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Zumo & MIDKIFF,L.L.P.

THREE ALLEN CENTER, 333 CLAY, SUITE 4500
HOUSTON, TEXAS 77002
(713) 651-0590
FAX (71 3) 651-0597

March 5,2008

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

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

Dear Ms. Deere:

Enclosed for filing with the Court, please find the following:

1. Notice of Hearing

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

3. Proposed Order

Please stamp the enclosed extra copies of this letter and documents.

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

Thank you for your assistance.

Enclosures
.w-
Ve t ly your

Patrick Zumm
d
Ms. Jerry Deere March 5,2008
Brazoria County District Clerk

cc: Via Facsimile

Mr. Bruce Gaible Mr. Dennis Henderson
Eric Garza Pro Se
Hays, McConn, Rice & Pickering P.O. Box 2490
400 Two Allen Center Fort Meyers, Florida 33932
1200 Smith Street Fax: (239) 463-3550
Houston, Texas 77002

William Book
Matt Child
Tekell, Book, Matthews & Limmer, L.L.P.
1221 McKinney, Suite 4300
Houston, Texas 770 10
(7 13) 222-9542
(713) 655-7727 (Fax)
Cause No. 29996
H. WALKER ROYALL, 9 IN THE DISTRICT COURT OF
§
Plaintiff, 9
VS. 8 BRAZOFUA COUNTY, TEXAS
0
WRIGHT W. GORE, JR., 6
DENNIS HENDERSON, 9
WRTGHT W. GORE, 111, and 6
WESTERN SEAFOOD COMPANY 9
6
Defendants. 9 239THJUDICIAL DISTRICT

NOTICE OF HEARING

Please take notice that Plaintiffs Motion for Partial Summary Judgment on his Status

as a Private Figure is set for hearing on Wednesday, March 26,2008, at 9:00 a.m. @

Respectfully submitted,

ZUMMO & MIDKIFF, L.L.P

By:

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

ATTORNEYFOR PLAINTIFF
H. WALKERROYALL
Certificate of Service

I hereby certify that a true and correct copy of the foregoing Notice of Hearing has
been served on all counsel of record below in accordance with the Texas Rules of Civil Procedure,
on March 5,2008.

Mr. Bruce Gaible
Eric Garza
Hays, McConn, Rice & Pickering
400 Two Allen Center
1200 Smith Street
Houston, Texas 77002

William Book
Matt Child
Tekell, Book, Matthews & Limmer, L.L.P.
1221 McKinney, Suite 43 00
Houston, Texas 770 10
(713) 655-7727 (Fax)

Dennis Henderson
Pro Se
P.O. Box 2490
Fort Meyers, Florida 33932
Cause No. 29996
H. WALKER ROYALL, 5 IN THE DISTNCT COURT OF
§
Plaintiff, §
VS. 0 BRAZORIA COUNTY, TEXAS
§
WRIGHT W. GORE, JR., §
DENNIS HENDERSON, 0
WRIGHT W. GORE, 111, and §
WESTERN SEAFOOD COMPANY 0
0
Defendants. 0 23gTHJUDICIAL DISTRICT

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

H. Walker Royall, plaintiff, moves for partial summary judgment on the issue of his status

as a private figure. h support of this Motion, plaintiff would show to the Court the following:

I. Plaintiffs Claims

Plaintiff has sued defendants for libel, slander, defamation and conspiracy. Plaintiffs claims

arose in 2004 when defendants published defamatory statements about plaintiff on a website known

as ''scandalin£ieeport.com." Despite notice to defendants that the statements on the website were

not true, defendants continued to publish the statements. Defendants also added new defamatory

material to the first website, published at least five additional defamatory websites, used billboard

and newspaper advertising to direct others to the websites, and encouraged republication of the

defamatory statements by third parties. Defendants also defamed plaintiff through statements in

newspapers, magazines, brochures and by means of verbal communications. Plaintiff seeks actual

damages and exemplary damages based on this conduct by defendants. All defendants have entered
general denials.

11. Plaintiffs Status As A Private Figure

In any libel, slander or defamation case, the plaintiffs status as a public or private figure
determines the burden of proof. A public figure plaintiff must prove actual malice by clear and

convincing evidence. Turner v. KTRK Television, Inc., 38 S.W. 3d 103,116 (Tex. 2000). A private

figure plaintiff need only prove that the defendant made the defamatory statement. Snead v. Redland

Aggregates, Ltd, 998 F.2d 1325, 1334 (sthCir. 1993). Whether the plaintiff is a public or private

figure is an issue that the Court must decide. HBO v. Harrison, 983 S.W. 2d 3 1,36-37 (Tex. App.

- Houston [14' Dist.] 1998, no pet.)

111. Summary Judgment Standard

When a plaintiff moves for summaryjudgment, he must prove the essential elements of the

claim. MMP v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Partial summary judgment is appropriate

when the case is not fully adjudicated on the motion. Tex. R. Civ. P. 166a(e). A plaintiff must show

that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law.

Wesson v. Jeferson Savings & Loan Ass 'n, 641 S.W.2d 903,904-905 (Tex. 1982). While the non-

moving party is entitled to an assumption that all evidence favoring him is true, Nixon v.

Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985), there are no fact issues on the

issue of plaintiffs status. The deposition testimony of defendants Western Seafood (Excerpts from

the Oral Deposition of Western Seafood Company through Wright W. Gore, Jr. ("Western Dep."),

Feb. 13,2008, are attached to this motion as Exhibit A), Wright W. Gore, Jr. (Excerpts from the Oral

Deposition of Wright W. Gore, Jr. ("Gore Jr. Dep."), Feb. 13,2008, are attached to this motion as

Exhibit B) and Wright W. Gore, 111 (Excerpts from the Oral Deposition of Wright W. Gore, I11
1

("Gore TI1 Dep."), Feb. 14,2008, are attached to this motion as Exhibit C) establish that plaintiff is

a private figure under the law.' The Court is able to decide this case on the law and the summary

judgment evidence attached to this motion.

IV. The Summary Judgment Evidence Establishes That Plaintiff Is A Private Figure

Plaintiff is not a public official; he holds no public office, neither elected nor appointed. He

is therefore not a public official. Huckabee v. Time Warner Entertainment Co., 19 S.W. 3d 413,420

(Tex. 2000). Plaintiff also does not meet the requirements of a public figure plaintiff established by

the United States Supreme Court and the Texas Supreme Court. A private citizen can be treated as

a public figure if (1) the controversy is public; (2) the plaintiff had more than a trivial or tangential

role in the controversy, and (3) the defamation was related to the plaintiffs participation in the

controversy. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974); Trotter v. Jack Anderson

Enterprises, 8 18 F.2d 43 1,433-34 (S" Cir. 1987); WFAA-TV, Inc. v. McLemore, 978 S.W. 2d 568,

571 (Tex. 1998).

Defendants Wright W. Gore, Jr. and Wright W. Gore, I11 have both testified that they learned

of the proposed marina proj ect when they were invited to attend a meeting at the office of a Houston

attorney, Charles Leyendecker, during the summer of 2003. (Western Dep. at 52-54; Gore I11 Dep.

at 130-31) They first met plaintiff at the meeting. Both testified that they had not heard of plaintiff

prior to the meeting. (Western Dep. at 58-59; Gore I11 Dep. at 128-30)

In addition, both of the Gores testified that there was no public discussion or news coverage

of the proposed marina project at the time they were invited to the meeting. (Western Dep. at 7 1-73;

'1n his individual capacity, Wright W. Gore, Jr. testified that he would give the same answers that the gave
as the corporate representative of Western Seafood (Gore Jr. Dep. at 12-13).
2003, when Western Seafood Company filed a lawsuit in federal court seeking to enjoin the United

States Corps of Engineers from granting a permit for construction of the marina. (Western Dep. at

73-74)

In deciding whether a statement concerns a public issue, the trial court should examine

whether people were debating the issue and whether the media was covering the debate. WFAA-TV;

Inc. v. McLemore, 978 S.W. 2d at 572. By the admission of the Gore defendants, the marina project

was not apublic issue at the time that plaintiff was asked by the City of Freeport to became involved.

Plaintiff therefore did not "inject" himself into a public issue or invite public attention to it.

WFAA-TV; Inc. v. McLemore, 978 S.W. 2d at 572-73. Defendant Wright Gore, 111 testified that

plaintiff was "reclusive" and consistently refused to discuss the marina project with reporters.

(Gore III Dep. at 236-37)

The deposition testimony of defendants is competent summary judgment evidence. Tex. R.

Civ. P. 166a(c)(i). Admissions of a party opponent will support summary judgment. Tex. R. Civ.

P. 166a(c)(ii).There is no dispute as to any material fact concerning plaintiffs status as a private

figure, and plaintiff is entitled to partial summary judgment as a matter of law that he is a private

figure, and not a public figure.

WHEREFORE, PREMISES CONSIDERED, H. Walker Royall, plaintiff, moves and prays

that he has partial summary judgment in his favor that he is a private figure for purposes of his

actions for libel, slander, defamation and conspiracy to commit these torts.
Respectfully submitted,

ZUMMOn
& MIDKIFF, L.L.P.

By:
Patrick Z%293450
State Bar No.
Three Allen Center
333 Clay, Suite 4500
Houston, Texas 77002
(7 13) 65 1-0590 (Tel.)
(7 13) 65 1-0597 (Fax)

ATTORNEYFOR PLAINTFF
H. WALKERROYALL

Certificate of Service

I hereby certify that a true and correct copy of the foregoing has been served on all
counsel of record below in accordance with the Texas Rules of Civil Procedure, on R arch 2 , 2 0 0 8 .

Mr. Bruce Gaible
Eric Garza
Hays, McConn, Rice & Pickering
400 Two Allen Center
1200 Smith Street
Houston, Texas 77002

William Book
Matt Child
Tekell, Book, Matthews & Lirnrner, L.L.P.
1221 McKinney, Suite 4300
Houston, Texas 770 10
(713) 655-7727 (Fax)

Dennis Henderson
Pro Se
P.O. Box 2490
Fort Meyers, Florida 33932

Patrick Zumrno
0
NO. 2004-29996

H . WALKER ROYALL, ) IN THE DISTRICT COURT OF
)
Plaintiff, )
1
) BRAZORIA COUNTY, TEXAS
)
WRIGHT W. GORE, JR. , 1
ET AL. , 1
)
Defendants. ) 238TH JUDICIAL DISTRICT

ORAL AND VIDEOTAPED DEPOSITION OF
WESTERN SEAFOOD COMPANY
THROUGH WRIGHT W. GORE, JR.

FEBRUARY 1 3 , 2008

THE ORAL AND VIDEOTAPED DEPOSITION OF

WESTERN SEAFOOD COMPANY through Wright W. Gore, Jr.,

produced as a witness at the instance of the Plaintiff,

and duly sworn, was taken in the above-styled and

numbered cause on the 13th of February, 2008, from 9 : 1 4

a.m. to 12:45 p . m . , before Johnnie E. Barnhart, CSR in

and for the State of Texas, reported by machine

shorthand, at the offices of Hays,,McConn, Rice &

Pickering, 1200 Smith Street, Suite 400, Houston,

Texas, pursuant to the Texas Rules of Civil Procedure

and the provisions stated on the record or attached

hereto.

I

CONTINENTAL COURT REPORTERS, INC. 'm

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2

A
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- P
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- A
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FOR THE PLAINTIFF:

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

FOR THE DEFENDANT WESTERN SEAFOOD COMPANY AND WRIGHT W.
GORE, JR. :

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

FOR THE DEFENDANT WRIGHT W. GORE, 111:

Mr. Matt Childs
Tekell, Book, Matthews & Lirnrner, LLP
1221 McKinney, Suite 4300
Houston, Texas 77010

THE VIDEOGRAPHER:

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

24 1 ALSO PRESENT:

25 Mr. Wright W. Gore, I11

CONTINENTAL COURT REPORTERS, INC.
INDEX

Appearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Stipulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

WRIGHT W. GORE, JR.

Examination by Mr. Zurnmo . . . . . . . . . . . . . . . . 5

Changes and Signature ........................... 120

Reporter's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

EXHIBITS

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

CONTINENTAL COURT REPORTERS, INC.
EXHIBITS

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

CONTINENTAL COURT REPORTERS, INC.
~p

THE VIDEOGRAPHER: This is the videotaped

deposition of Wright W. Gore, Jr. The date is

February 13, 2008.. The time is 9:14 a.m. and we're now

on the record.

WRIGHT W. GORE, JR.,

having been first duly sworn, testified as follows:

EXAMINATION
BY MR. ZUMMO:

Q. Would you tell us your name, please.

A. Wright Gore.

Q. Mr. Gore, there's another Wright Gore. I
think he is in the room. And are you Wright Gore, Jr.?

A. Yes.

Q- Your son is Wright Gore, III?

A. Yes.

Q Is Wright Gore, Sr. still with us?

A. No.

Q- So, of all the Wright Gores that you know

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

A. Yes.

Q- Nobody else?

A. No.

Q. The first deposition that we're here for
today, sir, is what is known as a deposition of a

corporate representative, and it's the deposition of

CONTINENTAL COURT REPORTERS, INC
letter that you remember receiving?

A. Nothing.

Q. D i d Western Seafood or you personally discuss

the subject of the letter with Wright Gore, III?

A. I don't believe so.

Q. Did Western Seafood or you personally discuss

the subject of the letter with Dennis Henderson?

A. No, I don't believe so. I really don't recall

discussing it with anyone.

Q- And I had asked some questions about - - well,
I want to save this topic for later if we get to it. I

think you've generally answered it, and if we have the

time today, 1 / 1 1 go into specifics. But it was about

statements in the press where your son was identified

as a spokesman for Western Seafood. But I think I

would rather get to the topic of the marina with you.

