Private Figure Msj Issue

Zumo & MIDKIFF,L.L.P. THREE ALLEN CENTER, 333 CLAY, SUITE 4500 HOUSTON, TEXAS 77002 (713) 651-0590 FAX (71 3) 651-0597

March 5,2008 Via Messenger Ms. Jerry Deere Brazoria County District Clerk 111 E. Locust Street Suite 500 Angleton, Texas 775 15-4678

Re:

H Walker Royal1 v. Wright W Gore and Dennis Henderson; No. 2004-29996; In the 23gthJudicial District Court of Brazoria County, Texas.

Dear Ms. Deere: Enclosed for filing with the Court, please find the following: 1.

Notice of Hearing

2.

Plaintiffs Motion for Partial Summary Judgment on his Status as a Private Figure

3.

Proposed Order

Please stamp the enclosed extra copies of this letter and documents. By copy of this letter, opposing counsel has been notified of the filing of these documents. Thank you for your assistance.

.w-

Ve t ly your

Patrick Zumm Enclosures

d

Ms. Jerry Deere Brazoria County District Clerk

cc:

March 5,2008

Via Facsimile

Mr. Bruce Gaible Eric Garza Hays, McConn, Rice & Pickering 400 Two Allen Center 1200 Smith Street Houston, Texas 77002 William Book Matt Child Tekell, Book, Matthews & Limmer, L.L.P. 1221 McKinney, Suite 4300 Houston, Texas 770 10 (7 13) 222-9542 (713) 655-7727 (Fax)

Mr. Dennis Henderson Pro Se P.O. Box 2490 Fort Meyers, Florida 33932 Fax: (239) 463-3550

Cause No. 29996 IN THE DISTRICT COURT OF

9

H. WALKER ROYALL,

§

Plaintiff,

9

VS. WRIGHT W. GORE, JR., DENNIS HENDERSON, WRTGHT W. GORE, 111, and WESTERN SEAFOOD COMPANY Defendants.

8 0

BRAZOFUA COUNTY, TEXAS

6 9 6 9 6 9

239THJUDICIAL DISTRICT

NOTICE OF HEARING Please take notice that Plaintiffs Motion for Partial Summary Judgment on his Status as a Private Figure is set for hearing on Wednesday, March 26,2008, at 9:00 a.m.

Respectfully submitted, ZUMMO & MIDKIFF, L.L.P

By: State Bar ~ o b 2 2 9 3 4 5 0 Three Allen Center 333 Clay, Suite 4500 Houston, Texas 77002 (713) 65 1-0590 (Tel.) (713) 65 1-0597 (Fax) ATTORNEY FOR PLAINTIFF H. WALKERROYALL

@

Certificate of Service

I hereby certify that a true and correct copy of the foregoing Notice of Hearing has been served on all counsel of record below in accordance with the Texas Rules of Civil Procedure, on March 5,2008. Mr. Bruce Gaible Eric Garza Hays, McConn, Rice & Pickering 400 Two Allen Center 1200 Smith Street Houston, Texas 77002 William Book Matt Child Tekell, Book, Matthews & Limmer, L.L.P. 1221 McKinney, Suite 43 00 Houston, Texas 770 10 (713) 655-7727 (Fax) Dennis Henderson Pro Se P.O. Box 2490 Fort Meyers, Florida 33932

Cause No. 29996 H. WALKER ROYALL, Plaintiff,

5 § §

0

VS.

WRIGHT W. GORE, JR., DENNIS HENDERSON, WRIGHT W. GORE, 111, and WESTERN SEAFOOD COMPANY Defendants.

IN THE DISTNCT COURT OF

BRAZORIA COUNTY, TEXAS

§ §

0 §

0 0 0

23gTHJUDICIAL DISTRICT

PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON HIS STATUS AS A PRIVATE FIGURE

H. Walker Royall, plaintiff, moves for partial summary judgment on the issue of his status as a private figure. h support of this Motion, plaintiff would show to the Court the following:

I. Plaintiffs Claims Plaintiff has sued defendants for libel, slander, defamation and conspiracy. Plaintiffs claims arose in 2004 when defendants published defamatory statements about plaintiff on a website known as ''scandalin£ieeport.com." Despite notice to defendants that the statements on the website were

not true, defendants continued to publish the statements. Defendants also added new defamatory material to the first website, published at least five additional defamatory websites, used billboard and newspaper advertising to direct others to the websites, and encouraged republication of the defamatory statements by third parties. Defendants also defamed plaintiff through statements in newspapers, magazines, brochures and by means of verbal communications. Plaintiff seeks actual damages and exemplary damages based on this conduct by defendants. All defendants have entered

general denials. 11. Plaintiffs Status As A Private Figure

In any libel, slander or defamation case, the plaintiffs status as a public or private figure determines the burden of proof. A public figure plaintiff must prove actual malice by clear and convincing evidence. Turner v. KTRK Television, Inc., 38 S.W. 3d 103,116 (Tex. 2000). A private figure plaintiff need only prove that the defendant made the defamatory statement. Snead v. Redland Aggregates, Ltd, 998 F.2d 1325, 1334 (sthCir. 1993). Whether the plaintiff is a public or private figure is an issue that the Court must decide. HBO v. Harrison, 983 S.W. 2d 3 1,36-37 (Tex. App. - Houston

[14' Dist.] 1998, no pet.) 111. Summary Judgment Standard

When a plaintiff moves for summaryjudgment, he must prove the essential elements of the claim. MMP v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Partial summary judgment is appropriate when the case is not fully adjudicated on the motion. Tex. R. Civ. P. 166a(e). A plaintiff must show that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Wesson v. Jeferson Savings & Loan Ass 'n, 641 S.W.2d 903,904-905 (Tex. 1982). While the nonmoving party is entitled to an assumption that all evidence favoring him is true, Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985), there are no fact issues on the issue of plaintiffs status. The deposition testimony of defendants Western Seafood (Excerpts from the Oral Deposition of Western Seafood Company through Wright W. Gore, Jr. ("Western Dep."), Feb. 13,2008, are attached to this motion as Exhibit A), Wright W. Gore, Jr. (Excerpts from the Oral Deposition of Wright W. Gore, Jr. ("Gore Jr. Dep."), Feb. 13,2008, are attached to this motion as Exhibit B) and Wright W. Gore, 111 (Excerpts from the Oral Deposition of Wright W. Gore, I11

1 ("Gore TI1 Dep."), Feb. 14,2008, are attached to this motion as Exhibit C) establish that plaintiff is a private figure under the law.' The Court is able to decide this case on the law and the summary judgment evidence attached to this motion. IV. The Summary Judgment Evidence Establishes That Plaintiff Is A Private Figure

Plaintiff is not a public official; he holds no public office, neither elected nor appointed. He is therefore not a public official. Huckabee v. Time Warner Entertainment Co., 19 S.W. 3d 413,420 (Tex. 2000). Plaintiff also does not meet the requirements of a public figure plaintiff established by the United States Supreme Court and the Texas Supreme Court. A private citizen can be treated as a public figure if (1) the controversy is public; (2) the plaintiff had more than a trivial or tangential role in the controversy, and (3) the defamation was related to the plaintiffs participation in the controversy. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974); Trotter v. Jack Anderson Enterprises, 8 18 F.2d 43 1,433-34 (S" Cir. 1987); WFAA-TV, Inc. v. McLemore, 978 S.W. 2d 568, 571 (Tex. 1998). Defendants Wright W. Gore, Jr. and Wright W. Gore, I11 have both testified that they learned of the proposed marina proj ect when they were invited to attend a meeting at the office of a Houston attorney, Charles Leyendecker, during the summer of 2003. (Western Dep. at 52-54; Gore I11 Dep. at 130-31) They first met plaintiff at the meeting. Both testified that they had not heard of plaintiff prior to the meeting. (Western Dep. at 58-59; Gore I11 Dep. at 128-30) In addition, both of the Gores testified that there was no public discussion or news coverage of the proposed marina project at the time they were invited to the meeting. (Western Dep. at 7 1-73;

'1n his individual capacity, Wright W. Gore, Jr. testified that he would give the same answers that the gave as the corporate representative of Western Seafood (Gore Jr. Dep. at 12-13).

2003, when Western Seafood Company filed a lawsuit in federal court seeking to enjoin the United States Corps of Engineers from granting a permit for construction of the marina. (Western Dep. at 73-74)

In deciding whether a statement concerns a public issue, the trial court should examine whether people were debating the issue and whether the media was covering the debate. WFAA-TV;

Inc. v. McLemore, 978 S.W. 2d at 572. By the admission of the Gore defendants, the marina project was not apublic issue at the time that plaintiff was asked by the City of Freeport to became involved. Plaintiff therefore did not "inject" himself into a public issue or invite public attention to it.

WFAA-TV; Inc. v. McLemore, 978 S.W. 2d at 572-73. Defendant Wright Gore, 111 testified that plaintiff was "reclusive" and consistently refused to discuss the marina project with reporters. (Gore III Dep. at 236-37) The deposition testimony of defendants is competent summary judgment evidence. Tex. R. Civ. P. 166a(c)(i). Admissions of a party opponent will support summary judgment. Tex. R. Civ. P. 166a(c)(ii).There is no dispute as to any material fact concerning plaintiffs status as a private figure, and plaintiff is entitled to partial summary judgment as a matter of law that he is a private figure, and not a public figure. WHEREFORE, PREMISES CONSIDERED, H. Walker Royall, plaintiff, moves and prays that he has partial summary judgment in his favor that he is a private figure for purposes of his actions for libel, slander, defamation and conspiracy to commit these torts.

Respectfully submitted, ZUMMOn & MIDKIFF, L.L.P. By: Patrick Z%293450 State Bar No. Three Allen Center 333 Clay, Suite 4500 Houston, Texas 77002 (7 13) 65 1-0590 (Tel.) (7 13) 65 1-0597 (Fax) ATTORNEY FOR PLAINTFF H. WALKERROYALL Certificate of Service

I hereby certify that a true and correct copy of the foregoing has been served on all counsel of record below in accordance with the Texas Rules of Civil Procedure, on R arch 2 , 2 0 0 8 . Mr. Bruce Gaible Eric Garza Hays, McConn, Rice & Pickering 400 Two Allen Center 1200 Smith Street Houston, Texas 77002 William Book Matt Child Tekell, Book, Matthews & Lirnrner, L.L.P. 1221 McKinney, Suite 4300 Houston, Texas 770 10 (713) 655-7727 (Fax) Dennis Henderson Pro Se P.O. Box 2490 Fort Meyers, Florida 33932

Patrick Zumrno

0

NO. 2004-29996 H . WALKER ROYALL,

)

IN THE DISTRICT COURT OF

) )

Plaintiff,

1 )

BRAZORIA COUNTY, TEXAS

)

WRIGHT W. GORE, JR. , ET AL. ,

1

Defendants.

) )

1 238TH JUDICIAL DISTRICT

ORAL AND VIDEOTAPED DEPOSITION OF WESTERN SEAFOOD COMPANY THROUGH WRIGHT W. GORE, JR. FEBRUARY 1 3 , 2008

THE ORAL AND VIDEOTAPED DEPOSITION OF WESTERN SEAFOOD COMPANY through Wright W. Gore, Jr., produced as a witness at the instance of the Plaintiff, and duly sworn, was taken in the above-styled and numbered cause on the 13th of February, 2008, from 9 : 1 4 a.m. to 12:45 p . m . , before Johnnie E. Barnhart, CSR in and for the State of Texas, reported by machine shorthand, at the offices of Hays,,McConn, Rice

&

Pickering, 1200 Smith Street, Suite 400, Houston, Texas, pursuant to the Texas Rules of Civil Procedure and the provisions stated on the record or attached hereto. I

CONTINENTAL COURT REPORTERS, INC.

'm

-

I

2

A - P - P - E - A - R - A - N - C - E - S -

FOR THE PLAINTIFF: Mr. Patrick Zummo Zummo & Midkif f , LLP 333 Clay Street, Suite 4500 Three Allen Center Houston, Texas 77002

FOR THE DEFENDANT WESTERN SEAFOOD COMPANY AND WRIGHT W. GORE, JR. : Mr. Bruce Gaible Hays, McConn, Rice & Pickering 1200 Smith Street, Suite 400 Houston, Texas 77002

FOR THE DEFENDANT WRIGHT W. GORE, 111: Mr. Matt Childs Tekell, Book, Matthews & Lirnrner, LLP 1221 McKinney, Suite 4300 Houston, Texas 77010

THE VIDEOGRAPHER: Mr. Doug Haynie Continental Legal Video Services 2777 Allen Parkway, Suite 600 Houston, Texas 77019

24

25

1

ALSO PRESENT: Mr. Wright W. Gore, I11

CONTINENTAL COURT REPORTERS, INC.

INDEX

Appearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stipulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 1

WRIGHT W. GORE, JR. Examination by Mr. Zurnmo . . . . . . . . . . . . . . . .

5

...........................

120

Reporter's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . .

122

Changes and Signature

EXHIBITS NO./DESCRIPTION PAGE No. ..................................... 7 Amended Notice of Oral Deposition of Western Seafood Company No. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 .. Defendant's Objections and Answers to Plaintiff's First Set of Interrogatories 12 No. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scandalinfreeport.com Printout 27 No. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant's Objections and Responses to Plaintiff's First Request for Production No. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.7 Defendant Western Seafood Co.'s Response to Request for Disclosures 27 No. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CD 27 No. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DVD + R 49 No. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Copy of Photo

CONTINENTAL COURT REPORTERS, INC.

EXHIBITS

No. g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 SignAd Outdoor Advertising Contract No. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Correspondence dated April 8 , 2004 from Walter A. Herring No. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Improved Property Commercial Lease No. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Copy of Google Map No. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 CD

CONTINENTAL COURT REPORTERS, INC.

~p

THE VIDEOGRAPHER:

This is the videotaped

deposition of Wright W. Gore, Jr.

The date is

February 13, 2008.. The time is 9:14 a.m. and we're now on the record. WRIGHT W. GORE, JR., having been first duly sworn, testified as follows: EXAMINATION BY MR. ZUMMO: Q.

Would you tell us your name, please.

A.

Wright Gore.

Q.

Mr. Gore, there's another Wright Gore.

think he is in the room.

I

And are you Wright Gore, Jr.?

A.

Yes.

Q-

Your son is Wright Gore, III?

A.

Yes.

Q

Is Wright Gore, Sr. still with us?

A.

No.

Q-

So, of all the Wright Gores that you know

about in the world, are the two of you here? A.

Yes.

Q-

Nobody else?

A.

No.

Q.

The first deposition that we're here for

today, sir, is what is known as a deposition of a corporate representative, and it's the deposition of

CONTINENTAL COURT REPORTERS, INC

letter that you remember receiving? A.

Nothing.

Q.

D i d Western Seafood or you personally discuss

the subject of the letter with Wright Gore, III? A.

I don't believe so.

Q.

