Opinion=20
issued March 27, =
2008
In=20
The
Court of Appeals
For The
First District of =
Texas
NO. 01-06-00565-CV
__________
JOHN =
C. SCOTT,=20
Appellant
V.
WILLIAM E. KING,=20
Appellee
On =
Appeal from=20
the 212th District Court
Galveston County,=20
Texas
Trial =
Court Cause=20
No. 04-CV-0203
MEMORANDUM=20
OPINION
<=
/SPAN>William E. King, while mayor of Kemah, =
Texas, sued=20
John C. Scott, a Galveston County Water Control and Improvement =
District=20
board member, for defamation, violation of the Texas Election =
Code, and=20
intentional infliction of emotional distress. After finding Scott =
liable=20
on all three claims, the jury awarded King $605,750. In nine =
issues, Scott=20
contends that (1) there is no evidence of damages; (2) because =
King and=20
Scott are both public officials, King cannot recover for =
defamation; (3)=20
the trial court improperly excluded evidence including =
=E2=80=9Cvarious reliable=20
news articles and campaign materials;=E2=80=9D (4) the trial court =
erred in=20
refusing to allow =E2=80=9Cseveral prominent citizens=E2=80=9D to =
testify; (5) the trial=20
court erred in submitting a jury charge which =
=E2=80=9Clumped=E2=80=9D privileged=20
statements with those that might raise an issue of defamation; (6) =
the=20
trial court erred in failing to submit a jury instruction limiting =
damages=20
to those actually proven; (7) King has no standing to sue him for=20
violating the Texas Election Code; (8) King was not entitled to =
attorney=E2=80=99s=20
fees; and (9) the evidence was legally and factually insufficient =
to=20
support the punitive damages award.
<=
/SPAN> We=20
affirm.
Background
<=
/SPAN>William=20
King was the mayor of Kemah, Texas from 2001 to 2005. John Scott =
was=20
president of a water district with overlapping jurisdiction during =
the=20
same period. The two differed on certain policy issues affecting =
the city=20
and the water district.
<=
/SPAN>In=20
May, 2003, King stood for re-election. Just before the election, =
two=20
anonymous flyers were mailed to residents of Kemah urging them not =
to vote=20
for King. King won. After the election, the anonymous flyers again =
began=20
to appear. Eventually, more than one dozen were sent. The flyers =
contained=20
various accusations about King. King later discovered that Scott =
had=20
written and distributed the flyers. ![3DFootnote](3D"")
A sampling of the statements =
found in the=20
flyers was submitted to the jury as follows:
<=
/SPAN>Question No. 3
Do you find from a preponderance of the =
evidence=20
that the following statements made by John Scott were false? =
Please answer=20
=E2=80=9CYes=E2=80=9D or =E2=80=9CNo=E2=80=9D in the space =
provided by each statement.
|
Scott=E2=80=99s =
Statement |
Answer
=E2=80=9CYes=E2=80=9D =
or =E2=80=9CNo=E2=80=9D |
|
=E2=80=9CWilliam E. King =
has conspired with=20
Clara Worthington and associates of the Internet web site =
known as=20
Kemah.net to build several e-mail address mailing lists . . =
.=E2=80=9D |
(Yes) |
|
=E2=80=9CIf you are =
wondering how King got=20
your e-E-mail [sic] address, wonder no more. You must have =
logged on=20
kemah.net or any of the sites associated with kemah.net, or =
have=20
been forwarded e-mail from King or any of his associates =
they=20
have your e-mail address. This gives him access =
to your=20
computer and all your private information in it. To =
avoid=20
this: 1. Change your e-mail address. 2. Never but never log =
on to=20
kemah.net. 3. Sign off the Internet whenever you are not =
using your=20
computer. 4. Do not open any e-mail from King.=E2=80=9D =
|
(Yes) |
|
=E2=80=9CThis (Kemah.net) =
is King=E2=80=99s=20
propaganda machine he has used to create his private E-Mail =
mailing=20
list . . .=E2=80=9D |
(Yes) |
|
=E2=80=9CKing attempted to =
cover up the facts=20
by having the city name on the web site as Kemp, Texas =
rather than=20
Kemah, Texas.=E2=80=9D |
(Yes) |
|
=E2=80=9CThis state sponsored terrorist must be =
stopped.=E2=80=9D |
(Yes) |
|
=E2=80=9CWilliam E. King is =
a frightening=20
person and I have the deepest concern for the board of =
directors of=20
Gal. Co. WCID #12 therefore I am requesting you to give =
state police=20
protection to all the Directors and consultants of The =
Galveston=20
County WCID #12.=E2=80=9D |
(Yes) |
|
=E2=80=9CI felt frighten =
[sic] that my life=20
is being threaten [sic] and have great concern for the =
safety of my=20
wife and home.=E2=80=9D |
(Yes) |
|
=E2=80=9C$2,500.00 of Kemah =