So, tell me the first contact that

Western Seafood had with anybody on the subject o f t h e

development of a marina at a location either that

included Western's property or that was near Western's

property.

A. One more time, please.

Q. What was the first contact Western Seafood had
with anybody where the subject was possible development

of a marina that either was going to possibly include

CONTINENTAL COURT REPORTERS, INC.
Western's property or be nearby Western's property?

A. I believe that would have been some inquiries

from Lee Cameron.

Q Please tell us who Lee Cameron is.
A. He's the executive director, the chairman or

whatever his title is, of the Freeport Economic

Development Corporation.

Q. Tell me when you remember these inquiries

being made.

A. Years ago.

Q. How many years ago? In the 1990s?
A. Well, you know, five years ago. Just whenever

the first - - the first conversations and information

began to be distributed and talked about regarding a

marina or the concept that was to result from that

~ a r i t i m eTrust Study that was done.

Q. Can you place from your memory whether the
first conversation with Lee Cameron took place before

you knew about the Maritime Trust Study or afterwards?

A. No. I'm not sure whether it was before or

after or concurrent.

Q. How did you first learn about the Maritime
Trust Study?

A. I believe he showed that to me or showed me a

copy of i t .

CONTINENTAL COURT REPORTERS, INC.
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representing Walker Royall and he would state to me:

Here's what Walker will pay for your property and

here's what Walker will do and here's what he thinks it

is worth. And then early on there was what I recalled

a Leyendecker meeting where my son and I,

representatives of the city, it was the city manager,

there was a city councilman there, Smith I believe it

was, and Walker Royall was there, I think, later. And

this was exploratory talks that set out in general what

the marina proponents hoped to accomplish and what they

hoped to do in Freeport.

(2- Before we get to the substance of that
meeting, can you tell me how much time there was

between the first conversation you had with Lee Cameron

and this Leyendecker meeting?

A. That's what I want to clarify. I'm not

certain what came first, which, and I'm certainly not

certain how much time went by, although both these

events, the solicitations from Lee Cameron and the

Leyendecker meeting, were early on in the - - were early

on in this effort.

Q- Document No. 264, the first page of the
Maritime Trust Study, does it show a date of October

2002?

A. Yes.

CONTINENTAL COURT REPORTERS, INC
time you had either met or heard of Walker Royall?

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

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

Again, it is a small town and they own the bank and at

some point I would have heard of Walker Royall, I'm

certain.

Q- But you can't put your - -
A. No.

Q. You can't say for sure if you had ever heard
of him before this meeting?

A. I can't say positively, no.

(Exhibit No. 11 marked)

Q. (By Mr. Zurnmo) Did Western Seafood enter into
a lease of some property originally with Nicholas

Taylor, an executor of an estate of Robert Lee Blaffer?

A. The man I spoke to was an attorney named Ken

Clayton.

Q. And this lease has a history, including some
litigation. Correct?

A. Yes.

Q. In the course of that, you knew that Walker
Royall had some involvement in that piece of property?

A. Well, I knew the Blaffer family. I didn't

know who all of the heirs were.

Q. I'm just asking if this lease that was

CONTINENTAL COURT REPORTERS, INC.
specifics of your location. Do you ever remember the

subject of a marina being discussed for Freeport before

this time period where you had conversations with Lee

Cameron and the Leyendecker meeting?

A. Well, I remember that there was one years ago,

but nothing specific about a revival.

Q When you say there was one - - a proposed
marina or an actual marina?

A. There was an actual marina years ago right

along that very property that we're talking about.

Q. When you say years ago, how many - - what

period of time?

A. Back in the fifties. Long, long gone.

Q. When Lee Cameron - - whichever happened first,
whether it was Lee Cameron calling you or the

Leyendecker meeting, had there been any public

discussion of a marina project at that time?

A. I don't recall any specifics.

Q. What I mean is do you recall anything reported

in the newspaper or anything that was discussed with

the Freeport City Council about a marina before you

were contacted either by the people inviting you to the

Leyendecker meeting or by Lee Cameron?

A. I don't remember anything.

Q. Did you make it a practice of monitoring,

CONTINENTAL COURT REPORTERS, INC.
keeping track of what was on the agenda for the I

Freeport City Council before this marina project?

A. No. Not as much as I should.

Q. Did you ever have any involvement with

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

A. Years ago we used to attend. One member of

the family attended each and every city council

meeting, and that went by the wayside several years

prior to the marina proposal.

Q. When you say several years, would it have been

sometime in the eighties, sometime in the nineties?

A. The seventies and eighties. Certainly not
I
into the nineties.

Q. Not into the nineties?
A. Not into the nineties. 1
Q. Would that practice of going to the city

council meetings, did that end about the time that you

moved from Freeport to Lake Jackson?

A. Actually, our regularly scheduled attendance

probably ended prior to that.

Q. At the time of the Leyendecker meeting, was

there any public controversy or public dispute about

this proposed marina project?

A. No. We were all - - we were all talking, what I

CONTINENTAL COURT REPORTERS, INC.
I considered to be good faith, and working towards

compromising our needs and the needs of the marina.

Q From Western Seafood's recollection, anybody
at the company, at what point did Western Seafood

believe that it was involved in a public controversy

about the marina?

A. That's an easy one. I was going through the

mail, as I typically do, and happened upon a notice

sent to me by the U.S. Army Corps of Engineers

regarding an application for a permit to construct some

docks on the old river in Freeport. Just by chance, I

looked at this and with some alarm, recognized the fact

that the application included removal of our docks

along our 330 feet and replacing those with the marina

project docks. And for whatever reason, there were

only four days to respond to it. I still have to this

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

notice. And that's when things - - at that moment

that's when things went from cooperative effort in my

opinion to an adverse situation there, because I felt

we had been betrayed and we only had four days to get

over to Galveston and get Judge Kent to stop that for

the time being.

Q. I want to try to put a time period on this.
Do you remember when you opened your mail and saw this

CONTINENTAL COURT REPORTERS, INC.
letter or notice from the Corps of Engineers?

A. Specifically I don't - - it may have been late

'03, maybe September '03.

Q. What I can offer you, there are services where

w e can - - at least lawyers can look at the filings in

federal court online. It is a service called Pacer.

And the Pacer report shows two lawsuits that involve

Western Seafood against the City of Freeport. One of

them was filed on September 25, 2003, and a second one

was filed on April 12, 2004. Does that help you place

this Corps of Engineers notice or when you learned

about it?

A. Then I feel certain it was September of '03.

Q. Since you said you only had a few days, if the
lawsuit was filed on September 25, 2003, then your best

memory is you opened this notice a few days before

that?

A. A few days.

Q. And it was - - it is your definite impression
that public controversy started at that time?

A. At that moment. It is just - - at least our

concern and our fear that we were under attack.

Q. I want to go back to one thing you said in

answering these questions about docks, because you said

that the permit application that you received for the

CONTINENTAL COURT REPORTERS, INC.
N O . 2004-29996

H. WALKER ROYALL, ) IN THE DISTRICT COURT OF
)
Plaintiff, )
)
VS . ) BRAZORIA COUNTY, TEXAS
1
WRIGHT W. GORE, J R . , 1
ET AL. , )
1
Defendants. ) 238TH JUDICIAL DISTRICT

REPORTER'S CERTIFICATION
DEPOSITION OF WESTERN SEAFOOD THROUGH
WRIGHT W. GORE, JR.
TAKEN ON FEBRUARY 13, 2008

I, JOHNNIE E. BARNHART, Certified Shorthand Reporter,
hereby certify to the following:

That the witness, WRIGHT W. GORE, J R . , was duly
sworn by the officer and that the transcript of the
oral deposition is a true record of the testimony given
by the witness;

That the deposition transcript was submitted on
--------------------I 2008, to the witness or to the
attorney for the witness for examination, signature and
return to me by ----------------------, 2008;

That the amount of time used by each party at the
deposition is as follows:

Mr. Patrick Zummo - 03:04:54
Mr. Bruce Gaible - 00:00:00
Mr. Matt Childs - 00:00:00

That pursuant to information given to the
deposition officer at the tim.e said testimony was
taken, the following includes counsel for all parties
of record:

Mr. Patrick Zummo - attorney for plaintiff
Mr. Bruce Gaible - attorney for defendants
Western Seafood Company and Wright W. Gore, Jr.
Mr. Matt Childs - attorney for defendant
Wright W . Gore, I11

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

Further certification requirements pursuant to Rule
203 of TRCP will be certified to after they
-
have
occurred.

Certified to by me this day of -- @&---I

2008.

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

CONTINENTAL COURT REPORTERS, INC.
NO. 2004-29996

H. WALKER ROYALL, ) IN THE DISTRICT COURT OF
)
Plaintiff, 1
1
) BRAZORIA COUNTY, TEXAS
1
WRIGHT W. GORE, JR. , 1
ET AL. , 1
)
Defendants. ) 238TH JUDICIAL DISTRICT

ORAL AND VIDEOTAPED DEPOSITION OF
WRIGHT W. GORE, JR.

FEBRUARY 13, 2008
................................................

THE ORAL AND VIDEOTAPED DEPOSITION OF

WRIGHT W. GORE, J R . , produced as a witness at the

instance of the Plaintiff, and duly sworn, was taken in

the above-styled and numbered cause on the 13th of

February, 2008, from 1:15 p.m. to 2:32 p.m., before

Johnnie E. Barnhart, CSR in and for the State of Texas,

reported by machine shorthand, at the offices of Hays,

McConn, Rice & Pickering, 1200 Smith Street, Suite 400,

Houston, Texas, pursuant to the Texas Rules of Civil

Procedure and the provisions stated on the record or

attached hereto.

CONTINENTAL COURT REPORTERS, INC.
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FOR THE PLAINTIFF:

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

FOR THE DEFENDANT WESTERN SEAFOOD COMPANY AND WRIGHT W.
GORE, JR. :

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

FOR THE DEFENDANT WRIGHT W. GORE, 111:

Mr. Matt Childs
Tekell, Book, Matthews & Limrner, LLP
1221 McKinney, Suite 4300
Houston, Texas 77010

THE VIDEOGRAPHER:

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

ALSO PRESENT:

Mr. Wright W. Gore, I11

CONTINENTAL COURT REPORTERS, INC.
INDEX

I Appearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Stipulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

WRIGHT W. GORE, JR.

Examination by Mr. Zummo . . . . . . . . . . . . . . . . 4

Changes and Signature ........................... 48
Reporter's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

EXHIBITS

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

CONTINENTAL COURT REPORTERS, INC.
THE VIDEOGRAPHER: This is the videotaped

deposition of Wright W. Gore, Jr. The date is

February 1 3 , 2008. The time is 1:15 p.m. and we're now

on the record.

WRIGHT W. GORE, JR.,

having been first duly sworn, testified as follows:

EXAMINATION

BY MR. ZUMMO:

Q Would you tell us your name, please?
A. Wright Gore, Jr .

Q- Mr. Gore, where were you born and raised?
A. Freeport, Texas.

Q- Where did you go to school?
A. I attended Brazosport High School and Lamar

University.

Q- Did you obtain a degree from Lamar University?
A. Yes.

Q. What was the degree and what was your major

field of study?

A. Bachelor of business administration,

management.

Q. When did you receive that degree?
A. December of '70.

Q. Have you attempted any postgraduate formal
education?

CONTINENTAL COURT REPORTERS, INC.
A. Not any that I would recall.

(Exhibit Nos. 14 and 15 marked)

Q. (By Mr. Zumrno) I just want to identify these.
I don't believe I have any questions about them

specifically, but these are discovery responses that

were made by you individually in this lawsuit, the

libel case filed by Walker Royall. And Exhibit 14 are

your answers to interrogatories, Exhibit 15 are your

responses to requests for production. They were both

dated March 16, 2005. Do you recall answering those

interrogatories and verifying your answers?

A. Yes.

Q. Have you had a chance to review those answers
to interrogatories and requests for production in

preparation for your deposition today?

THE WITNESS: Did we look at those

yesterday?

MR. GAIBLE: I believe so.

A. Yes.

Q. (By Mr. Zumrno) Is there anything in those
answers to interrogatories and requests - - responses to

requests for production that you would add to or change

today?

A. No.

Q- I asked you a number of questions this morning

- - -

CONTINENTAL COURT REPORTERS, INC.
in your capacity as a representative of Western Seafood

Company. Do you recall that you've been here most of

the day on that?

A. Yes, sir.

Q- If I were to ask you those same questions in
your individual capacity, Wright W. Gore, Jr., this

afternoon, would your answers be the same?

A. Yes.

Q In terms of you personally looking at the
website scandalinfreeport.com, was there ever any time

when you were looking at it where you felt like you

were doing it as an individual and not as a person

connected with your company, or did you ever make a

distinction?

A. I always felt I was looking after the

company's best interests reviewing that.

Q. As an individual, did you authorize Wright
Gore, 111 to use your name on the "about us" section of

the Scandal in Freeport website?

A. No.

MR. GAIBLE: Objection to form. And just

for point of clarification, in his individual capacity

or as corporate - -

MR. ZUMMO: In his individual capacity.