Did Western Seafood or you personally discuss

the subject of the letter with Dennis Henderson? No, I don't believe so.

A.

I really don't recall

discussing it with anyone.

Q-

And I had asked some questions about - - well,

I want to save this topic for later if we get to it.

I

think you've generally answered it, and if we have the time today, 1 / 1 1 go into specifics.

But it was about

statements in the press where your son was identified

as a spokesman for Western Seafood.

But I think I

would rather get to the topic of the marina with you. So, tell me the first contact that Western Seafood had with anybody on the subject o f t h e development of a marina at a location either that included Western's property or that was near Western's property. A.

One more time, please.

Q.

What was the first contact Western Seafood had

with anybody where the subject was possible development of a marina that either was going to possibly include

CONTINENTAL COURT REPORTERS, INC.

Western's property or be nearby Western's property? A.

I believe that would have been some inquiries

from Lee Cameron.

Q

Please tell us who Lee Cameron is.

A.

He's the executive director, the chairman or

whatever his title is, of the Freeport Economic Development Corporation. Q.

Tell me when you remember these inquiries

being made. A.

Years ago.

Q.

How many years ago?

A.

Well, you know, five years ago.

In the 1990s? Just whenever

the first - - the first conversations and information began to be distributed and talked about regarding a marina or the concept that was to result from that ~ a r i t i m eTrust Study that was done.

Q.

Can you place from your memory whether the

first conversation with Lee Cameron took place before you knew about the Maritime Trust Study or afterwards? A.

No.

I'm not sure whether it was before or

after or concurrent.

Q.

How did you first learn about the Maritime

Trust Study? A.

I believe he showed that to me or showed me a

copy of i t .

CONTINENTAL COURT REPORTERS, INC.

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representing Walker Royall and he would state to me: Here's what Walker will pay for your property and here's what Walker will do and here's what he thinks it is worth.

And then early on there was what I recalled

a Leyendecker meeting where my son and I, representatives of the city, it was the city manager, there was a city councilman there, Smith I believe it was, and Walker Royall was there, I think, later.

And

this was exploratory talks that set out in general what the marina proponents hoped to accomplish and what they hoped to do in Freeport. (2-

Before we get to the substance of that

meeting, can you tell me how much time there was between the first conversation you had with Lee Cameron and this Leyendecker meeting? A.

That's what I want to clarify.

I'm not

certain what came first, which, and I'm certainly not certain how much time went by, although both these events, the solicitations from Lee Cameron and the Leyendecker meeting, were early on in the - - were early on in this effort.

Q-

Document No. 264, the first page of the

Maritime Trust Study, does it show a date of October 2002? A.

Yes.

CONTINENTAL COURT REPORTERS, INC

time you had either met or heard of Walker Royall? A.

That's the first I remember meeting him or - -

I don't know if I had heard of him before or not.

Again, it is a small town and they own the bank and at some point I would have heard of Walker Royall, I'm certain.

Q-

But you can't put your - -

A.

No.

Q.

You can't say for sure if you had ever heard

of him before this meeting? A.

I can't say positively, no. (Exhibit No. 11 marked)

Q.

(By Mr. Zurnmo)

Did Western Seafood enter into

a lease of some property originally with Nicholas Taylor, an executor of an estate of Robert Lee Blaffer? A.

The man I spoke to was an attorney named Ken

Clayton.

Q.

And this lease has a history, including some

litigation.

Correct?

A.

Yes.

Q.

In the course of that, you knew that Walker

Royall had some involvement in that piece of property? A.

Well, I knew the Blaffer family.

I didn't

know who all of the heirs were.

Q.

I'm just asking if this lease that was

CONTINENTAL COURT REPORTERS, INC.

specifics of your location.

Do you ever remember the

subject of a marina being discussed for Freeport before this time period where you had conversations with Lee Cameron and the Leyendecker meeting? A.

Well, I remember that there was one years ago,

but nothing specific about a revival.

Q

When you say there was one - - a proposed

marina or an actual marina? A.

There was an actual marina years ago right

along that very property that we're talking about. Q.

When you say years ago, how many - - what

period of time? A.

Back in the fifties.

Long, long gone.

Q.

When Lee Cameron - - whichever happened first,

whether it was Lee Cameron calling you or the Leyendecker meeting, had there been any public discussion of a marina project at that time? A.

I don't recall any specifics.

Q.

What I mean is do you recall anything reported

in the newspaper or anything that was discussed with the Freeport City Council about a marina before you were contacted either by the people inviting you to the Leyendecker meeting or by Lee Cameron? A.

I don't remember anything.

Q.

Did you make it a practice of monitoring,

CONTINENTAL COURT REPORTERS, INC.

keeping track of what was on the agenda for the

I

Freeport City Council before this marina project? A.

No.

Not as much as I should.

Q.

Did you ever have any involvement with

I

activities of the Freeport City Council before this proposed marina project? A.

Years ago we used to attend.

One member of

the family attended each and every city council meeting, and that went by the wayside several years prior to the marina proposal. Q.

When you say several years, would it have been

sometime in the eighties, sometime in the nineties? A.

The seventies and eighties.

Certainly not

I

into the nineties.

Q.

Not into the nineties?

A.

Not into the nineties.

Q.

Would that practice of going to the city

1

council meetings, did that end about the time that you moved from Freeport to Lake Jackson? A.

Actually, our regularly scheduled attendance

probably ended prior to that. Q.

At the time of the Leyendecker meeting, was

there any public controversy or public dispute about this proposed marina project? A.

No.

We were all - - we were all talking, what

CONTINENTAL COURT REPORTERS, INC.

I

I considered to be good faith, and working towards compromising our needs and the needs of the marina.

Q

From Western Seafood's recollection, anybody

at the company, at what point did Western Seafood believe that it was involved in a public controversy about the marina? A.

That's an easy one.

I was going through the

mail, as I typically do, and happened upon a notice sent to me by the U.S. Army Corps of Engineers regarding an application for a permit to construct some docks on the old river in Freeport.

Just by chance, I

looked at this and with some alarm, recognized the fact that the application included removal of our docks along our 330 feet and replacing those with the marina project docks.

And for whatever reason, there were

only four days to respond to it.

I still have to this

day no idea why we didn't get the ordinary 30-day notice.

And that's when things - - at that moment

that's when things went from cooperative effort in my opinion to an adverse situation there, because I felt we had been betrayed and we only had four days to get over to Galveston and get Judge Kent to stop that for the time being.

Q.

I want to try to put a time period on this.

Do you remember when you opened your mail and saw this

CONTINENTAL COURT REPORTERS, INC.

letter or notice from the Corps of Engineers? Specifically I don't - - it may have been late

A.

'03, maybe September '03.

Q.

What I can offer you, there are services where

w e can - - at least lawyers can look at the filings in federal court online.

It is a service called Pacer.

And the Pacer report shows two lawsuits that involve Western Seafood against the City of Freeport.

One of

them was filed on September 25, 2003, and a second one was filed on April 12, 2004.

Does that help you place

this Corps of Engineers notice or when you learned about it? A.

Then I feel certain it was September of '03.

Q.

Since you said you only had a few days, if the

lawsuit was filed on September 25, 2003, then your best memory is you opened this notice a few days before that? A.

A few days.

Q.

And it was - - it is your definite impression

that public controversy started at that time? A.

At that moment.

It is just - - at least our

concern and our fear that we were under attack.

Q.

I want to go back to one thing you said in

answering these questions about docks, because you said that the permit application that you received for the

CONTINENTAL COURT REPORTERS, INC.

N O . 2004-29996 H. WALKER ROYALL, Plaintiff,

)

) ) ) )

VS . WRIGHT W. GORE, J R . , ET AL. ,

IN THE DISTRICT COURT OF

BRAZORIA COUNTY, TEXAS

1 1 )

1 Defendants.

)

238TH JUDICIAL DISTRICT

REPORTER'S CERTIFICATION DEPOSITION OF WESTERN SEAFOOD THROUGH WRIGHT W. GORE, JR. TAKEN ON FEBRUARY 13, 2008 I, JOHNNIE E. BARNHART, Certified Shorthand Reporter, hereby certify to the following: That the witness, WRIGHT W. GORE, J R . , was duly sworn by the officer and that the transcript of the oral deposition is a true record of the testimony given by the witness; That the deposition transcript was submitted on 2008, to the witness or to the attorney for the witness for examination, signature and return to me by ----------------------, 2008;

--------------------I

That the amount of time used by each party at the deposition is as follows: Mr. Patrick Zummo - 03:04:54 Mr. Bruce Gaible - 00:00:00 Mr. Matt Childs - 00:00:00 That pursuant to information given to the deposition officer at the tim.e said testimony was taken, the following includes counsel for all parties of record: Mr. Patrick Zummo - attorney for plaintiff Mr. Bruce Gaible - attorney for defendants Western Seafood Company and Wright W. Gore, Jr. Mr. Matt Childs - attorney for defendant Wright W . Gore, I11

CONTINENTAL COURT REPORTERS, INC.

I further certify that I am neither counsel for, related to, nor employed by any of the parties or attorneys in the action in which this proceeding was taken, and further that I am not financially or otherwise interested in the outcome of the action.

Further certification requirements pursuant to Rule 203 of TRCP will be certified to after they have occurred. Certified to by me this 2008.

day of --

@&---I

JOHNNIE E. BARNHART, TEXAS CSR NO. 976 Expiration Date: December 31, 2008 CONTINENTAL COURT REPORTERS, INC Firm Registration No. 61 2777 Allen Parkway, Suite 600 Houston, Texas 77019-2166

CONTINENTAL COURT REPORTERS, INC.

NO. 2004-29996 H. WALKER ROYALL,

) )

Plaintiff,

IN THE DISTRICT COURT OF

1 1 )

WRIGHT W. GORE, JR. , ET AL. ,

1 1 1

Defendants.

) )

BRAZORIA COUNTY, TEXAS

238TH JUDICIAL DISTRICT

ORAL AND VIDEOTAPED DEPOSITION OF WRIGHT W. GORE, JR. FEBRUARY 13, 2008

................................................

THE ORAL AND VIDEOTAPED DEPOSITION OF WRIGHT W. GORE, J R . , produced as a witness at the instance of the Plaintiff, and duly sworn, was taken in the above-styled and numbered cause on the 13th of February, 2008, from 1:15 p.m. to 2:32 p.m., before Johnnie E. Barnhart, CSR in and for the State of Texas, reported by machine shorthand, at the offices of Hays, McConn, Rice

&

Pickering, 1200 Smith Street, Suite 400,

Houston, Texas, pursuant to the Texas Rules of Civil Procedure and the provisions stated on the record or attached hereto.

CONTINENTAL COURT REPORTERS, INC.

A P P E A R A N C E S -

FOR THE PLAINTIFF: Mr. Patrick Zummo Zummo & Midkiff, LLP 333 Clay Street, Suite 4500 Three Allen Center Houston, Texas 77002

FOR THE DEFENDANT WESTERN SEAFOOD COMPANY AND WRIGHT W. GORE, JR. : Mr. Bruce Gaible Hays, McConn, Rice & Pickering 1200 Smith Street, Suite 400 Houston, Texas 77002

FOR THE DEFENDANT WRIGHT W. GORE, 111: Mr. Matt Childs Tekell, Book, Matthews & Limrner, LLP 1221 McKinney, Suite 4300 Houston, Texas 77010

THE VIDEOGRAPHER: Mr. Doug Haynie Continental Legal Video Services 2777 Allen Parkway, Suite 600 Houston, Texas 77019

ALSO PRESENT: Mr. Wright W. Gore, I11

CONTINENTAL COURT REPORTERS, INC.

INDEX

I

Appearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stipulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

WRIGHT W. GORE, JR. Examination by Mr. Zummo . . . . . . . . . . . . . . . .

4

...........................

48

Reporter's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . .

50

Changes and Signature

EXHIBITS NO./DESCRIPTION PAGE No. 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Defendant, Wright W . Gore, Jr.'s Responses to Plaintiff's First Set of Interrogatories 12 No. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant, Wright W. Gore, Jr.'s Responses to Plaintiff's First Request for Production 17 No. 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-mail dated December 2 , 2004 from James Quier

CONTINENTAL COURT REPORTERS, INC.

THE VIDEOGRAPHER:

This is the videotaped

deposition of Wright W. Gore, Jr. February 1 3 , 2008.

The date is

The time is 1:15 p.m. and we're now

on the record. WRIGHT W. GORE, JR., having been first duly sworn, testified as follows: EXAMINATION BY MR. ZUMMO:

Q

Would you tell us your name, please?

A.

Wright Gore, Jr .

Q-

Mr. Gore, where were you born and raised?

A.

Freeport, Texas.

Q-

Where did you go to school?

A.

I attended Brazosport High School and Lamar

University.

Q-

Did you obtain a degree from Lamar University?

A.

Yes.

Q.

What was the degree and what was your major

field of study? A.

Bachelor of business administration,

management.

Q.

When did you receive that degree?

A.

December of '70.

Q.

Have you attempted any postgraduate formal

education?

CONTINENTAL COURT REPORTERS, INC.

A.

Not any that I would recall. (Exhibit Nos. 14 and 15 marked)

Q.

(By Mr. Zumrno)

I just want to identify these.

I don't believe I have any questions about them specifically, but these are discovery responses that were made by you individually in this lawsuit, the libel case filed by Walker Royall.

And Exhibit 14 are

your answers to interrogatories, Exhibit 15 are your responses to requests for production. dated March 16, 2005.

They were both

Do you recall answering those

interrogatories and verifying your answers? A.

Yes.

Q.

Have you had a chance to review those answers

to interrogatories and requests for production in preparation for your deposition today? THE WITNESS:

Did we look at those

yesterday? MR. GAIBLE: A.

Yes.

Q.

(By Mr. Zumrno)

I believe so.

Is there anything in those

answers to interrogatories and requests - - responses to requests for production that you would add to or change today? A.

No.

Q-

I asked you a number of questions this morning

-

CONTINENTAL COURT REPORTERS, INC.

- -

in your capacity as a representative of Western Seafood Company.

Do you recall that you've been here most of

the day on that? A.

Yes, sir.

Q-

If I were to ask you those same questions in

your individual capacity, Wright W. Gore, Jr., this afternoon, would your answers be the same? A.

Yes.

Q

In terms of you personally looking at the

website scandalinfreeport.com, was there ever any time when you were looking at it where you felt like you were doing it as an individual and not as a person connected with your company, or did you ever make a distinction? A.

I always felt I was looking after the

company's best interests reviewing that.

Q.

As an individual, did you authorize Wright

Gore, 111 to use your name on the "about us" section of the Scandal in Freeport website? A.

No. MR. GAIBLE:

Objection to form.

And just

for point of clarification, in his individual capacity or as corporate - MR. ZUMMO: MR. GAIBLE:

In his individual capacity. Did you understand the

CONTINENTAL COURT REPORTERS, INC.