city money going=20
to Lakewood Yacht Club, a private membership only =
club?=E2=80=9D =E2=80=9CPublic=20
money being used for promoting a private corporation, is =
this=20
legal?=E2=80=9D |
(Yes) |
|
=E2=80=9C$25,000 for a =
televised fishing trip=20
so that the elistist [sic] King can get his picture on =
national TV=20
and be paid for by the common folk of his domain.=E2=80=9D =
[=E2=80=9C]Meanwhile the=20
city floods while Mayor King and his yacht club buddies go =
fishing=20
with city money.=E2=80=9D |
(Yes) |
|
=E2=80=9CI am filing a =
criminal complaint=20
against William E. King, Jim and Linda Guidry of Guidry News =
Service, Clara Worthington of Kemah.net and Paul Merryman of =
Wheels=20
and Keels at Lakewood Yacht. Evidence will show that these =
persons=20
and possibly others have conspired to influence public =
officials,=20
Galveston County WCID No 12 Board of Directors, in specific=20
performance of their duties. The evidence will also show =
that there=20
are many more violations of the laws as will be discovered =
in your=20
investigation. I will producer further evidence of violation =
of the=20
laws involved against the board of Directors of Galveston =
County=20
WCID No 12 by these persons immediately.=E2=80=9D |
|
|
=E2=80=9CKing took the city of Kemah from a financial =
sound condition to=20
over a million dollars in the hole in less than three =
years.=E2=80=9D |
(Yes) |
|
=E2=80=9CKing uses the Kemah Volunteer Fire Department =
for his charitable=20
events (Red & White Ball, Kemah Cookbook), but =
doesn=E2=80=99t given=20
them any money.=E2=80=9D |
(Yes) |
|
=E2=80=9CLinda Merryman has taken King=E2=80=99s money =
for other=20
projects.=E2=80=9D |
(Yes) |
|
=E2=80=9CWhat goes on behind the gates of the Somerset =
estate Mayor=20
King=E2=80=99s waterfront home he owns in Kemah??? Do these =
same Kemah city=20
employees maintain King=E2=80=99s palatial =
estate???=E2=80=9D |
(Yes) |
|
=E2=80=9CThey threaten public officials to get their =
way.=E2=80=9D In this=20
sentence, =E2=80=9Cthey=E2=80=9D referred to King and his =
law firm. |
(Yes) |
|
=E2=80=9CKing sued ex-mayor of Kemah, Texas, Ben =
Blackledge till he died.=20
King took him to court 5 times for most of 10 years over a =
so-called=20
implied warranty. |
(Yes) |
|
=E2=80=9CIn the newspaper King said in old-school Texas, =
we=E2=80=99d just give=20
=E2=80=98em as [sic] ass whuppin, =E2=80=9Cour forefathers =
=E2=80=98hung =E2=80=98em High=E2=80=9D or shot=20
=E2=80=98em to rag dolls now we go to court =
instead.=E2=80=9D |
(Yes) |
|
The only thing these 4 men did, was not giving in to the =
desires=20
of W.E. King and his band of Tax Nazis of which King =
apparently is=20
the chief =E2=80=9CStramineus Homo.=E2=80=9D |
(Yes) |
|
=E2=80=9CI firmly believe that William E. (Bill) King =
meets Webster=E2=80=99s=20
definition of =E2=80=98Psychopath - a mentally ill or =
unstable person; esp:=20
one who has lost contact with reality but who engages in =
abnormally=20
aggressive and seriously irresponsible behavior with little =
or no=20
feeling of guilt.=E2=80=9D |
(Yes) |
|
=E2=80=9CMy life has been threatened. I have been =
threatened with crosses=20
being burned in my front yard. My living room window has =
been shot .=20
. . . King has threatened me from the time when he first =
became=20
mayor in May of 2001 and the threats have continually gotten =
worse.=E2=80=9D |
(Yes) |
|
=E2=80=9CHe rules his serfdom from the bowels of downtown =
Houston, where=20
he hands out favors to his =E2=80=98good buddies=E2=80=99 =
through inflated invoices=20
paid for by the taxpayers of Kemah.=E2=80=9D
=E2=80=9CHe paid ten=E2=80=99s of thousands of dollars to =
his =E2=80=98Good Old Boys=E2=80=99 for=20
legal fees, that most lawyers would have done for a few =
thousand=20
dollars.=E2=80=9D |
(Yes) |
|
=E2=80=9CKing cost the Fire Dept. the loss of their =
antenna at the new=20
fire station, which would have been paid for by Sprint. =
Sprint was=20
forced to rent space on =E2=80=98King & buddies=E2=80=99 =
tower on FM 2094.=E2=80=9D=20
|
(Yes) |
|
=E2=80=9COne more term and we will have the new outer =
belt highway (SH=20
146) where our Community Center and new fire station should =
be, with=20
King=E2=80=99s property fronting on the new =
highway.=E2=80=9D |
(Yes) |
Scott alleged that the flyers were sent =
in=20
retaliation for King=E2=80=99s direct threats to himself and his =
fellow board=20
members. Scott testified that his home had been shot at, and he =
was afraid=20
of King.
