                                                                                        ACCEPTED
                                                                                   05-14-01017-CV
                                                                         FIFTH COURT OF APPEALS
                                                                                  DALLAS, TEXAS
                                                                              2/13/2015 4:33:16 PM
                                                                                        LISA MATZ
                          No. 05-14-01017-CV                                                CLERK




                        In the Court of Appeals                  FILED IN
                                                         5th COURT OF APPEALS
            for the Fifth Judicial District at Dallas, Texas	  
                                                             DALLAS, TEXAS
                                                         2/13/2015 4:33:16 PM
                                                               LISA MATZ
                                                                 Clerk


                 JOHN TATUM AND MARY ANN TATUM,
                           Appellants,

                                   v.

            DALLAS MORNING NEWS, INC. AND STEVE BLOW,
                           Appellees.


                           On Appeal from the
               68th District Court of Dallas County, Texas
                        Cause No. DC-11-07371


                    APPELLANTS’ REPLY BRIEF




                                           Joe Sibley
                                           State Bar No. 24047203
                                           sibley@camarasibley.com
                                           CAMARA & SIBLEY, LLP
                                           4400 Post Oak Blvd., Ste. 2700
                                           Houston, Texas 77027
                                           P. (713) 966-6789
                                           F. (713) 583-1131

                                           Counsel for Appellants
ORAL ARGUMENT IS REQUESTED



                                    i
                       CITATION FORMAT

The following citation references will be used in this Brief:

• References to the Clerk’s Record will be cited as “C.R. [page
  number, paragraph number, and/or line number].”

• References to Appellees’ Response will be cited as “Resp. [page
  number].”

• References to Appellants’ Appendix to their original Brief will be
  cited as “App. [exhibit number].”




                                   ii
                                        TABLE OF CONTENTS

CITATION FORMAT .............................................................................................. ii	  

TABLE OF CONTENTS ........................................................................................ iii	  

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

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

POINTS OF REPLY................................................................................................. 3	  

    I.	   OF AND CONCERNING ...................................................................................... 3	  

    II.	   DEFAMATORY MEANING ................................................................................. 5	  

         A.	     Appellees Misrepresent the Tatums’ Libel Claims and the
                  Grounds for Their MSJ ........................................................................ 5	  

         B.	     The Gist of the Column is Defamatory. ............................................... 9	  

                  1.	   The Column is not “rhetorical hyperbole.” ..................................... 9	  

                  2.	   The Hancock opinion does not assist Appellees. .......................... 13	  

                  3.	   Appellees miscite Rutt. ................................................................. 14	  

    III.	  SUBSTANTIAL TRUTH .................................................................................... 15	  

         A.	     An Accurate Portrayal of the Tatums Could Not Have
                  Accused Them of Being Deceptive.................................................... 15	  

         B.	     Whether the Tatums Were Deceptive Can Be Proven False.............. 19	  

    IV.ACTUAL MALICE ........................................................................................... 23	  

    V.	   THE DTPA CLAIM ......................................................................................... 25	  

CONCLUSION AND PRAYER ............................................................................ 27	  

CERTIFICATE OF SERVICE ............................................................................... 28	  

CERTIFICATE OF COMPLIANCE ...................................................................... 28	  



                                                          iii
                                   INDEX OF AUTHORITIES

C ONSTITUTIONS            AND    S TATUTES	  

TEX. CIV. PRAC. & REM. CODE § 73.001............................................................. 4, 13

T EXAS S UPREM E C OURT C ASES	  

Bentley v. Bunton,
  94 S.W.3d 561 (Tex. 2002)........................................................................... 10, 23

Buck v. Palmer,
  381 S.W.3d 525 (Tex. 2012)............................................................................... 23

Celtic Life Ins. Co. v. Coats,
  885 S.W.2d 96 (Tex. 1994)................................................................................. 26

City of Houston v. Clear Creek Basin Auth.,
  589 S.W.2d 671 (Tex. 1979)................................................................................. 8

Ex parte Tucci,
  859 S.W.2d 1 (Tex. 1993)..................................................................................... 4

Hancock v. Variyam,
  400 S.W.3d 59 (Tex. 2013)....................................................................... 7, 13, 14

McConnell v. Southside Indep. Sch. Dist.,
 858 S.W.2d 337 (Tex. 1993)................................................................................. 8

Musser v. Smith Protective Servs., Inc.,
 723 S.W.2d 653 (Tex. 1987)............................................................................... 12

Neely v. Wilson,
  418 S.W.3d 52 (Tex. 2013)........................................................................... 15, 27

Newspapers, Inc. v. Matthews,
  339 S.W.2d 890 (Tex. 1960)............................................................................. 3, 4

Star-Telegram, Inc. v. Doe,
  915 S.W.2d 471 (Tex. 1995)............................................................................... 15


                                                       iv
Travis v. City of Mesquite,
  830 S.W.2d 94 (Tex. 1992)................................................................................... 8

WFAA–TV, Inc. v. McLemore,
 978 S.W.2d 568 (Tex.1998).................................................................................. 6

T EXAS C OURT           OF    A PPEALS C ASES	  

ABC, Inc. v. Gill,
  6 S.W.3d 19 (Tex. App.—San Antonio 1999, pet. denied) .................................. 4

Allied Mktg. Grp., Inc. v. Paramount Pictures Corp.,
  111 S.W.3d 168 (Tex. App.—Eastland 2003, pet. denied) .................................. 3

Am. Heritage Capital, LP v. Gonzalez,
  436 S.W.3d 865 (Tex. App.—Dallas 2014, no pet.)............................................. 6

Morris v. Dallas Morning News, Inc.,
 934 S.W.2d 410 (Tex. App.—Waco 1996, writ denied) .................................... 22

Rogers v. Dallas Morning News, Inc.,
  889 S.W.2d 467 (Tex. App.—Dallas 1994, writ denied) ................................... 26

Sellards v. Express-News Corp.,
  702 S.W.2d 677 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.) ................... 16

