselves. Most of the challenged

statements came from the Appellants’ own witnesses. All four Appellants testified

about their physical and mental abuse. Appellants also called police officers and

medical experts who described the abuse, and criticized Joan for not protecting her

children.

      Both the fair report privilege and the substantial truth defense assess the

challenged statements by their impact on a reasonable reader. Statements may not

be taken out of context by isolating sentence fragments. A reasonable reader

understands that Appellants were victims of a crime, not perpetrators of crimes. A

reasonable reader also readily understands that testimony in the Shah Trial was

often sharply conflicting. In the credibility war, the Book portrays Appellants as

credible and honest. It is Shah who is portrayed as an abuser and liar.

      Book authors and publishers are members of the print media, and the trial

court correctly found that Appellees were media defendants. Trials are public

                                         6
events, and issues regarding law enforcement, crimes and child endangerment are

all of legitimate public concern. Since the case involves claims against a media

defendant on matters of public concern, Appellants had the burden of proving

falsity. Appellees negated both falsity and actual malice by pointing to the many

public record sources for the Book, and including much of the trial record to give

the Book context.

      While Appellees do not concede that the Book is embellished, both the fair

report privilege and the substantial truth doctrine allow “breathing room” for an

author to characterize events and use literary devices to convey impressions or

descriptions to the reader. Those characterizations and descriptions do not prevent

the Book from being a fair report, nor do they make the Book false.

      Appellants’ claims below included nine different “defamatory gists” and

constituent sub-statements in their libel claim. Appellants’ claims also included

non-libel claims: infliction of emotional distress, conspiracy, conversion and theft,

aiding and abetting, and injunction. By this appeal, Appellants only briefed five of

the nine “defamatory gists” raised below. Appellants briefed none of the non-libel

claims. All claims not briefed are waived.




                                         7
                             ARGUMENT AND AUTHORITIES

I.       The Book is privileged as a fair report of a public trial.

         Texas law protects statements that are (1) fair, true and impartial accounts of

judicial proceedings, and (2) other matters of public concern published for general

information. TEX. CIV. PRAC. & REM. CODE § 73.002. Since the entire Book is

taken from testimony and exhibits in the Shah Trial, the privilege applies to the

entire Book.

         The motion below emphasized 3 grounds for the fair report privilege:

statutory, common law and constitutional law.18 The fair report privilege was

recognized at common law as an exception to the republication rule. R. Sack, On

Defamation § 7:3.5 (4th Ed. 2012); RESTATEMENT 2D TORTS § 611. Texas law

recognizes the common law fair report privilege. Howell v. Hecht, 821 S.W.2d

627, 632 (Tex.App.—Dallas 1991, writ denied); Goss v. Houston Community

Newspapers, 252 S.W.3d 652, 655 (Tex.App.—Houston [14th Dist.] 2008, no

pet.).      The privilege applies even if the underlying charges are untrue or

defamatory. Id.; Freedom Communications, Inc. v. Sotelo, 2006 WL 1644602 * 3

(Tex.App.—Eastland 2006, no pet.).           “In other words, the accuracy of the

publication is determined not by comparing it to the actual facts but to the law




18
     CR Vol. 2 p. 535-37.
                                            8
enforcement statement upon which the publication is based.” Goss, 252 S.W.3d

at 655.

       The privilege also has constitutional grounds, under the First Amendment to

the United States Constitution and Article I § 8 of the Texas Constitution. Where a

news article is a substantially true account of court proceedings, “the First

Amendment precludes attaching any liability to their publication.” Langston v.

Eagle Printing Co., 797 S.W.2d 66, 70 (Tex.App.—Waco 1990, no writ). See also

Granada Biosciences, Inc. v. Forbes, Inc., 49 S.W.3d 610, 619 (Tex.App.—

Houston [14th Dist.] 2001) rev’d on other grounds, 124 S.W.3d 167 (Tex. 2003).

       Appellants’ Brief does not challenge the constitutional fair report privilege.

       A.    The statutory privilege in § 73.002 applies.

       Appellants argued that § 73.002 is inapplicable because it only provides a

privilege for “a newspaper or other periodical.” To apply the privilege to one form

of print media and not another would be nonsensical. The statutory privilege has

been applied in Texas to all forms of print and broadcast media, including radio

broadcasts, Traweek v. Radio Brady, Inc., 441 S.W.2d 240 (Tex.App.—Austin

1969, writ ref’d n.r.e.), television broadcasts; Maxwell v. Henry, 815 F.Supp. 213

(S.D. Tex. 1993), news articles accessible by telephone; Crites v. Mullins, 697

S.W.2d 715 (Tex.App.—Corpus Christi 1985, writ ref’d n.r.e.), and internet

articles.   Kaufman v. Islamic Soc’y of Arlington, 291 S.W.3d 130, 138-43

                                          9
(Tex.App.—Fort Worth 2009, pet. denied). The question isn’t whether the Book is

“a newspaper or other periodical.” The question is whether the term “print media”

includes publishers and authors of traditional books.

      Appellants argue that § 73.002 is inapplicable because Phillips is a lawyer,

not a professional journalist, and the Book was self-published. Appellants’ counsel

made the same argument for another Blaffer descendant—and lost it—in Main v.

Royall, 348 S.W.3d 381 (Tex.App.—Dallas 2011, no pet.). The Royall Court held

that “authors and publishers of traditional books” are “members of the electronic or

print media.” Id. at 387. To distinguish between books and other media “would

cause an inconsistent application of the statute and lead to an absurd result.” Id.;

Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991) (First

Amendment applies to libel action against a book author and publisher); Bantam

Books, Inc. v. Sullivan, 372 U.S. 58, 64 n. 6 (1963) (free press protection

“embraces the circulation of books, as well as their publication”); Doubleday &

Co., Inc. v. Rogers, 674 S.W.2d 751, 754 (Tex. 1984) (applying First Amendment

to appeal of defamation action by book author).

      The Civil Practices & Remedies Code defines “news medium” to

specifically include a “book publisher,” or any other entity disseminating

information to the public in printed form.        TEX. CIV. PRAC. & REM. CODE

§ 22.021(3) (conferring a qualified privilege to protect sources). Other Texas

                                         10
courts have indicated that the statutory privilege in § 73.002 is available to book

publishers and authors. Liles v. Finstad, 1995 WL 457260 * 5-6 (Tex.App.—

Houston [1st Dist.] 1995, writ denied) (not designated for publication) (assuming

without holding that § 73.002 applied to book publishers). See also, Harvest

House Publishers v. Local Church, 190 S.W.3d 204 (Tex.App.—Houston [1st

Dist.] 2006, pet. denied), cert. denied, 127 S.Ct. 2987 (2007) (book publisher and

author were members of “print media”).

          This record shows that Phillips’ Book was traditionally published and edited,

distributed to bookstores, and sold to the general public. The Book was edited and

printed by a traditional book publisher—Brown Books Publishing Group—but was

published by Spindle Top because Brown Books wanted to issue the manuscript as

a screenplay.19 Phillips paid a professional firm to edit the text, then had the

manuscript vetted by two law firms and reviewed by English faculty from

Southern Methodist University.20 The Book was sold by 2 national sellers—

Barnes & Noble and Borders. It was distributed on Amazon and Kindle, and

marketed at Brazos Bookstore, River Oaks Bookstore, and Murder by the Book.21

Phillips hosted traditional book signings at stores and other locations.22 The Book


19
     CR Vol. 3 p. 3062-3.
20
     CR Vol. 3 p. 3061 ¶ 6, 3062 ¶ 8.
21
     CR Vol. 3 p. 3065.
22
     CR Vol. 3 p. 3066 ¶ 18.
                                            11
made Amazon’s Top 100 Best Sellers for 57 straight weeks, at one point reaching

number 3 in the True Crime category.23

          This is not a mere internet blog or web post. This is a traditional book that

was professionally edited, marketed and distributed. The author and publisher are

clearly members of the print media.

          B.     Since Appellees are media defendants and the Book addresses a
                 public concern, Appellants have the burden of proof.

          Accounts of public trials are matters of public concern. “A trial is a public

event. What transpires in the courtroom is public property.” Craig v. Harney, 331

U.S. 367, 374 (1947). Issues of crime and law enforcement are also matters of

public concern. “The commission of crime, prosecutions resulting from it, and

judicial proceedings arising from the prosecutions, however, are without question

events of legitimate concern to the public . . .” Cox Broadcasting Corp. v. Cohn,

420 U.S. 469, 492 (1975).

          In particular, issues of child safety and child endangerment are issues of

legitimate public concern as a matter of law. Crumrine v. Harte-Hanks Television,

Inc., 37 S.W.3d 124 (Tex.App.—San Antonio 2001, pet. denied). Facts revealed in

open court are public record even if they are “seamy, sordid and violent.” Wavell

v. Caller-Times Publishing Co., 809 S.W.2d 633, 636 (Tex.App.—Corpus Christi

1991, writ denied) (reports based on criminal prosecution and paternity action

23
     Id. ¶ 17.
                                            12
arising from attorney’s assault by former lover was a public concern). See also

TEX. CIV. PRAC. & REM. CODE § 27.001(7) (Texas Citizens Participation Act),

defining a “matter of public concern” to include any issue related to health, safety,

or community well-being.

      This case thus constitutes a libel claim against a media defendant over a

matter of public concern. This shifts the burden to Appellants to prove falsity.

“The United States Supreme Court and this Court long ago shifted the burden of

proving the truth defense to require the Plaintiff to prove that the defamatory

statements were false when the statements were made by a media defendant over a

public concern.” Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013). “To ensure that

true speech on matters of public concern is not deterred, we hold that the common-

law presumption that defamatory speech is false cannot stand when a plaintiff

seeks damages against a media defendant for speech of public concern.”

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986).

      Appellants also have the burden to prove malice to overcome the fair report

privilege. Klentzman v. Brady, 456 S.W.3d 239 (Tex.App.—Houston [1st Dist.]

2014, pet. filed); Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762 (Tex. 1987).




                                         13
      C.     The privilege is not self-conferred.

      Appellants cite a number of cases from other jurisdictions for the proposition

that the fair report privilege may not be “self-conferred” by Phillips simply

reporting his own statements. Appellants’ Brief at 14-16.

      This privilege is not self-conferred, and the cited cases have nothing to do

with the present facts. For example, in Republic Tobacco Company v. North

Atlantic Trading Company, 381 F.3d 717, 732 (7th Cir. 2004), one tobacco

company filed an antitrust suit against a competitor, then sent a letter describing

the antitrust claims to customers of the competitor. The letter was not privileged

for two reasons: first, the company had filed the antitrust complaint and thus

created the very lawsuit it was “reporting” on, and second, the letter was sent to the

competitor’s customers to undercut their business, not to the public at large.

