Joan Johnson, Kaleta Johnson, Seth Johnson and Wirt Blaffer v. Michael Phillips, Spindle Top Publishing, and Phillips Akers Womac, P.C. ( 2015 )


Menu:
  •                                                                            ACCEPTED
    01-15-00173-CV
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    9/18/2015 1:21:52 PM
    CHRISTOPHER PRINE
    CLERK
    NO. 01-15-00173-CV
    FILED IN
    In the First Court of Appeals       1st COURT OF APPEALS
    HOUSTON, TEXAS
    Houston, Texas
    9/18/2015 1:21:52 PM
    CHRISTOPHER A. PRINE
    Clerk
    JOAN JOHNSON, KALETA JOHNSON,
    SETH JOHNSON AND WIRT BLAFFER,
    Plaintiffs/Appellants
    V.
    MICHAEL PHILLIPS, SPINDLE TOP PUBLISHING CO.,
    AND PHILLIPS, AKERS, WOMACK, P.C.,
    Defendants/Appellees
    On Appeal from The
    333rd District Court of Harris County
    Hon. Joseph J. “Tad” Halbach, Jr.
    Trial Court Cause No. 2011-14027
    BRIEF FOR APPELLEES
    William W. Ogden
    State Bar No. 15228500
    bogden@ogblh.com
    Judith A. Meyer
    State Bar No. 13993200
    jmeyer@ogblh.com
    OGDEN, GIBSON, BROOCKS,
    LONGORIA & HALL, L.L.P.
    1900 Pennzoil South Tower
    Houston, Texas 77002
    Telephone: 713-844-3000
    Facsimile: 713-844-3030
    Attorneys for Appellees
    ORAL ARGUMENT REQUESTED
    IDENTITY OF PARTIES AND COUNSEL
    PARTY                    TRIAL COUNSEL           APPELLATE COUNSEL
    Joan Johnson,                 Patrick Zummo               Mark S. Tabolsky
    Kaleta Johnson,               Two Houston Center          Yetter Coleman LLP
    Seth Johnson and              909 Fannin, Suite 3500      Two Houston Center
    Wirt Blaffer,                 Houston, Texas 77010        909 Fannin, Suite 3600
    Plaintiffs/Appellants                               Houston, Texas 77010
    Patrick Zummo
    Two Houston Center
    909 Fannin, Suite 3500
    Houston, Texas 77010
    Michael Phillips              William W. Ogden            William W. Ogden
    Spindle Top Publishing Co.,   Judith A. Meyer             Judith A. Meyer
    and                           OGDEN, GIBSON, BROOCKS,     OGDEN, GIBSON, BROOCKS,
    Phillips Akers Womack PC      LONGORIA & HALL, L.L.P.     LONGORIA & HALL, L.L.P.
    Defendants/Appellees   1900 Pennzoil South Tower   1900 Pennzoil South Tower
    711 Louisiana               711 Louisiana
    Houston, Texas 77002        Houston, Texas 77002
    Thomas M. Gregor
    GREGOR & RIPPY
    700 Louisiana, Suite 395
    Houston, Texas 77002
    i
    TABLE OF CONTENTS
    IDENTITY OF PARTIES AND COUNSEL .......................................................................... i
    INDEX OF AUTHORITIES............................................................................................. iv
    STATEMENT OF THE CASE ......................................................................................... ix
    STATEMENT REGARDING ORAL ARGUMENT ............................................................. ix
    ISSUES PRESENTED ..................................................................................................... x
    PRELIMINARY STATEMENT ......................................................................................... 1
    STATEMENT OF FACTS ................................................................................................ 2
    SUMMARY OF THE ARGUMENT ................................................................................... 5
    ARGUMENT AND AUTHORITIES .................................................................................. 8
    I.       The Book is privileged as a fair report of a public trial ................................. 8
    A.       The statutory privilege in § 73.002 applies. ......................................... 9
    B.       Since Appellees are media defendants and the Book addresses
    a public concern, Appellants have the burden of proof. .................... 12
    C.       The privilege is not self-conferred. .................................................... 14
    D.       The settlement offer does not remove the fair report privilege ......... 17
    II.      Literary devices and characterizations do not make the Book
    false, nor do they prevent it from being a fair report .................................... 18
    ii
    III.     Appellants do not have a valid claim for “libel as a whole” ........................ 23
    A.       This is not a proper “libel as a whole” claim. .................................... 24
    B.       Libel as a whole is based on verifiable facts
    not testimonials................................................................................... 26
    C.       Appellants ignore context................................................................... 26
    IV.      The defamatory “gists” and constituent statements are substantially
    true, privileged, or not reasonably capable of the defamatory
    meaning Appellants attribute to them........................................................... 30
    A.       “Domestic Violence Gist”. ................................................................. 31
    B.       “Perjury and Dishonesty Gist” ........................................................... 39
    C.       “Drug and Alcohol Gist”.. .................................................................. 45
    D.       “Parental Neglect Gist”. ..................................................................... 49
    E.       “Child Abuse Gist”. ............................................................................ 55
    V.       Appellants other claims are waived. ............................................................. 64
    CONCLUSION ............................................................................................................ 65
    CERTIFICATE OF COMPLIANCE ................................................................................. 66
    CERTIFICATE OF SERVICE ......................................................................................... 67
    iii
    INDEX OF AUTHORITIES
    Cases
    Alpert v. Crain, Caton & James, P.C.,
    
    178 S.W.3d 398
    (Tex.App.—Houston [1st Dist.] 2005, pet. denied).......................... 17
    Bantam Books, Inc. v. Sullivan,
    
    372 U.S. 58
    (1963) ....................................................................................................... 10
    Bentley v. Bunton,
    
    94 S.W.3d 561
    (Tex. 2002) .......................................................................................... 26
    Bob v. Cypresswood Community Ass’n,
    _____ S.W.3d _____, 
    2015 WL 3423753
       (Tex.App.—Houston [1st Dist.] 2015, no pet.) ........................................................... 65
    Brewer v. Capital Cities/ABC, Inc.,
    
    986 S.W.2d 636
    (Tex.App.—Fort Worth 1998, no pet.) ............................................. 50
    Cantey Hanger, LLP v. Byrd,
    
    2015 WL 3976267
    (Tex. 2015) ................................................................................... 17
    City of Keller v. Wilson,
    
    168 S.W.3d 802
    (Tex. 2005) ........................................................................................ 27
    Computer Aid, Inc. v. Hewlett-Packard Co.,
    
    56 F. Supp. 2d 526
    (E.D. Pa. 1999) .............................................................................. 15
    Cox Broadcasting Corp. v. Cohn,
    
    420 U.S. 469
    (1975) ..................................................................................................... 12
    Craig v. Harney,
    
    331 U.S. 367
    , 374 (1947) ............................................................................................. 12
    Crites v. Mullins,
    
    697 S.W.2d 715
    (Tex.App.—Corpus Christi 1985, writ ref’d n.r.e.) ...................... 9, 19
    Crumrine v. Harte-Hanks Television, Inc.,
    
    37 S.W.3d 124
    (Tex.App.—San Antonio 2001, pet. denied) ...................................... 12
    Double Diamond, Inc. v. Van Tyne,
    
    109 S.W.3d 848
    (Tex.App.—Dallas 2003, no pet.)..................................................... 24
    iv
    Doubleday & Co., Inc. v. Rogers,
    
    674 S.W.2d 751
    (Tex. 1984) ........................................................................................ 10
    Escobar v. Harris County,
    
    442 S.W.3d 621
    (Tex.App.—Houston [1st Dist.] 2014, no pet.) ................................ 65
    Falk & Mayfield, L.L.P. v. Molzan,
    
    974 S.W.2d 821
    (Tex.App.-Houston [14th Dist.] 1998, pet. denied) .................... 50, 56
    Freedom Communications, Inc. v. Sotelo,
    
    2006 WL 1644602
    (Tex.App.—Eastland 2006, no pet.) ............................................... 9
    Goss v. Houston Community Newspapers,
    
    252 S.W.3d 652
    (Tex.App.—Houston [14th Dist.] 2008, no pet.) ...................... 8, 9, 20
    Granada Biosciences, Inc. v. Forbes, Inc.,
    
    49 S.W.3d 610
    (Tex.App.—Houston [14th Dist.] 2001)
    rev’d on other grounds, 
    124 S.W.3d 167
    (Tex. 2003)................................................... 9
    Harvest House Publishers v. Local Church,
    
    190 S.W.3d 204
    (Tex.App.—Houston [1st Dist.] 2006, pet. denied),
    cert. denied, 
    127 S. Ct. 2987
    (2007) ............................................................................. 11
    Howell v. Hecht,
    
    821 S.W.2d 627
    (Tex.App.—Dallas 1991, writ denied) ............................................... 8
    Huff v. Hirsch,
    
    2010 WL 3294232
    (Tex.App.—Houston [1st Dist.] 2010, no pet.) ............................ 17
    Hurlbut v. Gulf Atl. Life Ins. Co.,
    
    749 S.W.2d 762
    (Tex. 1987) ........................................................................................ 13
    In re J.A.J.,
    
    225 S.W.3d 621
    (Tex.App.—Houston [14th Dist.] 2006),
    aff’d and rev’d in part on other grounds, 
    243 S.W.3d 611
    (Tex. 2007) ..................... 38
    Jacobs v. Satterwhite,
    
    65 S.W.3d 653
    (Tex. 2001) .......................................................................................... 65
    Kaufman v. Islamic Soc’y of Arlington,
    
    291 S.W.3d 130
    (Tex.App.—Fort Worth 2009, pet. denied) ........................................ 9
    v
    Klentzman v. Brady,
    
    456 S.W.3d 239
    (Tex.App.—Houston [1st Dist.] 2014, pet. filed) ............................. 13
    Langston v. Eagle Printing Co.,
    
    797 S.W.2d 66
    (Tex.App.—Waco 1990, no writ) ......................................................... 9
    Liles v. Finstad,
    
    1995 WL 457260
    (Tex.App.—Houston [1st Dist.] 1995, writ denied) ....................... 11
    Louis v. Mobil Chem. Co.,
    
    254 S.W.3d 602
    , 610-11 (Tex.App.—Beaumont, pet. denied) ................................... 63
    Main v. Royall,
    
    348 S.W.3d 381
    (Tex.App.—Dallas 2011, no pet.)................................................. 1, 10
    Masson v. New Yorker Magazine, Inc.,
    
    501 U.S. 496
    (1991) ..................................................................................................... 10
    Maxwell v. Henry,
    
    815 F. Supp. 213
    (S.D. Tex. 1993) ................................................................................. 9
    Metzger v. Sebek,
    
    892 S.W.2d 20
    (Tex.App.—Houston [1st Dist.] 1994, writ denied) ........................... 18
    Mitchell v. Chapman,
    
    10 S.W.3d 810
    (Tex.App.—Dallas 2000, pet. denied),
    cert. denied, 
    531 U.S. 1152
    (2001) .............................................................................. 
    18 Morris v
    . Blanchette,
    
    181 S.W.3d 422
    (Tex.App.—Waco 2005, no pet.) ..................................................... 26
    Neely v. Wilson,
    
    418 S.W.3d 52
    (Tex. 2013) .............................................................................. 13, 21, 31
    New Times, Inc. v. Isaacks,
    
    46 S.W.3d 144
    (Tex. 2004) .................................................................................... 24, 26
    Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
    
    416 S.W.3d 71
    (Tex.App.—Houston [1st Dist.] 2013, pet. denied)...................... 22, 50
    Pardo v. Simmons,
    
    148 S.W.3d 181
    , 192-3 (Tex.App.—Waco 2004, no pet) ........................................... 63
    vi
    Philadelphia Newspapers, Inc. v. Hepps,
    
    475 U.S. 767
    (1986) ..................................................................................................... 13
    Raymer v. Doubleday & Co., Inc.,
    
    615 F.2d 241
    (5th Cir. 1980) ....................................................................................... 21
    Reagan Nat’l Advertising v. Hazen,
    
    2008 WL 2938823
    (Tex.App.—Austin 2008, no pet.) ................................................ 17
    Rehak Creative Services, Inc. v. Witt,
    
    404 S.W.3d 716
    (Tex.App.—Houston [14th Dist.] 2013, pet. denied) ........... 27, 49, 50
    Republic Tobacco Company v. North Atlantic Trading Company,
    
    381 F.3d 717
    (7th Cir. 2004) ....................................................................................... 14
    Rosenberg v. Helsinki,
    616 A2d 866 (Md. 1992), cert. denied, 
    509 U.S. 924
    (1993) ...................................... 14
    Sacks v. Zimmerman,
    
    401 S.W.3d 336
    (Tex.App.—Houston [14th Dist.] 2013, pet. denied) ....................... 17
    Schade v. Rhodes,
    
    2004 WL 1355094
    (Tex.App.—Houston [1st Dist.] 2004, no pet.) ............................ 18
    Striedel v. Striedel,
    
    15 S.W.3d 163
    (Tex.App.—Corpus Christi 2000, no pet.) ......................................... 18
    Swank v. Sverdlin,
    
    121 S.W.3d 785
    (Tex.App.—Houston [1st Dist.] 2003, pet. denied),
    cert denied, 
    544 U.S. 1033
    (2005) ............................................................................... 65
    Texas Monthly, Inc. v. TransAmerican Nat’l Gas Corp.,
    
    7 S.W.3d 801
    (Tex.App.—Houston [1st Dist.] 1999, no pet.) ........................ 19, 20, 34
    Traweek v. Radio Brady, Inc.,
    
    441 S.W.2d 240
    (Tex.App.—Austin 1969, writ ref’d n.r.e.) ......................................... 9
    Turner v. KTRK Television, Inc.,
    
    38 S.W.3d 103
    (Tex. 2000) ........................................................................ 24, 25, 26, 43
    Vecchio v. Jones,
    
    2013 WL 3467195
    (Tex.App.—Houston [1st Dist.] 2013, no pet.) ............................ 49
    vii
    Vice v. Kasprzak,
    
