ACCEPTED
03-14-00698-CV
4771671
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/6/2015 1:43:30 PM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-14-00698-CV
________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS IN AUSTIN, TEXASAUSTIN, TEXAS
4/6/2015 1:43:30 PM
________________________________________
JEFFREY D. KYLE
Clerk
SHAMARK SMITH LIMITED PARTNERSHIP, ET AL.,
Appellants,
v.
MARTIN LONGORIA,
Appellee.
________________________________________
On appeal from the 20th Judicial District Court of Milam County, Texas
________________________________________
APPELLANTS’ BRIEF
________________________________________
Tracy J. Willi
Texas Bar No. 00784633
Willi Law Firm, P.C.
9600 Escarpment Blvd., Suite 745, PMB 34
Austin, TX 78749-1983
Tel. (512) 288-3200
Fax (512) 288-3202
twilli@willi.com
ATTORNEY FOR SHAMARK SMITH
LIMITED PARTNERSHIP, SHARON D.
MARCUS, AND PAUL J. SMITH
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellants:
Sharon D. Marcus, an individual
Paul J. Smith, an individual
Shamark Smith Limited Partnership
Appellate Counsel for Sharon D. Marcus, Paul J. Smith, and Shamark Smith
Limited Partnership:
Tracy J. Willi
Willi Law Firm, P.C.
9600 Escarpment Blvd., Suite 745, PMB 34
Austin, TX 78749
Tel. (512) 288-3200
Fax (512) 288-3202
twilli@willi.com
Trial Court Counsel for Sharon D. Marcus, Paul J. Smith, and Shamark
Smith Limited Partnership:
Israel Garcia
Law Offices of Israel Garcia
Chulie Professional Building
926 Chulie Dr.
San Antonio, TX 78216
Tel. (210) 225-6666
Fax (210) 225-2300
Attorney for Sharon D. Marcus and Shamark Smith Limited Partnership
Paul J. Smith
Attorney at Law
651 S. Walnut, Suite D, #228
New Braunfels, TX 78130
Tel. (713) 271-2413
Fax (713) 237-0820
Attorney pro se at trial
ii
Appellee:
Martin M. Longoria, an individual
Appellate Counsel for Martin M. Longoria:
James David Walker
P.O. Box 41
Milano, Texas 76556
Tel. (512) 636-9520
Fax (512) 455-7992
walker@2appeal.com
Trial Counsel for Martin M. Longoria:
Mickey Blanks
Blanks, Greenfield & Rhodes
P.O. Box 867
Temple, TX 76501-0867
Tel. (254) 778-4181
Fax (254) 778-1280
W.W. Torrey
P.O. Drawer 752
1105 N. Travis
Cameron, TX 76520
Tel. (254) 697-3700
Fax (254) 697-3702
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .......................................................... ii
INDEX OF AUTHORITIES................................................................................... vii
STATEMENT OF THE CASE .................................................................................. 1
ISSUES PRESENTED .............................................................................................. 2
STATEMENT OF FACTS ........................................................................................ 3
I. SUMMARY OF THE CLAIMS. .................................................................. 3
II. LONGORIA FAILED TO PRESENT EVIDENCE OF
RECOVERABLE DAMAGES. .................................................................... 4
No evidence of injury to reputation. .................................................. 5
No evidence of mental anguish. .......................................................... 6
III. THE RECORD DEMONSTRATES THAT JURORS SHOULD
HAVE BEEN STRUCK FOR CAUSE. ....................................................... 7
The jury held the Shamark Parties to the higher standard of
proof of “beyond a reasonable doubt.” ............................................. 7
Jurors refused to find in favor of Shamark Parties’ claims or
defenses involving theft unless Longoria had been convicted
of the crime......................................................................................... 12
Challenges for cause were denied by the trial court. ..................... 13
Attempted rehabilitation by opposing counsel was
ineffective. .......................................................................................... 13
Attempted rehabilitation by the Court was ineffective. ................ 14
The Shamark Parties had to use peremptory strikes against
jurors who should have been struck for cause. Also, three
jurors who should have been struck for cause were selected
for the jury. ........................................................................................ 15
iv
SUMMARY OF THE ARGUMENT ..................................................................... 16
ARGUMENT ........................................................................................................... 18
I. THE EVIDENCE IS LEGALLY AND FACTUALLY
INSUFFICIENT TO SUPPORT ACTUAL DAMAGES. ....................... 18
Standard of review. ........................................................................... 18
Defamation was the gravamen of the complaint and the only
basis for the jury’s damages finding. Claims for intentional
infliction of emotional distress and malicious prosecution
were waived and do not support damages. ..................................... 19
If more than nominal damages are awarded, then injury to
reputation and mental anguish damages must be supported
by evidence of actual injury.............................................................. 20
Damages awarded for injury to reputation are not supported
by the evidence. .................................................................................. 20
Damages awarded for mental anguish are not supported by
the evidence. ....................................................................................... 23
II. NO ATTORNEY’S FEES AND NO EXEMPLARY DAMAGES
MAY BE AWARDED. ................................................................................ 25
III. NO REMAND FOR A DETERMINATION OF NOMINAL
DAMAGES. .................................................................................................. 28
IV. THE TRIAL COURT ABUSED ITS DISCRETION BY
REFUSING TO STRIKE JURORS CHALLENGED FOR
CAUSE. ......................................................................................................... 28
V. CONCLUSION AND PRAYER. ................................................................ 33
CERTIFICATE OF COMPLIANCE ....................................................................... 33
CERTIFICATE OF FILING AND SERVICE ........................................................ 34
v
APPENDIX
Final Judgment dated August 15, 2014 (CR 1082–85) ................................... App. 1
Charge of the Court (CR 1031–59) .................................................................. App. 2
Burbage v. Burbage,
447 S.W.3d 249 (Tex. 2014) .................................................................. App. 3
vi
INDEX OF AUTHORITIES
Cases
Bentley v. Bunton,
94 S.W.3d 561 (Tex. 2002) (plurality opinion) ............................................ 20
Buls v. Fuselier,
55 S.W.3d 204 (Tex. App.-Texarkana 2001, no pet.) .................................. 30
Burbage v. Burbage,
447 S.W.3d 249 (Tex. 2014) ...................................................1, 20–22, 27, 28
Cain v. Bain,
709 S.W.2d 175 (Tex. 1986) ........................................................................ 19
Hammerly Oaks, Inc. v. Edwards,
958 S.W.2d 387 (Tex. 1997) ........................................................................ 22
Hancock v. Variyam,
400 S.W.3d 59 (Tex. 2013) ........................................................18, 20, 22, 27
Hoffman-La Roche, Inc. v. Zeltwanger,
144 S.W.3d 438 (Tex. 2004) .................................................................. 20, 25
Holland v. Wal-Mart Stores, Inc.,
1 S.W.3d 91 (Tex. 1999) .............................................................................. 25
Hyundai Motor Co. v. Vasquez,
189 S.W.3d 743 (Tex. 2006) .................................................................. 29, 30
Intercont’l Grp. P’ship v. KB Home Lone Star, L.P.,
295 S.W.3d 650 (Tex. 2009) ........................................................................ 25
Malone v. Foster,
977 S.W.2d 562 (Tex. 1998) ........................................................................ 29
Mancorp, Inc. v. Culpepper,
802 S.W.2d 227 (Tex. 1990) ........................................................................ 25
MBM Fin. Corp. v. Woodlands Operating Co., L.P.,
292 S.W.3d 660 (Tex. 2009) ........................................................................ 28
vii
Murff v. Pass,
249 S.W.3d 407 (Tex. 2008) ........................................................................ 32
Parkway Co. v. Woodruff,
901 S.W.2d 434 (Tex. 1995) .................................................................. 23, 24
Plas-Tex, Inc. v. U.S. Steel Corp.,
772 S.W.2d 442 (Tex. 1989) ........................................................................ 19
Saenz v. Fidelity & Guar. Ins.,
925 S.W.2d 607 (Tex. 1996) ........................................................................ 23
Salinas v. Salinas,
365 S.W.3d 318 (Tex. 2012) (per curiam) ................................................... 20
Shepherd v. Ledford,
962 S.W.2d 28 (Tex. 1998) .......................................................................... 29
Siegler v. Williams,
658 S.W.2d 236 (Tex. App.—Houston [1st Dist.] 1983, no writ) ............... 27
Smith v. Dean,
232 S.W.3d 181 (Tex. App.—Fort Worth 2007, pet. denied) ...................... 30
Standard Fruit and Vegetable Co. v. Johnson,
985 S.W.2d 62 (Tex. 1998) .......................................................................... 20
Sullemon v. U.S. Fid. & Guar. Co.,
734 S.W.2d 10 (Tex. App.—Dallas 1987, no writ) ...................................... 29
Swap Shop v. Fortune,
365 S.W.2d 151 (Tex. 1963) ........................................................................ 30
Turner v. Turner,
385 S.W.2d 230 (Tex. 1964) ........................................................................ 25
Waste Management of Texas, Inc. v. Texas Disposal Systems Landfill, Ltd.,
434 S.W.3d 142 (Tex. 2014) ........................................................................ 21
viii
Statutes and Rules
TEX. CIV. PRAC. & REM. CODE § 134.005................................................................ 26
TEX. CIV. PRAC. & REM. CODE § 41.004(a) ............................................................ 27
TEX. GOV’T CODE § 62.105(4) ................................................................................ 29
TEX. R. CIV. P. 226a ................................................................................................. 29
TEX. R. CIV. P. 278 ................................................................................................... 19
ix
STATEMENT OF THE CASE
Nature of the Case: This case involves competing claims for conversion
and trespass on one side and intentional infliction of
emotional distress, criminal malicious prosecution,
and defamation on the other side. The appeal focuses
on whether the evidence supports damages for injury
to reputation and mental anguish and whether jurors
should have been struck for cause.
Trial Court: Hon. Jan Patterson, retired judge sitting by
assignment, 20th Judicial District Court of Milam
County, Texas.
Trial Court’s The trial court entered judgment on the verdict on
Disposition: August 15, 2015. CR 1082–85 (Judgment attached as
App. 1).
ISSUES PRESENTED
1. Did the trial court err in its award of damages, attorney’s fees, and exemplary
damages against Sharon D. Marcus, Paul J. Smith, and Shamark Smith
Limited Partnership?
2. Did the trial court err by refusing to strike jurors that had been challenged for
cause?
2
STATEMENT OF FACTS
I. SUMMARY OF THE CLAIMS.
This case was brought by Shamark Smith Limited Partnership (“Shamark”)
against Martin Longoria (“Longoria”) for conversion and trespass. CR 8–10.
Shamark owns property with a house in rural Milam County. Shamark asserted that
Longoria trespassed onto Shamark’s property and instructed his workers to
dismantle the building and to steal various antiques and other items of value, such
as the tin roof and valuable lumber, from the property. Longoria counterclaimed
against Shamark, Paul D. Smith, and Sharon D. Marcus (collectively referred to as
the “Shamark Parties”) for criminal malicious prosecution, intentional infliction of
emotional distress, and defamation. CR 17–20. The crux of the case is whether
Longoria had permission to dismantle the house or if Longoria entered without
consent and stole several items of value from the property.
The jury found against Shamark on its claims of conversion and trespass. CR
1034, 1036 (Charge of the Court attached as App. 2). The jury found in favor of
Longoria on his claims of criminal malicious prosecution, intentional infliction of
emotional distress, and defamation. CR 1045 (Question 12, intentional infliction of
emotional distress); CR 1046 (Question 13, criminal malicious prosecution); and CR
1047–50 (Question 14, 15, 16, and 17, defamation). The jury awarded damages
based solely upon its finding of a published statement in Question 14 that, “Martin
3
Longoria had stolen components of or contents inside the Old Sneed Home.” CR
1047, 1052. While the damages question was pre-conditioned on findings of “yes”
to Questions 12 (malicious prosecution), 13 (intentional infliction of emotional
distress), or 18 (clear and convincing evidence of falseness), Question 19 on
damages requested the jury to determine damages linked directly and solely to
Question 14, the finding that the statement of theft was published. Id.
II. LONGORIA FAILED TO PRESENT EVIDENCE OF
RECOVERABLE DAMAGES.
The jury awarded damages for injury to reputation in the past in the amount
of $275,000 against Smith, Marcus, and Shamark divided as $90,000, $90,000 and
$95,000 respectively. CR 1052. The jury awarded damages for injury to reputation
in the future in the amount of $40,000 against Smith, Marcus, and Shamark divided
as $10,000, $10,000, and $20,000 respectively. CR 1052. The jury further awarded
mental anguish damages in the past of $75,000 against Smith, Marcus, and Shamark
divided as $20,000, $20,000, and $35,000 respectively. CR 1053.
Question 8 requested the jury to determine whether Longoria or any of his
agents committed theft of property valued at $20,000 or greater. CR 1041. The jury
was instructed not to answer the question if it did not answer “yes” to Question 1.
Since the answer to Question 1 was “no” the jury did not answer Question 8. Id.
Question 11 was conditioned to be answered only if there was a “no” answer to
Question 8. Nonetheless, in response to Question 11, the jury awarded attorney’s
4
fees to Longoria in the amount of $163,000 for representation in the trial court,
$30,000 for representation through appeal to the Court of Appeals, and $20,000 for
representation through appeal to the Supreme Court of Texas. CR. 1044.1 Question
11 was not based upon any other particular finding in the jury charge—it was not
linked to any liability finding. Id. The attorney’s fees cannot be based upon the
answer to Question 8 on “theft” because the jury did not answer Question 8.
The jury further awarded exemplary damages for the conduct found in
Question 20 (the harm to Longoria resulted from malice) or 21 (the harm to Longoria
resulted from fraud) against Smith, Marcus, and Shamark in the amount of $100,000
divided as $30,000, $30,000, and $40,000 respectively. CR 1056.
Several legal arguments will be addressed to challenge the awards of
exemplary damages and attorney’s fees, but very basically, without evidence of
actual damages, exemplary damages and attorney’s fees are not recoverable.
No evidence of injury to reputation.
Counsel for Longoria made it clear during trial that, “We are not asking for,
nor are we seeking in the jury charge to recover any economic damages.” RR Vol.
1
The jury understood it was not requested to answer Question 11 since it did not
answer Question 8 affirmatively or negatively. Nonetheless, when the jury sent out
a question to the judge on whether they should answer Question 11, the judge
instructed the jury to answer Question 11, but did not instruct the jury to answer
Question 8. Supp CR 42. There is no legal basis for the jury to have answered
Question 11 in this jury charge.
5
8, 203. Longoria testified that the criminal case was dismissed and he was not even
arrested – he simply turned himself in. RR Vol. 8, 202. Longoria testified that he
cannot identify one person who told him that they would not hire him for reasons
relating to the theft accusation or arrest. RR Vol. 8, 202. No one has ever told him
that they would not hire him because of the arrest. No one has ever told him that his
reputation was damaged in any way. RR Vol. 8, 213–14.
No evidence of mental anguish.
Longoria has never been to any medical doctors, mental healthcare
professionals, psychologists, therapists, or any psychiatric care for any kind of
emotional distress. RR Vol. 8, 214. At best, his testimony was that he was merely
worried about what could happen to him if he was found guilty. RR Vol. 8, 214–15.
But the criminal action got no further than the grand jury, where it was no-billed—
Longoria was never indicted. RR Vol. 8, 215. He complained of emotional distress
from the financial concerns, but there was no evidence of financial hardship, and
there was evidence that Longoria had substantial real property interests in Mexico.
RR Vol. 8, 215. The level of emotional distress did not cause him any illness or
physical symptoms. RR Vol. 8, 215. He testified that he is in a bad mood
sometimes, but he can still get up and do his daily activities and it did not disrupt
those daily activities. RR Vol. 8, 216.
6
III. THE RECORD DEMONSTRATES THAT JURORS SHOULD HAVE
BEEN STRUCK FOR CAUSE.
The jury held the Shamark Parties to the higher standard of proof of
“beyond a reasonable doubt.”
The record demonstrates that jurors 6, 8, 9, 10, 12, 13, 14, 24, 26, 31, 32, 33,
47, 49, 50, and 51 should have been struck for cause because they would require the
Shamark Parties to prove that Longoria committed theft beyond a reasonable doubt
rather than by a preponderance of the evidence.
MR. SMITH: Well, I don’t mean to say it’s nothing, okay. What I
mean is if it will help, we’re not going to be sentencing anyone to death.
VENIREPERSON: No, but you’ve got a man that’s got to live the rest
of his life of being accused of something that he may not have done.
MR. SMITH: And if he did it and you determine that he did do it, could
you award money?
VENIREPERSON: Would -- run that by me again.
MR. SMITH: If the person that is accused is proved to your satisfaction
that he did it and the people that lost what they lost prove how much it
was worth, could you award money?
