John Tatum and Mary Ann Tatum v. the Dallas Morning News, Inc. and Steve Blow ( 2015 )

AFFIRM in Part, and REVERSE and REMAND, Opinion Filed December 30, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01017-CV
JOHN TATUM AND MARY ANN TATUM, Appellants
V.
THE DALLAS MORNING NEWS, INC. AND STEVE BLOW, Appellees
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-11-07371
OPINION
Before Justices Lang, Fillmore, and Whitehill
Opinion by Justice Whitehill
Appellants John and Mary Ann Tatum sued appellees Steve Blow and The Dallas
Morning News (DMN) for libel regarding a column that Blow wrote and DMN published one
month after the Tatums’ son Paul committed suicide. The column, captioned “Shrouding suicide
leaves its danger unaddressed,” criticized people who are dishonest about loved ones’ suicides.
Although the column did not mention the Tatums by name, it quoted from Paul’s obituary and it
described him and events surrounding his death. People who were familiar with the situation
understood the column to refer to Paul and his parents. In addition to their libel claims, the
Tatums also asserted DTPA claims against DMN.
Appellees won a take-nothing summary judgment.
In two appellate issues, the Tatums urge that the trial court erred in granting the summary
judgment dismissing their libel and DTPA claims.
We conclude that summary judgment was proper as to the Tatums’ DTPA claims but not
as to their libel claims. Accordingly we affirm in part, reverse in part, and remand the case to the
trial court for further proceedings consistent with this opinion.
I. BACKGROUND
A. Factual Allegations.
We draw this factual recitation from the allegations in the Tatums’ live petition:
The Tatums were Paul Tatum’s parents. In May 2010, Paul was a seventeen-year-old
high school student. He was an excellent and popular student, an outstanding athlete, and had no
history of mental illness.
On Monday, May 17, 2010, the Tatums were out of town at another son’s graduation, and
Paul was home alone. That night, Paul was involved in a one-car automobile accident. After the
accident, he began sending incoherent text messages to friends.
He made his way home from the accident scene and began drinking champagne. He then
called a friend, and their conversation prompted her and her mother to drive to the Tatums’
house during the early morning hours of May 18. Paul’s friend went in the house and found Paul
“dazed, confused, irrational, incoherent, and apparently in physical anguish and holding one of
the family’s firearms.” Paul’s friend left him alone to tell her mother the situation, and as she
left she heard a gunshot. Paul died from a gunshot wound to the head.
The Tatums wrote an obituary for Paul and paid DMN to publish the obituary in the
Dallas Morning News newspaper. Believing that Paul’s suicide was caused by a brain injury he
sustained in the earlier automobile accident, the Tatums stated in the obituary that Paul died “as a
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result of injuries sustained in an automobile accident.” The obituary was published on May 21,
2010.
One month later, on Father’s Day, June 20, 2010, DMN published a column written by
Blow. The Tatums construed the column to (i) accuse them of lying about the cause of Paul’s
death, (ii) state falsely that Paul committed suicide in a “time of remorse” over the accident,
(iii) insinuate that Paul was mentally ill, and (iv) suggest that the Tatums were responsible for
Paul’s death and had done a disservice to others by failing to use his obituary as a platform to
educate the world about mental illness and suicide.
Additionally, the summary judgment evidence established that the Tatums were out of
town the day the column was published. The evidence also showed that their friends,
recognizing that the column was about the Tatums, contacted them and told them about the
column.
This lawsuit followed.
B. The Column.
The summary judgment evidence included a copy of the printed version of the newspaper
column that prompted this suit. The column’s headline was “Shrouding suicide leaves its danger
unaddressed.” (Emphasis added). There was a page break in the middle of the column, and a
slightly different headline appeared over the remainder of the column when it resumed on
another page: “Shrouding suicide in secrecy leaves its danger unaddressed.” The column, with
emphasis added, stated as follows:
So I guess we’re down to just one form of death still considered worthy of
deception.
I’m told there was a time when the word “cancer” was never mentioned.
Oddly, it was considered an embarrassing way to die.
It took a while for honesty to come to the AIDS epidemic. Ironically, the
first person I knew to die of AIDS was said to have cancer.
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We’re open these days with just about every form of death except one—
suicide.
When art expert Ted Pillsbury died in March, his company said he
suffered an apparent heart attack on a country road in Kaufman County.
But what was apparent to every witness on the scene that day was that
Pillsbury had walked a few paces from his car and shot himself.
Naturally, with such a well-known figure, the truth quickly came out.
More recently, a paid obituary in this newspaper reported that a popular
local high school student died “as a result of injuries sustained in an automobile
accident.”
When one of my colleagues began to inquire, thinking the death deserved
news coverage, it turned out to have been a suicide.
There was a car crash, all right, but death came from a self-inflicted
gunshot wound [page break] in a time of remorse afterward.
And for us, there the matter ended. Newspapers don’t write about suicides
unless they involve a public figure or happen in a very public way.
But is that always best?
I’m troubled that we, as a society, allow suicide to remain cloaked in such
secrecy, if not outright deception.
Some obituary readers tell me they feel guilty for having such curiosity
about how people died. They’re frustrated when obits don’t say. “Morbid
curiosity,” they call it apologetically.
But I don’t think we should feel embarrassment at all. I think the need to
know is wired deeply in us. I think it’s part of our survival mechanism.
Like a cat putting its nose to the wind, that curiosity is part of how we
gauge the danger out there for ourselves and our loved ones.
And the secrecy surrounding suicide leaves us greatly underestimating the
danger there.
Did you know that almost twice as many people die each year from
suicide as from homicide?
Think of how much more attention we pay to the latter. We’re nearly
obsessed with crime. Yet we’re nearly blind to the greater threat of self-inflicted
violence.
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Suicide is the third-leading cause of death among young people (ages 15
to 24) in this country.
Do you think that might be important for parents to understand?
In part, we don’t talk about suicide because we don’t talk about the illness
that often underlies it—mental illness.
I’m a big admirer of Julie Hersh.[ 1] The Dallas woman first went public
with her story of depression and suicide attempts in my column three years ago.
She has since written a book, Struck by Living. Through honesty, she’s
trying to erase some of the shame and stigma that compounds and prolongs
mental illness.
Julie recently wrote a blog item titled “Don’t omit from the obit,” urging
more openness about suicide as a cause of death.
“I understand why people don’t include it,” she told me. “But it’s such a
missed opportunity to educate.”
And she’s so right.
Listen, the last thing I want to do is put guilt on the family of suicide
victims. They already face a grief more intense than most of us will ever know.
But averting our eyes from the reality of suicide only puts more lives at
risk.
Awareness, frank discussion, timely intervention, treatment—those are the
things that save lives.
Honesty is the first step.
C. Procedural History and Appellate Issues.
The Tatums sued both appellees for libel and libel per se. They also sued DMN for
DTPA violations. DMN counterclaimed for its attorneys’ fees under the DTPA.
Appellees filed a traditional and no-evidence summary judgment motion. About three
months later, they filed an amended traditional and no-evidence summary judgment motion. The
Tatums timely responded.
1
The Tatums sued Julie Hersh in a separate lawsuit. That lawsuit was dismissed, and the Tatums appealed. That appeal is also being
decided today, John Tatum and Mary Ann Tatum v. Julie Hersh, No. 05-14-01318-CV.
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The trial court granted appellees’ amended summary judgment motion, and the Tatums
timely filed a notice of appeal. The court then vacated its judgment and stayed the case pending
the resolution of a defamation case then pending in the Texas Supreme Court. The trial court
later lifted the stay and again rendered a take-nothing summary judgment against the Tatums.
The court also dismissed DMN’s counterclaim with prejudice. The court did not state the basis
for any of its rulings. The Tatums timely filed a second notice of appeal.
The Tatums assert two appellate issues: (1) The trial court erred by granting summary
judgment on their libel claims; and (2) the trial court erred by granting summary judgment on
their DTPA claims. For the reasons discussed below, we accept the former and reject the latter.
II. STANDARD OF REVIEW
We review a summary judgment de novo. Neely v. Wilson, 418 S.W.3d 52, 59 (Tex.
2013). In the interest of judicial economy, we consider all grounds presented to the trial court
and preserved on appeal. Id. at 60.