<=
/SPAN>In=20
July, 2003, Scott filed a grievance with the State Bar of Texas =
against=20
King and sent letters to the Attorney General of Texas and to the =
Governor=20
asking for state police protection. Scott later filed complaints =
against=20
King with the local police department and the district attorney. =
Scott=20
admitted that some of these complaints were also forwarded to the =
media.=20
<=
/SPAN>In=20
May, 2004, an election was held for directors for the water =
district.=20
Scott and King supported opposing candidates. The day before the =
election,=20
roses arrived at King=E2=80=99s home. The flowers came with an =
unsigned card to=20
=E2=80=9CWild Bill=E2=80=9D recounting an alleged extra-marital =
affair between the sender=20
and King. The roses were delivered in the afternoon when =
King=E2=80=99s wife would=20
normally be the only person home to receive the delivery. King =
testified=20
that, upon receiving the roses, he felt =E2=80=9Cextreme anger. I =
think more just=20
total disgust that anyone in connection with the election would =
try to=20
cause problems in somebody=E2=80=99s marriage to me is beyond =
comprehension.=E2=80=9D=20
Scott denied any involvement with the flowers and card. =
<=
/SPAN>King=20
sued Scott for violations of the Texas Election Code relating to =
his=20
dissemination of the flyers, defamation, and intentional =
infliction of=20
emotional distress. Scott believes that, as public officials, he =
and King=20
=E2=80=9Chave the right to criticize the other under the First =
Amendment=E2=80=99s =E2=80=98free=20
speech=E2=80=99 rights. The trial court excluded testimony from =
=E2=80=9Cseveral prominent=20
citizens=E2=80=9D who would have testified that, =E2=80=9Cbased =
upon their personal=20
knowledge of Mr. King, he is not a truthful person; that he is =
=E2=80=98power=20
mad.=E2=80=99=E2=80=9D The trial court rendered judgment that King =
recover $605,750 from=20
Scott.
Inclusion/Exclusion of=20
Evidence
<=
/SPAN>In=20
issues three and four, Scott argues that the trial court =
improperly=20
excluded evidence from =E2=80=9Cvarious reliable news articles and =
campaign=20
materials=E2=80=9D and from =E2=80=9Cseveral prominent =
citizens.=E2=80=9D According to Scott, the=20
evidence was =E2=80=9Crelevant and material to the issues before =
the Court and=20
Jury because they thoroughly illustrate the aggressiveness of Mr. =
King=E2=80=99s=20
sustained attack and have a direct bearing on Mr. Scott=E2=80=99s =
=E2=80=98state of=20
mind.=E2=80=99=E2=80=9D
<=
/SPAN> To=20
preserve error in the exclusion of evidence, a party must (1) =
attempt=20
during the evidentiary portion of the trial to introduce the =
evidence; (2)=20
if an objection is lodged, specify the purpose for which the =
evidence is=20
offered and give the trial court reasons why the evidence is =
admissible;=20
(3) obtain a ruling from the court; and (4) if the court rules the =
evidence inadmissible, make a record, through a bill of =
exceptions, by=20
offering the precise evidence the party desires admitted. Ulogo =
v.=20
Villanueva, 177 S.W.3d 496, 501=E2=80=9302 (Tex. =
App.=E2=80=94Houston [1st Dist.]=20
2005, no pet.); see Tex. R.=20
App. P. 33.1(a). The purpose of a bill of exceptions is to =
allow a=20
party to make a record for appellate review of matters that do not =
otherwise appear in the record, such as evidence that was =
excluded. Tex. R. App. P. 33.2; =
Tex. R. Evid. 103(a)(2); =
see=20
also Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex.=20
2006). The offer of proof serves =
primarily to=20
enable the reviewing court to assess whether excluding the =
evidence was=20
erroneous and, if so, whether the error was harmful. Fletcher =
v.=20
Minnesota Min. and Mfg. Co., 57 S.W.3d 602, 608 (Tex. =
App.=E2=80=94Houston=20
[1st Dist.] 2001, pet. denied). It also allows the trial court to=20
reconsider its ruling in light of the evidence offered in the =
bill.=20
Id. Rule 103(b) reflects this secondary purpose by =
requiring that=20
the complaining party make the offer before the charge is read to =
the=20
jury, i.e., when the trial court is still in a position to cure =
any error=20
in excluding the proof. See id.; see also Tex. R. Civ. P. 270 =
(=E2=80=9C[I]n a jury=20
case no evidence on a controversial matter shall be received after =
the=20
verdict of the jury.=E2=80=9D); PGP Gas Prods., Inc. v. =
Fariss, 620 S.W.2d=20
559, 560 (Tex. 1981) (stating rationales underlying =
preservation-of-error=20
requirement).
