                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-08-400-CV


JACK D. BROCK                                                       APPELLANT

                                        V.

JULIE FREDERICK TANDY                                                 APPELLEE

                                    ------------

           FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY

                                    ------------

               MEMORANDUM OPINION 1 ON REHEARING

                                    ------------

                                 I. Introduction

      In this accelerated interlocutory appeal,2 Appellant Jack D. Brock

complains that the trial court erred by denying his motion for traditional and no

evidence summary judgment in favor of Appellee Julie Frederick Tandy. While




      1
          … See Tex. R. App. P. 47.4.
      2
          … See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(6) (Vernon 2008).
we deny Brock’s motion for rehearing, we withdraw our earlier opinion and

judgment of May 14, 2009, and substitute the following. We affirm.

                    II. Factual and Procedural Background

      This defamation action arose from disputes between Brock and the City

of Keller (“City”) regarding Brock’s real property—specifically, a subdivision plat

that Brock had originally submitted for development in 1999, but that was

signed in 2004; the condemnation of an easement by the City for water

drainage across some of Brock’s property in 2007; and the denial, at some

point before May 12, 2007, of Brock’s application to change zoning on some

of his property so he could put a RaceTrac gas station on it.3         Tandy was

elected mayor in 2003 and 2005; she was not reelected in 2007.

      Brock paid for the following advertisement (the “Ad”), along with a copy

of the controversial plat, to run in The Keller Citizen, a local newspaper, on May



      3
        … In 1991, Brock began the process of developing some of his property
into a residential subdivision. In 1992, the City approved the plat for the first
phase, West Park I, and the installation of water and sewer for all phases of the
West Park Subdivision development. The City subsequently approved West
Park II’s plat. At some point between 1992 and 1999, the events leading to
the dispute over the water drainage easement began. In 1999, the City
approved West Park III’s plat.
       In 2001, Brock discovered that his plat for West Park III was unsigned.
Brock also began damming the inlet into his drainage ditch to prevent the City
from using it. The City eventually filed a condemnation action to acquire a
drainage easement. A unanimous City Council voted to condemn the easement
on Brock’s property.

                                        2
4, 2007, eight days before the mayoral election that Tandy lost.            The Ad

stated:

             This is a copy of the final plat of West Park Addition in Keller.
      I originally had an approved plat in 1999 that was destroyed by a
      corrupt City Hall. I could not4 prove that I had received approval,
      and so had a new plat made in 2004. In the signature and
      dedication section, you will see my name notarized and dated June
      3, 2004. You will see that the plat is shown to have been
      recorded June 18, 2004, at the county courthouse and is located
      in Cabinet A, slide 9330. In the box under the county clerk’s
      name, our own mayor’s signature appears dated June 15, 1999.
      The only problem is she wasn’t mayor in 1999! Like me, she really
      signed it in June 2004, but backdated the signatures to cover up
      the corruption. More than corruption, this amounts to fraud. And
      recording a fraudulent document is a felony.

             In the past few months, citizens of Keller have witnessed
      flooding on Whitley Road that has wrongly been blamed on me.
      The blame should be directed at Mayor Tandy and Councilman
      Steve Trine who refused to meet with me and were too busy to
      find out what mistakes the City Manager and his staff made to
      cause this mess. Only two council members wanted to know the
      truth. The truth is the City Manager and three members of his staff
      made a verbal agreement with me for an easement in June of
      2004. But our mayor and her friends voted in March 2007 to steal
      it the old-fashioned way—eminent domain. They decided to take
      my land by force now and face the damage suit later. The city
      ruined my pasture by condemning a strip of land through the middle
      of my property, turning my one piece of land into two separate
      parcels that are no longer connected. Furthermore, by putting a
      drainage ditch through the middle of my property, they have ruined
      what were to be 20 future residential lots. And the ditch they have



      4
       … Brock testified that The Keller Citizen printed his article with a
typographical error, and that it should have read, “I could prove that I had
received approval, and so had a new plat made in 2004.”