NO. 2004-29996 H. WALKER ROYALL, plaintiff,

WRIGHT W. GORE, JR. , ET AL. , Defendants.

) )

IN THE DISTRICT COURT OF

1 1 ) ) ) ) ) )

BRAZORIA COUNTY, TEXAS

238TH JUDICIAL DISTRICT

REPORTER'S CERTIFICATION DEPOSITION OF WRIGHT W. GORE, JR. TAKEN ON FEBRUARY 13, 2008 I, JOHNNIE E. BARNHART, Certified Shorthand Reporter, hereby certify to the following: That the witness, WRIGHT W. GORE, JR., was duly sworn by the officer and that the transcript of the oral deposition is a true record of the testimony given by the witness; That the deposition transcript was submitted on 2008, to the witness or to the attorney for the witness for examination, signature and return to me by 2008;

-,---------_----,I

That the amount of time used by each party at the deposition is as follows: Mr. Patrick Zummo - 01:05:26 Mr. Bruce Gaible - 00:00:00 Mr. Matt Childs - 00:00:00 That pursuant to information given to the deposition officer at the time said testimony was taken, the following includes counsel for all parties of record: Mr. Patrick Zummo - attorney for plaintiff Mr. Bruce Gaible - attorney for defendants Western Seafood Company and Wright W. Gore, Jr. Mr. Matt Childs - attorney for defendant Wright W. Gore, I11 I further certify that I am neither counsel for,

CONTINENTAL COURT REPORTERS, INC.

related to, nor employed by any of the parties or attorneys in the action in which this proceeding was taken, and further that I am not financially or otherwise interested in the outcome of the action. Further certification requirements pursuant to Rule 203 of TRCP will be certified to after they have occurred.

Lj@

Certified to by me this - - - - day of 2008.

,!mthw-~~--

@-&----

------------------____

JOHNNIE E. BARNHART, TEXAS CSR NO. 976 Expiration Date: December 31, 2008 CONTINENTAL COURT REPORTERS, INC Firm Registration No. 61 2777 Allen Parkway, Suite 600 Houston, Texas 77019-2166 (713) 522-5080

CONTINENTAL COURT REPORTERS, INC.

NO. 2004-29996 H. WALKER ROYALL, Plaintiff,

) ) )

IN THE DISTRICT COURT OF

1

. BRAZORIA COUNTY, TEXAS

)

WRIGHT W. GORE, JR., ET AL. ,

) ) )

Defendants.

)

1 238TH JUDICIAL DISTRICT

ORAL AND VIDEOTAPED DEPOSITION OF WRIGHT W . GORE, I11 FEBRUARY 14, 2008

THE ORAL AND VIDEOTAPED DEPOSITION OF WRIGHT W. GORE, 111, produced as a witness at the instance of the Plaintiff, and duly sworn, was taken in

I

1

the above-styled and numbered cause on the 14th of February, 2008, from 9:13 a.m. to 4:04 p.m., before Johnnie E. Barnhart, CSR in and for the State of Texas, reported by machine shorthand, at the offices of Tekell, Book, Matthews

&

Limmer, LP, 4300 One Houston

Center, 1221 McKinney, Suite 4300, Houston, Texas, pursuant to the Texas Rules of Civil Procedure and the provisions stated on the record or attached hereto.

A CONTINENTAL COURT REPORTERS, INC.

33

EXHIBIT

b

A P P E A - R - A - N - C - E - S -

I

FOR THE PLAINTIFF: Mr. Patrick Zummo Zummo & Midkif f , LLP 333 Clay Street, Suite 4500 Three Allen Center Houston, Texas 77002

Mr. Bruce Gaible Ms. Diana J. Shelby Hays, McConn, Rice & Pickering 1200 Smith Street, Suite 400 Houston, Texas 77002

FOR THE DEFENDANT WRIGHT W. GORE, 111: Mr. Matt W. Childs Tekell, Book, Matthews & Lirnrner, LLP 1221 McKinney, Suite 4300 Houston, Texas 77010

THE VIDEOGRAPHER: Mr. Doug Haynie Continental Legal Video Services 2777 Allen Parkway, Suite 600 Houston, Texas 77019

ALSO PRESENT: Mr. Wright W. Gore, Jr.

CONTINENTAL COURT REPORTERS, INC.

INDEX

Appearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stipulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

1

WRIGHT W. GORE, I11 Examination by Mr. Zummo . . . . . . . . . . . . . . . .

5

...........................

239

Reporter's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . .

244

Changes and Signature

EXHIBITS NO./DESCRIPTION PAGE 89 No. 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Answers and/or Objections to Plaintiff's First Set of Interrogatories No. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Responses and/or Objections to Plaintiff's First Request for Production No. 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Correspondence dated February 12, 2008 from Matt Childs to Patrick Zurnmo No. 2 0 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Defendant, Wright W . Gore, Jr.'s Responses to Plaintiff H. Walker Royall's Request for Disclosure 178 No. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Print-out from www.freerepublic.com Website No. 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Copy of Article "This Land is Not Your Land Anymore"

CONTINENTAL COURT REPORTERS, INC

EXHIBITS

(Cont'd)

No. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Copy of MBulldozed" Cover No. 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Excerpt from "Bulldozed" No. 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Excerpt from nBulldozed" No. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Excerpt from "BulldozedM No. 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Excerpt from "Bulldozed" No. 2 8 . ; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Excerpt from "Bulldozed" No. 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Excerpt from "Bulldozed"

CONTINENTAL COURT REPORTERS, INC.

192 193 196 197 201 212 224

THE VIDEOGRAPHER:

This is the videotaped

deposition of Wright W. Gore, 111. February 14th, 2008.

The date is

The time is 9:13 a.m.

And we're

now on the record. WRIGHT W. GORE, 111, having been first duly sworn, testified as follows: EXAMINATION BY MR. ZUMMO:

Q-

Tell us your name.

A.

My name is Wright Gore.

Q.

Is that your full, legal name?

A.

Technically, I would have to say my full name

is Wright Gore, 111.

Q-

Okay.

Have you ever given a deposition

be£ore? A.

No, this is my first deposition.

Q.

Have you ever been to a deposition before?

A.

I have attended a deposition before.

Q.

Then you have some idea what the procedure is?

A.

Yes, sir.

Q.

You know that you just took an oath and it's

I have a general idea.

the same oath that's given to witnesses in the courtroom who testify in front of a judge or a jury? A.

Yes, sir.

Q

You know that that means that the answers you

CONTINENTAL COURT REPORTERS, INC.

Q.

Do you harbor any personal animosity toward

Walker Royall?

~ 1

A.

No, sir.

No, I - - but let me tell you, I very

much dislike what he has threatened our family with. And I - - but aside from that, I never knew who Walker was before this eminent domain attempted taking.

I

never heard his name or - - and I - - and aside from that, I'm sure I never would have. Q.

When did you first hear Walker Royall's name?

A.

At Mr. Leyendecker's office.

Q.

Do you have in your memory the date of the

meeting at Mr. Leyendecker's office? A.

To the best of my recollection, that was in

September of 2002, I believe. Q.

And is there any way that you can double-check

that date?

Would you go back to calendars or travel

records or anything like that? A.

I can't think of anything at the time.

However, what I can tell you is that I understand that in previous depositions taken in this case, there was a reference to a Leyendecker meeting, quote, unquote, and that is the event that I'm speaking of.

Q.

Okay.

A.

So, if that's documented, that's when i t was.

Q.

And there was never - - you've only been to one

CONTINENTAL COURT REPORTERS, INC.

meeting with other people on the subject of the marina at Mr. Leyendecker's office? A.

That is correct.

Q

So, if other people have talked about that

A.

I feel confident that - -

Q.

- - you assumed they're all talking about the

--

same thing? A.

Oh, yes.

Q-

Okay.

Yes, sir.

So, before this meeting that you think

happened in September 2002, you'd never heard of Walker Royall? No, sir - - no, wait.

A.

No.

That's not true.

Lee Cameron had mentioned his name to me on a number of occasions before that meeting. sorry.

No, wait.

Wait.

I'm

Let me - - give me a minute here.

Q.

Do you want to take just a second to think

about it? A.

Yeah.

Q.

Okay.

A.

Yeah. No.

right.

I think my original answer was

To the best of my recollection, the first time

I had heard Walker Royall's name was that 2002 meeting

at Leyendecker's office.

Yes.

He had given me one of

his business cards at that meeting.

CONTINENTAL COURT REPORTERS, INC.

Q.

Do you - - when had you first heard of a

proposed marina in the vicinity of Western Seafood's property on the Old Brazos River? A.

It would have been just before that meeting at

Leyendecker's office. you exactly.

It would have - - I can't tell

It may have been a few days before; it

may have been a couple of weeks before.

But I think it

was pretty close to the time that that meeting was held at Mr. Leyendecker's office.

Q

Okay.

Was it your understanding or your

belief that the meeting that you were invited to attend was a discussion among landowners and city officials about the marina? A. says:

All I know is that my father called me and he Wright, Lee Cameron wants me to come up there - -

talking about to Houston - - and he wants me to listen to something about a marina they have proposed, and I'd like you to come with me. And so, I did. Q.

And before that phone call from your father - -

and I think - - was that just within a few days of the meeting? A.

I think it would have been, yes.

Q.

Okay.

Not months ahead of time or anything

like that?

CONTINENTAL COURT REPORTERS, INC.

A.

No.

No, sir.

Q.

Okay.

Was that phone call, then, the first

that you had heard of any proposed marina in the vicinity of the Western Seafood property on the Old Brazos River? A.

As far as I can recall sitting here, it is.

Q.

Okay.

And let me back up.

Did you even know

when your father made the phone call that there was a proposal to put a marina at that location versus just a marina in general?

A.

I knew - - my father had mentioned to me that

there had been a marina proposed near Western Seafood's operations.

That was the reason for the concern.

That

was the reason that he wanted me there, because he wanted us both to listen intently to what they had to say. (2-

And since you've told me that was your first

knowledge of this proposed marina, is it fair to say that there had been no media coverage or newspaper articles or talk around town about this proposed marina? A.

I can't say that, because I know that there

were a number of articles written many years ago about the marina that were the subject, the front page and full-color photos, I think, but I don't remember when

CONTINENTAL COURT REPORTERS, INC.

those were.

To the best of my recollection, they were

not before this meeting at Leyendeckerfs office or much before then, but I don't - - I don't have any specific recollection of seeing any media coverage about it before I was at that meeting.

Q.

Okay.

So, are you telling me by that, that

you've learned about these years before articles since the meeting? A.

Yes, sir.

Q.

Okay.

I did.

They weren't on your mind at the time

of the meeting? A.

I don't think they could - - well, I don't

think they could have been, no.

Q.

Interrogatory No. 11, it's on Page 6 , has a

general question.

And let me ask you the same way I've

asked you about the earlier ones.

Other than the

documents that you've produced in this case, do you have any information about any investigation that you have done that you took to verify the accuracy of any statements made about Walker Royall on the web site that we haven't already talked about? A.

Yes.

Q.

Okay.

First, what statements about Walker

Royall would you have other information besides your documents today?

And here's how I want to - - I'd like

CONTINENTAL COURT REPORTERS, INC.

A.

No.

I put that on there hoping that he would

have a change of heart and that he would decide to act like a businessman instead of a government thug. Q.

Did you ever make statements on your Scandal

in Freeport web site specifically with regard to the proposed public meeting at the church that "finally Walker Royall is going to come out and talk"? Do you remember that? I don't have any specific recollection.

A.

~ u t

if I did and there's something that you have, I'd be happy to comment on it.

Q-

Well, were you expecting Mr. Royal1 to be

giving interviews to people and making public statements like you were? A.

I don't know what Mr. Royall's plan was, but

it certainly didn't seem to be that that was initially his plan.

Q.

He seemed reclusive.

When, if ever, do you believe he stopped

seeming to be reclusive? A.

I think he's acted reclusive through the whole

shenanigans.

I say that because virtually every time a

new member of the media contacted me, they asked me, "Do you know how to get ahold of Walker Royall?" And I'd give them the phone number. then they would call me back and say, "Why won't he

CONTINENTAL COURT REPORTERS, INC.

And

talk to me?" I'd say, " I don't know." I was told that by producers at Channel 13, Channel 11, KTRH, Houston Chronicle, KPRC 950, The Facts, and on and on. Q.

Earlier in the deposition I asked you some

questions about personal financial statements.

And if

I'm repeating myself, I apologize, but I want to make sure that I've asked you this question. recall if I asked it.

I just don't

I know your attorney would have

objected if I did. What was your personal net worth for each of the years 2004 through the present? MR. CHILDS: that.

Well, Pat, we've objected to

We're going to stand on our objection, and I'm

going to instruct the witness not to answer.

You

didn't ask it earlier. I knew I had asked about

MR. ZUMMO: documents, et cetera. MR. CHILDS: MR. ZUMMO:

Right. And - - but I - - and I just

wanted to make sure that it was on our record. THE WITNESS:

Can I take a break for a

moment ? MR. ZUMMO:

Let's take a break.

CONTINENTAL COURT REPORTERS, INC.

And I

NO. 2004-29996 H. WALKER ROYALL, Plaintiff,

)

IN THE DISTRICT COURT OF

) )

1

VS . WRIGHT W . GORE, JR . , ET AL., Defendants.

) ) ) ) ) )

BRAZORIA COUNTY, TEXAS

238TH JUDICIAL DISTRICT

REPORTER'S CERTIFICATION DEPOSITION OF WRIGHT W. GORE, I11 TAKEN ON FEBRUARY 14, 2008 I , JOHNNIE E. BARNHART, Certified Shorthand Reporter, hereby certify to the following: That the witness, WRIGHT W. GORE, 111, was duly sworn by the officer and that the transcript of the oral deposition is a true record of the testimony given by the witness; That the deposition transcript was submitted on 2008, to the witness or to the attorney for the witness for examination, signature and return to me by ------------------------, 2008;

----------------I

That the amount of time used by each party at the deposition is as follows: Mr. Patrick Zummo - 05:49:01 Mr. Bruce Gaible - 00:00:00 Mr. Matt Childs - 00:00:00 That pursuant to information given to the deposition officer at the time said testimony was taken, the following includes counsel for all parties of record: Mr. Patrick Zummo - attorney for plaintiff Mr. Bruce Gaible and Ms. Diana J . Shelby Attorneys for defendants Western Seafood Company and Wright W. Gore, Jr. Mr. Matt Childs - attorney for defendant Wright W. Gore, 111

CONTINENTAL COURT REPORTERS, INC.

I further certify that I am neither counsel for, related to, nor employed by any of the parties or attorneys in the action in which this proceeding was taken, and further that I am not financially or otherwise interested in the outcome of the action. Further certification requirements pursuant to Rule 203 of TRCP will be certified to after they have occurred. Certified to by me this - --- day of 2008.