MR. GAIBLE: Did you understand the

CONTINENTAL COURT REPORTERS, INC.
NO. 2004-29996

H. WALKER ROYALL, ) IN THE DISTRICT COURT OF
)
plaintiff, 1
1
) BRAZORIA COUNTY, TEXAS
)
WRIGHT W. GORE, JR. , )
ET AL. , )
)
Defendants. ) 238TH JUDICIAL DISTRICT

REPORTER'S CERTIFICATION
DEPOSITION OF WRIGHT W. GORE, JR.
TAKEN ON FEBRUARY 13, 2008

I, JOHNNIE E. BARNHART, Certified Shorthand Reporter,
hereby certify to the following:

That the witness, WRIGHT W. GORE, JR., was duly
sworn by the officer and that the transcript of the
oral deposition is a true record of the testimony given
by the witness;

That the deposition transcript was submitted on
-,---------_----,I 2008, to the witness or to the
attorney for the witness for examination, signature and
return to me by 2008;
That the amount of time used by each party at the
deposition is as follows:

Mr. Patrick Zummo - 01:05:26
Mr. Bruce Gaible - 00:00:00
Mr. Matt Childs - 00:00:00

That pursuant to information given to the
deposition officer at the time said testimony was
taken, the following includes counsel for all parties
of record:

Mr. Patrick Zummo - attorney for plaintiff
Mr. Bruce Gaible - attorney for defendants
Western Seafood Company and Wright W. Gore, Jr.
Mr. Matt Childs - attorney for defendant
Wright W. Gore, I11

I further certify that I am neither counsel for,

CONTINENTAL COURT REPORTERS, INC.
related to, nor employed by any of the parties or
attorneys in the action in which this proceeding was
taken, and further that I am not financially or
otherwise interested in the outcome of the action.

Further certification requirements pursuant to Rule
203 of TRCP will be certified to after they have
occurred.

Lj@
Certified to by me this - - - - day of
2008.
@-&----
,!mthw-~~-- ------------------____
JOHNNIE E. BARNHART, TEXAS CSR NO. 976
Expiration Date: December 31, 2008
CONTINENTAL COURT REPORTERS, INC
Firm Registration No. 61
2777 Allen Parkway, Suite 600
Houston, Texas 77019-2166
(713) 522-5080

CONTINENTAL COURT REPORTERS, INC.
NO. 2004-29996

H. WALKER ROYALL, ) IN THE DISTRICT COURT OF
)
Plaintiff, )
1 .
) BRAZORIA COUNTY, TEXAS
)
WRIGHT W. GORE, JR., )
ET AL. , )
1
Defendants. ) 238TH JUDICIAL DISTRICT

ORAL AND VIDEOTAPED DEPOSITION OF
WRIGHT W . GORE, I11

FEBRUARY 14, 2008

THE ORAL AND VIDEOTAPED DEPOSITION OF

WRIGHT W. GORE, 111, produced as a witness at the
I
instance of the Plaintiff, and duly sworn, was taken in 1
the above-styled and numbered cause on the 14th of

February, 2008, from 9:13 a.m. to 4:04 p.m., before

Johnnie E. Barnhart, CSR in and for the State of Texas,

reported by machine shorthand, at the offices of

Tekell, Book, Matthews & Limmer, LP, 4300 One Houston

Center, 1221 McKinney, Suite 4300, Houston, Texas,

pursuant to the Texas Rules of Civil Procedure and the

provisions stated on the record or attached hereto.

A b
EXHIBIT
CONTINENTAL COURT REPORTERS, INC. -
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P -
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I FOR THE PLAINTIFF:

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

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

FOR THE DEFENDANT WRIGHT W. GORE, 111:

Mr. Matt W. Childs
Tekell, Book, Matthews & Lirnrner, LLP
1221 McKinney, Suite 4300
Houston, Texas 77010

THE VIDEOGRAPHER:

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

ALSO PRESENT:

Mr. Wright W. Gore, Jr.

CONTINENTAL COURT REPORTERS, INC.
INDEX

Appearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Stipulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

WRIGHT W. GORE, I11

Examination by Mr. Zummo . . . . . . . . . . . . . . . . 5

Changes and Signature ........................... 239

Reporter's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 244

EXHIBITS

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

CONTINENTAL COURT REPORTERS, INC
EXHIBITS (Cont'd)

No. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
Copy of MBulldozed" Cover
No. 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Excerpt from "Bulldozed"
No. 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
Excerpt from nBulldozed"
No. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Excerpt from "BulldozedM
No. 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Excerpt from "Bulldozed"
No. 2 8 . ; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
Excerpt from "Bulldozed"
No. 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Excerpt from "Bulldozed"

CONTINENTAL COURT REPORTERS, INC.
THE VIDEOGRAPHER: This is the videotaped

deposition of Wright W. Gore, 111. The date is

February 14th, 2008. The time is 9:13 a.m. And we're

now on the record.

WRIGHT W. GORE, 111,
having been first duly sworn, testified as follows:

EXAMINATION

BY MR. ZUMMO:

Q- Tell us your name.
A. My name is Wright Gore.

Q. Is that your full, legal name?
A. Technically, I would have to say my full name

is Wright Gore, 111.

Q- Okay. Have you ever given a deposition
be£ore?

A. No, this is my first deposition.

Q. Have you ever been to a deposition before?
A. I have attended a deposition before.

Q. Then you have some idea what the procedure is?
A. Yes, sir. I have a general idea.

Q. You know that you just took an oath and it's
the same oath that's given to witnesses in the

courtroom who testify in front of a judge or a jury?

A. Yes, sir.

Q You know that that means that the answers you

CONTINENTAL COURT REPORTERS, INC.
Q. Do you harbor any personal animosity toward

Walker Royall?

~ A. No, sir. No, I - - but let me tell you, I very

1 much dislike what he has threatened our family with.
And I - - but aside from that, I never knew who Walker

was before this eminent domain attempted taking. I

never heard his name or - - and I - - and aside from

that, I'm sure I never would have.

Q. When did you first hear Walker Royall's name?

A. At Mr. Leyendecker's office.

Q. Do you have in your memory the date of the
meeting at Mr. Leyendecker's office?

A. To the best of my recollection, that was in

September of 2002, I believe.

Q. And is there any way that you can double-check

that date? Would you go back to calendars or travel

records or anything like that?

A. I can't think of anything at the time.

However, what I can tell you is that I understand that

in previous depositions taken in this case, there was a

reference to a Leyendecker meeting, quote, unquote, and

that is the event that I'm speaking of.

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

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

CONTINENTAL COURT REPORTERS, INC.
meeting with other people on the subject of the marina

at Mr. Leyendecker's office?

A. That is correct.

Q So, if other people have talked about that --
A. I feel confident that - -

Q. - - you assumed they're all talking about the

same thing?

A. Oh, yes. Yes, sir.

Q- Okay. So, before this meeting that you think
happened in September 2002, you'd never heard of Walker

Royall?

A. No, sir - - no, wait. No. That's not true.

Lee Cameron had mentioned his name to me on a number of

occasions before that meeting. No, wait. Wait. I'm

sorry. Let me - - give me a minute here.

Q. Do you want to take just a second to think
about it?

A. Yeah.

Q. Okay.
A. Yeah.

No. I think my original answer was
right. To the best of my recollection, the first time

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

at Leyendecker's office. Yes. He had given me one of

his business cards at that meeting.

CONTINENTAL COURT REPORTERS, INC.
Q. Do you - - when had you first heard of a
proposed marina in the vicinity of Western Seafood's

property on the Old Brazos River?

A. It would have been just before that meeting at

Leyendecker's office. It would have - - I can't tell

you exactly. It may have been a few days before; it

may have been a couple of weeks before. But I think it

was pretty close to the time that that meeting was held

at Mr. Leyendecker's office.

Q Okay. Was it your understanding or your
belief that the meeting that you were invited to attend

was a discussion among landowners and city officials

about the marina?

A. All I know is that my father called me and he

says: Wright, Lee Cameron wants me to come up there - -

talking about to Houston - - and he wants me to listen

to something about a marina they have proposed, and I'd

like you to come with me.

And so, I did.

Q. And before that phone call from your father - -

and I think - - was that just within a few days of the

meeting?

A. I think it would have been, yes.

Q. Okay. Not months ahead of time or anything
like that?

CONTINENTAL COURT REPORTERS, INC.
A. No. No, sir.

Q. Okay. Was that phone call, then, the first
that you had heard of any proposed marina in the

vicinity of the Western Seafood property on the Old

Brazos River?

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

Q. Okay. And let me back up. Did you even know
when your father made the phone call that there was a

proposal to put a marina at that location versus just a

marina in general?

A. I knew - - my father had mentioned to me that

there had been a marina proposed near Western Seafood's

operations. That was the reason for the concern. That

was the reason that he wanted me there, because he

wanted us both to listen intently to what they had to

say.

(2- And since you've told me that was your first
knowledge of this proposed marina, is it fair to say

that there had been no media coverage or newspaper

articles or talk around town about this proposed

marina?

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

were a number of articles written many years ago about

the marina that were the subject, the front page and

full-color photos, I think, but I don't remember when

CONTINENTAL COURT REPORTERS, INC.
those were. To the best of my recollection, they were

not before this meeting at Leyendeckerfs office or much

before then, but I don't - - I don't have any specific

recollection of seeing any media coverage about it

before I was at that meeting.

Q. Okay. So, are you telling me by that, that
you've learned about these years before articles since

the meeting?

A. Yes, sir. I did.

Q. Okay. They weren't on your mind at the time
of the meeting?

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

think they could have been, no.

Q. Interrogatory No. 11, it's on Page 6 , has a
general question. And let me ask you the same way I've

asked you about the earlier ones. Other than the

documents that you've produced in this case, do you

have any information about any investigation that you

have done that you took to verify the accuracy of any

statements made about Walker Royall on the web site

that we haven't already talked about?

A. Yes.

Q. Okay. First, what statements about Walker
Royall would you have other information besides your

documents today? And here's how I want to - - I'd like

CONTINENTAL COURT REPORTERS, INC.
A. No. I put that on there hoping that he would

have a change of heart and that he would decide to act

like a businessman instead of a government thug.

Q. Did you ever make statements on your Scandal

in Freeport web site specifically with regard to the

proposed public meeting at the church that "finally

Walker Royall is going to come out and talk"? Do you

remember that?

A. I don't have any specific recollection. ~ u t

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

Q- Well, were you expecting Mr. Royal1 to be
giving interviews to people and making public

statements like you were?

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

it certainly didn't seem to be that that was initially

his plan. He seemed reclusive.

Q. When, if ever, do you believe he stopped
seeming to be reclusive?

A. I think he's acted reclusive through the whole

shenanigans. I say that because virtually every time a

new member of the media contacted me, they asked me,

"Do you know how to get ahold of Walker Royall?"

And I'd give them the phone number. And

then they would call me back and say, "Why won't he

CONTINENTAL COURT REPORTERS, INC.
talk to me?"

I'd say, " I don't know."

I was told that by producers at Channel

13, Channel 11, KTRH, Houston Chronicle, KPRC 950, The

Facts, and on and on.

Q. Earlier in the deposition I asked you some

questions about personal financial statements. And if

I'm repeating myself, I apologize, but I want to make

sure that I've asked you this question. I just don't

recall if I asked it. I know your attorney would have

objected if I did.

What was your personal net worth for each

of the years 2004 through the present?

MR. CHILDS: Well, Pat, we've objected to

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

going to instruct the witness not to answer. You

didn't ask it earlier.

MR. ZUMMO: I knew I had asked about

documents, et cetera.

MR. CHILDS: Right.

MR. ZUMMO: And - - but I - - and I just

wanted to make sure that it was on our record.

THE WITNESS: Can I take a break for a

moment ?

MR. ZUMMO: Let's take a break. And I

CONTINENTAL COURT REPORTERS, INC.
NO. 2004-29996

H. WALKER ROYALL, ) IN THE DISTRICT COURT OF
)
Plaintiff, )
1
VS . ) BRAZORIA COUNTY, TEXAS
)
WRIGHT W . GORE, JR . , )
ET AL., )
)
Defendants. ) 238TH JUDICIAL DISTRICT

REPORTER'S CERTIFICATION
DEPOSITION OF WRIGHT W. GORE, I11
TAKEN ON FEBRUARY 14, 2008

I , JOHNNIE E. BARNHART, Certified Shorthand Reporter,
hereby certify to the following:

That the witness, WRIGHT W. GORE, 111, was duly
sworn by the officer and that the transcript of the
oral deposition is a true record of the testimony given
by the witness;

That the deposition transcript was submitted on
----------------I 2008, to the witness or to the
attorney for the witness for examination, signature and
return to me by ------------------------, 2008;
That the amount of time used by each party at the
deposition is as follows:

Mr. Patrick Zummo - 05:49:01
Mr. Bruce Gaible - 00:00:00
Mr. Matt Childs - 00:00:00

That pursuant to information given to the
deposition officer at the time said testimony was
taken, the following includes counsel for all parties
of record:

Mr. Patrick Zummo - attorney for plaintiff
Mr. Bruce Gaible and Ms. Diana J . Shelby -
Attorneys for defendants Western Seafood
Company and Wright W. Gore, Jr.
Mr. Matt Childs - attorney for defendant
Wright W. Gore, 111

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

Further certification requirements pursuant to Rule
203 of TRCP will be certified to after they have
occurred.

Certified to by me this - --- day of
2008.
%@-& ------------I

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

--

CONTINENTAL COURT REPORTERS, INC.
Cause No. 29996
H. WALKER ROYALL, 5 IN THE DISTRICT COURT OF
§
Plaintiff, §
VS. 0 BRAZORIA COUNTY, TEXAS
§
W'RIGHT W. GORE, JR., §
DENNIS HENDERSON, §
WRIGHT W. GORE, 111, and §
WESTERN SEAFOOD COMPANY §
§
Defendants. 0 23gTHJUDICIAL DISTRICT

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

On this day, the Court heard the plaintiffs motion for partial summary judgment on

plaintiffs status as a private figure. Having considered the motion, the summaryjudgment evidence

attached to the motion, and the pleadings of the parties, the Court finds that there is no genuine issue

of material fact, and that plaintiff is entitled to partial summary judgment under Rule 166a(a)(e) of

the Texas Rules of Civil Procedure. It is therefore

ORDERED, ADJUDGED AND DECREED that plaintiff is a private figure for purposes of

this action.

Signed on ,2008.