Phillips did not file the lawsuit in the Shah trial, and the Book was sold to the

public at large.

      Jurisdictions that have embraced the “self-confer” exception—and Texas is

not one of them—have held that the privilege is lost “only if the defamer

illegitimately fabricated or orchestrated events so as to appear in the privileged

forum in the first place. That is the true danger against which the self-reported

statements exception must guard.” Rosenberg v. Helsinki, 616 A2d 866, 876 (Md.

1992), cert. denied, 509 U.S. 924 (1993). (emphasis added). See also Computer

                                         14
Aid, Inc. v. Hewlett-Packard Co., 56 F.Supp. 2d 526, 534 (E.D. Pa. 1999)

(privilege can be lost if the defendant maliciously institutes a judicial proceeding to

raise false and defamatory charges).

         The “self-confer” exception, even if adopted in Texas, would not apply for

three reasons. First, Phillips did not initiate the Shah Trial. The Johnsons filed suit

themselves. And the Johnsons did not simply file a notice pleading; the 30 page

petition describes Appellants’ own abuse in lurid detail.24         No one kept the

children’s names anonymous. There was no motion to seal the Shah Trial record.

         Second, as defense counsel, Phillips cannot be charged with “illegitimately

fabricating or maliciously orchestrating events.”            Conducting discovery,

exchanging settlement offers and examining witnesses are legitimate acts in

discharge of a lawyer’s duties and are protected by attorney qualified immunity.

See discussion infra at 17-18.

         Third, and most significantly, the privilege isn’t self-conferred because

Phillips isn’t quoting himself. Almost all of the challenged statements come from

the Johnsons’ own witnesses:




24
     CR Vol. 4 p. 3709 – 3741.
                                          15
 Plaintiffs’ Witness                  Description                    Reference
 Joan Johnson             Joan admits kicking her children.2d Supp. CR Vol. V
                                                           p. 2263-65
 Joan Johnson             Joan admits striking Seth in the CR Vol. 3 p. 3162
                          face.
 Kaleta Johnson           Wrote memo to Mom: no 2d Supp. CR Vol. V
                          screaming, violence or kicking.  p. 2119:10
 Wirt Blaffer             Stabbing photo of his mother.         2d Supp. CR Vol. IV
                                                                p. 1999:13-16
 Kaleta Johnson           Throwing       keychain     at   Seth 2d Supp. CR Vol. IV
                          requiring stitches in the ER.         p. 2044:15-23
 Seth Johnson             Joan whipped Seth once or twice.  2d Supp. CR Vol. V
                                                            p. 2292:25
 Joan Johnson             Joan endured beatings herself and 2d Supp. CR Vol. V
                          witnessed Shah beat her children p. 2235-36
                          “many times.”
 HPD Officer Nguyen       Officer questions why Joan Johnson 2d Supp. CR Vol. II
                          failed to protect her children.    p. 764:6-14
 HPD Sgt.       Kenneth Joan failed to protect her kids.        2d Supp. CR Vol. II
 Bounds                                                         p. 797:6-12
 Dr. Victor Scarano,      Joan was unable to protect her 2d Supp. CR Vol. IV
 Plaintiffs’ expert       children; Stockholm Syndrome.  p. 1875
 Dr. Arthur Farley,       Joan was “a plum to pluck,” very 2d Supp. CR Vol. V
 Plaintiffs’ medical      immature.                        p. 2357:12-18
 Expert
 Dr. Arthur Farley,       Kids were abused “by Mr. Shah and 2d Supp. CR Vol. V
 Plaintiffs’ medical      Mrs. Johnson.”                    p. 2380
 Expert
 Seth Johnson             Seth was sexually abused by Shah.     2d Supp. CR Vol. V
                                                                p 2323, 2333-34

      Many more examples could be cited, but the point is clear. The privilege is

not self-conferred because most challenged statements come from the Johnsons’

witnesses.

                                        16
      D.     The settlement offer does not remove the fair report privilege.

      Appellants assert that the May 9 settlement letter was “extortion” and a

“threat of defamation” suggesting an improper motive, thus invalidating the

privilege. Appellants’ Brief, at 15. This is unfounded hyperbole.

      Under the doctrine of attorney qualified immunity, attorneys cannot be liable

to opposing parties for actions taken in representing their client. Cantey Hanger,

LLP v. Byrd, 2015 WL 3976267 at * 3 (Tex. 2015). Qualified immunity applies

even if the conduct is wrongful. Cantey, at *3; Alpert v. Crain, Caton & James,

P.C., 178 S.W.3d 398, 405 (Tex.App.—Houston [1st Dist.] 2005, pet. denied).

“Fraud is not an exception to attorney immunity;” immunity applies to any acts

undertaken within the lawyer’s duties to his client. Cantey, supra at * 5.

      The Johnson documents were mentioned in settlement offers and were

exchanged in discovery, both of which are within a lawyer’s duties to his client.

Aggressive settlement negotiations are “quintessentially” part of a lawyer’s duties.

Reagan Nat’l Advertising v. Hazen, 2008 WL 2938823 at * 2 (Tex.App.—Austin

2008, no pet.); Huff v. Hirsch, 2010 WL 3294232 at * 3 (Tex.App.—Houston [1st

Dist.] 2010, no pet.). Engaging in discovery is likewise within a lawyer’s duties.

An opposing party has no claim based on a lawyer aggressively seeking or

resisting discovery. Sacks v. Zimmerman, 401 S.W.3d 336, 342 (Tex.App.—




                                         17
Houston [14th Dist.] 2013, pet. denied); Mitchell v. Chapman, 10 S.W.3d 810,

811-12 (Tex.App.—Dallas 2000, pet. denied), cert. denied, 531 U.S. 1152 (2001).

      A reminder that documents produced in discovery could become public at

trial is merely stating the obvious.           Offering documents in evidence is a

fundamental right of a party to litigation. Schade v. Rhodes, 2004 WL 1355094 at

* 3 (Tex.App.—Houston [1st Dist.] 2004, no pet.); Striedel v. Striedel, 15 S.W.3d

163, 166 (Tex.App.—Corpus Christi 2000, no pet.). It is not extortion to argue in

settlement that evidence may be embarrassing. In Metzger v. Sebek, 892 S.W.2d

20, 46 (Tex.App.—Houston [1st Dist.] 1994, writ denied), a father settled a

divorce proceeding on unfavorable terms because his wife threatened to use

evidence of his alleged sexual abuse of a child. This Court held that this was not

“extortion” of a settlement.

      This settlement letter occurred during litigation, arose in the midpoint of

fluctuating counteroffers, and was well within Phillips’ duties to his client.

II.   Literary devices and characterizations do not make the Book false, nor
      do they prevent it from being a fair report.

      Appellants argue that the Book is not protected by the fair report privilege,

because Phillips added embellishments or characterizations that defeat the

privilege. Appellees do not concede that the Book exaggerates the trial, but even if

it did, that would not defeat the privilege.



                                           18
      Even embellished accounts are privileged where the variance is immaterial

to a reasonable reader. “The critical test is the effect on the mind of the reader or

listener; if the effect on the mind of the recipient will be the same, any variance

between the actions charged and the actions proved should be disregarded.” Crites

v. Mullins, 697 S.W.2d 715, 717 (Tex.App.—Corpus Christi, 1985, writ ref’d

n.r.e.). In other words, the test for privilege is like the test for truth. There can be

exaggerations, so long as those differences do not significantly affect the

reasonable reader. “A showing of substantial truth will defeat an allegation of

libel, even where the misconduct charged may be exaggerated, if no more

opprobrium would be attached to appellant’s actions merely because of such

exaggeration.” Id. at 717 (emphasis added).

      A number of Texas cases have applied the fair report privilege to news

accounts of trials, even where the account “greatly exaggerates a libel-plaintiff’s

misconduct,” finding that the differences would not affect a reasonable reader.

Texas Monthly, Inc. v. TransAmerican Nat’l Gas Corp., 7 S.W.3d 801, 805

(Tex.App.—Houston [1st Dist.] 1999, no pet.). Examples of privileged statements

in TransAmerican are informative. The article said the plaintiff had “wiretapped

the phones of employees.” The plaintiff argued that “wiretap” connoted a criminal

intercept, whereas the employer’s recording of workplace conversations was legal.

This Court described “wiretap” as “a literary device to grab the reader’s attention,”

                                          19
Id. at 80, and held it was not sufficiently exaggerated to eliminate the privilege.

Similarly, the article reported that a former employee had “quit as a matter of

conscience” and accused the plaintiff’s CEO of “cooking the books.” The former

employee denied saying that he quit as a matter of conscience, and the plaintiff

argued that this conveyed a sense of revulsion that exaggerated the misconduct of

plaintiff’s managers. The CEO denied using the phrase “cook the books.” This

Court still held the news account privileged, despite the fact that the author’s

characterizations did not flow literally from the trial record.

      To the same effect, a report that the plaintiff had been arrested for drag

racing and possession of controlled substances was held to be a fair and impartial

account of legal proceedings, even though (1) the plaintiff was never charged with

racing, (2) he had a prescription for the alleged controlled substance, and (3) the

controlled substance charge was later dismissed, and his arrest record expunged.

Goss v. Houston Community Newspapers, 252 S.W.3d 652, 655-56 (Tex.App.—

Houston [14th Dist.] 2008, no pet.).

      Just as an author’s original word choice does not negate privilege,

exaggerations or literary devices used “to grab the reader’s attention” do not

establish falsity. Thus, in the book Blood and Money, another Houston-based “true

crime” book about the murders of Dr. John and Joan Hill, Tommy Thompson’s

description of a police officer as “a hard-boiled egg” who was “well

                                          20
accommodated to the fact that he had made but slight scratches on the face of the

earth” were held to be nonactionable characterizations that would be perfectly

understood by a reasonable reader. Raymer v. Doubleday & Co., Inc., 615 F.2d

241, 243 (5th Cir. 1980).       These characterizations were “merely a literary

description of the author’s impression designed to create for the reader an

immediate mental picture of the character.” Id. The author’s speculation, in which

officer Raymer looks at a waitress and imagines, “these old boys swap these girls

back and forth like used cars,” would not be understood by a reasonable reader to

impute sexual misconduct to the plaintiff. Id. at 244. In another Houston-based

true crime novel, the book Sleeping with the Devil was held to be substantially true

despite the author’s characterization of the plaintiff as falling within a class of

“informants, snitches, contacts . . . cultivated in the shadows of the night.” Waring

v. William Morrow & Co., 821 F.Supp. 1188 (S.D. Tex. 1993). The plaintiff

argued that this characterization was not based on any official record, and made

him appear scurrilous and disreputable. The court nonetheless held the book to be

a substantially true account. The plaintiff, in fact, had been a confidential

informant on a plot to murder Houston model Barbara Piotrowski.