                                         3
      put in doesn’t even drain, but serves as a breeding ground for
      mosquitoes instead.

              Last week I instructed my attorney to take a copy of the
      falsified plat to the Tarrant County District Attorney to have the
      following charges against the Mayor and staff investigated: 1)
      committing fraud and recording falsified legal documents, 2)
      conspiracy to deny me the use of my property, 3) violation of state
      and city water laws, and 4) trespassing on private property by
      diverting controlled ground water onto my property.

             In the past, anytime the [C]ity of Keller has needed anything,
      I have willingly given. I have given my time. I have given my
      money. I have given road frontage and sewer easements free of
      charge. All the [C]ity has ever had to do was ask. After living here
      for 80 years, it is a sad day when I have to go to the county
      district attorney’s office about the corruption in our city.

At the bottom of the Ad is the following legend, “Written and paid for by Jack

Brock.”

      Tandy sued Brock, claiming libel per se. Brock moved for a traditional and

no evidence summary judgment. The trial court denied Brock’s motion, and this

appeal followed.

                                III. Discussion

      In his first issue, Brock argues that the summary judgment evidence

conclusively shows that the factual assertions that Tandy complains of were

not defamatory and that there is no evidence that the assertions were

defamatory. In his second and third issues, he presents the same arguments




                                       4
with regard to the truth of the assertions and whether he made them with

actual malice.

A. Standard of Review

      When a party moves for summary judgment under both rules 166a(c) and

166a(i), we will first review the trial court’s judgment under the standards of

rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

If the nonmovant failed to produce more than a scintilla of evidence under that

burden, then there is no need to analyze whether the movant’s summary

judgment proof satisfied the less stringent rule 166a(c) burden. Id.

      Under rule 166a(i), the party without the burden of proof may, without

presenting evidence, move for summary judgment after an adequate time for

discovery on the ground that there is no evidence to support an essential

element of the nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The

motion must specifically state the elements for which there is no evidence. Id.;

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The

trial court must grant the motion unless the nonmovant produces summary

judgment evidence that raises a genuine issue of material fact. See Tex. R. Civ.

P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.

2002).




                                       5
      When reviewing a no evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). If the nonmovant brings forward more than a

scintilla of probative evidence that raises a genuine issue of material fact, then

a no evidence summary judgment is not proper. Moore v. K Mart Corp., 981

S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied). We review a

no evidence summary judgment for evidence that would enable reasonable and

fair-minded jurors to differ in their conclusions.    Hamilton v. Wilson, 249

S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802,

822 (Tex. 2005)).

B. Libel per se

      As a public official when Brock placed the Ad, Tandy has the burden to

prove that Brock published a false statement of fact that was defamatory

concerning her while acting with actual malice regarding the statement’s truth.

See Bentley v. Bunton, 94 S.W.3d 561, 579, 586 (Tex. 2002); WFAA-TV, Inc.

v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998), cert. denied, 526 U.S. 1051

(1999). Tandy sued Brock claiming libel per se, i.e., that the printed words

were so obviously hurtful to her that they require no proof of their injurious

character to make them actionable. See Clark v. Jenkins, 248 S.W.3d 418,

                                        6
437 (Tex. App.— Amarillo 2008, pet. denied), petition for cert. filed, 77

U.S.L.W. 3531 (U.S. Mar. 5, 2009) (No. 08-1122). On appeal, Brock asserts

that four key statements in the Ad were not defamatory, were not false, and

were not made with actual malice.5

      1. Defamatory Meaning

      Brock argues that Tandy had no defamation claim based on the following

four statements:

      (1) “Like me, she really signed it in June 2004, but backdated the
      signature to cover up the corruption. More than corruption, this
      amounts to fraud. And recording a fraudulent document is a
      felony.”

      (2) “The blame should be directed at Mayor Tandy and councilman,
      Steve Trine who refused to meet with me and were too busy to
      find out mistakes the City Manager and his staff made that caused
      this mess.”

      (3) “But our mayor and her friends voted in March 2007 to steal
      [the easement] the old fashioned way—eminent domain.”