    318 S.W.3d 1
    (Tex.App.—Houston [1st Dist.] 2009, pet. denied).............................. 50
    Waring v. William Morrow & Co.,
    
    821 F. Supp. 1188
    (S.D. Tex. 1993) ............................................................................. 21
    Wavell v. Caller-Times Publishing Co.,
    
    809 S.W.2d 633
    (Tex.App.—Corpus Christi 1991, writ denied) ................................ 12
    Statutes
    TEX. CIV. PRAC. & REM. CODE § 22.021(3) ...................................................................... 10
    TEX. CIV. PRAC. & REM. CODE § 27.001(7) ...................................................................... 13
    TEX. CIV. PRAC. & REM. CODE § 73.002.................................................................... passim
    TEX. FAMILY CODE § 151.001(a)(2).................................................................................. 38
    TEX. PENAL CODE § 9.61(a) .............................................................................................. 38
    Other Authorities
    R. Sack, On Defamation § 7:3.5 (4th Ed. 2012).................................................................. 8
    RESTATEMENT 2D TORTS § 611 ........................................................................................... 8
    TEX. ATT’Y GEN. OP. GA-374 (2005) ............................................................................... 38
    Rules
    TEX. R. APP. P. 38.1(f), (i) ................................................................................................. 65
    Constitutional Provisions
    Article I § 8 of the Texas Constitution ................................................................................ 9
    United States Constitution, Am. 1 ....................................................................................... 9
    viii
    STATEMENT OF THE CASE
    Nature of the Case:       Claims for libel and related non-libel claims (invasion of
    privacy, infliction of emotional distress, theft and
    conversion, aiding and abetting, ratification, and
    injunction) all arising from publication of the book
    Monster in River Oaks. 1 CR 213.
    Trial Court:              333rd District Court of Harris County
    Hon. Joseph J. “Tad” Halbach presiding
    Course of proceedings:    Defendants filed a Traditional and No-Evidence Motion
    for Summary Judgment. 2 CR 511. Plaintiffs filed a
    Motion for Partial Summary Judgment. 3 CR 3211.
    Trial Court Disposition: On February 9, 2015, the trial court granted the
    Defendants’ Motion for Summary Judgment on all
    claims, and denied Plaintiffs’ motion. 4 CR 3780.
    STATEMENT REGARDING ORAL ARGUMENT
    Appellees request oral argument. While this case was resolved on summary
    judgment, the record is lengthy. The book at issue, Monster in River Oaks, is an
    account of a 2008 civil trial (the “Shah Trial”). The record includes a complete
    copy of the entire book as Joint Exhibit 1, 2d Supp. CR Vol. I, pp. 4-317, and a
    complete copy of the 12 Volume Reporter’s Record of the Shah Trial as Joint
    Exhibit 2. 2d Supp. CR Vol. I p. 318- Vol. V p. 2580. Not surprisingly, the parties
    have sharply divergent views about the record, and there are missing pages in the
    clerk’s record that the parties have cooperated in trying to fix. The decisional
    process of the Court would be aided by oral argument, to clarify any questions
    regarding the facts, the record or the proceedings below.
    ix
    ISSUES PRESENTED
    1.   Is the book privileged as a fair report of the Shah Trial?
    2.   Was summary judgment on the libel claims properly granted on other
    grounds?
    A.    Are the statements substantially true?
    B.    Are the statements objectively verifiable?
    C.    Do the statements convey a defamatory meaning to the reasonable
    reader?
    3.   Are the non-libel claims waived by Appellants’ failure to brief?
    x
    PRELIMINARY STATEMENT
    Appellees’ central contention in this appeal is that the Book is privileged as
    a fair report of the Shah Trial. To demonstrate the point, Exhibit A to the Motion
    for Summary Judgment was a 70 page document listing 91 statements Appellants
    claimed were defamatory, divided into nine topics or “gists.”1 Following this,
    Exhibit B was a chart prepared by Appellees showing the Shah Trial references
    that supported each challenged statement.2 Following the chart, grouped in tabs
    labeled B-1 through B-88, Appellees assembled the Book pages containing each
    challenged statement, together with record references from which the Book
    passage was derived.3
    The trial court had the tedious task of sorting through 91 challenged
    statements and hundreds of pages of testimony in support. This was a deliberate
    tactic, and one that Appellants have employed before.           In another libel case
    brought by another Blaffer descendant against a different author, using the same
    trial lawyer, the Dallas Court of Appeals sorted through hundreds of pages
    challenging 83 statements in the book.           Main v. Royall, 
    348 S.W.3d 381
    (Tex.App.—Dallas 2011, no pet.). That plaintiff’s failure to present a clear and
    concise statement of the alleged defamation did not deter the Dallas Court of
    1
    CR Vol. 2 pp. 636-707.
    2
    CR Vol. 2 pp. 708-724.
    3
    CR Vol. 2 pp. 725 - 3 CR 2581.
    1
    Appeals from rendering a defense judgment. The same tactics should not deter this
    Court here.
    In addition to the fact that the list of challenged statements is overlong and
    repetitive, Appellants have misleadingly edited many passages to completely
    distort their context. For illustration, quotations from the Book will use bold font
    to indicate how Appellants edited the passage, and underlining to highlight the
    context alerting the reader that the passage is trial testimony.        For example,
    Appellants present Statement 14 as follows: “the children suffered from neglect
    and physical abuse.”4 For context, this Brief quotes the Book as follows:
    Dinny’s further testimony painted an increasingly bleak picture. . . .
    Joan, he claimed, was battling alcoholism, and the children suffered
    from neglect and physical abuse. According to Dinny, there wasn’t
    even food in the house . . .5
    Bold font shows the redacted fragment that Appellants challenged as defamatory.
    Underlining shows that the reader is alerted that this characterization comes from
    trial testimony.
    STATEMENT OF FACTS
    This is a libel case. Defendant Michael Phillips (“Phillips”) wrote Monster
    in River Oaks (the “Book”). Plaintiffs are Joan Blaffer Johnson and her three
    4
    CR Vol. 2 p. 650.
    5
    2d Supp. CR Vol. I p. 80.
    2
    children: Wirt, Seth and Kaleta. Joan is a granddaughter and heiress of R. L.
    Blaffer, a founder of Exxon.
    The Book describes how the Plaintiffs were victimized by a con man named
    Dinny Shah. From 1997 to 2002, Shah befriended the Plaintiffs, moved into their
    home, misappropriated their property, and verbally and physically abused them.
    The trauma ended when Shah was arrested in 2002.
    The Johnsons sued Shah for assault and infliction of emotional distress. Seth
    and Kaleta Johnson v. Dinesh Shah, No. 2006-38382, 295th District Court (Hon.
    Tracy Christopher) (the “Shah Trial”). The Appellants’ 30 page petition recounted
    Shah’s abuse in vivid detail.6          All four Appellants testified about their
    victimization by Shah. No part of the Shah Trial record was sealed.
    Shah attempted (unsuccessfully) to deflect criticism by denying the charges
    and blaming others. The jury didn’t buy it. The Book includes the author’s harsh
    judgment that Shah was a child abuser, a thief, and a perjurer. The jury returned a
    $20 million verdict for the Johnsons.
    Defendant Phillips was Shah’s lawyer in the Shah Trial. Phillips wrote the
    Book based upon testimony and exhibits from the trial record. Large portions of
    the Book are verbatim excerpts from the transcript. Sixteen trial exhibits are
    reproduced in the Book’s Appendix.
    6
    CR Vol. 4 pp. 3709 – 41.
    3
    Appellants’ Brief states—incorrectly—that Shah took original Johnson
    family documents, gave the documents to Phillips, and that Phillips used the stolen
    documents to write the Book. Appellants’ Brief at 5-6. This is not true. While
    Shah lived with the Johnsons, he organized documents and financial records, and
    moved boxes of records to a storage unit rented in his name.7 In the discovery
    phase of the Shah Trial, Shah delivered original records from his storage unit to a
    copy service. The copy service made copies, delivered the copies to Phillips for
    discovery, and returned the originals to Shah. Both Phillips and the copy service
    provided uncontroverted affidavits to this effect.8 Phillips never had a key to the
    storage unit and has never been to the storage unit.9 Phillips paid for his own copy
    of the transcript and reviewed 3,000 pages of exhibits as source material for the
    Book.10
    In post-trial proceedings, Appellants moved to appoint a receiver, claiming
    that Shah had transferred their documents to a different storage unit maintained by
    his parents.11 Joan supplied an affidavit stating that her family’s records had been
    taken to a storage unit rented by Shah’s father.12 The receiver was appointed, and
    7
    CR Vol. 4 p. 3712 ¶ 13; 2d. Supp. CR Vol. III pp. 1361-62.
    8
    CR Vol. 3 p. 3067-68 ¶¶ 22-23, 3072-75.
    9
    CR Vol. 3 p. 3068 ¶ 23.
    10
    CR Vol. 3 p. 3061 ¶ 6.
    11
    CR Vol. 4 p. 3748.
    12
    CR Vol. 4 p. 3757.
    4
    by July 2012, the Johnsons’ lawyer acknowledged that the original records were in
    the storage unit maintained by Shah’s parents.13 For over three years the Johnsons
    have known that their records were held by the Shah family, not by Phillips.
    Appellants’ Brief also states—again incorrectly—that Phillips “attempted to
    extort $250,000 from the Johnson family.” Appellants’ Brief at 3. The “extortion
    demand” was a pretrial settlement offer dated May 9, 2008.14 It was one of a series
    of settlement offers traded back and forth between the parties. Before the May 9
    letter, Shah offered to pay $750,000 in settlement.15       Three weeks later, Shah
    offered up to $450,000 if allowed to pay over time.16 Throughout this exchange,
    Shah maintained that the Johnsons had some of his personal property, including
    artwork, which was why Shah claimed compensation.17 All of the settlement
    negotiations involved returning property whose ownership was disputed.
    SUMMARY OF THE ARGUMENT
    Summary judgment was proper on four grounds: (1) the Book is protected
    by the fair report privilege, (2) many challenged statements are substantially true,
    (3) many statements are not objectively verifiable, and (4) other statements do not
    convey a defamatory meaning to a reasonable reader.
    13
    CR Vol. 4 p. 3769.
    14
    CR Vol. 4 p. 3428.
    15
    CR Vol. 4 p. 3706 ¶ 5.
    16
    CR Vol. 4 p. 3743.
    17
    CR Vol. 4 p. 3744 ¶ 3; CR Vol. 4, p. 3429 ¶ 3.
    5
    The Book is privileged as a fair report of a public trial. The fair report
    privilege has 3 sources: constitutional law, common law, and statute. TEX. CIV.
    PRAC. & REM. CODE § 73.002. Book authors are media defendants with standing to
    assert the statutory privilege in § 73.002. Any speaker can claim the common law
    and constitutional privileges.
    The privilege is not self-conferred. Phillips did not initiate the Shah trial;
    those proceedings were filed by the Johnsons themselves. Most of the challenged
    statements came from the Appellants’ own witnesses. All four Appellants testified
    about their physical and mental abuse. Appellants also called police officers and
    medical experts who described the abuse, and criticized Joan for not protecting her
    children.
    Both the fair report privilege and the substantial truth defense assess the
    challenged statements by their impact on a reasonable reader. Statements may not
    be taken out of context by isolating sentence fragments. A reasonable reader
    understands that Appellants were victims of a crime, not perpetrators of crimes. A
    reasonable reader also readily understands that testimony in the Shah Trial was
    often sharply conflicting. In the credibility war, the Book portrays Appellants as
    credible and honest. It is Shah who is portrayed as an abuser and liar.
    Book authors and publishers are members of the print media, and the trial
    court correctly found that Appellees were media defendants. Trials are public
    6
    events, and issues regarding law enforcement, crimes and child endangerment are
    all of legitimate public concern. Since the case involves claims against a media
    defendant on matters of public concern, Appellants had the burden of proving
    falsity. Appellees negated both falsity and actual malice by pointing to the many
    public record sources for the Book, and including much of the trial record to give
    the Book context.
    While Appellees do not concede that the Book is embellished, both the fair
    report privilege and the substantial truth doctrine allow “breathing room” for an
    author to characterize events and use literary devices to convey impressions or
    descriptions to the reader. Those characterizations and descriptions do not prevent
    the Book from being a fair report, nor do they make the Book false.
    Appellants’ claims below included nine different “defamatory gists” and
    constituent sub-statements in their libel claim. Appellants’ claims also included
    non-libel claims: infliction of emotional distress, conspiracy, conversion and theft,
    aiding and abetting, and injunction. By this appeal, Appellants only briefed five of
    the nine “defamatory gists” raised below. Appellants briefed none of the non-libel
    claims. All claims not briefed are waived.
    7
    ARGUMENT AND AUTHORITIES
    I.       The Book is privileged as a fair report of a public trial.
    Texas law protects statements that are (1) fair, true and impartial accounts of
    judicial proceedings, and (2) other matters of public concern published for general
    information. TEX. CIV. PRAC. & REM. CODE § 73.002. Since the entire Book is
    taken from testimony and exhibits in the Shah Trial, the privilege applies to the
    entire Book.
    The motion below emphasized 3 grounds for the fair report privilege:
    statutory, common law and constitutional law.18 The fair report privilege was
    recognized at common law as an exception to the republication rule. R. Sack, On
    Defamation § 7:3.5 (4th Ed. 2012); RESTATEMENT 2D TORTS § 611. Texas law
    recognizes the common law fair report privilege. Howell v. Hecht, 
    821 S.W.2d 627
    , 632 (Tex.App.—Dallas 1991, writ denied); Goss v. Houston Community
    Newspapers, 
    252 S.W.3d 652
    , 655 (Tex.App.—Houston [14th Dist.] 2008, no
    pet.).      The privilege applies even if the underlying charges are untrue or
    defamatory. Id.; Freedom Communications, Inc. v. Sotelo, 
    2006 WL 1644602
    * 3
    (Tex.App.—Eastland 2006, no pet.).           “In other words, the accuracy of the
    publication is determined not by comparing it to the actual facts but to the law
    18
    CR Vol. 2 p. 535-37.
    8
    enforcement statement upon which the publication is based.” 
    Goss, 252 S.W.3d at 655
    .
    The privilege also has constitutional grounds, under the First Amendment to
    the United States Constitution and Article I § 8 of the Texas Constitution. Where a
    news article is a substantially true account of court proceedings, “the First
    Amendment precludes attaching any liability to their publication.” Langston v.
    Eagle Printing Co., 
    797 S.W.2d 66
    , 70 (Tex.App.—Waco 1990, no writ). See also
    Granada Biosciences, Inc. v. Forbes, Inc., 
    49 S.W.3d 610
    , 619 (Tex.App.—
    Houston [14th Dist.] 2001) rev’d on other grounds, 
    124 S.W.3d 167
    (Tex. 2003).
    Appellants’ Brief does not challenge the constitutional fair report privilege.
    A.    The statutory privilege in § 73.002 applies.
    Appellants argued that § 73.002 is inapplicable because it only provides a
    privilege for “a newspaper or other periodical.” To apply the privilege to one form
    of print media and not another would be nonsensical. The statutory privilege has
    been applied in Texas to all forms of print and broadcast media, including radio
    broadcasts, Traweek v. Radio Brady, Inc., 
    441 S.W.2d 240
    (Tex.App.—Austin
    1969, writ ref’d n.r.e.), television broadcasts; Maxwell v. Henry, 
    815 F. Supp. 213
    (S.D. Tex. 1993), news articles accessible by telephone; Crites v. Mullins, 
    697 S.W.2d 715
    (Tex.App.—Corpus Christi 1985, writ ref’d n.r.e.), and internet
    articles.   Kaufman v. Islamic Soc’y of Arlington, 
    291 S.W.3d 130
    , 138-43
    9
    (Tex.App.—Fort Worth 2009, pet. denied). The question isn’t whether the Book is
    “a newspaper or other periodical.” The question is whether the term “print media”
    includes publishers and authors of traditional books.
    Appellants argue that § 73.002 is inapplicable because Phillips is a lawyer,
    not a professional journalist, and the Book was self-published. Appellants’ counsel
    made the same argument for another Blaffer descendant—and lost it—in Main v.
    Royall, 
    348 S.W.3d 381
    (Tex.App.—Dallas 2011, no pet.). The Royall Court held
    that “authors and publishers of traditional books” are “members of the electronic or
    print media.” 
    Id. at 387.
    To distinguish between books and other media “would
    cause an inconsistent application of the statute and lead to an absurd result.” Id.;
    Masson v. New Yorker Magazine, Inc., 
    501 U.S. 496
    , 510 (1991) (First
    Amendment applies to libel action against a book author and publisher); Bantam
    Books, Inc. v. Sullivan, 
    372 U.S. 58
    , 64 n. 6 (1963) (free press protection
    “embraces the circulation of books, as well as their publication”); Doubleday &
    Co., Inc. v. Rogers, 
    674 S.W.2d 751
    , 754 (Tex. 1984) (applying First Amendment
    to appeal of defamation action by book author).
    The Civil Practices & Remedies Code defines “news medium” to
    specifically include a “book publisher,” or any other entity disseminating
    information to the public in printed form.        TEX. CIV. PRAC. & REM. CODE
    § 22.021(3) (conferring a qualified privilege to protect sources). Other Texas
    10
    courts have indicated that the statutory privilege in § 73.002 is available to book
    publishers and authors. Liles v. Finstad, 
    1995 WL 457260
    * 5-6 (Tex.App.—
    Houston [1st Dist.] 1995, writ denied) (not designated for publication) (assuming
    without holding that § 73.002 applied to book publishers). See also, Harvest
    House Publishers v. Local Church, 
    190 S.W.3d 204
    (Tex.App.—Houston [1st
    Dist.] 2006, pet. denied), cert. denied, 
    127 S. Ct. 2987
    (2007) (book publisher and
    author were members of “print media”).
    This record shows that Phillips’ Book was traditionally published and edited,
    distributed to bookstores, and sold to the general public. The Book was edited and
    printed by a traditional book publisher—Brown Books Publishing Group—but was
    published by Spindle Top because Brown Books wanted to issue the manuscript as
    a screenplay.19 Phillips paid a professional firm to edit the text, then had the
    manuscript vetted by two law firms and reviewed by English faculty from
    Southern Methodist University.20 The Book was sold by 2 national sellers—
    Barnes & Noble and Borders. It was distributed on Amazon and Kindle, and
    marketed at Brazos Bookstore, River Oaks Bookstore, and Murder by the Book.21
    Phillips hosted traditional book signings at stores and other locations.22 The Book
    19
    CR Vol. 3 p. 3062-3.
    20
    CR Vol. 3 p. 3061 ¶ 6, 3062 ¶ 8.
    21
    CR Vol. 3 p. 3065.
    22
    CR Vol. 3 p. 3066 ¶ 18.
    11
    made Amazon’s Top 100 Best Sellers for 57 straight weeks, at one point reaching
    number 3 in the True Crime category.23
    This is not a mere internet blog or web post. This is a traditional book that
    was professionally edited, marketed and distributed. The author and publisher are
    clearly members of the print media.
    B.     Since Appellees are media defendants and the Book addresses a
    public concern, Appellants have the burden of proof.
    Accounts of public trials are matters of public concern. “A trial is a public
    event. What transpires in the courtroom is public property.” Craig v. Harney, 
    331 U.S. 367
    , 374 (1947). Issues of crime and law enforcement are also matters of
    public concern. “The commission of crime, prosecutions resulting from it, and
    judicial proceedings arising from the prosecutions, however, are without question
    events of legitimate concern to the public . . .” Cox Broadcasting Corp. v. Cohn,
    
