Opinion issued February 26, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00136-CV
____________
DIEN VAN NGUYEN A/K/A ALPHONSE DIEN VAN NGUYEN, Appellant
V.
ALOYSIUS DUY-HUNG HOANG A/K/A HOANG DUY HUNG, Appellee
On Appeal from County Civil Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 851515
MEMORANDUM OPINION
Appellant, Dien Van Nguyen a/k/a Alphonse Dien Van Nguyen (Nguyen), appeals the trial court's final judgment in favor of Aloysius Duy-Hung Hoang a/k/a Hoang Duy Hung (Hoang). Nguyen challenges the judgment for libel by asserting no evidence shows Nguyen acted with actual malice. Hoang has not filed an appellee's brief. We reverse the judgment of the trial court and render judgment in favor of Nguyen because no evidence shows actual malice.
Background
Both Nguyen and Hoang are Vietnamese and can speak and read the language. Nguyen sent an email to Hoang as well as other "friends and colleagues." The original is written in Vietnamese, but the relevant passages translate as follows:
You collected from the people in California $100,000.00 to form a "Heavenly Peace Square" in Vietnam. Did you do it? If you did not do it, what did you do with that money?
You received $5,000.00 from Ly Tong's Legal Fund to go to Thailand to advocate for him. Did you do it? If you did not, what did you do with that money?
If you do not refund these [sic] money, you are a fraudulent person who stole and robbed the money from the people.
You are in Houston. You stole the position as President of Vietnamese Writers PEN Abroad, Georgia Center.
Hoang filed suit, alleging libel and seeking actual damages, exemplary damages, attorney's fees and costs, and pre- and post-judgment interest. In response to Nguyen's request for disclosure of "[t]he amount and any method of calculating your alleged economic damages," Hoang replied, "Plaintiff does not request for [sic] pecuniary damages." After a bench trial, the trial court rendered judgment against Nguyen in the amount of $1, plus pre- and post-judgment interest and court costs. The court found that Hoang "is a public figure" and that Nguyen's "conduct was made with actual malice." The trial court did not make findings of fact and conclusion of law, as Nguyen's request for those was untimely. Nguyen filed a motion to vacate and render judgment in Nguyen's favor, and alternatively, a motion for new trial. Those motions were overruled by operation of law.
Actual Malice
In his fourth issue, Nguyen asserts the trial court erred by finding Nguyen acted with actual malice because no clear and convincing evidence showed actual malice.
In defamation suits involving public figures, the actual malice standard serves to protect innocent but erroneous speech on public issues, while deterring "calculated falsehoods." Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex. 2000). "The First Amendment requires actual malice to be proven by clear and convincing evidence, which means evidence that supports a firm conviction that the fact to be proved is true." Bentley v. Bunton, 94 S.W.3d 561, 596-97 (Tex. 2002). A showing of "actual malice" in a defamation suit requires proof that the defendant made a statement with knowledge that it was false or with reckless disregard of whether it was true. New Times, Inc. v. Isaacks, 146 S.W.3d 144, 162 (Tex. 2004); Huckabee v. Time Warner Entm't Co., 19 S.W.3d 413, 420 (Tex. 2000). Reckless disregard is a subjective standard, focusing on the defendant's state of mind. Isaacks, 146 S.W.3d at 162; Bentley, 94 S.W.3d at 591. Specifically, the plaintiff must establish that the defendant in fact entertained serious doubts as to the truth of his publication, or had a high degree of awareness of the probable falsity of the published information. Isaacks, 146 S.W.3d at 162 (citing Bentley, 94 S.W.3d at 591) (internal quotations omitted). A plaintiff may rely on circumstantial evidence to prove a defendant's state of mind. Bentley, 94 S.W.3d at 591.
"The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact." Id. at 597. We independently review the trial court's finding of actual malice, giving limited deference to the fact finder's determinations. See id. at 597-98. We first determine what testimony the fact finder must have rejected in finding the defendant acted with actual malice. Id. at 599. If the fact finder's credibility determinations are not clearly erroneous, we must disregard that testimony the fact finder found incredible. Id. Next, we identify the undisputed facts. Id. Finally, we determine "whether the undisputed evidence along with any other evidence that the jury could have believed provides clear and convincing proof of actual malice." Id.