      5
        … Summary judgment cannot be granted except on the grounds
expressly presented in the motion. Johnson, 73 S.W.3d at 204; Sci. Spectrum,
Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997). Brock asks us to reverse
the trial court’s judgment denying his motion for summary judgment and to
render judgment on his behalf. However, although Brock argues in his second
issue that “[t]he summary judgment evidence conclusively demonstrates that
the factual assertions complained of by [Tandy] were true or that there is no
evidence that they were false,” he did not raise this as a ground for summary
judgment in his motion. Therefore, we may not address this issue for the first
time on appeal. See Johnson, 73 S.W.3d at 204; Martinez, 941 S.W.2d at
912.

                                      7
      (4) “Last week I instructed my attorney to take a copy of the
      falsified plat to the Tarrant County District Attorney to have the
      following charges against the mayor and staff investigated: 1)
      committing fraud and recording falsified legal documents, 2)
      conspiracy to deny me the use of my property, 3) violation of state
      and city water laws, and 4) trespassing on private property by
      diverting controlled ground water onto my property.”

Although Tandy made reference to these statements in her petition, she also

reminds the court that we must read the Ad in its entirety and not just consider

the individual statements in isolation.6

      Libel is defamation expressed in written form that tends to injure a living

person’s reputation and thereby expose her to public hatred, contempt or

ridicule, or financial injury or to impeach her honesty, integrity, virtue, or

reputation. See Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 2005).

Whether a publication is capable of being defamatory is initially a question of

law to be determined by the court. New Times, Inc. v. Isaacks, 146 S.W.3d

144, 155 (Tex. 2004), cert. denied, 545 U.S. 1105 (2005); Turner v. KTRK




      6
       … Although Brock complains that Tandy did not plead a complaint to
interpret the Ad and that she cannot now complain about imputed assertions
of fraud and corruption, Tandy’s petition is very broad, pleading defamation
with reference to both specific statements and the Ad in general, stating,
“Defendant intentionally published a written communication stating verifiable
facts and accusations relating to Tandy in her official capacity as Mayor . . . .
The Ad was unambiguous and the statements therein were false and made with
actual malice and with knowledge of and reckless disregard for their falsity.”
She attached a copy of the Ad to her petition, along with Brock’s deposition.

                                           8
Television, Inc., 38 S.W.3d 103, 114 (Tex. 2000).                 To make this

determination, the trial court should consider whether the words used are

reasonably capable of defamatory meaning by considering the allegedly

defamatory statement as a whole. See Musser v. Smith Prot. Servs., Inc., 723

S.W.2d 653, 654–55 (Tex. 1987).          The determination is based on how a

person of ordinary intelligence would perceive the entire statement.           See

Bentley, 94 S.W.3d at 579; Harvest House Publishers v. Local Church, 190

S.W.3d 204, 210 (Tex. App.—Houston [1st Dist.] 2006, pet. denied), cert.

denied, 127 S. Ct. 2987 (2007). And even if individual statements considered

in isolation are literally true or non-defamatory, a publication can convey a false

and defamatory meaning by omitting or juxtaposing facts.          See Turner, 38

S.W.3d at 114–15.       A publication as a whole may be defamatory if the

publication creates a false impression. See id. at 117–18.

      Additionally, as Tandy was a public official at the time, the statements

must be of such character that, if they were true, would have subjected her to

removal from office, to criminal charges, or to imputation of official dishonesty

or corruption. See Bentley, 94 S.W.3d at 582 (“Accusing a public official of

corruption is ordinarily defamatory per se.”); Brasher v. Carr, 743 S.W.2d 674,

677 (Tex. App.—Houston [14th Dist.] 1987) (“Statements that are of such a

character as, if true, would subject a public official to removal from office or

                                        9
charge him with a crime are libelous per se.”), rev’d on other grounds, 776

S.W.2d 567 (Tex. 1989).