    420 U.S. 469
    , 492 (1975).
    In particular, issues of child safety and child endangerment are issues of
    legitimate public concern as a matter of law. Crumrine v. Harte-Hanks Television,
    Inc., 
    37 S.W.3d 124
    (Tex.App.—San Antonio 2001, pet. denied). Facts revealed in
    open court are public record even if they are “seamy, sordid and violent.” Wavell
    v. Caller-Times Publishing Co., 
    809 S.W.2d 633
    , 636 (Tex.App.—Corpus Christi
    1991, writ denied) (reports based on criminal prosecution and paternity action
    23
    
    Id. ¶ 17.
                                                12
    arising from attorney’s assault by former lover was a public concern). See also
    TEX. CIV. PRAC. & REM. CODE § 27.001(7) (Texas Citizens Participation Act),
    defining a “matter of public concern” to include any issue related to health, safety,
    or community well-being.
    This case thus constitutes a libel claim against a media defendant over a
    matter of public concern. This shifts the burden to Appellants to prove falsity.
    “The United States Supreme Court and this Court long ago shifted the burden of
    proving the truth defense to require the Plaintiff to prove that the defamatory
    statements were false when the statements were made by a media defendant over a
    public concern.” Neely v. Wilson, 
    418 S.W.3d 52
    (Tex. 2013). “To ensure that
    true speech on matters of public concern is not deterred, we hold that the common-
    law presumption that defamatory speech is false cannot stand when a plaintiff
    seeks damages against a media defendant for speech of public concern.”
    Philadelphia Newspapers, Inc. v. Hepps, 
    475 U.S. 767
    , 776 (1986).
    Appellants also have the burden to prove malice to overcome the fair report
    privilege. Klentzman v. Brady, 
    456 S.W.3d 239
    (Tex.App.—Houston [1st Dist.]
    2014, pet. filed); Hurlbut v. Gulf Atl. Life Ins. Co., 
    749 S.W.2d 762
    (Tex. 1987).
    13
    C.     The privilege is not self-conferred.
    Appellants cite a number of cases from other jurisdictions for the proposition
    that the fair report privilege may not be “self-conferred” by Phillips simply
    reporting his own statements. Appellants’ Brief at 14-16.
    This privilege is not self-conferred, and the cited cases have nothing to do
    with the present facts. For example, in Republic Tobacco Company v. North
    Atlantic Trading Company, 
    381 F.3d 717
    , 732 (7th Cir. 2004), one tobacco
    company filed an antitrust suit against a competitor, then sent a letter describing
    the antitrust claims to customers of the competitor. The letter was not privileged
    for two reasons: first, the company had filed the antitrust complaint and thus
    created the very lawsuit it was “reporting” on, and second, the letter was sent to the
    competitor’s customers to undercut their business, not to the public at large.
    Phillips did not file the lawsuit in the Shah trial, and the Book was sold to the
    public at large.
    Jurisdictions that have embraced the “self-confer” exception—and Texas is
    not one of them—have held that the privilege is lost “only if the defamer
    illegitimately fabricated or orchestrated events so as to appear in the privileged
    forum in the first place. That is the true danger against which the self-reported
    statements exception must guard.” Rosenberg v. Helsinki, 616 A2d 866, 876 (Md.
    1992), cert. denied, 
    509 U.S. 924
    (1993). (emphasis added). See also Computer
    14
    Aid, Inc. v. Hewlett-Packard Co., 
    56 F. Supp. 2d 526
    , 534 (E.D. Pa. 1999)
    (privilege can be lost if the defendant maliciously institutes a judicial proceeding to
    raise false and defamatory charges).
    The “self-confer” exception, even if adopted in Texas, would not apply for
    three reasons. First, Phillips did not initiate the Shah Trial. The Johnsons filed suit
    themselves. And the Johnsons did not simply file a notice pleading; the 30 page
    petition describes Appellants’ own abuse in lurid detail.24         No one kept the
    children’s names anonymous. There was no motion to seal the Shah Trial record.
    Second, as defense counsel, Phillips cannot be charged with “illegitimately
    fabricating or maliciously orchestrating events.”            Conducting discovery,
    exchanging settlement offers and examining witnesses are legitimate acts in
    discharge of a lawyer’s duties and are protected by attorney qualified immunity.
    See discussion infra at 17-18.
    Third, and most significantly, the privilege isn’t self-conferred because
    Phillips isn’t quoting himself. Almost all of the challenged statements come from
    the Johnsons’ own witnesses:
    24
    CR Vol. 4 p. 3709 – 3741.
    15
    Plaintiffs’ Witness                  Description                    Reference
    Joan Johnson             Joan admits kicking her children.2d Supp. CR Vol. V
    p. 2263-65
    Joan Johnson             Joan admits striking Seth in the CR Vol. 3 p. 3162
    face.
    Kaleta Johnson           Wrote memo to Mom: no 2d Supp. CR Vol. V
    screaming, violence or kicking.  p. 2119:10
    Wirt Blaffer             Stabbing photo of his mother.         2d Supp. CR Vol. IV
    p. 1999:13-16
    Kaleta Johnson           Throwing       keychain     at   Seth 2d Supp. CR Vol. IV
    requiring stitches in the ER.         p. 2044:15-23
    Seth Johnson             Joan whipped Seth once or twice.  2d Supp. CR Vol. V
    p. 2292:25
    Joan Johnson             Joan endured beatings herself and 2d Supp. CR Vol. V
    witnessed Shah beat her children p. 2235-36
    “many times.”
    HPD Officer Nguyen       Officer questions why Joan Johnson 2d Supp. CR Vol. II
    failed to protect her children.    p. 764:6-14
    HPD Sgt.       Kenneth Joan failed to protect her kids.        2d Supp. CR Vol. II
    Bounds                                                         p. 797:6-12
    Dr. Victor Scarano,      Joan was unable to protect her 2d Supp. CR Vol. IV
    Plaintiffs’ expert       children; Stockholm Syndrome.  p. 1875
    Dr. Arthur Farley,       Joan was “a plum to pluck,” very 2d Supp. CR Vol. V
    Plaintiffs’ medical      immature.                        p. 2357:12-18
    Expert
    Dr. Arthur Farley,       Kids were abused “by Mr. Shah and 2d Supp. CR Vol. V
    Plaintiffs’ medical      Mrs. Johnson.”                    p. 2380
    Expert
    Seth Johnson             Seth was sexually abused by Shah.     2d Supp. CR Vol. V
    p 2323, 2333-34
    Many more examples could be cited, but the point is clear. The privilege is
    not self-conferred because most challenged statements come from the Johnsons’
    witnesses.
    16
    D.     The settlement offer does not remove the fair report privilege.
    Appellants assert that the May 9 settlement letter was “extortion” and a
    “threat of defamation” suggesting an improper motive, thus invalidating the
    privilege. Appellants’ Brief, at 15. This is unfounded hyperbole.
    Under the doctrine of attorney qualified immunity, attorneys cannot be liable
    to opposing parties for actions taken in representing their client. Cantey Hanger,
    LLP v. Byrd, 
    2015 WL 3976267
    at * 3 (Tex. 2015). Qualified immunity applies
    even if the conduct is wrongful. Cantey, at *3; Alpert v. Crain, Caton & James,
    P.C., 
    178 S.W.3d 398
    , 405 (Tex.App.—Houston [1st Dist.] 2005, pet. denied).
    “Fraud is not an exception to attorney immunity;” immunity applies to any acts
    undertaken within the lawyer’s duties to his client. 
    Cantey, supra
    at * 5.
    The Johnson documents were mentioned in settlement offers and were
    exchanged in discovery, both of which are within a lawyer’s duties to his client.
    Aggressive settlement negotiations are “quintessentially” part of a lawyer’s duties.
    Reagan Nat’l Advertising v. Hazen, 
    2008 WL 2938823
    at * 2 (Tex.App.—Austin
    2008, no pet.); Huff v. Hirsch, 
    2010 WL 3294232
    at * 3 (Tex.App.—Houston [1st
    Dist.] 2010, no pet.). Engaging in discovery is likewise within a lawyer’s duties.
    An opposing party has no claim based on a lawyer aggressively seeking or
    resisting discovery. Sacks v. Zimmerman, 
    401 S.W.3d 336
    , 342 (Tex.App.—
    17
    Houston [14th Dist.] 2013, pet. denied); Mitchell v. Chapman, 
    10 S.W.3d 810
    ,
    811-12 (Tex.App.—Dallas 2000, pet. denied), cert. denied, 
    531 U.S. 1152
    (2001).
    A reminder that documents produced in discovery could become public at
    trial is merely stating the obvious.           Offering documents in evidence is a
    fundamental right of a party to litigation. Schade v. Rhodes, 
    2004 WL 1355094
    at
    * 3 (Tex.App.—Houston [1st Dist.] 2004, no pet.); Striedel v. Striedel, 
    15 S.W.3d 163
    , 166 (Tex.App.—Corpus Christi 2000, no pet.). It is not extortion to argue in
    settlement that evidence may be embarrassing. In Metzger v. Sebek, 
    892 S.W.2d 20
    , 46 (Tex.App.—Houston [1st Dist.] 1994, writ denied), a father settled a
    divorce proceeding on unfavorable terms because his wife threatened to use
    evidence of his alleged sexual abuse of a child. This Court held that this was not
    “extortion” of a settlement.
    This settlement letter occurred during litigation, arose in the midpoint of
    fluctuating counteroffers, and was well within Phillips’ duties to his client.
    II.   Literary devices and characterizations do not make the Book false, nor
    do they prevent it from being a fair report.
    Appellants argue that the Book is not protected by the fair report privilege,
    because Phillips added embellishments or characterizations that defeat the
    privilege. Appellees do not concede that the Book exaggerates the trial, but even if
    it did, that would not defeat the privilege.
    18
    Even embellished accounts are privileged where the variance is immaterial
    to a reasonable reader. “The critical test is the effect on the mind of the reader or
    listener; if the effect on the mind of the recipient will be the same, any variance
    between the actions charged and the actions proved should be disregarded.” Crites
    v. Mullins, 
    697 S.W.2d 715
    , 717 (Tex.App.—Corpus Christi, 1985, writ ref’d
    n.r.e.). In other words, the test for privilege is like the test for truth. There can be
    exaggerations, so long as those differences do not significantly affect the
    reasonable reader. “A showing of substantial truth will defeat an allegation of
    libel, even where the misconduct charged may be exaggerated, if no more
    opprobrium would be attached to appellant’s actions merely because of such
    exaggeration.” 
    Id. at 717
    (emphasis added).
    A number of Texas cases have applied the fair report privilege to news
    accounts of trials, even where the account “greatly exaggerates a libel-plaintiff’s
    misconduct,” finding that the differences would not affect a reasonable reader.
    Texas Monthly, Inc. v. TransAmerican Nat’l Gas Corp., 
    7 S.W.3d 801
    , 805
    (Tex.App.—Houston [1st Dist.] 1999, no pet.). Examples of privileged statements
    in TransAmerican are informative. The article said the plaintiff had “wiretapped
    the phones of employees.” The plaintiff argued that “wiretap” connoted a criminal
    intercept, whereas the employer’s recording of workplace conversations was legal.
    This Court described “wiretap” as “a literary device to grab the reader’s attention,”
    19
    