When reviewing a traditional summary judgment for a defendant, we determine whether
the defendant conclusively disproved an element of the plaintiff’s claim or conclusively proved
every element of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425
(Tex. 1997). We must take evidence favorable to the nonmovant as true, and we must indulge
every reasonable inference and resolve every doubt in the nonmovant’s favor. Sysco Food
Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994) “A matter is conclusively established
if ordinary minds could not differ as to the conclusion to be drawn from the evidence.” In re
Estate of Hendler, 316 S.W.3d 703, 707 (Tex. App.—Dallas 2010, no pet.).
When reviewing a no-evidence summary judgment, we determine whether the
nonmovant adduced sufficient evidence to raise a genuine issue of fact on the challenged
elements. Smith v. Deneve, 285 S.W.3d 904, 909 (Tex. App.—Dallas 2009, no pet.). We review
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the evidence in the light most favorable to the nonmovant, crediting evidence favorable to that
party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors
could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A no-evidence
summary judgment should be reversed if the evidence is sufficient for reasonable and fair-
minded jurors to differ in their conclusions. Anderton v. Cawley, 378 S.W.3d 38, 46 (Tex.
App.—Dallas 2012, no pet.).
III. ANALYSIS
A. Issue One: Did the trial court err by dismissing the Tatums’ libel claims?
The Tatums’ first appellate issue argues that the trial court erred by granting summary
judgment on their libel claims. We agree with the Tatums.
1. Applicable Law.
Defamation has two forms: slander and libel. Austin v. Inet Techs., Inc., 118 S.W.3d 491,
496 (Tex. App.—Dallas 2003, no pet.). Slander is an oral defamation. Id. This case involves
libel, which is a defamation expressed in written or other graphic form. See TEX. CIV. PRAC. &
REM. CODE ANN. § 73.001 (West 2011).
If, as concerns the present case, the plaintiff is a private individual rather than a public
official or public figure, the elements of defamation are: (1) the defendant published a statement,
(2) the statement was defamatory concerning the plaintiff, and (3) the defendant acted with
negligence regarding the statement’s truth. 2 Neely, 418 S.W.3d at 61; WFAA-TV, Inc. v.
McLemore, 978 S.W.2d 568, 571 (Tex. 1998). The plaintiff must also prove damages unless the
defamatory statements are defamatory per se. In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015)
(orig. proceeding).
2
If the plaintiff is a public official or a public figure, the required culpability is elevated from negligence to actual malice; that is, the
plaintiff must prove that the defendant published the defamatory statement with knowledge that it was false or with reckless disregard as to
whether it was true or false. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). Moreover, a public figure must prove actual
malice by clear and convincing evidence. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 119 (Tex. 2000).
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A statement is defamatory if it tends to (i) injure a person’s reputation, (ii) expose him to
public hatred, contempt, ridicule, or financial injury, or (iii) impeach his honesty, integrity, or
virtue. Am. Heritage Capital, LP v. Gonzalez, 436 S.W.3d 865, 875 (Tex. App.—Dallas 2014,
no pet.); see also CIV. PRAC. § 73.001.
Examples of defamation per se include (i) accusing someone of a crime, (ii) accusing
someone of having a foul or loathsome disease, (iii) accusing someone of serious sexual
misconduct, and (iv) disparaging another’s fitness to conduct his or her business or trade. In re
Lipsky, 460 S.W.3d at 596.
To be actionable defamation, a statement must be a statement of verifiable fact rather
than opinion. See Neely, 418 S.W.3d at 62 (“[S]tatements that are not verifiable as false cannot
form the basis of a defamation claim.”); see also Am. Heritage Capital, 436 S.W.3d at 875; Main
v. Royall, 348 S.W.3d 381, 389 (Tex. App.—Dallas 2011, no pet.). But a statement couched as
an opinion may be actionable if it expressly or implicitly asserts facts that can be objectively
verified. Avila v. Larrea, 394 S.W.3d 646, 658 (Tex. App.—Dallas 2012, pet. denied).
We construe an allegedly defamatory publication as a whole in light of the surrounding
circumstances and based on how a person of ordinary intelligence would perceive it. Turner, 38
S.W.3d at 114. The hypothetical “person of ordinary intelligence” is one who exercises care and
prudence, but not omniscience, when evaluating an allegedly defamatory communication. New
Times, Inc. v. Isaacks, 146 S.W.3d 144, 157 (Tex. 2004).
Placing the burden of proving truth or falsity is a complex matter. The Supreme Court
has held that a defamation plaintiff must prove falsity if (i) the plaintiff is a public figure, or
(ii) the defendant is a media defendant and the statement involves a matter of public concern.
Milkovich v. Lorain Journal Co., 497 U.S. 1, 16, 19–20 & n.6 (1990); Phila. Newspapers, Inc. v.
Hepps, 475 U.S. 767, 775–76 (1986); see also Turner, 38 S.W.3d at 116; Klentzman v. Brady,
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456 S.W.3d 239, 263–64 (Tex. App.—Houston [1st Dist.] 2014, pet. pending). In cases not
covered by these mandates, Texas has generally made truth an affirmative defense to defamation.
See CIV. PRAC. § 73.005(a) (truth is a defense to a libel action); see also Neely, 418 S.W.3d at 62
(mentioning “the defense of truth” and citing § 73.005); Randall’s Food Mkts., Inc. v. Johnson,
891 S.W.2d 640, 646 (Tex. 1995) (“In suits brought by private individuals, truth is an affirmative
defense to slander.”) (footnote omitted).
But recent Texas defamation cases may suggest that the plaintiff always has the burden of
proving falsity. In Lipsky, for example, the supreme court said, “Defamation’s elements include
(1) the publication of a false statement of fact to a third party . . . .” 460 S.W.3d at 593
(emphasis added). We recently cited Lipsky and placed the burden of proving falsity on the
plaintiff in a libel case involving the Texas Citizens Participation Act, CIV. PRAC. §§ 27.001–
.011. See D Magazine Partners, L.P. v. Rosenthal, No. 05-14-00951-CV, 2015 WL 5156908, at
*5, *8 (Tex. App.—Dallas Aug. 28, 2015, pet. filed). We do not address this question here,
however, because we conclude that the Tatums raised a genuine fact issue regarding falsity even
if they bore the burden.
2. Summary Judgment Grounds.
Appellees asserted several summary judgment grounds. Their traditional grounds were:
• The column was not “of and concerning” the Tatums.
• The column was not capable of the defamatory meaning ascribed by the
Tatums.
• The column was true or substantially true.
• The column was privileged as a fair, true, and impartial account of official
proceedings.
• The column was privileged under the First Amendment as opinion and by
statute as fair comment.
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• Appellees negated actual malice, defeating the Tatums’ libel claims
entirely if they are limited-purpose public figures and defeating their
exemplary damage claims if they are private figures.
Appellees’ no-evidence grounds were:
• There was no evidence that appellees published a false statement of fact.
• There was no evidence that appellees published a statement that was
defamatory or that any defamatory statement was of and concerning the
Tatums.
• There was no evidence of actual malice.
• To the extent a negligence standard applies, there was no evidence of
negligence.
3. Did the Tatums raise a genuine fact issue regarding whether the column was
about them?
A defamation plaintiff must prove that the allegedly defamatory statement referred to him
or her. Newspapers, Inc. v. Matthews, 339 S.W.2d 890, 893 (Tex. 1960). In that regard, the
statement must point to the plaintiff and to no one else. Id. at 894. “A statement does not have
to refer to the plaintiff by name, however, if people who know and are acquainted with the
plaintiff reasonably understand from reading the statement that it referred to the plaintiff.” Main,
348 S.W.3d at 395; see also Houseman v. Publicaciones Paso del Norte, S.A., 242 S.W.3d 518,
525 (Tex. App.—El Paso 2007, no pet.) (“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.”).
Here, the column did not mention Paul or the Tatums by name. But, after discussing a
situation three months earlier in which a famous person’s company falsely reported his suicide as
an apparent heart attack, it did say that a recent suicide was described in an obituary as having
been the result of a car accident:
More recently, a paid obituary in this newspaper reported that a popular local high
school student died “as a result of injuries sustained in an automobile accident.”
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Thus, a threshold question is whether the Tatums presented evidence sufficient to raise a genuine
fact issue as to whether people who knew the Tatums would reasonably understand that the
column referred to them. For the reasons discussed below, we conclude that they did.
