Polk County Publishing Company and Valerie Reddell v. Tommy Lamar Coleman ( 2021 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-20-00298-CV
________________
POLK COUNTY PUBLISHING COMPANY AND VALERIE REDDELL,
Appellants
V.
TOMMY LAMAR COLEMAN, Appellee
________________________________________________________________________
On Appeal from the 258th District Court
Polk County, Texas
Trial Cause No. CIV33910
________________________________________________________________________
MEMORANDUM OPINION
In this accelerated appeal, Polk County Publishing Company (PCP) and
Valerie Reddell appeal the trial court’s denial of their Motion to Dismiss under the
Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code Ann. §
27.001. On appeal, PCP and Reddell argue that the trial court erred because the
TCPA applies to the legal action filed by Tommy Coleman, and he failed to establish
a prima facie case proving each element of his claim for defamation. We affirm.
1
I. Background
Coleman is employed as an assistant district attorney with the Polk County
District Attorney’s Office. PCP publishes a twice weekly newspaper, The Polk
County Enterprise (Enterprise), in Polk County, and Reddell is an editor and
employee for the newspaper. On June 7, 2020, Coleman made a post on his personal
Facebook page “in support of PolkCountyToday.com[,]” a local competitor of the
Enterprise. 1 On June 18, 2020, the Enterprise printed an article written by Reddell
titled “Battle Lines drawn over prosecutor’s conduct.” A subheading stated the
article was “[p]art of an ongoing series about the need for criminal justice reform.”
The article stated that prior to working for the Polk County District Attorney’s
Office, Coleman was employed by the Williamson County District Attorney’s
Office and “assisted with the prosecution of Michael Morton during his tenure[.]”2
The article went on to describe the prosecution of Michael Morton and stated that
during Morton’s post-conviction legal attempts to prove his innocence, Coleman
was “singled out in media reports for mocking requests to test that bandana for
DNA.” The article went on to state that Coleman was one of five prosecutors
“informed that their services would no longer be needed[]” because according to the
newly elected District Attorney, they were “‘indoctrinated in the John Bradley
1
Coleman’s Facebook page was titled “Tommy Coleman for Polk County.”
2
See INNOCENCE PROJECT, Michael Morton Time Served: 24 Years,
https://innocenceproject.org/cases/michael-morton/ (last visited Dec. 13, 2021).
2
school of thought,’ which reportedly included a policy that defense attorneys weren’t
allowed to see the evidence against their clients until shortly before trial.”
After the article was published, Coleman hired an attorney, sent a letter to the
PCP stating the article contained “false and defamatory statements[,]” and
demanded that the PCPrun a correction on the front page of the newspaper. Coleman
took particular offense to the article’s use of the word “prosecution” stating that
when Morton was initially prosecuted in 1987, he was not a licensed attorney and
did not work for the Williamson County District Attorney’s Office.3 The Enterprise
subsequently ran a correction stating that the article had “mischaracterized”
Coleman’s involvement with the Michael Morton case, and that he was not involved
with the initial trial and prosecution in 1987, and “[t]he proceedings that took place
between 2005 and 2011, should not have been referred to as ‘prosecution.’”
In August 2020, Coleman filed legal action against PCP and Reddell, alleging
that the June 2020 article was libelous and sought damages. In response, PCP and
Reddell answered and asserted an affirmative defense pursuant to the TCPA and
moved to dismiss the claims under that statute.4 In their motion to dismiss, both PCP
and Reddell argued that the TCPA applies to Coleman’s claims and that under the
3
Coleman provided a copy of his Texas Bar Page with the State Bar of Texas
that showed he was first licensed as an attorney in 2002.
4
The answer filed by both PCP and Reddell included a request for attorney’s
fees against Coleman.
3
TCPA, Coleman cannot meet his burden to demonstrate each element of his
defamation claim. In response, Coleman did not dispute that the TCPA applies to his
claim but argued that he offered “ample evidence to support each element of his libel
claim.”
On November 19, 2020, the trial court held a hearing regarding PCP and
Reddell’s motions to dismiss under the TCPA. After hearing arguments, the trial
court denied both motions to dismiss. Both PCP and Reddell timely filed a notice of
appeal.