    Id. at 80,
    and held it was not sufficiently exaggerated to eliminate the privilege.
    Similarly, the article reported that a former employee had “quit as a matter of
    conscience” and accused the plaintiff’s CEO of “cooking the books.” The former
    employee denied saying that he quit as a matter of conscience, and the plaintiff
    argued that this conveyed a sense of revulsion that exaggerated the misconduct of
    plaintiff’s managers. The CEO denied using the phrase “cook the books.” This
    Court still held the news account privileged, despite the fact that the author’s
    characterizations did not flow literally from the trial record.
    To the same effect, a report that the plaintiff had been arrested for drag
    racing and possession of controlled substances was held to be a fair and impartial
    account of legal proceedings, even though (1) the plaintiff was never charged with
    racing, (2) he had a prescription for the alleged controlled substance, and (3) the
    controlled substance charge was later dismissed, and his arrest record expunged.
    Goss v. Houston Community Newspapers, 
    252 S.W.3d 652
    , 655-56 (Tex.App.—
    Houston [14th Dist.] 2008, no pet.).
    Just as an author’s original word choice does not negate privilege,
    exaggerations or literary devices used “to grab the reader’s attention” do not
    establish falsity. Thus, in the book Blood and Money, another Houston-based “true
    crime” book about the murders of Dr. John and Joan Hill, Tommy Thompson’s
    description of a police officer as “a hard-boiled egg” who was “well
    20
    accommodated to the fact that he had made but slight scratches on the face of the
    earth” were held to be nonactionable characterizations that would be perfectly
    understood by a reasonable reader. Raymer v. Doubleday & Co., Inc., 
    615 F.2d 241
    , 243 (5th Cir. 1980).       These characterizations were “merely a literary
    description of the author’s impression designed to create for the reader an
    immediate mental picture of the character.” 
    Id. The author’s
    speculation, in which
    officer Raymer looks at a waitress and imagines, “these old boys swap these girls
    back and forth like used cars,” would not be understood by a reasonable reader to
    impute sexual misconduct to the plaintiff. 
    Id. at 244.
    In another Houston-based
    true crime novel, the book Sleeping with the Devil was held to be substantially true
    despite the author’s characterization of the plaintiff as falling within a class of
    “informants, snitches, contacts . . . cultivated in the shadows of the night.” Waring
    v. William Morrow & Co., 
    821 F. Supp. 1188
    (S.D. Tex. 1993). The plaintiff
    argued that this characterization was not based on any official record, and made
    him appear scurrilous and disreputable. The court nonetheless held the book to be
    a substantially true account. The plaintiff, in fact, had been a confidential
    informant on a plot to murder Houston model Barbara Piotrowski.
    Texas privilege law was not changed by the Supreme Court’s decision in
    Neely v. Wilson, 
    418 S.W.3d 52
    (Tex. 2013). A recent decision from this Court,
    re-issued on rehearing after Neely, illustrates that authors still have “breathing
    21
    room” to employ characterizations and descriptions. Newspaper Holdings, Inc. v.
    Crazy Hotel Assisted Living, Ltd., 
    416 S.W.3d 71
    (Tex.App.—Houston [1st Dist.]
    2013, pet. denied). In Crazy Hotel, articles concerning investigations at an assisted
    living facility were protected as a fair report, despite the plaintiff’s claims that the
    articles were exaggerated. In each case, this Court found that the author’s
    embellishments did not defeat the privilege:
     Abuse. The newspaper reported that a nurse had verbally
    abused and threatened a resident when he refused his
    medication. The Court agreed that elder abuse was “a strong
    choice of words,” but concluded that the newspaper “could
    accurately characterize the conduct found by the report as ‘elder
    abuse’.” 
    Id. at 84,
    86.
     Eviction Notice. The Hotel complained that the article
    erroneously reported that the facility had served “eviction
    notices” on residents. The Hotel’s letter did not mention
    eviction. Again, the colorful language did not remove the
    privilege: “while Miller and the Hotel object to the use of the
    term ‘eviction notice’ to describe the letter’s effect on residents
    . . . the characterization reasonably describes one possible view
    of the letter’s contents.” 
    Id. at 85.
     Cascading Leaks. The newspaper reported that the facility had
    leaks causing water to “cascade” into the building. The record
    showed minor roof leaks in the dining room. Again, the
    author’s word choice did not eliminate the privilege: “The
    Index’s immoderate—in the Hotel’s view—word choice does
    not present a prima facie case that the descriptions, viewed in
    context, are less than substantially true.” 
    Id. at 85.
    22
    Again, Appellees do not concede that the Book mischaracterizes anything
    about the Shah Trial. But as these cases indicate, literary devices and word choices
    are insufficient to create fact issues on falsity or privilege.
    III.      Appellants do not have a valid claim for “libel as a whole.”
    Appellants claim that the entire Book is libelous “as a whole.” They attempt
    to construe statements in the prologue, on the dust jacket, or testimonials on the
    cover as “admissions” of a defamatory gist, such as the following:
     “Not since Blood and Money have such secrets of passion and
    possession been revealed about the residents of Houston’s
    River Oaks neighborhood . . .”
     “An intriguing story for the student of human weaknesses and
    the reader who relishes insight into the forbidden secrets of the
    fabulously rich.”
     “In some ways, this Book is a love story as well as a monster
    story. A story of a predatory monster that set out to control and
    then dominate a famous Houston family . . . It is a story of love
    offered but not returned. Of love needed but not offered.”25
    In these passages, both context and wording leave no doubt that these are
    unverifiable opinions. When the Book is read as a whole, rather than in isolated
    fragments, the reasonable reader gets the point that the author discredits Shah and
    endorses the Plaintiffs’ testimony as more credible. But first and foremost, this
    claim does not correctly apply Texas law on libel as a whole.
    25
    Appellants’ Brief at 23 – 24.
    23
    A.    This is not a proper “libel as a whole” claim.
    The theory of libel as a whole was set forth by the Texas Supreme Court in
    Turner v. KTRK Television, Inc., 
    38 S.W.3d 103
    (Tex. 2000). In Turner, the
    Supreme Court held that a plaintiff can prevail when discrete facts, literally or
    substantially true, are published so as to create a false and defamatory impression,
    either by omitting key facts or juxtaposing facts in a misleading way. 
    Id. at 115.
    Importantly, the requirement to prove falsity and defamatory meaning “depends on
    a reasonable person’s perception of the entirety of the publication and not merely
    on individual statements.” 
    Id. (emphasis added).
    This hypothetical reasonable reader “is no dullard. He or she does not
    represent the lowest common denominator, but reasonable intelligence and
    learning.” New Times, Inc. v. Isaacks, 1
    46 S.W.3d 144
    , 157 (Tex. 2004). Thus,
    sharp or biting parody is not defamatory, because the reasonable reader can “get
    the joke.” 
    Id. “Opinionated criticism”
    is not necessarily defamatory. Double
    Diamond, Inc. v. Van Tyne, 
    109 S.W.3d 848
    , 855 (Tex.App.—Dallas 2003, no
    pet.). When given the entire context, a reader of reasonable intelligence can tell
    the difference between factual charges of defamatory conduct on the one hand, and
    literary devices or testimonials used “to grab the reader’s attention” on the other.
    
    TransAmerican, 7 S.W.3d at 807
    .
    24
    The Turner example is illustrative. The Turner broadcast reported that
    lawyer Sylvester Turner had his “mutual friend” Dwight Thomas appointed as
    administrator of an estate, and only abandoned his “pursuit” of the estate when the
    judge removed him for “conflicts of interest.” 
    Id. at 118.
    One material omitted
    fact was that Thomas was appointed executor in the decedent’s will. Without
    knowing that Thomas was named as executor, the broadcast suggested that Turner
    abused his position by handpicking a friend to handle a valuable estate. Turner’s
    “pursuit” involved collecting a life insurance policy, but the broadcast failed to
    report that the beneficiary of the policy was the decedent’s father, not Turner or
    Thomas. And the only “conflict” leading to Turner’s disqualification was his dual
    role as a lawyer and fact witness. A reasonable reader could have the misleading
    and the mistaken impression that the “conflict of interest” involved Turner
    pursuing his own pecuniary interests to the estate’s detriment.
    By comparison, this “libel as a whole” claim plainly falls short. Turner
    considered the entire broadcast; Appellants argue libel as a whole based on heavily
    redacted statements taken from the Book cover and prologue, assuming the reader
    will ignore the more detailed and explanatory record inside. Turner pointed to
    specific omitted facts that made the entire broadcast misleading; these Appellants
    cite to characterizations they describe as “salacious and scandalous,” despite the
    25
    fact that the reasonable reader understands those characterizations are unverifiable
    descriptions of conflicting trial testimony.
    B.        Libel as a whole is based on verifiable facts, not testimonials.
    Libel must be based on false statements of fact which are “objectively
    verifiable.” Morris v. Blanchette, 
    181 S.W.3d 422
    , 424 (Tex.App.—Waco 2005,
    no pet.). Texas law “focuses the analysis on the statement’s verifiability and the
    entire context in which it was made.” Bentley v. Bunton, 
    94 S.W.3d 561
    , 581 (Tex.
    2002). The challenged statements on the dust jacket and prologue are clearly
    unverifiable.     Whether the story is “intriguing,” whether it concerns “human
    weaknesses” or “forbidden secrets” are descriptions that cannot be proven true or
    false. The reasonable reader understands that reviews on a dust jacket are the
    opinions of the reviewer, design to promote interest and draw a reader’s attention
    to the full story within. There is no exhibit, no testimony, no quantum of proof that
    can verifiably establish that the Book is “stark,” “powerful,” “tragic,”
    “scandalous,” or “epic.”
    C.        Appellants ignore context.
    Again, Turner instructs that defamatory meanings are determined by the
    entire statement as a whole, not by isolated statements or “piecemeal excerpts.”
    