VENIREPERSON: Yeah, but it’s going to be -- have to be beyond a
shadow of a doubt.
MR. SMITH: And if the Judge instructs you that the burden of proof
is not beyond shadow of a doubt but by a preponderance of the
evidence, likely --
VENIREPERSON: (Moving head side to side.)
MR. SMITH: Can’t do it. Okay, that’s fair enough. Juror number...
VENIREPERSON: 50.
7
MR. SMITH: Now, I can cut to the chase. Does anyone else feel the
same way, that the burden of proof must be beyond a reasonable doubt
or a shadow of a doubt? Number 32. Hold on. Let me get -- and I need
to make sure, okay. Please hold your cards up. Number 6, number 9,
number 11, number 12, number 13, number 14, 16, 32, 31, 30, 28, 26,
24, 23, 22, 21, 20, 17, 33, 34, 35, 36, 38, 40, 41, 42, 43, 47, 48, 49 and
50. And you’re number 29? I don’t believe I got it. All right. Second
part. How strongly do you feel that way? What I mean by this is: I
expect the Judge to give a different instruction, okay. If your feeling is
so strong that it won't matter to you what the Judge says as far as burden
of proof, please keep your hand raised or your card raised. If you can
leave room for the possibility -- and that’s juror number 50, number 24,
number 9 and 50 and --
VENIREPERSON: Repeat the question, please.
MR. SMITH: There were a number of us that said beyond a reasonable
doubt, a shadow of a doubt to use Perry Mason. I believe -- I think the
other side believes that the burden of proof instruction will be different
than from the Judge. We believe as we believe and that’s okay. But in
order to be a fair juror to both sides, you have to be able to follow the
law. And if it is such that regardless of what anyone says, it’s still
beyond a reasonable doubt or a shadow of a doubt, that’s okay.
VENIREPERSON: But why is that okay? If – you’re either holding
the smoking gun or you’re not.
MR. SMITH: Because the law is as the Judge will instruct you, okay.
Not every case is a criminal case like on TV. The levels -- let me give
you an example. And this is the best example I can give. In a football
game, if the ball advances to the 50 yard line and one inch, in a civil
case, the side that got the ball to the 50 yard line and one inch wins. If
in a criminal case, which this is not, you’ve got to get into the end zone
to win, that’s beyond a reasonable doubt. Does that help? It’s the only
analogy I know.
VENIREPERSON: They don’t play football that way, though. This is
Texas. You have got to make it to the end zone to make a point.
MR. SMITH: What would you use?
8
VENIREPERSON: It sounds like a rounding game to me, the closest
one to the winning side wins.
MR. SMITH: I’m sorry?
VENIREPERSON: It sounds like a rounding game, the closest within
five wins. That ain’t fair.
MR. SMITH: And that’s okay if you don't believe that or can't follow
that. That’s perfectly fine. It means in this particular type of case, that
you would not be a fair juror to either side. It doesn't mean you wouldn't
be a great juror in, say, a criminal case or a child custody case where
the burdens are different. That's all I'm trying to get at. And I appreciate
the brutal honesty of people, so many people holding their cards up. It's
real important for us, it’s important for them, it’s important for the
Judge, it’s important for justice. Because if the – the mistake or the
belief that we have to prove all beyond every shadow of a doubt is not
the law, justice has failed. That’s not what this courtroom is about and
it's okay to believe as you believe. So how many feel so strongly that
no matter what is told, it still has to be beyond a shadow of a doubt to
award money? Would you please raise your cards. And, Judge, I am
not going to make notes. I’m sorry, folks. I know -- and this is the
most perfect jury I have ever seen because there’s brutal honesty here.
Do you realize how important that is in justice? It is so brutally honest
and so important that people tell their truth no matter what and I
appreciate you, sir. It’s okay, and I respect that. Have we got all the
numbers?
MR. GARCIA: Let me double check real quick.
MR. SMITH: I’m sorry. One more time. I’m sorry but this is the crux
of the case. Are you in, too? Got them?
MR. GARCIA: Got them.
MR. SMITH: Thank you all so much. Now, having answered that
question, I can begin to understand why when you honestly tell me you
would not be a good juror, it’s okay. I accept that. In fact, I honor that
and every one of you. I honor that, telling your truth no matter what.
So there’s some people that are left. Who did not raise their cards?
9
Could I see those that did not raise their cards? Judge, may we
approach?
(Bench conference held outside the hearing of the jury panel.)
MR. SMITH: Your Honor, I don’t want to waste a lot of the Court’s
time or the jury’s time. I believe that that is the essence of the burden
of proof is an instruction and I went through it very clearly. I counted
the numbers left, and I believe there were 13 who could consider other
than beyond a reasonable doubt or a shadow of a doubt. If we struck
six, we would not have enough. I would respectfully request at this
time, we move for a mistrial and that we re-impanel and these people
can go home.
MR. BLANKS: It’s all how he asked the question and he got a response
to a question that I think the jury didn’t understand; otherwise, if he was
picking juries here, we would never have a jury impaneled in Milam
County in civil cases. So his time is up; I think he should sit down and
I should be allowed to clarify.
THE COURT: Whether you misspoke or not, you also said that the
instruction would be different from that that the Judge gives you, that
the law would be different than that that that the Judge gives you, and I
don’t know exactly what you meant by that. But I think it is in the way
you asked the question. You need to -- we may be able to handle this
in camera with individual jurors but you haven’t accomplished your
mission yet. So I am going to deny the motion. You have nine minutes.
MR. SMITH: May I ask them one last thing? What -- particularly --
the Court -- I mean, if it’s -- the panel --
MR. TORREY: It’s standard of proof, not burden of proof.
THE COURT: And you haven’t explained what the burden of proof is,
you haven’t explained preponderance of the evidence and suggested
that – one person said it would have to be beyond a shadow of a doubt
and then you said -- you elicited anyone else from the juror’s answer,
so I don’t think you’ve accomplished your striking for cause.
MR. SMITH: Okay. I’ll go into --
10
MR. TORREY: I think that your voir dire is mostly incoherent, which
adds to their --
THE COURT: You know, I --
COURT REPORTER: I’m having a hard time hearing.
THE COURT: You have nine minutes to complete and then you may
make your -- any appropriate motion at the conclusion of the whole --
MR. SMITH: I didn’t --
THE COURT: -- voir dire. Please continue.
MR. SMITH: Sure.
(Open court, and all counsel and parties present.)
Burden of proof. The term “preponderance of the evidence,” which I
believe that the Judge will instruct you in this case to be the guiding
process by which you decide your verdict means the greater weight of
credible evidence admitted in this case. A preponderance of evidence
is not measured by the number of witnesses or the number of documents
admitted into evidence. For a fact to be proved by a preponderance of
the evidence, you must find the fact is more likely true than not. Do I
-- does everybody understand that?
(No response.)
So earlier I hope that I didn’t misspeak. I may have. This case is on
preponderance of the evidence. It doesn’t mean 100 percent or beyond
a reasonable doubt and I gave a horrible football analogy, okay. Now,
having given the definition that I believe the Judge will give you, can
you decide this case on preponderance of the evidence, or are you going
to require a different, higher burden of proof for us as the people
bringing the initial lawsuit? Does that help any? So can you please
raise your hand if you require a higher burden of proof, a number.
Okay. And I want to get these. Number 6, 8, 9, 10, 12, 13, 14, 32, 31,
26, 24, 33, 49, 50 and 51 and 47. Did I get you? 47. That’s what I need
and it’s okay. It’s okay.
RR Vol. 4, 95–103.
11
Jurors refused to find in favor of Shamark Parties’ claims or defenses
involving theft unless Longoria had been convicted of the crime.
Jurors 8, 9, 12, 13, 31, 24, 26, and 49 were also disqualified as a matter of
law because they required there to be a criminal conviction to award damages in a
civil case involving theft.
MR. SMITH: 26. Three things about yourself.
VENIREPERSON: I moved here from McCulloch County two years
ago and I have a place out and a few cows and I just work and mind my
own business. I don’t really know anybody, don’t -- I don’t know that
I could make an honest assumption, I guess, or something against
somebody if I really knew that they did it. I can feel both sides.
MR. SMITH: Sure.
VENIREPERSON: But I don’t know. If they didn’t convict him, I
guess on the criminal part, then --
MR. SMITH: Is that okay? Do you require a conviction on a criminal
part to get a civil --
VENIREPERSON: It just looks like if he did it and you knew that he
did it, that he would have been convicted.
MR. SMITH: Let me ask this, the last question I have. Would everyone
or anyone require a criminal conviction in order to award money in a
civil case for theft? Can I see the numbers of those people? Eight, 9,
12, 13, 31, 26 and 24 and 49.
THE COURT: Thank you, Mr. Smith.
MR. SMITH: Thank you all for sharing.
RR Vol. 4, 108.
12
Challenges for cause were denied by the trial court.
The trial court denied the Shamark Parties’ challenges for cause as to 6, 8, 9,
10, 12, 13, 14, 24, 26, 31, 32, 33, 47, 49, 50, and 51 based upon the jurors’ responses
requiring proof beyond a reasonable doubt, as opposed to proof by a preponderance
of the evidence. CR 136–42. The trial court denied the Shamark Parties’ challenges
for cause as to jurors 8, 9, 12, 13, 24, 26, 31, and 49 based upon the jurors’ responses
requiring a criminal conviction before finding in favor of the Shamark Parties. CR
136–42. The trial court denied the Shamark Parties’ request for more preemptory
strikes. CR 142.
Attempted rehabilitation by opposing counsel was ineffective.
Mr. Blanks attempted to rehabilitate the jurors who testified that they could
not apply the preponderance of the evidence to the Shamark Parties’ claim and
defense that Longoria committed a theft of the items at the property. However, the
rehabilitation was not specific to any juror and was not specific to the issue of
applying the proper burden of proof to the issue of theft.
MR. BLANKS: […] The question is -- here we go: Can you listen to
the evidence without prejudging either side, understanding that both
sides are saying the other side did something wrong? And can you use
your life’s experiences, your common sense? Can you use those things
to sift through the evidence and simply make a decision about what is
more likely than not to have happened? And that is really the standard,
more likely than not. How can we resolve disputes between people in
this county? That’s the standard, by what is more likely than not. And
if you can’t reach that decision, if you can’t do that, then you say there’s
not enough evidence one way or the other, I’m not going to do it.
13
Burden of proof is your common sense applied to the facts of this case
and you say it's more likely than not Martin or these folks are telling
the truth. When you head out of here, you’re going to do that in every
other venue and every other place in your life. Is there a reason you
can’t do it here? If you can’t do it here, raise your card.
(No response.)
RR Vol. 4 127–28.
Attempted rehabilitation by the Court was ineffective.
After the Court denied the challenges for cause, the trial court made a
perfunctory attempt to rehabilitate the jurors on whether they could abide by the
Court’s instruction to apply the preponderance of the evidence standard. There was
no attempt to discuss the matter individually with any juror and no direct questioning
of any juror.
THE COURT: All right. One last question for you before we take our
final break, which is not a lunch break yet, is: You have heard
discussion and questions concerning both civil and criminal cases, and
as I advised you at the beginning of this case, this is a civil case, and I
will advise you at the conclusion of the case and the lawyers would --
may argue between now and then about the preponderance of the
evidence, which is the standard of proof in a civil case. You will also
hear some testimony about a criminal matter in this case, which has a
different burden of proof and you’ve also heard some questioning about
that during the voir dire. Is there anyone here who has an understanding
of either a civil or criminal law that will not allow them to follow the
instructions that I as the Court give you concerning preponderance of
the evidence, how that burden of proof is allocated between the parties
and how it is shown? You are the judges of the facts and you will follow
the law as I gave it to you. Is there anyone here who has -- who thinks
they will be unable to follow the law as I will give it to you at the
conclusion of this case?
(No response.)
14
THE COURT: Absolutely anyone for any reason?
(No response.)
Thank you, ladies and gentlemen. At this point, I see no hands and I
am going to -- I am going to ask that you take a final 10-minute break,
not for lunch, but you will be able to leave after that, both for a lunch
break and for many of you permanently. So do hold onto your numbers
for now and please be back in your seats at exactly 2:00 o’clock. Thank
you.
RR Vol. 4, 145–46.
The Shamark Parties had to use peremptory strikes against jurors
who should have been struck for cause. Also, three jurors who should
have been struck for cause were selected for the jury.
The 12 member jury consisted of the following jurors from the panel: 1, 2, 4,
7, 8, 10, 11, 13, 16, 19, 21, 22, and alternate 25. RR Vol. 4, 147; Supp. CR 20–28.2
Jurors 8, 10, and 13 on the jury panel had been challenged for cause because they
would require proof beyond a reasonable doubt from the Shamark Parties, rather
than proof by a preponderance of the evidence, on whether Longoria had stolen
property. Also, jurors 8 and 13 on the jury had been challenged for cause because
2
The Clerk’s First Supplemental Record is sealed because it contains the jurors’
personal information. The jury cards appear at Supp. CR 20–28 and indicate in the
upper right-hand corner the handwritten juror number with a circle around it. The
handwritten jury number is the number that was used during voir dire. The printed
number on the upper right-hand corner corresponds to the original jury numbers
before the jury was shuffled as requested by Longoria’s counsel. RR Vol. 4, 32.
The original printed numbers on the jury cards correspond to the randomly assigned
numbers shown on the computer generated jury list. Supp. CR 19.
15
they would require proof of a criminal conviction before they would find in favor of
the Shamark Parties on whether Longoria had stolen property.
The Shamark Parties used seven preemptory strikes (six strikes plus one more
for the alternate). The Shamark Parties used their preemptory strikes on the
following jurors: 6, 9, 12, 14, 20, 24, and 26 (alternate). Supp. CR 38. Of the jurors
struck by the Shamark Parties, the following had been challenged for cause for their
inability to apply the preponderance of the evidence standard of proof: 6, 9, 12, 14,
24, and 26. Of the jurors struck by the Shamark Parties, the following had been
challenged for cause for their inability to find in favor of the Shamark Parties on
whether Longoria had stolen property without proof of a criminal conviction: 9, 12,
24, and 26. In other words, the Shamark Parties had to use five out of six of their
preemptory strikes to strike jurors who should have been disqualified from jury
service in this case. Supp. CR 38. Even after exercising their preemptory strikes,
three jurors remained on the jury who had been challenged for cause—jurors 8, 10
and 13. Supp. CR 20–28. There was no chance of the Shamark Parties succeeding
in this lawsuit with the jury stacked against them.
SUMMARY OF THE ARGUMENT
There is no evidence of damages to support the judgment against the Shamark
Parties. Due to the legal insufficiency of the evidence in support of Longoria’s
16
claims for injury to reputation and mental anguish, the Shamark Parties request this
Court to render judgment that Longoria take nothing on his claims.
This was a highly contentious case. The Shamark Parties insisted that
Longoria committed theft and therefore Shamark’s attempt to have him criminally
prosecuted for that theft was justified. Longoria insisted he did not commit a theft
and had permission to be on the property and removing items. The assertion of theft
was a central issue on this case in both the pursuit of claims against Longoria to
recover damages and in the defense of Longoria’s counterclaims for malicious
prosecution, intentional infliction of emotional distress, and defamation. The jury
required the Shamark Parties to prove theft, whether as an affirmative claim or as a
defense, beyond a reasonable doubt instead of by a preponderance of the evidence.
The jury further required the Shamark Parties to prove that Longoria had been
convicted of that crime before they would find in favor of the Shamark Parties in
this civil case. The jury was stacked against the Shamark Parties. If this case is not
rendered in favor of the Shamark Parties so that Longoria takes nothing on his claims
because of lack of evidence of damages, then the entire case should be reversed for
a new trial for factually insufficient evidence on damages and because the jury was
improperly empaneled.
17
ARGUMENT
I. THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT
TO SUPPORT ACTUAL DAMAGES.
Injury to reputation and mental anguish were the only damages requested by
Longoria in this case. CR 1052–53. Longoria failed to offer any evidence at trial
that his reputation was damaged or that he experienced a substantial disruption in
his daily routine or a high degree of mental pain and distress due to the alleged
published statement. See Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013).
Standard of review.
On an issue where the opposing party bears the burden of proof, a legal
sufficiency challenge to an adverse finding is sustained if the evidence demonstrates
a complete absence of a vital fact, or if the evidence offered is no more than a
scintilla. Burbage v. Burbage, 447 S.W.3 249, 259 (Tex. 2014) (attached as App. 3)
(addressing evidence necessary to prove compensable injury to reputation). More
than a scintilla exists when the evidence would enable reasonable and fair-minded
people to reach different conclusions. Id. Evidence that creates a mere surmise or
suspicion of a vital fact as, in legal effect, constitutes no evidence. Id. The evidence
is considered in the light most favorable to the judgment, “crediting favorable
evidence if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not.” Id.
