      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00051-CV



        Ashley B. Patten; The Patten Law Firm, P.C.; Patten and Karlseng, P.C.;
     Karlseng Law Firm, P.C.; Robert C. Karlseng; Karlseng, LeBlanc & Rich, LLC;
                       and LeBlanc & Karlseng, P.C., Appellants

                                                v.

                              David Christopher Kidd, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
        NO. D-1-GN-09-000090, HONORABLE JEFF L. ROSE, JUDGE PRESIDING



                            M E M O R A N D U M O P I N I ON


               After a bench trial on damages, the trial court awarded appellants1 $400 in damages

on their libel per se claim against David Christopher Kidd. They contend that the award was legally

and factually insufficient and not based on a proper damages model. They further contend that

they were entitled to exemplary damages because Kidd’s statements damaged their professional

reputations. We affirm.

               Appellants include individuals who have past and present business relationships

through the appellant law firms and other businesses. Kidd asserts that he has been a partner with




       1
         Appellants are Ashley B. Patten; the Patten Law Firm, P.C.; Patten and Karlseng, P.C.;
Karlseng Law Firm, P.C.; Robert C. Karlseng; Karlseng, LeBlanc & Rich, LLC; and LeBlanc &
Karlseng, P.C.
and, most recently, an employee of some appellants. Kidd filed this suit after he was fired by the

Patten Law Firm, but later nonsuited his claims.

               Appellants counterclaimed, alleging that Kidd made false and/or misleading

statements that he knew were false, but which he published anyway. Kidd undisputedly posted an

item dated January 11, 2009, on www.ripoffreport.com, a site where consumers can publish

comments or articles about their interactions with businesses. Kidd’s post became the top hit on a

web search for some appellants. Kidd’s post included statements about appellants and others that

appellants cite as defamatory in their motion for summary judgment, including:


       Consumers, real estate and mortgage professionals are encouraged to not use these
       companies as they are engaged in fraudulent activities.

       Ashley Patten and Robert “Bob” Karlseng lost a 22 + Million dollar lawsuit
       in 2/2008 for committing fraud against their business partner Jonathan Cooke. In
       addition to fraud, breach of contract, and conversion all valid transgressions against
       Mr. Cooke, they have wronged several other business partners during the course of
       their nine years in the title insurance business.

       Currently, they are involved in at least two other lawsuits where they have breached
       contracts, violated non-competes and literally used the law to steal companies away
       from their associates and business partners.

       The Texas Department of Insurance, the regulatory body for insurance in Texas, has
       done almost everything they can to run these guys off but they continue to circumvent
       the law and are still practicing attorneys in Texas. In addition, they have used their
       deep pockets to manipulate the title insurance rules, and continue to run title
       operations in Texas and throughout the United States.

       They continue to violate employment agreements and push their other business
       owners into bankruptcy by using State Bar rules in a manner in which they were not
       meant.

       Sending your title business or referring your clients to use these lawyers is a mistake
       as they are only concerned with money and will not be there in the future. Their bad

                                                   2
       reputation will ultimately cause your clients and the end consumer to question
       judgment in the selection process.


Appended to the post is an electronic version of a judgment confirming a $22 million arbitration

award to Jonathan Cooke from Patten, Karlseng, Karlseng Law Firm, and Patten & Karlseng

for those appellants’ fraudulent conduct and breach of contract.2 Kidd later attempted to have his

post removed, but the webmaster declined, stating that removal was against the site’s policy. On

May 29, 2009, Kidd filed an update in which he noted that the arbitration award had been reversed

and remanded for further proceedings,3 and that Patten and Karlseng “are not judicially guilty of

fraud, breach of contract, and conversion, nor are the law firms mentioned in the original report.”

He stated that


       the Patten Law Firm, Claude Rich, Maverick National Services, and Claude Rich the
       fee attorney for Capital Title were never accused or sued for Fraud, Breach of
       Contract or conversion nor are they presently being accused or sued for such
       things. . . . [T]he author has no knowledge of any cases pending or otherwise that
       would implicate these parties of any fraud or conversion.