      Texas privilege law was not changed by the Supreme Court’s decision in

Neely v. Wilson, 418 S.W.3d 52 (Tex. 2013). A recent decision from this Court,

re-issued on rehearing after Neely, illustrates that authors still have “breathing

                                         21
room” to employ characterizations and descriptions. Newspaper Holdings, Inc. v.

Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71 (Tex.App.—Houston [1st Dist.]

2013, pet. denied). In Crazy Hotel, articles concerning investigations at an assisted

living facility were protected as a fair report, despite the plaintiff’s claims that the

articles were exaggerated. In each case, this Court found that the author’s

embellishments did not defeat the privilege:

           Abuse. The newspaper reported that a nurse had verbally
            abused and threatened a resident when he refused his
            medication. The Court agreed that elder abuse was “a strong
            choice of words,” but concluded that the newspaper “could
            accurately characterize the conduct found by the report as ‘elder
            abuse’.” Id. at 84, 86.

           Eviction Notice. The Hotel complained that the article
            erroneously reported that the facility had served “eviction
            notices” on residents. The Hotel’s letter did not mention
            eviction. Again, the colorful language did not remove the
            privilege: “while Miller and the Hotel object to the use of the
            term ‘eviction notice’ to describe the letter’s effect on residents
            . . . the characterization reasonably describes one possible view
            of the letter’s contents.” Id. at 85.

           Cascading Leaks. The newspaper reported that the facility had
            leaks causing water to “cascade” into the building. The record
            showed minor roof leaks in the dining room. Again, the
            author’s word choice did not eliminate the privilege: “The
            Index’s immoderate—in the Hotel’s view—word choice does
            not present a prima facie case that the descriptions, viewed in
            context, are less than substantially true.” Id. at 85.




                                          22
          Again, Appellees do not concede that the Book mischaracterizes anything

about the Shah Trial. But as these cases indicate, literary devices and word choices

are insufficient to create fact issues on falsity or privilege.

III.      Appellants do not have a valid claim for “libel as a whole.”

          Appellants claim that the entire Book is libelous “as a whole.” They attempt

to construe statements in the prologue, on the dust jacket, or testimonials on the

cover as “admissions” of a defamatory gist, such as the following:

               “Not since Blood and Money have such secrets of passion and
                possession been revealed about the residents of Houston’s
                River Oaks neighborhood . . .”

               “An intriguing story for the student of human weaknesses and
                the reader who relishes insight into the forbidden secrets of the
                fabulously rich.”

               “In some ways, this Book is a love story as well as a monster
                story. A story of a predatory monster that set out to control and
                then dominate a famous Houston family . . . It is a story of love
                offered but not returned. Of love needed but not offered.”25

In these passages, both context and wording leave no doubt that these are

unverifiable opinions. When the Book is read as a whole, rather than in isolated

fragments, the reasonable reader gets the point that the author discredits Shah and

endorses the Plaintiffs’ testimony as more credible. But first and foremost, this

claim does not correctly apply Texas law on libel as a whole.



25
     Appellants’ Brief at 23 – 24.
                                            23
      A.    This is not a proper “libel as a whole” claim.

      The theory of libel as a whole was set forth by the Texas Supreme Court in

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

Supreme Court held that a plaintiff can prevail when discrete facts, literally or

substantially true, are published so as to create a false and defamatory impression,

either by omitting key facts or juxtaposing facts in a misleading way. Id. at 115.

Importantly, the requirement to prove falsity and defamatory meaning “depends on

a reasonable person’s perception of the entirety of the publication and not merely

on individual statements.” Id. (emphasis added).

      This hypothetical reasonable reader “is no dullard. He or she does not

represent the lowest common denominator, but reasonable intelligence and

learning.” New Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex. 2004). Thus,

sharp or biting parody is not defamatory, because the reasonable reader can “get

the joke.” Id. “Opinionated criticism” is not necessarily defamatory. Double

Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 855 (Tex.App.—Dallas 2003, no

pet.). When given the entire context, a reader of reasonable intelligence can tell

the difference between factual charges of defamatory conduct on the one hand, and

literary devices or testimonials used “to grab the reader’s attention” on the other.

TransAmerican, 7 S.W.3d at 807.




                                        24
      The Turner example is illustrative. The Turner broadcast reported that

lawyer Sylvester Turner had his “mutual friend” Dwight Thomas appointed as

administrator of an estate, and only abandoned his “pursuit” of the estate when the

judge removed him for “conflicts of interest.” Id. at 118. One material omitted

fact was that Thomas was appointed executor in the decedent’s will. Without

knowing that Thomas was named as executor, the broadcast suggested that Turner

abused his position by handpicking a friend to handle a valuable estate. Turner’s

“pursuit” involved collecting a life insurance policy, but the broadcast failed to

report that the beneficiary of the policy was the decedent’s father, not Turner or

Thomas. And the only “conflict” leading to Turner’s disqualification was his dual

role as a lawyer and fact witness. A reasonable reader could have the misleading

and the mistaken impression that the “conflict of interest” involved Turner

pursuing his own pecuniary interests to the estate’s detriment.

      By comparison, this “libel as a whole” claim plainly falls short. Turner

considered the entire broadcast; Appellants argue libel as a whole based on heavily

redacted statements taken from the Book cover and prologue, assuming the reader

will ignore the more detailed and explanatory record inside. Turner pointed to

specific omitted facts that made the entire broadcast misleading; these Appellants

cite to characterizations they describe as “salacious and scandalous,” despite the




                                         25
fact that the reasonable reader understands those characterizations are unverifiable

descriptions of conflicting trial testimony.

      B.        Libel as a whole is based on verifiable facts, not testimonials.

      Libel must be based on false statements of fact which are “objectively

verifiable.” Morris v. Blanchette, 181 S.W.3d 422, 424 (Tex.App.—Waco 2005,

no pet.). Texas law “focuses the analysis on the statement’s verifiability and the

entire context in which it was made.” Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex.

2002). The challenged statements on the dust jacket and prologue are clearly

unverifiable.     Whether the story is “intriguing,” whether it concerns “human

weaknesses” or “forbidden secrets” are descriptions that cannot be proven true or

false. The reasonable reader understands that reviews on a dust jacket are the

opinions of the reviewer, design to promote interest and draw a reader’s attention

to the full story within. There is no exhibit, no testimony, no quantum of proof that

can verifiably establish that the Book is “stark,” “powerful,” “tragic,”

“scandalous,” or “epic.”

      C.        Appellants ignore context.

      Again, Turner instructs that defamatory meanings are determined by the

entire statement as a whole, not by isolated statements or “piecemeal excerpts.”

Turner, 38 S.W.3d at 115. Context is important. Id.; Isaacks, 146 S.W.3d at 154-

5. “[P]ublications alleged to be defamatory must be viewed as a whole—including

                                           26
accompanying statements, headlines, pictures, and the general tenor and reputation

of the sources itself.” City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005);

Rehak Creative Services, Inc. v. Witt, 404 S.W.3d 716, 729 (Tex.App.—Houston

[14th Dist.] 2013, pet. denied).

          This is the most glaring and recurrent problem with all of Appellants’

arguments. Portions of testimony, and parts of sentences, are completely removed

from the context in which the reasonable reader sees them.              For example,

Appellants claim that Statement 14 accuses them of child abuse: “the children

suffered from neglect and physical abuse.”26 But the context in which this eight

word fragment appears reads in the Book as follows:

          “Dinny’s further testimony painted an increasingly bleak picture. The
          plumbing, according to his 2008 testimony, was in such disrepair that
          there were no working bathrooms in the house in 1996. The children,
          he said, were bathing in the backyard pool . . . Joan, he claimed, was
          battling alcoholism, and the children suffered from neglect and
          physical abuse. According to Dinny, there wasn’t even food in the
          house for the children to eat—all of this happening in the wealthiest
          neighborhood in Houston.

          The Johnson family, of course, would deny these assertions in the
          2008 civil trial.27

The Johnsons’ rebuttal of Shah’s testimony, including Kaleta’s characterization

that Shah’s claims were “absolutely ridiculous,” immediately follows the passage

quoted above. The reasonable reader is not fooled. The context makes it clear that
26
     CR Vol. 2 p. 650.
27
     2d Supp. CR Vol I p. 80.
                                           27
Phillips is describing conflicting trial testimony—the surrounding paragraph makes

reference to trial testimony 6 times.

          Appellants ignore context in a broader and more meaningful way. The Book

consistently endorses the Johnsons’ testimony as more truthful than that of Shah:

              “Some of Dinny’s more outrageous claims about the Johnson
               children were easily discredited.”28

              “David Gillis, who directly contradicted Dinny for no apparent
               reason other than to tell the truth, exposed Dinny quite publicly
               as a liar.”29

              “Dinny had perjured himself too many times. No one would
               believe him over the young Seth Johnson.”30

              “Anyone who knew Dinny Shah knew exactly what to expect
               from him during the trial: Denial. Rage. Convenient memory
               lapse. Falsehoods. Rabbit trails.”31

              “It is no big secret that Dinny Shah was a habitual liar. . . .
               Over the years, Dinny’s lies would become more and more
               outrageous.”32

When the reasonable reader reads the entire Book, not just the dust jacket, he or

she sees Shah as a “predator,”33 a “manipulator” and “physically violent,”34 a


28
     2d Supp. CR Vol I p. 83.
29
     2d Supp. CR Vol I p. 210.
30
     2d Supp. CR Vol I p. 286.
31
     2d Supp. CR Vol I p. 274.
32
     2d Supp. CR Vol I p. 117.
33
     2d Supp. CR Vol I p. 106.
34
     2d Supp. CR Vol I p. 56.
                                           28
“white collar thug”35 with an “uncanny ability to lie.”36

          By contrast, the Book describes Appellants as more credible, more

impressive, and morally superior:

              “Kaleta would be a powerful witness. . . . To the jury, here
               was a girl who had her head screwed on right. . . . In the eyes
               of a jury, the acid test is the impression by the litigants
               themselves. Kaleta passed the acid test.”37

              “Though eighteen people testified against Dinny, painting him
               as a liar, manipulator, and a fraud, it was the children’s
               emotional testimony—particularly Seth’s—that would prove
               most damning.”38

              “Sgt. Bounds believes that Joan Johnson and the others he has
               spoken to are credible people, and he also believes that these
               other allegations merit follow up investigation.”39

              “Wirt Johnson set out to expose Dinny to be the lying,
               manipulative snake Wirt believed him to be.”40

              “By any criteria, Seth made a very impressive witness.41

              “[R. L. Blaffer] would be enormously proud of his great-
               grandson and great-granddaughter.”42



35
     2d Supp. CR Vol I p. 68.
36
     2d Supp. CR Vol I p. 118.
37
     2d Supp. CR Vol I p. 280.
38
     2d Supp. CR Vol I p. 274.
39
     2d Supp. CR Vol I p. 268.
40
     2d Supp. CR Vol I p. 205.
41
     2d Supp. CR Vol I p. 281.
42
     2d Supp. CR Vol I p. 287.
                                           29
These passages repeatedly hammer home the Book’s essential premise. Shah is a

“monster” whose testimony is “perjured” and who can never be believed. But the

Johnsons are impressive and powerful witnesses, survivors of a horrible ordeal

whose testimony is sympathetic and compelling. When read in context, and as

understood by a reader of reasonable intelligence, this Book does not reach the

level of a Turner claim for libel as a whole.