18
In reviewing a factual sufficiency challenge, this Court considers and weighs
all of the evidence supporting and contradicting the challenged finding and sets aside
the finding only if the evidence is so weak as to make the finding clearly wrong and
manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see Plas-Tex,
Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).
Defamation was the gravamen of the complaint and the only basis for
the jury’s damages finding. Claims for intentional infliction of
emotional distress and malicious prosecution were waived and do not
support damages.
The jury question on damages was directly linked only to the publication of
alleged statement, “Martin Longoria had stolen components of or contents inside the
Old Sneed Home.” CR 1052–53 (Question 19 “What sum of money, if paid now in
cash, would fairly and reasonably compensate Martin Longoria for his injuries, if
any, that were proximately caused by the statement in Question 14?”) Thus,
damages were requested only for the alleged publication of the statement found in
Question 14, not for the jury’s findings of intentional infliction of emotional distress
or for malicious prosecution which were submitted in Questions 12 and 13. CR
1052. Longoria waived his right to recover damages under any theory except
defamation. See TEX. R. CIV. P. 278 (failure to submit a jury question in substantially
correct form waives the complaint).
Further, where the gravamen of a complaint is really another tort (such as
defamation), intentional infliction of emotional distress is not an available cause of
19
action. Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004).
The intentional infliction of emotional distress was, first and foremost, a “gap-filler”
tort, judicially created for the limited purpose of allowing recovery in those rare
instances in which a defendant intentionally inflicts severe emotional distress in a
manner so unusual that the victim has no other recognized theory of redress.
Standard Fruit and Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998).
Nonetheless, under any theory of recovery, there is no evidence of injury to
reputation or mental anguish.
If more than nominal damages are awarded, then injury to reputation
and mental anguish damages must be supported by evidence of actual
injury.
Texas law presumes that defamatory per se statements cause reputational
harm and entitle a plaintiff to general damages such as loss of reputation and mental
anguish. Burbage, 447 S.W.3d at 256 (citing Bentley v. Bunton, 94 S.W.3d 561, 604
(Tex. 2002) (plurality opinion)). But this presumption yields only nominal damages.
Id. (citing Salinas v. Salinas, 365 S.W.3d 318, 320 (Tex. 2012) (per curiam)).
Beyond nominal damages, the appellate court reviews presumed damages for
evidentiary support. Id. (citing Hancock, 400 S.W.3d at 66.)
Damages awarded for injury to reputation are not supported by the
evidence.
The Texas Supreme Court recently clarified the quality of evidence required
to demonstrate a compensable injury to reputation. Burbage, 447 S.W.3d at 259–
20
63. In Burbage, the Court determined that the plaintiff’s ballpark estimate of the
Burbage Funeral Home’s value does not equate to evidence of actual damages for
injury to the business’s reputation. The record contained only speculative evidence
that the value, if established, “would likely be lost.” Id. at 261. Questioned whether
the defamation could destroy the funeral home’s reputation, the plaintiff said:
“[P]otentially. In my opinion.” Id. The plaintiff said the value would be “zero” only
when questioned on what would happen if the funeral home was “run out of
business.” Id. The plaintiff’s brother, testified that, in a small community, such
allegations “can ruin that entire business.” The Court noted at a theoretical
possibility, however, is a far cry from a likely event. Id.
The Burbage opinion referred to the example case of Waste Management of
Texas, Inc. v. Texas Disposal Systems Landfill, Ltd., 434 S.W.3d 142 (Tex. 2014).
In that case, the key evidence of injury to Texas Disposal Systems’ reputation was
its CEO’s testimony estimating the value of its reputation at $10 million, and three
exhibits purportedly supported that testimony. Burbage, 447 S.W.3d at 260 (citing
Waste Management, 434 S.W.3d at 160.) The exhibits estimated lost profits and
evidenced a decrease in “base business.” Id. First, the Court held that damages such
as lost profits “are not the sort of general damages that necessarily flow from such a
defamatory publication.” Id. Then, the Court stated that the “evidence must support
21
the amount awarded by the jury; it must not be an ‘indicator’ that supports the
estimates offered by the corporate executive.” Id.
The Burbage opinion also referred to the example case of Hancock v.
Variyam, wherein a doctor claimed that the submission of a defamatory letter to an
accrediting body, which later denied the doctor accreditation, provided evidence of
reputation damages. Id. at 262 (citing Hancock, 400 S.W.3d at 70). The Texas
Supreme Court in Hancock held that “a jury may not reasonably infer an ultimate
fact from ‘meager circumstantial evidence which could give rise to any number of
inferences, none more probable than another.’” Id. at 70-71 (quoting Hammerly
Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997)). Similarly, in Burbage,
the Court determined that the jury cannot reasonably infer that defamation caused
the cancellations of business when the cancellations could have occurred for any
number of reasons. Indeed, the plaintiff in Burbage admitted that he did not ask why
the customers cancelled, only that he was “afraid” it was because of accusations. Id.
Suggestions of community awareness and other vague testimony about the impact
of the alleged defamatory statement does not support the award of compensatory
damages. Id.
Here, counsel for Longoria made it clear during trial that, “We are not asking
for, nor are we seeking in the jury charge to recover any economic damages.” RR
Vol. 8, 203. Longoria testified that he cannot identify one person who told him that
22
they would not hire him for reasons relating to the theft accusation or arrest. RR
Vol. 8, 202. No one has ever told him that they would not hire him because of the
arrest. No one has ever told him that his reputation was damaged in any way. RR
Vol. 8, 213–14. Here, the evidence on damages for injury to reputation does not
withstand the scrutiny of the Burbage analysis. There is simply no evidence of
compensable injury to reputation and no evidence to support the amount of $275,000
in injury to reputation damages in the past and $40,000 of injury to reputation
damages in the future.
Damages awarded for mental anguish are not supported by the
evidence.
Mental anguish damages cannot not be awarded without either “direct
evidence of the nature, duration, or severity of [plaintiff’s] anguish, thus establishing
a substantial disruption in the plaintiff’s daily routine”, or other evidence of “’a high
degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation,
embarrassment, or anger’”. Saenz v. Fidelity & Guar. Ins., 925 S.W.2d 607, 614
(Tex. 1996) (citing Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)).
Not only must there be evidence of the existence of compensable mental
anguish, there must also be some evidence to justify the amount awarded. Id. While
the impossibility of any exact evaluation of mental anguish requires that juries be
given a measure of discretion in finding damages, that discretion is limited. Juries
cannot simply pick a number and put it in the blank. Id. They must find an amount
23
that, in the standard language of the jury charge, “would fairly and reasonably
compensate” for the loss. Compensation can only be for mental anguish that causes
“substantial disruption in... daily routine” or “a high degree of mental pain and
distress”. Id. (citing Parkway, 901 S.W.2d at 444). There must be evidence that the
amount found is fair and reasonable compensation, just as there must be evidence to
support any other jury finding. Id. Reasonable compensation is no easier to
determine than reasonable behavior—often it may be harder—but the law requires
factfinders to determine both. And the law requires appellate courts to conduct a
meaningful evidentiary review of those determinations. Id.
In this case, there is no evidence of the existence of compensable mental
anguish and there is no evidence to justify the amount awarded. In Saenz, the
plaintiff testified that she worried a lot, that her husband was already working two
jobs, and she was worried that they were going to lose their house, and she knew she
could not afford the medical bills that were coming in. Id. at 614. That testimony
was not sufficient to support the existence of compensable mental anguish or that
$250,000 would be fair and reasonable compensation. Id. Similarly here, Longoria
testified of emotional distress from the financial concerns, but there was no evidence
of financial hardship, and there was evidence that Longoria had substantial real
property interests in Mexico. RR Vol. 8, 215. The level of emotional distress did
not cause him any illness or physical symptoms. RR Vol. 8, 215. He testified that
24
he is in a bad mood sometimes, but he can still get up and do his daily activities and
it did not disrupt those daily activities. RR Vol. 8, 216. There is simply no evidence
of compensable mental anguish and no evidence to support the amount of $75,000
in mental anguish damages.
II. NO ATTORNEY’S FEES AND NO EXEMPLARY DAMAGES MAY
BE AWARDED.
The general rule in Texas is that each party is responsible for his or her own
attorney’s fees. Turner v. Turner, 385 S.W.2d 230, 233 (Tex. 1964). Texas follows
the “American Rule” that “litigants’ attorney’s fees are recoverable only if
authorized by statute or by a contract between the parties.” Intercont’l Grp. P’ship
v. KB Home Lone Star, L.P., 295 S.W.3d 650, 653 (Tex. 2009). Even for causes of
action for which attorney’s fees are potentially recoverable, there can be no award
of attorney’s fees without the award of actual damages. See Mancorp, Inc. v.
Culpepper, 802 S.W.2d 227, 230 (Tex. 1990); Holland v. Wal-Mart Stores, Inc., 1
S.W.3d 91, 94 (Tex. 1999). Regardless of the cause of action forming the basis for
attorney’s fees, “the bottom line is the same: As there was no award to the client,
there can be no attorney’s fee award either.” Intercont’l Grp. P’ship, 295 S.W.3d at
662. A suit for intentional infliction of emotional distress does not support an award
of attorney’s fees. See Hoffmann-La Roche Inc., 144 S.W.3d at 446.
Statutory provisions for the recovery of attorney fees are penal in nature, and
must be strictly construed. Id. Longoria did not request the jury to answer Question
25
8 on theft with an affirmative or negative finding. CR 1041. Question 8 was left
unanswered by the jury and the issue was waived by Longoria. Id.; TEX. R. CIV. P.
278. Thus, Longoria cannot rely upon the statutory provision involving theft as a
basis for the award of attorney’s fees. See TEX. CIV. PRAC. & REM. CODE § 134.005.
The tort causes of action for intentional infliction of emotional distress, defamation,
and malicious prosecution do not support the award of attorney’s fees as a matter of
law. Further, even if attorney’s fees were somehow recoverable without actual
damages, Longoria’s counsel presented no evidence regarding attorneys’ fees other
than by stating that he had a one-third contingent fee agreement and he did not
apportion the fees between the causes of action on which attorney’s fees are
recoverable or delineate what factors were considered to establish reasonableness.
RR Vol. 8, 277. In this case, Longoria’s counsel did not indicate how many hours
were spent in the aggregate or were devoted to any particular task or category of
tasks. Longoria presented no time records or other documentary evidence. Nor did
Longoria’s counsel testify based on their recollection of such records. The court
could not discern from the evidence how many hours each of the tasks required and
whether that time was reasonable. Without at least some indication of the time spent
on various parts of the case, a court has little basis upon which to conduct a
meaningful review of the fee award. Longoria’s counsel simply suggested that the
jury should add one-third additional to whatever they award Longoria. Id. Further,
26
Longoria’s counsel made no attempt to justify appellate attorney’s fees. The jury’s
award of attorney’s fees does not correspond to Longoria’s counsel’s testimony and
is not recoverable in this case.
Moreover, the judgment does not award appellate attorney’s fees based upon
an unsuccessful appeal. Instead, the judgment includes appellate attorney’s fees
automatically and then gives a “credit” of $50,000 if the judgment is not appealed,
to the court of appeals and another “credit” of $20,000 if the judgment is not
appealed to the Supreme Court. CR 1084. This unconditional award of appellate
attorney’s fees is improper. Siegler v. Williams, 658 S.W.2d 236, 241 (Tex. App.—
Houston [1st Dist.] 1983, no writ). There must be evidence of the reasonableness of
fees for appellate work to support the award of appellate attorney’s fees, and the trial
court must condition the award of attorney’s fees to an appellee upon the appellant’s
unsuccessful appeal. Id.
A party may not recover exemplary damages unless the party establishes
actual damages. Burbage, 447 S.W.3d at 263 (citing Hancock, 400 S.W.3d at 71).
An award of nominal damages is not sufficient to support exemplary damages. TEX.
CIV. PRAC. & REM. CODE § 41.004(a). Because no evidence supports the jury’s
award of actual damages, exemplary damages are not available.
27
III. NO REMAND FOR A DETERMINATION OF NOMINAL DAMAGES.
When the defamation case is reversed based upon no evidence of actual
damages, the court of appeals shall render judgment in favor of the defamation
defendant rather than remand for a determination of nominal damages. Burbage,
447 S.W.3d at 263 (citing MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292
S.W.3d 660, 666 (Tex. 2009) (recognizing that “where the record shows as a matter
of law that the plaintiff is entitled only to nominal damages, the appellate court will
not reverse merely to enable him to recover such damages” and instead rendering a
take-nothing judgment)).
IV. THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO
STRIKE JURORS CHALLENGED FOR CAUSE.
The Shamark Parties’ counsel moved to strike jurors 6, 8, 9, 10, 12, 13, 14,
24, 26, 31, 32, 33, 27, 49, 50, and 51 for cause based upon the jurors’ statements that
they could not apply the preponderance of the evidence to this case and would
instead require the Shamark Parties to prove that Longoria committed theft beyond
a reasonable doubt. RR Vol. 4, 136. The Shamark Parties’ counsel also moved to
strike jurors 8, 9, 12, 13, 24, 26, 31, 49 for cause based upon the jurors’ statements
that they would require a criminal conviction against Longoria before finding in
favor of the Shamark Parties on the issue of theft in this case. RR Vol. 4, 136. The
trial court denied the challenges for cause on both basis. RR Vol. 4, 141. The trial
28
court further denied the Shamark Parties’ request for additional strikes against the
jurors. RR Vol. 4, 142.
A person is disqualified to serve as a juror on a particular case if he or she has
a bias or prejudice in favor of or against one of the parties, TEX. GOV’T CODE §
62.105(4), or demonstrates “a general inability to follow the court’s instructions
regarding the law.” Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 751 (Tex.
2006); see TEX. R. CIV. P. 226a. If a prospective juror’s bias, prejudice, or inability
to follow the trial court’s instructions is established as a matter of law, the trial court
must disqualify that person from service. Malone v. Foster, 977 S.W.2d 562, 564
(Tex. 1998).
To disqualify a potential juror for bias or prejudice as a matter of law, the
record must conclusively show that the potential juror’s state of mind led to the
natural inference that he could not act with impartiality. See Hyundai Motor Co.,
189 S.W.3d at 751. Thus, a prospective juror who unequivocally admits bias or
prejudice is disqualified to serve as a juror as a matter of law. Shepherd v. Ledford,
962 S.W.2d 28, 34 (Tex. 1998); Sullemon v. U.S. Fid. & Guar. Co., 734 S.W.2d 10,
14 (Tex. App.—Dallas 1987, no writ).
When a prospective juror’s disqualification is not established as a matter of
law, the trial court must make a factual determination as to whether the prospective
juror is nevertheless sufficiently biased or prejudiced to merit disqualification. See
29
Sullemon, 734 S.W.2d at 15 (citing Swap Shop v. Fortune, 365 S.W.2d 151, 154
(Tex. 1963)). A trial court’s decision overruling a challenge for cause carries with
it an implied finding that bias or prejudice does not exist to the degree necessary to
warrant disqualification. Buls v. Fuselier, 55 S.W.3d 204, 209-10 (Tex. App.-
Texarkana 2001, no pet.).
“The key response that supports a successful challenge for cause is that the
veniremember cannot be fair and impartial because the veniremenber’s feelings are
so strong in favor of or against a party or against the subject matter of the litigation
that the veniremember’s verdict will be based on those feelings and not on the
evidence.” Buls, 55 S.W.3d at 210. The voir dire record is reviewed in relation to
the veniremembers in light of this standard, mindful of the fact that a veniremember
that is unequivocally biased or prejudiced “cannot revive his eligibility by recanting
an earlier expression of bias or prejudice.” Smith v. Dean, 232 S.W.3d 181, 190
(Tex. App.—Fort Worth 2007, pet. denied).
A trial court’s ruling on a challenge for cause is reviewed for abuse of
discretion. Hyundai Motor Co., 189 S.W.3d at 753–54. A trial court abuses its
discretion in refusing to disqualify a prospective juror for cause only if the record,
viewed in the light most favorable to the trial court’s ruling, shows that the venire
member was not able or willing to set aside personal beliefs to act impartially. Buls,
55 S.W.3d at 210.
30
In this case, there is no question that the jury was stacked against the Shamark
Parties. After substantial discussion with the jury on the differences between
burdens of proof for a “preponderance of the evidence” and “beyond a reasonable
doubt,” and then after more discussion with the trial court outside the presence of
the jury, counsel for the Shamark Parties followed up in his line of questioning by
explaining the definition of the term “preponderance of the evidence.” After having
clarifying the definition of “preponderance of the evidence” to satisfy the trial
court’s concern, the jurors thereafter confirmed that they would hold the Shamark
Parties to a higher burden of proof regardless of the trial court’s instruction on the
preponderance of the evidence. RR Vol. 4, 103. Sixteen potential jurors confirmed
their conviction that they would hold the Shamark Parties to a higher burden than
instructed by the court. Id. Three of those potential jurors became members of the
jury. Supp. CR 20–28. Thereafter, counsel for the Shamark Parties asked the clear
and critical question, “Would everyone or anyone require a criminal conviction in
order to award money in a civil case for theft?” RR Vol. 4, 108. Nine potential
jurors raised their hands in response to that question. Id. Two of those potential
jurors became members of this jury. Supp. CR 20–28.