      In its entirety, a reasonable person could interpret the Ad’s overall gist to

be that a “corrupt City Hall” (via its corrupt employees) destroyed Brock’s West

Park III plat some time between 1999 and 2004, after it had been approved;

that Tandy committed a felony by backdating her signature in 2004 to cover

up the corruption involved in destroying Brock’s original plat (backdating

rendering the plat fraudulent) and by then recording the fraudulent plat; that

Tandy was also to blame for Brock flooding Whitley Road because she refused

to meet with him and was too busy to look into mistakes caused by City

employees (allowing them to run amuck); and that in March 2007, Tandy voted

to steal his land via eminent domain, ruining his pasture and his development

plans, after conspiring to deny him the use of his property, violating state and

city water laws, and trespassing on his property by diverting controlled ground

water onto it.7



      7
       … Tandy testified that she was not aware of any controversies between
the City and Brock regarding the Phase III plat prior to May 4, 2007. She
stated in her affidavit that she did not fill in the date after her signature when
she signed the plat in 2004. She also testified that she did not vote on the
council’s decision to condemn Brock’s property and that the council vote was
unanimous. Tandy testified that her reputation in the community had been
damaged by the Ad, based on feedback and comments that she received, and
that she had never met Brock before his deposition.

                                       10
      A reasonable person could view the Ad as appearing to impeach Tandy’s

honesty or reputation and to expose her to public hatred, contempt, or ridicule.

See Tex. Civ. Prac. & Rem. Code Ann. § 73.001; Isaacks, 146 S.W.3d at 155;

Turner, 38 S.W.3d at 114–15; Musser, 723 S.W.2d at 654–55. Furthermore,

the Ad tends to impute official dishonesty and corruption to Tandy.            See

Bentley, 94 S.W.3d at 582; Brasher, 743 S.W.2d at 677.             Therefore, we

conclude that the publication as a whole, as well as at least one of its individual

statements,8 is capable of being defamatory, and we overrule Brock’s first

issue.9


      8
      … Specifically, statement (1), which accuses Tandy of official
dishonesty, could appear to a reasonable person to be defamatory.
      9
         … Brock has requested by motion that we take judicial notice of the
copies of the City’s charter and article 4 of the City’s Unified Development
Code, and by supplemental motion that we take judicial notice of the copies of
article 4 of the City’s Unified Development Code and section 16-204 of the
City’s Subdivision Ordinance Number 571, dated March 29, 1989, that he
supplied to the court. We grant his original motion in part, as to the charter,
because he presented this same request to the trial court. We deny the
remainder of his original motion.
        Even if we were to grant his motion and supplemental motion as to article
4, which he did not present to the trial court, in light of our resolution above
with regard to the imputation of official dishonesty, we need not also address
his argument that, although Tandy allegedly violated article 4, she failed to
show that backdating was a basis to remove her from her office as mayor. See
Tex. R. App. P. 47.1; see also Tex. Penal Code Ann. § 37.10(a)(1)–(3), (c)(1)
(Vernon Supp. 2008) (defining tampering with governmental records as a state
jail felony when committed with intent to defraud), and Keller, Tex., Charter art.
III, § 3.02 (2008) (stating that “[a] member of the council . . . who is convicted
of a felony while in office shall immediately forfeit his office”). And although

                                        11
      2. Actual Malice

      To establish actual malice, the plaintiff must prove that the defendant

published a defamatory falsehood “with knowledge that it was false or with

reckless disregard of whether it was false or not.” WFAA-TV, 978 S.W.2d at

573 – 74 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279–80, 84

S. Ct. 710, 726 (1964)).     Reckless disregard is a subjective standard that

requires the plaintiff to bring forth evidence that the defendant entertained

serious doubts as to the truth of the publication at the time it was published.

Hearst Corp. v. Skeen, 159 S.W.3d 633, 637 (Tex. 2005). A presentation of

facts that is misleading, even negligently so, will not constitute a “calculated

falsehood” unless those facts are published with knowledge or strong suspicion

by the publisher that they are misleading. See Turner, 38 S.W.3d at 120.