JUDGE PRESIDING
CAUSE NO. 2004-29996

H. WALKER ROYALL § IN THE DISTRICT COURT OF
§
v. § BRAZORIA COUNTY, TEXAS
§
WRIGHT W. GORE and §
DENNIS HENDERSON § 239TH JUDICIAL DISTRICT

DEFENDANTS’ RESPONSE TO PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
ON HIS STATUS AS PRIVATE FIGURE

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, Wright Gore, Jr. Western Seafood Company, and Wright Gore, III,

Defendants in the above-entitled and numbered cause, and file this their Response to Plaintiff’s

Motion for Partial Summary Judgment on his Status as a Private Figure and would respectfully show

unto this Honorable Court as follows:

I.

Plaintiff has filed a partial Motion for Summary Judgment contending that he is a private

figure for his defamation action against Defendants. However, Plaintiff’s claims are without merit

and his Motion for Partial Summary Judgment should be denied.

II.
Public Figure

A person may be considered a public figure if :

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

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

3. The alleged defamation is germane to the Plaintiff’s participation in the controversy.
WFAA TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).

In considering a libel Plaintiff’s role in a public controversy, the Court may consider:

1. Whether the Plaintiff sought publicity surrounding the controversy;

2. Whether the Plaintiff had access to the media;

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

Id. at 573.

In addition, a person who is drawn into a particular controversy may be considered a public

figure. Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974); Swate v. Schiffers, 975 S.W.2d 70,

76 (Tex. App. - - San Antonio 1998, pet. denied). A person who injects himself into a controversy

may be considered a public figure. A.H. Belo Corp. v. Rayzor, 644 S.W.2d 71, 83-84 (Tex. App. - -

Fort Worth 1982, ref. nre).

III.
Evidence

In answers to written discovery in Cause No. G-03-811, the City of Freeport states that Lee

Cameron, a City official, was contacted by a Blaffer heir who advised that the Blaffer heirs were

interested in the development of the marina project. Ultimately, Royall, a Blaffer heir, sent a Letter

of Intent dated June 26, 2002 to the City. (See Exhibit “1”).

The beginning of the marina project pre-dates the June 26, 2002 Letter of Intent. Royall sent

the Letter of Intent to Mayor Jim Barnett with the City of Freeport. That letter, authored and signed

by Royall, begins the formal process for the development of the controversial marina project. That

letter states in part as follows:

“The City and the Developer (the parties) are working on a plan in which the
Developer would acquire the land necessary for the development and build the
project based on mutually agreeable specifications”... “The Developer would
maintain ownership of the project and the parties agree to consider a profit sharing
program in which the risks may be shared.” (Emphasis added).

Further, Royall agreed to use his “best efforts to acquire land owned by third-parties” for use

in the marina project.

(See Exhibit “2").

The Maritime Trust Study (published in October, 2002) was initiated in September, 2001.

(See Exhibit “3”, page 3). As part of that study, river front property owners were interviewed by

the Maritime Trust team. See (Exhibit “3”, page 5). Those owners include the Blaffer family

(Plaintiff) who reported to the Maritime Trust team that they wanted to place their property into the

marina project and participate in the re-development. (See Exhibit “3”, page 53).

By August, 2003, news articles were already being written about the controversial marina

project. (See Exhibit “4”). The Facts published an article stating that City Council had approved

the Development Agreement with Freeport Waterfront Properties. The article also identified the

partnership as heirs of the Blaffer family (Royall). Other articles had concerns with respect to a

single developer (Plaintiff) developing this project without opening the project to other competitive

bidders. There was also concern that the City of Freeport was taking too much of the risk with

respect to the financing of this particular project. (See Exhibit “4”).

In September, 2003, the City of Freeport entered into a Development Agreement. That

agreement is with Freeport Waterfront Properties, L.P. and states that Royall is the individual who

is the “project developer’s representative” with full authority to act on behalf of the project

developer with respect to all matters arising out of said agreement. Royall is the person identified in

the agreement as the one who is responsible for overseeing all aspects of design, construction and

development of the project, and to work closely with the City’s consultant, on behalf of the project

developer. (See Exhibit “5”, page 24). (Emphasis added).
The contract also provides that Royall “shall have acquired or arranged to acquire”..... all

....”the Gore land, whether via the City’s assistance in negotiating a direct purchase of such lands by

the project developer, or via the City’s exercise of its power of eminent domain and conveyance of

such lands to the project developer”. (See Exhibit “5”, pages 18-20). (Emphasis added). Further,

the contract provides that to the extent the City attorney determines it is legally able to do so, the

City would cooperate with and assist Royall by legal action in the acquisition of the Gore land.

(See Exhibit “5”, page 32).

In addition to his agreement to take over full authority for the project and agreeing to initiate

and acquire (via eminent domain proceedings) private land, such as the “Gore: land, Royall agreed

to take a six million dollar loan of taxpayer money from the City of Freeport and its citizens (See

Exhibit “5", page 8). In other words, when Royall satisfied his commitment to acquire the private

land (via eminent domain) he was to receive six million taxpayer dollars.

Also, in September, 2003, Defendant Western Seafood Company discovered that the United

States Army Corp of Engineers had sought a permit application to install piers impeding

Defendant’s navigation rights. As a result, Defendant Western Seafood initiated a lawsuit against

the City of Freeport, Freeport Economic Development Corporation, and the United States of

America. That case was eventually decided in The United States Court of Appeals (5th Circuit).

(See Exhibit “6").

From the inception of the Development Agreement in September, 2003, it was evident that

Plaintiff and/or the City of Freeport and/or the Freeport Economic Development Corporation

planned to initiate condemnation proceedings to acquire land from Defendant Western Seafood

Company (also identified as the Gore land). (See Exhibit “5”).
At the preliminary injunction hearing in Cause No. G-03-811 on December 5, 2003, the

Court heard arguments from the City of Freeport Attorney. The original plan was for the City to

own and operate the marina. However, John Hightower, the City of Freeport attorney, stated that the

Blaffer family “came forward and said, hey, we would like to do this project for you” (i.e., build the

marina project). Mr. Hightower also judicially admits that the developer (Plaintiff) would be the

person who would make a subsequent permit application to the U. S. Army Corp of Engineers. (See

Exhibit “7”).

At the status conference for Cause No. G-03-CV-811 on April 8, 2004, Mr. Hightower stated

that Mr. Royall was the principal and the person in charge. (See Exhibit “7”).

The Freeport Economic Development Corporation initiated its condemnation suit against

Western Shellfish Corporation in Cause No. CI-032662 in the County Court at Law Number Two of

Brazoria County on August 16, 2004. The Freeport Economic Development Corporation initiated

its condemnation proceeding against Western Seafood Company in Cause No. CI-032664 in County

Court at Law Number Three of Brazoria County on August 16, 2004. The Freeport Economic

Development Corporation received an unfavorable judgment in both of those cases and have

appealed the trial court’s decision. (See Exhibit “6"). Plaintiff initiated his defamation lawsuit on

August 9, 2004.

Attached in Exhibit “4” is a flyer authored by the City of Freeport and at least twenty-one

(21) news articles discussing the controversial marina project, Defendant Western Seafood

Company and/or Plaintiff. The flyer identifies Plaintiff, as a general partner, who “came forward” to

establish a partnership with the City of Freeport for the purposes of the marina project.

IV.
Public Issues and Public Attention

There is no doubt that the development of a large marina in Freeport was of interest and

importance to the citizens of Freeport. The Facts had reported front page stories about the

proposed marina and its developer. There is no doubt that Plaintiff, who had the exclusive authority

on behalf of the developer, had more than a trivial or tangential role in the project and the

surrounding controversy. The alleged website at issue discusses the controversial nature of the

project and Plaintiff’s role in it.

When a City contracts to loan six million taxpayer dollars to a developer, is that a public

issue? When a City and a developer contract to take land by eminent domain and convey that land

to a developer, is that a public issue? When a City contracts to build a marina in its “downtown” and

not have ownership of the marina, is that a public issue? When a City contracts with a developer

and gives that developer the authority to oversee and acquire private land via the City’s eminent

domain powers, is that a public issue? Every answer is yes. The marina project was and has been a

public issue for over 4 years.

As evidenced by the numerous articles, people in the City of Freeport were and are

discussing the marina project. Some people have supported it while others have opposed and

criticized it. The citizens of Freeport are going to be affected (whether bad or good) by the marina

project and its effects, or lack thereof, on the alleged revitalization of downtown Freeport. Royall,

as the person with full authority and the general partner with the City of Freeport has more than a

trivial or tangential role. He is the “principal” and “in charge” of the entire project. His contract

with the City of Freeport not only gives him the authority to pursue eminent domain proceedings

against private landowners (via the City’s assistance) but also requires that he do it.
Any alleged defamatory statements speak to the issues of the marina project controversy,

eminent domain, and Royall’s involvement.

V.
Royall’s Involvement

Royall initiated this controversy by going to the City to get this “sweetheart” deal. The City

did not open a competitive bid process to other developers. The City decided to make a loan to

Royall of six million taxpayer dollars and only required that Royall put up one million. As one

reporter stated “this deal is upside down.” Why couldn’t Royall provide his own capital or go to a

bank for a loan? Are the taxpayers of Freeport a financial lending institution? Of course not. When

Royall decided to take six million taxpayer dollars, take authority for eminent domain proceedings to

take land from other private landowners and have that land conveyed to his limited partnership, he

sought or acquired the publicity that he has received. He has been identified as the lead person from

the day he started this process in 2002 or before. He has had meetings with City officials, he has

sent letters to City officials, he has entered into a contract with the City of Freeport, and he has been

identified in Court documents and Court hearings by the City. All of this occurred before the

publication of any website that is the subject of this case.

Royall has had plenty of access to City Council members, local media and the citizens of

Freeport regarding the marina project. There was nothing that would have prevented him from

speaking to anyone as it relates to this project.

Considering all of the evidence starting with his Letter of Intent, his Maritime Trust Study

and his Development Agreement, Royall has put himself at the front of the line when it comes to the

marina project and this controversy. All of these activities involved his increased risk of exposure to

any alleged injury to reputation that he is claiming in this lawsuit. He did not have to prepare and

sign a letter of intent with a “plan” to take other people’s property. He did not have to agree to have
“full” authority over the marina project. He did not have to agree to be “responsible” for the

marina project. He did not have to agree to take a loan of six million taxpayer dollars from the City

of Freeport. He did not have to agree to acquire other people’s land via eminent domain. But he

did. When he did, he agreed to be a limited purpose public figure.

WHEREFORE, PREMISES CONSIDERED, Wright Gore, Jr., Western Seafood

Company, and Wright Gore, III, Defendants in the above-entitled and numbered cause pray that

Plaintiff’s Motion for Partial Summary Judgment on his Status as a Private Citizen be denied and for

such other and further relief, both general and special, at law and in equity, to which these

Defendants may be justly entitled.

Respectfully submitted:

TEKELL, BOOK, MATTHEWS & LIMMER

BY:
WILLIAM BOOK
TBA NO. 02622000
MATT W. CHILDS
TBA No. 04202050
4300 One Houston Center
1221 McKinney
Houston, Texas 77010
(713) 222-9542
(713) 655-7727 (Facsimile)

ATTORNEY FOR DEFENDANT
Wright Gore, III

HAYS, MCCONN, RICE & PICKERING

BY:
BRUCE C. GAIBLE
TBA NO. 07567400
400 Two Allen Center
1200 Smith Street
Houston, Texas 77002
(713) 654-1111
(713) 650-0027 (Facsimile)

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

CERTIFICATE OF SERVICE

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

________________________________
Matthew W. Childs
CAUSE NO. 2004-29996

H. WALKER ROYALL § IN THE DISTRICT COURT OF
§
v. § BRAZORIA COUNTY, TEXAS
§
WRIGHT W. GORE and §
DENNIS HENDERSON § 239TH JUDICIAL DISTRICT

ORDER

BE IT REMEMBERED that on this day came on to be considered Plaintiff’s Motion for

Partial Summary Judgment on his Status as a Private Figure in the above-entitled and -numbered

cause, and the Court having read the motion and response is of the opinion that this motion should in

all things be denied. It is therefore,

ORDERED, ADJUDGED AND DECREED that Plaintiff’s Motion for Partial Summary

Judgment on his Status as a Private Figure is DENIED.

SIGNED this _________ day of ____________________, 2008.

___________________________________________
JUDGE PRESIDING

APPROVED:

TEKELL, BOOK, MATTHEWS & LIMMER

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

HAYS, MCCONN, RICE & PICKERING
______________________
BRUCE C. GAIBLE
TBA NO. 07567400
400 Two Allen Center
1200 Smith Street
Houston, Texas 77002
(713) 654-1111
(713) 650-0027 (Facsimile)

ATTORNEY FOR DEFENDANTS
Wright W. Gore, Jr. and
Western Seafood Company
03/28/2008 1 6 : 4 8 FAX 713 651 0597 P A T R I C K ZUMMO mOOl/OOS

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

To: NameiFirmICompany: Fax No.: VoicelDifficulty Nu.:
(1) Mr. Bruce Gaible (71 3) 650-0027
Hays. McConn. Rice & Pickcrine
(2) Mr. Bill Book/Mr. Matt Childs (713) 655-7727
Tekell, Book. Matthcws & Lirnrner
(3) Mr. Dennis Henderson (239) 463-3550
(4) Ms. Jcrrv Deere 979-864-1 056

Total # of Pages:
Date: March 28. 2008 Account Code: 063
From: Patrick Zummo
#MESSAGE.

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

NOTICE OF CONFIDENTIALITY
The infurmulion containcd in and trnnsmittcd with this facsil~lileis

1. SUBJECT TO THE ATTORNEY-CLIENT PR1VILEL;E;
2. ATTORNEY WORK PRODUCT; OR
3. CONFIDENTIAL.

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

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

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03/28/2008 1 6 : 4 8 FAX 713 651 0 5 9 i P A T R I C K ZUMMO

LAWOFFICESOF PATRICK
ZUMMO
THREE Al.l,l<NCENTER. 333 CLAY. SUITE 4500
HOUSTON, TF;XAS 77002
(713)651-0590
FAX (713)651-0597

March 28.2008

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

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

Dear Ms. Deere:

Enclosed for filing with the Court, please find the following:

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

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

Thank you for your assistance.