This is not a case in which there was any confusion demonstrated by the
potential jurors. There was no individual voir dire of any juror to undermine their
purported understanding of the issues. In this case, rehabilitation was not
31
permissible to clarify whether a potential juror’s response results from confusion or
misunderstanding. Unlike the case in Murff, there were no statements by the
potential jurors that demonstrated that any of them had any confusion about the
questions being asked of them. See Murff v. Pass, 249 S.W.3d 407, 409 (Tex. 2008).
In Murff, although the potential juror indicated that he would hold Pass to a clear
and convincing standard of proof, it is apparent that the potential juror was confused
as to the definition of “preponderance of the evidence.” Id. at 411. No such
confusion was demonstrated by the potential jurors in this case and the definition of
“preponderance of the evidence” was provided so that the jurors could confirm their
answers from the earlier discussions of the standard of proof. RR Vol. 4, 103.
Further, the additional issue of requiring the Shamark Parties to prove a criminal
conviction against Longoria before they could find in favor of the Shamark Parties
in this case was not an issue in the Murff case or cases cited by Murff.
The jury was stacked against the Shamark Parties. If this case is not rendered
in favor of the Shamark Parties so that Longoria takes nothing on his claims because
of lack of evidence of damages, then the entire case should be reversed for a new
trial for factually insufficient evidence on damages and because the jury was
improperly empaneled.
32
V. CONCLUSION AND PRAYER.
Shamark Smith Limited Partnership, Paul J. Smith, and Sharon D. Marcus,
Appellants, request this Court to render judgment in favor of Appellants in whole or
in part, or remand this case for a new trial.
/s/ Tracy J. Willi
Tracy J. Willi
Texas Bar No. 00784633
Willi Law Firm, P.C.
9600 Escarpment Blvd., Suite 745, PMB 34
Austin, TX 78749-1983
Tel. (512) 288-3200
Fax (512) 288-3202
twilli@willi.com
ATTORNEY FOR SHAMARK SMITH
LIMITED PARTNERSHIP, SHARON D.
MARCUS, AND PAUL J. SMITH
CERTIFICATE OF COMPLIANCE
In accordance with Texas Rule of Appellate Procedure 9.4, I hereby certify
that this document contains 8457 words.
/s/ Tracy J. Willi
Tracy J. Willi
33
CERTIFICATE OF FILING AND SERVICE
I hereby certify that this document was filed with Clerk of Court through the
Court’s electronic filing system and served on opposing counsel by the same manner
on April 6, 2015 as follows:
James David Walker
P.O. Box 41
Milano, Texas 76556
(512) 636-9520
(512) 455-7992 (fax)
walker@2appeal.com
Counsel for Martin Longoria
/s/ Tracy J. Willi
Tracy J. Willi
34
Appendix 1
CAUSE NO. 32,515
SHAMARK SMITH LIMITED, Partnership IN THE 20TH JUDICIAL
Plaintiff
vs. DISTRICT COURT OF
MARTIN M. LONGORIA
Defendant MILAM COUNTY, TEXAS
FINAL JUDGMENT
On July 28, 2014, came on to be heard the trial of this cause. A jury was duly empaneled
and evidence heard. At the conclusion of the evidence, the Court submitted the case to the jury.
The Charge of the Court, including the jury's answers to the questions propounded therein, are
incorporated into this Final Judgment for all purposes.
After the jury returned its unanimous verdict, Defendant/Counter Plaintiff, Martin M.
Longoria, moved for judgment.
The jury unanimously found that neither Martin M. Longoria, nor any of his agents or
employees, committed a conversion of any property, materials or items owned by Shamark
Smith Limited Partnership, Sharon D. Marcus or Paul J. Smith.
The jury unanimously found that neither Martin M. Longoria , nor any of his agents or
employees, trespassed on the real property owned by Shamark Smith Limited Partnership,
Sharon D. Marcus or Paul J. Smith.
The jury unanimously found that Paul J. Smith, Sharon D. Marcus and Shamark Smith
Limited Partnership maliciously prosecuted Martin M. Longoria.
FINAL JUDGMENT PAGEi
08.05.2014
1082
The jury unanimously found that Paul J. Smith, Sharon D. Marcus and Shamark Smith
Limited Partnership intentionally inflicted severe emotional distress on Martin M. Longoria.
The jury unanimously found that Paul J. Smith, Sharon D. Marcus and Shamark Smith
Limited Partnership published factual statements about Martin M. Longoria which were
defamatory (as defined in the Charge of the Court), that such statements were false, that Paul J.
Smith, Sharon D. Marcus and Shamark Smith Limited Partnership should have known, in the
exercise of ordinary care, that the statements were false and had the potential to be defamatory,
and that they knew such statements were false or that they were made with a high degree of
awareness that they were probably false, to an extent that they in fact had serious doubts as to the
truth of the statements.
The jury also unanimously found, by clear and convincing evidence, that Paul J. Smith,
Sharon D. Marcus and Shamark Smith Limited Partnership acted with "malice," which was
defined in the Charge of the Court as a specific intent by Paul J. Smith, Sharon D. Marcus and
Shamark Smith Limited Partnership, to cause substantial injury or harm to Martin M. Longoria
and that such action resulted in harm to him.
The unanimous verdict of the jury totals $703,000, upon which the Court will render
judgment as set forth below.
The Court, having considered the jury's unanimous verdict, finds that judgment should be
rendered against Paul J. Smith, Sharon D. Marcus and Shamark Smith Limited Partnership, and
in favor of Martin M. Longoria as follows:
It is Ordered that Martin M. Longoria have judgment and recover from Paul J. Smith the
amount of $120,000, in connection with actual damages found by the jury for which let
FINAL JUDGMENT PAGE2
08.05.2014
1083
execution issue.
It is Ordered that Martin M. Longoria have judgment and recover from Sharon D. Marcus
the amount of $120,000 in connection with actual damages found by the jury for which let
execution issue.
It is Ordered that Martin M. Longoria have judgment and recover from Shamark Smith
Limited Partnership the amount of $150,000 in connection with actual damages found by the
jury for which let execution issue.
It is Further Ordered that Martin M. Longoria have judgment and recover from Paul J.
Smith the additional amount of $30,000.00, referable to exemplary damages, for which let
execution issue.
It is Further Ordered that Martin M. Longoria have judgment and recover from Sharon D.
Marcus $30,000.00, referable to exemplary damages, for which let execution issue.
It is Further Ordered that Martin M. Longoria have judgment and recover from Shamark
Smith Limited Partnership $40,000.00, referable to exemplary damages, for which let execution
issue.
It is Further Ordered that Martin Longoria and his attorneys, Mickey Blanks and Bill
Torrey, have and recover from Paul J. Smith, Sharon D. Marcus and Shamark Smith Limited
Partnership, jointly and severally, attorney's fees in the sum of $213,000 for services rendered in
this case, and it is the further judgment of the court that if this cause is not appealed, the
judgment shall be credited with $50,000 as attorney's fees; but if this judgment is appealed to the
Court of Appeals but not to the Supreme Court of Texas that this judgment shall be credited with
$20,000 as attorney's fees.
FINAL JUDGMENT PAGE3
08.05.2014
1084
It is Further Ordered that all amounts of the judgment here rendered will bear interest at
the rate of five percent (5%) from date of judgment until paid.
All costs of Court spent or incurred in this cause are adjudged against Paul J. Smith,
Sharon D. Marcus and Shamark Smith Limited Partnership, jointly and severally.
All writs and processes for the enforcement and collection of this judgment and costs of
Court may issue as necessary.
All relief requested in this case and not expressly granted is denied. This judgment finally
disposes of all parties and claims and is appealable.
SIGNED ON THIS THE /9-fL '2014
GE PRESIDING
FILED
At 8: 00 o'clock~M
AUG 18 2014 ~
~~-1.t.~
GI
cu; •
~~er
l'l!CHNE!R
TEXAS
MILAM COUIVTY,
FINAL JUDGMENT PAGE4
08.05.2014
1085
Appendix 2
CAUSE NO. 32,515
SHAMARK SMITH LIMITED IN THE DISTRICT COURT
PARTNERSHIP,
Plaintiff
20 1h JUDICIAL DISTRICT
vs.
MARTIN M. LONGORIA,
Defendant. MILAM COUNTY, TEXAS
CHARGE OF THE COURT
LADIES AND GENTLEMEN OF THE JtJRY:
After the closing arguments. you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.
Remember my previous instructions: Do not discuss the case with anyone else. either in
person or by any other means. Do not do any independent investigation about the case or conduct
any research. Do not look up any words in dictionaries or on the Internet. Do not post information
about the case on the Internet. Do not share any special knowledge or experiences with the other
jurors. Do not use your phone or any other electronic device during your deliberations for any
reason. I will give you a number where others may contact you in case of an emergency.
Any notes you have taken are for your own personal use. You may take your notes back into
the jury room and consult them during deliberations, but do not show or read your notes to your
fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely on
your independent recollection of the evidence and not be influenced by the fact that another juror
has or has not taken notes.
You must leave your notes with the bailiff when you are not deliberating. The bailiff will
give your notes to me promptly after collecting them from you. I will make sure your notes are kept
in a safe. secure location and not disclosed to anyone. After you complete your deliberations. the
bailiff will collect your notes. When you are released from jury duty, the bailiff will promptly
destroy your notes so that nobody can read what you wrote.
Here are the instructions for answering the questions.
1. Do not let bias. prejudice. or sympathy play any part in your decision.
2. Base your answers only on the evidence admitted in court and on the law that is in
these instructions and questions. Do not consider or discuss any evidence that was
not admitted in the courtroom.
FILED
Page 1 of 29 At ~; 65"o'clock _f_M
AUG 0 l 2014 ~
II: ~(k~ 1031
~TNlf? FECHNER
OISfR!CT a.ERK, MILAM COUNTY, TEXAS
3. You are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weight to give their testimony. But on matters of law.
you must follow all of my instructions.
4. If my instructions use a word in a way that is different from its ordinary meaning. use
the meaning I give you. which will be a proper legal definition.
5. All the questions and answers are important. No one should say that any question or
answer is not important.
6. Answer "yes" or ""no·· to all questions unless you are told otherwise. A '"yes'" answer
must be based on the preponderance of the evidence unless you are told otherwise.
Whenever a question requires an answer other than ·'yes" or '"no," your answer must be
based on a preponderance of the evidence unless you are told otherwise.
The term "'preponderance of the evidence·· means the greater weight of credible evidence
admitted in this case. If you do not find that a preponderance of the evidence supports a
'·yes"' answer. then answer "no.'" A preponderance of the evidence is not measured by
the number of witnesses or the number of documents admitted in evidence. For a fact to
be proved by a preponderance of the evidence. you must find that the fact is more likely
true than not true.
7. Do not decide who you think should win before you answer the questions and then just
answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.
8. Do not answer questions by drawing straws or by any method of chance.
9. Some questions may ask you for a dollar amount. Do not agree in advance to decide on a
dollar amount by adding up each juror's amount and then figuring the average.
10. Do not trade your answers. For example. do not say. '·I will answer this question your
way if you answer another question my way."'
11. Unless otherwise instructed, the answers to the questions must be based on the decision
of at least ten of the twelve jurors. The same ten jurors must agree on every answer. Do
not agree to be bound by a vote of anything less than ten jurors. even if it would be a
majority.
As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct. and I might have to order a new trial and start this process over again. That would
waste your time and the parties· money. and would require the taxpayers of this county to pay for
another trial. If a juror breaks any of these rules. tell that person to stop and report it to me
immediately.
Page 2 of29
1032
A fact may be established by direct evidence or by circumstantial evidence or both. A fact is
established by direct evidence when proved by documentary evidence or by witnesses who saw the
act done or heard the words spoken. A fact is established by circumstantial evidence when it may be
fairly and reasonably inferred from other facts proved.
Page 3 of 29
1033
Question l
Did Martin M. Longoria or any of his agents or employees commit a conversion of any property.
materials. or items owned by Shamark Smith Limited Partnership, Sharon D. Marcus, or Paul J.
Smith?
You are instructed that "conversion" occurs if (1) Shamark Smith Limited Partnership, Sharon D.
Marcus, or Paul J. Smith beneficially owned any property, materials, or items; and (2) Martin M.
Longoria or any of his agents or employees wrongfully exercised dominion or control over the
property, materials, or items to the injury of Shamark Smith Limited Partnership, Sharon D.
Marcus, or Paul J. Smith.
Answer '"Yes'' or "No":
Answer: ~
Page 4 of29
1034
If you answered "Yes" to Question l, then answer the following question. Otherwise, do not answer
the following question.
Question 2
What sum of money, if paid now in cash, would fairly and reasonably compensate Shamark
Smith Limited Partnership, Sharon D. Marcus, and/or Paul J. Smith for the damages, if any, that
were proximately caused by the conversion(s)?
Consider the elements of damages listed below and none other. Consider each element
separately. Do not reduce the amount, if any, in your answers because of the wrongdoing, if any, of
Shamark Smith Limited Partnership, Sharon 0. Marcus, and/or Paul J. Smith. Any recovery will be
determined by the court when it applies the law to your answers at the time of judgment.
I. Loss of market value.
Find the market value of the property, materials, or items in question in Milam County,
Texas as of the date of the conversion(s). if any.
"Market value" means the amount that would be paid in cash by a willing buyer who desires
to buy. but is not required to buy, to a willing seller who desires to sell, but is under no
necessity of selling.
Answer in dollars and cents for damages. if any.
2. Cost of repairs or restoration of the Old Sneed Home to its former condition.
Consider the reasonable cost in Milam County, Texas. to restore the Old Sneed Home to the
condition it was immediately before the occurrence in question.
Answer in dollars and cents for damages. if any.
3. Loss of use.
"'Loss of use"" damages compensate Shamark Smith Limited Partnership, Sharon 0. Marcus, and/or
Paul J. Smith for their lost profits sustained in the past.
Answer in dollars and cents for damages. if any.
Page 5 of 29
1035
Question 3
Did Martin M. Longoria or any of his agents or employees trespass on the real property belonging
to Shamark Smith Limited Partnership, Sharon D. Marcus, and/or Paul J. Smith?
Trespass to real property is defined as an unauthorized entry upon the land of another. Every
unauthorized entry is a trespass even if no damage is done. A trespass can be either by entry
of a person on another's land or by causing or permitting a thing to cross the boundary of the
premises.
Answer "Yes'" or ''No."
Answer:
Page 6 of29
1036
If you answered "Yes" to Question 3. then answer the following question. Otherwise, do not answer
the following question.
Question 4
What sum of money. if paid now in cash. would fairly and reasonably compensate Shamark
Smith Limited Partnership. Sharon D. Marcus. and/or Paul J. Smith for the damages, if any. that
were proximately caused by the trespass?
Consider the elements of damages listed below and none other. Consider each element
separately. Do not reduce the amount. if any. in your answers because of the wrongdoing. if any. of
Shamark Smith Limited Partnership. Sharon D. Marcus, and/or Paul J. Smith. Any recovery will be
determined by the court when it applies the law to your answers at the time of judgment.
1. Loss of market value.
Find the market value of the property. materials. or items in question in Milam County,
Texas as of the date of the conversion(s). if any.
"Market value" means the amount that would be paid in cash by a willing buyer who desires
to buy. but is not required to buy, to a willing seller who desires to sell. but is under no
necessity of selling.
Answer in dollars and cents for damages, if any.
Answer: _ _ _ _ _ _ __
2. Cost ofrepairs or restoration of the Old Sneed Home to its former condition.
Consider the reasonable cost in Milam County. Texas. to restore the Old Sneed Home to the
condition it was immediately before the occurrence in question.
Answer in dollars and cents for damages. if any.
Answer: - - - - - - - -
3. Loss of use.
·'Loss of use·· damages compensate Shamark Smith Limited Partnership. Sharon D. Marcus. and/or
Paul J. Smith for their lost profits sustained in the past.
Answer in dollars and cents for damages. if any.
Answer: - - - - - - - - -
Page 7 of29
1037
Answer the following question only if you unanimously answered ''Yes·· to Questions 1 or 3.
Otherwise. do not answer the following question.