    Turner, 38 S.W.3d at 115
    . Context is important. Id.; 
    Isaacks, 146 S.W.3d at 154
    -
    5. “[P]ublications alleged to be defamatory must be viewed as a whole—including
    26
    accompanying statements, headlines, pictures, and the general tenor and reputation
    of the sources itself.” City of Keller v. Wilson, 
    168 S.W.3d 802
    , 811 (Tex. 2005);
    Rehak Creative Services, Inc. v. Witt, 
    404 S.W.3d 716
    , 729 (Tex.App.—Houston
    [14th Dist.] 2013, pet. denied).
    This is the most glaring and recurrent problem with all of Appellants’
    arguments. Portions of testimony, and parts of sentences, are completely removed
    from the context in which the reasonable reader sees them.              For example,
    Appellants claim that Statement 14 accuses them of child abuse: “the children
    suffered from neglect and physical abuse.”26 But the context in which this eight
    word fragment appears reads in the Book as follows:
    “Dinny’s further testimony painted an increasingly bleak picture. The
    plumbing, according to his 2008 testimony, was in such disrepair that
    there were no working bathrooms in the house in 1996. The children,
    he said, were bathing in the backyard pool . . . Joan, he claimed, was
    battling alcoholism, and the children suffered from neglect and
    physical abuse. According to Dinny, there wasn’t even food in the
    house for the children to eat—all of this happening in the wealthiest
    neighborhood in Houston.
    The Johnson family, of course, would deny these assertions in the
    2008 civil trial.27
    The Johnsons’ rebuttal of Shah’s testimony, including Kaleta’s characterization
    that Shah’s claims were “absolutely ridiculous,” immediately follows the passage
    quoted above. The reasonable reader is not fooled. The context makes it clear that
    26
    CR Vol. 2 p. 650.
    27
    2d Supp. CR Vol I p. 80.
    27
    Phillips is describing conflicting trial testimony—the surrounding paragraph makes
    reference to trial testimony 6 times.
    Appellants ignore context in a broader and more meaningful way. The Book
    consistently endorses the Johnsons’ testimony as more truthful than that of Shah:
     “Some of Dinny’s more outrageous claims about the Johnson
    children were easily discredited.”28
     “David Gillis, who directly contradicted Dinny for no apparent
    reason other than to tell the truth, exposed Dinny quite publicly
    as a liar.”29
     “Dinny had perjured himself too many times. No one would
    believe him over the young Seth Johnson.”30
     “Anyone who knew Dinny Shah knew exactly what to expect
    from him during the trial: Denial. Rage. Convenient memory
    lapse. Falsehoods. Rabbit trails.”31
     “It is no big secret that Dinny Shah was a habitual liar. . . .
    Over the years, Dinny’s lies would become more and more
    outrageous.”32
    When the reasonable reader reads the entire Book, not just the dust jacket, he or
    she sees Shah as a “predator,”33 a “manipulator” and “physically violent,”34 a
    28
    2d Supp. CR Vol I p. 83.
    29
    2d Supp. CR Vol I p. 210.
    30
    2d Supp. CR Vol I p. 286.
    31
    2d Supp. CR Vol I p. 274.
    32
    2d Supp. CR Vol I p. 117.
    33
    2d Supp. CR Vol I p. 106.
    34
    2d Supp. CR Vol I p. 56.
    28
    “white collar thug”35 with an “uncanny ability to lie.”36
    By contrast, the Book describes Appellants as more credible, more
    impressive, and morally superior:
     “Kaleta would be a powerful witness. . . . To the jury, here
    was a girl who had her head screwed on right. . . . In the eyes
    of a jury, the acid test is the impression by the litigants
    themselves. Kaleta passed the acid test.”37
     “Though eighteen people testified against Dinny, painting him
    as a liar, manipulator, and a fraud, it was the children’s
    emotional testimony—particularly Seth’s—that would prove
    most damning.”38
     “Sgt. Bounds believes that Joan Johnson and the others he has
    spoken to are credible people, and he also believes that these
    other allegations merit follow up investigation.”39
     “Wirt Johnson set out to expose Dinny to be the lying,
    manipulative snake Wirt believed him to be.”40
     “By any criteria, Seth made a very impressive witness.41
     “[R. L. Blaffer] would be enormously proud of his great-
    grandson and great-granddaughter.”42
    35
    2d Supp. CR Vol I p. 68.
    36
    2d Supp. CR Vol I p. 118.
    37
    2d Supp. CR Vol I p. 280.
    38
    2d Supp. CR Vol I p. 274.
    39
    2d Supp. CR Vol I p. 268.
    40
    2d Supp. CR Vol I p. 205.
    41
    2d Supp. CR Vol I p. 281.
    42
    2d Supp. CR Vol I p. 287.
    29
    These passages repeatedly hammer home the Book’s essential premise. Shah is a
    “monster” whose testimony is “perjured” and who can never be believed. But the
    Johnsons are impressive and powerful witnesses, survivors of a horrible ordeal
    whose testimony is sympathetic and compelling. When read in context, and as
    understood by a reader of reasonable intelligence, this Book does not reach the
    level of a Turner claim for libel as a whole.
    IV.      The defamatory “gists” and constituent statements are substantially
    true, privileged, or not reasonably capable of the defamatory meaning
    Appellants attribute to them.
    At trial, the Johnsons listed 91 passages claimed to be defamatory, grouped
    into nine “defamatory gists.”43              To establish privilege, Phillips’ Motion for
    Summary Judgment incorporated a chart linking each challenged statement to
    testimony or exhibits from the Shah Trial.44 Following the chart, each passage
    from the Book was copied, with trial testimony in support, tabbed as Exhibits B1
    to B88.45 Since space limitations make it impossible to brief every statement,
    Appellees refer the Court to the chart and attachments to show that all of the
    statements are true and privileged.
    43
    CR Vol. 2 p. 636.
    44
    CR Vol. 2 p. 708-724.
    45
    CR Vol. 2 p. 725 – CR Vol. 3 p. 2567.
    30
    A.     “Domestic Violence Gist.”
    The Johnsons listed 19 statements that they claim convey a Domestic
    Violence Gist. In most cases, the statements are not reasonably capable of the
    defamatory meaning that Appellants attribute to them.            Other statements are
    substantially true. But in every case, the statements are privileged as a fair report
    of the trial record.
    (1)    Fair report privilege.
    Statement 1 is taken from page 68 of the book.46 This statement describes
    Shah’s testimony that Joan and her children fought frequently. This passage is
    clearly “identifiable by the ordinary reader as statements that were made in the
    proceeding,” 
    Neely, supra
    , 418 S.W.3d at 68, since Shah’s testimony is referenced
    5 times. Shah did testify that Joan and her daughter fought “50 plus times.” 47 He
    described Kaleta as “a very mean spirited little girl at that time,”48 and testified that
    Joan and the children often kicked each other.49 Shah testified that the fighting
    was “constant” and very physical, not normal childish fighting.50 This account is
    immediately followed by Statement 2, describing the incident where Kaleta threw
    46
    2d Supp. CR Vol. I p. 87.
    47
    2d Supp. CR Vol. III p. 1202:17-24.
    48
    2d Supp. CR Vol. III p. 1458:16-20.
    49
    2d Supp. CR Vol. III p. 1366:18-19.
    50
    2d Supp. CR Vol. III p. 1458:16-20.
    31
    a keychain at Seth causing a cut over his eye requiring stitches.51 This too is a
    direct account of Kaleta’s trial testimony.52
    Statements 3 and 4 reprise Shah’s testimony that Kaleta was “mean
    spirited,” had tantrums and had been disciplined at school.53 Shah’s testimony is
    accurately described and referenced for the reasonable reader. Shah did describe
    Kaleta as mean spirited.54          Shah did testify that Kaleta threw a tantrum at a
    bookstore when he wouldn’t buy what she wanted.55 The trial evidence included
    records of Kaleta’s school disciplinary problems.56
    Again, the tedious process of linking each statement to the trial record would
    make this Brief prohibitively long. But a few examples merit attention. Statement
    5, for example, claims that the Book says Kaleta required “anger management
    classes.”57 The Book says no such thing. This reference quotes Shah’s plea
    bargain, introduced in the trial record as Plaintiff’s Exhibit 2.58 Paragraph 26 of
    51
    2d Supp. CR Vol. I p. 87.
    52
    2d Supp. CR, Vol. IV p. 2044:15-23.
    53
    2d Supp. CR Vol. I p. 86-88, 107.
    54
    2d Supp. CR Vol. III p. 1458:16-20.
    55
    2d Supp. CR Vol. IV p. 1573-74.
    56
    CR Vol. 3 p. 2063-2071.
    57
    CR Vol. 2 p. 646.
    58
    CR Vol. 3 p. 2607.
    32
    the plea obligates Shah to “participate in an anger management treatment
    program.”59 It is Shah, not Kaleta, who was ordered to anger management class.
    As shown above, Statement 14—“the children suffered from neglect and
    physical abuse”—completely ignores the context, which attributes the statement to
    Shah’s testimony no less than six times in the surrounding text. Supra, at 27. In
    yet another example of distorted context, Appellants challenged Statement 13:
    “over the past several years, Child Protective Services had been called out to the
    Johnson home to investigate claims of child abuse.”60 Here too, the charge ignores
    context:
    Dinny claims that he and Mrs. Johnson then invited the officer inside.
    He also alleges that he was pulled aside and arrested without being
    allowed to tell his side of the story. According to Dinny, Johnson
    pointed an accusatory finger at him, and the Houston police officers
    believed her without any evidence. He described the police officer
    that night as acting out of jealousy over Mrs. Johnson’s expensive
    home, with a hunger to make an arrest for Kaleta’s abuse; over the
    past several years, Child Protective Services had been called out
    to the Johnson home to investigate claims of child abuse.
    Yet as different as Dinny’s and Joan’s stories are, there is one fact that
    all parties agree on: Dinny was booked into the Harris County Central
    Jail on Reisner Street that night, charged with injury to a child.61
    The Book alerts the reader five times that the author is describing Shah’s trial
    testimony.        Appellants apparently contend that the phrase regarding Child
    59
    CR Vol. 2 p. 762 ¶ 26; CR Vol. 3 p. 2611.
    60
    CR Vol. 2 p. 650.
    61
    2d Supp. CR Vol. I p. 27 (Book p. 8).
    33
    Protective Services is not a fair report because it is not immediately followed by
    attribution, such as “Shah testified.”              The same argument was rejected in
    TransAmerican, where the last sentence in a paragraph was not attributed to the
    witness Stone, but attributions such as “Stone said” appeared repeatedly
    throughout the adjacent text. 
    TransAmerican, supra
    , 416 S.W.3d at 810. This
    Court recognized that attribution need not be repeated in every sentence to clearly
    convey the trial testimony to the reasonable reader:
    Plaintiffs complain that this statement is not attributed to Stone and
    therefore not privileged. We disagree. The paragraph containing the
    statement has seven references to the fact that it was describing
    Stone’s testimony. We believe an ordinary reader would recognize
    that the sentence at issue was clearly referring to Stone’s testimony.
    Therefore, the privilege afforded in section 73.002 
    applies. 7 S.W.3d at 810
    . Shah did in fact testify that Child Protective Services had twice
    come to the Johnson house.62 Joan testified about a CPS investigator who came to
    interview the family,63 and exhibits show she consulted two law firms about CPS
    investigations.64
    In each case, these passages accurately summarize the trial record, and are
    identifiable to the reasonable reader as a reference to trial testimony.
    62
    2d Supp. CR Vol. IV p. 1575-76.
    63
    2d Supp. CR Vol. V p. 2197; CR Vol. 3 p. 3124:12-15.
    64
    CR Vol. 2 p. 974-80.
    34
    (2)    Not substantially false.
    Other statements describing conflicts in the Johnson home were substantially
    true.      For example, Statement 16 includes the Book’s account that Joan
    occasionally kicked her children.         This is an accurate of account of Joan’s
    testimony:
    Q.      You had kicked Kaleta, true?
    A.      [Joan] I have kicked her, yes.65
    Joan then elaborated that she “never kicked the children as hard as I could,” not
    sufficiently hard to leave marks, and that she never wore boots or hard shoes:
    “You normally wear flip flops or tennis shoes.”66 In a protective order hearing,
    Joan again admitted kicking her children:
    Q.      So just for the record, you have kicked both Seth and Kaleta,
    your son and daughter, Correct?
    A.      [Joan] Yes.67
    Joan admitted hitting her son Seth in the face, but claimed the event happened
    years before a CPS investigator came to her home.68
    The children’s testimony also admitted that many of the described physical
    confrontations were true. As set forth above, Kaleta admits cutting Seth in a fight
    65
    2d Supp. CR Vol. V p. 2263:22-3.
    66
    2d Supp. CR Vol. V p. 2265:11.
    67
    CR Vol. 3 pp. 3127-28.
    68
    CR Vol. 3 p. 3162:6-9.
    35
    causing an emergency room trip to get stitches.69 Seth admitted that his mother
    had whipped him “maybe once or twice.”70 Joan described a fight where Wirt
    threw Seth to the ground with sufficient force to cause a back injury.71 In an
    application to have Wirt admitted to boarding school, Joan wrote of her fear of
    Wirt’s violence: “I feel Wirt will kill me in the future if something is not done.”72
    Appellants challenge the Book’s description of the “Things for Mom to
    Work On” memo written when Kaleta and Seth were children. The memo was a
    trial exhibit:       “Things for Mom to Work On: (1) don’t scream (2) no
    violence/kicking.”73 Kaleta admitted writing the memo, but claimed she could not
    recall the circumstances.74
    Appellants challenged Statement 9, referring to the passage where Wirt
    kicked Joan’s car. Joan corroborated the incident both in a letter and in Wirt’s
    application to boarding school.75 Wirt admitted kicking the car, but denied that
    there was much damage.76              Statement 10 referred to the passage where Wirt
    stabbed a photograph of his mother into the back door of the house.              Joan
    69
    2d Supp. CR Vol. IV p. 2044:15-23.
    70
    2d Supp. CR Vol. V p. 2292:25.
    71
    CR Vol. 3 p. 2850.
    72
    CR Vol. 2 p. 1137.
    73
    CR Vol. 3 p. 2835.
    74
    2d Supp. CR Vol. V p. 2119:1-15.
    75
    CR Vol. 3 p. 2848; CR Vol. 2 p. 1129, 1137.
    76
    2d Supp. CR Vol. IV p. 1992:10-18.
    36
    described the stabbed photograph and said it frightened her.77 Wirt admitted that
    he had done it:
    Q.     Do you remember putting a photograph of your mom on the
    back door with either a screwdriver or a knife stabbed in the
    middle of it?
    A.     Yes. . . .78
    Statement 6 referred to a passage where Kaleta injured Seth’s pet rat. Kaleta
    admitted hurting the rat but claimed it was an accident.79 Shah testified that it was
    intentional.80
    In sum, Appellants admitted many of the “domestic violence” statements
    were true.
    (3)      The reasonable reader.
    Finally, even though Joan has admitted using corporal punishment on her
    children in the past, no reasonable reader would understand the Book as formally
    charging Joan with committing the felony of child endangerment. To the contrary,
    the Book repeatedly describes Joan’s grief and vulnerability, and sympathetically
    explains her actions under adverse circumstances. The reasonable reader knows
    77
    CR Vol. 3 p. 2851.
    78
    2d Supp. CR Vol. IV p. 1999:13-16.
    79
    2d Supp. CR Vol V p. 2116:13-24.
    80
    2d Supp. CR Vol. III p. 1457:16-24.
    37
    that Joan is no felon; rather, and as she admitted, she is simply a woman who
    sometimes “loses her cool as a mom.”81
    The Penal Code itself authorizes a parent’s use of force “when and to the
    degree the actor reasonably believes the force is necessary to discipline the child.”
    TEX. PENAL CODE § 9.61(a). The Family Code likewise recognizes a parent’s right
    to administer corporal punishment. TEX. FAMILY CODE § 151.001(a)(2); TEX.
    ATT’Y GEN. OP. GA-374 (2005). Even corporal punishment that leaves visible
    marks does not necessarily constitute child abuse. In re J.A.J., 
    225 S.W.3d 621
    ,
    631 (Tex.App.—Houston [14th Dist.] 2006), aff’d and rev’d in part on other
    grounds, 
    243 S.W.3d 611
    (Tex. 2007). As the Fourteenth Court noted: “At least
    90 percent of American parents have used corporal punishment at some time in
    rearing their children.” 
    Id. at 629.
    The Trial Court correctly granted summary judgment. These statements are
    fair accounts of conflicting trial testimony, and readily identifiable to the
    reasonable reader as such. In addition, many of the challenged statements were
    admitted by the Johnsons to be substantially true. Finally, in the full context of the
    Book, the reasonable reader gets the point that the Johnsons were victims of a
    crime, not perpetrators of crimes.
    81
    CR Vol. 3 p. 3128:2-4.
    38
    B.     “Perjury and Dishonesty Gist.”
    The Johnsons challenge eight passages they claim convey a defamatory gist
    of perjury: statements that the children “side-stepped” questions about fights, or
    that the defense team “went in circles” trying to question the children, or that Wirt
    was “manipulative.”82 These claims mischaracterize the text. The Book never
    called the Johnsons liars; to the contrary, the Book repeatedly makes the case that
    Shah is the liar: “Dinny had perjured himself too many times. No one would
    believe him over the young Seth Johnson.”83 Read in context, these statements are
    understood by the reasonable reader to be conflicting accounts of emotional
    testimony. It is readily understandable that the abused and the abuser would
    recount these events differently.
    The Trial Court properly granted summary judgment for three reasons:
    these statements are often not verifiable facts, they are privileged as a fair report,
    and the Appellants’ spin completely ignores the context that is readily apparent to a
    reasonable reader.
    (1)    Not objectively verifiable.
    A characterization that a statement “begs credulity,” or that a witness “side-
    steps” a question or was “manipulative,” are all opinions rather than objectively
    verifiable facts.       An answer may seem like a side-step to one listener, yet a
    82
    Statements 21, 22, 25.
    83
    2d Supp. CR Vol. I p. 286.
    39
    reasonable explanation to another. No reasonable reader would interpret these
    characterizations as a verifiable accusation of the crime of perjury. For example,
    the complete context of the statement describing Wirt as “manipulative”
    (Statement 45) reads as follows:
    Perhaps this was a jealous invention of a cunning sixteen year old who
    wanted David and Dinny out of the Johnsons’ lives. Like any
    teenager, Wirt could be manipulative; it also goes without saying
    that he probably resented the men’s new role as disciplinarians in the
    Johnson household.84
    This is not an accusation of perjury. Wirt’s manipulation is akin to that of “any
    teenager,” and as the Book makes clear, Wirt’s desire to rid the household of Shah
    is well-placed and clearly justified.
    (2)    Fair report.
    It is certainly fair comment to say that the children “side-stepped” questions
    about fighting, and that the defense team “went in circles” when they questioned
    Seth or Kaleta about the fights. Kaleta’s testimony went in part as follows:
    Q.     [By Mr. Phillips] How have you fought with your mother?
    A.     [Kaleta Johnson] Verbally.
    Q.     And—but you never had any physical contact with her whereby
    she would, like this exhibit here says, she would kick you?
    You’ve never—you had that experience, have you?
    A.     I don’t ever remember her kicking me.
    ...
    84
    2d Supp. CR Vol. I p. 164-5.
    40
    Q.     Did your mother have a habit of kicking you and Seth on
    frequent occasions?
    A.     I’ve answered your question. I don’t remember being kicked
    by her.85
    It is at least curious that a child would “not remember” being kicked by her own
    mother. Seth’s testimony was likewise evasive. When asked whether Shah had
    told Seth to lie to the CPS, or whether in fact Seth had been struck by his mother,
    Seth replied in part as follows:
    Q.     I guess I am asking you this: It’s true, is it not, that Mr. Shah
    didn’t tell you a thing? Your mother slapped you, you went to
    school, you told the truth.
    A.     [Seth] That first statement is false.86
    The lawyer’s first statement is that Shah did not tell Seth to lie. The second
    statement is that Joan struck Seth. Seth’s answer indicates only the first statement
    is false. At one point, Seth admitted being “whipped” by his mother once or
    twice.87
    Similarly, the Book’s characterization of Wirt as “manipulative” is a fair
    report. Several witnesses testified Wirt pressured Joan to buy him a new car, to
    85
    2d Supp. CR Vol. V p. 2124:7-25.
    86
    2d Supp. CR Vol V p. 2330:14-17.
    87
    2d Supp. CR Vol V p. 2292:24-2293:1.
    41
    refurbish his garage apartment, and to throw large parties for his friends.88 Joan
    described Wirt as manipulative in her own words:
    My son, Wirt Johnson, contrary to his own belief, knows precisely
    why he was sent to Rocky Mountain Academy. . . . His attempts to
    manipulate me and the staff of Rocky Mountain Academy and,
    furthermore, to deny knowledge of why he was placed there,
    demonstrates his shrewd nature.89
    Likewise, the passage in which Seth shows David Collie Joan’s diary (Statement
    26) is corroborated by Mr. Collie’s testimony:
    Q.     Tell me about Seth’s showing you the diary?
    ...
    A.     [Mr. Collie] I was talking to Kaleta. Seth said, “Dave, come
    here, come here.” I said, “Okay.” I walked into Joan’s
    bedroom. He said, “Look.” I went. I couldn’t believe it. I
    went downstairs and showed it [the diary] to Shah.90
    Appellants claim this statement accuses Seth of theft. The very passage describes
    Seth’s discovery of his mother’s diary as the by-product of “the mischievous
    curiosity of the ten year old he was.”91 No sane reader would interpret this passage
    as a verifiable accusation of perjury or theft.
    Likewise, the challenged statement concerning “Joan teaching Seth to lie
    and steal” (Statement 27) also ignores context. This passage is clearly quoting the
    88
    2d Supp. CR Vol III p. 1417:8-13; p. 1420:7-1422:3; CR Vol. 3 p. 2847-51.
    89
    CR Vol. 3 p. 2847.
    90
    2d Supp. CR Vol. IV p. 1931:21-1932:2.
    91
    2d Supp. CR Vol. I p. 170.
    42
    testimony of David Collie.92 Collie was describing an incident in which Seth took
    a Game Boy toy from another student’s backpack. When Joan discovered it, she
    instructed Seth to secretly return the Game Boy, but not to confess. Collie testified
    that this incident caused him to reconsider his relationship with Joan:
    Q.     The relationship, the romance, cooled at some point after about
    six months. Is that fair to say?
    A.     [Mr. Collie] I can’t—I remember when it cooled. It cooled
    when, after the Seth incident with the Game Boy when Joan
    was teaching Seth to lie and steal.
    …
    Q.     And the reason you decided to cool it was because you thought
    Joan was setting a bad example with Seth?
    A.     That is correct.93
    All of these statements are understood by the reasonable reader to be reports of
    conflicting trial testimony, and the reports are accurate.
    (3)    Mischaracterizations/ignoring context.
    It bears repeating that in these passages, as in many others, context is
    critical. Defamatory meaning is determined by looking at the entire statement as a
    whole, not piecemeal sections.           
    Turner, 38 S.W.3d at 115
    .        All of the
    “perjury/dishonesty” statements completely mischaracterize the Book and ignore
    the context.
    92
    2d Supp. CR Vol. I p. 180.
    93
    2d Supp. CR Vol. IV p. 1891:2-13.
    43
    For example, the Johnsons claim that the Book charges them with perjury
    when it characterizes the claims against Shah as “exaggerated” (Statement 24).
    The context makes clear that this passage is describing the defense attorney’s
    closing argument:
    Lead counsel for the defense—Michael Phillips—summed it up as
    best he could, given the circumstances. . . . The accusations against
    Dinny were exaggerated, he would argue, in order to deflect jury
    attention from Joan’s failure to blow the whistle, to resort to the
    legions of lawyers who looked after her millions, to respond to helpful
    neighbors.94
    Every reader knows that a lawyer’s closing argument will try to put the
    Defendant’s case in the most favorable light. No one would take this passage as a
    literal accusation of perjury.       Especially since the Book, in the two pages
    immediately following, reports that the jury rejected the Defendant’s arguments
    and returned a $20 million plaintiff’s verdict.
    Similar disregard for context occurs in the passage describing as “suspect”
    Joan and Wirt’s testimony about a private investigator named David Gillis
    (Statement 23). The question was who had hired Gillis to investigate Wirt. Shah
    claimed that Joan hired Gillis; Appellants claimed that Shah did. The complete
    passage reads as follows:
    On the stand, David Gillis proved to be a reliable witness, directly
    contradicting everything Dinny said.
    Attorney: Isn’t it true that Shah was a client of yours at some point?
    94
    2d Supp. CR Vol. I p. 291.
    44
    David Gillis: It is.
    ...
    Gillis affirmed for the Court that it was Dinny—not Joan Johnson—
    who hired Gillis to tail Wirt. . . .
    [Gillis’s] testimony was a valuable victory for the Plaintiffs. Joan
    and Wirt’s testimony concerning the private investigator reports that
    Dinny had ordered had been suspect; they both had a vested
    interest in making themselves look good in front of the jury. But
    David Gillis, who directly contradicted Dinny for no apparent reason
    other than to tell the truth, exposed Dinny quite publicly as a liar.95
    Context makes this perfectly clear. It is Shah, not the Johnsons, who perjured
    himself.
    C.     “Drug and Alcohol Gists.”
    Appellants challenge five statements (Statements 28 – 32) as false
    accusations of drug or alcohol abuse. Again, this mischaracterizes the text and
    ignores context, and these passages, like many others, are a fair report of the trial
    record.
    (1)    Ignoring context.
    Appellants challenge Statement 28 as an accusation that Wirt was an
    alcoholic. This passage includes a paraphrase that “Wirt’s attention turned to
    booze” and that Wirt “continued to drink heavily,” but the context makes clear that
    this paraphrase occurred in the middle of Shah’s self-serving testimony.
    Immediately preceding these descriptions, the Book alerts the reader four times
    that the author is describing Shah’s testimony: “Dinny testified” . . . “Dinny said”
    95
    2d Supp. CR Vol. I p. 209-10.
    45
    . . . “According to Dinny’s testimony” . . . and “Dinny told the court.”96 Where the
    two passages in Statement 28 appear on page 78 of the Book, the author again
    signals that he is referring to Shah’s testimony: “According to Dinny” . . . and
    “Dinny recalled that.”97 Just as the immediate context makes clear that the author
    is relying upon disputed testimony, the broader context reiterates time and again
    that Shah is a “perjurer” and “habitual liar,” and that the jury ultimately sided with
    the Johnsons rather than Shah.
    Appellants likewise ignore context in excising statements that referred to
    Joan. Appellants characterize Statement 31 as describing Joan as a “borderline
    alcoholic” without noting the complete context:
    After all, Joan was a borderline alcoholic abuser according to
    Dinny, although there is not much direct evidence to support that.98
    Statement 30 challenges a passage at page 63 of the Book which quotes testimony,
    but includes only the question of Shah’s defense counsel. The Book continues to
    include Joan’s immediate denial:
    Attorney: And you’ve also had problems with substance abuse,
    correct?
    Joan: Never. No, that is very incorrect.99
    96
    2d Supp. CR Vol. I p. 96.
    97
    2d Supp. CR Vol. I p. 97.
    98
    2d Supp. CR Vol. I p. 160.
    99
    2d Supp. CR Vol. I p. 82.
    46
    When these statements are fairly placed in context, the impression conveyed
    to the reasonable reader is that Shah’s claims of substance abuse were more
    unbelievable fabrications by a habitual liar, attempting (unsuccessfully) to shift
    blame from himself.
    (2)    Fair Report.
    The statements about drugs and alcohol are a fair report of the trial record.
    Statement 28 says that Shah testified that Wirt drank heavily, and that is a fair
    account of Shah’s testimony: “I know he [Wirt] was drinking a lot.”100 “[Wirt]
    continued to drink very heavily.”101 Shah testified that Wirt sent the gardener to
    buy a keg of beer for parties with his friends.102 Shah testified about beer cans
    littering Wirt’s apartment, and that Wirt was smoking marijuana.103 David Collie
    also testified that he warned Joan about Wirt’s excessive drinking:
    A.     [David Collie] [Wirt] had some parties, and at the parties he
    had alcohol. I told Mrs. Johnson of the liability problem with
    that, of having alcohol at a party. I told her, “when you and I
    were growing up you could drink and drive but today that’s not
    possible.” I don’t mind Wirt having parties. It’s great that he
    does. But serving alcohol and then kids leaving and having an
    accident, I said, “Mrs. Johnson or Joan, you could be opening
    yourself up to a major lawsuit.”104
    100
    2d Supp. CR Vol. III p. 1251:20-21.
    101
    2d Supp. CR Vol. III p. 1417:10-13.
    102
    2d Supp. CR Vol. III p. 1302:7-25.
    103
    2d Supp. CR Vol. III p. 1422:2.
    104
    2d Supp. CR Vol. IV p. 1913:11-19.
    47
    Joan noted that Wirt drank beer on his application to boarding school.105 Before he
    was sent to boarding school, Wirt was frequently tardy or missed class, which Joan
    attributed to his keeping late hours and partying to excess.106
    The Book’s scant references to Joan’s drinking alcohol are also a fair report
    of the trial record, especially considering that they are immediately juxtaposed by
    Joan’s denial,107 and the author’s editorial comment that “there is not much direct
    evidence to support” Shah’s claims of alcohol abuse.108 Shah describes meeting
    Joan Johnson at a party where “they were drinking wine and socializing.”109
    Shah’s testimony later described Joan’s circle of friends as “social people, drinking
    people.”110 Joan herself listed a family history of alcoholism on Wirt’s boarding
    school application.111 David Collie testified that he twice attended Alcoholics
    Anonymous meetings with Joan.112
    Placed in full context, the challenged statements regarding alcohol or drug
    use are clearly references to disputed trial testimony, and are a fair report of the
    trial record.
    105
    CR Vol. 3 p. 1137.
    106
    CR Vol. 3 p. 2848.
    107
    2d Supp. CR Vol. I p. 82.
    108
    2d Supp. CR Vol. I p. 160.
    109
    2d Supp. CR Vol. III p. 1246:9.
    110
    2d Supp. CR Vol. III p. 1484:19.
    111
    CR Vol. 2 p. 1134.
    112
    2d Supp. CR Vol. IV p. 1893:4-16.
    48
    D.     “Parental Neglect Gist.”
    Appellants identify seven statements (Statements 33 – 39) which they claim
    defame Joan as a neglectful parent.      In every case, these passages either are
    unverifiable characterizations, or when read in context, are either a fair report of
    the trial record, or not capable of the defamatory meaning that Appellants impute
    to them. More to the point, to the extent the “neglectful parent” characterization
    imputes verifiable facts, it is hard to see how any reasonable reader could find it to
    be substantially false.
    (1)    Not objectively verifiable.
    Whether the children were “starving for attention” (Statement 34), or
    “spoiled” (Statement 36), or “trapped” (Statement 37), or whether the house was “a
    mess,” all fall within the category of unverifiable characterizations. It is not
    possible to prove or disprove that a child is “spoiled” or “trapped.” Moreover,
    almost every characterization is accompanied by references to the trial record
    giving the reader a reference to the testimony supporting the author’s
    characterization. Where the facts or testimony supporting a characterization are set
    out in the text itself, allowing readers to evaluate the facts and form their own
    conclusions, the characterizations are not actionable. Vecchio v. Jones, 
    2013 WL 3467195
    * 8 (Tex.App.—Houston [1st Dist.] 2013, no pet.); Rehak Creative
    49
    Servs., Inc. v. Witt, 
    404 S.W.3d 716
    (Tex.App.—Houston [14th Dist.] 2013, pet.
    denied).
    Whether Joan’s “neglect” enabled “abuse” of her children is likewise
    inherently unverifiable—a subjective characterization rather than a provably false
    fact. “Neglect” has been held to be an unverifiable opinion. Brewer v. Capital
    Cities/ABC, Inc., 
    986 S.W.2d 636
    , 642-3 (Tex.App.—Fort Worth 1998, no pet.)
    (“patient neglect” at nursing home is an unverifiable characterization). “Abuse”
    has also been held to be an unverifiable opinion. Falk & Mayfield, L.L.P. v.
    Molzan, 
    974 S.W.2d 821
    , 824 (Tex.App.-Houston [14th Dist.] 1998, pet. denied)
    (“lawsuit abuse” is unverifiable; “the accusation is derogatory and disparaging, but
    this is no different than saying one is ugly, scurrilous or disgusting”); Newspaper
    Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 
    416 S.W.3d 71
    , 84
    (Tex.App.—Houston [1st Dist.] 2013, pet. denied) (characterization of “elder
    abuse,” while “a strong choice of words,” held not actionable). Whether Joan’s
    neglect enabled Shah’s abuse of her children was an integral part of the Plaintiffs’
    own case. More fundamentally, it is an “individual judgment that rests solely in
    the eye of the beholder.” 
    Molzan, supra, at 824
    ; Vice v. Kasprzak, 
    318 S.W.3d 1
    ,
    22 (Tex.App.—Houston [1st Dist.] 2009, pet. denied).
    50
    (2)    Fair report.
    To the extent the challenged statements present verifiable facts, these are
    privileged as a fair report of the trial record. Statement 33, for example concerning
    Shah’s testimony that Joan’s house was “a mess,” is the same as Statement 14, and
    supported by the same trial testimony.113 Statement 34 is another glaring example
    of distorted context (with Appellants’ redaction in bold):
    It seemed, according to Dinny’s testimony, that the house wasn’t the
    only thing that Joan had neglected: Seth, Kaleta, and even Wirt
    were starving for attention.
    Some of Dinny’s more outrageous claims about the Johnson children
    were easily discredited. During his 2008 civil trial, Dinny testified
    that Seth, who was nine years old in 1996, had never had a haircut in
    his life and didn’t know how to eat with a fork. Dinny would later
    change his story when early photographs presented at the trial clearly
    show Seth supporting a freshly cropped head of hair.
    ...
    Dinny also claimed that the children were not involved in sports of
    any kind when he arrived on the scene, and he credited himself with
    getting the children interested in athletics. It was because of his
    encouragement, Dinny told the Court, that Kaleta joined her school
    track team. And, he continued, Seth had absolutely no interest in
    sports until Dinny signed him up for baseball. Dinny said he often
    drove Seth to practice, and initially he nearly had to force Seth out of
    the car.
    In truth, Seth had been involved in little league baseball for years
    before Dinny arrived on the scene and Joan had the pictures to prove
    it. Photographs from 1994 show a smiling Seth dressed in his Post
    Oak Little League uniform, clutching a baseball bat.
    In the picture, Seth’s hair is neatly groomed.
    ...
    It’s very likely that Dinny really did encourage the Johnson children
    to go outside and play occasionally; it’s even plausible that, in her
    113
    CR Vol. 2 pp. 1183-1190.
    51
    grief, Joan had become less proactive about taking her kids to
    various practices and games. But Dinny’s testimony that Seth and
    Kaleta were completely inactive prior to his arrival was an
    exaggeration at best.114
    The Book tells the reader, ten times on two pages, that the author is referring to
    Shah’s trial testimony. The context alerts the reader how Shah’s testimony is
    unreliable when he gets caught in lies. The complete context includes the author’s
    editorial judgment that Shah is not to be believed: his “more outrageous claims”
    are “easily discredited,” and his other characterizations are “an exaggeration at
    best.”
    Statement 36 challenges Shah’s characterization that the Johnson children
    were “spoiled.” This passage includes a reference to Shah’s testimony that the
    kids cried, threw tantrums, and that Kaleta once threw a fit when Shah would not
    buy her books she wanted. Selective editing again distorts the context:
    According to Dinny, Kaleta’s tantrum was proof that she was a
    spoiled brat, used to getting everything she wanted. And there
    may be some truth in that; after all, Kaleta had grown up
    surrounded by fabulous wealth. But as every parent—rich or
    poor—knows, all children throw fits from time to time when they
    don’t get what they want, whether it’s a new video game, a pair of
    shoes, or a stack of books.115
    The reasonable reader understands that this passage is describing Shah’s testimony,
    and is reminded in context these behaviors are not defamatory, but behaviors
    114
    2d Supp. CR Vol. I pp. 83-84.
    115
    2d Supp. CR Vol. I p. 89.
    52
    typical of every child, rich or poor. And the passage is a fair report: Shah did
    testify that Kaleta threw “a tantrum” when he would not buy all of the books she
    wanted.116 Joan herself described Wirt as “a spoiled brat” in his boarding school
    application.117
    Statement 38 assails two characterizations in the Book where David Collie
    cited “parenting lapses” as a reason for breaking off his relationship with Joan.118
    Collie did testify that Joan was “setting a bad example” in telling Seth to return a
    toy without confessing that he took it.119         Statement 39 criticizes the Book’s
    rhetorical question of Shah’s version of events: “Was Joan Johnson really the
    neglectful, uncaring mother that Dinny claims she was?”120               But if any
    characterization in the book is privileged as a fair comment, it is the rhetorical
    question as to whether Joan was “neglectful” or “suffered parenting lapses.” By
    her own admission, Joan watched her children endure physical abuse “on a
    constant basis” for two years.121 She saw Shah assault Kaleta and Seth “many
    times.”122 She witnessed Shah beating Seth at a backyard barbeque in June 1998,
    116
    2d Supp. CR Vol. IV p. 1573-74.
    117
    CR Vol. 2 p. 1134.
    118
    2d Supp. CR Vol. I p. 162, 180.
    119
    2d Supp. CR Vol. IV p. 1891:2-17.
    120
    2d Supp. CR Vol. I p. 270.
    121
    2d Supp. CR Vol. V p. 2193-2195.
    122
    2d Supp. CR Vol. V p. 2235:20-2236:9.
    53
    two years before opening her home to him.123 She endured Shah and Collie
    beating her in front of her children.124 She endured Shah hitting Seth resulting in a
    CPS call to their home in 2001, without telling the CPS case officer the truth.125
    She allowed Shah to lock her and Seth in their garage and refused the opportunity
    to leave when her yard man unlocked the door.126 She gave over $1.2 million to
    Shah knowing it was to her family’s disadvantage.127 She made Shah and Collie
    the executor of her estate, knowing that it was not in her children’s best interests.128
    After the beatings began, she repeatedly designated Shah the guardian of her minor
    children,129 and named Shah and Collie as their godfathers.130 During this time,
    she had access to multiple attorneys, at least one CPA, other advisors, and CPS
    case officers who talked to her in her home, yet she never reported one incident nor
    made one complaint. She testified—under questioning by her own attorneys—that
    she did this out of fear, terrified for retribution that Shah would exact.131 The Book
    123
    2d Supp. CR Vol. V p. 2174:25-2175:23.
    124
    2d Supp. CR Vol. V p. 2179:22-2181:3.
    125
    2d Supp. CR Vol. V p. 2195:13-2198:5.
    126
    2d Supp. CR Vol. V p. 2198:6-24.
    127
    2d Supp. CR Vol. V p. 2145:20-2148:1; CR Vol. 3 p. 2845.
    128
    2d Supp. CR Vol. V p. 2174:4-20.
    129
    CR Vol. 3 p. 2855; CR Vol. 3 pp. 2673-85; pp. 2727-44.
    130
    CR Vol. 3 p. 2687, p. 2860.
    131
    2d Supp. CR Vol. V p. 2191:2-6; p. 2198:1-5; p. 2199:2-12.
    54
    not only accurately reports her claim that she was terrified of Shah,132 the Book
    also offers the explanation that Joan’s behavior could be attributed to the “well
    documented” psychological effects of battered women syndrome, or Stockholm
    Syndrome.133 “When Joan’s behavior is viewed in this light, perhaps many of the
    things she did or did not do to protect Seth and Kaleta are understandable.”134
    Given all of the unchallenged admissions in the Shah Trial record, the
    rhetorical question as to whether Joan was “neglectful” is certainly a fair comment,
    a fair report, and a thoroughly justifiable opinion based on the record.
    E.     “Child Abuse Gist.”
    Appellants complain of passages in the Book (Statements 46 – 64) which
    accuse Joan of failing to protect her children from Shah’s abuse.                Joan’s
    undisputed failure to act was very clearly a recurring point throughout the entire
    trial. It is an observation that is certainly privileged as a fair report. Moreover, the
    fact that Joan failed to protect her children is substantially true.
    (1)    Fair report.
    Statement 46 describes the final assault on Joan and Kaleta the night Shah
    was arrested. The Book recounts that Shah beat Joan in the driveway, after which
    132
    2d Supp. CR Vol. I p. 212.
    133
    2d Supp. CR Vol. I p. 213, 234, 281.
    134
    2d Supp. CR Vol. I p. 281.
    55
    she simply followed Shah into the home, and did nothing while she heard Shah
    beating Kaleta.135 This is a true account of Joan’s testimony:
    A.     [Joan Johnson] . . . I remember when I got out of the car—I
    was in the back. Suddenly I just—I yelled because the
    defendant had hit me very hard in the back and knocked a lot of
    air out of my lungs and it made a big sound, a big. . . . my bag
    fell on the floor, on the ground.
    ...
    A.     He picked it up and he started beating me over the head with it,
    and he also kicked me here in the thighs.
    ...
    A.     And they all three disappeared into the house. I picked up my
    purse and the things that had come out and on the driveway that
    I could see, it was dark, and I followed them into the house.
    Q.     Ms. Johnson, why didn’t you call the police?
    A.     How?
    Q.     911.
    A.     I would not have done that because I think—at the time I felt
    that the consequences of calling 911—I couldn’t control these
    men.
    ...
    A.     I heard lots of yelling in Kaleta’s room, men yelling and Kaleta
    screaming out in pain. I went into my room . . .136
    The Book’s account of Shah’s assault tracks Joan’s testimony directly. Joan did
    follow Shah into the house after the driveway assault.           Joan could hear her
    daughter screaming. But she did not help or call 911. It is certainly a fair
    135
    2d Supp. CR Vol. I p. 24-25.
    136
    2d Supp. CR Vol. V p. 2214:9-2216:11.
    56
    comment to question why, and to ask whether a mother’s inaction is “reasonable,”
    or “mysterious” in horrific circumstances.
    Almost all of the statements in the “child abuse gist” are variations on the
    same theme: why Joan failed to protect her children, or failed to act, or could not
    blow the whistle. All of these observations are privileged as a fair report of the
    trial and fair comment on matters of public concern.
    (2)    Not substantially false.
    The fact that Joan failed to protect her children is also substantially true.
    Plaintiffs called several witnesses who testified to precisely that observation, often
    in the same words. Houston Police Officer PD Nguyen was struck by the fact that
    Joan failed to protect Kaleta:
    A.     [Officer Nguyen] She said that Kaleta went into her room,
    Dinesh Shah followed her, went to Kaleta’s room, and all she
    could hear was her daughter screaming. And I asked Mrs.
    Johnson, “Well, if you hearing your daughter screaming,
    ma’am, why didn’t you go in there and try to protect her?”
    She said she was just too afraid of Mr. Shah.137
    Sergeant Kenneth Bounds was called by the Plaintiffs to testify to the same effect:
    A.     [Sergeant Kenneth Bounds] It was just obvious that something
    was, something bad was going on in that house because—Mrs.
    Johnson, you know, was trying to cover for him [Shah] initially,
    which goes against everything I have ever seen about a
    mother protecting a daughter. And I wanted to see—it was,
    obviously, they were terrified of this guy.138
    137
    2d Supp. CR Vol. II p. 764:6-14.
    138
    2d Supp. CR Vol. II p. 797:6-12.
    57
    The Johnsons also called Dr. Victor Scarano, a psychiatric expert, to explain why
    Joan failed to protect her children.
    Q.     And how would you characterize [Joan’s] behavior?
    A.     [Dr. Scarano] Well, I’d have to go through how it all
    developed but it, you know, it has to do with who she was,
    where she grew up, things that happened in her life prior to the
    entrance of Mr. Shah into her life and Mr. Collie, and the things
    that occurred after that that caused her to be in a situation
    where she was unable to protect her children.139
    Appellants called another medical expert, Dr. Arthur Farley, who testified that
    Joan’s inaction contributed to her children’s abuse.                Farley testified that
    understanding an abusive relationship was like “trying to peel an onion,”
    prompting this follow-up exchange:
    Q.     What’s at the heart of this [o]nion, Dr. Farley?
    A.     [Dr. Farley] Abuse.
    Q.     By whom?
    A.     By Mr. Shah and Mrs. Johnson.140
    When the Book reports the characterization that Joan failed to protect her children,
    it is literally repeating testimony from the Plaintiffs’ own witnesses—two police
    officers, two medical experts, and the Johnsons themselves—all of whom shared a
    139
    2d Supp. CR Vol. IV p. 1874-75.
    140
    2d Supp. CR Vol. V p. 2380.
    58
    subjective evaluation that is both an individual judgment, and a conclusion almost
    impossible to deny.
    Importantly, the context of the Book includes Joan’s explanation that she
    failed to act out of fear, and that the “well-documented” condition known as
    battered women’s syndrome likely explained her predicament.141 Joan admitted
    that she witnessed Shah physically assaulted her children “many times” over a
    period of years: “it was really getting bad. I was really afraid of him in 2002. He
    was getting very, very scary.”142 Joan’s own lawyer commented on her inability to
    protect her children:         “If he’s beating your children, you are supposed to do
    something, ma’am.”143 Joan’s lawyers then developed her direct testimony to
    explain her inaction:
    Q.    [Mr. Perdue] You’re a grown woman. You have young
    children. There is violence all around. Why didn’t you make
    an effort to stop it?
    A.    [Joan Johnson] I couldn’t figure out how. You see, when
    there is that much, when the threat of violence and you are that
    scared and you have two other, you’re not by yourself, I had
    two children to think about.144
    The Johnsons’ psychiatric expert, Dr. Scarano, was asked by Joan’s lawyers to
    comment on “Stockholm Syndrome:”
    141
    2d Supp. CR Vol. I p. 281.
    142
    2d Supp. CR Vol. V p. 2236.
    143
    