II. Standard of Review
The TCPA “protects citizens who petition or speak on matters of public
concern from retaliatory lawsuits that seek to intimidate or silence them.” In re
Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). The TCPA is meant
“to encourage and safeguard the constitutional rights of persons to petition, speak
freely, associate freely, and otherwise participate in government to the maximum
extent permitted by law and, at the same time, protect the rights of a person to file
meritorious lawsuits for demonstrable injury.” See Tex. Civ. Prac. & Rem. Code
Ann. § 27.002. Courts construe the TCPA liberally to ensure its stated purpose and
intent are fully effectuated. Id. § 27.011(b); ExxonMobil Pipeline Co. v. Coleman,
512 S.W.3d 895, 898 (Tex. 2017).
4
A TCPA motion to dismiss involves a multi-step process. See Youngkin v.
Hines, 546 S.W.3d 675, 679–80 (Tex. 2018); Coleman, 512 S.W.3d at 898–99;
Lipsky, 460 S.W.3d at 586–87; see also Tex. Civ. Prac. & Rem. Code Ann. §
27.005(b)–(d). “[A] court shall dismiss a legal action against the moving party if the
moving party demonstrates that the legal action is based on or is in response to: (1)
the party’s exercise of: (A) the right of free speech; (B) the right to petition; or (C)
the right of association; or (2) the act of a party described by Section 27.010(b).”
Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). If the movant establishes that the
plaintiff’s lawsuit implicates one of these rights, the second step shifts the burden to
the plaintiff to “‘establish[ ] by clear and specific evidence a prima facie case for
each essential element of the claim in question.’” Lipsky, 460 S.W.3d at 587 (quoting
Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c)). Finally, if the non-movant
establishes their prima facie case, the burden shifts back to the movant to establish
“an affirmative defense or other grounds on which the moving party is entitled to
judgment as a matter of law.” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d); see
also Youngkin, 546 S.W.3d at 679-80 (discussing burden-shifting in the context of
previous version of statute); Coleman, 512 S.W.3d at 898-99 (same).
On appeal, Coleman does not dispute that the TCPA applies to his claims.
Therefore, we focus on whether Coleman satisfied his burden to demonstrate prima
facie evidence of each element of his claim of defamation against PCP and Reddell.
5
III. Analysis
A. Affidavit
Reddell and PCP complain of the trial court’s refusal to strike Coleman’s
evidence he submitted to meet his burden of proof in opposition to the motions to
dismiss. To meet his burden of proof in his response, Coleman filed a sworn
affidavit, together with exhibits which he attached to his original petition filed in the
lawsuit and a copy of his State Bar of Texas page. Reddell and PCP objected to
Coleman’s affidavit and sought to have it struck, alleging it contained hearsay and
self-serving statements insufficient to meet his burden under the statute. They argue
on appeal that without the improperly admitted affidavit, Coleman failed to provide
“clear and specific” evidence of each element of his claim for defamation.
An affidavit must do more than make conclusory, self-serving statements that
lack factual detail. See Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex.
App.—Texarkana 2000, no pet.). Conclusory affidavits are not sufficient to
overcome or to establish a prima facie case in light of a TCPA motion to dismiss.
Camp v. Patterson, No. 03-16-00733-CV, 2017 WL 3378904, at *7-8 (Tex. App.—
Austin Aug. 3, 2017, no pet.) (mem. op.). “Bare, baseless opinions do not create fact
questions, and neither are they a sufficient substitute for the clear and specific
evidence required to establish a prima facie case under the TCPA.” Lipsky, 460
S.W.3d at 592. An affidavit must provide “details to support [the plaintiff’s] factual
6
inference or show the factual basis for [his] claims.” Camp, 2017 WL 3378904, at
*8.
The affidavit filed by Coleman along with the attachments showed that the
article published by PCP and Reddell about Coleman was false because in the article
it asserted that Coleman was involved with the prosecution of Michael Morton.
Coleman’s affidavit stated that he was born in 1970 and was not licensed until 2002.