Question 5
To answer '·Yes'· to any part of the following question, your answer must be unanimous. You may
answer ·'No'' to any part of the following question only upon a vote of ten or more jurors.
Otherwise, you must not answer that part of the following question.
Do you find by clear and convincing evidence that the harm to Shamark Smith Limited
Partnership. Sharon D. Marcus. and/or Paul J. Smith resulted from malice?
''Clear and convincing evidence'' means the measure or degree of proof
that produces a firm belief or conviction of the truth of the allegations
sought to be established.
"Malice" means a specific intent by Martin M. Longoria or any of his agents
or employees to cause substantial injury or harm to Shamark Smith Limited
Partnership. Sharon D. Marcus, and/or Paul J. Smith.
Answer .. Yes" or '·No ...
Page 8 of29
1038
Answer the following question only if you unanimously answered "Yes'' to Questions l or 3.
Otherwise, do not answer the following question.
Question 6
To answer "Yes'' to any part of the following question, your answer must be unanimous. You may
answer ·'No" to any part of the following question only upon a vote of ten or more jurors.
Otherwise, you must not answer that part of the following question.
Do you find by clear and convincing evidence that the harm to Shamark Smith Limited
Partnership, Sharon D. Marcus. and/or Paul J. Smith resulted from gross negligence?
"Clear and convincing evidence" means the degree or measure of proof that produces a
firm belief or conviction of the truth of the allegations sought to be established.
"Gross negligence" means an act or omission by Martin M. Longoria or any of his agents
or employees,
(a) which when viewed objectively from the standpoint of Martin M. Longoria
or any of his agents or employees at the time of its occurrence involves an
extreme degree of risk, considering the probability and magnitude of its
potential harm to others; and
(b) of which Martin M. Longoria or any of his agents or employees has actual,
subjective awareness of the risk involved, but nevertheless proceeds with
conscious indifference to the rights, safety, or welfare of others.
Answer "Yes" or "No."
Answer: - - - - - - - -
Page 9 of29
1039
Answer the following question only if you unanimously answered "Yes·· to Question 5 or 6.
Otherwise. do not answer the following question.
You must unanimously agree on the amount of any award of exemplary damages.
Question 7
What sum of money. if any. if paid now in cash. should be assessed against Martin M.
Longoria and awarded to Shamark Smith Limited Partnership. Sharon D. Marcus. and/or Paul J.
Smith as exemplary damages. if any, for the conduct found in response to Question 5 or 6?
'"Exemplary damages" means an amount that you may in your discretion award as a
penalty or by way of punishment.
Factors to consider in awarding exemplary damages, if any, are-
a. The nature of the wrong.
b. The character of the conduct involved.
c. The degree of culpability of Martin M. Longoria.
d. The situation and sensibilities of the parties concerned.
e. The extent to which such conduct offends a public sense of justice and
propriety.
f. The net worth of Martin M. Longoria.
Answer in dollars and cents. if any.
Answer: - - - - - - - - -
Page 10 of29
1040
Question 8
Answer the following question only if you unanimously answered '·Yes" to Question 1. Otherwise.
do not answer the following question.
To answer '·Yes .. to any part of the following question, your answer must be unanimous. You may
answer "No·· to any part of the following question only upon a vote of ten or more jurors.
Otherwise. you must not answer that part of the following question.
Did Martin M. Longoria or any of his agents or employees commit '"Theft", and was the
value of the stolen property $20.000.00 or greater?
"'Theft'" means that a person unlawfully appropriates property with the intent to deprive
the owner of property. Appropriating property is unlawful if it is without the owner"s
effective consent.
A person acts with intent with respect to the nature of his conduct or to a result of his
conduct when it is the conscious objective or desire to engage in the conduct or cause the
result.
""Deprive" means to ·withhold property from the owner permanently or for so extended
a period o.f time that a mc{jor portion (?f the value or enjoyment <~f the property is lost to
the owner.
'"Owner·· means a person who has title to the property. possession of the property.
whether lawful or not or a greater right to possession of the property than Martin M
Longoria or any ~----
Page 15 of29
1045
Question 13
Did Paul J. Smith, Sharon D. Marcus. and/or Shamark Smith Limited Partnership intentionally
inflict severe emotional distress on Martin Longoria? s h."""'9"" rn~ ti" c.rs) v-.J... (J -
h,,..~l-
Intentional infliction of emotional distress occurs when the det dant acts mtent1ona r
recklessly with extreme and outrageous conduct to cause the emotional distress and
the emotional distress suffer.ed. by th@ plaintiff was severe. t" ~f
,,_,.p ...
~
. n~ ~ ....
I ,.~,..ti'"' ~,...~,.I - . .
"Extreme and outr geo s conduce occurs only where t econ uct has been so out geous in
character, and so extreme in degree. as to go beyond all possible bounds of decency. and to
be regarded as atrocious, and utterly intolerable in a civilized community.
Answer ''Yes·· or ..No'' as to Paul J. Smith.
Answer: _ _l}~e._5,_____
Answer .. Yes·· or "No'" as to Sharon D. Marcus
Answer: __Y_._..e.....5____
Answer ''Yes·· or ··No"' as to Shamark Smith Limited Partnership
Answer: \.f f..S
--~-=----
Page 16 of29
1046
Question 14
Did Paul J. Smith. Sharon D. Marcus, and/or Shamark Smith Limited Partnership publish the
following statement: that Martin Longoria had stolen components of or contents inside the Old
Sneed Home?
"'Publish"' means intentionally or negligently to communicate the matter to a person other
than Martin Longoria who is capable of understanding its meaning and may be made orally
or in writing.
Answer "Yes·· or ··No'" as to Paul J. Smith.
Answer: ___'-1.""e...,,s,,J.____ _
Answer ··Yes·· or ··No" as to Sharon D. Marcus
Answer: ___\{~t5...,_ ___
Answer '·Yes·· or "No"' as to Shamark Smith Limited Partnership
Answer: ---~~es
_____
Page 17 of29
1047
If you answered "Yes" in Question 14 as to Paul J. Smith, Sharon D. Marcus, and/or Shamark
Smith Limited Partnership, then answer the following question as to that respective party.
Otherwise, do not answer the following question.
Question 15
Was the statement in Question 14 defamatory concerning Martin Longoria?
"Defamatory'' means an ordinary person would interpret the statement in a way that tends to
injure a living person· s reputation and thereby expose the person to public hatred, contempt
or ridicule. or financial injury or to impeach the person's honesty, integrity, virtue, or
reputation.
In deciding whether a statement is defamatory, you must construe the statement as a whole
and in light of the surrounding circumstances based upon how a person of ordinary
intelligence would perceive it.
Answer "Yes'' or ''No" as to Paul J. Smith.
Answer:
Answer ·'Yes'' or "No" as to Sharon D. Marcus
Answer:
Answer "Yes" or '·No" as to Shamark Smith Limited Partnership
Answer: _ _\/~e 5...
_____
Page 18 of29
1048
If you answered ''Yes" in Question 15 as to Paul J. Smith. Sharon D. Marcus. and/or Shamark
Smith Limited Partnership. then answer the following question as to that respective party.
Otherwise. do not answer the following question.
Question 16
Do you find that the statement that Martin Longoria had stolen components of or contents inside the
Old Sneed Home was false at the time it was made as it related to Martin Longoria?
"False·· means that a statement is not literally true or not substantially true. A statement is
not ··substantially true·· if. in the mind of the average person, the gist of the statement is
more damaging to the person affected by it than a literally true statement would have been.
Answer '·Yes"' or ··No" as to Paul J. Smith.
Answer: ~es
Answer ''Yes'" or "No"' as to Sharon D. Marcus
Answer: --~_.__..f.S~---
Answer "Yes·· or '·No'" as to Shamark Smith Limited Partnership
Answer:
Page 19 of29
1049
If you answered "'Yes" in Question 16 as to Paul J. Smith. Sharon D. Marcus. and/or Shamark
Smith Limited Partnership, then answer the following question as to that respective party.
Otherwise. do not answer the following question.
Question 17
Did Paul J. Smith. Sharon D. Marcus, and/or Shamark Smith Limited Partnership know or should
they have known, in the exercise of ordinary care. that the statement contained in Question 14 was
false and had the potential to be defamatory?
"Ordinary care" concerning the truth of the statement and its potential to be defamatory
means that degree of care that would be used by a person of ordinary prudence under the
same or similar circumstances.
Answer ""Yes·· or ··No'' as to Paul J. Smith.
Answer: --~~e.S~---
.
Answer "Yes"' or "No" as to Sharon D. Marcus
Answer: --~~es
_____
Answer ''Yes"' or "No" as to Shamark Smith Limited Partnership
Answer:
Page 20 of29
1050
If you answered "Yes" in Question 17 as to Paul J. Smith, Sharon D. Marcus, and/or Shamark
Smith Limited Partnership. then answer the following question as to that respective party.
Otherwise, do not answer the following question.
Question 18
Do you find by clear and convincing evidence that, at the time Paul J. Smith. Sharon D. Marcus,
and/or Shamark Smith Limited Partnership made the statement in Question 14:
1. Paul J. Smith, Sharon D. Marcus. and/or Shamark Smith Limited Partnership knew it was
false as it related to Martin Longoria, or
2. Paul J. Smith, Sharon D. Marcus. and/or Shamark Smith Limited Partnership made the
statement with a high degree of awareness that it was probably false. to an extent that Paul J.
Smith, Sharon D. Marcus. and/or Shamark Smith Limited Partnership in fact had serious
doubts as to the truth of the statement?
"'Clear and convincing evidence" is that measure or degree of proof that will produce
in the mind of the jury a firm belief or conviction as to the truth of the allegations
sought to be established.
Answer "Yes'' or "No" as to Paul J. Smith.
Answer: ~e...s
Answer ''Yes" or "No'' as to Sharon D. Marcus
Answer: _ _Y_._.es
____
Answer "Yes'' or '"No" as to Shamark Smith Limited Partnership
Answer:
Page 21 of29
1051
If you answered '·Yes" in Question(s) 12, 13, or 18 as to Paul J. Smith, Sharon D. Marcus, and/or
Shamark Smith Limited Partnership, then answer the following question as to that respective party.
Otherwise, do not answer the following question.
Question 19
What sum of money, if paid now in cash, would fairly and reasonably compensate Martin Longoria
for his injuries, if any, that were proximately caused by the statement in Question 14?
Consider the elements of damages listed below and none other. Consider each element separately.
Do not award any sum of money on any element if you have otherwise, under some other element
awarded a sum of money for the same loss.
That is, do not compensate twice for the same loss, if any. Do not include interest
on any amount of damages you find.
Answer separately in dollars and cents for damages, if any.
a. Injury to reputation sustained in the past.
Answer as to Paul J. Smith:
Answer:
,f
q (),• O{>() ~
.
Answer as to Sharon D. Marcus:
Answer: ~O., O{)O. 01>
Answer as to Shamark Smith Limited Partnership:
u DO
Answer: 0
'15, 0()().
b. Injury to reputation that, in reasonable probability, Martin Longoria will sustain in the future.
Answer as to Paul J. Smith:
9
.JI oo
Answer: / (J., (){)().
Answer as to Sharon D. Marcus:
Answer: 6io, 000. o-o
Answer as to Shamark Smith Limited Partnership:
Answer: 4-;o,
__ ooo. 0°
t?"t _,_____ _
Page 22 of29
1052
c. Mental anguish sustained in the past.
Answer as to Paul J. Smith:
Answer:
4c;lO., 000. oo
-
•
Answer as to Sharon D. Marcus:
Answer: .j~f>., 0()(). ~
Answer as to Shamark Smith Limited Partnership:
Answer:
"'.34-0 00 oo
.q :"'""'
d. Mental anguish that, in reasonable probability. Martin Longoria will sustain in the future.
Answer as to Paul J. Smith:
-o-
Answer: - - - - - - -
Answer as to Sharon D. Marcus:
Answer: -()-
-------
Answer as to Shamark Smith Limited Partnership:
Answer: -O-
Page 23 of29
1053
Answer the following question only if you unanimously answered "Yes" to Question(s) 12, 13. or
18. Otherwise. do not answer the following question.
Question 20
To answer ''Yes" to any part of the following question, your answer must be unanimous. You may
answer '"No" to any part of the following question only upon a vote of ten or more jurors.
Otherwise, you must not answer that part of the following question.
Do you find by clear and convincing evidence that the harm to Martin M. Longoria resulted
from malice?
"Clear and convincing evidence'' means the measure or degree of proof
that produces a firm belief or conviction of the truth of the allegations
sought to be established.
"Malice" means a specific intent by Shamark Smith Limited Partnership,
Sharon D. Marcus, and/or Paul J. Smith or any of his agents or employees to
cause substantial injury or harm to Martin M. Longoria
Answer "'Yes" or "No'' as to Paul J. Smith.
Answer: --~.....e~s____
Answer "Yes" or '"No" as to Sharon D. Marcus
Answer: \./es
Answer "Yes" or "No" as to Shamark Smith Limited Partnership
Answer: _ _l/~eo~---
Page 24 of29
1054
Answer the following question only if you unanimously answered ·'Yes" to Question 20. Otherwise,
do not answer the following question.
Question 21
To answer .. Yes" to any part of the following question, your answer must be unanimous. You may
answer "No'' to any part of the following question only upon a vote of ten or more jurors.
Otherwise. you must not answer that part of the following question.
Do you find by clear and convincing evidence that the harm to Martin M. Longoria resulted
from fraud?
"Clear and convincing evidence" means the measure or degree of proof
that produces a firm belief or conviction of the truth of the allegations
sought to be established.
'·Fraud'' occurs when:
1. A party makes a material misrepresentation, and
2. The misrepresentation is made with knowledge of its falsity or made
recklessly without any knowledge of the truth and as a positive assertion;
and
3. The misrepresentation is made with the intention that it should be acted
on by the other party; and
4. The other party relies on the misrepresentation and thereby suffers
mJury.
"Misrepresentation" means a false statement of fact.
Answer '·Yes'' or "No" as to Paul J. Smith.
Answer:
Answer .. Yes" or ..No" as to Sharon D. Marcus
Answer: _ _Y_.__e.....5,_____
Answer ··Yes" or '"No .. as to Shamark Smith Limited Partnership
Answer: _ _l{---"'-"e__~c;'--------
Page 25 of29
1055
Answer the following question only if you unanimously answered ·•yes'' to Question 21. Otherwise.
do not answer the following question.
You must unanimously agree on the amount of any award of exemplary damages.
Question 22
What sum of money. if any. if paid now in cash, should be assessed against Shamark Smith
Limited Partnership, Sharon D. Marcus. and/or Paul J. Smith and awarded to Martin M. Longoriao/p
as exemplary damages, if any. for the conduct found in response to Question~ or ,;-l? \
··Exemplary damages" means an amount that you may in your discretion award as a
penalty or by way of punishment.
Factors to consider in awarding exemplary damages, if any. are-
a. The nature of the wrong.
b. The character of the conduct involved.
c. The degree of culpability of Shamark Smith Limited Partnership, Sharon D.
Marcus. and/or Paul J. Smith.
d. The situation and sensibilities of the parties concerned.
e. The extent to which such conduct offends a public sense of justice and
propriety.
f. The net worth of Shamark Smith Limited Partnership. Sharon D. Marcus.
and/or Paul J. Smith.
Answer in dollars and cents. if any.
Answer as to Paul J. Smith:
Answer: ".ao,• 00(). 00
Answer as to Sharon D. Marcus:
Answer: $30, {)()(). ~
•
Answer as to Shamark Smith Limited Partnership:
J/,,11 00
Answer: rtJ, 000 •
'
Page 26 of29
1056
When you go into the jury room to answer the questions, the first thing you will need to do is
choose a presiding juror.
The presiding juror has these duties:
1. have the complete charge read aloud if it will be helpful to your deliberations;
2. preside over your deliberations, meaning manage the discussions, and see that you follow
these instructions;
3. give written questions or comments to the bailiff who will then give them to the judge;
4. write down the answers that you agree on:
5. get the signatures for the verdict certificate: and
6. notify the bailiff that you have reached a verdict.
Do you understand the duties of the presiding juror? If you do not, please tell me now.
Unless otherwise instructed, you may answer the questions on a vote of 10 jurors. The same
10 jurors must agree on every answer in the charge. This means you may not have one group of l 0
jurors agree on one answer and a different group of 10 jurors agree on another answer.
If 10 jurors agree on every answer. those l 0 jurors sign the verdict.
If all 12 of you agree on every answer. you are unanimous and only the presiding juror signs
the verdict.
All jurors should deliberate on every question. You may end up with all 12 of you agreeing
on some answers. while only 10 or 11 of you agree on other answers. But when you sign the
verdict, only those 10 who agree on every answer will sign the verdict.