IV.      The defamatory “gists” and constituent statements are substantially
         true, privileged, or not reasonably capable of the defamatory meaning
         Appellants attribute to them.

         At trial, the Johnsons listed 91 passages claimed to be defamatory, grouped

into nine “defamatory gists.”43              To establish privilege, Phillips’ Motion for

Summary Judgment incorporated a chart linking each challenged statement to

testimony or exhibits from the Shah Trial.44 Following the chart, each passage

from the Book was copied, with trial testimony in support, tabbed as Exhibits B1

to B88.45 Since space limitations make it impossible to brief every statement,

Appellees refer the Court to the chart and attachments to show that all of the

statements are true and privileged.




43
     CR Vol. 2 p. 636.
44
     CR Vol. 2 p. 708-724.
45
     CR Vol. 2 p. 725 – CR Vol. 3 p. 2567.
                                                 30
          A.     “Domestic Violence Gist.”

          The Johnsons listed 19 statements that they claim convey a Domestic

Violence Gist. In most cases, the statements are not reasonably capable of the

defamatory meaning that Appellants attribute to them.            Other statements are

substantially true. But in every case, the statements are privileged as a fair report

of the trial record.

                 (1)    Fair report privilege.

          Statement 1 is taken from page 68 of the book.46 This statement describes

Shah’s testimony that Joan and her children fought frequently. This passage is

clearly “identifiable by the ordinary reader as statements that were made in the

proceeding,” Neely, supra, 418 S.W.3d at 68, since Shah’s testimony is referenced

5 times. Shah did testify that Joan and her daughter fought “50 plus times.” 47 He

described Kaleta as “a very mean spirited little girl at that time,”48 and testified that

Joan and the children often kicked each other.49 Shah testified that the fighting

was “constant” and very physical, not normal childish fighting.50 This account is

immediately followed by Statement 2, describing the incident where Kaleta threw



46
     2d Supp. CR Vol. I p. 87.
47
     2d Supp. CR Vol. III p. 1202:17-24.
48
     2d Supp. CR Vol. III p. 1458:16-20.
49
     2d Supp. CR Vol. III p. 1366:18-19.
50
     2d Supp. CR Vol. III p. 1458:16-20.
                                            31
a keychain at Seth causing a cut over his eye requiring stitches.51 This too is a

direct account of Kaleta’s trial testimony.52

          Statements 3 and 4 reprise Shah’s testimony that Kaleta was “mean

spirited,” had tantrums and had been disciplined at school.53 Shah’s testimony is

accurately described and referenced for the reasonable reader. Shah did describe

Kaleta as mean spirited.54          Shah did testify that Kaleta threw a tantrum at a

bookstore when he wouldn’t buy what she wanted.55 The trial evidence included

records of Kaleta’s school disciplinary problems.56

          Again, the tedious process of linking each statement to the trial record would

make this Brief prohibitively long. But a few examples merit attention. Statement

5, for example, claims that the Book says Kaleta required “anger management

classes.”57 The Book says no such thing. This reference quotes Shah’s plea

bargain, introduced in the trial record as Plaintiff’s Exhibit 2.58 Paragraph 26 of




51
     2d Supp. CR Vol. I p. 87.
52
     2d Supp. CR, Vol. IV p. 2044:15-23.
53
     2d Supp. CR Vol. I p. 86-88, 107.
54
     2d Supp. CR Vol. III p. 1458:16-20.
55
     2d Supp. CR Vol. IV p. 1573-74.
56
     CR Vol. 3 p. 2063-2071.
57
     CR Vol. 2 p. 646.
58
     CR Vol. 3 p. 2607.
                                             32
the plea obligates Shah to “participate in an anger management treatment

program.”59 It is Shah, not Kaleta, who was ordered to anger management class.

          As shown above, Statement 14—“the children suffered from neglect and

physical abuse”—completely ignores the context, which attributes the statement to

Shah’s testimony no less than six times in the surrounding text. Supra, at 27. In

yet another example of distorted context, Appellants challenged Statement 13:

“over the past several years, Child Protective Services had been called out to the

Johnson home to investigate claims of child abuse.”60 Here too, the charge ignores

context:

          Dinny claims that he and Mrs. Johnson then invited the officer inside.
          He also alleges that he was pulled aside and arrested without being
          allowed to tell his side of the story. According to Dinny, Johnson
          pointed an accusatory finger at him, and the Houston police officers
          believed her without any evidence. He described the police officer
          that night as acting out of jealousy over Mrs. Johnson’s expensive
          home, with a hunger to make an arrest for Kaleta’s abuse; over the
          past several years, Child Protective Services had been called out
          to the Johnson home to investigate claims of child abuse.

          Yet as different as Dinny’s and Joan’s stories are, there is one fact that
          all parties agree on: Dinny was booked into the Harris County Central
          Jail on Reisner Street that night, charged with injury to a child.61

The Book alerts the reader five times that the author is describing Shah’s trial

testimony.        Appellants apparently contend that the phrase regarding Child

59
     CR Vol. 2 p. 762 ¶ 26; CR Vol. 3 p. 2611.
60
     CR Vol. 2 p. 650.
61
     2d Supp. CR Vol. I p. 27 (Book p. 8).
                                                 33
Protective Services is not a fair report because it is not immediately followed by

attribution, such as “Shah testified.”              The same argument was rejected in

TransAmerican, where the last sentence in a paragraph was not attributed to the

witness Stone, but attributions such as “Stone said” appeared repeatedly

throughout the adjacent text. TransAmerican, supra, 416 S.W.3d at 810. This

Court recognized that attribution need not be repeated in every sentence to clearly

convey the trial testimony to the reasonable reader:

         Plaintiffs complain that this statement is not attributed to Stone and
         therefore not privileged. We disagree. The paragraph containing the
         statement has seven references to the fact that it was describing
         Stone’s testimony. We believe an ordinary reader would recognize
         that the sentence at issue was clearly referring to Stone’s testimony.
         Therefore, the privilege afforded in section 73.002 applies.

7 S.W.3d at 810. Shah did in fact testify that Child Protective Services had twice

come to the Johnson house.62 Joan testified about a CPS investigator who came to

interview the family,63 and exhibits show she consulted two law firms about CPS

investigations.64

         In each case, these passages accurately summarize the trial record, and are

identifiable to the reasonable reader as a reference to trial testimony.




62
     2d Supp. CR Vol. IV p. 1575-76.
63
     2d Supp. CR Vol. V p. 2197; CR Vol. 3 p. 3124:12-15.
64
     CR Vol. 2 p. 974-80.
                                               34
                 (2)    Not substantially false.

         Other statements describing conflicts in the Johnson home were substantially

true.      For example, Statement 16 includes the Book’s account that Joan

occasionally kicked her children.         This is an accurate of account of Joan’s

testimony:

         Q.      You had kicked Kaleta, true?

         A.      [Joan] I have kicked her, yes.65

Joan then elaborated that she “never kicked the children as hard as I could,” not

sufficiently hard to leave marks, and that she never wore boots or hard shoes:

“You normally wear flip flops or tennis shoes.”66 In a protective order hearing,

Joan again admitted kicking her children:

         Q.      So just for the record, you have kicked both Seth and Kaleta,
                 your son and daughter, Correct?

         A.      [Joan] Yes.67

Joan admitted hitting her son Seth in the face, but claimed the event happened

years before a CPS investigator came to her home.68

         The children’s testimony also admitted that many of the described physical

confrontations were true. As set forth above, Kaleta admits cutting Seth in a fight

65
     2d Supp. CR Vol. V p. 2263:22-3.
66
     2d Supp. CR Vol. V p. 2265:11.
67
     CR Vol. 3 pp. 3127-28.
68
     CR Vol. 3 p. 3162:6-9.
                                             35
causing an emergency room trip to get stitches.69 Seth admitted that his mother

had whipped him “maybe once or twice.”70 Joan described a fight where Wirt

threw Seth to the ground with sufficient force to cause a back injury.71 In an

application to have Wirt admitted to boarding school, Joan wrote of her fear of

Wirt’s violence: “I feel Wirt will kill me in the future if something is not done.”72

         Appellants challenge the Book’s description of the “Things for Mom to

Work On” memo written when Kaleta and Seth were children. The memo was a

trial exhibit:       “Things for Mom to Work On: (1) don’t scream (2) no

violence/kicking.”73 Kaleta admitted writing the memo, but claimed she could not

recall the circumstances.74

         Appellants challenged Statement 9, referring to the passage where Wirt

kicked Joan’s car. Joan corroborated the incident both in a letter and in Wirt’s

application to boarding school.75 Wirt admitted kicking the car, but denied that

there was much damage.76              Statement 10 referred to the passage where Wirt

stabbed a photograph of his mother into the back door of the house.              Joan

69
     2d Supp. CR Vol. IV p. 2044:15-23.
70
     2d Supp. CR Vol. V p. 2292:25.
71
     CR Vol. 3 p. 2850.
72
     CR Vol. 2 p. 1137.
73
     CR Vol. 3 p. 2835.
74
     2d Supp. CR Vol. V p. 2119:1-15.
75
     CR Vol. 3 p. 2848; CR Vol. 2 p. 1129, 1137.
76
     2d Supp. CR Vol. IV p. 1992:10-18.
                                                   36
described the stabbed photograph and said it frightened her.77 Wirt admitted that

he had done it:

          Q.     Do you remember putting a photograph of your mom on the
                 back door with either a screwdriver or a knife stabbed in the
                 middle of it?