<=
/SPAN>Scott=20
attached an =E2=80=9Coffer of proof=E2=80=9D to his motion for new =
trial. The record does=20
not reflect, however, that he made a timely offer; therefore, =
there is no=20
record of the precise testimony or evidence which Scott sought to=20
include.
Accordingly, Scott failed to =
preserve his=20
complaint that the trial court erred in excluding evidence.
<=
/SPAN>We=20
overrule issues three and four.
Sufficiency of the=20
Evidence
<=
/SPAN>In=20
issues one and nine, Scott contends that there is no evidence of =
actual=20
damages and there is legally and factually insufficient evidence =
to=20
support the punitive damages award. Specifically, Scott argues =
that =E2=80=9CMr.=20
King=E2=80=99s best damage evidence . . . =E2=80=98anger and =
disgust=E2=80=99 . . . fails.=E2=80=9D He=20
further argues that =E2=80=9Cpunitive damages are not recoverable =
for a violation=20
of the Election Code, and there has been no economic damage, =
political=20
damage, or compensable mental anguish damage in relation to =
Mr.=20
King=E2=80=99s defamation or intentional infliction of emotional =
distress claims.=E2=80=9D=20
In issue eight, Scott contends that King was not entitled to =
attorney=E2=80=99s=20
fees.
Standard of=20
Review
<=
/SPAN>A=20
=E2=80=9Cno evidence,=E2=80=9D or legal insufficiency, point of =
error is a question of law=20
that challenges the legal sufficiency of the evidence to support a =
particular fact finding. County of El Paso v. Dorado, 180 =
S.W.3d=20
854, 862 (Tex. App.=E2=80=94El Paso 2006, pet. denied). Because =
=E2=80=9Cno evidence=E2=80=9D=20
points are questions of law, we review them de novo. State =
Dep=E2=80=99t of=20
Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 =
(Tex.=20
2003). In conducting a legal-sufficiency review, =E2=80=9Cwe must =
view the=20
evidence in a light that tends to support the finding of disputed =
fact and=20
disregard all evidence and inferences to the contrary.=E2=80=9D =
Wal-Mart=20
Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). =
However,=20
=E2=80=9C[t]he final test for legal sufficiency must always be =
whether the=20
evidence at trial would enable reasonable and fair-minded people =
to reach=20
the verdict under review . . . . [L]egal-sufficiency review in the =
proper=20
light must credit favorable evidence if reasonable jurors could, =
and=20
disregard contrary evidence unless reasonable jurors could =
not.=E2=80=9D City=20
of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Thus, =
the=20
reviewing court must sustain a no-evidence challenge when =
=E2=80=9C=E2=80=98(a) there is a=20
complete absence of evidence of a vital fact, (b) the court is =
barred by=20
rules of law or of evidence from giving weight to the only =
evidence=20
offered to prove a vital fact, (c) the evidence offered to prove a =
vital=20
fact is no more than a mere scintilla, or (d) the evidence =
conclusively=20
establishes the opposite of the vital fact.=E2=80=99=E2=80=9D =
King Ranch, Inc. v.=20
Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell =
Dow=20
Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. =
1997)).