Toles v. Toles,
  113 S.W.3d 899 (Tex. App.—Dallas 2003, no pet.)............................................. 6

U NITED S TATES S UPREM E C OURT C ASES	  

Greenbelt Coop. Pub. Ass’n, Inc. v. Bresler,
  398 U.S. 6 (1970) ................................................................................................ 11

U NITED S TATES D ISTRICT C OURT C ASES	  

Crompton Greaves, Ltd. v. Shippers Stevedoring Co.,
  776 F. Supp. 2d 375 (S.D. Tex. 2011) ................................................................ 22

Gateway Logistics Grp., Inc. v. Dangerous Goods Mgmt. Australia Pty, Ltd.,
  No. H–05–2742, 2008 WL 1883914 (S.D. Tex. Apr. 25, 2008) ........................ 10

                                                          v
Glenn v. Daddy Rocks, Inc.,
  171 F. Supp. 2d 943 (D. Minn. 2001) ................................................................... 5

Steaks Unlimited, Inc. v. Deaner,
  468 F. Supp. 779 (W.D. Pa. 1979) ...................................................................... 11

S ISTER S TATE C ASES	  

A.S. Abell Co. v. Kirby,
  176 A.2d 340 (Md. 1961) ................................................................................... 10

Rutt v. Bethlehems Globe Publ’g Co.,
  484 A.2d 72 (Pa. 1984) ....................................................................................... 14

S ECONDARY S OURCES	  

PROSSER ON TORTS § 622 (2d ed. 1955) ................................................................. 10

THAYER, LEGAL CONTROL OF THE PRESS § 66 (3d ed.1956) ................................. 10




                                                        vi
                          PRELIMINARY STATEMENT

      In 2010, no one would have believed that “Iron Mike” Ditka would want to

discourage his grandchildren from playing football because of the effects of

concussions on mental health. Since 2010, however, a number of prominent NFL

players have committed suicide as a result of injuries sustained during their

football careers and the effects these injuries had on their mental capacity. These

events caused both hardened NFL veterans like Ditka and the medical community

to examine more closely the significance of traumatic brain injuries such as

concussions and their link to behavioral abnormalities such as suicide.

      While today’s public is generally familiar with this phenomenon, at the time

that Paul Tatum took his own life in May of 2010, the research evidencing the link

between brain injury to suicidal behavior was just beginning to gain notoriety.

Based on that emerging science—that has since been broadly accepted by the

scientific community—the Tatums attributed Paul’s suicide to head injuries

sustained in a car accident shortly before his behavioral changes that culminated in

suicide. The Tatums have expert testimony that supports their claim that was fully

admitted into evidence.

      The issue in this case is not whether the Tatums were scientifically correct in

reaching that conclusion. This issue is whether the Tatums—as they were accused

of in the Column—were acting with deception in expressing that conclusion in the


                                         1
Obituary. Accusing the Tatums of acting with deception in writing their son’s

obituary in order to mislead others as a means to cover up a suicide, mental illness,

and their own potential responsibility for their son’s death impugns their honesty,

integrity, and virtue and assigns to them a corrupt motive.

      The Tatums have been defamed. As demonstrated in the opening Brief, the

trial court erred in granting summary judgment against them and this case should

be remanded for trial. As discussed in further detail below, Appellees’ attempt to

support the trial court’s judgment in their Brief is wholly unavailing.




                                          2
                               POINTS OF REPLY

 I.   OF AND CONCERNING

      Appellees’ Brief misstates and misleads on whether the Column is “of and

concerning” the Tatums.

      Appellees admit that the Column references Paul Tatum—even though he is

not specifically named—but disputes that it is of and concerning Mr. and Mrs.

Tatum. Resp. 13. What Appellees gloss over, however, is that the Column is

referencing Paul Tatum by criticizing his Obituary. No reasonable reader would

believe that Paul Tatum authored his own Obituary.           The only inference an

ordinary reader could make is that the deceased’s family was the deceptive author.

In fact, Blow understands that the Column is directed toward the Tatum family

when he states in the Column “[l]isten the last thing I want to do is put guilt on the

family of suicide victims.” App. C (emphasis added).

      A publication is “of and concerning the plaintiff” if persons who knew and

were acquainted with him understood from viewing the publication that the

defamatory matter referred to him. Allied Mktg. Grp., Inc. v. Paramount Pictures

Corp., 111 S.W.3d 168, 173 (Tex. App.—Eastland 2003, pet. denied) (citing

Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 894 (Tex. 1960)). Here, the

Tatums have offered evidence that numerous individuals read the Column and

knew it was referring to the Tatums. See C.R. 1924, at ¶ 4; C.R. 1741–52; C.R.


                                          3
1635, at 29:3–22. In fact, many people who had read Paul Tatum’s Obituary in the

preceding weeks knew that the Column was referring to the Tatums. See C.R.

1741, 1743, 1746–47, 1748. On this basis alone, the “of and concerning” element

of the Tatums’ libel claims is satisfied or, at a minimum, there is a fact question on

this issue.1

       Moreover, The News’s own internal documents demonstrate that random

readers of the Column also identified the Tatums. Carol Yancey—who was later

featured by Blow in one of his columns—sent Blow an email on Nov. 30, 2010,

which referred to the “Jesuit family” who did not disclose suicide in the obituary.

C.R. 2126. Since “Jesuit” was not mentioned in the Column, the only place Ms.

Yancey could have learned that the Tatums were a Jesuit family is by cross-

referencing the Obituary that was referenced in the Column.                    Moreover, Ms.


       1
           Appellees’ contention that “[w]hether a plaintiff is referenced in an allegedly
defamatory statement is a question of law” is dubious at best. See Resp. 12. Appellees rely on
ABC, Inc. v. Gill, 6 S.W.3d 19, 34 (Tex. App.—San Antonio 1999, pet. denied). Appellees
correctly point out that this case was disapproved on other grounds by Turner v. KTRK
Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000), however, Appellees do not signal for the Court
in the citation that Gill relies on Matthews.