%@-& ------------I

...................... JOHNNIE E. BARNHART, TEXAS CSR NO. 976 Expiration Date: December 31, 2008 CONTINENTAL COURT REPORTERS, INC Firm Registration No. 61 2777 Allen Parkway, Suite 600 Houston, Texas 77019-2166 (713) 522-5080

hlb!&fl--

-

CONTINENTAL COURT REPORTERS, INC.

Cause No. 29996 H. WALKER ROYALL, Plaintiff,

5 § §

VS.

0

W'RIGHT W. GORE, JR., DENNIS HENDERSON, WRIGHT W. GORE, 111, and WESTERN SEAFOOD COMPANY

§ § § § § §

Defendants.

IN THE DISTRICT COURT OF

0

BRAZORIA COUNTY, TEXAS

23gTHJUDICIAL DISTRICT

PARTIAL SUMMARY JUDGMENT ON PLAINTIFF'S STATUS AS A PRIVATE FIGURE On this day, the Court heard the plaintiffs motion for partial summary judgment on plaintiffs status as a private figure. Having considered the motion, the summaryjudgment evidence attached to the motion, and the pleadings of the parties, the Court finds that there is no genuine issue of material fact, and that plaintiff is entitled to partial summary judgment under Rule 166a(a)(e) of the Texas Rules of Civil Procedure. It is therefore ORDERED, ADJUDGED AND DECREED that plaintiff is a private figure for purposes of this action. Signed on

,2008. JUDGE PRESIDING

CAUSE NO. 2004-29996 H. WALKER ROYALL

§ § § § § §

v. WRIGHT W. GORE and DENNIS HENDERSON

IN THE DISTRICT COURT OF BRAZORIA COUNTY, TEXAS 239TH JUDICIAL DISTRICT

DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON HIS STATUS AS PRIVATE FIGURE TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Wright Gore, Jr. Western Seafood Company, and Wright Gore, III, Defendants in the above-entitled and numbered cause, and file this their Response to Plaintiff’s Motion for Partial Summary Judgment on his Status as a Private Figure and would respectfully show unto this Honorable Court as follows: I. Plaintiff has filed a partial Motion for Summary Judgment contending that he is a private figure for his defamation action against Defendants. However, Plaintiff’s claims are without merit and his Motion for Partial Summary Judgment should be denied. II. Public Figure A person may be considered a public figure if : 1.

The controversy at issue is public and people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution;

2.

The Plaintiff has more than a trivial or tangential role in the controversy;

3.

The alleged defamation is germane to the Plaintiff’s participation in the controversy.

WFAA TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). In considering a libel Plaintiff’s role in a public controversy, the Court may consider: 1.

Whether the Plaintiff sought publicity surrounding the controversy;

2.

Whether the Plaintiff had access to the media;

3.

Whether the Plaintiff engaged in activities that necessarily involved the risk of increased exposure and injury to reputation.

Id. at 573. In addition, a person who is drawn into a particular controversy may be considered a public figure. Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974); Swate v. Schiffers, 975 S.W.2d 70, 76 (Tex. App. - - San Antonio 1998, pet. denied). A person who injects himself into a controversy may be considered a public figure. A.H. Belo Corp. v. Rayzor, 644 S.W.2d 71, 83-84 (Tex. App. - Fort Worth 1982, ref. nre). III. Evidence In answers to written discovery in Cause No. G-03-811, the City of Freeport states that Lee Cameron, a City official, was contacted by a Blaffer heir who advised that the Blaffer heirs were interested in the development of the marina project. Ultimately, Royall, a Blaffer heir, sent a Letter of Intent dated June 26, 2002 to the City. (See Exhibit “1”). The beginning of the marina project pre-dates the June 26, 2002 Letter of Intent. Royall sent the Letter of Intent to Mayor Jim Barnett with the City of Freeport. That letter, authored and signed by Royall, begins the formal process for the development of the controversial marina project. That letter states in part as follows: “The City and the Developer (the parties) are working on a plan in which the Developer would acquire the land necessary for the development and build the project based on mutually agreeable specifications”... “The Developer would

maintain ownership of the project and the parties agree to consider a profit sharing program in which the risks may be shared.” (Emphasis added). Further, Royall agreed to use his “best efforts to acquire land owned by third-parties” for use in the marina project. (See Exhibit “2"). The Maritime Trust Study (published in October, 2002) was initiated in September, 2001. (See Exhibit “3”, page 3). As part of that study, river front property owners were interviewed by the Maritime Trust team. See (Exhibit “3”, page 5). Those owners include the Blaffer family (Plaintiff) who reported to the Maritime Trust team that they wanted to place their property into the marina project and participate in the re-development. (See Exhibit “3”, page 53). By August, 2003, news articles were already being written about the controversial marina project. (See Exhibit “4”). The Facts published an article stating that City Council had approved the Development Agreement with Freeport Waterfront Properties. The article also identified the partnership as heirs of the Blaffer family (Royall). Other articles had concerns with respect to a single developer (Plaintiff) developing this project without opening the project to other competitive bidders. There was also concern that the City of Freeport was taking too much of the risk with respect to the financing of this particular project. (See Exhibit “4”). In September, 2003, the City of Freeport entered into a Development Agreement. That agreement is with Freeport Waterfront Properties, L.P. and states that Royall is the individual who is the “project developer’s representative” with full authority to act on behalf of the project developer with respect to all matters arising out of said agreement. Royall is the person identified in the agreement as the one who is responsible for overseeing all aspects of design, construction and development of the project, and to work closely with the City’s consultant, on behalf of the project developer. (See Exhibit “5”, page 24). (Emphasis added).

The contract also provides that Royall “shall have acquired or arranged to acquire”..... all ....”the Gore land, whether via the City’s assistance in negotiating a direct purchase of such lands by the project developer, or via the City’s exercise of its power of eminent domain and conveyance of such lands to the project developer”. (See Exhibit “5”, pages 18-20). (Emphasis added). Further, the contract provides that to the extent the City attorney determines it is legally able to do so, the City would cooperate with and assist Royall by legal action in the acquisition of the Gore land. (See Exhibit “5”, page 32). In addition to his agreement to take over full authority for the project and agreeing to initiate and acquire (via eminent domain proceedings) private land, such as the “Gore: land, Royall agreed to take a six million dollar loan of taxpayer money from the City of Freeport and its citizens (See Exhibit “5", page 8). In other words, when Royall satisfied his commitment to acquire the private land (via eminent domain) he was to receive six million taxpayer dollars. Also, in September, 2003, Defendant Western Seafood Company discovered that the United States Army Corp of Engineers had sought a permit application to install piers impeding Defendant’s navigation rights. As a result, Defendant Western Seafood initiated a lawsuit against the City of Freeport, Freeport Economic Development Corporation, and the United States of America. That case was eventually decided in The United States Court of Appeals (5th Circuit). (See Exhibit “6"). From the inception of the Development Agreement in September, 2003, it was evident that Plaintiff and/or the City of Freeport and/or the Freeport Economic Development Corporation planned to initiate condemnation proceedings to acquire land from Defendant Western Seafood Company (also identified as the Gore land). (See Exhibit “5”).

At the preliminary injunction hearing in Cause No. G-03-811 on December 5, 2003, the Court heard arguments from the City of Freeport Attorney. The original plan was for the City to own and operate the marina. However, John Hightower, the City of Freeport attorney, stated that the Blaffer family “came forward and said, hey, we would like to do this project for you” (i.e., build the marina project). Mr. Hightower also judicially admits that the developer (Plaintiff) would be the person who would make a subsequent permit application to the U. S. Army Corp of Engineers. (See Exhibit “7”). At the status conference for Cause No. G-03-CV-811 on April 8, 2004, Mr. Hightower stated that Mr. Royall was the principal and the person in charge. (See Exhibit “7”). The Freeport Economic Development Corporation initiated its condemnation suit against Western Shellfish Corporation in Cause No. CI-032662 in the County Court at Law Number Two of Brazoria County on August 16, 2004. The Freeport Economic Development Corporation initiated its condemnation proceeding against Western Seafood Company in Cause No. CI-032664 in County Court at Law Number Three of Brazoria County on August 16, 2004. The Freeport Economic Development Corporation received an unfavorable judgment in both of those cases and have appealed the trial court’s decision. (See Exhibit “6"). Plaintiff initiated his defamation lawsuit on August 9, 2004. Attached in Exhibit “4” is a flyer authored by the City of Freeport and at least twenty-one (21) news articles discussing the controversial marina project, Defendant Western Seafood Company and/or Plaintiff. The flyer identifies Plaintiff, as a general partner, who “came forward” to establish a partnership with the City of Freeport for the purposes of the marina project.

IV.

Public Issues and Public Attention There is no doubt that the development of a large marina in Freeport was of interest and importance to the citizens of Freeport.

The Facts had reported front page stories about the

proposed marina and its developer. There is no doubt that Plaintiff, who had the exclusive authority on behalf of the developer, had more than a trivial or tangential role in the project and the surrounding controversy. The alleged website at issue discusses the controversial nature of the project and Plaintiff’s role in it. When a City contracts to loan six million taxpayer dollars to a developer, is that a public issue? When a City and a developer contract to take land by eminent domain and convey that land to a developer, is that a public issue? When a City contracts to build a marina in its “downtown” and not have ownership of the marina, is that a public issue? When a City contracts with a developer and gives that developer the authority to oversee and acquire private land via the City’s eminent domain powers, is that a public issue? Every answer is yes. The marina project was and has been a public issue for over 4 years. As evidenced by the numerous articles, people in the City of Freeport were and are discussing the marina project. Some people have supported it while others have opposed and criticized it. The citizens of Freeport are going to be affected (whether bad or good) by the marina project and its effects, or lack thereof, on the alleged revitalization of downtown Freeport. Royall, as the person with full authority and the general partner with the City of Freeport has more than a trivial or tangential role. He is the “principal” and “in charge” of the entire project. His contract with the City of Freeport not only gives him the authority to pursue eminent domain proceedings against private landowners (via the City’s assistance) but also requires that he do it.

Any alleged defamatory statements speak to the issues of the marina project controversy, eminent domain, and Royall’s involvement. V. Royall’s Involvement Royall initiated this controversy by going to the City to get this “sweetheart” deal. The City did not open a competitive bid process to other developers. The City decided to make a loan to Royall of six million taxpayer dollars and only required that Royall put up one million. As one reporter stated “this deal is upside down.” Why couldn’t Royall provide his own capital or go to a bank for a loan? Are the taxpayers of Freeport a financial lending institution? Of course not. When Royall decided to take six million taxpayer dollars, take authority for eminent domain proceedings to take land from other private landowners and have that land conveyed to his limited partnership, he sought or acquired the publicity that he has received. He has been identified as the lead person from the day he started this process in 2002 or before. He has had meetings with City officials, he has sent letters to City officials, he has entered into a contract with the City of Freeport, and he has been identified in Court documents and Court hearings by the City. All of this occurred before the publication of any website that is the subject of this case. Royall has had plenty of access to City Council members, local media and the citizens of Freeport regarding the marina project. There was nothing that would have prevented him from speaking to anyone as it relates to this project. Considering all of the evidence starting with his Letter of Intent, his Maritime Trust Study and his Development Agreement, Royall has put himself at the front of the line when it comes to the marina project and this controversy. All of these activities involved his increased risk of exposure to any alleged injury to reputation that he is claiming in this lawsuit. He did not have to prepare and sign a letter of intent with a “plan” to take other people’s property. He did not have to agree to have

“full” authority over the marina project.

He did not have to agree to be “responsible” for the

marina project. He did not have to agree to take a loan of six million taxpayer dollars from the City of Freeport. He did not have to agree to acquire other people’s land via eminent domain. But he did. When he did, he agreed to be a limited purpose public figure. WHEREFORE, PREMISES CONSIDERED, Wright Gore, Jr., Western Seafood Company, and Wright Gore, III, Defendants in the above-entitled and numbered cause pray that Plaintiff’s Motion for Partial Summary Judgment on his Status as a Private Citizen be denied and for such other and further relief, both general and special, at law and in equity, to which these Defendants may be justly entitled. Respectfully submitted: TEKELL, BOOK, MATTHEWS & LIMMER BY: WILLIAM BOOK TBA NO. 02622000 MATT W. CHILDS TBA No. 04202050 4300 One Houston Center 1221 McKinney Houston, Texas 77010 (713) 222-9542 (713) 655-7727 (Facsimile) ATTORNEY FOR DEFENDANT Wright Gore, III

HAYS, MCCONN, RICE & PICKERING BY: BRUCE C. GAIBLE TBA NO. 07567400 400 Two Allen Center 1200 Smith Street Houston, Texas 77002

(713) 654-1111 (713) 650-0027 (Facsimile) ATTORNEY FOR DEFENDANTS Wright W. Gore, Jr. and Western Seafood Company

CERTIFICATE OF SERVICE I hereby certify that on this the _________ day of March, 2008, true and correct cop(ies) of the foregoing instrument were forwarded to all counsel of record via Certified Mail, Return Receipt Requested and/or regular mail, and/or via facsimile. ________________________________ Matthew W. Childs

CAUSE NO. 2004-29996 H. WALKER ROYALL

§ § § § § §

v. WRIGHT W. GORE and DENNIS HENDERSON

IN THE DISTRICT COURT OF BRAZORIA COUNTY, TEXAS 239TH JUDICIAL DISTRICT

ORDER BE IT REMEMBERED that on this day came on to be considered Plaintiff’s Motion for Partial Summary Judgment on his Status as a Private Figure in the above-entitled and -numbered cause, and the Court having read the motion and response is of the opinion that this motion should in all things be denied. It is therefore, ORDERED, ADJUDGED AND DECREED that Plaintiff’s Motion for Partial Summary Judgment on his Status as a Private Figure is DENIED. SIGNED this _________ day of ____________________, 2008. ___________________________________________ JUDGE PRESIDING APPROVED: TEKELL, BOOK, MATTHEWS & LIMMER BY: MATT W. CHILDS State Bar No. 04202050 4300 One Houston Center 1221 McKinney Houston, Texas 77010 (713) 222-9542 (713) 655-7727 - FAX ATTORNEYS FOR DEFENDANT Wright Gore, III

HAYS, MCCONN, RICE & PICKERING

______________________ BRUCE C. GAIBLE TBA NO. 07567400 400 Two Allen Center 1200 Smith Street Houston, Texas 77002 (713) 654-1111 (713) 650-0027 (Facsimile) ATTORNEY FOR DEFENDANTS Wright W. Gore, Jr. and Western Seafood Company

03/28/2008

1 6 : 4 8 FAX

713 651 0597

P A T R I C K ZUMMO

mOOl/OOS

LAWOFFICESOF PATNCKZUMMO THREE AI .I.EN CENTER. 333 CLAY. SUlTe 4500 HOUSTON,TEXAS 771102 (713) 651-0590 PAX (713) 651-0597

To:

NameiFirmICompany:

Fax No.:

(1)

Mr. Bruce Gaible Hays. McConn. Rice & Pickcrine

(71 3) 650-0027

(2)

Mr. Bill Book/Mr. Matt Childs Tekell, Book. Matthcws & Lirnrner

(713) 655-7727

(3)

Mr. Dennis Henderson

(239) 463-3550

(4)

Ms. Jcrrv Deere

979-864-1 056

Date: March 28. 2008

VoicelDifficulty Nu.:

Total # of Pages: Account Code: 063

From: Patrick Zummo

#MESSAGE. Re:

H. Walker Royull

v. Wright K Gore, Dennis Henderson, Wright K Gore, III and Wes~ernSrcfuod Company; No. 29996; In the 23YhJudicial District Court of Brazoria County, Texas.