Very truly yours,

Patrick Zumrno /

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03/28/2008 1 6 : 4 9 FAX 713 651 0 5 9 i P A T R I C K ZUMMO

Cause No. 29996

H. WALKER ROYALL, 5 IN THE DISTRICT COURT OF
§
Plaintiff, 5
VS. 5 BRAZONA COIJNTY, TEXAS

WRIGHT W. GORE, JR.,
DENNIS HENDERSON,
WRIGHT W. GORE, 111, and
WESTERN SEAFOOD COMPANY
5
Defendants. 4 239THJI.JJIlCIAL DISTRICT

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

H. Walker Royall, plaintiff, makes the additional submission to the Court requested at the

hearing on plainlifrs motion for partial summary judgment on his status as a private fiy r c , and

would show to the Court the following:

Plaintiff's counscl has receive defendants' additional briefing, which is somewhat in excess

of thc onc paragraph urder by the Court. The WFAA - TV. Inc. v. McLemore case does not address

the issue, and the facts of McLemore are not helpful because the plaintiffs involvement and the

incident giving rise to the publicity were simultaneous. The following Texas cases state that

defendants cannot turn plaintiff into a public figure, and cannot turn the marina project into a "matter

of public concern," by their own unilateral actions. Outlet Co, v. Inr'l Srczrrily Group, Inc., 693

S.W. 2d 621,626 (Tex. App. - San Antonio 1985, no writ) ("The broadcasts themselves could not

serve to makc Mcdlin a public figure"); Durham v. Cannan Communicu~ion~-,
645 S.W. 2d 845,850

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

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03/28/2008 1 6 : 4 9 FAX 713 651 0597

into a public figure by publicizing the defamation itself"). Poe v. Sun Anronio Express-News Gorp.,

590 S.W. 2d 537 (Tex. Civ. App. - San Antonio 1979, nu writ) (Newspaper did not make plaintiff

a public figure by publishing claim against plaintiff and encournging district attorney to file charges

against him.) Defendants' alleged "evidence" has been held irrelevant by the courts, and does not

show that plaintiff was a limited purpose public figure.

Defendants did not address the facts of Hutchinson v. Proxmire, where the professor's

involvement in the grant application proccss had gone on for sometime before there was any public

issue. In cach o r the other cases cited by defendants, none of the plaintiffs wcrc inviled to be part

of a project that was initiated by the local governments involved. Plaintiff again urges the Court to

hold defendants to their deposition admissions that plaintiff was a "reclusive" figure and that the

public controversy did not begin until Western Scalaod Company filed its lawsuit in September

2003.

WHEREFORE, PREMISES CONSIDERED, pkdintiff moves and prays that he have parrial

summary judgment in this matter that he is a private figure and not a public figure.

L

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03/28/2008 1 6 : 4 9 FAX 713 651 0597

RcspectC~lllysubmitted,

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

ATTORNEY FOR PI.AINTIFF
H. WALKERROYALL

3

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03/28/2008 1 6 : 4 9 FAX 713 651 0597 P A T R I C K ZUMMO

Certificate o f Service

I hereby certify that a true mid correct copy of the foregoing Reply has been served on all
counscl of record below in accordance with thc Texas Rules of Civil Procedure, on March 27,2008.

Mr. Brucc Gaible
Eric Garza
Hays, McConn, Rice & Pickering
400 Two Allen Center
1200 Smith Street
Houston, Texas 77002

William Book
Malt Child
Tekell, Book, Matthews & Limmer, L.L.P.
1221 McKi~mey,Suitc 4300
Houston, Texas 77010
(713) 655-7727 (Fax)

Dennis Hendcrson
Pro Se
P.O. Box 2490
Fort Meyers, Florida 33932
Patrick Zummo Is/
Patrick Zummo

4

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Tekell, ~ o o k ,att thews t3 Limrner, L.L.P.
1221 MaKinney, Suite 4300
Houston, Texas 72010-2010
(213) 222-9542
Fax: (213)655-2222

FAX COVER SHEET
To: Hon. Patrick E. Sebesta (979) 864-1056
Judge, 23gthJudicial Disuict Court
Brazoria County, Texas

Bruce Gaible (713) 650-0027
Hays, McConn, Rice & Pickering

Patrick Zumrno (713) 651-0597
Zumrno & Midkiff, L.L.P.

Mr. Dennis Henderson
Pro Se

From: Matt Childs
Date: March 28,2008
Operator: Cathy Bell
File: Royal1 v. Gore, et al; 1171011749
.. ... -..-A
DOCUMENTS
,,,.
, ,,- NWMBER OF PAGES
See attached Response to Plaintiff's Reply to Defendants'
Response to Plaintiffs Motion for Patrial Summary
..Judgment
.- ... on his Status as Private Figure . , ,,. ... .--
-23

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

PAGE 1123%RCVD AT 312812008 3:46:47 PM [Central Davliqht Timell SVR:HMRPmFAXIO1DNIS:O1 CSID: DURATION (mrnmssl:0Qm16
TEKELL,BOOK, MATTHEWS & LIMMER, L.L.P.
A REGISTERED LIMITED LIABILITI PARTNERSHIP

ATTORNEYS AT LAW
4300ONE HOUSTON CENTER
CORPUSCHRISTIOFFICE
1221 McKlNNEY 71 1 N. CARANCAHUA
HOUSTON. TEXAS 77010 SUITE nm
MATTHEW W. CHILPS MRPUSCHRISTI,TEXAS78475
TELEPHONE 1713) 222-0542
PARTNER TELEFPX (7131 855-7727 TELEPHONE lJB1I8836100
*O*RD CERTIFIEWEIIBONhL INJURY TRIAL LAW TELEFAX 13811 883.6103
i E U B BOARD OF LEOAL SPECIPJlZRIION E-MAIL lbml@mml.sorn
E-MAlLcctbml@swbell.nat
E-MAIL mchlldsmlhml mm

March 28,2008

Mr. Jerry Deere Via Fax 979-864-1056
Brazoria County District Clerk & Regular Mail
111 E.Locust, Ste. 500
Angleton, Texas 775 15

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

Dear Sir:

Enclosed please find Defendants' Response to Plaintiffs Reply to Defendants' Response
to Plaintiff's Motion for Partial Summary Judgment on his Status as Private Figure with
proposed Order thereon for filing in the papers of the above captioned case.

Please place a notation in the margin of the enclosed copy of said pleading(s) advising of
such filing and return to the undersigned.

By copy of this letter we are forwarding a copy of the enclosures to counsel listed below.

Thank you for your customary courtesy d ass1 tance in this matter.
PI 'l

MWC/cb
#11710/1749
Enclosures

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

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CAUSE NO. 2004-29996

H. WALKER ROYALL 4 IN THE DISTRICT COURT OF
§
4 BRAZORIA COUNTY, TEXAS
§
WRIGHT W. GORE and §
DENNIS HENDERSON 5 23gTHJUDICIAL DISTRICT

DEFENDANTS' RESPONSE TO PLAINTIFF7SREPLY
T C ) T
MOTION FOR PARTIAL SUMMARY JUDGMENT
ON HIS STATUS AS PRIVATE FIGURE

TO THE IlONORABLE JUDGE OF SAID COURT:

COME NOW, Wright Gore, Jr. Western Seafood Company, and Wright Gore, 111,

Defendants in the above-entitled and numbered cause, and file this their Response to Plaintiffs

Reply to Defendants' Response to Plaintiffs Motion for Partial Summary Judgment on his Status

as a Private Figure and would respectfully show unto this Honorable Court as follows:

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

Court during oral arguments on March 26,2008. At the time of the hearing, the Court requested

counsel to search for authority to educate the Court on the precise date that the Court should consider

as to when there is a "public controversy" for purposes of determining a private figure or limited

purpose public figure, Plaintiff contends there was no public controversy when he sent his letter of

intent in June, 2002 and therefore Defendants cannot claim Plaintiff is a limited purpose public

figure at that time. Defendants contend that there was a public controversy long before the

publication of the website at issue and that the controlling date of a public controversy is when the

alleged defamatoly statements are published. (i.e., March or April, 2004),

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In addition, at the time of the hearing it was learned by Defendants' counsel that Plaintiffhad

filed a Reply to Defendants' Response late on the afternoon of March 25,2008. As a result, the

Court has allowed Defendants until Friday, March 28,2008 in which to file a Response to Plaintiffs

Reply.

11.
Public Controversv Date

As the Court knows, a person may be considered a limited purpose public figure if:

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

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

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

WFAA TV, Inc. v. McLemore, 978 S.W.2d 568,571 (Tex. 1998).

At this time, there does not appear to be a bright line test as to a "date" or 'Time certain"

when a Court considers whether or not a "public conboversy" exists for purposes of evaluating

whether a person is a private figure or limited purpose public figure in a defamation action.

However, there is substantial authorityto support Defendants' position that the evaluation of a public

controversy may exist before and after the alleged defamatory statements.

In ABC, Inc. v. Gill, 6 S.W.3d 19 (Tex. App. - - San Antonio 1999, pet. denied, overruled

on other grounds by Turner v. KTRK W Zinc., 38 S.W.3d 103 (Tex. 2000)) the Court was confronted

with an issue similar to the one this Court is concerned about in this case with respect to the timing

of the public controversy. The ABC, Inc. case involved alleged defamation with respect to the RTC

recovering only a small part of the cost of the savings and loan bailout from officers, directors and

other insiders at failed S&L7sin Texas. Id. at 26. The alleged defamatory statements in that case

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aired on a news program on March 2, 1995. Id. at 26. The original Plaintiffs in that case contended

that no public controversy existed until ABC, Inc. manufactured one by airing the program. Id. at

35. However, the Court examined the evidence and found that a public controversy existed and was

ongoing before the program aired. Id. at 35.

In Greenbelt Cooperative Publishing Ass 'n v. Bresler, 90 S . Ct. 1537 (1970) a case similar

to the one at bar, the alleged "public controversy" existed prior to any alleged defamatory

statements. Id. at 1538.

In Orr v. Argus-Press Co., 586 F.2d 1108 (1978), another similar case, the alleged public

controversy existed Drier any alleged defamatory statements. Id, at 1116.

InEinhorn v. Lachance, 823 S.W.2d40S (Tex. App. --Houston [lflDist.] 1992, writ dism'd

w.0.j.) a case out of Brazoria County, the public controversy existed before and after the alleged

defamatory statements. Id. at 412-413.

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

the public controversy arose a lawsuit was filed and before the alleged defamatory statements

were made. Id. at 560-563.

In order to satisfy the test set forth in WFrW TV, Inc. (i.e., private figure vs. limited purpose

public figure) it is apparent that the alleged defamation be germane to Plaintiffs participation in the

controversy. In other words, the alleged defamation must follow the controversy or the test cannot

be met. Thus, Plaintiffs contention that there was no "public controversy" when he sent his Letter

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

Summary Judgment as well as the evidence attached thereto, there was a public controversy over the

marina project existing long before the publication of any website.

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111.
p y

Plaintiffs Reply to Defendants' Response to his Motion for Summary Judgment primarily

relies on Hutchinson v. Proxmire, 443 US. 111 (1 979) and Wolsten v. Reader's Digest Ass 'n,443

U.S. 157 (1979).

Plaintiff relies on the Hutchinson case for the purpose of arguing that Plaintiffs receipt of

government money does not subject one to a limited purpose public figure status for purposes of a

de:Famationaction. However, a close review of that case reveals that one may not become a Limited

purpose public figure based upon an "award" which then subjects the person to public ridicule. 443

U.S. at 135. In Hutchinson, the Court's primary issue was whether a member of Congress is

protected by the Speech or Debate Clause of the Constitution Art. I 4 6 for alleged defamatory
statements in press releases andnewsletters. Id, at 117-134. With respect to the private figure versus

public figure issue, the Court repeatedly referenced that Hutchinson's receipt of the "Golden Fleece

Award" was the precipitating event to inspire the controversy that followed. Id. at 135.

As established by Defendants' Summary Judgment Response and the evidence attached

thereto, the public controversy at issue (i.e., the marina project) existed long before any website that

is the subject of this case.

In Wolsren, the original Plaintiff sued Reader's Digest for publishing a book in 1974 relating

to the Soviet Union's espionage organization and activities since World War 11. 443 U.S. at 160.

Reader's Digest contended that Plaintiff was a limited purpose public figure because he became

involved in a public controversy and investigation of Soviet espionage in 1957 and 1958 as a result

of his Aunt and Uncle being w s t e d for spying. Id, at 162. Wolsten did not comply with a

subpoena in July, 1958 and subsequently several news articles were written discussing the

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investigation. Id. at 163-164. Following that limited publicity, Wolsten lead a private life until the

publication of the book in 1974. Id. at 164. At the lime the book was published, there was no public

controversy, people were not discussing the investigation from sixteen years earlier, and Wolsten

had only a "minor role" in the previous controversy. Id. at 168. The Court declined to make

Wolsten a limited purpose public figure for "his mere citation for contempt" (i.e., failing to comply

with a subpoena). Id. at 168.

Again, the Wolslen case is irrelevant to this case before the Court. The facts in Wolsten are

considerably different than the facts in this case.

The Greenbelt case is the precedent that this Court should consider. (Attached). This case

involves a local real estate developer in Greenbelt, Maryland who was involved with the City in

negotiations for housing development. 90 S.Ct. at 1538. There was local controversy at the City

Council meetings and in the local press. Id. at 1538. Bresler, the Plaintiff, eventually sued the local

paper for publishing two news articles characterizing Bresler's negotiations with the City as

"blackmail". Id. at 1538.