        The portion of Matthews referenced by the Gill court is construing the predecessor statute
to TEX. CIV. PRAC. & REM. CODE § 73.001, which statutorily defines libel. See Matthews, 339
S.W.2d at 893. The case simply holds that a business owner cannot recover for libel for a
statement that was of and concerning a business and not the business owner because the existing
statute only provided for defamation of a “person” (i.e. a natural person or formal legal entity)
and not for a “business.” See id. at 893. The case does not hold, as the Gill court surmises, that
the “of and concerning” analysis is a pure question of law in every instance. Cf. Ex parte Tucci,
859 S.W.2d 1, 20 (Tex. 1993) (Phillips, C.J., concurring) (noting the common law rule that the
“of and concerning” prong of defamation is a fact question for the jury).

                                                4
Yancey’s impression from the Column was exactly what the Tatums feared readers

would conclude – that they were trying to “cover up” Paul’s suicide to conceal an

overlooked mental illness. See id. Thus, multiple readers of the Column who did

not know the Tatums were able to identify them from the details disclosed in the

Obituary.2

       Accordingly, Appellees Brief fails to rebut the Tatums’ evidence and law

demonstrating that the Column is of and concerning them.

II.    DEFAMATORY MEANING

       A. Appellees Misrepresent the Tatums’ Libel Claims and the Grounds
          for Their MSJ

       Apparently realizing that the body of law clearly favors the Tatums’ position

on defamatory meaning, Appellees have regrettably resorted to serious

misrepresentations in their Brief.

       In their live pleading on file when the Trial Court considered Appellees’

Motion for Summary Judgment (“MSJ”) and when it entered final judgment, the

Tatums pleaded claims for libel and libel per se. C.R. 391–92. The Tatums did

not use the Latin descriptive phrase “per quod” in their pleadings in association


       2
         Appellees’ reliance on Glenn v. Daddy Rocks, Inc., 171 F. Supp. 2d 943, 948 (D. Minn.
2001) is misplaced. In that case, the court held that a flyer referring to a “bar downtown” in
Minneapolis, Minnesota, was not sufficiently descriptive to be “of and concerning” a particular
bar in that city. Id. at 748. Here, there has been specific reference to an Obituary that identifies
the Tatums by name, which was published in the same paper as the Column and which gives
sufficient details (high school student, “recent” death, car accident) to identify the Tatums.

                                                 5
with their conventional libel claim. See id. Most litigants and courts refer to libel

per quod as simply “libel” and that is all the Tatums did here. See, e.g., Am.

Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 874–75 (Tex. App.—Dallas

2014, no pet.) (discussing and referring to libel per quod simply as “libel”).

However, the elements of a conventional libel claim (a.k.a. libel per quod) were

pleaded and the Tatums alleged the defamatory Column damaged them. Compare

id. with WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998) (outlining

same elements of conventional libel claim pleaded by Tatums). In their Response

to the MSJ, the Tatums reiterated the fact that they had brought claims for libel and

libel per se. See C.R. 1300.

       In any event, neither Blow nor The News ever filed any special exception or

other motion directed at those pleadings complaining of any alleged Latin

deficiencies in the Tatums’ pleadings. They would have been required to do so in

order to challenge any alleged pleading defect along these lines. See Toles v.

Toles, 113 S.W.3d 899, 915 (Tex. App.—Dallas 2003, no pet.) (“Generally, a

movant must specially except before urging a motion for summary judgment that

alleges a failure to state a claim, thereby giving the plaintiff an opportunity to

amend deficient pleadings.”).

      Regardless, this issue was never raised or even mentioned in Appellees’

MSJ. See generally C.R. 1186–1220. Appellees did not move for summary

                                         6
judgment on the grounds that that the Colum was not defamatory per se – only on

the grounds that it was not reasonably capable of defamatory meaning. See id.

      These are different inquiries and courts apply different standards in

examining them. In Hancock v. Variyam, 400 S.W.3d 59 (Tex. 2013), the Texas

Supreme Court recently addressed this issue:

      As an initial matter, the parties note we have yet to decide whether the
      determination of a statement as defamatory per se is a question for the
      court or the trier of fact. The court must first determine whether a
      statement is reasonably capable of a defamatory meaning from the
      perspective of an ordinary reader in light of the surrounding
      circumstances. If the statement is not reasonably capable of a
      defamatory meaning, the statement is not defamatory as a matter of
      law and the claim fails. Likewise, the determination of whether a
      statement is defamatory per se is first an inquiry for the court. If the
      court determines that an ordinary reader could only view the statement
      as defamatory and further concludes that the statement is defamatory
      per se, it should so instruct the jury and have the jury determine
      damages.

Id. at 66 (emphasis added) (citations omitted).

      Thus, as reflected in Hancock, a court is first to determine defamatory

meaning. It may then engage in a further analysis to determine whether such

defamatory meaning, if any, rises to the level of per se defamation. See id. Here,

Appellees only moved for summary judgment on the first of these points and did

not ask the Trial Court to make any findings on whether the Column was

defamatory per se. Moreover, Appellees did not move for summary judgment on




                                         7
any element of damages flowing from the Tatums’ libel claims.3 See C.R. 1187–

88. Therefore, the Tatums were not even required to adduce evidence of any

damages or to address whether the Column was libelous per se.4

       In short, the only issue before the Trial Court and before this Court is

whether the Column is capable of defamatory meaning. Whether damages flow

from such defamatory meaning per se or conventionally (per quod) is not a

question that was presented before the Trial Court and, therefore, cannot be before

this Court because a motion for summary judgment must stand or fall on the

grounds expressly presented in the motion. McConnell v. Southside Indep. Sch.

Dist., 858 S.W.2d 337, 341 (Tex. 1993). A trial court may not grant summary

judgment on a ground not presented by the movant in writing. City of Houston v.

Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979). Likewise, on appeal,

the issues reviewed by the appellate court “must have been actually presented to

and considered by the trial court.” Travis v. City of Mesquite, 830 S.W.2d 94, 100

(Tex. 1992).



       3
         And this underscores the fact that Appellees did not raise the per se/per quod issue with
the Trial Court because the only way these distinctions become relevant is with respect to proof
of damages.
       4
          Nevertheless, the Tatums did in fact outline evidence of their mental anguish, emotional
distress, and reputational injury in their Affidavits in support of their Response to the MSJ. See
C.R. 1386–87, at ¶¶ 13–14; C.R. 1394–95, at ¶¶ 13–14 and C.R. 1924, at ¶6 (corroborated by
their minister).

                                                8
      Accordingly, Appellees’ “per se” versus “per quod” argument should be

ignored and the Court should focus only on the issue of whether the Column is

capable of defamatory meaning.

      B. The Gist of the Column is Defamatory.

      Appellees make other arguments that the Column is not reasonably capable

of defamatory meaning, all of which are equally unavailing.

         1. The Column is not “rhetorical hyperbole.”

      In their Brief, Appellees make the frivolous argument that the Column’s

accusation of deception and dishonesty toward the Tatums was not to be taken

seriously, but was instead “rhetorical hyperbole.” See Resp. 19–20. In other

words, according to Appellees, an ordinary reader would not take the accusation of

deception in the Column seriously.

      Besides Blow’s testimony that he knew that the Column would likely bring

reproach on the Tatums, the Column itself acknowledges that it is likely to put

“guilt” on the Tatum family. See App. C. Moreover, the Column closes by stating

that “honesty”—the opposite of deception—saves lives, which suggests not only

that the Tatums were dishonest, but also that the alleged dishonesty resulted in

fatal consequences. See id.    There is nothing rhetorical or hyperbolic about the

Column – it is an indictment of the Tatums and accuses them of a deception that is

a part of an allegedly widespread problem that puts “lives at risk.” See id.


                                          9
        Indeed, Appellees cannot cite to a single case where accusations of

dishonesty were held not to be capable of defamatory meaning.            The Texas

Supreme Court recognized in Bentley v. Bunton, 94 S.W.3d 561, 582 (Tex. 2002)

that:

        The greater number of Courts have held that the imputation of a
        corrupt or dishonorable motive in connection with established facts is
        itself to be classified as a statement of fact and as such not to be
        within the defense of fair comment.

Id. (quoting A.S. Abell Co. v. Kirby, 176 A.2d 340, 343 (Md. 1961) (citing

PROSSER ON TORTS § 622 (2d ed. 1955); THAYER, LEGAL CONTROL OF THE PRESS

§ 66 (3d ed.1956)).

        Consistent with the observation in Bentley, in a case from the Southern

District of Texas, Gateway Logistics Grp., Inc. v. Dangerous Goods Mgmt.

Australia Pty, Ltd., No. H–05–2742, 2008 WL 1883914 (S.D. Tex. Apr. 25, 2008),

the defendant argued—like here—that an email that contained the statement “in

my opinion [plaintiff] has taken the art of lies & deception to a level almost beyond

belief,” was protected opinion and not actionable for defamation. Id. at *11. In

applying Texas law, the court held that this statement was not protected opinion

and was defamatory, citing multiple Texas authorities on this doctrine. See id.

The court also noted that when the term “deceitful” is used in connection with a

specific act, then defamation per se has been committed. See id. (also holding the



                                         10
statement “our relationship with [plaintiff] has been terminated as a result of this

greedy, deceitful, and very stupid plan” as libel and not protected opinion).5

       The cases Appellees rely on to demonstrate rhetorical hyperbole are nothing

like this case. For example, in Bresler, a real estate developer was in negotiations

with the city of Baltimore for the acquisition of land owned by the developer.

Greenbelt Coop. Pub. Ass’n, Inc. v. Bresler, 398 U.S. 6, 7–8 (1970). The hard-

nosed negotiating of the developer caused some in the community to label his

negotiating tactics as “blackmail.” See id. The Court held that no reasonable

reader could really equate this description of hardball negotiating tactics with the

crime of blackmail. See id. at 13–14. The Court characterized this description as

“rhetorical hyperbole” in that no one could possibly believe there were accusations

of an actual crime. See id.

       The holding of Bresler and other “rhetorical hyperbole” cases is, essentially,

that accusing Jerry Jones of committing “highway robbery” with respect to ticket

prices for Dallas Cowboys’ games cannot be actionable defamation because no

reasonable listener or reader would ever equate selling tickets to football games

with the felony offense of robbery.          It does not hold that—like here—when

       5
         Cases from other jurisdictions have likewise held that accusations of deceit and
deception are defamatory. See, e.g., Steaks Unlimited, Inc. v. Deaner, 468 F. Supp. 779, 783
(W.D. Pa. 1979) (holding that that a statement that a vendor of meat engaged in “totally
deceptive and misleading” advertising was defamatory) (cited by Gateway Logistics Group).



                                            11
someone is accused of an actual deceptive or dishonest act that this does not

constitute libel.

       In further support of this specious argument, Appellees rely on Musser v.

Smith Protective Services, Inc., 723 S.W.2d 653 (Tex. 1987) for the proposition

that because the Tatums had the legal right to be deceptive in the Obituary, the

Column cannot be defamatory for accusing them of doing it. In Musser, a plaintiff

sued for libel over a letter from his former employer that accused the employee of

taking business accounts of the former employer with him when he left. See id. at

655. The court noted that this accusation amounted to nothing more than accusing

him of being well qualified in his line of business and taking business with him.

See id. The court found nothing unethical about this conduct, since competition

was essentially the basis of a free market economy and should be expected. The

letter did not include any accusations of violating a non-compete or other illegal

actions. See id. Therefore, it was not deemed capable of defamatory meaning.

See id.

       Musser does not hold, as Appellees suggest, that a person cannot be defamed

so long as they are accused of doing something they had the “legal right” to do.