The Tatums’ response relied on the following evidence:
One, John Tatum testified by affidavit that his friend Lee Simpson called to inform him
about the column the day it was published.
Two, John Tatum also testified that his minister called him about the column as well.
Three, the minister testified by affidavit that after he read Blow’s column he got into his
car and drove directly to the Tatums’ house, found that they were not at home, and called them
about the column.
These affidavits create a reasonable inference that persons who knew the Tatums also
knew that the column referred to them.
Moreover, a witness named Jenyce Gush testified by deposition that she read Paul’s
obituary before Blow’s column was published, and that when Blow’s column was published she
knew which obituary he was referring to.
Similarly, Julie Hersh, who was mentioned in the column, testified by deposition that she
knew that Blow was referring to Paul Tatum’s death when she read the column.
The Tatums also filed copies of a number of emails bearing on the subject. One was an
email to Blow in which the author wrote, “He [Paul] was a popular and accomplished young man
and many people understood to whom you referred.”
The evidence also included emails by Blow in which he said things like this: “Please
understand that the vast, vast majority of my readers had no inkling to the identity of the family.
And those who did know were already aware of the confusion caused by the obituary. My
column told them nothing they didn’t already know.” And, in his deposition, Blow testified that
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he thought that people who knew both what the obituary said and that Paul shot himself would
recognize the reference in his column.
Viewing the evidence in the light most favorable to the Tatums, we conclude that a
reasonable person could find that people who knew the Tatums would reasonably understand
that the column referred to the Tatums.
Our decision in Backes v. Misko, No. 05-14-00566-CV, 2015 WL 1138258 (Tex. App.—
Dallas Mar. 13, 2015, pet. denied), further supports this conclusion. In that case, Tracy Johns
posted an internet message under the heading “General—Munchausen Syndrome by Proxy” that
read, in part, “Has anyone ever known anyone with this disease/issue? If you have STRONG
suspicions . . . to whom do you turn them over?” Id. at *4. Karen Misko took the post to be
directed at her and sued Johns for libel. Id. at *5. In response to Johns’s dismissal motion under
the Texas Citizens Participation Act, Misko filed affidavits by five people who testified that they
knew Misko and believed that the post was directed at her. Id. at *13. We held that these
affidavits provided clear and specific evidence that the post was about Misko, even though
Misko was not named in it. Id. at *13–14. Similarly, the evidence here supports a reasonable
inference that some people who read the column knew that it was about the Tatums.
Accordingly, neither a traditional nor a no-evidence summary judgment could properly
be granted against the Tatums on the theory that the column was not about them.
4. Did the Tatums raise a genuine fact issue regarding whether the column was
capable of defaming them?
Whether a publication is capable of a defamatory meaning is initially a question for the
court. Turner, 38 S.W.3d at 114. If a publication is of ambiguous or doubtful import, however,
the jury must determine its meaning. Id. We construe an allegedly defamatory publication as a
whole, in light of the surrounding circumstances, based on how a person of ordinary intelligence
would perceive it. Id.
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Again, a statement is defamatory if it tends to (i) injure the subject’s reputation,
(ii) expose him to public hatred, contempt, ridicule, or financial injury, or (iii) impeach his
honesty, integrity, or virtue. Am. Heritage Capital, 436 S.W.3d at 875. Even if the statements in
a publication are not defamatory when taken individually, a publication can be defamatory if it
creates a defamatory impression by omitting material facts or juxtaposing facts in a misleading
way. Turner, 38 S.W.3d at 115.
Appellees make a threshold argument that the Tatums must satisfy the standard for libel
per se because they did not plead or prove libel per quod or special damages. We disagree.
Libel per quod is simply libel that is not actionable per se. See Hancock v. Variyam, 400
S.W.3d 59, 64 (Tex. 2013) (“Defamation per quod is defamation that is not actionable per se.”).
The Tatums’ live pleading asserted “Libel” as count 1 and “Libel per se” as count 2. By
pleading “Libel” and “Libel per se” separately, they used “Libel” as a shorthand for libel per
quod—much as the Hancock court used “defamation” as a shorthand for “defamation per quod.”
See id. at 62 (“In this defamation suit involving two physicians, we clarify a longstanding
distinction between defamation and defamation per se . . . .”). We thus conclude that the Tatums
pled claims for both libel per quod and libel per se.
Appellees also argue on appeal that any libel per quod claim fails because the Tatums did
not plead or prove special damages. Because we see no matching argument in appellees’
amended motion for summary judgment, that argument is not properly before us. See McConnell
v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (“A motion [for summary
judgment] must stand or fall on the grounds expressly presented in the motion.”).
Turning to the “defamatory meaning” question, the Tatums argue that the column is
capable of defaming them because ordinary readers could perceive it to (i) accuse them of
committing deception by fabricating a connection between Paul’s car accident and his suicide to
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“shroud” his suicide in secrecy, (ii) suggest that Paul suffered from a mental illness and the
Tatums turned a blind eye to it, and (iii) suggest that the Tatums prevented a “timely
intervention” that might have saved Paul’s life if only they had been honest. Appellees,
however, counter that no ordinary reader would think the column defames the Tatums. They
also argue that the column contains only nonactionable rhetorical hyperbole in the course of
advocating societal change. We agree with the Tatums on all three points.
As to the Tatums’ first point, we agree that the column is capable of a defamatory
meaning about them because a person of ordinary intelligence could read the column to accuse
the Tatums of deception about the cause of Paul’s death and a statement is defamatory if it
impeaches a person’s honesty or integrity. See CIV. PRAC. § 73.001; Am. Heritage Capital, 436
S.W.3d at 875.
Generally speaking, the column’s italicized words quoted above reflect a theme of
alleged dishonesty by people, including those who wrote Paul’s obituary, who refuse to
acknowledge that someone committed suicide. More specifically, the column’s first four
paragraphs state Blow’s opinion that people generally consider a death by suicide “worthy of
deception” and mention “honesty” and being “open” about other causes of death.
The next seven paragraphs describe two recent occurrences meant to illustrate Blow’s
point—the events surrounding the deaths of Ted Pillsbury and Paul Tatum. The account about
Pillsbury states that “his company” fabricated reports that Pillsbury had suffered a heart attack
when actually he had shot himself to death.
Next, specifically as to Paul’s death, Blow wrote that the paid obituary said Paul died “as
a result of injuries sustained in an automobile accident,” but Paul’s death “turned out to have
been a suicide.” Blow continued, “There was a car crash, all right, but death came from a self-
inflicted gunshot wound in a time of remorse afterward.” In the third paragraph after that
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statement, Blow wrote, “I’m troubled that we, as a society, allow suicide to remain cloaked in
such secrecy, if not outright deception.”
The above parts alone could cause a person of ordinary intelligence to read the column as
accusing the Tatums of deceit by writing an obituary that stated a false cause of Paul’s death and
concealed the true cause of his death (for their own self-benefit and to the detriment of society as
a whole).
To accuse someone of deception is to impeach his or her honesty and integrity. See
Deception, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE
UNABRIDGED (1981) (“the act of deceiving, cheating, hoodwinking, misleading, or deluding”);
see also Deceive, id. (“to cause to believe the false”); Deceive, GARNER’S DICTIONARY OF LEGAL
USAGE (3d ed. 2011) (“to induce someone to believe in a falsehood”); Deceive, THE NEW
OXFORD AMERICAN DICTIONARY (2001) (“cause (someone) to believe something that is not true,
typically in order to gain some personal advantage”). 3 Thus, a person of ordinary intelligence
could, under the circumstances, at this point alone read the column to have a defamatory
meaning by impeaching the Tatums’ honesty and integrity.
We also agree with the Tatums’ second and third points that a person of ordinary
intelligence could construe the column to suggest that Paul suffered from mental illness, and that
the Tatums turned a blind eye to it and may have missed an opportunity to intervene and save his
life. Although the column does not expressly make these assertions, roughly the last third of the
column discusses the prevalence of suicide (specifically among young people), laments public
silence about suicide’s frequent cause (mental illness), and concludes, “Awareness, frank
discussion, timely intervention, treatment—those are the things that save lives. Honesty is the
3
We may consult dictionaries to determine the generally accepted or commonly understood meaning of words. See Gilbert Tex. Constr.,
L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 127 (Tex. 2010) (citing dictionaries as aids to interpreting an insurance policy).