       2
        The text of the purported judgment appended to the post is identical to the copy of the
judgment in Cooke v. Karlseng, No. 06-02783-L (193rd Dist. Ct., Dallas County, Feb. 22, 2008),
appended to appellants’ motion for summary judgment.
       3
          The Dallas court of appeals reversed the trial court’s confirmation of the arbitration award
after concluding that the trial court abused its discretion by denying appellants’ motion for
continuance to investigate the evident partiality of the arbitrator. Karlseng v. Cooke, 286 S.W.3d
51, 58 (Tex. App.—Dallas 2009, no pet.). The court found that the trial court should have granted
the continuance after being presented uncontradicted evidence that the arbitrator failed to disclose
a prior relationship with Cooke’s lead counsel. Id. at 52. The court remanded the cause to the
trial court for further proceedings. Id. at 58.

                                                  3
Kidd also stated that he was aware of only one lawsuit pending against Patten and Karlseng for

breach of contract other than the Cooke suit, and that “[t]here is currently no Judicial action pedning

[sic] or otherwise that would conclusively implicate the above parties for any wrong doing in any

capacity.” Appellants argued that these statements disparage them in their professional capacity and

are, therefore, libelous per se. The trial court granted summary judgment on liability only, and the

case proceeded to a trial on damages before the court.4

               The trial court heard testimony from Tiffany Stillwell, the Patten Law Firm’s

director of business development; Ashley Patten, the Patten Law Firm’s name partner; Claude Rich,

appellants’ attorney who testified on behalf of Karlseng, LeBlanc & Rich; and Kidd. After

reviewing additional briefing on damages, the trial court ordered that appellants “recover damages

from Counter-Defendant, David Christopher Kidd, in the amount of $400.00” without specifying if

any of the award was for exemplary damages. No findings of fact or conclusions of law were

requested or filed.

               Appellants contend on appeal that the evidence showed they deserved more than

$400 in total damages. They contend that the evidence is legally and factually insufficient to support

this “paltry” award, and argue that the trial court erred by not applying a proper damages model in

a libel per se case. They contend that, even if the evidence were legally and factually sufficient to

support an award of only $400 in actual damages, Kidd’s evident malice would entitle them to an

award of exemplary damages.




       4
          Visiting Judge Gus Strauss presided over the summary judgment on liability, while
Judge Jeff Rose presided over the trial on damages.

                                                  4
               In a nonjury trial where, as in this case, no findings of fact or conclusions of law are

filed or requested, we will infer that the trial court made all the necessary findings to support its

judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). Because a reporter’s

record was filed, these implied findings may be challenged for evidentiary sufficiency. Id. at 84.

The standards of review are the same as those applied to jury findings and a court’s express findings

of fact. Wade v. Commission for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex. App.—Houston

[1st Dist.] 1997, no writ). When the implied findings of fact are supported by the evidence, we

must affirm the judgment on any theory of law applicable to the case. In re W.E.R., 669 S.W.2d 716,

717 (Tex. 1984).

               When reviewing a legal sufficiency finding, we examine the record for evidence

supporting the finding that reasonable jurors could believe, disregarding all contrary evidence that

reasonable jurors could ignore. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). If no

evidence supports the finding on an issue on which the appellant bore the burden of proof, we review

to see if the contrary proposition is established as a matter of law. Dow Chem. Co. v. Francis,

46 S.W.3d 237, 241 (Tex. 2001). If the proposition contrary to the verdict is established as a

matter of law, we must render judgment for that proposition. Id.

               When reviewing a challenge to the factual sufficiency of the evidence supporting a

judgment, we consider and weigh all the evidence, both supporting and against the findings, in order

to decide whether the award should be set aside. Pool v. Ford Motor Co., 715 S.W.2d 629, 635

(Tex. 1986). A party attacking the factual sufficiency of an adverse finding on an issue on which

it has the burden of proof must demonstrate on appeal that the adverse finding is against the



                                                  5
great weight and preponderance of the evidence. Dow, 46 S.W.3d at 242. We can set aside a verdict

only if the evidence is so weak or if the finding is so against the great weight and preponderance of

the evidence that it is clearly wrong and unjust. See Pool, 715 S.W.2d at 635. We will uphold the

award unless it is so against the great weight and preponderance of the evidence that it is manifestly

unjust or shocks the conscience. Id. We may not substitute our judgment for that of the fact-finder.