Musser turned not just on the fact that the plaintiff was not accused of doing

anything illegal, but also unethical. See id. This argument proves far too much

and, indeed, would turn defamation law on its head. People have the “legal right”

                                        12
to be liars and to be dishonest. Lying and dishonesty are—in most cases—not

against the law, but yet still bring the contempt of society. This is why the

Legislature has statutorily defined libel as “a defamation expressed in written or

other graphic form that tends to [...] impeach any person’s honesty, integrity,

virtue, or reputation and thereby expose the person to public hatred, ridicule, or

financial injury.” TEX. CIV. PRAC. & REM. CODE § 73.001. If the Legislature had

intended to restrict libel per se to only those accusations involving a violation of

the law, then the statute would have been worded as such. There is no case or

other authority under any jurisdiction that limits libel to only allegations of illegal

conduct.

      Accordingly, Appellees’ “rhetorical hyperbole” argument should be ignored.

           2. The Hancock opinion does not assist Appellees.

      Appellees rely heavily on the authority of Hancock for the proposition that

accusations of dishonesty are not always defamatory. In that case—unlike here—

the defendant moved for summary judgment on the issue of damages. See

Hancock, 400 S.W.3d at 63.         The Hancock court went on to hold that the

statements at issue in that case were not defamatory per se because they did not

injure the plaintiff in his occupation, as was alleged. See id. at 67–68. The

Hancock court did not hold that the statements at issue that alleged dishonesty

were not defamatory. In fact, the court specifically stated “[h]aving concluded that


                                          13
Hancock’s statements were not defamatory per se, we need not decide whether the

statements were defamatory because—even if they were as a matter of law—there

is no evidence of actual damages.” See id. at 68. As discussed above, damages are

not before this Court because it was not a ground raised in Appellees’ MSJ.

           3. Appellees miscite Rutt.

       Realizing the obvious implications of Rutt v. Bethlehems Globe Publishing

Co., 484 A.2d 72, 74–75 (Pa. 1984), Appellees attempt to downplay the

significance of its holding. Appellees pretend that the Rutt holding turned on the

fact that the news column made “express accusations” against family members.

See Resp. 23. This is false. The libelous column in that case stated that the

plaintiff’s son committed suicide “a couple days after the victim’s father asked him

to leave his home” and uttered before he shot himself “he had no friends and no

one loved him.” Rutt, 484 A.2d at 74. The father claimed that the article defamed

him by giving the impression that his son’s suicide “was a suicide caused by the

lack of love or affection of appellant for his son and was a result of the action of

appellant in asking his son to leave his home.” See id. This was not an express

accusation of responsibility, but was rather—like here—a false impression that a

parent had some responsibility for their son’s suicide.6


       6
         Rutt also held that a private suicide was not a matter of public concern. See 484 A.2d at
80-81. Appellees have presented no evidence that the failure to include suicide in an obituary is
a matter of public concern. Blow’s notion that such omissions are related to suicide prevention
is merely an unsubstantiated assertion and is without any scientific foundation or clinical
                                               14
       For all of these reasons, Appellees’ arguments regarding defamatory

meaning are without merit.

III.   SUBSTANTIAL TRUTH

       To prevail on their substantial truth defense, Appellees would have to

conclusively show7 that the Tatums were deceptive (i.e., intended to mislead

readers into believing something false) in writing the Obituary. Appellees failed to

meet this burden.

       A. An Accurate Portrayal of the Tatums Could Not Have Accused
          Them of Being Deceptive.

       Had the Column told the truth, it would have accurately revealed the reason

for the Tatums’ reference to the car accident was not to deceive readers into

believing there was not a suicide, but rather to inform them of their belief as to the

reason for the suicide – a brain injury sustained in a car accident only hours before




justification. C.R. 1651, at 71:9–72:3; C.R. 1652, at 102:17–23; C.R. 1655, at 112:9–23; C.R.
1658, at 131:5–23; C.R. 1660, at 161:6–162:9. The Tatums have adduced evidence that there is,
in fact, no connection between obituary disclosure and suicide prevention. Id.

        Moreover, a “logical nexus” should exist between the private facts disclosed and the
general subject matter. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 474 (Tex. 1995).
However, these private facts “may be irrelevant when the details are not uniquely crucial to the
case, or when the publisher’s `public concern’ goes to a general, sociological issue.” Id. Here,
Appellees could have made whatever misguided point they sought to make regarding suicide in
obituaries without referencing the Tatums or their Obituary.
       7
         The News bears the summary-judgment burden to conclusively prove that the Column
is substantially true, regardless of who bears the truth/falsity burden at trial. See Neely v. Wilson,
418 S.W.3d 52, 66 n. 21 (Tex. 2013).

                                                 15
Paul Tatum’s death. This would have cast the Tatums in a much more favorable

light than accusing them of deception that “puts more lives at risk.” See App. C.

       Contrary to Appellees’ assertions, there is nothing inconsistent between the

Tatum Obituary’s statement that Paul Tatum died as a result of a brain injury

sustained in a car accident and the death certificate, which states that the

immediate cause of death was a “shotgun wound of the head” and that the manner

of death was “suicide.”8 See App. C. As discussed in the Tatums’ Brief, the death

certificate describes the immediate cause of death and the manner of death – not

what caused the suicide (i.e., the cause of the manner of death). The following

description of various scenarios is instructive.

              a. Scenario “A”

       A man is walking with a loaded shotgun. He trips and falls and the gun

discharges into his head, killing him.

       On the death certificate the immediate cause of death would be “shotgun

would to the head.” The manner of death would be “accidental.”




       8
          Appellees also falsely claim there were “police findings” regarding Paul Tatum’s
suicide. There were not. Appellees are referring to the unofficial statements of one police
officer that expressed his opinion—to Mr. Tatum only no less—regarding the reason for Paul
Tatum’s suicide and this is not relevant. See Sellards v. Express-News Corp., 702 S.W.2d 677,
680 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.) (overhearing unofficial statement from
police officer not sufficient to establish substantial truth as to what police reported).