Coleman’s affidavit includes facts to support his allegation that he was defamed by
the media defendants’ use of the word “prosecution” in the article. Coleman states
that he was seventeen years old when Michael Morton was initially prosecuted and
that it would be another fifteen years before he obtained his law license. He states
that he was employed at the Williamson County District Attorney’s office from 2008
to 2012 and during that time, he never appeared of counsel for the State on the
Michael Morton case, he never signed pleadings or any other legal documents
regarding the case, never argued in court, never discussed strategy, or made any
public comments regarding the case. This statement is not conclusory but, is factual
and of such a type that can be easily controverted by his opponent, if false. See Camp,
2017 WL 3378904, at **7-8. Notably the Texas Supreme Court has rejected the idea
that the TCPA “establish[es] a heightened evidentiary standard or prohibits
circumstantial evidence.” Warner Bros. Entm’t, Inc. v. Jones, 538 S.W.3d 781, 800
7
(Tex. App.—Austin 2017) (citing In re Lipsky, 460 S.W.3d at 591), aff’d 611 S.W.3d
1 (Tex. 2020). In Lipsky, the Texas Supreme Court stated that
a plaintiff must provide enough detail to show the factual basis for its
claim. In a defamation case that implicates the TCPA, pleadings and
evidence that establish[ ] the facts of when, where, and what was said,
the defamatory nature of the statements, and how they damaged the
plaintiff should be sufficient to resist a TCPA motion to dismiss.
460 S.W.3d at 591. Appellants’ allegations that the affidavit is incomplete or self-
serving are incorrect considering the other evidence presented by Coleman in his
petition, including a copy of his bar page, a correction from the Enterprise correcting
the use of the term “prosecution” in the previous article, and a letter to the editor
from the Polk County District Attorney disputing the published article’s accuracy.
As such, in reviewing the affidavit in conjunction with his pleading, the statement is
not conclusory and was properly considered by the trial court under the TCPA. See
id. We overrule this issue.
B. Defamation
1. Public Figure
Reddell argues that Coleman has to demonstrate actual malice in his prima
facie case for defamation because he is at the very least a “limited purpose public
figure.’” “A limited purpose public figure suing a media defendant for defamation
must prove that the defendant published the statement with actual malice.” Post-
Newsweek Stations, Houston, Inc. v. Dugi, No. 13-10-00366-CV, 2011 WL
8
2463057, at *4 (Tex. App.—Corpus Christi-Edinburg June 16, 2011, pet. dism’d)
(citing Klentzman v. Brady, 312 S.W.3d 886, 905–06 (Tex. App.—Houston [1st
Dist.] 2009, no pet.)). A private citizen need only show the media defendant acted
negligently. Id.In WFAA-TV, Inc. v. McLemore, the Texas Supreme Court adopted a three-
part test to determine if an individual is a limited 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.
978 S.W.2d 568, 571 (Tex. 1998) (citing Trotter v. Jack Anderson Enters., Inc., 818
F.2d 431, 433 (5th Cir.1987); Waldbaum v. Fairchild Publ’ns, Inc. 627 F.2d 1287,
1296–98 (D.C.Cir.1980)). In McLemore, the Supreme Court began its analysis by
reviewing the controversy in question. See id. at 572. The court stated that to
determine if this is a public controversy as outlined above, we must
determine whether a controversy indeed existed and, if so, to define its
contours, the judge must examine whether persons actually were
discussing some specific question. 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.
Id. (quoting Waldbaum, 627 F.2d at 1297). An examination into Coleman’s past
work history and questions regarding his employment with the Polk County District
9
Attorney’s Office was not something being publicly discussed, nor was the article
assisting in uncovering facts to assist the public to form a judgment regarding a
matter of public concern. See id. Reddell’s argument that because the article reported
Coleman’s background and why he was hired at the Polk County District Attorney’s
office are “matters of public concern” is unpersuasive. “The mere fact that some
issue may become the subject of public discussion is not evidence that a specific
question is already being discussed by the public.” Klentzman, 312 S.W.3d at 906.
Framing their article as “[p]art of an ongoing series about the need for justice
reform[]” does not mean that Coleman is “newsworthy” to thrust him in the role of
a limited public figure. Id. (“A libel defendant must show more than mere
newsworthiness to justify application of the demanding burden of [actual malice].”)