Id. The fact-finder is the sole judge of the credibility of witnesses and the weight to be given to their

testimony. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

                With defamatory per se statements, general damages for injury to character,

reputation, feelings, mental suffering or anguish, or other wrongs not susceptible to monetary

valuation are presumed, although the damages awarded may be nominal. Texas Disposal Sys.

Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 584 (Tex. App.—Austin 2007,

pet. denied). General damages include mental anguish and injury to a person’s reputation that

naturally flow from the libel. Morrill v. Cisek, 226 S.W.3d 545, 550 (Tex. App.—Houston

[1st Dist.] 2006, no pet.). Once injury to reputation is established, a defamed person may recover

general damages without proof of other injury. Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d

369, 374 (Tex. 1984). In a case where the amount of the actual damages is not capable of

definite ascertainment, and prima facie liability is established, the determination of the amount

is necessarily lodged in the discretion of the fact-finder. Bradbury v. Scott, 788 S.W.2d 31, 39

(Tex. App.—Houston [1st Dist.] 1989, writ denied) (citing Freeman v. Schwenker, 73 S.W.2d 609,

611 (Tex. Civ. App.—Austin 1934, no writ)).




                                                   6
                Although appellants’ witnesses’ testimony centered on reaction to Kidd’s post on

www.ripoffreport.com, they also testified about emails he sent to firm employees and other actions.

After being fired, Kidd filed employment discrimination claims, a complaint with the state bar, and

two lawsuits against one or more appellees. He wrote posts on websites and sent numerous emails

and faxes to the Patten Law Firm’s office. Stillwell testified that Kidd also sent an email to the

entire firm stating that he had been wronged by Patten, that their reputation would be stained by

employment at the Patten Law Firm, and that they would be unable to obtain employment elsewhere

as a result. The court admitted an email from Kidd to Patten and others stating, “I wanted to hurt

you in that article, I wanted you to suffer.” Patten testified that reputation was critical in his business

because regulations require that all title insurance companies must charge the same price. He

testified that, whenever a client or potential client researches him or his firm, the www.ripoffreport

post comes up and he has to explain it away rather than explain the value of his services. He testified

that he cannot measure the damages in money because he does not know how many clients will

not return his calls or will move on to another title company. He stated that he could try to hire a

public relations firm to make www.ripoffreport.com not the first hit on a web search. He asserted

that a lawsuit against www.ripoffreport.com could cost several hundred thousand dollars.

                Claude Rich testified that he had to field questions from family, friends, current

customers and clients, and former customers and clients about the www.ripoffreport.com post. He

said that someone reads the post every day. He testified that his current law firm lost a relatively

large client as a result of the post. He said that he explained to the client that Kidd had filed false

and misleading information to injure anyone associated with Karlseng and Patten, and assured the



                                                    7
client that the post should not affect their business relationship. The client’s assistant later told Rich

that the client could not put his reputation in question by continuing to do business with him. Rich

believed that Kidd’s statements were the cause. Rich testified that the loss was more than $10,000

per month. On cross-examination, Rich conceded that the client had not specifically told him

that the post was the reason he was no longer going to use the firm. He also acknowledged that the

www.ripoffreport.com post referred to an arbitration award against some appellants that was

appealed and affirmed by the trial court, but he was not sure of the current status of that judgment.

He also acknowledged that there was a finding of breach of contract by Karlseng and Patten as well

as an indication of fraud.

                Kidd testified that he asserted in the www.ripoffreport.com post that appellants

committed theft against Cooke because he believed that appellants had stolen assets from him

during business dealings, and it was “safe to assume” that Cooke’s assets were stolen too. He

conceded that the trial court did not specifically find theft, but argued that it could be “covered” by

the fraud finding. He was not certain whether there was a finding of conversion (there was not).

Kidd testified that in his post he named several legal entities in addition to the defendants in the

Cooke suit because Patten and Karlseng have “a long history of creating and dissolving legal entities

to avoid prosecution in lawsuits for fraud and various other things.” He felt it important for

the public to know of the various entities that were formed by the individuals even though they

were not parties to the Cooke judgment. He testified that he was sure that a suit against

www.ripoffreport.com would be “cost prohibitive.”