    Id. 144 2d
    Supp. CR Vol. V p. 2182.
    59
    A.     [Dr. Scarano] Stockholm Syndrome is a very interesting
    syndrome named after a bank robbery in Stockholm where two
    robbers entered a bank and the individuals that were there
    through the entire incident became, as a survival mechanism,
    became associated with the abusers, the robbers themselves,
    and in fact tried to—one of the women after the thing was over
    and he was arrested, one of the robbers was arrested, went out
    to raise money for him. So it’s a survival mechanism in which
    those people who are abused become affiliated with the abuser.
    Q.     [Mr. Clote] Do you have an opinion about whether or not that
    occurred in this case?
    A.     Certain elements of the Stockholm Syndrome are present in this
    case.145
    The Book’s account of Joan’s failure to protect her children is certainly a
    fair report, where the Plaintiffs themselves offered so much testimony to explain
    her inaction. Again, the Book includes Joan’s testimony that she was terrified of
    Shah because of death threats,146 the fact that she likely a victim of battered
    women’s syndrome,147 that the entire family was probably bound to Shah out of
    fear based on Stockholm Syndrome,148 and that all of these psychological factors
    made her predicament understandable.149 This is a fair account of the trial.
    145
    2d Supp. CR Vol. IV p. 1875:4-19.
    146
    2d Supp. CR Vol. I p. 212.
    147
    2d Supp. CR Vol. I p. 213.
    148
    2d Supp. CR Vol. I p. 234.
    149
    2d Supp. CR Vol. I p. 281.
    60
    Statements 48 and 49 are passages questioning why Joan would sign powers
    of attorney granting Shah and Collie authority over Joan and her children.150 These
    statements describe Joan’s actions as “ill advised” and “inexplicable.” These are
    unverifiable characterizations, but again, they are accurate and privileged
    observations based on the trial record, and to the extent that they connote verifiable
    matters of fact, they are certainly true.
    The Johnsons introduced 16 exhibits in which Joan granted powers of
    attorney or guardianships in favor of Shah over herself, her brokerage accounts and
    her children. Joan signed multiple documents appointing Shah guardian of Seth
    and Kaleta.151 Joan signed a durable power of attorney in favor of Shah over the
    affairs of Seth and Kaleta, and a special power of attorney over Seth when he went
    to school in Connecticut.152 She signed three statutory durable powers of attorney
    in favor of Shah or Collie, including one which appointed Shah and Collie as
    guardians for Seth and Kaleta.153 She signed six powers of attorney giving Shah
    and/or Collie authority to trade in her Merrill Lynch accounts.154 She signed two
    medical powers of attorney giving Shah authority to make her personal health care
    150
    2d Supp. CR Vol. 1 p. 117-119.
    151
    CR Vol. 3 pp. 2673, 2682-85, 2739, 2807, 2855.
    152
    CR Vol. 3 pp. 2727, 2742-44.
    153
    CR Vol. 3 pp. 2682-85; 2689-92; 2729-31.
    154
    CR Vol. 3 pp. 2676-80; 2700-25.
    61
    decisions.155 She designated Shah and Collie as godfathers for Seth and Kaleta.156
    Almost all of these documents were signed by Joan after the violence had begun,
    including an incident where Shah abused Joan on a trip to California in 1999,157
    and an incident where Shah again assaulted Joan on a trip to New York.158 It is
    certainly a fair comment to wonder aloud if this behavior is reasonable, explicable
    or mysterious.
    Passages in the Book which observed that Joan also failed to protect her
    family’s finances are likewise a fair report, and are undeniably accurate. Joan
    gifted Shah $1.2 million in a bizarre document that also has Joan assume the gift
    tax burden, and which the Book describes as almost certainly the product of Shah’s
    undue influence.159 The Johnsons offered evidence that Shah had talked Joan into
    transferring $2.5 million to him in gifts of stock and cash over four years. 160 Joan
    indemnified Shah and Collie from any loss they might incur in their “consulting
    services” to her.161 Shah also had Joan document a substantial number of “gifts” to
    him, including, inexplicably, many guns.162 It is both fair and accurate, and a
    155
    CR Vol. 3 pp. 2694-98; 2733-37.
    156
    CR Vol. 3 pp. 2687, 2860.
    157
    2d Supp. CR Vol. V pp. 2179:15-2181:3.
    158
    2d Supp. CR Vol. V pp. 2181:24-2182:11.
    159
    CR Vol. 3 p. 2845.
    160
    CR Vol. 3 p. 2783.
    161
    CR Vol. 3 p. 2746-48.
    162
    CR Vol. 3 pp. 2799-2803; 2828-30.
    62
    substantial understatement, to say that these transfers were not in the Johnsons’
    best interests.163
    Appellants challenge a number of other statements as accusations of child
    abuse. In every case, these are again fair accounts of the trial record. Statements
    56 and 57 question whether Joan believed or disbelieved allegations that David
    Collie may have abused one of the children. Statement 52 concerns a passage in
    which Shah believes Joan “cooked up” a false accusation of abuse in order to trick
    Collie into marrying her. Joan noted in her diary that Wirt had made a false
    accusation that David Collie molested Seth.164 The diary also speaks of Joan’s
    wish that Collie would marry her, and her fear that he will not.165 Collie testified
    that Wirt made a false accusation of sexual misconduct, but that Joan never
    believed it.166 Finally, the trial record includes Joan’s statement that she raised a
    false accusation against Collie of sexual misconduct with Kaleta to entrap Collie
    163
    Appellants argued below that their written statements were coerced by Shah and therefore
    unreliable. But the Book endorsed that view repeatedly: “it is very likely that many of the
    Johnson family’s personal letters and affidavits were the result of Dinny’s coercion.” (Book p.
    140). A statement that the plaintiff falsified reports is substantially true even though the plaintiff
    claims he was coerced into signing them. Louis v. Mobil Chem. Co., 
    254 S.W.3d 602
    , 610-11
    (Tex.App.—Beaumont, pet. denied). And an accurate account of disputed testimony remains
    privileged even if that testimony is recanted or disproved. Pardo v. Simmons, 
    148 S.W.3d 181
    ,
    192-3 (Tex.App.—Waco 2004, no pet).
    164
    CR Vol. 3 p. 1828 (DX 343).
    165
    