                                             16
             b. Scenario “B”

       A man is shot in the head with a shotgun fired by an assailant, killing the

man.

       On the death certificate the immediate cause of death would be “shotgun

wound to the head.” The manner of death would be “homicide.”

             c. Scenario “C”

       A man puts a shotgun to his head and pulls the trigger, which kills him.

       On the death certificate the immediate cause of death would be “shotgun

wound to the head.” The manner of death would be “suicide.”

       As discussed in the Tatums’ Brief, this is the extent of what the medical

examiner and death certificate can tell us. The death certificate cannot tell us, and

the medical examiner does not inquire as to, for example, “why” the man tripped

and fell in Scenario A. Did he have a disability? Was he on crutches? Was he

simply clumsy? Likewise, in Scenario B, perhaps the man was murdered in a hate

crime, or maybe it was gang violence. We simply are not told “why” the manner

of death occurred from the death certificate or the medical examiner. Similarly, as

the medical examiners repeatedly stated, they do not determine why, in Scenario C,

a person commits suicide. C.R. 1484, at 117:7–10, 118:7–17; C.R. 1485, at 123:3–

7; C.R. 1490, at 201:14–19, 203:23–204:7; C.R. 1491, at 205:10–13; C.R. 1493, at

215:3–15; C.R. 1498, at 38:10–39:20; C.R. 1500, at 70:9–18.


                                         17
       Let us consider another scenario.

              d. Scenario “D”

       A man is a walking and trips and falls, striking his head that causes a

concussion that, in and of itself, is not life threatening. The concussion disrupts the

man’s mental faculties, which causes him to change his behavior and begin to have

suicidal thoughts. The man then shoots himself in the head with a shotgun.

       On the death certificate, the immediate cause of death would be “shotgun

wound to the head.” The manner of death would be “suicide.”

       Thus, the death certificate here would read exactly the same as in Scenario

C. However, the “but for” or proximate cause of death9 that is not disclosed on the

death certificate, would be the accidental fall that caused the concussion. This does

not make the death “accidental” because the immediate cause of death, the shotgun

wound, did not occur in an accident – it was self-inflicted.

       Here, the Tatums do not contend—as Appellees repeatedly and

disingenuously accuse them of—that Paul Tatum’s death was “accidental.” The

shotgun blast that ended Paul Tatum’s life did not occur in a car accident.

However, the injury that set his suicidal thought process in motion did occur in the


       9
         Both medical examiners testified that if Paul Tatum suffered a brain injury in the car
accident that caused him to commit suicide then the language chosen by the Tatums in the
Obituary is literally true. C.R. 1487–88, at 175:19–176:2, 180:18–25; C.R. 1499, at 54:12–55:9.
However, as stated elsewhere in the Tatums’ briefing the medical examiners do not seek to
answer this question and this is not information that would be included in the death certificate.

                                               18
car accident. This is not something that the death certificate can speak to. Thus,

both the death certificate and the Obituary are accurate and neither contradicts one

another because they are speaking to different subject matter – one deals with the

proximate cause of death and the other deals with the immediate cause and manner

of death.

      It would be no different if, for example, the family members of one of the

NFL players who committed suicide stated in an obituary that they player died “as

a result of injuries sustained playing football.” There is nothing deceptive about

this characterization despite the fact that the official immediate cause of death

would list a gunshot wound.

      Accordingly, Appellees cannot conclusively demonstrate it is substantially

true that the Tatums acted with deception.

      B. Whether the Tatums Were Deceptive Can Be Proven False.

      The Tatums were accused of being deceitful by stating the proximate cause

of their son’s death as opposed to the immediate cause of their son’s death.

Whether the Tatums were deceitful in this respect can be proven true or false

because the jury can look at evidence that supports the Tatums’ belief that brain

injuries sustained in the car accident was the proximate cause of their son’s




                                        19
suicide.10 The Tatums offered expert testimony that was admitted into evidence

that supports this conclusion.11           C.R. 1844-48.        Appellees offered no expert

testimony to contravene these opinions.

       Instead, in a futile attempt to mask the weakness of their position, Appellees

now argue that Paul Tatum was not involved in a car accident after all. See Resp.

34–36.

       Appellees’ argument makes no sense. They argue that because there is no

direct evidence that Paul Tatum was in a car accident and sustained a brain injury,

that it is just as likely that Paul Tatum committed suicide because he was

       10
          In support of this argument, Appellees cite to cases from other jurisdictions deal with
the state of mind of a suicide victim. This is not the issue here, it is the Tatums’—living
persons—state of mind that is at issue and their intentions in writing a suicide victim’s obituary.

        In Texas the law is clear. The imputation of corrupt or dishonorable intentions is
actionable for defamation. See Bentley, 94 S.W.3d at 582-83. Appellees’ argument that a
defamation plaintiff can never sue for being accused of acting with deceptive or corrupt motives
is not only at odds with Texas law, it defies common sense and logic. It makes no sense that a
person can be sued for civil fraud (acting with the requisite mental state of intent to misrepresent)
but that same person cannot bring an action for defamation based on false accusations of fraud
since this would necessarily involve that person’s mental state.

       Likewise, and more to the point here, what sense does it make that the law will allow a
defamation defendant to disprove actual malice by adducing evidence of his or her mental state,
but a defamation plaintiff cannot sue for defamation if the alleged libel involves that plaintiff’s
mental state? This is yet another example of media arrogance by asking this Court to “rig” the
law so far and unfairly in its favor that the prospect of a defamation claim against it becomes a
perfunctory process whereby the media defendant always wins.
       11
           Accessing the “black box” recorder from the Highlander, the Tatums’ biomechanical
engineering expert testified that the crash was in the “top 10%” in terms of severity, more than
sufficient to cause a TBI (i.e., a concussion or worse). C.R. 1812, at ¶¶ 6–8; C.R. 1838–42; C.R.
1825–36. The Tatums’ neurology expert testified that, given the severity of the wreck and the
sudden and dramatic change in behavior following the accident, Paul most likely suffered a TBI
that caused him to commit suicide. C.R. 1844–48.