NOTICE OF CONFIDENTIALITY The infurmulion containcd in and trnnsmittcd with this facsil~lileis 1. SUBJECT TO THE ATTORNEY-CLIENT PR1VILEL;E; 2. ATTORNEY WORK PRODUCT; OR 3. CONFIDENTIAL.

It is intcndcd for the individual or enlity dcsignatcd ahove. You nre hereby notificd that any disseminaliun, distrihution, copying, or use oi-or reliancc up011 the incurmation contained in and rmnsmittcd with this facsimile hy ur lu nnyonc othcr than rhe recipient drsignatcd above by the sender is rmaurhorized and rlricllyprdhihilcd. Ifyou havc rcceived Illis lucsirnilc in crror, plcasc notitj 1.aw Oftices of Patrick Zummo by telepllono 01 (713) 65 1-0590 immediately. Any filcsimilc erroneously n,ansrnillcd to you should hc immediately renlmzrl tu thc scnder by U S . Meil, or ilaulhurization ia granted hy [he scndcr, dcstroycd.

If you do not receivc all pages, please call: (713) 651-0590 for assistance.

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03/28/2008

1 6 : 4 8 FAX

713 651 0 5 9 i

P A T R I C K ZUMMO

LAWOFFICESOF PATRICK ZUMMO THREE Al.l,l
HOUSTON, TF;XAS 77002 (713)651-0590

FAX (713)651-0597

March 28.2008 Via Messenger Ms. Jerry Deere Brazoria County District Clerk 111 E. Locust Street Suite 500 Angleton, Texas 775 15-4678

Rc:

H Walker Royal1 v. Wright W. Gore undDennisIlend~rson; No. 2004-29996; 1n the 239IhJudicial District Court of Brazoria County, 'l'cxas.

Dear Ms. Deere: Enclosed for filing with the Court, please find the following:

1.

Plaintifl's Submission on Status as a Private or Public Figure

By copy of this letter, opposing counsel has been notified of the filing of these documents.

Thank you for your assistance. Very truly yours,

Patrick Zumrno

/

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03/28/2008

1 6 : 4 9 FAX

P A T R I C K ZUMMO

713 651 0 5 9 i

Cause No. 29996 H. WALKER ROYALL,

5

IN THE DISTRICT COURT OF

§

Plaintiff, VS.

5 5

BRAZONA COIJNTY, TEXAS

5 4

239THJI.JJIlCIAL DISTRICT

WRIGHT W. GORE, JR., DENNIS HENDERSON, WRIGHT W. GORE, 111, and WESTERN SEAFOOD COMPANY Defendants.

PLAINTIFF'S SUBMISSION ON STATUS AS A PRIVATE OR PUBLIC FIGURE

H. Walker Royall, plaintiff, makes the additional submission to the Court requested at the hearing on plainlifrs motion for partial summary judgment on his status as a private fiy r c , and would show to the Court the following:

Plaintiff's counscl has receive defendants' additional briefing, which is somewhat in excess of thc onc paragraph urder by the Court. The WFAA - TV. Inc. v. McLemore case does not address the issue, and the facts of McLemore are not helpful because the plaintiffs involvement and the incident giving rise to the publicity were simultaneous. The following Texas cases state that defendants cannot turn plaintiff into a public figure, and cannot turn the marina project into a "matter

of public concern," by their own unilateral actions. Outlet Co, v. Inr'l Srczrrily Group, Inc., 693 S.W. 2d 621,626 (Tex. App. - San Antonio 1985, no writ) ("The broadcasts themselves could not 645 S.W. 2d 845,850 serve to makc Mcdlin a public figure"); Durham v. Cannan Communicu~ion~-,

(Tcx. App. -Amarillo 1982, writ dism'd w.0.j.)(Court would not "permit the press to turn a person

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03/28/2008

1 6 : 4 9 FAX

713 651 0597

into a public figure by publicizing the defamation itself"). Poe v. Sun Anronio Express-News Gorp., 590 S.W. 2d 537 (Tex. Civ. App. - San Antonio 1979, nu writ) (Newspaper did not make plaintiff

a public figure by publishing claim against plaintiff and encournging district attorney to file charges against him.) Defendants' alleged "evidence" has been held irrelevant by the courts, and does not show that plaintiff was a limited purpose public figure. Defendants did not address the facts of Hutchinson v. Proxmire, where the professor's involvement in the grant application proccss had gone on for sometime before there was any public issue. In cach o r the other cases cited by defendants, none of the plaintiffs wcrc inviled to be part of a project that was initiated by the local governments involved. Plaintiff again urges the Court to

hold defendants to their deposition admissions that plaintiff was a "reclusive" figure and that the public controversy did not begin until Western Scalaod Company filed its lawsuit in September 2003.

WHEREFORE, PREMISES CONSIDERED, pkdintiff moves and prays that he have parrial summary judgment in this matter that he is a private figure and not a public figure.

L

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03/28/2008

1 6 : 4 9 FAX

713 651 0597

RcspectC~lllysubmitted,

By:

Patrick Zummo Is/ Patrick Zummo State Bar No. 22293450 Three Allen Center 333 Clay, Suite 4500 I4ouston, Texas 77002 (713) 651-0590 (Tel.) (713) 651-0597 (h)

ATTORNEY FOR PI.AINTIFF H. WALKERROYALL

3

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713 651 0597

P A T R I C K ZUMMO

Certificate o f Service

I hereby certify that a true mid correct copy of the foregoing Reply has been served on all counscl of record below in accordance with thc Texas Rules of Civil Procedure, on March 27,2008. Mr. Brucc Gaible Eric Garza Hays, McConn, Rice & Pickering 400 Two Allen Center 1200 Smith Street Houston, Texas 77002 William Book Malt Child Tekell, Book, Matthews & Limmer, L.L.P. 1221 McKi~mey,Suitc 4300 Houston, Texas 77010 (713) 655-7727 (Fax) Dennis Hendcrson Pro Se P.O. Box 2490 Fort Meyers, Florida 33932 Patrick Zummo Is/ Patrick Zummo

4

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Tekell,

~ o o k ,att

thews t3 Limrner, L.L.P.

1221 MaKinney, Suite 4300 Houston, Texas 72010-2010 (213) 222-9542 Fax:

(213)655-2222

FAX COVER SHEET To:

Hon. Patrick E. Sebesta Judge, 23gthJudicial Disuict Court Brazoria County, Texas

(979) 864-1056

Bruce Gaible Hays, McConn, Rice & Pickering

(713) 650-0027

Patrick Zumrno Zumrno & Midkiff, L.L.P.

(713) 651-0597

Mr. Dennis Henderson Pro Se From: Date: Operator: File:

Matt Childs March 28,2008 Cathy Bell Royal1 v. Gore, et al; 1171011749

..

DOCUMENTS ,,,. , ,,-

... -..-A

See attached Response to Plaintiff's Reply to Defendants' Response to Plaintiffs Motion for Patrial Summary .- ... on his Status as Private Figure ..Judgment . , ,,. ...

NWMBER OF PAGES

-23

.--

This telefax from the law firm of Tekell, Book, Matthews & Limmer, L.L.P. is intended solely for the use of the addressees shown above. It may contain information that is privileged, confidential andlor exempt from disclosure under applicable law. If you are not the intended recipient of this telefax, you are hereby notified that the copying, use or distribution of any information or materials transmitted in or with this telefax is strictly prohibited. If you received this telefax by mistake, please immediately contact me (713)222-9542and destroy the original telefax.

PAGE 1123%RCVD AT 312812008 3:46:47 PM [Central Davliqht Timell SVR:HMRPmFAXIO1DNIS:O1 CSID: DURATION (mrnmssl:0Qm16

TEKELL,BOOK, MATTHEWS & LIMMER, L.L.P. A REGISTERED LIMITED LIABILITI PARTNERSHIP

ATTORNEYS AT LAW 4300ONE HOUSTON CENTER

CORPUSCHRISTIOFFICE 71 1 N. CARANCAHUA

1221 McKlNNEY

MATTHEW W. CHILPS PARTNER

INJURY TRIAL LAW i E U B BOARD OF LEOAL SPECIPJlZRIION

*O*RD CERTIFIEWEIIBONhL

HOUSTON. TEXAS 77010

SUITE nm

TELEPHONE 1713) 222-0542 TELEFPX (7131 855-7727 E-MAIL [email protected]

MRPUSCHRISTI,TEXAS78475 TELEPHONE lJB1I8836100 TELEFAX 13811 883.6103 [email protected]

E-MAIL mchlldsmlhml mm

March 28,2008

Mr. Jerry Deere Brazoria County District Clerk 111 E.Locust, Ste. 500 Angleton, Texas 775 15

Re:

Via Fax 979-864-1056 & Regular Mail

Cause No. 29996; H. Walker Royal1 v. Wright W. Gore, Jr., et al; In the 2391h Judicial District Court of Brazoria County, Texas

Dear Sir:

Enclosed please find Defendants' Response to Plaintiffs Reply to Defendants' Response to Plaintiff's Motion for Partial Summary Judgment on his Status as Private Figure with proposed Order thereon for filing in the papers of the above captioned case. Please place a notation in the margin of the enclosed copy of said pleading(s) advising of such filing and return to the undersigned.

By copy of this letter we are forwarding a copy of the enclosures to counsel listed below. Thank you for your customary courtesy

d ass1 tance in this matter.

PI

'l

MWC/cb #11710/1749 Enclosures

cc:

Patrick Zummo, Via Fax Bruce Gaible, Via Fax Dennis Henderson, Pro Se, Via Fax

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CAUSE NO. 2004-29996

4

H. WALKER ROYALL

IN THE DISTRICT COURT OF

§

4

BRAZORIA COUNTY, TEXAS

§ §

WRIGHT W. GORE and DENNIS HENDERSON

5

23gTHJUDICIAL DISTRICT

DEFENDANTS' RESPONSE TO PLAINTIFF7SREPLY T

C

)

T

MOTION FOR PARTIAL SUMMARY JUDGMENT ON HIS STATUS AS PRIVATE FIGURE TO THE IlONORABLE JUDGE OF SAID COURT:

COME NOW, Wright Gore, Jr. Western Seafood Company, and Wright Gore, 111, Defendants in the above-entitled and numbered cause, and file this their Response to Plaintiffs Reply to Defendants' Response to Plaintiffs Motion for Partial Summary Judgment on his Status as a Private Figure and would respectfully show unto this Honorable Court as follows:

Plaintiffs Motion for Summary Judgment and Defendants' Response was considered by the

Court during oral arguments on March 26,2008. At the time of the hearing, the Court requested counsel to search for authority to educate the Court on the precise date that the Court should consider as to when there is a "public controversy" for purposes of determining a private figure or limited purpose public figure, Plaintiff contends there was no public controversy when he sent his letter of intent in June, 2002 and therefore Defendants cannot claim Plaintiff is a limited purpose public figure at that time. Defendants contend that there was a public controversy long before the

publication of the website at issue and that the controlling date of a public controversy is when the alleged defamatoly statements are published. (i.e., March or April, 2004),

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In addition, at the time of the hearing it was learned by Defendants' counsel that Plaintiffhad filed a Reply to Defendants' Response late on the afternoon of March 25,2008. As a result, the Court has allowed Defendants until Friday, March 28,2008 in which to file a Response to Plaintiffs Reply. 11. Public Controversv Date As the Court knows, a person may be considered a limited purpose public figure if: 1.

The controversy at issue is public and people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution;

2.

The Plaintiff has more than a trivial or tangential role in the controversy;

3.

The alleged defamation is germane to the Plaintiff's participation in the controversy.

WFAA TV, Inc. v. McLemore, 978 S.W.2d 568,571 (Tex. 1998). At this time, there does not appear to be a bright line test as to a "date" or 'Time certain" when a Court considers whether or not a "public conboversy" exists for purposes of evaluating whether a person is a private figure or limited purpose public figure in a defamation action. However, there is substantial authorityto support Defendants' position that the evaluation of a public controversy may exist before and after the alleged defamatory statements. In ABC, Inc. v. Gill, 6 S.W.3d 19 (Tex. App. - - San Antonio 1999, pet. denied, overruled on other grounds by Turner v. KTRK W Zinc., 38 S.W.3d 103 (Tex. 2000)) the Court was confronted with an issue similar to the one this Court is concerned about in this case with respect to the timing of the public controversy. The ABC, Inc. case involved alleged defamation with respect to the RTC recovering only a small part of the cost of the savings and loan bailout from officers, directors and other insiders at failed S&L7sin Texas. Id. at 26. The alleged defamatory statements in that case

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aired on a news program on March 2, 1995. Id. at 26. The original Plaintiffs in that case contended that no public controversy existed until ABC, Inc. manufactured one by airing the program. Id. at 35. However, the Court examined the evidence and found that a public controversy existed and was ongoing before the program aired. Id. at 35. In Greenbelt Cooperative Publishing Ass 'n v. Bresler, 90 S . Ct. 1537 (1970) a case similar

to the one at bar, the alleged "public controversy" existed prior to any alleged defamatory statements. Id. at 1538. In Orr v. Argus-Press Co., 586 F.2d 1108 (1978), another similar case, the alleged public controversy existed Drier any alleged defamatory statements. Id, at 1116.

InEinhorn v. Lachance, 823 S.W.2d40S (Tex. App. --Houston [lflDist.] 1992, writ dism'd w.0.j.) a case out of Brazoria County, the public controversy existed before and after the alleged defamatory statements. Id. at 412-413.

In Novecon, Ltd v. Bulgarian -AmericanEnterprise Fund, 190 F.3d 556 @.C. Cir 1999), the public controversy arose

a lawsuit was filed and before the alleged defamatory statements

were made. Id. at 560-563. In order to satisfy the test set forth in WFrW TV, Inc. (i.e., private figure vs. limited purpose public figure) it is apparent that the alleged defamation be germane to Plaintiffs participation in the controversy. In other words, the alleged defamation must follow the controversy or the test cannot be met. Thus, Plaintiffs contention that there was no "public controversy" when he sent his Letter

of Intent in June, 2002 is irrelevant. As discussed in Defendant's Response to Plaintiffs Motion for

Summary Judgment as well as the evidence attached thereto, there was a public controversy over the marina project existing long before the publication of any website.