      Actual malice focuses on the defendant’s state of mind, particularly his

attitude toward the truth of what he reported, which a plaintiff can prove

through objective evidence about the publication’s circumstances and the

defendant’s conduct at the time of publication. Id.; WFAA-TV, 978 S.W.2d at

573–74; see also Bentley, 94 S.W.3d at 591, 596. When the defendant’s




his supplemental motion purports to submit section 16-204 of the City’s
Subdivision Ordinance, the section actually submitted and certified is 16-240.
We deny his supplemental motion in its entirety.

                                      12
words lend themselves to more than one interpretation, the plaintiff must

establish either that the defendant knew that the words would convey a

defamatory message or that he had reckless disregard for their effect. Isaacks,

146 S.W.3d at 162. Publications alleged to be defamatory must be viewed as

a whole—including accompanying statements, headlines, pictures, and the

general tenor and reputation of the source itself, and we consider the actual

malice issue within this context. See City of Keller, 168 S.W.3d at 811 (citing

Isaacks, 146 S.W.3d at 158–59, for the proposition, with regard to a no

evidence assertion, that legal sufficiency cannot disregard parts of a

publication, considering only false statements to support a plaintiff’s verdict or

only true ones to support a defense verdict). And, as the Supreme Court of

Texas has stated:

      To disprove actual malice, a defendant may certainly testify about
      his own thinking and the reasons for his actions, and may be able
      to negate actual malice conclusively. But his testimony that he
      believed what he said is not conclusive, irrespective of all other
      evidence. The evidence must be viewed in its entirety. The
      defendant’s state of mind can—indeed, must usually—be proved by
      circumstantial evidence. A lack of care or an injurious motive in
      making a statement is not alone proof of actual malice, but care
      and motive are factors to be considered. An understandable
      misinterpretation of ambiguous facts does not show actual malice,
      but inherently improbable assertions and statements made on
      information that is obviously dubious may show actual malice. A
      failure to investigate fully is not evidence of actual malice; a
      purposeful avoidance of the truth is. Imagining that something may
      be true is not the same as belief.

                                       13
Bentley, 94 S.W.3d at 596 (internal citations omitted).

            a. Brock’s Testimony

      Tandy attached Brock’s deposition to her response to his motion for

summary judgment. Brock testified that he did not need to research the facts

in the Ad because they were known to him personally, 10 and he gave the

following explanation:

      Q. Okay. Did you intend the readers of The Keller Citizen to
      understand the meaning of this [A]d, that it was about corruption,
      that it was about fraud?

      A. Yes, because every week in The Keller Citizen[,] the City
      Manager had the—had the Assistant City Manager . . . go down
      there and tell them that the only reason that the water was being
      flooded on Whitley Road by me was because of some RaceTrac
      gasoline [station] that was rejected,11 and the final blow on this is
      when they sat up here and—with Julie Tandy as mayor and
      signature of the City of Keller to sit up here and took a vote to
      condemn my property when they are illegally putting water on me.

He testified that he had never met Tandy prior to his deposition, and that with

regard to the Ad, “[t]his was not a personal attack on Julie Tandy as a person,

only as the signature for the City of Keller.” He also testified that the mayoral

election date had nothing to do with the date that he ran the Ad.


      10
      … Brock also stated in his affidavit attached to his motion for summary
judgment that at the time he published the Ad, he “believed its contents.”
      11
       … Brock reapplied for a zoning change for the RaceTrac gas station after
Tandy lost the mayoral election and one of the council members had been
replaced.

                                       14
      Brock admitted that he assumed that Tandy knew about the backdating

because she was the mayor.12 He did not try to find out who had done the

backdating. He testified that he assumed that the City had destroyed the 1999

plat because they had no record of it when he asked for it.13 He admitted that

he did not research whether recording a fraudulent document is a felony, and

he stated, “I just know that it’s fraudulent, and you go down there and record

a—a document that’s fraudulent is a felony.” He also stated that he would call

that action a felony whether it was or was not, and that, with regard to his Ad,

“as far as [he was] concerned, it is all fact,” and that he did not imagine it.