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first step.” By juxtaposing Paul’s story with this discussion, the column invites the reader to
associate Paul’s suicide with mental illness and the Tatums with those who do not engage in life
saving “frank discussion” and “timely intervention.” The closing line, “Honesty is the first
step,” also invites the reader to contrast “honesty” with a “dishonest” obituary published about
Paul’s death.
For the above reasons, we conclude that a person of ordinary intelligence could construe
the column to suggest that Paul suffered from mental illness and his parents failed to confront it
honestly and timely, perhaps missing a chance to save his life. This meaning is defamatory
because it tends to injure the Tatums’ reputations and to expose them to public hatred, contempt,
or ridicule. See CIV. PRAC. § 73.001.
We are not persuaded by appellees’ characterization of the column as nonactionable
rhetorical hyperbole. Rhetorical hyperbole is extravagant exaggeration employed for rhetorical
effect. Backes, 2015 WL 1138258, at *14. But appellees do not explain how the column
amounts to rhetorical hyperbole. We perceive no “extravagant exaggeration” in the column. To
the contrary, the column’s tone is generally sober, and it purports to be grounded in factual
details such as the circumstances of Pillsbury’s and Paul’s deaths, data about the prevalence of
suicide among young people, and Julie Hersh’s public efforts to reduce the shame and stigma
surrounding mental illness.
Appellees also argue that the column cannot reasonably be read to suggest that Paul had a
mental illness. They state that several paragraphs separate the column’s description of Paul’s
suicide from its discussion of mental illness. They also argue that the description of Paul as
“popular” is inconsistent with an imputation of mental illness, as is the assertion that he
committed suicide in a “time of remorse” after a car crash. We are unpersuaded.
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The distance between the column’s discussion of Paul’s case and its discussion of mental
illness is not so great that a reader of ordinary intelligence could not connect the two, and the
closing exhortation for frank discussion, timely intervention, and honesty tends to tie the end of
the column back to the two specific illustrations of “deception.” Saying someone is popular is
not inconsistent with the premise that he is mentally ill, nor is asserting that someone committed
suicide out of remorse over a car crash inconsistent with the premise that he was mentally ill.
Because we conclude that the column is capable of a defamatory meaning, there is at
least a fact issue regarding this element, and appellees’ traditional and no-evidence grounds
attacking that element cannot support the trial court’s judgment. 4
5. Did the Tatums raise a genuine fact issue regarding whether the column was
neither true nor substantially true?
Appellees’ summary judgment motion argued that (i) they proved the column was true or
substantially true and (ii) the Tatums had no evidence of any false statement of fact in the
column. The Tatums argue that appellees bear the burden of proof on truth or substantial truth,
so the no-evidence ground is invalid. See TEX. R. CIV. P. 166a(i). Because we conclude that the
evidence raised a genuine fact issue regarding whether the column was true or substantially true
regarding the Tatums, we need not decide which side had the burden of proof. Cf. Neely, 418
S.W.3d at 66 n.12 (the distinctions among the varying burdens of proof as to truth or falsity are
“less material at summary judgment”).
If a defamatory statement is true or substantially true, it is not actionable. See id. at 62;
McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex. 1990). A publication is substantially true if, in the
average reader’s mind, the allegedly defamatory statement is not more damaging to the
plaintiff’s reputation than a truthful statement would have been. Neely, 418 S.W.3d at 63.
4
This opinion should not be construed to hold that the column necessarily defamed the Tatums. Rather, we conclude only that it is capable
of having that meaning.
–17–
Conversely, a publication that consists of statements that are literally true when read in isolation
can still convey a false and defamatory meaning by omitting or juxtaposing facts. Id. at 64.
We determine substantial truth by assessing the publication’s “gist.” See id. at 63–64. A
publication’s gist is its main point, material part, or essence, as perceived by a reasonable person.
D Magazine Partners, 2015 WL 5156908, at *7.
a. What is the column’s gist regarding the Tatums?
The Tatums argue that “[t]he false gist of the Column is that [they] dishonestly
characterized their son’s death in the Obituary as a means to ‘shroud’ his suicide in secrecy.”
The first question is whether an ordinarily intelligent person could construe the column as
conveying that gist. See Neely, 418 S.W.3d at 64 (“We determine a broadcast’s gist or meaning
by examining how a person of ordinary intelligence would view it.”) (footnote omitted).
Although appellees contend that the column’s gist does not include any comment on the Tatums’
character or their actions, we disagree.
The column’s headline and opening sentence announce that deception and secrecy are the
column’s topics. The column describes Paul’s obituary and death immediately after it describes
the fabricated cause of death that was advanced after Ted Pillsbury’s suicide. The column then
implies that the obituary’s reference to the cause of Paul’s death was false by saying, “There was
a car crash, all right, but death came from a self-inflicted gunshot wound in a time of remorse
afterward.” Almost immediately after describing Paul’s suicide, the column states, “I’m troubled
that we, as a society, allow suicide to remain cloaked in such secrecy, if not outright deception.”
A reasonable reader could conclude that the column’s gist is that the Tatums, as authors of Paul’s
–18–
obituary, wrote a deceptive obituary to keep Paul’s suicide a secret and to protect themselves
from being seen as having missed the chance to intervene and prevent the suicide. 5
b. Is there evidence that the column’s gist was false?
We next ask whether there was evidence that the column’s gist was false. The Tatums
argue that there was, focusing specifically on the intent that the word “deception” implies. They
argue that the column’s gist includes an assertion that they falsely ascribed Paul’s death to
“injuries sustained in an automobile accident” with the intent to mislead and deceive readers and
to cover up his suicide. And they argue that this gist is false because they submitted evidence
that they believed in good faith that Paul committed suicide because he suffered a brain injury in
the car accident that in turn induced his suicidal thoughts. We agree with the Tatums.
The Tatums submitted evidence showing that:
One, their motive in stating that Paul died “as a result of injuries sustained in an
automobile accident” was to express their belief, after investigation, that the best explanation of
the underlying cause of Paul’s suicide was a brain injury sustained in the auto accident.
Two, they did not mention suicide in the obituary because (i) they believed it would give
a false impression that Paul committed suicide as a result of depression or other mental illness
and (ii) they did not feel it would honor Paul’s memory to include morbid details about his death
or to include overly scientific information.
Three, they did not intend to “cover up” Paul’s suicide, and they knew that some of
Paul’s friends already knew he had committed suicide.
5
We conclude only that a reasonable factfinder could conclude that this is the column’s gist, and this opinion should not be construed to
hold that this is necessarily the column’s gist. That question remains to be decided by the factfinder.
–19–
(1) Deceptive Intent.
Crediting the Tatums’ evidence as we must, we conclude that a reasonable factfinder
could find that the column’s gist was false. We agree that the column’s gist associates the
obituary with “deception,” which denotes an intention to deceive, often for personal advantage.
See Deceive, THE NEW OXFORD AMERICAN DICTIONARY (“cause (someone) to believe something
that is not true, typically in order to gain some personal advantage”). The gist also implies that
the explanation the Tatums gave for the cause of Paul’s death was false and that Paul committed
suicide because of “remorse” rather than because of injuries suffered in the auto accident. And
the gist includes an implication that the Tatums’ motive for deceiving readers was to conceal that
Paul had suffered from a mental illness that the Tatums failed to confront.
We are unpersuaded by appellees’ contrary arguments. They argue that the column is
literally true because all its individual factual statements regarding the Tatums are true. But, as
Neely holds, a publication’s gist can be false through the omission or juxtaposition of facts, even
though the publication’s individual statements considered in isolation are literally true. 418
S.W.3d at 64.
Appellees also assert that the obituary’s omission of Paul’s suicide shows that it was in
fact a “deception.” But as discussed above, “deception” implies intent to deceive, and the
Tatums raised a genuine fact issue as to whether they had such an intent.
Appellees further argue that the column does not omit or juxtapose facts in such a way as
to make its gist false. We disagree. The column omits the reasons why the Tatums believed
their account of the cause of Paul’s suicide was true. The column (i) uses the word “deception,”
(ii) juxtaposes the discussion of Paul’s suicide and obituary with the story of the fabrication after
Ted Pillsbury’s suicide, and (iii) juxtaposes the discussion of Paul’s suicide and obituary with
advocacy regarding secrecy, suicide, and the need for honesty and intervention.