There are some special instructions before Questions 5, 6, 7, 8 and 22 explaining how to
answer those questions. Please follow the instructions. If all 12 of you answer those questions, you
will need to complete a second verdict certificate for those questions.
Do you understand these instructions? If you do not, please tell me now.
Page 27 of29
1057
Verdict Certificate
Check one:
I Our verdict is unanimous. All 12 of us have agreed to each and every answer. The presiding
juror has signed the certificate for all 12 of us.
J(,ld~ S helo..rvl.er
Our verdict is not unanimous. Eleven of us have agreed to each and every answer and have
signed the certificate below.
Our verdict is not unanimous. Ten of us have agreed to each and every answer and have
signed the certificate below.
SIGNATURE NAME PRINTED
FILED
At ~;IS: o'clock_/!_M
AUG 0 12014 !!/
Page 28 of29
&t t!hnW
IJh,.C~fECHNER
OIS1'1\lc:T WRIC, Mii.AM C:OUKTY, TEXAS
1058
If you have answered Questions 5. 6. 7. 8 and/or 22. then you must sign this certificate also.
ADDITIONAL CERTIFICATE
I certify that the jury was unanimous in answering Question No. 5. All twelve of us agreed
to the answer. The presiding juror has signed the certificate for all twelve of us.
Signature of Presiding Juror Printed Name of Presiding Juror
I certify that the jury was unanimous in answering Question No. 6. All twelve of us agreed
to the answer. The presiding juror has signed the certificate for all twelve of us.
Signature of Presiding Juror Printed Name of Presiding Juror
I certify that the jury was unanimous in answering Question No. 7. All twelve of us agreed
to the answer. The presiding juror has signed the certificate for all twelve of us.
Signature of Presiding Juror Printed Name of Presiding Juror
I certify that the jury was unanimous in answering Question No. 8. All twelve of us agreed
to the answer. The presiding juror has signed the certificate for all twelve of us.
Signature of Presiding Juror Printed Name of Presiding Juror
I certify that the jury was unanimous in answering Question No. 22. All twelve of us agreed
to the answer. The presiding juror has signed the certificate for all twelve of us.
FILED
At R: IS- o'clock _f!_M
AUG 0 l 2014 lf>
Page 29 of29 ~C~&t~
Ft!Cl-fN!!iR
DISTIUC'I' CLfRI<, MlWI COUN'IY, TfXAS
1059
Appendix 3
BURBAGE v. BURBAGE Tex. 249
Cite as 447 S.W.3d 249 (Tex. 2014)
2. Libel and Slander O93, 101(4)
Allen Chadwick BURBAGE, Petitioner
The qualified privilege against defa-
and Cross–Respondent,
mation liability when the communication is
v. made in good faith and the author, recipi-
W. Kirk BURBAGE and Burbage ent, or a third person, or one of their
Funeral Home, Respondents family members has an interest that is
and Cross–Petitioners. sufficiently affected by the communication
operates as an affirmative defense in the
No. 12–0563.
nature of confession and avoidance; the
Supreme Court of Texas. defendant bears the burden of proving
Argued Jan. 9, 2014. privileged publication unless the plaintiff’s
petition affirmatively demonstrates privi-
Delivered Aug. 29, 2014. lege.
Background: Owner of family funeral
home brought action against his brother 3. Libel and Slander O101(4)
for defamation. The 21st Judicial District
If a defendant establishes a qualified
Court, Bastrop County, Terry L. Flennik-
privilege against defamation liability when
en, J., entered judgment in favor of owner
the communication is made in good faith
on jury verdict of nearly $10 million in
and the author, recipient, or a third per-
compensatory and exemplary damages,
son, or one of their family members has an
and the trial court permanently enjoined
interest that is sufficiently affected by the
brother from publishing like statements.
communication, the burden shifts to the
Brother appealed. The Austin Court of
plaintiff to prove that the defendant made
Appeals, Jeff Rose, J., 447 S.W.3d 291,
the statements with actual malice.
affirmed in part, modified in part, and
vacated in part. Both parties sought re-
4. Libel and Slander O4
view.
Holdings: The Supreme Court, Green, J., ‘‘Actual malice,’’ in the defamation
held that: context, means the making of a statement
(1) objection by brother failed to preserve with knowledge that it is false, or with
for appeal issue of improper instruc- reckless disregard of whether it is true.
tion, and See publication Words and Phrases
for other judicial constructions and
(2) no evidence supported jury’s award of
definitions.
$3.8 million in actual damages to own-
er. 5. Libel and Slander O123(8)
Affirmed in part and reversed in part.
Qualified privilege against defamation
liability when the communication is made
1. Libel and Slander O50 in good faith and the author, recipient, or a
The common law provides a qualified third person, or one of their family mem-
privilege against defamation liability when bers has an interest that is sufficiently
communication is made in good faith and affected by the communication presents a
the author, the recipient, or a third person, question of law when the statements at
or one of their family members, has an issue employ unambiguous language and
interest that is sufficiently affected by the where the facts and circumstances of pub-
communication. lication are undisputed.
250 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES
6. Libel and Slander O124(7), 128 12. Appeal and Error O232(3)
Comingling of unprivileged and poten- Objection by brother of family funeral
tially privileged statements for the jury to home owner failed to preserve for appeal
determine if each was substantially true at issue of improper instruction regarding
the time it was made may result in harm- statements made in a letter in action by
ful error in defamation action. owner against owner’s brother for defama-
tion, although the objection raised the sub-
7. Trial O238 ject of qualified privilege; where, when the
It is fundamental to the system of trial court asked brother if he had a re-
justice that parties have the right to be quested instruction, he responded only
judged by a jury properly instructed in the with a request for a question that ap-
law. peared to address the falsity of the state-
ments themselves, and it was unclear what
8. Appeal and Error O213
brother hoped to accomplish by requesting
Where a party does not raise an ob- an additional question. Vernon’s Ann.Tex-
jection in defamation action to comingling as Rules Civ.Proc., Rule 274; Rules App.
of unprivileged and potentially privileged Proc., Rule 33.1.
statements for the jury to determine if
each was substantially true at the time it 13. Appeal and Error O231(1), 775
was made, that party cannot raise the Procedural rules are construed lib-
issue, as it failed to preserve the claim. erally so that the right to appeal is not lost
unnecessarily; but, when an objection fails
9. Appeal and Error O230, 231(1), 242(1) to explain the nature of the error, court
The test for whether an issue is pre- cannot make assumptions.
served for appeal ultimately asks whether
14. Appeal and Error O181
the party made the trial court aware of the
complaint, timely and plainly, and obtained Preservation of error reflects impor-
a ruling. Rules App.Proc., Rule 33.1. tant prudential considerations recognizing
that the judicial process benefits greatly
10. Trial O279 when trial courts have the opportunity to
Purpose of rule that requires the par- first consider and rule on error.
ty objecting to a charge to point out dis- 15. Appeal and Error O181
tinctly the objectionable matter and the
Affording courts the opportunity to
grounds of the objection is to afford trial
first consider and rule on an alleged error
courts an opportunity to correct errors in
conserves judicial resources and promotes
the charge by requiring objections both to
fairness by ensuring that a party does not
clearly designate the error and to explain
neglect a complaint at trial and raise it for
the grounds for complaint. Vernon’s
the first time on appeal.
Ann.Texas Rules Civ.Proc., Rule 274.
16. Attorney and Client O62
11. Appeal and Error O231(1)
Supreme Court may not stray from
In order for an objection to preserve procedural rules because a party repre-
an issue for appeal, it must apprise the sented himself at trial.
trial court of the error alleged such that
the court has the opportunity to correct 17. Appeal and Error O1001(1, 3)
the problem. Vernon’s Ann.Texas Rules On an issue where the opposing party
Civ.Proc., Rule 274. bears the burden of proof, Supreme Court
BURBAGE v. BURBAGE Tex. 251
Cite as 447 S.W.3d 249 (Tex. 2014)
sustains a legal-sufficiency challenge to an 24. Libel and Slander O128
adverse finding if its review of the evi- Judicial review of jury discretion in
dence demonstrates a complete absence of awarding damages in defamation action re-
a vital fact, or if the evidence offered is no mains important to protect free speech,
more than a scintilla. even in a case outside the realm of media
defendants and public officials. U.S.C.A.
18. Appeal and Error O1001(1)
Const.Amend. 1.
More than a scintilla of evidence ex-
25. Libel and Slander O116
ists, as required to defeat a legal sufficien-
cy challenge to an adverse finding, when Supreme Court must ensure that non-
the evidence would enable reasonable and economic damages in defamation action
fair-minded people to reach different con- compensate for actual injuries and are not
clusions. simply a disguised disapproval of the de-
fendant.
19. Appeal and Error O1001(3) 26. Libel and Slander O112(1)
Supreme Court regards evidence that Some concrete basis for an estimate of
creates a mere surmise or suspicion of a the value of a business injured by defama-
vital fact as, in legal effect, no evidence. tion is required.
20. Appeal and Error O930(1) 27. Libel and Slander O117
No evidence supported jury’s award of
Supreme Court considers the evidence
$3.8 million in actual damages to owner of
in the light most favorable to the judg-
funeral home from defamation by owner’s
ment, crediting favorable evidence if rea-
brother, where the evidence did not show
sonable jurors could, and disregarding con-
actual loss of reputation, that anyone be-
trary evidence unless reasonable jurors
lieved the defamation, that the business
could not.
suffered an actual loss, or even the funeral
21. Libel and Slander O101(1), 114 home’s actual value.
Texas law presumes that defamatory 28. Damages O87(2)
per se statements cause reputational harm A party may not recover exemplary
and entitle a plaintiff to general damages damages unless the plaintiff establishes ac-
such as loss of reputation and mental an- tual damages.
guish; but this presumption yields only
29. Constitutional Law O2174
nominal damages.
Injunction O1456
22. Appeal and Error O1004(1) Prohibitive injunctions of future
Beyond nominal damages, Supreme speech that is the same or similar to
Court reviews presumed damages for evi- speech that has been adjudicated to be
dentiary support. defamatory operate as impermissible prior
restraints on free speech. U.S.C.A. Const.
23. Libel and Slander O121(.5) Amend. 1.
Jury latitude in awarding damages in
defamation action has limits; latitude does
not give the jury carte blanche to do what-
ever it will, especially when the action is David Greene, Electronic Frontier
brought by public officials. Foundation, San Francisco, CA, Marc A.
252 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES
Fuller, Vinson & Elkins LLP, Dallas, TX, ness, in Worcester County, Maryland.
for Amicus Curiae, Electronic Frontier Chad is Kirk’s older brother. Chad and
Foundation. Kirk’s grandmother, Anna Burbage, man-
James J. Scheske, James J. Scheske, aged the funeral home from her husband’s
PLLC, Peter D. Kennedy, William Gerow death in the 1940s until her death in 1985.
Christian, Graves Dougherty Hearon & In her will, Anna left the funeral home and
Moody PC, Austin, TX, Jason P. Steed, all of its assets to Kirk.
Bell Nunnally & Martin LLP, Dallas, TX, Anna bequeathed the land for the Bur-
for Petitioner, Allen Chadwick Burbage.
bage family cemetery to her children,
Gregory Scott Cagle, Savrick, Schu- Richard Burbage, Sr., Chad and Kirk’s
mann, Johnson, McGarr Kaminski & Shir- father, and Jean Burbage Prettyman. Al-
ley, LLP, Austin, TX, for Respondent, W. though primarily a family cemetery, Anna
Kirk Burbage and Burbage Funeral and Richard gave permission for burial or
Home. entombment of several non-family mem-
bers. Richard died in 1991; in his will, he
Justice GREEN delivered the opinion of
left his 50% undivided interest in the fami-
the Court.
ly cemetery property to Chad and Kirk’s
In this defamation case, a jury assessed mother, Virginia Burbage Markham, but
compensatory and exemplary damages the will was never probated. Virginia con-
against Allen Chadwick Burbage (Chad) veyed this interest to Kirk by quitclaim
for ten statements defaming his brother, deed in 2003. Chad felt Kirk obtained the
W. Kirk Burbage (Kirk). The trial court funeral home and the family cemetery in-
also permanently enjoined Chad from terest through manipulation, first of Anna
making similar statements. We are pre- and later of Virginia.
sented with three issues: (1) whether any
defamatory statements fell within a quali- Although the origin of the strife between
fied privilege; (2) whether evidence sup- Chad and Kirk remains unclear, the
ports the jury’s damage awards; and (3) ‘‘Farm Property,’’ a 23–acre tract that Vir-
whether the trial court abused its discre- ginia inherited from Richard in 1991, ag-
tion by issuing the permanent injunction. gravated any existing discord. The poten-
Because we hold that Chad failed to pre- tial sale of the property ultimately aligned
serve error in the charge, we do not reach Virginia’s four children against each other:
the issue of qualified privilege. We also Chad and Patrice Burbage Lehmann want-
hold that the permanent injunction oper- ed to sell, while Kirk and his brother,
ates as an impermissible prior restraint on Keith, demurred. Throughout 2006 and
freedom of speech. Accordingly, we af- 2007, Chad exchanged heated emails with
firm those parts of the court of appeals’ Kirk’s attorney. In late 2007 and early
judgment. But, on damages, we hold that 2008, Chad created a website, www.anna
no evidence supports the compensatory burbage.org, to air his grievances with
damage award. We reverse that part of Kirk. Chad placed several posters around
the court of appeals’ judgment. town to publicize the website. The web-
site contained the following allegations:
I. Factual and Procedural 1 ‘‘Anna Burbage (‘Miss Anna’) was a
Background victim of Elder Abuse. The Abuser
Kirk owns and operates the Burbage was her grandson, Kirk Burbage and
Funeral Home, a centuries-old family busi- others.’’
BURBAGE v. BURBAGE Tex. 253
Cite as 447 S.W.3d 249 (Tex. 2014)
1 ‘‘Virginia Burbage Markham was the ulently misrepresented rights which
principal of Stephen Decatur High Kirk Burbage does not haveTTTT’’
School serving northern Worcester 1 ‘‘Kirk Burbage fraudulently obtained a
County Maryland. At the present Quit Claim [deed] from our mother by
time, she is being abused by her son, what is believed to be elder
Kirk Burbage, of the Burbage Funeral abuseTTTT’’
Home. She is currently a victim of
1 ‘‘Kirk Burbage and the Burbage Fu-
ELDER as well as FAMILY
ABUSE.’’ neral Home violated Maryland law by
not having a license to operate a ceme-
1 ‘‘The methods [of abuse] include: lies,
tery’’
trespassing, grand larceny, will tam-
pering/undue influence, gifts with the 1 ‘‘Kirk Burbage did commit fraud.’’
intent to control his mother, discredit- Kirk and the Burbage Funeral Home
ing fellow siblings, deceptively misrep- sued Chad for defamation in Bastrop
resenting the contents of legal docu- County.1 Chad appeared pro se. The tri-
ments requiring the signature of the al court submitted ten questions—one for
ABUSED for personal gain and to each of the statements reproduced above—
cover up land fraud and involving the asking the jury whether Chad had proven
ABUSED ELDER in Cemetery Land that the statements were substantially
Fraud implicating several families in- true. The jury answered ‘‘no’’ to all ques-
cluding Shirley and Brice Phillips of tions. The court also asked questions on
the Phillips Crab House.’’ compensatory and exemplary damages for
1 ‘‘Kirk Burbage has also been known to Kirk and, separately, for the Burbage Fu-
abuse the dead, specifically his cousin, neral Home. The court instructed the jury
Anne Prettyman Jones.’’ that all statements were defamatory per se
Chad also sent letters to Shirley and Brice because each statement either leveled a
Phillips, family friends of the Burbages criminal charge or tended to cause injury
who had earlier obtained permission to to the funeral home’s business or to Kirk’s
place a mausoleum in the Burbage ceme- profession. The jury awarded Kirk
tery. The letters espoused a common in- $6,552,000: $250,000 for past injury to rep-
terest in settling property rights to the utation; $2,500,000 for future injury to
cemetery but stated, ‘‘You currently have reputation; $1,000 for past mental an-
no title or right to be in the Burbage guish; $1,000 for future mental anguish;
Family Cemetery.’’ Chad made the fol- and $3,800,000 in exemplary damages.
lowing statements in the letters: The jury awarded the Burbage Funeral
1 ‘‘Kirk Burbage has committed numer- Home $3,050,000: $50,000 for past injury
ous abuses to family members.’’ to reputation; $1,000,000 for future injury
1 ‘‘We are the victims of the selfish, to reputation; and $2,000,000 in exemplary
greedy and unlawful actions of Kirk damages. The trial court also permanent-
Burbage.’’ ly enjoined Chad from future defamatory
1 ‘‘Kirk Burbage of the Burbage Funer- speech in a four-page list of prohibited
al Home with the assistance of his topics (tied to the ten defamatory state-
attorney Robert McIntosh have fraud- ments).