      Brock gave the following testimony about whether Tandy refused to meet

with him:



      12
       … Brock testified that Otis Welch, the chairman of the planning and
zoning commission who also signed the plat in 2004, did not commit a felony
“because, actually, he probably didn’t know” that his signature was going to
be backdated.
      13
         … Brock claimed that the City destroyed his Phase III plat, having “heard
from one of the City employees that some lady went down there where the
plats and everything was kept with a garbage can and threw every plat in it in
the garbage,” but he did not remember who the City employee was or who the
“lady” was who allegedly threw the plats away.
       Brock also testified that he did not recall receiving a letter from the City
in September 1999, after the approval of his final Phase III plat, requesting that
he submit required information for filing with Tarrant County, but he later
testified that he hand-carried all of the requirements within the thirty-day time
limit set out in the letter. He also did not recall receiving a second notice
requesting the same information in February 2000.

                                        15
     Q. Isn’t it true that they offered to meet with you?

     A. Only if I would take and give them an easement.

     Q. And you refused?

     A. I have a letter from the City Attorney, stating the only way that
     they would meet with me is if I went ahead and gave them an
     easement to take illegal water across my property and trespass on
     me.14

     Q. So when you say they refused to meet with you, that isn’t true,
     is it?

     A. They wouldn’t meet with me unless the stipulations went with
     it.

     Q. So they would meet with you. . . . if you met the stipulation.

     A. I can’t meet those stipulations. 15




     14
        … The December 22, 2006 letter from the City Attorney to Brock’s
attorney stated, in pertinent part:

     As you are aware, the [City] has initiated proceedings to acquire a
     drainage easement across [Brock’s] property. In a good faith
     attempt to discuss and possibly resolve the issues relating to this
     acquisition, I have been instructed to convey to you that the Mayor
     and two City Council members would be willing to meet personally
     with your client at Town Hall at a mutually convenient time. As a
     prerequisite to the meeting, your client, as a show of good faith,
     must remove the existing “dam” and other fill or materials so as to
     allow full flow of water across the current drainage ditch.
     15
       … In his affidavit, Brock stated, “I was unwilling to have the meeting
under these conditions.”

                                      16
      With regard to the vote to condemn his property, Brock explained that

“and her friends” referred to the City Council, but he acknowledged that Tandy,

as mayor, did not cast a vote on the decision to condemn the easement. He

faulted Tandy for not behaving the way he had when he was mayor. 16

      With regard to his statement about instructing his attorney to take the

plat to the Tarrant County district attorney, Brock gave the following testimony:

      Q. . . . When you put that in the ad, did you intend for people
      reading it to understand that Julie Tandy had committed fraud and
      recorded falsified legal documents?

      A. The City of Keller and staff. . . . The mayor and staff
      investigated. . . . I wanted to understand that I was going to have
      it investigated by the DA.

            ....

      Q. And didn’t you want them to believe it was true?

      A. That would be up to the individual . . . how they take it. If
      you’re being investigated[, that] doesn’t mean that you’re guilty of
      anything. . . . I wanted them to believe that I was mad about this,
      about getting my property flooded. . . . I wanted the readers to
      believe it that it was going to be investigated to see if it was true.

            ....

      Q. What was your intent when you attributed these four criminal
      acts, committing fraud and recording falsified legal documents,



      16
        … Brock testified, “[W]hen I was mayor, if anything was wrong, I
wouldn’t let it happen.” He stated in his affidavit that he held “multi terms as
the [City’s] mayor.”

                                       17
conspiracy to deny me the use of my property, violation of state
and city water laws, trespass on private property by diverting
controlled water onto my property, you attribute those four acts
that you say you want investigated to Mayor Tandy. Did you
intend for the readers to believe that she had committed those
acts?

A. Not that she committed it.

Q. What did you intend for them to believe?

A. That the City was committing fraud, recording falsified
documents. I know she didn’t go down there and record it.
Conspiracy to deny me the use of my property.