    Id. 166 2d
    Supp. CR Vol. IV p. 1930:6-24.
    63
    into marriage.167 Joan testified emphatically that the disputed document was a lie,
    coerced by Shah and signed by her only because she wished “to avoid more
    violence.”168      Shah testified that the whole event was an overreaction to one
    occasion when Kaleta jumped in Dave’s lap.169
    In sum, the passages that question Joan’s failure to protect her children, and
    her failure to protect her family’s financial interests, are well-substantiated in the
    trial record, including the testimony of the Appellants’ own witnesses, and they are
    certainly a fair comment on matters of public concern.
    V.        Appellants’ other claims are waived.
    In addition to the five “defamatory gists” listed in their Brief, Appellants
    raised four more “defamatory gists” in the trial court below: an “inappropriate
    behavior” gist, a “learning disabilities” gist, a “behavioral problems” gist, and a
    claim for defamatory statements about other members of the Blaffer family.170
    Appellants also brought non-defamation claims: invasion of privacy, infliction of
    emotional distress, theft and conversion of their documents, aiding and abetting,
    ratification, and a claim for injunctive relief.171
    167
    CR Vol. 3 p. 2853 (DX 15).
    168
    2d Supp. CR Vol. V pp. 2189:1-2191:6.
    169
    2d Supp. CR Vol. III pp. 1313:14-1314:24.
    170
    CR Vol. 3 pp. 3212-13; 3256-3261; 3271-3290.
    171
    CR Vol. 1 pp. 169-178.
    64
    The trial court granted Appellees a take-nothing summary judgment on all of
    Appellants’ claims.172 In this Court, Appellants only briefed the five defamatory
    gists described above. Appellants do not argue, brief, or assign any error on the
    other causes of action. A finding or judgment not challenged on appeal is waived.
    Jacobs v. Satterwhite, 
    65 S.W.3d 653
    , 655-6 (Tex. 2001); Swank v. Sverdlin, 
    121 S.W.3d 785
    , 797 (Tex.App.—Houston [1st Dist.] 2003, pet. denied), cert denied,
    