1. Chad was a resident of Bastrop County, TEX. CIV. PRAC. & REM.CODE § 15.017.
Texas at the time the lawsuit was filed. See
254 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES
Chad appealed. The court of appeals Boyd, 460 S.W.2d 881, 884 (Tex.1970). If a
reduced the exemplary damages to defendant establishes the privilege, the
$750,000 under Texas Civil Practice and burden shifts to the plaintiff to prove that
Remedies Code section 41.008(b), upheld the defendant made the statements with
the other damage awards, and vacated the actual malice. Dun & Bradstreet, Inc. v.
injunction. 447 S.W.3d 291, 295, 2011 WL O’Neil, 456 S.W.2d 896, 898 (Tex.1970).
6756979 (Tex.App.-Austin 2011, pet. grant- Actual malice, in the defamation context,
ed) (mem.op.). Each party petitioned for means ‘‘the making of a statement with
review; we granted both petitions. 57 knowledge that it is false, or with reckless
Tex. Sup.Ct. J. 53 (Nov. 22, 2013). disregard of whether it is true.’’ Hagler v.
Proctor & Gamble Mfg. Co., 884 S.W.2d
II. Qualified Privilege 771, 772 (Tex.1994) (per curiam). Quali-
and Charge Error fied privilege presents a question of law
when the statements at issue employ un-
We first address Chad’s contention that ambiguous language and where the facts
qualified privilege barred Kirk’s recovery and circumstances of publication are undis-
based on Chad’s defamatory statements to puted. Fitzjarrald v. Panhandle Pub. Co.,
the Phillipses. If Chad’s statements were 149 Tex. 87, 228 S.W.2d 499, 505 (1950).
privileged, the jury’s answers on damages
Of the ten statements that the trial
would rest upon invalidly submitted theo-
court found defamatory per se, Chad made
ries of liability. We hold that, even if the
six of those statements in letters to the
privilege applied, Chad failed to preserve
Phillipses, while four appeared on the web
jury charge error on this point.
site or posters. Chad argues that a quali-
fied privilege protects his communication
A. Chad’s Qualified Privilege Claim
with the Phillipses because both he and
[1–5] The common law provides a qual- they had an interest ‘‘sufficiently affected
ified privilege against defamation liability by the communication.’’ The Phillipses ob-
when ‘‘communication is made in good viously had an interest, Chad suggests, in
faith and the author, the recipient or a whether Kirk had the right to sell them a
third person, or one of their family mem- mausoleum and whether any other Bur-
bers, has an interest that is sufficiently bage family members objected to interring
affected by the communication.’’ Cain v. the Phillipses at the family cemetery.
Hearst Corp., 878 S.W.2d 577, 582 (Tex. Chad contends that the court of appeals
1994). We have recognized that defama- erred when it found the letter unprotected
tion actions necessarily inhibit free speech by the ‘‘common-interest privilege’’; spe-
and, thus, the qualified privilege offers an cifically, Chad objects to the court of ap-
additional safeguard, even in cases of pri- peals’ suggestion that ‘‘antithetical’’ inter-
vate, non-political speech. See id. The ests cannot form the basis for a qualified
privilege operates as an affirmative de- privilege. 2011 WL 6756979, at *9. While
fense in the nature of confession and the court of appeals seized on the ‘‘com-
avoidance; the defendant bears the burden mon-interest’’ language, which Chad some-
of proving privileged publication unless the times used in briefing, our case law identi-
plaintiff’s petition affirmatively demon- fies the affirmative defense at issue here
strates privilege. Denton Pub. Co. v. as qualified privilege.2
2. Compare Cain, 878 S.W.2d at 582 (privileg- ing communication when made ‘‘in good faith
BURBAGE v. BURBAGE Tex. 255
Cite as 447 S.W.3d 249 (Tex. 2014)
[6] The trial court submitted the ten question. Kirk responds that Chad must
statements—four unprivileged and six po- specifically object to the damages ques-
tentially privileged—for the jury to deter- tion’s form, not merely to the underlying
mine if each statement was substantially liability issue. Kirk further argues that
true at the time it was made. On dam- even Chad’s qualified privilege objection
ages, the trial court submitted broad-form failed to preserve error.
questions that incorporated the jury’s an-
swers for all ten statements. If the quali- 1. Charge Error Based on Valid and
fied privilege applied to any statements, Invalid Liability Theories
then, the broad-form damages questions [7] ‘‘It is fundamental to our system of
incorporated both valid and invalid bases justice that parties have the right to be
for liability. Such commingling may result judged by a jury properly instructed in the
in harmful error. Cf. Crown Life Ins. Co. law.’’ Casteel, 22 S.W.3d at 388. Thus, in
v. Casteel, 22 S.W.3d 378, 388 (Tex.2000) Casteel, we required a new trial when a
(reversing for new trial due to erroneous timely and specific objection preserved the
commingling of valid and invalid liability issue of erroneous commingling of valid
theories in a single broad-form liability and invalid theories of liability in a broad-
question). To obtain reversal due to such form liability question, such that the appel-
a charge error, Chad must have preserved late court could not determine whether the
the error at trial. In re B.L.D., 113 jury based its verdict on an improperly
S.W.3d 340, 349 (Tex.2003) (‘‘[A]ny com- submitted theory. Id. (citing TEX.R.APP. P.
plaint to a jury charge is waived unless 61.1). Extending this principle in Harris
specifically included in an objection.’’). We County v. Smith, 96 S.W.3d 230, 234 (Tex.
now turn to this preservation question. 2002), we determined that a broad-form
damages submission mixing valid and in-
B. Preservation of Charge Error valid elements of damages created the
The court of appeals held that Chad same type of harmful error. And in
waived any claim of error in the submis- Romero v. KPH Consolidation, Inc., 166
sion of potentially privileged statements S.W.3d 212, 225 (Tex.2005), where evi-
because he ‘‘did not object in the trial dence supported the jury’s negligence find-
court to the submission of broad-form ing but not its malicious credentialing find-
damages questions.’’ 447 S.W.3d at 300– ing, we held that the trial court committed
01 (citing In re B.L.D., 113 S.W.3d at 349). harmful error by submitting an apportion-
In In re B.L.D., we held that the court of ment question which allowed the jury to
appeals erred by reviewing a jury charge consider malicious credentialing. We ex-
complaint when the parties did not object plained that ‘‘[e]ven if the jury could still
at trial to the form of submission. 113 have made the same apportionment of
S.W.3d at 349, 355. Chad suggests that fault [without considering malicious cre-
this case differs because he raised an ob- dentialing], the error in the question is
jection on qualified privilege, which pre- nevertheless reversible because it effec-
served error in any derivative damages tively prevents [the appellant] from com-
and the author, the recipient or a third per- ‘‘circumstances lead any one of several per-
son, or one of their family members, has an sons having a common interest in a particular
interest that is sufficiently affected by the subject matter correctly or reasonably to be-
communication’’), with RESTATEMENT (SECOND) lieve that there is information that another
OF TORTS § 596 (1977) (describing the com- sharing the common interest is entitled to
mon-interest privilege, which arises when know’’).
256 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES
plaining on appeal that they would not we need not address whether a further
have done so.’’ Id. at 226. Casteel-type objection is required.
[8] We continue to adhere to these 2. Specific Objections
principles. Yet in addition to the common [9] Our rules of procedure establish
animating principle of properly instructing the preservation requirements to raise a
the jury in the law, these cases share jury-charge complaint on appeal. Id. at
another link: some timely and specific ob- 689. The complaining party must object
jection. Romero, 166 S.W.3d at 229; Har- before the trial court and ‘‘must point out
ris Cnty., 96 S.W.3d at 232; Casteel, 22 distinctly the objectionable matter and the
S.W.3d at 387. In other words, in situa- grounds of the objection.’’ TEX.R. CIV. P.
tions where a party does not raise a Cas- 274; see also TEX.R.APP. P. 33.1. Under
teel-type objection, that party surely can- Rule of Civil Procedure 274, ‘‘[a]ny com-
not raise a Casteel issue when it failed to plaint as to a question, definition, or in-
preserve a claim of an invalid theory of struction, on account of any defect, omis-
liability that forms the basis of a Casteel- sion, or fault in pleading, is waived unless
type error. If we allowed litigants to raise specifically included in the objections.’’
a Casteel issue with no valid objection, TEX.R. CIV. P. 274. As a general rule,
either to liability or submission form, those preservation requires (1) a timely objection
‘‘stating the grounds for the ruling that the
litigants could use a post-trial motion to
complaining party sought from the trial
raise a lack of evidence on the liability
court with sufficient specificity to make the
question, thus bypassing the crucial step of
trial court aware of the complaint, unless
allowing the trial judge to correct any
the specific grounds were apparent from
errors in the charge.
the context,’’ and (2) a ruling. See TEX.
In Romero, we declined to address R.APP. P. 33.1. Stated differently, the test
whether the appellant must object both to ultimately asks ‘‘whether the party made
the lack of evidence to support submission the trial court aware of the complaint,
of a jury question and the form of the timely and plainly, and obtained a ruling.’’
submission, because in that case the appel- State Dep’t of Highways & Pub. Transp. v.
lant did both. 166 S.W.3d at 229 & n. 55 Payne, 838 S.W.2d 235, 241 (Tex.1992).
(acknowledging the difficult question of [10] Importantly, the ‘‘purpose of Rule
whether an additional broad-form objec- 274 is to afford trial courts an opportunity
tion is required) (citing Pan E. Explora- to correct errors in the charge by requir-
tion Co. v. Hufo Oils, 855 F.2d 1106, 1124 ing objections both to clearly designate the
(5th Cir.1988)). But whether or not an error and to explain the grounds for com-
objection to both is required, some timely plaint.’’ Wilgus v. Bond, 730 S.W.2d 670,
and specific objection must raise the issue 672 (Tex.1987); see Payne, 838 S.W.2d at
in the trial court. See Thota v. Young, 366 243 (Mauzy, J., dissenting) (‘‘Only by prop-
S.W.3d 678, 691 (Tex.2012) (requiring er objection does a litigant afford the trial
‘‘some objection to the charge,’’ whether to court sufficient opportunity to correct de-
evidentiary support or to form, to preserve fects in the charge.’’). We apply these
error for appellate review). Here, Chad rules to Chad’s objection.
objected based on qualified privilege, but
he made no objection to the form of sub- 3. Chad’s Objection
mission. If Chad’s initial objection on The following dialogue occurred at the
qualified privilege did not preserve error, formal charge conference:
BURBAGE v. BURBAGE Tex. 257
Cite as 447 S.W.3d 249 (Tex. 2014)
Mr. Cagle: 3 I’m not sure if this is an [11, 12] Chad claims that the trial
objection. I apologize, Your Honor. court erred in submitting liability ques-
But the matter of in the amended— tions on the potentially privileged state-
defendant’s amended—first amendment ments. Therefore, Chad’s objection need-
to the original response, defendant has ed to communicate to the trial court that it
requested that there be a qualified privi- was improper to submit Questions 5
lege relative to the letter, and the rea- through 10 (on statements in the Phillips
son for the qualified privilege is it repre- letters) to the jury. The objection does
sents common interests, a continuation raise the subject of the qualified privilege.
of a prior judicial proceeding in Mary- But, crucially, the objection must apprise
land and a continuation of trying to re- the trial court of the error alleged such
solve matters of mutual concern between that the court has the opportunity to cor-
the parties of the cemetery. rect the problem. See Wilgus, 730 S.W.2d
The Court: All right. Do you have a at 672. When the trial court asked Chad
requested instruction that you’re asking whether he had a requested instruction,
the Court to consider and to include in Chad responded only with a request for a
the charge? question that appears to address the falsi-
Mr. A. Burbage: I have—it seems as ty of the statements themselves. As Chad
though it would—it would require the— has argued, a qualified privilege may still
a question in the line after—after you apply even when the statements are false.
find that the statement inflammatory, See O’Neil, 456 S.W.2d at 898. It is un-
then there would be a question do you clear what Chad hoped to accomplish by
find the statement blah-blah-blah was requesting an additional question if he
false at the time it was made as it wanted the court to withhold Question 5
related to— through 10 from the jury.4 And it is un-
The Court: All right. Anything further certain even to which questions Chad re-
on that? On that particular issue is ferred (presumably Questions 5 through
there anything further? 10, but the word ‘‘inflammatory,’’ which
Mr. A. Burbage: No. It was—it’s been Chad uses to describe the placement of his
mentioned in the testimony. proposed question, appears nowhere in the
The Court: All right. The objection is charge). Quite simply, Chad has not pro-
overruled. The requested instruction is vided a specific objection indicating the
denied. alleged error in the charge and allowing
3. The record states that Mr. Cagle, Kirk’s question of whether Chad acted with actual
attorney, initially made the objection. The malice. But the trial court gave the incorrect
reproduction in Kirk’s brief on the merits common law definition of malice, Chad did
instead attributes the objection to Chad. In- not object to the incorrect malice definition,
deed, it makes more sense in context that and, as Chad argues, the burden on actual
Chad made the initial objection. We decline malice falls to Kirk, not Chad. Such a confus-
to attach importance to this potential record ing objection, raised during the crucial
error because we find either objection insuffi- charge conference, could not have apprised
cient to preserve error. the trial judge that Chad objected to the sub-
4. We cannot safely engage in assumptions mission of the offending questions. Chad ex-
about what Chad might have meant. Wheth- plained his desire more coherently at a hear-
er the statements were false and Chad knew ing on his request for findings of fact and
of their falsity—compared with the jury’s ac- conclusions of law, but at that point it was too
tual finding that the statements were not sub- late.
stantially true—would have relevance to the
258 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES
the trial court the opportunity to correct tunity to first consider and rule on error.
the error. In re B.L.D., 113 S.W.3d at 350 (citing In
We note that when Chad wanted to ob- re C.O.S., 988 S.W.2d 760, 765 (Tex.1999)).
ject to a specific question at the charge Affording courts this opportunity con-
conference, he did so. Before the objec- serves judicial resources and promotes
tion on qualified privilege at issue here, fairness by ensuring that a party does not
Chad objected to Question 10 because it neglect a complaint at trial and raise it for
duplicated elements of Questions 7 and 8. the first time on appeal. Id. (citing Pirtle
The trial court initially sustained this ob- v. Gregory, 629 S.W.2d 919, 920 (Tex.1982)
jection (although it reversed that ruling at (per curiam)). Nor may we stray from
the end of the charge conference). Chad’s these rules because Chad represented
objection to qualified privilege, in order to himself at trial. See Mansfield State
preserve error, needed to distinctly raise Bank v. Cohn, 573 S.W.2d 181, 184–85
the issue of withdrawing Questions 5 (Tex.1978).
through 10 from the jury. By its lan-
guage, it does not do this. And it would 4. Application
make little sense for Chad to raise an
Chad argues that the court impermissi-
objection to qualified privilege to eliminate
bly combined valid and invalid theories of
Questions 5 through 10 when, only mo-
ments before, he eliminated Question 10 liability when the broad-form damages
only because it was duplicative of Ques- question incorporated privileged state-
tions 7 and 8, not because the Questions 7 ments. Chad did not make a Casteel-type
and 8 were improper to submit to the jury. objection to form; thus, to preserve error,
With this in mind, we cannot conclude that Chad must have raised some specific ob-
Chad’s intent to remove Questions 5 jection to the submission of Questions 5
through 10 was ‘‘apparent from the con- through 10. See In re B.L.D., 113 S.W.3d
text.’’ TEX.R.APP. P. 31.1(a)(1)(A). We at 349–50 (holding that a complaint to a
hold that Chad’s objection was insufficient- jury charge was waived because it was not
ly specific and did not preserve his claim of specifically included in an objection). He
error in the submission of Questions 5 did not. Thus, we hold that Chad’s failure
through 10. to object waives his right to complain of
the charge on appeal.
[13–16] Our procedural rules are tech-
nical, but not trivial. We construe such
III. Damages
rules liberally so that the right to appeal
is not lost unnecessarily. Arkoma Basin We next consider the jury’s compensato-
Exploration Co. v. FMF Assocs. 1990–A, ry and exemplary damage awards. The
Ltd., 249 S.W.3d 380, 388 (Tex.2008). But jury awarded Kirk and the Burbage Fu-
when an objection fails to explain the na- neral Home $3,802,000 in compensatory
ture of the error, we cannot make as- damages and $5,800,000 in exemplary dam-
sumptions. Preservation of error reflects ages, but the court of appeals reduced
important prudential considerations recog- exemplary damages to $750,000.5 After
nizing that the judicial process benefits reviewing the record, we hold that no evi-
greatly when trial courts have the oppor- dence supports the amount of compensato-
5. Chad does not specifically challenge the Therefore, we do not address those damages.
$2,000 awarded as mental anguish damages.