–20–
Appellees additionally argue that a journalist is not required to conform his reporting to a
subject’s version of events. Nonetheless, a journalist may not omit and juxtapose facts in such a
way as to make the facts reported convey a false gist or meaning. See id.
Based on their view of the column’s gist, appellees next argue that the cause of Paul’s
suicide and the Tatums’ belief about that cause are irrelevant to the issue of truth. We are not
persuaded. The column’s gist is not simply that the Tatums omitted the fact that Paul committed
suicide from the obituary. The gist is that they stated a false cause of death, shrouded Paul’s
suicide in secrecy, intended to mislead and deceive the readers, and may have wanted to conceal
Paul’s mental illness and their own failure to intervene.
Accordingly, the Tatums submitted enough evidence to raise a genuine fact issue
regarding whether they believed what they said in the obituary was true, did not intend to
mislead or deceive anyone, and did not believe Paul suffered from mental illness.
(2) Brain Injury as Causing the Suicide.
Appellees also argue that there is no evidence to support the Tatums’ theory that a brain
injury made Paul suicidal. This argument misses the point. The truth of the column’s gist hinges
on whether the Tatums intended to deceive when they wrote the obituary, not necessarily on the
strength of the scientific evidence supporting their belief about the cause of Paul’s suicide.
Nonetheless, the Tatums filed affidavits by two experts. One expert explained the
severity of Paul’s auto accident, and the other opined that Paul committed suicide because of a
brain injury sustained in that accident. Appellees made objections to the affidavits in the trial
court, which the trial court overruled. On appeal, appellees argue only that the affidavits are too
speculative. See Duncan-Hubert v. Mitchell, 310 S.W.3d 92, 103 (Tex. App.—Dallas 2010, pet.
denied) (objection that opinions are speculative can be raised for the first time on appeal). We
conclude otherwise.
–21–
Specifically, the first affidavit is by Dr. Robert Cargill, who possesses a Ph.D. in
bioengineering. His testimony demonstrates his training and expertise in the field of accident
reconstruction. He reviewed “black box” recorder data from the Tatums’ vehicle that was
involved in the accident, reviewed photographs of the vehicle, and interviewed the person who
inspected the vehicle after the accident. Based on his investigation, he concluded that the
primary impact involved in the accident was “moderate to severe,” and that the accident was
severe enough that “it would have subjected a human occupant of the vehicle to, at a very
minimum, the risk of a mild TBI [traumatic brain injury], such as a concussion.”
The other affidavit is by Dr. Joseph Kass, a medical doctor and neurologist who
possesses expertise in neurocognitive disorders such as traumatic brain injuries. Kass reviewed
Cargill’s report about the accident, interviewed the Tatums, reviewed Paul’s conduct before and
after the accident as reported by his friends, and reviewed other documents such as Paul’s
medical history and death certificate. Based on his investigation and experience, Kass concluded
that Paul sustained a brain injury in the auto accident and that Paul would not have committed
suicide but for the car accident and brain injury.
Based on the above, we conclude that the expert affidavits are not speculative and the
trial court did not err by overruling appellees’ objections. Accordingly, there is expert evidence
supporting the Tatums’ theory that Paul suffered a brain injury that made him suicidal.
c. Was the column’s gist substantially true?
The next question is whether the false gist of the column is nevertheless substantially
true. As explained above, a false gist is substantially true and nonactionable if it is no more
damaging to the plaintiff’s reputation than a truthful publication would have been. See Neely,
418 S.W.3d at 63. Thus, if the column’s false gist—that the Tatums wrote Paul’s obituary with
–22–
the intent to deceive—is more damaging to the Tatums’ reputations than a true statement would
have been, then the gist is not substantially true.
We resolve this question in the Tatums’ favor. A reasonable juror could conclude that a
hypothetically true column would have been less damaging to the Tatums’ reputation because it
would have mentioned that the Tatums claimed to have written the obituary in a good faith belief
in its truth and without an intent to deceive. The actual column, however, can be read to allow
and encourage the reader to conclude that the Tatums had no basis for attributing Paul’s death to
injuries sustained in the earlier car crash and that they wanted to deceive the obituary’s readers
about the cause of Paul’s death, perhaps to conceal their own failure to save his life through an
intervention.
Neely’s substantial truth analysis is instructive. In that case, Dr. Neely was disciplined
for self-prescribing medications, but a news broadcast about him could reasonably have been
understood to report that he was actually disciplined for operating on patients while using
dangerous drugs or controlled substances. Id. at 66. Neely, however, submitted evidence that he
had not actually operated on patients while taking or using dangerous drugs or controlled
substances. Id. at 66–67. Based on that evidence, the court concluded that a factfinder could
find that the false gist—that Neely was disciplined for operating while using drugs—was more
damaging to Neely’s reputation than the truth—that Neely was disciplined for self-prescribing
medications. Id. at 67–68.
Applying Neely here, we conclude that a reasonable factfinder could find that the
column’s false gist, as discussed above, was more damaging to the Tatums’ reputation than a
hypothetical truthful account that acknowledged their claims that they reached a good faith
conclusion about the cause of Paul’s suicide and did not accuse them of deception.
–23–
d. Conclusion.
Because the evidence raises a genuine fact issue that the column’s gist was neither true
nor substantially true, appellees’ traditional and no-evidence summary judgment grounds
addressing truth and substantial truth cannot support the trial court’s judgment.
6. Did appellees establish as a matter of law that the column is privileged as a
fair account of official proceedings or as a fair comment on a matter of
public concern?
By statute, a newspaper or other periodical enjoys a privilege against libel actions
regarding the publication of certain matters, including (i) a fair, true, and impartial account of an
official proceeding to administer the law, CIV. PRAC. § 73.002(b)(1)(B), and (ii) a reasonable and
fair comment on or criticism of a matter of public concern published for general information, id.
§ 73.002(b)(2). Because these privileges are affirmative defenses, see Denton Publ’g Co. v.
Boyd, 460 S.W.2d 881, 882, 885 (Tex. 1970) (interpreting predecessor statute to § 73.002),
appellees’ summary judgment motion had to conclusively prove their elements to prevail. 6
a. Did appellees conclusively prove the official proceeding privilege?
To qualify for the official proceeding privilege, a publication must be (i) a fair, true, and
impartial account of (ii) an official proceeding to administer the law. CIV. PRAC.
§ 73.002(b)(1)(B). For this privilege to apply, however, the law requires that the comment at
issue “purported to be, and was, only a fair, true and impartial report of what was stated at the
meeting, regardless of whether the facts under discussion at such meeting were in fact true,
unless the report was made with malice.” Denton Publ’g Co., 460 S.W.2d at 883.
6
In D Magazine Partners we said that the supreme court’s 2000 Turner opinion suggests that lack of privilege might be an element of a
defamation plaintiff’s case, while its 2013 Neely opinion indicates that privilege is a defense. 2015 WL 5156908, at *6 n.6. We resolved that
case, however, without deciding the issue because the placement of the burden there would not have affected the outcome.
Although Turner contains a passing remark in dicta that a defamation plaintiff must prove that the publication is not privileged, 38 S.W.3d
at 115, it does not cite Denton Publishing Co. or hint that it overrules that case’s holding that “privilege is an affirmative defense,” 460 S.W.2d at
885. We thus conclude that Denton Publishing Co. is still controlling law.
–24–
In the case at bar, appellees argue that the column was a fair report of findings by the
Dallas Police Department and the medical examiner that Paul had committed suicide. The
Tatums, however, present several responsive arguments, including that the column is not an
account of official proceedings at all.
We agree with the Tatums. Even assuming that investigations by the police and the
medical examiner are “official proceedings,” the column does not purport to report about those
proceedings. It does not mention those proceedings, nor does it report any statements or findings
made in the course of those proceedings. Thus, the column does not qualify for the official
proceeding privilege. See id. (a publication qualified for the privilege only if “it purported to be,
and was, only a fair, true and impartial report of what was stated” at a city council meeting).
b. Did appellees conclusively prove the fair comment privilege?