<=
/SPAN>In=20
determining the factual sufficiency of the evidence to support a =
jury=E2=80=99s=20
finding, courts of appeals are to weigh all the evidence, both for =
and=20
against the finding. Dow Chem. Co. v. Francis, 46 S.W.3d =
237, 242=20
(Tex. 2001). In reviewing a factual sufficiency challenge to a =
finding=20
where the burden of proof is not on the complaining party, we set =
aside=20
the verdict only if the evidence in support of the finding is so =
weak as=20
to render the verdict clearly wrong and manifestly unjust. Cain =
v.=20
Bain, 709 S.W.2d 175, 176 (Tex. 1986). In reviewing a factual=20
sufficiency challenge to a finding where the burden of proof is on =
the=20
complaining party, that party must show that =E2=80=9Cthe adverse =
finding is=20
against the great weight and preponderance of the =
evidence.=E2=80=9D Dow=20
Chem., 46 S.W.3d at 242. In conducting our review, we may not=20
substitute our judgment for that of the jury, which is the sole =
judge of=20
the credibility of witnesses and the weight to be given to their=20
testimony. Golden Eagle Archery, Inc. v. Jackson, 116 =
S.W.3d 757,=20
761 (Tex. 2003).
Analysis
<=
/SPAN>The=20
jury awarded King $52,000 in attorney=E2=80=99s fees for =
Scott=E2=80=99s violations of the=20
Texas Election Code, $23,000 in actual damages and $230,000 in =
punitive=20
damages for Scott=E2=80=99s defamatory statements, and $300,000 =
for Scott=E2=80=99s=20
intentional infliction of emotional distress.
<=
/SPAN>Attorney=E2=80=99s =
Fees
<=
/SPAN>In=20
issue eight, Scott contends that =E2=80=9CMr. King is not entitled =
to attorney=20
[sic] fees because Texas law does not provide for attorney [sic] =
fees in=20
defamation or intentional infliction of emotional distress cases. =
No=20
attempt was made to allocate attorney [sic] fees to the Election =
Code=20
Violation Claim . . . .=E2=80=9D We disagree.
<=
/SPAN>The=20
jury was asked as follows:
Question No.=20
1
What amount of money, if any, do you =
find from a=20
preponderance of the evidence was spent by John Scott attempting =
to effect=20
the outcome of the Kemah mayor=E2=80=99s election in 2003? Please =
answer in=20
dollar[s] and cents, if any, in the space provided.
<=
/SPAN>$(750.00)
Question No. 2
If you answer Question No. 1 with an =
amount in=20
excess of $100, please answer the following Question No. 2. If you =
answered with an amount less than $100, skip this question and go =
to=20
Question No. 3.
What amount, if any, do you find from a=20
preponderance of the evidence were the reasonable and necessary =
attorneys=20
fees incurred by William King in connection with bringing a claim =
against=20
John Scott in connection with the funds he spent in [the] Kemah =
election=20
in 2003[?]
<=
/SPAN>Please=20
answer in dollar[s] and cents in the space provided, if=20
any.
<=
/SPAN>$=20
(52,000.00)
King=E2=80=99s attorney testified as to =
reasonable and=20
necessary attorney=E2=80=99s fees, and Scott presented no =
testimony to rebut the=20
prima facie evidence of attorney=E2=80=99s fees. When there is =
uncontroverted=20
testimony by an interested party and the opposing party has the =
means and=20
opportunity of disproving the testimony and fails to do so, the =
testimony=20
will be taken as true as a matter of law. Ragsdale v. =
Progressive=20
Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (per curiam).=20
Accordingly, we hold that sufficient evidence supports the award =
of=20
attorney=E2=80=99s fees on King=E2=80=99s Election Code violation =
claim.
<=
/SPAN>We=20
overrule issue eight.
<=
/SPAN>Challenge to Damage =
Awards
<=
/SPAN>In=20
issue one, Scott contends that King =E2=80=9Cfailed to meet his =
burden of proving=20
damages, therefore, the Trial Court=E2=80=99s Judgment should be =
reversed and=20
judgment rendered that . . . King take nothing from . . . =
Scott.=E2=80=9D=20
<=
/SPAN>Scott=E2=80=99s=20
challenge fails to identify which of the three damages findings he =
intends=20
to challenge. The jury answered three damages questions, regarding =
(1)=20
compensatory damages sustained by King as a result of =
Scott=E2=80=99s alleged=20
defamatory statements, (2) exemplary damages assessed against =
Scott as a=20
result of his alleged defamatory statements, and (3) compensatory =
damages=20
sustained by King as a result of Scott=E2=80=99s alleged =
intentional infliction of=20
emotional distress.