          A.     Yes. . . .78

Statement 6 referred to a passage where Kaleta injured Seth’s pet rat. Kaleta

admitted hurting the rat but claimed it was an accident.79 Shah testified that it was

intentional.80

          In sum, Appellants admitted many of the “domestic violence” statements

were true.

                 (3)      The reasonable reader.

          Finally, even though Joan has admitted using corporal punishment on her

children in the past, no reasonable reader would understand the Book as formally

charging Joan with committing the felony of child endangerment. To the contrary,

the Book repeatedly describes Joan’s grief and vulnerability, and sympathetically

explains her actions under adverse circumstances. The reasonable reader knows




77
     CR Vol. 3 p. 2851.
78
     2d Supp. CR Vol. IV p. 1999:13-16.
79
     2d Supp. CR Vol V p. 2116:13-24.
80
     2d Supp. CR Vol. III p. 1457:16-24.
                                             37
that Joan is no felon; rather, and as she admitted, she is simply a woman who

sometimes “loses her cool as a mom.”81

         The Penal Code itself authorizes a parent’s use of force “when and to the

degree the actor reasonably believes the force is necessary to discipline the child.”

TEX. PENAL CODE § 9.61(a). The Family Code likewise recognizes a parent’s right

to administer corporal punishment. TEX. FAMILY CODE § 151.001(a)(2); TEX.

ATT’Y GEN. OP. GA-374 (2005). Even corporal punishment that leaves visible

marks does not necessarily constitute child abuse. In re J.A.J., 225 S.W.3d 621,

631 (Tex.App.—Houston [14th Dist.] 2006), aff’d and rev’d in part on other

grounds, 243 S.W.3d 611 (Tex. 2007). As the Fourteenth Court noted: “At least

90 percent of American parents have used corporal punishment at some time in

rearing their children.” Id. at 629.

         The Trial Court correctly granted summary judgment. These statements are

fair accounts of conflicting trial testimony, and readily identifiable to the

reasonable reader as such. In addition, many of the challenged statements were

admitted by the Johnsons to be substantially true. Finally, in the full context of the

Book, the reasonable reader gets the point that the Johnsons were victims of a

crime, not perpetrators of crimes.




81
     CR Vol. 3 p. 3128:2-4.
                                         38
          B.     “Perjury and Dishonesty Gist.”

          The Johnsons challenge eight passages they claim convey a defamatory gist

of perjury: statements that the children “side-stepped” questions about fights, or

that the defense team “went in circles” trying to question the children, or that Wirt

was “manipulative.”82 These claims mischaracterize the text. The Book never

called the Johnsons liars; to the contrary, the Book repeatedly makes the case that

Shah is the liar: “Dinny had perjured himself too many times. No one would

believe him over the young Seth Johnson.”83 Read in context, these statements are

understood by the reasonable reader to be conflicting accounts of emotional

testimony. It is readily understandable that the abused and the abuser would

recount these events differently.

          The Trial Court properly granted summary judgment for three reasons:

these statements are often not verifiable facts, they are privileged as a fair report,

and the Appellants’ spin completely ignores the context that is readily apparent to a

reasonable reader.

                 (1)    Not objectively verifiable.

          A characterization that a statement “begs credulity,” or that a witness “side-

steps” a question or was “manipulative,” are all opinions rather than objectively

verifiable facts.       An answer may seem like a side-step to one listener, yet a
82
     Statements 21, 22, 25.
83
     2d Supp. CR Vol. I p. 286.
                                             39
reasonable explanation to another. No reasonable reader would interpret these

characterizations as a verifiable accusation of the crime of perjury. For example,

the complete context of the statement describing Wirt as “manipulative”

(Statement 45) reads as follows:

          Perhaps this was a jealous invention of a cunning sixteen year old who
          wanted David and Dinny out of the Johnsons’ lives. Like any
          teenager, Wirt could be manipulative; it also goes without saying
          that he probably resented the men’s new role as disciplinarians in the
          Johnson household.84

This is not an accusation of perjury. Wirt’s manipulation is akin to that of “any

teenager,” and as the Book makes clear, Wirt’s desire to rid the household of Shah

is well-placed and clearly justified.

                 (2)    Fair report.

          It is certainly fair comment to say that the children “side-stepped” questions

about fighting, and that the defense team “went in circles” when they questioned

Seth or Kaleta about the fights. Kaleta’s testimony went in part as follows:

          Q.     [By Mr. Phillips] How have you fought with your mother?

          A.     [Kaleta Johnson] Verbally.

          Q.     And—but you never had any physical contact with her whereby
                 she would, like this exhibit here says, she would kick you?
                 You’ve never—you had that experience, have you?

          A.     I don’t ever remember her kicking me.
          ...

84
     2d Supp. CR Vol. I p. 164-5.
                                            40
         Q.     Did your mother have a habit of kicking you and Seth on
                frequent occasions?

         A.     I’ve answered your question. I don’t remember being kicked
                by her.85

It is at least curious that a child would “not remember” being kicked by her own

mother. Seth’s testimony was likewise evasive. When asked whether Shah had

told Seth to lie to the CPS, or whether in fact Seth had been struck by his mother,

Seth replied in part as follows:

         Q.     I guess I am asking you this: It’s true, is it not, that Mr. Shah
                didn’t tell you a thing? Your mother slapped you, you went to
                school, you told the truth.

         A.     [Seth] That first statement is false.86

The lawyer’s first statement is that Shah did not tell Seth to lie. The second

statement is that Joan struck Seth. Seth’s answer indicates only the first statement

is false. At one point, Seth admitted being “whipped” by his mother once or

twice.87

         Similarly, the Book’s characterization of Wirt as “manipulative” is a fair

report. Several witnesses testified Wirt pressured Joan to buy him a new car, to




85
     2d Supp. CR Vol. V p. 2124:7-25.
86
     2d Supp. CR Vol V p. 2330:14-17.
87
     2d Supp. CR Vol V p. 2292:24-2293:1.
                                            41
refurbish his garage apartment, and to throw large parties for his friends.88 Joan

described Wirt as manipulative in her own words:

          My son, Wirt Johnson, contrary to his own belief, knows precisely
          why he was sent to Rocky Mountain Academy. . . . His attempts to
          manipulate me and the staff of Rocky Mountain Academy and,
          furthermore, to deny knowledge of why he was placed there,
          demonstrates his shrewd nature.89

Likewise, the passage in which Seth shows David Collie Joan’s diary (Statement

26) is corroborated by Mr. Collie’s testimony:

          Q.     Tell me about Seth’s showing you the diary?
          ...
          A.     [Mr. Collie] I was talking to Kaleta. Seth said, “Dave, come
                 here, come here.” I said, “Okay.” I walked into Joan’s
                 bedroom. He said, “Look.” I went. I couldn’t believe it. I
                 went downstairs and showed it [the diary] to Shah.90

Appellants claim this statement accuses Seth of theft. The very passage describes

Seth’s discovery of his mother’s diary as the by-product of “the mischievous

curiosity of the ten year old he was.”91 No sane reader would interpret this passage

as a verifiable accusation of perjury or theft.

          Likewise, the challenged statement concerning “Joan teaching Seth to lie

and steal” (Statement 27) also ignores context. This passage is clearly quoting the



88
     2d Supp. CR Vol III p. 1417:8-13; p. 1420:7-1422:3; CR Vol. 3 p. 2847-51.
89
     CR Vol. 3 p. 2847.
90
     2d Supp. CR Vol. IV p. 1931:21-1932:2.
91
     2d Supp. CR Vol. I p. 170.
                                                42
testimony of David Collie.92 Collie was describing an incident in which Seth took

a Game Boy toy from another student’s backpack. When Joan discovered it, she

instructed Seth to secretly return the Game Boy, but not to confess. Collie testified

that this incident caused him to reconsider his relationship with Joan:

          Q.     The relationship, the romance, cooled at some point after about
                 six months. Is that fair to say?

          A.     [Mr. Collie] I can’t—I remember when it cooled. It cooled
                 when, after the Seth incident with the Game Boy when Joan
                 was teaching Seth to lie and steal.
          …
          Q.     And the reason you decided to cool it was because you thought
                 Joan was setting a bad example with Seth?

          A.     That is correct.93

All of these statements are understood by the reasonable reader to be reports of

conflicting trial testimony, and the reports are accurate.

                 (3)    Mischaracterizations/ignoring context.

          It bears repeating that in these passages, as in many others, context is

critical. Defamatory meaning is determined by looking at the entire statement as a

whole, not piecemeal sections.           Turner, 38 S.W.3d at 115.        All of the

“perjury/dishonesty” statements completely mischaracterize the Book and ignore

the context.



92
     2d Supp. CR Vol. I p. 180.
93
     2d Supp. CR Vol. IV p. 1891:2-13.
                                            43
          For example, the Johnsons claim that the Book charges them with perjury

when it characterizes the claims against Shah as “exaggerated” (Statement 24).

The context makes clear that this passage is describing the defense attorney’s

closing argument:

          Lead counsel for the defense—Michael Phillips—summed it up as
          best he could, given the circumstances. . . . The accusations against
          Dinny were exaggerated, he would argue, in order to deflect jury
          attention from Joan’s failure to blow the whistle, to resort to the
          legions of lawyers who looked after her millions, to respond to helpful
          neighbors.94

Every reader knows that a lawyer’s closing argument will try to put the

Defendant’s case in the most favorable light. No one would take this passage as a

literal accusation of perjury.       Especially since the Book, in the two pages

immediately following, reports that the jury rejected the Defendant’s arguments

and returned a $20 million plaintiff’s verdict.

          Similar disregard for context occurs in the passage describing as “suspect”

Joan and Wirt’s testimony about a private investigator named David Gillis

(Statement 23). The question was who had hired Gillis to investigate Wirt. Shah

claimed that Joan hired Gillis; Appellants claimed that Shah did. The complete

passage reads as follows:

          On the stand, David Gillis proved to be a reliable witness, directly
          contradicting everything Dinny said.
          Attorney: Isn’t it true that Shah was a client of yours at some point?