                                                20
remorseful over the accident. See id. Why would Paul Tatum be remorseful over

an accident that he was not involved in? If he was remorseful over the wreck then

he was necessarily in the wreck, and if he was not in the wreck then he necessarily

could not be remorseful over it.

      The reality is that the evidence overwhelmingly supports the fact that Paul

Tatum was in serious car accident that would have put him at risk for a traumatic

brain injury:

          • Appellees admit that Paul Tatum was in a car accident in the
            Column itself. App. C.

          • The police determined in their official records that Paul Tatum
            was the driver of the Toyota Highlander. C.R. 507, 518–28.

          • Paul Tatum called Clayton Stitch and asked for a ride around 11
            p.m. on the night of May 17, 2010. C.R. 510.

          • No one else had access to the Toyota and there is no evidence
            anyone else was driving the Toyota the night it crashed. C.R.
            1393, at ¶ 8.

          • After Paul’s body was taken to the coroner, the keys to the
            Toyota Highlander were found on his person and returned to
            the Tatums. C.R. 1393, at ¶ 8; C.R. 497.

          • Paul Tatum had bruises on his lower left abdomen consistent
            with those left by a safety belt restraint system after an
            accident. C.R. 454; C.R. 1483, at 45:2–14.

          • The medical examiner’s official documents list Paul Tatum as
            having been in an accident. C.R. 454.




                                        21
       Thus, there is no question that the greater weight of the evidence supports

the conclusion that Paul Tatum was involved in a serious car accident just before

he died.12 This is important and is probative of the Tatums’ alleged deception

because the Column lumped them in the same lot as the authors of the press release

that attributed Ted Pillsbury’s self-inflicted gunshot suicide to a heart attack. See

App. C. Blow made it sound as though the Tatums had fabricated a cause of death

to “cover up” the suicide, when in fact the Tatums were justified in believing that

the car accident was a proximate cause of Paul Tatum’s suicide.13

       In Morris v. Dallas Morning News, Inc., 934 S.W.2d 410, 417 (Tex. App.—

Waco 1996, writ denied), the court concluded that a police officer who was

reported to have beaten a suspect could survive a substantial truth motion for


       12
          This case, unlike the “equal inference” cases relied on by Appellees, does not involve
only “slight” circumstantial evidence. This case involves conclusions from the police and
medical examiners, as well as other corroborating evidence. To conclude that anyone other than
Paul Tatum was the driver of vehicle would be unreasonable. See Crompton Greaves, Ltd. v.
Shippers Stevedoring Co., 776 F. Supp. 2d 375, 390–91 (S.D. Tex. 2011) (applying Texas law
and holding equal inference rule does not apply in case where circumstantial evidence—like
here—is corroborated and points in one direction).
       13
           See id.; C.R. 1654, at 108:18–25. In an eerily similar situation, Austin Trenum, a
popular and well-adjusted adolescent, sustained a concussion in a football game on Friday night
and hung himself within 36 hours. C.R. 1880–93. Prior to the head injury, he was “not
depressed” or upset. Id. Dr. Ann McKee, a neuropathologist and co-director of the Boston
University Center for the Study of Traumatic Encephalopathy reviewed Austin’s pre- and post-
accident behavior and brain tissue both of which revealed a traumatic brain injury, specifically a
“multifocal axonal injury” (i.e., diffuse twisted and broken connections between nerve cells). Id.
“Austin’s case isn’t unique,” Dr. McKee reported. Id. “There have been other sudden
inexplicable suicides following concussions.” Id. “It’s the same pattern,” McKee says. Id. They
have “disordered thinking” resulting from disruptions to the electrochemical signals that
constitute normal brain function. Id.

                                               22
summary judgment on the grounds that the court “must accept Officer Morris’

depiction of his thought processes at the time as the truth.” See id. The officer

stated that he intended only to subdue the victim, not injure him. See id. Here, like

in Morris, this Court must accept the Tatums’ depiction of their state of mind (C.

R. 1386 at ¶ 10; 1394 at ¶ 10) in writing the Obituary and send this matter to a

jury.14

          Accordingly, Appellees cannot demonstrate that the Column is substantially

true.

IV.       ACTUAL MALICE

          Appellees’ brief also fails to demonstrate a lack of actual malice in authoring

the Column for many reasons.

          Blow’s expression of doubt about the “facts” in his Column to the Tatums’

minister (C.R. 1924, at ¶ 5) already provides sufficient evidence of malice.

Additionally, 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.”

Bentley, 94 S.W.3d at 596. A defendant’s “state of mind can—indeed, must

usually—be proved by circumstantial evidence.” Id. Evidence of Blow’s “state of

mind” is seen in the following:

          14
          Likewise, in a non-defamation case, the Texas Supreme Court reaffirmed this
proposition of law in Buck v. Palmer by recognizing affidavit testimony that created a “genuine
issue of material fact as to the [plaintiff’s] intent” and denied summary judgment. 381 S.W.3d
525, 528 (Tex. 2012).

                                              23
• Blow was in a state of “outrage” about the Tatum Obituary. C.R.
  1573.

• Blow described the Tatums as “fair game” for criticism due to their
  allegedly deceptive obituary. C.R. 1455, at 149:5–10.

• Blow was aware when he wrote the Column that his criticism of
  the Tatums “in the wake of death” would hurt them. C.R. 1751.

• Blow criticized parents who had just lost a child with publication
  on Father’s Day, and despite his claim to have been unaware of the
  holiday date, he insisted he still would have published on Father’s
  Day had he known. C.R. 628–29, at 61:22–62:7; C.R. at 1453–54
  at 124:21–126:10.