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111. p

y

Plaintiffs Reply to Defendants' Response to his Motion for Summary Judgment primarily relies on Hutchinson v. Proxmire, 443 US. 111 (1 979) and Wolsten v. Reader's Digest Ass 'n,443 U.S. 157 (1979). Plaintiff relies on the Hutchinson case for the purpose of arguing that Plaintiffs receipt of government money does not subject one to a limited purpose public figure status for purposes of a de:Famationaction. However, a close review of that case reveals that one may not become a Limited purpose public figure based upon an "award" which then subjects the person to public ridicule. 443 U.S. at 135. In Hutchinson, the Court's primary issue was whether a member of Congress is

protected by the Speech or Debate Clause of the Constitution Art. I

4 6 for alleged defamatory

statements in press releases andnewsletters. Id, at 117-134. With respect to the private figure versus public figure issue, the Court repeatedly referenced that Hutchinson's receipt of the "Golden Fleece Award" was the precipitating event to inspire the controversy that followed. Id. at 135. As established by Defendants' Summary Judgment Response and the evidence attached thereto, the public controversy at issue (i.e., the marina project) existed long before any website that is the subject of this case. In Wolsren, the original Plaintiff sued Reader's Digest for publishing a book in 1974 relating to the Soviet Union's espionage organization and activities since World War 11. 443 U.S. at 160. Reader's Digest contended that Plaintiff was a limited purpose public figure because he became involved in a public controversy and investigation of Soviet espionage in 1957 and 1958 as a result of his Aunt and Uncle being w s t e d for spying. Id, at 162. Wolsten did not comply with a subpoena in July, 1958 and subsequently several news articles were written discussing the

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investigation. Id. at 163-164. Following that limited publicity, Wolsten lead a private life until the publication of the book in 1974. Id. at 164. At the lime the book was published, there was no public controversy, people were not discussing the investigation from sixteen years earlier, and Wolsten had only a "minor role" in the previous controversy. Id. at 168. The Court declined to make Wolsten a limited purpose public figure for "his mere citation for contempt" (i.e., failing to comply with a subpoena). Id. at 168. Again, the Wolslen case is irrelevant to this case before the Court. The facts in Wolsten are considerably different than the facts in this case. The Greenbelt case is the precedent that this Court should consider. (Attached). This case

involves a local real estate developer in Greenbelt, Maryland who was involved with the City in negotiations for housing development. 90 S.Ct. at 1538. There was local controversy at the City Council meetings and in the local press. Id. at 1538. Bresler, the Plaintiff, eventually sued the local paper for publishing two news articles characterizing Bresler's negotiations with the City as "blackmail". Id. at 1538. The Court found: 1.

Bresler was deeply involved in the future development of The City of Greenbelt;

2.

Bresler had entered into agreements with the City for zoning variances in the past and was again seeking such favors to permit the construction of housing units of a type not contemplated in the original City plans;

3.

The City was trying to obtain a tract of land owned by Bresler for the purpose of building a school;

4.

Negotiations of significant public concern were in progress, both with school officials and the City Council.

Id. at 1539.

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As a result of all of the factors as set forth above, the Court stated that Bresler was "clearly" a public figure. Id. at 1539. In our case: 1.

Royall was and is deeply involved in the future development ofthe City of Freeport;

2.

Royall entered into agreements with the City for the marina project;

3.

Royall sought special favors not only from the municipal government, but from the local school district in the form of "tax abatements" and "other forms of tax incentives, credits, abatements, tax increment financing, grants, and other matters requested by the Project Developer." (See Defendants' Exhibit 5 - Section 2.5);

4.

Royall requested, and received, contractual obligations of other public entities such as the Velasco Drainage District, to alter the earthen levee system protecting the residents of Freeport from floods and other natural disasters, matters that clearly affected the health, safety and welfare of the citizens of Freeport. (See Defendants' Exhibit 5 - Section 7.2(g);

5.

Royall agreed to be fully responsible for the marina project;

6.

Royall agreed to use the City's power of eminent domain to obtain land from other private land owners to be conveyed to him for the marina project; and

7.

Royall has agreed to take a six million dollar non-recourse loan from the City of Freeport.

All of this occurred before the publication of any website. In addition, Greenbelt was approved by the Texas Supreme Court. SeeNew York Times, Inc. v. Zsaacks, 146 S.W.3d 144,155 (Tex. 20041, In Orr, another real estate developer case, the Court found the Plaintiff to be a limited purpose public figure. In Orr, the Court found: 1.

Ow's conduct in the community to build a shopping complex was a legitimate interest of public concern;

2.

The shopping complex was of interest and importance to the people of Owosso, Michigan;

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3.

News articles were previously published regarding the proposed mall and its developers;

4.

Orr sought or acquired publicity for the project; and

5.

Through his own misdeeds, Orr found himself at the center of a public scandal.

586 F.3d at 1116. In our case: 1.

Royall's conduct in the community to build a marina project is and was a legitimate interest of public concern;

2.

The marine project is and was of interest and importance to the people of Freeport, Texas;

3.

News articles were previously published regarding the proposed marina project and its developer;

4.

Royall sought or acquired publicity for the marina project; and

5.

Through his own shenanigans, Royall has found himself at the center of a public scandal.

In Novecon, Led., another real estate developer case, the Court found that the individual

Plaintiff and his company were limited purpose public figures. 190 F.3d at 563. The public controversy in Novecon, Lld, started after a lawsuit was filed.

Novecon, Ltd. v. Bulgarian

-

American Enterprise Fund, 967 F.Supp 1382,1391 (D. Conn 1997). The controversywas reported in thc Wall Street Journal Europe. Id, at 1390. Plaintiffs participated in the controversy and thc alleged defamation was germane to the conboversy. Id, at 1390. See also Novecon, Lld v.

Bulgarian -American Enterprise Fund, 977 F.Supp. 45 0.D.C. 1997). Defendants have satisfied the criteria to establish that Royall is a limited purpose public figure for the controversy and issues in this case. As detailed in Defendants' response, Royall accepted certain rights under his contract with the City of Freeport. These rights included the power

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to enforce eminent domain, to have private land conveyed to him, the receipt of a six million dollar non-recourse loan, favorable tax abatements, and full authority and responsibility for the marina project. News articles identifying Plaintiff and his company were written concerning the risks of the loan from the City, the controversial nature ofthe marina project, and the lack of competitive bidding to other developers. News articles were published about the litigation between Western Seafood

and the City of freeport. The website at issue discusses this controversy and Plaintiffs role in it.

As a result, this Court should find that Royal1 is a limited purpose public figure.

WHEREFORE, PREMISES CONSIDERED, Wright Gore, Jr., Western Seafood Company, and Wright Gore, 111, Defendants in the above-entitled and numbered cause pray that

Plaintiffs Motion for Partial Summary Judgment on his Status as a Private Citizen be denied and for such other and further relief, both general and special, at law and in equity, to which these Defendants may be justly entitled. Respectfully submitted:

/

n

TBA NO. 02622000 MATT W. CHILDS TBA No. 04202050 4300 One Houston Center 1221 McKinney Houston, Texas 770 10 (713) 222-9542 (713) 655-7727 (Facsimile) ATTORNEY FOR DEFENDANT Wright Gore, 111

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HAYS. m O N N . RICE & PICKERING

BY:

,GAY

I /

iy

TBA NO. 07567400 400 Two Allen Center 1200 Smith Street Houston, Texas 77002 (713) 654-1111 (713) 650-0027 (Facsimile) ATTORNEY FOR DEFENDANTS Wright W. Gore, Jr. and Western Seafood Company

p 1hereby certify that on this the

t)day of March, 2008, true m d correct oop(ies) of

the foregoing instrument were forwarded to all counsel of record via Certified Mail, Return Receipt Requested andlor regular mail, andlor via facsimile.

~ a t t h W. b Childs

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ro

CAUSE NO. 2004-29996

IN THE DISTKICT COURT OF

H. WALKER ROYALL

v.

8 8

WRIGHT W. GORE and DENNIS HENDERSON

8

s 8

BRAZOIUA COUNTY, TEXAS 23gTaJUDICIAL DISTFUCT

BE IT EMEMBERED that on this day came on to be considered Plaintiffs Motion for Partial Summary Judgment on his Status as a Private Figure in the above-entitled and -numbered cause, and the Court having read the motion and response is of the opinion that this motion should in all things be denied. It is therefore,

ORDERED, ADJUDGED AND DECREED that Plaintiffs Motion for Partial Summary Judgment on his Status as a Private Figure is DENIED.

SIGNED this

day of

,2008.

JUDGE PRESIDING APPROVED: TTHEWS & LIMMER

State Bar No. 04202050 4300 One Houston Center 1221 McKinney Houston, Texas 77010 (713) 222-9542 (713) 655-7727 - FAX ATTORNEYS FOR DEFENDANT Wright Gore, III

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TBA NO. 07567400 400 Two Allen Center 1200 Smith Street Houston, Texas 77002 (713) 654-1111 (7 13) 650-0027 (Facsimile)

ATTORNEY FOR DEFENDANTS Wright W. Gore, Jr. and Western Seafood Company

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888 U.8. 6

@REENBELT OOOPERATIVE PUBWSHXNG ASS'N v. BREBLER ~ i t nn u n R . c ~inn . (1070)

5PB

r DePOWCO, pen(TED STATES. IB, Mtac.

n, 422 F.2d 1304. Griswold, for the of certiorari to the : of Appeal8 for the

of certiorari to the t of Appeals for the lied.

v.13 6

GREENBELT COOPERATIVE PUBLISH. INU ASSOCIATION, Ink) st al., Petltlonew, v.

Chmles S. BBESLEU. No. 413.

Argued Feb. 24 and 25, 1970. Decided May 18, 1910. Libel action against corporate publisher of newspaper and its president. The Circuit Court for Prince George'e County. Maryland, entered judgment on jury verdict for plaintiff and defendants appealed. The Court of Appeals of Maryland, 263 Md. 324, 262 A.2d 756 affirmed and certiorari was ~ r a n t e d . The 9upreme Court, Mr. Justice Stcwart, held that, under constitutional free speech provisions, use of term "blackmail," in characterizing negotiating poaition of public figure, who was seeking zoning variances at time city was attempting to acquire from him another tract, was not "slander" when spoken in heated public meetings of city council and was not "libel" when reported in newspaper articles which fully and accurately reported the public debates. Reversed and remanded. Mr. Justice White concurred in the judgment, joined the opinion of the court in part, and filed an cpinion. Mr. Justice Black, with whom Mr. Justice Douglas joined, concurred in the judgment and filed an opinion.

1537

2. Conntihltlannl Law W O O

Where plaintiff was deeply involved in future development of city, he had in the paat entered into agreements with city for zoning variancea, he wa8 again seeking variances and city was trying to obtain another tract of land owned by him, plaintiff was a "public figure" in the community for purpose8 of determining whether he was precluded by conrtitutlonal protection of free spcech from recovering for alleged defamatory publications. U.S.C.A.Const. Amends. 1, 14. See poblicntion II'ords nnd I't~msos for ulllvr jllrlicial conatructiora~ Ulld ~Icfillitionu.

3. Constitutional L a w -90

Instructions permitting recovery by plaintiff, a public figure, if defendants' newspaper articles concerning plaintiff had been made with malice "or" with reckless dinregard of whether they were true or false, defining malicc to include "spite, hostility, o r deliberate intention to harm" and stating t h a t malice could be found from language of the publication itself, permitted finding of liability in violation of conetitutional provisions for free speech. U.S.C.A.Const. Amcnds. 1, 14. 4. Constitutional Law -90

Free speech constitutional provision precluding civil remedy of libel unless thero has been a knowing or reckless falsehood is no different whether plaintiff be considered a "public official" or a "public figure." U.S.C.A.Const. Amend. 1. 5. COWER -400

1. Constitutional Law *8t1

Constitutional protections for speech and press permit a "public official" to recover money damages for libel only if he can show that the defamatory publication was not only false but was uttered with actual malice, that is, with knowledge that i t was false o r with reckless disregard of whether i t was false or not. U.S.C.A. Const. Amends. 1, 14. 40 S.Cl.-97

Where it was impossible to know, general verdict returned, whether jury in libel case imposed liabilit y on a permissible o r a n impermissible ground, judgment must be reversad and case remanded. U.S.C.A.Const. Amends. 1,14. In view of

courts QSOB(2) The Supreme Court'e duty is not limited to elaboration of constitutional principles; t h e Court must also in proper 8.

1538

90

BUFREME OOURT REPORTER

cases review the evidence to make certain t h a t those principles have been constitutionally applied.

7. Courts @888(1) Supreme Court must make an independent examination of whole rNord of case involving free expression to assure that judgment does s o t congtitute a forbidden intruaion. U,S.C.A.Conut. Amend. 1. 8. ConsMtutlonat Law -PO

Because threat or actual imposition of pecuniary liability for alleged defamation may impair unfettered free political discussion, Constitution imposcs stringent limitation8 upon permissible scope of such liability. U.S:C.A.Const. Amend. 1. ConsMtutlond Law *MI Under free speech constitutional provisions, use of "blackmail," in charactcrizing of public fi8ure, who was @&ing zoning variances at tirne city was attempting to acquire from him another tract, was not when rrpokenin heated public meetingo of and was not -libel* when re. ported in newspaper articles, which fully and the public debates, inasmuch as it was impossible to believe that reader would think that a crime had been charged, U , ~ , ~ , ~ , ~ Amends. 1, 14. 9.

See publication Worde and Phraeea for other judicinl con~tructlons nnd deflnitiona. C -

1

roger A. Clark, New York City, for petitioners. Abraham Chauanow. Greenbelt, Md., for reapondent.

Mr. Justice STEWARTdelivered the opinion of the Court. The petitioners are the publishera of a small weekly newspaper, the Greenbelt

WEENBELT BD8 U,8.10

s*n U.B.

judgment, 263 Md. 32 We granted certiorari constitutional issue8 pr, S . 874, 90 S.Ct. 164, 24 I

News Review, in the city of Greenbelt, Maryland. The respondent Bresler is a prominent local real estate developer and builder in Greenbelt, and was, during the period in question, a member of the Maryland House of Delegates from a neighboring district. In the autumn of le6S Bresler was engaged in negotiations with the Greenbelt City Council to obtain cer. tain zoning variances that would allow the construction of highddensity housing on land owned by him. At the same time the city was attempting to acquire anothe r tract of land owned by Bresler for the construction of a new high achool. Extenaive litigation concerning compensation for the school site seemed imminent, unless there should be an agreement on its price between Brealer and t h e city authorities, and the concurrent negotiations obviously provided both parties considerable bargaining leverage,

[ll In New York T livan, 376 U.S. 254, 84 S 2d 686,we held that the mits a "public official" ' damages for libel only that the defamatory pul only false but was utter malice'-that is, with k was false or with rcckl whether it was false o r I 280, 84 S.Ct. a t 726. Ir ing Co. v. Butts, 388 U 1976, 18 L.Ed.2d 1094, I constitutional restrictio suit brought by a "publi.