94
     2d Supp. CR Vol. I p. 291.
                                            44
          David Gillis: It is.
          ...
          Gillis affirmed for the Court that it was Dinny—not Joan Johnson—
          who hired Gillis to tail Wirt. . . .
          [Gillis’s] testimony was a valuable victory for the Plaintiffs. Joan
          and Wirt’s testimony concerning the private investigator reports that
          Dinny had ordered had been suspect; they both had a vested
          interest in making themselves look good in front of the jury. But
          David Gillis, who directly contradicted Dinny for no apparent reason
          other than to tell the truth, exposed Dinny quite publicly as a liar.95

Context makes this perfectly clear. It is Shah, not the Johnsons, who perjured

himself.

          C.     “Drug and Alcohol Gists.”

          Appellants challenge five statements (Statements 28 – 32) as false

accusations of drug or alcohol abuse. Again, this mischaracterizes the text and

ignores context, and these passages, like many others, are a fair report of the trial

record.

                 (1)    Ignoring context.

          Appellants challenge Statement 28 as an accusation that Wirt was an

alcoholic. This passage includes a paraphrase that “Wirt’s attention turned to

booze” and that Wirt “continued to drink heavily,” but the context makes clear that

this paraphrase occurred in the middle of Shah’s self-serving testimony.

Immediately preceding these descriptions, the Book alerts the reader four times

that the author is describing Shah’s testimony: “Dinny testified” . . . “Dinny said”

95
     2d Supp. CR Vol. I p. 209-10.
                                            45
. . . “According to Dinny’s testimony” . . . and “Dinny told the court.”96 Where the

two passages in Statement 28 appear on page 78 of the Book, the author again

signals that he is referring to Shah’s testimony: “According to Dinny” . . . and

“Dinny recalled that.”97 Just as the immediate context makes clear that the author

is relying upon disputed testimony, the broader context reiterates time and again

that Shah is a “perjurer” and “habitual liar,” and that the jury ultimately sided with

the Johnsons rather than Shah.

          Appellants likewise ignore context in excising statements that referred to

Joan. Appellants characterize Statement 31 as describing Joan as a “borderline

alcoholic” without noting the complete context:

          After all, Joan was a borderline alcoholic abuser according to
          Dinny, although there is not much direct evidence to support that.98

Statement 30 challenges a passage at page 63 of the Book which quotes testimony,

but includes only the question of Shah’s defense counsel. The Book continues to

include Joan’s immediate denial:

          Attorney: And you’ve also had problems with substance abuse,
          correct?
          Joan: Never. No, that is very incorrect.99



96
     2d Supp. CR Vol. I p. 96.
97
     2d Supp. CR Vol. I p. 97.
98
     2d Supp. CR Vol. I p. 160.
99
     2d Supp. CR Vol. I p. 82.
                                          46
          When these statements are fairly placed in context, the impression conveyed

to the reasonable reader is that Shah’s claims of substance abuse were more

unbelievable fabrications by a habitual liar, attempting (unsuccessfully) to shift

blame from himself.

                 (2)    Fair Report.

          The statements about drugs and alcohol are a fair report of the trial record.

Statement 28 says that Shah testified that Wirt drank heavily, and that is a fair

account of Shah’s testimony: “I know he [Wirt] was drinking a lot.”100 “[Wirt]

continued to drink very heavily.”101 Shah testified that Wirt sent the gardener to

buy a keg of beer for parties with his friends.102 Shah testified about beer cans

littering Wirt’s apartment, and that Wirt was smoking marijuana.103 David Collie

also testified that he warned Joan about Wirt’s excessive drinking:

          A.     [David Collie] [Wirt] had some parties, and at the parties he
                 had alcohol. I told Mrs. Johnson of the liability problem with
                 that, of having alcohol at a party. I told her, “when you and I
                 were growing up you could drink and drive but today that’s not
                 possible.” I don’t mind Wirt having parties. It’s great that he
                 does. But serving alcohol and then kids leaving and having an
                 accident, I said, “Mrs. Johnson or Joan, you could be opening
                 yourself up to a major lawsuit.”104


100
      2d Supp. CR Vol. III p. 1251:20-21.
101
      2d Supp. CR Vol. III p. 1417:10-13.
102
      2d Supp. CR Vol. III p. 1302:7-25.
103
      2d Supp. CR Vol. III p. 1422:2.
104
      2d Supp. CR Vol. IV p. 1913:11-19.
                                            47
Joan noted that Wirt drank beer on his application to boarding school.105 Before he

was sent to boarding school, Wirt was frequently tardy or missed class, which Joan

attributed to his keeping late hours and partying to excess.106

          The Book’s scant references to Joan’s drinking alcohol are also a fair report

of the trial record, especially considering that they are immediately juxtaposed by

Joan’s denial,107 and the author’s editorial comment that “there is not much direct

evidence to support” Shah’s claims of alcohol abuse.108 Shah describes meeting

Joan Johnson at a party where “they were drinking wine and socializing.”109

Shah’s testimony later described Joan’s circle of friends as “social people, drinking

people.”110 Joan herself listed a family history of alcoholism on Wirt’s boarding

school application.111 David Collie testified that he twice attended Alcoholics

Anonymous meetings with Joan.112

          Placed in full context, the challenged statements regarding alcohol or drug

use are clearly references to disputed trial testimony, and are a fair report of the

trial record.

105
      CR Vol. 3 p. 1137.
106
      CR Vol. 3 p. 2848.
107
      2d Supp. CR Vol. I p. 82.
108
      2d Supp. CR Vol. I p. 160.
109
      2d Supp. CR Vol. III p. 1246:9.
110
      2d Supp. CR Vol. III p. 1484:19.
111
      CR Vol. 2 p. 1134.
112
      2d Supp. CR Vol. IV p. 1893:4-16.
                                            48
      D.     “Parental Neglect Gist.”

      Appellants identify seven statements (Statements 33 – 39) which they claim

defame Joan as a neglectful parent.      In every case, these passages either are

unverifiable characterizations, or when read in context, are either a fair report of

the trial record, or not capable of the defamatory meaning that Appellants impute

to them. More to the point, to the extent the “neglectful parent” characterization

imputes verifiable facts, it is hard to see how any reasonable reader could find it to

be substantially false.

             (1)    Not objectively verifiable.

      Whether the children were “starving for attention” (Statement 34), or

“spoiled” (Statement 36), or “trapped” (Statement 37), or whether the house was “a

mess,” all fall within the category of unverifiable characterizations. It is not

possible to prove or disprove that a child is “spoiled” or “trapped.” Moreover,

almost every characterization is accompanied by references to the trial record

giving the reader a reference to the testimony supporting the author’s

characterization. Where the facts or testimony supporting a characterization are set

out in the text itself, allowing readers to evaluate the facts and form their own

conclusions, the characterizations are not actionable. Vecchio v. Jones, 2013 WL

3467195 * 8 (Tex.App.—Houston [1st Dist.] 2013, no pet.); Rehak Creative




                                         49
Servs., Inc. v. Witt, 404 S.W.3d 716 (Tex.App.—Houston [14th Dist.] 2013, pet.

denied).

      Whether Joan’s “neglect” enabled “abuse” of her children is likewise

inherently unverifiable—a subjective characterization rather than a provably false

fact. “Neglect” has been held to be an unverifiable opinion. Brewer v. Capital

Cities/ABC, Inc., 986 S.W.2d 636, 642-3 (Tex.App.—Fort Worth 1998, no pet.)

(“patient neglect” at nursing home is an unverifiable characterization). “Abuse”

has also been held to be an unverifiable opinion. Falk & Mayfield, L.L.P. v.

Molzan, 974 S.W.2d 821, 824 (Tex.App.-Houston [14th Dist.] 1998, pet. denied)

(“lawsuit abuse” is unverifiable; “the accusation is derogatory and disparaging, but

this is no different than saying one is ugly, scurrilous or disgusting”); Newspaper

Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 84

(Tex.App.—Houston [1st Dist.] 2013, pet. denied) (characterization of “elder

abuse,” while “a strong choice of words,” held not actionable). Whether Joan’s

neglect enabled Shah’s abuse of her children was an integral part of the Plaintiffs’

own case. More fundamentally, it is an “individual judgment that rests solely in

the eye of the beholder.” Molzan, supra, at 824; Vice v. Kasprzak, 318 S.W.3d 1,

22 (Tex.App.—Houston [1st Dist.] 2009, pet. denied).




                                        50
                (2)    Fair report.

          To the extent the challenged statements present verifiable facts, these are

privileged as a fair report of the trial record. Statement 33, for example concerning

Shah’s testimony that Joan’s house was “a mess,” is the same as Statement 14, and

supported by the same trial testimony.113 Statement 34 is another glaring example

of distorted context (with Appellants’ redaction in bold):

          It seemed, according to Dinny’s testimony, that the house wasn’t the
          only thing that Joan had neglected: Seth, Kaleta, and even Wirt
          were starving for attention.
          Some of Dinny’s more outrageous claims about the Johnson children
          were easily discredited. During his 2008 civil trial, Dinny testified
          that Seth, who was nine years old in 1996, had never had a haircut in
          his life and didn’t know how to eat with a fork. Dinny would later
          change his story when early photographs presented at the trial clearly
          show Seth supporting a freshly cropped head of hair.
          ...
          Dinny also claimed that the children were not involved in sports of
          any kind when he arrived on the scene, and he credited himself with
          getting the children interested in athletics. It was because of his
          encouragement, Dinny told the Court, that Kaleta joined her school
          track team. And, he continued, Seth had absolutely no interest in
          sports until Dinny signed him up for baseball. Dinny said he often
          drove Seth to practice, and initially he nearly had to force Seth out of
          the car.
          In truth, Seth had been involved in little league baseball for years
          before Dinny arrived on the scene and Joan had the pictures to prove
          it. Photographs from 1994 show a smiling Seth dressed in his Post
          Oak Little League uniform, clutching a baseball bat.
          In the picture, Seth’s hair is neatly groomed.
          ...
          It’s very likely that Dinny really did encourage the Johnson children
          to go outside and play occasionally; it’s even plausible that, in her

113
      CR Vol. 2 pp. 1183-1190.
                                            51
          grief, Joan had become less proactive about taking her kids to
          various practices and games. But Dinny’s testimony that Seth and
          Kaleta were completely inactive prior to his arrival was an
          exaggeration at best.114

The Book tells the reader, ten times on two pages, that the author is referring to

Shah’s trial testimony. The context alerts the reader how Shah’s testimony is

unreliable when he gets caught in lies. The complete context includes the author’s

editorial judgment that Shah is not to be believed: his “more outrageous claims”

are “easily discredited,” and his other characterizations are “an exaggeration at

best.”