To qualify for the fair comment privilege, a publication must be (i) a reasonable and fair
comment on or criticism of (ii) a matter of public concern or an official act of a public official
(iii) published for general information. CIV. PRAC. § 73.002(b)(2). Appellees argue that the
column is a fair comment on a matter of public concern, specifically “society’s tendency to avoid
open discussion of suicide and how that leaves its dangers underestimated.” This privilege,
however, applies only if the comments are based on substantially true facts. Neely, 418 S.W.3d
at 70.
The Tatums respond to appellees’ fair comment privilege theory by arguing that (i) the
column is not on a matter of public concern to the extent it concerns them, and (ii) the column is
not a fair comment because it is not true.
We agree with the Tatums’ second argument and thus do not address their first.
–25–
We have already concluded that a reasonable reader could conclude that the column
presents a false gist about the Tatums. That is, as Neely illustrates, enough to raise a genuine fact
issue on the fair comment privilege.
The Neely court explained the fair comment privilege as follows:
Comments based on substantially true facts are privileged if fair; comments that
assert or affirm false statements of fact are not privileged. We long ago stated
that it “is the settled law of Texas, that a false statement of fact concerning a
public officer, even if made in a discussion of matters of public concern, is not
privileged as fair comment.”
Id. (quoting Bell Publ’g Co. v. Garrett Eng’g Co., 170 S.W.2d 197, 204 (Tex. 1943)). Because
the evidence in Neely raised a genuine fact issue as to whether a news broadcast was
substantially true, the court held that the defendants were not entitled to summary judgment
based on the fair comment privilege. Id.
Here, because we have concluded that the evidence in this case raises a genuine fact issue
as to whether the column is substantially true, the summary judgment cannot be upheld based on
the fair comment privilege.
7. Are the column’s statements about the Tatums nonactionable opinions?
We next consider appellees’ summary judgment ground that the column contains only
nonactionable opinions. The test here is whether the defamatory statement is verifiable as false.
See id. at 62 (“[S]tatements that are not verifiable as false cannot form the basis of a defamation
claim.”); see also Bentley v. Bunton, 94 S.W.3d 561, 579–85 (Tex. 2002) (accusations that a
judge was “corrupt” were sufficiently verifiable to constitute actionable statements of fact).
Whether a statement is a statement of fact or opinion is a question of law. Am. Heritage Capital,
436 S.W.3d at 875.
The Tatums argue that an accusation of deception is verifiable and therefore actionable,
while appellees argue that it is not. We agree with the Tatums.
–26–
In adopting the “verifiable as false” test in Bentley and Neely, the Texas Supreme Court
relied on the United States Supreme Court’s decision in Milkovich v. Lorain Journal Co., 497
U.S. 1 (1990). In that case, Milkovich sued Lorain for publishing an article that essentially
accused him of perjury. See id. at 4–7. Milkovich lost on summary judgment and appealed all
the way to the Supreme Court. Id. at 10. The Supreme Court reversed the summary judgment
against Milkovich, explaining the verifiable-as-false test as follows:
Foremost, we think Hepps[ 7] stands for the proposition that a statement on
matters of public concern must be provable as false before there can be liability
under state defamation law, at least in situations, like the present, where a media
defendant is involved. Thus, unlike the statement, “In my opinion Mayor Jones is
a liar,” the statement, “In my opinion Mayor Jones shows his abysmal ignorance
by accepting the teachings of Marx and Lenin,” would not be actionable. Hepps
ensures that a statement of opinion relating to matters of public concern which
does not contain a provably false factual connotation will receive full
constitutional protection.
Id. at 19–20 (footnotes omitted).
By using the statement “In my opinion Mayor Jones is a liar” as an example of an
actionable statement of fact, the Court took the position that such a statement can be proven
false. Later in the opinion, the Court held that the defendant’s statement that Milkovich
committed perjury was “sufficiently factual to be susceptible of being proved true or false.” Id.
at 21.
Similarly, in Bentley the Texas Supreme Court considered whether repeated statements
that a particular judge was “corrupt” were nonactionable statements of opinion. 94 S.W.3d at
583. Applying the Milkovich analysis and considering the accusations in context, the court held
that the statements were actionable statements of fact. The court noted that the defendant had
repeatedly stated that his accusations of corruption were based on objective, provable facts and
on evidence that he had seen. Id. at 583–84.
7
Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).
–27–
In light of Milkovich, Neely, and Bentley, we conclude that the column’s gist that the
Tatums were deceptive when they wrote Paul’s obituary is sufficiently verifiable to be actionable
in defamation. Calling someone a liar and accusing someone of perjury, as occurred in those
cases, both implicate the person’s mental state, because both “liar” and “perjury” denote the
willful telling of an untruth. Nevertheless, the Milkovich Court concluded that calling someone a
liar and accusing someone of perjury are both sufficiently verifiable to support a defamation
claim. 497 U.S. at 19–21.
In the present case, the column’s implicit assertion that the Tatums committed deception
is similar—an accusation that the Tatums willfully wrote a misleading obituary for the purpose
of deceiving readers, possibly to protect themselves from suspicion of being negligent or
inattentive parents. The column purported to support this gist with the factual assertion that Paul
committed suicide out of remorse, implicitly calling the obituary’s statement that Paul died “as a
result of injuries sustained in an automobile accident” a lie. Although the Tatums’ mental states
when they wrote the obituary may not be susceptible of direct proof, we conclude that they are
sufficiently verifiable through circumstantial evidence, such as the investigation into the possible
causes for Paul’s suicide that the Tatums undertook, to make the column’s defamatory gist about
them verifiable under Milkovich and Neely.
Specifically, the following circumstantial evidence bears on, or could have affected, the
Tatums’ state of mind when they wrote the obituary and supports the verifiability of the
column’s gist: (i) the Tatums searched for answers to the question of why Paul did it; (ii) both
Tatums—and we note that Mary Ann Tatum is a mental health professional—testified that Paul
had no history of mental illness associated with suicidal behavior; (iii) Paul left no suicide note;
(iv) Paul’s texts to friends after the accident made it seem that something had happened in the
accident to change his state of mind; (v) the vehicle’s condition made it seem probable that Paul
–28–
hit his head in the accident; and (vi) the Tatums researched online and discovered that emerging
scientific data links brain injury to suicidal behavior.
Appellees, however, cite several cases from other jurisdictions to support their argument
that the column’s gist is an unverifiable opinion. For the reasons discussed below, we conclude
that their cases are distinguishable or otherwise unpersuasive.
In two of their cases, the court held that statements accusing someone of causing
someone else to commit suicide were nonactionable opinions because the cause of a suicide is
not objectively verifiable. Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1147–48 (8th
Cir. 2012); Scholz v. Bos. Herald, Inc., No. SUCV201001010, 2013 WL 4081413, at *9–12
(Mass. Super. Ct. Mar. 29, 2013), aff’d, 41 N.E.3d 38 (Mass. 2015). These cases are
distinguishable because the case before us does not turn on the verifiability of the column’s
statement about the cause of Paul’s suicide. Rather, this case turns on the verifiability of the
column’s accusation of deception against the Tatums. Accordingly, Gacek and Scholz are not on
point.
Appellees also direct us to Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993).
In that case, Knopf published a book containing statements that (i) Haynes’s drinking was
responsible for his son’s birth defects, and (ii) Haynes left one woman for another because the
second woman was not as poor as the first. Id. at 1226–27. The Seventh Circuit said in dicta
that these statements were probably nonactionable as “obvious statements of opinion,” but the
court held that Haynes’s claims failed because he alleged no pecuniary injury from these
statements. Id. We are not necessarily convinced that Knopf’s first statement about Haynes was
an unverifiable opinion. Regardless, the statements involved in Haynes are not similar to the
accusation of deception that we address here. Haynes is distinguishable.
–29–
Finally, appellees cite West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994). West
successfully ran for mayor of a Utah town. Id. at 1000–01. After West’s election, Thomson ran
columns asserting that before the election West had opposed a proposal that the town should
purchase a municipal power system, but that he changed his position after he was elected. Id. at
1001 & n.1. West sued for defamation, he lost the case on summary judgment, and the case
came before the Utah Supreme Court. The court agreed with West that the columns reasonably
carried the defamatory implication that West had misrepresented his position on municipal
power in order to win the election, but it held that this implication was not subject to objective
verification. Id. at 1019. Accordingly, the court held that the columns were nonactionable
opinions. Id. at 1020. To the extent West is similar to the instant case, we disagree with it.