The Court found:

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

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

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

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

Id. at 1539.

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As a result of all of the factors as set forth above, the Court stated that Bresler was "clearly"

a public figure. Id. at 1539.

In our case:

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

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

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

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

5. Royall agreed to be fully responsible for the marina project;

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

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

All of this occurred before the publication of any website. In addition, Greenbelt was

approved by the Texas Supreme Court. SeeNew York Times, Inc. v. Zsaacks, 146 S.W.3d 144,155

(Tex. 20041,

In Orr, another real estate developer case, the Court found the Plaintiff to be a limited

purpose public figure. In Orr, the Court found:

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

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

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

4. Orr sought or acquired publicity for the project; and

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

586 F.3d at 1116.

In our case:

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

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

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

4. Royall sought or acquired publicity for the marina project; and

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

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

Plaintiff and his company were limited purpose public figures. 190 F.3d at 563. The public

controversy in Novecon, Lld, started after a lawsuit was filed. Novecon, Ltd. v. Bulgarian -
American Enterprise Fund, 967 F.Supp 1382,1391 (D. Conn 1997). The controversywas reported

in thc Wall Street Journal Europe. Id, at 1390. Plaintiffs participated in the controversy and thc

alleged defamation was germane to the conboversy. Id, at 1390. See also Novecon, Lld v.

Bulgarian -American Enterprise Fund, 977 F.Supp. 45 0.D.C. 1997).

Defendants have satisfied the criteria to establish that Royall is a limited purpose public

figure for the controversy and issues in this case. As detailed in Defendants' response, Royall

accepted certain rights under his contract with the City of Freeport. These rights included the power

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to enforce eminent domain, to have private land conveyed to him, the receipt of a six million dollar

non-recourse loan, favorable tax abatements, and full authority and responsibility for the marina

project. News articles identifying Plaintiff and his company were written concerning the risks of the

loan from the City, the controversial nature ofthe marina project, and the lack of competitive bidding

to other developers. News articles were published about the litigation between Western Seafood

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

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

WHEREFORE, PREMISES CONSIDERED, Wright Gore, Jr., Western Seafood

Company, and Wright Gore, 111, Defendants in the above-entitled and numbered cause pray that

Plaintiffs Motion for Partial Summary Judgment on his Status as a Private Citizen be denied and

for such other and further relief, both general and special, at law and in equity, to which these

Defendants may be justly entitled.

Respectfully submitted:
/ n

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

ATTORNEY FOR DEFENDANT
Wright Gore, 111

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HAYS. m O N N . RICE & PICKERING

BY: ,GAY iy ro
I /
TBA NO. 07567400
400 Two Allen Center
1200 Smith Street
Houston, Texas 77002
(713) 654-1111
(713) 650-0027 (Facsimile)

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

p
1hereby certify that on this the t)day of March, 2008, true m d correct oop(ies) of
the foregoing instrument were forwarded to all counsel of record via Certified Mail, Return Receipt
Requested andlor regular mail, andlor via facsimile.

~ a t t h W.
b Childs

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CAUSE NO. 2004-29996

H. WALKER ROYALL IN THE DISTKICT COURT OF
8
v. 8 BRAZOIUA COUNTY, TEXAS
WRIGHT W. GORE and
s
8
DENNIS HENDERSON 8 23gTaJUDICIAL DISTFUCT

BE IT EMEMBERED that on this day came on to be considered Plaintiffs Motion for

Partial Summary Judgment on his Status as a Private Figure in the above-entitled and -numbered

cause, and the Court having read the motion and response is of the opinion that this motion should

in all things be denied. It is therefore,

ORDERED, ADJUDGED AND DECREED that Plaintiffs Motion for Partial Summary

Judgment on his Status as a Private Figure is DENIED.

SIGNED this day of ,2008.

JUDGE PRESIDING

APPROVED:

TTHEWS & LIMMER

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

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

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

PAGE 13123%RCVD AT 312812008 3:46:47 PM [Central Daylight Time]%SVR:HMRP-FAXIO1 DNIS:O%CSID: % DURATION (mmmss):09.16
@REENBELT OOOPERATIVE PUBWSHXNG ASS'N v. BREBLER 1537
888 U.8. 6 ~ i t nn u n R . c ~inn
. (1070)
5PB v.13 6 2. Conntihltlannl Law W O O
GREENBELT COOPERATIVE PUBLISH. Where plaintiff was deeply involved
INU ASSOCIATION, Ink) st al., in future development of city, he had in
Petltlonew, the paat entered into agreements with
r DePOWCO, pen-
v. city for zoning variancea, he wa8 again
(TED STATES.
IB, Mtac. Chmles S. BBESLEU. seeking variances and city was trying to
No. 413. obtain another tract of land owned by
n, 422 F.2d 1304. Argued Feb. 24 and 25, 1970. him, plaintiff was a "public figure" in
Griswold, for the the community for purpose8 of determin-
Decided May 18, 1910. ing whether he was precluded by conrti-
tutlonal protection of free spcech from
of certiorari to the recovering for alleged defamatory publi-
: of Appeal8 for the Libel action against corporate pub-
cations. U.S.C.A.Const. Amends. 1, 14.
lisher of newspaper and its president.
See poblicntion II'ords nnd I't~msos
The Circuit Court for Prince George'e
for ulllvr jllrlicial conatructiora~ Ulld
County. Maryland, entered judgment on ~Icfillitionu.
jury verdict for plaintiff and defendants
appealed. The Court of Appeals of Mary- 3. Constitutional L a w -90
land, 263 Md. 324, 262 A.2d 756 affirmed Instructions permitting recovery by
and certiorari was ~ r a n t e d . The 9u- plaintiff, a public figure, if defendants'
preme Court, Mr. Justice Stcwart, held newspaper articles concerning plaintiff
that, under constitutional free speech had been made with malice "or" with
provisions, use of term "blackmail," in reckless dinregard of whether they were
characterizing negotiating poaition of true or false, defining malicc to include
public figure, who was seeking zoning "spite, hostility, o r deliberate intention
variances at time city was attempting to to harm" and stating t h a t malice could
acquire from him another tract, was not be found from language of the publica-
"slander" when spoken in heated public tion itself, permitted finding of liability
meetings of city council and was not in violation of conetitutional provisions
"libel" when reported in newspaper ar- for free speech. U.S.C.A.Const. Amcnds.
of certiorari to the ticles which fully and accurately reported 1, 14.
t of Appeals for the the public debates. 4. Constitutional Law -90
Reversed and remanded. Free speech constitutional provision
lied. precluding civil remedy of libel unless
Mr. Justice White concurred in the
thero has been a knowing or reckless
judgment, joined the opinion of the
falsehood is no different whether plain-
court in part, and filed an cpinion. Mr. tiff be considered a "public official" or a
Justice Black, with whom Mr. Justice
"public figure." U.S.C.A.Const. Amend.
Douglas joined, concurred in the judg- 1.
ment and filed an opinion.
5. COWER -400
Where it was impossible to know,
1. Constitutional Law *8t1 In view of general verdict returned,
Constitutional protections for speech whether jury in libel case imposed liabili-
and press permit a "public official" to re- t y on a permissible o r a n impermissible
cover money damages for libel only if he ground, judgment must be reversad and
can show that the defamatory publication case remanded. U.S.C.A.Const. Amends.
was not only false but was uttered with 1,14.
actual malice, that is, with knowledge that 8. courts QSOB(2)
i t was false o r with reckless disregard of The Supreme Court'e duty is not
whether i t was false or not. U.S.C.A. limited to elaboration of constitutional
Const. Amends. 1, 14. principles; t h e Court must also in proper
40 S.Cl.-97
1538 90 BUFREME OOURT REPORTER s*n U.B. WEENBELT
BD8 U,8.10
cases review the evidence to make certain News Review, in the city of Greenbelt, judgment, 263 Md. 32
t h a t those principles have been constitu- Maryland. The respondent Bresler is a We granted certiorari
tionally applied. prominent local real estate developer and constitutional issue8 pr,
builder in Greenbelt, and was, during the S . 874, 90 S.Ct. 164, 24 I
7. Courts @888(1)
Supreme Court must make an in- period in question, a member of the Mary- [ll In New York T
dependent examination of whole rNord land House of Delegates from a neighbor- livan, 376 U.S. 254, 84 S
of case involving free expression to as- ing district. In the autumn of le6S 2d 686,we held that the
sure that judgment does s o t congtitute a Bresler was engaged in negotiations with mits a "public official" '
forbidden intruaion. U,S.C.A.Conut. the Greenbelt City Council to obtain cer. damages for libel only
Amend. 1. tain zoning variances that would allow that the defamatory pul
the construction of highddensity housing only false but was utter
8. ConsMtutlonat Law -PO on land owned by him. At the same time malice'-that is, with k
Because threat or actual imposition the city was attempting to acquire anoth- was false or with rcckl
of pecuniary liability for alleged defama- e r tract of land owned by Bresler for the whether it was false o r I
tion may impair unfettered free political construction of a new high achool. Ex- 280, 84 S.Ct. a t 726. Ir
discussion, Constitution imposcs strin- tenaive litigation concerning compensa- ing Co. v. Butts, 388 U
gent limitation8 upon permissible scope tion for the school site seemed imminent, 1976, 18 L.Ed.2d 1094, I
of such liability. U.S:C.A.Const. Amend. unless there should be an agreement on constitutional restrictio
1. its price between Brealer and t h e city suit brought by a "publi.
authorities, and the concurrent negotia-
9. ConsMtutlond Law *MI tions obviously provided both parties con- C21 In the present
Under free speech constitutional pro- siderable bargaining leverage, counsel conceded in hip o
visions, use of "blackmail," in charactcr- to the jury that Bresler
izing of public fi8- These joint negotiations evoked sub- ure i n the community.
ure, who was @&ing zoning variances at stantial lopal contmvers~, and several was clearly correct. Br
tirne city was attempting to acquire from tumultuous city council meetings were involved in the future df
him another tract, was not held a t which many members of the com- city of Greenbelt. He
when rrpokenin heated public meetingo of munity freely expressed their views. agreements with the cit)
and was not -libel* when re. The meetings were reported a t length in ances in the past, and w
ported in newspaper articles, which fully the co~umnsof the Greenbelt News such favors to permit th
and the public de- Review. Two news articlea in conaecu- houaing units of a type
bates, inasmuch as it was impossible to hive weekly editions of the paper stated in the original city p l ~
believe that reader would think that a t h a t a t the public meetings Some people time the city was trying
crime had been charged, U , ~ , ~ , ~ , ~ ohad
n s tcharacterized
, Bresler's negotiating of land owned by Bresle.
Amends. 1, 14. position aa "blackmail." The word ap- & ~f build in^ a school.
See publication Worde and Phraeea peared several times~bothwith and with- , significant public conce
for other judicinl con~tructlons nnd out quotation marks, and was used once
deflnitiona. a s a subheading within a news story.1 2. Tllu following I:XPC~II~N
jud~c'tl cllrlrsc llrc illtlrtr
-C-
Bresler reacted to these news artides "iiccordlngly * *
by filing the present lawsuit for libel, for the dcfcndn~~ton tl
1 roger A. Clark, New York City, for seeking both compensatory and punitive eommcnt. 11n1l.o~,-on #lrt<
petitioners. damages. The primary thru8t of his com- lrondprnncc nf tho r*villma
plaint was that the articles, individuall~t nlcnt er rritlvinnr *
Abraham Chauanow. Greenbelt, Md., d r~i,tIivvor J I r,
l i d ~ ~wit11
for reapondent. and along with other items published in of n-llctlla~rit Wnr Irllv or
the petitioners' newspnper, imputed to I'* .\no1 HIII'IIxt
him the crime of blackmail. The case crl nnd/or trl~blishcd, nni
Mr. Justice STEWARTdelivered the w n t to trial, and the jury awarded Bres. nlalitr~.or kamr.lonclc,- tlnly
opinion of the Court. r C r k l ~ ~ 8di~r(~y!trdf n n ~ IV
ler $6,000 in compensatory damages and trtlc m r rttl~,,.in I I ~ D ! l ; 1 ~ 1 .
The petitioners are the publishera of a $12,600 in punitive damages. The Mary- "The lo\r n ~ ~ ~ o c 1 1t1la~c ~
small weekly newspaper, the Greenbelt land Court of Appeals affirmed the Irvr I I ~ H I ~ I I Y Y I I I~I I ~ n vritil-
tl
Of tn~bblir i ~ l l v r v ~tn t 1111
I . The rclevset ~ o r t l o n sof t h e w naws nrtieles nre printed as a s nppcudix to tllia opiolcn. Klllnt~IInn~t~nitY 0 v . n wit