<=
/SPAN>To=20
the extent Scott=E2=80=99s issue seeks to attack specific jury =
findings, it=20
appears to challenge the sufficiency of the evidence supporting a =
finding=20
that King sustained either monetary or mental anguish damages. =
However,=20
neither question 5 nor question 9 of the court=E2=80=99s charge =
are solely=20
restricted to these elements of damages. Question 5 instructed the =
jury=20
that it could award damages to King for =E2=80=9Cany injury to his =
character or=20
reputation, injury to his feelings, mental suffering or anguish, =
and other=20
similar wrongs or injuries that were proximately caused =
by=E2=80=9D Scott=E2=80=99s=20
alleged defamatory statements. Scott did not object to the =
question=E2=80=99s=20
characterization of possible damages. Question 9 instructed the =
jury to=20
award damages to King for any =E2=80=9Csevere=E2=80=9D emotional =
distress found to have=20
been intentionally inflicted by Scott in its answer to question=20
8.
<=
/SPAN>Scott=20
himself recites portions of the trial record supporting the =
jury=E2=80=99s award=20
of damages in its answers to these questions. Although King =
testified at=20
one point in the proceedings that he would not describe his =
feelings about=20
Scott=E2=80=99s flyers as rising to the level of =E2=80=9Cmental =
anguish,=E2=80=9D question 5 did=20
not limit an award of damages solely to mental anguish, but =
permitted=20
recovery of damages for =E2=80=9Cany=E2=80=9D injury to =
King=E2=80=99s =E2=80=9Ccharacter,=E2=80=9D =
=E2=80=9Creputation,=E2=80=9D=20
or =E2=80=9Cfeelings.=E2=80=9D Scott does not demonstrate how the =
record before us fails=20
to show any evidence of =E2=80=9Cany=E2=80=9D such injury. In =
addition, King testified=20
that he experienced =E2=80=9Cextreme anger and disgust=E2=80=9D as =
a result of the=20
pornographic card and bouquet of flowers delivered to his =
home=E2=80=93which he=20
attributed to Scott. We disagree with Scott=E2=80=99s contention =
that the delivery=20
of the card and flowers to King=E2=80=99s home did not amount to =
=E2=80=9Cextreme and=20
outrageous conduct=E2=80=9D as a matter of law and that there was =
no evidence to=20
support the jury=E2=80=99s award of damages to King for =
intentional infliction of=20
emotional distress.
<=
/SPAN>We=20
overrule issue one.
<=
/SPAN>Challenge to Punitive Damages =
Award
<=
/SPAN>In=20
issue nine, Scott asserts that =E2=80=9Cthe trial evidence is =
factually and=20
legally insufficient to support the Jury=E2=80=99s award of =
punitive damages.=E2=80=9D=20
This contention is not supported by citations to supporting legal=20
authority or the record and is inadequately briefed. See =
Tex. R. App. P. 38.1(h). =
<=
/SPAN>We=20
overrule issue nine.
Defamation
<=
/SPAN>In=20
issue two, Scott asserts that, because King and Scott are both =
public=20
officials, the free speech protections of the United States and =
Texas=20
constitutions preclude King from recovering on his defamation =
claim as a=20
matter of law. As a result, Scott claims that the trial =
court=E2=80=99s judgment=20
should be reversed and a take-nothing judgment rendered against =
King.=20
However, Scott did not raise this complaint in a motion for =
directed=20
verdict at the close of King=E2=80=99s evidence or at the close of =
all of the=20
evidence at the end of the trial, nor did he object to the =
submission of=20
the liability questions on defamation on this ground at the formal =
charge=20
conference. Accordingly, Scott has not preserved the asserted =
error for=20
review. Tex. R. App. =
P.=20
33.1. We overrule issue two.
Charge =
Error
<=
/SPAN>In=20
issue five, Scott asserts that the trial court erred in submitting =
a jury=20
charge which =E2=80=9Clumped=E2=80=9D privileged statements with =
those that might raise an=20
issue of defamation, and, in issue six, he contends that the trial =
court=20
erred in failing to submit a jury instruction limiting damages to =
those=20
actually proven.