These joint negotiations evoked substantial lopal contmvers~, and several tumultuous city council meetings were held a t which many members of the community freely expressed their views. The meetings were reported a t length in the co~umnsof the Greenbelt News Review. Two news articlea in conaecuhive weekly editions of the paper stated t h a t a t the public meetings Some people Bresler's negotiating ohad n s tcharacterized , position aa "blackmail." The word appeared several times~bothwith and with- , out quotation marks, and was used once a s a subheading within a news story.1

&

2. Tllu following

I:XPC~II~N

jud~c'tl cllrlrsc llrc illtlrtr "iiccordlngly * * for the dcfcndn~~ton tl eommcnt. 11n1l.o~,-on #lrt< lrondprnncc nf tho r*villma nlcnt er rritlvinnr * l i d ~ ~wit11 d r~i,tIivvor J I r, of n-llctlla~rit Wnr Irllv or * .\no1 HIII'IIxt crl nnd/or trl~blishcd, nni nlalitr~.or kamr.lonclc,- tlnly r C r k l ~ ~ 8di~r(~y!trdf n n ~ IV trtlc m r rttl~,,.in I I ~ D ! l ; 1 ~ 1 . "The lo\r n ~ ~ ~ o c 1 1t1la~c ~ Irvr I I ~ H I ~ I I Y Y I I I~I I ~ n vritiltl Of tn~bblir i ~ l l v r v ~tn t 1111 Klllnt~IInn~t~nitY 0 v . n wit

Bresler reacted to these news artides by filing the present lawsuit for libel, seeking both compensatory and punitive damages. The primary thru8t of his complaint was that the articles, individuall~t and along with other items published in the petitioners' newspnper, imputed to him the crime of blackmail. The case w n t to trial, and the jury awarded Bres. ler $6,000 in compensatory damages and $12,600 in punitive damages. The Maryland Court of Appeals affirmed the

I . The rclevset ~ o r t l o n sof t h e w naws nrtieles nre printed

C21 In the present counsel conceded in hip o to the jury that Bresler ure i n the community. was clearly correct. Br involved in the future df city of Greenbelt. He agreements with the cit) ances in the past, and w such favors to permit th houaing units of a type in the original city p l ~ time the city was trying of land owned by Bresle. ~f build in^ a school. significant public conce

I'

as a s nppcudix to tllia opiolcn.

1

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388 U.S. 6 the city of Greenbelt, respondent Bresler is a eal estate developer and elt, and was, during the , a member of the Maryegatea from a neighborI the autumn of 1966 gcd in negotiations with .y Council to obtain cerances t h a t would allow of high-density housing him. At the same time nptinu to acquire anoth~wnedby Bresler for the I new high school. Ex1 concerning compensaol site seemed imminent, uld be an agreement on .n Bresler and the city the concurrent negotlarovided both parties conning leverage. (egotiations evoked subontroversy, and several council meetings werc any members of the corn=pressed their views. ere reported a t length in IS of the Greenbelt New8 lews articles in consecu:ions of the paper stated lic meetings some people .ed Bresler'a negotiatin~ ickmail." The word apimes~bothwith and with- & larks. .. .. and was used once r within a news story.' ed to these news articles rresent lawsuit for libel, ~mpensatoryand punitive ,rimary thrust of his cornthe articles, individually other items published in ' newspaper, imputed to of blackmail. The case ~d the jury awarded Bressmpensatory damages and tive damages. The M a w Appcals affirmed the oppen
I

GREENBELT 000PERATIVE P V B L I B m a ASWN v. BRESLER 1539 388 v.8. 10 C i t e 1 1W ~ S.Ct. lliPi 110701 judgment. 263 Md. 324, 252 A.2d 766. ress, both with school officials and the We granted certiorari to consider the city council. Bresler's atatus thus clearly constitutional issues preeented. 396 U, fell within even the most restrictive defS,874, 90 S.Ct. 164, 24 L.Ed.2d 135. inition of a "public figure." Curtis Publishins Co. v. Butts, supra, 164-156. 111 In N~~ york ~i~~~ co. v* sullivan, 876 U.S.264.84 s.ct. 710, 11 L . E ~ . 87 S.Ct. 1991-1992 (opinion of Harlan, J.1. See also Pauling v. Globe-Democrat 2d 686, we held that the constitution per. mits a to recover money Publishing Co., 8 Cir., 362 F.ed 188, 195damages for libel only if he can show 196, Cert. denied, 388 U.S. 909. 87 S.Ct. that the defamatory publication waB not 20B7. 1347. only false but was uttered with "'actual [3] Whether as a state legislator repmalice1-that is, with knowledge that i t resenting another coustu, or for some was false o r with reckless disregard of other reason, Bresler was a "public offiwhether it was false or not." Id., a t 279, cial" within the meaning of the New 280, 84 S.Ct. at 726. In Curtis Publishing Co. v. Butts. SS8 U.S. 130, 87 S.Ct. Pork Times rule is a question we need 1975, 18 L.Ed.2d 1094, we dealt with the not determine. Cf. Time, Inc. v. Hill, 385 constitutional restrictione upon a libel U.S. 374, 390, 87 S.Ct. 634, 643, 17 L.Ed. 2d 456; Rosenblatt v. Baer, 383 U.8,75, suit brought by a "public figure." 86 n. 12, 86 S.Ct. 669, 676, 16 L.Ed9d [21 In tho present case Bresler's 597. For the instructions to the jury counsel conceded in his opening statement in this case permitted a finding of liato the jury that Bresler was a public fig. bility under a n impermisaible constituure in the community. This concession tional standard, whichever status Bresler was clearly correct. Bresler was deeply might be considered to occupy. In his involved in the future development of the charge to the members of the jury, the city of Greenbelt. He had entered into trial judge repeatedly instructed them agreements with the city for zoning vari- that Bresler could recover if the petitionances i n the past, and was again seeking ers' publications had been made with auch favors to permit the construction of malice or with s reckless disregard of houaing units of a type not contemplated whether they were true or false. This in the original city plan. At the same instruction was given in one form o r time the city was trying to obtain a tract another half a dozen times during the of land owned by Bresler for the purpose course of the judge'a charge.8 The judge buflding a school. Negotiations of then defined "malice" to inc ude "spite, s ~ g n ~ f i c a npublic t concern were in prog- hostility o r deliberate intention to harm."

f

xf

2. The following excarpto fronl the ttinl

judge's cllnrse ore illustrnti~e: "Accordingly * * sou must find for the defendnnt on the issue of fair commcnt, unleea sou derormine hg a p r e ~~ondernnee of the evidence thnt the comment or criticism * * * was pubIiallcd wit11 mnlicc or n reck1c.a dlRrcCnrl1 of wllether It waa truc or f n l ~ c . "* * And such amtemq!nta repeat. ed nnd/or ~nbliahcd,unloaa with nctunl malice, or knowlcdsc tlzst thw nre falae, rccklesa. diaresard for n7hcther they nrc truc or fnlse, ia not libel. r h o low recognizes the in~~)ortance sf free discuseion and oriti~ismnnd mnttcre of pllblic interest to tlic d e n t thnt it #rants immunity eves with respect to the d,

publientios of foolish und ~rciudiclnlcrit. icisrn if they am not puhliahed with mslice, knowledge of their not being true, it is knowledge they arc ful~e,or reckless diat~nrdof whether they are true or false. * * *

*

*

*

"[Ylour verdict should be for the dofesdnnl unless son flnd thnt thc puhlicn. tioo waa nlndc with nctunl mnlico, knowledro of ita fnlsitr, or rccklesa disregnrd of whether it w l a true or fnlee.

*

*

*

[X'lour verdict should be for the defendant unless you find wein the publication was with nchral malice, knowledge of its bcins false or rkkleaa disresard of whether it waa true or inlse." "

1540

Moreover, he instructed the jury that "malice" could be found from the "language" of the publication itself.3 Thus the jury was permitted to find liability merely on the basis of a combination of falsehood and general hostility.

i

C41 This Was of mamitude, a s our decisions have made clear. "This definition of malice is constitutionally insufficient where discusaion of public affairs ia concerned : '[wle held in New York Time& that a public official might be allowed the civil remedy only if he establishes that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether i t was false or true.' " Roaenblatt v. Baer, supra, a t 84, 86 S.Ct. at 675. "[Elven where the utterance is false, the groat principles of the Constitution which secure freedom Of expression in this area preclude attaching adverse consequences to any exeept the knowing o r reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that ikwill be proved in court that he spoke out of hatred; * * *" Garrison v. Louisiana, 379 U.S, 64, 7s. 85 Sect.209, 215, 13 L.Ed.2d 125. See also Beckley Newspapers Corp, v. Hanks, 389 U.S. 81, 82, 88 S.Ct. 197, 198, 19 L.Ed.zd 248. And the conatitutional prohibition in this respect is no different whether the plaintiff be Considered a "public official" or a "public figure." Curtis publishing Go. v. Butts, supra. [5] The erroneous instructions to the jury would, therefore, alone be enough to require the reversal of the judgment bcfore us. For when "it is impossible to know, in view of the general verdict returned" whether the jury imposed liability on a permissible or an impermissiblc 3. Thc crlnl judm anid : "With r c s ~ e c tto your r n n s l d c r ~ ~ t ~of on preaencc of act1101 mnlice on t l ~ cpnrt of defendnnt, you may lni#:r ita prpecncr from the l a n ~ u n g eor CircumHtllnr~aof the publlcsc1on, but this mny be done only

W A G E 11 axRCVD AT 3 28 2008 3.:41

GXEENBELT

90 SUPREME OOURT REPORT= ground "the judgment must be reversed and the case remanded." New York Times Co. v. Sullivan, supra, 376 U.S, at 284, 84 S.Ct. a t 728. See Time, Inc. v. Will, supra, 385 U.S.a t 394-397, 8 7 $.fit, at 5 4 5 6 4 7 ; Roaenblatt v. Baer, supra, 383 U.S. a t 82, 86 S.Ct. a t 674; Strom. berg v. California, 283 U.S. 369, 367-388, 51 s,ct,532, 635,75 L , ~ 1117, ~ ,

Thornhill v. Alabama, 31 60 s.Ct. 736, 744. 84 L-I thc threat or actus pecuniary liability f o r may impair the unfctte those First Amendment constitution imposes st

[6,'73 This, however, does not end the inquiry. As we noted in New York Times, "[tlhis Court's duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionalIY applied. * * * We must 'make an independent examination of the whole record,' * * * so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression." 376 U.S.. a t 285, 84 S.Ct.. a t 728.

~t is not disputed tl published in the petitin were accurate and trut what had been said a t ings before the city cc sense, therefore, it canno that the petitioners we: "departure from t h e stal gation and reporting or to by responsible Pul publishing CO. V. Butts a t 166, 87 S.Ct. a t 1991 lan, J.), much less the

[BJ This case involves newspaper reports of public meetings of the citizens of a community concerned with matters of local governmental interest and imaortanee. The very subject matter of the news reports, therefore, is one of particular First Amendment concern. "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means * * * is a fundamental principle of our constitutional system." Stromberg v. Cal ornla s z ~ L x pra, 283 U.S. a t 369, 51 At. 3'5.36: "Freedom of discussion, if i t would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencics of their period." if tlle cllnrnr-ter of the ~ubllnltion la HO c x c ~ a i v r , i ~ ~ l ~ ~ r n ~ snrcnnonnblc rrnt~. nnd nbnalvc $1" to defy nny othcr rctasonnbl~ roncl~lrion tllnn tlmt tllc defcndnnt w n ~ rnoved bs actnnl lrl~llirrtorvnrd t l ~ aplnlntiff."

PM [Central Daylight time]^ SVR:HMRP~FAX0' DNIS:O CSID: DURAT~ONw~ssJ:~-li

van, supra, 376 U.S. a1 The contention the speakers a t the me( word "blackmail," and report in^ the use of newspaper articles, w e t with the crime of bl; since the petitioners I had committed no suck be held liable for th' [g]

Note. Tho Amcndn~cnt I'rotuctio! I)efnniotory Krror. 75 015: Pedrick. F r ~ p d ~ l l the Lnw of libel : T I Tri~nalotinn. 49 Cnmf 503.

4. Seo nlao

5. C1. I'nllling \-.(tldrr inp Co., 8 Cir., 308 F. 3HR I'.S. OOn. 87 H.(:

MAR-28-2888

1542

P. 19/23

14:54

80

School Site Deal," made it clear to all readers that the paper was reporting the public debates on the pending land negotiations. Bresler's proposal was accurately and fully described in each article, along with the accurate statement that some people a t the meetings had referred to the proposal as blackmail, and others had indicated they thought Bresler's poaition not unreasonable. It ia simply impossible to believe that a reader who reached the word "blackmail" in either article would not have exactly what was meant: it was Bresler's public and wholly legal negotiating proposals that were being criticized, N~ -reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense.' On the contrary, even the most carelesa reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable. Indeed, the record is completely devoid of evidence that anyone in the city of Greenbelt or anywhere else thought Bresler had heen charged with a crime.

A 6

GREENBEJ

SUPREME OOVRT SEPORrER

To permit the infliction of financial liability upon the petitioners for publishing these two news articles Would subvert the most fundamental meaning of a free press, protected by the First and Fourteenth Amendments. Accordingly, we reverse the judgment an remand the case to the Court of Appeals of Mnryland for further proceedings not inconsistent with this opinion.

+

I t is so ordered. Judgment reversed and case remanded. 7. r n d c r thc lllw of >Inruland thc crime of blnckmnil consistu in tllrcntening t o nc. cusc nllr pcrson of nll indir.tnblc crilnc or of ~ n v t h i n rwhich, if truc, would bring the person into contempt ur disrep~~to. with n viow t o cxtorting tnoncy, goode.

knowledge rec goricall~opposed by I a Board member of I ~ C . (GHL), who re, merit by GHI presid,

APPENDIX TO OPINION O F THE COURT On October 14, 1965, the following story appeared in the Greenbelt News R e view:

SCHOOL SITE STIRS UP COUNCIL REZONING DEAL OFFER

Black

DEBATED

" ~seema t that thi blackmail," commer Bergemann on Mom word was echoed bY the audience.

BY Dorothy Sucher

Deliy in construction of a new Greenbelt high school is the lever by which a local developer is pressuring the city to endorse his bid for higher density rezoning of two large tracts of land; so citizens heard a t a well-attended special meetins of the City Council on Monday night, Oct. 11.

~ouncilmanDavid denied that it was Ing that he would r e,, the negotiations

For the past nine months, the Board of Education has been trying to acquire land owned by Consolidated Syndicates, Inc. (Charles Bresler-Theodore Lerner), for a high school site. The landowners, developers of Charlestowne Village, also own other tracts of undeveloped land in Greenbelt.