1
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388 U.S. 6 GREENBELT 000PERATIVE P V B L I B m a ASWN v. BRESLER 1539
388 v.8. 10 C i t e 1 1W
~ S.Ct. lliPi 110701

the city of Greenbelt, judgment. 263 Md. 324, 252 A.2d 766. ress, both with school officials and the
respondent Bresler is a We granted certiorari to consider the city council. Bresler's atatus thus clearly
eal estate developer and constitutional issues preeented. 396 U, fell within even the most restrictive def-
elt, and was, during the
S,874, 90 S.Ct. 164, 24 L.Ed.2d 135. inition of a "public figure." Curtis
, a member of the Mary- 111 In N~~ york ~i~~~ co. v* sul- Publishins Co. v. Butts, supra, 164-156.
egatea from a neighbor- livan, 876 U.S.264.84 s.ct. 710, 11 L . E ~ . 87 S.Ct. 1991-1992 (opinion of Harlan,
I the autumn of 1966 2d 686, we held that the constitution per. J.1. See also Pauling v. Globe-Democrat
gcd in negotiations with mits a to recover money Publishing Co., 8 Cir., 362 F.ed 188, 195-
.y Council to obtain cer- damages for libel only if he can show 196, Cert. denied, 388 U.S. 909. 87 S.Ct.
ances t h a t would allow that the defamatory publication waB not 20B7. 1347.
of high-density housing only false but was uttered with "'actual
him. At the same time malice1-that is, with knowledge that i t [3] Whether as a state legislator rep-
nptinu to acquire anoth- was false o r with reckless disregard of resenting another coustu, or for some
~wnedby Bresler for the whether it was false or not." Id., a t 279, other reason, Bresler was a "public offi-
I new high school. Ex- 280, 84 S.Ct. at 726. In Curtis Publish- cial" within the meaning of the New
1 concerning compensa- ing Co. v. Butts. SS8 U.S. 130, 87 S.Ct. Pork Times rule is a question we need
ol site seemed imminent, 1975, 18 L.Ed.2d 1094, we dealt with the not determine. Cf. Time, Inc. v. Hill, 385
uld be an agreement on constitutional restrictione upon a libel U.S. 374, 390, 87 S.Ct. 634, 643, 17 L.Ed.
.n Bresler and the city suit brought by a "public figure." 2d 456; Rosenblatt v. Baer, 383 U.8,75,
the concurrent negotla- 86 n. 12, 86 S.Ct. 669, 676, 16 L.Ed9d
rovided both parties con- [21 In tho present case Bresler's 597. For the instructions to the jury
ning leverage. counsel conceded in his opening statement in this case permitted a finding of lia-
to the jury that Bresler was a public fig. bility under a n impermisaible constitu-
(egotiations evoked sub- ure in the community. This concession tional standard, whichever status Bresler
ontroversy, and several was clearly correct. Bresler was deeply might be considered to occupy. In his
council meetings werc involved in the future development of the charge to the members of the jury, the
any members of the corn- city of Greenbelt. He had entered into trial judge repeatedly instructed them
=pressed their views. agreements with the city for zoning vari- that Bresler could recover if the petition-
ere reported a t length in ances i n the past, and was again seeking ers' publications had been made with
IS of the Greenbelt New8 auch favors to permit the construction of malice or with s reckless disregard of
lews articles in consecu- houaing units of a type not contemplated whether they were true or false. This
:ions of the paper stated in the original city plan. At the same instruction was given in one form o r
lic meetings some people time the city was trying to obtain a tract another half a dozen times during the
.ed Bresler'a negotiatin~ of land owned by Bresler for the purpose course of the judge'a charge.8 The judge
ickmail." The word ap-
imes~bothwith and with- &
xf buflding a school. Negotiations of then defined "malice" to inc ude "spite,
s ~ g n ~ f i c a npublic
t
f
concern were in prog- hostility o r deliberate intention to harm."
larks.
.. .. and was used once
r within a news story.' 2. The following excarpto fronl the ttinl publientios of foolish und ~rciudiclnlcrit.
judge's cllnrse ore illustrnti~e: icisrn if they am not puhliahed with msl-
ed to these news articles "Accordingly * * sou must find ice, knowledge of their not being true, it
rresent lawsuit for libel, for the defendnnt on the issue of fair is knowledge they arc ful~e,or reckless
~mpensatoryand punitive commcnt, unleea sou derormine hg a p r e diat~nrdof whether they are true or
,rimary thrust of his corn- ~~ondernnee of the evidence thnt the com- false. * * *
ment or criticism * * * was pub- * * *
the articles, individually Iiallcd wit11 mnlicc or n reck1c.a dlRrcCnrl1 "[Ylour verdict should be for the do-
other items published in of wllether It waa truc or f n l ~ c . fesdnnl unless son flnd thnt thc puhlicn.
' newspaper, imputed to "* * And such amtemq!nta repeat. tioo waa nlndc with nctunl mnlico, knowl-
of blackmail. The case ed nnd/or ~nbliahcd,unloaa with nctunl edro of ita fnlsitr, or rccklesa disregnrd
~d the jury awarded Bres- malice, or knowlcdsc tlzst thw nre falae, of whether it w l a true or fnlee.
rccklesa. diaresard for n7hcther they nrc * * *
smpensatory damages and truc or fnlse, ia not libel. [X'lour verdict should be for the de-
tive damages. The M a w r h o low recognizes the in~~)ortance
d, sf "
fendant unless you find wein the publi-
Appcals affirmed the free discuseion and oriti~ismnnd mnttcre cation was with nchral malice, knowledge
of pllblic interest to tlic d e n t thnt it of its bcins false or rkkleaa disresard of
Ioppen<lixto thia opinion. #rants immunity eves with respect to the whether it waa true or inlse."
1540 90 SUPREME OOURT REPORT= GXEENBELT
Moreover, he instructed the jury that ground "the judgment must be reversed Thornhill v. Alabama, 31
"malice" could be found from the "lan- and the case remanded." New York 60 s.Ct. 736, 744. 84 L-I
guage" of the publication itself.3 Thus Times Co. v. Sullivan, supra, 376 U.S, at thc threat or actus
the jury was permitted to find liability 284, 84 S.Ct. a t 728. See Time, Inc. v. pecuniary liability f o r
merely on the basis of a combination of Will, supra, 385 U.S.a t 394-397, 8 7 $.fit, may impair the unfctte
falsehood and general hostility. at 5 4 5 6 4 7 ; Roaenblatt v. Baer, supra, those First Amendment
383 U.S. a t 82, 86 S.Ct. a t 674; Strom. constitution imposes st
C41 This Was of berg v. California, 283 U.S. 369, 367-388,
mamitude, a s our decisions have made 51 s,ct,532, 635,75 L , ~ 1117,~ ,
clear. "This definition of malice is con-
stitutionally insufficient where discus- [6,'73 This, however, does not end ~t is not disputed tl
the inquiry. As we noted in New York published in the petitin
aion of public affairs ia concerned : '[wle
held in New York Time& that a public Times, "[tlhis Court's duty is not limit- were accurate and trut
official might be allowed the civil remedy ed to the elaboration of constitutional what had been said a t
only if he establishes that the utterance principles; we must also in proper cases ings before the city cc
was false and that it was made with review the evidence to make certain that sense, therefore, it canno
that the petitioners we:
knowledge of its falsity or in reckless those principles have been constitutional-
"departure from t h e stal
disregard of whether i t was false or IY applied. * * * We must 'make an
gation and reporting or
true.' " Roaenblatt v. Baer, supra, a t 84, independent examination of the whole
to by responsible Pul
86 S.Ct. at 675. "[Elven where the ut- record,' * * * so as to assure ourselves
publishing CO. V. Butts
terance is false, the groat principles of that the judgment does not constitute a
forbidden intrusion on the field of free a t 166, 87 S.Ct. a t 1991
the Constitution which secure freedom
lan, J.), much less the
Of expression in this area preclude at- expression." 376 U.S.. a t 285, 84 S.Ct..
taching adverse consequences to any ex- a t 728.
eept the knowing o r reckless falsehood.
Debate on public issues will not be un- [BJ This case involves newspaper re- van, supra, 376 U.S. a1
inhibited if the speaker must run the ports of public meetings of the citizens
i risk that ikwill be proved in court that of a community concerned with matters
he spoke out of hatred; * * *" Gar- of local governmental interest and im- [g] The contention
rison v. Louisiana, 379 U.S, 64, 7s. 85 aortanee. The very subject matter of the the speakers a t the me(
Sect.209, 215, 13 L.Ed.2d 125. See also news reports, therefore, is one of particu- word "blackmail," and
Beckley Newspapers Corp, v. Hanks, 389 lar First Amendment concern. "The report in^ the use of
U.S. 81, 82, 88 S.Ct. 197, 198, 19 L.Ed.zd maintenance of the opportunity for free newspaper articles, w e t
248. And the conatitutional prohibition political discussion to the end that govern- with the crime of bl;
in this respect is no different whether ment may be responsive to the will of the since the petitioners I
the plaintiff be Considered a "public of- people and that changes may be obtain- had committed no suck
ficial" or a "public figure." Curtis pub- ed by lawful means * * * is a funda- be held liable for th'
lishing Go. v. Butts, supra. mental principle of our constitutional
system." Stromberg v. Cal ornla s z ~ L x 4. Seo nlao Note. Tho
[5] The erroneous instructions to the pra, 283 U.S. a t 369, 51 At. 3'5.36: Amcndn~cnt I'rotuctio!
jury would, therefore, alone be enough to "Freedom of discussion, if i t would ful- I)efnniotory Krror. 75
015: Pedrick. F r ~ p d ~ l l
require the reversal of the judgment bc- fill its historic function in this nation, the Lnw of libel : T I
fore us. For when "it is impossible to must embrace all issues about which in- Tri~nalotinn. 49 Cnmf
know, in view of the general verdict re- formation is needed or appropriate to 503.
turned" whether the jury imposed liabili- enable the members of society to cope
5. C1. I'nllling \-.(tldrr
ty on a permissible or an impermissiblc with the exigencics of their period." inp Co., 8 Cir., 308 F.
3HR I'.S. OOn. 87 H.(:
3. Thc crlnl judm anid : if tlle cllnrnr-ter of the ~ubllnltion la HO
"With r c s ~ e c tto your r n n s l d c r ~ ~ t ~of
on c x c ~ a i v r , i ~ ~ l ~ ~ r n ~ snrcnnonnblc
rrnt~. nnd
preaencc of act1101 mnlice on t l ~ cpnrt of nbnalvc $1" to defy nny othcr rctasonnbl~
defendnnt, you may lni#:r ita prpecncr roncl~lrion tllnn tlmt tllc defcndnnt w n ~
from the l a n ~ u n g eor CircumHtllnr~aof the rnoved bs actnnl lrl~llirrtorvnrd t l ~ aplnln-
publlcsc1on, but this mny be done only tiff."

W A G E 11 axRCVD AT 3 28 2008 3.:41 PM [Central Daylight time]^ SVR:HMRP~FAX0' DNIS:O CSID: DURAT~ONw~ssJ:~-li
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GREENBEJ
1542 80 SUPREME OOVRT SEPORrER
School Site Deal," made it clear to all APPENDIX TO OPINION O F knowledge rec
readers that the paper was reporting the THE COURT goricall~opposed by I
public debates on the pending land nego- On October 14, 1965, the following a Board member of
tiations. Bresler's proposal was accurate- I ~ C . (GHL), who re,
story appeared in the Greenbelt News R e
ly and fully described in each article, view: merit by GHI presid,
along with the accurate statement that
some people a t the meetings had referred SCHOOL SITE STIRS UP COUNCIL
to the proposal as blackmail, and others REZONING DEAL OFFER Black
had indicated they thought Bresler's DEBATED
poaition not unreasonable. BY Dorothy Sucher " ~seema
t that thi
Deliy in construction of a new Green- blackmail," commer
It ia simply impossible to believe that Bergemann on Mom
a reader who reached the word "black- belt high school is the lever by which a
local developer is pressuring the city to word was echoed bY
mail" in either article would not have the audience.
exactly what was meant: it endorse his bid for higher density re-
was Bresler's public and wholly legal ne- zoning of two large tracts of land; so ~ouncilmanDavid
gotiating proposals that were being criti- citizens heard a t a well-attended special denied that it was
cized, N~ -reader could have thought meetins of the City Council on Monday Ing that he would r
that either the speakers at the meetings night, Oct. 11. e,, the negotiations
or the newspaper articles reporting their For the past nine months, the Board
words were charging Bresler with the of Education has been trying to acquire
commission of a criminal offense.' On land owned by Consolidated Syndicates, Speaking from
the contrary, even the most carelesa read- Inc. (Charles Bresler-Theodore Lerner), commented: "Ever
er must have perceived that the word was for a high school site. The landowners, need for a school-:
no more than rhetorical hyperbole, a vig- developers of Charlestowne Village, also halls of High Point.
orous epithet used by those who consider- own other tracts of undeveloped land in there's a need and
ed Bresler's negotiating position extreme- Greenbelt. need if you meet 01
ly unreasonable. Indeed, the record is ion, it's highly m e t
The developer has refused to accept the
completely devoid of evidence that any- Board of Education,8 price, and con- t t
one in the city of Greenbelt or anywhere
demnation have already been
else thought Bresler had heen charged
with a crime.
delayed three times ,,
*, Originally, Delay
it was hoped the new school would open
Mayor Edgar S1
To permit the infliction of financial . September 1966.
should be made cl
liability upon the petitioners for pub- Some time ago, i t became known that developer's terms
lishing these two news articles Would the dev@loperwould agree on the price, mean the loss of tl
subvert the most fundamental meaning of provided the city would help him obtain would, however, PI
A 6
+
a free press, protected by the First and
Fourteenth Amendments. Accordingly,
we reverse the judgment an remand the
case to the Court of Appeals of Mnryland
for further proceedings not inconsistent
higher density rezoning for two of his
tracts (Parcels 1 and 2, totaling 250
acres) near the center of Greenbelt. If
the city refused, h@threatened to delay
d h e school site acquisition as long as pos-
three year delay in

4 8 Among the pare:
with this opinion. aible through the courts. Joseph Rosetti, wf
This "deal" as it was termed by several a1 children going
I t is so ordered. I would rather a1
citizens a t Monday's meeting, has been
Judgment reversed and case remanded. rumored for months, but only became ~M.aster Plan t h u
wrth denae develo
7. r n d c r thc lllw of >Inruland thc crime of or things of value. See Md.Ann.Calc. for my chlldren'a
blnckmnil consistu in tllrcntening t o nc. nrt. 21, gg Ml-553 (lea7 Repl.VoI.). give in to a blacl
cusc nllr pcrson of nll indir.tnblc crilnc or Tllerc is, of ivumr, no lndi<!ntion i l l nny
of ~ n v t h i n rwhich, if truc, would bring of t l ~ c nrticlcs thut Breslcr had en- The following '
the person into contempt ur disrep~~to. guged in unytlllue nuproaching such mn- carriedthe aeguel
with n viow t o cxtorting tnoncy, goode. duct.