          Statement 36 challenges Shah’s characterization that the Johnson children

were “spoiled.” This passage includes a reference to Shah’s testimony that the

kids cried, threw tantrums, and that Kaleta once threw a fit when Shah would not

buy her books she wanted. Selective editing again distorts the context:

          According to Dinny, Kaleta’s tantrum was proof that she was a
          spoiled brat, used to getting everything she wanted. And there
          may be some truth in that; after all, Kaleta had grown up
          surrounded by fabulous wealth. But as every parent—rich or
          poor—knows, all children throw fits from time to time when they
          don’t get what they want, whether it’s a new video game, a pair of
          shoes, or a stack of books.115

The reasonable reader understands that this passage is describing Shah’s testimony,

and is reminded in context these behaviors are not defamatory, but behaviors


114
      2d Supp. CR Vol. I pp. 83-84.
115
      2d Supp. CR Vol. I p. 89.
                                          52
typical of every child, rich or poor. And the passage is a fair report: Shah did

testify that Kaleta threw “a tantrum” when he would not buy all of the books she

wanted.116 Joan herself described Wirt as “a spoiled brat” in his boarding school

application.117

          Statement 38 assails two characterizations in the Book where David Collie

cited “parenting lapses” as a reason for breaking off his relationship with Joan.118

Collie did testify that Joan was “setting a bad example” in telling Seth to return a

toy without confessing that he took it.119         Statement 39 criticizes the Book’s

rhetorical question of Shah’s version of events: “Was Joan Johnson really the

neglectful, uncaring mother that Dinny claims she was?”120               But if any

characterization in the book is privileged as a fair comment, it is the rhetorical

question as to whether Joan was “neglectful” or “suffered parenting lapses.” By

her own admission, Joan watched her children endure physical abuse “on a

constant basis” for two years.121 She saw Shah assault Kaleta and Seth “many

times.”122 She witnessed Shah beating Seth at a backyard barbeque in June 1998,


116
      2d Supp. CR Vol. IV p. 1573-74.
117
      CR Vol. 2 p. 1134.
118
      2d Supp. CR Vol. I p. 162, 180.
119
      2d Supp. CR Vol. IV p. 1891:2-17.
120
      2d Supp. CR Vol. I p. 270.
121
      2d Supp. CR Vol. V p. 2193-2195.
122
      2d Supp. CR Vol. V p. 2235:20-2236:9.
                                              53
two years before opening her home to him.123 She endured Shah and Collie

beating her in front of her children.124 She endured Shah hitting Seth resulting in a

CPS call to their home in 2001, without telling the CPS case officer the truth.125

She allowed Shah to lock her and Seth in their garage and refused the opportunity

to leave when her yard man unlocked the door.126 She gave over $1.2 million to

Shah knowing it was to her family’s disadvantage.127 She made Shah and Collie

the executor of her estate, knowing that it was not in her children’s best interests.128

After the beatings began, she repeatedly designated Shah the guardian of her minor

children,129 and named Shah and Collie as their godfathers.130 During this time,

she had access to multiple attorneys, at least one CPA, other advisors, and CPS

case officers who talked to her in her home, yet she never reported one incident nor

made one complaint. She testified—under questioning by her own attorneys—that

she did this out of fear, terrified for retribution that Shah would exact.131 The Book




123
      2d Supp. CR Vol. V p. 2174:25-2175:23.
124
      2d Supp. CR Vol. V p. 2179:22-2181:3.
125
      2d Supp. CR Vol. V p. 2195:13-2198:5.
126
      2d Supp. CR Vol. V p. 2198:6-24.
127
      2d Supp. CR Vol. V p. 2145:20-2148:1; CR Vol. 3 p. 2845.
128
      2d Supp. CR Vol. V p. 2174:4-20.
129
      CR Vol. 3 p. 2855; CR Vol. 3 pp. 2673-85; pp. 2727-44.
130
      CR Vol. 3 p. 2687, p. 2860.
131
      2d Supp. CR Vol. V p. 2191:2-6; p. 2198:1-5; p. 2199:2-12.
                                                54
not only accurately reports her claim that she was terrified of Shah,132 the Book

also offers the explanation that Joan’s behavior could be attributed to the “well

documented” psychological effects of battered women syndrome, or Stockholm

Syndrome.133 “When Joan’s behavior is viewed in this light, perhaps many of the

things she did or did not do to protect Seth and Kaleta are understandable.”134

          Given all of the unchallenged admissions in the Shah Trial record, the

rhetorical question as to whether Joan was “neglectful” is certainly a fair comment,

a fair report, and a thoroughly justifiable opinion based on the record.

          E.     “Child Abuse Gist.”

          Appellants complain of passages in the Book (Statements 46 – 64) which

accuse Joan of failing to protect her children from Shah’s abuse.                Joan’s

undisputed failure to act was very clearly a recurring point throughout the entire

trial. It is an observation that is certainly privileged as a fair report. Moreover, the

fact that Joan failed to protect her children is substantially true.

                 (1)    Fair report.

          Statement 46 describes the final assault on Joan and Kaleta the night Shah

was arrested. The Book recounts that Shah beat Joan in the driveway, after which




132
      2d Supp. CR Vol. I p. 212.
133
      2d Supp. CR Vol. I p. 213, 234, 281.
134
      2d Supp. CR Vol. I p. 281.
                                             55
she simply followed Shah into the home, and did nothing while she heard Shah

beating Kaleta.135 This is a true account of Joan’s testimony:

          A.     [Joan Johnson] . . . I remember when I got out of the car—I
                 was in the back. Suddenly I just—I yelled because the
                 defendant had hit me very hard in the back and knocked a lot of
                 air out of my lungs and it made a big sound, a big. . . . my bag
                 fell on the floor, on the ground.
          ...
          A.     He picked it up and he started beating me over the head with it,
                 and he also kicked me here in the thighs.
          ...
          A.     And they all three disappeared into the house. I picked up my
                 purse and the things that had come out and on the driveway that
                 I could see, it was dark, and I followed them into the house.

          Q.     Ms. Johnson, why didn’t you call the police?

          A.     How?

          Q.     911.

          A.     I would not have done that because I think—at the time I felt
                 that the consequences of calling 911—I couldn’t control these
                 men.
          ...
          A.     I heard lots of yelling in Kaleta’s room, men yelling and Kaleta
                 screaming out in pain. I went into my room . . .136

The Book’s account of Shah’s assault tracks Joan’s testimony directly. Joan did

follow Shah into the house after the driveway assault.           Joan could hear her

daughter screaming. But she did not help or call 911. It is certainly a fair



135
      2d Supp. CR Vol. I p. 24-25.
136
      2d Supp. CR Vol. V p. 2214:9-2216:11.
                                              56
comment to question why, and to ask whether a mother’s inaction is “reasonable,”

or “mysterious” in horrific circumstances.

          Almost all of the statements in the “child abuse gist” are variations on the

same theme: why Joan failed to protect her children, or failed to act, or could not

blow the whistle. All of these observations are privileged as a fair report of the

trial and fair comment on matters of public concern.

                 (2)    Not substantially false.

          The fact that Joan failed to protect her children is also substantially true.

Plaintiffs called several witnesses who testified to precisely that observation, often

in the same words. Houston Police Officer PD Nguyen was struck by the fact that

Joan failed to protect Kaleta:

          A.     [Officer Nguyen] She said that Kaleta went into her room,
                 Dinesh Shah followed her, went to Kaleta’s room, and all she
                 could hear was her daughter screaming. And I asked Mrs.
                 Johnson, “Well, if you hearing your daughter screaming,
                 ma’am, why didn’t you go in there and try to protect her?”
                 She said she was just too afraid of Mr. Shah.137

Sergeant Kenneth Bounds was called by the Plaintiffs to testify to the same effect:

          A.     [Sergeant Kenneth Bounds] It was just obvious that something
                 was, something bad was going on in that house because—Mrs.
                 Johnson, you know, was trying to cover for him [Shah] initially,
                 which goes against everything I have ever seen about a
                 mother protecting a daughter. And I wanted to see—it was,
                 obviously, they were terrified of this guy.138
137
      2d Supp. CR Vol. II p. 764:6-14.
138
      2d Supp. CR Vol. II p. 797:6-12.
                                             57
The Johnsons also called Dr. Victor Scarano, a psychiatric expert, to explain why

Joan failed to protect her children.

          Q.     And how would you characterize [Joan’s] behavior?

          A.     [Dr. Scarano] Well, I’d have to go through how it all
                 developed but it, you know, it has to do with who she was,
                 where she grew up, things that happened in her life prior to the
                 entrance of Mr. Shah into her life and Mr. Collie, and the things
                 that occurred after that that caused her to be in a situation
                 where she was unable to protect her children.139

Appellants called another medical expert, Dr. Arthur Farley, who testified that

Joan’s inaction contributed to her children’s abuse.                Farley testified that

understanding an abusive relationship was like “trying to peel an onion,”

prompting this follow-up exchange:

          Q.     What’s at the heart of this [o]nion, Dr. Farley?

          A.     [Dr. Farley] Abuse.

          Q.     By whom?

          A.     By Mr. Shah and Mrs. Johnson.140

When the Book reports the characterization that Joan failed to protect her children,

it is literally repeating testimony from the Plaintiffs’ own witnesses—two police

officers, two medical experts, and the Johnsons themselves—all of whom shared a



139
      2d Supp. CR Vol. IV p. 1874-75.
140
      2d Supp. CR Vol. V p. 2380.
                                             58
subjective evaluation that is both an individual judgment, and a conclusion almost

impossible to deny.

            Importantly, the context of the Book includes Joan’s explanation that she

failed to act out of fear, and that the “well-documented” condition known as

battered women’s syndrome likely explained her predicament.141 Joan admitted

that she witnessed Shah physically assaulted her children “many times” over a

period of years: “it was really getting bad. I was really afraid of him in 2002. He

was getting very, very scary.”142 Joan’s own lawyer commented on her inability to

protect her children:         “If he’s beating your children, you are supposed to do

something, ma’am.”143 Joan’s lawyers then developed her direct testimony to

explain her inaction:

            Q.    [Mr. Perdue] You’re a grown woman. You have young
                  children. There is violence all around. Why didn’t you make
                  an effort to stop it?