(quoting Wolston v. Reader’s Digest Ass’n, Inc. 443 U.S. 157, 167–68 (1979)). The
article makes no ties to any pending or recent prosecution or other public matter that
involved Coleman or even the Polk County District Attorney’s office. As such,
Coleman’s status as a limited public figure fails the first step of the McLemore test.
See McLemore, 978 S.W.3d at 571. We need not analyze the other elements of the
three-part test. See Klentzman, 312 S.W.3d at 906–08 (holding that the appellee was
a not a limited public figure because the publication did not discuss a public
controversy). Therefore, Reddell has not shown that Coleman is a limited public
10
figure with regard to his claims and he need not demonstrate actual malice in his
prima facie evidence of defamation. See id.; see also McLemore, 978 S.W.2d at 571.
2. Prima Facie Case of Defamation
To maintain a cause of action for defamation, Coleman must demonstrate a
prima facie case that the media defendants: “1) [] published a false statement; (2) the
statement defamed [him]; (3) [the media defendants] acted with negligence
regarding the truth of the statement; and (4) [he] suffered damages or the article is
defamatory per se.” D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 439
(Tex. 2017) (citing Lipsky, 460 S.W.3d at 593).
The parties do not dispute that the media defendants published the article in
question. Therefore, we turn to the second element of defamation and determine
whether Coleman met his burden of proof to present clear and specific evidence that
the article was defamatory concerning Coleman. See id.
a. Defamatory Statement
A defamatory statement
tends to injure a living person’s reputation and thereby expose the
person to public hatred, contempt or ridicule, or financial injury or to
impeach any person’s honesty, integrity, virtue, or reputation or to
publish the natural defects of anyone and thereby expose the person to
public hatred, ridicule, or financial injury.
Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (describing elements of libel). Because
a “‘chilling’ effect would be antithetical to the First Amendment’s protection of true
11
speech on matters of public concern, … a private-figure plaintiff must bear the
burden of showing that the speech at issue is false before recovering damages for
defamation from a media defendant.” Phila. Newspapers, Inc. v. Hepps, 475 U.S.
767, 777 (1986).
A showing of the substantial truth of a publication will defeat a defamation
claim. See McIlvain v. Jacobs, 794 S.W.2d 14, 15 (Tex.1990); see also Scripps NP
Operating, LLC v. Carter, 573 S.W.3d 781, 791 (Tex. 2019). “The converse of that
doctrine, []is that a defendant may be liable for a ‘publication that gets the details
right but fails to put them in the proper context and thereby gets the story’s “gist”
wrong.’” Dall. Morning News, Inc. v. Tatum, 554 S.W.3d 614, 627 (Tex. 2018)
(quoting Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000)). If the
publication correctly conveys a story’s gist, although erring in the details, the
publication is substantially true and is not actionable. See Neely v. Wilson, 418
S.W.3d 52, 63–64 (Tex. 2013), superseded by statute on other grounds by Scripps
NP Operating, LLC v. Carter, 573 S.W.3d 781, 791 (Tex. 2019). “If the underlying
facts as to the gist of the defamatory charge are undisputed, then we can disregard
any variance with respect to items of secondary importance and determine
substantial truth as a matter of law.” McIlvain, 794 S.W.2d at 16 (citation omitted).
This case concerns “the converse of the substantial truth doctrine.” Turner, 38
S.W.3d at 115. “Because a publication’s meaning depends on its effect on an
12
ordinary person’s perception, courts have held that under Texas law a publication
can convey a false and defamatory meaning by omitting or juxtaposing facts, even
though all the story’s individual statements considered in isolation were literally true
or non-defamatory.” Id. at 114 (citations omitted). This theory “permit[s] liability
for the publication that gets the details right but fails to put them in the proper context
and thereby gets the story’s ‘gist’ wrong.” Id. at 115 (citation omitted). “[T]he
meaning of a publication, and thus whether it is false and defamatory, depends on a
reasonable person’s perception of the entirety of a publication and not merely on
individual statements.” Id. (citations omitted).