Speaking from commented: "Ever need for a school-: halls of High Point. there's a need and need if you meet 01 ion, it's highly m e t

The developer has refused to accept the Board of Education,8 price, and con-

demnation delayed three times

t

t

have already been

,,

*, Originally, it was hoped the new school would open . September 1966. Some time ago, i t became known that the dev@loperwould agree on the price, provided the city would help him obtain higher density rezoning for two of his tracts (Parcels 1 and 2, totaling 250 acres) near the center of Greenbelt. If the city refused, h@threatened to delay d h e school site acquisition as long as posaible through the courts.

Delay Mayor Edgar S1 should be made cl developer's terms mean the loss of tl would, however, PI three year delay in

Among the pare: Joseph Rosetti, wf a1 children going I would rather a1 ~M.aster Plan t h u wrth denae develo for my chlldren'a give in to a blacl

4 8

This "deal" as it was termed by several citizens a t Monday's meeting, has been rumored for months, but only became or things of value.

See Md.Ann.Calc. nrt. 21, gg Ml-553 (lea7 Repl.VoI.). Tllerc is, of ivumr, no lndi
PAGE 19/23' RCVD AT 312812008 3:46:47 PM [Central Daylight Time]' SVR:HMRPmFAXIO1DNIS:O' CSID: ' DURATION (mmmss):09.16

The following ' carriedthe aeguel

i

14:55

l'0 OPINION OF

COURT 1965, the following he Greenbelt News R,.

TIRS UP COUNCIL DEAL OFFER IATED thy Sucher :tion of a new Green. the lever by which a ressuring the city to r higher denaity re. I tracts of land: 80 well-attended special Council on Monday P months, the Board !en trying to acquire aolidated Syndicates, !r-Theodore Lerner), tc. The landowners, !stowne Village, also undeveloped land in

refused to accept the price, and ccmrs have already been * *. Originally, V school would open 2's

became known that agree on the arice, uld help him obtain ing for two of his 1d 2, totaling 230 :r of Greenbelt. If threatened to delay tion aa long aa posrts.

termed by several meeting, has been but only became See Md.Ann.Code. (1967 Repl.Vo1.).

Indiration in ony Bmsler had enroncllius such eon-

~1

P .28/23

1543 BEEENBELT 000PBRATWE PUBLIBXINO ASB'N v. BR?SSLER Cite nu 80 s.Ct. 1m Si10701 blic knowledge recently. I t waa cateCOUNCIL REJECTS BY 4-1 HIGH SCHOOL SITE DEAL orically opposed by Nathan Shinderman, Board member of Greenbelt Homes, By Mary Lou Williamson who read a lengthy statepresident Charlea Schwan More than 160 citizens came to hear how the new City Council would reapond to presaure by a local developer for higher density zoning on a large tract of land Blackmail in exchange for uncontested consumma"It seems that this is a slight case of tion of the sale of a Greenbelt senior high blackmail," commented Mrs. Marjorie school site to the Board of Education at Bergemann on Monday night, and the the Council meeting Monday night. word was echoed by many apeakers from Council sat quietly listening for more than an hour to citizen statements before Councilman David Champion, however, voting to reject the proposal (4-1) with Councilman Dave Champion disaenting. denied that it was "blackmail," * I " " Y * ing that he would rather "refer to it (i. e., the negotiation-Ed.) aa a 4wo-way Citizens Speak A~ procession took the floor speaking from the floor, G ~ ~ &~ I ~ ~ hof citizens , to make impassioned speeches-some commented: u~~~~~~~~ knows therevs a for a school-just walk through the from prepared texts, some extemporan@halls of High Point. The developer knows 0UslY. The IIIaYor occasionally had to thereTs a need and says, awePllmeetyour caution them to refrain from engaging need if you meet our need.' In my opin- in personalities* ion, it's highly unethical." Albert Herling suggested skulduggery a. * f I w w in the September court postponement. Although he praised most of the City Manager's report, he criticized the section Delay Probable entitled "Risks and Concluaions," saying Mayor Edgar Smith remarked that it they appeared negative in the extreme. should be made clear that refusing the He suggested a list pf positive steps that developer's terms did not necessarily council ought to take: 1) fight Bresler's mean the loss of the school site; that it "blackmail" ; 2) make clear to the Board would, however, probably mean a two or of Education-no deals: 5) make clear three year delay in the construction of the to the District Council (zoning authority) unanimous opposition to the requested school. R-SO wning ; and 4) seek the swiftest * * + I W W possible court settlement. "For anything Among the parents who spoke was Mra. less," charged Herling, "Would be other &a Joseph Rosetti, who said: "I have sever- than what you believe. And w en the al children going into high school, but chips are down, this is exactly what you'll I would rather adhere to the Greenbelt do." * Plan than overcrowd the town * It * wlth dens0 development. f would atand Pilski asked if anyone in the audience for my children's dimomfort, rather than cared to speak in support of Bresler's give in to a blackmailing scheme." proposal. Only James Martin took the floor. He The following week, the News Review suggested that Bresler's action was not carried the sequel to its earlier story:

4,

master

888

U.S. 10

spectable class in

*.

-

upon the plaintiff :ponderante of the ~blicationimputed isgraceful, dishonluct or was othorI private character App. E. 189. ! dispute over the harge of blackmail 't told the jury: * e to concludc from f the evidence that irs a meaning asplaintiff, or if you nce is equally bal, then your verdict ndant. I

*

X

le publication comt consider the pub-the Court would are talking about :r of publicationsleaning of the pubrould be understood s from the entire :h the other facts shown by the evition is susceptible ne of those which id thLother not, i t L m !h of the two meanibutable to it, by s addressed or by cad. In reaching in consider all the ~undingthe publiles all of tha eviIn admitted." Id., ined the crimc of I jury that in this lewspaper did not tna were true. :eption t o none of tions although in lent n. 0, v, or for

i

GREENBELT OOOPERATIVE PUBLISIIINlt A W N v. BRESLER 1545 398 U.8.22 ~ i t UH o w x . c ~IJS? . (i07u1 a new trial, error was claimed in not inous to Mr. Bresler in his busineas as a structing the jury that the failure to contractor and were libelous per se." plead truth meant only that the defendId., at 354, 252 A.2d. a t 772. ants did not adopt the meaning of the As for the issue of malice, t h e Court of words alleged by the plaintiff. See App. Appeals noted that the newspaper knew E.10-11. the blackmail charrre was in the - - fnlne . . -.. -".The jury returned a verdict for plain- criminal sense. w i t h reference to the tiff, and judgment was entered on thc charge of "skulduggery" the court pointverdict for both compensatory and puni- ed out that thc newspaper had not quoted tive damages. another source in using that word; rathThe Court of Appeals of Maryland af- er, i t was the publishers' own characterfirmed. The court held that aside from ization of the events. federal constitutional protections urged "There is little doubt that the word by petitioners, the jury's verdict and sub'skulduggery' was intended to indicate sequent judgment thereon were supported dishonest conduct on the part of Bresby the evidence. With reaaect to the ler and to hold him up to ridicule and blackmail charge the court said: contempt. * * * The jury could properly conclude that the reports of "In the instant casa the word 'blackthe hearing were not accurately reportmail' was used an a sub-heading withed and were, also, published with a out clualification. The charge of blackknowledge of their falsity or with aermail was stated in the News Review ious doubt of their truthfulness." Id.. issue of October 14, 1965, and was a t 860, 252 A.2d, at 776. again repeated in the next week in the issue of October 21. The appellants The court also held that the allegations argue that the word 'blackmail' was that homeowners had started legal proused in a noncriminal sense, but the ceeding~against Bresler in regard to con. intended meaning was for the jury struction defects in their homes built by to determine. American Stores [Co.] him had been made with reckless diev. Byrd, supra [229 Md. 6, 181 A.2d regard for the truth. 5831. The jury h u n d against the apIn reversing the Maryland Court of pellants. Appeals, the Court does not deny that the 4 X * X * * Constitution would permit r e c o s r y for &z X T h e charging of Mr. Bresler with charging t h e crime of blackmail, or even h a v ~ n rcommitted blackmail could bc for faleely accusing one of "blackmail" found by the jury (as i t was) to in n noncriminal but derogatory sense charge him with the commission of a "injurious to the private character or crime." 253 Md. 324, 351-352. 252 credit of the person." The Court does A.2d 765, 770 (1969). not deny t h a t the f u r y was told it had tho authority to decide in what sense a The court alao dealt with the other word was used or understood, nor does publiestions : the Court question the conclusion of the "In addition to the publications that Court of Appeals that tho jury had found Mr. Bresler had committed blackmail. that the word had been used and underthere were publications that he had en- stood in the criminal sense. What the gaged in 'An unethical trade', had been Court does hold on the cold record is that guilty of 'skulduggery', had had legal t h e trial judge, t h e jury, and the Maryproceedings 'started against him f o r land Court of Appeals were quite wrong failure to make construction correc- in concluding that "ordinary readers'' tions in accordance with county stand- could have understood that a crime had ards.' These allegations were injuri- been charged. If this concluaion rests on 90 S.Cl.--91V.

P .23/23

1546

90

SUPREME (IOURT REPORTER

the proposition that there was noevidence

318

should not be held t o the standard of the

v.%

NATIONAL LABOR BOARD,~ ~ M t l c v.

BAYTHEON COMPE

NO. 440. meaning i n normal usage is itself some evidence; and without challenging the reading of the jury's verdict by the Maryland Court of Appeals, I cannot join the majority claim of superior insight with respect to how the word "blackmail" would be the Ordinary reaaer in Greenbelt, Maryland.

in this respect in accurately reporting evcnta and statements occurring a t official meetings, i t would he preferable directly t o carve out a wider privilege for such reporting.

~ r g u e dFcb. 26~ e c i d e dMay 18.

I agree with the Court that there wae

error in the instructions concerning malice. The error, however, is irrelevant to the "blackmail" phase of this case as I view it: if one assumes that the jury found that the crime of blackmail was charged, "malice" ie Conceded, since the defendanta admittedly knew such a charge was false.

Although the Court does not ao hold, arguably the newspaper should not bo liable if i t had no intention of charging a crime and had a good-faith, nonreckless belief that i t was not doing so. Should New York Times Co. v. Sullivan, 376 U.S, 254, 84 S.Ct. 710.11 L.Ed.2d 686 ~ ~ ~ ~the jury ~ t,.@turned h ~a genl ~ (19641, be extended to preclude liability verdict; it might have found that for injury to reputation caused by em- the blackmail statement did not impute playing words of double meanins, one a crime, but that the damaging of which ia libelous, wlienever the pub- ,hternentspublished the newspaper liaher claims in good faith to have intend- ,re libeloue. l,,deed. this was the most 4 the innocent meaning? I think not. likely course for the jury to have taken The New Times case was an effort if the Court is correct that there was so to effectuate the policies of t h e First little for baaing li&ility on the LM Amendment by recognizing the difficul- blackmail allegation. ~i~~~ this possities of aace&aining the truth of allega- bility, the error in the instructions retions about a public official whom the quires reversal of the judgment, newspaper is investigating with an eye berg v. califortlia, 288 U.S, 859, 61 s,c~. to publication. Absent protection for the 632,76 L . E ~ ,1117 (1981). nonreckless publication of "facts" that subsequentlybrove to be false, the danger Mr. Justice BLACK, with whom Mr. is that legitimate news and communica- Justice DOUGLAS joins, concurs in the tion will be suppressed. B u t i t i s quite judgment of the Court for the reaeons a different thing, not involving the same set out in Mr. Justice Black's concurdanger of self-cenaorship, to immunize ring opinion in New York Times Co. v. professional communicators from liability Sullivan, 576 U.S. 264, 298, 84 S.Ct. 710, for their use of ambiguous language and 733, 11 L.Ed.2d 680 (1964). in his contheir failure to guard against the pos~i. curring and dissenting opinion in Curtia bility that words known to carry two Publiehins Co. v. Butts, 588 U.S. 130, meanings, one of which imputes commia- 170,87 S.Ct. 1976, 1999, 18 L.Ed.2d 1094 sion of s crime, might seriously damage (19671, and in Mr. Justice Douglas' the object of their comment i n the eyes concurring opinion in Garrison v. Louisiof the average reader. I aee no reason ana, 879 U.S.64, 80,815S.Ct. 209,218,13 why the members of a skilled calling L.Ed.2d 125 (1964).

~

,,,,

8

~

National Labor Rela titioned for enforcement prnctices orders. The courtOf ~ p p e a l sf a r t h ~ 408 ~ . 2 681, d dinmissed r certiorari was granted. Court, Mr. Justice Mar where Bonrd delerrninw engaged in illegal preelm and that remedial order , and there was nothing showed that specific act had not been repeated 0 aesurance that they wou ed in future, fact that s1 sentation election was certified by Board did n ings on Board's pctition of unfair labor practice: ployees could not be den order absent decision a11 Judgment of Courr versed and ease remant

1. bbor %lation.; -70

Subscquent rcprcs and certification of I-c Labor Relations Board dence that cml)loyer h a pendency of elcction 1 order that new elcclior ployer cease and dcsist union activity but do moot proceedings on seeking enforcement 0 tionai Labor Kelationr lo(@)as amended 2!1 1. ( I ) , 160(c).

I,

PAGE 23123' RCVD AT 312812008 3:46:47 PM [Central Daylight Time]' SVR:HMRP.FAXIO VNIS:O' CSID: ' DURATION (mm.ss):0Qm16

i \

F j E ~D \

.'-, 1

CAUSE NO. 2004-29996

\

5

H. WALKER ROYALL

IN THE DISTRICT C O m T OF

§

8

BRAZORIA COUNTY, TEXAS

§ §

WRIGHT W. GORE and DENNIS HENDERSON

8

23gm JUDICIAL DISTRICT

ORDER

BE IT REMEMBERED that on March 26,2008 came on to be considered Plaintiffs Motion for Partial Summary Judgment on his Status as a Private Figwe in the above-entitled and -numbered cause, and the Court having read the motion and responses, is of the opinion that this motion should

in all things be denied. It is therefore, ORDERED, ADJUDGED AND DECREED that Plaintiffs Motion for Partial Summary Judgment on his Status as a Private Figure is DENIED and that Plaintiff is a limited purpose public

figure. SIGNED this

' 11

day o

JUDGE PESIDING

APPROVED:

State Bar No. 02622000 MATT W. CHILDS State Bar No, 04202050 4300 One Houston Center 122 1 McKinney Houston, Texas 770 10 (713) 222-9542 (713) 655-7727 - FAX ATTORNEYS FOR DEFENDANT Wright Gore, III

RECEIVED

MAY 0 2 2008

TBA NO. 07567400 1233 West Loop South, Suite 1000 Houston, Texas 77027 (7 13) 654- 1111 (7 13) 650-0027 (Facsimile)

ATTORNEY FOR DEFENDANTS Wright W. Gore, Jr. and Western Seafood Company