• Blow admitted that he sensationalized the Column by making an
  example of the Tatums to keep the Column from being, in his own
  words, “tepid and forgettable.” C.R. 1710–11.

• Blow testified that he received 100 positive emails in response to
  the Column including 20 from mental health professionals, which
  is simply a lie as there is no evidence to support receipt of a single
  positive email. C.R. 1451–52, at 101:8–102:21.

• Blow provided publicity for his friend, Julie Hersh, who had
  recently launched a publicity campaign around her self-published
  memoire. C.R. 1554 at 180:8–24; C.R. 1545-46, at 104:20-105:8.

• Blow failed to contact the Tatums which journalism expert Fred
  Brown (C.R. 1576–78, at 122:21–123:17, 202:15–23, 237:7–18;
  C.R. 1913, at ¶¶ 6-8) and DMN editor Bob Mong (C.R. 1423–24,
  at 134:14–137:1; C.R. 1425–26, at 144:11–145:15) agree violates
  basic journalism standards.

• Blow fabricated an excuse for not contacting the Tatums (Contrast
  Blow’s story at C.R. 1446, at 72:16–23; C.R. 1460, at 247:23–
  248:7 contradicted by Tomaso’s and Simpson’s denial at C.R.
  1509–10, at 27:15–28:6 and C.R. 1909–10, at ¶¶ 3–5).

For all of these reasons, Appellees fail to negate actual malice.

                                   24
V.     THE DTPA CLAIM

       Appellees accuse the Tatums of “creatively plead[ing]” around First

Amendment protections by asserting a DTPA claim. Resp. at 49. They claim that

the Tatums’ only complaint is about the Column, and not about the Obituary,

which the Tatums paid for and were satisfied with. Id. This argument fails for two

reasons.

       First, the Tatums’ DTPA claim has nothing to do with the truth or falsity of

the Column. The DTPA misconduct was inducing the Tatums to purchase the

Obituary and to word it however they wished without disclosing that The News

had a columnist on staff with a history of criticizing obituaries.15 Even if the

Tatums told bald-faced lies in the Obituary and the Column were 100% true, the

DTPA claim would still lie because the claim rests on the non-disclosure on the

part of The News. The very act of criticizing a bereaved family’s obituary—

legitimate or not—after inducing them to purchase the obituary and word it as they


       15
          Blow admits that he reads obituaries like a “detective,” looking for “clues to the things
left unsaid.” C.R. 1470. Blow wrote a column criticizing Samuel Knapp for failing to include in
his daughter’s obituary that she was a lesbian and refusing to accept her homosexuality. C.R.
1757; C.R. 1754-55, at ¶2-6. Blow failed to interview Knapp. Id. Blow’s column caused gay
rights protesters to threaten to picket the funeral, and a SWAT team was dispatched to protect
Knapp at the funeral. Id. Knapp, himself a Dallas area law enforcement officer, lacked the
financial resources to pursue legal action against Blow. Id. Blow’s obsession with criticizing
obituaries has obtained international notoriety. C.R.1786–96; C.R. 1758–67; C.R. 1769–84. See
also Blow’s Column “Sin of Omission” which criticized a family for failing to disclose execution
for murder in the obituary and making positive comments about the deceased. C.R. 1468.



                                                25
wish is the basis of the DTPA claim. The Column, in and of itself, is not the basis

of the DTPA complaint – rather it is the fruit of The News’ deceptive conduct that

damaged the Tatums.

      Second, the two causes of action are distinct despite their simultaneous

accrual. A cause of action accrues when “facts come into existence that authorize

a claimant to seek a judicial remedy.” Celtic Life Ins. Co. v. Coats, 885 S.W.2d

96, 100 (Tex. 1994) (explaining that the Plaintiff’s DTPA claim accrued when the

insurer denied coverage, not when the misrepresentation was made that induced

the plaintiff to purchase the policy). Here, the Tatums’ DTPA claim accrued not

when they purchased the Obituary, but when The News published the Column.

C.R. 392–93. So of course they “had no complaints regarding their paid Obituary

until the Column was published.” Resp. at 49 (emphasis in original). They still

have no complaints about the Obituary. Their complaint is based on nondisclosure

of risks that would have made them think twice about buying the Obituary, which

risks were realized when the Column was published.

      Appellees’ reliance on Rogers is misplaced. There, the plaintiff sued The

News under several causes of action including libel, civil conspiracy, IIED, and

tortious interference. Rogers v. Dallas Morning News, Inc., 889 S.W.2d 467, 474

(Tex. App.—Dallas 1994, writ denied). This Court noted that all of the plaintiff’s

claims were grounded in the truth or falsity of the allegedly defamatory statements.

                                        26
Id. The plaintiff could not survive summary judgment on the libel claim because

she could not establish falsity.16 Therefore, the non-libel claims failed as well. Id.

Here, as discussed above, the DTPA and libel claims are not interdependent and do

not depend on the truth or falsity of the Column.

                           CONCLUSION AND PRAYER

       For all of the reasons discussed above and in the Tatums’ Response Brief,

the Court should reverse the MSJ Order and remand the case for trial.




       16
           Rogers is further inapplicable because it placed the summary judgment burden on the
plaintiff to prove falsity. Id. at 472. More recently, the Texas Supreme Court clarified that at
summary judgment, the defendant must conclusively establish truth, regardless of who carries
the truth/falsity burden at trial. See Neely, 418 S.W.3d at 66 n. 21.

                                              27
                       CERTIFICATE OF SERVICE

      I hereby certify that on this 13th day of February 2015, a true and correct
copy of the Appellants’ Reply Brief was sent by email to Appellees’ counsel of
record.



                                     /s/ Joe Sibley
                                     Joe Sibley

                    CERTIFICATE OF COMPLIANCE

     This is to certify that the relevant portions of this computer-generated
Appellant’s Reply Brief contain 7,105 words.



                                     /s/ Joe Sibley
                                     Joe Sibley
                                     Dated: February 13, 2015




                                       28