In KBMT Operating Co., LLC v. Toledo, the Texas Supreme Court explained
A statement need not be perfectly true; as long as it is substantially true,
it is not false. The test for whether a report like [media defendant]’s is
substantially true is whether the broadcast taken as a whole is more
damaging to the plaintiff’s reputation than a truthful [publication]
would have been. This requires determining the import of the
[publication] as a whole–its gist to the ordinary [reader]–and comparing
it to a truthful report.
492 S.W.3d 710, 714 (Tex. 2016) (internal citations and quotations omitted).
Coleman, therefore, bore the burden of presenting the requisite minimum quantity
of evidence that the “gist” of the publication in question was false as a part of his
prima facie case of defamation. And while a defense to a defamation suit against a
media defendant is “‘literally or substantially true’ facts[,]’” as stated above, we
review the issue in light of “‘a reasonable person’s perception of the entirety of a
13
publication and not merely on individual statements.’” Klentzman, 312 S.W.3d at
899.
Coleman argues that the use of the word “prosecution” is false. He states that
the information as to whether he prosecuted Michael Morton is verifiably false
because he was seventeen years old when Michael Morton was prosecuted, and he
did not become a licensed attorney until 2002. Finally, Coleman asserts that the
article is not even substantially true because the entire article is predicated on the
false statement that he was a prosecutor in the Michael Morton case.
In response, both Reddell and PCP argue that the statement “assisted in the
prosecution” is not false because the word “‘prosecution’ encompasses all stages of
a case.” The appellants argue that Morton was part of the district attorney’s office
during the time that Morton was fighting for post-conviction relief, and that Coleman
was acting as a prosecutor in that office during that time. They contend the affidavit
submitted by Coleman fails to demonstrate that Coleman was not a prosecutor during
that time. According to Reddell, Coleman’s statements in the affidavit that “he did
not sign court papers, argue in court, or discuss strategy in the Michael Morton
case…are self-serving, incomplete, and do not clearly and specifically refute that
[he] indeed assisted on the case.” Reddell argues that the affidavit does not dispute
that the Williamson District Attorney’s office employed Coleman during the post-
conviction proceedings, that he attended hearings, or made statements about the
14
case. Polk County insisted that every time Coleman entered a courtroom to engage
in a fight against Morton, every time they met to discuss the case, or spoke about the
case or made public comments about the case, they “act[ed] as ‘the prosecution’ on
behalf of the State of Texas.”
We disagree with media defendants’ arguments that the use of the term
“prosecution” in this case implies post-conviction prosecution and therefore is
substantially true. Turner, 38 S.W.3d at 115 (explaining that the “substantial truth
doctrine” precludes liability in assessing whether a publication is defamatory). The
article states “[p]rior to his arrival in Livingston, Tommy Lamar Coleman assisted
with the prosecution of Michael Morton during his tenure at the Williamson County
District Attorney’s Office.” The article goes on to describe the change in leadership
of the Williamson District Attorney’s Office during Coleman’s tenure, the
prosecution of Coleman’s boss, Coleman’s mocking Morton’s attempts to get
exoneration, and Coleman’s actions after he left the Williamson County District
Attorney’s Office. The article makes no mention of when Coleman was hired by the
Williamson County District Attorney’s office, what age he was when he was hired
or left, or even when he graduated law school or how long he has been a licensed
attorney. While appellant Reddell argues that the “gist” of the story is substantially
true, and contends that if you remove the offending sentence, it would provide “no
material difference in the entire context of the article[,]” we disagree. We must
15
analyze the publication in the context of how the average viewer, not a “careful
viewer,” would have perceived the publication. See id. at 119 (concluding that a
statement’s defamatory meaning must be viewed from the standpoint of an
“ordinary” listener, not a “careful” listener, and noting that “‘courts must refrain
from a ‘hair splitting analysis’ of what is said ... to find an innocent meaning[.]’”