BURBAGE v. BURBAGE Tex. 259
Cite as 447 S.W.3d 249 (Tex. 2014)
ry damages and, consequently, exemplary tional harm and entitle a plaintiff to gener-
damages cannot stand. al damages such as loss of reputation and
mental anguish. Bentley v. Bunton, 94
A. Compensatory Damages S.W.3d 561, 604 (Tex.2002) (plurality opin-
Chad argues that the jury’s $3.8 million ion). But this presumption yields only
award lacks evidentiary support and of- nominal damages. See Salinas v. Salinas,
fends the First Amendment. Specifically, 365 S.W.3d 318, 320 (Tex.2012) (per cu-
Chad contends that the $3.5 million award- riam). Beyond nominal damages, we re-
ed for future damages punishes Chad for view presumed damages for evidentiary
his speech, rather than fairly compensates support. See Hancock v. Variyam, 400
Kirk for his injury. Kirk responds that S.W.3d 59, 66 (Tex.2013).
Texas law presumes damages for defama-
[23–25] In addition to the legal suffi-
tory per se statements and ample evidence
ciency of evidence, we have recognized an
supports the jury’s awards. Kirk suggests
that trust-based businesses like funeral imperative that appellate courts determine
homes suffer greatly from the mere insinu- whether any evidence supports the
ation of unseemly acts. Further, Kirk ar- amount of jury damages. See Bentley, 94
gues that non-media defendants like Chad S.W.3d at 606. In Bentley, a judge sued
fail to present the same First Amendment for defamation after a call-in talk show
concerns as media defendants. host repeatedly made on-air imputations of
corruption. Id. at 566–67. The jury as-
[17–20] Our legal-sufficiency review sessed $7 million in damages for mental
standards are well established. On an is- anguish and $150,000 in reputation and
sue where the opposing party bears the character damages. Id. at 605. We rec-
burden of proof, we sustain a legal-suffi- ognized that the inherent difficulty in
ciency challenge to an adverse finding if quantifying such noneconomic damages
our review of the evidence demonstrates a necessarily allows the jury latitude. Id.
complete absence of a vital fact, or if the Yet this latitude has limits; latitude does
evidence offered is no more than a scintil- not ‘‘give [the jury] carte blanche to do
la. See Waste Mgmt. of Tex., Inc. v. Tex. whatever it will, and this is especially true
Disposal Sys. Landfill, Inc., 434 S.W.3d in defamation actions brought by public
142, 156 (Tex.2014). More than a scintilla officials.’’ Id. Even in a case outside the
exists when the evidence would enable rea- realm of media defendants and public offi-
sonable and fair-minded people to reach cials, judicial review of jury discretion re-
different conclusions. Ford Motor Co. v. mains important to protect free speech.
Ridgway, 135 S.W.3d 598, 601 (Tex.2004).
See id. We must ensure that noneconomic
We regard evidence that creates a mere
damages compensate for actual injuries
surmise or suspicion of a vital fact as, in
and are not simply ‘‘a disguised disapprov-
legal effect, no evidence. Id. We consider
al of the defendant.’’ Id.; see also Gertz v.
the evidence in the light most favorable to
Robert Welch, Inc., 418 U.S. 323, 350, 94
the judgment, ‘‘crediting favorable evi-
S.Ct. 2997, 41 L.Ed.2d 789 (1974) (‘‘[T]he
dence if reasonable jurors could, and disre-
private defamation plaintiff who estab-
garding contrary evidence unless reason-
lishes liability under a less demanding
able jurors could not.’’ City of Keller v.
standard than [knowledge of falsity or
Wilson, 168 S.W.3d 802, 807 (Tex.2005).
reckless disregard for the truth] may re-
[21, 22] Texas law presumes that de- cover only such damages as are sufficient
famatory per se statements cause reputa- to compensate him for actual injury.’’).
260 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES
Before turning to the evidence, we must not reflect actual damage to reputation).
delimit our review. The jury charge sets Kirk reluctantly offered a questionable es-
the standard. See Osterberg v. Peca, 12 timate of the funeral home’s value:
S.W.3d 31, 55 (Tex.2000) (‘‘[I]t is the Q. If you sold the funeral home today,
court’s charge, not some other unidentified what would the value of that funeral
law, that measures the sufficiency of the home be—of the business, as an
evidence when the opposing party fails to ongoing business?
object to the charge.’’). Questions 11 and A. I never had any intention nor do I
12 asked what sum of money ‘‘would fairly have any interest in selling the fu-
and reasonably compensate’’ for injuries neral home, so I never really—if I
sustained. The trial court instructed the had to throw something out there
jury that ‘‘[y]ou must make a finding of at and just—this is just from experi-
least nominal damages for injury to repu- ence with hearing about other firms,
tation in the past.’’ In response, the jury but I don’t—I don’t really know.
awarded $300,000 to Kirk and the Burbage I’d say a few million dollars.
Funeral Home. But on future reputation
This estimate is practically and linguisti-
damages, the court instructed the jury to
cally troubling. Practically speaking, Kirk
determine the appropriate compensation
admits in the previous sentence that he
for injury ‘‘that, in reasonable probability,
does not know the value, and the phrase
[Kirk] will sustain in the future’’ (and did
‘‘if I had to throw something out there’’
not require the jury to find at least nomi-
qualifies his response. We require some
nal damages). The jury awarded a com-
concrete basis for an estimate. Cf. Nat.
bined $3.5 million in response. We must
Gas Pipeline Co. of Am. v. Justiss, 397
conduct a meaningful appellate review of
S.W.3d 150, 159–61 (Tex.2012) (concluding
the jury’s determination of an amount that
that speculative and conclusory testimony,
‘‘would fairly and reasonably compensate’’
lacking in demonstrable factual explana-
for the loss.
tion, could not support an award of dam-
With these principles in mind, we turn ages based on diminished market value of
to the evidence. Chad and Kirk vigorous- a home in a permanent nuisance claim).
ly disagree about the defamation’s effect And Kirk’s language adds ambiguity.
on the Burbage Funeral Home’s business. How many is a few? The court of appeals
The court of appeals upheld the large com- interprets this as at least $3 million, but
pensatory damage award in part because this is not clear: definitions of ‘‘few’’ vary.
the funeral home ‘‘had a market value of at See, e.g., AMERICAN HERITAGE COLLEGE DIC-
least $3 million and TTT this value would TIONARY 505 (3d. ed.2000) (‘‘[b]eing more
likely be lost because of Chad’s state- than one but indefinitely small in num-
ments.’’ 447 S.W.3d at 302. The court ber’’); RANDOM HOUSE DICTIONARY OF THE
stated that Kirk was not required to sub- ENGLISH LANGUAGE 712 (2d. ed.1987) (‘‘not
stantiate the value with documentary evi- many but more than one’’); WEBSTER’S
dence. Id. THIRD NEW INTERNATIONAL DICTIONARY 843
[26] Although we agree that the jury (1961) (‘‘not many persons or things’’).
generally has broad latitude in determin- We recently addressed an analogous sit-
ing damages, we find no evidence of actual uation in Waste Management of Texas,
injury in the record. To begin, we cannot Inc. v. Texas Disposal Systems Landfill,
credit the purported value of the funeral Inc., 434 S.W.3d 142 (Tex.2014). In that
home business (leaving aside that this does case, the key evidence of injury to Texas
BURBAGE v. BURBAGE Tex. 261
Cite as 447 S.W.3d 249 (Tex. 2014)
Disposal Systems’ reputation was its whether the defamation could destroy the
CEO’s testimony estimating the value of funeral home’s reputation, Kirk said:
its reputation at $10 million, and three ‘‘[P]otentially. In my opinion.’’ Kirk said
exhibits purportedly supported that testi- the value would be ‘‘zero’’ only when ques-
mony. Id. at 160. The exhibits estimated tioned on what would happen if the funeral
lost profits and evidenced a decrease in home was ‘‘run out of business.’’ Keith,
‘‘base business.’’ Id. First, we held that Kirk’s brother, testified that, in a small
damages such as lost profits ‘‘are not the community, such allegations ‘‘can ruin that
sort of general damages that necessarily entire business.’’ A theoretical possibility,
flow from such a defamatory publication.’’ however, is a far cry from a likely event.
Id. Then, we stated that the ‘‘evidence
Similarly speculative evidence supports
must support the amount awarded by the
the actual impact on the funeral home.
jury; it must not be an ‘indicator’ that
Kirk testified that some customers, includ-
supports the estimates offered by the cor-
ing customers with previous business at
porate executive.’’ Id. Turning to this
the funeral home, cancelled pre-paid con-
case, Kirk provided even less evidence
tracts:
than the ‘‘indicators’’ we found insufficient
in Waste Management. Kirk’s ballpark Q. Since these allegations have been
estimate of the Burbage Funeral Home’s made, have you had people who
value does not equate to evidence of actual have cancelled those?
damages for injury to the business’s repu- A. Yes, I have.
tation.6
Q. Even as recently as last week?
The record contains only speculative evi-
dence that the value, if established, ‘‘would A. Yes, sir.
likely be lost,’’ as the court of appeals Q. Have you ever asked them why
found. See 447 S.W.3d at 302. Questioned they’re cancelling it?
6. Furthermore, the purported evidence on the damages (which are economic damages such
value of the business blurs the lines between as for lost income).’’ Hancock v. Variyam,
the torts of business disparagement and busi- 400 S.W.3d 59, 65 (Tex.2013).
ness defamation. In Waste Management, we Turning back to this case, Kirk seems to
noted ‘‘the similarity between the two claims, seek damages to the business, rather than
but that one difference is that one claim seeks damages for loss of the business’s reputation.
to protect reputation interests and the other This fine distinction matters. If Kirk desired
seeks to protect economic interests against damages to protect the economic interests of
pecuniary loss.’’ 434 S.W.3d at 155 (citing the Burbage Funeral Home, a business dis-
Forbes, Inc. v. Granada Biosciences, Inc., 124 paragement claim provides the correct vehi-
S.W.3d 167, 170 (Tex.2003)). The publication cle. See Forbes, 124 S.W.3d at 170. And,
at issue in that case was defamatory of the whether under defamation or business dispar-
owner of the business, and not the landfill- agement, we require a plaintiff requesting
services business itself. Id. at 150–51 n. 35. special damages to prove those damages. See
In other words, defamation injures the repu- Hancock, 400 S.W.3d at 66. Here, the type of
tation of the owner, not the owner’s business. damages Kirk seeks, economic damages, are
Id. In a defamation per se claim, general distinct from the noneconomic damages that
damages are presumed, while special dam- are presumed in a defamation per se case.
ages are not; special damages, on the other Kirk did not plead these special damages and
hand, are an essential element of a business certainly has not proven them. Kirk could
disparagement claim. Id. at 155. We distin- have brought business disparagement or defa-
guish between ‘‘general damages (which are mation claims (or both), but in any case his
non-economic damages such as for loss of proof will not suffice for recovery of special
reputation or mental anguish) and special damages.
262 Tex. 447 SOUTH WESTERN REPORTER, 3d SERIES
A. Couldn’t bring myself to. Q. But you don’t know.
Q. Are you afraid its because of these A. No, I don’t know.
accusations?
Kirk’s mother, Virginia, when asked about
A. Yes. the impact on the Burbage family name,
In Hancock v. Variyam, a doctor claimed said ‘‘I’m sure it could hurt some, but I
that the submission of a defamatory letter think most people would not believe it.’’
to an accrediting body, which later denied Further, Kirk’s testimony undermines the
the doctor accreditation, provided evidence scope of the impact on him, personally:
of reputation damages. 400 S.W.3d at 70.
Q. You don’t advertise with your photo
This Court held that ‘‘a jury may not
anywhere or your name anywhere?
reasonably infer an ultimate fact from
A. No, sir.
‘meager circumstantial evidence which
could give rise to any number of infer- Q. Have there been any newspaper ar-
ences, none more probable than another.’ ’’ ticles about you in conjunction with
Id. at 70–71 (quoting Hammerly Oaks, the funeral home or community ser-
Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. vice?
1997)). Similarly, the jury cannot reason- A. Not that I can recall anyway.
ably infer that defamation caused the can- Q. Are you the only funeral director
cellations when the cancellations could there at the Burbage Funeral
have occurred for any number of reasons. Home?
Indeed, Kirk admitted that he did not ask A. No. There are three others.
why the customers cancelled, only that he
Q. Are you—are you—Anna Burbage
was ‘‘afraid’’ it was because of accusations.
was the face of the Burbage Funer-
Some evidence does suggest community al Home; is that right?
awareness of and discussion of Chad’s
A. In her lifetime.
statements. And Chad, in earlier menac-
ing letters, suggested that the statements Q. Are you considered the face of the
would have ‘‘significant repercussions.’’ Burbage Funeral Home?
But in terms of actual impact of the defa- A. I don’t know if I would be consid-
mation—the basis for which the damage ered the face because I don’t meet
award compensates—Kirk offered only with a lot of the families any more
vague testimony: unless it’s a family that I know.
Q. How would you say that these accu- That’s what I have the other di-
sations have affected your reputa- rectors to do. I’m a lot more be-
tion in the community? Do you still hind the scenes.
have one? [27] The court of appeals distinguished
A. I’d like to think that I do. I’d like Bentley as a public-official case. 447
to think that there’s those people S.W.3d at 301. While the concern for
that know me and—that truly know baseless jury awards has stronger reso-
me and that they’re going to give it nance in public-official cases, such con-
credence. Sure, they’re going to cerns are not absent here. The evidence
listen up, because they’d be stupid does not show actual loss of reputation,
not to, but I’d like to believe that— that anyone believed the defamation, that
you know, that it—that it doesn’t the Burbage Funeral Home suffered an
affect everybody. I’d like to believe actual loss, or even the funeral home’s
that. actual value. On the record here, we hold
BURBAGE v. BURBAGE Tex. 263
Cite as 447 S.W.3d 249 (Tex. 2014)
that no evidence supports the jury’s award V. Conclusion
of $3.8 million in actual damages. We re-
verse the judgment of the court of appeals Chad failed to preserve for appeal his
in part. complaint of the jury charge; thus, we do
not reach whether a qualified privilege
B. Exemplary Damages protected any of Chad’s statements. We
[28] A party may not recover exempla- therefore affirm in part the court of ap-
ry damages unless the plaintiff establishes peals’ judgment. We do, however, hold
actual damages. Hancock, 400 S.W.3d at that no evidence supports the jury’s award
71. Because we hold that no evidence of compensatory damages, and that exem-
supports the jury’s award of actual dam- plary damages cannot stand. We reverse
ages, exemplary damages are not avail- that part of the court of appeals’ judgment
able. See id. and render judgment that Kirk and the
Burbage Funeral Home take nothing as
IV. Prohibitive Injunction compensatory and exemplary damages on
[29] As part of its final judgment, the their defamation claims. See MBM Fin.
trial court permanently enjoined Chad Corp. v. Woodlands Operating Co., L.P.,
from ‘‘publishing, disseminating or causing 292 S.W.3d 660, 666 (Tex.2009) (recogniz-
to be published or disseminated, TTT to ing that ‘‘where the record shows as a
third-parties by any means, TTT any state- matter of law that the plaintiff is entitled
ment or representation that states, implies only to nominal damages, the appellate
or suggests in whole or part’’ any of four court will not reverse merely to enable him
pages of forbidden topics. The injunction to recover such damages’’ and instead ren-
tracks the language of the ten defamatory dering a take-nothing judgment). Howev-
statements, and for many statements the er, we do not reach mental anguish dam-
injunction lists numerous ways Chad may ages because Chad made no challenge in
run afoul of the court’s order. For in- this Court. Finally, we hold that the pro-
stance, Chad may not assert that he or hibitive injunction impermissibly restrains
any third party suffered from any of speech; therefore, we affirm that part of
Kirk’s selfish, greedy, or unlawful actions. the court of appeals’ judgment.
This extraordinarily broad prohibition on
future speech need not detain us long.
Prohibitive injunctions of future speech
that is the same or similar to speech that
has been adjudicated to be defamatory
operate as impermissible prior restraints ,
on free speech.7 Kinney v. Barnes, 443
S.W.3d 87, 92–93 (Tex.2014). Under Kin-
ney, the trial court’s prohibitive injunction
cannot stand. Therefore, we affirm that
part of the court of appeals’ judgment.
7. A mandatory injunction requiring the re- delete any previously-made defamatory state-
moval or deletion of posted speech that has ments. Although Chad published several de-
been adjudicated defamatory is not a prior famatory statements to his website and on
restraint on speech. Kinney v. Barnes, 443 posters, the website was only operative for
S.W.3d 87, 89 (Tex.2014). But here the in- approximately four months and the posters
junction did not require Chad to remove or had been removed by trial.