    544 U.S. 1033
    (2005). Points not raised in the brief will not be considered for
    review. TEX. R. APP. P. 38.1(f), (i); Escobar v. Harris County, 
    442 S.W.3d 621
    ,
    641 n. 12 (Tex.App.—Houston [1st Dist.] 2014, no pet.); Bob v. Cypresswood
    Community Ass’n, _____ S.W.3d _____, 
    2015 WL 3423753
    at * 3 (Tex.App.—
    Houston [1st Dist.] 2015, no pet.).
    CONCLUSION
    Appellees pray that the Trial Court’s summary judgment be in all respects
    affirmed.
    DATED and FILED this 18th day of September, 2015.
    172
    CR Vol. 4 p. 3780.
    65
    OGDEN, GIBSON, BROOCKS,
    LONGORIA & HALL, L.L.P.
    By:   /s/ William W. Ogden
    William W. Ogden
    State Bar No. 15228500
    bogden@ogblh.com
    Judith A. Meyer
    State Bar No. 13993200
    jmeyer@ogblh.com
    1900 Pennzoil South Tower
    Houston, Texas 77002
    Telephone: 713-844-3000
    Facsimile: 713-844-3030
    Attorneys for Appellees
    CERTIFICATE OF COMPLIANCE
    I hereby certify that this Appellees’ Brief has been prepared using Microsoft
    Word 10.0 computer software with the body of the brief in Times Roman 14 point
    typeface, and footnotes in 12 point typeface. Excluding those parts of the brief not
    counted by TEX. R. APP. P. 9.4, this brief contains 14,887 words.
    /s/ William W. Ogden
    William W. Ogden
    66
    CERTIFICATE OF SERVICE
    I certify that the foregoing document was filed electronically with the Clerk
    of the First Court of Appeals using the electronic case filing system of the Court. I
    also certify that a true and correct copy of the foregoing Brief was served on the
    following counsel of record for appellants via e-service on September 18, 2015.
    Marc S. Tabolsky
    YETTER COLEMAN LLP
    Two Houston Center
    909 Fannin, Suite 3600
    Houston, Texas 77010
    Mr. Patrick Zummo
    LAW OFFICE OF PATRICK ZUMMO
    Two Houston Center
    909 Fannin, Suite 3500
    Houston, TX 77010
    /s/ William W. Ogden
    William W. Ogden
    67