PAGE 19/23' RCVD AT 312812008 3:46:47 PM [Central Daylight Time]' SVR:HMRPmFAXIO1DNIS:O' CSID: ' DURATION (mmmss):09.16 i
14:55
P .28/23

BEEENBELT 000PBRATWE PUBLIBXINO ASB'N v. BR?SSLER 1543
Cite nu 80 s.Ct. 1m Si10701
l'0 OPINION OF blic knowledge recently. I t waa cate- COUNCIL REJECTS BY 4-1
COURT orically opposed by Nathan Shinderman, HIGH SCHOOL SITE DEAL
1965, the following Board member of Greenbelt Homes,
he Greenbelt News R,. who read a lengthy state- By Mary Lou Williamson
president Charlea Schwan More than 160 citizens came to hear
TIRS UP COUNCIL how the new City Council would reapond
DEAL OFFER to presaure by a local developer for higher
IATED Blackmail density zoning on a large tract of land
thy Sucher in exchange for uncontested consumma-
"It seems that this is a slight case of tion of the sale of a Greenbelt senior high
:tion of a new Green. blackmail," commented Mrs. Marjorie school site to the Board of Education at
the lever by which a Bergemann on Monday night, and the the Council meeting Monday night.
ressuring the city to word was echoed by many apeakers from
r higher denaity re. Council sat quietly listening for more
I tracts of land: 80
than an hour to citizen statements before
well-attended special Councilman David Champion, however, voting to reject the proposal (4-1) with
Council on Monday denied that it was "blackmail," Councilman Dave Champion disaenting.
ing that he would rather "refer to it (i. I Y * " " *
e., the negotiation-Ed.) aa a 4wo-way
P months, the Board
Citizens Speak
!en trying to acquire
aolidated Syndicates, speaking from the floor, G ~ ~ &~ I ~ A~ procession
~ hof citizens
, took the floor
!r-Theodore Lerner), commented: u~~~~~~~~ knows therevs a to make impassioned speeches-some
tc. The landowners, for a school-just walk through the from prepared texts, some extemporan@-
!stowne Village, also halls of High Point. The developer knows 0UslY. The IIIaYor occasionally had to
undeveloped land in thereTs a need and says, awePllmeetyour caution them to refrain from engaging
need if you meet our need.' In my opin- in personalities*
refused to accept the ion, it's highly unethical." Albert Herling suggested skulduggery
2's price, and ccm- a. * f I w w in the September court postponement.
rs have already been Although he praised most of the City
* *. Originally, Delay Probable
Manager's report, he criticized the section
V school would open entitled "Risks and Concluaions," saying
Mayor Edgar Smith remarked that it they appeared negative in the extreme.
became known that should be made clear that refusing the He suggested a list pf positive steps that
agree on the arice, developer's terms did not necessarily council ought to take: 1) fight Bresler's
uld help him obtain mean the loss of the school site; that it "blackmail" ; 2) make clear to the Board
ing for two of his would, however, probably mean a two or of Education-no deals: 5) make clear
1d 2, totaling 230 three year delay in the construction of the to the District Council (zoning authority)
:r of Greenbelt. If school. unanimous opposition to the requested
R-SO wning ; and 4) seek the swiftest
threatened to delay * * + I
tion aa long aa pos- ~1
W W possible court settlement. "For anything
Among the parents who spoke was Mra. less," charged Herling, "Would be other &a
rts.
Joseph Rosetti, who said: "I have sever- than what you believe. And w en the 4,
termed by several al children going into high school, but chips are down, this is exactly what you'll
meeting, has been I would rather adhere to the Greenbelt do."
but only became master Plan than overcrowd the town * It * *
wlth dens0 development. f would atand Pilski asked if anyone in the audience
See Md.Ann.Code. for my children's dimomfort, rather than cared to speak in support of Bresler's
(1967 Repl.Vo1.).
Indiration in ony give in to a blackmailing scheme." proposal.
Bmsler had en-
roncllius such eon- The following week, the News Review Only James Martin took the floor. He
carried the sequel to its earlier story: suggested that Bresler's action was not
888 U.S. 10 GREENBELT OOOPERATIVE PUBLISIIINlt A W N v. BRESLER
398 U.8.22 o w x . c ~IJS?
~ i t UH . (i07u1
1545
spectable class in a new trial, error was claimed in not in- ous to Mr. Bresler in his busineas as a
- *. structing the jury that the failure to contractor and were libelous per se."
upon the plaintiff plead truth meant only that the defend- Id., at 354, 252 A.2d. a t 772.
:ponderante of the ants did not adopt the meaning of the
~blicationimputed As for the issue of malice, t h e Court of
words alleged by the plaintiff. See App.
isgraceful, dishon- E.10-11. Appeals noted that the newspaper knew
the blackmail charrre was - - fnlne
. . -..
in the
-".-
luct or was othor-
The jury returned a verdict for plain- criminal sense. w i t h reference to the
I private character
tiff, and judgment was entered on thc charge of "skulduggery" the court point-
App. E. 189.
verdict for both compensatory and puni- ed out that thc newspaper had not quoted
! dispute over the tive damages. another source in using that word; rath-
harge of blackmail
't told the jury: The Court of Appeals of Maryland af- er, i t was the publishers' own character-
* firmed. The court held that aside from ization of the events.
e to concludc from federal constitutional protections urged "There is little doubt that the word
f the evidence that by petitioners, the jury's verdict and sub- 'skulduggery' was intended to indicate
irs a meaning as- sequent judgment thereon were supported dishonest conduct on the part of Bres-
plaintiff, or if you by the evidence. With reaaect to the ler and to hold him up to ridicule and
nce is equally bal- blackmail charge the court said: contempt. * * * The jury could
, then your verdict properly conclude that the reports of
ndant. "In the instant casa the word 'black-
mail' was used an a sub-heading with- the hearing were not accurately report-
I * X
ed and were, also, published with a
out clualification. The charge of black-
le publication com- mail was stated in the News Review knowledge of their falsity or with aer-
t consider the pub- issue of October 14, 1965, and was ious doubt of their truthfulness." Id..
-the Court would again repeated in the next week in the a t 860, 252 A.2d, at 776.
are talking about issue of October 21. The appellants The court also held that the allegations
:r of publications- argue that the word 'blackmail' was that homeowners had started legal pro-
leaning of the pub- used in a noncriminal sense, but the ceeding~against Bresler in regard to con.
rould be understood intended meaning was for the jury struction defects in their homes built by
s from the entire to determine. American Stores [Co.] him had been made with reckless die-
:h the other facts v. Byrd, supra [229 Md. 6, 181 A.2d regard for the truth.
shown by the evi- 5831. The jury h u n d against the ap-
In reversing the Maryland Court of
pellants. Appeals, the Court does not deny that the
tion is susceptible 4 X * * *
ne of those which
X
Constitution would permit r e c o s r y for &z
id thLother not, i t L m i X T h e charging of Mr. Bresler with charging t h e crime of blackmail, or even
!h of the two mean- h a v ~ n rcommitted blackmail could bc for faleely accusing one of "blackmail"
ibutable to it, by found by the jury (as i t was) to in n noncriminal but derogatory sense
s addressed or by charge him with the commission of a "injurious to the private character or
cad. In reaching crime." 253 Md. 324, 351-352. 252 credit of the person." The Court does
in consider all the A.2d 765, 770 (1969). not deny t h a t the f u r y was told it had
~undingthe publi- The court alao dealt with the other tho authority to decide in what sense a
les all of tha evi- publiestions : word was used or understood, nor does
In admitted." Id., the Court question the conclusion of the
"In addition to the publications that Court of Appeals that tho jury had found
Mr. Bresler had committed blackmail. that the word had been used and under-
ined the crimc of there were publications that he had en- stood in the criminal sense. What the
I jury that in this
gaged in 'An unethical trade', had been Court does hold on the cold record is that
lewspaper did not guilty of 'skulduggery', had had legal t h e trial judge, t h e jury, and the Mary-
tna were true.
proceedings 'started against him f o r land Court of Appeals were quite wrong
:eption t o none of failure to make construction correc- in concluding that "ordinary readers''
tions although in tions in accordance with county stand- could have understood that a crime had
lent n. 0, v, or for ards.' These allegations were injuri- been charged. If this concluaion rests on
90 S.Cl.--91V.
P .23/23

1546 90 SUPREME (IOURT REPORTER
the proposition that there was noevidence 318 v.%
should not be held t o the standard of the
NATIONAL LABOR
BOARD,~ ~ M t l c
v.
BAYTHEON COMPE
NO. 440.
meaning i n normal usage is itself some in this respect in accurately reporting ~ r g u e dFcb. 26-
evidence; and without challenging the evcnta and statements occurring a t of-
~ e c i d e dMay 18.
reading of the jury's verdict by the ficial meetings, i t would he preferable
Maryland Court of Appeals, I cannot join directly t o carve out a wider privilege
the majority claim of superior insight for such reporting.
with respect to how the word "blackmail" National Labor Rela
I agree with the Court that there wae titioned for enforcement
would be the Ordinary error in the instructions concerning mal-
reaaer in Greenbelt, Maryland. prnctices orders. The
ice. The error, however, is irrelevant to courtOf ~ p p e a l sf a r t h ~
Although the Court does not ao hold, the "blackmail" phase of this case as I d dinmissed r
408 ~ . 2 681,
arguably the newspaper should not bo view it: if one assumes that the jury certiorari was granted.
liable if i t had no intention of charging found that the crime of blackmail was Court, Mr. Justice Mar
a crime and had a good-faith, nonreck- charged, "malice" ie Conceded, since the where Bonrd delerrninw
less belief that i t was not doing so. defendanta admittedly knew such a engaged in illegal preelm
Should New York Times Co. v. Sullivan, charge was false. and that remedial order
376 U.S, 254, 84 S.Ct. 710.11 L.Ed.2d 686 ~ ~ ~ ~the jury h ~a gen-
~ t,.@turned l ~ ~ ~ , and there was nothing
(19641, be extended to preclude liability verdict; it might have found that showed that specific act
for injury to reputation caused by em- the blackmail statement did not impute had not been repeated 0
playing words of double meanins, one a crime, but that the damaging aesurance that they wou
of which ia libelous, wlienever the pub- ,hternentspublished ,,,,
the newspaper ed in future, fact that s1
liaher claims in good faith to have intend- ,re libeloue. l,,deed. this was the most sentation election was
4 the innocent meaning? I think not. likely course for the jury to have taken certified by Board did n
The New Times case was an effort if the Court is correct that there was so ings on Board's pctition
to effectuate the policies of t h e First little for baaing li&ility on the LM of unfair labor practice:
Amendment by recognizing the difficul- blackmail allegation. ~i~~~ this possi- ployees could not be den
8 ties of aace&aining the truth of allega- bility, the error in the instructions re- order absent decision a11
tions about a public official whom the quires reversal of the judgment,
newspaper is investigating with an eye berg v. califortlia, 288 U.S, 859, 61 s,c~. Judgment of Courr
to publication. Absent protection for the 632,76 L . E ~ ,1117 (1981). versed and ease remant
nonreckless publication of "facts" that
subsequentlybrove to be false, the danger Mr. Justice BLACK, with whom Mr.
is that legitimate news and communica- Justice DOUGLAS joins, concurs in the 1. bbor %lation.; -70
tion will be suppressed. B u t i t i s quite judgment of the Court for the reaeons Subscquent rcprcs
a different thing, not involving the same set out in Mr. Justice Black's concur- and certification of I-c
danger of self-cenaorship, to immunize ring opinion in New York Times Co. v. Labor Relations Board
professional communicators from liability Sullivan, 576 U.S. 264, 298, 84 S.Ct. 710, dence that cml)loyer h a
for their use of ambiguous language and 733, 11 L.Ed.2d 680 (1964). in his con- pendency of elcction 1
their failure to guard against the pos~i. curring and dissenting opinion in Curtia order that new elcclior
bility that words known to carry two Publiehins Co. v. Butts, 588 U.S. 130, ployer cease and dcsist
meanings, one of which imputes commia- 170,87 S.Ct. 1976, 1999, 18 L.Ed.2d 1094 union activity but do
sion of s crime, might seriously damage (19671, and in Mr. Justice Douglas' moot proceedings on
the object of their comment i n the eyes concurring opinion in Garrison v. Louisi- seeking enforcement 0
of the average reader. I aee no reason ana, 879 U.S.64, 80,815S.Ct. 209,218,13 tionai Labor Kelationr
why the members of a skilled calling L.Ed.2d 125 (1964). lo(@)as amended 2!1 1.
( I ) , 160(c).

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

.'-, F j E ~D
1
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CAUSE NO. 2004-29996

\ H. WALKER ROYALL 5 IN THE DISTRICT C O m T OF
§
8 BRAZORIA COUNTY, TEXAS
§
WRIGHT W. GORE and §
DENNIS HENDERSON 8 23gm JUDICIAL DISTRICT

ORDER

BE IT REMEMBERED that on March 26,2008 came on to be considered Plaintiffs Motion

for Partial Summary Judgment on his Status as a Private Figwe in the above-entitled and -numbered

cause, and the Court having read the motion and responses, is of the opinion that this motion should

in all things be denied. It is therefore,

ORDERED, ADJUDGED AND DECREED that Plaintiffs Motion for Partial Summary

Judgment on his Status as a Private Figure is DENIED and that Plaintiff is a limited purpose public

figure.

SIGNED this ' 11 day o

JUDGE PESIDING
APPROVED:

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

MAY 0 2 2008
TBA NO. 07567400
1233 West Loop South, Suite 1000
Houston, Texas 77027
(7 13) 654- 1111
(7 13) 650-0027 (Facsimile)

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