Q. Did she—did she do that?

A. She didn’t—no, she didn’t do that, but the City did. . . . And
violate state and city water laws. It’s on the books.

Q. So you have now gone through those four items and said Julie
Tandy didn’t do any of those things, correct?

A. No, I said the City did. . . . And she is the—part of the City.

Q. So when you say you want to have the following charges
against the mayor and staff investigated . . . . is it your testimony
that the mayor committed those acts?

A. I want the mayor and the staff investigated to see which one of
those acts she’s guilty of and the City staff, and by “her” I mean
the City.

Q. And did you intend for the reader to believe that she had
committed them?

A. No.




                                 18
      Q. Well, earlier in the ad and earlier in your testimony today you
      stated that she did commit fraud by recording a fraudulent
      document.

      A. Mm-hmm. . . . I said that when you take and record something
      like this, it’s fraud.

      Q. So it’s your testimony that Julie Tandy did commit fraud?

      A. The mayor committed fraud.

      Q. Mayor Julie Tandy?

      A. Yes. [Emphasis added.]

      Brock testified that he had not thought about or looked into whether

accusing Tandy of a felony related to her fitness for office or whether she could

be removed from office, but that he did not intend to impeach her reputation

or injure her in her office, although he acknowledged that injury to her

reputation “could be one effect of it.” He also testified that he did not bother

to investigate whether Tandy knew that her signature was backdated, because

“[a]s far as [he] was concerned, it was done by the City.”

      Brock testified that he had known James Carson, a Keller City Council

member, for six to eight months, that Carson had visited his home, and that he

spoke with Carson on the phone probably three to four times, although he did




                                       19
not keep track.17   He denied remembering any conversations with Carson

discussing methods to unseat Tandy as mayor. He acknowledged receiving a

copy of the May 4, 2007 memo from the City Manager to the mayor and City

Council about the Ad from Carson. 18

            b. Carson’s Testimony

      Tandy attached Carson’s deposition to her response to Brock’s motion for

summary judgment.19 Carson testified that while he was on the Keller City

Council, he had conversations with Brock about the plat and asked Otis Welch,

one of the other signatories, about the backdating. He learned from Welch

(who learned from someone at Town Hall) that it was customary “to date the

plat whenever it was actually approved by the Planning & Zoning and whenever



      17
       … Carson was on the Keller City Council during the last year of Tandy’s
second term.
      18
        … In the memo, the city manager states that the planning and zoning
commission secretary (a city staff member) dated all of the City official
signatures with the actual date of approval of the plat because he thought that
both the signature date of the plat and the resolution date approving the plat
in 1999 should be the same. He also states that the backdating did not void
the plat because all signatures and other essential documentation were in order
when filed in 2004, although the city staff member should not have backdated
the signatures. Carson testified that the city manager’s explanation in response
to the Ad was “the most likely truthful explanation.” Carson testified that he
did not recall giving Brock a copy of the memo.
      19
       … Carson was deposed because of his role as a member of the City
Council and because of his relationship with Brock.

                                       20
it was approved by the City Council,” and that was all the investigation he or

Welch did.

      Carson testified that he received a copy of the Ad from Brock’s son

before it was published, and he gave the following testimony about Brock and

the Ad:

      Q. . . . So early 2007, [Brock] tells you he intends to publish the
      plat. What is your response to that?

      A. “Why?” My—I gave him my interpretation of the plat, which
      was that, “Yes, [Brock], it could be what you say it is. But it’s also
      very likely that it’s a simple mistake.” . . . And his reply back to
      that was, “It can’t be.”

      Q. Okay. So his interpretation is what? When he comes to tell you
      about it in early ‘07, what does he say his interpretation of the plat
      is?

      A. He has repeatedly made the charge that this plat represents
      fraud, deliberate fraud.

      Q. And your response is?

      A. “You can’t prove it, [Brock].” . . . What my thought was, was
      that the explanation that this is customary is just wrong, and
      whoever wrote the dates in was operating under the erroneous
      assumption that it is customary to backdate. That’s— that was
      what I considered the most likely explanation . . . of this plat.