(quoting Forsher v. Bugliosi (1980) 26 Cal. 3d 792, 722 [163 Cal. Rptr. 628, 608
P.2d 716]). The gist of the article is about Coleman’s career as a prosecutor and how
it led to his employment with the Polk County District Attorney’s Office. Everything
except the last five paragraphs of the article discuss his career at the Williamson
County District Attorney’s Office and the subsequent fallout of the Michael Morton
case. In this respect, we do not believe that an average reader is sufficiently familiar
with the nuances of prosecutions and post-conviction relief to understand without
context when or how Coleman was involved with the prosecution of Michael
Morton. Especially considering that the article does not list Coleman’s dates of
employment with the Williamson County District Attorney’s Office or clarify that
he was only employed there during Michael Morton’s attempts at post-conviction
relief. See id. at 114 (noting that a “publication should be viewed ‘not so much by
its effect when subjected to the critical analysis of a mind trained in the law, but by
the natural probable effect on the mind of the average reader.’”) (quoting Kapellas
v. Kofman (1969) 1 Cal. 3d 20, 920 [81 Cal. Rptr. 360, 459 P.2d 912]).
16
Notably, after being contacted by Coleman about the article and the use of the
word “prosecution,” the newspaper published the following correction concerning
the use of the word “prosecution” in the original article.
CORRECTION
Coleman not involved in Morton trial and prosecution
In the June 18, 2020 edition of the Polk County Enterprise, a front-page
story about Tommy Lamar Coleman mischaracterized his role while
employed with the Williamson District Attorney’s Office.
Coleman graduated from law school in 2000 and was licensed in 2002.
He was not involved in the initial trial and prosecution of Michael
Morton in 1987, for the murder of Christine Morton.
In 2005, the Innocence Project launched efforts to exonerate Morton,
which they finally achieved in 2011. The proceedings that took place
between 2005 and 2011 should not have been referred to as
“prosecution.” We regret the error.
Finally, we reject PCP’s contention that this information is privileged because
the article reported on “a judicial or other official proceeding.” PCP asserts that to
qualify for this privilege the statement must be “substantially true” account of the
proceeding…and they are not required to “prove the truth of the allegations that it
repeats to its readers.” While we acknowledge the judicial proceeding exception, as
noted by the Texas Supreme Court in Scripps NP Operating, LLC v. Carter, that
exception does not apply when the reporting goes well beyond “merely restating the
allegations of a third party” and adopts the substance of the allegations as if they
were true. 573 S.W.3d at 792. The article states that Coleman was part of the
17
prosecution team, that he mocked Morton’s efforts and that he was part of a group
of prosecutors fired after a District Attorney was elected in Williamson County, due
to Coleman being “indoctrinated” in a school of thought by the previous District
Attorney “which reportedly included a policy that defense attorneys weren’t allowed
to see the evidence against their clients until shortly before trial.” This was more
than simply reporting allegations, but implicating Coleman in prosecutorial
misconduct while employed as a district attorney at the Williamson County District
Attorney’s Office. See id. at 793 (explaining that the privilege does not apply when
the “gist” of the article was that the allegations were true, not merely repeating the
accusations of others).
We conclude, therefore, that Coleman has presented prima facie evidence that when
viewing the publication as a whole in light of the surrounding circumstances, a
person of ordinary intelligence would reasonably but erroneously conclude that the
“gist” of the article was that Coleman was part of the prosecution team that
prosecuted Michael Morton in the 1980’s and otherwise engaged in prosecutorial
misconduct.
b. Defamation Per Se and Damages
Some statements are so obviously injurious to a plaintiff’s reputation that they
require no proof of injury to make them actionable. See Hancock v. Variyam, 400
S.W.3d 59, 63–64 (Tex. 2013); Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt.
18
Holdings, Inc., 219 S.W.3d 563, 580–81 (Tex. App.—Austin 2007, pet. denied).
Such statements are considered defamatory per se. Hancock, 400 S.W.3d at 63–64.