                                                    8
                Appellants have not shown that the great weight and preponderance of the evidence

shows that the damage award is so inadequate that it is manifestly unjust or shocks the conscience.

Appellants cite damage awards in cases in which testimony showed that defamatory communications

caused questions to be raised and concerned phone calls to be made about the subject matter of the

communications. Morrill, 226 S.W.3d at 550-51 ($25,000 award upheld); Bradbury, 788 S.W.2d

at 34 ($40,000 award upheld). Those cases do not control here, however, because appellants

are asking us to find that the trial court erred in its damage award. That one fact-finder’s five-figure

damage award did not shock one appellate court’s conscience does not mean that this fact-finder’s

three-figure damage award must shock the conscience in this case. The summary judgment

conclusion that Kidd is “liable” does not mean that he is responsible for every loss appellants

suffered. Although damages from libel per se are presumed and need not be specifically proven,

there was no evidence of a discrete $400 damage to appellants. There was not clear testimony

regarding damages to each appellant. There was general testimony that some appellants endured

multiple inquiries about and explanations of the www.ripoffreport.com post, but there was almost

no evidence of quantified damages attributed to Kidd’s writing the post. Rich testified that Kidd’s

post caused a $10,000/month client to change title companies. However, on cross examination, Rich

admitted that he had no direct knowledge that Kidd’s writings caused that client to move its

business. Further, it is not clear whether the inquiries and loss of business were prompted by Kidd’s

comments or the text of the Dallas district court’s order confirming the arbitration award including

the $22 million judgment for breach of contract and fraud. Because the court has found Kidd liable

for libel per se, appellants are entitled to at least nominal damages. Texas Disposal Sys., 219 S.W.3d



                                                   9
at 584. Beyond that, because the damage caused by Kidd to appellants’ psyches, reputations, and

businesses is difficult to quantify, determination of the amount of actual damages is necessarily

lodged in the discretion of the fact-finder. Bradbury, 788 S.W.2d at 39; Freeman, 73 S.W.2d at 611.

Appellants have not demonstrated that the trial court’s determination was error.

               Appellants contend that the trial court erred in not applying a proper damages model

in a libel per se cause of action. They do not offer such a model except to assert that $57.15

per appellant is paltry. They concede that the amount of their damages is unquantifiable, but contend

that the court misquantified it. Appellants have not shown error.

               Appellants contend that they clearly established that Kidd acted with malice, entitling

them to exemplary damages. The record does not reflect that appellants called to the trial court’s

attention the alleged omission5 of exemplary damages through post-judgment motion such as a

motion to modify, correct, or reform the judgment, a motion for new trial, or a request for findings

of fact and conclusions of law. Appellants failed to preserve this error for review on appeal. See

Briggs Equip. Trust v. Harris County Appraisal Dist., 294 S.W.3d 667, 674 (Tex. App.—Houston

[1st Dist.] 2009, pet. filed); see also Air Park-Dallas Zoning Comm. v. Crow Billingsley Airpark,




       5
          The trial court awarded “damages.” It is not clear whether this award was limited to
actual damages or also included exemplary damages. There are no separate findings of fact
and conclusions of law clarifying that issue. Regardless, the amount of exemplary damages is
largely within the trial court’s discretion. Ethicon, Inc. v. Martinez, 835 S.W.2d 826, 835
(Tex. App.—Austin 1992, writ denied). But see Tex. Civ. Prac. & Rem. Code Ann. § 41.008
(West Supp. 2009), § 41.010 (West 2008). Even if the trial court awarded a total of $400 in actual
and exemplary damages and that decision were preserved for appeal, we conclude that this record
does not require that we reverse that award.

                                                 10
Ltd., 109 S.W.3d 900, 912 (Tex. App.—Dallas 2003, no pet.); WLR, Inc. v. Borders, 690 S.W.2d

663, 668-69 (Tex. App.—Waco 1985, writ ref’d n.r.e.); see generally Tex. R. App. P. 33.1.

              Affirmed.




                                           G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: August 18, 2010




                                              11