We begin by determining what testimony the fact finder must have rejected in finding that Nguyen acted with actual malice. See id. at 600. Nguyen testified that he did not intend to "hurt Mr. Hoang in any way" by writing his email. By finding Nguyen liable, the trial court implicitly declined to believe Nguyen's claim that he did not intend to hurt Hoang. Because the trial court's determination is not clearly erroneous, we defer to the trial court's credibility determination and disregard Nguyen's claim of lack of intent. See id. at 559 ("As long as the jury's credibility determinations are reasonable, that evidence is to be ignored.").
In finding that Nguyen acted with actual malice, the fact finder necessarily rejected Nguyen's testimony that he relied on sources to support his statements. Nguyen stated that he based his email statements on independent research of multiple books, magazine articles, and newsgroup emails, but he failed to produce all of the books, magazine articles, and emails on which he claims he based his statements about Hoang. Nguyen testified he deleted many of the emails on which he based his information because they were duplicative and took up memory. However, Nguyen did introduce several sources of information that Nguyen used in writing his email, including Hoang's own autobiography, the video recording of a 1999 conference, and a letter from the then-president of the Overseas Vietnamese Women's Association. Although Nguyen failed to produce all the evidence he claims demonstrates his reliance on outside sources in writing his email, the evidence he did produce shows he relied on sources which support the statements he made. We conclude the fact finder unreasonably discredited Nguyen's testimony related to his research of independent sources. See id. at 600 (disregarding testimony only after concluding jury was reasonable in discrediting same).
We next identify which facts were established conclusively. Id. On direct examination, Nguyen admitted that some sources he read differed from Hoang's biography, which Nguyen stated he read multiple times. Despite their sources' contradictory accounts, Nguyen published his statements before questioning or verifying information directly with Hoang. It was also established that Nguyen had the capacity to email his queries directly to Hoang before emailing the entire newsgroup. While these facts might demonstrate sloppy research, they do not establish actual malice. See id. at 601 ("We are mindful that a failure to investigate the facts is not, by itself, any evidence of actual malice . . . ."); see also Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 692, 109 S. Ct. 2678, 2698 (1989) ( "Although failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is in a different category.").
Hoang also established that after this suit was filed, Nguyen published two additional emails concerning Hoang. One email is Nguyen's account of being served with process, and the other is Nguyen's account of negotiations during Nguyen's deposition. "Actual malice may be inferred from . . . 'the defendant's words or acts before, at, or after the time of the communication.'" Clark v. Jenkins, 248 S.W.3d 418, 435 (Tex. App.--Amarillo 2008, pet. denied) (quoting Dolcefino v. Turner, 987 S.W.2d 100, 111-12 (Tex. App.--Houston [14th Dist.] 1998), aff'd sub nom. Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000)). The emails make no mention or reference to the subject matter forming the basis of this lawsuit. At most, the emails establish Nguyen's ill will toward Hoang, especially after Nguyen was sued, but ill will alone is not evidence of actual malice. See Bentley, 94 S.W.3d at 596 (stating that injurious motive is not alone proof of actual malice).
We finally consider the undisputed evidence in light of the entire record. Although Hoang showed Nguyen may have acted with ill will, none of the evidence or testimony supports a finding that Nguyen published his email with knowledge that it was false or with reckless disregard of whether it was true. See Isaacks, 146 S.W.3d at 162. There is no evidence that Nguyen knew his statements were inaccurate at the time he published them. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512, 104 S. Ct. 1949, 1966 (1984) (finding publisher's attempt to rationalize wording choice was no evidence of actual malice because it did "not establish that he realized the inaccuracy at the time of publication"). There is also no evidence that Nguyen purposefully ignored other information sources. See Harte-Hanks, 491 U.S. at 692, 109 S. Ct. at 2698 (finding publisher chose to ignore additional available witness and available game footage). We hold the trial court erred by finding Nguyen acted with actual malice because no evidence shows Nguyen purposefully avoided the truth. See Bentley, 94 S.W.3d at 596 (stating that actual malice is purposeful avoidance of truth).
We sustain Nguyen's fourth issue. Having determined Hoang failed to prove Nguyen acted with actual malice, we do not reach Nguyen's remaining issues on appeal that contend the trial court erred by finding that the passages from Nguyen's email are reasonably capable of defamatory meaning; Hoang suffered monetary damage as a result of the alleged libel; and the passages in Nguyen's email contained falsehoods.
Conclusion
We reverse the trial court's judgment. We render judgment in favor of Nguyen.
Elsa Alcala
Justice
Panel consists of Chief Justice Radack, and Justices Alcala and Hanks.