Although the West court acknowledged and purported to apply the Milkovich analysis, it
disregarded Milkovich’s conclusions that accusing a person of being a liar or committing perjury
can be sufficiently verifiable to constitute an actionable statement of fact rather than a
nonactionable opinion. Our supreme court, however, has embraced the Milkovich verifiability
test. See Neely, 418 S.W.3d at 62; Bentley, 94 S.W.3d at 579–85. We therefore decline to
follow West.
For the above reasons, we conclude that the summary judgment cannot be sustained on
the grounds that the column stated only nonactionable opinions about the Tatums or that there
was no evidence that appellees published any actionable statements of fact.
8. Did the Tatums raise a genuine fact issue that appellees acted with the
necessary degree of culpability?
Appellees’ summary judgment motion argued that they conclusively negated the element
of actual malice, that the Tatums could produce no evidence of actual malice, and that the
Tatums could produce no evidence of negligence if that standard applied. On appeal, the Tatums
argue that they (i) are required to prove only negligence because they are not public figures and
–30–
(ii) produced sufficient evidence of both actual malice and negligence. We agree with the
Tatums.
a. Applicable Law.
Under Supreme Court precedents, a defamation plaintiff must prove that the defendant
acted with actual malice if the plaintiff is a public official, a public figure, or a limited-purpose
public figure. Neely, 418 S.W.3d at 61. In this context, “actual malice” means knowledge of, or
reckless disregard for, the falsity of a statement. Bentley, 94 S.W.3d at 591; see also N.Y. Times
Co. v. Sullivan, 376 U.S. 254, 279–80 (1964). “Reckless disregard” means that the publisher
entertained serious doubts about the publication’s truth or had a high degree of awareness of the
publication’s probable falsity. Bentley, 94 S.W.3d at 591.
But private figures suing a media defendant (as we have here) must prove only
negligence to recover defamation damages. See Neely, 418 S.W.3d at 61. In this context,
negligence has two prongs: (1) the publisher knew or should have known that the defamatory
statement was false, and (2) the factual misstatement’s content was such that it would warn a
reasonably prudent editor or broadcaster of its defamatory potential. See id. at 72.
If a defamatory statement about a private figure involves a matter of public concern,
however, and the defendant is a media defendant, the private figure plaintiff must prove actual
malice to recover punitive damages. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill,
Inc., 434 S.W.3d 142, 156–57 (Tex. 2014) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 349
(1974)).
Public figure status is a question of law for the court. Neely, 418 S.W.3d at 70.
Appellees, however, do not contend that the Tatums are public officials or general-purpose
public figures. See Pickens v. Cordia, 433 S.W.3d 179, 185 (Tex. App.—Dallas 2014, no pet.)
(describing general-purpose public figures as those who have achieved such pervasive fame or
–31–
notoriety as to be public figures for all purposes). We therefore do not address whether those
categories apply here.
Limited-purpose public figures are generally people who have thrust themselves to the
forefront of a particular public controversy to influence its resolution, or who have voluntarily
injected themselves or been drawn into a public controversy. Id. at 187. We employ a three-part
test to assess whether a plaintiff is a limited-purpose public figure:
(1) the controversy at issue must be public both in the sense that people are
discussing it and people other than the immediate participants in the controversy
are likely to feel the impact of its resolution;
(2) the plaintiff must have more than a trivial or tangential role in the controversy;
and
(3) the alleged defamation must be germane to the plaintiff’s participation in the
controversy.
WFAA-TV, Inc., 978 S.W.2d at 571.
We do not consider the defamatory statement itself in determining whether the plaintiff is
a public figure. See Neely, 418 S.W.3d at 71 (“[T]he allegedly defamatory statement cannot be
what brought the plaintiff into the public sphere; otherwise, there would be no private figures
defamed by media defendants.”).
b. Are the Tatums limited-purpose public figures?
Based on the record before us, we conclude that the Tatums were not limited-purpose
public figures. Appellees’ contrary argument fails on the first prong we referenced above—the
existence of a public controversy for the Tatums to participate in.
Appellees argue that a public controversy existed over the official cause of Paul’s death.
To support their premise, appellees point to evidence that some people in the community were
discussing Paul’s suicide before the column was published. But a topic is not a public
controversy merely because some people are talking about it:
–32–
A general concern or interest will not suffice. The court can see if the press was
covering the debate, reporting what people were saying and uncovering facts and
theories to help the public formulate some judgment.
WFAA-TV, Inc., 978 S.W.2d at 572. In short, there must first be a controversy before it can be a
public one.
And, for a matter to be a public controversy, its resolution must affect people beyond its
immediate participants. See id. at 571; see also Einhorn v. LaChance, 823 S.W.2d 405, 411
(Tex. App.—Houston [1st Dist.] 1992, writ dism’d w.o.j.) (“A public controversy is not simply a
matter of interest to the public; it must be a real dispute, the outcome of which affects the general
public or some segment of it in an appreciable way.”).
Although there is evidence that people in Paul’s high school community were discussing
his death generally, and that unspecified others in north Dallas were also discussing it before the
column was published, there is no evidence that the cause or manner of Paul’s death affected
anyone other than the Tatums.
Similarly, although there is evidence that the Tatums disagreed with the “manner of
death” finding of suicide on Paul’s death certificate and tried to persuade the medical examiner
to change it, there is no evidence that the outcome of this alleged controversy affected anyone
except the Tatums.
Accordingly, because there is no evidence of a public controversy that could make the
Tatums limited-purpose public figures, we conclude that the Tatums are private figures for
purposes of this summary judgment appeal. Thus, they must prove only negligence to recover
compensatory damages. See Neely, 418 S.W.3d at 61.
But the Tatums must prove actual malice to recover exemplary damages if the
defamatory statement involved a matter of public concern (as opposed to a public controversy)
and appellees are media defendants. See Waste Mgmt. of Tex., Inc., 434 S.W.3d at 156–57.
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“Speech deals with matters of public concern when it can be fairly considered as relating to any
matter of political, social, or other concern to the community . . . or when it is a subject of
legitimate news interest; that is, a subject of general interest and of value and concern to the
public . . . .” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal quotations and citations
omitted).
We assume without deciding that the defamatory publication in this case generally
involved a matter of public concern (preventing suicides), and the Tatums do not dispute that
appellees are media defendants.
c. Did the Tatums raise a genuine fact issue as to negligence and actual
malice?
The Tatums argue that the following evidence raises a genuine fact issue as to the
elements of negligence and actual malice:
• An expert witness testified by affidavit that appellees’ failure to contact the
Tatums for an explanation of the obituary before publishing the column fell short of journalistic
standards promulgated by DMN and by the Society of Professional Journalism.
• The summary judgment evidence conflicts on certain points regarding the
newspaper’s investigation into Paul’s death and the manner in which Blow learned about the
immediate cause of Paul’s death. For example, the internal sources that Blow said he contacted
before publishing the column denied having discussed the matter with him.
• Blow testified that he did not review any documents regarding Paul’s death or the
car accident earlier that night, did not interview anyone with the Dallas Police Department or the
medical examiner’s office, and did not attempt to contact the Tatums before drafting the column.
• Finally, the Tatums point to their minister’s testimony that he called Blow to
express his concerns about the column and that Blow’s first response was, “Did I get my facts
right?”
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(1) Negligence.
We conclude that the evidence raised a genuine fact issue as to negligence. Specifically,
the Tatums produced evidence that Blow did not contact them to determine the basis for their
choice of words in Paul’s obituary, and that this failure to contact them was a breach of
journalistic standards and the newspaper’s own policies. There was also evidence from which a
reasonable jury could find that a proper investigation would have revealed that the Tatums had a
good faith belief that Paul’s death was in fact caused by injuries sustained in a car accident.
There is thus some evidence from which a reasonable factfinder could find negligence’s first
prong—that appellees should have known of the defamatory statement’s falsity, but failed to use
reasonable care to ascertain the truth of the column’s gist. See Neely, 418 S.W.3d at 72.
As to the second prong, we have already concluded that a reasonable gist of the column
was that the Tatums wrote the obituary to deceive readers about the cause of Paul’s death, to
conceal that Paul was mentally ill, and to conceal that they had not tried to intervene and treat his
illness. These matters create a genuine fact issue regarding whether the column’s contents would
have warned a reasonably prudent publisher of its defamatory potential. See id.