A false statement will typically be classified as defamatory per se if it: (1) “injures
a person in his office, profession, or occupation[;]” (2) “charges a person with the
commission of a crime[;]” (3) “imputes sexual misconduct[;]” or (4) “accuses one
of having a loathsome disease[.]” Tex. Disposal Sys. Landfill, 219 S.W.3d at 581. If
the alleged statement is determined to be defamatory per se, general damages are
presumed without requiring specific evidence of harm to the plaintiff's reputation,
thereby entitling the plaintiff to recover, at a minimum, nominal damages. Id.The article constitutes clear and specific evidence that the article contained
language that was reasonably capable of injuring Coleman in his office, profession,
or occupation; by implying that he is unethical and untrustworthy, and wrongfully
prosecuted Michael Morton. See id.; see also Tex. Civ. Prac. & Rem. Code Ann. §
73.001. The word prosecution creates an ambiguity and when an ambiguity exists
about the meaning and effect of the words or when a predicate fact question remains
about whether the statements were published or were false, a jury should determine
the statement’s meaning. Tex. Disposal Sys. Landfill, 219 S.W.3d at 581–83 (noting
that defamation per se is generally a legal question, a jury question is presented
where the defamatory character of a statement arises not from the defendants’ blatant
statements but from the impressions the defendants created and the inferences they
19
encouraged). As such, because the article is attacking Coleman’s professional
occupation, it is defamatory per se, and Coleman need not to show actual damages.
Klentzman, 312 S.W.3d at 893 n.4 (citation omitted) (“A statement that is libel per
se is so obviously hurtful that it does not require proof of injury in order to be
actionable.”).
c. Negligence
Since we have already concluded that Coleman is a private citizen, we review
whether Coleman presented prima facie evidence of negligence against the media
defendant. See D Magazine Partners, 529 S.W.3d at 440. “Under that standard, the
defendant is negligent if it ‘knew or should have known a defamatory statement was
false,’ unless the content of the false statement would not ‘warn a reasonabl[y]
prudent editor or broadcaster of its defamatory potential.’” Id. (quoting Neely, 418
S.W.3d at 72). “Negligent conduct is determined by asking ‘whether the defendant
acted reasonably in checking the truth or falsity or defamatory character of the
communication before publishing it.’” Scripps Tex. Newspapers, L.P. v. Belalcazar,
99 S.W.3d 829, 837 (Tex. App.—Corpus Christi 2003, pet. denied) (quoting
Restatement (Second) of Torts § 580B cmt. g (1977)).
Here, Coleman presented an affidavit that stated he did not graduate law
school until 2000 or become a licensed attorney until 2002, well after Michael
Morton was prosecuted by the Williamson County District Attorney’s office in the
20
1980’s. His pleadings presented a copy of his Texas Bar Page, which demonstrated
he was first licensed as an attorney in 2002. It is undisputed that Michael Morton
was prosecuted in the 1980’s. Therefore, Coleman presented sufficient minimum
quantity of clear and specific evidence that the media defendants acted negligently
by publishing the article, as the “gist” of which was that Coleman was a prosecutor
on the Michael Morton case and was part of the possibly unethical, possibly criminal
events during that litigation, and that he was dismissed from the Williamson County
District Attorney’s office because of “indoctrination,” when the proof that he was
not part of the initial prosecution was readily available with a simple internet search
on the Texas Bar website. The article did not contain any information about his age
or his tenure at the Williamson County District Attorney’s Office. Further, the gist
of the article and the use of the word “prosecution” would warn a reasonably prudent
publisher and reporter of the article defamatory potential. D Magazine Partners, 529
S.W.3d at 440, (citing Neely, 418 S.W.3d at 72).
We conclude that Coleman presented the requisite minimum quantum of clear
and specific evidence, unaided by inferences, that the article in question was
defamatory concerning him. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).
Furthermore, because the article was defamatory per se, he need not show actual
damages. Thus, we overrule this issue.
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IV. Conclusion
The media defendants have not shown that the trial court erred in denying
their motion to dismiss Coleman’s suit at this early stage of the litigation. Because
Coleman presented a prima facie case to the trial court, we overrule Reddell’s and
PCP’s issues regarding the denial of their motion to dismiss under the TCPA. We
need not address their issues regarding attorney’s fees or sanctions. See Tex. R. App.
P. 47.1 (A Court of Appeals must hand down an opinion “that is as brief as
practicable but addresses every issue raised and necessary to final disposition of the
appeal.”). We affirm the trial court’s order denying Appellants’ motion to dismiss
the case.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
Submitted on September 2, 2021
Opinion Delivered December 30, 2021
Before Golemon, C.J., Kreger and Horton, JJ.
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