            A.    [Joan Johnson] I couldn’t figure out how. You see, when
                  there is that much, when the threat of violence and you are that
                  scared and you have two other, you’re not by yourself, I had
                  two children to think about.144

The Johnsons’ psychiatric expert, Dr. Scarano, was asked by Joan’s lawyers to

comment on “Stockholm Syndrome:”

141
      2d Supp. CR Vol. I p. 281.
142
      2d Supp. CR Vol. V p. 2236.
143
      Id.
144
      2d Supp. CR Vol. V p. 2182.
                                             59
          A.     [Dr. Scarano] Stockholm Syndrome is a very interesting
                 syndrome named after a bank robbery in Stockholm where two
                 robbers entered a bank and the individuals that were there
                 through the entire incident became, as a survival mechanism,
                 became associated with the abusers, the robbers themselves,
                 and in fact tried to—one of the women after the thing was over
                 and he was arrested, one of the robbers was arrested, went out
                 to raise money for him. So it’s a survival mechanism in which
                 those people who are abused become affiliated with the abuser.

          Q.     [Mr. Clote] Do you have an opinion about whether or not that
                 occurred in this case?

          A.     Certain elements of the Stockholm Syndrome are present in this
                 case.145

          The Book’s account of Joan’s failure to protect her children is certainly a

fair report, where the Plaintiffs themselves offered so much testimony to explain

her inaction. Again, the Book includes Joan’s testimony that she was terrified of

Shah because of death threats,146 the fact that she likely a victim of battered

women’s syndrome,147 that the entire family was probably bound to Shah out of

fear based on Stockholm Syndrome,148 and that all of these psychological factors

made her predicament understandable.149 This is a fair account of the trial.




145
      2d Supp. CR Vol. IV p. 1875:4-19.
146
      2d Supp. CR Vol. I p. 212.
147
      2d Supp. CR Vol. I p. 213.
148
      2d Supp. CR Vol. I p. 234.
149
      2d Supp. CR Vol. I p. 281.
                                           60
          Statements 48 and 49 are passages questioning why Joan would sign powers

of attorney granting Shah and Collie authority over Joan and her children.150 These

statements describe Joan’s actions as “ill advised” and “inexplicable.” These are

unverifiable characterizations, but again, they are accurate and privileged

observations based on the trial record, and to the extent that they connote verifiable

matters of fact, they are certainly true.

          The Johnsons introduced 16 exhibits in which Joan granted powers of

attorney or guardianships in favor of Shah over herself, her brokerage accounts and

her children. Joan signed multiple documents appointing Shah guardian of Seth

and Kaleta.151 Joan signed a durable power of attorney in favor of Shah over the

affairs of Seth and Kaleta, and a special power of attorney over Seth when he went

to school in Connecticut.152 She signed three statutory durable powers of attorney

in favor of Shah or Collie, including one which appointed Shah and Collie as

guardians for Seth and Kaleta.153 She signed six powers of attorney giving Shah

and/or Collie authority to trade in her Merrill Lynch accounts.154 She signed two

medical powers of attorney giving Shah authority to make her personal health care



150
      2d Supp. CR Vol. 1 p. 117-119.
151
      CR Vol. 3 pp. 2673, 2682-85, 2739, 2807, 2855.
152
      CR Vol. 3 pp. 2727, 2742-44.
153
      CR Vol. 3 pp. 2682-85; 2689-92; 2729-31.
154
      CR Vol. 3 pp. 2676-80; 2700-25.
                                                 61
decisions.155 She designated Shah and Collie as godfathers for Seth and Kaleta.156

Almost all of these documents were signed by Joan after the violence had begun,

including an incident where Shah abused Joan on a trip to California in 1999,157

and an incident where Shah again assaulted Joan on a trip to New York.158 It is

certainly a fair comment to wonder aloud if this behavior is reasonable, explicable

or mysterious.

          Passages in the Book which observed that Joan also failed to protect her

family’s finances are likewise a fair report, and are undeniably accurate. Joan

gifted Shah $1.2 million in a bizarre document that also has Joan assume the gift

tax burden, and which the Book describes as almost certainly the product of Shah’s

undue influence.159 The Johnsons offered evidence that Shah had talked Joan into

transferring $2.5 million to him in gifts of stock and cash over four years. 160 Joan

indemnified Shah and Collie from any loss they might incur in their “consulting

services” to her.161 Shah also had Joan document a substantial number of “gifts” to

him, including, inexplicably, many guns.162 It is both fair and accurate, and a

155
      CR Vol. 3 pp. 2694-98; 2733-37.
156
      CR Vol. 3 pp. 2687, 2860.
157
      2d Supp. CR Vol. V pp. 2179:15-2181:3.
158
      2d Supp. CR Vol. V pp. 2181:24-2182:11.
159
      CR Vol. 3 p. 2845.
160
      CR Vol. 3 p. 2783.
161
      CR Vol. 3 p. 2746-48.
162
      CR Vol. 3 pp. 2799-2803; 2828-30.
                                                62
substantial understatement, to say that these transfers were not in the Johnsons’

best interests.163

            Appellants challenge a number of other statements as accusations of child

abuse. In every case, these are again fair accounts of the trial record. Statements

56 and 57 question whether Joan believed or disbelieved allegations that David

Collie may have abused one of the children. Statement 52 concerns a passage in

which Shah believes Joan “cooked up” a false accusation of abuse in order to trick

Collie into marrying her. Joan noted in her diary that Wirt had made a false

accusation that David Collie molested Seth.164 The diary also speaks of Joan’s

wish that Collie would marry her, and her fear that he will not.165 Collie testified

that Wirt made a false accusation of sexual misconduct, but that Joan never

believed it.166 Finally, the trial record includes Joan’s statement that she raised a

false accusation against Collie of sexual misconduct with Kaleta to entrap Collie




163
    Appellants argued below that their written statements were coerced by Shah and therefore
unreliable. But the Book endorsed that view repeatedly: “it is very likely that many of the
Johnson family’s personal letters and affidavits were the result of Dinny’s coercion.” (Book p.
140). A statement that the plaintiff falsified reports is substantially true even though the plaintiff
claims he was coerced into signing them. Louis v. Mobil Chem. Co., 254 S.W.3d 602, 610-11
(Tex.App.—Beaumont, pet. denied). And an accurate account of disputed testimony remains
privileged even if that testimony is recanted or disproved. Pardo v. Simmons, 148 S.W.3d 181,
192-3 (Tex.App.—Waco 2004, no pet).
164
      CR Vol. 3 p. 1828 (DX 343).
165
      Id.
166
      2d Supp. CR Vol. IV p. 1930:6-24.
                                                 63
into marriage.167 Joan testified emphatically that the disputed document was a lie,

coerced by Shah and signed by her only because she wished “to avoid more

violence.”168      Shah testified that the whole event was an overreaction to one

occasion when Kaleta jumped in Dave’s lap.169

          In sum, the passages that question Joan’s failure to protect her children, and

her failure to protect her family’s financial interests, are well-substantiated in the

trial record, including the testimony of the Appellants’ own witnesses, and they are

certainly a fair comment on matters of public concern.

V.        Appellants’ other claims are waived.

          In addition to the five “defamatory gists” listed in their Brief, Appellants

raised four more “defamatory gists” in the trial court below: an “inappropriate

behavior” gist, a “learning disabilities” gist, a “behavioral problems” gist, and a

claim for defamatory statements about other members of the Blaffer family.170

Appellants also brought non-defamation claims: invasion of privacy, infliction of

emotional distress, theft and conversion of their documents, aiding and abetting,

ratification, and a claim for injunctive relief.171



167
      CR Vol. 3 p. 2853 (DX 15).
168
      2d Supp. CR Vol. V pp. 2189:1-2191:6.
169
      2d Supp. CR Vol. III pp. 1313:14-1314:24.
170
      CR Vol. 3 pp. 3212-13; 3256-3261; 3271-3290.
171
      CR Vol. 1 pp. 169-178.
                                                  64
          The trial court granted Appellees a take-nothing summary judgment on all of

Appellants’ claims.172 In this Court, Appellants only briefed the five defamatory

gists described above. Appellants do not argue, brief, or assign any error on the

other causes of action. A finding or judgment not challenged on appeal is waived.

Jacobs v. Satterwhite, 65 S.W.3d 653, 655-6 (Tex. 2001); Swank v. Sverdlin, 121

S.W.3d 785, 797 (Tex.App.—Houston [1st Dist.] 2003, pet. denied), cert denied,

544 U.S. 1033 (2005). Points not raised in the brief will not be considered for

review. TEX. R. APP. P. 38.1(f), (i); Escobar v. Harris County, 442 S.W.3d 621,

641 n. 12 (Tex.App.—Houston [1st Dist.] 2014, no pet.); Bob v. Cypresswood

Community Ass’n, _____ S.W.3d _____, 2015 WL 3423753 at * 3 (Tex.App.—

Houston [1st Dist.] 2015, no pet.).

                                      CONCLUSION

          Appellees pray that the Trial Court’s summary judgment be in all respects

affirmed.

          DATED and FILED this 18th day of September, 2015.




172
      CR Vol. 4 p. 3780.
                                           65
                                             OGDEN, GIBSON, BROOCKS,
                                                LONGORIA & HALL, L.L.P.

                                             By:   /s/ William W. Ogden
                                                   William W. Ogden
                                                   State Bar No. 15228500
                                                   bogden@ogblh.com
                                                   Judith A. Meyer
                                                   State Bar No. 13993200
                                                   jmeyer@ogblh.com
                                                   1900 Pennzoil South Tower
                                                   Houston, Texas 77002
                                                   Telephone: 713-844-3000
                                                   Facsimile: 713-844-3030

                                                   Attorneys for Appellees


                          CERTIFICATE OF COMPLIANCE


      I hereby certify that this Appellees’ Brief has been prepared using Microsoft
Word 10.0 computer software with the body of the brief in Times Roman 14 point
typeface, and footnotes in 12 point typeface. Excluding those parts of the brief not
counted by TEX. R. APP. P. 9.4, this brief contains 14,887 words.


                                            /s/ William W. Ogden
                                      William W. Ogden




                                        66
                            CERTIFICATE OF SERVICE

       I certify that the foregoing document was filed electronically with the Clerk
of the First Court of Appeals using the electronic case filing system of the Court. I
also certify that a true and correct copy of the foregoing Brief was served on the
following counsel of record for appellants via e-service on September 18, 2015.

             Marc S. Tabolsky
             YETTER COLEMAN LLP
             Two Houston Center
             909 Fannin, Suite 3600
             Houston, Texas 77010

             Mr. Patrick Zummo
             LAW OFFICE OF PATRICK ZUMMO
             Two Houston Center
             909 Fannin, Suite 3500
             Houston, TX 77010



                                                    /s/ William W. Ogden
                                                    William W. Ogden




                                         67