Standard of=20
Review
<=
/SPAN>The=20
Texas Supreme Court has adopted the following test for =
preservation of=20
charge error: Did the trial court know of and overrule the =
substance of=20
the complaint at a time when the court could have corrected the =
problem in=20
the charge but did not? See State Dep=E2=80=99t of Hwys & =
Pub. Transp. v.=20
Payne, 838 S.W.2d 235, 241 (Tex. 1992) (holding that there =
=E2=80=9Cshould be=20
but one test for determining if a party has preserved error in the =
jury=20
charge, and that is whether the party made the trial court aware =
of the=20
complaint, timely and plainly, and obtained a ruling.=E2=80=9D). =
Therefore, an=20
objection to a defective instruction is sufficient to preserve =
error, and=20
a request using substantially correct language is not required. =
Spencer=20
v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.=20
1994).
<=
/SPAN>=E2=80=9CRule=20
277 of the Texas Rules of Civil Procedure requires a trial court =
to submit=20
=E2=80=98such instructions and definitions as shall be proper to =
enable the jury=20
to render a verdict.=E2=80=99=E2=80=9D State Farm Lloyds v. =
Nicolau, 951 S.W.2d=20
444, 451 (Tex. 1997) (quoting Tex.=20
R. Civ. P. 277). We review a trial court=E2=80=99s decision =
to submit or=20
refuse an instruction under an abuse of discretion standard. =
Shupe v.=20
Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). When the trial =
court=20
refuses to submit a requested instruction on an issue raised by =
the=20
pleadings and the evidence, the issue on appeal is whether the =
request was=20
reasonably necessary to enable the jury to reach a proper verdict. =
Id.; Texas Workers=E2=80=99 Comp. Ins. Fund v. =
Mandlbauer, 34 S.W.3d=20
909, 912 (Tex. 2000). To be proper, an instruction =E2=80=9Cmust =
(1) assist the=20
jury; (2) accurately state the law; and (3) find support in the =
pleadings=20
and the evidence.=E2=80=9D Mandlbauer, 34 S.W.3d at =
912.
<=
/SPAN>The=20
trial court has wide discretion to determine the sufficiency of=20
definitions and instructions. Plainsman Trading Co. v. =
Crews, 898=20
S.W.2d 786, 791 (Tex. 1995); Allen v. Allen, 966 S.W.2d =
658, 659=20
(Tex. App.=E2=80=94San Antonio 1998, pet. denied). The test of the =
sufficiency of=20
a definition is its reasonable clarity in enabling jurors to =
understand=20
legal words or phrases so that they may properly answer the =
questions and=20
render a verdict in the case. Allen, 966 S.W.2d at 660; =
Harris=20
v. Harris, 765 S.W.2d 798, 801 (Tex. App.=E2=80=94Houston =
[14th Dist.] 1989,=20
writ denied). An instruction is improper only if it misstates the =
law as=20
applied to the facts. Harris, 765 S.W.2d at 801.
<=
/SPAN>If=20
the reviewing court determines that the trial court gave an =
improper=20
definition, it must then proceed to inquire whether the error was=20
harmless. Allen, 966 S.W.2d at 660; M.N. Dannenbaum, =
Inc. v.=20
Brummerhop, 840 S.W.2d 624, 631 (Tex. App.=E2=80=94Houston =
[14th Dist.] 1992,=20
writ denied); see also Tex.=20
R. App. P. 44.1(a)(1). The omission of an instruction is =
reversible=20
error only if it probably caused the rendition of an improper =
judgment.=20
Shupe, 192 S.W.3d at 579.
Improper Charge=20
=E2=80=9CLumped=E2=80=9D Privileged Statements
<=
/SPAN>In=20
issue five, Scott asserts that the trial court =E2=80=9Ccompounded =
its errors and=20
further abused its discretion, by submitting for jury =
determination all of=20
Mr. Scott=E2=80=99s statements made to Government Authorities and =
those which do=20
not constitute defamation.=E2=80=9D
<=
/SPAN>In=20
its entirety, Scott=E2=80=99s argument on this issue is as =
follows:
As previously shown, in the pre-trial =
conference,=20
the trial Court ruled that Statements 1, 2, 3, 6, 11, and 13, 21, =
and 22,=20
of Plaintiff=E2=80=99s trial Exhibit No. 1, do not constitute =
defamation, yet she=20
inexplicably, and over Defendant=E2=80=99s objections, submitted =
them to the jury=20
for determination. Furthermore, lumping other statements which are =
privileged: statements 4, 5, 6, 7, 10, and 19 of =
Plaintiff=E2=80=99s Exhibit 1 and=20
Statements which do not constitute defamation (because they are =
directed=20
at a group not at Mr. King or because they are only opinions: =
statements=20
8, 9, 15, 18, 19, 20, 22, and 23 together with those about which =
there=20
might be a question then submitting all of them for jury =
determination,=20
caused Mr. Scott not to get a fair trial. There is no way to tell =
how much=20
weight such statements were given by the jury.