(2) Actual Malice.
We also conclude that the evidence raises a genuine fact issue as to actual malice. We
acknowledge that evidence of a negligent investigation, standing alone, does not raise a fact issue
on actual malice:
[T]he failure to investigate the facts before speaking as a reasonably prudent
person would do is not, standing alone, evidence of a reckless disregard for the
truth, but evidence that a failure to investigate was contrary to a speaker’s usual
practice and motivated by a desire to avoid the truth may demonstrate the reckless
disregard required for actual malice.
Bentley, 94 S.W.3d at 591 (footnotes omitted).
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But the Tatums adduced evidence of more than a mere negligent investigation. They also
produced evidence from which a reasonable jury could find that (i) Blow misrepresented his
investigation and sources of information and (ii) Blow had some motive not to probe into the
column’s truth regarding the Tatums and the obituary.
As to whether Blow misrepresented his investigation and the sources of his information,
Blow testified by deposition that he learned the information about Paul’s death that he used in his
column from one of his colleagues at DMN. He testified that he knew that Bruce Tomaso and
Kevin Sherrington looked into Paul’s death, and that he could not remember specifically which
of them provided him with the information he used in the column. But Tomaso and Sherrington
were also deposed, and they both testified that they did not remember having a conversation with
Blow about Paul’s death. A reasonable juror could conclude that Blow was not honest when he
testified about the sources of his information about Paul’s death. This is some evidence of actual
malice. See Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1070–71 (5th Cir. 1987) (courts
have upheld actual malice findings when “the supposed source of the story disclaimed giving the
information”); see also Celle v. Filipino Reporter Enter., Inc., 209 F.3d 163, 190 (2d Cir. 2000)
(defendant’s self-contradictory testimony about the source of his information supported actual
malice finding).
There was also evidence that Blow did not adhere to his usual practice of investigation
when he wrote the column. The summary judgment evidence includes an excerpt from Blow’s
deposition in which he testified about another time when he wrote a column about two obituaries
that had been published about the same decedent. On that occasion, he said, he attempted to
contact the author of one of the obituaries. But, here he did not attempt to contact the Tatums
before publishing the column at issue in this case. Blow explained that he acted differently in
investigating this column because he had been told that Paul’s family did not want to discuss the
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matter. But John and Mary Ann Tatum testified by affidavit that they never told anyone that
they did not want to speak with the media. The Tatums’ friend Lee Simpson testified by
affidavit that he was contacted by Tomaso about Paul’s death and that Tomaso did not ask him
whether the Tatum family wanted to be contacted. Thus, there is evidence that Blow did not
investigate this column with the same thoroughness that he did for a previous column and that
his explanation for the difference was not true.
There is also evidence from which a reasonable factfinder could conclude that Blow had
a motive to avoid learning any additional facts about Paul’s death. In his affidavit, Blow said
that he wrote the column to express his opinion that “it is troubling that society allows suicide to
remain cloaked in secrecy and deception, and that secrecy about suicide leaves us greatly
underestimating the danger of it.” He also testified by deposition that if he discovered “a
deception, a misleading obituary, that’s fair game for commentary.” Additionally, Julie Hersh
testified by deposition that she met with Blow before he published the column and that they were
both “outraged” by the lack of discussion about suicide. Thus, Blow had a motive not to learn if
there was any explanation for the way the Tatums chose to write the obituary other than the
supposed desire to deceive the obituary’s readers. Had he investigated further and learned facts
suggesting that the Tatums had no intent to deceive, this would have undercut the whole thrust of
the column, which began with a reference to deception and ended with a call for honesty.
We conclude that there was more than a scintilla of evidence showing more than a mere
failure to conduct a reasonable investigation. Viewed in the light most favorable to the Tatums,
the evidence raised a genuine issue of material fact as to the actual malice element.
9. Conclusion
We sustain the Tatums’ first issue. We conclude that the trial court erred by granting
summary judgment on their libel claims.
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B. Issue Two: Did the trial court err by dismissing the Tatums’ DTPA claims?
In their second appellate issue, the Tatums contend that the trial court erred by granting
summary judgment on their DTPA claims against DMN. We disagree and affirm the judgment
as to those claims.
1. Applicable Law and Summary Judgment Grounds.
The Tatums’ DTPA claims are based on § 17.46(b)(24) of the DTPA, which provides that
it is a false, misleading, or deceptive act or practice to “fail[] to disclose information concerning
goods or services which was known at the time of the transaction if such failure to disclose such
information was intended to induce the consumer into a transaction into which the consumer
would not have entered had the information been disclosed.” TEX. BUS. & COM. CODE ANN.
§ 17.46(b)(24) (West 2011). The elements of the Tatums’ claims were thus (i) they were
consumers, (ii) DMN used or employed the act or practice defined in § 17.46(b)(24), (iii) the
Tatums relied on DMN’s act or practice to their detriment, and (iv) DMN’s act or practice was a
producing cause of economic or mental-anguish damages. See id. § 17.50(a)(1)(A)–(B).
DMN asserted the following traditional summary judgment grounds against the Tatums’
DTPA claims:
• The Tatums are not consumers.
• DMN did not commit a false, misleading, or deceptive act that the Tatums
relied on.
• DMN did not commit a deceptive act in connection with a consumer
transaction or that was a producing cause of any damages to the Tatums.
DMN also asserted the following no-evidence grounds:
• There was no evidence that the Tatums were consumers.
• There was no evidence DMN committed a false, misleading, or deceptive
act listed in § 17.46(b), or that the Tatums relied on any complained of act.
• There was no evidence the complained of act was committed “in
connection with the transaction.”
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• There was no evidence the complained of act was a producing cause of the
Tatums’ damages.
2. Did the Tatums raise a genuine fact issue that DMN violated § 17.46(b)(24)?
In our analysis of this question, we focus on DMN’s second no-evidence ground and
particularly the first requirement of § 17.46(b)(24)—that the defendant “fail[ed] to disclose
information concerning goods or services.” Id. § 17.46(b)(24); see also Brennan v. Manning,
No. 07-06-0041-CV, 2007 WL 1098476, at *4 (Tex. App.—Amarillo Apr. 12, 2007, pet. denied)
(mem. op.) (the undisclosed information must be about the goods or services being rendered).
We conclude that the Tatums adduced no evidence of this requirement.
The Tatums argue that the service at issue is publishing the obituary. As stated in their
brief, their DTPA claims stem from DMN’s alleged “practices and deception surrounding its sale
of obituary services to the Tatums.” They argue that the “information” DMN failed to disclose
was “Mr. Blow’s controversial practice of attacking obituaries.” In their affidavits, both Tatums
said that they would not have published the obituary as worded if they had known that DMN
“had someone on staff who had a history of criticizing obituaries like Steve Blow.”
The Tatums’ argument fails because the “information” that DMN allegedly failed to
disclose does not concern the service they bought. As the Tatums urge, the service they bought
was Paul’s obituary. The evidence shows that DMN published Paul’s obituary, and the Tatums
do not allege that the obituary itself did not conform to their order. Rather, the Tatums contend
that DMN should have disclosed that its columnist, Blow, had previously written columns
critical of obituaries that had appeared in the newspaper. In our view, this fact does not relate to
the DMN’s obituary services themselves, and thus it does not constitute “information
concerning” those services, as is required by § 17.46(b)(24).
We reject the Tatums’ second appellate issue.
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IV. CONCLUSION
We reverse the trial court’s summary judgment to the extent it orders the Tatums to take
nothing on their libel and libel per se claims. We affirm the judgment to the extent it orders the
Tatums to take nothing on their DTPA claims. We remand the case for further proceedings
consistent with this opinion.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
141017F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN TATUM AND MARY ANN On Appeal from the 68th Judicial District
TATUM, Appellants Court, Dallas County, Texas
Trial Court Cause No. DC-11-07371.
No. 05-14-01017-CV V. Opinion delivered by Justice Whitehill.
Justices Lang and Fillmore participating.
THE DALLAS MORNING NEWS, INC.
AND STEVE BLOW, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part.
We REVERSE the trial court’s judgment to the extent it orders that appellants John
Tatum and Mary Ann Tatum take nothing on their libel and libel per se claims.
In all other respects, the trial court’s judgment is AFFIRMED.
We REMAND this cause to the trial court for further proceedings.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 30th day of December, 2015.
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