Carson estimated that he had this conversation with Brock two or three times,

and he testified that Brock could not fathom that it could be just a simple

mistake and that Brock was adamant that it was not. He testified that he



                                       21
encouraged Brock not to run the Ad, that he never asked Tandy whether she

knew her signature had been backdated, and that, to his knowledge, Brock

never asked her either. Carson also testified that, to his knowledge, there was

never any conspiracy to deny Brock the use of his property, and that he thought

Brock ran the Ad to expose what Brock considered fraud and to cause Tandy

to lose votes in the mayoral election, based on the timing of the publication and

his conversations with Brock. Carson testified that although he voted to use

eminent domain to take the easement on Brock’s land, he regretted that vote.

      Carson also admitted drafting the following language of a response to

Tandy’s open records request:

      Though not required by any law, you may also inform Ms. Tandy
      that communications by and between Jim Carson and Jack Brock
      or any of his business associates can be generally classified as
      either 1) Jim Carson listening to Jack Brock’s telling or retelling of
      the real or perceived wrongs perpetrated by the City of
      Keller—particularly City Manager Lyle Dresher—against Jack Brock,
      his family, and/or his property, or 2) Jim Carson and Jack Brock
      discussing (but not always agreeing on) methods to unseat Mayor
      Julie Tandy and others.

[Emphasis added.] He testified that his conversations with Brock about

unseating Tandy were different from their conversations about the Ad. Carson

is the publisher and primary editor of a web log (“blog”) named “Keller City

Limits.” He posted the draft response on his blog.




                                       22
            c. Analysis

      Less than a scintilla of evidence exists when the evidence is so weak that

it does nothing more than create a mere surmise or suspicion of a fact. Kindred

v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of

evidence exists when the evidence would enable reasonable and fair-minded

people to reach different conclusions. Ford Motor Co., 135 S.W.3d at 601;

Merrell Dow Pharm., Inc. v. Havner, 953 S.W .2d 706, 711 (Tex. 1997). A

genuine issue of material fact is raised by presenting evidence on which a

reasonable jury could return a verdict in the nonmovant’s favor. Moore, 981

S.W.2d at 269.

      Although Brock stated in his affidavit that he believed the contents of the

Ad at the time that he published it, Tandy presented evidence from Brock’s

deposition that he knew at least two of his statements were false (i.e., that

Tandy did not actually vote on the decision to condemn the easement and that

Tandy did not record the allegedly fraudulent plat); that at least one of his

statements was not entirely true (i.e., that Tandy offered to meet with him, but

with conditions he found unacceptable); and that he acted with reckless

disregard as to the effect of his words. See Isaacks, 146 S.W.3d at 162;

WFAA-TV, 978 S.W.2d at 571.




                                      23
      Furthermore, Tandy presented evidence that Brock acted with a lack of

care with regard to the truth or falsity of his statements in that he did no

research on whether Tandy backdated the plat (although he was willing to give

the benefit of the doubt to one of the other signatories) and whether recording

a fraudulent document was actually a felony; that Brock had a motive to have

Tandy replaced as mayor; and that Brock refused to consider any other

possibility besides fraud, even when presented with that possibility by Carson.

See Bentley, 94 S.W.3d at 591, 596. Therefore, we conclude that the trial

court did not err by denying Brock’s motion for summary judgment because

Tandy presented more than a scintilla of evidence of actual malice, and we

overrule Brock’s third issue.

                                IV. Conclusion

      Having overruled Brock’s dispositive issues, we affirm the trial court’s

order, and we order Brock to pay Tandy’s court costs and reasonable attorney’s

fees incurred in this appeal, to be determined by the trial court. See Tex. Civ.

Prac. & Rem. Code Ann. § 51.015 (Vernon 2008). We grant in part and deny

in part Brock’s motion for judicial notice, and we deny his supplemental motion

for judicial notice.


                                           BOB MCCOY
                                           JUSTICE

PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.

DELIVERED: July 2, 2009

                                      24