(Internal citations to the record =
omitted.) This=20
contention is not supported by citations to supporting legal =
authority and=20
is inadequately briefed. See Tex. R. App. P. 38.1(h). =
<=
/SPAN>We=20
overrule issue five.
Improper Damages=20
Instruction
<=
/SPAN>In=20
issue six, Scott contends that, because the First Amendment to the =
United=20
States Constitution and =E2=80=9CTexas Supreme Court law limits =
the amount of=20
recovery in defamation cases to economic damages actually proven, =
and to=20
general damages which are reasonable based upon the trial =
evidence, the=20
trial Court erred in ignoring Defendant=E2=80=99s requested =
instructions, and=20
instructing the Jury that they could award whatever they=20
wanted.=E2=80=9D
<=
/SPAN>Scott=E2=80=99s=20
issue appears to assert two complaints. First, Scott alleges that =
the jury=20
charge was incorrectly submitted for failing to limit the damages =
awarded.=20
This complaint was not addressed in the charge conference. With =
respect to=20
jury question five, pertaining to the compensatory damages for =
defamation,=20
at the charge conference, Scott only complained that the charge =
=E2=80=9Ctalks=20
about presumption of injuries.=E2=80=9D The trial court must have =
agreed with=20
Scott because the question submitted to the jury does not include =
such a=20
presumption. Second, the issue references the sufficiency of the =
evidence=20
to support the damages that were awarded. We have already =
addressed this=20
complaint.
<=
/SPAN>We=20
overrule issue six.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Election Code
<=
/SPAN>In=20
issue seven, Scott argues that King is not entitled to recover =
against him=20
for any alleged violation of the Texas Election Code. =
Specifically, Scott=20
contends that, because he and King were never opposing candidates =
in any=20
election, King lacks standing to sue Scott for expenses Scott =
incurred in=20
creating the flyers which were critical of King.
<=
/SPAN>A=20
person not acting in concert with another person may make a direct =
campaign expenditure of more than $100 if that person =
=E2=80=9Ccomplies with=20
Chapter 254 as if the individual were a campaign treasurer of a =
political=20
committee=E2=80=9D and the individual receives no reimbursement =
for the=20
expenditures. Tex. Elec. =
Code=20
Ann. =C2=A7 253.062 (Vernon 2003). If an expenditure is =
made in=20
violation of Chapter 253 and if the expenditure is made in =
opposition to a=20
candidate, that candidate is entitled to recover damages equal to =
twice=20
the value of the unlawful expenditure and reasonable =
attorney=E2=80=99s fees.=20
Tex. Elec. Code Ann. =
=C2=A7=20
253.131 (Vernon 2003).
<=
/SPAN>Scott=20
admitted that he created and disseminated two flyers prior to the =
2003=20
Kemah election in an effort to persuade voters to vote for =
King=E2=80=99s=20
opponent. The jury found that Scott spent $750 =E2=80=9Cattempting =
to effect [sic]=20
the outcome of the Kemah mayor=E2=80=99s election in =
2003.=E2=80=9D Scott contends,=20
however, that, because he and King were not opponents, King lacks =
standing=20
to sue under the Election Code. We disagree.
<=
/SPAN>Section=20
253.131, entitled =E2=80=9CLiability to Candidates,=E2=80=9D =
provides, in part:
(a)A person who knowingly makes or =
accepts a=20
campaign contribution or makes a campaign expenditure in violation =
of this=20
chapter is liable for damages as provided by this =
section.
(b)If the contribution or expenditure is =
in=20
support of a candidate, each opposing candidate whose name appears =
on the=20
ballot is entitled to recover damages under this section. =
(c)If the contribution or expenditure is =
in=20
opposition to a candidate, the candidate is entitled to recover =
damages=20
under this section.
Id. The statute nowhere requires =
that the=20
offender/contributor be a candidate, as well. Accordingly, we hold =
that=20
King had standing to assert a claim for violation of the Texas =
Election=20
Code.
<=
/SPAN>We=20
overrule issue seven.
Conclusion
=
We=20
affirm the trial court=E2=80=99s judgment.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; George=20
C. Hanks, Jr.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of =
Justices=20
Nuchia, Hanks, and=20
Higley. |